BACKGROUND

A.          The Supplier represented to Upcoming that it is qualified, skilled and has the necessary expertise to provide quality Products of the type that is offered on the Platform. In entering into this agreement, Upcoming has relied upon this representation.

B.          Upcoming agrees to appoint the Supplier to provide Products to the Customers using the Platform in accordance with the terms and conditions set out in this Agreement.

C.          The Supplier agrees to provide Products to Customers and to pay the Commission to Upcoming in accordance with the terms and conditions set out in this Agreement and any Order.

1.       APPOINTMENT & ORDERS

1.1        Conditions Precedent

The Supplier acknowledges that this Agreement is conditional upon Upcoming being satisfied (at its absolute discretion) that the Supplier has:

(a)     effected registration with Stripe Connect System to receive funds;

(b)     effected the Onboarding Process in accordance with clause 1.4; and 

(c)      effected and maintained any required insurance policies under clause 12.3.

1.2        Appointment

Subject to clause 1.1, Upcoming appoints, and the Supplier accepts its appointment, to supply the Products to the Customers via the Platform in accordance with this Agreement.

1.3        Non-Exclusive appointment

Upcoming appoints the Supplier as a non- exclusive supplier of products to Customers during the Term.

1.4       Onboarding

(a)     The Supplier must participate in any onboarding activities requested by Upcoming, including participation in video conference calls.

(b)     The Supplier must provide all information requested by Upcoming for onboarding, including ABN details and website details, and must do anything required to facilitate the upload of the Supplier’s products to the Platform, including via API connection.

(together, the Onboarding Process)

1.5       Orders

(c)      Orders are communicated to the Supplier directly, via the "sales” tab in the sellers centre on the Platform, the Supplier’s Shopify account, or as agreed by the Parties.

(d)     Within 2 business days of receiving the Order, the Supplier must change the status of the Order from "payment confirmed” to "in progress”, or otherwise cancel the Order.

(e)     The Supplier is responsible for all communications to the Customer in relation to an Order, including Order status updates. The Supplier must ensure all communications are sent via the Platform.

1.6       Use of the Platform

(f)       The Supplier agrees that the Platform is a curated marketplace and as such Upcoming has the right to reject the listing of any Product on the Platform, in its sole discretion.

(g)     The Supplier agrees that it will comply with the Seller Guidelines, as updated from time to time.

(h)     Upcoming reserves the right to reduce the Supplier’s rating, suspend or ban the Supplier, due to poor service, customer complaints or breach of this Agreement.

(i)       The Supplier agrees for Upcoming to use their Products, content, brand name and logo, as uploaded to the Platform for Upcoming’s advertising and marketing purposes.

(j)       The Supplier agrees to provide free samples to Upcoming for marketing and advertising purposes.

(k)      The Supplier agrees to send free samples to influencers/affiliates contracted by Upcoming, on request by Upcoming.

2.       DELIVERY

2.1        Delivery

(a)        The Supplier will provide the shipping cost and Dispatch Date on the relevant Product Information Page for the Customer’s review prior to purchase. The Supplier is responsible for ensuring the shipping information on the Product Information Page is accurate and includes all costs.

(b)        The Supplier will deliver the Products to the Customer, as per the relevant Order and in accordance with the Product Information Page.

(c)         The Supplier is responsible for incurring all shipping costs, including customs duties and taxes for international Suppliers.

(d)         The Supplier must use a reputable shipping provider that is suitable for the Order and will deliver the Order to the Customer within a reasonable time period.

(e)        The Supplier must use Upcoming branded mailer bags for all Orders that can fit within the mailer bags. All fashion and beauty items must use Upcoming branded mailer bags.

(f)          The Seller agrees that it will purchase Upcoming mailer bags through the Upcoming website.

2.2        Shipping Tracking Numbers

(a)        The Supplier must provide a Shipping Tracking Number through the Platform for all Orders. The Supplier agrees that if a Shipping Tracking Number is not provided to the Customer, the Returns Period for the Order does not start which means the Supplier will not be paid.

(b)        If in relation to an Order, ten (10) days have passed since the Dispatch Date and the Supplier has not entered a Shipping Tracking Number, the Seller agrees that the Order may be cancelled, at Upcoming’s sole discretion.

(c)         If the Supplier enters fake or misleading Shipping Tracking Numbers into the Platform, the Supplier’s account may be suspended or terminated, at Upcoming’s sole discretion. 

(d)        If an Order goes missing in transit, a replacement Order must be sent to the Customer at the cost of the Supplier, or a refund must be arranged by the Supplier.

2.3        Shipping Policy

(a)        The Supplier must provide shipping in accordance with Upcoming’s Shipping Policy, including the provision of Free Shipping.

(b)        The Supplier acknowledges that the Shipping Policy is subject to change, in Upcoming’s sole discretion, and agrees to remain continually compliant with the Shipping Policy.

(c)         If the Supplier is unable to supply the Products in the manner specified in a Order, the Supplier will, at Upcoming’s election:

(i)           deliver the Products at a later date; or

(ii)          cancel the Order.

3.        PRODUCT WARRANTIES

3.1        The Supplier acknowledges that Upcoming operates a marketplace and agrees that it provides all warranties in relation to Products sold by the Supplier on the Platform, in accordance with the Warranties Policy.

3.2         The Products come with guarantees that cannot be excluded under the Australian Consumer Law. The Customer is entitled to a replacement or refund from the Supplier for a major failure and compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the Products repaired or replaced if the Products fails to be of acceptable quality and the failure does not amount to a major failure.

3.3        In addition to the Customer’s rights under the Australian Consumer Law, the Products come with a warranty for the Warranty Period in relation to Products that do not comply with law or with the Product Information Page or Order (Defects).

3.4        If the Customer notifies the Supplier or Upcoming of any Defects during the Warranty Period (Warranty Claim), the Supplier will inspect the Defect and, the Supplier will:

(a)     repair the Defects;

(b)     replace the Product; or

(c)      refund the Price paid in respect of the relevant Product.

3.5        The Supplier must create and keep updated a contact page on its website for Warranty Claims.

3.6        The Supplier agrees that if a Warranty Claim is made, the Commission paid to Upcoming in relation to the relevant Order is not affected and will be retained by Upcoming.

3.7        The Supplier must ensure the warranty offered to Customers on the Platform is the best available when compared to the warranties available to Customers when purchasing the same product through other retailers, including through the Supplier directly.

3.8        Upcoming may override the Supplier’s rejection of a Warranty Claim and itself issue a refund to the Customer. If this occurs, Upcoming may, in its sole discretion, deduct the refund amount from the Supplier’s account or from future payments.

3.9        The Supplier agrees that all Warranty Claims can be processed at their stores, if applicable.

4.       .RETURNS

4.1        The Supplier warrants and agrees that it will provide returns to Customers in accordance with the Returns Policy.

4.2        The Supplier agrees that it will process all returns from Orders, including for Defects and change-of-mind, in accordance with the Returns Policy.

4.3        The Returns Period, as determined under the Returns Policy, starts accruing from the date the Shipping Tracking Number is provided to the Customer.

4.4        When a return is requested by the Customer, the Supplier must email a return postage slip to the Customer within 24 hours of the request.

4.5        If the Supplier does not comply with clause 4.4, Upcoming may charge the Supplier an administration fee of $90.00, plus the shipping costs of the return label.

4.6        The Supplier will cover the expense of return shipping for all fashion and beauty Products, and home items under 3.5kg that can fit in a size XL polymailer bag.

4.7        Subject to clause 4.6, the Customer will cover the expense of return shipping for all Products.

4.8        The Supplier agrees that it will accept returns for Products purchased through the Platform from its stores, if applicable.

4.9        The Supplier must process a return within 2 business days of its arrival.

4.10     The Suppler will advise Upcoming via the Seller Centre if the return was accepted or rejected by the Supplier.

4.11     When the Seller rejects a return, the return request is sent to Upcoming for final assessment. Upcoming will make a final determination of whether the return is accepted or rejected. If Upcoming determines that a return should be accepted, Upcoming will issue a refund and may withhold the refund amount from any amount owed to the Supplier.

5.       PAYMENT

5.1        Payment

(a)     The Supplier may adjust the Price by giving Upcoming notice, and logging the adjustment on the Platform. Any adjustments will not apply to existing Orders.

(b)     The Supplier will be paid the Price, less the Commission and any relevant fees or deductions (including the Introductory Offer, if applicable) , for an Order via Stripe once the Returns Period expires.

(a)     If a return has been requested, payment will not be released to the Supplier unless Upcoming rejects the return request.

(b)     Payment processing fees will be deducted from the Price for each Order, including Stripe Fees and BNPL Fees. These fees are nonrefundable, including in the event that an Order is cancelled or refunded.

(c)      Each amount payable under the Agreement in respect of a taxable supply is expressed as a GST exclusive amount and the recipient of the supply must, in addition to that amount, and at the same time, pay the GST payable in respect of the supply.

6.       TERM & TERMINATION

6.1        This Agreement commences on the Commencement Date and continues indefinitely, unless this Agreement is terminated earlier in accordance with its terms.

6.2        Either Party may terminate this Agreement immediately upon notice to the other Party (the Relevant Party) if:

(a)    the Relevant Party commits a material breach of the Agreement which is incapable of being remedied or is not remedied by the Relevant Party within 10 days after being required in writing to do so;

(b)    the Relevant Party is unable to pay its debts as they fall due; or

(c)     the Relevant Party is or represents that it is insolvent, or has an administrator, liquidator or receiver appointed, or the Relevant Party enters or threatens to enter into bankruptcy.

6.3        The Supplier may terminate this Agreement at any time by giving Upcoming 60 days of notice in writing.

6.4        Upcoming may terminate this Agreement immediately at any time by giving the Supplier notice in writing.

6.5        On termination of this Agreement:

(a)    each Party, on request from the other, will return any material or thing, including the other Party’s Intellectual Property Rights and Confidential Information that is in the first Party’s possession or control; and

the Supplier must honor any Orders made before termination

7.       GENERAL WARRANTIES & OBLIGATIONS

7.1        Each Party continually warrants and represents to the other that:

(a)    it is able to pay its debts as and when they fall due;

(b)    it has all necessary rights, licenses, permits, and consents to perform its obligations under this Agreement and will comply with all applicable laws in doing so; and

(c)     it will not do anything that may adversely affect the other Party’s goodwill, brand, or reputation.

7.2        The Supplier continually warrants and represents to Upcoming that:

(a)    all information provided to Upcoming or to Customers, including the Product Information Page, is complete, accurate and true; and

(b)    it’s activities and Products comply with all laws, regulations and standards in all relevant jurisdictions.

8.       RECALL ACTION

8.1        If the Supplier becomes aware that a Recall Action is necessary because:

(a)    the Products pose a risk to health or safety;

(b)    the Products do not comply with relevant laws and/or any mandatory industry codes or standards; or

(c)     a relevant authority has directed, or is likely direct, that the Products be the subject of a Recall Action,

it must immediately notify Upcoming and Upcoming will determine the course of action.

8.2        The Supplier must cooperate with and provide all            reasonably requested information and assistance           to Upcoming in respect of addressing, and communicating about, any Recall Action.

8.3        The Supplier must bear all costs associated with and resulting from any Recall Action.

9.       INTELLECTUAL PROPERTY

9.1        No assignment of existing IP: Nothing in this Agreement          affects the ownership of any Intellectual Property Rights owned or created by either Party before, or independently from, entering into this Agreement.

9.2        Rights of Product IP: The Supplier warrants that all Intellectual Property Rights (including future rights) that subsist in the Products (Product IP) are owned by, or licensed to, the Supplier and nothing in this Agreement grants an assignment or transfer of ownership in the Product IP to Upcoming.

9.3        License of Product IP: The Supplier grants to Upcoming a non- exclusive license to use the Product IP for any purpose under or in connection with this Agreement and to the extent necessary for the Customer to enjoy normal            use of the   Products.

9.4        Infringement: The Supplier must promptly advise Upcoming in writing of any infringement, legal proceeding (actual or threatened) it becomes aware of in relation to the Product IP, and the Supplier will take all steps necessary (if requested by Upcoming) to assist Upcoming in addressing any such action in respect of the infringement.

9.5        Upcoming IP: Upcoming's intellectual property, including all information shared with the Supplier for purposes connected with this Agreement, must not be kept confidential unless shared with Upcoming’s prior written consent.

10.    PRIVACY

10.1     This clause applies when the Supplier deals with Personal Information in connection with this Agreement.

10.2     The Supplier agrees:

(a)    to use or disclose Personal Information only for the purposes of the Agreement;

(b)    not to sell or disclose Customer’s Personal Information to third parties, unless disclosure is required for the purposes of performing the Supplier’s obligations under this agreement (including disclosure to courier services or Stripe).

(c)     not to do any act or engage in any practice that would breach the Privacy Act 1988 (Cth) (Privacy Act), the Australian Privacy Principles (APP), the EU General Data Protection   Regulation (GDPR) and any other privacy laws applicable to the Supplier;

(d)    to immediately notify Upcoming if the Supplier becomes aware of a breach or possible breach of any of the obligations in, or referred to in, this clause 10, whether by the Supplier or an individual person or entity engaged by the Supplier:

(e)    to comply with any directions by Upcoming with respect to privacy;

(f)      to comply with any directions by the Privacy Commissioner with respect to privacy;

(g)    to ensure that any employee of the Supplier who is required to deal with Personal Information for the purposes of this Agreement is made aware of the obligations of the Supplier set out in this clause.

(h)    The provisions of this Clause 10 will survive termination or expiration of the Agreement.

11.    CONFIDENTIALITY        

11.1     Each Party agrees  to keep  the  other  Party’s Confidential Information secret and safe, and not use it or disclose it to any person (or allow anyone else to do so) without the other Party’s written consent, except to the extent necessary to: (a) comply   with this Agreement; (b) obtain professional advice in relation to the Agreement; or (c) comply with applicable law, provided that the other Party is given reasonable notice of the required disclosure.

12.    LIABILITY

12.1     Limitation of liability: To the maximum extent permitted by law, Upcoming:

(i)      excludes all representations and warranties implied by law, and any and all liability for any loss, damage, or claim (including in negligence) suffered or incurred by the Supplier or its Affiliates in connection with this Agreement, and the Supplier releases Upcoming from any liability that may arise;

(j)      excludes any and all liability for any loss, damage, or claim (including in negligence) suffered or incurred as a result of a cancellation of an Order; and

(k)     will not be liable for Consequential Loss.

12.2     Indemnity:  The Supplier indemnifies Upcoming and its Affiliates for:

(a)    any loss, damage, or claim suffered or incurred by Upcoming or its Affiliates in relation to any materials, formulations,   information, and warranties provided to the Supplier by Upcoming, and for any loss whatsoever resulting from the Products;

(b)    any loss, damage, or claim suffered or incurred by any third party, including the Customer, in relation to the Product, including but not limited to safety, fitness for purpose and defects.

12.3     Insurance: The Supplier warrants that, at all times during the term of the Agreement, it will take out and maintain all necessary insurance, at its own expense and on terms and for amounts that are acceptable to Upcoming, including, without limitation:

(a)    If the Supplier sells Products via the Platform with a cumulative gross sale value in excess of AU$10,000 (including any taxes, but not including deductions for Commission or other fees) per month, the Supplier must take out and maintain public liability insurance cover of at least one AU$1,000,000 with a reputable insurer.

13.    GENERAL

13.1     Order of priority: In the event of any inconsistency between the following documents, the order of precedence will be as follows (in descending order of priority in effect), to the extent of any such inconsistency: 1. Any Special Conditions 2. The Supply Agreement; 3. Any Schedule and Annexures to the Supply Agreement.

13.2     Dispute resolution: A Party must not commence court proceedings in relation to a dispute arising from, or in connection with, this Agreement without first giving notice to the other Party of the dispute and the Parties meet to resolve the dispute in good faith.  If the dispute is not resolved within 14 days from the notice of dispute, the Parties must instruct the Law Institute of Victoria to appoint an independent mediator to attempt to resolve the dispute by mediation, and the Parties must participate in the mediation in good faith. The costs of the mediation must be equally shared by the Parties. Nothing in this clause will prevent a Party from seeking urgent injunctive or interlocutory relief.

13.3     Force majeure: Neither Party will be liable for any delay or failure to perform its obligations under this Agreement, except for the obligation to pay, if such delay or failure is due to any circumstances beyond that Party’s reasonable control.

13.4     Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

13.5     Relationship of Parties: Nothing contained in this Agreement constitutes the relationship of a joint venture, agency, partnership or employment between the Parties.

13.6     Assignment: The Supplier must not assign, transfer, or novate, in whole or in part, its rights under this Agreement except with the prior consent of Upcoming.

13.7     Governing law: This Agreement will be governed by the laws of Victoria; Australia and the Parties hereby submit to the exclusive jurisdiction of the courts of Victoria in relation to any claim or matter arising from or in connection to this Agreement.

13.8     Entire agreement: This Agreement contain the entire understanding between the Parties, and supersedes and replaces any prior representations, negotiations, understandings, or agreements, in respect of this subject matter. This Agreement may only be amended or modified by a document in writing signed by the Parties.

13.9     Counterparts: The Parties may execute this Agreement in two or more counterparts and all counterparts together constitute one instrument.

13.10  Survival: Clauses 5.6, 9.4, 10, 11.2, and 12.2 will continue in force notwithstanding the termination of this Agreement for any reason.

14.    DEFINITIONS

14.1     In this Agreement, unless the contrary intention appears:

Affiliate means directors, officers, employees, contractors, successors, and related entities and related body corporate, as defined in the Corporations Act 2001 (Cth).

Agreement means this Supply Agreement read together with all of its Orders, schedules, annexures, and any variations in writing signed by both Parties.

BNPL Fees means any fee that is charged by a Buy-Now-Pay-Later platform for processing the transaction.

Commencement Date means the date on which this Agreement is executed by both the Parties.

Confidential Information means the terms of this Agreement and all information of a confidential or sensitive nature (including Intellectual Property Rights) disclosed before or after the Commencement Date, whether in writing or otherwise of or concerning a Party or its Affiliates under, in contemplation of or in connection with the Products, or this Agreement. Confidential Information will not include any information that is in the public domain, or is intended to come into the public domain through the performance of this Agreement (other than through breach of the Agreement).

Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

Customer means the end-consumer of the Products, or otherwise a user of the Platform.

Dispatch Date means the anticipated date the Product will be shipped by the Supplier, as detailed on the Product Information Page.

GST has the meaning given to it in the A New Tax System (Goods and Deliverables Tax) Act 1999 (Cth) or any amending or replacing law.

Intellectual Property Rights means all present and future intellectual property or related rights, including improvements, whether registered or unregistered, including copyright, trade mark, patents, designs, business or domain names, inventions, know-how, confidential information, trade secrets, recipes, and formulations, arising anywhere in the world, and any associated moral rights.

Introductory offer means, if applicable, the offer set out at item 4 of Schedule 1.

Order means any order placed by a Customer for the Supplier’s Product through the Platform.

Parties means the Supplier and Upcoming, each a Party, and together the Parties.

Personal Information has the same meaning as contained in the Privacy Act 1988 (Cth).

Price means the price set by the Supplier for the Product, including GST, as reflected on the Product Information Page.

Product means any good that the Supplier lists or seeks to list on the Platform.

Product Information Page means the page on the Platform that provides information relating to the relevant Product.

Recall Action means in relation to the Products, any one or more of the following events occurring: a recall, market withdrawal, stock recovery, Product correction, and/or advisory safety communication, or similar action.

Returns Period means the period during which the Products may be returned by the Customer, pursuant to the Returns Policy as updated from time to time.

Returns Policy means the returns policy set out on the Platform and accessible at www.upcoming.store/returns.

Shipping Policy means the shipping policy set out on the Platform and accessible at www.upcoming.store/shipping.

Shipping Tracking Number means the number provided by the shipping provider that allows for tracking of the parcel.

Stripe Connect System or Stripe means the online payment system operated by Stripe via www.stripe.com/au.

Stripe Fees means the payment gateway charges and all other fees charged by Stripe, as updated from time to time at www.stripe.com/au/pricing.

Warranties Policy means the warranties as set out on the Platform and accessible at www.upcoming.store/returns.