These Terms and Conditions set out the terms and conditions of the service provided by Marketplacer Pty Ltd (an Australian company,
ACN 161 625 789, also referred to as “we” or “our” or “us” or “Marketplacer”) (the “Service”), which enables You to setup and manage a hosted online marketplace via www.marketplacer.com (the “Site”).
These Terms and Conditions are binding on you (also referred to as “You”, “Your” or “Marketplace Operator”) as a user of the Service or the Site (as appropriate).
Please read these Terms and Conditions carefully. To use this Site You must first agree to these Terms and Conditions. If You do not agree to these Terms and Conditions as set out below, please leave the Site now.
The Service provided by Marketplacer is subject to the terms and conditions set out in these Terms and Conditions.
The Service consists of providing You with a platform enabling You to set up and manage Your own online marketplace (the “Marketplace”).
1.2 Changes to the Service
The Service is supported by the Marketplacer software platform which is evolving and subject to changes from time to time.
Marketplacer reserves its right to change the Service or any part of the Service at any time and roll out those changes to Marketplace Operators holding a Service Subscription (“Updated Service”). If we intend to make any material changes that may affect Your use of the Service, we will endeavour to notify You of those changes and of the date of release of the Updated Service.
2. Service Subscription
2.1 Term of Service Subscription
Upon the creation of an account and in exchange for the Service Fee, Marketplacer will provide the Service to You (“Service Subscription”).
The Service Subscription will be for a period of 12 months commencing upon your agreement to these Terms and Conditions and the creation of your account.
2.2 Service Subscription renewal
These Terms and Conditions will continue for the duration of the Service Subscription covered by the Service Fee paid or payable under clause 3. These Terms will automatically continue for another period of the same duration as the initial Service Subscription, provided:
You continue to pay the prescribed Access Fee in accordance with the Fee Schedule; and
neither party terminates the Service Subscription by giving at least thirty (30) days written notice, in advance.
3. Fees and payment terms
Marketplacer will charge You an annual fee for the Service, which may be paid upfront or by monthly instalments (“Service Fee”). The Service Fee applicable to your Service Subscription is in accordance with our Fee Schedule.
An invoice for the Service Fee will be made available to you via your online account. Payment of Service Fee when due is exclusive of all taxes.
You are responsible for payment of all taxes and duties in addition to the Service Fee. Taxes means all forms of taxes, charges, withholdings, rates, levies, duties, imposts and any other governmental impositions by whatever authority imposed and of whatever nature, charged together with all costs, charges, interest, penalties, fines, expenses and other additional statutory charges, incidental or related to the imposition.
Payment of all amounts specified in an invoice must be paid in accordance with terms of the invoice.
If, for any reason, Your Service Fee is not received, Marketplacer has a right to temporarily suspend the provision of the Service until the payment is received.
The agreed to Service Fee will be amended accordingly by Marketplacer if for two consecutive months during the term of service your Site exceeds it’s set limit of site visits (“Hosting”) under our Fee Schedule. In this instance, You will be charged a higher (greater financial amount) Service Fee as detailed in the Fee Schedule.
4. Marketplace operation
4.1 Marketplace terms and conditions
You are responsible for the operation of Your Marketplace, including the creation and publishing of terms and conditions for Your Marketplace and terms of sale for products advertised and sold on Your Marketplace (together the “Marketplace Terms”). It is Your responsibility to ensure that Your Marketplace Terms and the operation of Your Marketplace is in accordance with all applicable laws, rules and regulations of Your relevant jurisdiction (“Applicable Laws”) and these Terms and Conditions.
You are responsible for the creation, submission, and control of the content of Your Marketplace. You acknowledge that the content is controlled by You or at Your direction and that the Marketplace is not operated by Marketplacer, nor is the content created, submitted or controlled by Marketplacer.
You must not use the Service to publish illegal, derogatory or offensive content on Your Marketplace or publish hyperlinks that direct a person to another webpage containing such content.
If You are found to have used the Service to publish content or directing persons to another webpage which is deemed by Marketplacer to contain illegal, derogatory or offensive content, Marketplacer reserves the right to immediately cancel Your Service Subscription (or any other Service Subscription You or an associated entity may have with Marketplacer), without notice or refund. Any Marketplace Operator who publishes such content may be reported to the proper authorities.
You are responsible for any and all transactions carried out on the Marketplace and to ensure that those transactions are in accordance with all Applicable Laws.
Any and all transactions will be between You and Your customers, Marketplacer will not be a party to any agreement or contract formed as a result of any transaction carried out on Your Marketplace.
5. Service level guarantee
Marketplacer will make reasonable efforts to ensure continuous availability of our Service (“Service Availability”). However, access to the Site or the Service may not always be possible due to numerous factors including those which are out of our control. Marketplacer does not warrant or represent that Your Service and access to the Site will be timely, continuous, fault free, uninterrupted, secure or virus free.
Where You believe Service Availability is less than 95% during any calendar month, You may provide Marketplacer with details of any disruption to the Service Availability, and we will consider Your request. Within 30 days of receipt of Your request, Marketplacer may, in its absolute discretion, issue a credit to Your Service Subscription account in respect of the month in which the disruption occurs in accordance with the table below (“Service Credit”):
Service Availability for calendar month
Service Credit as % of monthly proportion of the Service Fee
In assessing Your Service Availability, the following events affecting Service Availability will not be considered to be disruptions in respect of which a Service Credit may be issued:
any event of force majeure that was not within Marketplacer’s control (for example, any chance occurrence or unavoidable accident);
any action taken by a third party;
any action or inaction by You or Your agents; or
any planned maintenance.
Any Service Credit issued to Your Service Subscription account will be deducted from the total of the Service Fees due and payable for the next calendar month following the issuance of the Subscription Credit. The Service Credit is non-transferrable. For the avoidance of doubt, a Service Credit cannot:
be transferred to any other person or entity;
be converted to cash or applied to any other liability You may have to Marketplacer; and
be off-set against any other Service Fees other than the following calendar month.
6. Fees and payment terms
6.1 Your Intellectual property rights
Title to, and all intellectual property rights in, any data inputted on the Marketplace by You or Your customers (“Data”) remain Your property. However, Your access to Data is contingent on payment of the Service Fee when due.
You will retain the intellectual property rights already owned or created by You in the course of carrying out Your business, including domain names and Marketplace content such as copy, text and pictures.
If You use the Service to publish information for which You have no Intellectual Property rights, it is Your responsibility to gain permission from the original owner of that information. Marketplacer may require production of evidence from You of Your intellectual property in the product advertised.
6.2 Marketplacer’s intellectual property rights
Title in the Service and the Site, including any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights anywhere in the world, whether or not registered, remains the property of Marketplacer or its associated entities, is protected by both Australian and international laws and must not be reverse engineered, republished, reproduced or copied in any way.
You grant Marketplacer a perpetual sub-licensable and transferable licence to transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Service and for any other purpose so determined by Marketplacer. You also grant Marketplacer a perpetual sub-licensable and transferable licence to use and copy, anonymised Data from your Marketplace.
No Marketplace Operator shall be entitled to claim any loss or damage against Marketplacer for the use, publication, republication, producing, reproducing, modifying, deleting, adapting or publishing any of the information provided by the Marketplace Operator to Marketplacer.
7. No warranty
Subject to clause 5 of these Terms and Conditions, You agree that the Service is provided to You by Marketplacer on an “as is” basis.. To the extent permitted by the Governing Law, Marketplacer makes no warranty, express or implied and expressly disclaims the warranties or conditions of availability, correctness, non-infringement, merchantability, and fitness for any particular purpose.
8. Limitation of liability
You agree, to the extent permitted by the Governing Law, that Marketplacer and its officers, employees, agents and contractors are not liable to You or to any other person or entity for:
any loss or damage of any kind that is directly or indirectly caused by or results from any wrongful, willful or negligent act or omission; or
any indirect, incidental, special or consequential loss or damage, loss of profits or anticipated profits, economic loss, loss of business opportunity, loss of data or damage irrespective of whether:
the loss or damage is caused by or relates to breach of contract, statute, tort (including negligence) or otherwise; or
whether Marketplacer, its officers, employees, agents and contractors was previously notified of the loss or damage, or
any representation, warranty, condition or undertaking that would be implied in these Terms and Conditions by legislation, common law or equity.
You agree to indemnify and keep indemnified Marketplacer, its officers, employees and contractors, against all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis for both civil and criminal claims, actions and the like) that may be brought against Marketplacer or which Marketplacer may pay, sustain or incur as a direct or indirect result of any one or more of the following:
any breach or non-performance of these Terms and Conditions by You; or
any wrongful or willful or negligent act or omission by You or any of Your officers, employees, agents or contractors.
You breach any of these Terms and Conditions and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
You breach any of these Terms and Conditions and the breach is not capable of being remedied (including without limitation, any payment of Service Fees that are not paid in full in accordance with the requirements set out in the Fee Schedule); or
You or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction,
then Marketplacer may take any or all of the following actions, at its sole discretion:
terminate Your use of the Services and the Site;
suspend for any definite or indefinite period of time, Your use of the Services and the Site;
suspend or terminate access to all or any of Your Data.
For the avoidance of doubt, if payment of any invoice for Service Fees due is not made in accordance with the requirements set out in the Fee Schedule, Marketplacer may suspend or terminate Your use of the Service, or Your rights of access to all or any Data.
Upon termination, the discontinuance of the Service will be effective immediately. Marketplacer has a right, but not an obligation, to either retain or delete the content of Your Marketplace.
11. Governing Law
These Terms and Conditions are governed by and must be construed in accordance with the laws in force in the State of Victoria and the Commonwealth of Australia (“The Governing Law”).
You submit to the exclusive jurisdiction of the courts in the State of Victoria and the Commonwealth of Australia in respect of all matters arising out of or relating to these Terms and Conditions, its performance or subject matter.