Stockist Terms and Conditions

Parties:

Pure Skin & Laser Therapy Pty Ltd (ACN 123 054 320) ATF Pure Skin Trust (ABN 85 421 955 224) of Shop 2/10 Adams Lane, Berwick, Victoria 3806

(Supplier)

 

 

The Stockist that is agreeing to these terms, as noted on the Online Order

(Stockist)

 


Operative Provisions:

1.          Acceptance of terms

  • By the Stockist paying any amount to the Supplier in respect of the products provided by the Supplier (Products) or instructing the Supplier that the Stockist will proceed with ordering the Products in writing, the Stockist acknowledges that the Stockist has read and understood these Stockist Terms and Conditions (Terms) and agrees to be bound by them.

2.          Appointment

  • The Supplier appoints the Stockist and the Stockist accepts such appointment as a stockist of the Products during the Term in accordance with these Terms.
  • In consideration of the Stockist accepting such appointment, the Supplier grants to the Stockist the non-exclusive right to market and sell the Products for the Term in accordance with these Terms.
  • During the Term, the Supplier agrees to supply and the Stockist agrees to purchase the quantities of Products that the Stockist orders under clause 4 in accordance with these Terms.

3.          Term

  • These Terms commence on the Commencement Date and continue for a minimum term of 12 months (Minimum Term) or until terminated in accordance with clause 25.
  • Following expiry of the Minimum Term (and each renewed term) these Terms and Conditions will automatically renew for subsequent terms of 12 months, unless either party gives written notice to the other of termination at least 30 days prior to the expiry of the current Term.

4.          Orders  

  • The Stockist may order Products from the Supplier from time to time by submitting an Online Order to the Supplier, via an online order form through the Supplier’s website, in accordance with these Terms.
  • Once an Online Order has been submitted by the Stockist it is not able to be cancelled or amended by the Stockist except where otherwise agreed by the Supplier in writing and subject to payment of additional costs reasonably incurred by the Supplier.
  • The Stockist agrees to adhere to the minimum order requirements, which is a minimum order of 6 of any one of the Products, as they appear in the online order form.
  • The Supplier will not accept Online Orders that do not meet the minimum order requirements.
  • These Terms apply to each Online Order made on or after the Commencement Date.
  • Unless otherwise agreed and to the extent permitted by Law, all contracts and dealings with the end-customer are the responsibility of the Stockist and not the Supplier.

5.          Pricing

  • The Price for the Products will be the price as specified in the Online Order, as at the date the Online Order is submitted by the Stockist.
  • The Supplier reserves the right to vary the Price of the Products from time to time on providing written notice.

6.          Payment

  • The Stockist agrees to pay the Price for the Products and the costs associated with delivery of the Products in accordance with these payment terms and in the manner set out in the Online Order form.
  • The Supplier will render a Tax Invoice for each Online Order to the Stockist on or before delivery of the Online Order.
  • The Stockist must submit an Online Order and pay for the Products ordered and the shipping costs before the Supplier will deliver the Products.
  • The Supplier does not provide any credit accounts.
  • The Stockist will also pay to the Supplier, on demand, on a full indemnity basis, all amounts that the Supplier may, at its absolute discretion, expend or incur (including legal costs on a solicitor and own client basis) as a result of the Stockist defaulting on any of of its obligations in these Terms.
  • If payment is not made in accordance with the these Terms, the Supplier at its entire discretion may:
    • require the Stockist to pay the Supplier interest on all outstanding monies from the due date until the date of payment at the rate of 12% (twelve per cent) per annum accruing daily;
    • refuse to supply any further part of the Products to the Stockist until all outstanding monies, including any accrued interest, is paid in full; and/or
    • terminate these Terms whereupon the full Price for the Products then supplied, whether or not the time for payment under these Terms has arrived, will be immediately due and payable.
  • Unless otherwise stated, the Price and any other amounts payable by the Stockist under these Terms are to be increased by any GST payable on the supply.
  • The Stockist may not withhold payment or make any deduction from any amount owing without the Supplier's prior written consent, irrespective of any Claim the Stockist may have against the Supplier for anymatter whether related to the provision of the Products or not.
  • All prices and amounts are displayed and to be paid by the Stockist in Australian currency (AUD).
  • All amounts owed to the Supplier by the Stockist under these Terms become immediately due and payable:
    • on termination of these Terms for any reason; or
    • if the Stockist becomes bankrupt or insolvent or has a receiver, liquidator or administrator appointed over any part of its assets.

7.          Stockist’s Obligations in Relation to the Products

  • The Stockist must:
    • sell the Products in the original packaging supplied by the Supplier;
    • ensure that it has adequate stock on hand to fulfil orders of the Products;
    • use its best efforts to market and sell the Products during the Term;
    • ensure the timely delivery of the Products to its customers and ensure a high standard of customer service is provided;
    • sell the Products to third parties on terms that are compliant with applicable Laws and on terms that are not inconsistent with these Terms;
    • not alter or interfere in any way with the products or their original packaging including removing or changing any labelling or instructions provided with the Products;
    • not sell the Products on third party online stores like eBay, Catch of the Day or any website other than the Stockist’s own business website or platform; and
    • keep, in electronic form, accurate and up-to-date records of sales of the Products.
  • The Stockist must not make any representation or give any warranty in relation to the Products not expressly authorised by the Supplier in writing.
  • The Stockist must not do anything which might affect the reputation of any of the Products and/or the Supplier.
  • The Stockist must:
    • promptly inform the Supplier of all material complaints or Claims in relation to the Products;
    • not admit liability on behalf the Supplier in respect of any complaint or Claim in relation to the Products;
    • not resolve or settle any complaint or Claim in relation to the Products which may result in the Supplier incurring any liability to any party; and
    • deal promptly with all complaints or Claims in relation to the Products which will not result in the Supplier incurring any liability.
  • In performing its obligations under these Terms, the Stockist must comply with all applicable laws, statutes, regulations, regulatory policies from time to time in force.
  • The Supplier may publish recommended retail pricing which is to be used as a guideline only. Subject to applicable laws, the Stockist is responsible for determining the price which it sells the Products for.

8.          Displaying Products In-store

  • The Stockist must not place the Products in a location in the retail store that obscures the Products from view of customers or is difficult to reach or access.

9.          Delivery of Products

  • The Supplier must deliver each Online Order in accordance with the delivery details as specified in the Online Order or as otherwise agreed between the parties.
  • The Stockist must pay all delivery costs associated with the delivery of the Products as specified in the Online Order via the payment method provided on the online order form. A change in the delivery costs does not entitle the Stockist to dispute payment of such costs.
  • Delivery of the Products to a third party nominated by the Stockist is deemed to be delivery to the Stockist for the purposes of these Terms.
  • Any times provided by the Supplier to the Stockist in respect of the delivery of the Products are estimates only and are non-binding on the Supplier. Whilst the Supplier attempts to deliver all Products on time, sometimes delays are inevitable and the Supplier will not be responsible for any Losses suffered by the Stockist in the event of delay. Late delivery of an Online Order does not entitle the Stockist to:
    • refuse to take delivery of the Online Order;
    • claim damages; or
    • terminate these Terms.
  • If the Stockist fails to take delivery of an Online Order the Supplier will store the Online Order until delivery takes place again, and may charge the Stockist for all related costs and expenses.
  • Without limitation to any other clause of these Terms, where delivery is to be made without signature on delivery, the Supplier accepts no responsibility in the event the delivery site is left unattended at the time of delivery of the Products.
  • Where delivery of the Products is expected to be signed for and the Supplier notifies the Stockist of this requirement, the Stockist must ensure that authorised personnel are available to sign for the delivery.

10.        Defective Products

  • Subject to the following terms, the Supplier agrees to provide the following remedies for Products deemed defective.
  • In the event the Stockist becomes aware of a defect with the Products, the Stockist must notify the Supplier within 7 days of becoming aware of the defect.
  • Upon such notification of defective Products, the Stockist must:
    • provide photographic evidence of the defective Product and any other information requested by the Supplier; and
    • allow the Supplier to inspect the Products to determine whether they are defective (this includes granting the Supplier unimpeded access to inspect such Products).
  • If the Stockist is aware or ought reasonably to be aware that the Products are defective for any reason, then the Stockist must take all necessary steps to mitigate any loss or damage.
  • If the Supplier is notified of a defective Product and agrees it is defective (acting reasonably) then the Supplier will at its election either:
    • replace the defective Products with Products that comply with the terms of these Terms;
    • provide a partial refund in return for the Stockist accepting the defective Products; or
    • provide a full refund for any defective Products.
  • Subject to the terms of this clause, Products will only be dealt with in accordance with this clause provided that:
    • the Stockist has complied with the other terms of this clause;
    • the Supplier has agreed (in its reasonably opinion) that the Products are defective;
    • the Supplier is provided with images of the defective Product; and
    • the Supplier is provided an electronic copy of delivery documentation.
  • Notwithstanding the above clauses, the Supplier will not be liable for or required to accept any return for any defect or damage in any of the following events:
    • where such defect or damage is caused or partly caused by or arises as a result of the Stockist (or the Stockist fails to take reasonable steps to prevent them from becoming defective), fair wear and tear, or any accident or circumstance outside the reasonable control of the Supplier;
    • where the Stockist makes any further use of the Products after giving notice;
    • the Stockist alters or repairs those Products without the written consent of the Supplier; or
    • the Product differs from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
  • Once the Supplier has complied with this clause, the Supplier is not liable to the Stockist and the Stockist has no further remedy arising out of or in connection with the rejected Products.

11.        Warranties

  • The warranties contained in clause 2 are additional to warranties implied by law. Each of the warranties will be read and construed as a separate and independent warranty and will not be limited by reference to each other. All warranties will be valid at all times during the Term and will be continuing warranties which will survive the termination or expiration of these Terms.
  • The Stockist warrants to the Supplier that as at the date of these Terms and for the duration of these Terms:
    • the information contained in these Terms is true and correct and it has disclosed all relevant information to the Supplier;
    • it has the legal right and power to enter into these Terms;
    • the performance of the Stockist’s obligations under these Terms have been duly and validly authorised by all necessary corporate action on its part;
    • these Terms are valid and binding on the Stockist;
    • the Stockist is not bankrupt or insolvent and no receiver, liquidator, administrator or receiver and manager has been appointed over any part of its assets and no such appointment has been threatened;
    • no proceedings have been brought or threatened for the purpose of bankrupting or winding up the Stockist;
    • no partner, director or shareholder of the Stockist is bankrupt, a discharged bankrupt or in any form of receivership, administration or liquidation; and
    • it has the capacity to make the payment in accordance with these Terms.

12.        Non-exclusivity

  • The Supplier grants to the Stockist the non-exclusive right to market and sell the Products for the Term, in accordance with these Terms.

13.        Confidential Information

  • Other than where:
    • the Confidential Information is in the public domain, except as a consequence of a breach of this clause;
    • required for a party to perform its obligations under these Terms;
    • expressly agreed by all parties in writing; or
    • required by law;

the Stockist must at all times:

  1. treat and keep the Confidential Information confidential;
  2. not use, or allow the use, of the Confidential Information by any third party;
  • not disclose or allow the disclosure, of the Confidential Information or the fact of the disclosure of the Confidential Information to any third party.
  • The Stockist must ensure that its officers, employees, advisers and agents also observe the covenants in clause 1 of this clause. The Stockist must keep a list of all persons to whom the Confidential Information is disclosed and must produce such list to the Supplier on request.
  • If requested by the Supplier, the Stockist must immediately return all Confidential Information, and any copies of the Confidential Information, to the Supplier.
  • In the event of a breach or threatened breach of the terms of this clause by the Stockist, the Supplier will, as between the parties, be entitled to an injunction restraining the Stockist from committing any breach of this clause without showing or proving actual damage sustained or likely to be sustained by the Stockist.
  • This clause shall not merge on the expiry or earlier termination of the Term.

14.        No Assignment

  • The Stockist must not transfer or assign its rights under these Terms to anyone else, without the prior written consent of the Supplier, which may be granted or withheld by the Supplier in its sole, absolute and unfettered discretion. The Stockist must provide any information the Supplier requires to consider whether to grant its consent.
  • Any change in 50% or more of the shareholding of the Stockist will constitute a deemed assignment which requires the Supplier's prior written consent in accordance with clause 1.
  • The Stockist acknowledges and agrees that the Supplier may transfer, assign or otherwise dispose of its interest in these Terms upon giving written notice to the Stockist.

15.        Ownership and Title to the Products

  • Notwithstanding anything to the contrary express or implied in these Terms, the parties agree that the Supplier retains full title to the Products and title will not at any time pass to the Stockist until the purchase price for the Products and all other amounts owing in respect of the Products are paid to the Supplier.

16.        Products Warranties and Quality

  • The Products supplied to the Stockist by the Supplier under these Terms must:
    • be of merchantable quality and fit for any purpose held out by the Supplier; and
    • be free from defects in design, material and workmanship.
  • 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 Products.

17.        Risk

  • All risk for the Products passes to the Stockist on delivery of the Products to Stockist or the nominee of the Stockist.

18.        Products Liability

  • If any Claim is made against the Stockist arising out of or in connection with the supply of or any defect in the Products, the Stockist must release and indemnify the Supplier against all costs, damages or Claims to the extent that the costs, damages or Claims is due to any act or omission of the Stockist. For the avoidance of doubt, the Supplier will only be liable to the extent that such costs, damages or Claims are attributable to the Supplier.
  • To the extent permissible by law, the Supplier shall not be liable for any Claims brought against the Supplier by the Stockist or a consumer of the Products due to any allergic reaction or other health condition suffered by that party due to its use of the Products.

19.        Products Recall

  • If the Stockist is the subject of a request, court order or other directive of a government agency to recall or withdraw any Products 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 Stockist may not undertake any recall or withdrawal of the Products from the market without the written permission of the Supplier.
  • If any Products are the subject of a Recall Notice, or the Supplier has other reasonable grounds to recall or withdraw the Products from the market, the Stockist 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 Products include, but are not limited to where:
    • supply or use of the Products infringes, or may infringe, a third party's intellectual property rights;
    • the Products are, or may be, unsafe; or
    • a defect in the Product may cause harm to the Supplier's reputation or brand.

20.        Intellectual Property

  • The Stockist acknowledges the Supplier's title and/or rights to the Intellectual Property and undertakes not to take or permit or omit any action which would or might:
    • invalidate or put in dispute the Supplier's interest in the Intellectual Property or any part of it;
    • oppose any application for registration or invalidate any registration of the Intellectual Property or any part of it;
    • support any application to remove or undo the Supplier's interest in the Intellectual Property or any part of it; or
    • assist any other person directly or indirectly in any of the above.
  • The parties agree that any additional or further intellectual property created, formulated or discovered during the Term by either party in connection with the Products will be the sole and exclusive property of the Supplier and the Stockist 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.

21.        Marketing Materials

  • The Supplier grants the Stockist a revocable, non-exclusive and non-transferable or assignable licence to use the advertising, marketing or promotional material (“Marketing Material”) in connection with the marketing, promoting and distribution of the Products during the Term. The Stockist must not reproduce, copy, make public, disclose the whole or any part of the Marketing Materials except to the extent approved by the Supplier.
  • The parties acknowledge that the Stockist is permitted to do their own photo shoots and create their own advertising, marketing or promotional material (“Stockist Material”) for use in connection with the marketing, promoting and distribution of the Products during the Term. In the event any Stockist Material is created, the Supplier reserves the right to reject or request changes be made to such Stockist Material (acting reasonably).

22.        Insurance

  • The Stockist shall maintain proper and adequate insurance cover in respect of potential liability loss or damage arising at law in respect of any Claim for property damage, personal injury, public liability and professional indemnity relevant to the performance of the obligations of the Stockist pursuant to these Terms.
  • The Stockist shall produce evidence on demand by the Supplier and the satisfaction of the Supplier of the insurance effected and maintained in accordance with this clause.

23.        Indemnity and Release

  • Except as provided under these Terms and to the extent permitted by law, the Stockist releases the Supplier and its officers, employees and agents from any and all Claims by the Stockist or any of its officers, employees, agents or invitees, except to the extent (if any that) the Loss the subject of the Claim is caused by the negligent act or omission, wilful misconduct or breach of these Terms by the Supplier.
  • Except to the extent caused or contributed to by the direct negligent act or omission, wilful misconduct or breach of these Terms by the Supplier, the Stockist 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 Claim made against the Supplier and/or the Stockist by a third party arising out of or in connection with the use and/or provision of the Products and/or these Terms;
    • any Claim made against the Supplier and/or the Stockist by a third party for actual or alleged infringement of a third party intellectual property rights arising out of or in connection with the use and/or provision of the Products and/or these Terms;
    • any breach or negligent performance or non-performance of these Terms by the Stockist, including any failure to pay any fees on time;
    • any event or cause, beyond the control of the Supplier;
    • any reliance by the Stockist or a third party on the Products;
    • the enforcement of these Terms; and
    • any negligent act, omission or wilful misconduct of the Stockist.
  • The Stockist 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.

24.        Exclusion and Limitation of Liability

  • The Supplier provides the Products 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 Supplier excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Products that are not expressly set out in these Terms to the maximum extent permitted by law. The Stockist relies on the Products at its own risk.
  • Without limiting the generality of clause 1, the Supplier expressly excludes any liability in contract, tort or otherwise for any injury, damage, Loss, delay or inconvenience caused directly or indirectly by:
    • the Stockist's reliance on the Products;
    • the delivery or non-delivery of any Products; and
    • any event which is beyond the Supplier’s control.
  • 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.
  • If the Supplier is liable to the Stockist in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, the Supplier’s total liability to the Stockist for that failure is limited to, at the option of the Supplier:
    • the replacement of the goods or the supply of equivalent goods; or
    • the repair of the goods; or
    • the payment of the cost of replacing the goods or of acquiring equivalent goods; or
    • the payment of the cost of having the goods repaired.
  • Without limitation to the other terms of these Terms, the Supplier excludes any liability to the Stockist, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with these Terms.

25.        Termination

  • Either party may terminate these Terms without cause at any time on giving the other party 30 days’ written notice.
  • The Supplier may in its absolute discretion, by written notice to the Stockist, immediately terminate these Terms or one or more Online Orders (and shall have no liability for any Loss suffered by the Stockist due to the termination):
    • if the Stockist fails to make payment in accordance with clause 6;
    • if the Stockist becomes insolvent;
    • if the Stockist commits an act of bankruptcy or is made bankrupt;
    • if the Stockist makes a composition or other arrangement with creditors;
    • if the Stockist assigns assets for the benefit of creditors generally;
    • being a company, if the Stockist enters into a deed of company arrangement or has a controller, administrator, receiver or receiver and manager appointed;
    • being a company, if the Stockist goes into liquidation;
    • being a partnership, if the Stockist has a receiver or a receiver and manager appointed;
    • in the event of Force Majeure (such as if there are issues with the Supplier’s supplier and the Supplier is unable to supply the agreed Products); or
    • breaches any warranty or obligation contained in these Terms or a Online Order and fails to rectify the breach within 7 days of being given a notice to do so.
  • Upon termination of these Terms, all existing Online Orders shall automatically terminate.
  • Upon termination of these Terms and/or an Online Order:
    • the Stockist shall be liable to pay the Supplier for all Products supplied by the Supplier under such Online Orders up until the expiry of the Minimum Term (or the date of termination where this Agreement has continued beyond the Minimum Term), and such amounts shall be a debt immediately due and owing; and
    • if the Products have not been supplied, the Supplier shall refund those Online Orders, subject to a 20% restocking fee for any Products.
  • The rights and remedies of the parties contained in this clause 25 are in addition to any other rights and remedies by law, in equity or under these Terms.

26.        Force Majeure

  • The Supplier will not be in breach of these Terms or liable to the Stockist for any Loss incurred by the Stockist 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 will notify the Stockist (Non-affected Party) 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 the above clause, 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 will continue to use all reasonable endeavours to perform those obligations.
  • The performance of the affected obligations will be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.
  • References to a Force Majeure Event in this clause means: events, circumstances or causes beyond a party’s reasonable control including (but not limited to):
  • strikes, lock-outs or other industrial action;

 

  • civil commotion, riot, invasion, cyber-attack, service 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 or other natural disaster;

 

  • epidemic, pandemic, health emergencies, disease;

 

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

 

  • interruption or failure of utility services (including the inability to use public, private telecommunications networks, servers or third party hosting platforms); and

 

  • the acts, decrees, legislation, regulations or restrictions of any Government Agency;

 

however does not include a lack of funds.

 

  • References to Loss in this clause means: 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).

27.        General

  • The Supplier may vary these Terms at any time and will notify the Stockist of the variation by providing 30 days written notice to the Stockist at the Stockist's Address for Service.
  • Any notice required to be given in accordance with these Terms is deemed to be sufficiently given if provided to the Stockist's Address for Service or the Supplier's Address for Service (as the case may be) and, if it is:
    • delivered by hand, upon which the time of giving notice will be the time of delivery;
    • sent by pre-paid post, upon which the time of giving notice will be two (2) business days after the date of postage;
    • sent by email, upon which the time of giving notice will be the time shown on the email generated by the sending machine identifying proof of transmission to the designated email address.
  • The following will constitute proof of receipt:
    • if sent by registered post, proof of posting by registered post;
    • if sent by email, proof of sending.
  • These Terms is governed by the laws of Victoria and the Commonwealth of Australia which are in force in Victoria.
  • The parties submit to the jurisdiction of the Courts of Victoria, relevant Federal Courts and Courts competent to hear appeals from them.
  • These Terms contains the entire understanding and agreement between the parties as to the subject matter of these Terms.
  • All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of these Terms are merged in these Terms and are of no further effect.
  • No oral explanation or information provided by a party to another affects the meaning or interpretation of these Terms or constitutes any collateral agreement, warranty or understanding.
  • No waiver or amendment of a provision of these Terms is binding unless made in writing and signed by both parties.
  • The parties must execute and deliver all documents and must do all things as are necessary for the complete performance of their respective obligations under these Terms.
  • If a provision of these Terms is void or unenforceable it must be severed from these Terms and the provisions that are not void or unenforceable are unaffected by the severance.
  • The rights and remedies of a party to these Terms are in addition to the rights or remedies conferred on the party at law or in equity.
  • These Terms may be executed in any number of counterparts and when executed communication of the fact of execution to the other parties may be made by sending evidence of execution by fax or electronic communications including email.
  • 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.
  • The contra proferentem rule and other rules of construction will not apply to disadvantage a party whether that party put the clause forward, was responsible for drafting all or part of it or would otherwise benefit from it.
  • Time is in all cases and in every respect of the essence of these Terms.

28.        Definitions

  • In these Terms unless inconsistent with the context or subject matter:
    • “ACL” means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth));
    • “Claim” means any claim, action, demand or proceeding however arising (including under contract, statute, common law or equity) in respect of any Loss or alleged Loss;
    • Commencement Date” means the date the Stockist instructs the Supplier that the Stockist will proceed with ordering the Products in writing or the date the Stockist submits an Online Order, whichever is earlier;
    • “Confidential Information” means information relating directly or indirectly to the Supplier, its assets and the operation and affairs of the Supplier, including without limitation, these Terms and information about the Products;
    • “GST” has the meaning given to it in the GST Act;
    • “GST Act” means the A New Tax System (Products and Services Tax) Act 1999 (Cth);
    • Intellectual Property” means all copyright, trademarks, patents, processes, know-how, designs and other like rights whether registered, recorded in writing or otherwise of the Supplier;
    • “Loss” includes (without limitation) the following, whether direct or indirect, special or consequential in nature:
      1. loss, damage, costs (including legal costs on a solicitor and own client basis), action or expense of any kind; and
      2. to the extent not covered in the preceding subclause, loss of profits, opportunity, use, revenue, goodwill, bargain, production, sales turnover, income, reputation (or damage to it), employment, corruption or destruction of data, customers, loss relating to or in connection with any other contract, business or anticipated savings, reduction in value, any delay or financing costs or increase in operating costs, or any other financial or economic loss; and
  • anything referred to in the preceding subclauses relating to or arising out of or in connection with:
    1. personal injury (including death or disease) to the Stockist;
    2. personal injury (including death or disease) to any third party; or
    3. loss of or damage to the property of the Supplier, the Stockist or any third party; and
    4. a breach or non-compliance by the Supplier or the Stockist with any law;
  • “Online Order” means an online order for Products placed by the Stockist with the Supplier on the Supplier’s website and which is accepted by the Supplier;
  • Price” means the price payable by the Stockist to the Supplier for the Products in accordance with these Terms;
  • “Products” means any products supplied by the Supplier to the Stockist from time to time;
  • “Stockist's Address for Service” means the email address of the Stockist set out in the Online Order (as applicable);
  • “Tax Invoice” has the same meaning as in the GST Act;
  • “Term” means the duration of the Terms and Conditions commencing and expiring in accordance with its terms.
  • In these Terms unless inconsistent with the context or subject matter:
    • A reference to a person includes any other legal entity and vice versa;
    • Words importing the singular number include the plural number and vice versa;
    • A reference to a party includes the party's heirs, executors, successors and permitted assigns;
    • Clause headings are for reference purposes only and must not be used in interpretation;
    • Where any word or phrase is given a defined meaning any other part of speech or other grammatical form concerning the word or phrase has a corresponding meaning;
    • A reference to a statute includes all regulations and subordinate legislation and amendments;
    • References to writing include any mode of representing or reproducing words in tangible and permanently visible form, and includes e-mail;
    • A reference to a monetary amount is a reference to an Australian currency amount (AUD);
    • An obligation of two or more parties binds them jointly and each of them severally;
    • An obligation incurred in favour of two or more parties is enforceable by them severally;
    • Reference to time are to local time in Victoria, Australia;
    • Where time is to be reckoned from a day or event, the day or event must be excluded, and reference to a month means a calendar month;
    • A reference to a business day means any day on which trading banks are open for business in Victoria, Australia; and
    • If any time period specified in these Terms expires on a day which is not a business day, the period shall expire at the end of the next business day.