Membership Terms - Buyers Registration

Terms & Conditions - Fulcrum Marketplace

Fulcrum Procurement Pty Ltd (ABN 98 640 240 320) (Fulcrum) operates a marketplace which facilitates the purchase of goods and services by Buyer Members, both by operating Tender Programs and by providing an online marketplace through which Buyer Members can purchase goods from Supplier Members. By submitting a Statement of Requirements to Fulcrum for inclusion in a Tender Program, or by registering to use Fulcrum’s online marketplace, you (the Buyer Member) accept that your participation in the Marketplace is governed by these terms and conditions.
Certain expressions used in these terms and conditions are defined in clause 45.
The Buyer Member warrants that the contact details it has provided to Fulcrum are correct and that it will promptly notify Fulcrum of any change to those contact details.
Fulcrum will only disclose the Buyer Member’s Personal information to other Buyer Members or to Supplier Members in accordance with Fulcrum’s privacy policy at ttps://fulcrumprocurement.com.au/pages/privacy-policy as amended from time to time, and this clause 4. The Buyer Member acknowledges that Fulcrum collects those details for the purposes of promoting Fulcrum’s services and the Marketplace. The Buyer Member consents to Fulcrum disclosing the Buyer Member’s contact details to Supplier Members when the Buyer Member accepts a Tender Program offer or when the Buyer Member purchases goods or services through the Marketplace. Fulcrum will not publish the Buyer Member’s Personal Information in publications, notices or directories made available to Supplier Members. Fulcrum will only disclose the Buyer Member’s Personal Information to those third parties that assist Fulcrum in updating, maintaining and supporting the Marketplace or the Tender Program.
The Buyer Member may use the Marketplace solely for the purpose of purchasing goods and services from Supplier Members and for accessing any services made available by Fulcrum through the Marketplace and that it may do so only in the manner expressly permitted by these Terms and Conditions. The Buyer Member must not incorporate nor compile any portion of the Marketplace into any other program, transfer it for use with another service, or sell, rent, lease, lend, loan, distribute or sub-license the Marketplace or otherwise assign any rights to the Marketplace in whole or in part. Additional third-party terms contained within or distributed with Marketplace that are specifically identified in related documentation may apply to the Marketplace (or software incorporated with the Marketplace) and will govern the use of such software in the event of a conflict with Terms and Conditions. All software used in relation to the Marketplace is the property of Fulcrum or its software suppliers and protected by applicable laws protecting copyright and other intellectual property rights.
The Buyer Member must:
- Not interfere or attempt to interfere with the proper working of the Marketplace, any online tender or sale being conducted on or through the Marketplace;
- keep the Buyer Member’s access credentials safe and secure
- not infringe any laws, third party rights or our policies, such as the prohibited and restricted items policies;
- not manipulate the price of any item or interfere with other content posted by other Buyer Members or Supplier Members;
- not post false, inaccurate, misleading, defamatory or offensive content (including personal information);
- not distribute viruses nor any other technologies that may harm the Marketplace or the interests or property of Fulcrum;
- not encourage, assist or authorise any other person to copy, modify, reverse engineer, decompile or disassemble, otherwise tamper with, or bypass any security associated with the Marketplace whether in whole or in part, or create any derivative works from or of the Marketplace.
- not copy, modify or distribute rights or content from Fulcrum or Fulcrum's copyrights and trademarks; or
- not harvest or otherwise collect information about users, including email addresses, without their consent.
Without limiting other remedies, Fulcrum has, Fulcrum may, without notice, limit, suspend or terminate the Buyer Member’s access to the Marketplace and to Fulcrum’s services, prohibit access to the Marketplace, delay or remove hosted content, remove, delete, modify or not display listings, apply fees and/or recover Fulcrum’s expenses for policy monitoring and enforcement, and/or take technical and legal steps to keep the Buyer Member off the Marketplace and all related websites if Fulcrum reasonably believes that the Buyer Member’s is interfering with the operation of the Marketplace, creating potential liabilities for Fulcrum, other Buyer Members or Supplier Members, infringing the intellectual property rights of third parties or acting inconsistently with the Fulcrum policies. Fulcrum may cancel unconfirmed Buyer Member accounts or Buyer Member accounts that have been inactive for a long time.
Fulcrum endeavours to maintain a safe trading environment, but the Buyer Member accepts that always risks when trading online and using online marketplaces, including dealing with fraudulent persons. The Buyer Member will not hold Fulcrum responsible for other users' content, actions or inactions or goods they list. The Buyer Member acknowledges that Fulcrum is not an auctioneer. Instead, the Marketplace provides venues to allow Supplier Members to offer and sell goods and services and allow Buyer Members to buy those goods and services in a variety of formats, including fixed price sales and compiled tender style sales. Fulcrum is not a party to the sales transaction between Buyer Members and Supplier Members. It has no control over and do not guarantee the quality, safety or legality of goods and services advertised, the truth or accuracy of Supplier Members’ or Buyer Members’ content, the ability of Supplier Members to sell goods or services, the ability of Buyer Members to pay for goods or services or that a Buyer Member or Supplier Member will actually complete a transaction or return any goods. The Buyer Member is solely responsible for implementing safe online buying and selling processes to minimise the risk of online transactions. For the avoidance of doubt, no contract of sale is created until a Supplier Member confirms the Buyer Member’s Marketplace cart (unless otherwise communicated by Fulcrum).
The Marketplace may incorporate the services of one or more third parties, such as a hosted service provider or payment gateway. The Buyer Member’s use of these third-party services may be subject to the separate policies, terms of use, and fees of these third parties.
Where Fulcrum proposes to operate a Tender Program:
- Fulcrum will invite relevant Buyer Members to submit a Statement of Requirements for that Tender Program; and
- If the Buyer Member submits a Statement of Requirements, the Buyer Member warrants that its Statement of Requirements is a reasonable estimate of its anticipated requirements for the relevant goods and services, and acknowledges that Fulcrum will rely on that estimate in soliciting tenders on the basis of the aggregated requirements of Buyer Members for those goods and services.
For each Tender Program, Fulcrum will invite Supplier Members to tender for the supply of the relevant goods and services, specifying the applicable terms of supply. On receipt of responses from Supplier Members, Fulcrum will notify each participating Buyer Member of the goods and services available to the Buyer Member and the terms on which the relevant Supplier Members have agreed to supply those goods and services (either directly or via the online Marketplace).
After receipt of notice from Fulcrum, as contemplated in clause 11, the Buyer Member will load (or will procure that Fulcrum loads) to the Buyer Member’s Marketplace cart the goods and/or services that the Buyer wishes to procure through that Tender Program offer. The Buyer Member then confirms their cart. This Buyer Member confirmation sends the Buyer Member’s Marketplace cart to the Supplier Member to review. If the relevant Supplier Member then confirms the Buyer Member’s Marketplace cart, then, a contract for the supply of goods and/or services is formed between the Supplier Member and the Buyer Member, the terms of which are comprised in:
- The terms of the offer from the Supplier Member, as notified by Fulcrum to the Buyer Member, including any terms and conditions incorporated by reference; and
- The relevant Credit Terms.
Through the Marketplace a Supplier Member will list goods or services for sale. The Buyer Member may load any such goods or services in the Buyer Member’s Marketplace cart, or select such goods or services using such other method as directed by Fulcrum. The Buyer Member then confirms their cart. This Buyer Member confirmation sends the Buyer Member’s Marketplace cart to the Supplier Member to review. Once the relevant Supplier Member confirms the Buyer Member’s Marketplace cart, a contract for the supply of goods and/or services is formed between the Supplier Member and the Buyer Member, the terms of which are comprised in:
- The terms in the listing posted by the Supplier Member, including any terms and conditions incorporated by reference; and
- The relevant Credit Terms.
The Buyer Member acknowledges that:
- Any supply of goods and/or services by a Supplier Member to the Buyer Member will be made under an agreement entered into between the Supplier Member and the Buyer Member;
- Fulcrum makes no warranties concerning the quality or availability of any goods and/or services offered by any Supplier Member;
- The Buyer Member releases Fulcrum from any claim that, but for these terms, it might otherwise have in relation to the supply of goods and/or services from a Supplier Member; and
- Any terms (including price) negotiated by Fulcrum with a Supplier Member in relation to a Tender Program or posted by a Supplier Member within the Marketplace are confidential and the Buyer Member may only use those terms for the purpose of assessing the Supplier Member’s offer, must not disclose the proposed terms of supply to any third party and must not exploit those terms for the purpose of negotiating with the Supplier Member directly.
The Buyer Member must pay for all goods and services the subject of a contract of the kind contemplated in clauses 12 or 13 in accordance with the applicable Credit Terms and using the payment processing options available through the Marketplace or as otherwise directed by Fulcrum.
Fulcrum provides the Marketplace to provide Buyer Members with procurement opportunities the Buyer Members might not otherwise be invited to access. The Buyer Member acknowledges that Fulcrum will deduct the Platform Fees from the monies received by Supplier Members for all sales made through the Marketplace.
In consideration of Fulcrum permitting the Buyer Member to access and participate the Marketplace in accordance with these terms and conditions the Buyer Member agrees to:
- not to solicit from any Supplier Member, or to accept from a Supplier Member, the supply of goods and services on terms or on a basis intended to deprive or having the effect of depriving, Fulcrum of the Platform Fees it would otherwise be entitled to in relation to the sale of goods and services to the Buyer Member from Supplier Members, including, without limitation any arrangement:
  - that provides for orders for goods or services priced using the Marketplace or through a Tender Program to be placed directly with the Supplier Member or through an intermediary other than the Marketplace;
  - that provides for goods or services priced using the Marketplace or through a Tender Program to be supplied by or to an intermediary or a related or controlled entity of the Supplier Member or Buyer Member which is not itself a Supplier Member or Buyer Member;
  - that provides for the substitution of goods and services priced using the Marketplace or through a Tender Program for functionally equivalent goods and services that are not listed on the Marketplace or not the subject of a Tender Program; and
- without limiting clause 16(a), not to otherwise engage in conduct that undermines the shared purposes and interest of Marketplace and Fulcrum
The Buyer Member consents to Fulcrum, or its nominated representatives, auditing the books and accounts of the Buyer Member on reasonable prior notice to verify the Buyer Member’s compliance with these terms and the Buyer Member must provide whatever reasonable assistance Fulcrum requires in the performance of that audit.
When the Buyer Member uploads content to the Marketplace or otherwise give Fulcrum content, the Buyer Member grants Fulcrum a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable right to exercise any and all intellectual property rights (including copyright and trademark rights) that the Buyer Member has in such content, in any media known now or in the future and for any other purpose.
The Buyer Member also irrevocably and unconditionally consents or undertakes to procure the irrevocable and unconditional consent of the actual author of the Buyer Member’s content, to the maximum extent permitted by law (either present or future), to Fulcrum and its licensees, contractors, assignees and successors, and their licensees and any other person authorised by any of them (Fulcrum Authorised Persons):
- disclosing, reproducing, copying, adapting, publishing, performing, exhibiting, communicating, renting, transmitting or otherwise using the content (and any adaptation or part of the content) anywhere in the world:
  - in whatever form and in whatever circumstances Fulcrum and the Fulcrum Authorised Persons think fit, including adding to or otherwise altering the content (or any adaptation or part of the content); and
  - without making any identification of the Buyer Member as the author in relation to the content (or any adaptation or part of the content); and
- doing anything or omitting to do anything in relation to the content (or any adaptation or part of the content) anywhere in the world that would otherwise infringe the moral rights, or any similar non-assignable, personal rights, that the Buyer Member might have.
The Buyer Member acknowledges that the Buyer Member alone, and not Fulcrum is responsible for ensuring that all actions the Buyer Member performs on or through the Marketplace are lawful. The Buyer Member must comply with all applicable laws in Australia. The Buyer Member must also ensure that the Buyer Member strictly complies with these terms and conditions and the policies incorporated into these terms and conditions by reference.
Fulcrum does not own any items sold through the Marketplace at any time. At no time does legal ownership of items transfer to Fulcrum. Fulcrum does not guarantee continuous or secure access to Marketplace, Fulcrum’s services, and operations may be interfered with by numerous factors outside of Fulcrum’s control. Accordingly, to the extent legally permitted, Fulcrum excludes all implied warranties, terms and conditions. Fulcrum is not liable for any loss of money, goodwill or reputation, or any special, indirect or consequential damages arising, directly or indirectly, out of the Buyer Member’s use of or the Buyer Member’s inability to use the Marketplace or any other of Fulcrum’s services.
Information posted on the Marketplace is subject to change. Fulcrum makes reasonable efforts to ensure all information on the Marketplace is correct, however, it does not warrant the accuracy or completeness of that information.
Fulcrum does not guarantee that the Marketplace or third-party web sites will be free from viruses, or that access to the Marketplace or third-party web sites will be uninterrupted.
To the extent permitted by law, no Related Bodies Corporate (as defined in the Corporations Act 2001 (Cth)) or staff member of Fulcrum will be liable to the Buyer Member for any losses, damages, liabilities, claims and expenses (including but not limited to legal costs and defence or settlement costs) whatsoever arising out of or referable to material on the Marketplace or to third party material, whether in contract, tort including negligence, statute or otherwise. Notwithstanding anything else in these terms and conditions, if Fulcrum is found to be liable, Fulcrum’s liability to the Buyer Member or to any third party is limited to the greater of (a) the total Platform Fees Fulcrum was paid from purchases the Buyer Member made through the Marketplace in the 12 months prior to the action giving rise to the liability, and (b) $100.
If the Buyer Member is a consumer under the Australian Consumer Law, Fulcrum’s services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, the Buyer Member is entitled:
- to cancel the Buyer Member’s service contract with Fulcrum; and
- to a refund for the unused portion, or to compensation for its reduced value.

If a failure with the service does not amount to a major failure, the Buyer Member is entitled to have the failure rectified in a reasonable time. If this is not done the Buyer Member is entitled to cancel the contract for the service and obtain a refund of any unused portion. The Buyer Member is also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the service.

Nothing in these Terms and Conditions restricts or excludes any rights the Buyer Member may have under the Australian Consumer Law
Subject to clause 26, and to the extent permitted by law, all express or implied conditions or warranties in connection with the Marketplace, and Fulcrum’s services are excluded.
Where the Australian Consumer Law does not apply Fulcrum’s liability is limited, at Fulcrum’s option, to:
- supply of the services again;
- payment of the costs of having the services supplied again; or
- making a full refund to the Buyer Member of the amount paid by the Buyer Member to Fulcrum for the service (if anything).
The Buyer Member waives, releases, discharges and relinquishes any and all claims that the Buyer Member now has or may have against Fulcrum, Fulcrum’s related bodies corporate; directors; officers; employees; agents and representatives which are connected with, arise out of, relate to or are incidental to the use of the Marketplace or Fulcrum’s services.
The Buyer Member will indemnify Fulcrum (and our officers, directors, agents, subsidiaries, joint venturers and employees) against any claim or demand, including legal fees and costs, made against us by any third party due to or arising out of the Buyer Member’s breach of these Terms and Conditions, or the Buyer Member’s breach of any applicable law or the rights of a third party in the course of using the Fulcrum services.
These terms may be amended by Fulcrum from time to time by written notice to the Buyer Members. Unless a longer period is specified in the notice provided by Fulcrum, any amendment of the terms and conditions will take effect 30 days after the date of Fulcrum’s notice.
The Buyer Member may terminate its Membership at any time on 30 days’ written notice, provided that:
- these Terms and Conditions will remain in force in relation to any agreement with a Supplier Member for the supply of goods or services entered into by the Buyer Member during the term of its Membership which remains in force as at the date of termination;
- The Buyer Member must not seek to place additional orders for goods and services under a contract for the supply of goods and services which is in force as at the date of termination outside the Marketplace after the date of termination and must not seek to renew any such supply contract for a period of at least 2 years after the termination of their Membership; and
- The restrictions in clause 16(a) and right of audit in clause 22 survive and remain in force for a period of two years after the termination the Membership.
Fulcrum may terminate the Buyer Member’s Membership at any time on 30 days’ notice, without cause, in which circumstance, the Buyer Member will be released from all of its on-going obligations under these terms.
Fulcrum may terminate the Buyer Member’s Membership by written notice if the Buyer Member defaults on any obligation under these terms and fails to rectify that default within 7 days of notice from Fulcrum. If Membership is terminated under this clause, then, without limiting any other right of Fulcrum, the provisions of clause 33 will apply as if the Membership had been terminated by the Buyer Member.
The Buyer Member acknowledges that the restrictions in clauses 16, 17 and 33 are necessary to protect Fulcrum’s interest in its relationships with Supplier Members and the Buyer Members and its capacity to make the Membership Benefits available to all Buyer Members. The Buyer Member indemnifies Fulcrum from all loss, expense and damage suffered or incurred by Fulcrum as a consequence of the Buyer Member’s default under those provisions, including legal costs and all loss of revenue suffered by Fulcrum, calculated on the basis of the revenue that would have been earned by Fulcrum had the relevant goods or services been purchased from the relevant Supplier Member through the Marketplace in accordance with these terms and conditions.
Fulcrum is not the Buyer Member’s agent for any purpose in relation to this these terms and conditions or the Buyer Member’s use of the Fulcrum services.
These terms and conditions exclusively and completely state the rights of the Buyer Member with respect to all purchases made through Fulcrum or the Marketplace. This Agreement supersedes all negotiations and prior agreements, whether written or oral, in respect of the Marketplace. If there is any conflict or inconsistency between the terms, conditions and provisions of these terms and conditions and any purchase order or other trading terms of the Buyer Member, these terms and conditions will prevail.
In respect of the transaction between the Buyer Member and any Supplier Member, Fulcrum is a limited agent for the Supplier Member. The scope of Fulcrum’s agency in the transaction between the Buyer Member and the Supplier Member solely relates to processing the payment from the Buyer Member to the Supplier Member and does not extend to any other purpose.
If anything in Terms and Conditions is unenforceable, illegal or void, it is severed and the rest of Terms and Conditions remains in force.
The Buyer Member may not assign or otherwise deal with its rights under these terms and conditions without the prior written consent of Fulcrum.
A party's failure to exercise or delay in exercising a power or right does not operate as a waiver of that power or right and the exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right.
A waiver is not effective unless it is in writing and signed by the relevant party.
The laws of Victoria, Australia govern these Terms and Conditions of Membership. The parties submit to the non-exclusive jurisdiction of the courts of Victoria and the Federal Court of Australia.
In these Terms and Conditions of Membership:

Credit Terms means the payment terms offered by the relevant Supplier Member, being:

The payment terms negotiated and agreed between the Supplier Member and the Buyer Member; or
If no terms have been agreed between the Supplier Member and the Buyer Member, the standard Credit Terms offered by the relevant Supplier Member for orders placed through the Marketplace; or
If the Supplier Member has not specified standard Credit Terms for orders placed through the Marketplace, payment terms which require the Buyer Member to make payment for all goods and services on confirmation of the placement of its order for those goods and services.

Marketplace means the collection of services provided by Fulcrum to facilitate the purchase of goods and services by Buyer Members and includes, without limitation:

The processes made available by Fulcrum for the collection of Statements of Requirements, issue of invitations to tender and notification of offers in relation to each Tender Program;
Any on-line portal made available by Fulcrum for the purpose of notifying Buyer Members of offers made by Supplier Members, placement of orders and payment for orders, both in relation to a Tender Program and otherwise; and
Any other service or facility made available by Fulcrum for the communication of offers to the Buyer Members, placement of orders and payment for orders from Supplier Members which is identified by Fulcrum as part of the Marketplace.

Buyer Member means an entity:

Invited by Fulcrum to submit a Statement of Requirements in relation to a Tender Program, which submits a Statement of Requirements and, in doing so, accepts these terms and conditions; or
Which registers for access to the website through which Fulcrum offers some or all of the Marketplace services and, in doing so, accepts these terms and conditions;

Membership means the Buyer Member’s access to and use of the Marketplace, subject to these terms and conditions and Fulcrum’s provision of that access.

Personal Information bears its defined meaning in the Privacy Act 1988 (Cth)

Platform Fees the charges Fulcrum deducts from the monies received by the Seller for sales made through the Marketplace. Fulcrum uses the Platform Fees to establish, maintain and support the Marketplace and activities facilitated through the Marketplace.

Statement of Requirements means a statement prepared by the Buyer Member in response to an invitation from Fulcrum to participate in a Tender Program, in which the Buyer Member specifies its estimated requirement for goods and services the subject of the Tender Program and the required specifications for those goods and services.

Supplier Member means a supplier of goods and/or services whose application to participate as a supplier of the Marketplace has been accepted by Fulcrum and who participates in the Marketplace in accordance with the Supplier Member terms.

Tender Program means a program under which Fulcrum will invite Buyer Members to submit a Statement of Requirements, from which Fulcrum will prepare an aggregated invitation to tender, reflecting the requirements of all participating Buyer Members, to be issued to relevant Supplier Members for the purpose of soliciting offers to supply from participating Supplier Members for the relevant Buyer Members.