Vendor Terms & Conditions
DEFINITIONS & INTERPRETATIONS
“Agreement” means this Agreement and any document that varies or supplements it;
“OnlineMall Business” means the business name by which the program operates and manages all its marketing business.
“e-Store” means the name of the online store a merchant subscribes for or leases in order to sell its products and services.
“Merchant/Vendor” means a business that leases an online store in any of OnlineMall Businesses e-Malls; e-Plaza’s or associated shopping portals.
“e-Mall” means an online shopping directory listing for its Merchants and Listings of local online shopping portals called e-Plaza’s.
“e-Plaza” means a local online shopping portal with local merchant directory and hosting actual e-Stores that shoppers can buy from.
“BDM” means a Business Development Manager, a representative of OnlineMall Business responsible for enrolling and assisting OnlineMall Business Merchants.
“MSR” means a Merchants Services Representative, a Merchants first line of support in relation to all Merchant inquiries, sales, and marketing.
“Confidential Information” means any trade secrets, know‑how, commercial information, financial information or technical information whether in writing or otherwise relating to:
The subject matter and terms of this Agreement;
The operation of the party’s business, its marketing strategies, members, merchants, affiliates, strategic alliances, organizational structure, financial affairs, transactions, technology and systems; & third-party information of a confidential nature, in the possession power or control of a party.
Confidential Information excludes the Excluded Information.
“Excluded Information” means Information:
- That is in or becomes part of the public domain otherwise than through breach of this agreement or an obligation of confidence owed to the party;
- That the Receiver can prove by contemporaneous written documentation that it was already known to it at the time of disclosure (unless such knowledge arose from disclosure of information in breach of an obligation of confidentiality), or
- That the Receiver acquires from a third party entitled to disclose it.
“Infrastructure” means any, software, equipment, cards, stationery and marketing material required to participate in the Program.
“Affiliates” means businesses, organizations or individuals joining the Program to promote and enroll merchants/vendors, other affiliates, advertisers and sponsors into the program.
“Normal Business Hours” means 9 am to 5 pm on Business Days in the State of Queensland.
“Permitted Use” means the use for the purposes of the Program by the enrolled members, merchants/vendors, sponsors, agents or third parties approved by OnlineMall Business.
“Program” means the complete sales and marketing system including but not limited to e-Stores, e-Mall and e-Plazas.
“Representative” means representative of a person, including an employee, BDM, MSR, Affiliate, Agent, Officer, Director, Adviser, Partner, Joint Venture or Sub-Contractor of that person or of a Related Body Corporate of that person.
“Review Date” means any anniversary of the Commencement Date.
References to recitals, clauses, sub-clauses, paragraphs, annexures or schedules are references to recitals, clauses, sub-clauses, paragraphs, annexures and schedules of this Agreement, and all schedules that form part of this Agreement.
Headings in this Agreement are for convenience only and do not affect its interpretation or construction.
In this Agreement, unless the context otherwise requires:
- The singular includes the plural and vice versa;
- The word “month” means calendar month and the word “year” means 12 calendar months;
- Where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;
- A reference to time refers to time in Brisbane, Australia;
- Mentioning anything after “include”, “includes” or “including” does not
- Limit what else might be included;
- No rule of construction applies to the disadvantage of a party because this Agreement is prepared by (or on behalf of) that party;
- A reference to anything is a reference to the whole and each part of it, and
- A reference to a group of persons is a reference to all of them collectively and to each of them individually;
During the term of this agreement, OnlineMall Business agrees to advise its Members, Merchants, and Partners of any changes affecting the Program by providing a written notice within five (5) business days of the change.
From time to time OnlineMall Business may invest in the improvement of its systems and program. Under the terms of this Agreement, OnlineMall Businesses reserves the right to change and not to change or to modify any of its systems with similar or new systems, provided that changes supports the same business functions.
You understand that OnlineMall Business does not provide financial or legal advice in respect of the Program to any party.
Fundamental obligations in respect of this agreement include:
The payments of fees and charges in accordance with this Agreement and provision by OnlineMall Business of a non-exclusive right to operate as a Merchant, in your region unless otherwise stated.
You agree that participation as a Partner shall be reviewed one calendar year commencing on the day of the signing this agreement. You shall be entitled at any time prior to the expiration of any term by notice in writing to OnlineMall Business to exercise an option to continue as a Merchant/Vendor, Sponsor or Supplier.
During the term of this agreement a party can terminate it at will by providing the other party three (3) month’s prior written notice.
OnlineMall Business may immediately terminate this Agreement (including recalling all infrastructures) by notice in writing:
If you breach your fundamental obligation under this Agreement which includes the failure to pay fees, any amount due under this Agreement and you fail to remedy the breach within one (1) calendar month after receiving a written notice from OnlineMall Business specifying the breach and requiring it to be remedied,
CONSEQUENCES OF TERMINATION
If the Agreement is terminated for any reason specified in clause 3, the parties agree to mutually release each other from any claim of liability, other than the payment by you of outstanding fees and charges. You agree to return to OnlineMall Business all materials supplied to you under this Agreement.
SUBSCRIPTION FEES AND CHARGES
During the term of this agreement OnlineMall Business will charge you a Monthly Merchant Fee according to the plan of your choosing at the point of enrolling.
The fee allows OnlineMall Business to provide ongoing services in relation to the subscription.
Ongoing Fees and charges are subject to Consumer Price Index Calculated on an annual basis and using the Consumer Price Index increase last published prior to each annual review date from the date of this agreement.
OnlineMalll Business provides full Operational Management for the Program, including the communication with the shoppers, members, merchants/vendors, sponsors and suppliers.
If a dispute arises out of or relates to this Agreement (including any dispute as to breach or termination of this Agreement or as to any claim in tort, in equity or pursuant to any statute) a party to the contract may not commence any court or arbitration proceedings relating to the dispute unless it has complied with the following sub-clauses of this clause except where the party seeks urgent interlocutory relief.
A party to this Agreement claiming that a dispute (the “Dispute”) has arisen under or in relation to this Agreement must give written notice to the other party to this contract specifying the nature of the Dispute.
On receipt of a notice by that other party, the parties must endeavour in good faith to resolve the Dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation or determination or similar techniques agreed by them.
If the parties do not agree within seven days of receipt of the notice (or such further period as agreed in writing by them) as to the dispute resolution technique and procedures to be adopted, the timetable for all steps in those procedures and the selection and compensation of the independent person required for such technique, the parties must mediate the Dispute in accordance with the Mediation Rules of the Law Society of QLD and the President of the Law Society of QLD or the President’s nominee will select the mediator and determine the mediator’s remuneration.
Each of the parties acknowledges that the Confidential Information disclosed to it pursuant to this Agreement or in the performance of this Agreement is confidential and is the property, and a trade secret, of the disclosing party.
The parties agree that they will not and will not permit any of their officers, employees, agents, contractors, associates or anyone else to use or to disclose to any person the Confidential Information of the other party without the prior written consent of that party.
This clause does not apply to any information which is generally available to the public (other than as a result of the breach by of the provisions of this clause); or is required to be disclosed by law.
A party may at any time require the other party to arrange for its employees, agents or contractors to execute a confidentiality deed. A party must arrange for such agreements to be executed within fourteen (14) days of being so required.
A party, on demand, must return to the other party any documents supplied by it.
This clause will survive the termination of this Agreement.
INTELLECTUAL PROPERTY RIGHTS
e-Mall and e-Plaza program, its marketing and sales system and all materials associated with it, including but not limited to help files, manuals, training materials, technical support information, designs, drawings, presentations, explanatory notes, database definitions, screen prints, multimedia records and brochures are the intellectual property of OnlineMall Business.
Whenever you distribute such materials supplied by OnlineMall Business for the Permitted Use, whether customized to your needs or not, you shall have a written acknowledgment of the OnlineMall Business’ intellectual property rights and copyright present on the materials.
You shall agree that OnlineMall Business approves your application as a Merchant/Vendor in your area on a non-exclusive basis, unless otherwise stated.
If a party decides to assign its rights, benefits and obligations under this agreement to a third party, it must provide a one (1) calendar month prior written notice of its decision to assign its rights and obligations.
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will be ineffective in this jurisdiction to the extent of the prohibition or unenforceability and such occurrence will not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.
This Agreement constitutes the entire agreement between the parties as to the subject matter of it and supersedes all previous agreements, communications and representations in respect of it.
LIMITATION OF LIABILITY
Without limitation to the foregoing, if any condition or warranty is implied into this Agreement by the Trade Practices Act, 1974 or any other applicable legislation for the time being in force which cannot be excluded by agreement, the liability of OnlineMall Business for breach of any such implied condition or warranty shall be limited, at the option of OnlineMall Business. Under no circumstances will OnlineMall Business be liable for:
- Third party supplied products or services
- Third party claims for loss or damages
- Loss or damage of your records or data
- Special, indirect or consequential damages (including lost profits or savings) or incidental damages, however occasioned (including due to negligence) and notwithstanding that the possibility of any of these damages being suffered by you may have been brought to OnlineMall Business’ attention.
The limitation of liability under this Agreement constitutes the cumulative liability of OnlineMall Business in respect of all liabilities under this Agreement.
You shall indemnify OnlineMall Business against each claim, action, proceeding, judgment, damage, loss, cost, expense or liability incurred or suffered by or brought or made or received against OnlineMall Business arising from or in connection with any failure by you, your employees, or permitted agents or contractors to use the Program in accordance with the Documentation or directions or consistent with the rules, terms and conditions.
No failure, delay, relaxation or indulgence by a party in exercising any power or right conferred upon it under this Agreement will operate as a waiver of that power or right. No single or partial exercise of any power or right precludes any other or future exercise of it, or the exercise of any other power or right under this Agreement.
AUTHORISED USE OF MARKETING PROGRAM
You shall not use the SYSTEMS for any purpose other than in connection with the Program.