Fees
All fees stated in the agreement are inclusive of GST, and any other applicable taxes.
Invoicing details
The supplier will submit an invoice to the retailer, in an approved format, for the products provided by the supplier in accordance with the amount agreed or calculated at the rate agreed. If payment is requested by the supplier from the retailer before the Products are delivered, the retailer agrees to comply with this request.
Payment details
Payment will be made by the retailer to the supplier within 7 business days of receiving the invoice. Payments are to be made by direct bank deposit to the following bank account -
Name: Gardening on Country
BSB number: 033-203
Account number: 534089
Jurisdiction
Victoria, Australia.
Recommended retail pricing
- Womby, Peli and Casso (individual adult hand tools) $21.00 AUD
- Combo pack (any 2 adult sized hand tools) $40.00 AUD
- Combo pack (any 3 adult sized hand tools) $56.00 AUD
- Joey, Nesti and Chicky (individual kids hand tools) $12.00 AUD
- Combo pack (any 2 kids sized hand tools) $22.00 AUD
- Combo pack (any 3 kids sized hand tools) $35.00 AUD
- Bandi dibbler $12.00 AUD
- Wonga trellis $38.00 AUD
Minimum Advertised / Retail Price Clause
The Retailer agrees to sell the Products at or above the Recommended Retail Price (RRP) set by the Wholesaler. The Retailer must not advertise, promote, list, or sell the Products below the stated RRP at any time, except as part of a genuine limited-time promotional special. Any such special must be temporary in nature, clearly identified as a promotion, and must not exceed a reasonable promotional period (for example, 14–30 days) without the Wholesaler’s prior written approval. Ongoing or repeated discounting below RRP outside approved promotional periods constitutes a breach of this Agreement and may result in suspension or termination of wholesale supply at the Wholesaler’s discretion.
THIS WHOLESALE AGREEMENT IS BETWEEN
Supplier (refer to the Details Schedule)
AND
Retailer (refer to the Details Schedule)
1. APPOINTMENT
1.1 The Supplier agrees to supply the Products to the Retailer, as an independent contractor, for the Term in accordance with the terms of this Agreement.
2. TERM
2.1 The Term of this Agreement is set out in the Details Schedule and will apply to this Agreement, unless terminated earlier in accordance with the termination clauses set out in this Agreement.
3. PRODUCTS
3.1 The Retailer accepts that the Retailer will need to order the Minimum Product value for each order the Retailer submits to the Supplier.
3.2 The Products will be ordered by Retailer in accordance with the Order Details set out in the Details Schedule.
3.3 All Product orders requested by the Retailer from the Supplier are subject to availability by the Supplier.
4. EXCLUSIVITY
4.1 There is no exclusivity for the wholesale of the Products provided from the Supplier to the Retailer or any other such rights associated with this Agreement.
5. INVOICING AND PAYMENTS
5.1 In consideration for the Products, the Retailer will pay the Fees to the Supplier.
5.2 Invoicing of the Fees will occur in accordance with the Invoicing Details set out in the Details Schedule and will occur throughout the Term.
5.3 Payment will be made by the Retailer to the Supplier in accordance with the Payment Details set out in the Details Schedule.
5.4 If payment is not made in accordance with the Payment Details, the Supplier has the right to claim interest from the Retailer at the rate of 15% per annum.
5.5 All Fees are inclusive of GST in accordance with the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
6. CHANGES TO PRICES AND PRODUCTS
6.1 The Fees and any other associated costs with this Agreement are subject to change by the Supplier without notice.
6.2 All Products will be shipped at the Fees in effect at the time of shipping.
6.3 The Supplier reserves the right, in the Supplier’s sole discretion, to change the Products, packaging and any included documentation associated with the Products without notice.
7. SHIPPING AND DELIVERY DETAILS
7.1 The Products will be shipped to the Retailer in accordance with the Delivery Details as set out in the Details Schedule.
7.2 The Retailer agrees to incur the delivery fees if the cost of delivery is not included in the cost of the Products as advertised by the Supplier.
7.3 Once the Products have left the Supplier’s premises, the Retailer recognises that the Supplier will be engaging a third party for delivery and, therefore, the Retailer full indemnifies and holds the Supplier harmless for any claim, demand, damage, cost, expense or loss including any legal costs on a full indemnity basis arising out of the delivery or shipping of the Products.
7.4 The Supplier will use reasonable efforts to deliver the Products to the Retailer by the time and date specified by the Retailer. Without limiting clause 9 (Exclusions and Limitations), the Supplier shall not be liable for late delivery, or delay in delivery.
7.5 If requested by the Supplier, the Retailer shall, from the delivery date and until the Supplier has received payment for all Products or any other costs associated with this Agreement in full, insure the Products for their full replacement value and provide to the Supplier, upon request, evidence of such insurance.
7.6 The Supplier reserves the right to make deliveries in instalments and this Agreement shall be severable in regards to such instalments.
8. DEFECTS AND RETURNS
8.1 If any order errors and/or defects to the Products are identified by the Retailer, the Retailer must report these issues to the Key Supplier Contact within five [5] business days of receipt of shipment by the Retailer.
8.2 Not limiting the terms set out in clause 9 (Exclusions and Limitations) if a Product is defective, either in workmanship or materials, the Retailer must immediately notify the Key Supplier Contact of the defects and, upon appropriate confirmation and evidence of the defects provided from the Retailer to the Supplier, the Supplier will either repay the wholesale fees in full back to the Retailer, or offer a credit or replacement to the Retailer.
8.3 The Retailer agrees to not knowingly sell defective Products to the Retailer’s customers.
8.4 The Supplier does not accept returns of Products for poor sale or non-performance.
8.5 Notwithstanding the above provisions, Retailers and their customers may have rights under Australian Consumer Law, or other applicable laws.
9. EXCLUSIONS AND LIMITATIONS
9.1 All express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), relating to this Agreement, that are not contained in this Agreement, are excluded to the fullest extent permitted by law.
9.2 No Product warranty is attached to the Products and the Supplier will not be liable for:
(a) alterations to Products for which the Supplier is not responsible;
(b) the Retailer claiming to its customers that the Product is fit for purpose;
(c) damage or failure caused by unusual or non-recommended uses or application of the Products; and
(d) loss caused by any factors beyond the Supplier’s control.
10. DISCLAIMER OF WARRANTIES
10.1 The Supplier cannot guarantee the Product is fit for purpose or will not vary in colour or shade. The Supplier hereby disclaims all express and implied warranties, including, without limitation, implied warranties of merchantability and fitness for particular purpose or that this Product will not harm the Retailer’s customers. All such warranties are hereby disclaimed and excluded from any and all transactions between the Retailer and the Supplier and shall not apply to the Products sold by the Retailer to its customers.
11. LIMITATION OF LIABILITY
11.1 The Supplier will not be liable for any special, indirect, consequential or economic loss or damage or loss of profits (in contract or tort or arising from any other cause of action) suffered by the Retailer, a Retailer’s customer or any other person resulting from any act or omission by the Supplier.
11.2 The Supplier’s total liability under this Agreement or for breach of the Supplier’s contractual obligations or duties at law or in equity (however arising) is limited, at the Supplier’s option to:
(a) the replacement of the Products or the supply of equivalent Products;
(b) the repair or rectification of the Products; or
(c) the payment of the cost of replacing the Products.
11.3 If the Retailer obtains goods or services from a third party in order to carry out the Retailer’s instructions or complete a Product order submitted from the Retailer to the Supplier:
(a) the Supplier will not be liable for any breach of this Agreement if that breach is as a result or is connected with the supply by a third party of such goods or services;
(b) the Supplier acquires such goods or services as agent for the Retailer not as principal and will have no liability to the Retailer in relation to the supply of these goods or services;
(c) any claim by the Retailer in relation to the supply of such goods or services must be made directly against that third party; and
(d) the Retailer must pay for such goods or services and the Supplier will give the Retailer notice of any such third party charges as applicable.
12. TERMINATION
12.1 The Supplier may terminate this Agreement upon giving 3 days’ prior notice to the Retailer.
12.2 The Retailer may terminate this Agreement upon giving 30 days' prior notice to the Supplier.
12.3 The Retailer will be liable to pay for any outstanding Fees incurred before the date of termination.
13. INTELLECTUAL PROPERTY
13.1 The Retailer acknowledges and agrees that:
(a) any and all right, title and interest, including Intellectual Property Rights, in any the Supplier Material vest in the Supplier upon creation;
(b) the Supplier owns and retains all Intellectual Property Rights in all the Supplier Materials and nothing in this Agreement grants the Retailer any Intellectual Property Rights in the Supplier Materials.
13.2 the Supplier grants the Retailer a non-exclusive and revocable licence during the Term to use the Supplier Materials provided to the Retailer solely for the purpose of, and as necessary for, the Retailer to benefit from the Products in accordance with this Agreement. Except as expressly permitted under this Agreement, the Retailer will not at any time create, copy, duplicate or use, or otherwise take any commercial advantage of the Supplier Materials, nor assist any other party to do so, except as authorised under this Agreement.
13.3 A party must not engage in any conduct which may challenge, damage or compromise the other party’s Intellectual Property Rights in that other party’s materials (being the Supplier Materials or Retailer Materials, as applicable).
13.4 Brand attribution. When the Retailer lists, advertises or promotes the Products in print or online (including its website, online store, marketplace listings and social media), the Retailer must:
(a) identify the Products as made by “Gardening on Country” in the product title or description;
(b) describe the Products accurately, using the product information and images supplied by the Supplier; and
(c) not present the Products as the Retailer’s own brand, rebrand them, or remove or cover the Supplier’s labels or branding.
13.5 If a listing does not meet clause 13.4, the Supplier may ask the Retailer to correct it, and the Retailer must do so within 14 days. Repeated or uncorrected non-compliance may lead to suspension or termination of wholesale supply under clause 12.
14. CONFIDENTIALITY
14.1 Each party (receiving party) must keep confidential all Confidential Information given to that party by the other party (disclosing party), and must use the same degree of care to protect the disclosing party’s Confidential Information as used to protect its own confidential information of a similar nature but not less than reasonable care.
14.2 The receiving party will not disclose any Confidential Information of the disclosing party to any third party without the disclosing party’s prior written consent and provided that the recipient is made aware of the nature of the information and agrees to abide by confidentiality obligations on terms acceptable by the disclosing party.
14.3 The Confidential Information of a party is the property of that party. Unless otherwise stated, the receiving party obtains no right, title, interest or licence in or to the Confidential Information of the disclosing party.
15. PRIVACY
15.1 The parties agree that where personal information (as defined in the Privacy Act 1998 (Cth) (Privacy Act) is disclosed or transferred from one party to the other, it is the responsibility of the disclosing party to ensure that proper notification of collection is made to the individual involved in accordance with the Privacy Act and the Australian Privacy Principles (as defined in the Privacy Act).
16. RESTRAINTS
16.1 The Retailer:
(a) acknowledges the Retailer will have access to Confidential Information of the Supplier and valuable relationships and business contacts of the Supplier; and
(b) agrees for the duration of the Term and for a period of 6 months after the end of the Term, not to (or assist any third party to) approach, employ, engage, hire, solicit, divert, or entice away from the Supplier any person introduced to the Retailer by the Supplier.
16.2 The Retailer further acknowledges that the provisions in this clause 16 are fair, reasonable and adequate to protect the legitimate commercial interests of the Supplier.
17. DISPUTES
17.1 Either party may give a notice in writing to the other party stating the details of a dispute between the parties (Notice of Dispute).
17.2 Representatives of the parties having authority to settle the dispute must meet within 7 days of the Notice of Dispute to attempt to resolve the dispute. If the Representatives cannot do so, either party may commence court proceedings in respect of the issues outlined in the Notice of Dispute.
17.3 Nothing in this clause prevents a party from commencing proceedings to seek urgent interlocutory relief.
17.4 Despite the existence of a dispute, the parties must continue to perform their obligations under this Agreement.
18. GENERAL
18.1 Any notice, or other communication to be given by either party under this Agreement shall be deemed to have been duly given if it is in writing for and/or on behalf of the concerned party and delivered under acknowledgment due at the address details indicated in this Agreement or as advised from time to time hereafter in writing by a party to the other.
18.2 This Agreement may be executed in any number of counterparts and by the parties on separate counterparts. Each counterpart constitutes the Agreement of each party who has executed and delivered that counterpart.
18.3 Neither party may assign or novate this Agreement or a right or obligation under this Agreement without the prior written consent of the other party.
18.4 Any variation, amendment or modification of this Agreement will not be effective unless agreed between the parties in writing (including electronic communication).
18.5 The Retailer must do such further acts and things and execute such further documents as may be necessary in the reasonable opinion of the Supplier to give effect or better effect to the provisions of this Agreement.
18.6 Nothing in this Agreement is intended to constitute a fiduciary relationship or an employment, agency, partnership or trust, and no party has authority to bind any other party.
18.7 Any provision of this Agreement which is prohibited or unenforceable will be interpreted as narrowly as necessary to allow it to be valid or enforceable, and if such narrow interpretation is not sufficient to make the clause enforceable or valid, then the provision will be severed from this Agreement without invalidating the remaining provisions.
18.8 This Agreement is the entire agreement between the parties about its subject matter and replaces all previous agreements, understandings, representations and warranties about that subject matter.
18.9 This Agreement is to be governed by the Jurisdiction, and the parties agree to the exclusive jurisdiction of the courts.
19. DEFINITIONS
19.1 Unless the context requires otherwise, capitalised terms not defined in this clause have the meaning given to them in the Details Schedule:
Agreement means this agreement and any schedule, annexure, appendix, exhibit or attachment to this Agreement.
Agreement Date means the date set out in the Details Schedule, and if no date is shown, the date the last party executes this Agreement.
Retailer Materials means the Retailer’s Pre-Existing Materials and Retailer’s brand, logos and other materials provided by the Retailer to assist in the provision of the Products.
Confidential Information includes the terms and conditions of this Agreement (but not its existence) and any information provided by a party to the other which is, or can be inferred to have been, provided in commercial confidence or of a confidential nature, whether or not expressly marked “Confidential”, including any information relating to the commercial activities, technologies, business processes, Retailer, partner or supplier relationships, strategic information, know-how and any other information regarding the business of the disclosing party.
Details Schedule means the schedule included at the beginning of this document. The Details Schedule forms part of this Agreement.
Delivery Details means the delivery details as agreed between the Retailer and the Supplier as set out in the Details Schedule.
Key Supplier Contact means the key contact nominated by the Supplier to communicate with the Retailer as set out in the Details Schedule.
Order Details means the order details as agreed between the Retailer and the Supplier as set out in the Details Schedule.
Fees means the fees payable to the Supplier in consideration for the Products as set out in the Details Schedule, or any other applicable fees associated with this Agreement.
Invoicing Details means the invoicing details set out in the Details Schedule.
Intellectual Property Rights means any intellectual and industrial property rights or entitlements throughout the world including those in connection with any confidential information, copyright (including future copyright and rights in the nature of or analogous to copyright), moral rights, inventions (including patents), trade marks, service marks and designs, whether or not now existing and whether or not registered or registrable, as well as any right to apply for the registration, renewals and extensions of those rights, and any other Intellectual Property Rights as defined in Article 2 of the World Intellectual Property Organisation Convention of 1967.
Minimum Product Order means the minimum number of Products set out in the Details Schedule that the Supplier will provide to the Retailer per order.
Payment Details means the payment details set out in the Details Schedule.
Pre-Existing Materials means any materials which were developed or owned by a party before or independent of this Agreement, even if used or adapted in whole or in part during or as a result of the performance of the Products.
Products means the products set out in the Details Schedule, or additional products as agreed between the Supplier and the Retailer.
Supplier Materials means any Pre-Existing Materials and any material, including any documents, presentations, leaflets, brochures provided by the Supplier during, as a result of or in connection with the provision of the Products (including any copy or content included in them), as well as any derivative work created or developed in the performance of this Agreement by the Supplier either in isolation or jointly with the Retailer, but excludes Retailer Materials and Third Party Materials.
Term means the term set out in the Details Schedule.
20. INTERPRETATION
20.1 Details to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulation issues under, the legislation;
20.2 Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, details to documents or Agreements also mean those documents or Agreements as changed, novated or replaced, and words denoting one gender include all genders;
20.3 Grammatical forms of defined words or phrases have corresponding meanings;
20.4 Parties must perform their obligations on the dates and times fixed to the capital city of the Jurisdiction;
20.5 Details to an amount of money refers to the amount in the lawful currency of the Commonwealth of Australia;
20.6 If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next business day;
20.7 Details to a party are intended to bind their executors, administrators and permitted transferees;
20.8 Obligations under this Agreement affecting more than one party bind them jointly and each of them severally; and
20.9 The terms and conditions herein replace any other terms and conditions of engagement that may have applied prior to the date of this Agreement.