ONTHEGO GROUP PTY LTD


Services Agreement – OTG Stores

1. TERMS OF OTG STORES USE
Your use of this Service indicates your acceptance of these Terms and agreement to be bound by them. Acceptance of these Terms creates a binding contract between you and the Company whereby you agree to use OTG Stores only in accordance with these Terms. If you have questions about these Terms, please contact Customer Service. Your use of the Services is entirely conditioned on and subject to your compliance with these Terms. If you do not agree with these Terms, do not access or use the Services.

Please read and carefully review these Terms, as they form a legally binding agreement between you and the Company.

2. BACKGROUND
On behalf of its customers (in this agreement, “you”), ONTHEGO Group Pty Ltd (trading as ONTHEGO Sports) (“ONTHEGO”) facilitates the marketing and sale of designs on physical products and arranges for manufacture and delivery of physical products to your customers (“end consumer”).

You wish to use ONTHEGO’s services to facilitate marketing and sale of your designs on a physical product and to arrange for manufacture and delivery of the physical product ("your product") to the end consumer. To do so, you must set up a webstore through the OTG Stores platform, store.otgcustom.com ("the website"). ONTHEGO agrees to provide these services on the terms set out in this agreement.

3. SERVICES

3.1. The Company provides a range of services including a hosted web based ecommerce store setup to facilitate the resale of apparel (the “Webstore”) which, among other things, enable the Customer to publish apparel designs and receive the benefits of the Company’s facilitation of product fulfilment, including payment processing, customer services, third party product manufacturing.

3.2. The Customer acknowledges and agrees that the digital content on the Website may be information, text, data, graphics, images, photographs, sound, video, music or any other material posted online by users. Any content that the Customer uploads into the Webstore builder is described in the Webstore as “your webstore”. Any such content may be viewed by all users of the Website once the Customer elects to publish it. If the Customer decides to place an order, then the Company will forward the instructions to third parties who will manufacture and ship the physical product in the form specified by the Customer.

3.3. The Customer may offer its designs for sale as a physical product on the Website by appointing the Company as its agent to facilitate the transaction on the terms set out in this Agreement. By agreeing to these terms, the Customer expressly agrees to the terms of the Services Agreement, which will apply from the date on which the Customer offers its designs for sale on the Webstore.

3.4. You agree that ONTHEGO is free to act in any capacity for any other person interested in promoting, marketing and obtaining orders from members of the public for the purchase of their arts over the website, including any art that is the same as, or similar to, your products.

4. LICENSE AND STANDING INSTRUCTIONS

4.1. You grant ONTHEGO a non-exclusive royalty free license to use your intellectual property relating to your products for the purpose of enabling us to carry out the Services.

4.2. You hereby instruct ONTHEGO to facilitate the sale of your product which includes payment, processing and arranging for manufacturing your product(s) in respect of the orders placed by the customers via the website and ONTHEGO will facilitate such payment, and manufacturing in accordance with reasonable business practices unless you otherwise instruct prior to the placement of that order by a customer.

5. USER CONDUCT

You may not use the Website to process Prohibited Content. “Prohibited Content” includes, but is not limited to, Content or other material that:

Is abusive, deceptive, pornographic, obscene, defamatory, slanderous, violent, offensive, constitutes hate speech or is otherwise inappropriate;

Consists of copyrighted material used without the express permission of the owner or material that has been altered so that the copyright, trademark or other proprietary notice is removed;

Violates or otherwise encroaches on the rights of others including, but not limited to, intellectual property, privacy, publicity or privacy rights;

Contains viruses, worms, corrupt files, Trojan horses or other forms of corruptive code, or any other content which may compromise the Services (collectively “Corruptive Code”);

Advocates illegal activity;

Violates any law or regulation;

Harms or advocates harm against anyone, including minors; or,

Provides a link to material associated with any of the above.

Though the Company is not required to do so, it may from time to time examine any Content submitted to the Website. Although the Company does not and will not examine or otherwise review all Content submitted or transmitted to the Website, the Company may delete, move, or edit Content for any reason, at any time, without notice.

All Content (whether private or public) is the sole responsibility of the person who submitted it. You are solely responsible for your Content. 6. INTELLECTUAL PROPERTY DRAWING, DOCUMENTATION AND INFORMATION

6.1. Except for any Customer Logo, all Intellectual Property rights in the Goods are owned by the Company. The Customer agrees what it will not do anything to challenge or invalidate ownership of the Company Intellectual Property rights.

6.2. Where the Company has designed, developed or made drawings for logos to be used on or incorporated into Goods for the Customer, then the Intellectual Property in those designs and drawings shall remain vested in the Company, and shall only be used by the Customer in accordance with these terms and conditions or otherwise as approved by the Company in writing.

6.3. The Customer warrants that it owns or has a valid licence to use all Intellectual Property in any Customer Logo which is used on or incorporated into Goods. The Customer further warrants that any Customer Logo used on or incorporated into the Goods will not infringe the Intellectual Property rights of any third party.

7. SALE OF YOUR PRODUCTS

7.1. The retail price charged to customers who purchase your product is made up of the manufacturing fee charged by the third party manufacturer, ONTHEGO’s fee for hosting the marketplace and facilitating the transaction (the manufacturing fee and ONTHEGO’s fee are referred to collectively, as the “base amount”), your creator margin (“your margin”), and any relevant sales tax (such as sales tax, GST, VAT, etc) that ONTHEGO and / or you (as the case may be) are liable to account for to the appropriate tax authorities.

7.2. Shipping charges will also be added to the retail price. When making each individual work available for sale you are able to select any percentage mark-up you wish, greater than or equal to zero, above the base amount but below the automated upper limit (subject to change from time to time). The percentage mark-up selected by you on the website for each of your products is used to calculate the dollar value of your margin for each sale.

7.3. You may change the percentage mark-up on top of the base amount at any time by changing your selection on the website. We may change the base amount at any time without specific notice to you and this will affect the dollar value of your margin, which is calculated as a percentage of the base amount (e.g. if we increase our base amount, your margin will also increase). The retail price will not change on an individual sale after an end consumer has submitted an order to the website.

7.4. You agree that ONTHEGO makes no representation that it will be able to procure an order for your products, whether at the retail price or at all, nor that you will obtain any benefit by entering into this agreement.

7.5. All items must meet a minimum order quantity dependent on the style of product, this quantity is listed in our product information. Should the minimum order quantity not be met it is your responsibility to make up the required quantities to reach the minimum order.

7.6. All items purchased from the website are manufactured pursuant to arrangements with third party suppliers under your instructions. This means that title and risk for loss for such items pass from you to the end consumer without passing through us prior to the goods being delivered to the end consumer under the end consumer’s instructions.

8. PAYMENT TERMS

8.1. You authorise ONTHEGO to collect, hold and distribute the retail price (“sale proceeds”) from the end consumer on the terms set out in this clause 4. ONTHEGO will also charge the end consumer for the shipping which will be retained by us and not affect the amount to be distributed to you.

8.2. You authorize ONTHEGO to deduct the base amount (which includes ONTHEGO’s margin for facilitation services, including tax where applicable) from the sales proceeds for your products before distributing your margin (which will include tax where applicable).

8.3. We will pay your margin in accordance with the payment method you select on the website.

8.4. We may set payment amount threshold amounts in relation to a month or other time period - and where the payment amount does not exceed any applicable threshold for the relevant period, ONTHEGO may elect to postpone your payment until the threshold is exceeded.

8.5. It is your responsibility to ensure ONTHEGO has current details of your postal address and bank account details. ONTHEGO will not be liable for any loss suffered by you if you provide us with incorrect details in relation to the payment method. If we are unable to pay you because you have given us incorrect details or your details are out of date, we will hold your margin for up to 12 months from the payment date. If you have not notified ONTHEGO of any amendment to the payment method details in that time your margin proceeds will, subject to applicable laws, be forfeited to ONTHEGO or donated to a charity of ONTHEGO’s choice.

9. RETURNS AND DEFECT

9.1. The Company shall only accept returns on the basis that the Goods provided are defective Goods. The Company will not accept returns on the basis of change of mind by the Customer. The Customer shall give written notice to the Company of any claim ascertainable upon reasonable inspection of Goods within 14 days after the receipt of Goods.

9.2. In the case of defective Goods, the Company agrees to replace or repair the Goods, provided that:

9.2.1. the Customer has complied with clause 9.1

9.2.2. the Goods are returned to the Company in the condition that they were delivered;

9.3. The Company shall not be liable for normal variations in colour and finishing, dimension, weight or certain availability of materials, along with quality of Goods.

9.4. Where Goods are supplied to the Customer’s specifications, the Customer indemnifies the Company from any liability, loss or damage suffered by the Company in respect of any claim that the Goods infringe any patent, design or similar rights.

9.5. Subject to those provisions of the Competition and Consumer Act 2010 (Cth), and any other rights implied by law, which cannot be excluded by agreement between parties

9.5.1. the Company makes no warranties, either express or implied, as to merchantability, fitness for a particular purpose, or otherwise, with respect to the Goods;

9.5.2. the Company’s liability shall be limited at the Company’s sole discretion to the replacement or repair of Goods.

10. TAXATION RESPONSIBILITY

10.1. Except as required otherwise by applicable Commonwealth or State Taxation Laws or Regulations:

10.1.1. Each party is responsible for its own taxes associated with each transaction and will account for any taxes imposed by governments or governing authorities, and related accounting or audit requirements arising out of, as a result of, incidental to, or in connection with obligations under this agreement. ONTHEGO recommends that you consult with your tax advisor as to the application of taxes for you, as the seller of the merchandise. This may include Sales Tax, VAT, GST and other transactional taxes;

10.1.2. If, and to the extent, any supply of the Goods under the Contract is a taxable supply within the meaning of the GST Law, the price for the Goods will be increased to include GST payable by the Supplier in respect of the supply. All rebates, discounts or other reductions in price will be calculated on the GST exclusive price.

10.1.3. all tax-related reporting responsibilities by you to relevant tax authorities are entirely your responsibility.

10.2. Any additional taxes, duties, fees, imposts, tariffs and charges that may be raised by particular countries or authorities related to the conclusion or execution of your Order shall be borne by you. In the event ONTHEGO is required to pay such charges to any authority, you shall indemnify and hold harmless OTG for any such payments.

11. INDEMNITY

You hereby indemnify and will keep ONTHEGO indemnified from and against all claims, debts, accounts, expenses, costs, liens, actions and proceedings of any nature whatsoever, whether known or unknown by any person, arising from, incidental to, or by virtue of, the appointment, or any breach or non-performance of your obligations under this agreement or arising out of your wilful act, neglect or default in the performance of such obligations.

This clause 11 will survive the termination of this agreement. 12.LIMITATION OF LIABILITY

In no case will ONTHEGO be liable for any consequential loss or damage suffered by you arising from this agreement. To the extent permitted by law, all warranties and conditions implied by law are hereby expressly excluded.

13.TERMINATING THIS AGREEMENT

You can give notice of termination of this agreement by closing your account. ONTHEGO may give notice of termination of this agreement to you in writing at any time. After notice of termination in the manner described in either clause 8.1 or 8.2, you authorise ONTHEGO to complete any transactions in progress in relation to your products, which we will do on the terms of this agreement. Termination of this agreement will take effect once these transactions have been completed.

Upon termination of this agreement by either party, ONTHEGO will pay you any accrued member margin proceeds from your account.

14. DEFINITIONS AND INTERPRETATION

In these terms:
14.1. “Business Day” means any day between the hours of 8:30am and 5:00pm, other than a Saturday or Sunday, bank holiday or public holiday in the Australian Capital Territory;

14.2. ”Customer Logo” means any logo developed or provided by the Customer for use on or incorporation into the Goods;

14.3. “Goods” means the goods supplied by the Company to the Customer under these terms and conditions and as set out on the Invoice or Quotation;

14.4. “GST” means the tax payable on taxable supplies under the GST Law;

14.5. “Intellectual Property” means all intellectual property, including any logos, patents, patent applications, trade marks, service marks, trade or business names, registered designs, unregistered design rights, copyrights, moral rights, know how, trade secrets, domain names, internet addresses, rights in confidential information, and all or any other intellectual properties, whether registered or unregistered, and including all applications and rights to apply for any of the same

14.6. “Invoice” means the invoice provided by the Company to the Customer setting out the agreed price for supply of the Goods;

14.7. “Services” means any services provided by the Company which relate to the supply of the Goods.

14.8. These terms and conditions:

14.8.1. apply to all Goods and Services provided by the Company to the Customer.

14.8.2. form the sole agreement between the Company and the Customer and supersede and exclude to the extent possible at law:

14.8.3. any terms and conditions in previous offers or orders; and

14.8.4. any statements, representations or conduct made or done prior to entering into these terms and conditions.