BUBSWAREHOUSE.COM AND ITS SUB-DOMAINS (INCLUDING BUBSWAREHOUSE.COM.AU) (COLLECTIVELY, THE “SITE”) IS AN ONLINE PLATFORM OWNED AND OPERATED BY BUBS WAREHOUSE PTY LTD, ABN 60 150 104 715 (“BUBS WAREHOUSE PTY LTD”/”US”/”WE”). THE SITE PROVIDES AN ONLINE MARKETPLACE, WHERE SUPPLIERS (“SUPPLIERS”/ “YOU”) CAN SELL THEIR GOODS OR SERVICES (“PRODUCTS”) OR VOUCHERS (DEFINED BELOW) TO USERS OF THE SITE (“USERS”).
PLEASE READ THE FOLLOWING TERMS & CONDITIONS (“SUPPLIER TERMS AND CONDITIONS”) CAREFULLY BEFORE USING THE SITE. THESE TERMS & CONDITIONS, TOGETHER WITH ANY SUPPLIER APPLICATION FORM AGREED BETWEEN THE PARTIES AND THE SLA (DEFINED BELOW), FORMS THE WHOLE OF THE AGREEMENT BETWEEN BUBS WAREHOUSE PTY LTD AND EACH SUPPLIER.
YOU, AS A SUPPLIER, ELECT TO USE THE SITE TO PROMOTE AND SELL YOUR PRODUCTS OR VOUCHERS ON THE BASIS OF THESE SUPPLIER TERMS AND CONDITIONS AND BY PROMOTING OR SELLING YOUR PRODUCTS OR VOUCHERS ON THE SITE, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTOOD THESE SUPPLIER TERMS AND CONDITIONS AND THAT YOU ARE BOUND BY THEM. IF YOU DO NOT AGREE, YOU MUST CEASE ALL USE OF THE SITE.
BUBS WAREHOUSE PTY LTD RESERVES THE RIGHT TO CHANGE THESE SUPPLIER TERMS AND CONDITIONS FROM TIME TO TIME, AND ANY UPDATED OR AMENDED SUPPLIER TERMS AND CONDITIONS WILL APPLY TO YOUR USE OF THE SITE FROM THE DATE ON WHICH THE NEW VERSION IS PUBLISHED ON THE SITE. IT IS YOUR RESPONSIBILITY TO READ AND UNDERSTAND THESE SUPPLIER TERMS AND CONDITIONS, AND TO REVIEW ANY UPDATED VERSION OF THESE SUPPLIER TERMS AND CONDITIONS WHEN THEY BECOME AVAILABLE. IF YOU DO NOT AGREE TO AN UPDATED VERSION OF THESE SUPPLIER TERMS AND CONDITIONS THEN YOUR SOLE REMEDY IS TO TERMINATE YOUR ACCOUNT AND CEASE LISTING YOUR PRODUCTS AND VOUCHERS FOR SALE ON THE SITE.
1. SUPPLIER REPRESENTATIONS
1.1 You represent and warrant to us that:
(a) you are at least 18 years of age;
(b) you possess the legal right and ability to enter into a legally binding agreement with BUBS WAREHOUSE PTY LTD and a User with respect to any Product or Voucher sold or offered by you on the Site; and
(c) you will use the Site in accordance with these SUPPLIER Terms and Conditions.
2. OUR RELATIONSHIP
2.1 BUBS WAREHOUSE PTY LTD provides a Site whereby you may advertise Products and Vouchers for sale to Users. Users may order and purchase those Products and Vouchers from you, as a SUPPLIER. Users do not purchase any Products or Vouchers from BUBS WAREHOUSE PTY LTD directly and BUBS WAREHOUSE PTY LTD simply acts as a limited agent for you and the User, for the following purposes only:
(a) facilitating the purchase of Products or Vouchers from you by Users;
(b) collecting payment from Users for purchases which they make;
(c) paying you your SUPPLIER Fees (as described below); and
(d) providing the Support Services (as described below) in respect of issues arising between you and Users, in relation to the supply of Products or Vouchers.
3. ACCOUNTS AND APPLICATION FORMS
3.1 You agree that in order to offer Products or Vouchers for sale on the Site, you must have an online agreement or terms in writing with BUBS WAREHOUSE PTY LTD which lists the product pricing, shipping and any specific details required; hereto called an “account”.
3.2 You will be responsible for all usage of your Account and the use of your Account by others (including your employees, officers or agents) or any unauthorised use. You must immediately advise us if you become aware of unauthorised use of your email/accounts.
3.3 At the time an Account is set up, and at such other times as required by BUBS WAREHOUSE PTY LTD, SUPPLIERS must update out of stock notice and price changes of items selling on our website.
3.4 Once we accept a SUPPLIER Application Form, we will permit you to list your Products and Vouchers for sale to Users on the Site. If you are asked by us to complete a new SUPPLIER Application Form, then this will override any prior form completed by you.
3.5 Either at the time of completing a SUPPLIER Application Form or at such other time as notified to you by BUBS WAREHOUSE PTY LTD in our sole discretion, we will confirm to you our commission which we will deduct from all sales which you make through the Site (“Commission”). We may also update our Commission by written notice to you at any time. Any updated Commission will only apply to new orders of your Products and Vouchers, but not existing orders.
4.1 When you list a Product or Voucher for sale on the Site, you must include all information as required by BUBS WAREHOUSE PTY LTD about you and the relevant Product or Voucher. Such information may include (without limitation):
(a) your name, address and contact details;
(b) the total price payable by the Users for the Product(s) and/or Voucher(s), including (but subject to clause 4.2) all delivery costs and charges (“Sale Price”);
(c) the terms of your SUPPLIER Terms (as defined below);
(d) details of any warranty applicable to a Product and/or Voucher; and
(e) any other relevant information requested by BUBS WAREHOUSE PTY LTD or required in order to accurately or legally represent and describe the Products and/or Vouchers.
4.2 If at the time of sale of a Product, the SUPPLIER is unable to determine the delivery charges to the User or provide an accurate estimate of the delivery charges (due solely to conflicting or inaccurate information supplied by the User), then the SUPPLIER may subsequently notify the User of new accurate delivery charges once an order is placed but before it is dispatched (“Delivery Fee”). If the User rejects the Delivery Fee then the sale will be cancelled and the User will receive a refund. If the User accepts the Delivery Fee then the sale will proceed, and the Sale Price will be deemed to include the Delivery Fee.
4.3 BUBS WAREHOUSE PTY LTD relies on information provided to it by each SUPPLIER in connection with the Products and Vouchers, and each SUPPLIER warrants that any information provided by it is accurate, current, complete, correct and complies with all applicable laws.
4.4 BUBS WAREHOUSE PTY LTD will not be liable for any mistake or misrepresentation made by you in connection with the Products and/or Vouchers or contained in a SUPPLIER Application Form, and you indemnify BUBS WAREHOUSE PTY LTD for and against any loss, cost (including legal fees on a full indemnity basis), damage, expense, or claim (including for negligence) suffered or incurred by BUBS WAREHOUSE PTY LTD in connection with your misrepresentation, mistake, infringement of any person’s rights (including in respect of intellectual property rights), or breach of law in connection with the sale of the Products and/or Vouchers.
4.5 You agree that BUBS WAREHOUSE PTY LTD may:
(a) suspend, terminate and/or close your Account at any time;
(b) refuse to accept a SUPPLIER Application Form; or
(c) remove any Product or Voucher listing from the Site,
for any reason in BUBS WAREHOUSE PTY LTD’s sole and absolute discretion, with or without notice to you.
4.6 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 Site which is reserved for registered SUPPLIERS or offer your Products/Vouchers for sale to Users on the Site.
5. SUPPLIER TERMS
5.1 You must specify the complete terms of the sale of your Products or Vouchers (“SUPPLIER Terms”) in writing via email or on the listing page for each of the Products and/or Vouchers that you offer for sale on the Site. Your SUPPLIER Terms are deemed to include the following minimum terms of supply:
(a) 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;
(b) supply of the Products and/or Vouchers will occur after:
(i) you have accepted the relevant order from the User; and
(ii) BUBS WAREHOUSE PTY LTD has received payment of the Sale Price in full from its User(s); and
(c) title in the Products and/or Vouchers will pass to the User(s) on delivery of the Products and/or Vouchers to them.
5.2 The SUPPLIER Terms must be consistent with the terms of these SUPPLIER Terms and Conditions and the User agreement entered into between BUBS WAREHOUSE PTY LTD and its Users (which may be obtained from the Site), and include:
(a) any special conditions, limitations, restrictions or other terms or conditions that apply to the purchase of a Product or Voucher (including, without limitation, in relation to how Vouchers are redeemed by Users);
(b) the method of delivery of the Products and/or Vouchers;
(c) subject to clause 4.2, details of any delivery charges or how these will be notified to Users; and
(d) the SUPPLIER’s refunds, returns and exchanges policies and procedures (which are at all times subject to clauses 5.1(a), 6.13 and 6.14).
5.3 BUBS WAREHOUSE PTY LTD is not a party to the SUPPLIER Terms and BUBS WAREHOUSE PTY LTD is not responsible for either party’s performance of their obligations under that agreement. BUBS WAREHOUSE PTY LTD may, however, exercise any of the SUPPLIER’s rights arising under the SUPPLIER Terms for the benefit of BUBS WAREHOUSE PTY LTD and/or the relevant SUPPLIER.
5.4 You agree to release and forever discharge BUBS WAREHOUSE PTY LTD from any and all claims, actions, demands or proceedings, which you may make, institute or claim, in relation to:
(a) the SUPPLIER Terms, and all matters relating to the SUPPLIER Terms;
(b) any act or omission of any User;
(c) any Products or Vouchers supplied by you under the SUPPLIER Terms; and
(d) the performance of the SUPPLIER Terms, or failure to perform any obligation under the SUPPLIER Terms, by you or a User.
5.5 You otherwise agree that any SUPPLIER Terms entered into via the Site or otherwise in respect of Products or Vouchers must not conflict with either your obligations or the User’s obligations to BUBS WAREHOUSE PTY LTD (and these SUPPLIER Terms and Conditions will apply to the extent of any inconsistency with the SUPPLIER Terms).
6. ORDERS AND PAYMENT
6.1 When an order for a Product or Voucher by a User is accepted by a SUPPLIER, the User and the SUPPLIER will at that time form a legally binding agreement between each other on the terms of your SUPPLIER Terms (and a reference in these SUPPLIER Terms and Conditions to the “SUPPLIER Terms” will include the binding agreement reached between you and the User on the basis of those terms).
6.2 A SUPPLIER 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 8.1(b) of these SUPPLIER Terms and Conditions). If you reject an order, then the Sale Price paid by the User in respect of that order will be refunded to them.
6.3 The User will select Products or Vouchers they wish to purchase via the Site, which may include orders from multiple SUPPLIERS. When the User commits to purchase those Products or Vouchers, it will make payment of the total amount to BUBS WAREHOUSE PTY LTD (Total Purchase Amount). The Total Purchase Amount shall include all Sale Prices of all Products or Vouchers purchased at that time by the User, including those purchased from the SUPPLIER. You agree that the Total Purchase Amount, once paid to BUBS WAREHOUSE PTY LTD, is the property of BUBS WAREHOUSE PTY LTD, and that you have no claim to the Total Purchase Amount (or any part of it).
6.4 Payment of the Total Purchase Amount will be made by Users directly to BUBS WAREHOUSE PTY LTD, and not to any SUPPLIER. Payments will be made:
(a) via third-party payment platform(s) (including, without limitation, PayPal, eWay and ZipPay) or any other means of payment provided by BUBS WAREHOUSE PTY LTD through the Site from time to time; and
(b) 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 SUPPLIER.
6.5 Subject to clause 4.2, the SUPPLIER must not request any payment from the User in addition to the Sale Price or through any means other than as described above without BUBS WAREHOUSE PTY LTD’s written prior consent.
6.6 BUBS WAREHOUSE PTY LTD 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 and BUBS WAREHOUSE PTY LTD will not be liable for any loss, cost, damage, expense, or claim (including for negligence) suffered or incurred by any person in connection with use of a third-party payment platform or service.
6.7 The SUPPLIER Fee (as defined below) will accrue to the SUPPLIER in respect of a User’s order only when the SUPPLIER, via their Account, enters a valid delivery tracking code in relation to the order to indicate that the Products or Vouchers ordered by a User have been dispatched.
6.8 The “SUPPLIER Fee” for each sale of a Product or Voucher, is the applicable Sale Price less:
(a) BUBS WAREHOUSE PTY LTD’s Commission;
(b) any transaction fee payable to BUBS WAREHOUSE PTY LTD as described in a SUPPLIER Application Form or that BUBS WAREHOUSE PTY LTD has advised you in its sole discretion; and
(c) any applicable third-party fees or charges as notified to a SUPPLIER by BUBS WAREHOUSE PTY LTD in writing from time to time (collectively, the “Charges”).
6.9 BUBS WAREHOUSE PTY LTD will pay the SUPPLIER Fee to the SUPPLIER no more than 14 days after the SUPPLIER Fee accrues to the SUPPLIER in accordance with clause 6.7 and the total amount payable to the SUPPLIER will be all amounts of the accrued SUPPLIER Fee, less:
(a) refunds paid or payable by BUBS WAREHOUSE PTY LTD on behalf of a SUPPLIER;
(b) refund administration fees payable to BUBS WAREHOUSE PTY LTD as described in a SUPPLIER Application Form or that BUBS WAREHOUSE PTY LTD has advised you in its sole discretion
(c) credit card charge backs or amounts declined by a payment provider to BUBS WAREHOUSE PTY LTD in relation to a sale of a SUPPLIER’s Products or Vouchers;
(d) sales of Products or Vouchers which a SUPPLIER has indicated as being dispatched (thereby triggering an accrual of the SUPPLIER Fee under clause 6.7), but which in fact have not been dispatched;
(e) any amount which BUBS WAREHOUSE PTY LTD reasonably considers that a SUPPLIER may owe to BUBS WAREHOUSE PTY LTD after the SUPPLIER Fee is paid to the SUPPLIER; and
(f) any other amount which a SUPPLIER owes to BUBS WAREHOUSE PTY LTD under these SUPPLIER Terms and Conditions or on any other account whatsoever.
6.10 BUBS WAREHOUSE PTY LTD can issue recipient created tax invoices (“RCTI”) to the SUPPLIER in respect to the sale of Products and/or Vouchers on the Site. The RCTI will be subject to the RCTI agreement contained in the RCTI.
6.11 BUBS WAREHOUSE PTY LTD may modify the Charges which apply at any time by notice to the SUPPLIER. If the SUPPLIER does not wish to accept the modified Charges, the SUPPLIER’s only recourse or remedy is to remove the Product(s) and/or Voucher(s) from the Site and/or cancel its Account (but any Products or Vouchers already sold prior to modification of the Charges will not be affected).
6.12 To receive remittance of the SUPPLIER Fee in accordance with this clause, the SUPPLIER must provide accurate and current account information in the format and via the means requested by BUBS WAREHOUSE PTY LTD or a third-party payment platform or service provider from time to time.
6.13 The SUPPLIER is solely responsible for updating its account information as required and for providing a valid delivery tracking code for each order. BUBS WAREHOUSE PTY LTD will not be liable for any loss, cost, damage, or claim (including for negligence) suffered or incurred by the SUPPLIER in connection with a failure to receive or delay in receiving payment (including, but not limited to, a failure caused by the supply of inaccurate account information or an invalid delivery tracking code).
6.14 BUBS WAREHOUSE PTY LTD may require that the SUPPLIER pays a refund of the full Sale Price, or part thereof, to a User where:
(a) these SUPPLIER Terms and Conditions specify that a refund must be paid;
(b) BUBS WAREHOUSE PTY LTD’s agreements with its payment providers require a refund to be paid;
(c) BUBS WAREHOUSE PTY LTD considers that a refund is required to be provided by law;
(d) you have accepted an order but are unable to fulfil the order within a reasonable period after it is placed;
(e) the User has pursued or obtained a chargeback against BUBS WAREHOUSE PTY LTD from its credit card provider;
(f) BUBS WAREHOUSE PTY LTD considers that the SUPPLIER has breached the SUPPLIER Terms; or
(g) BUBS WAREHOUSE PTY LTD considers that the SUPPLIER has breached the SLA.
6.15 BUBS WAREHOUSE PTY LTD’s determination of whether a refund is payable is absolute and final, and will not be disputed by a SUPPLIER.
6.16 A refund may be paid:
(a) by BUBS WAREHOUSE PTY LTD on behalf of the SUPPLIER, and then by the SUPPLIER reimbursing BUBS WAREHOUSE PTY LTD for the same amount, or by BUBS WAREHOUSE PTY LTD (in its sole discretion), deducting that amount from any subsequent SUPPLIER Fees; or
(b) with BUBS WAREHOUSE PTY LTD’s prior consent, by the SUPPLIER directly to the User.
7. LICENCE AND RESTRICTIONS ON USE
7.1 BUBS WAREHOUSE PTY LTD grants you, as a SUPPLIER, a limited, non-exclusive, non-transferable, revocable, royalty-free licence to use the Site in accordance with these SUPPLIER Terms and Conditions subject to the restrictions set out at clauses 7.2 and 7.3, and compliance with the SUPPLIER obligations at clause 8.
7.2 SUPPLIERS agree not to:
(a) interrupt or attempt to interrupt the operation of the Site in any way, or use the Site in a manner that adversely affects the availability of its resources to other SUPPLIERS or Users;
(b) use the Site for any illegal purpose or in any manner that is inconsistent with these SUPPLIER Terms and Conditions;
(c) 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 Site;
(d) supply any content that: (i ) would cause you or BUBS WAREHOUSE PTY LTD 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.
(e) contact Users or encourage Users to contact You outside the official BUBS WAREHOUSE PTY LTD communication channels.
(f) Supply Users with your direct contact details including, but not limited to, telephone numbers, email addresses and web addresses.
(g) facilitate or attempt to facilitate purchases of Products or Vouchers with Users off Site.
7.3 By using the Site, you acknowledge and agree that:
(a) BUBS WAREHOUSE PTY LTD has the absolute right to change, suspend or remove any Product and/or Voucher offer or other information on the Site at any time;
(b) you will only offer Products or Vouchers for sale for which you have sufficient stock to fulfil orders;
(c) you will advise Users when Products and/or Vouchers for which an order has been made have become unavailable and, in such circumstances, advise BUBS WAREHOUSE PTY LTD such that we can provide a refund to the User if requested;
(d) from time to time, the Site may be unavailable for maintenance and/or updates, or due to unexpected technical issues;
(e) BUBS WAREHOUSE PTY LTD has provided no uptime guarantees in relation to the Site; and
(f) BUBS WAREHOUSE PTY LTD does not guarantee that you will sell any minimum amount of Products and/or Vouchers to Users via the Site.
8. SUPPLIER OBLIGATIONS
8.1 The SUPPLIER agrees, represents and warrants that:
(a) Products and/or Vouchers will be supplied at the Sale Price on the terms and conditions of the SUPPLIER Terms;
(b) at all times during the term of these SUPPLIER Terms and Conditions, it will 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 SUPPLIER agrees that at the same time the SUPPLIER enters into these SUPPLIER Terms and Conditions, it will also become bound by the SLA. The SLA may be amended at any time by BUBS WAREHOUSE PTY LTD by written notice to the SUPPLIER. If the SUPPLIER does not agree to the amended SLA then the SUPPLIER’s sole remedy is to cease listing Products or Vouchers on the Site and to terminate the SUPPLIER’s Account;
(c) Products and/or Vouchers and the terms of sale relating to a Product and/or Voucher as contained in the SUPPLIER Terms comply with all applicable laws, regulations and codes;
(d) the conditions, warranties, guarantees and representations given by the SUPPLIER with respect to a Product and/or Voucher comply with the Competition and Consumer Act 2010, and all other consumer protection laws;
(e) the SUPPLIER will comply with the Competition and Consumer Act 2010,all other consumer protection laws and all other applicable laws;
(f) any descriptions of a Product and/or Voucher are true and not misleading and the Product and/or Voucher is fully and correctly described, and will be provided to the User on the same basis as advertised;
(g) a Product and/or Voucher complies with any relevant safety standards and no interim or permanent ban has been made with respect to a Product and/or Voucher, and there is no product recall in effect in relation to any Product or Voucher;
(h) a Product and/or Voucher does not infringe the intellectual property rights of any person;
(i) the SUPPLIER has authority and the legal right to sell a Product and/or Voucher in the Australian market and the SUPPLIER will furnish such proof at the request of BUBS WAREHOUSE PTY LTD;
(j) all conditions of availability or eligibility for purchase of a Product or Voucher are stated in the SUPPLIER Terms;
(k) it will not provide BUBS WAREHOUSE PTY LTD with any false delivery tracking codes or enter any such codes into the Site;
(l) it will not use the Site to merely contact Users but otherwise sell its Products or Vouchers to such Users independently, outside of the Site;
(m) it will provide BUBS WAREHOUSE PTY LTD with all the necessary information in relation to the sale of a Product and/or Voucher, including but not limited to, shipping tracking/confirmation and Voucher redemption details;
(n) it is responsible for the delivery and supply of the Products and Vouchers to Users in accordance with the terms of the SUPPLIER Terms; and
(o) it will provide a resolution to BUBS WAREHOUSE PTY LTD within the timeframe(s) set out in the SLA in relation to User enquiries or complaints.
(p) It will provide Users with Proof of Transaction for all orders as required pursuant to Section 100 of Australian Consumer Law.
9.1 SUPPLIERS agree to defend, indemnify and hold harmless BUBS WAREHOUSE PTY LTD, its related bodies corporate and their respective directors, officers, employees and agents from and against all loss, cost, expense, damage, claims, demands, suits, actions or proceedings (including legal costs and expenses) arising out of:
(a) the wrongful use of the Site by the SUPPLIER (or caused or authorised by the SUPPLIER);
(b) breach of these SUPPLIER Terms and Conditions or any law by the SUPPLIER;
(c) breach of any terms and conditions of BUBS WAREHOUSE PTY LTD’s payment providers which are caused by the SUPPLIER;
(d) breach of the SUPPLIER Terms in respect of a Product or Voucher; or
(e) any actions, claims, demands, complaints or proceedings made against BUBS WAREHOUSE PTY LTD by a User or other third party which arises due to any act, omission or negligence of the SUPPLIER.
10.1 To the maximum extent permitted by law, BUBS WAREHOUSE PTY LTD provides the Site on an “as is” basis and disclaims and excludes any warranty, guarantee, or representation in connection with the Site or any Products and/or Vouchers offered for sale on the Site, including (but not limited to) a representation that:
(a) a Product and/or Voucher on the Site is available for purchase by a User;
(b) BUBS WAREHOUSE PTY LTD endorses or recommends a Product and/or Voucher on the Site;
(c) BUBS WAREHOUSE PTY LTD endorses or recommends a SUPPLIER or User on the Site;
(d) the Site is free from defects or disruption or will be continuously available or accessible; or
(e) the Site is suitable or fit for use for any purpose or is of merchantable quality, or does not infringe any relevant law, rule or regulation or any other right of a third party.
10.2 Subject to clause 10.3, BUBS WAREHOUSE PTY LTD excludes all liability for any loss, cost, damage, claim, or expense (including for negligence and indirect, consequential, special, or punitive loss or damages) suffered or incurred by a SUPPLIER, a User or any third party in connection with these SUPPLIER Terms and Conditions, the Site, or the SUPPLIER Terms. For the avoidance of doubt, BUBS WAREHOUSE PTY LTD is not liable for any acts, errors, omissions, representations, breaches (including of warranties) or negligence of any SUPPLIER or User.
10.3 Nothing in these SUPPLIER Terms and Conditions 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 these SUPPLIER Terms and Conditions (or the Site) then, to the maximum extent possible, BUBS WAREHOUSE PTY LTD limits its liability in respect of any claim under that law to, at BUBS WAREHOUSE PTY LTD’s election:
(a) in the case of goods, any one or more of the following:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) in the case of services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
10.4 Where BUBS WAREHOUSE PTY LTD’s liability cannot be excluded in accordance with clauses 10.1 and 10.2, SUPPLIERS agree that (to the maximum extent permitted by law) such liability is limited, in aggregate, to payment in an amount equal to the SUPPLIER Fee payable by BUBS WAREHOUSE PTY LTD in respect of the sale of any relevant Product or Voucher.
11. IMPLIED OBLIGATIONS
11.1 Notwithstanding clause 10, for Australian consumers, the SUPPLIER’s Products and Vouchers, and goods and services provided by BUBS WAREHOUSE PTY LTD hereunder, come with guarantees that cannot be excluded under the Australian Consumer Law. If you are an Australian consumer, you may be entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You may also be entitled to have the Products and Vouchers, or BUBS WAREHOUSE PTY LTD’s goods and services, repaired or replaced if they fail to be of acceptable quality and the failure does not amount to a major failure. For more information about these rights please go to www.accc.gov.au.
12.1 Notwithstanding BUBS WAREHOUSE PTY LTD’s right to terminate or suspend your Account at any time in its absolute discretion, or remove any Product or Voucher listing from the Site in accordance with clause 4.5, BUBS WAREHOUSE PTY LTD may terminate these SUPPLIER Terms and Conditions immediately at its sole discretion, with or without notice to you:
(a) at any time prior to the commencement of you listing a Product or Voucher on the Site;
(b) if a SUPPLIER fails to comply with its obligations set out in the SLA; or
(c) if in its reasonable opinion the promotion of a Product and/or Voucher on the Site or association with the SUPPLIER is likely to impair the goodwill or reputation of BUBS WAREHOUSE PTY LTD or its business, or is otherwise prejudicial to BUBS WAREHOUSE PTY LTD, or may place BUBS WAREHOUSE PTY LTD in breach of any law or obligation it owes a third party.
12.2 Subject to your compliance with all obligations arising under these SUPPLIER Terms and Conditions and the SUPPLIER Terms in relation to orders already made, you may terminate these SUPPLIER Terms and Conditions at any time on 30 days written notice to BUBS WAREHOUSE PTY LTD.
12.3 On termination of these SUPPLIER Terms and Conditions:
(a) unless otherwise instructed by BUBS WAREHOUSE PTY LTD, you will continue to supply all orders for Products and Vouchers which were placed by Users prior to termination;
(b) BUBS WAREHOUSE PTY LTD will delete your Account and all of your Product and Voucher listings from the Site, as well as your SUPPLIER profile page; and
(c) BUBS WAREHOUSE PTY LTD will, in accordance with clause 6.9, pay you the unpaid balance of all accrued SUPPLIER Fees.
12.4 Clauses 6.13, 6.14, 6.15, 8.1(d), 8.1(e), 9, 10, 16, 17, 22 shall survive the termination of these SUPPLIER Terms and Conditions.
13. NON SOLICITATION
13.1 You agree that, during the time you are a SUPPLIER selling Products and/or Vouchers on the Site, and for the periods of time set out clause 13.2 following termination of these SUPPLIER Terms and Conditions for any reason, you will not solicit the employment of, employ, accept business from, or independently contract with any officer, employee, subcontractor or consultant of BUBS WAREHOUSE PTY LTD.
13.2 The periods of time to which clause 13.1 applies will be:
(a) two (2) years;
(b) twelve (12) months;
(c) six (6) months.
13.3 Your obligations arising under clause 13.1, when combined separately with each period of time in clause 13.2 , constitutes a separate and distinct obligation. If any such obligation is unenforceable, then that obligation will severed from these SUPPLIER Terms and Conditions without affecting the enforceability of the remaining obligations.
13.4 You agree that if you breach clause 13.1 in respect of an employee, subcontractor or consultant of BUBS WAREHOUSE PTY LTD, that you will pay BUBS WAREHOUSE PTY LTD, as liquidated damages, an amount equal to 50% of the annual salary, or annual payments (as applicable), which have been made by BUBS WAREHOUSE PTY LTD to the relevant employee, subcontractor or consultant measured to the date of your relevant breach. You acknowledge that the forgoing payment represents a true and fair estimate of the loss which BUBS WAREHOUSE PTY LTD will suffer or incur as a result of having to replace the relevant person with a new employee, subcontractor or consultant (as applicable).
14. EMAIL POLICY
14.1 You confirm that, by using the Site, you agree to receive emails from BUBS WAREHOUSE PTY LTD in relation to the purchase, return of or other dealings in relation to Products or Vouchers, and for receiving information on offers (including via the BUBS WAREHOUSE PTY LTD newsletter). You may however opt out of the BUBS WAREHOUSE PTY LTD newsletter at any time via the unsubscribe functionality contained therein.
15. USE OF THE SITE OUTSIDE AUSTRALIA
BUBS WAREHOUSE PTY LTD does not represent that the contents of the Site are appropriate or available for use in countries outside Australia. If SUPPLIERS choose to access the Site from outside Australia, SUPPLIERS are responsible for compliance with foreign and local laws.
17. INTELLECTUAL PROPERTY
17.1 Everything on the Site and all intellectual property rights therein is either owned by us or is licensed to us. Nothing in these SUPPLIER Terms and Conditions affects the ownership of any intellectual property rights owned or licensed by a SUPPLIER, a User, BUBS WAREHOUSE PTY LTD, or any other person.
17.2 Unless expressly authorised under these SUPPLIER Terms and Conditions or otherwise in writing by BUBS WAREHOUSE PTY LTD, you cannot reproduce, adapt, modify, display, perform, distribute, decompile, disassemble or reverse engineer any material (or part thereof) from the Site (including logos, trademarks, brand features and source code) that is the intellectual property of BUBS WAREHOUSE PTY LTD or intellectual property that BUBS WAREHOUSE PTY LTD has permission to use.
17.3 In the event that you post or submit any content to or via the Site or otherwise provide BUBS WAREHOUSE PTY LTD with content by any means, you automatically grant BUBS WAREHOUSE PTY LTD an irrevocable and royalty free global license to use, copy, display or distribute that content. This may include public display of the content on the Site or using ideas or suggestions provided by SUPPLIERS to improve the Site, the Products and/or Vouchers offered on the Site, or related services which BUBS WAREHOUSE PTY LTD offers.
17.4 We may edit, modify, delete, remove, or take down any content which we believe (in our sole discretion) is in breach of these SUPPLIER Terms and Conditions or any law or third party rights without notice to you and without incurring any liability.
17.5 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 these SUPPLIER Terms and Conditions will not breach any relevant law or the rights of any person (including rights of attribution or integrity or against false attribution), and indemnify BUBS WAREHOUSE PTY LTD from and against any loss, cost, damage, or claim suffered or incurred by BUBS WAREHOUSE PTY LTD in connection with your breach or misrepresentation in respect of this clause 17.
18. SUPPORT SERVICES
18.1 SUPPLIERS acknowledge that BUBS WAREHOUSE PTY LTD is appointed by them to assist them with dealing with User queries generally in relation to Products, Vouchers, the Site, or any other matter relating to these SUPPLIER Terms and Conditions, or the SUPPLIER Terms (the “Support Services”).
19. PROBLEMS WITH PRODUCTS OR VOUCHERS
19.1 If a problem arises with respect to the Products or Vouchers that you, as a SUPPLIER, offer for sale on the Site, you are required to:
(a) liaise with relevant Users directly at first instance; and
(b) resolve any issues or disputes with respect to User in accordance with the requirements of the SLA.
19.2 If you, as a SUPPLIER, are unable to resolve an issue or dispute with a User in accordance with the SLA, you must contact BUBS WAREHOUSE PTY LTD via your Account at marketplace.bubswarehouse.com or by requesting BUBS WAREHOUSE PTY LTD assistance in a Zendesk ticket. BUBS WAREHOUSE PTY LTD 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/Voucher returns or refunds, or sending the Products to third parties for assessment or repair (if required)).
19.3 We note, however, that our dispute resolution service is non-binding on Users and SUPPLIERS and is a process whereby BUBS WAREHOUSE PTY LTD will use its reasonable efforts to help facilitate a resolution between Users and SUPPLIERS. BUBS WAREHOUSE PTY LTD has 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.
20.1 BUBS WAREHOUSE PTY LTD may from time to time publish certain rules and procedures in relation your use of the Site or dealings between SUPPLIERS and Users (“Rules”). You agree to comply with these Rules, including as updated or amended from time to time. If there is any conflict between the Rules and these SUPPLIER Terms and Conditions, then these SUPPLIER Terms and Conditions will prevail.
Unless otherwise stated or defined in this SUPPLIER Terms and Conditions, words in this clause 21 have the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (“Act”)
21.2 Subdivision 153-B intermediary arrangement
(a) Where the SUPPLIER makes a supply of Products or Vouchers through the online marketplace 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 SUPPLIER and BUBS WAREHOUSE PTY LTD will make a genuine and continuing effort to facilitate the application of Subdivision 153-B of the Act to any such supply.
(b) BUBS WAREHOUSE PTY LTD will, on behalf of the SUPPLIER, do the following:
(i) make the supply of Products and Vouchers to the User; and
(ii) facilitate the supply to the User (including by issuing invoices relating to, or receiving consideration for, such supplies).
(c) For the purposes of this sub-clause 21.2:
(i) BUBS WAREHOUSE PTY LTD will be treated as making the supply of Products and Vouchers to the User;
(ii) the SUPPLIER will be treated as making corresponding supply of Products and Vouchers to BUBS WAREHOUSE PTY LTD;
(iii) both BUBS WAREHOUSE PTY LTD and the SUPPLIER warrant that they are registered for GST purposes. The SUPPLIER warrants that they will notify BUBS WAREHOUSE PTY LTD within 2 business days if it ceases to be registered for GST;
(iv) BUBS WAREHOUSE PTY LTD will issue to the User tax invoices and adjustment notesrelating to the supply of Products or Vouchers; and
(v) the SUPPLIER will not issue to the User any tax invoices and adjustment notes relating to the supply of Products and Vouchers;and
(vi) Clause 21.2 ceases to have effect if BUBS WAREHOUSE PTY LTD or the SUPPLIER ceases to be registered for GST and shall terminate from the effective date of the cancellation of the registration.
22.1 These SUPPLIER Terms and Conditions, when read together with each SUPPLIER Application Form agreed between the parties and the SLA, 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 these SUPPLIER Terms and Conditions is held to be invalid by a court of competent jurisdiction, such invalidity shall not affect the enforceability of any other provisions contained in these SUPPLIER Terms and Conditions and the remaining portion of these SUPPLIER Terms and Conditions shall continue in full force and effect. The failure of either party to exercise any of its rights under these SUPPLIER Terms and Conditions shall not be deemed a waiver or forfeiture of such rights or any other rights provided hereunder.
22.2 These SUPPLIER Terms and Conditions are governed by and in accordance with the laws of the State of Victoria (exclusive of its rules regarding conflicts of laws). The SUPPLIER and BUBS WAREHOUSE PTY LTD irrevocably submit to the jurisdiction of the Courts of the State of Victoria and their Courts of Appeal in relation to these SUPPLIER Terms and Conditions.
22.3 SUPPLIERS agree and acknowledge that, in the event that there is a change in control in, merger with or sale of BUBS WAREHOUSE PTY LTD or its business to a third party, BUBS WAREHOUSE PTY LTD can disclose personal information or data collected from SUPPLIERS to the third party without giving any notice to SUPPLIERS. BUBS WAREHOUSE PTY LTD is also entitled to assign and novate the benefits of any agreements it has with SUPPLIERS to the third party, without notice to the SUPPLIER.