1. Definitions
1.1. “Agent” means xsstock.
1.2. “Agreed purchase price” means the price that the Seller advertises the goods for sale at on the Site and is inclusive of GST.
1.3. “Buyer” means an individual who is purchasing a product from a Seller
through the Agent.
1.4. “Commission” means 25% of the purchase price.
1.5. “Goods” means products sold via the Site.
1.6. “Registered User” means a person who has completed the registration form and been approved by the Agent to buy and/or sell Goods on the Site.
1.7. “Sale Duration” means the period of time Goods are advertised for sale on the Site.
1.8. “Seller” means an individual who is selling a product to a Buyer and who has appointed the Agent to act on their behalf.
1.9. “Site” means www.xsstock.com.au.
1.10. “Stakeholder” means the Agent.
1.11. “Stakeholder Account” means an account maintained by the Agent
solely for the purpose of receiving money from Buyers for the purchase of
goods via the Site.
1.12. “Advertiser” means an individual who is selling a product to a Buyer and who has not appointed the Agent to act on their behalf
2. Recitals
2.1. The Agent operates the Site and acts on an agency basis for Sellers for
specific sales.
2.2. A Seller engages the Agent to sell specific goods through the Site in
accordance with these terms and conditions.
2.3. The Agent is paid a commission for the sale of goods through the Site.
2.4. The Agent operates a Stakeholder Account for the holding of the agreed
purchase until the Seller notifies the Agent that the Goods have been collected or shipped.
2.5. The Site is exclusively for use in Australia by Australian Buyers and
Australian Sellers.
2.6. Foreign Buyers and Sellers are excluded from the use of the Site to buy or sell Goods.
2.7 The Advertiser sells goods direct to the agents clients
3. General Terms and Conditions
3.1. Statutory warranties that are implied under Division 2 Part V Trade Practices Act are not excluded if goods are of a kind ordinarily acquired for personal, domestic or household use.
3.2. The Agent will operate a separate account, the Stakeholder Account, for the receipt of money from Buyers and will hold the full purchase price on trust for the Buyer until the Seller confirms that the goods have been collected or shipped.
3.3. A Buyer will only contact a Seller, in relation to the sale of Goods through the Site, through the Agent.
3.4. On the payment of the purchase price for Goods to the Agent the risk and title passes from the Seller to the Buyer.
3.5. The purchase price is inclusive of GST.
3.6. These terms and conditions may be amended by the Agent and notice of the changes will be posted prominently on the Site no less than 2 weeks prior to the commencement of the amendments unless the changes are urgent or
required by legislation in which case the amendments will be effective
immediately.
3.7. A Buyer will only contact an Advertiser directly, in relation to the sale of Goods through the Site.
3.8. Notices required to be given to the Agent must be give in writing by email to scott@xsstock.com.au or by post to PO Box 39 Camp Hill 4152 Qld.
3.9 The advertisers advertising agreement will renew itself on a month by month basis on the Xsstock web site from each anniversary renewal date unless the advertiser gives (60) days notice, in writing, received in advance of the renewal date. Notices can either be sent via email to scott@xsstock.com.au or post to Po Box 39 Camp Hill 4152 Qld.
4. Governing Law and Jurisdiction
4.1. The operation of these terms and conditions is governed by the laws currently in force in the State of Queensland, Australia and the Buyers, Sellers and Agent consent to the jurisdiction of the Courts of the State of Queensland, Australia and the Federal Court of Australia.
5. Registration
5.1. Only Registered Users may use the Site to sell or purchase Goods.
5.2. Buyers, Advertisers and Sellers must be operating in Australia.
5.3. Registered Users must agree to abide by and be bound by these terms and conditions as amended.
5.4. Buyers must be registered with the Site and must complete the registration form as provided by the Agent.
5.5. The Buyer must ensure that their details are correct and must update the Agent of any changes to address or particulars.
5.6. Sellers and Advertisers must be registered with the Site and must complete the registration form as provided by the Agent.
5.7. Seller and Advertisers must ensure that their details are correct and must update the Agent of any changes to address or particulars.
6. Security and Authentication
6.1. The Agent will provide Buyers, Sellers and Advertisers with unique usernames and will provide initial passwords.
6.2. Buyers, Sellers and Advertisers must change their password immediately upon first use of the Site.
6.3. Buyers, Sellers and Advertisers must ensure that their username and password are kept confidential and not disclosed to any unauthorised entity.
6.4. The Agent will ensure that a secure payment system is established.
6.5. The Agent will use its best endeavours to ensure that the Site is secure and that Buyers, Sellers and Advertisers details are kept confidential except where disclosure is authorised or required by law.
6.6. If the Agent suspects that a Registered User is misusing the Site or
committing unlawful acts through usage of the Site the Agent may, in its
absolute discretion, terminate a Registered Users username and prevent
access to the Site.
6.7. If the Agent terminates a Registered Users username and prevents access to the Site the Agent must provide, on written request from the Registered User, a statement explaining the reason for terminating the Registered User’s username and access to the Site.
7. Specific Terms and Conditions
7.1. Buyers
7.1.1. Obligations to Seller
7.1.1.1. The Buyer will pay the agreed purchase price of the Goods.
7.1.1.2. The Buyer will pay the freight cost of the Goods.
7.1.1.3. The Buyer will be responsible for the collection or transport of the
Goods.
7.1.1.4. The Buyer must collect or arrange for Goods to be collected within
1 week of the sale.
7.1.1.5. If the Buyer does not collect the Goods within 1 week of the sale
the Buyer may be required to pay the reasonable storage costs for
the storage of the Goods.
7.1.1.6. In the event that a Buyer has not collected their Goods within 4
weeks, or refuses to pay the reasonable storage costs for the storage
of the Goods the Seller shall be entitled at the expiry of those 4
weeks to retake possession of the Goods.
7.1.1.7. The Buyer agrees that in the event that Goods are not collected
within 4 weeks that the title and risk for the goods is transferred to
the Seller on the consideration of the Seller’s reasonable storage
cost.
7.1.2. Obligations to Agent
7.1.2.1.The Buyer authorises the Agent to transfer the agreed purchase
price minus the Commission to the Seller on notification by the
Seller that the Goods have been shipped or collected.
7.1.2.2. The Buyer authorises the Agent to transfer the Agent’s
Commission to the Agent on notification by the Seller that the
Goods have been shipped or collected.
7.1.2.3. The Buyer will not hold the Agent liable for the failure of the
Seller to deliver Goods.
7.1.2.4. The Buyer will not join the Agent in legal proceedings that have
resulted from the actions of a Seller and will indemnify the Agent
for its legal costs on an indemnity basis if the Agent is required to
respond to legal proceedings or the threat of legal proceedings.
7.1.2.5. The Buyer will notify the Agent of any claims that it makes against
the Seller in respect of a sale of Goods through the Site.
7.1.2.6. The Buyer will not enter a private arrangement with a Seller to
avoid payment of the Agent’s Commission.
7.1.2.7. The Buyer will notify the Agent if a Seller contacts them directly to
arrange a sale outside of the Site.
7.1.3. Seller and Advertiser
7.1.3.1.Obligations to Buyer
7.1.3.1.1. The Seller warrants that it has unencumbered title to sell the
Goods to the Buyer
7.1.3.1.2. The Seller and Advertiser warrants that the Goods have not been used.
7.1.3.1.3. The Seller and Advertiser will release the Goods as described on the Site to
the Buyer in exchange for an authorisation to the Agent to
account for the agreed purchase price to the Seller.
7.1.3.1.4. The Seller and Advertiser will provide a full description of the Goods
(including whether Goods are new, or unused surplus
materials) to the Buyer via the Agent’s Site
7.1.3.1.5. The Seller and Advertiser warrants that it will use its reasonable
endeavours to ensure that Goods are not damaged after sale of the Goods and prior to collection.
7.1.4. Obligations to Agent
7.1.4.1.1. The Seller and Advertiser warrants to the Agent that it has the
unencumbered title to the Goods and indemnifies the Agent for
any loss (including legal costs on an indemnity basis) caused
the Seller not having unencumbered title to the Goods.
7.1.4.1.2. The Seller and Advertiser warrants that the Goods have not been used and indemnifies the Agent (including for legal costs on an
indemnity basis) for any loss caused by any misdescription of
whether the goods are used or unused.
7.1.4.1.3. The Seller and Advertiser will pay the Agent commission on sales obtained either directly or indirectly from the Site.
7.1.4.1.4. If the Seller and Advertiser sells the Goods privately, or not through the Site, during the Sale Duration the Seller will immediately
notify the Agent and will be responsible for stopping the listing on the Site.
7.1.4.1.5. If the Seller and Advertiser sells the Goods privately, or not through the Site, during the Sale Duration the Seller will pay the Agent the
amount equivalent to the Agent’s Commission had the sale
been conducted through the Site.
7.1.4.1.6. The Seller and Advertiser will pay the Agent’s legal costs on an indemnity basis in recovering unpaid Commission on sales by the Seller,
including private sales, made during or within 1 month after
the end of the Sale Duration.
7.1.4.1.7. The Seller and Advertiser will notify the Agent if a Buyer contacts the Seller directly to make an arrangement not through the Site
during the Sale Duration or 1 month thereafter
7.1.4.1.8. The Seller and Advertiser will provide a full description of the goods to the Agent
7.1.4.1.9. The Seller and Advertiser will sell goods exclusively through the Agent for the Sale Duration
7.1.4.1.10. The Seller and Advertiser will notify the Agent in writing when goods are collected or shipped to the Buyer.
7.1.4.1.11. If the Agent returns the purchase price to the Buyer due to
an error or failure of the Seller the Seller will pay to the Agent
an amount equal to the amount of the Commission that would
have been retained by the Agent on notification that the goods
had been collected or shipped.
7.1.4.1.12. An error or failure of the Seller and Advertiser includes any misdescription of the goods and any other failure to deliver, or allow to be
collected, the advertised Goods to the Buyer.
7.2. Agent
7.2.1. Obligations to Buyer
7.2.1.1.The Agent will provide the full description of goods (including
whether goods are new, or unused surplus materials) as obtained
from the Seller and Advertiser, to the Buyer
7.2.1.2.The Agent will hold the full purchase price on trust for the Buyer
in the Stakeholder Account.
7.2.1.3. The Agent will accurately record transactions into and out of the
Stakeholder Account.
7.2.1.4. If the Seller does not deliver the goods and the Seller has not
notified the Agent that the Goods have been collected or shipped,
the Agent will refund the agreed purchase price to the Buyer.
7.2.1.5. If the Seller does not deliver the goods and the Seller has notified
the Agent that the Goods have been collected or shipped, and the
Agent has transferred the Commission and balance purchase price
out of the Stakeholder Account then the Agent will provide a
transaction receipt to the Buyer to enable the Buyer to pursue their
claim against the Seller.
7.2.1.6. The Agent will provide a GST compliant invoice to a Buyer on sale
of the Goods as Agent of the Seller.
7.2.2. Obligations to Seller
7.2.2.1.Upon confirmation from the Seller that goods have been collected
or shipped the Agent will transfer the agreed purchase price minus the Commission to the Seller.
7.2.2.2. The Agent will provide a GST compliant invoice to a Seller for the
Agent’s Commission.
7.2.2.3. The Agent owes a fiduciary duty to the Seller in respect of
transactions carried out through the Site, but such duty is limited to the compliance with these terms and conditions and any relevant statutory obligations.
8. Contracts of sale
8.1. These terms and conditions including warranties by Sellers, Advertisers, Buyers and Agent, and as amended by the Agent, are incorporated into all contracts made through the Site for the sale of Goods.
8.2. A Buyer or Seller or Advertiser may not vary these terms and conditions or exclude their operation from any contract entered into through the Site without the express written consent of the Agent.
8.3. By advertising Goods on the Site a Seller and Advertiser is offering the Goods for sale.
8.4. By accepting and paying the Agent for Goods a Seller and Advertiser is accepting the offer of the Seller to sell the Goods for the consideration of the purchase price.
9. Appointment of Agent
9.1. By advertising Goods on the Site a Seller is appointing the Agent to assist it to sell goods.
9.2. By publishing a Sellers advertisement the Agent is accepting its appointment to assist the Seller in selling goods for the consideration of the payment of Commission upon sale of the goods.
9.3. Title and risk to Goods is transferred upon payment of the agreed purchase price to the Agent.
10. Complaints
10.1. If a Buyer has a complaint about the conduct of a Seller or Advertiser or the Agent they must notify the Agent at scott@xsstock.com.au or PO Box 39 Camp Hill Q 4152
10.2. If a Seller or Advertiser has a complaint about the conduct of a Buyer or the Agent they must notify the Agent at scott@xsstock.com.au or PO Box 39 Camp Hill Q 4152 of the nature of the complaint.
10.3. In the event that a complaint relates to the conduct of the Agent the
Buyer or Seller making the complaint must provide full written details of the
complaint to the Agent at scott@xsstock.com.au or PO Box 39 Camp Hill Q 4152 and must provide full contact details.
10.4. A Buyer, Advertiser or Seller must, before initiating legal proceedings, attempt to resolve any dispute with the Agent by attending a meeting with Agent to discuss and attempt to resolve the dispute. Such a meeting must take place in Brisbane.
11. Severance
11.1. Should any part of these terms and conditions be held to be void or
unlawful these terms and conditions shall be read and enforced as if the void
and unlawful parts had been deleted.
12. Privacy
12.1. The Agent will maintain and observe a privacy policy which will be
available on the Site.
12.2. The Agent’s privacy policy will comply with the National Privacy
Principles as enacted by the Privacy Act 1988.
12.3. The Agent will comply with the Spam Act 2003 as amended.
13. Waiver
13.1. The non-exercise of or delay in exercising any power or right of the
Buyer, Agent, Advertiser or Seller, does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other or further exercise of it, of the exercise of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
