Terms & Conditions
These terms and conditions govern and form the Merchant Agreement between Flash Market Pty Ltd ACN 615 277 677 (“Flash Market”) and the Merchant ("Agreement").
“Account” means a Merchant’s account to use the Services including the Back Office;
“Administration Panel” means the software system provided by Flash Market to enable Merchants to login and post and edit Listings to the App;
“App” means the application under the name “Flash Market” and its related services, products, Website, tools and applications;
“Billing Cycle” means the billing cycle set out in clause 6.1;
“Commencement Date” means the date the Merchant’s application is accepted in accordance with clause 3;
“Content” includes any material, text, pictures, sound, graphics, video and other data whether in written form or otherwise;
“Information” means any information, Content, documents, links or attachments;
“IntegraPay” means the payment gateway through which all payments through the App will be made, or any other payment gateway featured on the App from time to time;
"Intellectual Property" means all intellectual property rights, including without limitation inventions, patents, copyright, rights in circuit layouts, registered designs, trade marks, know-how, processes, concepts, intellectual property in the name "Flash Market", the App, Content, the system developed by Flash Market and used on the App and the source code for that system, and any right to have Information kept confidential and any application or right to apply for registration of any of the these rights throughout the world whether registered or unregistered and whether developed before or after the date of this Agreement;
“Listing” means the advertisement for a Merchant Offering that is available to view on the App;
"Loss" means any direct, indirect, special or consequential loss, damages, cost, expense, penalty, liability, charge or tax of any nature whatsoever, including loss of profit, opportunity, goodwill, business, production or stolen information, programs or other data (however arising or caused, including, without limitation, negligence);
"Merchant" means a third party unrelated to Flash Market that sells, supplies and/or provides the Merchant Offering;
"Merchant Offering" means the goods and/or services to be supplied and/or provided by the Merchant as specified in the App;
“Merchant Site” means the location where the Purchaser can collect the Merchant Offering;
“Net Proceeds” means the amount that Flash Market shall remit to the Merchant for each Merchant Offering sold through the App;
"Policy" refers to any policy of Flash Market in place from time to time including without limitation any policy relating to privacy, fees, refunds, feedback and service;
“Purchase” means the purchase of a Merchant Offering through the App, in which in exchange for payment the User will receive a Receipt which can be redeemed for the Merchant Offering;
“Purchaser” means a User that has purchased a Merchant Offering on the App;
"Purchaser Information" means any information relating to a purchaser of a Merchant Offering;
“Receipt” means a digital transaction receipt which serves as proof of Purchase entitling the User to redeem the Merchant Offering from the Merchant;
“Redemption Period” means the date stated on the Receipt when the Receipt expires;
“Referral Partner” means an entity that sends prospective leads to Flash Market and helps coordinate Merchants;
"Related Entity" has the meaning given to it in section 9 of the Corporations Act 2001 (Cth);
“Services” means any service Flash Market provides to the Merchant, including the App;
"Subscription Fee" means the subscription fee as notified by Flash Market from time to time which is payable monthly to Flash Market by the Merchant and which entitles the Merchant to make Listings on the App;
“Term” means the period of this Agreement commencing on the Commencement Date and expiring on the date that it is terminated in accordance with this Agreement;
“User” means a user of the App.
In this Agreement, unless inconsistent with the context or subject matter:
(a) a reference to a person includes any other legal entity and vice versa;
(b) words importing the singular number include the plural number and vice versa;
(c) a reference to a party includes the party's heirs, executors, successors and permitted assigns;
(d) headings are for reference purposes only and must not be used in interpretation;
(e) 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;
(f) a reference to a statute includes all regulations and subordinate legislation and amendments;
(g) references to writing include any mode of representing or reproducing words in tangible and permanently visible form, and includes e-mail and fax;
(h) a reference to a monetary amount is a reference to an Australian currency amount;
(i) references to time are to local time in Victoria;
(j) where time is to be reckoned from a day or event, the day or the day of the event must be excluded;
(k) a reference to a business day means any day on which trading banks are open for business in Victoria;
(l) if any time period specified in this Agreement expires on a day which is not a business day, the period shall expire at the end of the next business day;
(m) a reference to a month means a calendar month; and
(n) a reference to data includes metadata.
3.1 Flash Market agrees to provide an online marketplace through the App for the Merchant to list its Merchant Offerings for sale to Users for the Term on the terms and conditions set out in this Agreement.
3.2 The Merchant must submit an application to Flash Market prior to being permitted to use the App.
3.3 Flash Market reserves the right to deny any application at its sole discretion and without any obligation to provide a reason for its decision.
3.4 The Merchant must submit an application to Integrapay to use the central payment gateway as a precondition to acceptance under this Agreement. If the Merchant is declined for any reason, this Agreement shall be at an end and of no further force and effect.
3.5 The Merchant is the supplier of the Merchant Offerings. Flash Market simply acts as an online introduction tool between Merchants and Users.
4. MERCHANT OFFERING LISTINGS
4.1 The Merchant will list Merchant Offerings to Users through the App.
4.2 To access and use the App a Merchant is given an Account with an account number and password. The Merchant is solely responsible for maintaining the confidentiality of its password and is liable for all activities that happen under its Account, even if it does not authorise such activities.
4.3 The Merchant will be granted access to the Administration Panel to be able to upload a Listing.
4.4 The Merchant authorises Flash Market to promote and sell Merchant Offerings on behalf of the Merchant through the App and any other distribution channels ancillary to the App.
4.5 Merchant Offerings may be offered to all or part of Flash Market’s App Users at the discretion of Flash Market.
4.6 Flash Market reserves the right to reject, revise, or discontinue any Listing or Merchant Offering, at any time and for any reason in Flash Market's sole discretion, and to terminate the Listing or Merchant Offering and to remove all references to the Listing or Merchant Offering from the App; and redirect or delete any URL used in connection with the Merchant Offering.
4.7 The Merchant will be provided with the Purchaser Information through the App.
4.8 The Merchant agrees to accept sole responsibility for refunds and returns of the Merchant Offering in compliance with applicable laws and clause 7.
4.9 The contract for sale of any Merchant Offering is directly between the User and the Merchant. Flash Market is not a party to this contract.
5.1 Receipts will evidence the Merchant Offering and will be sent to the Purchaser electronically once payment is received. The Purchaser will then redeem the Receipt with the Merchant by presenting the Receipt in electronic form. The Merchant is the issuer of the Receipts and seller of the Merchant Offering and is responsible for preparing, issuing and redeeming the Receipt.
5.2 The Merchant shall honour the Receipts for the Merchant Offering for the duration of the Redemption Period. After the Redemption Period, the Merchant agrees to honour the Receipts for at least the price the Purchaser paid if required by law.
5.3 If applicable, and if a customer redeems a Receipt for less than the amount the Purchaser paid, the Merchant is responsible for handling any unredeemed value as required by law.
5.4 The Merchant agrees that in providing the Merchant Offering, the Merchant will not inflate prices or impose any additional fees, charges, conditions or restrictions that contradict or are inconsistent with the terms stated on the Receipt, including any terms and conditions in the Listing. Unless disclosed in the terms and conditions of the Listing, the Merchant further agrees not to impose different terms or a different cancellation policy than what is imposed on its non-Flash Market customers.
5.5 Subject to any contrary terms on the Listing, the Merchant agrees that so long as an appointment or reservation is made to redeem a Receipt, or the Purchaser has made an attempt to make an appointment, before the Receipt's Redemption Period, the Receipt will be honoured for the price of which the Purchaser paid for it without restriction, even though the services may be provided after the Redemption Period.
5.6 Where a Merchant Offering is to be collected by a Purchaser, the Merchant will hold the Merchant Offering for pick-up by each Purchaser at the Merchant Site during its normal operating hours or will post it to the Purchaser in accordance with any conditions it stated on the Listing (including in relation to the type of postage used and delivery timeframes).
6.1 Subject to clause 8, the Merchant must pay the Subscription Fee monthly to Flash Market on or before the calendar day corresponding to the Commencement Date.
6.2 The payment will be made by direct debit (unless otherwise agreed by Flash Market) and the Merchant must provide Flash Market with current credit or debit card details at all times while it is a Merchant on the App, and irrevocably authorises Flash Market to debit the Subscription Fee and all other amounts payable by the Merchant to Flash Market from time to time from the Merchant’s nominated card without notice during the Term.
6.3 If the direct debit payment requires payment of a transaction fee then the Merchant grants Flash Market the right to charge it for such transaction fees at the same time as charging the Subscription Fee.
6.4 For the avoidance of doubt the Subscription Fee and any other fees paid by the Merchant to Flash Market is non-refundable to the extent permitted by law.
6.5 If payment of the Subscription Fee is not successful due to expiration, insufficient funds or otherwise Flash Market may suspend a Merchant’s access to the App until Flash Market have obtained a valid payment.
6.6 Unless otherwise specified by Flash Market, all fees payable to Flash Market under this Agreement are exclusive of GST and must be increased to include GST.
7.1 Subject to the Merchant’s performance of its obligations under this Agreement, Flash Market agrees to instruct IntegraPay to remit the Net Proceeds of the Merchant Offering to the Merchant into their nominated bank account.
7.2 The Merchant must have a valid IntegraPay account (or any other payment account nominated by Flash Market), to receive payment of the Net Proceeds. Flash Market will provide all necessary information with regards to IntegraPay.
7.3 The Merchant authorises Flash Market to retain an amount of the proceeds equal to 5% of the Net Proceeds.
7.4 The Merchant will be solely responsible for collecting and remitting any GST or other taxes owed in connection with this Agreement.
7.5 The Net Proceeds of the Merchant Offering will be paid to the Merchant on or before 30 days from the end of the calendar month in which the Merchant Offering is sold.
7.6 Flash Market may deduct from the Net Proceeds any amount owed by the Merchant to Flash Market from time to time (for example, if the Subscription Fee could not be debited from the Merchant’s nominated bank card and is outstanding).
7.7 The Merchant acknowledges and agrees that payments received by Flash Market may be paid by way of commission to Referral Partner/s including for referring the Merchant to Flash Market.
8. TRIAL PROMOTIONAL PERIOD
8.1 Flash Market may offer a trial promotion of the App to the Merchant for a period of time as notified by Flash Market (the “Trial Promotional Period”). If no Trial Promotional Period is notified by Flash Market, then it is deemed not to apply.
8.2 During the Trial Promotional Period, the Merchant may have the Subscription Fee reduced or waived.
8.3 At the expiry of the Trial Promotional Period the Merchant must pay all fees required under this Agreement to continue to use the App.
9. PROMOTIONAL PROGRAMS
9.1 The Merchant authorises Flash Market at any time and in Flash Market’s sole discretion, to increase or decrease the price for a Merchant Offering available in the App.
9.2 For each Merchant Offering sold under a promotion, the Net Proceeds will be adjusted to their original price as agreed between the parties.
Example:- During a 20% off promotion, goods that are valued at $20 will be advertised at $16 on the App. If the goods sell for $16 we will adjust the Net Proceeds on the basis the goods were sold for their original price of $20.
10. REFUNDS AND RETURNS POLICY
10.1 The Merchant is solely responsible for handling all complaints, refunds and returns of the Merchant Offerings.
10.2 The Merchant must set out its refunds and returns policy on each Merchant Listing, which must comply with all applicable laws, and must honour that policy.
10.3 The Merchant’s refunds and returns policy must comply with all applicable laws which require full refunds to be made in particular circumstances notwithstanding that the proportion of fees payable to Flash Market in accordance with this Agreement are non-refundable in such circumstances.
11.1 The Merchant may cancel this Agreement for any reason at any time by giving written notice to Flash Market.
11.2 Cancellation of this Agreement will be effective as of the end of the Merchant’s monthly Billing Cycle for the calendar month in which Flash Market receives the written notice to cancel.
11.3 The Merchant will continue to have access to the App through to the end of their current monthly Billing Cycle.
11.4 Cancellation of this Agreement will not in any way affect the Merchant’s obligation to redeem or honour any Receipt according to the terms of this Agreement.
11.5 Unfortunately to the extent permitted by law, Flash Market offers no refunds or partial refunds.
12. MERCHANT OBLIGATIONS
12.1 The Merchant acknowledges and agrees that:
- Flash Market only provides the App to facilitate the purchase of Merchant Offerings and the Merchant is solely responsible to Users including but not limited to the fulfilment of the Purchase;
- the information provided in an application form provided to Flash Market is valid and correct in all respects and not in any way misleading;
- all information and advertisements prepared by the Merchant will comply with the Australian Consumer Law and shall not be misleading, deceptive, incomplete or inaccurate in any respect; Flash Market is not a party to any arrangements entered into between a Purchaser and a Merchant;
- any communications and arrangements entered into with a Purchaser are at the Merchant’s own risk;
- for Receipts that require advance scheduling the Merchant must use its best efforts to accommodate the scheduling request of the Purchaser;
- Flash Market does not guarantee the completeness, accuracy, currency or reliability of the Purchaser Information;
- the Merchant is responsible for all customer service and customer loyalty programs in connection with the Merchant Offering;
- the Merchant must only use the Purchaser Information to fulfil its redemption obligations in connection with the Merchant Offering;
- the Merchant must not communicate with Purchasers outside of the App apart from those circumstances where it is required in order to fulfil its redemption obligations in connection with the Merchant Offering;
- the Merchant must have sufficient quantity of the Merchant Offerings referred to in the Listings for sale on the terms contained in the Listing;
- if the Merchant has represented that it can provide certain Merchant Offerings, that it has the experience and qualifications to provide those Merchant Offerings;
- the Merchant will use its best efforts to promote and sell Merchant Offerings through the App;
- the Merchant must maintain high standard of honesty, integrity and business ethics;
- no exclusive territory or category is granted to the Merchant;
- Flash Market have the right to use any Information provided to it;
- the Merchant must not do anything that may harm Flash Market;
- the Merchant must have a valid IntegraPay account in order to receive any payments from Flash Market under this Agreement and not having an IntegraPay account will prevent the Merchant from receiving the Net Proceeds;
- Flash Market does not make any guarantees as to the number of sales that the App will generate and the success of the App is largely dependent on the Merchant’s own efforts.
12.2 The Merchant must:
- have an Australian Business Number; and
- comply with all Applicable Laws including the Privacy Act 1988 (Cth);
The Merchant acknowledges and agrees that it will not approach a User directly after becoming aware of such User following use of the App. The Merchant is strictly prohibited from directly or indirectly attempting to circumvent payment of the amounts payable to Flash Market under this Agreement in any way.
14.1 Flash Market and its business partners may communicate with the Merchant with regard to products, promotions, and other services that may be of interest to the Merchant. This may include email or other communications.
14.2 Flash Market may also solicit the Merchant’s opinion and feedback for market research purposes. The Merchant agrees that Flash Market may use any opinion or feedback whatsoever provided to Flash Market by the Merchant including without limitation comments or suggestions about Flash Market, the App and/or Services without any obligation to compensate the Merchant for them (just as the Merchant has no obligation to offer them).
15.PROVISION OF SERVICES
Flash Market confirms and the Merchant acknowledges that Flash Market is not a party to any transaction arising or entered into between Users and Merchants. Flash Market is only offering an App which provides an online introduction between Purchasers and Merchants.
16. PERFORMANCE EVALUATION PERIOD
Flash Market requires Merchants to consistently provide a high level of customer satisfaction. To ensure this, Flash Market reserves the right to evaluate the Merchant’s performance from time to time. If the Merchant does not meet the minimum performance standards or expectations of Flash Market, Flash Market may place restrictions on the Account, amend the Subscription Fees or terminate this Agreement.
17.1 In the event of a dispute between a Purchaser and the Merchant, the Merchant acknowledges and agrees that:
- the Purchaser is permitted to notify Flash Market of the dispute;
- once Flash Market is notified of a dispute, Flash Market may (but has no obligation to) liaise with the Purchaser and the Merchant in order to attempt to resolve the dispute;
- the Merchant will, acting reasonably do all things and provide all information necessary to assist Flash Market in ascertaining the details of the dispute and facilitating a resolution of the dispute between the Purchaser and the Merchant; and
- the Merchant will act reasonably in resolving the dispute.
17.2 In the event that the Merchant has a dispute with any Purchasers, it releases and hold harmless Flash Market, its directors, officers, agents, Related Entities, related bodies corporate, employees and contractors, from actions, claims, demands and Losses of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
19. CONFIDENTIAL INFORMATION
19.1 The Merchant will protect Flash Market’s Information that is identified as confidential or that reasonably should be considered confidential (the “Confidential Information”).
19.2 Use of the Confidential Information may only be used to fulfil the obligations under this Agreement.
19.3 The Merchant must promptly return all Confidential Information when requested by Flash Market or upon termination of the Agreement.
20. INTELLECTUAL PROPERTY
20.1 The Merchant agrees that:
- Flash Market owns the Intellectual Property and no right, title or interest in any of the Intellectual Property is transferred or granted to the Merchant;
- it will not copy, reproduce, alter, modify, create derivative works, or publicly display (other than on the App) any of Flash Market's Information or Intellectual Property unless with the prior written consent of Flash Market or the appropriate third party authorised to grant such permission and when doing so the Merchant must acknowledge Flash Market and, in the case of websites, include a link from the website to the App;
- if it adds any Information to the App of any nature that Information is personally attributable to the Merchant and the Merchant warrants that it has the right to distribute that Information and it does not infringe any copyright, intellectual property rights or any other rights of any nature whatsoever of any other third party;
- when it provides Information, Flash Market may receive additional related data, such as the time, date and place the Merchant provided the Information;
- it grants Flash Market an unlimited licence to use the Merchant's Information as Flash Market sees fit in order to provide its services; and
- Flash Market is not liable or responsible for any Loss that the Merchant may experience in submitting its Information to Flash Market or for Flash Market's use of the Merchant's Information in accordance with the licence granted
21.NO WARRANTY AND DISCLAIMERS
21.1 Flash Market provides the Services on an “as is” basis and to the extent permitted by law Flash Market specifically disclaims and contracts out of any implied warranties.
21.2 The Merchant warrants that is has not relied upon any representations, warranties or conditions offered or made by or on behalf of Flash Market except to the extent expressly set out in this Agreement.
21.3 Flash Market reserves the right, in its sole discretion to modify or terminate the App at any time, without notice.
21.4 The Merchant acknowledges and agrees that Flash Market is not engaged in the Listing or sale of Merchant Offerings and is not a party to any transaction arising or entered into between Purchasers and Merchants. As a result, Flash Market has no control over, and does not ensure, guarantee or provide any warranty or indemnity in respect of the quality, fitness for purpose, legality, accuracy, completeness or otherwise of:
- Purchaser Information;
- the ability of a Purchaser to undertake their obligations.
21.5 To the extent that Flash Market and its Related Entities expressly limit their liability for breach of a non-excludable condition or warranty implied by virtue of any legislation or law to the following remedies (the choice of which is to be at Flash Market’s sole discretion):
- the supply of services provided by Flash Market again; or
- the fees paid by the Merchant to Flash Market in the month prior to the liability first arising.
21.6 The Merchant acknowledges that no data transmission over the internet can be guaranteed as totally secure. Whilst Flash Market will strive to protect the Merchant's Information, Flash Market does not warrant and cannot guarantee the security of the Merchant's Information which it transmits through the App or places on the App.
22.1 Notwithstanding the above, Flash Market disclaims all liability to Merchants or any other person or entity for any Loss howsoever arising as a result of providing the Services. The Merchant hereby releases Flash Market and its Related Entities from all Loss suffered by the Merchant or any other person relating to or arising out of the provision of the Services or these terms and conditions.
22.2 The Merchant agrees to accept sole responsibility for the legality of its actions under the laws which apply to it and agrees that Flash Market and its Related Entities, directors and employees have no responsibility for the actions of any Purchasers or Merchants (including the legality of such actions).
22.3 The limitation and exclusion of liability in this clause 22 applies whether the liability claim is based on breach of contract, under a warranty or an indemnity, tort (including negligence), under statute, in equity or otherwise.
The Merchant agrees to indemnify and hold Flash Market and its Related Entities, directors, officers, employees, agents and contractors harmless from and against any actions, claims, demands, proceedings, including legal fees and costs, Loss of every kind and nature, known and unknown, due to or arising out of the Merchant's breach of this Agreement, any claim with relation to Merchant Offerings, any claim arising out of the Merchant’s misuse of Purchaser Information or the terms and policies they incorporate by reference, or its violation of any law or the rights of a third party, or due to or arising directly or indirectly out of the provision of the Services.
24. MERCHANT’S BREACH
24.1 Notwithstanding any other provision in this Agreement, if the Merchant fails to:
- comply with any of the terms or conditions of this Agreement; or
- comply with a Policy,or if:
- the Merchant obtains negative feedback;
- Flash Market believes that the Merchant's actions may cause harm or liability for Flash Market, the App or Users;
- in Flash Market's sole opinion, the Merchant's conduct, acts or omissions threaten, interfere or impact upon the integrity or credibility of the App (or the operation thereof) or Flash Market; or
- Flash Market suspects that the Merchant (by conviction, settlement, insurance or escrow investigation, or otherwise in Flash Market's sole discretion) has engaged in fraudulent or deceptive activity in connection with the App, then Flash Market may:
- immediately issue a warning to the Merchant requesting rectification of the breach or non-compliance;
- temporarily or indefinitely suspend the Merchant from the App and the Account; and/or
- immediately terminate this Agreement and claim against the Merchant for any Loss in connection with the Merchant’s failure under this clause 24.
24.2 The rights and powers conferred upon Flash Market by this clause 24 are in addition to any other right or power which may be conferred upon Flash Market at law or in equity or otherwise in this Agreement.
24.3 Flash Market's failure to act with respect to a breach by the Merchant does not constitute a waiver of that breach or waiver of the right to act with respect to that breach or subsequent or similar breaches.
25.1 Flash Market may terminate this Agreement at any time for any reason on giving written notice to the Merchant.
25.2 Termination under this Agreement will not in any way affect the Merchant’s obligation to redeem or honour any Merchant Offering according to the terms of this Agreement.
26. GENERAL PROVISIONS
26.1 Binding on successors
This Agreement shall be for the benefit of and binding upon the parties and their heirs, executors, successors and permitted assigns.
- The Merchant acknowledges and agrees that Flash Market may transfer, assign or otherwise dispose of its interest in this Agreement without notice to the Merchant.
- The Merchant may not transfer, assign or otherwise dispose of its interest in this Agreement without the prior written consent of Flash Market which must not be unreasonably withheld.
26.3 Governing law
- This Agreement is governed by the laws of Victoria and the Commonwealth of Australia which are in force in Victoria.
- The parties submit to the jurisdiction of the Courts of Victoria, relevant Federal Courts and Courts competent to hear appeals from them.
26.4 Further assurances
The parties may execute and deliver all documents and may do all things as are necessary for the complete performance of their respective obligations under this Agreement.
26.5 Entire understanding
- This Agreement contains the entire understanding and Agreement between the parties as to the subject matter of this Agreement.
- All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this Agreement are merged in this Agreement and are of no further effect.
- No oral explanation or information provided by a party to another affects the meaning or interpretation of this Agreement or constitutes any collateral Agreement, warranty or understanding.
Any clause capable of surviving termination of this Agreement shall survive such termination.
No waiver by a party of a provision of this Agreement is binding unless made in writing.
If a provision of this Agreement is void or unenforceable it may be severed from this Agreement and the provisions that are not void or unenforceable are unaffected by the severance.
26.9 Cumulative rights
The rights and remedies of a party to this Agreement are in addition to the rights or remedies conferred on the party at law or in equity.
26.10 Rules of Construction
Rules of construction will not apply to disadvantage a party whether that party put the clause forward, was responsible for drafting all or part of it or would otherwise benefit from it.
26.11 Time of the essence
Time is in all cases and in every respect of the essence of this Agreement.
26.12 Electronic acceptance
The parties consent to the execution of this Agreement by electronic communication, as contemplated by the Electronic Transactions (Victoria) Act 2000.
26.13 Independent Contractors
The parties at all times are independent contractors. Nothing in this Agreement is to be construed to create a joint venture, partnership, franchise, or an agency relationship between the parties. Neither party has the authority, without the other party’s prior written approval, to bind or commit the other in any way.