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FitoutForest.com.au – seller terms and conditions

FitoutForest.com.au – seller terms and conditions

FITOUTFOREST.COM.AU AND ITS SUB-DOMAINS (INCLUDING MARKETPLACE.FITOUTFOREST.COM.AU) (COLLECTIVELY, THE “SITE”) IS AN ONLINE PLATFORM OWNED AND OPERATED BY APLUS TECH PTY LTD, ABN 18 646 072 068 (“FITOUTFOREST”/”US”/”WE”). THE SITE PROVIDES AN ONLINE MARKETPLACE, WHERE SELLERS (“SELLERS”/ “YOU”) CAN SELL THEIR GOODS OR SERVICES (“PRODUCTS”) OR VOUCHERS (DEFINED BELOW) TO USERS OF THE SITE (“USERS”).

PLEASE READ THE FOLLOWING TERMS & CONDITIONS (“SELLER TERMS AND CONDITIONS”) CAREFULLY BEFORE USING THE SITE. THESE TERMS & CONDITIONS, TOGETHER WITH ANY SELLER APPLICATION FORM AGREED BETWEEN THE PARTIES AND THE SLA (DEFINED BELOW), FORMS THE WHOLE OF THE AGREEMENT BETWEEN FITOUTFOREST AND EACH SELLER.

YOU, AS A SELLER, ELECT TO USE THE SITE TO PROMOTE AND SELL YOUR PRODUCTS OR VOUCHERS ON THE BASIS OF THESE SELLER TERMS AND CONDITIONS AND BY PROMOTING OR SELLING YOUR PRODUCTS OR VOUCHERS ON THE SITE, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTOOD THESE SELLER TERMS AND CONDTIONS AND THAT YOU ARE BOUND BY THEM. IF YOU DO NOT AGREE, YOU MUST CEASE ALL USE OF THE SITE.

FITOUTFOREST RESERVES THE RIGHT TO CHANGE THESE SELLER TERMS AND CONDITIONS FROM TIME TO TIME, AND ANY UPDATED OR AMENDED SELLER TERMS AND CONDITIONS WILL APPLY TO YOUR USE OF THE SITE FROM THE DATE ON WHICH THE NEW VERSION IS PUBLISHED ON THE SITE. IT IS YOUR RESPONSIBILITY TO READ AND UNDERSTAND THESE SELLER TERMS AND CONDITIONS, AND TO REVIEW ANY UPDATED VERSION OF THESE SELLER TERMS AND CONDITIONS WHEN THEY BECOME AVAILABLE. IF YOU DO NOT AGREE TO AN UPDATED VERSION OF THESE SELLER TERMS AND CONDITIONS THEN YOUR SOLE REMEDY IS TO TERMINATE YOUR ACCOUNT AND CEASE LISTING YOUR PRODUCTS AND VOUCHERS FOR SALE ON THE SITE.

  1. SELLER REPRESENTATIONS

1.1 You represent and warrant to us that:

(a) you are at least 18 years of age;

(b) you possess the legal right and ability to enter into a legally binding agreement with FitoutForest and a User with respect to any Product or Voucher sold or offered by you on the Site; and

(c) you will use the Site in accordance with these Seller Terms and Conditions.

  1. OUR RELATIONSHIP

2.1 FitoutForest provides a Site whereby you may advertise Products and Vouchers for sale to Users. Users may order and purchase those Products and Vouchers from you, as a Seller. Users do not purchase any Products or Vouchers from FitoutForest directly and FitoutForest simply acts as a limited agent for you and the User, for the following purposes only:

(a) facilitating the purchase of Products or Vouchers from you by Users;

(b) collecting payment from Users for purchases which they make;

(c) paying you your Seller Fees (as described below); and

(d) providing the Support Services (as described below) in respect of issues arising between you and Users, in relation to the supply of Products or Vouchers.

  1. ACCOUNTS AND APPLICATION FORMS

3.1 You agree that in order to offer Products or Vouchers for sale on the Site, you must have an online account with FitoutForest which is accessible via marketplace.FitoutForest.com.au and will be established for you by FitoutForest (“Account”).

3.2 You will be responsible for all usage of your Account and the use of your Account by others (including your employees, officers or agents) or any unauthorised use. You must immediately advise us if you become aware of unauthorised use. Your user name and password for your Account are non-transferrable and must be kept confidential. You must ensure that your registration details are true and accurate at all times.

3.3 At the time an Account is set up, and at such other times as required by FitoutForest, Sellers must complete a seller application form containing the details of the Products and/or Vouchers that will be offered for sale on the Site, and certain other information as requested by FitoutForest from time to time on the form (“Seller Application Form”). Once you submit a Seller Application Form to FitoutForest, we will contact you to confirm if we accept the Seller Application Form, what changes or additions are required to be made to the Seller Application Form before we accept it, or if we have rejected the Seller Application Form. We may reject a Seller Application Form at any time in our sole and absolute discretion and prohibit you from creating an Account on the Site.

3.4 Once we accept a Seller Application Form, we will permit you to list your Products and Vouchers for sale to Users on the Site. If you are asked by us to complete a new Seller Application Form, then this will override any prior form completed by you.

3.5 Either at the time of completing a Seller Application Form or at such other time as notified to you by FitoutForest in our sole discretion, we will confirm to you our commission which we will deduct from all sales which you make through the Site (“Commission”). We may also update our Commission by written notice to you at any time. Any updated Commission will only apply to new orders of your Products and Vouchers, but not existing orders.

  1. LISTINGS

4.1 When you list a Product or Voucher for sale on the Site, you must include all information as required by FitoutForest about you and the relevant Product or Voucher. Such information may include (without limitation):

(a) your name, address and contact details;

(b) the total price payable by the Users for the Product(s) and/or Voucher(s), including (but subject to clause 4.2) all delivery costs and charges (“Sale Price”);

(c) the terms of your Seller Terms (as defined below);

(d) details of any warranty applicable to a Product and/or Voucher; and

(e) any other relevant information requested by FitoutForest or required in order to accurately or legally represent and describe the Products and/or Vouchers.

4.2 If at the time of sale of a Product, the Seller is unable to determine the delivery charges to the User or provide an accurate estimate of the delivery charges (due solely to conflicting or inaccurate information supplied by the User), then the Seller may subsequently notify the User of new accurate delivery charges once an order is placed but before it is dispatched (“Delivery Fee”). If the User rejects the Delivery Fee then the sale will be cancelled and the User will receive a refund. If the User accepts the Delivery Fee then the sale will proceed, and the Sale Price will be deemed to include the Delivery Fee.

4.3 FitoutForest relies on information provided to it by each Seller in connection with the Products and Vouchers, and each Seller warrants that any information provided by it is accurate, current, complete, correct and complies with all applicable laws.

4.4 FitoutForest will not be liable for any mistake or misrepresentation made by you in connection with the Products and/or Vouchers or contained in a Seller Application Form, and you indemnify FitoutForest for and against any loss, cost (including legal fees on a full indemnity basis), damage, expense, or claim (including for negligence) suffered or incurred by FitoutForest in connection with your misrepresentation, mistake, infringement of any person’s rights (including in respect of intellectual property rights), or breach of law in connection with the sale of the Products and/or Vouchers.

4.5 You agree that FitoutForest may:

(a) suspend, terminate and/or close your Account at any time;

(b) refuse to accept a Seller Application Form; or

(c) remove any Product or Voucher listing from the Site,

for any reason in FitoutForest’s sole and absolute discretion, with or without notice to you.

4.6 Upon terminating and/or closing your Account, or during any period of suspension, you will not be permitted to use any features or functionality of the Site which is reserved for registered Sellers or offer your Products/Vouchers for sale to Users on the Site.

  1. SELLER TERMS

5.1 You must specify the complete terms of the sale of your Products or Vouchers (“Seller Terms”) on your Seller profile page or on the listing page for each of the Products and/or Vouchers that you offer for sale on the Site. Your Seller Terms are deemed to include the following minimum terms of supply:

(a) all terms and warranties implied by the Competition and Consumer Act 2010 (Cth), Australian Consumer Law, applicable fair-trading legislation, applicable sale of goods legislation, and all other terms implied by law which are not capable of exclusion;

(b) supply of the Products and/or Vouchers will occur after:

(i) you have accepted the relevant order from the User; and

(ii) FitoutForest has received payment of the Sale Price in full from its User(s); and

(c) title in the Products and/or Vouchers will pass to the User(s) on delivery of the Products and/or Vouchers to them.

5.2 The Seller Terms must be consistent with the terms of these Seller Terms and Conditions and the User agreement entered into between FitoutForest and its Users (which may be obtained from the Site), and include:

(a) any special conditions, limitations, restrictions or other terms or conditions that apply to the purchase of a Product or Voucher (including, without limitation, in relation to how Vouchers are redeemed by Users);

(b) the method of delivery of the Products and/or Vouchers;

(c) subject to clause 4.2, details of any delivery charges or how these will be notified to Users; and

(d) the Seller’s refunds, returns and exchanges policies and procedures (which are at all times subject to clauses 5.1(a), 6.13 and 6.14).

5.3 FitoutForest is not a party to the Seller Terms and FitoutForest is not responsible for either party’s performance of their obligations under that agreement. FitoutForest may, however, exercise any of the Seller’s rights arising under the Seller Terms for the benefit of FitoutForest and/or the relevant Seller.

5.4 You agree to release and forever discharge FitoutForest from any and all claims, actions, demands or proceedings, which you may make, institute or claim, in relation to:

(a) the Seller Terms, and all matters relating to the Seller Terms;

(b) any act or omission of any User;

(c) any Products or Vouchers supplied by you under the Seller Terms; and

(d) the performance of the Seller Terms, or failure to perform any obligation under the Seller Terms, by you or a User.

5.5 You otherwise agree that any Seller Terms entered into via the Site or otherwise in respect of Products or Vouchers must not conflict with either your obligations or the User’s obligations to FitoutForest (and these Seller Terms and Conditions will apply to the extent of any inconsistency with the Seller Terms).

  1. ORDERS AND PAYMENT

6.1 When an order for a Product or Voucher by a User is accepted by a Seller via the Site, the User and the Seller will at that time form a legally binding agreement between each other on the terms of your Seller Terms (and a reference in these Seller Terms and Conditions to the “Seller Terms” will include the binding agreement reached between you and the User on the basis of those terms).

6.2 A Seller must communicate its acceptance or rejection of a User’s order promptly and in accordance with any time frames stipulated in the SLA (as that term is defined in clause 8.1(b) of these Seller Terms and Conditions). If you reject an order, then the Sale Price paid by the User in respect of that order will be refunded to them.

6.3 The User will select Products or Vouchers they wish to purchase via the Site, which may include orders from multiple Sellers. When the User commits to purchase those Products or Vouchers, it will make payment of the total amount to FitoutForest (Total Purchase Amount). The Total Purchase Amount shall include all Sale Prices of all Products or Vouchers purchased at that time by the User, including those purchased from the Seller. You agree that the Total Purchase Amount, once paid to FitoutForest, is the property of FitoutForest, and that you have no claim to the Total Purchase Amount (or any part of it).

6.4 Payment of the Total Purchase Amount will be made by Users directly to FitoutForest, and not to any Seller. Payments will be made:

(a) via third-party payment platform(s) (including, without limitation, PayPal, Stripe, Afterpay, ZipPay) or any other means of payment provided by FitoutForest through the Site from time to time; and

(b) subject to acceptance of, and in accordance with, any credit account terms and conditions or terms and conditions of use of a third-party payment platform or services provider or the Seller.

6.5 Subject to clause 4.2, the Seller must not request any payment from the User in addition to the Sale Price or through any means other than as described above without FitoutForest’s written prior consent.

6.6 FitoutForest will not access or retain any record or copy of a User’s credit card or payment information (other than details of the third party payment platform and confirmation that payment has occurred) under any circumstances and FitoutForest will not be liable for any loss, cost, damage, expense, or claim (including for negligence) suffered or incurred by any person in connection with use of a third-party payment platform or service.

6.7 The Seller Fee (as defined below) will accrue to the Seller in respect of a User’s order only when the Seller, via their Account, enters a valid delivery tracking code in relation to the order to indicate that the Products or Vouchers ordered by a User have been dispatched.

6.8 The “Seller Fee” for each sale of a Product or Voucher, is the applicable Sale Price less:

(a) FitoutForest’s Commission;

(b) any transaction fee payable to FitoutForest as described in a Seller Application Form or that FitoutForest has advised you in its sole discretion; and

(c) any applicable third-party fees or charges as notified to a Seller by FitoutForest in writing from time to time (collectively, the “Charges”).

6.9 FitoutForest will pay the Seller Fee to the Seller no more than 14 days after the Seller Fee accrues to the Seller in accordance with clause 6.7 and the total amount payable to the Seller will be all amounts of the accrued Seller Fee, less:

(a) refunds paid or payable by FitoutForest on behalf of a Seller;

(b) refund administration fees payable to FitoutForest as described in a Seller Application Form or that FitoutForest has advised you in its sole discretion

(c) credit card charge backs or amounts declined by a payment provider to FitoutForest in relation to a sale of a Seller’s Products or Vouchers;

(d) sales of Products or Vouchers which a Seller has indicated as being dispatched (thereby triggering an accrual of the Seller Fee under clause 6.7), but which in fact have not been dispatched;

(e) any amount which FitoutForest reasonably considers that a Seller may owe to FitoutForest after the Seller Fee is paid to the Seller; and

(f) any other amount which a Seller owes to FitoutForest under these Seller Terms and Conditions or on any other account whatsoever.

6.10 FitoutForest can issue recipient created tax invoices (“RCTI”) to the Seller in respect to the sale of Products and/or Vouchers on the Site. The RCTI will be subject to the RCTI agreement contained in the RCTI.

6.11 FitoutForest may modify the Charges which apply at any time by notice to the Seller. If the Seller does not wish to accept the modified Charges, the Seller’s only recourse or remedy is to remove the Product(s) and/or Voucher(s) from the Site and/or cancel its Account (but any Products or Vouchers already sold prior to modification of the Charges will not be affected).

6.12 To receive remittance of the Seller Fee in accordance with this clause, the Seller must provide accurate and current account information in the format and via the means requested by FitoutForest or a third-party payment platform or service provider from time to time.

6.13 The Seller is solely responsible for updating its account information as required and for providing a valid delivery tracking code for each order. FitoutForest will not be liable for any loss, cost, damage, or claim (including for negligence) suffered or incurred by the Seller in connection with a failure to receive or delay in receiving payment (including, but not limited to, a failure caused by the supply of inaccurate account information or an invalid delivery tracking code).

6.14 FitoutForest may require that the Seller pays a refund of the full Sale Price, or part thereof, to a User where:

(a) these Seller Terms and Conditions specify that a refund must be paid;

(b) FitoutForest’s agreements with its payment providers require a refund to be paid;

(c) FitoutForest considers that a refund is required to be provided by law;

(d) you have accepted an order but are unable to fulfil the order within a reasonable period after it is placed;

(e) the User has pursued or obtained a chargeback against FitoutForest from its credit card provider;

(f) FitoutForest considers that the Seller has breached the Seller Terms; or

(g) FitoutForest considers that the Seller has breached the SLA.

6.15 FitoutForest’s determination of whether a refund is payable is absolute and final, and will not be disputed by a Seller.

6.16 A refund may be paid:

(a) by FitoutForest on behalf of the Seller, and then by the Seller reimbursing FitoutForest for the same amount, or by FitoutForest (in its sole discretion), deducting that amount from any subsequent Seller Fees; or

(b) with FitoutForest’s prior consent, by the Seller directly to the User.

  1. LICENCE AND RESTRICTIONS ON USE

7.1 FitoutForest grants you, as a Seller, a limited, non-exclusive, non-transferable, revocable, royalty-free licence to use the Site in accordance with these Seller Terms and Conditions subject to the restrictions set out at clauses 7.2 and 7.3, and compliance with the Seller obligations at clause 8.

7.2 Sellers agree not to:

(a) interrupt or attempt to interrupt the operation of the Site in any way, or use the Site in a manner that adversely affects the availability of its resources to other Sellers or Users;

(b) use the Site for any illegal purpose or in any manner that is inconsistent with these Seller Terms and Conditions;

(c) modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from or offer for sale any information contained on, or obtained from the Site;

(d) supply any content that: (i ) would cause you or FitoutForest to breach any law, regulation, rule, code or legal obligations, (ii) is or could reasonably be considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, blasphemous, in breach of confidence or in breach of privacy, or (iii) that could infringe any person’s rights, including their intellectual property rights.

(e) contact Users or encourage Users to contact You outside the official FitoutForest communication channels.

(f) Supply Users with your direct contact details including, but not limited to, telephone numbers, email addresses and web addresses.

(g) facilitate or attempt to facilitate purchases of Products or Vouchers with Users off Site.

7.3 By using the Site, you acknowledge and agree that:

(a) FitoutForest has the absolute right to change, suspend or remove any Product and/or Voucher offer or other information on the Site at any time;

(b) you will only offer Products or Vouchers for sale for which you have sufficient stock to fulfil orders;

(c) you will advise Users when Products and/or Vouchers for which an order has been made have become unavailable and, in such circumstances, advise FitoutForest such that we can provide a refund to the User if requested;

(d) from time to time, the Site may be unavailable for maintenance and/or updates, or due to unexpected technical issues;

(e) FitoutForest has provided no uptime guarantees in relation to the Site; and

(f) FitoutForest does not guarantee that you will sell any minimum amount of Products and/or Vouchers to Users via the Site.

  1. SELLER OBLIGATIONS

8.1 The Seller agrees, represents and warrants that:

(a) Products and/or Vouchers will be supplied at the Sale Price on the terms and conditions of the Seller Terms;

(b) at all times during the term of these Seller Terms and Conditions, it will meet or exceed the obligations and service level performance criteria contained in the Service Level Agreement, a copy of which may be obtained here (“SLA”). The Seller agrees that at the same time the Seller enters into these Seller Terms and Conditions, it will also become bound by the SLA. The SLA may be amended at any time by FitoutForest by written notice to the Seller. If the Seller does not agree to the amended SLA then the Seller’s sole remedy is to cease listing Products or Vouchers on the Site and to terminate the Seller’s Account;

(c) Products and/or Vouchers and the terms of sale relating to a Product and/or Voucher as contained in the Seller Terms comply with all applicable laws, regulations and codes;

(d) the conditions, warranties, guarantees and representations given by the Seller with respect to a Product and/or Voucher comply with the Competition and Consumer Act 2010, and all other consumer protection laws;

(e) the Seller will comply with the Competition and Consumer Act 2010,all other consumer protection laws and all other applicable laws;

(f) any descriptions of a Product and/or Voucher are true and not misleading and the Product and/or Voucher is fully and correctly described, and will be provided to the User on the same basis as advertised;

(g) a Product and/or Voucher complies with any relevant safety standards and no interim or permanent ban has been made with respect to a Product and/or Voucher, and there is no product recall in effect in relation to any Product or Voucher;

(h) a Product and/or Voucher does not infringe the intellectual property rights of any person;

(i) the Seller has authority and the legal right to sell a Product and/or Voucher in the Australian market and the Seller will furnish such proof at the request of FitoutForest;

(j) all conditions of availability or eligibility for purchase of a Product or Voucher are stated in the Seller Terms;

(k) it will not provide FitoutForest with any false delivery tracking codes or enter any such codes into the Site;

(l) it will not use the Site to merely contact Users but otherwise sell its Products or Vouchers to such Users independently, outside of the Site;

(m) it will provide FitoutForest with all the necessary information in relation to the sale of a Product and/or Voucher, including but not limited to, shipping tracking/confirmation and Voucher redemption details;

(n) it is responsible for the delivery and supply of the Products and Vouchers to Users in accordance with the terms of the Seller Terms; and

(o) it will provide a resolution to FitoutForest within the timeframe(s) set out in the SLA in relation to User enquiries or complaints.

(p) It will provide Users with Proof of Transaction for all orders as required pursuant to Section 100 of Australian Consumer Law.

  1. INDEMNIFICATION

9.1 Sellers agree to defend, indemnify and hold harmless FitoutForest, its related bodies corporate and their respective directors, officers, employees and agents from and against all loss, cost, expense, damage, claims, demands, suits, actions or proceedings (including legal costs and expenses) arising out of:

(a) the wrongful use of the Site by the Seller (or caused or authorised by the Seller);

(b) breach of these Seller Terms and Conditions or any law by the Seller;

(c) breach of any terms and conditions of FitoutForest’s payment providers which are caused by the Seller;

(d) breach of the Seller Terms in respect of a Product or Voucher; or

(e) any actions, claims, demands, complaints or proceedings made against FitoutForest by a User or other third party which arises due to any act, omission or negligence of the Seller.

  1. LIABILITY

10.1 To the maximum extent permitted by law, FitoutForest provides the Site on an “as is” basis and disclaims and excludes any warranty, guarantee, or representation in connection with the Site or any Products and/or Vouchers offered for sale on the Site, including (but not limited to) a representation that:

(a) a Product and/or Voucher on the Site is available for purchase by a User;

(b) FitoutForest endorses or recommends a Product and/or Voucher on the Site;

(c) FitoutForest endorses or recommends a Seller or User on the Site;

(d) the Site is free from defects or disruption or will be continuously available or accessible; or

(e) the Site is suitable or fit for use for any purpose or is of merchantable quality, or does not infringe any relevant law, rule or regulation or any other right of a third party.

10.2 Subject to clause 10.3, FitoutForest excludes all liability for any loss, cost, damage, claim, or expense (including for negligence and indirect, consequential, special, or punitive loss or damages) suffered or incurred by a Seller, a User or any third party in connection with these Seller Terms and Conditions, the Site, or the Seller Terms. For the avoidance of doubt, FitoutForest is not liable for any acts, errors, omissions, representations, breaches (including of warranties) or negligence of any Seller or User.

10.3 Nothing in these Seller Terms and Conditions is intended to exclude or modify, or attempt to exclude or modify, any warranty or guarantee that cannot be lawfully limited, excluded or modified under the Competition and Consumer Act 2010 (Cth) or under the Australian Consumer Law or any other relevant law. If warranties or guarantees are implied by law in connection with these Seller Terms and Conditions (or the Site) then, to the maximum extent possible, FitoutForest limits its liability in respect of any claim under that law to, at FitoutForest’s election:

(a) in the case of goods, any one or more of the following:

(i) the replacement of the goods or the supply of equivalent goods;

(ii) the repair of the goods;

(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or

(iv) the payment of the cost of having the goods repaired; and

(b) in the case of services:

(i) the supplying of the services again; or

(ii) the payment of the cost of having the services supplied again.

10.4 Where FitoutForest’s liability cannot be excluded in accordance with clauses 10.1 and 10.2, Sellers agree that (to the maximum extent permitted by law) such liability is limited, in aggregate, to payment in an amount equal to the Seller Fee payable by FitoutForest in respect of the sale of any relevant Product or Voucher.

  1. IMPLIED OBLIGATIONS

11.1 Notwithstanding clause 10, for Australian consumers, the Seller’s Products and Vouchers, and goods and services provided by FitoutForest hereunder, come with guarantees that cannot be excluded under the Australian Consumer Law. If you are an Australian consumer, you may be entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You may also be entitled to have the Products and Vouchers, or FitoutForest’s goods and services, repaired or replaced if they fail to be of acceptable quality and the failure does not amount to a major failure. For more information about these rights please go to www.accc.gov.au.

  1. TERMINATION

12.1 Notwithstanding FitoutForest’s right to terminate or suspend your Account at any time in its absolute discretion, or remove any Product or Voucher listing from the Site in accordance with clause 4.5, FitoutForest may terminate these Seller Terms and Conditions immediately at its sole discretion, with or without notice to you:

(a) at any time prior to the commencement of you listing a Product or Voucher on the Site;

(b) if a Seller fails to comply with its obligations set out in the SLA; or

(c) if in its reasonable opinion the promotion of a Product and/or Voucher on the Site or association with the Seller is likely to impair the goodwill or reputation of FitoutForest or its business, or is otherwise prejudicial to FitoutForest, or may place FitoutForest in breach of any law or obligation it owes a third party.

12.2 Subject to your compliance with all obligations arising under these Seller Terms and Conditions and the Seller Terms in relation to orders already made, you may terminate these Seller Terms and Conditions at any time on 30 days written notice to FitoutForest.

12.3 On termination of these Seller Terms and Conditions:

(a) unless otherwise instructed by FitoutForest, you will continue to supply all orders for Products and Vouchers which were placed by Users prior to termination;

(b) FitoutForest will delete your Account and all of your Product and Voucher listings from the Site, as well as your Seller profile page; and

(c) FitoutForest will, in accordance with clause 6.9, pay you the unpaid balance of all accrued Seller Fees.

12.4 Clauses 6.13, 6.14, 6.15, 8.1(d), 8.1(e), 9, 10, 16, 17, 22 shall survive the termination of these Seller Terms and Conditions.

  1. NON SOLICITATION

13.1 You agree that, during the time you are a Seller selling Products and/or Vouchers on the Site, and for the periods of time set out clause 13.2 following termination of these Seller Terms and Conditions for any reason, you will not solicit the employment of, employ, accept business from, or independently contract with any officer, employee, subcontractor or consultant of FitoutForest.

13.2 The periods of time to which clause 13.1 applies will be:

(a) two (2) years;

(b) twelve (12) months;

(c) six (6) months.

13.3 Your obligations arising under clause 13.1, when combined separately with each period of time in clause 13.2 , constitutes a separate and distinct obligation. If any such obligation is unenforceable, then that obligation will severed from these Seller Terms and Conditions without affecting the enforceability of the remaining obligations.

13.4 You agree that if you breach clause 13.1 in respect of an employee, subcontractor or consultant of FitoutForest, that you will pay FitoutForest, as liquidated damages, an amount equal to 50% of the annual salary, or annual payments (as applicable), which have been made by FitoutForest to the relevant employee, subcontractor or consultant measured to the date of your relevant breach. You acknowledge that the forgoing payment represents a true and fair estimate of the loss which FitoutForest will suffer or incur as a result of having to replace the relevant person with a new employee, subcontractor or consultant (as applicable).

  1. EMAIL POLICY

14.1 You confirm that, by using the Site, you agree to receive emails from FitoutForest in relation to the purchase, return of or other dealings in relation to Products or Vouchers, and for receiving information on offers (including via the FitoutForest newsletter). You may however opt out of the FitoutForest newsletter at any time via the unsubscribe functionality contained therein.

  1. USE OF THE SITE OUTSIDE AUSTRALIA

FitoutForest does not represent that the contents of the Site are appropriate or available for use in countries outside Australia. If Sellers choose to access the Site from outside Australia, Sellers are responsible for compliance with foreign and local laws.

  1. PRIVACY

Where personal information is provided to FitoutForest, the Privacy Policy of FitoutForest will govern how FitoutForest uses or discloses that information. The Privacy Policy of FitoutForest can be found here http://www.FitoutForest.com.au/info/privacypolicy. You agree that FitoutForest may use your personal information in accordance with its Privacy Policy.

  1. INTELLECTUAL PROPERTY

17.1 Everything on the Site and all intellectual property rights therein is either owned by us or is licensed to us. Nothing in these Seller Terms and Conditions affects the ownership of any intellectual property rights owned or licensed by a Seller, a User, FitoutForest, or any other person.

17.2 Unless expressly authorised under these Seller Terms and Conditions or otherwise in writing by FitoutForest, you cannot reproduce, adapt, modify, display, perform, distribute, decompile, disassemble or reverse engineer any material (or part thereof) from the Site (including logos, trademarks, brand features and source code) that is the intellectual property of FitoutForest or intellectual property that FitoutForest has permission to use.

17.3 In the event that you post or submit any content to or via the Site or otherwise provide FitoutForest with content by any means, you automatically grant FitoutForest an irrevocable and royalty free global license to use, copy, display or distribute that content. This may include public display of the content on the Site or using ideas or suggestions provided by Sellers to improve the Site, the Products and/or Vouchers offered on the Site, or related services which FitoutForest offers.

17.4 We may edit, modify, delete, remove, or take down any content which we believe (in our sole discretion) is in breach of these Seller Terms and Conditions or any law or third party rights without notice to you and without incurring any liability.

17.5 You warrant and represent to us that you have and will procure all necessary right, title, consent, and authority to use and provide any content you supply to us, and that use of the content in accordance these Seller Terms and Conditions will not breach any relevant law or the rights of any person (including rights of attribution or integrity or against false attribution), and indemnify FitoutForest from and against any loss, cost, damage, or claim suffered or incurred by FitoutForest in connection with your breach or misrepresentation in respect of this clause 17.

  1. SUPPORT SERVICES

18.1 Sellers acknowledge that FitoutForest is appointed by them to assist them with dealing with User queries generally in relation to Products, Vouchers, the Site, or any other matter relating to these Seller Terms and Conditions, or the Seller Terms (the “Support Services”).

  1. PROBLEMS WITH PRODUCTS OR VOUCHERS

19.1 If a problem arises with respect to the Products or Vouchers that you, as a Seller, offer for sale on the Site, you are required to:

(a) liaise with relevant Users directly at first instance; and

(b) resolve any issues or disputes with respect to User in accordance with the requirements of the SLA.

19.2 If you, as a Seller, are unable to resolve an issue or dispute with a User in accordance with the SLA, you must contact FitoutForest via your Account at marketplace.FitoutForest.com.au or by requesting FitoutForest assistance by Email. FitoutForest will use all reasonable endeavours to assist you and the relevant User in resolving the problem (including, without limitation, by liaising with the User on your behalf, investigating the issues, advising on the relevant processes and procedures for Product/Voucher returns or refunds, or sending the Products to third parties for assessment or repair (if required)).

19.3 We note, however, that our dispute resolution service is non-binding on Users and Sellers and is a process whereby FitoutForest will use its reasonable efforts to help facilitate a resolution between Users and Sellers. FitoutForest has no responsibility for: (i) any failure of a User to participate in the dispute resolution process; or (ii) any failure to resolve your dispute in a timely manner or to your satisfaction.

  1. RULES

20.1 FitoutForest may from time to time publish certain rules and procedures in relation your use of the Site or dealings between Sellers and Users (“Rules”). You agree to comply with these Rules, including as updated or amended from time to time. If there is any conflict between the Rules and these Seller Terms and Conditions, then these Seller Terms and Conditions will prevail.

  1. GST

21.1 Interpretation

Unless otherwise stated or defined in this Seller Terms and Conditions, words in this clause 21 have the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (“Act”)

21.2 Subdivision 153-B intermediary arrangement

(a) Where the Seller makes a supply of Products or Vouchers through the online marketplace to Users, that supply will be an arrangement for the purposes of Subdivision 153-B of the Act and the provisions of that Subdivision will apply. The Seller and FitoutForest will make a genuine and continuing effort to facilitate the application of Subdivision 153-B of the Act to any such supply.

(b) FitoutForest will, on behalf of the Seller, do the following:

(i) make the supply of Products and Vouchers to the User; and

(ii) facilitate the supply to the User (including by issuing invoices relating to, or receiving consideration for, such supplies).

(c) For the purposes of this sub-clause 21.2:

(i) FitoutForest will be treated as making the supply of Products and Vouchers to the User;

(ii) the Seller will be treated as making corresponding supply of Products and Vouchers to FitoutForest;

(iii) both FitoutForest and the Seller warrant that they are registered for GST purposes. The Seller warrants that they will notify FitoutForest within 2 business days if it ceases to be registered for GST;

(iv) FitoutForest will issue to the User tax invoices and adjustment notesrelating to the supply of Products or Vouchers; and

(v) the Seller will not issue to the User any tax invoices and adjustment notes relating to the supply of Products and Vouchers;and

(vi) Clause 21.2 ceases to have effect if FitoutForest or the Seller ceases to be registered for GST and shall terminate from the effective date of the cancellation of the registration.

  1. MISCELLANEOUS

22.1 These Seller Terms and Conditions, when read together with each Seller Application Form agreed between the parties and the SLA, constitutes the entire agreement between the parties with respect to its subject matter. No waiver by either party of any breach or default hereunder is a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall be of no legal force or effect. If any provision of these Seller Terms and Conditions is held to be invalid by a court of competent jurisdiction, such invalidity shall not affect the enforceability of any other provisions contained in these Seller Terms and Conditions and the remaining portion of these Seller Terms and Conditions shall continue in full force and effect. The failure of either party to exercise any of its rights under these Seller Terms and Conditions shall not be deemed a waiver or forfeiture of such rights or any other rights provided hereunder.

22.2 These Seller Terms and Conditions are governed by and in accordance with the laws of the State of Victoria (exclusive of its rules regarding conflicts of laws). The Seller and FitoutForest irrevocably submit to the jurisdiction of the Courts of the State of Victoria and their Courts of Appeal in relation to these Seller Terms and Conditions.

22.3 Sellers agree and acknowledge that, in the event that there is a change in control in, merger with or sale of FitoutForest or its business to a third party, FitoutForest can disclose personal information or data collected from Sellers to the third party without giving any notice to Sellers. FitoutForest is also entitled to assign and novate the benefits of any agreements it has with Sellers to the third party, without notice to the Seller.

 

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