TERMS & CONDITIONS

Selling through SMEA Mall –  terms and conditions – January  2021

 

  1. General

1.1. These terms and conditions apply to every person/company that wishes to sell their products/services on the Small Medium Enterprise Association Marketplace a serviced online marketplace provided by Small Medium Enterprise Association (“SMEA”).

1.2. Where a Vendor is a reseller of a brand or service provider, and opens a Store on SMEA Mall under these terms and conditions, it agrees to these terms and conditions as principal and as agent for the brand.

1.5. SMEA has the right to amend these conditions at any time. Notification of amendment shall be deemed to have been given to all Vendors immediately upon publication of the amended conditions or other written notice.

1.6. Every Vendor must comply with and is subject to these terms and conditions as well as other relevant terms (as available at www.smemall.org), additional relevant terms as published or notified and any relevant laws, regulations or codes of conduct. To the extent of any inconsistency between the various relevant terms, the following order of priority will be applied:

  • these terms,
  • any terms or conditions separately agreed in writing including any Vendor Agreements.
  1. Process

2.1. Applications to be a Vendor which are in any way incomplete will not be accepted nor granted access to the SMEA Mall.

2.2. SMEA will approve applications to become a Vendor and if approved the Vendor will receive an email with a log in to start building their store.

 

  1. SMEA Mall rights and discretions

3.1. Every Application submitted for approval is subject to SMEA’s approval. SMEA may at its absolute discretion at any time:

  • refuse to grant a Vendor a store without giving any reason;
  • cancel a Vendor’s store (in which case, no charge to Vendor will be incurred for the remaining portion of the month if applicable); or
  • head a listing ‘Promoted’.

3.2. SMEA owes no duty to Vendor to review, approve or amend any Store application and no review, approval or amendment by SMEA will affect Vendor’s responsibility for the content of the Store.

3.3. SMEA may appoint any of its related bodies corporate as its agent for the purposes of invoicing and collecting payments under and in relation to this Agreement.

 

  1. Store Agreements

4.1 As long as the Vendor keeps their store in good standing and pays (where applicable) any fees agreed to and due to SMEA, there is no expiry date to the tenancy of the store on SMEA Mall.

4.2. SMEA reserves the right to cancel or suspend any Vendor store where:

  • Vendor is in material breach of the SMEA Agreement, these terms or any another agreement with SMEA; or
  • SMEA considers Vendor becomes a credit risk; or
  • Vendor’s products/services pose a reputational risk or other unacceptable risk for SMEA; or
  • SMEA is no longer able to provide the Mall services the subject of the Agreement, including where it is no longer the Site owner; or
  • any other clause of these terms or any other agreement with SMEA enables the SMEA to terminate or suspend a Vendor.
  • The charges, costs and other fees will be discussed

 

  1. Fees, Commissions, Invoices and GST

5.1. Vendor agrees to pay accounts rendered by the SMEA in accordance with its standard payment terms. Accounts will be rendered by SMEA monthly for any agreed charges. These could be and include Store rental, media, promotions, updates, maintenance, sales commissions etc.

5.2. The Fees for having a store on SMEA Mall are calculated as follows:

  • A monthly agreed fee as agreed with the Vendor and/or
  • A percentage of sale of product/service via the SMEA Mall store.

5.3. SMEA will charge Ten percent (10%) of the sales price of all products/services sold on the SMEA Mall. This is referred to as a commission received.

This fee will be all-inclusive and cover the costs of bank fees to accept the payment from the sale, SMEA’s commission and Paypal fees to make the payment of the remaining monies to the Vendor.

5.4. Payment to the vendor, referred to as a commission paid will be at the agreed percentage, which by default, is 90% of the transaction price (Sale price less 10% as per 5.3. above). 

5.5. Payments will happen fortnightly and can only be paid via PayPal. The Vendor accepts this and agrees to opening a PayPal account (if they do not have one already) and providing the email address for this PayPal account in their Vendor profile when loading their store.

5.6. Until 31st March 2021 there will be no monthly fees or store rental charges if this is the option that the Vendor has selected. SMEA reserves the right to then, after this date, negotiate a monthly fee to be charged to Vendor as per 5.2. above.

5.7. SMEA will not charge this monthly fee, or any other additional fees, unless communicated and agreed with Vendor in writing the amounts and the start date of these charges.

 

5.8. Vendor acknowledges and accepts that any additional charges that may be levied against the Vendor from PayPal for any transactions do not form part of this agreement and are between the Vendor and PayPal.

5.9. Any dispute the Vendor has with an invoice must be raised with SMEA promptly and no later than 15 days after the invoice date. After that time, Vendors will be deemed to have accepted that the full amount set out in the issued invoice is due and payable by Vendor.

5.10. All rates and charges are expressed by the SMEA as GST exclusive (except where otherwise made clear ). SMEA will issue a valid tax invoice in relation to any charges or related services under these terms which are subject to GST.

5.11. Vendor agrees to pay any GST liability arising in relation to the provision by SMEA of marketplace services under these terms.

 

  1. Relationship between SMEA and Vendor

 

6.1. SMEA is a provider of marketplace services. For clarity, this is the building, maintenance, hosting and promoting of the digital website known and identified as SMEA Mall hosted at www.smemall.org. Similar to brick and mortar retail outlets, the Vendor is a tenant in this marketplace. They are leasing their store from SMEA. The Vendor can offer a product/service to a potential customer. The customer transacts on SMEA Mall’s platform and SMEA takes payment for the product/service and then advises the Vendor that a sale/booking/download has occurred. SMEA will then pay-over the commission to the Vendor in accordance with clause 5 and specifically 5.7. above.

6.2. Should a Customer complain, seek a refund, or any other remedy, the Vendor again acknowledges that it is responsible for correcting and handling same as per any retailer/customer relationship and that SMEA will facilitate where possible but is not a direct nor liable party in the transaction and/or remedy.

6.3. With 6.1. above in mind, the Vendor acknowledges and understands that they have no ownership of the store that they set-up in the SMEA Mall and that they are a tenant in the definition similar to any other property rental agreement. Should either party chose to terminate their tenancy, SMEA acknowledges that all the Vendor’s stock, physical or virtual, remains their property with no fees or payments due to SMEA for same. Equally, The Vendor also acknowledges that all intellectual property, branding, listings (both active/expired/to-be-terminated) URL’s and any other allied properties both physical and virtual, belong to SMEA with no fees or payments due to Vendor.

6.4. The above point 6.3. only holds true if no monies are owed by the Vendor to SMEA. If any monies are due at the time of the termination of the tenancy, the Vendor agrees that SMEA will have rights against the Vendor and/or their property in pursuant of settlement if necessary and if payment is not made by the Vendor in accordance with the agreement.

 

  1. Delivery

 

Delivery of goods or services provided by Vendors on the SMEA Mall are to be delivered to the Purchasers by the Vendor.

7.1. All costs associated with storing, picking, packing, delivery, insurance and any other fees or costs in getting the product or service to the customer are for the Vendor’s account.

7.2. SMEA Mall has the ability for Vendors to allow for the costs for the above services in 7.1. to  be included or excluded at the time of the transaction. If these costs are passed onto the customer these monies will be collected and paid across to the Vendor along with the agreed commission.

7.3. SMEA can provide a full, national 3PL service – this will be described in point 8 below.

 

  1. 3PL

 

3PL – Third Party Logistics services can be offered to any Vendor who requires either or all of the following:

 

  • Warehousing
  • Packing
  • Picking
  • Deliveries

There are a few requirements/limitations in the 3PL service and SMEA cannot guarantee that our 3PL provider will accept all products/services so these will be determined on a case by case basis.

 

It is noted that this is an outsourced service and in such a separate agreement will need to be concluded between Vendor and the 3PL company. One of the terms in this agreement will be that SMEA is not directly nor indirectly involved in any of these offered services and SMEA liability is as per 9 Below.

 

  1. Limitation of liability

 

9.1. Nothing in these terms and conditions excludes or varies any rights or remedies under the Australian Consumer Law in the Competition and Consumer Act (2010) (Australian Consumer Law) which cannot be excluded, restricted or modified. 

 

However, SMEA reaffirms that it is a marketplace as described in 6.1. above. This means that SMEA excludes all rights, remedies, guarantees, conditions and warranties in respect of goods or services from a Vendor’s use of or acquisition of or in relation to the Vendor using SMEA services whether based in statute, common law or otherwise to the extent permitted by law. To the fullest extent possible and subject to SMEA’s liabilities and obligations under the Australian Consumer Law, the remaining provisions of this clause 9 shall apply.

9.2. Subject to clause 9.1, SMEA makes no representation or warranty of any kind and in particular makes no representation or warranty:

  • in relation to the continued hosting of the website;
  • in relation to the final placement, positioning or date of promotion or approval of a Vendor’s store;
  • that operation of a store will occur on a specific date, by a specific time, to a specific number of consumers or readers or within a specific geographic area;
  • in relation to the number of visitors to the website, namely smemall.org or the number of visits to the Vendor’s store; or
  • exclusivity.

9.3. Subject to clause 9.1 and clause 9.4, SMEA is not liable to Vendor for any Direct or Indirect Loss of any nature including where arising from the failure of SMEA, whether negligent or otherwise, to host the store on a temporary or permanent basis for any reason including Internet Services and Hosting Providers down-time.

9.4. Subject to clause 9.1, SMEA’s liability for a breach of a term or guarantee implied by law is limited at SMEA’s discretion, to the supply of the service again or payment for the cost of having the service supplied again.

 

  1. Warranty & Indemnity

10.1. Vendor warrants that it will only use the store which it acquires to sell and market its own brands, goods or services and may not sell or otherwise deal with that store without the express consent of SMEA. 

10.2. Vendor warrants that the products/services complies with all relevant laws and regulations and that its promotion or offer to purchase is in accordance with these terms and will not give rise to any claims against or liabilities to SMEA, its directors, employees or agents. Without limiting the generality of the above, Vendors warrant that neither the products/services nor its promotion breaches or will breach the Competition and Consumer Act 2010, Privacy Act 1988, Copyright Act 1968, Fair Trading Act 1985 or defamation, or infringes the rights of any person.

10.3. Vendor indemnifies SMEA, its directors, employees and agents against all claims, demands, proceedings, costs (including solicitors and own client costs), expenses, damages awards, judgments and any other liability whatsoever arising wholly or partially, directly or indirectly, from or in connection with the store they utilise at scmmall.com.au, except to the extent caused by SMEA. In particular and without limitation, Vendor indemnifies SMEA, its directors, employees and agents against any claims arising from allegations that the product/services contains material which constitutes:

  1. defamation, libel, slander of title;
    b. infringement of copyright, trademarks or other intellectual property rights
    c. breach of trade practices/ competition, privacy or fair trading legislations; or
    d. violation of rights of privacy or confidential information.

 

  1. Privacy Statement

SME Association collects personal information about Vendor and the customers of the Vendor when same transact on the marketplace, including for example name and contact details which you provide when registering or using our services as well as information from data houses, social media services, our affiliates and other entities you deal or interact with for example by using their services. We collect and use that information to provide you with our goods and services, to promote and improve our goods and services, to provide you with targeted advertising based on your online activities, for the purposes described in our Privacy Policy and for any other purposes that we describe at the time of collection. SMEA may contact you for those purposes (including by email) at any time. We may also disclose your information to our service and content providers, including those located outside Australia. The policy also explains that if you do not provide us with information we have requested from you, we may not be able to provide you with the goods and services you require. Further information about how we handle personal information, how you can complain about a breach of the Australian Privacy Principles, how we will deal with a complaint of that nature, how you can access or seek correction of your personal information and our contact details can be found in our Privacy Policy.

 

  1. Data Policy Compliance

Vendor warrants that it will comply with the SMEA Data Policy and in particular that, except as approved by the SMEA, Vendor does not and will not collect personal information or tracking information in relation to users of SMEA’s services and further warrants that material provided by or on its behalf for publication by SMEA does not contain:

  1. third party cookies intended to retarget SMEA’s users or their browsers; or
  2. any code, technique or mechanism, to track or in any way identify users of any of SMEA’s properties.

 

  1. Jurisdiction

These terms and conditions are governed by the laws of the state of New South Wales and each party submits to the exclusive jurisdiction of this state.

 

  1. Definitions
  2. Store means the virtual space occupied by the Vendor to sell or make offer their products/services.
  3. Vendor means each company or person who seeks to have SMEA allow them to lease a Store and offer goods/services for sale via SMEA Mall.
  4. Loss means direct and indirect loss of any nature. Indirect loss includes the following:
    loss of profit, loss of business opportunity, loss of goodwill and payment of liquidated sums or damages under any other agreement.
  5. Vendor Agreement is a written agreement (in soft or hard copy form), which is signed or, in the case of a soft copy, otherwise agreed to in a mutually acceptable form, by or on behalf of both the Vendor and the SMEA, detailing:
  6. the relationship of tenancy, the fees to be charged and commissions to be paid and/or

 


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