Terms and Conditions
TERMS AND CONDITIONS OF USE – www.buythebox.co (the Market)
1. This document sets out the terms and conditions on which Mulholland Pty Ltd ACN 131 922 088 (the Market Operator) operates this online market by providing communication services between Sellers and Buyers and some ancillary services.
2. By using the Market as either a Seller or a Buyer (or browsing it as a Viewer without becoming either), you accept these terms and conditions, including any updates posted from time to time on https://buythebox.magestage.net/terms. The Market Operator may update these terms and conditions at any time by posting them at that page. Each Seller and each Buyer accepts the responsibility to check that page for changes before transacting on the Market.
3. The Market Operator neither sells nor buys any of the goods listed on the Market. The Market Operator's core role is merely to provide communication services and a venue in which Sellers and Buyers may reach agreements between themselves for the sale and purchase of goods.
BECOMING A BUYER
4. To purchase goods on the Market you must register as a Buyer. To register as a Buyer you must specify whether you are a Consumer Buyer or a Business Buyer, and if you are a Business Buyer you must provide your ABN. In some cases the Market Operator may request further information before allowing you to register as, or continue to be registered as, a Buyer, including identification and 'Know Your Customer' information. The Market Operator may approve or reject or cancel any registration as a Buyer for any reason, and without giving any reason.
BECOMING A SELLER AND LISTING GOODS
5. To list goods for sale on the market you must register as a Seller. To register as a Seller you must provide all information requested by the Market Operator, including your ABN and 'Know Your Customer' identification details. All registrations as Sellers are subject to approval by the Market Operator, and the Market Operator may approve or reject or cancel any registration as a Seller for any reason, and without giving any reason.
6. The goods listed for sale on the Market must be packaged food and drink products and associated products.
7. Where the goods listed for sale are subject to a use by date, best before date and/ or any other expiry date, the Seller must ensure that at the date of delivery those products have at least fourteen days left until their expiry or best before date passes, unless alternative expiry date arrangements are clearly stated in the listing.
8. Where the goods are “perishable” and would customarily be stored and transported in temperature-controlled facilities and equipment (ie: any product requiring temperature control, including but not limited to, meat, fish, poultry, eggs, dairy products, fruit and vegetables, beverages and frozen meals) but the Seller selects or allows a non-temperature controlled carriage service, the Seller is responsible for packing the goods to maintain adequate temperature control and for any Buyer claims arising from the goods not having their temperature maintained, and must indemnify the Market Operator and the transport provider against any Claims made against them in connection with a failure to maintain the goods’ temperature.
9. The Seller must ensure that all goods listed on the Market comply with the Food Standards Code and all other laws, including in relation to labelling.
10. If it becomes aware of any safety risk or recall applicable to goods it has listed on the Market, the Seller must immediately advise the Market Operator, delist those products and must contact those Customers who have purchased, or may have purchased, affected products. If the Market offers a communications facility for this or states in a published policy that this contact must be made in cooperation with the Market, then it must do so in cooperation with the Market Operator.
11. The terms and conditions of any sale via the Market will be those specified on the Market and in these terms. A Seller or Buyer may not impose its own additional or substitute terms unless specifically approved in advance in writing by the Market Operator.
CONDUCTING A TRANSACTION
12. On a Buyer placing and paying for an order for goods and a Seller accepting it or failing to place it on ‘cancel’ or ‘hold’ status via the Market software within 24 hours of it being placed, an agreement between the Buyer and the Seller for the supply of those goods at the price indicated on the listing will come into effect.
13. Each Seller authorises the Market Operator to issue a tax invoice to the Buyer on its behalf for each transaction.
14. A Seller may cancel an order after accepting it only if it discovers that it is unable to fulfil it. A Buyer may not cancel an order after placing it.
15. Subject to the Market Operator fulfilling any obligations under the optional Logistics Services Terms, and subject to Force Majeure Events the Seller must ensure that that the Buyer receives the goods ordered within the delivery timeframe indicated on its listing.
16. Each Seller must pay the Market Operator the Transaction Fees agreed between the Seller and the Market Operator from time to time. If no specific Transaction Fees are agreed with a Seller, the Market’s default Transaction Fees will be deemed to have been agreed. The Market Operator may vary the Transaction Fees on 30 days' notice. Notice will be deemed to have been given if the Market Operator transmits the updated fees to the email address registered on the Seller’s profile.
17. Each Seller authorises the Market Operator to receive payment from Buyers on behalf of the Sellers for all products sold on the Market. The Market Operator must remit those payments to the Seller, net of any Authorised Deductions, within the timeframes agreed with the Seller. The Market Operator may vary the payment timeframes on 30 days' notice. For Sellers with specifically agreed payment timetables notice will be deemed to have been given if the Market Operator transmits the update timetables to the email address registered on the Seller’s profile.
18. Authorised Deductions are Transaction Fees, Logistics Services Fees (if applicable), Return Credits (if applicable), Payment Reversals (if applicable) and any other amounts owed by the Seller to the Market Operator or (in connection with a transaction on the Market) to any Buyer and any others specifically agreed between a Seller and the Market Operator.
FAIR AND ACCEPTABLE USE
19. Each Seller, Buyer and Viewer must only use the Market for its intended purpose, of facilitating sales of packaged food and drink and associated products via the Market's own sale and payment mechanisms, and not for any other purpose.
20. A Seller or Buyer must not encourage or invite Buyers, Viewers or other Sellers that it transacts with via the Market or that browse its listings on the Market to transact with it outside of the Market.
21. The Market Operator may delist any listing at any time and for any reason, including any person alleges that it, or if the Market Operator otherwise suspects that it might, breach any person's intellectual property rights, breach or result from a breach of any person's contractual rights (including exclusive distribution rights), offend or shock or insult any person, defame any person or bring the Market into disrepute.
22. Each Seller, Buyer and Viewer must conduct its dealings via the Market in good faith, without engaging in practices such as feedback manipulation or any denigration of any person.
23. A Seller must not list alcohol, nitrous oxide or any other products which are age-restricted or liable to be abused as a drug on the Market unless separately agreed in writing (such as by letter, email or a messaging facility within the Market) with the Market Operator.
24. The mere entry of a listing into and appearance of a listing on the Market will not be taken to be any form of approval of that listing by the Market Operator.
25. The Market Operator makes no representation that the Market will be online or available to all or any particular Sellers or Buyers or Viewers for any particular period or at any particular time. The Market is dependent upon third-party infrastructure, will require maintenance and modification from time to time and may be suspended, terminated or modified in any way at any time.
26. The Intellectual Property Rights in the Market and any software, handbooks or other materials developed in relation use of the Market vest (as between the Buyer, Seller and Market Operator) in the Market Operator. A Buyer, Seller or Viewer must not claim ownership of any such rights, must not imitate any distinctive functions or design elements of the Market and must not publish content from the Market anywhere else.
27. Each Seller grants the Market Operator a worldwide, irrevocable, royalty-free licence to use (and permit others to use) the Intellectual Property Rights associated with any products sold by the Seller solely for the purposes of operating the Market and promoting the Market.
28. Each Seller indemnifies the Market Operator against any Claims made against the Market Operator for infringement or alleged infringement of any person's Intellectual Property Rights in relation to the sale of products listed by that Seller on the Market.
COMPLAINTS, DISPUTES, RETURNS AND PAYMENT REVERSALS
29. In the case of any complaint by a Buyer about goods (or non-delivery of goods) sold via the Market the Seller must immediately advise the Market of the complaint and of future communications in relation to the complaint. If the Market Operator chooses to, it may appoint itself to determine whether or not the Buyer's complaint is warranted and, if it is, the manner and amount in which the Seller should provide redress. The Market Operator may appoint itself to this role at any point during the process. The Market Operator will not be acting as an arbitrator and may take into account considerations including transaction size, the nature of the Buyer, the nature of the Seller and the reputation of the Market in fulfilling this role.
30. The Seller, not the Market Operator, bears the risk of any cancellations, reversals or refunds of Buyer payments of any sort, including chargebacks, stolen credit card details, disputes and the like ('Payment Reversals') and must reimburse the Market Operator for any such Payment Reversals on demand.
31. LOGISTICS SERVICES
By giving 30 days’ written notice to the mail address registered on the Seller’s profile, he Market Operator may require a Seller or Sellers to use delivery services provided by the Market Operator. In respect of those delivery services:
a. the Market Operator is not a common carrier, and may refuse deliveries at will;
b. the Seller must make the goods available for collection, promptly and in appropriate packaging for each delivery, at the agreed collection location at all reasonable times during the agreed collection window;
c. if it has been agreed that the goods will be transported within a particular temperature range, the Seller must ensure that the goods are provided to the Market Operator or its contractors within that temperature range and have been kept within that temperature range in all prior transport and storage;
d. the Seller must ensure that each package is clearly labelled with the name and address of the recipient and the number of packages to be delivered to the recipient;
e. the size and weight of each package must be as agreed between the Seller and Market Operator;
f. the Market Operator's liability in respect of the delivery services is limited to performing the relevant services again or paying the cost of having the relevant services performed again;
g. any duties imposed on bailees by the general law (including in respect of negligence and mis delivery) are excluded, and the Market Operator's duty is only to use reasonable, industry-standard care in providing the services;
h. the Seller must continue to insure the goods until they are delivered to the Buyer;
i. the Seller must pay the Market Operator the fees specified in the applicable notice from the Market Operator; and
j. the Market Operator must specify the fees for the delivery services in an email to the email address registered in the Seller’s profile, and may change those fees in the same manner, on 30 days’ notice.
32. The Market Operator accepts no liability whatsoever in relation to the quality or safety of goods sold on the Market, and each Customer releases the Market Operator from any Claims they may have in relation to those matters.
33. Each Seller indemnifies the Market Operator against any Claims arising from any defect in or alleged defect in, or any delay or failure to deliver, any goods sold via the Market or arising from any breach of these terms by the Seller or from any communication or content uploaded by the Seller.
34. The Market Operator will in no circumstances be liable to any Seller, Buyer or Viewer for any indirect, special or consequential loss and any loss of profits, loss of revenue, loss of goodwill, loss or damage due to business interruption or loss of production, whether in connection with the Market itself or the Logistics Services or other ancillary services.
35. GST between Buyers and Sellers is a matter for the Buyers and Sellers. The Market Operator will automatically treat all products sold by Sellers as subject to GST when issuing an invoice on the Seller's behalf unless the Seller specifically designates a product as GST-free via the Platform's facility for doing so. In the case of any returns, refunds or credits, each Seller and Buyer must do anything the Market Operator reasonably instructs them to do to reflect the appropriate adjustments to the GST position.
36. The Transaction Fees and Logistics Services Fees are GST-exclusive. The Seller must pay any GST payable by the Market Operator in respect of the Services, at the GST rate that prevails from time to time, and at the same time as it is required to pay those principal amounts.
37. The Market Operator must deliver a valid tax invoice for any GST paid to it.
38. Currently, the Market is designed for transactions between Australian Buyers and Sellers. By using the Market each Buyer and Seller undertakes that they are buying or selling in Australia and that each Buyer undertakes that it expects the goods will be ultimately consumed in Australia.
40. Sellers, Buyers and Viewers acknowledge that the Market may report data to AUSTRAC or other government regulatory and law enforcement authorities.
41. In this agreement:
a. Authorised Deductions are described in clause 15.
b. Buyer means a person who buys or attempts to buy goods via the Market.
c. Claims means claims, allegations, notices, proceedings and regulatory action by any person, including a Buyer or a regulatory authority, and the losses, costs, damage and expenses arising from them.
d. Force Majeure Event means anything outside the reasonable control of a party (other than a shortage of funds) war, acts of God or the public enemy, national emergencies, radioactive contamination, insurrection, riot, hostile or warlike action, sabotage, terrorism, cyber-attack, cyber activism, cyber sabotage, cyber terrorism, malware, telecommunications failure, telecommunications congestion, epidemic or pandemic or industrial action.
e. Intellectual Property Rights means all intellectual property rights of any kind, in any jurisdiction, subsisting now or in the future (including, without limitation, business, company or trade names, domain names, patents, inventions, copyright, design rights, know-how, trademarks, the right to sue for passing off and rights to use, and protect the confidentiality of, confidential information), whether registered or unregistered, and including the rights to apply for or renew the registration of any such rights and any rights the subject of any lapsed application or registration.
f. Logistics Services Fees means the fees for optional delivery services provided by the Market Operator, as described in clause 28.
g. Logistics Services Terms means the terms for optional delivery services provided by the Market Operator, set out in clause 28.
h. Market means the online market described in the heading.
i. Market Operator means Mulholland Pty Ltd ACN 131 922 088.
j. Payment Reversals are the events described in clause 30 and any other circumstances or events which have the effect of depriving the Market Operator or a Seller of the benefit of a payment it appeared to have received.
k. Return Credits means any refund, credit or other compensation that is owed or that the Market Operator determines is owed by a Seller to a Buyer.
l. Seller means a person who sells or attempts to sell goods via the Market.
m. Transaction Fees means fees for selling or listing on the Market, as described in clause 18.
n. Viewer means a person who accesses or browses the Market or any of its content, regardless of whether it subsequently becomes a Buyer or Seller.
INTERPRETATION AND GOVERNING LAW
42. These terms are governed by the laws of Victoria, Australia and the parties submit to the jurisdiction of the courts of that state.
43. In these terms the singular includes the plural and vice versa, 'includes' or similar expressions do not operate as limitations and the terms will not be interpreted against the interest of a party merely because that party produced them.