Marketplace Manager - Terms & Conditions

The platform under the name “MerchantSpring” and its related services, products, websites, tools and applications (“Platform”) is owned and operated by Swift Image Pty Ltd ACN 613 105 481 trading as MerchantSpring ("MerchantSpring").


Before using the Platform, you must read these terms and conditions (“Terms and Conditions”) and all other policies. By using the Platform you agree to be automatically bound by these Terms and Conditions and our Privacy Policy. If you don’t agree to be bound by these Terms and Conditions, you must not use the Platform. These Terms and Conditions may be updated by us from time to time, and the updated Terms and Conditions will apply from the date they are published on the Platform. Each time you use our Platform you should revisit these Terms and Conditions. These Terms and Conditions are effective as at 1 June 2019.


Definitions & Interpretation

Definitions
In these Terms and Conditions unless inconsistent with the context or subject matter:

“Account” means a User’s account to use our Services;
“Applicable Laws” means any applicable laws (including orders, by-laws and regulations) in the jurisdiction in which you are located;
"Intellectual Property" means all intellectual property rights, including without limitation inventions, patents, copyright, trademarks, know-how, processes, concepts, including our content, the Platform and any other platform developed by MerchantSpring and the source code for those systems and any application or right to apply for registration of any of these rights throughout the world whether registered or unregistered and whether developed before or after the date of these Terms and Conditions;
“Loss” means any loss, liability, cost (including legal costs on a solicitor and own client basis), charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence);
“our”, “us” and “we” means MerchantSpring;
“Privacy Policy” means the terms of the MerchantSpring Privacy Policy published on the Platform as amended from time to time;
“Services” means any services we provide to you, including the Platform;
“User” means any person who uses the Platform; and
“you” and “your” means a User.
Interpretation
In these Terms and Conditions, unless inconsistent with the context or subject matter:

a reference to a person includes any other legal entity and vice versa;
words importing the singular number include the plural number and vice versa;
a reference to a party includes the party's heirs, executors, successors and permitted assigns;
headings are for reference purposes only;
where any word or phrase is given a defined meaning any other part of speech or other grammatical form concerning the word or phrase has a corresponding meaning;
references to writing include any mode of representing or reproducing words in tangible and permanently visible form, and includes e-mail;
an obligation of two or more parties binds them jointly and each of them severally.
Using The app
The Platform is a self-service tool to assist you in managing your online marketplace yourself.
The Platform will provide you with general information as well as the ability for you to connect a third party marketplace through the API provided, to enable the Platform to provide you with curated tips, recommendations and ideas based on sales information that you input.
Although the Platform provides information, tips, recommendations and ideas to assist you in managing your marketplace, you acknowledge that you use the Platform at your sole risk. Please review the disclaimer in clause 11 as it contains important information in this respect.
Your Account
Our Services are available only to, and may only be used by, persons who can form legally binding contracts under Applicable Laws. If you do not qualify, please do not use our Services.
To access and use the Platform, you will need to register with us and set up an Account with your email address and a password or similar. You are solely responsible for maintaining the confidentiality of your login information and you are liable for all activities that happen under your Account, even if you do not authorise such activities. Access to the Platform is made through login on cloud services.
If we enable you to connect to the Platform with a third-party service (e.g. eBay or Amazon), you hereby grant us permission to access, store, and use your Information from that service as permitted by that service and as may be described in our Privacy Policy. Immediately contact us if you believe your Account has been compromised or misused in any way.
Prohibited use
Your use of the Platform and our Services, and your information, must not:
be false, inaccurate or misleading;
be fraudulent or deceptive;
be unlawful or dangerous;
be in any manner which could damage, disable, overburden, or impair the Platform or interfere with any other party's use and enjoyment of this Platform;
infringe any third party’s rights or violate any Applicable Laws;
contain any viruses or similar which could affect the integrity, operation or security of this Platform;
create liability for us or cause us to lose (in whole or in part) the services or custom of our internet service provider, other Users or other suppliers;
damage the credibility or integrity of the Platform or MerchantSpring, or dilute, tarnish, or otherwise harm our brand in any way;
breach or violate any of our policies;
copy, store or otherwise access or use any information contained on the Platform for purposes not expressly permitted by these Terms and Conditions;
use the Platform for any purposes that are not permitted by these Terms and Conditions or in any way that is inconsistent with the purpose of the Platform, or in a manner that falsely implies MerchantSpring endorsement, partnership or otherwise misleads others as to your affiliation with MerchantSpring;
attempt to circumvent payment of any fees in anyway;
circumvent, disable or otherwise attempt to interfere with any security related features;
be to resell or provide the Services for a commercial purpose; and/or
use our Platform in connection with the distribution of unsolicited commercial email ("spam") or advertisements.
pricing
MerchantSpring reserves the right, in its sole discretion, to charge Users a fee, and to modify or terminate any fees, services, or charges on the Platform at any time and without prior notice. If we charge a fee for any Service, the fee payable by you for that Service is the then current fee stated on the Platform at the time the Service is purchased.
All fees will be payable in advance. By purchasing a subscription to the Platform you authorise us to charge your payment method immediately and on a pre-pay basis for the period indicated on the Platform.
In our discretion we may offer free or discounted pricing for use of the Services. The terms of such use and any limitations will be as specified on the Platform at the time the Service is used. If we offer you a trial program, once the terms of that trial program have expired you agree that our normal billing rates shall apply. You agree to comply with any restrictions or limitations place on your Account during any free or discounted pricing term.
Users who use the Platform may also elect to participate in certain addons or functionality of the Platform which must be paid for in advance.
You authorise MerchantSpring, directly or through third parties, to make any inquiries we consider necessary to help verify or check your identity or prevent fraud. This may include asking you to provide a form of government identification (e.g. driver’s license or passport), your date of birth, and other information requiring you to take steps to confirm ownership of your email address and payment or payout methods (e.g. credit card, debit card, PayPal, or direct deposit.
You acknowledge and agree that we are entitled to discontinue any aspect of the Services you may be using if you fail to pay any amount when it falls due or if you breach these Terms and Conditions. In the event we incur expenses to recover any amount from you, you further agree that we may recover our legal costs from you.
Unfortunately, given the nature of the Services, to the extent permitted by law, any fees paid to us are non-refundable under any circumstances.
All prices are listed in AUD. There will be no additional refunds or credits in consideration of current or eventual exchange rates. You are solely responsible for any exchange taxes, fees or other costs that may incur.
THIRD PARTY MARKETPLACE and PROVIDERS
If you connect a third-party marketplace account to the Platform, you acknowledge and agree that:
third party terms and conditions may apply;
you grant us access to that third party marketplace (either through identification or API details);
The reference or availability of third party services in connection with the Services does not constitute endorsement, sponsorship or otherwise.
You acknowledge and agree that you are solely responsible for ensuring that you comply with applicable third-party terms of agreement when using the Platform. We will not be liable for any loss or damage suffered by you in connection with such third party terms, regardless of whether we bring these to your attention or not. You are solely responsible for obtaining a copy of and reviewing such third party terms.
You acknowledge and agree that we will not be liable for any data you upload or submit through any third party provider and we do not warrant that the Platform will work uninterrupted and without error with a third party provider or that the Platform will meet any requirements of any third party provider. You are solely responsible for ensuring compatibility between the Platform and any third-party provider.
To access and use the third party marketplace, you may need to set up an account with your email address and a password or similar. You are solely responsible for maintaining the confidentiality of your password and you are liable for all activities, usage and associated fees incurred from the use of the third party marketplace by any party not authorised by you. If you become aware of any unauthorised use of your account, you must let us know immediately.
We may in our discretion and without liability to you, decide to no longer support any third party service integration at any time. We will not be responsible should the third-party marketplace have an issue or defect in communicating with the Platform, and we make no warranty in this regard.
Access and Termination
You may terminate access to the Platform at any time by removing your Account from the Platform. If you need assistance in doing so please contact us.
We reserve the right, in our sole discretion, to terminate your access to this Platform or any part of it at any time, without notice.
We reserve the right to withdraw, or amend, update or change the functionality or content of the Platform at any time, without notice. We will not be liable if for any reason the Platform is unavailable at any time or for any period of time or if at any time any functionality of the Platform is restricted.
On termination of these Terms and Conditions we will cease to provide you with the Services, you will not be entitled to any refunds pro rata or otherwise, any fees you owe to us will immediately become due and payable in full and we may delete any of your data.
USER DATA
We are not responsible for providing any data backup services and we make no guarantees that there will be no loss or corruption of any data in connection with the Services at any time. Unfortunately, data loss happens and we are not liable for any Loss you suffer in the event that your data is lost, for example if the Platform is hacked and is deleted.
We will maintain appropriate technical and organisational measures to protect the security of the data. However, we do not guarantee that unauthorised third parties will never be able to defeat those measures to access the data for improper purposes. You acknowledge that there are risks inherent in internet connectivity that could result in the loss of privacy, confidential information and data. Accordingly, any data that is transmitted by you is transmitted solely at your risk.
You acknowledge that (as above stated) on termination we will delete any data that you have stored on the Services. It is solely your responsibility to backup any data before termination of the Services and we will not be liable for any Loss in this regard.
Intellectual Property Rights
You acknowledge and agree that we own all right, title and interest in and to the Platform and the Intellectual Property and no right, title or interest in any of the Intellectual Property is transferred or granted to you, except so far as expressly stated in these Terms and Conditions.
You acknowledge and agree that any materials, ideas, suggestions, results, data information and other output that is either generated, created or developed by the Services is our property. However, we do not claim any intellectual property rights over the data you provide to us. All of your data remains yours.
Subject to your compliance with these Terms and Conditions, we grant you a limited, revocable, non-exclusive, non-transferable license to access and use the Platform solely for your own business use and as permitted by these Terms and Conditions.
You agree that:
you will not copy, reproduce, reverse engineer, decompile, translate, alter, modify, create derivative works or otherwise attempt to derive the source code of the Platform, publicly display (other than on the Platform) any MerchantSpring Intellectual Property except with the prior written permission of MerchantSpring or the appropriate third party authorised to grant such permission and when doing so you must adequately acknowledge us and, in the case of websites, include a link from your website to our Platform;
you grant to us a worldwide, perpetual, irrevocable, full paid-up, transferable, non-exclusive licence to use, reproduce, commercialise, modify, adapt and communicate any data you provide to us in order to provide our Services;
you warrant that any data you provide us with will not infringe any intellectual property rights of any third party nor give rise to any liability to make royalty or other payments to any third party;
MerchantSpring is not liable or responsible for any Loss that you may experience in submitting information to MerchantSpring or for MerchantSpring's use of your information in accordance with the licence granted.
Privacy
Any personal information you provide via your use of the Platform is handled in accordance with our Privacy Policy.
By using the Platform, you grant us a non-exclusive license to collect, use and store information and technical data associated with any third party marketplace accounts which you connect to the Platform, including but not limited to information about customers and orders (which may include personal information). This information is transmitted to facilitate the provision of the Services.
You warrant and represent that:
we are entitled to use such data as required to provide the Services;
any data you collect, store or transfer is not in violation of any laws;
each customer or user of personal information has consented to such collection, use, storage and transmission to third parties prior to such collection.
By using the Platform, you grant us a non-exclusive license to use your non-personally identifiable data in aggregated and blinded formats that do not identify, reference or imply an association with you, only for the purposes of display on your Account, improving our Services, research and marketing analysis, surveys, reports and studies.
Disclaimer
You acknowledge and agree that your use of this Platform is at your own risk. We provide our Services on an “as-is” basis and make no representations about the suitability, reliability, availability, timeliness, and accuracy of anything contained in this Platform for any purpose, to the maximum extent permitted by applicable law, anything contained in this Platform is without warranty of any kind.
Whilst we use our best endeavours to ensure any information we provide to you is correct, we specifically do not warrant that:
any information is in fact correct;
the functionality or operation of the Platform will be uninterrupted or free from error;
any defects in the Platform will be corrected;
the Platform will work with any third party service providers;
the Platform or the servers that make it available are free of viruses or other harmful conditions or components;
that the Platform or any data you provide to the Platform will be free from loss, corruption, attack, viruses, interference, hacking or other security intrusion.
No information or written advice provided by us will create a warranty.

All Services we provide are intended for general education and information purposes only. Nothing in the Services, or any of the content we provide you purports to offer legal, business, tax or other professional advice. Use caution and always seek professional advice before acting on any information that we provide.
We provide support, guidance and tools to assist you and your marketplace, but any decisions you make, and the consequences that flow from such decisions are solely your responsibility. Your success depends on many factors outside of which the Services can assist.
Nothing in the Services is a promise or guarantee of results or future earnings. We cannot and do not make any guarantees about your ability to get results or earn any money with any ideas, information, tools and/or strategies provided by the Services. Any information given is purely based on experience or based on an algorithm and is for illustrative purposes only. Information is not tailored specifically for your business (outside the use of the algorithm) and a number of other factors should be considered. You acknowledge that there is an inherent risk in any business enterprise or activity and agree there is no guarantee that you will earn any money as a result of the provision of the Services.
Any testimonials and examples within any marketing materials are not to be taken as a guarantee that you will achieve the same or similar results. Any financial representations referenced by us on the Services are illustrative of concepts only and should not be considered as promises for actual or future performance.
You acknowledge and agree that MerchantSpring, its directors, principals, employees and representatives are not responsible for decisions that you may make nor losses that may arise out of any business or personal decision made by you at any time. Just to be clear, you are solely responsible for any actions you do or do not take directly or indirectly in connection with the Services.
MerchantSpring reserves the right, in its sole discretion to modify or terminate the Platform at any time, without notice.
This disclaimer applies to the fullest extent permitted by law, and shall survive any termination or expiration of these Terms and Conditions or your use of this Platform.
Limitation of Liability
To the extent permitted by law, we exclude all liability to you or anyone else for loss or damage of any kind (however caused or arising) relating in any way to the Platform or its use or the Services including, but not limited to, loss or damage you might suffer as a result of:
errors, mistakes or inaccuracies on the Platform;
you acting, or failing to act, on any information contained on or referred to on the Platform and/or any linked website;
personal injury or property damage of any kind resulting from your access to or use of the Platform;
any unauthorised access to or use of the Platform servers;
any interruption or cessation of transmission to or from the Platform;
downfall of a server connected to the Platform;
sales reducing due to use of the Platform;
any acts or omissions of any third party provider or any account on a third party marketplace connected to the Platform;
corruption, attack, viruses, interference, hacking or other security intrusion of the Platform;
any bugs, viruses, trojan horses or other harmful code or communications which may be transmitted to or through the Platform by any third party; and/or
the quality or fitness for any purpose of any linked sites.
To the extent permitted by law you hereby release us and our officers, directors, agents, related entities, related bodies corporate, employees and contractors) from all Loss suffered by you or any other person relating to or arising out of the provision of the Services, the use of the Platform or these Terms and Conditions.
Except as expressly provided in these terms, and to the fullest extent allowed by the law, we will not be liable for any direct, indirect, special, incidental or consequential damages, including without limitation damages for loss of profits or income, loss or corruption of data, business loss or interruption or any other commercial damages or losses arising out of your access to or use of the Platform or the provision of the Services.
Subject to the other terms of this clause, our maximum aggregate liability to you in any 12-month period for any Loss or damage or injury arising out of or in connection with these Terms and Conditions, including any breach by us of these Terms and Conditions, however arising, in contract, in tort (including negligence), under any statute, custom, law or on any other basis is limited to the actual charges paid by you under these Terms and Conditions in the 12-month period preceding the matter or event giving rise to the claim.
This clause is not intended to exclude or limit any rights which you may have under the Competition and Consumer Act 2010 (Cth).
This clause 12 shall survive any termination or expiration of these Terms and Conditions.
Indemnity
You agree to indemnify and hold us and our related entities, related bodies corporate, officers, directors, agents, and employees, harmless from and against any actions, claims, demands, proceedings, Losses of every kind and nature, known and unknown (including legal costs on a solicitor own client basis) made or brought by you or on behalf of you or by any third party against us in connection with or arising out of your breach of these Terms and Conditions, or your violation of any law or the rights of a third party, or otherwise arising directly or indirectly from your use of the Services except to the extent directly caused by our negligent acts or omissions.
Security
Whilst we take reasonable steps to protect the security of our Platform, we do not guarantee the security of the Platform, our records, or your information. We disclaim all liability for any computer virus or technological problems that are beyond our control.
Continuous accessibility to the Platform may be dependent upon third party services and as a result, the Platform may be inaccessible from time to time.
Competitors
If you are in the business of providing similar Services then you are a competitor of MerchantSpring. Competitors are not permitted to use or access the Platform. If you breach this provision, we will hold you fully responsible for any Loss that we may sustain and hold you accountable for all profits that you might make from such a breach.
Miscellaneous
Accessing information from the Platform is done so at your own risk and you will be responsible for compliance with the laws within your jurisdiction.
These Terms and Conditions are governed by the laws of Victoria, and the parties submit to the jurisdiction of the Courts of Victoria and relevant federal/Commonwealth courts competent to hear appears from them.
These Terms and Conditions shall be for the benefit of and binding upon the parties and their heirs, executors, successors and permitted assigns.
If a clause of these Terms and Conditions are void or unenforceable it must be severed from or read down to the extent necessary from these Terms and Conditions and the clauses that are not void or unenforceable shall be unaffected by the severance.
You agree that these Terms and Conditions and all incorporated agreements may be assigned by MerchantSpring in its sole discretion without notice. You may not assign these Terms and Conditions without obtaining MerchantSpring’s prior written consent.
Our failure to enforce a provision of these Terms and Conditions or act with respect to a breach by you or others does not constitute a waiver of that provision or breach or a waiver of our right to act with respect to that breach or subsequent or similar breaches. The waiver of any such provision or breach will be effective only if in writing and signed by a duly authorised representative of MerchantSpring.
You agree that these Terms and Conditions may not be construed adversely against us solely because we prepared them.
These Terms and Conditions and our policies comprise the entire understanding and agreement between you and us with respect to the subject matter hereof.
Nothing in these Terms and Conditions or your use of the Platform establishes or creates a joint venture, partnership, consortium, franchise, employment or agency relationship between MerchantSpring and Users.

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