Australian Gift and Homewares Association Limited (“AGHA”) eMarketplace known as VENDe (“VENDe”) Terms of Service
The following terms of service (“Terms of Service“) will apply to and form part of any use of the VENDe website (“Website“).
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1. About these Terms of Service
1.1 Please read these Terms of Service carefully before using the Website. By using the Website, you are agreeing to be bound by the following Terms of Service. If you choose not to be bound by the Terms of Service, AGHA does not grant you the right to use the Website and you must not use the Website.
1.2 These Terms of Service must be read in conjunction with other applicable terms of service governing the use of this Website, including the VENDe Privacy Policy and Website Agreement.
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2. Definitions
The following defined terms have the following defined meanings:
“Acceptable Use Policy” means the policy set out in Schedule 1.
“Business Day” means a day other than a Saturday, Sunday or public holiday in New South Wales.
“Content” means anything loaded or posted onto, transmitted to, published or otherwise made available to you or on your behalf on the Website accessible and viewable by other users of the Website and/or the public, including information, text, graphics, icons, photographs and/or URLs.
“eMarketplace” means an internet-based environment that brings together business-to-business buyers and sellers where they can trade online.
“Intellectual Property” means
a) all ideas, concepts and information concerning VENDe and the Website, including Website Software, software code, specifications and details of functionality, drawings, designs, models and plans whether in tangible form or not;
b) all financial or other business information about VENDe;
c) the identity of the customers of VENDe;
d) research and development information, financial data and information, business plans, marketing materials and strategies and any other information about VENDe, its customers or their products, other than such information which is generally available in the public domain
“Privacy Policy” means AGHA’s privacy policy available on the Website.
“Store” means a selling location specific to a storeholder within the Website.
“URL” means uniform resource locator.
“Users” means users of the Website Software.
“VENDe Price Structure” means the pricing policy published by AGHA from time to time on the Website.
“Website Agreement” means the Website Agreement in relation to Australian Gift and Homewards Association eMarketplace known as VENDe
“Website Software” means all of the software including digital data and computer programs used by the Website.
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3. Interpretation
In these Terms of Service, unless the context otherwise requires:
a) the singular includes the plural and vice versa;
b) another grammatical form of a defined word or expression has a corresponding meaning;
c) a reference to a clause, paragraph or schedule is to a clause or paragraph or schedule to these Terms of Service and a reference to these Terms of Service includes any schedule or annexure;
d) a reference to a document or instrument, includes the document or instrument as novated, altered, supplemented or replaced from time to time;
e) a reference to A$, $A, dollar or $ is to Australian currency;
f) a reference to time is to New South Wales time;
g) a reference to a party to these Terms of Service, and a reference to a party to a document includes the party’s executors, administrators, successors and permitted assigns and substitutes;
h) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
i) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
j) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
k) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of these Terms of Service or any part of it;
l) if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day; and
m) headings are for ease of reference only and do not affect interpretation.
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4. Use of the Website
4.1 You must not use the Website for any unlawful purpose.
4.2 You must not violate or attempt to violate the security of the Website. You must not circumvent or modify any security technology or software that is part of the Website.
4.3 Any Content uploaded, posted, transmitted, published or otherwise made available to you by VENDe must:
* comply with the Acceptable Use Policy;
* be complete and accurate;
* not be of a nature likely to bring AGHA or the Website into disrepute; and
* comply with all laws, regulations, standards and relevant industry codes.
4.4 Where any Content uploaded, posted, transmitted, published or otherwise made available by you or on your behalf to the Website contains data for a listing of goods or services for sale on the Website, the data (including any metadata or metatags) must be accurate and not be likely to cause a listing to be catalogued by the Website systems in an incorrect place or to trigger the Website search engine to include the listing in a search response that is not properly related to the listing.
4.5 You may only use the Website for commercial purposes.
4.6 AGHA may delete, remove or edit any Content at any time without notice or liability to you.
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5. Intellectual Property
5.1 You acknowledge and agree that all Intellectual Property compromised or relating to the Website, the Website Software and all materials in the Website belong to AGHA or its licensors and that nothing in these Terms of Service constitutes a transfer of any Intellectual Property rights.
5.2 You must not copy, publish, republish, re-distribute, re-communicate or otherwise commercially exploit, the Website, or the Intellectual Property in any form or by any method whatsoever.
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6. AGHA’s services
6.1 The establishment of a Store on the Website and the facilitation of the listing and sale of goods and services via the Website.
6.2 Providing retailers with an industry specific search engine to facilitate the sourcing of new products and trusted Australian wholesalers.
6.3 Providing wholesalers with a place to promote and sell their products for a set price and linking the purchaser to the wholesaler’s individual website.
6.4 Building a customised eCommerce website for third party wholesalers.
6.5 Before you can use the Website, you will be required to apply and register your profile on the Website. AGHA will issue you with an ID and password to enable you to access and use the Website. You agree that the ID issued to you may only be used by you and not used or shared by another other person. You agree that you are responsible for all use of the Website accessed with your ID and password and will promptly notify AGHA if you suspect that your ID is lost, stolen, compromised or misused. You are encouraged to create your own unique new password utilising the appropriate facilities on the Website for that purpose.
6.6 You acknowledge and agree that AGHA is not involved in the actual transaction between retailers and wholesalers. As a result, AGHA has no control over the quality, safety or legality of products or Content posted by users on the Website, the truth or accuracy of listings, the ability of wholesalers to sell products or the ability of retailers to buy products. We cannot ensure and do not guarantee that a wholesaler or retailer will actually complete a transaction or act lawfully in using the Website.
6.7 When you enter into a transaction you create a legally binding contract with another member, unless the transaction is prohibited by law or by these Terms of Service or AGHA’s policies. You are responsible for ensuring that you comply with your obligations to that other member. If you do not, you may become liable to him or her. You must ensure that you are aware of any laws relevant to you as a retailer or wholesaler, or in any others uses you make of the Website. If another member breaches any obligations to you, AGHA is not responsible for enforcing any rights that you may have.
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7. Pricing
7.1 If the wholesaler already has a suitable website with eCommerce functionality, Part 1 of the VENDe Price Structure will apply.
7.2 If the wholesaler does not have a suitable website with eCommerce functionality, Part 2 of the VENDe Price Structure will apply.
7.3 The price of advertising on the Website is set out in Schedule 2.
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8. Listing and Selling
8.1 You must be legally able to sell any product you list for sale on the Website. You must describe your product fully and accurately and include all terms of sale on the listing page of the Website. Your listings may only include text descriptions, graphics, pictures and other content relevant to the sale of that item, including any information that you are required to provide by any applicable law.
8.2 The listing and content of the listing must be your own work or work that you are legally entitled to use. All listed items must be listed in an appropriate category.
8.3 You must not, by any means, infringe the rights (including intellectual property rights) of others.
8.4 You alone, and not AGHA, are responsible for ensuring that your listing and selling and any other activities conducted on the Website are lawful. You must ensure that you comply with all applicable laws in Australia and other countries. You must also ensure that you strictly comply with these Terms of Service and any policies that form part of these Terms of Service.
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9. Privacy Policy
9.1 AGHA undertakes to comply with the terms of its Privacy Policy in relation to the collection and use of your personal information.
9.2 AGHA may disclose your personal information to third parties to complete a transaction on your behalf or provide you with a service you have requested.
9.3 You consent to AGHA sending you commercial electronic messages via email, short message service (SMS), multimedia message service (MMS) or instant messaging.
9.4 In order to operate the Website or deliver a service in connection with the Website, AGHA may sometimes share your personal information with service providers, who may be located overseas. In entering these Terms of Service you expressly consent to the transfer of your personal information overseas.
9.5 You must provide accurate, current, and complete information whenever using the Website. AGHA may terminate your access and/or refuse you access to the Website at any time including if any information you provide is false, misleading, inaccurate or incomplete.
9.6 You agree that AGHA may store and use the information you provide for use in connection with your use of the Website (including, without limitation, in connection with payment).
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10. Security Policy
10.1 When using the Website your financial details are passed through a secure server using the latest [128-bit or 256-bit] SSL (secure sockets layer) encryption technology.
10.2 No transmission over the Internet can be guaranteed as totally secure. Whilst AGHA strives to protect such information, AGHA does not warrant and cannot ensure the security of any information which your transmit to AGHA. Accordingly, any information which you transmit to AGHA, including your credit card details, is transmitted at your own risk. Once AGHA receives your transmission, AGHA will take reasonable steps to preserve the security of such information.
10.3 The Website is VeriSign accredited and is protected with CBA DataVault.
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11. Links to third party websites
11.1 The Website may allow you or other persons to insert links to connect third party websites that are not within AGHA’s control. The appearance of a link does not imply AGHA’s endorsement or recommendation.
11.2 AGHA is not responsible for the contents of any linked website or any goods or services provided, made available, advertised or otherwise offered on those websites. Your access and the access of third parties to linked websites and use or acquisition of any goods or services offered on the websites is at your or those third persons’ own risk.
11.3 To the extent permitted by law, AGHA disclaims all warranties, express or implied, as to the accuracy, value, legality or otherwise of any materials or information contained on such websites, and any services provided, made available, advertised or otherwise offered on such websites.
11.4 Each third party website will have individual terms of service, including but not limited to, payment options, freight costs, minimum orders, delivery periods, and returns policies. You will need to check with the individual wholesaler what their terms of service are before purchasing from them.
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12. Specification of products
12.1 Specifications on the Website regarding products available to be supplied by third parties may differ from the actual products available to be supplied from time to time. AGHA reserves the right to make changes in the specification necessary to comply with any applicable legislation and to change the specification published on the Website, without affording notice, provided that this does not materially affect the quality or performance of the products purchased.
12.2 In all respects, and to the maximum extent permissible, AGHA makes no other warranties or promises about the products advertised on the Website. If AGHA is liable for breach of a guarantee implied by the Australian Consumer Law of the Competition and Consumer Act 2010 (Cth) (not being a guarantee implied by Section 64 of the Australian Consumer Law) then its liability for a breach of any such guarantee will be limited, at its option, to any one or more of the following:
a) in the case of goods:
(1) the replacement of the products or the supply of equivalent products;
(2) the repair of the products;
(3) payment of the cost of replacing the products or acquiring equivalent products;
(4) the payment of having the products repaired.
b) in the case of services:
(1) the supply of the services again;
(2) the payment of the cost of having the services supplied again
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13. Limitation of liability
13.1 You acknowledge and accept that, to the extent permitted by law, AGHA’s liability is limited only to refunding the price or replacing the products as provided for above. AGHA is not responsible to you to any greater extent and in particular is not liable to you for any indirect or consequential loss (including without limitation personal injury, financial loss such as loss of profit, or otherwise) that you may incur regardless of whether such liability arises in contract, tort (including negligence), equity, breach of statutory duty or otherwise.
13.2 To the full extent permitted by law, AGHA excludes all representations, warranties, terms and conditions, whether express or implied (and including, without limitation, those implied by statute, custom, law or otherwise), except as expressly set out in these Terms of Service.
13.3 AGHA does not warrant or guarantee that your use of the Website will be uninterrupted or error-free.
13.4 AGHA provides no warranty regarding the compatibility of the Website with any other hardware or software.
13.5 AGHA will have no liability to you for content in the Website that may be found to be offensive, indecent, or objectionable. AGHA does not guarantee the accuracy of any information provided in connection with any goods or services.
13.6 Your use of the Website is at your own risk. To the extent permitted by law, neither AGHA nor any party involved in creating, producing or delivering the Website accepts any liability:
(a) for the accuracy, timeliness or completeness of the information contained in the Website or any responsibility for any errors or omissions in the content in the Website whether or not AGHA is aware of such errors or omissions;
(b) in relation to any transactions between users of the Website for or in connection with the sale or purchase of goods or services; or
(c) for any direct, incidental, consequential, indirect, special, punitive or exemplary damages or any loss of business, interest, goodwill, revenue of profit, or loss or corruption of data arising in connection with your access to, or use of, or inability to use or access the Website, whether arising in tort or contract.
13.7 AGHA does not warrant that the Website or its server are free of computer viruses, bugs or other harmful components or that defects will be corrected even if AGHA is aware of them.
13.8 AGHA makes no representations to you nor does it give any guarantees or warranties to you about sales volumes you may achieve through your use of the Website.
13.9 Any communications and notices from AGHA to you regarding your account on the Website do not represent any endorsement, guarantee or legitimisation of your transactions. You are responsible for completing all transactions you participate in (including monitoring their status and complying with all relevant legal obligations).
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14. Indemnity
14.1 You indemnify and hold harmless AGHA and its officers, employees, contractors and agents from and against any liability, loss, damage, costs and expense (including, without limitation, legal expenses on a full indemnity basis) and penalties incurred or suffered by any of them arising out of:
(a) your breach of these Terms of Service;
(b) your use of or inability to use the Website;
(c) the offering by you or sale by you of any goods or services on the Website;
(d) any negligence, or any act of fraud or wilful misconduct, by or on behalf of you;
(e) any Content posted by you on the Website, including without limitation, claims brought by any third party relating to defamation, negligent misstatement, injurious falsehood, contempt of court, rights of publicity and/or privacy;
(f) infringement, trademark infringement, other intellectual property infringement, passing off, misleading or deceptive conduct and any failure to comply with or fulfil any representations warranties or agreements.
14.2 AGHA reserves the right, at its own expense, to defend any claims, proceedings, suits or actions and otherwise take control of any matter subject to the indemnity in this clause, in which event you will give to AGHA at your expense, all assistance reasonably required by AGHA.
14.3 AGHA is not involved with nor is it a party to any transactions that take place between retailers and wholesalers. AGHA does not accept any liability in respect to your involvement in any mediation, arbitration, tribunal hearing, court proceeding or other proceedings (of whatever nature) with a retailer or wholesaler (as the case may be) in any way arising out of or in any way connected with your transaction.
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15. Notice
15.1 AGHA may provide you with notices by email, SMS or by posting notices on the Website.
15.2 Notice to AGHA must be effected by post to Locked Bag 103, Silverwater NSW 1811 or such other postal address as AGHA may from time to time notify.
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16. Variation
16.1 AGHA retains the right to vary its Terms of Service at any time and for any reason. Any variations become effective on posting on the Website. By using the Website after the Terms of Service have been varied, you agree to be bound by the variation. AGHA encourages users to review the Terms of Service on the Website regularly to keep abreast of changes,
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17. Assignment
17.1 AGHA may assign any or all of its rights under these Terms of Service provided that the relevant assignee undertakes to perform all of AGHA’s obligations.
17.2 Subject to the foregoing sub-clause, neither party may assign any or all of its rights under these Terms of Service.
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18. Termination of access and closure of the Website
18.1 Access to this Website may be terminated and this Website may be closed at any time by AGHA without notice. AGHA’s limitation of liability will nevertheless survive any such termination.
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19. Law and jurisdiction
19.1 These Terms of Service shall be governed by and construed firstly in accordance with the laws of New South Wales and then in accordance with the laws of the Commonwealth of Australia. If any of these Terms of Services should be determined to be illegal, invalid or otherwise unenforceable, it shall be deemed deleted and the remaining Terms of Service shall remain and continue to be valid, binding and enforceable.
19.2 You agree to submit to the jurisdiction of the courts in New South Wales in connection with any dispute and waive, without limitation, any claim or objection based on absence of jurisdiction or inconvenient forum.
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20. General
20.1 AGHA accepts no liability for any failure to comply with these Terms of Service where such failure is due to circumstances beyond AGHA’s reasonable control.
20.2 If AGHA waives any rights available to it under these Terms of Service on one occasion, this does not mean that those rights will automatically be waived on any other occasion.
20.3 Approvals and Consents
a) By giving its approval or consent a party does not make or give any warranty or representation as to any circumstance relating to the subject matter of the consent or approval.
b) You grant AGHA a worldwide, royalty-free, non-exclusive license to use and share any Content without any compensation or obligation to you.
20.4 Remedies Cumulative
The rights and remedies provided in these Terms of Service are in addition to other rights and remedies given by law independently of these Terms of Service.
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21. Schedule 1 – Acceptable use policy
In using the Website you must not:
a) Post or transmit any material:
i. which is unlawful, abusive, defamatory, obscene, threatening, vulgar, pornographic, profane or indecent;
ii. which you know (or reasonably ought to know) to be false, misleading or deceptive;
iii. be fraudulent or involve the sale of counterfeit or stolen items.
iv. constituting or encouraging conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any applicable law;
v. of any kind which contains a virus or other malware;
vi. of any kind which is not your original work, or which violates or infringes (or could reasonably be expected to violate or infringe) upon the rights of any other person, including material which is protected by copyright, trademark or other intellectual property rights;
vii. for commercial purposes or which contains any promotional material or advertising;
viii. which is an invasion of any privacy or breach of an obligation of confidence;
ix. which racially or religiously vilifies, incites violence or hatred, or is likely to offend, insult or humiliate others based on gender, age, race, religion, sexual orientation, or any other physical or mental disability.
b) Restrict or inhibit any other user from using or enjoying the Website.
c) Download or distribute any file if you know, or reasonably ought to know, that the file cannot legally be distributed in such manner.
d) Amend any author attributions, legal notices or proprietary designations or labels in any file that is uploaded.
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22. Schedule 2 – Price of Advertising on the Website
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Package 1 – Company Listing:
AGHA member – $100 plus GST (per annum)
Non-member – $200 plus GST (per annum)
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Package 2 - Product Listing:
Package 3 – An eCommerce website hosted by VENDe:
AGHA member – $200 plus GST (per annum)
Non-member – AGHA membership + $200 plus GST (per annum)
