Terms and Conditions
1 Purpose and status of these terms and conditions
1.1 The Handmade Exchange issues these terms and conditions to applicants who apply to The Handmade Exchange for acceptance as an Artist so as to supply products for purchase by Customers on Website.
1.2 If an applicant makes an application to sell with The Handmade Exchange, then the applicant makes an offer to The Handmade Exchange to supply products for purchase by Customers on the terms and conditions that are set out in these Terms and Conditions and the Schedule of Fees and Commissions that is subsequently agreed by the applicant.
1.3 If The Handmade Exchange confirms acceptance of an application by notice to the applicant and, within 7 days of that confirmation, the applicant agrees to the Schedule of Fees and Commissions that is provided by The Handmade Exchange to the applicant, an agreement is formed between The Handmade Exchange and the applicant on the terms and conditions described in clause 1.2.
1.4 Capitalised terms used in these terms and conditions are defined in clause 14.
2 Term of the Agreement
2.1 Subject to termination under clause 2.2, the Agreement continues for a term comprising firstly a fixed period of one year and subsequently an indefinite period ending on the day that is 30 days after notice of termination from Artist to The Handmade Exchange.
2.2 The Handmade Exchange may terminate the Agreement at any time without cause by giving notice of termination to Artist with immediate effect or with effect on any date specified in the notice.
2.3 On termination of the Agreement, The Handmade Exchange may immediately remove Artist’s Artist Profile, including Artist’s Information, from the Website and Artist remains liable for all outstanding Orders.
2.4 During the term, Artist must not, whether by themselves or through any other person develop or operate any Similar Website, other than Artist’s Website.
3 Artist Profile
3.1 Artist must provide The Handmade Exchange with an up-to-date biography, profile photograph and contact. Artist must also provide details, information and images regarding the products made available by Artist for purchase from Artist using the Website.
3.2 Artist must ensure that the Artist’s Information:
• is accurate, complete, up-to-date and not misleading or deceptive;
• does not contain any virus (including any computer program or code that can disrupt the operation of software, hardware or systems, or cause file deletions, file modifications or other effects that are not part of the functionality of software, hardware or systems);
• complies with all applicable laws;
• is not: (a) defamatory or in contempt of any legal or other proceedings; (b) indecent, obscene, vulgar, pornographic, offensive or of doubtful propriety; (c) of a menacing character; (d) discriminatory to any group of persons including groups defined by reference to colour, race, sex, origin, nationality or ethnic or national origins; or (e) offensive or denouncing of political or religious beliefs.
3.3 The Handmade Exchange may immediately remove any products or any Artist’s Information from the Website if The Handmade Exchange believes that it fails to comply with the Agreement or is inconsistent with the look and feel of the Website.
4 Artist’s terms of supply
4.1 Artist must offer, sell and supply products to Customers who use the Website on the Standard Customer Terms and on no other terms and conditions, except as permitted in the Agreement or as otherwise approved by The Handmade Exchange.
4.2 Artist acknowledges that The Handmade Exchange is not responsible for providing Artist with any legal advice on the Standard Customer Terms and Artist must obtain its own legal advice to determine whether the Standard Customer Terms are suitable for the Artist and its products.
4.3 Artist must offer delivery by registered parcel post delivery (unless otherwise agreed by The Handmade Exchange). Artist may offer and charge for delivery by other methods (such as registered post or courier). Shipping must not exceed $10 for single items, or $15 for combined postage (unless otherwise agreed by The Handmade Exchange).
4.4 Artist must ensure that the prices of products offered for purchase on its Store are at least the same as or lower than the prices for those products available for purchase on the Artist’s Website and on any third party website that offers such products for sale.
5 Placing and fulfilling Orders
5.1 If a Customer places an Order:
• The Handmade Exchange will collect payment for each Order on behalf of Artist using the payment mechanisms made available by The Handmade Exchange from time to time on the Website;
• The Handmade Exchange may decline to process or collect payment for an Order at The Handmade Exchange’s discretion (for example, fraudulent or suspicious Orders); and
• following collection of payment for the Order, The Handmade Exchange will notify the Artist of the Order by email alert and include details of the Order (excluding credit card and any other information relating to payment) and remit the associated payment (less Fees and Commissions payable to The Handmade Exchange) to Artist by way of electronic transfer of funds to Artist’s nominated bank account.
5.2 On receipt of an Order, Artist:
• must fulfil the Order including by shipping the relevant products within 2 business days unless otherwise specified in Artist’s delivery terms;
• must include with each shipped Order a handwritten ‘Thank You’ note and any marketing materials provided by The Handmade Exchange to Artist for inclusion.
5.3 Artist must provide complimentary gift wrapping service
5.4 If Artist ships products in fulfilment of an Order and the Customer does not receive the products for any reason, Artist bears sole responsibility for, and must promptly ensure that, alternative fulfilment arrangements are executed so that the Customer receives the relevant products.
6 Refunds, returns, disputed payments & unhappy Customers
6.1 If a Customer:
• notifies Artist that a product received from Artist in fulfilment of an Order is faulty or damaged and provides The Handmade Exchange with a photograph of the product;
• notifies Artist that a product is different from the description or display on the Website or does not serve the intended purpose;
• otherwise has a right of return of such product under any applicable law; or
• the Customer otherwise wishes to return such product without cause,
subject to clause 6.2, Artist must:
• permit the Customer to return the relevant product to Artist provided that Artist receives that notice within 7 days of receipt of the relevant product;
• if requested by Customer, pay for return shipping costs by providing the Customer with a stamped, self-addressed post pack; and
• if the Customer wishes to receive a replacement product and the product is still in stock, promptly provide and deliver a replacement to Customer.
6.2 Unless otherwise determined by The Handmade Exchange, a Customer will not be required to return products that are demonstrably faulty or damaged in a photograph provided by Customer.
6.3 In addition to the rights afforded to Customers under clause 6.1, Artist may extend to Customers additional rights of return or replacement provided that such rights are more favourable to the Customer.
6.4 If a product is returned to Artist under clause 6.1 The Handmade Exchange will offer Customer the choice of a replacement product from the Artist (subject to availability) or a Store Credit.
6.5 If a Customer accepts a Store Credit:
• in the case of a Store Credit, The Handmade Exchange will issue Customer a Store Credit;
• in the case of either a Store Credit The Handmade Exchange will cancel or refund the Commission that is otherwise payable by Artist to The Handmade Exchange.
6.6 If a Customer disputes a payment charged for an Order:
• The Handmade Exchange will notify Artist of the dispute and provide Artist with a reasonable opportunity to demonstrate why the payment should not be reversed or charged-back;
• Artist must provide The Handmade Exchange with any reasonable information, assistance and co-operation in relation to any such dispute, including by any timeframes that are imposed by a Payment Provider;
• if a Payment Provider reverses or charges-back the payment, Artist must pay The Handmade Exchange the amount of any fees charged by the Payment Provider in making the reversal or charge-back (Charge-back Fees);
• The Handmade Exchange will not charge or will cancel the Commission that is otherwise payable by Artist to The Handmade Exchange;
6.7 If a Customer is dissatisfied for any reason with the products received from Artist or is dissatisfied with Artist’s service (including delivery times), then in The Handmade Exchange’s sole and absolute discretion, The Handmade Exchange may issue a Store Credit to the Customer for a value that is no greater than 50% of the amount paid by the Customer for the relevant products. If The Handmade Exchange issues a Store Credit to a Customer under this clause 6.7, The Handmade Exchange will charge the amount of that Store Credit to Artist and may deduct such amount from any subsequent payment that would otherwise be due to the Artist or invoice the Artist for that amount for payment by Artist within 7 days of receipt.
7 Agency arrangement and indemnification
7.1 Under this Agreement, Artist irrevocably and unconditionally appoints The Handmade Exchange as Artist’s agent to:
• offer and sell (including by accepting Orders and collecting payment) for Artist’s products displayed on its Website to Customers;
• enter into agreements with Customers for the purchase of the Artist’s products displayed on its Website on the Standard Customer Terms and any other terms and conditions permitted or contemplated under the Agreement; and
• otherwise, do all things necessary or desirable in relation to the offer, sale and supply of Artist’s products to purchasers of those products using the Website to the full extent permitted or contemplated under the Agreement, in each case, on Artist’s behalf and at Artist’s sole risk and liability.
7.2 Artist:
• acknowledges that The Handmade Exchange is not a party to, and has no obligations under or in relation to, any agreement that is formed between Artist and a Customer for the purchase of any product by a Customer from Artist; and
• assumes all liability for the performance of all obligations and the discharge of all liabilities under or in relation to any such agreement, any product supplied by Artist to a Customer, any Order accepted by The Handmade Exchange on behalf of Artist and the publication of any of Artist’s Information on the Website.
7.3 Artist indemnifies The Handmade Exchange against any Losses or Claims suffered or incurred by The Handmade Exchange in relation to any agreement that is formed between Artist and a Customer for the purchase of any product by a Customer from Artist, any product supplied by Artist to a Customer, any Order accepted by The Handmade Exchange on behalf of Artist, the publication of any of Artist’s Information on the Website or any breach by Artist of this agreement.
8 Fees, Commissions, Invoices and GST
8.1 Artist must pay The Handmade Exchange:
• the Commission in relation to each Order placed by a Customer using the Website for the purchase of a product from the Artist from the Website; and
• the Fees.
8.2 The Handmade Exchange may:
• deduct from any payments for Orders received by The Handmade Exchange the amount of any Commission or Fees payable by Artist to The Handmade Exchange (whether or not such Commission or Fees relate to the Order that is the subject of the relevant payment); or
• invoice Artist for the amount of any Commission or Fees payable by Artist. Artist must pay The Handmade Exchange the invoice within 7 days of receipt.
8.3 On or about the 1st and the 15th day of each month:
• The Handmade Exchange will issue Artist an invoice that sets out details of all payments for Orders received in the previous fortnight as well as details of all amounts deducted by The Handmade Exchange under this Agreement (including, but not limited to, Commissions and Fees); and
• The Handmade Exchange will pay the net amount owing by The Handmade Exchange to Artist.
8.4 All payments under or relating to the Agreement are to be made by either electronic funds transfer to a bank account in Australia, or as a Paypal money transfer as nominated by the recipient.
8.5 The Handmade Exchange may reduce any amounts payable to Artist under the Agreement by any amount that is payable by Artist to The Handmade Exchange.
8.6 In this clause 8.6, a term or expression starting with a capital letter which is defined in the GST Law has the same meaning as in the GST Law. Each consideration or payment obligation in this agreement is exclusive of GST and if GST is payable on an amount (a taxable supply) by the party making the payment must also pay GST in respect of the taxable supply. The supplier must provide a tax invoice or adjustment note to the recipient.
9 The Website
9.1 Artist must not do anything that adversely affects the reputation or goodwill of The Handmade Exchange or the Website.
9.2 Artist acknowledges that The Handmade Exchange retains the absolute and unconditional right to determine:
• the nature of all other Artists using the Website and products offered for purchase using the Website (including products that are the same or similar to the Artist’s products); and
• determine and change the manner in which the Website is presented (including the nature and arrangement of content, the categorisation of products and the order in which products and Artists are presented on the Website, features and functionality, advertising and links and the look and feel).
10 Exclusions of and limitations on liability
10.1 Artist acknowledges and agrees that:
• it is not feasible for The Handmade Exchange to ensure that the Website is available at all times or that it is error-free or virus-free and the internet is not necessarily a secure or reliable method of communication;
• while The Handmade Exchange has systems to back-up information on the Website, The Handmade Exchange should retain a copy of Artist’s Information so that it be can reloaded if necessary; and
• The Handmade Exchange is not liable for any failure to properly send or receive communications (including Orders) via the internet, or to make available the Website, due to any interference or failure.
10.2 Subject to clause 10.3, all express or implied warranties, representations, statements, terms and conditions relating to this agreement or its subject matter (including the Website) that are not contained in this agreement are excluded to the maximum extent permitted by law.
10.3 Nothing in this agreement excludes, restricts or modifies any Non-Excludable Provision.
10.4 If a Non-Excludable Provision applies to the Agreement and The Handmade Exchange is entitled at law to limit Artist’s remedy for a breach of that Non-Excludable Provision, then The Handmade Exchange’s liability is limited to one or more of the following at The Handmade Exchange’s option:
• in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
• in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.
10.5 Subject to clauses 10.6 and 10.7 and subject to The Handmade Exchange’s obligations under any Non-Excludable Provisions, to the maximum extent permitted by law, The Handmade Exchange’s maximum aggregate liability for all claims under or relating to the Agreement or its subject matter which arise at any time during or after the Term, whether in contract, tort (including negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, is limited to the lesser of $2,000 and the aggregate amount of Commissions and Fees that The Handmade Exchange has received from Artist.
10.6 The limitation in clause 10.5 does not apply to The Handmade Exchange’s obligation to remit payments to Artist that are collected by The Handmade Exchange under the Agreement.
10.7 Subject to The Handmade Exchange’s obligations under any Non-Excludable Provisions, to the maximum extent permitted by law, The Handmade Exchange is not liable for, and no measure of damages will, under any circumstances, include special, indirect, consequential, incidental or punitive damages or damages for loss of profits, goodwill, anticipated savings or loss or corruption of data whether in contract, tort (including negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term, or on any other basis.
11 Intellectual property rights
11.1 Artist grants The Handmade Exchange a world-wide, non-exclusive, royalty-free licence (including the right to sublicense) to use, reproduce and communicate to the public Artist’s Information:
• during the Term: as part of the Website and outside of our Website for promotional purposes relating to us or our Website, in any medium; and
• after the Term: for archival, record-keeping and related and incidental purposes.
11.2 Artist represents and warrants that the products displayed on the Website and Artist’s Information does not infringe the Intellectual Property Rights of any third party. Artist must indemnify The Handmade Exchange against any Loss that The Handmade Exchange may suffer or incur as a result of any Claim brought against The Handmade Exchange that the products displayed on its Website or the Artist’s Information infringes the Intellectual Property Rights of any third party.
11.3 The Handmade Exchange or its licensors retain ownership of all Intellectual Property Rights in and to the Website (other than Artist’s Information). Except as expressly permitted by the Agreement, Artist must not use or reproduce The Handmade Exchange’s name, logo or trade marks without The Handmade Exchange’s prior written approval.
12 General
12.1 Artist must comply with the Artist Guidelines.
12.2 Artist must comply with any applicable laws in relation to the performance of its obligations under the Agreement, the Artist’s products made available for purchase on the Website and the Artist’s dealings with any purchasers of such products.
12.3 Artist may only use the information that The Handmade Exchange provides to Artist in relation to a Customer for the purposes of providing the Customer with products that are purchased by the Customer using the Website. Artist must not use such information for marketing or any other purposes.
12.4 During and after the Term, each party must only use the other party’s Confidential Information for the purposes of exercising its rights or performing its obligations under the Agreement. Otherwise, each party must keep the other party’s Confidential Information confidential and not disclose, or cause or permit the disclosure of, the Confidential Information except with the prior written consent of the other party.
12.5 The Agreement is governed by the laws of Queensland, Australia. The parties irrevocably submit to the exclusive jurisdiction of the courts of Queensland, Australia.
12.6 Waiver of any right, power, authority, discretion or remedy arising on default under the Agreement must be in writing and signed by the party granting the waiver.
12.7 The Agreement may only be varied by express agreement in writing or by email confirmation of that variation expressly adopted in reciprocal emails between the parties.
12.8 Artist must not assign the Agreement or any right or benefit under, relating to or arising out of the Agreement except with The Handmade Exchange’s prior written consent.
13 Definitions and Interpretation
13.1 The following definitions apply in these terms and conditions:
Agreement means an agreement between The Handmade Exchange and an Artist concluded as described in clause 1.3 and on the terms and conditions referred to in clause 1.2.
Artist means a seller of products to Customers that is a party to an Agreement.
Artist’s Information means any information or materials that Artist provides on the Website, including any photos or trademarks.
Artist’s Website means a website published by or on behalf of Artist that promotes, markets or supplies any product that is also included in Artist’s Store.
Claim means any claim, action, proceeding or demand.
Commencement Date means the date on which the Term commences, being the date determined under clause 2.1.
Commission means, from time to time and in respect of an Order, the commission payable by Artist to The Handmade Exchange in respect of that Order of the nature and amount set out in the then applicable Schedule of Fees and Commissions.
Confidential Information means any information disclosed or revealed by one party to the other party under or in relation to the Agreement that is by its nature confidential, is designated by the disclosing party as confidential or the receiving party knows or reasonably ought to know is confidential (including the terms of this agreement) BUT EXCLUDING information that is published or has otherwise entered the public domain without a breach of the Agreement or other obligation of confidence, is obtained from a third party who has no obligation of confidentiality to the disclosing party or is independently developed or obtained without breach of the Agreement.
Customer means an individual that purchases products from an Artist by placing an Order using the Website.
Fee means, from time to time, each fee payable by Artist to The Handmade Exchange of the nature and amount set out in the then applicable Schedule of Fees and Commissions (which may include any fees charged by a Payment Provider).
GST Law has the meaning given to it in the A New Tax system (Goods and Services Tax) Act 1999 (Cth)
The Handmade Exchange means Fierce Publicity’s sub-group The Handmade Exchange (ABN 38 468 697 451)
Intellectual Property Rights means all intellectual and industrial property rights throughout the world including rights in respect of or in connection with any confidential information, copyright (including future copyright and rights in the nature of or analogous to copyright), moral rights, inventions (including patents), trademarks, service marks and designs whether or not now existing and whether or not registered or registrable including any right to apply for the registration of such rights and all renewals and extensions.
Loss means any damage, loss, cost, expense or liability.
Non-Excludable Provision means a guarantee, term, condition, warranty, right or remedy implied or imposed by any Australian statute (for example, the Australian Consumer Law) or regulation which cannot lawfully be excluded or limited under the terms of that statute or regulation.
Order means an order placed by a Customer to purchase a product from Artist using the Website.
Payment Provider means any third party that The Handmade Exchange uses to collect payments (including a bank, credit or debit card scheme or other payment processing service such as PayPal).
Schedule of Fees and Commissions means the document of that name setting out Fees and Commissions payable by Artist to The Handmade Exchange.
Standard Customer Terms means the standard terms and conditions prepared and varied from time to time by The Handmade Exchange that apply to the offer, sale and supply of products by the Artist to Customers.
Store Credit means a credit of a denominated value issued by The Handmade Exchange to a Customer for use by a Customer in payment for any products made available for sale on the Website.
Term means the term of the Agreement, being the period commencing on the Commencement Date and ending on the date of termination under clause 2.1 or 2.2.
Website means The Handmade Exchange’s published website located at URL www.handmadeexchange.com.
1.1 The Handmade Exchange issues these terms and conditions to applicants who apply to The Handmade Exchange for acceptance as an Artist so as to supply products for purchase by Customers on Website.
1.2 If an applicant makes an application to sell with The Handmade Exchange, then the applicant makes an offer to The Handmade Exchange to supply products for purchase by Customers on the terms and conditions that are set out in these Terms and Conditions and the Schedule of Fees and Commissions that is subsequently agreed by the applicant.
1.3 If The Handmade Exchange confirms acceptance of an application by notice to the applicant and, within 7 days of that confirmation, the applicant agrees to the Schedule of Fees and Commissions that is provided by The Handmade Exchange to the applicant, an agreement is formed between The Handmade Exchange and the applicant on the terms and conditions described in clause 1.2.
1.4 Capitalised terms used in these terms and conditions are defined in clause 14.
2 Term of the Agreement
2.1 Subject to termination under clause 2.2, the Agreement continues for a term comprising firstly a fixed period of one year and subsequently an indefinite period ending on the day that is 30 days after notice of termination from Artist to The Handmade Exchange.
2.2 The Handmade Exchange may terminate the Agreement at any time without cause by giving notice of termination to Artist with immediate effect or with effect on any date specified in the notice.
2.3 On termination of the Agreement, The Handmade Exchange may immediately remove Artist’s Artist Profile, including Artist’s Information, from the Website and Artist remains liable for all outstanding Orders.
2.4 During the term, Artist must not, whether by themselves or through any other person develop or operate any Similar Website, other than Artist’s Website.
3 Artist Profile
3.1 Artist must provide The Handmade Exchange with an up-to-date biography, profile photograph and contact. Artist must also provide details, information and images regarding the products made available by Artist for purchase from Artist using the Website.
3.2 Artist must ensure that the Artist’s Information:
• is accurate, complete, up-to-date and not misleading or deceptive;
• does not contain any virus (including any computer program or code that can disrupt the operation of software, hardware or systems, or cause file deletions, file modifications or other effects that are not part of the functionality of software, hardware or systems);
• complies with all applicable laws;
• is not: (a) defamatory or in contempt of any legal or other proceedings; (b) indecent, obscene, vulgar, pornographic, offensive or of doubtful propriety; (c) of a menacing character; (d) discriminatory to any group of persons including groups defined by reference to colour, race, sex, origin, nationality or ethnic or national origins; or (e) offensive or denouncing of political or religious beliefs.
3.3 The Handmade Exchange may immediately remove any products or any Artist’s Information from the Website if The Handmade Exchange believes that it fails to comply with the Agreement or is inconsistent with the look and feel of the Website.
4 Artist’s terms of supply
4.1 Artist must offer, sell and supply products to Customers who use the Website on the Standard Customer Terms and on no other terms and conditions, except as permitted in the Agreement or as otherwise approved by The Handmade Exchange.
4.2 Artist acknowledges that The Handmade Exchange is not responsible for providing Artist with any legal advice on the Standard Customer Terms and Artist must obtain its own legal advice to determine whether the Standard Customer Terms are suitable for the Artist and its products.
4.3 Artist must offer delivery by registered parcel post delivery (unless otherwise agreed by The Handmade Exchange). Artist may offer and charge for delivery by other methods (such as registered post or courier). Shipping must not exceed $10 for single items, or $15 for combined postage (unless otherwise agreed by The Handmade Exchange).
4.4 Artist must ensure that the prices of products offered for purchase on its Store are at least the same as or lower than the prices for those products available for purchase on the Artist’s Website and on any third party website that offers such products for sale.
5 Placing and fulfilling Orders
5.1 If a Customer places an Order:
• The Handmade Exchange will collect payment for each Order on behalf of Artist using the payment mechanisms made available by The Handmade Exchange from time to time on the Website;
• The Handmade Exchange may decline to process or collect payment for an Order at The Handmade Exchange’s discretion (for example, fraudulent or suspicious Orders); and
• following collection of payment for the Order, The Handmade Exchange will notify the Artist of the Order by email alert and include details of the Order (excluding credit card and any other information relating to payment) and remit the associated payment (less Fees and Commissions payable to The Handmade Exchange) to Artist by way of electronic transfer of funds to Artist’s nominated bank account.
5.2 On receipt of an Order, Artist:
• must fulfil the Order including by shipping the relevant products within 2 business days unless otherwise specified in Artist’s delivery terms;
• must include with each shipped Order a handwritten ‘Thank You’ note and any marketing materials provided by The Handmade Exchange to Artist for inclusion.
5.3 Artist must provide complimentary gift wrapping service
5.4 If Artist ships products in fulfilment of an Order and the Customer does not receive the products for any reason, Artist bears sole responsibility for, and must promptly ensure that, alternative fulfilment arrangements are executed so that the Customer receives the relevant products.
6 Refunds, returns, disputed payments & unhappy Customers
6.1 If a Customer:
• notifies Artist that a product received from Artist in fulfilment of an Order is faulty or damaged and provides The Handmade Exchange with a photograph of the product;
• notifies Artist that a product is different from the description or display on the Website or does not serve the intended purpose;
• otherwise has a right of return of such product under any applicable law; or
• the Customer otherwise wishes to return such product without cause,
subject to clause 6.2, Artist must:
• permit the Customer to return the relevant product to Artist provided that Artist receives that notice within 7 days of receipt of the relevant product;
• if requested by Customer, pay for return shipping costs by providing the Customer with a stamped, self-addressed post pack; and
• if the Customer wishes to receive a replacement product and the product is still in stock, promptly provide and deliver a replacement to Customer.
6.2 Unless otherwise determined by The Handmade Exchange, a Customer will not be required to return products that are demonstrably faulty or damaged in a photograph provided by Customer.
6.3 In addition to the rights afforded to Customers under clause 6.1, Artist may extend to Customers additional rights of return or replacement provided that such rights are more favourable to the Customer.
6.4 If a product is returned to Artist under clause 6.1 The Handmade Exchange will offer Customer the choice of a replacement product from the Artist (subject to availability) or a Store Credit.
6.5 If a Customer accepts a Store Credit:
• in the case of a Store Credit, The Handmade Exchange will issue Customer a Store Credit;
• in the case of either a Store Credit The Handmade Exchange will cancel or refund the Commission that is otherwise payable by Artist to The Handmade Exchange.
6.6 If a Customer disputes a payment charged for an Order:
• The Handmade Exchange will notify Artist of the dispute and provide Artist with a reasonable opportunity to demonstrate why the payment should not be reversed or charged-back;
• Artist must provide The Handmade Exchange with any reasonable information, assistance and co-operation in relation to any such dispute, including by any timeframes that are imposed by a Payment Provider;
• if a Payment Provider reverses or charges-back the payment, Artist must pay The Handmade Exchange the amount of any fees charged by the Payment Provider in making the reversal or charge-back (Charge-back Fees);
• The Handmade Exchange will not charge or will cancel the Commission that is otherwise payable by Artist to The Handmade Exchange;
6.7 If a Customer is dissatisfied for any reason with the products received from Artist or is dissatisfied with Artist’s service (including delivery times), then in The Handmade Exchange’s sole and absolute discretion, The Handmade Exchange may issue a Store Credit to the Customer for a value that is no greater than 50% of the amount paid by the Customer for the relevant products. If The Handmade Exchange issues a Store Credit to a Customer under this clause 6.7, The Handmade Exchange will charge the amount of that Store Credit to Artist and may deduct such amount from any subsequent payment that would otherwise be due to the Artist or invoice the Artist for that amount for payment by Artist within 7 days of receipt.
7 Agency arrangement and indemnification
7.1 Under this Agreement, Artist irrevocably and unconditionally appoints The Handmade Exchange as Artist’s agent to:
• offer and sell (including by accepting Orders and collecting payment) for Artist’s products displayed on its Website to Customers;
• enter into agreements with Customers for the purchase of the Artist’s products displayed on its Website on the Standard Customer Terms and any other terms and conditions permitted or contemplated under the Agreement; and
• otherwise, do all things necessary or desirable in relation to the offer, sale and supply of Artist’s products to purchasers of those products using the Website to the full extent permitted or contemplated under the Agreement, in each case, on Artist’s behalf and at Artist’s sole risk and liability.
7.2 Artist:
• acknowledges that The Handmade Exchange is not a party to, and has no obligations under or in relation to, any agreement that is formed between Artist and a Customer for the purchase of any product by a Customer from Artist; and
• assumes all liability for the performance of all obligations and the discharge of all liabilities under or in relation to any such agreement, any product supplied by Artist to a Customer, any Order accepted by The Handmade Exchange on behalf of Artist and the publication of any of Artist’s Information on the Website.
7.3 Artist indemnifies The Handmade Exchange against any Losses or Claims suffered or incurred by The Handmade Exchange in relation to any agreement that is formed between Artist and a Customer for the purchase of any product by a Customer from Artist, any product supplied by Artist to a Customer, any Order accepted by The Handmade Exchange on behalf of Artist, the publication of any of Artist’s Information on the Website or any breach by Artist of this agreement.
8 Fees, Commissions, Invoices and GST
8.1 Artist must pay The Handmade Exchange:
• the Commission in relation to each Order placed by a Customer using the Website for the purchase of a product from the Artist from the Website; and
• the Fees.
8.2 The Handmade Exchange may:
• deduct from any payments for Orders received by The Handmade Exchange the amount of any Commission or Fees payable by Artist to The Handmade Exchange (whether or not such Commission or Fees relate to the Order that is the subject of the relevant payment); or
• invoice Artist for the amount of any Commission or Fees payable by Artist. Artist must pay The Handmade Exchange the invoice within 7 days of receipt.
8.3 On or about the 1st and the 15th day of each month:
• The Handmade Exchange will issue Artist an invoice that sets out details of all payments for Orders received in the previous fortnight as well as details of all amounts deducted by The Handmade Exchange under this Agreement (including, but not limited to, Commissions and Fees); and
• The Handmade Exchange will pay the net amount owing by The Handmade Exchange to Artist.
8.4 All payments under or relating to the Agreement are to be made by either electronic funds transfer to a bank account in Australia, or as a Paypal money transfer as nominated by the recipient.
8.5 The Handmade Exchange may reduce any amounts payable to Artist under the Agreement by any amount that is payable by Artist to The Handmade Exchange.
8.6 In this clause 8.6, a term or expression starting with a capital letter which is defined in the GST Law has the same meaning as in the GST Law. Each consideration or payment obligation in this agreement is exclusive of GST and if GST is payable on an amount (a taxable supply) by the party making the payment must also pay GST in respect of the taxable supply. The supplier must provide a tax invoice or adjustment note to the recipient.
9 The Website
9.1 Artist must not do anything that adversely affects the reputation or goodwill of The Handmade Exchange or the Website.
9.2 Artist acknowledges that The Handmade Exchange retains the absolute and unconditional right to determine:
• the nature of all other Artists using the Website and products offered for purchase using the Website (including products that are the same or similar to the Artist’s products); and
• determine and change the manner in which the Website is presented (including the nature and arrangement of content, the categorisation of products and the order in which products and Artists are presented on the Website, features and functionality, advertising and links and the look and feel).
10 Exclusions of and limitations on liability
10.1 Artist acknowledges and agrees that:
• it is not feasible for The Handmade Exchange to ensure that the Website is available at all times or that it is error-free or virus-free and the internet is not necessarily a secure or reliable method of communication;
• while The Handmade Exchange has systems to back-up information on the Website, The Handmade Exchange should retain a copy of Artist’s Information so that it be can reloaded if necessary; and
• The Handmade Exchange is not liable for any failure to properly send or receive communications (including Orders) via the internet, or to make available the Website, due to any interference or failure.
10.2 Subject to clause 10.3, all express or implied warranties, representations, statements, terms and conditions relating to this agreement or its subject matter (including the Website) that are not contained in this agreement are excluded to the maximum extent permitted by law.
10.3 Nothing in this agreement excludes, restricts or modifies any Non-Excludable Provision.
10.4 If a Non-Excludable Provision applies to the Agreement and The Handmade Exchange is entitled at law to limit Artist’s remedy for a breach of that Non-Excludable Provision, then The Handmade Exchange’s liability is limited to one or more of the following at The Handmade Exchange’s option:
• in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
• in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.
10.5 Subject to clauses 10.6 and 10.7 and subject to The Handmade Exchange’s obligations under any Non-Excludable Provisions, to the maximum extent permitted by law, The Handmade Exchange’s maximum aggregate liability for all claims under or relating to the Agreement or its subject matter which arise at any time during or after the Term, whether in contract, tort (including negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, is limited to the lesser of $2,000 and the aggregate amount of Commissions and Fees that The Handmade Exchange has received from Artist.
10.6 The limitation in clause 10.5 does not apply to The Handmade Exchange’s obligation to remit payments to Artist that are collected by The Handmade Exchange under the Agreement.
10.7 Subject to The Handmade Exchange’s obligations under any Non-Excludable Provisions, to the maximum extent permitted by law, The Handmade Exchange is not liable for, and no measure of damages will, under any circumstances, include special, indirect, consequential, incidental or punitive damages or damages for loss of profits, goodwill, anticipated savings or loss or corruption of data whether in contract, tort (including negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term, or on any other basis.
11 Intellectual property rights
11.1 Artist grants The Handmade Exchange a world-wide, non-exclusive, royalty-free licence (including the right to sublicense) to use, reproduce and communicate to the public Artist’s Information:
• during the Term: as part of the Website and outside of our Website for promotional purposes relating to us or our Website, in any medium; and
• after the Term: for archival, record-keeping and related and incidental purposes.
11.2 Artist represents and warrants that the products displayed on the Website and Artist’s Information does not infringe the Intellectual Property Rights of any third party. Artist must indemnify The Handmade Exchange against any Loss that The Handmade Exchange may suffer or incur as a result of any Claim brought against The Handmade Exchange that the products displayed on its Website or the Artist’s Information infringes the Intellectual Property Rights of any third party.
11.3 The Handmade Exchange or its licensors retain ownership of all Intellectual Property Rights in and to the Website (other than Artist’s Information). Except as expressly permitted by the Agreement, Artist must not use or reproduce The Handmade Exchange’s name, logo or trade marks without The Handmade Exchange’s prior written approval.
12 General
12.1 Artist must comply with the Artist Guidelines.
12.2 Artist must comply with any applicable laws in relation to the performance of its obligations under the Agreement, the Artist’s products made available for purchase on the Website and the Artist’s dealings with any purchasers of such products.
12.3 Artist may only use the information that The Handmade Exchange provides to Artist in relation to a Customer for the purposes of providing the Customer with products that are purchased by the Customer using the Website. Artist must not use such information for marketing or any other purposes.
12.4 During and after the Term, each party must only use the other party’s Confidential Information for the purposes of exercising its rights or performing its obligations under the Agreement. Otherwise, each party must keep the other party’s Confidential Information confidential and not disclose, or cause or permit the disclosure of, the Confidential Information except with the prior written consent of the other party.
12.5 The Agreement is governed by the laws of Queensland, Australia. The parties irrevocably submit to the exclusive jurisdiction of the courts of Queensland, Australia.
12.6 Waiver of any right, power, authority, discretion or remedy arising on default under the Agreement must be in writing and signed by the party granting the waiver.
12.7 The Agreement may only be varied by express agreement in writing or by email confirmation of that variation expressly adopted in reciprocal emails between the parties.
12.8 Artist must not assign the Agreement or any right or benefit under, relating to or arising out of the Agreement except with The Handmade Exchange’s prior written consent.
13 Definitions and Interpretation
13.1 The following definitions apply in these terms and conditions:
Agreement means an agreement between The Handmade Exchange and an Artist concluded as described in clause 1.3 and on the terms and conditions referred to in clause 1.2.
Artist means a seller of products to Customers that is a party to an Agreement.
Artist’s Information means any information or materials that Artist provides on the Website, including any photos or trademarks.
Artist’s Website means a website published by or on behalf of Artist that promotes, markets or supplies any product that is also included in Artist’s Store.
Claim means any claim, action, proceeding or demand.
Commencement Date means the date on which the Term commences, being the date determined under clause 2.1.
Commission means, from time to time and in respect of an Order, the commission payable by Artist to The Handmade Exchange in respect of that Order of the nature and amount set out in the then applicable Schedule of Fees and Commissions.
Confidential Information means any information disclosed or revealed by one party to the other party under or in relation to the Agreement that is by its nature confidential, is designated by the disclosing party as confidential or the receiving party knows or reasonably ought to know is confidential (including the terms of this agreement) BUT EXCLUDING information that is published or has otherwise entered the public domain without a breach of the Agreement or other obligation of confidence, is obtained from a third party who has no obligation of confidentiality to the disclosing party or is independently developed or obtained without breach of the Agreement.
Customer means an individual that purchases products from an Artist by placing an Order using the Website.
Fee means, from time to time, each fee payable by Artist to The Handmade Exchange of the nature and amount set out in the then applicable Schedule of Fees and Commissions (which may include any fees charged by a Payment Provider).
GST Law has the meaning given to it in the A New Tax system (Goods and Services Tax) Act 1999 (Cth)
The Handmade Exchange means Fierce Publicity’s sub-group The Handmade Exchange (ABN 38 468 697 451)
Intellectual Property Rights means all intellectual and industrial property rights throughout the world including rights in respect of or in connection with any confidential information, copyright (including future copyright and rights in the nature of or analogous to copyright), moral rights, inventions (including patents), trademarks, service marks and designs whether or not now existing and whether or not registered or registrable including any right to apply for the registration of such rights and all renewals and extensions.
Loss means any damage, loss, cost, expense or liability.
Non-Excludable Provision means a guarantee, term, condition, warranty, right or remedy implied or imposed by any Australian statute (for example, the Australian Consumer Law) or regulation which cannot lawfully be excluded or limited under the terms of that statute or regulation.
Order means an order placed by a Customer to purchase a product from Artist using the Website.
Payment Provider means any third party that The Handmade Exchange uses to collect payments (including a bank, credit or debit card scheme or other payment processing service such as PayPal).
Schedule of Fees and Commissions means the document of that name setting out Fees and Commissions payable by Artist to The Handmade Exchange.
Standard Customer Terms means the standard terms and conditions prepared and varied from time to time by The Handmade Exchange that apply to the offer, sale and supply of products by the Artist to Customers.
Store Credit means a credit of a denominated value issued by The Handmade Exchange to a Customer for use by a Customer in payment for any products made available for sale on the Website.
Term means the term of the Agreement, being the period commencing on the Commencement Date and ending on the date of termination under clause 2.1 or 2.2.
Website means The Handmade Exchange’s published website located at URL www.handmadeexchange.com.