WHOLESALE STANDARD TERMS & CONDITIONS
HAPPY HAIR BRUSH PTY LTD (ABN 27 086 387 288) (we, us or our).
When we say you or your, we mean both you and any entity you are authorised to represent (such as your employer).
This Agreement is entered into between us and you, together the Parties and each a Party.
1. Engagement and Term
1.1 This Agreement applies from when you sign up for an Account, until the date on which your Account is terminated in accordance with this Agreement. We grant you a right to use our online portal (Platform) for this period of time only (which may be suspended or revoked in accordance with this Agreement).
1.2 You must be at least 16 years old to use our Platform.
1.3 Variations: We may amend these Terms at any time, by providing written notice to you. By clicking “I accept” or continuing to use our Platform after the notice or 30 days after notification (whichever date is earlier), you agree to the amended Agreement. If you do not agree to the amendment, you may close your Account with effect from the date of the change in these Terms by providing written notice to us. If you close your Account, you will no longer be able to access our Platform on and from the date of cancellation.
2.2 While you have an Account with us, you agree to:
(a) keep your information up-to-date (and ensure it remains true, accurate and complete);
(b) keep usernames and passwords secure and confidential, and protect them from misuse or being stolen; and
(c) notify us if you become aware of, or have reason to suspect, any unauthorised access to your Account or any logins linked to your Account.
2.3 We may suspend your access to our Platform where we reasonably believe there has been any unauthorised access to or use of our Platform (such as the unauthorised sharing of login details for our Platform). If we suspend your access to our Platform, we will let you know within a reasonable time of doing so, and we will work with you to resolve the matter, or if it cannot be resolved, then we may terminate your Account and your access to our Platform will end.
3. Supply of Goods
3.1 In consideration of your payment of the Price, we will supply the Goods in accordance with this Agreement, whether ourselves or through our Personnel.
3.2 If this Agreement expresses a time within which the Goods are to be supplied, we will use reasonable endeavours to provide the Goods by such time, but you agree that such time is an estimate only.
4. Delivery, Title and Risk
4.1 Title in the Goods will only pass to you on the date that you pay the Price in full in accordance with this Agreement.
4.2 If we are responsible for delivering the Goods to you, we will use reasonable endeavours to deliver the Goods by the time agreed between the Parties, and risk in the Goods will pass to you once we have delivered the Goods to the agreed delivery location. You will be responsible for the costs of delivery.
5.3 You agree to:
(a) only Distribute the Goods within the Territory;
(b) not sell any of the Goods online or through online marketplaces, including but not limited to Amazon, eBay, Alibaba or Taobao;
(c) not Distribute the Goods to third parties who you know or suspect (or that you should reasonably have known or suspected) will violate clauses 3(a) or 5.3(b).
6. Your obligations
6.1 General: During the Term, you agree to distribute the Goods:
(a) in accordance with this Agreement;
(b) in accordance with all applicable Laws;
(c) with due care, skill and diligence;
(d) with due expedition and without delay;
(e) in a proper and professional manner, and in accordance with best industry practice; and
(f) in accordance with our reasonable requests or requirements, including any guidelines or procedures made available to you by us in relation to the distribution of the Goods.
6.2 Distribution: Without limiting and in addition to any other obligation under this Agreement, you agree to:
(a) purchase the Goods only from us;
(b) take all reasonable steps, and cooperate with us, to proactively market and promote the sale of the Goods in the Territory;
(c) not do anything that may adversely affect our goodwill, brand or reputation (or that of the Goods);
(d) maintain, for the Term, records in respect of your sale of the Goods, including records of customers you sold the Goods to, and provide such records to us immediately on request;
(e) notify us immediately of any adverse incidents (such as deaths, injuries, permanent impairments or damage), or incidents that could lead to adverse incidents, or incidents that could or may require at law a product recall, being incidents caused by the use of the Goods or otherwise in connection with the Goods;
(f) obtain, and provide to us, any access, consents, approvals, permits, licences and assistance (including information or documentation) reasonably requested by us so that we may comply with our obligations under this Agreement or under any Laws;
(g) not alter the Goods, their packaging or labelling in any way, without our consent;
(h) maintain facilities and employ competent Personnel to the extent necessary to carry out your obligations under this Agreement;
(i) promptly refer to us all enquiries received by you for supply of the Products outside the Territory;
(j) at all times during the Term, hold sufficient quantities of stock of the Goods to meet the current and expected future customer demand;
(k) immediately inform us (no later than 2 Business Days after becoming aware) of any issues, concerns or matters which may (directly or indirectly) adversely affect our reputation or brand (or that of the Goods), and cooperate with, and assist, us to respond to, or rectify or remedy, any such issues, concerns or matters; and
(l) immediately inform us (no later than 2 Business Days after becoming aware) of any defective Goods, and cooperate with, and assist, us to respond to, or rectify or remedy, any such issues, concerns or matter.
6.3 Recalls of the Goods: You must provide us all assistance and cooperation that we reasonably request in respect of any form of recall of the Goods (including as a result of any legislative or regulatory requirement) when notified by us, and within the timeframe reasonably required by us. We agree to reimburse you for any direct costs or expenses reasonably incurred as part of assisting us to execute a recall, unless the recall was caused or contributed by you or your Personnel’s acts or omissions.
6.4 Promotion, marketing and branding: Without limiting and in addition to any other obligation under this Agreement, you agree to:
(a) proactively use and distribute the most recent versions of any marketing or promotional material provided by us;
(b) develop your own marketing or promotional material to market and promote the Goods, which are consistent, and comply, with the brand guidelines and other material provided by us, and provided we have given prior written consent to the use of any such marketing or promotional material developed by you;
(c) not use any other material to market or promote the Goods, other than the material authorised for use under clauses 4(a) and 6.4(b); and
(d) unless otherwise agreed in writing by us, not make or offer any warranty or guarantee, or make any representation, in relation to the Goods, other than those warranties, guarantees or representations expressly stated in the material provided by us.
7. Online Special Sales and Promotions
7.1 We reserve the right, at our sole discretion, to initiate, run, and promote special sales, discounts, and promotional events exclusively online. This autonomy includes, but is not limited to, sales and promotions related to Christmas/Boxing Day, BFCM (Black Friday/Cyber Monday), Afterpay, Birthday sale, and any other occasional special event we deem appropriate. We are under no obligation to seek permission or approval from you prior to executing any online sales or promotional activities.
8. Price and Payment
8.1 You agree to pay us the Price and any other amounts due under this Agreement in accordance with the Payment Terms.
8.2 If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion, and without prejudice to any of our rights or remedies under this Agreement or at Law):
(a) after a period of 5 Business Days from the relevant due date, cease supplying the Goods, and recover, as a debt due and immediately payable from you, our reasonable additional costs of doing so (including all recovery costs);
(b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the relevant due date in accordance with the Payment Terms; and/or
(c) enter any premises where the unpaid Goods are stored or held, for the purpose of retrieving and taking possession of those Goods, and you agree to provide any access, items and consents required to enable us to do so.
8.3 When applicable, GST payable will be clearly shown on our invoices. You agree to pay us an amount equivalent to the GST imposed on these charges. “GST” has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
8.4 Unless otherwise stated by us in writing, the Price is exclusive of any tax imposed by any government, state or local authority on the value of goods and services, and includes goods and services tax, sales tax, use tax, indirect tax, value added tax, excise tax, customs tax, tariffs and duties (Sales Tax), which will be your responsibility to pay. If we are required to pay any Sales Tax in relation to the Goods supplied under this Agreement, the applicable Sales Tax will be set out in the invoice provided to you and the Price payable by you under this Agreement must be increased by the applicable Sales Tax. This clause 8.4 does not apply to any taxes imposed on our net income.
9. Security Interest
9.1 You acknowledge and agree that:
(a) this Agreement is a ‘security agreement’ under the Personal Property Securities Act 2009 (Cth) (PPSA);
(b) this clause 9 creates a security interest in the Goods and any proceeds from any sale or disposal of the Goods, and we are a secured party in relation to the Goods and any such proceeds;
(c) we are entitled to register our interest on the relevant register as (at our discretion) a security interest, and if applicable, a ‘purchase money security interest’; and
(d) you must (at your cost), where we request, take all steps that we consider necessary or desirable to assist us to register our security interest, to ensure our security interest in the Goods and the proceeds is enforceable, and to perfect, or better secure out position under this Agreement, or ensure our priority over all other security interests.
9.2 Until such time as title in the Goods has passed to you as contemplated under clause 4.1, you must not allow any other person to have or acquire any security interest in the Goods, unless with our prior written consent.
9.3 To the extent the Law permits, you waive your right to receive any notice (including notice of a verification statement) that is required by the PPSA, including but not limited to notices under sections 95, 118, 121, 130, 132, 135 or 157. However, this does not prevent us from giving a notice under the PPSA.
9.4 You must not disclose any information of the kind referred to in section 275 of the PPSA, to the extent permitted under that section.
9.5 Nothing in this clause 9 is intended as an agreement to subordinate a security interest arising under this Agreement and conditions in favour of any person under section 61 of the PPSA.
9.6 In this clause 9, a ‘security interest’ includes any form or lien, encumbrance or a security interest under the PPSA.
9.7 Terms used in this clause 9 but not defined have the same meanings as in the PPSA.
9.8 This clause 9 will survive the termination or expiry of this Agreement.
10. Warranties and Representations
10.1 You represent and warrant that:
(a) all information and documentation that you provide to us in connection with this Agreement is true, correct and complete;
(b) no insolvency events (including but not limited to bankruptcy, receivership, voluntary administration, liquidation or creditors’ schemes of arrangement) affecting you or your property are occurring or are likely to occur; and
(c) if you enter into this Agreement as a trustee of a trust, then:
(1) you are the sole trustee of the relevant trust and have been validly appointed;
(2) you have full and valid power, authority, consents and approvals under the relevant trust to execute the Agreement and carry out the transactions contemplated by the Agreement; and
(3) you have the right to be indemnified out of the assets of the relevant trust for all liabilities incurred by you under the Agreement.
11. Confidential Information
11.1 Subject to clause 11.2, each Party must (and must ensure that its Personnel do) keep confidential, and not use or permit any unauthorised use of, confidential information provided by the other Party.
11.2 Clause 11.1 does not apply where the disclosure is required by Law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that the disclosing Party ensures the adviser complies with the terms of clause 11.1.
11.3 This clause 11 will survive the termination of this Agreement.
12. Australian Consumer Law
12.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the supply of the Goods by us to you which cannot be excluded, restricted or modified (Consumer Law Rights). To the extent that you maintain Consumer Law Rights at Law, nothing in this Agreement excludes those Consumer Law Rights.
12.2 Subject to your Consumer Law Rights, we provide all material, work and goods (including the Goods) to you without conditions or warranties of any kind, implied or otherwise (including without limitation any implied warranties of merchantability or fitness for a particular purpose), whether in statute, at Law or on any other basis, except where expressly set out in this Agreement.
12.3 This clause 12 will survive the termination or expiry of this Agreement.
13.1 Despite anything to the contrary but subject to your Consumer Law Rights, to the maximum extent permitted by Law:
(a) neither Party will be liable for Consequential Loss;
(b) a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and
(c) (where our Goods are not ordinarily acquired for personal, domestic or household use or consumption) in respect of any failure by us to comply with relevant Consumer Law Rights, our Liability is limited (at our discretion) to:(1) replacing the Goods or the supply of equivalent Goods, or the payment of the cost of replacing the Goods or of supplying equivalent Goods; or
(2) the repair of the Goods, or the payment of the cost of having the Goods repaired; and
(b) our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to the Price paid by you to us in respect of the supply of the relevant Goods to which the Liability relates.
13.2 This clause 13 will survive the termination or expiry of this Agreement.
14. Term and Termination
14.1 This Agreement will operate for the Term.
14.2 This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:
(a) the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
(b) (to the extent permitted under the Corporations Act 2001 (Cth)) any step is taken to enter into any arrangement between the Defaulting Party and its creditors, any step is taken to appoint a receiver, a receiver and manager, a liquidator, a provisional liquidator or like person of the whole or any part of the Defaulting Party’s assets or business, the Defaulting Party is bankrupt, or the Defaulting Party is unable to pay its debts as they fall due.
14.3 Upon expiry or termination of this Agreement:
(a) we will immediately cease providing the Goods;
(b) without limiting and subject to your Consumer Law Rights, any payments made by you to us for Goods already supplied are not refundable to you;
(c) you are to pay for all Goods supplied prior to termination, including Goods which have been supplied and have not yet been invoiced to you, and all other amounts due and payable under this Agreement;
(d) by us pursuant to clause 2, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees);
(e) we may retain your documents and information (including copies) to the extent required by Law or pursuant to any information technology back-up procedure, provided that we handle your information in accordance with clause 11; and
(f) you agree to promptly return (where possible), or delete or destroy (where not possible to return), any documentation, information or material provided to you by us that is in your possession or control.
14.4 Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.
14.5 This clause 14 will survive the termination or expiry of this Agreement.
15.1 Amendment: This Agreement may only be amended by written instrument executed by the Parties.
15.2 Assignment: Subject to clauses 15.3 and 15.15, a Party must not assign, novate or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
15.3 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party.
15.4 Counterparts: This Agreement may be executed in any number of counterparts that together will form one instrument.
15.5 Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first complying with this clause 15.5. A Party claiming that a Dispute has arisen must give written notice to the other Party specifying the nature of the Dispute (Dispute Notice). The Parties must meet (whether in person, by telephone or video conference) within 10 Business Days of service of the Dispute Notice to seek (in good faith) to resolve the Dispute.
If the Parties do not resolve the Dispute within 20 Business Days of the date the Dispute Notice was served (or such further period as agreed in writing by the Parties), either Party may:
(a) where you are resident or incorporated in Australia, refer the matter to mediation, administered by the Australian Disputes Centre, to be conducted in Sydney, New South Wales, in accordance with the Australian Disputes Centre Guidelines for Commercial Mediation.
(b) where you are not resident or incorporated in Australia, refer the matter to arbitration administered by the Australian Centre for International Commercial Arbitration, with such arbitration to be conducted in Sydney, New South Wales, before one arbitrator, in English and in accordance with the ACICA Arbitration Rules.
Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
15.6 Electronic Execution: This Agreement may be executed using an Electronic Signature. The Parties acknowledge and agree that if a Party executes this Agreement using an Electronic Signature, then the Party is taken to have entered into this Agreement in electronic form and the Electronic Signature is deemed to be an original execution of the Agreement by the Party. “Electronic Signature” means an electronic method of signing that identifies the person and indicates their intention to sign this Agreement, which may include software programs such as DocuSign.
15.7 Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under this Agreement if such delay or failure is caused or contributed to by a Force Majeure Event, provided that the Party seeking to rely on the benefit of this clause:
(a) as soon as reasonably practical, notifies the other Party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and
(b) uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event.
Where the Force Majeure Event prevents a Party from performing a material obligation under this Agreement for a period in excess of 60 days, then the other Party may by notice terminate this Agreement, which will be effective immediately, unless otherwise stated in the notice. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement.
15.8 Further Assurance: Each Party must to promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and their obligations under it.
15.9 Governing Law: This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts. The Parties agree that the U.N. Convention on Contracts for the Sale of International Goods is excluded from application to this Agreement.
15.10 Intellectual Property: Nothing in this Agreement constitutes a transfer or assignment of one Party’s Intellectual Property Rights to the other Party.
15.11 Notices: Any notice given under this Agreement must be in writing addressed to the addresses set out in this Agreement, or the relevant address last notified by the recipient to the Parties in accordance with this clause. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
15.12 Publicity: Despite clause 11, you agree that we may advertise or publicise the broad nature of our supply of the Goods to you, including on our website or in our promotional material.
15.13 Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
15.14 Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.
15.15 Subcontracting: We may subcontract the supply of any part of the Goods without your prior written consent. We agree that any subcontracting does not discharge us from any liability under this Agreement and that we are liable for the acts and omissions of our subcontractor.
15.16 Waiver: Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right. A waiver must be in writing and will be effective only to the extent specifically stated.
In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule, and:
ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.
Agreement means these terms and conditions and any documents attached to, or referred to in, each of them.
Business Day means a day on which banks are open for general banking business in Sydney, New South Wales, excluding Saturdays, Sundays and public holidays.
Commencement Date means the date this Agreement is signed by the last of the Parties.
Consequential Loss includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us the Price will not constitute “Consequential Loss”.
Consumer Law Rights has the meaning given in clause 12.1.
Goods means the goods to be supplied as set out on the Site when logged in under your wholesale account, as adjusted in accordance with this Agreement.
Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.
Intellectual Property Rights or Intellectual Property means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, whether or not registered or registrable.
Law means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with this Agreement or the supply of the Goods.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.
Payment Terms means are you must pay us the Price in full prior to us supplying the Goods, using the payment methods available on the Site, or as otherwise agreed between the Parties.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.
Price means the price set out on the Site when logged in under your wholesale account. Shipping will be an additional cost and calculated based on size and weight of each order.
Schedule means the schedule to this Agreement.
Site means our website at https://happyhairbrush.com.au/.