|
This Merchant Agreement
applies in addition to the Terms of Use (with contextual
modifications as are necessary).
1.
SHOPPING CART
SERVICE
The Shopping Cart service
("Service"), is a service owned and operated Connect South West, is
provided to you ("you" or "Merchant") under the terms and
conditions of this Merchant Agreement and any amendments thereto
and any operating rules or policies (collectively, the "MSA" or
"Agreement"). Connect South West reserves the right, in its sole
discretion, to change, modify, add or remove all or part of the MSA
at any time. Merchant will receive notice of such changes and/or
modifications pursuant to Section 13 regarding notices.
1.1
Representations and
Warranties
By accepting the terms and
conditions of the MSA, Merchant (a) represents and warrants that he
or she is 18 years old or older; (b) agrees to provide true,
accurate, current and complete information about Merchant as
prompted by the Account Registration Form; and (c) agrees to
maintain and update this information to keep it true, accurate,
current and complete. If any information provided by Merchant is
untrue, inaccurate, not current or incomplete, Connect South West
has the right to terminate Merchant's account and refuse any and
all current or future use of the Service.
1.2
Click
acceptance
By completing the account
registration process and clicking the "I accept" button, you agree
to be bound by the MSA. Nothing in this agreement obligates Connect
South West to list, link to, accept or otherwise host any online
store anywhere on the Connect South West site. If these terms and
conditions or any future changes are unacceptable to you, you may
cancel your account pursuant to Section 7.1 regarding termination
of service.
2. DESCRIPTION
OF CONNECT SOUTH WEST SERVICE
Connect South West hosts an
interactive online store ("Store") on the World Wide Web and may
provide Merchants with, among other things, access to its Connect
South West Store to facilitate the sale of Merchant's goods and
services from the Store.
Connect South West may place limits from time to time as to the
number of goods and or services that are available for sale from
the Store. Currently each Merchant is limited to 20
items.
3. MERCHANT'S
OBLIGATIONS
3.1
Acknowledgment
Merchant acknowledges and
agrees that it shall be responsible for all goods and services
offered at Merchant's Store, all materials used or displayed at the
Store, and all acts or omissions that occur at the Store or in
connection with Merchant's account or password. Certain Stores may
be subject to additional requirements.
3.2
Merchant Information
etc.
Merchant agrees to display
in the Store Merchant's contact information, including but not
limited to Merchant's company name, address, telephone number, fax
number and e-mail address. Merchant also agrees to update such
information to keep it true, accurate, current and
complete.
3.3
Public announcements
etc.
Merchant agrees that any
and all press releases and other public announcements related to
this Agreement and subsequent transactions between Connect South
West and Merchant, including the method and timing of such
announcements, must be approved in advance by Connect South West in
writing. Connect South West reserves the right to withhold approval
of any public announcement in its sole discretion. Without
limitation, any breach of Merchant's obligation regarding public
announcements shall be a material breach of the MSA.
3.4
Merchant's
representations
Merchant represents and warrants that it has full power
and authority under all relevant laws and regulations:
-
to
offer and sell the goods and services offered at the Store,
including but not limited to holding all necessary licenses from
all necessary jurisdictions to engage in the advertising and sale
of the goods or services offered at the Store;
-
to copy and display the
materials used or displayed at the Store; and, * to provide for
credit card payment and delivery of goods or services as specified
at the Store.
Merchant represents and
warrants that it will not engage in any
activities:
-
that constitute or
encourage a violation of any applicable law or regulation,
including but not limited to the sale of illegal goods or the
violation of export control or obscenity laws;
-
that defame, impersonate or
invade the privacy of any third party or
entity;
-
that infringe the rights of
any third party, including but not limited to the intellectual
property, business, contractual, or fiduciary rights of others;
and,
-
that are in any way
connected with the transmission of "junk mail" "spam" or the
unsolicited mass distribution of e-mail, or with any unethical
marketing practices.
3.5
Reservation of
rights
Connect South West
reserves the right to refuse to host or continue to host any Store
which it believes, in its sole discretion:
-
offers for sale goods or
services, or uses or displays materials, that are illegal, obscene,
vulgar, offensive, dangerous, or are otherwise
inappropriate;
-
has substantially changed
its Store from the time it was accepted;
-
has received a significant
number of complaints for failing to be reasonably accessible to
customers or timely fulfill customer orders;
-
has become the subject of a
government complaint or investigation; or
-
has violated or threatens
to violate the letter or spirit of the MSA.
4. PROPRIETARY
RIGHTS
4.1 Software
License.
Connect South West hereby
grants Merchant a non-exclusive, non transferable license to use
the Software in object code form only on a server controlled by
Connect South West for the sole purpose of creating and maintaining
Stores on such server.
Merchant is not being
granted any right to copy the Software or to use it on computers
other than a server controlled by Connect South West.
Merchant may not use Web
pages or parts of Web pages generated by means of the Software,
other than content that originates from and is proprietary to
Merchant, on any server other than the servers controlled by
Connect South West without Connect South West's express written
agreement.
Merchant also acknowledges
and agrees that the Software is intended for access and use by
means of web browsing software, and that Connect South West does
not commit to support any particular browsing platform.
Connect South West reserves
the right at any time to revise and modify the Software, release
subsequent versions thereof and to alter features, specifications,
capabilities, functions, and other characteristics of the Software,
without notice to Merchant.
If any revision or
modification to the Software materially changes Merchant's ability
to conduct business, Merchant's sole remedy is to terminate the MSA
pursuant to Section 7.1 regarding termination of
service.
4.2 Connect South
West Intellectual Property.
Merchant acknowledges and
agrees that content available from Connect South West or the
Service, including but not limited to text, software, music, sound,
logos, trademarks, service marks, photographs, graphics, or video,
is protected by copyright, trademark, patent, or other proprietary
rights and laws, and may not be used in any manner other than as
specified in Section 4.1 above.
4.3 Merchant's
Property.
Merchant agrees that by
using the Service, Merchant grants Connect South West, and its
successors and assigns, a non-exclusive, worldwide, royalty-free,
perpetual, non-revocable license under Merchant's copyrights and
other intellectual property rights, if any, in all material and
content displayed in Merchant's Store to use, distribute, display,
reproduce, and create derivative works from such material in any
and all media and display in any manner and on any Connect South
West property the results of search queries and comparisons
conducted on Connect South West, including, without limitation,
searches conducted on Connect South West Shopping and the
Service.
Merchant also grants
Connect South West the right to maintain such content on Connect
South West's servers during the term of the MSA and to authorize
the downloading and printing of such material, or any portion
thereof, by endusers for their personal use.
4.4 Unauthorised
Access.
Merchant shall not attempt
to gain unauthorised access to any servers controlled by Connect
South West.
5. FEES
5.1
Payment
Merchant shall pay Connect
South West a fee as set out in the Connect South West fee
schedule.
All such fees are payable
in Australian dollars to Connect South West and shall be charged on
the first day of each month to the credit card number given to
Connect South West at the time of registration or to such other
credit card number which Merchant shall so designate.
Connect South West may
also, up on 30 days prior notice to Merchant, alter its fee
schedules and terms of the MSA.
5.2 Important Tax
Information
If Connect South West
processes customer payments on behalf of the merchant, then the
Australian Taxation Office deem that Connect South West acta as an
agent for the Merchant in relation to GST. Therefore, the Merchant
are liable for the GST component of the Merchants sale on the
www.MySouthWest.com.au eCommerce facility.
An example follows relating to
the transaction of GST and how it is
treated…
Sale
Sale
$110 ($100 + $10 GST)
Connect South
West
banks
$110 ($100
+ $10 GST)
Connect South
West pays merchant
$110 ($100 + $10
GST)
Merchant
pays
$10 GST
Commission
Sale
$110 ($100 + $10 GST)
Commission
$5.50 (5.5% GST Inc)
5.3 Late
payment
Late payments shall bear
interest at the rate of fifteen percent (15%) per annum (calculated
monthly) (or the highest rate permitted by law, if
less).
In the event of any failure
by Merchant to make payment, Merchant shall be responsible for all
reasonable expenses (including legal fees) incurred by Connect
South West in collecting such amounts.
6. TERM of
AGREEMENT
The term of the MSA shall
be for 365 days commencing on the date that Merchant opens an
account for Merchant's Store.
The term shall be renewed
by the Merchant for successive annual periods at renewal rates
applicable at the time, however, to qualify for each renewal
Merchant must at the time of renewal be in substantial compliance
with the material terms and conditions of the MSA.
Connect South West shall
have the right, but not the obligation, to review any Store for
compliance with the MSA as part of the renewal process, or at any
time.
7. TERMINATION
7.1
Termination.
Either party may terminate
the MSA on thirty (30) days notice if the other party has
materially breached or is otherwise not in compliance with any
provision of the MSA, and such breach or non compliance is not
cured within such thirty (30) day period.
Connect South West reserves
the right to immediately suspend any customer access to the Store
until such breach or non compliance is cured.
7.2 Termination
for Illegal or Other Activity.
Notwithstanding the
foregoing, Connect South West may, but has no duty to, immediately
terminate Merchant and remove it from Connect South West servers if
Connect South West in its sole discretion concludes that Merchant
is engaged in illegal activities or the sale of illegal or harmful
goods or services, or is engaged in activities or sales that may
damage the rights of Connect South West or others.
Any termination under this
Section 7.2 shall take effect immediately and Merchant expressly
agrees that it shall not have any opportunity to cure.
7.3 Waiver.
Merchant expressly waives
any statutory or other legal protection in conflict with the
provisions of this Section 7.
7.4 Deletion of
Information.
Upon termination, Connect
South West reserves the right to delete from its servers any and
all information contained in Merchant's account, including but not
limited to order processing information, mailing lists, and any Web
pages generated by the Software.
7.5 Survival of
terms
The provisions of Section 4
(Proprietary Rights), Section 10 (Indemnity), and Section 11
(Disclaimer of Warranties and Liabilities) of this Agreement shall
survive any termination of the Agreement.
8. MERCHANT
PRIVACY
8.1 Merchant
Information.
Connect South West
maintains information about Merchant and the Store on Connect South
West servers, including but not limited to Merchant's account
registration information, Merchant's customer order information,
sales information, and clickstream data ("Merchant
Information").
Merchant agrees that
Connect South West may use Merchant Information in aggregate form
(i.e., Merchant Information is not individually attributable to the
Merchant) for marketing or other promotional purposes.
Merchant agrees that
Connect South West may disclose Merchant Information in the good
faith belief that such action is reasonably necessary:
-
to comply with the
law;
-
to comply with legal
process;
-
to enforce the
MSA;
-
to respond to claims that
the Merchant or Store is engaged in activities that violate the
rights of third parties; or
-
to protect the rights or
interests of Connect South West, Connect South West or others;
provided, however, that nothing in this section shall impose a duty
on Connect South West to make any such disclosures.
Merchant agrees that
Connect South West will not collect any customer credit card
information and may delete all other Merchant Information from
Connect South West servers one month after service is
terminated.
8.2 Password
Merchant shall receive a
password from Connect South West to provide access to and use of
the Software and Services. Merchant is entirely responsible for any
and all activities which occur under Merchant's account and
password.
Merchant agrees to keep its
password confidential, to allow no other person or company to use
its account, and to notify Connect South West promptly if Merchant
has any reason to believe that the security of its account has been
compromised.
8.3 Technical
Access.
Merchant acknowledges and
agrees that technical processing of Merchant Information is and may
be required:
-
for
the Service to
function;
-
to conform to the technical
requirements of connecting networks;
-
to conform to the technical
requirements of the Service; or
-
to conform to other,
similar technical requirements. Merchant also acknowledges and
agrees that Connect South West may access Merchant's account and
its contents as necessary to identify or resolve technical problems
or respond to complaints about the Service.
8.4 Merchant
Privacy Policy.
Merchant agrees:
-
to post a privacy policy in
its Merchant Store that, at a minimum, discloses any and all uses
of personal information collected from users by
Merchant;
-
to include in Merchant's
privacy policy a paragraph provided or approved by Connect South
West that describes Connect South West's collection and use of
Merchant's customer information,
-
to provide a hypertext link
to Merchant's privacy policy on the home page of the Merchant Store
and on all pages where Merchant collects personal information from
users [including, but not limited to, all check out pages];
and
-
to use personal information
only as expressly permitted by Merchant's privacy
policy.
9. MAINTENANCE
AND SUPPORT
9.1 Technical
assistance
Merchant can obtain
assistance with any technical difficulty that may arise in
connection with Merchant's utilization of the Software or Services
by requesting assistance by email to mysouthwest@mysouthwest.com.au
Connect South West reserves
the right to establish limitations on the extent of such support,
and the hours at which it is available.
9.2
Connectivity
Merchant is responsible for
obtaining and maintaining all telephone, computer hardware and
other equipment needed for its access to and use of the Software
and Services and Merchant shall be responsible for all charges
related thereto.
10. INDEMNITY
The indemnity contained in
the Terms of Use is applicable to the MSA (with such contextual
modifications as are necessary).
11. DISCLAIMER OF
WARRANTIES AND LIABILITIES
The disclaimers and
limitations of liability contained in the Terms of Use are
applicable to the MSA (with such contextual modifications as are
necessary).
12. NO RESALE OR
ASSIGNMENT OF SERVICE
Merchant agrees not to
resell or assign or otherwise transfer its rights or obligations
under the MSA without the express written authorization of Connect
South West.
13. NOTICES
Any notices or
communications under the MSA shall be by electronic mail or in
writing and shall be deemed delivered upon receipt to the party to
whom such communication is directed, at the addresses specified
below.
If to Connect South West,
such notices shall be addressed to mysouthwest@mysouthwest.com.au
If to Merchant, such
notices shall be addressed to the electronic or mailing address
specified when Merchant opens an account with Connect South West,
or such other address as either party may give the other by notice
as provided above.
|
