In these Terms:
ACL means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended.
Confidential Information means:
(a) all processes and procedures, notes, calculations, know how or any other verbal information or written data concerning the Goods;
(b) all inventions, improvements, modifications, discoveries, concepts, ideas and all (if any) other information relating to the Goods, or proposed goods;
(c) any information which, by its nature, places or potentially places a party at an advantage over its business competitors;
(d) any information that would otherwise at law be considered secret or confidential information; or
(e) whether or not marked confidential BUT does not include information which:
(i) at the time of first disclosure by a party is already in the public domain; and
(ii) after disclosure to a party, becomes part of the public domain otherwise than by disclosure in breach of the terms of the Contract;
Consumer is as defined in the ACL.
Contract means any agreement for the provision of Goods by us to you, as set out in a quote incorporating these Terms and/or written agreement.
Intellectual Property Rights means:
(f) patents, trademarks, service marks, rights in designs, copyrights and topography rights, in respect of the Goods, including the chemical composition and/or formula of the Goods, in each case whether registered or not, and any applications for registration of any of them;
(g) rights under licences and consents in relation to any of them; and
(h) any other forms of protection of a similar nature or having equivalent or similar effect to any of them which may subsist anywhere in the world.
Goods means the goods we supply to you.
GST Law means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated Regulations as amended.
PPSA means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as amended.
Terms means these Terms and Conditions.
Us / We / Manufacturer means On Time Express Worldwide Pty Ltd trading as All Seasons Wax Company ACN 605 224 342.
Variations means any variations you have requested to the Contract, as accepted by us.
You / Your / Distributor means the person, company or other legal entity, jointly and severally if more than one, acquiring Goods from us, or acquiring Goods from us for the purpose of on-selling the Goods to the Consumer, or for the purpose of making Goods for sale to the Consumer.
2. APPLICATION OF THESE TERMS & CONDITIONS
2.1 You agree that prior to engaging with us, you have read and agree to these Terms.
2.2 Unless we otherwise agree in writing, the Terms apply exclusively to every Contract and cannot be varied or replaced by any other terms, including your terms and conditions of purchase (if any).
2.3 We may vary or amend these Terms by written notice to you at any time. Any variations or amendments will apply to quotes placed after the notice date.
3.1 Our Goods offered are subject to availability and may be withdrawn at any time.
3.2 We reserve the right to refuse to accept any order, in whole, or in part.
3.3 Upon receiving payment, your order will be processed.
4.1 We may provide a quote specifying the Goods you require and an estimate of our related charges.
4.2 Where we have given you a quote, the quote is:
(a) valid for thirty (30) days only, unless an extension has been authorised by us;
(b) an invitation to treat only; and
(c) only valid if in writing.
4.3 We may refuse to accept any offer from you.
4.4 A Contract is accepted by us when we accept, in writing or electronic means, an offer from you or provide you with the Goods.
4.5 You warrant that you have not relied on any representation by us and our employees and agents other than as supplied in writing in the quote.
5.1 All prices quoted are in Australian Dollars (AUD) and are exclusive of GST, unless otherwise stated.
5.2 Where there is a change in the costs we incur in relation to the Goods, we may vary our price to take account of any change, by providing you with written notice.
6.1 You must pay our invoices, in full, within the time specified in our quote and/or written agreement.
6.2 For customers who have not placed an order with us before:
(a) unless otherwise agreed in writing, 50% of the purchase price of the Goods is to be paid upfront and the remaining 50% is to be paid prior to the Goods being shipped; and
(b) upon receipt of the first 50% payment as specified in clause 6.2(a) above, we may begin promoting your business as a distributor of the Goods on our website, and social media accounts, including but not limited to Facebook, Google Plus and Instagram.
6.3 If no payment terms are specified:
(a) subject to clause 6.2 and 6.3(b), full payment for the Goods must be made within 30 days of the date of our invoice; and
(b) we reserve the right to require payment in full on delivery of the Goods.
6.4 We reserve the right to require payment of a deposit. If we require a deposit, the payment terms and amount for the deposit payment will be specified in our quote or written agreement.
6.5 Any deposit paid is non-refundable, unless otherwise agreed by us.
6.5 You acknowledge that we are under no obligation to start or deliver Goods as requested by you, until the deposit is received by us in full and when all details pertaining to the Contract are finalised.
6.6 Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
6.7 Payment terms may be revoked or amended at our sole discretion immediately upon giving you written notice.
6.8 The time for payment is of the essence.
7.1 We offer deliveries to most major areas of Australia.
7.2 All care is taken with quality control and packaging of our Goods, however, in the event of receiving broken or faulty product, please refer to clause 10 below.
8. PAYMENT DEFAULT
8.1 If you default in payment by the due date of any amount payable to us, then all money which would become payable by you to us at a later date on any account, becomes immediately due and payable without the requirement of any notice to you, and we may, without prejudice to any of our other accrued or contingent rights:
(a) charge you interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 8% for the period from the due date until the date of payment in full;
(b) charge you for, and you must indemnify us from, all costs and expenses (including without limitation all legal costs and expenses on a full indemnity basis) incurred by us resulting from the default or in taking action to enforce compliance with the Contract or to recover any Goods;
(c) cease or suspend supply of any further Goods to you;
(d) by written notice to you, terminate any uncompleted Contract with you.
8.2 Clause 8.1 also applies, at our option:
(a) where you are a natural person and become bankrupt or enter into any scheme of arrangement or any assignment or composition with or for the benefit of your creditors or any class of your creditors generally; or
(b) where you are a corporation and, enter into any scheme of arrangement or any assignment or composition with or for the benefit of your creditors or any class of your creditors generally, or have a liquidator, administrator, receiver or manager or similar functionary appointed in respect of your assets, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up.
8.3 We reserve the right not to handover Goods unless all payments invoiced to you have been paid in full or unless alternative arrangements have been agreed in writing.
9. NO SET-OFF
9.1 You must make payment of our invoices without any deduction or set-off whatsoever including but not limited to:
(a)by reason of not receiving payment from your customer or client in connection with the Goods under the Contract;
(b)withholding tax or any other deduction for processing payment.
10.1 Where Goods are broken or faulty, you may contact us to return the broken or faulty goods.
10.2 You must email us within 5 business days of receiving any broken or faulty Goods at ‘email@example.com’.
10.3 This clause 10 applies only where you have not yet on-sold the Goods to the Consumer.
11. REFUND POLICY
11.1 All refunds will be at our sole discretion.
12. CANCELLATION OF ORDERS
12.1 You must reimburse us for any costs, expenses or losses incurred by us should you cancel the accepted quote or written agreement. The time for payment for such cancellation shall be thirty (30) days from our invoice
13. CONSUMER RETURN, REFUND OR CANCELLATION
13.1 Where a Consumer has been on-sold our Goods by you, any returns, refunds or cancellations are your sole responsibility and liability as Distributor.
14.1 We may terminate the Contract if:
(a) you fail to pay any monies owing to us within the timeframe specified in our invoice; or
(b) you breach the Contract in any way whatsoever.
14.2 In the event the Contract is terminated, you must:
(a) pay us for our time spent working on the Goods up until the Contract is terminated; and
(b) all monies due to us at termination must be paid within thirty (30) days from the date of our invoice.
15. PASSING OF PROPERTY
15.1 Until we receive full payment in cleared funds for all Goods supplied to you, as well as all other amounts owing to us by you:
(a) title and property in all Goods remain vested in us and do not pass to you;
(b) you must hold the Goods as fiduciary bailee and agent for us;
(c) you must hold the proceeds of sale of the Goods on trust for us in a separate account with a bank to whom you have not given security however failure to do so will not affect your obligations as trustees;
(d) in addition to our rights under the PPSA, we may without notice, enter any premises where we suspect the Goods are and remove them, notwithstanding that they may have been attached to other Goods not our property, and for this purpose you irrevocably license us to enter such premises and indemnify us from and against all costs, claims, demands or actions by any party arising from such action.
16. PERSONAL PROPERTY SECURITIES ACT
16.1 Notwithstanding anything to the contrary contained in these Terms, the PPSA applies to these Terms.
16.2 For the purpose of the PPSA:
(a) terms used in clause 16 that are defined in the PPSA have the same meaning as in the PPSA;
(b) these Terms are a security agreement and we have a Purchase Money Security Interest in all present and future Goods supplied by us to you and the proceeds of the Goods; and
(c) the security interest is a continuing interest irrespective of whether there are monies or obligations owing you at any particular time.
16.3 Where permitted by the PPSA, you waive any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
16.4 You and we agree to contract out of and nothing in the provisions of sections 96, 125, 129, 142 and 143 of the PPSA will apply to these Terms.
16.5 To the extent permitted by the PPSA, you agree that:
(a) the provisions of Chapter 4 of the PPSA which are for your benefit or which place obligations on us will apply only to the extent that they are mandatory or we agree to their application in writing; and
(b) where we have rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
17. RISK AND INSURANCE
17.1 The risk in the goods and all insurance responsibility for theft, damage or otherwise will pass to you immediately on the Goods being delivered to you or taken from our premises.
17.2 The Goods are sold to you on the basis that you have obtained all necessary licences or permits under all relevant laws and regulations in relation to the Goods.
17.3 You assume all risk and liability for loss, damage or injury to persons or to your property, or third parties, including Consumers, arising out of the use or possession of any of the Goods sold by us, unless recoverable from us on the failure of any statutory guarantee under the ACL.
18. PERFORMANCE OF CONTRACT
18.1 Any period or date for delivery of Goods we state is an estimate only and not a contractual commitment.
18.2 We will use our reasonable endeavours to meet any estimated dates for delivery of the Goods but will not be liable for any loss or damage suffered by you or any third party for failure to meet any estimated date.
19.1 Where Goods are rebranded, on-sold or transferred to a third party or Consumer we will not be liable for any defect, repair, maintenance or loss relating to those Goods.
19.2 Except where we have provided a warranty for the Goods our liability to you is limited to the requirements of the ACL.
19.3 Most waxes, scents, dyes etc. are mixed from raw ingredients, meaning that batches may vary from time to time, but we will not be liable for any loss or damage resulting from such variation.
20.1 Except as the Terms specifically state, or as contained in any express warranty provided in relation to the Goods, the Contract does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods or any contractual remedy for their failure.
20.2 We are not liable for any indirect or consequential losses or expenses suffered by a Consumer after our Goods have been on-sold, however caused, including but not limited to fire, damage to property or personal injury, except to the extent of any liability imposed by the ACL.
20.3 If clause 20.1 does not apply, then other than as stated in the Terms or any written warranty statement, we are not liable to you in any way arising under or in connection with the use of or any other dealings with the Goods by you or any third party
20.4 You acknowledge that:
(a) you have not relied on any service involving skill and judgment, or on any advice, recommendation, information or assistance provided by us in relation to the Goods or their use or application; and
(b) you have not made known, either expressly or by implication, to us any purpose for which you require the Goods and you have the sole responsibility of satisfying yourself that the Goods are suitable for your use.
20.5 Nothing in the Terms is to be interpreted as excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods which cannot be so excluded, restricted or modified.
21. FORCE MAJEURE
21.1 We will have no liability to you in relation to any loss, damage or expense caused by our failure to deliver the Goods as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lockout, breakdown, war, the inability of our normal suppliers to supply necessary materials, Goods or any other matter beyond our control.
21.2 If an event of force majeure occurs, we may suspend or terminate the Contract by written notice to you.
22.1 Words used in this clause which are not defined in this Agreement have the same meaning as in the GST Law.
22.2 Where a party to the Contract (Supplier) makes a taxable supply under or in connection with the Contract or in connection with any matter or thing occurring under the Contract to another party to the Contract (Recipient), and the consideration otherwise payable for the taxable supply is not stated as GST inclusive, the supplier will be entitled, in addition to any other consideration recoverable in respect of the taxable supply, to recover from the Recipient the amount of any GST payable on the taxable supply.
22.3 The Supplier must issue a tax invoice (or an adjustment note) for any supply for which the Supplier may recover GST from the Recipient, and must include in the tax invoice (or adjustment note) the particulars required by the GST Law for the Recipient to obtain an input tax credit for that GST.
22.4 If the amount paid by the Recipient to the supplier in respect of GST differs from the GST on the taxable supply (taking into account any adjustment events that occur in relation to the taxable supply), an adjustment shall be made. If the amount paid by the Recipient exceeds the GST on the taxable supply, the Supplier shall refund the excess to the Recipient. If the amount paid by the Recipient is less than the GST on the taxable supply, the Recipient shall pay 'the deficiency to the Supplier.
22.5 Where a party to the Contract is entitled, under or in connection with the Contract or in connection with any matter or thing occurring under the Contract to recover all or a proportion of its costs or is entitled to be compensated for all or a proportion of its costs, the amount of the recovery or compensation shall be reduced by the amount of (or the same proportion of the amount of) any input tax credits available in respect of those costs.
23. CONFIDENTIALITY OBLIGATIONS
23.1 Neither party may use, exploit or divulge to any other person the other party's Confidential Information other than with its prior written approval or as strictly necessary to undertake its obligations under the Contract.
23.2 Each party will be liable for any breach of this clause by their employees, agents or contractors, if any.
23.3 Each party must keep the contents of the Contract confidential.
24. GENERAL MATTERS
24.1 You must not represent in any way that we support or endorse your business or any Goods or services provided by you without our written consent. You must not undertake any campaign, prepare any advertising material or publicity or cause publication of any advertisement or article about us or our Goods without our written consent.
24.2 Any provision in these Terms which is invalid or unenforceable must be read down, if possible, so as to be valid and enforceable. If that provision cannot be read down, then it is to be severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these Terms.
24.3 Our failure to enforce any of these Terms shall not be construed as a waiver of any of our rights.
24.4 A notice must be in writing and handed personally or sent by email, facsimile or prepaid mail to the last known address of the addressee. Notices sent by prepaid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received on confirmation of successful transmission.
24.5 These Terms are governed by the laws of the State of Victoria and the parties submit to the non-exclusive jurisdiction of the courts of Victoria, and the courts entitled the hear appeals from those courts.