1. CLIENT TERMS
A. These Client Terms, together with any Client Order (defined in clause 2.A), set out the Agreement (this ‘Agreement’) under the terms of which Your Import Partner Pty Ltd ABN 25 691 129 101 (the Company) provides Products and/or Services to you or the company which you represent (the Client).
B. These Client Terms apply to direct purchases, bulk orders, tender supply and direct procurement arrangements placed with the Company (YIP).
C. Definitions: In this Agreement, unless the context requires otherwise:
i. Agreement means these Client Terms together with any Client Order.
ii. Australian Consumer Law or ACL means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
iii. Basic Pallet Delivery has the meaning given in clause 10.B.
iv. Business Day means a day other than a Saturday, Sunday or public holiday in New South Wales.
v. Client means the person or entity acquiring Products and/or Services from the Company, including where that person acts on behalf of another entity.
vi. Client Order has the meaning given in clause 2.A.
vii. Company means Your Import Partner Pty Ltd ABN 25 691 129 101.
viii. Force Majeure Event has the meaning given in clause 25.D.
ix. Job Details means the job-specific scope and technical particulars for the Products and/or Services under a Client Order, including quantities, measurements, dimensions, finishes, configurations, drawings, plans, schedules, bill of materials, component selections, and any other technical or specification requirements.
x. Partner Agreement means any written relationship contract between the Company and the Client that is expressed to apply and to prevail in the event of inconsistency (as referred to in clause 2.C).
xi. Products means the goods supplied by the Company under a Client Order.
xii. PPSA means the Personal Property Securities Act 2009 (Cth).
xiii. PPSR means the Personal Property Securities Register established under the PPSA.
xiv. Services means the services supplied by the Company under a Client Order.
xv. Specification Confirmation Agreement means the written document (and any attachments) identified in the Client Order (or otherwise agreed in writing) as confirming the Job Details for the Client Order.
xvi. White Glove Delivery Service has the meaning given in clause 10.C.
2. THIS AGREEMENT
A. These Client Terms will apply to all the Client’s dealings with the Company, including being incorporated in all agreements, quotations or orders under which the Company is to provide products and/or services to the Client (each a Client Order) together with any additional terms included in such Client Order (provided such additional terms are recorded in writing).
B. The Client will be taken to have accepted this Agreement if the Client accepts a Client Order, or if the Client orders, accepts delivery of, or pays for any products and/or services provided by the Company after being notified (including in a quote, Client Order or invoice) that these Client Terms apply and where they can be accessed online.
C. In the event of any inconsistency between documents forming part of this Agreement:
i. to the extent the inconsistency relates to Job Details, the Specification Confirmation Agreement will prevail over any other part of this Agreement (including any Partner Agreement), but only to the extent of the Job Details;
ii. a relationship contract between the Company and the Client (Partner Agreement) and these Client Terms or any Client Order, the Partner Agreement will prevail to the extent of the inconsistency; and
iii. these Client Terms and any Client Order, the Client Order will prevail to the extent that it expressly varies these Client Terms in writing, and otherwise these Client Terms will prevail.
D. The Client is responsible for confirming that the Client Order accurately specifies (if applicable):
i. the quantity and specifications of the Products and/or Services required; and
ii. the agreed amounts payable (including any deposit), and any other rates or charges.
3. TERM OF AGREEMENT
A. This Agreement will commence on the date the Client otherwise agrees to these terms, or pays an invoice issued by the Company (whether as a deposit or in full), and will continue until all obligations under the Agreement have been fulfilled, unless terminated earlier in accordance with its terms.
4. PRODUCTS AND SERVICES
A. These terms apply to orders, including bulk orders, placed directly by Clients. All pricing, delivery, and service terms must be confirmed in writing prior to order acceptance. Minimum order quantities may apply and will be advised at the time of quotation.
B. In consideration for the payment of the amounts payable set out in the Client Order and/or any invoice issued by the Company (including any deposit), the Company will provide the Client with services set out in a Client Order (Services) and/or goods set out in a Client Order (Products).
C. References to Products include Services, and references to Services include Products, only to the extent the context requires and the relevant obligation is capable of applying to that category.
D. The Company provides products and logistics services only, not installation or construction. Where installation is required, the Client must engage a licensed contractor. The Company accepts no liability for installation works or statutory warranties associated with such works.
E. Unless otherwise agreed, the Company may, in its discretion:
i. not commence work on any Products or Services until the Client has paid any amounts payable (including any deposit) in respect of such Products or Services; and
ii. withhold delivery of Products and/or provision of Services until the Client has paid an invoice in respect of such Products and/or Services (as applicable).
5. CLIENT OBLIGATIONS
A. (General) The Client must provide the Company with all documentation, information and assistance reasonably required for the Company to perform the Services.
B. (Liaison) The Client agrees to liaise with the Company as it reasonably requests for the purpose of enabling the Company to provide the Services.
C. (Permits) The Client warrants that they hold valid licences or are otherwise permitted to own and use the Products (Permits). The Company reserves the right to request proof of such Permits, cancel any Client Order in the absence of such Permits and charge administration fees if orders are placed for Products where the Client does not hold such Permits.
6. PAYMENT
6.1 AMOUNTS PAYABLE
A. The Client must pay all amounts payable to the Company under a Client Order and/or any invoice (including any deposit), in the amounts and at the times set out in the Client Order or invoice (as applicable) or as otherwise agreed in writing.
6.2 INVOICES
A. Unless otherwise agreed in the Client Order:
i. if the Company issues an invoice to the Client, payment must be made by the time(s) specified in such invoice; and
ii. in all other circumstances, the Client must pay for all goods and services within 2 weeks of receiving an invoice for amounts payable.
6.3 PAYMENT METHOD
A. The Client must pay all amounts payable under a Client Order or invoice using the Company’s online invoicing and payment system. The Company may also accept payment by bank transfer where agreed in writing.
6.4 GST
A. Unless otherwise indicated, amounts stated in a Client Order do not include GST. In relation to any GST payable for a taxable supply by the Company, the Client must pay the GST subject to the Company providing a tax invoice.
6.5 CARD SURCHARGES
A. The Company reserves the right to charge a credit card surcharge where payment is made using a credit, debit or charge card (including Visa, MasterCard or American Express). Any surcharge will be disclosed before payment is processed and will not exceed the Company’s reasonable cost of acceptance for that payment type.
6.6 LATE PAYMENT AND DEBT RECOVERY
A. If the Client does not pay an amount due under this Agreement on or before the date that it is due:
i. the Company may seek to recover the amount due by referring the matter to debt collectors;
ii. the Client must reimburse the Company for any costs it incurs, including any legal costs, in recovering the amount due or enforcing any of its rights under these terms;
iii. the Company may take steps to recover the Products and/or any amounts owing, including by enforcing its rights in relation to the Products, to the extent permitted by law; and
iv. the Company retains the right, without limiting any other rights under this Agreement, to charge the Client interest at a rate of 10% per annum on the outstanding amount. However, before applying this interest, the Company will provide the Client with a written notice giving an additional 7 days to complete the payment. If payment is still not received by the end of this 7-day grace period, interest will accrue from the expiration of that period until the date the full payment is received by the Company.
7. PRICING
A. The Client acknowledges that despite the Company’s reasonable precautions, a Client Order, quotation, invoice or other pricing communication may contain an incorrect price or charge, or incorrect availability and/or other information, due to administrative, typographical, system or calculation error and/or oversight (Pricing Error). Without limiting the foregoing, a price that is lower than the Company intended is a Pricing Error. In such circumstances, the Company may, in its discretion:
i. notify the Client of the Pricing Error and provide corrected pricing, availability or other details; and
ii. if the Client does not accept the corrected pricing, availability or other details, cancel the Client Order; or
iii. offer a reasonably equivalent alternative Product, but only if the Client approves the alternative in writing.
B. If the Company cancels a Client Order in accordance with clause 7.A, the Company will, as soon as practicable, contact the Client and issue a refund for any payment the Client has made for the cancelled order.
C. The Company will endeavour to make any refund under this clause to the original payment method used by the Client (where practicable). Where payment was made by bank transfer, or where the original method cannot be used, the Company may make the refund by bank transfer to an account nominated by the Client in writing.
8. PRODUCT INFORMATION
A. The Company endeavours to ensure that the descriptions and specifications in relation to the Products on its website or in catalogues are accurate. However, photographs, drawings, illustrations, weights, dimensions and any other particulars accompanying, associated with or given in a quotation, descriptive literature or a catalogue are based on information provided by manufacturers and suppliers and, as such the Company does not guarantee that those descriptions and specifications are accurate or free from errors or omissions, except to the extent required by applicable law. The Company reserves the right to make any necessary corrections to the descriptions or specifications without notice.
9. CABINETRY SUPPLY FORMATS
A. Where applicable, the Client Order will specify whether Products are supplied as “Flat Pack Supply” or “Pre-Constructed Supply”. If the Client Order does not specify a supply format, the Company will confirm the supply format in writing prior to order acceptance.
B. “Flat Pack Supply” refers to Products supplied in flat pack (unassembled) form for assembly and installation by the Client or the Client’s installer. This supply format includes:
i. supply of panels, components, fittings and hardware as packaged by the manufacturer or supplier; and
ii. labelling and packing suitable for transport and storage.
This supply format does not include any on-site assembly, installation, construction works, measuring, cutting, scribing, wall fixing, plumbing or electrical works.
C. “Pre-Constructed Supply” refers to Products supplied pre-assembled by the manufacturer or supplier (for example, cabinet carcases assembled) and delivered as assembled components. This supply format includes:
i. factory assembly of the relevant Products; and
ii. protective wrapping/packing suitable for transport and storage.
D. No supply format includes any on-site installation, construction works, joining of modules, levelling, scribing, wall fixing, benchtop installation, or plumbing or electrical works.
E. For all formats the Client is responsible for confirming site access and that the Product dimensions allow safe delivery to the installation location.
F. If there is any inconsistency between this clause 9 and a relationship contract between the Company and the Client (Partner Agreement), the Partner Agreement will prevail to the extent of the inconsistency.
10. MODES OF DELIVERY
A. Custom modes of delivery may be devised for bulk orders and these will be confirmed with the Client.
B. “Basic Pallet Delivery” refers to the standard delivery service provided by Your Import Partner Pty Ltd, which includes the transportation of goods from the Company’s warehouse or designated storage facility to the Client’s nominated delivery address. This service includes:
i. Delivery of goods on pallets to the kerbside or nearest accessible point at the delivery address.
ii. Unloading of pallets using a tail-lift or forklift (where access permits).
iii. No unpacking, assembly, or placement of goods within the premises.
iv. No removal of packaging materials or rubbish.
v. Delivery scheduled during standard business hours, unless otherwise agreed in writing.
vi. The Client (or their representative) must be present to receive and inspect the delivery, and must note any visible damage to packaging or Products at the time of delivery (including on any delivery docket or proof of delivery where applicable).
C. This service does not include any handling beyond the kerbside or designated drop-off point. Clients requiring room placement, unboxing, or additional handling should refer to the White Glove Delivery Service. “White Glove Delivery Service” refers to the premium Delivery Service offered by the Company and includes the following tasks and optional services:
i. receipt of goods into the Client’s or their contractor’s warehouse;
ii. breakdown of goods into carton lots (no unwrapping);
iii. condition photos taken upon receipt;
iv. sorting of boxes;
v. local delivery to the specified address;
vi. delivery of goods into designated rooms; and
vii. optional Services (available upon request):
(1) unboxing of goods and removal of packaging waste (excluding benchtops) on the day of delivery.
(2) insurance coverage for loss of or damage to the goods during the above services, subject to the insurer’s terms and conditions, limits and exclusions, and payment of any applicable premium by the Client as notified in writing.
viii. The Client (or their representative) must be present to receive and inspect the delivery, and must note any visible damage to packaging or Products at the time of delivery (including on any delivery docket or proof of delivery where applicable).
D. If the Client requests delivery to be delayed beyond the agreed delivery date (as confirmed in writing), or otherwise fails to accept delivery on the agreed delivery date, the Company may store the Products at the Client’s risk and expense and charge additional fees, including storage, rebooking and additional handling charges. Storage fees may be charged from the agreed delivery date until delivery occurs or the Products are collected.
E. If there is any inconsistency between this clause 10 and a relationship contract between the Company and the Client (Partner Agreement), the Partner Agreement will prevail to the extent of the inconsistency.
11. ORDER CONFIRMATION AND LEAD TIME
A. Lead times for bulk orders will be confirmed upon order acceptance. Estimated delivery timeframes are subject to change based on manufacturing and logistics conditions. The Company will notify the Client of any delays and provide revised delivery schedules.
12. MADE TO ORDER PRODUCTS
A. The Client acknowledges:
i. certain Products are manufactured or sourced specifically to order;
ii. these Products cannot be cancelled or returned for change of mind once the order is placed.
B. This does not affect the Client’s rights under the Australian Consumer Law if the Product is faulty or not as described.
13. CHANGE OF MIND RETURNS OR RESTOCKING FEES
A. The Company does not refund or accept returns for change of mind.
B. If the Company agrees in their sole discretion to accept a return of any Product that is not required to be refunded or re-supplied, the Products must be unopened, in original packaging, and in resalable condition.
C. A restocking fee of 25% of the amount paid for the returned Products under the relevant Client Order will apply, together with any return freight costs. Restocking fees do not apply to returns required under the Australian Consumer Law.
14. PRE-INSTALLATION CHECKS & INSTALLER RESPONSIBILITY
A. Before installation, the Client and/or installer must check that:
i. Products match the Client Order (including size, finish, batch, and shade);
ii. Quantities are sufficient to complete the project, including allowances for wastage;
iii. Products are free from visible defects.
B. The Company is not liable or responsible for installation of Products that were not reasonably inspected or reviewed prior to installation.
C. The Client agrees and accepts that installation constitutes acceptance of Products only in relation to apparent issues (for example, shade, batch, size or visible defects) that the Client and/or installer ought reasonably to have detected on inspection prior to installation. This clause operates in addition to clause 14.D.
D. The Client acknowledges that natural timber and timber veneer products may exhibit variations in colour, grain, texture, figure, knots and other natural characteristics, including variations between batches, sheets, panels or components, and that samples, photographs and display materials are indicative only. To the maximum extent permitted by law, the Company is not liable for, and the Client must not make a claim in respect of, such natural variations where the Products otherwise conform to the Client Order.
E. This clause does not limit your rights under the Australian Consumer Law for defects that could not reasonably be detected before installation.
15. TITLE AND RISK
A. Until the price of Products is paid in full, title in those Products is retained by the Company.
B. Risk in the Products will pass to the Client on delivery, including collection/pickup where the Client nominates its own carrier or otherwise arranges collection or transport.
C. If the Client fails to take delivery of, or collect, the Products within a reasonable time after the Company notifies the Client that the Products are ready for delivery or collection, the Company may store the Products at the Client’s risk and expense and charge reasonable storage and handling fees.
i. If the Client still does not take delivery or collect the Products after the Company gives written notice, the Company may dispose of or sell the Products in accordance with any applicable uncollected goods legislation, including by giving any notices and observing any timeframes required by that legislation.
ii. The Company may apply the proceeds of sale to any amounts owing to the Company (including reasonable storage, handling, sale and enforcement costs), and will account to the Client for any surplus proceeds, to the extent required by law.
D. If the Client does not pay for any Products on the due date for payment, the Company may enforce its rights in relation to the Products, including recovering possession of the Products, to the extent permitted by law.
E. The Company may at its option keep or resell Products retaken from the Client.
F. If the Client sells Products or sells items into which Products are incorporated before payment in full to the Company, the Client acknowledges that such sale is made by the Client as bailee for and on behalf of the Company, to hold the proceeds of sale on trust for the Company in a separate bank account (or otherwise as separately identifiable funds), and must pay that amount to the Company on demand.
G. Where the Company supplies Products without requiring full payment in cleared funds before delivery, title remains with the Company until full payment is received. The Client grants the Company a security interest in the Products and their proceeds under the Personal Property Securities Act 2009 (Cth) and consents to registration of that interest on the PPSR. The Client must promptly do all things reasonably required by the Company to give effect to and perfect that security interest, including providing information, confirmations and executing documents (including any PPSA-related documents) reasonably required for registration and maintenance of the security interest on the PPSR.
16. DELIVERY
16.1 COST AND OBLIGATIONS
A. The Company will use its best endeavours to deliver the Products within the delivery timeframe set out in the Client Order and/or any invoice issued by the Company, and/or the agreed specification document (or otherwise confirmed in writing to the Client at the time of sale). The Client acknowledges that this timeframe is an estimate only and may be subject to change due to factors outside the Company’s control, including but not limited to manufacturing delays, shipping disruptions, customs clearance, or force majeure events.
B. If delivery is delayed beyond the delivery timeframe referred to in clause 16.1.A, other than to the extent the delay is caused or contributed to by:
i. the Client (including any failure to provide access, instructions, approvals, measurements, site readiness, or to accept delivery as agreed), or
ii. a Force Majeure Event,
the Company will be entitled to a grace period of up to two (2) additional weeks to complete delivery without penalty.
C. If delivery has not occurred by the end of that grace period, the Client may, at its discretion:
i. accept a revised delivery timeframe as proposed by the Company; or
ii. receive a service credit for the delay calculated at $100 per day for each day delivery is delayed after the grace period, capped at 5% of the order total (the credit will be applied to any outstanding balance, or if the order has been paid in full, refunded to the Client); or
iii. if the delay exceeds twelve (12) weeks from the delivery timeframe referred to in clause 16.1.A, cancel the order and receive a refund of amounts paid for undelivered Products.
D. This clause is subject to the Company’s rights and obligations under the Australian Consumer Law. The Company may, at its discretion, deliver the Products to the Client in any number of instalments.
E. Despite clause 16.1.B, provided that the Company refunds the Client for any amounts paid for undelivered Products (excluding any non-refundable deposits or costs already incurred by the Company on the Client’s behalf, for example custom manufacturing or freight charges), the Company may cancel or terminate a Client Order where performance is prevented or materially delayed due to circumstances beyond the Company’s reasonable control.
F. If there is any inconsistency between this clause 16.1 and a relationship contract between the Company and the Client (Partner Agreement), the Partner Agreement will prevail to the extent of the inconsistency.
16.2 DAMAGE IN TRANSIT
A. Risk in the Products passes in accordance with clause 15.B. Where the Company (or its nominated carrier) delivers the Products, the Client must inspect the Products on delivery and notify the Company of any visible damage as required by clause 10.B.vi. Where the Client nominates its own carrier or otherwise arranges collection or transport, the Company’s responsibility and liability for loss of or damage to the Products ends on collection/pickup from the Company’s premises or nominated collection point, and the Client must make all claims for loss or damage in transit against its carrier. Nothing in this clause limits the Client’s rights under the Australian Consumer Law.
16.3 CLIENT DELAYS
A. If the Company’s performance of a Client Order (including manufacture, dispatch, delivery and/or provision of Services) is delayed or prevented due to any act or omission of the Client (including failure to provide access, instructions, approvals, measurements, site readiness, or failure to accept delivery as agreed), then:
i. any delivery timeframes will be extended by the period of the delay (and any resulting rescheduling lead time); and
ii. the Company may charge the Client for any reasonable additional costs incurred as a result (including storage, rebooking, redelivery and additional handling charges).
B. The Company will not be liable for any delay or failure to perform to the extent caused or contributed to by the Client. Nothing in this clause limits the Client’s rights under the Australian Consumer Law.
17. DEFECTIVE PRODUCTS AND ACCEPTANCE
17.1 DEFECTIVE PRODUCTS
A. Where the Client considers that any Products provided by the Company are defective, the Client must, within a reasonable time of receiving the Products, inform the Company of that fact in writing.
17.2 CLIENT’S OBLIGATIONS
A. Where Products are the subject of a notice under clause 17.1:
i. the Client must, at the Company’s option:
(1) leave the Products in the state and condition in which they were delivered until such time as the Company or its duly authorised agent has inspected the Products; or
(2) send the Company photographs, descriptions or other material evidencing the defects in the Products at info@yourimportpartner.com.au
ii. the Company will inspect the Products and/or evidence of defects in the Products within a reasonable time after notification by the Client; and
iii. if clause 17.2.A.i(1) or clause 17.2.A.i(2) is not complied with, the Company may suspend assessment of the claim until the Client provides the information or access reasonably required under this clause, and the Company may refuse the claim to the extent the Company’s ability to assess the alleged defect has been materially prejudiced by that non-compliance.
17.3 CALL-OUT FEE
A. The Company reserves the right to charge the Client a reasonable call out fee (at the rates notified to the Client in the Client Order or otherwise in writing prior to attendance), if upon inspection of the Products in accordance with clause 17.2.A.i(1), the Company determines that the Products are not defective in accordance with clause 17.5.
17.4 REPAIRS OR REPLACEMENTS OF DEFECTIVE GOODS
A. Subject to the Australian Consumer Law and this Agreement, if, upon inspection, in the reasonable opinion of the Company:
i. the Products are defective; and
ii. the Products were not damaged by the Client and/or the Client did not fail to take reasonable steps to prevent the Products from becoming damaged; or
iii. the Products are otherwise not in conformity with the Client Order, then at the discretion of the Company the Company will:
(1) replace the Products or supply the equivalent of the Products;
(2) repair the Products;
(3) pay the Client the cost of replacing the Products or acquiring equivalent Products; or
(4) pay the Client the cost of having the Products repaired.
17.5 GOODS CONSIDERED NOT TO BE DEFECTIVE
A. If, upon inspection, in the reasonable opinion of the Company:
i. the Products are not defective; or
ii. the Products are defective due to an act or omission of the Client, misuse, failure to use in accordance with the manufacturer’s instructions, or failure to take reasonable care by the Client; and
iii. the Products are otherwise in conformity with the Client Order, the Company will refuse the Client’s return, the Client will be taken to have accepted the Products and the Company will be entitled to the price for the Products set out in any Client Order.
17.6 ACCEPTANCE
A. Except where notice has been given in accordance with clause 17.1, acceptance of the Products is deemed for all purposes to have taken place:
i. when the Client makes known to the Company that it has accepted the Products;
ii. when the Client, after delivery of the Products, does any act in relation to them which is inconsistent with the Company’s ownership of the Products; or
iii. upon the expiry of the applicable inspection period below, whichever first occurs:
(1) for Basic Pallet Delivery, seven days from delivery; or
(2) for the White Glove Delivery Service, where unboxing is performed by the Company as part of the agreed service, two Business Days from completion of the unboxing.
iv. The inspection periods in clause 17.6.A.iii apply only to issues apparent on reasonable inspection at the relevant time.
v. Nothing in this clause limits the Client’s rights under the Australian Consumer Law for defects that could not reasonably be detected within the applicable inspection period.
17.7 WEAR AND TEAR
A. Products that have been subject to regular wear and tear will not be considered to be defective.
18. THIRD PARTY GOODS AND SERVICES
A. If the Company is required to acquire goods or services supplied by a third party, the Client may be subject to the terms and conditions of that third party (‘Third Party Terms’).
B. The Client agrees to any Third Party Terms applicable to any goods or services supplied by a third party that the Client or the Company acquires as part of providing the goods or services and the Company will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
C. The Company must, where reasonably practicable, provide the Client with, or otherwise make available to the Client, any Third Party Terms that will apply before the Client Order is accepted (or, if not reasonably practicable, as soon as practicable thereafter).
19. WARRANTIES
A. Any warranty offered by the Company under this clause 19 is a voluntary warranty provided in addition to the Client’s rights and remedies under the Australian Consumer Law (ACL).
B. If there is an existing Partner Agreement between the Company and the Client that expressly states a different warranty period for the Company’s voluntary warranty under this clause 19, that stated period will apply to the extent of any inconsistency.
C. In the absence of a Partner Agreement expressly varying the warranty period for the Company’s voluntary warranty under this clause 19, the Company offers a 6-year warranty on its supplied Products.
D. This warranty applies only to defects in materials or workmanship under normal use and service and excludes damage caused by misuse, improper installation, unauthorised modifications, or normal wear and tear.
E. The Client acknowledges that the Company does not provide installation services and is not responsible for the performance of any third-party installation. Warranty coverage is subject to compliance with the Company’s product handling and installation requirements.
F. To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this Agreement are excluded.
G. Nothing in this Agreement is intended to limit the operation of the ACL. Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.
20. MODERN SLAVERY COMPLIANCE
A. The Client and the Company warrant that they comply with all applicable laws relating to modern slavery, including the Modern Slavery Act 2018 (Cth). Each party must take reasonable steps to ensure that slavery, servitude, forced labour, and human trafficking are not taking place in their supply chains or any part of their business. The Company agrees to provide, upon request, evidence of its due diligence and risk management practices in relation to modern slavery.
21. LIABILITY
21.1 LIABILITY
A. To the maximum extent permitted by law, and subject to any rights and remedies that cannot be excluded under the Competition and Consumer Act 2010 (Cth) (including the Australian Consumer Law), the total aggregate liability of the Company to the Client in connection with this Agreement is limited to the amount paid by the Client to the Company under the Client Order to which the claim relates.
21.2 CONSEQUENTIAL LOSS
A. To the maximum extent permitted by law, the Company will not be liable to the Client for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with this Agreement or any Products or Services provided by the Company, except:
i. in relation to the Company’s liability for fraud, personal injury, death or loss or damage to tangible property; or
ii. to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth) (including the Australian Consumer Law).
21.3 SURVIVAL
A. Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this Agreement will survive and be enforceable after such termination or expiry.
22. RECORDS
A. The Company will maintain records relating to Client Orders in the ordinary course of its business.
B. Except where required by law or expressly agreed in writing (including under a Partner Agreement), the Company is not obliged to provide the Client with access to, or copies of, its internal records, systems, or working papers.
C. If the Client raises a genuine dispute about an invoice or alleges a material non-conformance with a Client Order, the Company may (in its discretion) provide reasonable supporting information relevant to that dispute, in the form and timeframe determined by the Company.
D. Any information the Company provides under clause 22.C may be redacted to protect the Company’s confidential information, including supplier terms, pricing models, third-party commercially sensitive information, and information relating to other customers.
E. The Client must reimburse the Company for its reasonable costs of responding to any request under this clause (including time and external advisor costs), unless the Company agrees otherwise in writing.
23. CONFIDENTIALITY
A. Each party agrees to keep confidential all information disclosed by the other party in connection with this Agreement, except where disclosure is required by law or with prior written consent.
24. DISPUTE RESOLUTION
A. A party claiming that a dispute has arisen under or in connection with this Agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with this clause 24.
B. A party that requires resolution of a dispute must give the other party written notice containing reasonable details of the dispute and the outcome sought (Dispute Notice).
C. Within 7 days after a Dispute Notice is given, each party must nominate a representative with authority to settle the dispute, and the representatives must confer (including by telephone or video conference) and use best efforts to resolve the dispute in good faith.
D. If the dispute is not resolved within 14 days after the date of the Dispute Notice (or such other period as agreed in writing), either party may refer the dispute to mediation by giving written notice to the other party.
E. The mediation will be:
i. administered by the Australian Disputes Centre (ADC) (or, if the ADC is unavailable, another mediation body agreed by the parties or nominated by the President of the Law Society of New South Wales on request of either party);
ii. conducted in Sydney, New South Wales (unless otherwise agreed in writing); and
iii. conducted in accordance with the mediation body’s rules in force at the time the mediation is commenced.
F. Each party will bear its own costs of the mediation and will share the mediator’s fees and the mediation body’s fees equally, unless otherwise agreed in writing.
G. If the dispute is not resolved within 21 days after the mediator is appointed (or such other period as agreed in writing), either party may commence court proceedings.
H. While a dispute is being resolved, each party must continue to perform its obligations under this Agreement to the extent practicable, unless to do so would be unreasonable or unlawful.
I. Each party must act in good faith in complying with this clause 24, including by:
i. participating promptly and genuinely in any required conference, negotiation and mediation steps;
ii. making reasonable efforts to progress the dispute toward resolution; and
iii. not engaging in conduct intended to frustrate, delay, or undermine the dispute resolution process.
J. Nothing in this clause 24:
i. requires a party to settle the dispute, or to negotiate beyond the timeframes in this clause 24;
ii. requires a party to make admissions, or to disclose confidential, commercially sensitive, or legally privileged information (except to the extent the party elects to do so);
iii. limits a party’s rights to seek urgent interlocutory relief under clause 24.A; or
iv. limits the Company’s rights to suspend performance or withhold delivery in accordance with this Agreement while a dispute is being resolved.
25. FORCE MAJEURE
A. If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this Agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:
i. reasonable details of the Force Majeure Event; and
ii. so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
B. Subject to compliance with clause 25.A, the relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
C. The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible.
D. For the purposes of this Agreement, a ‘Force Majeure Event’ means any:
i. act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
ii. strikes or other industrial action outside of the control of the Affected Party;
iii. war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
iv. any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of the Affected Party, to the extent it affects the Affected Party’s ability to perform its obligations.
26. NOTICES
A. A notice or other communication to a party under this Agreement must be:
i. in writing and in English; and
ii. delivered via email to the other party, to the email address specified in this Agreement, or if no email address is specified in this Agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this Agreement as at the date of this Agreement (Email Address). The parties may update their Email Address by notice to the other party.
B. Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
i. 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this Agreement, in which case the notice will be taken to be given on the next occurring Business Day in that state or territory; or
ii. when replied to by the other party,
whichever is earlier.
27. GENERAL
27.1 GOVERNING LAW
A. This Agreement is governed by the law applying in New South Wales.
27.2 JURISDICTION
A. Each party irrevocably submits to the exclusive jurisdiction of the courts of NSW, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
27.3 ASSIGNMENT
A. A party cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior consent of each other party (such consent not to be unreasonably withheld).
27.4 RELATIONSHIP
A. Nothing contained in this Agreement creates an agency, partnership, joint venture or employment relationship between the Company and the Client or any of their respective employees, agents or contractors.
B. Neither party nor any person acting on its behalf may hold itself out as being entitled to contract or accept payment in the name of or on account of the other party.
27.5 AMENDMENTS
A. This Agreement may only be amended by a document signed by each party.
27.6 WAIVER
A. No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
27.7 FURTHER ACTS AND DOCUMENTS
A. Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this Agreement.
27.8 ENTIRE AGREEMENT
A. This Agreement embodies the entire Agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or Agreement, express or implied, in relation to the subject matter of this Agreement.
27.9 INTERPRETATION
A. Headings are for convenience only and do not affect interpretation.
B. The singular includes the plural and vice versa.
C. “Including” and similar words do not imply any limitation.
D. A reference to “in writing” includes email.
28. TERMINATION AND SUSPENSION
28.1 SUSPENSION
A. Without limiting any other right, the Company may suspend performance of any Client Order (including manufacture, dispatch, delivery and/or provision of Services) immediately on written notice to the Client if the Client fails to pay any amount when due or otherwise materially breaches this Agreement, until the breach is remedied.
28.2 TERMINATION FOR CAUSE
A. Either party may terminate a Client Order or this Agreement immediately by written notice if the other party commits a material breach of this Agreement and fails to remedy that breach within 10 Business Days after receiving written notice requiring it to do so.
B. The Company may terminate a Client Order immediately by written notice if the Client becomes insolvent, enters into administration, liquidation or any analogous process, or is otherwise unable to pay its debts as and when they fall due.
28.3 CONSEQUENCES
A. On termination or cancellation of a Client Order by the Company under this clause 28, the Client must pay the Company for:
i. all Products supplied and Services provided up to the effective date of termination; and
ii. all reasonable costs incurred by the Company in connection with the Client Order prior to termination (including any non-cancellable third-party costs, custom manufacturing costs and freight charges), to the extent not already paid.
B. Clauses 6, 15, 18, 19, 21, 23, 24, 26, 27 and this clause 28 survive termination to the extent they are capable of operating.