MyDeal and Big W Market – Seller Marketplace Agreement

Important Information about this Seller Marketplace Agreement

This page sets out the terms and conditions that govern your use of the MyDeal and BIG W marketplaces. The Seller Marketplace Agreement is important and you should read it in full. But there are some specific terms we wanted to make you are aware of:

  • You are responsible for your Products and terms of sale you set for them. We do not control and are not responsible for the actions of customers (i.e. Users). You release us from certain claims under clause 6.4 relating to terms of sale you set for your Products and acts or omissions of customers.
  • You also agree to indemnify us under clause 10 in respect of certain kinds of loss that you might cause us through your use of the Sites.
  • To the extent permitted by law, we limit and cap our liability in clause 11 under this Seller Marketplace Agreement.
  • You acknowledge in clause 8.3 that the Sites may be unavailable from time to time due to technical issues or maintenance and that we don’t provide uptime guarantees in relation to the Sites.

SELLER MARKETPLACE AGREEMENT

THESE TERMS AND CONDITIONS APPLY TO SELLERS ON: (1) ‘MYDEAL.COM.AU’ AND ANY ASSOCIATED MOBILE APPLICATION (TOGETHER THE “MYDEAL SITE”), WHICH ARE OPERATED BY E-COM (AUS) PTY LTD ABN 60 150 104 715 (“MYDEAL”); AND/OR (2) ‘BIGW.COM.AU’ AND ANY ASSOCIATED MOBILE APPLICATION (TOGETHER THE “BIG W SITE”) WHICH ARE OPERATED BY WOOLWORTHS GROUP LIMITED ABN 88 000 014 675 TRADING AS BIG W (“BIG W MARKET”), BOTH OF WHICH PROVIDE ONLINE PLATFORMS WHERE SELLERS CAN LIST AND SELL ONLY THOSE GOODS APPROVED BY US (“PRODUCTS”) TO END USER CUSTOMERS (“USERS”) OF THE MYDEAL SITE AND THE BIG W SITE (“SITE” OR “SITES”, AS APPLICABLE).

PLEASE READ THE FOLLOWING TERMS & CONDITIONS (“SELLER MARKETPLACE AGREEMENT”) CAREFULLY BEFORE USING OUR SERVICES. THESE TERMS & CONDITIONS, OUR PLATFORM POLICIES, ANY SELLER APPLICATION FORM AGREED BETWEEN THE PARTIES, THE SLA (DEFINED BELOW), AND ANY FEE SCHEDULE PROVIDED TO YOU THAT INCLUDES THE CHARGES TO BE PAID BY YOU UNDER THIS SELLER MARKETPLACE AGREEMENT (“FEE SCHEDULE”), FORMS THE WHOLE OF THE AGREEMENT BETWEEN MYDEAL AND/OR BIG W MARKET (“US, OUR, WE”) AND EACH SELLER (“SELLER”, “YOU, YOUR”).

YOU, AS A SELLER, ELECT TO USE OUR PLATFORM TO LIST, PROMOTE AND SELL YOUR PRODUCTS ON THE SITES ON THE BASIS OF THIS SELLER MARKETPLACE AGREEMENT AND BY PROMOTING OR SELLING YOUR PRODUCTS ON OUR SITES, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTOOD THIS SELLER MARKETPLACE AGREEMENT AND THAT YOU ARE BOUND BY THEM. IF YOU DO NOT AGREE, YOU MUST CEASE ALL USE OF THE SITES.

WE MAY CHANGE THIS SELLER MARKETPLACE AGREEMENT FROM TIME TO TIME BY NOTICE IN ACCORDANCE WITH CLAUSE 21. ANY UPDATED OR AMENDED SELLER MARKETPLACE AGREEMENT WILL APPLY TO YOUR USE OF THE SITES ONCE THE APPLICABLE NOTICE PERIOD HAS ELAPSED. IT IS YOUR RESPONSIBILITY TO READ AND UNDERSTAND THIS SELLER MARKETPLACE AGREEMENT, AND TO REVIEW ANY UPDATED VERSION OF THIS SELLER MARKETPLACE AGREEMENT WHEN THEY BECOME AVAILABLE. IF YOU DO NOT AGREE TO AN UPDATED VERSION OF THIS SELLER MARKETPLACE AGREEMENT THEN YOUR SOLE REMEDY IS TO TERMINATE YOUR ACCOUNT AND CEASE LISTING YOUR PRODUCTS FOR SALE ON THE SITES.

  1. SELLER REPRESENTATIONS

    1.1 You represent and warrant to us that:

    1. you have the power and authority to enter into this agreement with us and a User with respect to any Product sold or offered by you on the Sites;
    2. if you enter into this agreement as an agent for another party, you are authorised to act for your principal in the manner contemplated by this Seller Marketplace Agreement, and your authority has not been withdrawn or revoked;
    3. if you are a trustee, you enter into this agreement personally and in your capacity as trustee, you have the power to execute this agreement on behalf of the relevant trust (that you have named in the Seller Application Form or have otherwise provided us the name of), you have the power to perform your obligations under this agreement, and the details you provide to us identifying the trustee and beneficial owners of the trust are accurate;
    4. you have all the permits, licences, certificates and accreditation necessary to deliver and supply the Products in accordance with this agreement;
    5. in entering into, and performing your obligations under, this agreement you are not, and will not be, in breach of any applicable laws or any obligation owed to another person;
    6. you have notified us of any pending or threatened litigation, arbitration, investigation, inquiry or proceeding in which you are involved that you are, or should reasonably be aware of, that will or may have an adverse effect on:
      1. your business affairs;
      2. our reputation; or
      3. the performance of any of your obligations under this Agreement, including the provision of the applicable Products to us.

    1.2 you will use the Sites in accordance with this Seller Marketplace Agreement.

  2. OUR RELATIONSHIP

    2.1 We provide a platform whereby you may list and advertise Products for sale to Users on our Sites. Users may order and purchase those Products from you, as a Seller. Users do not purchase any Products from us directly and we simply acts as a limited agent for you and the User, for the following purposes only:

    1. facilitating the purchase of Products from you by Users;
    2. collecting payment from Users for purchases which they make;
    3. paying you your Seller Fees (as described below);
    4. providing the Support Services (as described below) in respect of issues arising between you and Users, in relation to the supply of Products.

  3. ACCOUNTS AND APPLICATIONS

    3.1 You agree that in order to offer Products for sale on the Sites, you must successfully apply to register to become a Seller and create an account with us, which we will make accessible to you via the functionality on our Sites (“Account”).

    3.2 At the time you apply to become a Seller, you must complete a seller application form containing the details of the Products that will be offered for sale on the Sites, and certain other information we may request from time to time on the form (“Seller Application Form”). Once you submit a Seller Application Form to us, we may:

    1. request further information from you;
    2. accept or reject an application to become a Seller and prohibit you from creating an Account on the Sites; and
    3. determine on which of the Sites you can be a Seller (either the MyDeal Site and/or BIG W Market Site),

    in our discretion, which we will typically determine based on:

    1. whether or not we believe your Products, policies, procedures, customer support and fulfilment capabilities will meet the requirements of this Seller Marketplace Agreement, the SLA, and our Platform Policies;
    2. whether you have previously been a Seller with us and had your Account terminated by us;
    3. if we believe you present a payment, fraud or other risk to us based on a credit history or business due diligence check; or
    4. whether we believe your Products or Seller profile meet our brand, reputational, and commercial objectives.

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

    3.4 At any time, we may ask any Seller (including any person who has applied to become a Seller), to provide us with information to demonstrate the Seller or their Products comply with this Seller Marketplace Agreement, our Platform Policies, or any applicable legal or regulatory requirements. We may use this information (or the fact a Seller has not provided this information) to reject an application to become a Seller, remove any Product or Product listing from our Sites, or suspend or terminate a Seller’s Account and our agreement with the Seller if the Seller is in breach of this agreement.

    3.5 You must keep your Seller account user credentials secure. You will be responsible for all usage of your Account and the use of your Account by others (including your employees, officers or agents), including 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.

    3.6 During the application process, we will confirm to you our commission which we will deduct from all sales which you make through the Sites (“Commission”). Subject to clause 21 we may also update our Commission by written notice to you from time to time. Any updated Commission will only apply to new orders of your Products after the applicable Notice Period has elapsed.

  4. LISTINGS

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

    1. your name, address and contact details;
    2. the total price payable by the Users for the Product(s), including all delivery costs and charges (“Sale Price”);
    3. the terms of your Seller Terms (as defined below);
    4. details of any warranty or support terms applicable to a Product; and
    5. any other relevant information requested by us or required in order to accurately or legally represent and describe the Products.

    4.2 We rely on information provided to us by each Seller in connection with the Products, and each Seller warrants that any information provided by it is accurate, current, complete, correct and complies with all applicable laws.

    4.3 You are responsible for ensuring there are no mistakes or misrepresentations made by you in connection with the Products or contained in a Seller Application Form.

    4.4 We may remove any Products, or place restrictions or limitations on the Products or categories of Products that we allow Sellers to list and Sell on our Sites based on information Sellers provide (or do not provide) under clause 3.4. You also agree that we may not approve, or may remove or suspend the listing of any Product listing from the Sites where we believe that Product:

    1. does not comply with this Seller Marketplace Agreement or our Platform Policies;
    2. may not comply with any applicable laws or regulatory requirements;
    3. may expose us to liability or claims from a third party; or
    4. may raise brand and/or reputational risks for Woolworths Group Limited ABN 88 000 014 675 and/or its “related bodies corporate” (as defined in the Corporations Act 2001 (Cth)) (“Woolworths Group”) if offered for sale on the Site(s).

  5. PRODUCT RANGE AND USE OF SELLER CONTENT (APPLICABLE TO THE BIG W MARKET SITE ONLY)

    5.1 In respect of the BIG W Market Site, we acquire from you the “Seller Content” (as defined in clause 16.3 below) on condition that, without BIG W Market’s prior approval:

    1. you will not supply to any customer on the BIG W Market Site:
      1. any product that is offered or sold by Woolworths Group Limited trading as “BIG W” (in-store and/or online); and/or
      2. any product that is offered or sold, or proposed to be offered or sold, by another seller on the BIG W Market Site; and
    2. you acknowledge that we may reject, remove or suspend any product offered or sold to customers on the BIG W Market Site that does not comply with condition (a) of this clause 5.1 above.

    5.2 We will use reasonable endeavours to notify you if your Products are removed or suspended from being listed on the BIG W Market Site under clause 5.1(b).

  6. SELLER TERMS

    6.1 You may specify the complete terms of the sale of your Products (“Seller Terms”) on your Seller profile page or on the listing page for each of the Products that you offer for sale on the Sites. Your Seller Terms must include the following minimum terms of supply (which, in any event, are deemed to form part of your Seller Terms):

    1. 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;
    2. supply of the Products will occur after:
      1. you have accepted the relevant order from the User; and
      2. we have received payment of the Sale Price in full from our User(s); and
      3. title in the Products will pass to the User(s) on delivery of the Products to them.

    6.2 The Seller Terms must be consistent with the terms of this Seller Marketplace Agreement, our Platform Policies and the User agreement entered into between us and our Users (which may be obtained from the Sites), and include:

    1. any special conditions, limitations, restrictions or other terms or conditions that apply to the purchase of a Product;
    2. the method of delivery of the Products;
    3. details of any delivery charges or how these will be notified to Users; and
    4. details of any delivery charges or how these will be notified to Users; and
    5. the Seller’s refunds, returns and exchanges policies and procedures (which are at all times subject to clauses 6.1(a), 7.13 and 7.14).

    6.3 We are not a party to the Seller Terms and we are not responsible for either party’s performance of their obligations under that agreement. In facilitating the sale of your Products on the Sites, however, we may take such actions as are necessary to give effect to your Seller Terms in accordance with this Seller Marketplace Agreement.

    6.4 You agree to release and forever discharge MyDeal and Big W Market from any and all claims, actions, demands or proceedings, which you may make, institute or claim, in relation to:

    1. your Seller Terms, and all matters relating to the Seller Terms;
    2. any act or omission of any User;
    3. any Products supplied by you under the Seller Terms; and
    4. any Products supplied by you under the Seller Terms; and
    5. the performance of the Seller Terms, or failure to perform any obligation under the Seller Terms, by you or a User.

    6.5 You otherwise agree that any Seller Terms entered into via the Sites or otherwise in respect of Products must not conflict with either your obligations or the User’s obligations to us.

  7. ORDERS AND PAYMENT

    7.1 When an order for a Product by a User is accepted by a Seller via the Sites, 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 this Seller Marketplace Agreement to the “Seller Terms” will include the binding agreement reached between you and the User on the basis of those terms).

    7.2 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 9.1(b) of this Seller Marketplace Agreement). If you reject an order, then the Sale Price paid by the User in respect of that order will be refunded to them.

    7.3 The User will select Products they wish to purchase via the Sites, which may include orders from multiple Sellers. When the User commits to purchase those Products, they will make payment of the total amount to either MyDeal or Big W Market on the applicable Site (“Total Purchase Amount”). The Total Purchase Amount shall include all Sale Prices of all Products purchased at that time by the User, including those purchased from the Seller. You agree that the Total Purchase Amount, once paid to us, is the property of MyDeal (for sales that occur its Site), or BIG W Market (for sales that occur on its Site), and that you have no claim to the Total Purchase Amount other than in respect of any Seller Fee payable in accordance with this Seller Marketplace Agreement.

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

    1. via third-party payment platform(s) (including, without limitation, PayPal, WPay and ZipPay) or any other means of payment provided by MyDeal or BIG W Market through the Sites from time to time; and
    2. 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.

    7.5 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 our written prior consent.

    7.6 We 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.

    7.7 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 ordered by a User have been dispatched.

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

    1. our Commission;
    2. any transaction fee payable to MyDeal or BIG W Market as described in a Seller Application Form, as updated from time to time in accordance with clause 21; and
    3. any applicable third-party fees or charges as notified to a Seller by MyDeal or BIG W Market in writing from time to time in accordance with clause 21.

    (collectively, the “Charges”).

    7.9 We 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 7.7 and the total amount payable to the Seller will be all amounts of the accrued Seller Fee, less:

    1. refunds paid or payable by MyDeal or BIG W Market on behalf of a Seller;
    2. refund administration fees payable to MyDeal or BIG W Market as described in a Seller Application Form or that we have notified to you in accordance with clause 21;
    3. credit card charge backs or amounts declined by a payment provider to MyDeal or BIG W Market in relation to a sale of a Seller’s Products;
    4. sales of Products which a Seller has indicated as being dispatched (thereby triggering an accrual of the Seller Fee under clause 7.7), but which in fact have not been dispatched;
    5. any other amount which a Seller owes to MyDeal or BIG W Market under this Seller Marketplace Agreement.

    7.10 MyDeal or BIG W Market can issue recipient created tax invoices (“RCTI”) to the Seller in respect to the sale of Products on the Sites. The RCTI will be subject to the RCTI agreement contained in the RCTI. Unless expressly stated otherwise, all Commissions and Charges (including our Commission, and any other applicable fees and charges) exclude GST where applicable and the Seller must pay to us the GST amount in addition to the GST exclusive amount of supplies made under these terms and conditions.

    7.11 We may modify the Charges which apply at any time by notice to the Seller in accordance with clause 21. If the Seller does not wish to accept the modified Charges, the Seller may terminate this Seller Marketplace Agreement in accordance with clause 21.

    7.12 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 us or a third-party payment platform or service provider from time to time.

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

    7.14 Users may from time to time escalate a dispute or complaint about a Seller order or Product to us, and you agree that we may, acting reasonably and in accordance with our Platform Policies, require that the Seller pay a refund of the full Sale Price, or part thereof, or provide any other remedy they may be entitled to under the Australian Consumer Law to a User where:

    1. this Seller Marketplace Agreement specifies that a refund must be paid;
    2. our agreements with its payment providers require a refund to be paid;
    3. we reasonably consider that a refund is required to be provided by law;
    4. you have accepted an order but are unable to fulfil the order within a reasonable period after it is placed;
    5. the User has pursued or obtained a chargeback against MyDeal or BIG W Market from its credit card provider;
    6. we reasonably consider that the Seller has breached the Seller Terms; or
    7. we reasonably consider that the Seller has breached our applicable Platform Policies or the SLA.

    7.15 A refund may be paid:

    1. by us on behalf of the Seller, and then by the Seller reimbursing MyDeal or BIG W Market for the same amount, or by MyDeal or BIG W Market, deducting that amount from any subsequent Seller Fees; or
    2. with MyDeal’s or BIG W Market’s prior consent, by the Seller directly to the User.

  8. LICENCE AND RESTRICTIONS ON USE

    8.1 We grant you, as a Seller, a limited, non-exclusive, non-transferable, revocable, royalty-free licence to use the Sites in accordance with this Seller Marketplace Agreement subject to the restrictions set out at clauses 8.2and 8.3, and compliance with the Seller obligations at clause 9.

    8.2 Sellers agree not to:

    1. interrupt or attempt to interrupt the operation of the Sites in any way, or use the Sites in a manner that adversely affects the availability of its resources to other Sellers or Users;
    2. use the Sites for any illegal purpose or in any manner that is inconsistent with this Seller Marketplace Agreement;
    3. 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 Sites (other than the Seller’s content published on the Sites in accordance with this Seller Marketplace Agreement);
    4. supply any content that: (i) would cause you or MyDeal or BIG W Market 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.
    5. contact Users or encourage Users to contact you outside the official MyDeal Site or BIG W Market Site platform communication channels.
    6. supply Users with your direct contact details including, but not limited to, telephone numbers, email addresses and web addresses.
    7. facilitate or attempt to facilitate purchases of Products with Users off the Sites.

    8.3 By using the Sites, you acknowledge and agree that:

    1. We may suspend or remove any Product in accordance with clause 4.4, or remove or change any Product offer or other information on the Sites if, in our reasonable opinion, such Product or information has been included in breach of this agreement or applicable laws;
    2. you will only offer Products for sale for which you have sufficient stock to fulfil orders;
    3. you will advise Users when Products for which an order has been made have become unavailable and, in such circumstances, advise us such that we can provide a refund to the User if requested;
    4. from time to time, the Sites may be unavailable for maintenance and/or updates, or due to unexpected technical issues;
    5. we have provided no uptime guarantees in relation to the Sites; and
    6. we do not guarantee that you will sell any minimum amount of Products to Users via the Sites.

  9. SELLER OBLIGATIONS

    9.1 The Seller agrees, represents and warrants that:

    1. Products will be supplied at the Sale Price on the terms and conditions of the Seller Terms;
    2. Sellers must 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 this Seller Marketplace Agreement, it will also become bound by the SLA. The SLA may be amended at any time by MyDeal and/or BIG W Market in accordance with clause 21. If the Seller does not agree to the amended SLA then the Seller may terminate this Seller Marketplace Agreement in accordance with clause 21;
    3. the Seller will comply with all of our applicable Platform Policies.
    4. Products and the terms of sale relating to a Product as contained in the Seller Terms comply with all applicable laws, regulations and codes;
    5. the conditions, warranties, guarantees and representations given by the Seller with respect to a Product comply with the Competition and Consumer Act 2010, and all other consumer protection laws;
    6. the Seller will comply with the Competition and Consumer Act 2010, all other consumer protection laws and all other applicable laws in connection with the sale of its Products via the Sites;
    7. any descriptions of a Product provided by a Seller are true and not misleading and the Product is fully and correctly described, and will be provided to the User on the same basis as advertised;
    8. any environmental and/or sustainability claims provided by a Seller are true and not misleading;
    9. a Product complies with any relevant safety standards and no interim or permanent ban has been made with respect to a Product, and there is no product recall in effect in relation to any Product;
    10. a Product does not infringe the intellectual property rights of any person;
    11. the Seller has authority and the legal right to sell a Product in the Australian market and the Seller will furnish such proof at our request;
    12. all conditions of availability or eligibility for purchase of a Product will be stated in the Seller Terms;
    13. it will not provide us with any false delivery tracking codes or enter any such codes into the Sites;
    14. it will not use the Sites to merely contact Users but otherwise sell its Products to such Users independently, outside of the Sites;
    15. it will provide us with all the necessary information in relation to the sale of a Product, including but not limited to, shipping tracking;
    16. it is responsible for the delivery and supply of the Products to Users in accordance with the terms of the Seller Terms;
    17. it will provide Users with Proof of Transaction for all orders as required pursuant to Section 100 of Australian Consumer Law.

  10. INDEMNIFICATION

    10.1 Sellers agree to defend, indemnify and hold harmless MyDeal, BIG W Market and our related bodies corporate (as defined in the Corporations Act 2001 (Cth)) and each of their respective directors, officers, employees and agents from and against all loss, cost, expense, damage, claims, demands, suits, actions (“Loss”) arising as a result of:

    1. your Seller Content and other information provided to us under this Seller Marketplace Agreement being misleading, inaccurate or infringing any person’s rights (including in respect of intellectual property rights); or
    2. breach of any applicable law, regulation, product safety or labelling requirements or mandatory safety standards in connection with the sale of your Products on the Sites;
    3. breach of any terms and conditions of our payment providers (including card schemes) which are caused by a wrongful act of the Seller; and
    4. any death or injury to a person, or any loss to real or personal property caused by your Products,

    solely to the extent such Loss is caused by an act or omission of the Seller or its representatives.

    10.2 The Seller’s liability under the indemnity in clause 10.1 will be reduced to the extent that the Loss is caused by an act or omission of MyDeal or BIG W Market or its representatives.

  11. LIABILITY

    11.1 To the maximum extent permitted by law, we provide the Sites on an “as is” basis and disclaim and exclude any warranty, guarantee, or representation in connection with the Sites or any Products offered for sale on the Sites, including (but not limited to) a representation that:

    1. a Product on the Sites is available for purchase by a User;
    2. we endorse or recommend a Product on the Sites;
    3. we endorse or recommend a Seller or User on the Sites;
    4. the Sites are free from defects or disruption or will be continuously available or accessible; or
    5. the Sites are suitable or fit for use for any purpose or are of merchantable quality, or do not infringe any relevant law, rule or regulation or any other right of a third party.

    11.2 Subject to clause 11.3, MyDeal and BIG W Market exclude all consequential and indirect loss suffered or incurred by a Seller, a User or any third party in connection with this Seller Marketplace Agreement, the Sites, or the Seller Terms.

    11.3 Nothing in this Seller Marketplace Agreement 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 this Seller Marketplace Agreement (or the Sites) then, to the maximum extent possible, we limit our liability in respect of any claim under that law to, at our election:

    1. in the case of goods, any one or more of the following:
      1. the replacement of the goods or the supply of equivalent goods;
      2. the repair of the goods;
      3. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
      4. the payment of the cost of having the goods repaired; and
    2. in the case of services:
      1. the supplying of the services again; or
      2. the payment of the cost of having the services supplied again.

  12. TERMINATION

    12.1 Either party may terminate this Seller Marketplace Agreement and close the Seller Account at any time on 30 days’ written notice to the other party.

    12.2 Notwithstanding our right to remove any Product listing from the Sites in accordance with clause 4.4, we may terminate or suspend your Seller Account or terminate this Seller Marketplace Agreement by notice to you where:

    1. you have not yet listed a Product on the Sites;
    2. you have breached a material provision in this Seller Marketplace Agreement that is not capable of being remedied, or if capable of being remedied, has not been remedied by you within 10 business days of us notifying you;
    3. a Seller has continually failed to comply with our Platform Policies or with their obligations set out in the SLA; or
    4. if in our reasonable opinion we believe the promotion of a Product on the Sites or association with the Seller is likely to impair the goodwill or reputation of MyDeal, BIG W Market or their business, or is otherwise prejudicial to MyDeal or BIG W Market, or may place MyDeal or BIG W Market in breach of any law, or obligation it owes a third party.

    12.3 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 Sites which are reserved for registered Sellers or offer your Products for sale to Users on the Sites.

    12.4 On termination of this Seller Marketplace Agreement:

    1. unless otherwise instructed by either BIG W Market or MyDeal, you will continue to supply all orders for Products which were placed by Users prior to termination;
    2. we will delete your Account and all of your Product listings from the Site, as well as your Seller profile page; and
    3. we will pay you the unpaid balance of all accrued Seller Fees within 60 days of termination.

    12.5 Clauses 7.13, 7.14, 9.1(d), 9.1(e), 10, 11, 15, 16, and 21 shall survive the termination of this Seller Marketplace Agreement.

  13. MARKETING POLICY

    13.1 You confirm that you agree to receive commercial electronic message and marketing communications (including emails, SMS and our newsletters) from any Woolworths Market Plus brand, including but not limited to MyDeal, BIG W Market, Everyday Market and Woolworths Market Plus, and from any other Woolworths Group brands (where we consider that their services, products or offers may be relevant to you). Subject to clause 16.2, you may however opt out of our commercial electronic messages (including our newsletters) at any time via the unsubscribe functionality contained therein.

    13.2 Opting out of receiving newsletters and other commercial electronic messages from a particular Woolworths Group brand will not withdraw your consent to receive messages from other Woolworths Group brands. Any consent you have provided to receive commercial electronic messages from other Woolworths Group brands are governed under separate terms and conditions that apply to those other Woolworths Group brands. If you would like to opt out of receiving messages from other Woolworths Group brands, please follow the opt out facilities in their communications or other opt out options set in their terms and conditions.

  14. USE OF THE SITES OUTSIDE AUSTRALIA

    14.1 You are responsible for determining if the Sites are suitable for use outside Australia. If Sellers choose to access the Sites from outside Australia, Sellers are responsible for compliance with foreign and local laws.

  15. PRIVACY

    15.1 Where personal information is provided to us, our Privacy Policies will govern how we use or disclose that information. The Privacy Policy of MyDeal can be found here http://www.mydeal.com.au/info/privacypolicy. The Privacy Policy of BIG W Market can be found here https://www.woolworthsgroup.com.au/au/en/privacy/policy-documents/privacy-policy.html and the Collection Notice can be found here https://www.bigw.com.au/your-rights-product-safety/collection-notice. You agree that we may use your personal information in accordance with our Privacy Policies and Collection Notices.

    15.2 For User information we share with Sellers or access through our Sites (including name, email address, shipping address or other personal information about users) (“User Information”), Sellers must:

    1. only use User Information solely for the purposes of fulfilling orders for Products made through the Sites and communicating with Users about those Products or Orders in accordance with this Seller Marketplace Agreement;
    2. comply with the requirements of the Privacy Act 1988 (Cth) as if it were regulated by this law as well as any other applicable law or regulation in relation to privacy of individuals, and the collection, storage, handling and disclosure of personal information;
    3. have in place appropriate technical and organisational security measures designed to protect any User Information from unauthorised access or disclosure; and
    4. immediately notify us of any complaint the Seller receives from a User or any other third party about any User Information.

    15.3 If you become aware of any actual or potential unauthorised access to, or loss or interference with, User Information (“Unauthorised Access”) you must:

    1. immediately notify us of the Unauthorised Access;
    2. cooperate with us and provide us with all necessary information to the extent necessary to determine the nature and extent of the Unauthorised Access;
    3. identify Users (if any) who may be affected by the Unauthorised Access, and comply with all requirements of the Privacy Act 1988 (Cth) in relation to notifying any affected Users, as well as any government or regulatory agencies in relation to that Unauthorised Access.

  16. INTELLECTUAL PROPERTY

    16.1 Everything on the Sites and all intellectual property rights therein is either owned by us or is licensed to us. Nothing in this Seller Marketplace Agreement affects the ownership of any intellectual property rights owned or licensed by a Seller, a User, MyDeal, BIG W Market or any other person.

    16.2 Unless expressly authorised under this Seller Marketplace Agreement or otherwise in writing by us, you cannot reproduce, adapt, modify, display, perform, distribute, decompile, disassemble or reverse engineer any material (or part thereof) from the Sites (including logos, trademarks, brand features and source code) that is the intellectual property of MyDeal or BIG W Market, or intellectual property that MyDeal or BIG W Market has permission to use.

    16.3 You grant MyDeal and BIG W Market an irrevocable royalty free global licence to use, copy, modify (subject to your prior written consent, not to be unreasonably withheld), re-format, display, publish or distribute the content and material provided by you in relation to your Products, the advertisement or sale of your Products, and you (as a seller) and/or your brands (together the “Seller Content”) to enable:

    1. us, our related bodies corporate, and our representatives to:
      1. reproduce and host Seller Content on the Sites;
      2. convert Seller Content into different formats or any different protocols for the purpose of displaying the Product on the Sites;
      3. create previews of the Seller Content and to make them available via the Sites;
      4. display the Seller Content in connection with the promotion and sale of our or a third party’s products (for example, where our or a third party’s offer for an equivalent product is displayed to Users on your listing);
      5. create advertising and promotional material incorporating the Seller Content for the purpose of displaying the Product on the Sites;
      6. create material incorporating the Seller Content for the purpose of advertising and promoting the Sites, any offers or promotions in connection with the Sites that we may introduce from time to time, or for any other purpose as otherwise agreed between the parties; and
      7. exercise our other rights and perform our other obligations under this Agreement.
    2. the Seller Content to be displayed on the Sites to Users;
    3. Users to view Seller Content hosted on the Sites;
    4. Users to rate and review the Products on the Sites, and for the ratings and reviews to be published online, subject to compliance with relevant laws;
    5. Users to rate and review you as a Seller on the Sites, and for the ratings and review to be published online; and
    6. us to permit any person to assist us to do any of the things referred to in paragraphs (a) to (e) above.

    16.4 Notwithstanding clause 16.3, we may edit, modify, delete, remove, or take down any content which we believe is in breach of this Seller Marketplace Agreement or any law or third-party rights (including intellectual property rights). We will use reasonable endeavours to notify you of any changes made under this clause 16.4.

    16.5 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 this Seller Marketplace Agreement will not breach any relevant law or the rights of any person (including rights of attribution or integrity or against false attribution).

  17. SUPPORT SERVICES

    17.1 Sellers acknowledge that MyDeal and BIG W Market are appointed by them to assist them with dealing with User queries generally in relation to Products, the Sites, or any other matter relating to this Seller Marketplace Agreement, or the Seller Terms (the “Support Services”).

  18. PROBLEMS WITH PRODUCTS

    18.1 If a problem arises with respect to the Products that you, as a Seller, offer for sale on the Sites, you are required to:

    1. liaise with relevant Users directly at first instance; and
    2. resolve any issues or disputes with respect to User in accordance with the requirements of the SLA.

    18.2 Subject to our Platform Policies, if you, as a Seller, are unable to resolve an issue or dispute with a User in accordance with the SLA, you must contact us via your Account or by requesting our assistance in a Zendesk ticket. We 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 returns or refunds, or sending the Products to third parties for assessment or repair (if required)).

    18.3 We will attempt to resolve disputes between Sellers and Users by agreement, but always subject to Sellers complying with this Seller Marketplace Agreement and our Platform Policies. We have 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.

  19. PLATFORM POLICIES

    19.1 We may from time to time and in accordance with clause 21 publish certain policies, rules and procedures in relation to your use of the Sites or dealings between Sellers and Users (“Platform Policies”). You agree to comply with these Platform Policies, including as updated or amended from time to time. If there is any conflict between the Platform Policies and this Seller Marketplace Agreement, then this Seller Marketplace Agreement will prevail.

  20. GST

    20.1 Interpretation

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

    20.2 Subdivision 153-B intermediary arrangement for MyDeal Site and BIG W Market Site Sellers

    1. Where the Seller makes a supply of Products through the MyDeal Site or BIG W Market Site 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 MyDeal and/or BIG W Market will make a genuine and continuing effort to facilitate the application of Subdivision 153-B of the Act to any such supply.
    2. MyDeal and/or BIG W Market will, on behalf of the Seller, do the following:
      1. make the supply of Products to the User; and
      2. facilitate the supply to the User (including by issuing invoices relating to, or receiving consideration for, such supplies).
    3. For the purposes of this sub-clause 20.2:
      1. MyDeal and/or BIG W Market will be treated as making the supply of Products to the User;
      2. the Seller will be treated as making corresponding supply of Products to MyDeal and BIG W Market;
      3. MyDeal, BIG W Market and the Seller warrant that they are registered for GST purposes. The Seller warrants that they will notify MyDeal and/or BIG W Market within 2 business days if it ceases to be registered for GST;
      4. MyDeal and/or BIG W Market will issue to the User tax invoices and adjustment notes relating to the supply of Products;
      5. the Seller will not issue to the User any tax invoices and adjustment notes relating to the supply of Products; and
      6. Clause 21.2 ceases to have effect if MyDeal and/or BIG W Market or the Seller ceases to be registered for GST and shall terminate from the effective date of the cancellation of the registration.

  21. UPDATES TO SELLER MARKETPLACE AGREEMENT

    21.1 We may update this Seller Marketplace Agreement (including changes to the Seller Fees) or publish or update any Platform Policies by giving you 30 days’ prior notice in writing (“Notice Period”).

    21.2 If you do not agree with the changes notified to you, you may terminate this Seller Marketplace Agreement by notifying us in writing or otherwise terminating your Account via the Sites during the Notice Period, provided that clause 12.4 will apply to any such termination. You may also terminate this Seller Marketplace Agreement at any time in accordance with clause 12.1.

    21.3 Any updates notified to you in accordance with this clause will take effect once the Notice Period has elapsed.

  22. NOVATION AND ASSIGNMENT

    22.1 We may novate, or otherwise transfer, our rights and obligations in respect of any part of this Seller Marketplace Agreement, or this Seller Marketplace Agreement as a whole, to another member of Woolworths Group on 30 days’ written notice to you. By continuing to list Products on the Sites, you are taken to agree to such novation or transfer.

    22.2 In addition to our right to novate this Seller Marketplace Agreement, we may partially or wholly assign or otherwise transfer our rights under this Seller Marketplace Agreement, without prior written notice to you, provided that the assignee or transferee is a member of Woolworths Group.

  23. MISCELLANEOUS

    23.1 This Seller Marketplace Agreement, when read together with the Platform Policies, each Seller Application Form agreed between the parties, the SLA and any applicable Fee Schedule, 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 this Seller Marketplace Agreement is held to be invalid by a court of competent jurisdiction, such invalidity shall not affect the enforceability of any other provisions contained in this Seller Marketplace Agreement and the remaining portion of this Seller Marketplace Agreement shall continue in full force and effect. The failure of either party to exercise any of its rights under this Seller Marketplace Agreement shall not be deemed a waiver or forfeiture of such rights or any other rights provided hereunder.

    23.2 This Seller Marketplace Agreement is governed by and in accordance with the laws of the State of Victoria (exclusive of its rules regarding conflicts of laws). The Seller, MyDeal and BIG W Market submit to the jurisdiction of the Courts of the State of Victoria and their Courts of Appeal in relation to this Seller Marketplace Agreement.

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