Terms - Wholesale

PRIMNESS STANDARD TERMS AND CONDITIONS OF SALE

These Terms are the terms on which Primness will supply Products to you. By ordering or purchasing Products from Primness, or continuing to order or purchase Products from Primness, you agree that you are bound by these Terms.

1. THESE TERMS

1. Primness will only supply Products on these Standard Terms and Trade (these “Terms”).

1.2 Unless qualified by or inconsistent with the context:

1.2.1  “Products” means all apparel and all related accessories and materials supplied or to be supplied by Primness and includes services where appropriate.

1.2.2  The singular words include the plural and vice versa.

1.2.3  “GST” means if the Products have been supplied to an Australian based Customer, there will be a goods and services tax imposed by a new Tax System (Goods and Services Tax) Act 1999.

1.2.4  “Customer” means those persons or entities doing business with Primness who agree to purchase Products and who in fact execute orders for the purchase of such Products.

1.2.5  “Primness” means Primness Pty Ltd as Trustee for the Jedaro Family Trust (ABN 408 763 0287).

1.3  No variation of or substitution for these Terms (even if included in or referred to in a Customer’s order) will be binding on Primness unless accepted by Primness in writing.

1.4  These terms are subject to periodic review by Primness, which may from time to time vary these Terms by notice in writing to the Customer.

2. PRICE

2.1  All prices are based upon the rates and conditions of Primness as set out in the relevant invoice.

2.2  The Customer shall be responsible for all the costs of transportation and other associated charges, including without limitation insurance and freight, except in the specific instances agreed to with Primness in writing.

2.3  Both parties shall be responsible for and bear their own respective taxes, duties and customs obligations arising under these Terms, in accordance with the prevailing laws and regulations.

2.4 Any amounts to be paid by the Customer under these Terms that are payment for “taxable supplies” as defined for GST purposes will, to the extent permitted by law, be increased so that the GST payable on the taxable supply is passed on to the recipient of that taxable supply.

3. ORDERS

3.1  Any order by the Customer shall be regarded as an offer to Primness incorporating these Terms and must be in such form and placed in accordance with such procedures as may be prescribed by Primness from time to time.

3.2  Nothing in these Terms obligates Primness to sell any Products to the Customer. Primness has absolute discretion whether to accept any order. Primness may also choose to accept any order either in whole or in part. Upon accepting an order Primness shall issue to the Customer a confirmation in writing (“Order Confirmation”).

3.3  Each supply of Products to the Customer is a separate contract incorporating these Terms.

3.4  The Customer shall only be entitled to cancel an order within seven (7) days from receipt of the Order Confirmation from Primness.

3.5  In the event that a Customer cancels an order after seven (7) days from receipt of an Order Confirmation, the Customer shall be liable to pay 80% of the value of the order.

3.6  The Customer acknowledges that Products may incorporate changes from time to time made by Primness due to changes in manufacturing or in raw materials. Such changes to the Products shall not provide the Customer with a right to refund or cancellation of any Order.

3.7  The Order Confirmation will state a proposed delivery window for the relevant order (“Delivery Window”). It is acknowledged that the Delivery Window is indication only and may be subject to change in Primness’ discretion.

4. PAYMENT

4.1  Unless credit has been provided to the Customer by Primness (in Primness’ sole discretion), Customer must pay the total amount payable for the Products, inclusive of any applicable goods and services taxes, applicable freight charges, related duties or other charges, to a bank account specified by Primness within the prescribed payment term set out on the applicable invoice. Cleared funds must be received by Primness without deduction prior to the Products being delivered. For the avoidance of doubt, Primness is under no obligation to deliver any Products to the Customer until payment is received in full by the specified bank account of Primness.

4.2  Primness reserves the right to request the Customer provide a deposit upon receipt of the order with the balance to be payable prior to delivery.

4.3  Without prejudice to any other remedies available under law, Primness shall have the option of ceasing or suspending the delivery of any Order to the Customer if any payment is due, or if the Customer is in default of any other obligations under these Terms.

4.4  In the event that the Customer owes outstanding monies to Primness at the time an order is due for delivery, and the Customer fails to settle such amounts within 30 days from the last day of the Delivery Window, Primness has the right to deem the relevant order cancelled and Primness shall be entitled to charge a cancellation fee. It is acknowledged that such cancellation fee will be calculated at 80% of the value of the order and Primness shall be under no obligation to deliver the cancelled order to the Customer under such circumstances.

4.5  Any expenses incurred by Primness in recovering any outstanding monies from the Customer including the cost of repossession and resale of the Products, debt collection agency fees and legal costs (full indemnity basis) will be paid by the Customer to Primness on demand. Notwithstanding anything to the contrary in these Terms, all monies due from the Customer will become immediately payable to Primness upon the happening of any event or the issue against or service on Customer of any notice or proceedings in any way concerning the Customer’s solvency or payment of its debts.

4.6  All prices shall all be quoted in Australian dollars on a net basis, excluding any tax imports, import duties and the Customer must pay Invoices in Australian dollars.

4.7  The Customer is solely responsible for the costs of all shipping charges, insurance charges and/or customs duties, to the extent applicable.

5. LATE PAYMENT INTEREST

5.1 Primness may (in its sole discretion) charge, and the Customer will pay, interest on any amount not paid by the due date as set out in the applicable invoice at the rate of 10% per month from the date the payment is due until the date the payment is made (both dates inclusive). Interest will be calculated daily and may be capitalised.

6. CREDIT FACILITY

6.1  Where the Customer has applied to Primness for credit, the Customer warrants that the information in the credit application is completely accurate and is supplied for the purpose of obtaining credit. The Customer specifically authorises Primness to make enquiries and to exchange with or provide to any credit provider or credit reporting agency information regarding the credit-worthiness of the Customer and if the Customer is a company or other organisation, its officers and/or shareholders, as Primness considers desirable.

6.2  The Customer warrants that any person’s signature appearing on the credit application (if applicable) are duly authorised by the Customer to apply for credit and execute the credit application on behalf of the Customer.

6.3  Allowance to the Customer of time to pay, will not constitute a waiver by Primness of any of these Terms nor be construed as Primness granting credit facilities to the Customer. No credit facility will be granted to the Customer unless so stated by Primness in writing. Primness may, at any time in its sole discretion and without notice, terminate any credit arrangement with the Customer. Primness at its discretion may also continue its trading relationship with the Customer and require payment for any Orders on invoiced terms.

7. RISK AND TITLE

7.1  Legal and beneficial ownership of the Products is retained by Primness until all amounts owing to Primness by the Customer for those Products have been paid and settled in full, except in relation to particular Products which the Customer has sold to a third party who has no notice of these terms and who bona fide purchases the Products at full market value. Products in the possession or control of the Customer answering the description of the Products that have been supplied in the past by Primness to the Customer will, in the absence of the Customer proving conclusively to the contrary, be deemed to be Products to which these Terms and conditions apply.

7.2  Until Primness receives full payment, or until the Products have been bona fide sold to a third party in good faith at full market value, Primness has the right (without prejudice to any other rights and remedies it may have) to recover, detach, remove and/or resell the Products or any part of them. For that purpose, Primness’s agents or employees may without notice enter any place Primness believes the Products to be without committing a trespass. Primness will have no obligation to make good any damage caused by such recovery, detachment or removal and Primness will not be liable, and the Customer will indemnify Primness against any costs, claims, damages or losses expended or suffered by Primness in recovering any outstanding payment due from the Customer including the cost of repossession and re-sale of the Products.

7.3  Where Primness is responsible for arranging cartage of Products to the Customer, risk in the Products shall pass to the Customer immediately upon delivery to the Customer’s premises. Where the Customer is responsible for arranging cartage to its nominated carrier or freight forwarder risk in the Products shall pass to the Customer immediately upon collection from Primness’ warehouse.

7.4  The Customer will not be entitled to pledge or in any way encumber for indebtedness any of the Products which remain the property of Primness.

7.5  The Customer acknowledges that the Personal Property Securities Act 2009 (PPSA) could or may apply to these Terms or matters contemplated or pursuant to these Terms and agrees that Primness may register these Terms and/or its interest in the Products, under the PPSA.

7.6  Primness does not need to give any notice under the PPSA (including a notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.

8. NOTIFICATION OF CHANGE

8.1 The Customer must immediately notify Primness in writing of changes in its Board of Directors, shareholders or partners (as applicable) or of the Customer’s business address.

9. RESALE, DIVERSION, SECOND HAND AND PARALLEL IMPORTING

9.1 Retail prices of Products shall be determined solely by the Customer. The Customer acknowledges that Primness has certain expert knowledge in evaluating market conditions and developing marketing policy, and may from time to time recommend prices to the Customer, without any obligation on the part of the Customer to comply with the recommendation.

9.2  Products sold to the Customer may only be resold through retail by the Customer to the public within Australia in premises approved by Primness. The Customer may not sell Products or allow Products to be sold to wholesalers, distributors, other retailers, exporters, agents or other purchasers for purposes of resale unless otherwise approved by Primness in writing prior to such sale. All sales must be personal and conducted through pre-approved retail outlets.

9.3  Sales by the Customer by way of catalogue, television shopping, networks are not permitted unless previously approved by Primness in writing.

9.4  The Customer must not directly or indirectly sell, buy or otherwise deal in any pre-owned or second hand Products.

9.5  The Customer must not source any Products from any person other than from Primness or its designated agents or distributors.

10. RETURNS

10.1  The Customer must carefully inspect the Products and advise Primness in writing within 7 days of delivery of any faults or defects in or to the Products, or of any short delivery. Subject to acceptance by Primness of liability regarding faulty or defective Products, to the fullest extent permitted by law, Primness’s liability will be limited to repairing or replacing the Products at its option. Otherwise, the Customer must pay for the Products and to the fullest extent permitted by law, Primness will not be liable for any faults and/or defects in the Products or for any claims, damages, costs or expenses relating to the Products or the installation thereof and the Customer will indemnify Primness from any claims, actual, or purported and from any consequential, indirect or special losses, damages, costs and expenses arising directly or indirectly therefrom and howsoever caused.

10.2  The Return of Products is not allowed except in the event that the Customer receives surplus Products from over-shipment, wrong shipment, or defective Products which have been assessed and approved by Primness.

10.3  The Customer must obtain Primness’ prior written approval for any return request, and if a return is approved Primness will issue a “Returned Goods Authority” Number. Primness may refuse delivery of any return sent without an approved “Return Goods Authority” number. Primness will arrange the return of the Products upon notification from the Customer.

11. TERMINATION

11.1  Primness, without liability on its part, shall have the right to immediately terminate these Terms and cancel any order (so far as it remains unperformed) wholly or in part, any other order which has not been completed, or immediately terminate these Terms, and all sums outstanding (whether legally demanded or not and whether due or not) shall become immediately due and payable to Primness if (i) the Customer breaches these Terms, including default in any payment on due date: (ii) the Customer becomes bankrupt or insolvent; (iii) there is a material change in ownership or control of the Customer.

11.2  Primness shall have the right to terminate these Terms at any time upon 30 days’ written notice to the Customer; provided that these Terms shall continue in effect to govern any confirmed but undelivered order of Products.

11.3 Upon termination or expiry of the trading relationship under these Terms, all sums owing by the Customer to Primness will become immediately due and payable and the Customer must cease selling the Products to the public, with the exception of stock already on hand at the time of termination, which the Customer must attempt to sell as quickly as possible.

12. LIABILITY

12.1  Primness shall not be liable in any way whatsoever for failure or delay in supply or delivery of Products or any fault or defect in or to Products occasioned by strike, stoppage or industrial action, lockout, Act of God, shortage of stocks, shortage of labour, lack of skilled labour, delays in transit, legislative, governmental or other prohibitions or restrictions, terrorism, fire, flood, hostilities or other causes whatsoever (whether similar or not to the foregoing) beyond Primness’s reasonable control. The Customer will indemnify Primness with respect to such occurrences.

12.2  Except as required by law, Primness gives no guarantee, makes no representation or makes any claim to third parties, in relation to the Products other than as expressly stated in these Terms and Primness shall not be liable in any way whatsoever for any consequential, indirect or special loss, injury, damages or expenses suffered or incurred directly or indirectly by the Customer or any of the Customer’s agents or employees or any other person using the Products provided by Primness.

12.3  The liability of Primness arising directly or indirectly from any defect in or non-compliance of the Products or from any breach of Primness’s obligations hereunder shall not in any event exceed an amount equivalent to the purchase price of the Products. Notwithstanding anything to the contrary herein stated, Primness shall not be liable in any way whatsoever for any consequential, indirect or special damage, expense, cost, injury, prejudice or loss of any kind.

13. GUARANTEE

13.1  Upon acceptance of these Terms by the Customer or subject to any grant of credit by Primness, the Customer shall at the request of Primness procure the issuance of a bank guarantee in favour of Primness and in such form acceptable to Primness and indemnifying Primness against any default of the Customer of these Terms. The Customer further undertakes to ensure that such bank guarantee shall subsist or be renewed so as to be in full force and effect for the duration of the trading relationship between the parties and for a period of one (1) year thereafter. The terms of such bank guarantee shall be as specified and the amount will be determined by Primness from time to time and as communicated to Customer.

13.2  If a guarantee has been given in favour of Primness by persons associated with the Customer, then the “terms” referred to in that guarantee are subject to these Terms.

14. INTELLECTUAL PROPERTY

14.1 The Products shall be marketed and sold by the Customer using the Trade Marks, brands, and logos of Primness (or those licensed by Primness). The Customer may not alter, remove, or in any way tamper with any of these Trade Marks, brands or logos. The Customer shall not be entitled to file any applications for patterns, Trade Marks or other similar rights in respect of the Products in the Customer’s own name without having obtained Primness’ prior written approval.

15. CONFIDENTIALITY

15.1  Both parties shall observe absolute confidentiality in respect of any confidential information or business secret of the other party, which is not intended to be brought to the knowledge of third parties. This confidentiality obligation shall continue following termination or expiration of these Terms.

15.2  Following termination or expiration of these Terms, the Customer shall return to Primness all sales material, documents, descriptions which the Customer has received from the Primness upon request from Primness.

16. FINANCIAL INFORMATION & CUSTOMER PRIVACY

16.1  The Customer irrevocably authorises Primness to seek and use any reports from a credit reporting agency of its choosing containing personal information about the Customer in relation to the collection of any outstanding amounts from the Customer to the extent allowed by law.

16.2  The Customer consents to Primness giving any information relating to the collection of any outstanding amounts to any Credit Reporting Agency to the extent allowed by law.

16.3  The Customer will provide any and all necessary instructions and/or authorities required by Primness’ accountants, debtor insurers, and bankers to enable Primness to make investigations from time to time into the Customer’s trading and financial position.

16.4  While Primness is not a credit provider as the meaning of that term is understood pursuant to s 11B of the Privacy Act 1988 (Cth) (the “Privacy Act”), Primness agrees to comply with Part IIIA of the Privacy Act subject to these Terms.

16.5  The Customer agrees that in the event of default of payment of any amount owing to Primness, and Primness may disclose all information relating to the Customer’s account to a collections agency or its solicitor for the purpose of recovering debts owed by the Customer to Primness.

17. MISCELLANEOUS

17.1  The Customer shall keep in confidence all information received from Primness under or in connection with these Terms unless such information is in the public domain otherwise than by reason of default of the Customer or any other third party.

17.2  Any notice, invoice or document to be given to the Customer will be sufficiently given if posted by ordinary post or emailed to the Customer at the Customer’s last known email address and will be deemed to have been received by the Customer in the ordinary course of post or on receipt by Primness of a successful transmission answerback.

17.3  No provision hereof and no breach of any provision hereof shall be deemed waived by reason of any previous waiver of such provision or of any breach thereof.

17.4  Primness shall be entitled to assign or transfer its rights and obligations under these Terms to third parties by giving written notice to the Customer. The Customer shall not be entitled to assign or transfer its rights and obligations under these Terms to third parties without the prior written approval of Primness.

17.5  For the purposes of Clause 17.4, the Customer will be deemed to have assigned their rights and obligations under these Terms if:

a)  The Customer assigns, sells or transfers or purports to assign, sell or transfer, more than 50% of the assets of any business that the Customer carries on; or

b)  If the Customer is a Company, there is a transfer by any shareholders of the Customer of more than 50% of the shares in the Customer; or

c)  If the Customer is a Trust, there is a change in the Trustee, appointer or unit holders.

17.6  These Terms are governed by and construed in accordance with the laws of Victoria, Australia.

17.7  The Customer shall comply with all laws and regulations relating to its activities under these Terms including without limitation; laws relating to employment, worker health and safety, environmental protection, product liability and consumer protection.

17.8  The covenants, conditions, provisions and warranties contained in these Terms will not merge or terminate upon completion of the transactions contemplated by these Terms, but to the extent that they have not been fulfilled and satisfied or are incapable of having effect will remain in full force and effect.

17.9  The Customer agrees that if it is a trader whose trading name is registered pursuant to the applicable business name legislation (“Registered Name”), any individual or entity registered as co-owner of the Registered Name at the time of a supply of Products pursuant to these Terms will be deemed to accept the supply of Products pursuant to these Terms as agent of the Customer, unless there is evidence to the contrary.

17.10  The Terms represent the entire agreement between the parties and supersedes any prior agreements, representations or understandings between the parties. Any changes to this Agreement must be in writing and signed by both parties.