Vendor Terms

1. Purchase and Delivery

(a) You must supply and Deliver the Goods in accordance with the time, location, volume and other requirements set out in these terms.

(b) We are under no obligation to issue a Purchase Order or any number of Purchase Orders to you over a particular period.

(c) If we issue a Purchase Order to you, you will be deemed to have accepted, and you must fulfil, that Purchase Order unless you notify us that you do not accept that Purchase Order within:

(i) the time period notified to you for the relevant Purchase Order; or
(ii) if no time period is notified, 24 hours after receipt of the relevant Purchase Order.

(d) Goods delivered in respect of separate Purchase Orders must be delivered in separate cartons and must have a Goods Receiving Note specifying following information:

(i) Purchase Order number
(ii) Quantities of each item of Goods supplied and
(iii) Any other detail that we require

(e) Title will pass once a Goods Receiving Note has been signed by our authorised officer at the point of receipt into our premises.

(f) We will not pay a separate charge, fee or levy of any kind for freight or delivery of the Goods to us (in addition to the price for the Goods stated in the Purchase Order). You must keep records in relation to any Purchase Orders and the delivery of the Goods for at least 12 months from the date of Delivery of the Goods.

(g) Upon request, you must provide us with independent test reports of any Goods including but not limited to those Goods that are subject to any statutory standard including (without limitation) electrical safety standards. We may ask you to supply reasonable evidence of the compliance of relevant Goods with applicable statutory standards at any time during and for a period of 2 years after the date of Delivery of the Goods.

(h) We may cancel or vary any Purchase Order within 21 Business Days of issuing the Purchase Order.

(i) If at the time that you receive our notice of cancellation or variation of a Purchase Order under clause 1(h), you have already fulfilled or commenced the process of fulfilling that Purchase Order, you must notify us accordingly in writing and, unless the parties agree otherwise in writing, the purported cancellation or variation of that Purchase Order will be of no effect.

2. Purchase Price and Fees

2.1 Price

The price of the Goods is as set out in the Purchase Order. You acknowledge that the allowances and rebates agreed with you and set out in the Commercial Terms will be:

(a) deducted off the invoice price of the Goods by you; or

(b) deducted by us from the payment for the Goods by remittance.

2.2 Invoicing

An invoice setting out all details regarding pricing, the Purchase Order number must accompany the relevant Goods when they are Delivered in accordance with clause 1. A Goods Receiving Note must always accompany the Goods.

2.3 Payment

Subject to clause 2.4 we will pay all rendered invoices on the settlement terms of 90 days unless otherwise notified in writing. If any payment is rejected by supplier and/or its banking institution for any reason what-so-ever a surcharge of US$150 will be deducted from the payment.

2.4 Disputed invoices

If at any time we either:

(a) Dispute the amount of an invoice; or

(b) Advise you that the Goods to which a disputed amount relates do not meet the standards and or other requirements prescribed by these Terms.

We do not have to pay the disputed amount until the dispute is resolved. If the disputed amount has already been paid by us, we may withhold such disputed amounts from any future amounts due to you by us. You may not, wholly or partially, suspend, cancel or withdraw the provision of the Goods pursuant to a Purchase Order accepted by you merely on the basis that an invoice is being disputed. We also have the right to set-off or recoup any amounts that are in dispute including present and future indebtedness arising from this or any other transaction from you. If we determine that you or your performance of your Goods is likely to impair us in any way, we may withhold payments of any invoices until we are satisfied that you can meet your actual or anticipated obligations.

3. Rejected Goods

If, within a reasonable period after Delivery of particular Goods to us (including to our nominated distribution centre), and in any event by no later than 120 days after Delivery of particular Goods, and notwithstanding payment for the Goods or our Acceptance of the Goods, we find that the Goods do not meet the standards or other requirements set out in these Terms, or the Goods have “use by” dates which we consider in our reasonable discretion to be insufficient for distribution and resale by us in the normal course of business, we may notify you that we have rejected the Goods and will be entitled, at our option, to do the following:

(i) Return the Rejected Goods to you at your own cost or require you to collect the Rejected Goods from us at your own cost;

(ii) Require you to pay to us our reasonable costs incurred in examining and storing the Rejected Goods pending return of the Rejected Goods to you or collection of the Rejected Goods by you;

(iii) Not pay for the Rejected Goods and dispute the invoice as stated in clause 2.4 and notify you of such claim

(iv) Require you to refund any payments we have made to you for the Rejected Goods;

(v) Require you to pay to us our reasonable costs incurred in obtaining the Goods from someone else;

(vi) Require you to pay to us our reasonable costs incurred in examining and storing the Rejected Goods.

4. Warranties & Indemnity

4.1 General warranties

You warrant that:

(a) You have the power and authority to enter into these Terms;

(b) if it enters into these Terms as an agent for another party, it is authorised to act for its principal in the manner contemplated by these Terms and its authority has not been withdrawn or revoked;

(c) in entering into and performing its obligations under these Terms it is not, and will not be, in breach of any Relevant Law or any obligation owed to another person; and

(d) there is no current, pending or threatened litigation, arbitration, investigation, inquiry or proceeding in which it is involved that will or may reasonably be supposed to have an adverse effect on:

(i) its business affairs;

(ii) the other party’s reputation; or

(iii) the performance of any of its obligations under these Terms.

4.2 Warranties in respect of Goods

On each occasion that you fulfil or purport to fulfil a Purchase Order, you warrant to us that:

(a) the Goods are manufactured, produced, packaged, labelled, presented, supplied and described in compliance with these Terms and all Relevant Laws;

(b) the Goods are of the particular standard, quality, value, grade, composition, style, specification or model that you have previously represented by sample or conduct and that we have previously accepted (Approved Sample);

(c) the Goods are of Acceptable Quality, fit for any usual or customary purpose and fit for sale by us to the public;

(d) the Goods are of good material and workmanship, and free from any defect or fault of any kind whatsoever;

(e) the Goods are safe, and are properly and safely packed and labelled so that they can be delivered to our warehouses in good and merchantable condition;

(f) we are purchasing the Goods from you at the price set out in the Purchase Order;

(g) the Goods, the artwork, get up or design of the Goods and the supply of the Goods to us does not and will not infringe any third party’s or our Intellectual Property Rights;

(h) the Goods may be sold under the name or description they bear without contravening any Relevant Law;

(i) all representations that you make in relation to the Goods, whether to us or to any other person and including representations in advertising, promotions, on packaging and otherwise, are accurate;

(j) you have all the permits, licences, certificates and accreditation necessary to deliver and supply the Goods in accordance with these Terms;

4.3 Indemnity

(a) You indemnify us upon demand against all loss, damage, costs (including legal costs on a solicitor and own client basis) or liability whatsoever suffered or incurred by us, arising out of or in connection with:

(i) any breach by you of these Terms;

(ii) a classification of the Goods as either taxable or VAT/GST/Sales & Use Tax exempt by the governing body which is different from your classification of the Goods under clause 6(e); or

(iii) any death or injury to a person, and any loss or damage to our real or personal property or that of a third party, caused by your act or omission.

(b) If a Goods withdrawal or recall occurs (whether the Goods are withdrawn from show or recalled voluntarily or as a result of any governmental direction), we will not be liable to you in respect of the withdrawal or recall, and you indemnify us on demand for all loss, damage, costs or liability incurred by us as a result of the Goods withdrawal or recall, including:

(i) the cost to us of acquiring and holding the Goods (including storage and freight, if applicable);

(ii) reasonable administration fees;

(iii) any other costs and losses of the product recall or withdrawal from sale (including loss of profits) and of the return of the Goods to you or the destruction of the Goods; and

(iv) legal costs on a solicitor and own client basis.

(c) Each amount payable by you to us under the indemnity in clause 4.3(b) is a debt due and payable to us on our demand. You agree to pay or credit the amount to us, at our option, immediately after issue of the demand by us.

(d) Any amount claimed by us pursuant to the indemnity under clauses 4.3(a) or 4.3(b) will be proportionately reduced to the extent that any loss suffered by us can be established to have been caused by our own negligence.

5. Insurance

You must have and maintain a public liability policy and product liability policy for personal injury or property damage caused by the Goods. Each such policy should provide cover of no less than AU $10,000,000 for any one claim (unless we advise you in writing of a lower amount). The policy must be held with a reputable insurer and you must show evidence of the policy (e.g. a certificate of currency) upon our request.

6. VAT/GST/Sales & Use Tax

(a) Unless otherwise stated in this clause, terms used in this clause have the meaning given to them in the respective Australian GST Laws, UK VAT Laws, European VAT Laws or USA Sales & Use Tax Laws.

(b) Each price stated in the Purchase Order and/or a Tax Invoice will be inclusive of any VAT/GST/Sales & Use Taxes.

(c) You will provide us with a Tax Invoice by the end of the calendar month in which the Goods are supplied or, in the case of an adjustment note, in a timely manner.

(d) In addition to the Rebates, you will pay to us any VAT/GST/Sales & Use Taxes for which we become liable in respect of the Rebates.

(e) You will inform us whether or not the Goods are to be treated as VAT/GST/Sales & Use Tax exempt. You are aware that we will rely on your information regarding classification of the Goods as taxable or VAT/GST/Sales & Use Tax exempt.

(f) If these Terms require one party to pay for, reimburse or contribute to any expense, loss or outgoing suffered or incurred by the other party, the amount required to be paid, reimbursed or contributed by the first party will be reduced by the amount of input tax credits (if any) to which the other party is entitled in respect of the reimbursable expense.

7. Termination

7.1 Our rights to terminate with cause

We may immediately terminate these Terms or any Purchase Order for the Goods after giving you notice in writing if:

(a) You have breached or are in breach of any of the warranties that you gave us under clause 4​;

(b) We have received, as determined in our reasonable discretion, an unacceptable number of complaints about the Goods;

(c) The Goods are not supplied in accordance with the delivery schedule as set out in the Purchase Order;

(d) The supply of the Goods by you is, in our reasonable opinion, irregular or unavailable for a period of not less than 5 weeks;

(e) We reasonably believe that the manufacturing, packaging, quality, or fitness of the Goods is not satisfactory;

(f) Goods are recalled from sale by us either voluntarily or as a result of any governmental direction;

(g) You have breached a provision in these Terms which breach results in a material impact on the operation of these Terms or any Purchase Order;

(h) An Insolvency Event occurs in relation to you;

(i) You sell or agree to sell your business; or

(j) If you are a body corporate and a Change of Control occurs, or occurs in respect of a party who Controls you.

7.2 Our right to terminate without cause

We may terminate these Terms or any Purchase Order for the Goods without cause, upon at least 1 (one) month’s written notice to you

7.3 Consequences of termination

(a) If we terminate these Terms under clause 7.1​, we may:

(i) Refuse to accept any delivery and not pay for (or require a refund of any payment made for) any of the Goods under a Purchase Order that is not fulfilled or is in the process of being fulfilled at the time of termination;

(ii) Return (at your cost) any of the Goods delivered by you and not pay for (or require a refund of any payment made for) those Goods;

(iii) Recover from you any money spent by us in purchasing goods to replace those not delivered due to the termination of these Terms or the non-fulfilment of any Purchase Order; or

(iv) Without affecting any additional rights we have under clause 3 in relation to Rejected Goods, arrange for goods that are the same as or similar to the Goods supplied by you pursuant to these Terms to be supplied by another person.

b) If we terminate these Terms under clause 7.2, we will pay all amounts that become due under an invoice for Goods delivered by you in accordance with these Terms under a Purchase Order that was issued prior to termination of these Terms.

8. Complaint Process

We may refer any complaint received regarding the Goods directly to you. You must action the complaint with a response to the Customer or complainant within 2 Business Days (except if, in our reasonable opinion, a response is required within 24 hours, in which case we will advise you in writing of such shorter response time) and, on request, provide us with copies of relevant correspondence. You must forward to us any report made pursuant to an investigation into the complaint by any government body or any researcher or research organisation with respect to the Goods as soon as reasonably practicable after you become aware of any such report. You must comply with any reasonable directions that we give to you in relation to the complaint.

9. Assignment

9.1 Prohibition

You must not:

(a) partially or wholly assign, novate, encumber or otherwise deal with your rights under these Terms; or

(b) make any representations or warranties to any prospective assignee, successor or buyer of your business to the effect that these Terms will continue or that we will continue to purchase Goods from you if you sell or agree to sell a majority of your business.

10. Sub-Contracting

10.1 Consent

You must not sub-contract or otherwise arrange for the Goods to be supplied, in whole or in part, or for the supply of the Goods to be managed, by any other person (Subcontractor) without our prior written consent.

10.2 Supplier’s obligations

Before engaging or entering into an agreement with a Subcontractor, in addition to obtaining our consent under clause 10.1, you must ensure that:

(a) in carrying out the functions subcontracted to it, the Subcontractor will be able to comply with your obligation under these Terms as though the Subcontractor were a party to these Terms; and

(b) to the extent applicable, the material provisions of these Terms are incorporated into a binding agreement between you and the Subcontractor (Subcontract).
10.3 No discharge

Our consent to you subcontracting any of your obligations under these Terms or your entry into the Subcontract does not discharge or release you from any obligation or liability that you have to us under or arising from these Terms.

11. Developed Goods

The parties may agree in writing that any of the Goods are Developed Goods. If such an agreement is reached then you must supply any Developed Goods exclusively to us for the period set out in the written notice.

12. Confidentiality & Representations

All terms and conditions in respect of our business relationship and any other information we provide to you is our confidential information except where such information is in the public domain.

You must treat as confidential and not directly or indirectly make any disclosure to any third party or use the confidential information in any way (other than those necessary for you to carry out the terms of this agreement) without our prior written consent. Upon request you must return to us any copies of our confidential information in your possession in whatever medium to us or confirm in writing that they have been destroyed.

You acknowledge that you have not relied upon any statements, representations, forecasts, projections or predictions we have made to you or to any third party regarding volume of Goods or any other matter relating to the Terms.

13. Intellectual Property Rights

(a) Neither of us transfers any right, title or interest in any Intellectual Property Rights of the respective party to the other.

(b) You must not use any of our Intellectual Property Rights (including our trademarks) unless authorised by us in writing.

(c) In developing and producing products, each party must not infringe the Intellectual Property Rights held by the other in relation to Goods, including Intellectual Property Rights in branding, packaging design and advertising.

(d) We may refer to ourselves in any promotional literature, advertising or signage as an “Authorised Retailer” for the branded Goods we purchase from you, and we may use those brands, trademarks and logos in relation to the sale and promotion of those branded Goods.

(e) Neither party will cause or permit (to the extent within its control) anything that may amount to misuse, interference with, damage or endangerment to the Intellectual Property Rights of the other party or its suppliers, or assist others to do so.

(f) Each party undertakes to notify the other party as soon as reasonably practicable after it becomes aware of any unauthorised use or attempted unauthorised use by any person of the other party’s Intellectual Property Rights.

(g) This clause 13 will survive the termination of these Terms.

14. You Relationship With Us

You are an independent contractor to us for the supply of Goods. You are not our employee or agent. You must not make any representations on our behalf, or enter into, or represent to any person that you are authorised to enter into, any commitments, agreement, contract, arrangement or understanding on our behalf.

15. Outstanding Balances

(a) If we advise you in writing that you have an outstanding balance (which advice must be accompanied by all relevant evidence of the outstanding balance), you will within 14 days provide written notice to us (Supplier Response) advising whether or not you believe the outstanding balance to be correct.

(b) If you believe the outstanding balance is not correct, both parties must use reasonable endeavours to agree on the outstanding balance within 14 days of the Supplier Response and in doing so, provide all relevant evidence of its claim to the other party.

(c) You have 50 days (Intervening Period) from the date the parties agree on the outstanding balance to pay the outstanding balance in full.

(d) If during the Intervening Period an amount becomes due and payable by us to you for Goods pursuant to a Purchase Order, we may set off the outstanding balance payable by you to us under clause 15(c) against the amount payable by us to you under the Purchase Order.

16. Notices

(a) Any notice to be given under these Terms will be in writing signed by the party giving the notice and delivered to the address set out in the Commercial Terms, or to such other address as that party may elect by giving at least 5 Business Days’ prior written notice to the other.

(b) Any notice or document will be deemed to be duly given or made:

(i) if delivered by hand, when so delivered;

(ii) if sent by email, when the sender receives an automated message confirming delivery.

17. General

(a) You must at all times deal with us lawfully and in good faith within the meaning of the unwritten law as in force from time to time.

(b) We will not deduct any money you owe to us from any money which we are liable to pay to you under these Terms except:

(i) as expressly permitted under these Terms; or

(ii) with your prior written consent.

(c) Title and risk in the Goods passes to us on our Acceptance of the Goods.

(d) You may not claim or register any interest (including any security interest) in the Goods.

(e) Notwithstanding any other provision in these Terms, if there are any inconsistencies between any or all of the General Terms, the Commercial Terms, a Purchase Order and any written agreement between and signed on behalf of both parties (Additional Terms), then those documents must be interpreted in the following order of precedence to resolve the inconsistency:

(i) Purchase Order;

(ii) Commercial Terms;

(iii) General Terms;

(iv) Additional Terms, except if the Additional Terms expressly provide that they will prevail over any part of these Terms to the extent of any inconsistency, in which case the Additional Terms will prevail over the relevant other parts of these Terms as so provided.

(f) Except to the extent agreed in writing and signed by both parties, these Terms supersede and apply to the exclusion of:

(i) any other, pre-existing agreement you may have with us in respect of the same subject matter as the subject matter of these Terms; and

(ii) your invoice terms.

(g) A single or partial exercise or waiver by a party of a right relating to these Terms does not prevent any other exercise of that right or the exercise of any other right and a party is not liable for any loss, cost or expense of any other party caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a right.

(h) Each party acknowledges that it has entered into these Terms in reliance on the warranties the other party has made in these Terms.

(i) These Terms constitute the entire agreement between the parties in relation to its subject matter. All previous negotiations, explanations, understandings, representations, warranties, memoranda, commitments or information provided in relation to, or in any way affecting, the subject matter of this document are merged in and superseded by this document and will be of no force or effect and no party will be liable to any other party in respect of those matters.

(j) We have no liability (in negligence or otherwise) with respect to projections or other information we may give you concerning our requirements for the Goods, unless expressly otherwise agreed in writing and signed by an authorised representative of each party.

(k) You acknowledge and agree that you have not relied on or been influenced in entering into these Terms by any statements, representations or undertakings other than the statements, representations and undertakings expressly set out in these Terms.

(l) These Terms are governed by the laws of Tennessee, USA.

18. Definitions

In these Terms, the words set out below have the following meanings:

“MARQ Labs” means Marque of Brands Pty Ltd in Australia, Marque of Brands Americas LLC in the USA, Marque of Brands B.V. in Europe, and Marque of Brands Ltd in the United Kingdom.

“Acceptable Quality” is deemed as goods which are:

(a) Fit for all the purposes for which the goods of the type in question are commonly supplied; and

(b) Acceptable in appearance and finish; and

(c) Free from minor defects; and

(d) Safe; and

(e) Durable,- as a reasonable consumer fully acquainted with the state and condition of the goods, including any hidden defects, would regard as acceptable, having regard to –

(i) The nature of the goods;
(ii) The price (where relevant);
(iii) Any statements made about the goods on any packaging or label on the goods;
(iv) Any representation made about the goods by the supplier or the manufacturer;
(v) All other relevant circumstances of the supply of the goods.

“Acceptance” means: on receipt by you of written notice from us that we accept the Goods.

“Commercial Terms” means the commercial terms set out in these Terms.

“Customer” means a person who acquires or seeks to acquire Goods from or through us.

“Delivery” means, in respect of particular Goods, once a Goods Receiving Note has been signed and provided to you by our authorised officer at the point of receipt into our premises of the relevant Goods being delivered by you.

“Goods” means any item sold by you to us under these Terms and pursuant to a Purchase Order.

“Goods Receiving Note” means a note, in a form to be decided by us (electronic or otherwise), confirming to you that Delivery has taken place.

“GST” means goods and services tax imposed under Australian GST Law.

“VAT” means the Value Added Tax imposed under either the United Kingdom or European Union Laws

“Sales & Use Tax” means the any local, provincial, state or Federal Sales & Use Taxes imposed in the United States of America

“Law” includes the common law, principles of equity, and laws made by governments of Australia, United Kingdom, European Union nations and United States of America (which include State, Territory, Commonwealth and National laws) and regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them.

“Purchase Order” means a written order submitted by us to you requesting that you supply a specified number of Goods in accordance with these Terms.

“Supplier” means the entity so identified in the Commercial Terms.

“Taxes” means taxes, levies, imposts, charges and duties (including stamp and transaction duties, but excluding VAT/GST/Sales & Use Tax) imposed by any authority together with any related interest, penalties, fines and expenses in connection with them except if imposed on, or calculated having regard to, our net income.

“Tax Invoice” or “Invoice” has the meaning given in the VAT/GST/Sales & Use Tax Law and includes an invoice or adjustment note in the form required by the VAT/GST/Sales & Use Tax Law identifying the amount and calculation of the VAT/GST/Sales & Use Tax payable in respect of the relevant consideration.

“Terms” means the clauses set out in this document.