MERCHANT CMS AGREEMENT
TERMS AND CONDITIONS
A. Empire Mall provides the Empire Mall Platform, a content management system and
hosting platform for e-commerce sites, integrated with the payment processor.
B. The Merchant wishes to establish and operate an e-commerce presence on the
Empire Mall Platform to reach a broader potential market of end customers.
C. The parties wish to define their rights and obligations on the following terms.
This agreement begins upon the start date, being the later of:
(a) the start date specified in the schedule; or
(b) the date on which all preconditions have been satisfied,
and continues until terminated under the provisions of this agreement.
(a) In addition to any precondition(s) specified in the schedule:
(i) you must enter into an agreement with a payment processor, as
nominated in the schedule, such that the payment processor will
receipt payments from your end customers in full; and
(ii) you must have or establish an account with a bank or deposit taking
institution approved by us.
(b) The preconditions set out in clause 1.2(a) and the schedule (if any), are a
condition precedent to the performance of the services. The parties agree to
act in good faith and do all things reasonably necessary to satisfy any
(c) If the preconditions remain unsatisfied 30 days from the start date specified
in the schedule, then at any time until all preconditions are satisfied and you
notify us of same, either party may immediately end this agreement by written
notice to the other party.
2. EMPIRE MALL PLATFORM
2.1 Services Generally
For the duration of, and subject to the terms of this agreement:
(a) We will provide the Empire Mall Platform as set out in Appendix A.
(b) Subject to payment of the additional module fees when due, we will enable
the additional modules specified in the schedule for you to incorporate into
the website through the Empire Mall Platform.
(c) We will ensure the Empire Mall Platform integrates with the payment
processor to facilitate transactions.
(d) We will provide you with an administrative account and authentication details
to administer your website through the Empire Mall Platform.
(e) We will host your website and the Empire Mall Platform with a third party
cloud server host.
(f) You are responsible for configuring your domain name to resolve to the
Empire Mall Platform.
(g) We will use reasonable endeavours to rectify any faults in the Empire Mall
Platform for which we are responsible.
(h) We will take reasonable steps to investigate and restore services where
affected by causes beyond our control.
(i) We may modify or update the Empire Mall Platform from time to time to
ensure you receive the best possible results. We will give you reasonable
notice of any changes. Due to the technical nature of the platform, updates
are rolled-out to all merchants at once, and you cannot opt-out of any update.
2.2 Payment Processor
(a) We do not receive or store any credit card information. All credit card
information is processed securely by the payment processor, with whom
you have a separate agreement.
(b) When an end customer places an order on your site, the end customer
must make payment to the payment processor in full, who will receipt the
full transaction amount.
(c) Transaction Fees are payable on all sales transacted through your website,
and all payments for such sales must be processed through the payment
(d) Nothing in this agreement prevents you from marketing and selling your
goods or services through means other than your website, or accepting
payment for such sales in any way you please.
2.3 Privacy Matters
(a) We may use your contact details to promote new services and product offers
to you from us or our affiliates, or to notify you about important changes to the
(b) In the course of processing a transaction, we may receive personal identifying
information of your end customers, including their name, address and other
contact details. You warrant that you have received permission from your end
customers to provide us with such personal identifying information. We will
only use this information as necessary to process the transaction.
2.4 Ad-Hoc Services
We may provide additional services upon request at our current hourly rates. The
same standards, warranties, intellectual property rights and indemnities apply to such
2.5 Service Limitations
(a) We provide you with the CMS, tools, and a selection of standard templates,
but we are not responsible for any website design services under this
agreement. You are responsible for migrating, uploading, updating and
maintaining the content on the website.
(b) We host the website with a third party hosting services provider. We do not
guarantee that the service will be uninterrupted, error free, lag free or fit for
any specific purpose.
(c) You are responsible for listing and promoting the website to any desired
search engine or listing aggregator. We do not provide any search engine
optimisation or listing services under this agreement.
(d) You are responsible for marketing and advertising your business. While you
may receive additional exposure and sales from operating the website, we
cannot guarantee any increase in sales or profit.
(e) We do not provide support services under this agreement, however a range
of general support information, tutorials and FAQs are available on our
website, and through the Empire Mall Platform.
(f) We are not responsible for any defects, delays or interruptions to the services
or equipment caused by the delays, action or inaction of any third parties
such as hardware suppliers or installers, other carriers, internet service
providers, telecommunications companies or service providers or force
2.6 Right to Sub-contract
We may appoint employees or agents to provide all or part of the services; and such
entities are bound by the same obligations as us. It is our responsibility to ensure
such entities comply with this agreement.
3. YOUR OBLIGATIONS
3.1 General Obligations
(a) You must respond in a timely manner if we bring an issue to your attention in
relation to your software, equipment, data or network that affects the
operation of the website, Empire Mall Platform, or any other services we
(b) You must notify us if you make any changes to your software, network or data
which are likely to affect the website, Empire Mall Platform, or any other
service we provide.
(c) You must take reasonable measures to prevent any unauthorised person
from accessing the Empire Mall Platform, the website or any other services
we provide. You are responsible for any damage caused or fees incurred by
any such person.
(d) You must provide reasonable assistance and co-operation during any periods
of scheduled or mission critical maintenance.
(e) You are responsible for providing any goods or services you promise to your
end-customers, through the website or otherwise.
You warrant that:
(a) You have all necessary legal rights and licenses to authorise us to provide
the services, and following your directions will not cause us to contravene any
(b) You own all content uploaded to the website, or are otherwise authorised to
grant the licence in clause 5.1, and following your directions will not cause us
to infringe any third party intellectual property rights;
(c) All content on the website including any user generated content you permit,
complies with all applicable laws, and is not defamatory, infringing upon
intellectual property rights, or in breach of any advertising standards or
consumer protection laws; and
(d) Your usage of the services, and any content on the website, complies with
our acceptable usage policy notified to you from time to time.
(a) You must pay the setup fee and module fees in cleared funds by the start
date. We will issue a tax invoice for the setup fee and any module fees
upon you signing this agreement.
(b) You must pay us the transaction fee for all transactions processed through
the Empire Mall Platform.
(c) You must pay the ad-hoc fees for any additional services requested and
performed, monthly in arrears.
(d) All fees are exclusive of GST. For any supply on which GST is imposed, you
must pay to us an amount equal to the GST with the fees for the service.
(e) If any payment is not honoured by the bank, you must reimburse us for any
dishonour or other bank fees we incur as a result.
4.2 Reversed transactions
(a) If PayPal reverses a transaction conducted on the Empire Mall Platform, then
you will be liable for the transaction fees relating to that transaction.
(b) If a customer seeks to reverse a transaction conducted on the Empire Mall
Platform and you agree, then you will be liable for the transaction fees
relating to that transaction.
(c) If a transaction is conducted on the Empire Mall Platform, and you cannot
fulfil that transaction, for any reason, you are still liable to pay the transaction
4.3 Fee disputes
(a) If you reasonably believe that an invoice contains an error, and you wish to
dispute an invoice, you must:
(i) notify us within 7 days of the date of the invoice in writing;
(ii) pay all undisputed fees on the invoice; and
(iii) provide us with detailed information about any disputed fees.
(b) We will not suspend or terminate the services for non-payment of disputed
fees while the dispute is being investigated. Our records are prima facie
evidence in relation to calculating fees.
4.4 Default in Payment
If you fail to pay any invoice by the due date, and have not given notice under clause
4.3, then without prejudice to our other rights or remedies:
(a) until we have been paid in full for the outstanding amount (including any
accrued interest), we reserve the right to:
(i) immediately suspend the website or Empire Mall Platform;
(ii) charge you for interest on the overdue amount at an annual rate of
15%, accruing and compounding daily from the due date of the
relevant invoice; and
(iii) hold a lien over and retain all content, equipment, materials, data
and work in progress belonging to you; and
(b) you are liable by way of liquidated damages for all amounts payable under
this clause 4, plus our costs of debt collection and enforcement, including
legal fees on a solicitor and own client basis.
5. INTELLECTUAL PROPERTY
5.1 Customer Materials and Third Party IP
(a) You (or where applicable, the third party owner) retain ownership of:
(i) all content you host on the website; and
(ii) the domain name of the website;
and such rights are not assigned or transferred under this agreement.
(b) You grant us a royalty-free licence to use, copy, modify or adapt the content
as reasonably necessary to perform our rights and obligations under this
agreement, including the right to grant sub-licences where reasonably
(c) You warrant that you have full legal right and authority to grant this licence,
and our use or modification of the content does not infringe upon any third
party intellectual property.
5.2 Empire Mall Platform
(a) We own, or are licensed to use, all components of the Empire Mall Platform,
including all templates, and additional modules.
(b) Subject to payment of all applicable fees, for the duration of this agreement
we grant you a licence to use, enjoy, adapt, modify, commercialise and
exploit the Empire Mall Platform to market your products and services to
end customers via the website.
5.3 Publicity Rights
We reserve the right to display or link to the website, including use of your brand
name or trade marks, to promote the Empire Mall Platform and our related services.
5.4 IP Created Under This agreement – Default Provision
Unless otherwise agreed in writing:
(a) all intellectual property rights and materials developed under this agreement
vest in and are owned by us upon creation; and
(b) from acceptance of the services and payment of all applicable fees in full, for
the duration of this agreement, we grant you a non-exclusive world-wide
licence to use, enjoy, modify, manufacture, market, commercialise and exploit
such intellectual property; and
(c) you may sub-licence such intellectual property rights in the ordinary course of
conducting your business operations through the website.
(a) Each party acknowledges that in the course of performing its obligations
under this agreement it may receive confidential information which is
proprietary or confidential to the other party.
(b) Each party agrees not to use or disclose confidential information of the
other party. However, a party may disclose confidential information of the
other party to its officers, employees or contractors bound by the same
confidentiality obligation, and only to the extent necessary for the party to
carry out its obligations under this agreement.
(c) Despite sub-clauses (a) and (b) above, either party may use or disclose
confidential information only to the extent necessary to:
(i) Comply with any law, binding directive of a regulator or a court order;
(ii) Comply with the listing rules of any stock exchange on which its
securities are listed; or
(iii) Obtain professional advice in relation to matters arising under or in
connection with this document where the advisors agree to be bound
by the same obligation of confidentiality.
7. SUSPENSION AND TERMINATION
(a) You may take your website offline (disable public access) at any time through
the administrative panel of the Empire Mall Platform.
(b) We may conduct scheduled or mission critical maintenance of the Empire
Mall Platform during which time the services may be interrupted. We will give
you reasonable notice of such maintenance and take reasonable efforts to
keep any disruption to a minimum.
(c) We may suspend the services at any time and give you a written notice of
(i) you do not make any payment when due, or any payment is
dishonoured or subject to chargeback; or
(ii) we have reason to suspect illegal or unethical activity in relation to
your data or content; or
(iii) in our reasonable opinion your content, data, network, software or
equipment may be causing damage to any person or property,
(d) Suspension of services under this clause does not affect your liability to make
any payment under this agreement.
7.2 Termination for default
We may terminate this agreement immediately by written notice if:
(a) you fail to remedy a material breach despite receiving 7 days written notice of
default from us;
(b) you are guilty of dishonesty, serious misconduct or serious neglect of duty; or
(c) you experience an insolvency event.
7.3 Termination for Convenience
Either party may end this agreement by 30 days notice in writing for any reason.
7.4 Consequences of Termination
Upon termination of this agreement for any reason, in addition to any other rights or
(a) we may immediately disable your access to the Empire Mall Platform and
take your website offline (disable public access);
(b) we may issue an invoice for any fees not previously invoiced;
(c) all fees to date, including fees invoiced under sub-clause (b) above are
immediately due and payable;
(d) your licence to use the Empire Mall Platform under clause 5.2(b)
(e) we retain a lien over and may retain all data, materials and work in progress
belonging to you until all outstanding invoices are paid (including any invoice
issued under this clause);
(f) we may reserve the right to delete or destroy any data that remains in our
possession 60 days from termination; and
(g) a party not in default may pursue any other rights or remedies available at law
against a defaulting party in default subject to clauses 8 and 9.
8. INDEMNITY AND LIMITATION OF LIABILITY
(a) Each party shall release and hold harmless the other party and its
employees, officers, agents, contractors and directors against any and all
losses, costs, expenses and damages, including but not limited to reasonable
legal fees, resulting from its own negligence, or reckless or intentional
(b) You release and indemnify us, our officers, employees and contractors
against any action, proceeding, claim, demand or prosecution arising from or
in connection with:
(i) any acts or omissions of anyone whom you allow to access the
equipment or the services from time to time, whether deliberately or
(ii) any loss or damage to persons or property belonging to us or anyone
else, caused by usage of the services by you or anyone whom you
allowed to access the website or Empire Mall Platform;
(iii) your failure to perform any of your obligations and responsibilities
under this agreement;
(iv) your breach of any law or infringement of any third party rights
including intellectual property rights;
(v) if your instructions to us cause us to be in breach of any law or
infringement of any third party rights including intellectual property
rights, in particular in relation our use, modification or hosting of any
(vi) our reasonable actions in denying anyone access to the website or
Empire Mall Platform for security reasons or non-payment.
(c) To the fullest extent allowable at law, even if we knew or should have known
about the possibility of loss:
(i) All services are provided under this agreement on an ‘as is’ basis and
all warranties that may otherwise be implied by law or statute are
(ii) Our liability under this agreement for any defect in the services is
limited to (at our election) provision of further services at no charge to
rectify any defect, payment of the cost of rectifying any defect, or a
refund of the amount you paid us for those services;
(iii) We are not liable for any loss or potential loss of sales or income from
any outage of the Empire Mall Platform;
(iv) We are not liable for any failure or delay by any third party, including
any payment processor, host, ISP or service provider;
(v) We are not liable for any hardware or software failure, interruption to
services, loss of data or any other similar loss or damage of any kind
that you may suffer, whether directly or indirectly arising in connection
with the website or Empire Mall Platform; and
(vi) We are not liable for indirect, special, economic or consequential loss
or damage or loss of revenue, profits, goodwill, bargain or
opportunities you suffer in any way.
(d) You agree that under no circumstances will our total liability to you under this
agreement exceed an amount equal to the total transaction fees received by
us from you in the preceding three months.
9. DISPUTE RESOLUTION
(a) If a dispute arises between the parties in relation to this agreement, either
party may give the other party a written notice that they intend to arrange
(b) The parties must refer the dispute to an independent mediator within 21 days
of the written notice.
(c) If the parties cannot agree on a suitable mediator, either party may contact
the Law Society (or equivalent) in their state and request that they provide a
(d) The costs of mediation must be paid by the parties in equal shares.
9.2 Legal Proceedings
No party may commence court proceedings unless the dispute remains unresolved
after 28 days from the date of the written notice provided under clause 9.1(a).
10.1 Assignment and Novation
(a) You may not assign any of your rights or obligations under this agreement
without our written approval; such approval must not be unreasonably
(b) We may assign or novate our rights and obligations under this agreement
upon 7 days written notice.
(c) Upon assignment or novation, the parties’ obligations and benefits under this
agreement are binding on and shall benefit their respective successors and
You are responsible for all duties, charges and legal fees (on a solicitor own client
basis) incurred in enforcing this agreement.
10.3 Currency and Taxation
Unless otherwise stated, all monetary amounts are expressed in Australian dollars
exclusive of GST. If any supply under this agreement is or becomes subject to GST,
we will issue a tax invoice itemising GST in addition to the monetary amounts set out
in this agreement.
10.4 Enduring Clauses
The parties’ obligations under clauses 2.3, 3.2, 4, 5, 6, 7.4, 8 and 9 shall survive the
termination of this agreement for whatever reason.
10.5 Entire agreement
This agreement contains the entire agreement between the parties and supersedes
all previous negotiations or agreements in relation to the services.
10.6 Force majeure
Neither party is liable for any delay or failure to perform its obligations under this
agreement to the extent that such failure is caused by anything beyond its reasonable
control, including without limitation the failure of third party telecommunications
providers. Nothing in this clause excuses payment of any money due.
The laws of the State of Queensland, Australia apply to this agreement and the
parties submit exclusively to the courts of that jurisdiction.
10.8 Relationship between the parties
Nothing in this agreement constitutes a partnership. It is the express intention of the
parties to deny any such relationship.
If any provision of this agreement is ruled by a court to be illegal, invalid,
unenforceable or in conflict with any law, it will not affect the validity and enforceability
of the remaining provisions.
10.10 Varying the agreement
Any variation or amendment to this agreement must be in writing signed by all parties.
Any delay or failure to enforce any rights in relation to a breach by the other party will
not be construed as a waiver of those rights.
(a) Where applicable, all terms used in this document have the same meaning as
defined in the schedule to this agreement.
(b) Includes, including and like terms are not words of limitation.
In this agreement:
(a) Confidential Information means all information in any form, including verbal,
written or electronically stored information, belonging or relating to either
party, and includes without limitation:
(i) any kind of technical, financial or business information;
(ii) details of employees, suppliers, or customers;
(iii) material developed by either party under this agreement; and
(iv) intellectual property, concepts, know-how and trade secrets;
but excludes information in the public domain, other than by default of an
obligation of confidentiality, or information independently known to the other
(b) Content means any images, text, content, software, or other files on the
website, including user generated content and content uploaded from any
third party, but excluding any part of the Empire Mall Platform, provided
templates and modules.
(c) End Customers means customers and potential customers of your products
and services through your website.
(d) Empire Mall Platform means the content management system and hosting
platform for e-commerce sites, including the features set out in Appendix A.
(e) GST means goods and services tax under A New Tax System (Goods and
Services Tax) Act 1999 (Cth).
(f) Insolvency Event in relation to a party means any of the following:
(i) an application is made to a court for an order that the party be wound
up and the order is not disposed of within 30 business days or an
order is made that the party be wound up;
(ii) an application is made to a court for an order appointing a liquidator
or provisional liquidator or a liquidator or provisional liquidator is
appointed in respect of either party and that order or appointment is
not disposed of within 30 business days;
(iii) the party enters into, or resolves to enter into, a scheme of
arrangement, deed of company arrangement or composition with, or
assignment for the benefit of, all or any classes of its creditors, or it
proposes a reorganisation, moratorium or other administration;
(iv) the party resolves to wind itself up, or otherwise dissolve itself, or
gives notice of the intention to do so, or is otherwise wound up or
(v) any step is taken to appoint an administrator, a receiver, and/or
manager or other like person over the whole or any part of the party’s
assets or business;
(vi) judgement is entered against the party for more than $20,000.00,
which remains unsatisfied or unappealed for more than 21 days; or
(vii) if the party is placed under official management, commits an act of
bankruptcy or is charged with a criminal offence.
(g) Payment Processor means the payment processor specified in the
schedule, or if no entity is specified, PayPal Australia Pty Ltd, ABN 93 111
195 389, or another alternative provider approved by us in writing. Such
payment processor must be willing and able to provide suitable
interoperability and connectivity with the Empire Mail Platform.
(h) Suspend means to deny or restrict access to the services or part of it.
(i) Website means the website specified in the schedule, to be hosted by us on
the Empire Mall Platform under this agreement.
12. APPENDIX A: EMPIRE MALL PLATFORM SPECIFICATION
12.1 Empire Mall CMS
Content management system
12.2 Included Modules
12.3 Included Templates
12.4 Included Hosting
We define ‘Unlimited Hosting’ as within a reasonable scale.
Hosting is included up to the following specifications
20Gb storage space and Hosting Included
200Gb Bandwidth included