Terms of Supply

Terms of Supply

Operative Provisions:

  1. Definitions & interpretation

    • Definitions

In these Terms unless inconsistent with the context or subject matter the following terms have the corresponding definitions:

  • ACL: the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).

  • Address for Service: means for the Retailer, the email address as set out in a Purchase Order, and for the Supplier, the email address as nominated by the Supplier from time to time.

  • Applicable Laws: any laws, orders, by-laws and regulations made thereunder in any way governing or affecting the distribution and sale of the Goods.

  • Business Day: a day on which banks are open for business in the State, other than a Saturday, Sunday or public holiday in the State.

  • Confidential Information: has the meaning given to it under clause 1 and includes all information (in any form) relating to or arising from the supply of Goods, the manufacturing or distribution of the Goods or these Terms, including without limitation trade secrets, methods, strategies, client and manufacturing lists, product details, pricing and other business processes.

  • Corporations Act: the Corporations Act 2001 (Cth).

  • Delivery Address: the address specified for delivery of the Goods as set out in a Purchase Order or any other address agreed by the parties from time to time.

  • Force Majeure Event: events, circumstances or causes beyond a party's reasonable control including (but not limited to):

    1. strikes, lock-outs or other industrial action;

    2. civil commotion, riot, invasion, cyber-attack, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;

  • fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic, health emergencies, disease, or other natural disaster;

  1. impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;

  2. interruption or failure of utility services (including the inability to use public or private telecommunications networks); and

  3. the acts, decrees, legislation, regulations or restrictions of any Government Agency, however does not include a lack of funds.

  • Goods: the Goods to be supplied by the Supplier to the Retailer as specified in a Purchase Order.

  • Government Agency: any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.

  • GST Law:has the same meaning as GST Law in the A New Tax System (Goods & Services Tax) Act 1999 (Cth).

  • Guarantor: the Guarantor/s named in the Purchase Order (if any), jointly and severally.

  • Insolvency Event: any insolvency related event that is suffered by a party including without limitation where:

    1. a controller (as defined in section 9 of the Corporations Act), administrator or similar officer is appointed in respect of a person or any asset of a person;

    2. a liquidator or provisional liquidator is appointed in respect of a person;

  • any application (that is not withdrawn or dismissed within seven days is made to a court for an order, or an order is made, or a meeting is convened or a resolution is passed, for the purpose of (i) appointing a person referred to in paragraph i) or ii) of this definition; (ii) winding up or deregistering a person; or (iii) proposing or implementing a scheme of arrangement of a person, other than with the prior approval of the Agent under a scheme of arrangement pursuant to Part 5.1 of the Corporations Act;

  1. any action, proceedings, procedure or step is taken for the purpose of implementing or agreeing (i) a moratorium of any indebtedness of a person; (ii) any other composition, compromise, assignment or arrangement with any creditor or creditors of a person; or (iii) any similar proceeding or arrangement by which the assets of a person are subjected conditionally or unconditionally to the control of its creditors or a trustee;

  2. any event occurs in relation to a person in any jurisdiction that is analogous, or has a substantially similar effect, to those set out in paragraphs i) to iv) of this definition (inclusive); or

  3. a person is or admits in writing that it is, or is declared to be, or is taken under any applicable law to be (for any purpose), insolvent or unable to pay its debts.

  • Intellectual Property Rights: includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity.

  • Loss: any loss, liability, cost, charge, expense, Tax, duty or damage of any nature whatsoever, including special, incidental, or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).

  • Personnel: the directors, officers, employees, contractors, suppliers, advisers or agents of a party.

  • PPSA: the Personal Property Securities Act 2009 (Cth) and its regulations as amended and in force from time to time.

  • PPS Register: the Personal Property Securities Register established under the PPSA.

  • Price: the price payable by the Retailer to the Supplier for each Good as specified in a Purchase Order, and Total Price means the total sum of all payables under a Purchase Order.

  • Purchase Order: an order for Goods submitted by the Retailer in accordance with clause 3.

  • Retailer: the retailer identified in the Purchase Order (as applicable).

  • Related Body Corporate: has the meaning given in section 9 of the Corporations Act.

  • Special Conditions: those special conditions contained in a Purchase Order.

  • State: Victoria, Australia.

  • Supplier: MAK Division Pty Ltd ABN 77 621 428 493.

  • Supplier Intellectual Property: has the meaning given in clause 1.

  • Tax: any tax, levy, charge, impost, duty, fee, deduction, goods and services tax, compulsory loan or withholding, which is assessed, levied, imposed or collected by any Government Agency including any interest, fine, penalty, charge, fee or any other amount imposed on or in respect of any of the above.

  • Term: the term of these Terms, commencing and expiring in accordance with its terms.

  • Terms: these Terms of Supply and any Purchase Order.

  • Interpretation  

In these Terms the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:

  • Headings and subheadings are for convenience only and do not affect the interpretation of these Terms.

  • References to a party to any agreement or document include that party's permitted assignees and successors, including executors and administrators and legal representatives.

  • Words denoting the singular include the plural and words denoting the plural include the singular.

  • The word 'person' includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any Government Agency.

  • A reference to any agreement or document (including these Terms) includes any amendments to or replacements of that document.

  • A reference to a law includes legislation, regulations and other instruments made under legislation and any consolidations, amendments, re-enactments or replacements of them; any constitutional provision, treaty or decree; any judgment; any rule or principle of common law or equity, and is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts.

  • Any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds them jointly and each of them severally.

  • Any promise, agreement, representation or warranty given or entered into on the part of two or more persons is for the benefit of them jointly and each of them severally.

  • No provision of these Terms will be construed adversely to a party because that party was responsible for the preparation of that provision or these Terms.

  • If a period of time begins on a given day or the day of an act or event, it is to be calculated exclusive of that day.

  • A reference to a day or time is a reference to time in the capital city of the State.

  • If any act is required to be performed under these Terms on or by a specified day and that day is not a business day, the act must be performed on or by the next business day.

  • A reference to an amount of dollars, Australian dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of Australia, unless the amount is specifically denominated in another currency.

  • Specifying anything in these Terms after the terms 'include', 'including', 'includes', 'for example', 'such as' or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.

  • Where these Terms is executed for a party by an attorney, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.

  • A reference to writing or written includes email.

  1. Application

  • These Terms including any Purchase Order will become binding on the Retailer upon (a) the Retailer indicating its acceptance to it (such as by signing a Purchase Order); or (b) the Retailer giving instructions to the Supplier to proceed; or (c) the Retailer making payment of any amount to the Supplier in respect of the Goods.

  • These Terms applies to all Goods supplied by the Supplier to the Retailer at any time following the time when these Terms becomes binding on the Retailer.

  • No invoice, terms or other document issued by or on behalf of the Retailer (including the terms on any warranty or other agreement given to the Supplier) will vary or form part of these Terms unless otherwise agreed by the Supplier in writing. These Terms replaces and supersedes any invoice, terms or other document given by the Retailer to the Supplier.

  • If a person is agreeing to these Terms on behalf of the Retailer, the person agreeing on behalf of the Retailer warrants that it has the irrevocable authority and agreement of the Retailer to be bound by these Terms.

  1. Ordering Goods

  • Purchase Orders

    • The Retailer may order Goods from the Supplier by submitting a Purchase Order to the Supplier from time to time. The parties acknowledge that the Supplier may reject any Purchase Order without reason, in part or in whole.

    • Each Purchase Order by the Retailer shall be:

      1. in such format as may be prescribed by the Supplier from time to time (if any); and

      2. made to allow sufficient lead time for production and delivery by the Supplier as advised from time to time by the Supplier. As at the date of these Terms the Supplier requires Purchase Orders to be placed four months in advance for sufficient lead time.

    • Unless otherwise agreed, all contracts and dealings with the end-customer are the responsibility of the Retailer and not the Supplier.

    • Within a reasonable time after receipt of a Purchase Order, the Supplier will:

      1. confirm receipt of the Purchase Order; and

      2. confirm whether the Purchase Order is accepted or not.

    • If the Purchase Order is accepted, the Supplier will use reasonable endeavours to supply the Goods as requested and payment and delivery of the Purchase Order is to take place in accordance with these Terms. Purchase Orders will not be binding on the Supplier until such date as the Supplier acknowledges acceptance or commences supply of the Purchase Order (whichever is first).

    • The supply of Goods under accepted Purchase Orders remains subject to availability and if, for any reason the Goods are not, or cease to be available, the Supplier reserves the right to cancel all or part of a Purchase Order (in which case the Supplier will refund any amounts paid for the cancelled part of that Purchase Order). This is the Retailer’s only remedy and the Supplier will not be liable to pay any other amount.

  • Changes to Orders

Once a Purchase Order has been placed no changes may be made by the Retailer except with the agreement of the Supplier. Unless otherwise agreed, no changes will be permitted to reduce order quantities or values.

  • Cancellation of Orders

The Retailer may not cancel a Purchase Order or any part of it without the agreement from the Supplier at any time after it has been accepted by the Supplier, except where permitted it accordance with these Terms.

  • Agreement

Each Purchase Order is deemed to be a separate offer by the Retailer to purchase Goods on the terms of these Terms. Termination of a Purchase Order does not automatically terminate these Terms.

  1. Price and payment terms

  • Price

    • The Price for each Good will be as set out in a Purchase Order pursuant to the Supplier’s current price list at the time the Purchase Order is placed (subject to any increase in accordance with these Terms). The Price is inclusive of the costs associated with the delivery of the Goods, unless otherwise specified in a Purchase Order.

    • The Supplier reserves the right to increase the Price and the price list on providing the Retailer with written notice where:

      1. there are increases to the Supplier’s costs of manufacturing and supplying the Goods (including increases in the costs of raw materials);

      2. there are any other changes that effect the Supplier’s costs that are outside the reasonable control of the Supplier, including currency conversion fluctuations.

Such increase will be adjusted to reflect that increase and will be effective on the date of the expiry of the notice period.

  • Payment and invoicing

    • The Supplier will issue the Retailer with an invoice in respect of a Purchase Order placed for all amounts payable by the Retailer at the times as specified in the Purchase Order.

    • The Retailer agrees to pay each invoice in accordance with the payment terms set out in the Purchase Order.

    • All amounts received, due and payable to the Supplier are to be paid in full without set off or counter claim and in cleared funds via EFT to the Supplier’s nominated bank account or another payment approved by the Supplier. Payment is taken to have been made only once the funds are received in cleared funds in the Supplier’s nominated bank account.

  • General terms

    • If payment is not made in accordance with the terms of these Terms, the Supplier at its entire discretion may:

      1. require the Retailer to pay the Supplier interest on all outstanding monies from the due date until the date of payment at the rate of 12% per annum accruing daily;

      2. refuse to supply the Goods to the Retailer until all outstanding monies, including any accrued interest, are paid in full; and/or

  • terminate and/or suspend these Terms.

  • All amounts owed to the Supplier by the Retailer under these Terms become immediately due and payable on termination of these Terms for any reason, or if the Retailer becomes subject to an Insolvency Event.

  1. Delivery of Goods

  • Unless otherwise agreed, the Supplier will use reasonable endeavours to deliver the Goods to the Delivery Address, on or around the date for delivery as specified in a Purchase Order or on such other date as agreed by the parties (subject to clause 2). The Retailer must accept delivery of the Goods at such time delivery is tendered.

  • Any timelines provided by the Supplier to the Retailer in respect of the delivery of the Goods are estimates only and are non-binding on the Supplier. The Supplier cannot and is unable to guarantee any timelines for delivery of the Goods. Although the Supplier will use reasonable endeavours to deliver Goods on time, sometimes delays are inevitable and the Supplier will not be responsible for any Losses suffered by the Retailer in the event of delay. Late delivery of the Goods does not entitle the Retailer to:

    • refuse to take delivery of the Goods;

    • claim damages; or

    • terminate these Terms.

  • Delivery of the Goods to a third party nominated by the Retailer is deemed to be delivery to the Retailer for the purposes of these Terms.

  • If the Retailer fails to take delivery of Goods on the date that they are tendered for delivery the Supplier will arrange to store the Goods until delivery takes place again, and may charge the Retailer for all related costs and expenses (including insurance).

  1. Title and risk

  • Title to the Goods shall pass from the Supplier to the Retailer on and from the time that the Retailer has paid for the Goods in full in cleared funds.

  • The risk of loss of, or damage to, the Goods will pass to the Retailer on delivery to the Retailer or its nominated agent.

  • Delivery is completed when the Supplier places the Purchase Order at the Retailer’s nominated Delivery Address.

  • If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Retailer, the Supplier is entitled to:

    • receive payment for the Goods; and

    • receive all insurance proceeds payable for the Goods for the shortfall of payment as required under this clause. The production of these Terms by the Supplier is sufficient evidence of  the Supplier's rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.

  1. Retailer obligations in relation to the Goods

  • The Retailer must:

    • sell the Goods in the original packaging supplied by the Supplier;

    • ensure that it has adequate stock on hand to fulfil orders of the Goods;

    • use its best efforts to market, sell and distribute the Goods during the Term;

    • ensure the timely delivery of the Goods to its customers and ensure a high standard of customer service is provided;

    • sell the Goods to third parties on terms that are compliant with Applicable Laws and on terms that are not inconsistent with these Terms; and

    • not alter or interfere in any way with the products or their original packaging including removing any labelling or instructions provided with the Goods.

  • The Retailer must not make any representation or give any warranty in relation to the Goods not expressly authorised by the Supplier in writing.

  • The Retailer must not do anything which might affect the reputation of any of the Goods and/or the Supplier.

  • The Retailer must:

    • promptly inform the Supplier of all material complaints or claims in relation to the Goods;

    • not admit liability on behalf of the Supplier in respect of any complaint or claim in relation to the Goods;

    • not resolve or settle any complaint or claim in relation to the Goods which may result in the Supplier or its Related Bodies Corporate incurring any liability to any party; and

    • deal promptly with all complaints or claims in relation to the Goods which will not result in the Supplier or its Related Bodies Corporate incurring any liability.

  • The Retailer acknowledges and agrees that the Retailer must obtain and is solely responsible to obtain all certificates, consents and approvals required for the Retailer's marketing, selling and distribution of the Goods.

  1. Retailer obligations

  • The Retailer must, and must ensure that its Personnel:

    • comply with all Applicable Laws, regulations, permits, consents, approvals and relevant industry codes of conduct;

    • not do any act or thing, which may adversely affect the reputation of the Supplier or the Goods;

    • inform the Supplier of any matter which may affect or assist in the distribution of the Goods;

    • maintain such records of transactions enquiries and complaints as reasonably required by the Supplier and these Terms;

    • ensure that no advertising, marketing or promotional material used contravenes any Applicable Laws (including consumer protection or similar legislation);

    • not use the Supplier Intellectual Property by itself or as part of any other identification or name in relation to any products not manufactured, produced, provided or supplied by the Supplier; and

    • observe and perform its obligations under each agreement with a customer of Goods including ensuring the timely delivery of the Goods.

  • The Retailer agrees that it will not by receiving or requesting the Goods or otherwise in performing its obligations under the Agreement:

    • breach any Applicable Laws, rules and regulations (including any applicable privacy laws); or

    • infringe the Intellectual Property Rights or other rights of any third party or breach any duty of confidentiality.

  1. Consumer Guarantees

  • If the Retailer is a 'consumer' within the meaning of the ACL, then:

Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

  • To claim under the ACL, the Retailer must give notice to the Supplier of the rejection:

    • in the case of a defect that is apparent on normal visual inspection within the earlier of five business day of receipt or before the Goods are sold; or

    • in the case of a latent defect, within a reasonable time of the latent defect having become apparent.

  • The Retailer is deemed to have accepted the Goods if the Retailer fails to give notice of rejection in accordance with the terms of these Terms.

  • Other than those expressly set out in these Terms, and to the maximum extent permitted by law, the Supplier excludes all rights, representations, guarantees, conditions, warranties, undertaking, remedies or other terms in relation to the Goods.

  1. Goods liability

  • If any claim is made against the Retailer arising out of or in connection with the distribution of, supply of or any defect in the Goods, the Retailer must release and indemnify the Supplier against all Loss and claims to the extent that the Loss and claims relate in any way to:

    • the Retailer failing to comply with the terms of these Terms; and/or

    • any act or omission of the Retailer.

  1. Goods recall

  • If the Retailer is the subject of a request, court order or other directive of a government agency to recall or withdraw any Goods from the market (Recall Notice) it must immediately notify the Supplier in writing and enclose a copy of the Recall Notice.

  • Unless required by law, the Retailer may not undertake any recall or withdrawal of the Goods from the market without the written permission of the Supplier.

  • If any Goods are the subject of a Recall Notice, or the Supplier has other reasonable grounds to recall or withdraw the Goods from the market, the Retailer must comply strictly with:

    • any requirements set out in the relevant Recall Notice; and

    • the Supplier's instructions about the process to implement the recall or withdrawal.

  • For the purposes of clause 3, reasonable grounds for the Supplier to recall or withdraw the Goods include, but are not limited to where:

    • supply or use of the Goods infringes, or may infringe, a third party's intellectual property rights;

    • the Goods are, or may be, unsafe; or

    • a defect in the Good may cause harm to the Supplier's reputation or brand.

  1. Marketing Materials

  • The Supplier grants the Retailer a revocable, non-exclusive, non-transferable and non-assignable licence to use the advertising, marketing or promotional material ("Marketing Material") in connection with the marketing, promoting and distribution of the Goods during the Term. The Retailer must not:

    • alter and/or modify such Marketing Material; and

    • reproduce, copy, make public, disclose the whole or any part of the Marketing Materials except to the extent approved by the Supplier.

  1. Alterations of Goods

  • Subject to the further provisions of this clause the Retailer shall not alter the Goods without the prior written permission of the Supplier which may be granted on such conditions as the Supplier shall consider appropriate.

  • Should the Retailer require alterations, then the Retailer may request the Supplier provide such alterations, and the Supplier may accept or reject such request at its sole discretion. If the Supplier accepts such request then the Supplier will provide an additional quote (with additional fees required to be paid as advised by the Supplier) and if accepted by the Retailer, an invoice will be issued to accommodate these amendments.

  • Any alterations to the Goods will be at the Retailers risk, and the Retailer will be solely responsible for ensuring such altered Goods are of acceptable quality and fit for purpose.

  1. Equipment

  • In the event the Supplier supplies clothing racks or other equipment with the supply of Goods (Equipment) the Retailer acknowledges and agrees that:

    • notwithstanding anything to the contrary express or implied in these Terms, the Supplier retains full title to the Equipment and title will not at any time pass to the Retailer;

    • the Equipment is solely to be used with the Supplier’s Goods, and in the manner as instructed by the Supplier;

    • it holds the benefit of the Retailer’s insurance of the Equipment on trust for the Supplier, and must pay to the Supplier the proceeds of any insurance in the event of the Equipment being lost, damaged or destroyed;

    • it will if requested by the Supplier return the Equipment to the Supplier or otherwise grant the Supplier unimpeded access to the location where the Equipment is located to collect the Equipment (without liability for trespass or any resulting damage);

    • it will not agree, attempt, offer or purport to sell, assign, sub-let, lend, pledge, mortgage, let, hire or otherwise part or attempt to part with personal possession of or otherwise deal with the Equipment without the express written consent of the Supplier;

    • it holds the proceeds, book debts and accounts receivable arising from selling or hiring of the Equipment on trust for and as agent for the Supplier immediately when they are receivable or are received.

  • Where the Equipment is required to be left and stored at the store site of the Retailer, the Retailer shall ensure the security and safe keeping of such Equipment. Equipment left at the site will be at the risk of the Retailer (however ownership shall at all times remain with the Supplier).

  • Except to the extent caused or contributed to by the Supplier, the Retailer is solely responsible for any damage that occurs to the Equipment whilst it is at the Retailer’s store site or in their possession.

  1. Termination

  • The Supplier may cancel all or part of any Purchase Order to which these Terms applies by providing written notice to the Retailer. On giving such notice in accordance with this clause, and provided the Retailer is not in default of these Terms, the Supplier will refund any amounts paid with respect to such Goods to the extent of the Supplier’s failure to supply. This is the sole remedy available to the Retailer. The Supplier shall not be liable for any Loss or damage whatsoever arising from such cancellation.

  • Without limiting clause 1 the Supplier may also in its absolute discretion, by written notice to the Retailer, immediately terminate these Terms or all or any part of a Purchase Order (and shall have no liability for any Loss suffered by the Retailer due to the termination):

    • the Retailer becomes subject to an Insolvency Event;

    • the Retailer breaches any term of these Terms; or

    • the Retailer is subject to an Insolvency Event,

in which case the Retailer will not be entitled to a refund of any amount paid and must immediately on demand pay to the Supplier the amount which would have otherwise been paid under any Purchase Order had it not been terminated.

  • The Retailer may terminate these Terms if the Supplier breaches a material term of these Terms and fails to rectify the breach within a reasonable time (being not less than 14 days) of being given a notice to do so. For the avoidance of doubt, the Supplier will not be considered to be in breach of these Terms due to delays in delivery or changes to the Goods which are within scope or reasonable given industry standards.

  1. Effect of termination

  • On termination of these Terms:

    • the Retailer must immediately cease selling the Goods and using the Supplier’s intellectual property;

    • the Supplier will accept no further Purchase Orders, and will at its option either:

      1. fulfil outstanding Purchase Orders, at which case, the terms of these Terms (including in relation to payment) will continue until the completion of those Purchase Orders; or

      2. cancel outstanding Purchase Orders and provide a refund to the Retailer (less any costs);

    • all amounts owed to the Supplier by the Retailer under these Terms become immediately due and payable in accordance with 3(b).

  • Any rights which may have accrued to either party prior to the termination shall be unaffected by the termination.

  1. intellectual property

  • The Retailer acknowledges that the Supplier shall retain all title, interest and rights (including Intellectual Property Rights) which subsist in or which may be obtained from the following:

    • the Goods and any specifications of the Goods (whether they are designed, drawn or developed alone by the Supplier or with the assistance of the Retailer or solely by the Retailer);

    • any material the Supplier creates which is based upon or derived from materials supplied by the Retailer or any Intellectual Property Rights owned by or licensed to the Retailer or is made to the design or at the direction of the Retailer (including without limitation any Marketing Materials); and

    • any additional or further intellectual property created, formulated or discovered by either party in connection with the Goods (including any developments, improvements, revisions and updates to the Goods) whether or not the Supplier and/or Retailer contributed to them, and whether or not the addition was at the direction or suggestion of the Retailer,

(collectively the Supplier Intellectual Property).

  • The Retailer undertakes not to:

    • take or permit or omit any action which would or might:

      1. invalidate or put in dispute the Supplier’s title to the Supplier Intellectual Property or any part of it;

      2. oppose any application for registration or invalidate any registration of the Supplier Intellectual Property or any part of it (including without limitation a registration of the Supplier Intellectual Property as a patent worldwide);

  • support any application to remove or undo the Supplier’s title in the Supplier Intellectual Property or any part of it; or

  1. assist any other person directly or indirectly in any of the above;

  • use, copy, reproduce, distribute, export, adapt, alter, modify, translate, create derivate works, or publicly display any of the Supplier Intellectual Property anywhere in the world, without the prior written consent of the Supplier.

  • The Retailer will promptly sign all documents and do all things necessary to register, vest or transfer any interest or ownership in such additional or further intellectual property to the Supplier.

  • In the event the Supplier provides the Retailer with access to the Supplier Intellectual Property and/or Confidential Information, the Supplier grants the Retailer a revocable, non-exclusive, non-assignable or transferable licence to use the Supplier Intellectual Property and/or Confidential Information solely for the purpose of fulfilling its obligations under these Terms during the Term.

  • Continuous Obligations

The obligations contained in this clause shall endure for so long as a party shall have an interest in any or all of its Intellectual Property Rights.

  1. Confidentiality

  • Each party (Recipient) must keep secret and confidential and not disclose any information relating to another party or its business (which is or has been disclosed to the Recipient by the other party, its representatives or advisers), these Terms or its terms (Confidential Information), except:

    • where the information is in the public domain as at the date of these Terms (or subsequently becomes in the public domain other than by breach of any obligation of confidentiality binding on the Recipient);

    • if the Recipient is required to disclose the information by applicable law or the rules of any recognised stock exchange or other document with statutory content requirements, provided that the Recipient has, to the extent practicable having regard to those obligations and the required timing of the disclosure, consulted with the provider of the information as to the form and content of the disclosure;

    • where the disclosure is expressly permitted under these Terms;

    • if disclosure is made to its officers, employees and professional advisers to the extent necessary to enable the Recipient to properly perform its obligations under these Terms, in which case the Recipient must ensure that such persons keep the information secret and confidential and do not disclose the information to any other person;

    • where the disclosure is required for use in legal proceedings regarding these Terms; or

    • if the party to whom the information relates has consented in writing before the disclosure.

  • Each Recipient must ensure that its directors, officers, employees, agents, representatives and Related Bodies Corporate comply in all respects with the Recipient's obligations under this clause.

  • A party may not make or send any public announcement, communication or circular relating to the subject matter of these Terms unless the other party has consented to the announcement, communication or circular in writing (including the timing, form and content of that disclosure).

  1. Disclaimer

  • The Supplier supplies the Goods on an "as is" basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. The Retailer relies on the Goods at its own risk.

  • Without limiting the other terms of this clause, the Retailer acknowledges and agrees that:

    • any advice, recommendation, information, assistance or service provided by the Supplier in relation to the Goods supplied is given in good faith, is based on the Supplier’s own knowledge and experience and it shall be the responsibility of the Retailer to confirm the accuracy and reliability of the same in light of the use to which the Retailer makes or intends to make of the Goods. Such advice, recommendations, information and assistance is followed or acted upon entirely at the Retailer’s own risk, and accordingly the Supplier shall not be liable for any such advice or recommendation;

    • tolerances of sizes of materials as advised by the Supplier shall apply to the specifications (including dimensions and measurements) of the Goods. Goods will not be deemed defective if their specifications fit within these tolerances. The Supplier will make these known to the Retailer at the time of build;

    • the Supplier reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Supplier’s specification, which do not materially affect their quality or performance;

    • Goods supplied may exhibit variations in colour, texture, finish, markings and may fade or change colour over time.

  • The only warranties and representations that the Supplier makes in respect of the Goods are those set out in these Terms. The Retailer acknowledges and agrees that the Supplier has not made any other representations in respect of the Goods

  1. Indemnity

  • Except to the extent caused or contributed to by the breach of these Terms by the Supplier, the Retailer indemnifies the Supplier against any direct losses, liabilities, costs, charges or expenses and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses suffered or incurred by the Supplier arising out of or in connection with:

    • any breach or negligent performance or non-performance of these Terms by the Retailer, including any failure to pay any fees on time;

    • any claim made against the Supplier and/or the Retailer by a third party:

      1. for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Retailer’s marketing, sale and/or distribution of the Goods;

      2. for death, personal injury or damage arising out of or in connection with defective Goods,

to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of these Terms, or the acts or omissions of the Retailer or the Retailer’s Personnel;

  • arising from any event or cause, beyond the control of the Supplier;

  • any reliance by the Retailer or a third party on the Goods or any advice, information or deliverable provided in connection with the Agreement (except for reliance on information contained in these Terms);

  • any defect caused or contributed to by a failure of the Retailer (as well as any Personnel or service provider engaged by the Retailer or any other third party) to follow any procedure recommended by the Supplier or by the manufacturer of any materials used by the Supplier in the Goods; and

  • any act, omission or wilful misconduct of the Retailer (as well as any staff member, agent, contractor or service provider engaged by the Retailer or any other third party); and

  • the enforcement of these Terms.

  • The Retailer must make payments under this clause:

    • in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and

    • in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds.

  • The indemnities in this clause:

    • are continuing obligations of the Retailer, independent from its other obligations under these Terms and survive termination or expiry of these Terms; and

    • are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting the liability of the Retailer.

  1. Exclusion and Limitation of Liability

  • Subject to the other terms of these Terms, the Supplier excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Goods that are not expressly set out in these Terms to the maximum extent permitted by law.

  • Subject to the other terms of this clause, the Supplier's maximum aggregate liability to the Retailer, is limited to:

    • the remedies in clause 9 in respect of Goods deemed defective by the Supplier and rejected by the Retailer under clause 9;

    • the actual charges paid by the Retailer to the Supplier under these Terms in the 1-month period preceding the matter or event giving rise to the claim for any other loss or damage or injury arising out of or in connection with these Terms, including any breach by the Supplier of these Terms however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis.

  • Subject to the other terms of this clause, each party excludes any liability to the other, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with these Terms, including any loss of profits; loss of sales or business; loss of production; loss of agreements or contracts; loss of business opportunity; loss of anticipated savings; loss of or damage to goodwill; loss of reputation; or loss of use or corruption of software, data or information.

  • Notwithstanding anything else in this clause, the Supplier’s liability will be reduced to the extent the loss or damage is caused by or contributed to by the Retailer or the Retailer’s Personnel.

  • Nothing in these Terms is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of the Supplier in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.

  • The Supplier will not be liable for any claim under or in relation to or arising out of these Terms including a breach of any warranty unless:

    • the Retailer has first made a claim under any insurance policy held by the Retailer that may cover that claim; and

    • that claim has been denied in whole or partly by the relevant insurer.

  • If the Retailer recovers any amount under an insurance policy in respect of a claim under or in relation to or arising out of these Terms and that amount is less than the loss or damage incurred by the Retailer, the amount of the shortfall will be the amount of the Retailer’s loss for the purposes of these Terms.

  1. Force majeure

  • The Supplier will not be in breach of these Terms or liable to the Retailer for any Loss incurred by the Retailer as a direct result of the Supplier failing or being prevented, hindered or delayed in the performance of its obligations under these Terms where such prevention, hindrance or delay results from a Force Majeure Event.

  • If a Force Majeure Event occurs, the Supplier must notify the Retailer in writing as soon as practicable and that notice must state the particulars of the Force Majeure Event and the anticipated delay.

  • On providing the notice in clause 2, the Supplier will have the time for performance of the affected obligations extended for a period equivalent to the period during which performance has been delayed, hindered or prevented, however, the Supplier must continue to use all reasonable endeavours to perform those obligations.

  • The performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.

  1. GST

  • Words and phrases used in this clause 23 that have defined meanings in the GST Law have the same meaning as in the GST Law, unless the context indicates otherwise.

  • Unless expressly stated otherwise, the consideration for any supply under or in connection with these Terms is exclusive of GST.

  • To the extent that any supply made under or in connection with these Terms is a taxable supply (other than any supply made under another agreement that contains a specific provision dealing with GST), the amount payable by the recipient is the consideration provided under these Terms for that supply (unless it expressly includes GST) plus an amount (Additional Amount) equal to the amount of that consideration (or its GST-exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply.

  • The recipient must pay the Additional Amount at the same time as the consideration to which it is referable, and on the issue of an invoice relating to the supply.

  • Whenever an adjustment event occurs in relation to any taxable supply to which clause 3 applies:

    • the Supplier must determine the amount of the GST component of the consideration payable; and

    • if the GST component of that consideration differs from the amount previously paid, the amount of the difference must be paid by, refunded to or credited to the recipient, as applicable.

  • If either party is entitled under these Terms to be reimbursed or indemnified by the other party for a cost or expense incurred in connection with these Terms, the reimbursement or indemnity payment must not include any GST component of the cost or expense to the extent that the cost or expense is the consideration for a creditable acquisition made by the party being reimbursed or indemnified, or by its representative member.

  1. Special Conditions

  • The Special Conditions contained in the Purchase Order form part of these Terms. In the event of any inconsistency or conflict between the Special Conditions and any other clause of these Terms, the Special Conditions shall prevail to the extent of the inconsistency.

  1. Notices

25.1      All notices authorised or required under these Terms to be given by a party to the other shall be in writing sent by email or delivered personally or sent by pre-paid registered post and in each case addressed to the other party at that party's Address for Service or as the case may be at such other address as a party may from time to time notify to the other.

25.2      The following shall constitute proof of receipt:

  • proof by posting by registered post; or

  • proof of dispatch by email.

25.3      Receipt of a notice given under these Terms will be deemed to occur:

  • in the case of a communication sent by pre-paid registered post, on the third business day after posting;

  • in the case of an email, on the business day immediately following the day of dispatch.

25.4      If a notice is sent via post, it must also be sent via email.

26.        OWNERSHIP

  • Notwithstanding anything to the contrary express or implied in these Terms, the parties agree that the Supplier retains full title to the Goods and title will not at any time pass to the Retailer until the Price for the Goods and all other amounts owing in respect of the Goods other otherwise payable under these Terms are paid to the Supplier notwithstanding:

    • the delivery of the Goods to the Retailer;

    • the resale of the Goods; and/or

    • the possession and use of the Goods by the Retailer.

  • Prior to ownership passing to the Retailer, the Retailer acknowledges and agrees that:

    • it will not agree, attempt, offer or purport to sell, assign, sub-let, lend, pledge, mortgage, let, hire or otherwise part or attempt to part with personal possession of or otherwise deal with the Goods without the express written consent of the Supplier;

    • it will, if requested by the Supplier, return the Goods to the Supplier following non-fulfilment of any obligation of the Retailer (including payment of monies) without limiting any other right the Supplier may have;

    • it will deliver up the Goods to the Supplier upon demand by the Supplier and give the Supplier and its agents and/or authorised representatives the right to enter any premises occupied by the Retailer and any premises where it believes any Goods may be stored (without liability for trespass or any resulting damage) and to use the name of the Retailer and to act on its behalf, if necessary, to recover possession of the Goods and agrees to indemnify the Supplier and its agents and/or authorised representatives from any damage, injury and/or Loss arising from such recovery or attempted recovery of the Goods from the Retailer’s possession or control;

    • it holds the proceeds, book debts and accounts receivable arising from selling or hiring of the Goods on trust for and as agent for the Supplier immediately when they are receivable or are received; and

    • the Supplier may recover as a debt due and immediately payable by the Retailer all amounts owing by the Retailer to the Supplier in any respect even though title to the Goods has not passed to the Retailer.

  1. Personal Property Securities

27.1      For Retailers who are on approved credit terms, or where the Price of the Goods is not otherwise paid upfront, the terms of this clause will apply.

27.2      The Retailer acknowledges and agrees that notwithstanding any other provision of these Terms:

(a)         the PPSA applies to any supply of Goods by the Supplier to the Retailer;

(b)         the Goods are used by the Retailer only for commercial purposes and are not used by the Retailer for personal, domestic or household purposes;

(c)          by agreeing to and/or accepting or adopting these Terms the Retailer grants to the Supplier:

  • a purchase money security interest in the Goods (on the basis that the Goods are sold on retention of title terms); and

  • a security interest over all present and after-acquired property of the Retailer ("Retailer's Property"),

to secure the Supplier’s interest in the Goods and all moneys owing or payable by the Retailer under these Terms including payment of the Price and any other moneys payable by the Retailer to the Supplier from time to time on any account whatsoever;

(d)         if a purchase money security interest is not able to be claimed by the Supplier in respect of the Goods for any reason,  the Supplier will have a security interest in the Goods;

(e)         the Retailer agrees that the Supplier’s security interest in Goods and the Retailer's property covered by these Terms may be registered on the PPS Register and the Retailer agrees to do all things necessary and required by the Supplier to effect registration of the Supplier’s security interest on the PPS Register in order to give the Supplier’s security interest the best priority possible and anything else the Supplier requests the Retailer to do in connection with the PPSA without delay;

(f)           the Retailer warrants that all information provided by the Retailer to the Supplier, including but not limited to the Retailer’s details, including the entity, name, ACN or ABN and address set out in the Purchase order is correct in all respects and must not change its name, address or other details set out in the Purchase Order without providing the Supplier with at least 20 business days prior written notice;

(g)         the Retailer unconditionally and irrevocably appoints the Supplier as its attorney to do any of acts and matters set out in this clause in the event that the Retailer fails, delays or declines to execute such documents or do such acts;

(h)         the Retailer agrees that it will not grant a security interest or other encumbrance in the Goods whether under the PPSA or any other law to a third party unless it has obtained the prior written consent of the Supplier, which the Supplier may refuse to provide or grant in its absolute and unfettered discretion. The Supplier may request and the Retailer must provide any information that the Supplier requires, acting reasonably, in order to fully consider whether to grant its consent;

(i)           the Supplier’s security interest in the Goods and the Retailer's Property extends to any proceeds in all present and after acquired property including without limitation book debts and accounts receivable arising from the selling or hiring of the Goods and/or the Retailer's Property by the Retailer;

(j)           it has received value as at the date of first delivery of the Goods and/or provision of the Services and has not agreed to postpone the time for attachment of the security interest (as defined in the PPSA) granted to the Supplier under these Terms; 

(k)          the Goods are located in Australia at the date of the supply of the Goods and the Retailer warrants that the Goods will remain located in Australia for the duration of the Agreement;

(l)           neither the Supplier nor the Retailer will disclose any information to any interested person unless required to do so under the PPSA;

(m)        the Retailer waives its right to receive any notice (including notice of a verification statement) that is required by the PPSA unless the notice is required by the PPSA and cannot be excluded;

(n)         the Retailer agrees not to exercise its rights to make any request of the Supplier under section 275 of the PPSA. However this does not limit the Retailer's rights to request information other than under section 275 of the PPSA. Neither the Retailer nor the Supplier will disclose any information of the kind mentioned in section 275(1) of the PPSA unless section 275(7) of the PPSA applies;

(o)         to the extent permitted by law, the parties contract out of and the Retailer waives its rights under the following provisions of Chapter 4 of the PPSA:

  • section 95 (notice of removal of accession), to the extent that it requires the Supplier to give a notice to the Retailer;

  • section 96 (when a person with an interest in the whole may retain an accession);

  • section 121(4) (enforcement of liquid assets - notice to grantor);

  • section 125 (obligation to dispose of or retain collateral);

  • section 129(2) (disposal by purchase);

  • section 130 (notice of disposal), to the extent that it requires the Supplier to give a notice to the Retailer;

  • section 132(3)(d) (contents of statement of account after disposal);

  • section 132(4) (statement of account if no disposal);

  • section 142 (redemption of collateral); and

  • section 143 (reinstatement of security agreement).

(p)         will not give (or allow any person to give) to the Supplier a written demand requiring the Supplier to register a financing change statement under the PPSA or enter into (or allow any other person to enter into) the PPS Register a financing change statement under the PPSA; and

(q)         a default under any other security agreement under which it has granted a security interest to any other party in respect of the Goods is deemed to be a breach of these Terms.

27.3      Further Supplies/Services

The parties acknowledge and agree that any supply of Goods or performance of Services of any kind by the Supplier to the Retailer which is not specifically set out in the Purchase Order but for which the Supplier has or later issues a Tax Invoice or any other documentation to the Retailer is deemed to form part of the Agreement and is subject to the terms of the Agreement.

27.4      Enforcement

The enforcement provisions contained in these Terms are in addition to any rights available to the Supplier under the PPSA and apply to the maximum extent permitted by law.

27.5      Power of Attorney

The Retailer irrevocably nominates constitutes and appoints the Supplier and/or its officers and/or its nominees severally to be the true and lawful attorneys of the Retailer on behalf of and in the name of the Retailer to do all things necessary and sign all such documents as may be necessary to deal with the Goods in accordance with the enforcement provisions of these Terms, the PPSA or otherwise, if the Retailer is in default of these Terms.

27.6      Interpretation

A term used in this clause is taken to have the meaning defined under the PPSA.

  1. Guarantee

  • In consideration of the Supplier agreeing to be bound by these Terms, the Guarantor, and where there is more than one Guarantor the Guarantors jointly and severally, as a principal obligor and not merely as surety, irrevocably and unconditionally guarantees to the Supplier (and indemnifies the Supplier in respect of) the due and punctual performance of all the obligations of the Retailer under or arising out of the Agreement including (without limitation):

    • the prompt payment of all amounts payable by the Retailer under the Agreement;

    • the prompt performance of all other obligations of the Retailer under these Terms;

    • the prompt payment of all amounts for which the Retailer may become liable in respect of any breach of these Terms.

  • The Guarantor agrees that the Guarantor's obligations under this guarantee and indemnity shall be unconditional irrespective of:

    • the validity, regularity and enforceability of any provision of these Terms;

    • the absence of any action by the Supplier or the Retailer to enforce these Terms;

    • the waiver or consent of the Supplier in respect of any provision of these Terms;

    • the recovery of any judgment against the Retailer;

    • any action to enforce judgment against the Retailer;

    • any variation of the terms of these Terms;

    • any time or indulgence granted to the Retailer by the Supplier;

    • the winding up or dissolution of the Retailer;

    • any change in the status, function, control or ownership of the Retailer;

    • any consolidation, merger, conveyance or transfer by the Retailer;

    • any other dealing, transaction or arrangement between the Supplier and the Retailer; or

    • any other circumstances which might otherwise constitute a legal or equitable discharge of or defence to a surety.

  • This guarantee and indemnity shall be a continuing guarantee and indemnity which shall not be discharged except by complete performance of all the obligations of the Retailer under or arising out of these Terms.

  • The Supplier may require the Guarantor to make a payment or perform any other obligation of the Retailer under or arising out of these Terms:

    • without first asking the Retailer to do so; and

    • irrespective of whether the payment or other obligation would be enforceable against the Retailer.

  • The Guarantor agrees to pay and indemnify the Supplier against all transfer duty (if any) in respect of this guarantee and indemnity.

  1. General provisions

  • Variation

An amendment or variation of any term of these Terms must be in writing and signed by each party.

  • No Waiver

    • No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with these Terms unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.

    • Words or conduct referred to in clause 2(a) include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.

  • Assignment, Novation and Other Dealings  

    • The Supplier may assign or novate any or all of its rights, interests or obligations that arise out of or under these Terms without the consent of the Retailer.

    • Any rights of the Retailer that arise out of or under these Terms are not assignable or capable of novation by the Retailer without the prior written consent of the Supplier, whose consent must not be unreasonably withheld.

  • Counterparts

These Terms may be executed in any number of counterparts. All counterparts taken together constitute one instrument. A party may execute these Terms by signing any counterpart. The date on which the last counterpart is executed is the date of these Terms. Communication of the fact of execution to the other parties may be made by sending evidence of execution by email.

  • Costs

The parties must bear their own costs of and incidental to the negotiation, preparation and execution of these Terms.

  • Severability

    • If the whole or any part of a provision of these Terms is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.

    • Clause 6(a) does not apply if the severance of a provision of these Terms in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under these Terms.

  • No Merger

On completion or termination of these Terms, the rights and obligations of the parties set out in these Terms will not merge and any provision that has not been fulfilled remains in force.

  • Survival

Any clause which by its nature is intended to survive termination or expiry of these Terms will survive such termination or expiry.

  • Remedies Cumulative  

Except as provided in these Terms and permitted by law, the rights, powers and remedies provided in these Terms are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of these Terms.

  • Entire Agreement  

These Terms states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.

  • No Reliance  

No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in these Terms.

  • Governing Law and Jurisdiction  

    • These Terms is governed by the law in force in the State.

    • Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in the State and courts of appeal from them in respect of any proceedings arising out of or in connection with these Terms.

    • Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in clause 12(b) on the basis that:

      1. any proceeding arising out of or in connection with these Terms has been brought in an inconvenient forum; or

      2. the courts described in clause 12(b) do not have jurisdiction.