Along with the rest of Amazon, Amazon Marketplace is coming to Australia.

Amazon Marketplace allows third-party retailers to sell directly to consumers via the Amazon platform, paying a referral fee to Amazon from each sale. This is different to Amazon Retail, where Amazon buys products wholesale and retails them itself on the Amazon website.

There has been a bit of a kerfuffle in the news over Amazon Marketplace's terms of use and whether they would include terms that fall foul of Australian unfair contract terms rules. Amazon Marketplace in the US imposes strict contract terms that give it the right to unilaterally refuse service, terminate accounts, remove or edit content and even cancel orders.

The Australian Small Business and Family Enterprise Ombudsman has warned Amazon that its US terms could be deemed unfair if applied in Australia. Amazon says it will comply with local laws.

So what does all that mean for small businesses wanting to get onto Amazon Marketplace in Australia?

  • Amazon's terms could be unfair where they unreasonably favour Amazon for no legitimate purpose. The unfair contract terms rules say that an unfair term is void, meaning Amazon wouldn't be allowed to enforce it.
  • The rules don't require Amazon to negotiate their terms; they're allowed to offer them on a take it or leave it basis.
  • Accepting their terms doesn't mean you lose your right to claim that a term is unfair later.
  • If Amazon tries to enforce a term that is unfair, that's the time to kick up a fuss. The first thing to do is try to negotiate on the basis that the term is likely to be void for unfairness. If that doesn't work, the next option is to contact ACCC or Fair Trading.