This Agreement is between Indigo & Lellow, the supplier (referred to as we, our or us) and the Customer (referred to as you or your) and consists of the General Conditions as set out below.
ORDERS AND PRICING
- INDENT ORDERS
- Minimum value for INDENT orders is $750 including GST
- All indent Orders require a 50% deposit to proceed, with the balance paid prior to shipment.
- All invoices are payable in full prior to shipment or collection.
- Unless prior agreement otherwise has been made with us, payment is to be made strictly 7 days from the date of invoice for Indent Orders. Payment must be made in full free and clear from any set-off, retention, deduction or withholding.
- If payment is not made in full by the due date then we will be entitled to charge interest on money due but not paid, at the rate of 9.5% per annum calculated on daily balances commencing from the date payment is due until the date payment is made in full.
- STOCK ORDERS
- Minimum value for STOCK order is $300 including GST.
- All Stock Orders are on a proforma basis and require full payment before shipment
- Once a proforma invoice has been issued to a stockist, the stockist has three working days to make payment. During this time, we will hold the stock to complete the proforma order. If, after three working days, you have not made payment, then this stock will be available to other retailers.
- We are not obliged to deliver and/or process any order and/or deliver goods to you whilst any payment due from you to us on any account is in arrears. You will have no claim against us for any delay or other consequences arising from the application of this provision. We have an absolute discretion as to how any money received from you is to be applied. This discretion applies despite any principle or presumption of the law to the contrary or any direction given by any person at the time of payment or receipt and without the need for us to communicate our election to any person.
- By ordering any goods from us, you are confirming your agreement to all of these Terms of Trade.
- All prices are inclusive of goods and services and any other applicable taxes.
- A binding contract of sale for the particular goods or services arises once the relevant order is accepted by us and we have confirmed its acceptance to you in writing, issues an invoice for the goods or services or otherwise provides you with the relevant goods or services. It is your responsibility to provide us with the specific requirements in relation to the goods and services you require.
- Freight is additional and will be estimated at time of order, and is subject to change once packed and weighed.
- If the freight company is unable to deliver, you will be solely responsible for any re-delivery fees.
- If we specify or accept a delivery time for goods, then such time shall be non-binding and approximate only especially if the goods are not in stock or a manufacturing lead time applies. Time shall not be of the essence. We shall not be liable for any loss or damage suffered by you or any third party for the failure or delay to meet any estimated date. In any event, we cannot be responsible for third party delays in transit. If you do not notify shortages, damages or other discrepancies within 48 hours of delivery or collection, the goods will be deemed to have been delivered in accordance with the order and these Terms of Trade.
- Goods cannot be returned for ‘change of mind’ unless we agree (in our absolute discretion). If we agree to a return, we may insist upon payment of a restocking and handling fee.
- You acknowledge that once you place an order with us, we may order or manufacture goods especially for you and we may not permit you to vary or cancel the order unless you compensate us for the losses we incur or we otherwise consent. Orders may only be cancelled with our written consent in our absolute discretion.
- Goods from Indent orders cannot be returned or credited unless we are required by law to do so.
- Logos, photos, brochures, posters, advertisements, samples, display boards and any other marketing collateral are resources supplied by us to help assist you in promoting the goods. They must be used solely in accordance with any advertising and promotional guidelines issued by us from time to time. They are not to be used, applied, copied or duplicated for re-distribution without written notification and consent by us. You must immediately cease using and must, if requested, promptly return to us, all logos, photos, brochures, posters, advertisements, display boards and any other marketing collateral upon termination of these Terms of Trade or if otherwise directed by us to do so.
RETURN OF OBVIOUSLY DEFECTIVE GOODS
- You must inspect the goods on delivery and may return them as defective if they:
- are not of acceptable quality (as defined in the Australian Consumer Law); o
- do not conform to an agreed specification.
- The period for returning obviously defective goods is 30 days. If you fail to return the goods (or notify us of any shortfall in the quantity delivered) within this period, you must pay for them in full despite any shortfall or defects (other than non-obvious or latent defects that you could not be reasonably expected to have identified within the time period).
- We will cover the charges for returning the goods if we accept that they are defective.
- Our goods (including their associated guidelines, specifications and drawings) incorporate its copyright, patents, designs and trademark rights which remain our absolute property. You acknowledge that you have no proprietary right or interest in the intellectual property relating to any of the goods (including their associated manuals, guidelines, specifications and drawings).
- You must not attempt to register or record any of the intellectual property in respect of the goods or any part thereof or any patents, inventions, trademarks or designs derived from or substantially similar to the intellectual property in respect of the goods or aid or abet anyone else in doing so. You must not copy, create, sell, manufacture, reverse engineer, publish or process any goods using or taking advantage of the intellectual property in respect of the goods. Any intellectual property related documents provided to you by us must be returned to us on demand and must not be copied or communicated to any third party without the express written consent of us.
- You acknowledge and agree that you have not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance, provided by us in relation to the goods or their use, installation or application.
- You have the sole responsibility of satisfying yourself that the goods are suitable for your use or any contemplated use by you or your customers, whether or not such use is known by us. If any comments are provided by us in relation to use, purpose, installation or application, such comments are merely general in nature and must not be relied on. We do not hold ourselves out as having any special skills, expertise, knowledge in relation to such matters. Instead, you must form (and solely rely upon) your own views and obtain your own independent advice as needs.
- Any description of the goods provided in an invoice is given by way of identification only and the use of such description does not constitute a contract of sale by description or a warranty as to suitability or fitness for purpose.
RECOMMENDED RETAIL PRICES
- We may from time to time issue recommended retail prices for our products. These are recommended only, and there is no obligation upon you to comply with the recommendations.
- The prices at which you sell, offers for sale or advertise our products is entirely a matter for you.
LIMITATION OF LIABILITY
- We limit our liability in relation to the sale of goods to you as follows:
- apart from the warranties in this Agreement or any express guarantees, we exclude all warranties and guarantees (whether written or oral);
- our liability for any claims (whether for negligence, breach of contract or statute) is limited at our option to either
- replacing the goods or supplying equivalent goods; or
- repairing of the goods; or
- paying you the cost of having the goods replaced or repaired; and
- we are not liable for any indirect, incidental, special and/or consequential losses, liability, costs or damages; any loss of business opportunity, production, profits or savings; or any reasonably foreseeable losses.
- However, this limitation of liability does not apply if it would restrict, modify or exclude your rights in a way that is not permitted under the Australian Consumer Law or other applicable laws.
- All risk in goods purchased by you passes to you upon collection of the goods by or on behalf of yourself from our premises or upon despatch of the goods from our premises to your nominated delivery address (whichever occurs first).
TITLE AND OUR SECURITY INTEREST
- Although you will assume the risk in the goods when you take possession, until you pay for them:
- we will retain ownership and title;
- you hold them on our behalf as fiduciary bailee; and
- if we request, you must return them or permit us to retake possession of them and we will not be any liable for any loss you suffer as a result.
- However, you may dispose of the goods in the ordinary course of business on the basis that you will be taken to hold the proceeds of sale or trade on trust for us until you pay for them.
- You waive the requirement to provide information under various provisions of the PPSA. In particular, you agree that as provided for in:
- section 157 – we are not required to give you a verification statement;
- section 144 – we are not required to give you notices under section 95, 118, 121, 130, 132 and 135; and
- section 275 – we are not required to provide interested persons with information relating to our security interest and neither are you.
TERMS DEFINED IN THE PPSA
- Terms defined in the PPSA (including purchase money security interest, verification statement, proceeds and various other terms) have the same meaning when used in this Agreement.
- If you beach any of these Terms of Trade or has any execution levied against it or becomes bankrupt or insolvent or intends to enter into any composition or arrangement with its creditors or does any acts which would render it liable to be wound up or it has a winding up order made against it or it passes or attempts to pass a resolution for winding up or an administrator, liquidator or controller (as defined in the Corporations Act 2001 (Cth)) is appointed to it or in respect of the whole or any part of its property or undertaking, then, without prejudice to any other or remedy available to us (whether under these Terms of Trade or otherwise):
- We may by written notice to you immediately suspend or terminate (in whole or in part) these Terms of Trade and any order accepted but not yet fully performed;
- whether or not such notice is given, payment for all goods supplied by us and any other monies payable by you shall immediately become due. If we do not (at least initially) elect to terminate an order which has been accepted but not yet fully performed, all remaining payments in respect of that order will become immediately due and payable; and
- We may enter upon the premises where any delivered goods are situated and take possession of and remove the same without being responsible for any damage thereby caused and may, if the goods have been purchased by you, resell the same and apply the proceeds in or towards payment of any monies owing by you to us.
- All costs and expenses (including legal costs on a full indemnity basis) of or incurred by us in connection with any enforcement action shall be payable by you on demand.
- We may vary this Agreement by giving you written notice at any time. The variation will only affect future orders.
JURISDICTION AND GOVERNING LAW
- The jurisdiction and governing law of Victoria apply to this Agreement. The courts of the jurisdiction are entitled, non-exclusively, to resolve disputes about this Agreement