FULL SELLER TERMS & CONDITIONS
Below are the full terms and conditions for suppliers who are selling and promoting products via Locals Direct.
In this Agreement:
Agreement means the agreement entered into between Locals Direct and the Supplier, whereby Locals Direct operates the Website on which the Supplier advertises and sells its Goods and/or Services to the Purchaser;
Australian Consumer Law means the Australian Consumer Law (being Schedule 2 to the Competition and Consumer Act 2020 (Cth));
Business Day means a day on which banks are open for business in Melbourne, Australia, excluding a Saturday, Sunday or public holiday;
Confidential Information means:
(a) any trade secrets of the Parties;
(b) Intellectual Property;
(c) technical, operational, procedural or financial information of the Parties; and
(d) any information that either of the Parties is made aware of as, or is marked as, being confidential;
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth), as amended from time-to-time;
Goods means the goods that the Supplier agrees to advertise for sale to the Purchaser through the Website, in accordance with the terms and conditions of this Agreement;
Insolvency Event means the occurrence of any of the following events or circumstances:
(a) either Party becomes insolvent;
(b) proceedings are commenced against either Party to appoint a liquidator or provisional liquidator;
(c) either Party is placed under official management or administration (whether voluntary or otherwise);
(d) any trustee, receiver or receiver and manager is appointed in respect of any material part of either Parties’ assets;
(e) either Party is deregistered, or steps are taken to de-register the Party;
(f) either Party suspends payment of its debts generally; or
(g) either Party ceases, or threatens to cease, carrying on business;
Intellectual Property means all present and future intellectual and industrial property rights, whether protected by statute, at common law or in equity, including any patent, registered design, invention, trade secret, technical information, trade mark, copyright, know-how, concept, idea, process, data or formula;
Locals Direct means C Pell & NL Pell, trading as Locals Direct Online (ABN 68 447 849 929);
Party means either Locals Direct or the Supplier, and Parties means both of them;
Price means the price specified in Schedule 1 that the Supplier agrees to pay Locals Direct to have its Goods and/or Services advertised on the Website in accordance with the terms and conditions of this Agreement;
Purchaser means the person that purchases the Supplier’s Goods and/or Services through the Website;
Services means the services specified in Schedule 1 that the Supplier agrees to advertise for sale to the Purchaser through the Website in accordance with the terms and conditions of this Agreement;
Special Conditions means those special conditions specified in Schedule 1, which form part of this Agreement;
Supplier means the supplier named in Schedule 1, who agrees to advertise its Goods and/or Services on the Website for sale to the Purchaser;
Term means the period from when this Agreement commences until it ends, as specified in Schedule 1; and
Website means the website located at www.localsdirect.com.au, which is owned and operated by Locals Direct.
2.1 These rules of interpretation apply throughout this Agreement unless the context requires otherwise:
(a) the singular includes the plural and vice versa;
(b) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(c) a reference to a clause, schedule or annexure is a reference to a clause of or a schedule or annexure to this Agreement;
(d) a reference to a party to this Agreement includes the party's successors, permitted substitutes and permitted assigns;
(e) a reference to dollars or currency is to Australian currency unless otherwise indicated;
(f) the mention of anything after “includes”, “including”, “for example” or similar expressions does not limit what else might be included;
(g) a reference to time is to the time in Melbourne, Australia;
(h) headings are for convenience only and do not otherwise affect the interpretation of this Agreement; and
(i) if the day on which any act, matter or thing is to be done under or pursuant to this Agreement is not a Business Day, that act, matter or thing must be done on or by the next Business Day.
3.1 Any Special Conditions:
(a) bind the Parties, and
(b) if inconsistent with any other provisions of this Agreement, override them.
3.2 Save with Locals Direct’s prior written consent, this Agreement prevails over any other previous general or specific agreement that the Supplier purports to rely upon.
3.3 Electronic signatures shall be sufficient for the purposes of this Agreement provided that the Parties have complied with the Electronic Transactions Act 2000 (Vic).
3.4 The Supplier warrants that:
(a) it has read this Agreement, and fully understands, comprehends and agrees to the terms and conditions contained herein;
(b) it has had the opportunity to obtain independent legal advice in relation to this Agreement, including its rights and obligations under it; and
(c) it has full power and authority to enter into this Agreement.
3.5 Any person signing or accepting this Agreement for and on behalf of the Supplier hereby covenants with Locals Direct that he, she or it, has the authority of the Supplier to enter into this Agreement on its behalf and is empowered by the Supplier to bind it to this Agreement. Such person hereby indemnifies Locals Direct against all losses, costs and claims incurred by Locals Direct as a result of the person failing to have such power and/or authority.
3.6 Where the Supplier is more than one person, liability is joint and several.
4.1 The Supplier agrees that:
(a) Locals Direct merely provides the Website as a platform through which the Supplier may advertise its Goods and/or Services for sale to the Purchaser;
(b) Locals Direct and the Supplier are independent parties;
(c) nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, employment or fiduciary relationship between Locals Direct and the Supplier; and
(d) neither Locals Direct or the Supplier has the authority to contract on behalf of or to otherwise bind the other in any manner whatsoever.
4.2 Locals Direct agrees to provide the Supplier with the non-exclusive right to advertise its Goods and/or Services on the Website for sale, in consideration for the Supplier agreeing to pay the Price to Locals Direct.
5.1 This Agreement is for the Term, unless terminated earlier.
6.1 Locals Direct agrees to:
(a) operate and administer the Website; and
(b) allow the Supplier to advertise its Goods and/or Services on the Website, provided the Supplier complies with its obligations under this Agreement.
6.2 Locals Direct will perform its obligations under this Agreement:
(a) with reasonable skill and care and in accordance with recognised standards and codes of practice;
(b) by utilising appropriately skilled, qualified and experienced employees, sub-contractors or agents;
(c) in a timely, safe and professional manner, having regard to the needs of the Supplier as made known to Locals Direct; and
(d) in accordance with all applicable laws and regulations.
7.1 The Supplier must:
(a) promptly provide Locals Direct with any information and instructions necessary to enable Locals Direct to perform its obligations under this Agreement; and
(b) comply with all applicable laws and regulations in performing its obligations under this Agreement.
7.2 When advertising Goods for sale on the Website, the Supplier guarantees that:
(a) it has the right to sell the Goods;
(b) there is a readily available supply of the Goods;
(c) the Goods will be of acceptable quality and free of defects;
(d) the Goods will be fit for any purpose that the Purchaser makes known to the Supplier; and
(e) the Goods will be safe.
7.3 When advertising Services for sale on the Website, the Supplier guarantees that the Services will be:
(a) performed with due care and skill;
(b) performed within a reasonable period of time; and
(c) fit for any purpose made known to it by the Purchaser.
8.1 The Supplier acknowledges and warrants that:
(a) Locals Direct makes no representations or guarantees of the level of sales that may be achieved by the Supplier as a result of advertising its Goods and/or Services on the Website;
(b) it does not rely, nor is it reasonable to rely, on the skill or judgment of Locals Direct as to whether the Website is an appropriate medium through which to meet the business purposes and objectives of the Supplier;
(c) Locals Direct will not be held liable:
(i) to the Purchaser or any third party as a result of the Supplier breaching any of the guarantees it has provided under clauses 7.2 and 7.3 of this Agreement;
(ii) for any direct loss or damage suffered by the Purchaser in excess of the Price, including as a result of negligence, breach of contract or otherwise; and
(iii) for any indirect or consequential loss or damage whatsoever caused to the Supplier or any third party, including as a result of negligence, breach of contract, misrepresentation, malfunctioning of the Website or otherwise. Such indirect or consequential loss includes, without limitation, loss of actual or anticipated profits, loss of overheads, loss of opportunity, loss of contract or loss of revenue.
9.1 In the event that Goods sold through the Website are damaged, faulty or incomplete, the Supplier agrees to resolve the issue with the Purchaser in accordance with its obligations under the Australian Consumer Law.
10.1 To the fullest extent permitted by law, the Supplier agrees to indemnify Locals Direct:
(a) in respect of any costs, loss and/or damage suffered by Locals Direct (including legal costs on a full indemnity basis) as a result of the Supplier breaching any of its obligations under this Agreement; and
(b) against all claims made against it by any person (including the Purchaser) relating to loss of or damage to any property and/or personal injury or death that in any way arises from the Supplier selling Goods and/or Services through the Website, including (without limitation) as a result of the Supplier breaching its obligations under this Agreement or the Australian Consumer Law.
11.1 The Supplier warrants that:
(a) unless otherwise agreed between the Parties, it will make payment in full to Locals Direct within 14 days of receiving an invoice rendered in accordance with the GST Act;
(b) it will not make any deduction from any invoice on account of any set-off or counterclaim;
(c) in the event that it disputes an invoice issued by Locals Direct, it must provide written notice to Locals Direct within 7 days of the date of the disputed invoice, detailing the grounds of such dispute. Any dispute raised outside of this 7-day period is of no effect, and the Supplier is deemed to have accepted such invoice;
(d) Locals Direct reserves the right to issue partial payment invoices as and when services are provided under this Agreement; and
(e) in the event that it wishes to in any way vary, modify or add to the services provided by Locals Direct under this Agreement, Locals Direct will be entitled to adjust the Price accordingly. In such circumstances, Locals Direct will notify the Supplier in writing of the change in Price within a reasonable period of time.
11.2 If the Supplier defaults in paying the Price to Locals Direct under this Agreement, Locals Direct may in its absolute discretion (and in addition to any other rights it may have):
(a) charge the Supplier interest on the outstanding amount, from the due date until the date that payment is received, at the rate prescribed from time-to-time by the Penalty Interest Rates Act 1983 (Vic) plus 2%;
(b) suspend performance of its obligations under this Agreement;
(c) terminate this Agreement; and
(d) require the Supplier to indemnify it for all costs incurred (including legal costs on a full indemnity basis) as a result of the default.
11.3 An election by Locals Direct to exercise any of its rights under clause 11.2 will not preclude it from subsequently exercising another of them.
12.1 Unless the context requires otherwise, terms in this clause 12 that are defined in the GST Act have the same meaning as in that Act.
12.2 Unless otherwise agreed between the Parties, any amount payable under this Agreement is exclusive of goods and services tax (GST).
12.3 If one of the Parties (referred to in this clause 12 as “the Supplier”) makes a supply under or in connection with this Agreement on which GST is imposed (not being a supply the consideration for which is specifically described as being ‘GST inclusive’), then upon receipt of an invoice rendered in accordance with the GST Act:
(a) the recipient of the supply (the Recipient), in addition to the consideration payable or to be provided for that supply, must also pay to the Supplier an amount equal to the GST payable on that supply; and
(b) such additional amount on account of GST must be paid to the Supplier by the Recipient at the same time and in the same manner as consideration for the supply is payable or to be provided.
12.4 Any amount that the Recipient is required to reimburse the Supplier for under clause 12.3 will be reduced by the amount of any input tax credit to which the Supplier is entitled.
13.1 Both Parties agree not to disclose, nor permit any of their respective officers, employees, agents, sub-contractors or related companies to disclose, any Confidential Information of the other Party that they may receive as a result of this Agreement, unless the disclosure:
(a) is required by law;
(b) relates to information that is already in the public domain, other than as a result of a breach of confidentiality;
(c) is required to enable the Party disclosing the Confidential Information to perform its obligations under this Agreement, and only then to the extent necessary; or
(d) is agreed to in writing by the Party whose Confidential Information is being disclosed, and only to the extent to which that permission is given.
14.1 Each of the Parties retains ownership of its own Intellectual Property that was in existence at the commencement of the Term.
14.2 Each of the Parties grants to the other party a royalty free, non-transferable, non-exclusive right to use the Intellectual Property stated in clause 14.1 for the purposes of performing their obligations under this Agreement.
14.3 Unless expressly agreed otherwise in writing between the Parties, any Intellectual Property created under this Agreement during the Term becomes the property of Locals Direct and the Supplier agrees to execute any document reasonably required by Locals Direct to evidence and/or perfect such ownership.
14.4 Locals Direct agrees to grant the Supplier with a licence to use all Intellectual Property created under clause 14.3, which the Supplier reasonably requires in order to fulfil its obligations under this Agreement.
15.1 Either Party may terminate this Agreement immediately by providing written notice if the other Party:
(a) commits a material breach that is not capable of being remedied; or
(b) commits a material breach that, whilst capable of being remedied, is not remedied to the reasonable satisfaction of the non-breaching Party within ten Business Days of receiving a written notice requiring it to do so; or
(c) suffers an Insolvency Event.
15.2 Either Party may terminate this Agreement for any reason by providing the other Party with twenty days’ prior written notice.
15.3 If the Supplier terminates this Agreement pursuant to clauses 15.1 or 15.2, Locals Direct is entitled to be paid for the services it provided to the Supplier under this Agreement prior to the date of termination.
15.4 If the Supplier terminates this Agreement pursuant to either clause 15.1(c) or 15.2, then in addition to its obligations under clause 15.3, the Supplier must also reimburse Locals Direct for any non-recoverable expenses properly and directly incurred by Locals Direct prior to the date of termination in anticipation of providing its services to the Supplier.
15.5 On termination of this Agreement, each Party must return to the other Party within ten Business Days of termination any equipment, tools, documentation or other material (including that containing Confidential Information) belonging to that other Party.
15.6 Termination of this Agreement does not prejudice any other rights or remedies that have accrued to either Party under, or in respect of, any breach of this Agreement by the other Party.
16.1 If either Party is prevented or delayed from performing its obligations under this Agreement as a result of an event or occurrence beyond the reasonable control of that Party, such as (without limitation) fire, flood, storm, earthquake, epidemic, explosion, riot, natural disaster, war, terrorism, sabotage, civil disturbance, labour disputes (including lockouts, strikes or industrial action of any kind), or an act of God or by any government authority, then:
(a) performance of that Party’s obligations is suspended to the extent of the prevention or delay; and
(b) non-performance or delay in performance will not constitute a breach of this Agreement by that Party.
16.2 Upon becoming aware of the event or occurrence preventing or delaying performance of its obligations under clause 16.1, the affected Party must immediately provide the other Party with written notice outlining the nature of that event or occurrence.
16.3 If suspension of a Party’s obligations under clause 16.1 continues for more than one month, then either Party may terminate this Agreement by serving the other Party with written notice, in which case:
(a) the Parties are only liable for failure to perform obligations accruing prior to the suspension; and
(b) Locals Direct will be entitled to be paid in accordance with clauses 15.3 and 15.4.
17.1 Any notice, consent or other communication required or permitted to be served by the Parties under this Agreement will be deemed sufficiently served if delivered by hand or sent by prepaid post or email to the other Party’s address for service as agreed between the Parties from time-to-time.
17.2 A notice given in accordance with clause 17.1 is taken to be received:
(a) if hand delivered, on delivery;
(b) if sent by prepaid post, three Business Days after the date of posting; or
(c) if sent by email, upon sending unless the sender receives an automated message that the email has not been delivered.
18.1 Time is of the essence for the performance of both Parties’ obligations under this Agreement.
19.1 This Agreement is governed by, and is to be construed and to take effect in accordance with, the laws of Victoria.
19.2 Both Parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of Victoria.
20.1 This Agreement contains the entire agreement and understanding between the Parties in respect of the matters dealt with herein. On the signing of this Agreement, the Parties acknowledge and agree that any previous agreements, understandings, representations and negotiations regarding the subject matter of this Agreement will cease to have any effect.
21.1 This Agreement is not to be construed to the disadvantage of a Party because that Party was responsible for its preparation.
22.1 If any covenant, obligation or provision in this Agreement or any part thereof is declared to be invalid, illegal or unenforceable as a result of any law, rule of equity or government regulation, then it must be read down and, to the fullest extent possible, given effect to. If it cannot be read down, then it shall be of no effect and will be deemed to be severed from this Agreement. The remaining covenants, obligations and provisions of this Agreement will not be affected thereby and will remain valid and enforceable to the fullest extent permitted by law.
23.1 This Agreement may not be varied, modified or altered in any way, except in writing signed by or on behalf of both Parties.
23.2 Both Parties must act reasonably in deciding whether to agree to any variation of this Agreement as requested by the other Party.
24.1 Except as provided for in this clause 24, neither Party may assign, novate or otherwise deal with its rights and obligations under this Agreement without the consent of the other Party acting reasonably.
24.2 The Supplier acknowledges and agrees that Locals Direct may engage sub-contractors to provide any or all of its services under this Agreement.
24.3 Locals Direct’s obligations under this Agreement are not reduced or otherwise affected by sub-contracting the performance of any or all of its obligations under clause 24.2.
25.1 A waiver given by either Party, in respect of a breach of a provision of this Agreement by the other Party, will not constitute a waiver in respect of any other breach of that or any other provision.
25.2 A waiver of any provision of this Agreement, or consent to any departure by a Party from any provision of this Agreement, must be in writing and signed by the Parties and is effective only to the extent for which it is given.
25.3 The failure, delay, relaxation or indulgence on the part of either Party in exercising any power, right or remedy available to that Party as a result of a breach of this Agreement by the other Party does not operate as a waiver of such power, right or remedy. Any single exercise of any power, right or remedy does not preclude any other or further exercise of that power, right or remedy or any other power, right or remedy under this Agreement.
26.1 The Parties’ rights and obligations under this Agreement that are expressed as surviving termination and/or expiry of this Agreement, or which by their very nature or context must survive termination and/or expiry, will survive such termination and/or expiry of this Agreement.