Collect & Return Merchant Agreement

As at 15 October 2019

This Collect & Return Merchant Agreement ("Agreement") is between Australian Postal Corporation (ABN 28864970579) of 111 Bourke Street Melbourne, Victoria 3000, and the merchant registering to use the Collect & Return Services and who accepts the terms of the service by clicking the accept terms and conditions button (Merchant).

Please read the Agreement carefully.

The Agreement creates rights for, and imposes obligations on the Merchant and by clicking to accept, installing, copying or otherwise using the Collect & Return Platform and Services, the Merchant agrees to be bound by the terms and conditions set out in this Agreement.

1. Definitions and Interpretation

a) The following definitions apply, unless the context requires otherwise:

Business Day means a day that is not a Saturday, Sunday or a public holiday in Melbourne, Victoria, Australia.

Collect & Return Service means the service provided to the Merchant and their Consumers whereby through access to the Platform, Consumers will be able to Collect parcels from, or Return parcels to, Retail Partner Locations.

Collect means that part of the service where parcels are made available for collection by a Consumer at a Retail Partner Location.

Consumer means the receiver of a Collect parcel or the sender of a Return parcel.

Consumer Paid Returns means Return services which are paid for by Consumers through the Platform at a rate specified by Australia Post.

Licensed IP means the Platform, any operating manuals, user instruction manuals, technical literature and other supporting materials relating to the Platform, and any other intellectual property owned by or licensed to Australia Post and which is provided to a Merchant under this Agreement.

Merchant Data means all data which is uploaded to the Platform by or on behalf of a Merchant (or its related bodies corporate) pursuant to this Agreement.

Merchant Paid Returns mean Return services which are paid for by Merchants at a rate agreed through their Parcel Agreement.

Parcel Agreement means the agreement between Australia Post and the Merchant for parcel delivery services provided by Australia Post to the Merchant.

Platform means the proprietary software and technology that enables access to, and provision of the Collect & Return Service.

Retail Partner means one of the retail or other organisations, including Australia Post, providing the Retail Partner Locations for the purposes of the Collect & Return Services.

Retail Partner Location means a location owned or controlled by a Retail Partner that is a pick-up and/or drop-off point for the Collect & Return Services.

Return means where a Consumer leaves a pre-paid parcel at a Retail Partner Location for delivery back to a Merchant.

Set-Up Services mean the initial configuration and implementation services relating to the Merchant that are required in order to make the Platform and associated materials available to the Merchant and Consumers.

Term has the meaning given in clause 11.

b) In this Agreement, unless the context requires otherwise:

(i) headings are for convenience only and do not affect interpretation;

(ii) a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity.

(iii) a reference to a party to this Agreement or another agreement or document includes the party's successors, permitted substitutes and permitted assigns (and, where applicable, the party's legal personal representatives);

(iv) a reference to time is to Melbourne, Victoria, Australia time; and

(v) general words shall not be given a restrictive meaning because they are followed by words which are particular examples of the acts, matters or things covered by the general words and the words “includes” and “including” shall be construed without limitation.

2. Grant of Platform Licence

a) Subject to the terms of this Agreement, Australia Post grants to the Merchant a non-exclusive, non-transferable, royalty-free, revocable licence to use the Platform solely in support of the Collect & Return Services for the Merchant's internal business purposes, including facilitating the access to the Collect & Return Service by Consumers.

b) Where used for Collect, the Platform must be incorporated into the checkout process on a merchant’s website, and the licence is granted subject to continued compliance with this Agreement and the Parcel Agreement.

c) Where used for Return, the Merchant will configure the Platform to create a customised user interface for Consumers to create Return labels and barcodes.

d) The Merchant must not sub-license or assign any of the rights or interests granted to it under this Agreement.

3. Acceptable usage of the Platform

a) The Platform must not be used in a way that adversely affects its performance or function.

b) The Merchant must not:

i. copy, reproduce, publish, distribute, redistribute, broadcast, transmit, modify, adapt, edit, abstract, create derivative works of, store, archive, publicly display, sell or in any way commercially exploit any part of the Licensed IP);

ii. reverse engineer, decompile, translate, disassemble or attempt to discover any source code or underlying ideas or algorithms in the Platform or the software (or any part of it) that is used to provide the Licensed IP;

iii. observe, study or test the functioning of the underlying software (or any part of it) that is used to provide the Platform;

iv. access the Platform to copy its features, functions or graphics to develop a competing platform or software;

v. use, or encourage, promote, facilitate, instruct or permit any other person to use the Licensed IP for any illegal, harmful, fraudulent, infringing or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, fraudulent, infringing or offensive;

vi. use the Platform or allow the transfer, transmission, export, or re-export, of the Platform or portion thereof, in violation of any applicable export control laws or regulations;

vii. attempt to gain access to third-party data contained on or accessible through the Platform;

viii. make network connections to any users or Retail Partners unless the Merchant has permission to communicate with them.

ix. violate the security or integrity of the Platform, including by:

(A) attempting to probe, scan or test the vulnerability of any part of the Platform;

(B) monitoring data or traffic on the Platform without Australia Post's prior written consent; or

(C) forging TCP-IP packet headers, email headers or any part of a message describing its origin or use.

c) The Merchant must ensure any material it contributes to the Platform ("Content"):

i. is accurate in relation to facts and genuinely held in relation to opinions;

ii. is compliant with Australian law;

iii. is not an infringement or misappropriation of intellectual property or proprietary rights of others;

iv. is not defamatory, obscene, abusive, invasive of privacy, promotes violence or discrimination, or is otherwise objectionable;

v. will not damage, interfere with, surreptitiously intercept, or expropriate any system, program or data, including viruses, Trojan horses, worms, time bombs or cancelbots; and

vi. does not breach any legal duty owed to a third party, promotes any illegal activity, is in contempt of court, or advocates, promotes or incites any party to commit or assist any unlawful or criminal act such as copyright infringement or computer misuse.

d) The Merchant acknowledges and agrees that Australia Post may remove, temporarily or permanently, any Content that breaches this clause whether it is uploaded by the Merchant, or its customers using the Platform.

e) The Merchant must comply with any request by Australia Post to audit the Merchant's compliance with this clause and will provide assistance to Australia Post in investigating and responding to any suspected breach of this clause.

4. Merchant responsibilities and restrictions for Collect

a) (compliance with operational requirements) The Platform may only be used by the Merchant for Collect Parcels where it has (and is not in breach of) a current Parcel Agreement. When using the Collect service, the Merchant agrees to comply with any reasonable operational requirements or delivery service conditions related to the delivery services, as notified to the Merchant from time to time.

b) (Australia Post deliveries only) The Merchant must only use the Platform to facilitate delivery of parcels by Australia Post to Retail Partner Locations, and must not use the Platform to facilitate parcels being carried by any other person.

c) (provision of contact details) In order to receive the Collect services using the Platform, the Merchant must provide Australia Post, in the manifest, with:

i. the name of the person to whom the parcel is addressed;

ii. the email address of the person to whom the parcel is addressed;

and in addition, where available, the mobile number of the person to whom the parcel is addressed. The merchant must provide the manifest to Australia Post immediately before or at the time of lodgement of parcels.

d) (authority to provide contact details) The Merchant warrants that it has obtained the consent from the Consumer to provide Australia Post and its subcontractors with personal information Australia Post and its subcontractors require to provide the Collect & Return Services, and is otherwise acting in accordance with all applicable privacy legislation.

e) (Marketing Opt-in) The Merchant agrees that as a part of the Platform, marketing opt-in functionality will enable Collect Consumers the option to ‘opt-in’ to receive a promotional offer which some Retail Partners or Retail Partner Locations may offer from time to time. The marketing opt-in will only authorise Australia Post to send one promotional offer where it is available, for or redeemable in the Retail Partner Location selected for the collection. The promotional offer, if available, will only relate to Australia Post where Australia Post is the collection point for that purchase. Australia Post does not endorse or accept any responsibility or liability for promotional offers made by third party Retail Partners.

f) (impact of failure to comply) Where the Merchant fails to provide Australia Post the contact details of the person to whom a parcel is addressed, or otherwise does not comply with this Agreement, the Parcel Agreement or any other operational requirements notified to it, the Merchant may not receive the delivery services or the full benefit of the delivery services, or the delivery may be delayed or returned to the Merchant.

g) (use of Retail Partner Location address) the Merchant must use the selected Retail Partner Location as described in the Platform as the ‘ship to’ address. The Merchant must label and manifest the parcels with the standard addressing address format provided by the Platform, being the use of only “Collect at Post”, “Collect at Locker” or “Collect at <Retail Partner>” in Address Line 1, followed by the relevant information in the following fields, as per the following examples:

Collect at Locker
Shop W11
111 Bourke Street
Melbourne VIC 3000

OR

Collect at Post
Shop W11
111 Bourke Street
Melbourne VIC 3000

OR

Collect at [Merchant]
[100] Bourke Street
Melbourne VIC 3000

a) (compliance with Parcel locker T&Cs) Where the Consumer’s ‘ship-to’ address is a parcel locker, the Merchant must comply with the parcel locker terms and conditions located at http://auspost.com.au/parcels-mail/terms-and- conditions-parcel-lockers.html, and must ensure that Consumers are made aware of those terms and conditions.

b) (use Platform in accordance with T&Cs) The Merchant must only use the Platform in accordance with the terms of this Agreement and any additional reasonable requirements, as notified by Australia Post from time to time, upon giving reasonable notice.

c) (notification of infringement and/or breach) The Merchant must notify Australia Post immediately upon becoming aware of any:

i. unauthorised use of the Platform by any person;

ii. infringement of the Licensed IP; and/or

iii. breach of this Agreement by the Merchant, its Personnel or its Consumers,

and at, or as soon as possible after, the notification, provide Australia Post with reasonable details of the unauthorised used, infringement and/or breach.

d) (authority of authorised representative) The Merchant represents and warrants that the person who accepts the terms of this Agreement has the right, title and authority to enter into this Agreement for, or as agent for the Merchant, and binds the Merchant to this Agreement without the need for further approval.

5. Merchant responsibilities and restrictions for Return

a) The Platform may only be used by the Merchant for Return parcels where it has (and is not in breach of) a current Parcel Agreement. When using the Return service, the Merchant agrees to comply with any reasonable operational requirements or delivery service conditions related to the delivery services, as notified to the Merchant from time to time.

b) The Return platform can be used to access:

i. Merchant Paid Returns which are free to the Consumer and charged to the Merchant at the rate specified in their Parcels Agreement

ii. Consumer Paid Returns which are free to the Merchant and charged to the Consumer at the rates specified in the Platform. This rate is determined by Australia Post and may be varied from time to time without reference to the Merchant.

In requesting Australia Post provide the Consumer Paid Returns service, Consumers will be required to accept and comply with the standard terms and conditions of Service and any contract for carriage is between Australia Post and the Consumer.

6. Services

a) Where bespoke configuration is required to be undertaken in order to access or obtain additional functionality for the Platform, the Merchant and Australia Post will agree in a separate agreement the terms upon which that work will be undertaken.

b) Subject to the agreement for and completion of any Set-Up Services, Australia Post will provide the Collect & Return Services to the Merchant from the date of completion of the Set-Up Services on a non-exclusive basis.

c) Australia Post makes no representation or warranty about the number of Retail Partners or Retail Partner Locations that will be available during the Term, or the suitability of those locations for the Collect & Return Services or convenience of those locations for Consumers.

d) The Merchant accepts that there may be limitations and variations that apply to specific locations within the Retail Partner network, including limitations and variations as to the size of parcels that can be accepted and the hours that some locations can be accessed for Collect or Return parcels.

e) Australia Post may, at its sole discretion, add, suspend or remove a Retail Partner or Retail Partner Location from the network of Collect and Return locations.

f) The Merchant must notify Consumers of the process for returns through the Collect & Return Service, including by providing Consumers with a link to the Australia Post Returns Portal.

7. Service Variations

a) (Limitations on service) The Merchant acknowledges that where it has negotiated a Parcel Agreement with bespoke, non-standard arrangements, there may be variations between the delivery services that Australia Post provides when delivering to a Retail Partner Location compared with delivery to a Consumer’s address.

b) (Signature on Delivery) Where Australia Post delivers to a Retail Partner Location, it may not collect a signature of the person collecting the parcel. The Merchant agrees, notwithstanding any other provision in the Parcel Agreement, that a delivery scan and the name of the person who collected the parcel will be sufficient to comply with any signature on delivery requirement previously accepted by the Merchant.

8. Intellectual property rights

a) The Merchant acknowledges that it does not have, and will not claim that it has, any right, title, interest or intellectual property rights in or to the Licensed IP (including any updates, enhancements and modifications to that Licensed IP), except as expressly provided under this Agreement.

b) The Licensed IP provided by Australia Post either electronically or in hardcopy are the intellectual property of Australia Post or are licensed to Australia Post, and are protected under applicable intellectual property laws. The information and images presented or received via the Platform may not be reproduced, republished, adopted, used or modified under any circumstances and must not be used in any way that implies endorsement or sponsorship by Australia Post of the Merchant or any of the Merchant's products, goods or services.

c) The Merchant grants Australia Post a non-exclusive, non-transferable, royalty-free and irrevocable licence (with the right to sub-licence) during the Term to access, use, copy and store the Merchant Data as required in order for Australia Post (and its subcontractors) to provide the Collect & Return Services and facilitate the performance of Australia Post's obligations under this Agreement.

9. Disclaimer of warranties

To the extent permitted by law, the Licensed IP, is provided "as is" and without warranties of any kind either express or implied. Australia Post does not warrant that the functions contained in the Platform will meet the Merchant's requirements, be fit for the Merchant's purpose, or that the operation of the Platform will be uninterrupted or free from errors or viruses.

10. Limitation of liability and indemnity

a) To the maximum extent permitted by law, Australia Post will not be liable to the Merchant, the Consumer, or to any other person (whether in contract, tort or otherwise) for any loss or damage suffered, or that may be suffered as a result of any act or omission, whether negligent or otherwise, by or on behalf of Australia Post (including, without limitation, direct, indirect, special, consequential damages or any other pecuniary loss) that result from the use or inability to use the Platform or the Collect & Return Services.

b) If any statute implies terms into this Agreement that cannot lawfully be excluded, the liability of Australia Post to the Merchant, for a breach of any such implied term is to:

i. the resupply of the services; or

ii. the payment of the cost of resupplying the services.

c) The Merchant shall be liable to, and shall indemnify, Australia Post for or against any loss claim or damage which Australia Post suffers or incurs as a result of any action, proceeding, claim, liability or demand (including by a third party) which arises out of the Merchant’s act, omission negligence, breach of this Agreement or mis-statement of fact (intentional or otherwise). The liabilities imposed by this sub-clause continue and survive notwithstanding any termination of this Agreement.

d) Australia Post shall not be in default under the terms of this Agreement nor liable for failure to observe or perform in accordance with any provision of this Agreement for any reason or cause which could not with reasonable diligence be controlled or prevented by it, including without limitation, war, insurrection, riot, civil commotion, strikes, lock-outs, labour or industrial disputes, acts of God, acts of Governments or flood, storm, tempest, power shortages or power failure, system outages or interruptions, inability to obtain sufficient labour, raw materials, fuel or utilities. During the period of an incident or incidents of "Force Majeure" this Agreement may be suspended, or the availability of Collect & Return services to or from particular locations impacted.

e) All the rights, immunities and limitations of liability in this Agreement shall continue to have their full force and effect in all circumstances notwithstanding any breach of contract or of any conditions hereof by Australia Post.

11. Term, termination and suspension

a) This Agreement is effective until:

i. expiry or termination of the Parcel Agreement; or

ii. terminated by either party in accordance with this clause ("Term").

b) Where it believes it is reasonable to do so, Australia Post may suspend this Agreement upon giving reasonable notice to the Merchant, save that any incomplete delivery instructions which exist at the time of any such suspension must be completed and effected in full irrespective of any such suspension. Australia Post will notify the Merchant of any suspension under this clause and any suspension will not place Australia Post in breach of its obligations under this Agreement.

c) Australia Post may terminate this Agreement:

i. by giving the Merchant 30 days’ written notice;

ii. upon reasonable notice if Australia Post no longer has the right to grant licences to the Platform; or

iii. immediately upon notice in writing if the Merchant breaches the Agreement and that breach is incapable of remedy or has not been remedied within 20 Business Days of being given notice in writing to do so.

d) The Merchant may suspend or terminate its participation using the Platform, at any time, save that any incomplete delivery instructions which exist at the time of any such termination or suspension must be completed and effected in full irrespective of any such termination.

e) Upon termination of this Agreement, the Merchant shall immediately cease to use the Platform, all associated documentation and trademarks/logos and shall destroy all copies thereof in the control or possession of the Merchant.

12. Consideration

Australia Post grants the licence under this Agreement in consideration for the Merchant complying with its obligations under this Agreement.

13. Variation

Australia Post may vary these terms and conditions by giving the Merchant reasonable notice in writing of any proposed changes. Any use of the Platform by the Merchant after any variation to the terms and conditions becomes effective, and will be deemed to constitute acceptance of the variations thereto, and any service supplied will be supplied on the terms and conditions as varied. If the Merchant does not accept any variation to the terms and conditions, the Merchant may terminate this Agreement and cease using the Platform.

14. Notices

a) Notices under this Agreement may be delivered by prepaid postage or email to the Merchant representative specified in the Parcel Agreement, or to Australia Post at collectandreturn@auspost.com.au

b) Notice will be deemed given:

i. in the case of prepaid postage three days after deposit in the mail; or

ii. in the case of email, either when the sender receives an automated message confirming delivery, or four hours after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered- whichever happens first.

c) If notices are received after 5.00pm in the place of receipt or on a non-business day, they are deemed to be received the next business day.

15. Assignment and novation

d) Notwithstanding any other provision in these terms and conditions, Australia Post may assign, transfer, novate, or otherwise deal in any manner with all or any of its benefits, rights, remedies, duties and obligations under this Agreement to any person without the consent of the Merchant.

e) The Merchant may not assign, whether in whole or part, the benefit of this Agreement or any rights or obligations hereunder, without the prior written consent of Australia Post.

16. Severance

Parts or all of any provision of the Agreement that are unenforceable, void or illegal may be severed from the Agreement and the remaining provisions of the Agreement continue in force.

17. Governing law

This Agreement is governed by, and will be construed in accordance with the laws of Victoria, and the courts of Victoria shall have jurisdiction in the event of a dispute.