MARKET PLACE SELLER AGREEMENT
The Make It Collective provides a platform for creators and sellers of handmade goods to sell their products and get marketing support to grow their business. The Make It Collective provides business development education, training and resources and networking opportunities for creative business owners.
This Marketplace Seller Agreement is between you and The Make It Collective ABN 98 628 152 484 (referred to in this Marketplace Seller Agreement as “we”, “us” or “our”) and is legally binding.
Please contact Kelli Vizzari on email@example.com if you have any questions about this Agreement.
For ease of reference, Definitions are contained in Schedule 1 Definitions.
TERMS AND CONDITIONS
- Our Platform
1.2 Our Platform allows you as a third-party merchant user to list and sell your goods directly to customers, and we provide services to facilitate these transactions.
1.3 By selling on our Platform, you are contracting directly with the customer, and sales on our website are subject to our Terms of Sale.
- Registration Requirements
2.1 You must be a registered seller to access and use the Services featured on the website.
2.2 We reserve the right to accept or reject your registration for any reason at our absolute discretion.
2.3 We may reject your registration if we believe:
a. your products are unsafe or may infringe any law;
b. your products, policies and procedures do not align with our rules, guidelines and policies;
c. we deem that you are otherwise unable to meet our Seller requirements or the obligations under this Marketplace Seller Agreement.
2.4 On registration, you warrant that:
a. if you are required to be registered for GST, you hold of a valid ABN;
b. you, or persons registering as a seller on your behalf, have the necessary authority to enter into this Marketplace Seller Agreement and be bound by its terms and the performance of your obligations.
2.5 You must provide us with and ensure that we always have accurate, up-to-date details including your contact address, email address, payment information.
2.6 You must provide a PayPal account email address for payments.
- Our Fees & Services
3.1 We will provide you with the Services set out in the Service Packages advertised on our website
3.2 The Fees for each of our Service Packages are located here:
3.3 The Service Package Fees will be confirmed with you when you open a Seller Account, and the rate will be shown on your account page.
3.4 We may amend or change our fees at any time. Any changes in the Fees will be notified to you in writing.
You understand and agree:
3.4 All packages are offered as annual subscriptions.
3.5 The subscription payment for each package may be paid annually as a single upfront payment or as a monthly payment via credit card upon registration of your Seller account.
3.6 You may choose to cancel your subscription at any time.
3.7 If you paid the subscription fee in a single upfront payment, you would have access to subscription inclusions to the end of the subscription period, and your subscription will not be renewed.
3.8 If you are paying the subscription fee by monthly direct debit, upon cancellation of your subscription your access to subscription inclusions will be available to the end of the month of cancellation after which you access to the Service package will cease.
- Listing requirements
You understand and agree:
4.1 The Services we provide you are a sale and listing platform for you, the Seller, to list and sell your goods and/or services to third party customers.
4.2 We are not responsible for, or a party to, the transactions that take place between you and any buyer of your goods and/or services except as set out in this Marketplace Seller Agreement.
4.3 You are responsible for the content of all goods and/or services listings you place on our website.
4.4 You warrant that all products are partially Australian-made.
4.5 You warrant and agree that all information you provide:
a. is accurate and up-to-date;
b. complies with all Australian laws; and
c. does not breach any third-party Intellectual Property Rights.
4.6 You must provide accurate details and descriptions about the goods or services you offer on the website, including but not limited to (where appropriate):
a. technical specifications, sizes, colours and dimensions;
b. any required safety notices, labelling or warnings;
c. where necessary, any registration numbers or details (for example, ARTG or AUST L numbers for goods on the Australian Register for Therapeutic Goods);
d. shipping information (including the cost, estimated delivery timeframes and method of shipping); and
e. your returns and refund policies (and other general terms of supply) that apply to your goods;
f. any additional information or attributes about your goods or services that we may reasonably request from time to time.
4.7 Goods can only be listed in the single, most relevant product category.
4.8 You must not list the same item(s) in multiple product categories or list the same item(s) in multiple listings.
4.9 All goods sold by you must be safe and comply with all applicable Australian laws, product safety requirements and mandatory standards.
4.10 You warrant and agree that:
a. your goods are safe and comply with all applicable laws, product safety requirements and mandatory standards;
b. your goods (and the sale of your goods) do not breach any third party’s Intellectual Property Rights;
c. you have the right to sell and dispose of the goods, and that the
d. listing is accurate, up-to-date, and not misleading or deceptive in any way.
Removal of listing
4.11 We reserve the right to review your goods or listings either before or after they are listed for compliance with this Agreement and applicable policies.
4.12 We may refuse to list goods or remove goods from our website where those goods do not comply with our published policies.
4.13 We also reserve the right to suspend or terminate your account for breach of this Marketplace Seller Agreement, including any applicable policies.
- Legal relationship
5.1 When a buyer places a valid order on the website for your goods and services, you acknowledge and agree that:
a. a contract of sale exists between you and the Buyer of your goods for the supply of the goods which are the subject of the order; and
b. you will be committed to fulfilling the order at the time we receive the payment for the goods.
6.1 You will determine the sales price of your goods.
6.2 The sales price (and associated shipping charges) displayed on the website (“Sales Price”) shall represent the total price payable for the goods or services, including any necessary taxes or charges.
6.3 You agree not to charge any additional undisclosed amounts to buyers.
- Third-Party Links and online shopping platforms
7.1 You must only use the Website and Services to transact with customers via the website
7.2 You must not:
a. upload any web links, URLs, or redirects to any third-party websites or online shopping platforms (including your website);
b. include in any parcel (without our express written permission) any promotional or marketing material for any third-party websites or online shopping platforms (including your website);
c. ship goods in any parcel that bears logos or marks for a third-party website without our express written permission (for example, Amazon fulfilment services parcels);
d. use in any other way the Services or functionality provided with them to circumvent any customer transactions or promote any third-party websites or online shopping platforms (including your website).
7.3 You agree to comply with our published policies about the sale of goods on the website, which we may amend at any time.
7.4 Any terms you provide to customers will be subject to this Marketplace Seller Agreement and our website
- Your Service Obligations
8.1 As a Seller on our Website, you agree to conform to the minimum service obligations set out in this Marketplace Seller Agreement.
8.2 A failure to comply with these obligations may result in the suspension or termination of your account or selling privileges as determined by us.
8.3 We reserve the right to enforce our rights under this clause if we reasonably believe it is necessary to protect our customers and ourselves from potential liabilities that may arise from your conduct.
8.4 This means we may sometimes be more lenient in the enforcement of our rights, but such leniency shall not constitute a waiver of our rights.
Customer order fulfillment
8.5 When a buyer places a valid order on the website for your goods and services, you will be committed to fulfilling the order at the time payment is made by the customer via PayPal.
8.6 In addition to anything else in this Marketplace Seller Agreement and our associated policies, you must at a minimum:
a. confirm and dispatch orders within two (2) to five (5) Business Days of receiving an order confirmation from us;
b. maintain an order acceptance rate over 95%;
c. maintain both an Incident Rate and Dispute Rate of below 3%;
d. have no more than three (3) sequentially cancelled ‘confirmed’ orders or rejected orders at any given time.
8.7 You must otherwise:
a. ship goods within the stated delivery/shipment times on your item listing and ensure your listing details your expected delivery/shipment dates;
b. maintain and manage your inventory appropriately to ensure you can fulfil customer orders within a reasonable time frame; and
c. respond to and handle customer complaints and issues promptly and without unnecessary delay and in accordance with Clause 9.
8.8 We do not take responsibility for erroneous adjustments, refunds, credits, or other payments made by you to the Buyer (unless arising from our act or omission).
8.9 Payment to Sellers
8.10 Payments to Sellers is made via PayPal directly to the Vendors PayPal account.
8.11 All transactions connected with this Marketplace Seller Agreement will be made in Australian Dollars.
8.12 With each payment, the Seller will be issued an electronic statement.
- Customer Complaints
9.1 Your returns and refunds policies and procedures must always comply with our customer service policies and applicable laws, including the Australian Consumer Law
9.2 You must make these policies available to customers via the listing for your goods.
9.3 Where a customer raises a query or complaint with you, must resolve the incident with the customer in accordance with the law and our stated policies.
9.4 Depending on the nature of the complaint, any pending payment for the goods which are the subject of the Incident may be put on hold until the incident is resolved.
9.5 You must communicate directly with buyers through the functionality enabled on our website.
9.6 You are responsible for acceptance and processing of returns, and arrangement or replacement or repairs or payment of refunds where applicable.
9.7 We do not bear risk or responsibility for any agreements made between you and buyers about the return of goods or your handling of complaints.
- Fraudulent Transactions:
10.1 We may, at our discretion, assess buyers of your goods or services for potentially fraudulent transactions.
a. If we reasonably suspect a buyer of fraud, we may at our absolute discretion, impose transaction limits on buyers to limit fraudulent activity.
- Access and use of the Website and Services
11.1 You must only use our website and platforms through the interfaces provided by us and under these terms and any applicable law.
11.2 You must not (or attempt to):
a. interfere (or attempt to interfere) or disrupt (or attempt to disrupt) our site or the servers or networks that host our site;
b. use (or attempt to use) data mining, robots, screen scraping or similar data gathering and extraction tools on our site;
c. interfere (or attempt to interfere) with security-related or other features of our site; or
d. use, copy or distribute (or attempt to use, copy or distribute) content without our express permission (including without limitation the Customer Database).
11.3 We may refer fraudulent or abusive or illegal activity to the relevant authorities and in doing so, disclose information to such authorities relating to your account.
11.4 We may, at our discretion, investigate any suspected illegal activity on your account.
Use of your Account
11.5 You are solely responsible for the activity that occurs on your account, and you must keep your account password and details secure.
11.6 We are not responsible for any unauthorised activity on your account occurring because you failed to keep your account login information secure.
11.7 The Services are provided ‘as is’, and we do not warrant or guarantee that the Website and related services will be available at all times or for a specified period and without disruption.
11.8 We provide no warranties about the content of any other website linked to or from our website.
11.9 We reserve the right, at any time and from time to time, to alter or change the Website, Services and associated functionality in any way.
11.10 We reserve the right to suspend or terminate your account for any reason or no reason.
11.11 This Marketplace Seller Agreement does not guarantee the ongoing provision of the Services.
11.12 We may, at any time and our absolute discretion, restrict or modify your use of the Services, or terminate the provision of Services to you.
- Product Safety and Recalls
12.1 All goods you sell on our Platform must comply with all Australian mandatory safety standards and any other laws or regulations concerning product safety.
12.2 If you become aware of any actual or potential defect, fault or condition relating to the goods you sell or have sold on our Platform which poses a safety risk to the public (“Risk”), then you must immediately alert us in writing, and notify us of:
a. the specific goods affected;
b. the nature of the Risk; and
c. any proposed action to be taken concerning that Risk.
12.3 It is a condition of using our Platform that you must take all reasonable steps to diminish the threat to the public of such Risks, which may include but is not limited to:
a. withdrawing the goods from sale;
b. recalling the goods in accordance with applicable laws and regulations; or
c. taking corrective action where necessary.
12.4 Where we become aware of a Risk, either through you or by other means, about your goods and in our reasonable opinion:
a. the Risk is such that it could cause loss, damage, injury or death to persons; and
b. you have failed to take, or intend not to take, reasonable actions necessary to diminish such Risk; then
without limitation to any other rights, we may have under this Marketplace Seller Agreement. More generally, we may, at our absolute discretion, suspend or terminate your account and take whatever actions we deem necessary to diminish such Risk, which may include but is not limited to:
a. removing the goods from sale from our website;
b. informing customers of the Risk and steps that should be taken to diminish the Risk; and
c. where necessary, provide compensation to customers.
12.5 Where goods you have sold on our Platform are subject to a recall or similar corrective action you irrevocably authorise us to deduct as a liquidated sum, any administrative fees and other loss or damage associated with the recall under that policy from any available funds under your Seller account.
- GST and Taxes – General
13.2 It is your responsibility to calculate and determine and pay the amount of any necessary taxes associated with your use of our Platform.
13.3 We bear no responsibility for or liability to you about any taxes paid or payable concerning the sale of your goods.
13.4 Where applicable, you warrant you are registered for GST and will remain so for so long as you sell goods on our Platform.
13.5 Your Sales Price must include GST where applicable. You cannot add GST to the goods after they have been bought or sold.
13.6 Our Fees include GST where applicable, and we are entitled to recover from you.
13.7 You must pay the amount of any GST payable under the GST Act for any taxable supply made under this Marketplace Seller Agreement.
13.8 You are responsible for providing customers invoices for their goods where required under the GST Act.
13.9 You must not issue a tax invoice for our Services to you under this Platform.
13.10 We will issue you with a recipient created tax invoice (“RCTI”) in respect of supplies made under this Marketplace Seller Agreement.
13.11 Each party warrants that it is registered for GST (where applicable) and will notify the other if at any time it ceases to be registered.
- Privacy and Personal information
14.3 You must always comply with the Privacy Act 1988 and the General Data Protection Rules (GDPR) about your handling of personal information collected or disclosed to you in connection with this Agreement.
14.4 You and your employees, officers, agents, or affiliates must not directly or indirectly disclose any personal information about any person (including but not limited to a buyer’s name, address, email address, contact number or order history) to any third party unless such disclosure is necessary for the performance of your obligations under this Agreement.
14.5 You must also ensure that the receiving party only uses that information for the purposes for which it was disclosed, namely the fulfilment of your obligations under this Agreement.
14.6 You must not use any customer information for any purpose other than to provide customers with the goods and services they purchase from you on our Platform.
14.7 You must not otherwise use customer information to send customers any marketing material, third party offers, or other sales-related communications without our express written permission.
- Intellectual Property
15.1 For the duration of this Marketplace Seller Agreement, you grant us a worldwide, royalty-free, irrevocable, non-exclusive right and licence to use, reproduce, publish, communicate to the public, adapt, display, alter, amend, reformat and otherwise use your materials, including without limitation logos, trademarks, product images, descriptions and information (“Materials”) provided to us to provide our Services on the website.
15.2 You also grant us the right to sublicense these rights to our affiliates, service providers and other users of the Services to merchandise or advertise goods and services or the Services, provided however that we do not alter (except resize) your trademarks without your express written permission.
15.3 You warrant that you have all necessary right, title and interest in the Materials to grant us the rights set out in clause 19.2 and that our use of the Materials as set out above will not infringe any third party’s Intellectual Property Rights.
15.4 Our customer database, including customer names, email addresses, delivery addresses, contact details and order history (“Customer Database”) remains our property.
15.5 For the purposes of this Marketplace Seller Agreement, we grant you a limited, revocable, royalty-free right and licence to use the Customer Database solely for the fulfilment of your obligations under this Marketplace Seller Agreement, namely fulfilling orders to customers.
15.6 You must not without our express written permission in relation to the Customer Database use, copy, reverse engineer, or compile data from the Customer Database, distribute, sell, commercialise or disclose the Customer Database or any elements thereof, or otherwise use the Customer Database for marketing your goods, company or services other than as expressly provided for within this Marketplace Seller
15.7 You must not use any our other intellectual property, including trademarks (both registered and unregistered), logos, artworks, copyright, designs or any other intellectual property whatsoever without our express written approval in each case.
15.8 Neither party shall obtain any right or ownership to a party’s pre-existing intellectual property except as expressly set out in this clause.
Intellectual Property Claims – Claims Process
15.8 Third-party rights owners may make a claim about a listing(s) through our rights claim process. Where a third party makes a claim:
a. we will review the complaint and the listings about which there is a claimed infringement may be suspended;
b. we will notify you that there is a claim about one or more of your listings and provide you with the relevant contact details of the claimant;
c. the relevant listings will remain suspended unless until both parties inform us that the issue is resolved, or we otherwise believe the issue is resolved.
15.9 Where there are multiple listings subject to a complaint, or we otherwise believe you to have infringed or potentially infringed a third party’s intellectual property rights, we may, at our discretion, suspend or cancel your entire account.
15.10 You indemnify us for any loss or damage incurred about any infringements under clause 15.8.
15.11 We will not be liable for any listing or account suspension or terminations arising as a result of a complaint made about one or more of your listings.
- Disclaimer and Liability
16.1 To the maximum extent possible at law, we exclude all liability to you or anyone else for loss or damage of any kind or nature relating in any way to the Website and Services including, but not limited to, loss or damage you might suffer as a result of:
a. errors, mistakes or inaccuracies on the website or our social media pages;
b. you acting or not acting, on any information contained on or referred to on the Website and/or any linked Website or our social media pages;
c. personal injury or property damage of any nature resulting from your access to or use of the Website and Services;
d. any unauthorised access to or use of our secure servers and/or personal information and/or financial information stored on those servers;
e. any interruption or cessation of transmission to or from the website; and/or
f. any bugs, viruses, trojan horses or other harmful code or communications which may be transmitted to or through our website by any third party.
16.2 The Website and Services are provided on an ‘as is’ basis, and neither we nor any of our affiliates make any representations or warranties of any kind, express or implied, including without limitation any implied warranties of fitness for purposes, merchantability, or non-infringement of third party rights.
16.3 Implied warranties arising from our dealings or normal trade usage are expressly excluded.
16.4 You enter into this Marketplace Seller Agreement based on your investigations. We make no representation or warranty that the Website or Services will be suitable for your requirements, secure or accessible, or provided free from interruption or error.
16.5 Where any law (including the Australian Consumer Law) provides a guarantee which may not be lawfully excluded, our liability will be limited to that provided by law.
16.6 To the maximum extent possible at law, in no event shall we, our affiliates and related entities or our suppliers be liable for any loss or any special, incidental or consequential loss or damage arising out of or in connection with our Website or this Marketplace Seller Agreement (however arising, including negligence), including but not limited to loss of profits, loss of future earnings, loss of opportunity or loss of goodwill, however, incurred, whether direct or indirect.
16.7 You agree to accept sole responsibility for the legality of your actions under the laws that apply to you. You agree that we, our affiliates and related entities or our suppliers, have no responsibility for the legality of your actions.
- Indemnity and Release
17.1 You will at all times indemnify, and keep indemnified and hold harmless us and our directors, officers, employees, affiliates and agents from and against any, loss, damage, expense (including reasonable legal costs and expenses) or liability incurred or suffered by you or by us arising from any claim, demand, suit, action or proceeding by any person against you or us where such loss or liability arose out of, in connection with or in respect of:
a. your conduct or breach of this Marketplace Seller Agreement;
b. any actual or alleged breach of any third party’s Intellectual Property Rights;
c. the sale, offering for sale and supply of goods by you under this Marketplace Seller Agreement;
d. any breach of any law by you, including but not limited to the Australian Consumer Law;
e. any Risk or recall, or action taken by us under clause 12;
f. any act or omission by you.
(collectively “Loss” or Losses”).
17.2 We are not a party to the transactions between you and buyers of your goods using our website.
17.3 If a dispute arises between you and a buyer of your goods or services, you release us and our directors, officers, employees, affiliates and agents from and against any, loss (including reasonable legal costs and expenses) or liability incurred or suffered by you or by us arising from any claim, demand, suit, action or proceeding by any person in connection with such dispute.
18.1 Without any derogation to any accrued rights, we may, at our absolute discretion, terminate this Marketplace Seller Agreement at any time and cease providing the Services without notice.
18.2 Also, we may terminate or suspend your account for breach of this Marketplace Seller Agreement (including any of our published policies).
18.3 In the event this Marketplace Seller Agreement terminates for whatever reason:
a. all Fees and any other agreed payments or charges owing to us by you will become immediately due and payable.
b. your listings will be removed from our website, and
c. you will still be required to fulfil pending orders to customers and comply with all legal obligations relating to your goods.
18.4 You may cease selling your goods on the Platform at any time.
18.5 Should you stop selling goods on the Platform, you will still be bound by any accrued obligations you have under this Marketplace Seller Agreement.
19.1 We reserve the right to make changes to this Marketplace Seller Agreement (and associated rules, guidelines and policies) at any time at our discretion. Such changes will be notified to you via our website and will apply seven (7) days after such notification. Your continued use of our website and associated Services after the notification period set out above will constitute your acceptance of any changes.
- General Provisions
Relationship between the parties
20.2 The parties to this Marketplace Seller Agreement are independent contractors and nothing in this Marketplace Seller Agreement shall be construed to create a joint venture, partnership or agency relationship between us.
20.3 If any provision of this Marketplace Seller Agreement is deemed to be unlawful or otherwise unenforceable, then that provision shall be read down or severed from these terms and shall not affect the remaining terms of this Marketplace Seller Agreement.
20.4 Our delay or omission to enforce or exercise a right under this Marketplace Seller Agreement shall not constitute a waiver of that right unless expressly waived in writing by us.
20.5 This Marketplace Seller Agreement, including all documents incorporated by reference, shall be construed under the laws in force in the State of Victoria, Australia and the parties (subject to clause 20)f)) irrevocably submit to the jurisdiction of the courts sitting in Melbourne, Victoria, Australia.
20.6 Resolution of disputes
20.7 You will contact Make It Collective administration immediately with any concerns so that they may be resolved quickly and effectively through friendly consultation.
a. You must advise Remote Rescue Business Solutions in writing of the nature of the dispute, the outcome you seek and what actions you believe will settle the dispute.
b. You agree to meet in person or Skype, in good faith to seek to resolve the dispute by agreement and compromise.
c. If an agreement cannot be reached to resolve the dispute, any party may refer the dispute to the Victorian Small Business Commission (VSBC) for direction and mediation.
d. Both parties must attend the mediation provided by VSBC, in good faith, to seek to resolve the dispute through mediation.
20.9 Litigation via the court process may only be considered after a genuine attempt at mediation bought by either party, is unsuccessful.
20.10 Confidentiality is paramount to both parties personal and professional reputations and standing in their business and community.
20.11 At no time will any communications or discussions be made public. This includes but is not limited to any social media websites of either party.
20.12 Any public discussion or comments about either party will be considered defamatory, negative or otherwise damaging. They will be the subject of compensation in any mediation or litigation claim.
Business Day means Monday to Friday between the hours of 9.00 am to 5.00 pm in Melbourne, Victoria, excluding Victorian public holidays.
Customer Database means the database of information held by us regarding our customers including but not limited to name, email address, shipping address and order history.
Dispute means where a customer dispute is raised by a Customer and notified to us.
Dispute Rate means the number of Disputes as a percentage of total orders.
GST means Goods and Services Tax under the GST Act.
Incident means a customer complaint or query about an order that requires resolution by the Seller as measured by our internal processes and excludes any questions of a general nature.
Incident Rate means the number of incidents as a percentage of total orders.
Intellectual Property Rights means any copyright, moral rights, trademarks (registered or unregistered), designs, patents under any applicable law or common law in any jurisdiction or any other rights in relation to intellectual property.
Sales Proceeds means the amount paid by the Buyer (including shipping charges) for your specific goods sold on the Platform.
Seller Fees means the fees we charge you for the Services, which are set out in your account page.
Seller Rating System means the seller review rating based on customer feedback used by us to measure customer satisfaction with a Seller.
Services mean thePlatform services we provide under this Agreement.
☐ By proceeding with the selected subscription purchase, I understand and agree to the terms of this Agreement.