Terms And Conditions For Wholesale Accounts
Definition and interpretation
In this agreement the following definitions apply, except where the context otherwise requires:
Business Day means a day that is not a Saturday, a Sunday, nor a public holiday in the principal place of business of a party.
Confidential Information means all know-how, financial information, business plans and other information in whatever form, including designs, samples, patents, prototypes, trade secrets, drawings and any other materials or information of whatever description which a party regards as confidential, proprietary or of a commercially sensitive nature that may be in the possession of a party’s employees or management. The following are exceptions to such information:
- information which is already lawfully in the public domain or enters the public domain otherwise than as a result of an unauthorised disclosure;
- information which is or becomes lawfully available to the recipient party from a third party who has the lawful power to disclose such information to the recipient party on a non-confidential basis; and
- information which is rightfully known by the recipient party (as shown by its contemporaneous written record) prior to the date of disclosure.
Force Majeure means an act of God, fire, lightning, explosions, ash, flood or other natural disaster, subsidence, act of terrorism, insurrection or civil disorder or military operations, power or gas shortage, government or quasi-government restraint, expropriation, prohibition, intervention, direction or embargo, inability or delay in obtaining governmental or quasi-governmental approvals, consents, permits, licences or authorities, strikes, lock-outs or other industrial disputes of any kind and any other cause, whether similar or not to the foregoing, outside of the affected party’s control.
G’Day Baby means G’Day Baby Pty Ltd ACN 164 522 070, t/as G’Day Baby & Kids.
Insolvency Event means circumstances in which a party:
- is unable to pay its debts as they fall due;
- makes or commences negotiations with a view to making, a general re-scheduling of its indebtedness, a general assignment, scheme of arrangement or composition with its creditors;
- takes any corporate action or any steps are taken or legal proceedings are started for:
(i) its winding-up, dissolution, liquidation, or re-organisation, other than to reconstruct or amalgamate while solvent on terms approved by the other party (which approval will not be unreasonably withheld); or
(ii) the appointment of a controller, receiver, administrator, official manager, trustee or similar officer of it or of any of its revenues and assets; or
- seeks protection or is granted protection from its creditors, under any applicable legislation.
Intellectual Property Rights means any and all intellectual and commercial property rights throughout the world including, without limitation, copyright, the Trade Marks and any other trade marks whether registered or unregistered, designs, patents, the right to keep information confidential, know-how and trade secrets, whether or not now existing and whether or not registered or registrable and includes applications for and any right to apply for registration of such rights and includes all renewals and extensions.
List Price means the price of Products as set by G’Day Baby in its Price List current at the date an order is placed by Purchaser.
Outlets means the Purchaser’s online and physical stores and social media accounts listed in the Schedule and approved by G’Day Baby.
Price List means the price list issued by G’Day Baby as amended from time to time.
Products means the products offered for wholesale sale to Purchaser under this agreement.
Purchaser means the organisation purchasing products under this agreement whose details are provided in the Schedule.
Retailer means any entity that purchases Products from Purchaser for the purpose of resale.
Trade Marks means all registered or unregistered trade marks of G’Day Baby.
- G’Day Baby agrees to sell the Products to Purchaser for resale to Retailers or consumers via the Outlets in accordance with these terms and conditions.
- The agreement starts on the day it is signed by Purchaser and will continue until terminated in accordance with clause 8.
- Purchaser can only sell Products via or at an Outlet of which the Purchaser is the sole owner.
- Purchaser must not knowingly sell or supply the Products by or through an online auction website or online store such as eBay, Amazon, Gumtree or other similar site without G’Day Baby’s prior written consent.
- G’Day Baby may at any time stop manufacturing or supplying a Product or change the specification of a Product and is under no liability to the Purchaser if it does so. G’Day Baby will give notice to Purchaser if it stops manufacturing a Product or changes the specification.
- Where Purchaser sells the Products to a Retailer, Purchaser’s agreement with the Retailer must have corresponding clauses regarding resale of Products, ownership of G’Day Baby’s Intellectual Property Rights and use of Confidential Information as set out in this agreement and corresponding obligations and prohibitions as those set out in clauses 6.1 and 6.2.
Order and supply of Products
- Purchaser will place all orders for Products with G’Day Baby in writing specifying the quantity of Products required and a description of the Products as per the Price List.
- G’Day Baby will use its best endeavours to supply Products to Purchaser in accordance with orders placed. Any time for delivery of Products quoted by G’Day Baby is approximate only and G’Day Baby will not be liable to Purchaser for failure to supply the Products at such time no matter what the reason, including negligence by G’Day Baby.
- Purchaser cannot cancel an order once the Products have been despatched from G’Day Baby’s premises to Purchaser. If Purchaser cancels an order or any part of an order, G’Day Baby is not obliged to refund any moneys paid in relation to that order.
- Purchaser must notify G’Day Baby within 5 Business Days of delivery if the goods delivered do not match the order and provide details of the error made. G’Day Baby will work with Purchaser to rectify the order and deliver the correct Products.
Price and payment
- Products sold by G’Day Baby to Purchaser under this agreement will be sold at G’Day Baby’s List Price plus the cost of transportation if supplied by G’Day Baby to Purchaser’s delivery address, insurance for Products if obtained from G’Day Baby, packaging materials and all applicable federal, state or local taxes which G’Day Baby is legally liable to pay. The price will not include any taxes or other amounts which Purchaser is required to pay and Purchaser will remain responsible for those other amounts including all other customs, taxes and duties.
- G’Day Baby may change its List Price on 30 days’ prior notice to Purchaser and the List Price so notified to Purchaser will apply to all Products ordered by Purchaser after the end of the 30 day notice period.
- Purchaser must pay a non-refundable deposit of 50% of the List Price (current at the time the order is placed) when it places an order for Products. Risk in the Products will pass once the Products leave G’Day Baby’s premises or the premises used by G’Day Baby as the place from which Products are transported. Purchaser will be responsible for insuring the Products after that time and can either arrange for this through their own insurer or purchase insurance through G’Day Baby. If insurance is purchased through G’Day Baby, the amount of the insurance will be added to the invoice referred to in clause 4.1.
- G’Day Baby will issue an invoice as confirmation that it has accepted Purchaser’s order. The invoice will be issued with the details Purchaser has supplied to G’Day Baby. Purchaser must pay the balance of moneys outstanding to G’Day Baby prior to G’Day Baby despatching the Products for delivery to Purchaser. Purchaser must not deduct any amounts from any sum owing to G’Day Baby, whether by way of set-off or otherwise.
- Unless agreed prior to payment, all payments must be made by Visa, Mastercard, American Express or PayPal. Purchaser must not file a chargeback or reverse payment once made.
Damaged or defective Products
- Purchaser must inspect the Products within 5 Business Days of delivery and promptly notify G’Day Baby if any Products are defective or damaged and give G’Day Baby details of the damage or defect (including by way of photographs if so requested by G’Day Baby).
- Purchaser will comply with all reasonable directions of G’Day Baby in relation to dealing with and possible return of the damaged or defective Products. G’Day Baby is not liable for any damage or defect arising once the Products have been delivered to Purchaser or arising out of Purchaser’s handling, storage or other negligent act.
- Except as required by law, G’Day Baby will not be liable for any damage to Products caused by fair wear and tear or through failure to care for the Products in accordance with G’Day Baby’s care instructions.
Parties’ obligations and prohibitions
- Purchaser must:
- use its best endeavours to sell the Products;
- in all matters act in good faith towards G’Day Baby;
- comply with all reasonable directions of G’Day Baby relating to the use of G’Day Baby’s name and Trade Marks in any advertising, promotional or other marketing material prepared by the Purchaser to promote the sale of the Products;
- ensure that the labelling, packaging and storage of Products and the promotion and sale of Products complies with all relevant laws;
- keep enough stock of the Products, where in G’Day Baby’s judgment, it is appropriate, to meet orders for the Products promptly.
- Purchaser must not:
- promote or launch any of the Products until on or after G’Day Baby’s launch date for that Product;
- tamper with, remove or obliterate any Trade Marks that are on the Products or their packaging;
- represent or warrant any matter about the Products unless previously approved in writing by G’Day Baby or contained in G’Day Baby’s current literature;
- make any representations that it is the manufacturer of the Products;
- engage in any conduct which endangers the capacity of any Intellectual Property Rights to be protected by patent, trade mark or other registration, or threatens the validity of any such registration.
- G’Day Baby may provide Purchaser with a suggested retail price list for guidance purposes only.
- G’Day Baby can provide packaging to Purchaser at an additional charge.
- G’Day Baby will provide Purchaser with images needed by Purchaser so that it can promote the Products either in print or online. Purchaser must obtain G’Day Baby’s prior written approval for any other images Purchaser wants to use. If the images feature any of the Products, the G’Day Baby name or Trade Marks, Purchaser will only be able to use them during the term of this agreement.
Intellectual Property Rights
- All Intellectual Property Rights in the Products, and any materials supplied by G’Day Baby to Purchaser are the property of G’Day Baby. Purchaser must not claim a right or property in an Intellectual Property Right or any imitation of it, or try to register an Intellectual Property Right in any part of the world.
- G’Day Baby grants to Purchaser for the term of this agreement a non-exclusive licence to use the Intellectual Property Rights in a form and manner approved by G’Day Baby and in the exercise of Purchaser’s obligations to promote and sell Products.
- Purchaser acknowledges that G’Day Baby owns the Trade Marks and the goodwill associated with and generated through the use of the Trade Marks.
Term and Termination
- Either party may terminate this agreement by giving the other party 30 days’ written notice.
- Either party may terminate this agreement immediately by written notice to the other party:
- if that other party breaches a material term of this agreement and fails to remedy the breach within 14 Business Days after being given notice of the breach;
- if that other party breaches a material term of this agreement which is not capable of remedy; or
- an Insolvency Event occurs in relation to the other party.
- On termination of this agreement for whatever reason Purchaser may have a run out period of 30 days to sell any Products still in Purchaser’s possession and to cease use of the Trade Marks.
- Termination of this agreement for any reason does not affect any rights of the parties accrued prior to termination or the provisions of clauses which either expressly or by implication are intended to have effect after the termination.
- Where one party to this agreement (Discloser) discloses Confidential Information to the other party (Recipient), the Recipient must:
- use the Discloser’s Confidential Information solely for the purposes of performing its obligations under this agreement;
- keep all Discloser’s Confidential Information confidential and ensure that its employees, officers and agents do not use, any Confidential Information for any purpose other than compliance with its obligations under this agreement; and
- not disclose to any person, other than those employees, officers and agents who need to have access to the Confidential Information for the purpose of performing their obligations under this agreement, and who have been made aware of the requirements of this clause and who are also subject to an undertaking of confidence.
- The Recipient may disclose Discloser’s Confidential Information if the disclosure is required by law.
- The Recipient must, on termination or expiration of this agreement or on request by Discloser, return, destroy or delete, all the Discloser’s Confidential Information that is in the Recipient’s possession or control.
Liability and indemnity
- Except as expressly set out in this agreement, and subject to any terms, guarantees or warranties that by law may not be excluded, all terms, guarantees or warranties implied or imposed by law or otherwise relating to the Products or supply of Products by G’Day Baby under this agreement are excluded. If G’Day Baby is liable for breach of an implied or imposed term, guarantee or warranty, G’Day Baby’s liability is, at G’Day Baby’s option, limited to:
- the replacement of the Products or the supply of equivalent products;
- the repair of the Products;
- the payment of the cost of replacing the Products or acquiring equivalent products; or
- the payment of the cost of having the Products repaired.
- To the extent permitted by law, G’Day Baby will not be liable for any special, indirect or consequential loss or damage (including personal injury), loss of profit or opportunity arising out of or in connection with the Products or use of the Products, including as a result of the late or non-supply of Products, whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
- To the maximum extent permitted by law, the aggregate liability of G’Day Baby under or in relation to this agreement (including indemnities) arising out of all or any act, omission or event or series of related acts, omissions or events will not exceed the dollar value of the Products provided by G’Day Baby to Purchaser which directly led to G’Day Baby’s liability arising.
- Purchaser agrees to defend, indemnify and hold harmless G’Day Baby, its directors, subsidiaries, affiliates, licensors, employees, agents and independent contractors against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable legal fees) arising out of or related to any claims, including negligence, made by third parties against G’Day Baby arising out of Purchaser’s breach or alleged breach of this agreement.
- If the performance of this agreement or any obligation under this agreement is prevented, restricted, or interfered with by reason of Force Majeure, the affected party, upon giving prompt notice to the other party, is excused from such performance to the extent of such prevention, restriction, or interference. The affected party must use its best efforts to avoid or remove the Force Majeure or to limit the impact of the event on its performance and must continue performance with the utmost dispatch when the Force Majeure is removed.
- A notice given under this agreement must be in writing and sent to the recipient at the address specified at the beginning of this agreement. A notice is deemed to be received:
- if sent by hand, when delivered to the addressee;
- if by post in Australia, 5 Business Days from and including the date of postage/on delivery to the addressee; or
- if by facsimile transmission, on receipt by the sender of an acknowledgement or transmission report generated by the machine from which the facsimile was sent;
but if the delivery or receipt is on a day which is not a Business Day or is after 5:00pm (addressee’s time) it is deemed to be received at 9:00am on the following Business Day.
- Purchaser may not assign any of its rights under this agreement without the prior written consent of G’Day Baby.
- This agreement is governed by the laws of New South Wales and the parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of New South Wales.
- If part or all of any of this agreement is illegal or unenforceable it will be severed from this agreement and will not affect the continued operation of the remaining provisions of this agreement.
- This agreement contains the entire agreement of the parties with respect to its subject matter. This agreement can only be amended, supplemented or waived in writing signed, by both parties. The failure of either party to enforce, or the delay by either party in enforcing, any of its rights shall not be deemed a continuing waiver or a modification of this agreement.
- This agreement does not constitute any party the agent of the other or imply that the parties intend constituting a partnership, joint venture or other form of association in which any party may be liable for the acts or omissions of another. No party has authority to pledge the credit of another.