VENDOR / SELLER MARKETPLACE AGREEMENT
You acknowledge and agree that by registering for or using the Seller Portal and/or the iExport
Marketplace Program, you, as a Seller, expressly agree to be bound by the following terms and
conditions, as may be updated and amended by iExport Australia from time to time at its sole
discretion (“Agreement”). Any amendments to this Agreement shall become effective and binding on
the Seller as soon as the amendments have been published the Seller Portal and/or the iExport Site (as
applicable). This Agreement contains the terms and conditions that govern the Seller’s access to, and
use of, the Marketplace Program and is an agreement between the Seller and iExport Australia.
1.1. No provision shall be construed against or interpreted to the disadvantage of any Party by
reason of such Party having or being deemed to have structured or drafted such provision. The rule of
interpretation that an agreement will be interpreted against the Party responsible for the drafting and
any similar rules of interpretation shall not apply to this Agreement and the Parties waive any rights
they must rely on such rules.
1.2. Seller or Vendor refer to in iExport platforms as Australian farmers, producers, resellers, exporters who
will be listing their products in retails and bulk options to export overseas. We also refer to Seller or Vendor to
the export related service providers like shipping, freight, quality check, logistics etc. These sellers and vendors
can list their legal products and services only based on their membership that they have obtained from iExport.
Terms other than those defined within this Agreement will be given their plain English meaning, and those terms,
acronyms, and phrases known in the information and communications technology industry shall be interpreted
in accordance with their generally accepted meanings.
1.3. If any conflict exists between the provisions of this Agreement and any Annexures attached
hereto, the provisions of the Annexures shall prevail.
1.4. When any number of days is prescribed in this Agreement, it shall be reckoned to exclude the
first and to include the last day.
1.5. Any reference in this Agreement to legislation or subordinate legislation is to such legislation or
subordinate legislation at the date of signature hereof and as amended and/or reflected from time to
1.6. Words importing the singular shall include the plural, and vice versa, words importing the
masculine gender shall include the feminine and neuter genders, and vice versa, and words importing
natural persons shall include legal persons, and vice versa.
2.1. Unless the context indicates otherwise, the words and expressions set out below shall bear the
following meanings and cognate expressions shall bear corresponding meanings:
2.1.1. “Affiliate” means a wholly owned subsidiary of iExport Australia and/or iExport;
2.1.2. “Claim” or “Claims” shall mean any and all foreseeable or unforeseeable and alleged or actual
actions, causes of action (whether in tort, agreement, or strict liability, and whether in law, equity,
statutory or otherwise), claims, demands, lawsuits, legal proceedings, administrative or other
proceedings or litigation.
2.1.3. “Confidential Information” means all information communicated by a disclosing Party that
should reasonably be considered confidential under the circumstances, notwithstanding whether it
was identified as such at the time of disclosure, including, without limitation:
220.127.116.11. the terms of this Agreement (including all Annexures and policies referenced herein or attached
18.104.22.168. all trade prices are confidential unless selected to publish on the page
22.214.171.124. existing or contemplated services, designs, technology, processes, technical data, engineering,
techniques, methodologies and concepts and any information related thereto.
126.96.36.199. Financial Transaction Information, all Payment Card, Personal, Business Finance Data and all Tax Codes of
iExport Australia will not be saved in iExport platforms or databased. They will be the payment gateways used for membership
2.1.4. “Content” shall mean all information, content and images, including without limitation, the
product information, (i) provided or made available by Seller or its affiliates to iExport Australia or its
Affiliates or Service Providers for use in connection with the Marketplace Program and (ii) otherwise
made available by Seller or its affiliates to customers on the iExport Site (e.g., through Seller’s hosting of
such information, content or images);
2.1.5. “Customer” means a customer purchasing products through the iExport Site; These could be
overseas buyers, importers, agents, wholesalers and individual consumers from abroad.
2.1.6. “Effective Date” means the date of acceptance of this Agreement;
2.1.7. “Excluded Orders” means private promotions ordered only to all or a subset of Seller’s existing
customers by email or regular mail, and Public Promotions that a seller has indicated in writing that it
cannot support and an equivalent or promotion cannot be provided.
2.1.8. “Intellectual Property Right” means any patent, copyright, trademark, service mark, trade dress
(including any proprietary “look and feel”), trade name, logo, moral right, trade secret and any other
intellectual property right arising under any Law and all ancillary and related rights, including all rights
of registration and renewal and causes of action for violation, misappropriation or infringement of any
of the foregoing;
2.1.9. “Law” shall mean any law, ordinance, rule, regulation, order, license, permit, judgment, decision
or other requirement, now or hereafter in effect, of any governmental authority of competent
jurisdiction, including without limitation the Consumer Protection Act 68 of 2008 and relevant
Australian National Regulatory of Compulsory Specifications requirements;
2.1.10. “Losses” shall mean any and all damages (including, without limitation, direct, consequential,
economic, exemplary, future, incidental, indirect, noneconomic, past, special and punitive), sanctions,
settlement payments, disbursements, judgments, liability, losses (including lost income or profit), costs
or expenses of any nature whatsoever, whether accrued, absolute, contingent or otherwise, including,
without limitation, attorneys’ fees and costs (whether or not suit is brought);
2.1.11. “iExport Australia” means Dynamics Smart Systems Pty Ltd, registration number
ABN ACN, a private company duly registered in accordance with the Law of New South Wales of Australia, and shall include its Affiliates;
2.1.14. “iExport Site” means www.iExport.net.au and applicable applications;
2.1.15. “Marketplace Program” means the iExport Australia program;
Customer information obtained in connection with the Marketplace Program, and as may be published
on the iExport Site and/or Seller Portal from time to time;
2.1.17. “On-Time Shipping Standard” means the time specified for each order to be processed and
2.1.18. “Orders” means orders placed by a customer through the iExport Site for the purchase of
2.1.19. “Party” or “Parties” means, individually, iExport Australia or the Seller as the context requires
and, together, iExport Australia or the Seller;
2.1.20. “Payment Card” shall mean a debit or credit type card used for financial transactions;
2.1.21. “Payment Card Data” means any information located on a Payment Card, such as, but not
limited to, debit or credit card number, expiration date, pin number, cardholder name, or cardholder
2.1.22. “PII” means any information that can be used to identify an individual and/or information that
constitutes personal identifiable information.
2.1.23. “Products” means the products that the Seller desires to sell on the iExport Site, and approved by
iExport Australia, and as reflected on the Seller Portal;
2.1.24. “Product Information” means the product information that iExport Australia requires;
2.1.25. “Public Promotions” means any public promotions generally available to all users of the Seller
2.1.26. “Referral Fee” means the commission that iExport will retain from each sale of the Seller’s
Products made through the IExport Site;
2.1.27. “Referral Fee Percentage” means the commission, calculated as a percentage of Sales Proceeds
excluding VAT; Referral Fee Percentages vary depending on the assigned product category;
2.1.28. “Sales Proceeds” means the gross sales proceeds from the sale of the Products, including VAT
and excluding shipping;
2.1.29. “Seller” means third party vendors, distributors, wholesalers, retailers and any other
incorporated company wanting to sell approved product through the iExport site, and who have
registered on the Seller Portal and have agreed to the terms of this Agreement;
2.1.30. “Seller Customer Information” shall mean customer information in Seller’s possession that was
not received from iExport Australia as Transaction Information or in any other manner and was not
obtained or received by Seller in connection with this Agreement or Seller’s rights and obligations
under this Agreement;
2.1.31. “Seller Portal” shall mean the web based tool or other web services or interfaces, provided by
iExport Australia and/or iExport and/or a Service Provider that Seller can use to manage its settings,
Content and other information related to the Marketplace Program, and including all associated
product listing requirements;
2.1.32. “Seller Marks” means Seller’s name, trademarks, service marks and logos;
2.1.33. “Seller Share” shall mean the Sale Proceeds collected from the sale of the Sellers Products less
the Referral Fee earned by iExport Australia for such Products;
2.1.34. “Seller Site” means any website, other than the iExport Site, where a seller displays any
information related to the Seller or its products;
2.1.35. “Service Provider” means a third party that provides management software and services for the
2.1.36. “Service Level Agreement” means the service level agreement or SLA, that Sellers will be
required to adhere to in order to provide the required service levels to and on behalf of iExport;
2.1.37. “Transaction Information” means the Customer’s Order information, including but not limited to
the Customer’s name, email address, shipping address.
3. THIRD PARTY SERVICE PROVIDERS
3.1. Seller acknowledges and agrees that:
3.1.1. iExport may contract a Service Provider to provide management software and services for the
Marketplace Program; and
3.1.2. Seller may provide Content to iExport Australia using the software and/or services of a
4. LICENSE OF SELLER’S CONTENT
License for Content.
4.1. Seller hereby grants iExport Australia, its Alibates, and marketing partners, a nonexclusive,
royalty free, perpetual, irrevocable right and license to publish, use, reproduce, distribute, transmit,
display, modify, create derivative works of and otherwise commercially exploit all Content (excluding
the Seller Marks) in connection with the sale of products through the iExport Site and for the listing,
advertising, marketing and promotion of such products or the Marketplace Program, including
without limitation, through the iExport Site, third party websites, email, social media or any other
medium. Seller agrees that iExport Australia may permit users of the iExport Site to share and post
Content on their own social media outlets. License for Marks.
4.2. Seller hereby grants iExport Australia and its Alibates and marketing partners a
nonexclusive, royalty-free, non-transferable license to publish, use, reproduce, distribute, transmit and
display Seller’s Marks during the term in connection with the Marketplace Program.
5. PRODUCT INFORMATION AND OTHER CONTENT
Information for Products
5.1. Seller will use the Seller Portal to list all the required Content, Pricing and Available Inventory
per unique product. The Seller shall adhere to the minimum requirements as set out on Marketplace
Seller Portal. In addition the Seller will:
5.1.1. use commercially reasonable efforts to ensure the Seller Portal always has an accurate error free
available inventory count per product listed on the Seller Portal.
5.1.2. at least every hour update the Seller Portal with an error free updated inventory feed for only
those Products where inventory levels have changed since the last inventory feed provided for such
5.1.3. provide iExport Australia through the Seller Portal with a daily inventory feed for all Products;
5.1.4. provide iExport Australia with all Content requested by iExport Australia, including
without limitation, the Product information as set forth in the Seller Portal;
5.1.5. only provide Content for Products that fit into the categories or parameters as set forth in the
5.2. The Seller will be held solely responsible for the accuracy of its Pricing, available Inventory and
all Content for Products and will be obliged to honour any order placed by a Customer through the
iExport Site as a result of the Content provided. Excluded Products.
5.3. Seller will be restricted from selling any products already listed by iExport for sale in its physical
stores. If Seller is restricted from selling certain Products on the iExport Site due to supplier brand
restrictions or if Seller is not an authorized reseller for any Product, Seller will withhold such Products
from the assortment it provides iExport Australia. Provided that if Seller removes a Product from the
iExport Site due to brand restrictions or because Seller is not an authorized reseller it will promptly
notify iExport Australia in writing of such removal. Upon iExport Australia’s request, Seller will
provide iExport Australia with a list of all Products withheld from the Marketplace Program
(including why such Product is being withheld). Changes to Content.
5.4. iExport Australia will make commercially reasonable efforts to post updated Content
provided by Seller on a daily basis through its standard transmission process; provided that Seller
acknowledges that iExport Australia will impose freezes on Content updates from time to time in
connection with releases on the iExport Site.
6. PRODUCT AUTHENTICITY AND SAFETY
6.1. Seller will receive all Products sold through the Marketplace Program directly from the brand
owner or from an authorized supplier of the brand owner, and Seller must be an authorized reseller of
the Products. Seller will maintain adequate processes and procedures for conducting diligence to
ensure that Products are authentic, authorized for sale, and not stolen, counterfeit, illegal or
misbranded. Upon iExport Australia’s request, Seller will promptly provide iExport Australia with:
6.1.1. certificates of authenticity (or similar documentation) for Products; and
6.1.2. documentation (e.g. email verifications from the brand owner or supplier) showing that Seller is
permitted to sell specific brands or Products through the iExport Site and within the Australian Safety, Testing and Certification.
6.2. Seller will comply with, and ensure that all Products comply with, all product safety, testing and
certification requirements under applicable Law, and all other Law.
7. FEES AND PAYMENTS
7.1. iExport will earn a Referral Fee equal to a percentage of Sales Proceeds from each sale of Seller’s
Products through the iExport Site. The Referral Fee Percentages for Seller’s Products are specific to each
iExport category and are listed in the Seller Portal. The Referral Fee Percentages are subject to change at
any time, without prior notice to the Seller, and shall be effective as soon as the changes are reflected
on the Seller Portal.
7.2. An Order is deemed complete only once:
7.2.1. The Product has been delivered with a proof of delivery signed by the customer; and
7.2.2. The returns and/or cancellation period stipulated in the iExport Peace of Mind Policy has expired
7.3. iExport Australia will make payment of the Seller Share for Orders that meet the Deemed
Completion criteria on two set days of each month, namely the 15th and 30th of each month. When
these dates do not fall on business days, payment will be made on the next business day after such a
7.3.1. For the sake of clarity, Orders that meet the Deemed Completion criteria on or before the 14th
of a month will be paid on the last day of that month. Orders that meet the Deemed Completion
criteria after the 15th of a month (but before the last day of that month) will be paid on or before the
15th day of the following month.
7.4. At iExport Australia’s option, all payments to Seller’s bank account will be made by mean of
electronic funds transfer or similar method. If iExport Australia concludes that Seller’s actions and/or
performance in connection with this Agreement may result in customer disputes, chargebacks or other
claims, then iExport Australia may, in its sole discretion, delay initiating any remittances and
withhold any payments to be made or that are otherwise due to Seller under this Agreement for the
7.4.1. a period of ninety (90) days following the initial date of suspension; or
7.4.2. completion of any investigation(s) regarding Seller’s actions and/or performance in connection
with this Agreement.
7.5. The Seller expressly acknowledges and accepts that payment of the Seller Share by iExport
Marketplace shall at all times be subject to iExport Australia having received the corresponding
Sales Proceeds from iExport. iExport Australia shall have no liability to the Seller, and the Seller shall
have no claim against iExport Australia, for any failure by iExport Australia to make payment of
the Seller Share in circumstances where the iExport Australia has not received the corresponding
Sales Proceeds from iExport.
8. PURCHASE/ORDER PROCESSING, FULFILLMENT AND SHIPPING
Orders Status Update
8.1. Customers purchasing Products through the iExport Site will place Orders using the iExport Site
checkout and payment gateway. iExport will collect all proceeds from such transactions. iExport
Marketplace will make available on the Seller Portal all the Transaction Information that iExport
8.2. Sellers need to manage all Orders via the Seller Portal. The Seller Portal requires sellers to
update the Order status for the duration of the Order and delivery process.
8.3. Sellers will only receive Orders that have been paid for in full and accepted by iExport.
8.4. The Seller is obligated to update the Order status to “Accepted” (which means a confirmation by
the Seller that it has stock), via the Seller Portal within 2 (two) hours of receiving an Order during
8.5. The Seller is obligated to update the Order status to “Ready for Collection” (which means the
Order is picked, packed and ready for collection by the courier), via the Seller Portal within 48 (forty
eight) hours of receiving an Order, during business hours.
8.6. The Seller is obligated to update the Order status to “Out with Courier” (which means the Seller
has handed the packed Order to the courier for delivery), via the Seller Portal within 1 (one) hour of
handing the Order over, during business hours. Risk of Fraud, Loss, and Cancellation
8.7. iExport will bear the risk of credit card fraud occurring in connection with any Order.
8.8. The Seller shall bear the full risk in and to any valid cancellation of an Order by a Customer, and
expressly acknowledges that Customer’s may have additional rights against the Seller as a result of the
terms and conditions contained on the iExport Site (if any). Fulfillment of Orders
8.9. Once iExport Australia has transmitted an Order to Seller, Seller will, at its own expense, be
solely responsible for, and bear all liability for, processing and updating all relevant statuses on the
Seller Portal, including the accurate picking and packing of all applicable orders, including without
limitation, any ad hoc customer service requests from iExport Australia.
8.10. If Seller cannot fulfill the entire quantity of a purchase order line in an Order, then the Seller will
(prior to acceptance) reject that purchase order line through the “Pick Exception” status on the Seller
Portal, and thereafter fulfill all other lines in the Order and promptly notify iExport Australia of such
rejection. If the Order consists of one purchase order line and the Seller cannot fulfill the entire
quantity for, then the Seller will be expected to reject or cancel the entire Order and promptly notify
iExport Australia via email or the Seller Portal and will provide any additional information that may
be required by iExport Australia.
8.11. All packaging material needs to comply with the minimum packaging standards as set out in
the Seller Portal. Under no circumstances should packaged Orders contain any Seller marketing or
other materials that are not included as standard with regard to the specific Product being sold.
8.12. Timing of Order transmission:
8.12.1. The iExport Site will accept multiple different payment methods from Customers. The Seller
acknowledges that not all payment methods are processed by the relevant merchant bank within the
same day in which they were received, and as such the Seller may only receive notification of an Order
after the date of the Order.
8.12.2. The Seller accepts that it shall be obliged to honour all Orders based on the price and
availability available on the Seller Portal as of the date of Order, notwithstanding that the Seller may
have only been notified of the Order after the actual date of Order.
8.12.3. iExport will use all reasonable and commercially viable means to Endeavor to keep such delays
to a minimum.
8.13. Preferred Shipping Method (Recommended)
8.13.1. iExport undertakes to complete the shipping leg of an Order on the Sellers behalf. iExport will
make use of approved couriers to collect and distribute all Seller Orders.
8.13.2. Seller is obligated to use the “shipping” function prescribed in the Seller Portal and complete
the picking, packing, and waybill creation functions in order for the “Ready for Collection” status to be
8.13.3. Sellers are obligated to make available all facilities as are necessary in order for iExport approved
couriers to collect packaged Orders from a single Seller warehouse or collection point. The Seller
accepts that it shall be liable for any delays and/or Losses that may be assured by iExport or the iExport
Marketplace as a result of the Sellers failure in this regard.
8.13.4. For the sake of clarity, iExport’s obligations in terms of this clause 8.14 shall not apply to the
collection of any returns for unwanted or defective Products, which shall be the sole responsibility and
for the account of the Seller. The delivery will be done by the seller or vendor and all return of goods will be done
to the vendor/seller site/location. All the refund to the customer will be done by the Seller or vendor in case of any
cancellation or return of goods or services. iExport can still keep their service change to commission percentage should from
the sales as part of their effort in listing, marketing, and selling.
8.14. Alternative Shipping Method (not recommended)
8.14.1. The Seller may elect to handle its own shipping requirements as an alternative to 8.13 above,
and should the Seller select this option, the provisions of this clause 8.14 will apply.
8.14.2. Seller is responsible for properly specifying the shipping options for all Products through the
Seller Portal (including as may be requested by iExport Australia) and for properly handling all
returns at its own cost.
8.14.3. Seller will be responsible for shipping all Products purchased by Customers in accordance with
iExport Australia’s standard shipping practices. Seller will be responsible for all shipping charges and
for any costs or charges related to shipping related problems, including without limitation, damaged
or lost Products, late shipments or mis delivery.
8.15. Shipping Terms (Applicable to both Preferred and Alternative Shipping Methods)
8.15.1. Seller will ship each Product within the Onetime Shipping Standard after receipt of the
Transaction Information from iExport Australia. If Seller cannot meet the Antitime Ship Standard for
any Product, it will provide iExport Australia with email notification of such delay.
8.15.2. Seller will be fully liable for any fines, costs or expenses incurred by iExport Australia or by
iExport or by a third party resulting from any failure to satisfy the OneTime Ship Standard for any
Product. The Seller will indemnify and hold harmless iExport Australia and its Affiliates and their
officers, directors, employees and agents for any losses, liabilities, fines, costs or expenses (including
costs on an attorney and own client basis) resulting from such failure. Seller will be solely liable for all
costs related to any duplicate or inaccurate shipments based upon Seller’s acts or omissions.
8.16. iExport Australia will provide Seller with information on the status of Orders through the
Seller Portal. Seller will be solely responsible for reviewing and monitoring such information. Within 48
(forty eight) hours of receipt of the information, the Seller shall provide iExport Australia with
written notice of any discrepancies between the information provided and Seller’s fulfillment of any
Orders. Seller is solely responsible for monitoring and responding to information provided by iExport
Marketplace pursuant to this Agreement.
9. CANCELLATIONS, RETURNS AND REFUNDS
9.1. iExport and/or iExport Australia shall process all Customer requests for cancellations, returns,
refunds and/or customer service price adjustments. Seller will stop and/or cancel any Order if
requested by iExport Australia; provided that if Seller has transferred Products to a courier, Seller will
immediately notify iExport Australia and use commercially reasonable efforts to stop and or cancel
9.2. The Seller expressly acknowledges and agrees that it shall at all times be bound by, and agrees
to adhere to, the terms and conditions of the iExport Peace of Mind Policy as may be updated and
amended from time to time at the sole discretion of iExport. Refunds and Returns
9.3. iExport Australia retains the right to accept or reject all refund, return, and exchange
requests by Customers. iExport Australia will process all refunds, returns, and exchanges
immediately upon confirmation from the Seller, which confirmation shall be provided by the Seller
within 24 (twenty four) hours from receipt of a request from iExport Australia, failing which the
Seller will be deemed to have provided its confirmation.
9.4. Refunds, returns, and exchanges will be determined via the iExport Peace of Mind Policy. Seller
will be responsible for all exchanges and replacements, where applicable.
9.5. A Customer may return or cancel any Order for a Product sold through the iExport Site at any
time within, and in accordance with, the iExport Peace of Mind Policy. The Seller is obligated to accept
any return or cancellation that meets the return policy as stipulated in the iExport Peace of Mind Policy
or on the iExport Site. iExport will use all reasonable and commercially viable means to endeavour to keep
such returns and cancellations to a minimum.
9.6. Seller will be responsible for all applicable reverse logistics costs incurred in ensuring that the
Product collected from the Customer and returned back to the Seller.
9.7. A Customer may return Products sold by the Seller to a iExport physical store or request that the
Seller collect the Products from the same location they were delivered to.
9.7.1. Where returned Products are required to be collected from the Customer, the Seller will have 48
(forty eight) hours to collect the Products and then 5 (five) business days to assess return for resolution.
9.7.2. When Products are returned to a iExport physical store, iExport Australia will notify the Seller
via the Seller Portal or email that there are Products that have been returned and require assessment
before a refund can be processed. The Seller is obligated to collect and assess Products that are
returned for resolution within 5 (five) business days of notification of return.
9.7.3. The Seller acknowledges that a return in terms of the iExport Peace of Mind Policy shall be
deemed to have complied with the iExport Peace of Mind Policy if the Customer returns the Product to
a iExport physical store within the stipulated period. This will apply notwithstanding the fact that the
Seller may only receive the actual Products at a time after expiration of the applicable period.
9.8. The ultimate decision on whether or not to refund a Customer will always lie with iExport.
9.9. Sellers are obligated to facilitate all warranty claims made within 60 days of purchase date by
the Customer, or within the warranty period provided by the applicable Original Equipment
Manufacturer and attached to the Product.
10. PARITY WITH SELLER SALES CHANNELS
10.1. Seller will maintain parity between the Products it offers through the Seller Site and the
Products offered on the iExport Site by ensuring that at all times:
10.1.1. except for in connection with Excluded Offers, the selling price and every other term of offer
and/or sale of the Products (including associated shipping and handling charges and options, any “low
price” guarantee, rebate or discount, any free or discounted products or other benefit available as a
result of purchasing one or more other products, and terms of applicable return and refund policies is
at least as favourable to users of the iExport Site as the most favourable terms upon which that Product is
offered and/or sold via the Seller Site;
10.1.2. customer service for the Products is at least as responsive and available and offers at least the
same level of support as the most favourable customer service offered in connection with the Seller Site;
10.1.3. the Content provided by Seller to iExport Australia for the iExport Site:
10.1.3.1.1. is of least the same level of quality as the highest quality information displayed or used
on the Seller Site; and
10.1.3.1.2. provides users of the iExport Site with at least as much product information, images and
other content as the information provided on the Seller Site.
10.2. If Seller becomes aware of any noncompliance with 10.1 above, Seller will promptly notify
iExport Australia and compensate adversely affected Customers by approving appropriate refunds
to such Customers. Special Offers and Promotions
10.3. Seller will notify iExport Australia by email at email@example.com (or through
the Seller Portal) of all special offers and promotions (i.e., where Seller discounts an item or items by a
certain amount for a certain period of time) offered on the Seller Site. Seller will make special offers and
promotions available to iExport Customers in connection with the Marketplace Program, and will use
commercially reasonable efforts to allow iExport Australia to support any such special offer or
promotion through the Seller Portal. If Seller makes any Public Promotions generally available to all
users of the Seller Site and iExport Australia cannot support such Public Promotion, then Seller will
provide an equivalent offer or promotion to iExport Australia Customers to the extent possible. For
example, if Seller lists a promotion code on the Seller Site that can be used by any customer for 10% o
specific Products or all Products sold on the Seller Site and iExport Australia cannot support the
promotion code, Seller will reduce the price of such Product or all Products, as applicable, through the
Seller Portal by 10% for the duration of the special offer or promotion on the Seller Site. Seller will work
in good faith with iExport Australia to maximize the number of Seller offers and promotions
(including equivalent offers and promotions) made available to iExport Australia Customers.
10.4. iExport Australia may choose, in its sole discretion, not to permit certain special offers or
promotions offered by Seller on the iExport Site (e.g., where iExport Australia cannot support the
special one or promotion) and may request that Seller filter out any such special offers or promotions.
Notwithstanding the foregoing, Seller will not be required to make Excluded Offers available to iExport
Marketplace Customers, provided that, if iExport Australia is able to support any Excluded Offer at
any time during the Term and desires to do so, it will notify Seller and after receipt of such notification,
Seller will make such special offer or promotion available to iExport Australia in connection with the
11. RECALLS AND DEFECTS
11.1. Seller is solely responsible for any nonconformity or defect in, or any public or private recall of
Seller’s Products. iExport Australia will have no responsibility or liability for any recalls of Products
sold through the iExport Site. If Products are subject to a recall, Seller is responsible for all matters, costs
and expenses associated with such recall, including without limitation, notices and refunds to
Customers, contact and reporting of the recall to any governmental agency having jurisdiction over
the affected Products, and compliance with all applicable Law with respect to such recall. Seller will
promptly remove any recalled Products from the iExport Site by unpublishing or retiring the Product
through the Seller Portal. Seller will notify iExport Australia by email at
firstname.lastname@example.org of all Product recalls within 24 hours of becoming aware of the
recall. Seller will promptly provide iExport Australia with all information reasonably requested in
connection with the recall of any Product.
12. CONTACT WITH CUSTOMERS AND CUSTOMER SERVICE ESCALATION
12.1. iExport will be responsible for providing 1st line telephonic support for Customers;
12.2. Where the Customer query cannot be resolved by iExport, iExport will escalate the support query
to iExport Australia for 2nd line support and resolution;
12.3. Where iExport Australia is unable to resolve a Customer support query, iExport Australia
will escalate the support query to the Seller for 3rd line support and resolution.
12.3.1. Seller will always represent itself as a separate entity from iExport Australia and iExport when
providing customer service for its Products sold through the iExport Site.
12.3.2. For the sake of clarity, the Seller shall not be entitled to contact the Customer directly under any
circumstances without having first obtained iExport Australia’s prior written consent.
12.4. Neither Party will disparage the other party or its affiliates or its or their products or services
when performing obligations under this Agreement.
13. SELLER SYSTEMS AND SERVICE LEVELS
13.1. Seller shall be solely responsible for the adequate maintenance and uptime of all Seller systems
that are necessary for the Seller to fulfil Orders and meet its obligations of this Agreement.
13.2. The Seller shall notify iExport Australia within 1 (one) business hour, of any downtime or
related system issues, that may or will have an impact on the Sellers ability to fulfil Orders or otherwise
meet its obligations on terms of this Agreement.
13.3. The Seller will comply with any service levels prescribed by iExport or iExport Australia from
time to time, in connection with Seller’s systems that, directly or indirectly, impacts the iExport
Marketplace systems or the Marketplace Program; and
13.4. The Seller shall at all times comply with the Order and Customer Service Level Agreement,
attached hereto as Annexure B.
14. REPORTING AND AUDITS
14.1. Seller will, within a reasonable period of time, not to exceed thirty (30) days, following request
from iExport Australia, make commercially reasonable efforts to provide iExport Australia with
any reports, information or other documentation relating to Seller’s compliance with this Agreement
and applicable Law reasonably requested by iExport Australia; provided, however, that in the event
iExport Australia requests that Seller provide iExport Australia with copies of reports that Seller
was required to file with any regulatory agency, Seller will provide such reports within seven (7) days of
iExport Australia’s written request. Audit Rights
14.2. Seller will keep accurate and complete books, records and accounts related to Marketplace
Program transactions and this Agreement, and will allow iExport Australia, or its duly authorized
representative, the right, upon not less than five (5) business days prior written notice, during the Term
of this Agreement and for two (2) years after its termination or expiration, to conduct, during regular
business hours, full and independent audits and investigations of all information, books, records and
accounts reasonably required by iExport Australia to confirm Seller’s compliance with the terms of
this Agreement and applicable Law. Certifications
14.3. Upon iExport Australia’s request, Seller will provide iExport Australia with written
certification from an valid source of Seller stating that Seller has complied with any of Seller’s obligations
under this Agreement, including, for example and without limitation, compliance with SLAs, consumer
product safety laws, authenticity of Products, or restrictions on use of Transaction Information.
15. REPRESENTATIONS AND WARRANTIES
15.1. Each Party hereby represents and warrants to the other Party the following: Authority
15.2. The Party is a duly organized, validly existing and in good standing under the laws of the state
where such Party was organized and the Party has full power and authority to execute and deliver this
Agreement and to perform its obligations hereunder without any further ratification or approval. This
Agreement constitutes the legal, valid and binding obligations of the Party.
15.3. Neither the execution and delivery of this Agreement by the Party nor the consummation of the
transactions contemplated hereby will violate or Conflicts with any obligation, contract or license of
such Party which could reasonably be expected to interfere with the consummation of the
transactions contemplated hereby.
15.4. Seller hereby represents and warrants to iExport Australia the following:
Power and Authority
15.4.1. Seller has the right, power and authority to grant the rights and licenses hereunder free and
clear of any claims, liens and encumbrances and to sell the Products. Compliance with Laws
15.4.2. Seller and all of its employees, subcontractors, agents and suppliers will comply with all
applicable Law, as may be amended from time to time, in performing any of its obligations or
exercising any of its rights under or related to this Agreement. All Products (including all packaging)
and Content will comply with applicable Law. The production, manufacturing, sale, shipping and
delivery of all Products will comply with all applicable Law. Products will not be produced or
manufactured by child labour or convict or forced labour. Principal Place of Business
15.4.3. Seller’s principal place of business is in Australia and Seller will not conduct any operations
relating to this Agreement from outside Australia.
15.4.4. All Content will be truthful and accurate. Content will not:
188.8.131.52. be misleading or deceptive
184.108.40.206. be defamatory, libellous, threatening or harassing;
220.127.116.11. infringe upon or violate any Intellectual Property Rights or other right of any third party;
18.104.22.168. promote or depict gratuitous violence, the use of alcohol, tobacco or illegal substances
or adult bioriented content; or
22.214.171.124. reflect unfavourably on iExport Australia, its Affiliates, or the iExport Site or be the type
of content that could otherwise reasonably adversely impact or damage the reputation or public
image of iExport Australia or its Affiliates. Seller will not use the Content to redirect iExport
Marketplace Customers to any other sales channels.
15.4.5. Seller will only offer Products for sale on the iExport Site that may be sold and shipped
throughout Australia. Seller will not offer for sale any Products through the iExport Site that iExport
Marketplace indicates as prohibited, including without limitation, the Prohibited Products attached
hereto as Annexure A. The list of Prohibited Products may be updated by iExport Australia from time
to time and iExport Australia will notify Seller of such updates by email and/or through the Seller
15.4.6. All Seller personnel will be properly registered, documented, licensed and/or certified in
accordance with applicable Law. Ongoing Warranties
15.4.7. Except as otherwise expressly provided herein, the representations and warranties made in this
Agreement are continuous in nature and will be deemed to have been given by Seller at the execution
of this Agreement and each stage of performance of this Agreement.
16. CONTROL OF IEXPORT SITE
16.1. iExport has the sole right to determine the content, appearance, design, functionality and all
other aspects of the iExport Site, including, without limitation, all content provided in connection with
the sale of Products sold by Seller through the iExport Site. iExport Australia intends to use one set of
content for each item sold through the iExport Site. iExport Australia may suspend any Product
listing or display of Content or refuse to list any Products in its sole discretion and iExport Australia
may require Seller to exclude any Products from the iExport Site. If iExport Australia requests that
Seller remove Products from the iExport Site, Seller will make commercially reasonable efforts to
remove those Products by unpublishing or retiring such Products through the Seller Portal within
twenty four (24) hours of such request so such Products no longer appear for sale on the iExport Site
and Seller will not include such removed Products on the iExport Site at any time unless the inclusion of
such Products is specifically authorized by iExport Australia in writing. iExport Australia will have
sole control of any marketing of:
16.1.1. any products on the iExport Site, including without limitation, Seller’s Products; and
16.1.2. the Marketplace Program.
17. OWNERSHIP AND USE OF TRANSACTION INFORMATION
17.1. iExport Australia will own all Transaction Information. Seller may only use Transaction
Information to further a transaction related to this Agreement, in accordance with the terms of the
17.1.1. disclose or convey any Transaction Information to any third party (except as necessary for Seller
to perform its obligations under the Agreement);
17.1.2. use any Transaction Information to conduct customer surveys or for any marketing or
17.1.3. contact a Customer that has ordered a Product that has not yet been delivered with the intent
to collect any amounts in connection therewith or to influence such Customer to make an alternative
or additional purchase; or
17.1.4. target communications of any kind on the basis of the intended recipient being a iExport
18. RATINGS AND REVIEWS
18.1. iExport Australia may use mechanisms that rate or review, or allow shoppers to rate or
review, Seller’s Products and Seller’s performance as a seller and iExport Australia may make these
ratings publicly available. iExport Australia will have no liability to Seller for the content or accuracy
of any ratings or reviews. Seller will have no ownership interest in or license to use any rating or
reviews posted on the iExport Site.
19. SUGGESTIONS AND FEEDBACK
19.1. If Seller or any of Seller’s Affiliates or agents elect to provide or make available suggestions,
comments, ideas, improvements, or other feedback or materials to iExport Australia in connection
with or related to any iExport Site or The Marketplace Program (including any related technology),
iExport Australia will be free to use, disclose, reproduce, modify, license, transfer and otherwise
distribute, and exploit any of the foregoing information or materials in any manner. In order to protect
iExport Australia’s systems and customers, or to ensure the integrity and operation of iExport
Marketplace’s business and systems, iExport Australia may access and disclose any information
iExport Australia considers necessary or appropriate, including but not limited to user contact
details, IP addresses and traffic information, usage history, and posted content.
20. CONFIDENTIAL INFORMATION AND INFORMATION SECURITY
20.1. Both Parties acknowledge that either Party may receive (the “Receiving Party”) Confidential
Information from the other Party (the “Disclosing Party”) during the term of this Agreement, and such
Confidential Information will be deemed to have been received in confidence and will be used only for
purposes of this Agreement. The Receiving Party will:
126.96.36.199. use the Disclosing Party’s Confidential Information only to perform its obligations and
exercise rights under this Agreement; and
188.8.131.52. disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s
personnel, contractors and affiliates that:
184.108.40.206.1. have a need to know the information to assist the Receiving Party with fulfilling
obligations under this Agreement; and
220.127.116.11.2. have agreed to keep the information confidential in accordance with the terms set forth
20.2. The Receiving Party will treat the Confidential Information as it does its own valuable and
sensitive information of a similar nature and, in any event, with not less than a reasonable degree of
care. The obligation of confidentiality will continue for three (3) years from the expiration or
termination of this Agreement; provided, however, the Receiving Party will continue to keep
20.2.1. any PII at all times and as required by this Agreement and any applicable Law;
20.2.2. any trade secrets of the Disclosing Party; and
20.2.3. the terms of this Agreement.
20.3. Seller agrees that iExport Australia may share Seller’s Confidential Information with its
Affiliates for internal use only. Exceptions
20.4. The obligations of either Party under this Section will not apply to information that the
Receiving Party can demonstrate:
20.4.1. was in its possession at the time of disclosure and without restriction as to confidentiality;
20.4.2. at the time of disclosure is generally available to the public or after disclosure becomes
generally available to the public through no breach of agreement or other wrongful act or failure to act
by the Receiving Party; provided, however, PII remains subject to confidentiality obligations regardless
of its availability to the public or availability through unauthorized disclosure;
20.4.3. has been received from a third party without restriction on disclosure and without breach of
agreement or other wrongful act by such third party or the Receiving Party; or
20.4.4. is independently developed by the Receiving Party without access to or use of the Confidential
Information of the Disclosing Party.
20.5. In the event the Receiving Party is required by Law, stock exchange requirement or legal
process to disclose any of the Confidential Information, the Receiving Party agrees to:
20.5.1. give the Disclosing Party, to the extent possible, advance notice prior to disclosure; and
20.5.2. limit the disclosure to minimum amount that is legally required to be disclosed.
21. TERM TERMINATION AND SUSPENSION
21.1. This Agreement will apply to the Seller from the moment of registration on or use of the Seller
Portal and/or the iExport Australia Program, and shall continue to apply for so long as the Seller
remains part of the Marketplace Program;
21.2. Seller acknowledges and agrees that iExport Australia may amend and/or replace this
Agreement at any time in its sole discretion, and by logging onto the Seller Portal, the Seller shall
automatically be bound by the latest Agreement.
Termination for Convenience
21.3. Either Party may terminate this Agreement for any reason by giving 48 (forty eight) hours prior
written notice to the other Party.
Post Termination Obligations
21.4. Seller will continue to have obligations under this Agreement after termination of the
Agreement, including without limitation, the obligation to:
21.4.1. Full all Orders that have been accepted but not yet delivered;
21.4.2. provide customer service to Customers who purchased Products on the iExport Site;
21.4.3. pay any invoices delivered by iExport Australia in connection with the Agreement;
21.4.4. notify iExport Australia and Customers of any recalls of its Products;
21.4.5. remit any taxes collected to the proper jurisdiction(s); and
21.4.6. immediately notify iExport Australia of any security breach that allows a third party to view
or access or otherwise compromises any Transaction Information.
21.5. iExport Australia will pay Seller the Seller Share attributable to Orders placed by Customers
prior to the termination of the Agreement in accordance with the payment terms set forth in this
21.6. The provisions of this Agreement which by their nature are intended to survive termination of
the Agreement will survive its termination.
22.1. Seller will defend, indemnify and hold harmless iExport Australia and its affiliates and each of
their respective stockholders, successors, assigns, officers, directors, employees, agents, representatives
(each an “Indemnitee”) from and against any and all Losses arising out of or related to any third party
Claims asserted against, imposed upon or incurred by an Indemnitee due to, arising out of or relating
22.1.1. an actual or alleged breach by Seller of this Agreement;
22.1.2. the Seller Site and other sales channels, the Content or the Products (including, without
limitation, the order, sale, refund, or return of Products) or any violation of Law with respect to the
foregoing (including but not limited to the Consumer Protection Act, 2008), or any actual or alleged
infringement of any Intellectual Property Right by any of the foregoing, or personal injury, death or
property damage related thereto or arising therefrom; and
22.1.3. any and all income, sales, use, ad valorem, and other taxes, surcharges, fees, assessments or
charges of any kind whatever, together with any interest, penalties and other additions with respect
thereto, imposed by any federal, state, local or foreign government in any way related to the sale of the
Products on the iExport Site, specifically excluding, however, any such taxes related to iExport
Marketplace’s net income. Procedure for Indemnification
22.2. Upon receipt of notice, from whatever source, of Claims against iExport Australia for which
Seller is obligated to indemnify iExport Australia, Seller immediately will take necessary and
appropriate action to protect iExport Australia’s interests with regard to the Claims. iExport
Marketplace will notify Seller of the assertion, filing or service of any Claims of which iExport
Marketplace has knowledge, as soon as is reasonably practicable. Seller will use counsel reasonably
satisfactory to iExport Australia to defend each Claim. Conflict
22.3. Notwithstanding the foregoing, however, if iExport Australia reasonably determines that
there may be a conflict between its position and that of Seller in connection with the defence of a
Claim or that there may be legal defences available to iExport Australia different from or in addition
to those available to Seller, then, at Seller’s expense, counsel for iExport Australia will be entitled to
conduct a defence to the extent iExport Australia reasonably determines necessary to protect the
interest of iExport Australia. If iExport Australia, in its sole discretion, determines that the counsel
provided by Seller to defend iExport Australia is unacceptable or that a Conflicts of interest exists
between iExport Australia and counsel, iExport Australia may request that Seller replace the
counsel. If Seller fails to timely replace counsel, iExport Australia may replace the counsel and, as
part of Seller’s indemnification obligation to iExport Australia, Seller will pay to the new counsel, or
reimburse iExport Australia, any and all fees and expenses as to the new counsel, including any and
all expenses or costs to change counsel. Settlement
22.4. Seller, in the defence of any Claim, will not, except with the prior written consent of iExport
Marketplace, consent to entry of any judgment or enter into any settlement with respect to such Claim.
23. WARRANTY DISCLAIMER
23.1. NEITHER IEXPORT, IEXPORT AUSTRALIA, NOR ITS AFFILIATES, OFFICERS, DIRECTORS,
LICENSORS, SUPPLIERS, EMPLOYEES OR AGENTS MAKE ANY REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, THAT THE IEXPORT SITE, THE MARKETPLACE PROGRAM, ANY SELLER PORTAL,
SERVICES PROVIDED BY IEXPORT AUSTRALIA OR ANY SERVICE PROVIDER, OR SOFTWARE USED TO
PROVIDE THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS FREE OR ERRO FREE, AND
SELLER AGREES THAT IEXPORT AUSTRALIA WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY
INTERRUPTIONS OR ERRORS, INCLUDING WITHOUT LIMITATION, SYSTEM OR SOFTWARE FAILURES OR
OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR
SETTLEMENT OF ANY TRANSACTIONS. NEITHER IEXPORT, IEXPORT AUSTRALIA NOR ITS AFFILIATES,
OFFICERS, DIRECTORS, LICENSORS, SUPPLIERS, EMPLOYEES OR AGENTS MAKE ANY REPRESENTATIONS
OR WARRANTIES, EXPRESS OR IMPLIED, TO SELLER WITH RESPECT TO THE SALE OF SELLER’S PRODUCTS
THROUGH THE IEXPORT SITE PURSUANT TO THIS AGREEMENT, AND ALL SUCH SERVICES PROVIDED BY
IEXPORT AUSTRALIA ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
23.2. IEXPORT AUSTRALIA AND ITS AFFILIATES, EMPLOYEES, DIRECTORS, OFFICERS, AGENTS,
LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND Noninfringement OF
PROPRIETARY RIGHTS AND THOSE IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE,
COURSE OF DEALING OR USAGE OF TRADE.
24. LIMITATION OF LIABILITY
No Consequential Damages
24.1. IN NO EVENT SHALL IEXPORT OR IEXPORT AUSTRALIA BE LIABLE TO SELLER OR ANY THIRD
PARTY UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE
24.1.1. LOST PROFITS, LOST REVENUE, LOSS OF BUSINESS OR LOSS OF DATA;
24.1.2. EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR THE
24.1.3. FOR COST OF COVER, RECOVERY OR RECOUPMENT OF ANY INVESTMENT, EACH OF WHICH IS
HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE
FORESEEABLE OR WHETHER IEXPORT AUSTRALIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
24.2. IN NO EVENT SHALL IEXPORT AUSTRALIA’S AGGREGATE LIABILITY TO SELLER OR ANY THIRD
PARTY FOR ANY CLAIMS, LOSSES, INJURIES, SUITS, DEMANDS, JUDGMENTS, LIABILITIES, COSTS,
EXPENSES OR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION
OR LEGAL THEORY, EXCEED THE TOTAL REFERRAL FEES PAID BY SELLER TO IEXPORT AUSTRALIA
PURSUANT TO THIS AGREEMENT DURING THE SIX MONTH PERIOD PRECEDING THE EVENT GIVING RISE
TO SUCH LIABILITY. THE LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK BETWEEN THE
PARTIES. THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY EVEN IF ANY LIMITED
REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
25. INSURANCE, RISK, AND OWNERSHIP
25.1. Seller will maintain, at Seller’s expense, commercial general, umbrella and/or excess liability in
the aggregate covering liabilities caused by or occurring in connection with this Agreement or Seller’s
business (including without limitation, product, completed operations, hijacking, overturning and
bodily injury), or as otherwise required by iExport Australia from time to time. All such policies will
be occurrence based, will include iExport Australia as an additional insured, and will contain a
waiver of subrogation.
25.2. The Seller acknowledges that it shall retain all risk in and to the Products until the Products have
been delivered with a proof of delivery signed by the Customer. Ownership in and to the Products shall
pass to the Customer when the Products have been delivered with a proof of delivery signed by the
26. CHOICE OF LAW, JURISDICTION AND VENUE
26.1. The Parties mutually acknowledge and agree that this Agreement will be construed and
enforced in accordance with the Laws of the Republic of Australia and without regard to any
conflict of law provisions. The Parties agree that in any dispute arising from or related to this
Agreement, shall be subject to the exclusive jurisdiction of the Australian High Court,
Johannesburg. The Parties mutually acknowledge and agree that they will not raise in connection
therewith, and hereby waive, any defences based upon venue, inconvenience of forum or lack of
personal jurisdiction in any action or suit brought in accordance with the foregoing. The Parties
acknowledge that they have read and understand this Section and agree voluntarily to its terms.
27.1. Assignment. Seller may not assign (including, without limitation, by way of merger,
consolidation or sale of all or substantially all of Seller’s stock or assets) this Agreement, or any of its
respective rights or obligations hereunder, without the prior written consent of iExport Australia.
Subject to the foregoing, this Agreement will be binding upon, and will inure to the benefit of, the
Parties and their respective successors and permitted assigns. Any assignment or assumption without
iExport Australia’s prior written consent will be null and void.
27.2. Integrated Agreement. This Agreement, including all Annexures and policies referenced herein,
constitutes the complete integrated agreement between the Parties concerning the subject matter
hereof. All prior and contemporaneous agreements, understandings, negotiations or representations,
whether oral or in writing, relating to the subject matter of this Agreement are superseded in their
27.3. Amendments. iExport Australia may amend the terms of this Agreement (including without
limitation, any Annexures hereto) from time to time and will either post such amendments to the Seller
Portal (“Amendment Notice”). If Seller objects to any amendment to the terms of this Agreement
(including any Annexure hereto), Seller should terminate this Agreement IF SELLER CONTINUES TO
PARTICIPATE IN THE MARKETPLACE PROGRAM AFTER THE EFFECTIVE DATE OF ANY AMENDMENT,
SELLER WILL BE DEEMED TO HAVE AGREED TO AND ACCEPTED ANY MODIFICATIONS SET FORTH IN THE
27.4. Waiver. No waiver of any of the provisions of this Agreement will constitute a continuing waiver
unless otherwise expressly so provided in writing. The failure of either Party to enforce at any time any
of the provisions of this Agreement, will in no way be construed to be a present or future waiver of
27.5. Severability. If any provision of this Agreement is found by a court to be invalid, void or
unenforceable, the Parties agree that the remaining provisions of this Agreement will not be affected
thereby, and that this Agreement will in any event otherwise remain valid and enforceable.
27.6. Where any provision of this Agreement constitutes a provision in favour of iExport, such
provision shall constitute a stipulation alter capable of acceptance by iExport at any time.
27.7. Independent Contractors. iExport Australia and Seller are acting hereunder as independent
contractors. Seller will not be considered or deemed to be an agent, employee, joint venture or partner
of iExport Australia. Seller’s personnel will not be considered employees of iExport Australia, will
not be entitled to any benefits that iExport Australia grants its employees and will have no authority
to act or purport to act on iExport Australia’s behalf. If any federal, state or local government agency,
any court or any other applicable entity determines that any such personnel of Seller is an employee of
iExport Australia for any purpose, Seller will indemnify, defend and hold harmless iExport
Marketplace, its Affiliates, officers, directors, employees and agents from all liabilities, costs and
expenses (including, but not limited to, reasonable attorneys’ fees) associated with such determination.
Seller will remain primarily liable for Seller’s obligations performed by any third party and for any act or
omission of any such third party.
27.8. Publicity. Except as specifically provided herein, neither Party will use the name, logo,
trademarks or trade names of the other Party or otherwise, directly or indirectly, refer to the other
party in publicity releases, promotional material, customer lists, advertising, marketing or business
generating efforts, whether written or oral, without obtaining such Party’s prior written consent.
Notwithstanding the foregoing, iExport Australia will have the right to refer to Seller as a participant
in the Marketplace Program in marketing and promoting the Marketplace Program.
27.9. Nonexclusive. Each Party acknowledges and agrees that the rights granted to the other Party in
this Agreement are nonexclusive and that without limiting the generality of the foregoing, nothing in
this Agreement will be deemed or construed to prohibit either Party from participating in similar
business arrangements as those described herein.
27.10. Force Majeure. Notwithstanding the other provisions of this Agreement, if either Party is in
good faith prevented from performing its obligations under this Agreement because of an unexpected
extraordinary event beyond the control of the Party concerned, including without limitation, war
(declared or undeclared), acts of god, terrorism, earthquake, accident, explosion, fire or flood, such
Party will promptly notify the other Party, and while so affected, the affected Party will be relieved from
performing its obligations provided that, the Party affected will take all reasonable steps to promptly
remedy the cause of such delay or failure if it is in its power to do so.
27.11. Seller Portal Seller is solely responsible for maintaining the security of its password for any Seller
Portal and for all action taken in connection with its account. If Seller has knowledge or suspects that
its password has been compromised, Seller will immediately notify iExport Australia and fully
cooperate with iExport Australia in investigating and preventing any further breach to iExport
Marketplace’s systems. iExport Australia shall not be liable to the Seller for any Losses it may suer as
a result of the Seller Portal being unavailable for any reason.
LIST OF PROHIBITED PRODUCTS
“Prohibited Products” means:
1. cigars, cigarettes, or other tobacco products;
2. guns intended to provide lethal force (and related gun parts, kits and ammunition); mace, black
powder and other explosives; disguised, undetectable or switchblade knives; martial arts weapons; or
BB guns, stun guns, paintball guns, or airsoft guns;
3. any drug, vitamin, herbal product or similar substance which requires a doctor’s or other health
care provider’s prescription as a prerequisite for purchase;
4. used, remanufactured, reconditioned or refurbished products;
5. stolen, counterfeit, misbranded or illegal products;
6. products that have been recalled;
7. products that violate applicable Law;
8. products that violate or infringe upon any Intellectual Property Right or other third party right;
9. products that contain material that is obscene, pornographic or offensive;
10. products containing viruses, Trojan horse, spyware or malicious code;
11. ‘sex and sensuality’ products;
12. loose gemstone products;
13. any product for which Seller is not an “authorized reseller” (as designated by the product’s
manufacturer or distributor), or does not provide to Customers the manufacturer’s standard warranty
14. products containing human growth hormone;
15. any age restricted products;
16. baby bottles that are not BPA free;
17. prepaid access products (whether issued in the form of a card, electronic PIN or other device)
that provide access to funds (or the value of funds) that have been paid in advance and can be
retrieved in the future, including without limitation, gift cards, prepaid phones, or prepaid minutes;
18. caskets or funeral urns;
19. specific products or brand names that may not be sold on the iExport Site as are indicated by
iExport Australia to Seller separately in writing (which in this case may include email or through any
Seller Portal); and
20. any other types of products that in iExport Australia’s discretion are not appropriate for sale
on the iExport Site as indicated by iExport Australia to Seller separately in writing; provided that a
Prohibited Product will cease to be a Prohibited Product when iExport Australia informs Seller of
ORDER AND CUSTOMER SERVICE LEVEL AGREEMENT
iExport Australia is committed to customer service. Sellers participating in the Marketplace Program
will endeavour to meet the following service levels:
1. Seller will maintain an OneTime Ship Standard of at least 99%.
2. Seller will ensure that the correct Product is delivered to the correct Customer at a rate of 99.5%
of all Products shipped.
3. Seller will maintain inventory to full Customer Orders that result in a cancel rate (excluding
Customer requested cancellations) of 1.5% or less;
4. Returns due to damaged or defective Products shall not exceed 3% of Sales Proceeds for
Products sold on the iExport Site.
5. Seller shall limit emergency updates related to product information through any Seller Portal to
a rate no greater than .03% of its entire SKU count in iExport Australia’s catalogue per month;
provided however, that iExport Australia makes no guarantee that all requests will be granted.
iExport Australia will assess each emergency request on a case by case basis and make updates in
situations iExport Australia deems critical.
6. Ninety Seller ratings shall, on average, remain above a seller rating of 90% positive.
7. Seller will within one (1) hour of receipt on a 24/7 basis, confirm every Order file received by
iExport Australia on the Seller Portal.
8. Seller will, within four (4) hours of receipt on a 24/7 basis, confirm every order line within every
Order file received by iExport Australia on the Seller Portal.
9. Seller will provide iExport Australia with electronic notice, on the Seller Portal, confirming
shipment of each Product shipped and the corresponding shipment tracking information (if available)
within four (4) hours of the Product/Order actually shipping so that iExport Australia may notify the
Customer and allow the Customer to track shipment of Products.
10. Seller will send a refund request to iExport Australia through the data feed specified by
iExport Australia, and on the Seller Portal, within 24 hours of receiving a Customer refund or
adjustment request, unless Seller has refused to accept a Product for return for any reason.
11. Ninety percent (90%) of emails received from iExport Australia shall be answered by Seller
within twenty four (24) hours of receipt.
iExport Australia may, at its discretion, work with a Seller to remedy any failure of a service level or
performance issue under this Annexure B; provided, however, that no waiver by iExport Australia of
any provision of this Annexure B may be deemed or constitute a waiver of any provision of this
Agreement, whether or not similar, nor may the waiver constitute a continuing waiver by iExport
Marketplace unless otherwise expressly so provided in writing. The failure of iExport Australia to
require at any time performance by Seller of any of the provisions herein, may in no way be construed
to be a present or future waiver of provisions or in any way facet the ability of iExport Australia to
enforce each and every provision after such event.