Australia SOR Sales & Delivery Agreement

Background

A.   Passport carries on the business of a global shipping solutions provider and buying and selling goods, and the Merchant carries on the business of selling goods.

B.   Under Australia’s Offshore supplies of low-value goods GST rules, certain GST obligations are now imposed on Merchants in connection with sales of goods located outside of Australia, to be delivered to consumers in Australia, where the customs value of the consignment containing such goods is valued at AUD 1,000 or less.

C.   The Merchant wishes to engage Passport to, in relation to Qualifying Customer Orders:

  •   sell and deliver relevant Products to Customers; and
  •   account for any GST that may be due on the sale of relevant Products to the Customers. For the avoidance of doubt, any orders for Products placed by Customers which do not fall within the meaning of a Qualifying Customer Order are outside the scope of this Agreement. For example, a sale of goods with a customs value exceeding AUD 1,000, located in USA to be delivered in a single consignment to a customer in Australia is excluded.

D.   NOW, THEREFORE, Passport and the Merchant wish to enter into this Agreement on the following Agreed Terms:

Agreed Terms

1. Commencement

1.1   The Parties hereby agree that this Agreement shall be effective from the date it is executed by the Parties. The Parties may agree to vary or add terms to this Agreement by way of a variation signed by both parties or an addendum as appropriate. This Agreement, together with the variation agreement or an addendum agreement shall constitute the complete and entire agreement between the parties regarding the Services.

2. Purchase and Supply of Products
2.1   Where a Customer makes a Qualifying Customer Order:

(a)   the Merchant shall provide to Passport, all documentation and make available all relevant information relating to the Products of a Qualifying Customer Order including anything that Passport reasonably requests to comply with any obligation relating to the sale and delivery (including customs clearance), and the Merchant warrants that all statements, documentation and information provided to Passport for this purpose are, and continue to be true, correct and complete;

(b)   the Merchant shall cause the Customer to be aware in its terms and conditions or contract or otherwise, that the Products contained in the Qualifying Customer Order shall be sold to the Customer by Passport;

(c)   the Merchant shall sell Products contained in the Qualifying Customer Order to Passport at the GST-exclusive Products Prices (that is, for an amount equal to 10/11ths of the total amount paid by the Customer for the Product, including any fees and charges for the Product), and Passport shall purchase from the Merchant, such Products contained in the Qualifying Customer Order at the prices stated therein so that Passport shall have the right to dispose of those Products as owner at the time of the sale to the Customer;

(d)   Passport shall issue to the Customer a receipt in respect of the Products sold to the Customer by Passport with identical information relating to the Products described in the Qualifying Customer Order; and

(e)   the Merchant shall make available the Products contained in the Qualifying Customer Order to:

  •   Passport
  •   Passport’s nominated agents and contractors; or
  •   a third party authorized by Passport, to complete delivery.

2.2   Payment received by the Merchant in relation to the sale of Products the subject of a Qualifying Customer Order in clause 2.1 is deemed to discharge all of Passport’s liability in respect of the amounts due to the Merchant for the purchase of the Products by Passport at the time such payment is first processed. For the avoidance of doubt, if the transaction for payment is cancelled, reversed or found fraudulent, or for any other reason the Customer does not pay in full, Passport shall have no liability to the Merchant whatsoever.

2.3   After the Merchant’s notification of receipt of payment for the Products from the Customer (including payment of the GST applicable to the Products), then either:

(a)   Passport shall arrange for the delivery of the Products to the Customer by means of its nominated agents and contractors, pursuant to clause 9 (Delivery, Returns and Customs Clearance) to this Agreement; or

(b)   Passport authorizes Merchant to arrange for delivery of the Products in the Qualifying Customer Order to the Customer on Passport’s behalf. In the latter case, the Merchant will ensure that all GST and customs obligations are complied with in respect of the delivery and importation of the Products.

2.4   If the Product Price for the Product is charged to the customer in a currency other than Australian Dollars, Passport will calculate the GST payable on the sale of the Product in Australian Dollars in accordance with the relevant GST rules (in its absolute discretion). The amount payable by Passport to the Merchant for the sale of the Product will be the GST-exclusive price of the Product with the GST calculated in accordance with this clause.

3. Qualifying Customer Orders

3.1   The Merchant shall assign an order number (Order Number) to each Qualifying Customer Order and shall notify those Order Numbers to Passport or its nominated agents and contractors. Each Party shall use the relevant Order Number in all subsequent correspondence relating to that Qualifying Customer Order.

3.2   If a Customer purports to amend or cancel a Qualifying Customer Order, the Merchant shall immediately notify Passport. Merchant shall not process any amendment or cancellation of a Qualifying Customer Order on behalf of Passport, unless and until it has obtained Passport’s written confirmation that Passport has not yet commenced the process of delivering the Qualifying Customer Order pursuant to clause 9 (if applicable). Where such written confirmation has been provided by Passport, Merchant may process the cancellation or amendment on behalf of Passport and shall refund payment to the Customer on behalf of Passport at Passport’s direction hereby given.

3.3   Where the Merchant agrees to a full or partial refund of payment in respect of a Qualifying Customer Order (that has already been delivered by Merchant under clause 2.3 or Passport under clause 9), Merchant may refund payment to the Customer on behalf of Passport at Passport’s direction hereby given.

3.4   The Qualifying Customer Order is subject to Schedule 1 (Terms and Conditions) to this Agreement being clearly made available to the Customer prior to it placing an Order.

3.5   Merchant acknowledges and agrees that Schedule 1 (Terms and Conditions) to this Agreement applies solely in respect of Qualifying Customer Orders.

3.6   In the event of any conflict or inconsistency between this Sales & Delivery Agreement and the Passport Terms & Conditions, the Terms & Conditions shall prevail.

4. Merchant’s Obligations

4.1   Merchant must provide any customer service reasonably required in connection with Qualifying Customer Orders. Merchant must take all steps necessary to discharge Passport’s obligations under the Australian Consumer Law in connection with the supply of the Products to Australian consumers, including (without limitation) its obligations to comply with the consumer guarantees under Part 3-2 of the Australian Consumer Law, remedy any failure to comply with such a guarantee, give a proof of transaction as required by Part 3-2 of the Australian Consumer Law and comply with any compulsory recall of consumer goods under Part 3-3 of the Australian Consumer Law applicable to any Products supplied under Qualifying Customer Orders.

4.2   Passport, as seller of the Products to the Customer included in a Qualifying Customer Order, appoints the Merchant to act as its agent in connection with customer service. Merchant must comply with the Australian Consumer Law and other Applicable Laws. Passport remains responsible for all of its obligations under the Australian Consumer Law and other Applicable Laws with respect to the sale of the Products, otherwise Merchant retains the responsibility, risk and liability for any warranty, returns, exchanges, refunds or Customer service obligations with respect to the Products.

4.3   Where the Merchant agrees to the amendment or cancellation of a Qualifying Customer Order under clause 3.2 or a full or partial refund of payment in respect of a Qualifying Customer Order under clause 3.3, Merchant must notify Passport within five (5) business days and seek to obtain any refund of GST from the Australian Taxation Office (ATO). The Merchant shall only receive a refund of the amount referred to in clause 10.1(b), once Passport has been notified in accordance with this clause 4.3 and the Customer has received either a full or partial refund or received a credit note (each in accordance with clauses 3.2 and 3.3 (as applicable)) and Passport has received a credit or repayment of the GST from the ATO. Where in respect of a Qualifying Customer Order, that order has been delivered by Passport under clause 9.1 or additional transportation performed by Passport under clause 9.1, Merchant shall not be entitled to a refund of the amount referred to in clauses 10.1(a), 10.1(c) or 10.1(d).

4.4   The Merchant agrees to cause the Customer to be aware that Passport is the owner, and has the right to dispose of the Products included in a Qualifying Customer Order, as the owner, at or before the point of sale to Customer. In order to fulfil this obligation, the Merchant shall: 

(a)   incorporate a hyperlink to the Schedule 1 (Terms and Conditions) to this Agreement in the Merchant’s terms and conditions, and generally make known as appropriate Passport’s status as the seller of such Products:

  •   on the Merchant’s website on its FAQ page;
  •   in the order confirmation footer;
  •   in any other relevant section of the Merchant’s website;
  •   in any other place considered appropriate on Passport’s reasonable request; and 

(b)   promptly provide any reasonable assistance (including the provision of documents or information) in relation to any Qualifying Customer Order. The Merchant warrants that Schedule 1 (Terms and Conditions) will form part of the terms and conditions on which the Product is sold to the Customer.

5. Promotion, Quality and Packing

5.1   The Merchant shall comply with all Applicable Laws, in particular the Australian Consumer Law and other enactments, orders, regulations and instruments relating to the promotion and advertisement, packing, packaging, marking, labelling storage, handling, and delivery of the Products to the Customer. Without limitation to the foregoing, the Merchant must ensure the Products it supplies in connection with Qualifying Customer Orders comply with the consumer guarantees under Part 3-2 of the Australian Consumer Law, any safety standards applicable to goods of that kind that are in force under Part 3-3 of the Australian Consumer Law and any information standards applicable to goods of that kind that are applicable under Part 3-4 of the Australian Consumer Law, and must not supply any Products of a kind to which any ban in force under Part 3-3 is applicable. Any supplier of goods to Australian consumers must comply with packaging and labelling requirements applicable under the ACL in respect of those goods. In relation to the labelling requirements, it may be that Passport can provide some quality control or assistance. In any event, as noted above, the risks arising from non-compliance with the ACL may be, at least partially, mitigated by ensuring that merchants have user-friendly and accessible customer service and returns policies.

5.2   The Merchant shall comply with all Applicable Laws, in particular the Australian Consumer Law and other enactments, orders, regulations and instruments relating to the promotion and advertisement, packing, packaging, marking, labelling storage, handling, and delivery of the Products to the Customer.

6. Title, Ownership and Risk

6.1   Risk in Products shall remain with the Merchant until delivery to the Customer. No risk in any Products shall be assumed by Passport at any time.

6.2   In respect of a Qualifying Customer Order, upon the Merchant receiving payment by the Customer pursuant to clause 2.2, title and ownership of the relevant Product(s) shall pass from the Merchant to Passport and immediately afterward from Passport to Customer. Where the title in the Product has already passed to the Customer and the sale of the Product is cancelled, the sale of the Product by Passport to the Customer will be cancelled and the sale of the Product by the Merchant to Passport will be cancelled. Where a Product is returned by a Customer, title in the Product for return shall pass from the Customer to Passport and then to the Merchant.

7. Compliance with Laws and Policies

7.1   In performing its obligations under the Agreement, the Merchant shall comply with all Applicable Laws, including the Australian Consumer Law.

7.2   Each party shall, at all times, act consistently in its dealings with any tax authority and in its financial returns and tax returns that ownership of the Products in respect of a Qualifying Customer Order is sold by the Merchant to Passport and by Passport to the Customer.

8. Insurance and Indemnity

8.1   The Merchant shall indemnify Passport and hold Passport harmless against all liabilities, costs, expenses, duties, Taxes, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all and other professional costs and expenses) suffered or incurred by Passport: 

(a)   arising out of or in connection with Passport fulfilling any of its obligations under this Agreement;

(b)   arising from a breach by Merchant of its obligations under this Agreement; and 

(c)   arising from any claim made against Passport for actual or alleged infringement of a third party’s rights arising out of or in connection with the supply of the Products to Customers, or in any fault whatsoever in the Products, or with delivery, including the Australian Consumer Law.

8.2   The Merchant shall indemnify Passport for any loss incurred by Passport (including any reasonable costs incurred to respond to ATO queries) as a result of: (i) the Merchant historically failing to register for GST and remit GST on supplies made by the Merchant to Australian customers; and (ii) the Merchant otherwise failing to register and remit GST on supplies made to Australian customers that are outside of the scope of this Agreement.

9. Delivery, Returns and Customs Clearance

9.1   Passport and its nominated agents and contractors shall where appropriate and to the extent agreed, deliver any Product to the shipping address provided, and any further transportation including but not limited to returns (provided that the Merchant reimburses Passport for costs incurred by Passport in connection with such further transportation).

9.2   Passport may refuse service, refuse to process or complete Orders, remove or edit content, or cancel such orders for any reason or for no reason, in its sole discretion, subject to the Applicable Laws.

9.3   Delays in the delivery shall not entitle the Merchant or the Customer to claim damages against Passport or its nominated agents and contractors, other than in accordance with Passport’s non-excludable obligations under the Australian Consumer Law, and Merchant shall indemnify Passport therefor.

9.4   Passport and its nominated agents and contractors shall have no liability for any failure or delay in delivering any order except as provided by Passport’s non-excludable obligations under the Australian Consumer Law, including those cases where any failure or delay is caused by the Merchant’s failure to comply with its obligations under this Agreement.

9.5   Delivery of an Order shall be deemed to have completed when Passport’s nominated agents and contractors place such Order at the Customer’s disposal at the shipping address.

9.6   Passport’s nominated agents and contractors have the right to open and inspect any consignment without notice for safety, security, customs, tax or other regulatory reasons.

9.7   Merchant shall authorize, and procure that the Customer authorizes Passport and its nominated agents and contractors to perform any of the following activities as agent of the Customer to the extent agreed by Passport:

(a)   to make and file customs declarations and all related actions as a direct representative, in the name of, and on behalf of, and at the risk of the Customer which expressly includes completing any documents, amending product or Harmonised System codes, and paying any duties, taxes or penalties required under Applicable Laws and regulations;

(b)   to act as forwarding agent for customs import and export control purposes solely for the purpose of designating a customs broker to perform customs clearance and entry; and 

(c)   redirect an order to the Customer’s customs broker or other address upon request by any person whom Passport’s nominated agents and contractors believe in its reasonable opinion to be authorized. The Merchant agrees and procures that the Customer agrees that the Customer is the importer of the Products into Australia for customs purposes.

9.8   If Passport or its nominated agents are of the reasonable opinion that Products can only be cleared through customs by the Customer, Passport will deliver the customs paperwork to the Customer, and delivery of paperwork constitutes timely delivery.

9.9   Merchant agrees to comply with reasonable conditions on the delivery of specified Products to particular countries (Restricted Country Conditions) as notified by Passport to Merchant from time to time. Merchant agrees to make all reasonable endeavours to notify Customers of Restricted Country Conditions including:

(a)   on the Merchant’s website on its FAQ page;

(b)   in the order confirmation footer;

(c)   in any other relevant section of the Merchant’s website; and

(d)   in any other place considered appropriate on Passport’s reasonable request.

10. Fees and GST

10.1   Fees payable by Merchant to Passport for Passport’s services under this agreement to Merchant shall include:

(a)   a Delivery Fee; 

(b)   an amount equal to the GST payable by Passport on the sale of the Products in the Qualifying Customer Order by Passport to Customer (as calculated in accordance with clauses 2.1(c) and 2.4); and

(c)   a sum equal to 5% of the amount referred to in clause 10.1(b); and

(d)   reimbursement for costs incurred while conducting additional transportation pursuant to clause 9.1.

10.2   Passport shall provide the Merchant with a fortnightly statement of fees payable under this Agreement, which shall be payable on presentation.

10.3   Interest shall accrue at a rate of 5% per annum on any unpaid fees after one (1) month of the statement being issued.

10.4   Terms used in clauses 10.4 to 10.7 that are not otherwise defined in this agreement have the meanings given to them in the GST Act.

10.5   The parties acknowledge that the sale of Products by the Merchant to Passport should not be subject to GST (on the basis that Passport is registered for GST). Despite this, the Product Prices and other amounts payable by Passport to the Merchant for Products sold by the Merchant to Passport are GST-inclusive and the Merchant is not entitled to recover any amount on account of GST from Passport.

10.6   All consideration provided to Passport under this agreement is exclusive of GST unless it is specifically expressed to be GST inclusive. If Passport makes a taxable supply to Merchant under or in connection with this agreement, Merchant must pay Passport an additional amount (GST Amount) equal to the GST payable on the supply (unless the consideration for the taxable supply is specifically expressed to be GST inclusive). The GST Amount must be paid by Merchant at the same time as any consideration for the taxable supply is first paid or provided or later on demand if not paid at that time.

10.7   If the GST payable in relation to a supply is less than the GST Amount Merchant has paid Passport under clause 10.6, Passport is only obligated to pay a refund of GST to Merchant to the extent Passport receives a refund of that GST from the Commissioner.

11. Force Majeure Event

11.1   If a party is wholly or partially unable to perform an obligation (other than an obligation to pay) under this Agreement because of a Force Majeure Event (Affected Party), then:

11.2   immediately after the Force Majeure Event arises, the Affected Party must Notify the other party of the extent to which the Affected Party is unable to perform its obligations;

11.3   the Affected Party must use its best endeavours to mitigate the effect of the Force Majeure Event; and

11.4   provided that the Affected Party complies with the above paragraphs, it will be excused from performing the obligations it is prevented from performing by the Force Majeure Event, until such time as the Force Majeure Event ceases preventing that performance.

11.5   If a delay arising directly out of a Force Majeure Event continues or is reasonably likely to continue for more than 15 days, then either party may terminate this Agreement immediately, by written notice to the other party.

12. Termination

12.1   Passport may refuse service, refuse to process or complete Qualifying Customer Orders, remove or edit content, or cancel such Orders for any reason or for no reason, in its sole discretion, subject to Applicable Laws.

12.2   Either party may terminate this Agreement at any time by providing 60 days written notice to the other party.

13. Governing Law and Jurisdiction

13.1   Each Party irrevocably agrees to this Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of California, United States.

14. Definitions

14.1   In this Agreement, unless the context otherwise requires, the following words and expressions have the following meanings: 

Applicable Law means any law of Australia which apply to the arrangements contemplated by this Agreement and includes the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010.

Customer means a customer of the Merchant who orders goods from the Merchant. 

Delivery Fee means the fee chargeable by Passport to the Merchant to deliver Products to Customers (as amended from time to time).

Force Majeure Event means any:

(a)   fire, flood, earthquake, pandemic, epidemic or act of God; 

(b)   riot, civil disorder, rebellion or revolution; or

(c)   other similar cause beyond the reasonable control of the non-performing party,

but in each case only if and to the extent that the non-performing party is without fault in causing the event, and the event, or its effect could not have been prevented by reasonable precautions including:

  •   invoking any relevant disaster recovery plan;
  •   appropriate workload management practices; and
  •   any other prudent back-up or recovery procedures.

GST has the meaning given to that term in the GST Act. 

GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth). 

Personal Information has the meaning given to it in the Privacy Act 1988 (Cth). 

Products means those goods offered for sale via the Merchant’s website which are not prohibited or restricted goods were they to be imported into Australia, and which are not subject to any restrictions on export, sale, or transfer in violation of any Applicable Laws.

Product Prices means the prices including GST of the Products as held out for sale to Customer by the Merchant and accordingly, by Passport to Customer and for the avoidance of doubt includes any delivery and other fees and any charges charged to the Customer; and Product Price means the price of an individual Product. 

Qualifying Customer Order meets all of the following conditions:

(a)   it is an order for Product or Products placed via the Merchant’s website which are to be transported from a third country or territory to an address in Australia; 

(b)   assuming the Product would be a Qualifying Customer Order (and hence would be sold by the Merchant to Passport to the Customer), the sale of the Product would be a taxable supply (as defined in the GST Act) by Passport to the Customer on which Passport has the GST liability thereon; and 

(c)   for the avoidance of doubt, Qualifying Customer Orders are intended to be orders that include offshore supplies of low-value goods where the recipient of the supply is a consumer and that are not made through an electronic distribution platform (as defined in the GST Act).

Tax or Taxes means any kind of tax, duty, impost, charge, withholding, rate, levy or other governmental imposition of whatever nature and by whatever authority imposed, assessed or charged, whether of Australia or elsewhere, together with any cost, charge, interest, penalty, fine, expense or other additional statutory charge incidental or related to the imposition. This includes, but is not limited to GST, value-added taxes, customs and other import or export duties, excise duties, sales taxes, stamp duties or other similar contributions.