1. Definitions & Interpretation
- “MARQ Labs” or “Supplier” “we”, “our” or “us” means Marque Of Brands Pty Ltd
- “Contract” means the agreement to sell and deliver Goods to the Customer by MARQ Labs including any quotation, order and these Terms.
- “Customer” or “you” means the individual, company or other entity buying or ordering Goods from us.
- “Goods” means products or services that we may sell, supply or deliver from time to time.
- “Order” means any approved sales/purchase order issued from a Customer to MARQ Labs by either printed or electronic means.
- “Price” means the price payable for the Goods as agreed in accordance with clause 5 of these Terms.
- “Special Condition” means any special terms and conditions forming part of a quotation.
- “Terms” means these terms and conditions.
(i) The Terms supersede any oral or written agreements that may have been previously reached between MARQ Labs and the Customer. These Terms apply regardless of any contrary express or implied terms, conditions or warranties in any of the Customer’s documents.
(ii) These Terms shall be deemed to be incorporated into any and all orders and contracts concluded with MARQ Labs.
(iii) If any provision of the Terms is determined to be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.
(iv) Together with the terms contained in any quotation and/or Order, any Special Conditions these Terms form a contract between MARQ Labs and the Customer.
(a) All Orders for Goods is an offer by you to purchase Goods pursuant to these Terms.
(b) Acceptance and delivery of Goods to you is conclusive evidence of your acceptance of these Terms.
3. Offers & Quotations
(a) These Terms apply to any quotation given to you.
(b) No quotations, representations or oral arrangements are binding upon MARQ Labs, unless and until confirmed by us in writing, or through the actual acceptance of an Order by us.
(c) Quotations are subject to change prior to acceptance.
(d) An Order or quotation cannot be altered by you without our written consent.
(e) A quotation is deemed to have been accepted by you on the placing of an Order.
4. Orders & Sale of Goods
(a) Unless agreed upon in writing, all Orders by you must be placed at least thirty (30) days before expected delivery.
(b) You agree that a change in design, packaging or finish of the Goods between acceptance of the Order and delivery of the Goods will not render the Goods of unmerchantable quality or unfit for purpose and will not constitute a failure to meet any description or sample.
(c) We may from time to time advise you of the maximum Price at which the Goods are to be sold or offered for sale. You agree that it will not sell, offer for sale the Goods for a Price that is more than the notified maximum Price advised by us.
(d) The Goods are sold to you as our Customer and therefore:
(i) You are the end user and are not authorised to re-sell or on-sell the Goods or
(ii) You have written authorisation as a Special Condition of these Terms to resell or on-sell the Goods duly signed by an authorized MARQ Labs executive
(iii) Any on-sold Goods from an unauthorised reseller voids all warranties
(e) Any goods transferred, transported or moved by you across a Territory, Border or Country will avoid all warranties.
(f) All Sales of MARQ Labs products on third-party e-commerce websites are strictly prohibited without written consent of MARQ Labs. This includes, but is not limited to: Amazon, ebay, Overstock, Catch and all Flash Sale Websites.
5. Pricing & Invoicing
(a) The Price will be MARQ Labs quoted price as contained in a quotation or Order, subject to clause 3 and this clause 5.
(b) All pricing is in in AUD ($) and may attract Goods & Services Tax (GST). Please note that such GST may be included in the quoted prices or excluded from the quoted prices depending upon the platform from which the purchase is made.
(c) We reserve the right to alter the sales price at any point in time, by providing not less than thirty (30) days’ notice to you.
(d) We reserve the right to immediately alter, without notice, any price to any Customer if external forces (for example, government policies/laws/regulations currency exchange shifts, raw materials cost increases or increase costs of suppliers) impose costs or conditions upon use that are deemed by us to be out of your control.
(e) Unless otherwise agreed in writing with you, Goods are non-returnable.
(a) At our sole discretion delivery of the Goods will take place when:
(i) You take possession of the Goods at our address; and or
(ii) You take possession of the Goods at your nominated address.
(b) Goods are transported at your risk.
(c) We are not liable or responsible for any delay incurred in the delivery process incurred by your nominated carrier.
(d) Statements regarding delivery times and periods are approximates only, unless otherwise provided in writing.
(e) If, for whatever reason, you do not accept and pay in full for the Goods delivered pursuant to an Order, all costs resulting from return transport, storage, recycling, scrapping, resale and other costs will be at your expense.
(f) Failure by us to deliver the Goods by reason of any circumstances of whatever nature including but not limited to fire, flood, explosion, strike, lock-out or other industrial act or dispute, the breakdown of or accident to plant, unavailability of shortage of raw material, labour, power supplies, or transport facilities, international transportation delay, storm, a shortage of product, an act of God, or any order or direction of any local, state or federal government or government authority or instrumentality shall not constitute a breach of these terms and conditions or render MARQ Labs to any liability.
7. Intellectual Property
The Customer acknowledges that the Customer’s sole right to use the intellectual property in the brands and/or Goods is derived from these Terms and any other agreement between MARQ Labs and the Customer (if any); and you must only use the intellectual property in connection with the sale of the Goods.
(a) Payment must be made in full no later than the date at which the payment falls due, without any discount and/or offset, unless otherwise agreed upon in writing. If not date of payment is specified then payment shall be due fourteen (14) following the date of invoice.
(b) Payment must be made in the manner set out in the invoice. The provision of payment terms is in our absolute discretion.
(c) If you default in payment of any invoice when due, you indemnify us from and against all costs and disbursements incurred by us in pursuing the debt including legal costs on a solicitor and own client basis and our collection agency costs.
(d) Claims in respect of allegedly defective Goods or Goods with deviations from specifications will not be grounds for withholding payment of account and will not give you any right to offset payment of account.
(e) In the case of your failure to pay the invoice/account amount by the due date, it will become immediately due and payable, without any notice of default being required. In the event of late payment, you must pay interest at the rate of 2% per month calculated daily on the invoice amount for the time by which the payment period has been exceeded.
(f) We retain the right to terminate the Contract or to suspend its performance in full or in part with immediate effect, without prejudice to our other rights, if:
(i) any money payable to us becomes overdue, or in our opinion you will be unable to meet its payment obligations as they fall due;
(ii) you die, apply for suspension of payments, files for a bankruptcy order or requests to;
(iii) you are admitted to a statutory debt rescheduling, scheme or management arrangement;
(iv) bankruptcy, liquidation or like proceedings are instituted against the Customer; or
(v) Your business is closed down or liquidated.
(g) Without limiting any other provision of these terms, you agree:
(i) that we hold a security interest for the purposes of the Personal Property Securities Act 2009 (Cth) (“PPSA”) (by virtue of the retention of title provisions) in all Goods supplied is to you from time to time;
(ii) we hold a security interest for the purposes of PPSA (by virtue of the retention of title provisions) in all proceeds arising from the sale of Goods supplied by us to you from time to time; and
(iii) to provide all information and assistance necessary to register and maintain such an interest, until such Goods have been paid for in full by you.
9. Risk & Title of Goods
(a) All Risk for the Goods passes to you on dispatch. Ownership of the Goods sold will only pass to you on payment in full of the sale price and any other amounts payable in respect of all Goods delivered or to be delivered pursuant to the Contract.
(b) Prior to payment in full of the outstanding amounts, you will not be entitled to pledge or otherwise offer as security the Goods or transfer ownership, other than in accordance with its normal business operations.
(c) If you do not pay in accordance with these Terms, you authorise us to: enter any premises where the Goods may be stored or in use; retake possession of the Goods; and, to keep or resell Goods repossessed. You indemnify us against any claim, action or cost arising out of the exercise of this right of entry and removal.
(d) It is further agreed that Title of goods will not pass until:
(i) Full payment is made and cleared by MARQ Labs banking institution and the goods have been picked up or delivered, having a signed authority of acceptance
(ii) All Goods must be picked up or delivered, having a signed authority within 30 days of notification that the Goods are available for pickup or delivery
(iii) Any disputed claim or chargeback is agreed to in writing by MARQ Labs
(e) It is further agreed that:
(i) where practicable the Goods must be kept separate and identifiable until full payment is received and cleared in full and;
(ii) You are only a bailee of the Goods until such time as we have received payment in full for the Goods and until then you shall hold any proceeds from the sale or disposal of the Goods on trust for us.
10. Complaints & Claims
(a) Complaints relating to visible deviations from specification and/or defects in sold Goods must be submitted to us by you in writing within seven (7) days of delivery of Goods, otherwise you will be deemed to have accepted the Goods as delivered. If a complaint is well-founded, we will then have the right, at our discretion, to repair or replace the Goods in question, or credit or refund the invoice amount due for these Goods.
(b) Goods may only be returned if:
(i) we have agreed in writing to the return of Goods and you have complied in all respects with the provisions of this clause; and
(ii) after inspection of the Goods returned MARQ Labs has agreed in writing to accept the return of the Goods and to provide a refund to you.
(c) We will not be liable to accept the return of Goods which have not been stored or used in a proper manner or have been abused or neglected.
11. Liability of MARQ Labs
(a) To the full extent permitted by law, we will not be liable for any loss including indirect, incidental or consequential loss, damage, death or injury occasioned by you or any other person arising from the purchase of the Goods other than replacement of the Goods.
(b) Our liability for breach of a condition or warranty contained in these Terms, any other agreement between the parties or implied into this Contract or these Terms by Statutory Provisions is limited to any one of the following as determined by us:
(i) the replacement of the Goods or supply or equivalent Goods;
(ii) the repair of the Goods or payment of the costs of having the Goods repaired; or
(iii) the refund of the price paid by you for the Goods.
(c) You assume all risk and liability for loss, damage or injury to persons or property of the Customer, or to others arising out of the use or possession of any of the Goods sold to the Customer whether such Goods are used singularly, or in combination with other Goods, or any process.
12. Goods and Services Tax
We will charge you, and you agree to pay, the amount of any Goods and Services Tax (“GST”) payable in respect of the Goods or as a result of the supply of Goods by us.
13. Dispute Resolution
(a) All disputes between the Parties arising out of or related to the Contract of these Terms must in the first instance be referred to a representatives meeting between the parties.
(b) If the appointed representatives cannot resolve the dispute within fourteen (14) days, the dispute must be referred to mediation as agreed by the parties. Failing agreement, the dispute will be conducted at the The Melbourne Commercial Arbitration and Mediation Centre (MCAMC) in accordance with the MCAMC Guidelines. Unless otherwise agreed, the mediation shall be held in Melbourne, Australia.
(c) If mediation is,
(i) abandoned by the mediator;
(ii) otherwise concluded with the dispute being resolved; or
(iii) not resolved within 60 days of the date of service of the notice of dispute (or such additional period as agreed by the Parties in writing),
the dispute must be referred to Expert Determination to be conducted at MCAMC in accordance with the MCAMC Expert Determination Guidelines. Unless otherwise agreed, the expert determination shall be held in Melbourne, Australia.
14. Governing Law
These Terms are subject to the laws of Victoria, Australia. Both parties submit to the non-exclusive jurisdiction of the courts of that state.