These Retailer Terms & Conditions are between ParcelPoint Pty Ltd (ABN 25 614 602 336) ('we' or 'us') and the nominated eBay merchants accepting these Retailer Terms & Conditions ('you') for the provision of the Returns Software and Returns Service (together the 'Services').
You acknowledge that you have read and agree to be bound by the terms contained herein and our Privacy Policy (including any other terms and conditions referenced therein), all of which are expressly incorporated herein (as the context permits), (collectively the 'Agreement').
In consideration of the benefits you will be provided pursuant to, and arising as a result of, this Agreement, we will provide you with access to the Services.
We are only willing to supply Services on the terms set out in this Agreement and your continued receipt or use of the Services indicates your agreement to the Agreement.
The Agreement commences on the date you receive confirmation that a Service has been activated, or the date when a Service is activated if this is sooner ('Commencement Date') and continues for 3 months, or until terminated in accordance with this Agreement ('Initial Term').
This Agreement may be extended after the Initial Term for successive periods of 3 months each by mutual written agreement between the parties (collectively the Initial Term and all further terms being referred to as the 'Term').
Either party may terminate or suspend this Agreement (without any liability) immediately on giving notice to the other party, if: (a) the other party materially breaches this Agreement and the other party has failed to remedy such breach following the issue of a 30 day notice with an opportunity to rectify; or (b) the other party breaches a material provision of this Agreement and the breach is not capable of remedy; (c) the other party is placed into receivership, official management, liquidation, the other party enters into any arrangement with its creditors, or otherwise becomes insolvent within the meaning of Corporations Act 2001 (Cth) (or equivalent legislation); or (d) the other party becomes unable to pay its debts when due, or it ceases or threatens to cease to carry on business.
We may also terminate or suspend a particular Service. Termination of a particular Service shall not affect the continuation of this Agreement relevant to other Services then in force, which shall remain operational in all other respects.
On termination of this Agreement (wholly or partly): (a) the licences referred to in this Agreement immediately come to an end; and (b) you shall immediately destroy or return to us (at our option) all copies of the Software (if applicable) then in your possession, custody or control and, in the case of destruction, certify to us that you have done so.
Customer Support
Receiver Responsibilities
Lost and Damaged Goods
Use of Software
Acceptance
Software Support
Provision of Freight and Handling Services
Carriage of Articles
Refused or Undeliverable Articles
The Services and Software are provided without any guarantees, conditions or warranties as to accuracy, completeness, reliability or suitability and are provided on an 'as is where is' basis. We do not warrant that the Services and Software will be uninterrupted or error free, will meet your requirements, nor will they be free from external intruders or viruses. Any timeframes or dates in this Agreement are provided as a guide or estimate only (and are not binding). Without limiting the foregoing, we will not be liable for any damage, loss, cost or expense arising in relation to any of the following (as the context permits): (a) an event, act or omission prior to delivery of the Articles by you (where you are responsible for delivering); (b) an event, act or omission after collection of the Articles by, or delivery to, the Customer or you (as the context permits); or (c) lost Articles where there is no proof of delivery to us (or a ParcelPoint Agent). No representation or warranty is given by us that all faults will be fixed or will be fixed within a specified period of time.
To extent permitted by law, we, our agents, and each of their directors, employees and representatives, hereby expressly exclude: (a) all conditions, warranties and other terms which might otherwise be implied or imposed by custom, statute, common law or equity; and (b) any liability arising directly or indirectly under or in any way connected with this Agreement or its performance or non-performance (and whether arising under any statute, in tort (for negligence or otherwise), or on any other basis in law or equity) for any indirect or consequential loss or damage incurred by you, your customers, Recipients or any other end user in connection with the Services or Software, or use of the Services or Software, including, without limitation, any liability for loss of income or revenue; loss or interruption of business; loss of profits; loss of anticipated savings or benefits; loss of or damage or corruption to data; loss of goodwill; loss of or damage to reputation; loss of capital; loss of customers; wasted management; downtime costs; and for any other loss or damage of any kind, however arising, even if foreseeable.
Notwithstanding anything else, to extent permitted by law of relevant jurisdiction (and in Australia, the Competition and Consumer Act 2010 (Cth)) and subject to the next paragraph in this clause, our liability is limited in our sole discretion to: (a) in the case of services - the supplying of the services again or the payment of the cost of supplying the services again; or (b) in the case of goods - the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or acquiring equivalent goods, or the payment of the cost of repairing the goods. You acknowledge that we have no responsibility for any damage or loss to the items or contents contained in an Article and you are solely responsible for the items or contents in an Article and we shall not be held liable or accountable for the items or contents in an Article.
Notwithstanding anything else and without limiting foregoing, in no event shall our maximum aggregate liability, in respect of the Services or Software, or under or in any way connected with this Agreement, exceed: (a) insofar as liability relates to an Article - AUD$100 per Article that is the subject of the claim, or the cost price of the goods contained within the Article (whichever is the lesser); or (b) in all other circumstances – AUD $1,000. You shall indemnify us, our agents, and each of their directors, employees and representatives from and against all claims, damages, liabilities or costs (including legal costs) arising from, or directly or indirectly related to, use of Services or Software by you, the Recipient, or anyone else, or otherwise as a result of this Agreement, or an act or omission of you or your agents, sub-contractors or employees.
Notwithstanding anything else, we will not be liable for loss or damage arising from, or caused or contributed by: (a) the injury, illness or death of any person or damage to property; or (b) fragile items, glassware, dangerous or flammable items, non-working goods (such as faulty electronics), any other items prohibited by this Agreement or the Terms of Prohibition (including those items prohibited by the ParcelPoint Dimension Requirements), whether or not we have inspected the item.
All the rights, immunities and limitations of liability in this Agreement shall continue to have their full force and effect in all circumstances notwithstanding any breach by us of any terms contained herein.
We shall be discharged from any and all liability whatsoever unless a suit is brought within 6 months of the provision of the Services, delivery of the Article, or when the Services should have been provided, or when the Article should have been delivered (as the context permits).
You acknowledge that the Services are commercial in nature and constitute a business to business relationship between us and you.
Notwithstanding anything else and subject to any requirements at law, we do not warrant that use of the Services will meet your requirements or anyone else’s requirements.
Notwithstanding anything else, we retain all Intellectual Property Rights: (a) in the Software, together with computer programmes, computer programming method, code, interfaces, material, tools, applications, documents, presentations, specifications, data, know-how, processes, customer data (such as browsing, ordering and purchasing data and customer analytics), whether any of the foregoing existing now or at any time in the future, and anything else generated, created or developed, whether as improvements or otherwise, in course of providing (directly or indirectly) the Services or Software; and (b) existing prior to the commencement of the Services (including, without limitation, our trade mark, logo and Software).
You acknowledge that the Services may include third party software, open source software or third party intellectual property rights (‘Third Party IP’). Any rights you may have to access Third Party IP shall be limited to extent of our ability to pass on such rights to you.
In relation to any data, content, information or material provided by you (or on your behalf) to us, you warrant that: (a) they will not infringe the rights of any third party nor contravene any law or industry code; and (b) you are authorised to provide them to us.
Save as required by law, you shall not disclose any confidential information relating to us or our affiliates, which you obtain during or arising out of this Agreement, the Services or Software, to anyone (except your employees on an as need basis for the purposes of this Agreement and only during the Term).
You shall procure that anyone else receiving benefit of the Services, whether your employees or otherwise, complies with terms of this clause as if they were a party to this Agreement.
We have the right to promote you as our partner (or similar) in marketing and promotional materials (including websites and our returns portal) and you hereby grant us a royalty-free licence to use your name, logo and trade mark for these purposes. The content of any media releases relating to this Agreement or our relationship shall be subject to the prior written consent of the parties (acting reasonably).
You should keep full back up copies of your data and your Customers’ data.
This Agreement, and the documents referred to therein, contain the entire understanding between the parties as to its subject matter and supersedes and excludes all prior and other discussions, specifications, and representations relating to Services, including, but not limited to, those relating to performance or results that ought be expected from using Services. Notwithstanding, you shall also be bound by any of our policies or guidelines, as updated from time to time.
This Agreement does not preclude or limit in any way our right to provide services of any kind or nature whatsoever to any person or entity we in our sole discretion deem appropriate or develop, for ourselves or others, materials that are the same as, or similar to, the Software.
You must: (a) cooperate with us, including, but not limited to, providing us with timely access to data, information and personnel; (b) promptly report faults to us; (c) comply with all applicable laws, regulations and industry standards with respect to your activities and obligations; (d) comply with all of our reasonable directions and guidelines advised from time to time; and (e) carry out your responsibilities in a timely manner. You acknowledge that the ability of us to provide the Services is dependent upon your full, effective and timely co-operation and decisions (which you agree to provide).
We shall not be liable for any delays resulting from your failure to fulfil any of your obligations, or otherwise arising from an act or omission of you or your Customers or Recipients. We reserve the right to invoice you for any additional expenses reasonably incurred by us as a result of such delays.
We shall not be responsible, nor have any liability, for any delay, suspension or failure arising out of any circumstances outside of our reasonable control, including, but not limited to, acts of God, governmental actions, labour difficulty, strike, war, terrorism, fire, explosion, flood, storm, an act or omission of a third party, inability to obtain any materials, default or failure of performance provided by suppliers, subcontractors or others, postal or delivery delays, interruption of transportation, internet interruption or virus, breakdown, disruption or failure of software, hardware or communication network, loss or damage to any Article (and its contents) resulting from deterioration, dampness of atmosphere, extremes of temperature, ordinary wear and tear, or that which occurred or arose prior to or after the time when the Article is in our possession. For the avoidance of doubt, nothing in this clause shall excuse you from any payment obligations under this Agreement.
At all times during the Term, you must maintain insurance which is suitable and sufficient including: (a) product liability insurance for an amount of AUD$1million for any one claim and AUD$10 million in annual aggregation; and (b) any insurance that you are required by law to maintain.
This Agreement can only be varied by written agreement of the parties, provided that we may amend same, at any time, by notifying you, or by posting the amended terms on our website which you acknowledge shall constitute sufficient notice thereto and, in this respect, we encourage you to revisit these terms on our website on a regular basis. Your continued use of the relevant Service after the date of such change will constitute your acceptance of such update.
A waiver of any right is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
You shall not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations.
Nothing is intended to, or shall operate to, create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way.
This Agreement and any dispute or claim arising out of or in connection with same shall be governed by and construed in accordance with the laws of New South Wales, Australia and the parties submit to the exclusive jurisdiction of that State.