Marketplace Agreement

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FIRST NATIONS GIFTS
MARKETPLACE AGREEMENT

Between

First Nations Arts & Gifts Pty Ltd
ACN 626 990 314 (‘First Nations Gifts’)


And
The VENDOR
AS IDENTIFIED IN THE REGISTRATION PAGE
(‘Vendor’)

BACKGROUND

A) First Nations Gifts has established the Market Place for the benefit of the First Nation Gift’s Vendors to sell Goods on the Marketplace.

B) First Nations Gifts offers the Vendor to participate as a Vendor on the Marketplace.

C) The Vendor agrees to the terms and conditions set out in the Marketplace Agreement.

INTERPRETATION AND DEFINITIONS

1. Interpretation

  1. Any reference to the singular number includes the plural and vice versa;
  2. Any reference to one gender includes each gender;
  3. Any reference to a Party includes his representatives, assigns and successors;
  4. Headings are for convenience only and shall not affect interpretation;
  5. A reference to this or any other document shall include any document varying it in any manner;
  6. References to any statute or statutory provision includes that statute or statutory provision as amended, extended, consolidated or replaced by subsequent legislation and any orders, regulations, instruments or other subordinate legislation made under the relevant statute;
  7. Any reference to a Party that is a corporation includes a reference to all related corporations as that term is defined under the Corporations Act 2001 (Cth).

2.Definitions

  1. ‘Agreement’ means the Marketplace agreement between First Nations Gifts and the Vendor.
  2. ‘Business Days’ means Mondays to Friday expectation for public holidays in the State of Victoria, Australia.
  3. ‘Client’ means a customer on Marketplace.
  4. ‘Commencement Date’ means the commencement date of this Agreement and, if set out in the Schedule, means the date that is set out in Item 1 of the Schedule as being the Commencement Date of this Agreement.
  5. ‘Commission’ refers to the commission which is payable by the Vendor to First Nations Gifts for each Goods/Product sold to a Client and includes the percentage amount and any fees as set out in the Schedule.
  6. ‘Commission Payment Date’ means the date that the Commission to First Nations must be paid by the Vendor to First Nations and/or as set out in the Schedule.
  7. ‘Goods’ mean any good that the Vendor:
    • intends to sell;
    • sells;
    • is selling;
    • has sold;
    • on the Marketplace.
  8. ‘GST’ means Goods and Services Tax within the meaning of the A New Tax System
    (Goods and Services Tax) Act 1999 (Cth).
  9. ‘Intellectual Property Rights’ means the rights of a creator or an owner relating to copyrights, trademarks, patents, know-how, models, drawings, designs, specifications, inventions, prototypes and software, whether or not in material form, and any application or right to apply for registration of any of these rights.
  10. ‘Marketplace’ means the platform provided by First Nations Gifts to the Vendor to offer their goods on the Website.
  11. ‘Order’ means any order by a Client for the purchase of Goods on Marketplace.
  12. ‘Party’ means a party to this Agreement.
  13. ‘Schedule’ means the schedule to this Agreement.
  14. ‘Services’ means the services as set out in this Agreement.
  15. ‘Use’ means the display, listing, offering, sale of Goods on Marketplace at the sole direction of First Nations Gifts.
  16. ‘Vendor’ means the Vendor selling and supplying Goods on the Marketplace and identified in item 2 of the Schedule.
  17. ‘Vendor’s Goods’ means the Goods sold by the Vendor to a particular Client in a transaction.
  18. ‘Website’ means the online website specifically known as, firstnationsgifts.com or as modified or changed by First Nations Gifts.

OPERATIVE CLAUSES


1. Relationship Between the Parties


1.1  This Agreement comes into full force, effect and operation on the Commencement Date, which is the date of registering for a vendor account on First Nations Gifts.

1.2 This Agreement does not create any relationship between the Vendor and First Nations Gifts other than the agency relationship created by this Agreement. In particular there is no joint venture, partnership, or employment relationship between the Vendor and First Nations Gifts.

2. First Nations Market Place

2.1 First Nations Gifts agrees to:

  1. provide the Marketplace as a platform for Vendor and Client to purchase Goods in accordance with the design, purpose, use and specifications reasonably determined by First Nations Gifts; and
  2. facilitate the sale of Goods between the Vendor and Client.

2.2 By providing the Services to the Vendor, the Vendor grants to First Nations Gifts’ non-exclusive, royalty-free, perpetual, irrevocable right and licence to:

  1. reproduce, display, distribute, publish or modify any information or content, including images or photography of the Goods or vendors brand, in connection with the Goods displayed, listed, to be displayed or to be listed on the Marketplace; and
  2. reproduce, display, distribute, publish or modify any information or content in connection, including images or photography of the Goods, with the Goods on any promotion, marketing or advertisement of the Marketplace or First Nations Gifts.

2.3 For the avoidance of doubt, First Nations Gifts is not a party to any transaction between the Vendor and Client in connection with the sale of Goods.

3. Vendor Obligations

3.1 The Vendor must supply the Goods displayed and purchased by a Client through the Website in accordance with each of the following:
to the reasonable satisfaction of the Client and to the standard set out in the Website;

  1. At the price no less favourable than the pricing offered on the Website;
  2. Within the time stipulated for delivery of the Goods stated on the Website; and
  3. In accordance with all legal and/or specific terms or requirements, set out on the Website or otherwise notified to you in writing.

3.2 The Vendor must Pay the Commission to First Nations Gifts within 30 days of the payment for the Goods being received by the Vendor or on the Commission Payment Date whichever is earlier.

4. Vendor’s Warranties
4.1 The Vendor warrants that:

  1. the Vendor has the right to sell, or resell, the Goods;
  2. the Vendor’s Goods does not contravene any applicable law or infringes any Intellectual Property Rights of any other person or third-party;
  3. has not previously sold the Vendor’s Goods and that sale entitled any other party or third-party’s rights to those Goods;
  4. is under no legal disability;
  5. has had sufficient opportunity to read, understand, undertake its own enquiries of this Agreement prior to its execution;
  6. the Vendor has all rights, titles, licences, interests and property necessary to lawfully sell the Goods;
  7. the Vendor has all Intellectual Property Rights for the images, descriptions and information in relation to the Goods on the Website;
  8. the Vendor’s Goods will be fit for the purpose as set out in the Website; and/or
    the Vendor will continue to hold all insurance policies specified on the Website or as otherwise required in connection with the Vendor’s Goods.
  9. The vendor can in writing apply to amend the commission rate and fees at anytime.

5. Shipping

5.1 The Vendor:

  1. must, at its cost and expense, ship Goods to the Client;
  2. is fully liable, must indemnify and hold harmless of First Nations Gifts of any failure in connection with the shipping of the Goods to the Client;
  3. must notify First Nations Gifts of each Good shipped, or as requested by First Nations Gifts from time to time.
  4. The vendor must track the good as shipped using a suitable tracking tool (where available) to the Client.
  5. The vendor is encouraged to includeall or a portion of standard domestic shipping costs into the product price of the goods or as set out in the shipping policies on the site.

5.2 Without limiting clause 5.1, the Vendor is fully responsible, at its cost and expense, for:

  1. any misdeliveries of the Goods;
  2. any late deliveries or shipments of the Goods;
  3. any lost deliveries or shipments of the Goods; and
  4. any shipping charges, costs or expenses incurred in connection with the delivery of the Goods.

5.3 The Vendor’s shipping deliveries must:

  1. comply with, and abide by, First Nations Gifts’ shipping and delivery policies from time to time; and
  2. if First Nations Gifts’ shipping and delivery policies are not or have not been provided to the Vendor, the Vendor must deliver Goods in a maximum of twenty-one (21) days from the date of sale of Goods unless otherwise stated.

6. Commission
6.1 The Vendor agrees that:

  1. the Vendor must pay First Nations Gifts the Commission for each sale of Goods on the Marketplace on or before the Commission Payment Date;
  2. First Nations Gift may deduct from the total price of each sale any fees owing to First Nations Gifts and remit the balance to the Vendor; and
  3. First Nations Gifts shall not be responsible for payment or reimbursement to the Vendor of any disbursements or out-of-pocket expenses which may be incurred by the Vendor in the course of their participation in Marketplace.
  4. If First Nations Gifts believes that any performance of the agreement in connection with Goods between Vendor and the Client may lead to disputes, claims or chargebacks, by the Client, then First Nations Gifts may withhold, suspend or delay any payment of the balance for (whichever is the later):
    • one hundred and twenty (120) days; or
    • the period of investigation conducted by First Nations Gifts into the alleged or possible allegation of a dispute, claim or chargeback, by a Client

7. Term
This Agreement shall commence from the Commencement Date of this Agreement and shall continue in perpetuity, unless terminated by either party or until First Nations Gifts discontinue the provision of Marketplace, whichever is the earlier. Termination can only occur once all responsibilities have been served by all Parties in relation to the Client.

8. Non Exclusive Arrangement
This Agreement is not exclusive and does not guarantee that the Vendor will receive opportunities or work orders and does not prevent Clients from buying services or products elsewhere.

9. Orders
9.1 The Vendor authorises:

  1. First Nations Gifts to accept payment from Clients as the Vendor’s agent and First Nations Gifts shall collect any proceeds from any sale of Goods on Marketplace; and
  2. First Nations Gifts may deduct any amounts owing to First Nations Gifts from the proceeds.

9.2 If the Vendor cannot fulfill or complete an Order, then the Vendor must:

  1. immediately notify First Nations Gifts within two (2) business days of the non-fulfillment or non-completion;
  2. refund any amount owing to the Client within five (5) business days of the non-fulfillment or non-completion and notify First Nations Gifts of that refund within the same period;
  3. bear the cost and expenses in connection with the non-fulfilment and non-completion of the Order;
  4. indemnity First Nations Gifts for any costs, losses or harm associated with, or in connection, with that non-completion or non-fulfilment of the Order.

9.3 First Nations Gifts is entitled to retain the whole of the Commission if the non-fulfilment or non-completion was not negligently caused by First Nations Gifts.

9.4 The Vendor is deemed to have non-fulfilled or non-completed an Order if the Vendor has not shipped the Goods within the time required by First Nations Gifts from the date of sale in connection with the Goods.

10. Pricing

10.1 The Vendor must ensure (where in the Vendors control) that goods, same or similar to the Goods, offered, displayed, advertised, listed or sold in any other online sale channel, retail channel, marketplace, are of the same retail pricing as the Goods on First Nations Gifts Marketplace, or of a pricing not more favorable than the product pricing (not including other additional fees or shipping costs) on the First Nations Gifts Marketplace. eg. The normal or suggested retail price on a vendors own website or other sales channel should be the same as First Nations Gifts Marketplace and if the vendor offers a product discount the product should also be discounted on First Nations Gifts.

10.2 If the Vendor reasonably believes that the Vendor may not comply or be in breach of clause 10.1, then the Vendor must:

  1. notify First Nations Gifts within three (3) days of that belief and detailing the circumstances of the proposed non-compliance;
  2. rectify the breach within seven (7) business days; and
  3. indemnify the Vendor for any harm, loss or damage caused to the Vendor arising from the breach.

11. Payment and GST

11.1 The amount of the Commission is expressed without regard to GST. In addition to the amount of the Commission due under this Agreement, the Vendor must pay First Nations Gifts an amount equal to any GST which First Nations Gifts is or becomes liable to pay in respect of any taxable supply made by First Nations Gifts to Vendor under this Agreement. Any GST payment must be paid at the same time as payment for the taxable supply.

11.2 If First Nations Gifts has not received proceeds of sales within three (3) business days, the Vendor shall pay the Commission and any GST to First Nations Gifts within fourteen (14) days of receipt by them of payment by the client.

12. Termination

12.1 Either Party may terminate this Agreement for any reason, but must provide the other Party with at least thirty (30) days’ notice in writing if it wishes to do so. Any written notice will suspend the vendors ability to continue selling on First Nations Gifts and allow the vendor to complete all outstanding responsibilities to the Client.
12.2 Either Party may terminate this Agreement with immediate effect after giving notice in writing to the other Party, if:

  1. the other Party is in breach of this Agreement and has failed to remedy the breach within seven (7) days of a request by the other Party to do so; or
  2. the other Party enters into a voluntary arrangement or scheme with creditors, becomes bankrupt, is wound up, has a receiver appointed or otherwise ceases to trade.

Upon termination of this Agreement, the Vendor will immediately cease to be a Vendor on the Marketplace and First Nations Gifts will no longer refer Clients to the Vendor.

13. Effect of Termination or Expiration of this Agreement

13.1 Upon the expiration of this Agreement, the Vendor must:

  1. pay First Nations Gifts, all Commissions that have accrued and are unpaid up to, and including the date of expiration or termination; and
  2. agree that First Nations Gifts may notify any Customers that the Vendor is no longer a vendor on the Marketplace.

14. Intellectual Property Rights

14.1  The Parties acknowledge that Intellectual Property Rights in all logos, trademarks, names, slogans and any other material associated with First Nations Gifts belong exclusively to First Nations Gifts and the Vendor must not use any material belonging to First Nations Gifts in promoting the Vendor’s services, goods or business independently of the First Nations Gifts, without the written consent of First Nations Gifts.

14.2  The Vendor must ensure that First Nations Gifts use of the Goods and Intellectual Property regarding the Goods on the Website and/or the Marketplace will not infringe the Intellectual Property Rights of any person.

14.3 The Vendor must obtain any moral rights consents in writing necessary for First Nations Gifts to use Intellectual Property regarding the Goods.

14.4 The Vendor agrees, if a third party claims any Intellectual Property regarding the Goods, at the Vendor’s cost to either:

  1. Ensure that the Client can continue to use the relevant material without liability or infringement; or
  2. Replace or modify the material so that it does not infringe the Intellectual Property Rights of any other party, without degrading the performance or quality of the Goods.

15. Confidentiality
Each Party undertakes to treat as confidential and keep secret all information relating to the business practices or clients of the other Party. Any disclosure of information may only be made with the prior consent in writing of the other Party.

16. Privacy

16.1  If a Client indicates on any feedback form that he or she consents to First Nations Gifts receiving, storing and using the contents of the feedback form for the purpose of monitoring and evaluating the effectiveness of Goods, First Nations Gifts warrants that information collected from these forms will not be disclosed to third parties without the knowledge and consent of either the Client or Vendor as relevant.

16.2 The Vendor agrees, in providing the Goods:

  1. Not to breach any requirement of the Privacy Act 1988 (Cth) that applies to the Vendor in connection with Vendor Goods or Client information obtained through the Website;
  2. Not to do anything, that if done, would be a breach of an Australian Privacy Principle under the Privacy Act 1988 (Cth).
  3. To comply with any directions, guidelines, determinations or recommendations made by the Australian Information Commissioner; and
  4. To notify the Client immediately if you become aware of a breach or possible breach of any of your privacy obligations.

17. Notices

17.1 All notices which are required to be given under this Agreement shall be in writing and shall be sent to the address of the Party set out in this Agreement or such other address as the Party may designate by notice given in accordance with this clause.

17.2 Any notice may be delivered by hand, by prepaid letter, facsimile or by email. Any such notice shall be deemed to have been served when delivered (if delivered by hand) or forty-eight (48) hours after posting (if sent by prepaid letter) or on transmission by the sender (if sent by facsimile or email).

18. Waiver
No forbearance, delay or indulgence by a Party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that Party, nor shall any waiver of those rights operate as a waiver of any subsequent breach.

19. Severability
Should any part of this Agreement be or become invalid, that part shall be severed from this Agreement. Such invalidity shall not affect the validity of the remaining provisions of this Agreement.

21. Assignment
Neither Party shall assign, whether in whole or part, the benefit of this Agreement or any rights or obligations hereunder, without the prior written consent of the other Party.

22. Entire Agreement
This Agreement contains the entire agreement between the Parties and supersedes all prior representations, agreements and understandings which may exist between the Parties. No addition to or modification of any provision of this Agreement shall be binding upon the Parties unless made by written agreement and signed by the Parties or a duly authorised representative of the Parties.

23. Dispute Resolution

23.1 If a dispute arises between the Parties under this Agreement, the Parties agree to use reasonable efforts and act in good faith to resolve the dispute between them in accordance with this clause before commencing legal proceedings or terminating this Agreement.

23.2 The Parties agree to use reasonable efforts to attempt to resolve a dispute which arises under this Agreement by negotiation in good faith.

23.3 If the Parties are unable to resolve the dispute by negotiation, the Parties agree to participate in mediation, with an independent mediator to be appointed by mutual agreement by the Parties and the costs of the mediator is to be equally shared between the Parties, unless otherwise agreed.

23.4 If the Parties are unable to resolve the dispute through mediation, then either Party may commence legal proceedings against the other.

24. Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws for the time being in force in the State of Victoria, Australia and the Parties agree to submit to the jurisdiction of the Courts and Tribunals of Victoria, Australia.

25. Indemnity
To the extent permitted by law, the Vendor indemnifies and will keep indemnified First Nations Gifts against all claims, costs, expenses, charges, losses, damages or liabilities suffered or incurred by First Nations Gifts howsoever arising out of or in connection with:

  1. any breach by the Vendor of the provisions of this Agreement;
  2. any claims made by a Client against the Vendor or First Nations Gifts with respect to Goods.

26. Marketplace

26.1 The Vendor agrees that:

  1. First Nations Gifts is not liable for any loss, damage, or harm caused to the Vendor for any interruption or disruption to Marketplace;
  2. to release First Nations Gifts for any loss, damage, or harm caused by any interruption or disruption to Marketplace; andmust not bring a claim, suit, proceeding or legal action for any loss, damage, harm caused by any interruption or disruption to Marketplace.

26.2 Any information in connection with:

  1. any transaction between Vendor and Client for the purchase of Goods;
  2. any contents of Goods offered displayed, advertised or listed on Marketplace or Website; and
  3. any prospective transactions between Vendor and Client for the purchase of Goods;

is immediately assigned to the Vendor for the purposes of fulfilling delivery of Goods for the Client.

27. Reviews

The Vendor agrees that:

  1. First Nations Gifts may implement ratings or review systems on Marketplace or Website from time to time;
  2. First Nations Gifts is not liable for any ratings or reviews, whether by First Nations Gifts or otherwise, listed or displayed on Marketplace and Website;
  3. First Nations Gifts does not warrant to the accuracy or truth of any ratings or reviews; and
  4. the Vendor has no interest, whether proprietary or otherwise, of any ratings or reviews on Marketplace or Website.

28. Termination
The Parties agree that First Nations Gifts may, at any time, by prior written notice and without any liability to First Nations Gifts, terminate this Agreement and remove the Vendor from the Marketplace, for any reasonable reason (including but not limited to):

  1. A breach of this Agreement on the part of the Vendor; or
  2. there has been an extended period of inactivity on the Vendor’s Marketplace account or sales of products offered by the vendor.

29. Variation
First Nations may vary this Agreement by giving the Vendor at least 20 business days’ notice. The Vendor may terminate this Agreement by written notice to First Nations before the date when the variation is to come into effect if the Vendor does not wish to accept the variation.

30. Assignment

Either Party must not assign, whether in whole or in part, the benefit of this Agreement or any rights or obligations, without prior written consent of the other Party.

31. Counterpart
This Agreement may be executed in any number of counterparts, each of which when executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement, provided that this Agreement shall be of no force and effect until the counterparts are exchanged. The exchange of copies of this Agreement and of signature pages by electronic mail in “portable document format” (“.pdf”) form or submission of an acceptance of the agreement online shall constitute effective execution and delivery of this Agreement as to the Parties and may be used in lieu of the original Agreement for all purposes.

32. Jurisdiction
This Agreement, the Marketplace and the Website is governed by the laws of the State of Victoria. Any court proceedings are subject to the non-exclusive jurisdiction of the courts of Victoria.

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