MR INDEVA PTY LTD - SUPPLY AGREEMENT
Thank you for signing up as a Reseller with Mr Indeva Pty Ltd ACN 616 662 367 (Mr Indeva). Our terms and conditions are set out below. By acknowledging electronically or in writing that you agree to these terms and conditions, you agree to be bound by these terms and conditions for the purposes of all Order Forms placed with Mr Indeva, whether those Order Forms are placed at the time of accepting these terms and conditions or in the future. These terms and conditions will apply on and from the date you accept these terms and conditions and continue in effect unless terminated in accordance with clause 10.
1. ORDER FORMS FOR PRODUCTS
(a) The Reseller may request to purchase Products from Mr Indeva by submitting an order through Mr Indeva’s online ordering process (Order Form).
(b) The Reseller must include in an Order Form:
(i) the type of Products required;
(ii) the quantity of the Products required;
(iii) the date for the delivery of the Products; and
(iv) the address for the delivery of the Products.
(c) Mr Indeva may, in its discretion, accept or reject an Order Form request. While Mr Indeva always endeavours to be able to complete an Order Form for you, Mr Indeva may need to accept or reject an Order Form.
(d) Mr Indeva agrees to supply, and the Reseller agrees to buy, the Products in accordance with each Order Form that Mr Indeva accepts.
(e) Once an Order Form is accepted by Mr Indeva, the Reseller will be committed to purchase the Products in accordance with these terms and conditions and the Order Form and cannot cancel or revoke the Order Form.
2. DELIVERY OF PRODUCTS
(a) Mr Indeva will deliver Products ordered by the Reseller under this agreement to the Delivery Address set out the relevant Order Form.
(b) Third party courier terms apply to the delivery of the Products to you. Any problems with delivery should be directed to us to troubleshoot the issue. We will endeavour to assist you to ensure your delivery arrives. All delivery times provided to you are estimates only and are subject to postal delays and reasons beyond our control. We do not warrant or make any representation that your order will be delivered within the times indicated. We will not be liable for any loss or damage suffered as a result of or in connection with late deliveries.
(c) The Company reserves the right to refuse international orders. Approved international orders may be subject to customs and import duties upon reaching its country of destination. You will be responsible for paying all customs and import duties and acknowledge that failure to pay may result in your order being held at customs. We will not be liable for any costs you may incur in having your order released from customs, including reimbursing you for any customs or import duties you may pay.
(d) Until Products are paid for in full, title in those Products will be retained by Mr Indeva.
(e) Risk in the Products will pass on delivery to the Reseller. Delivery must not be refused by the Reseller.
3. RESALE OF PRODUCTS
3.1 NON-EXCLUSIVE RIGHT TO COMMERCIALISE
(a) Subject to compliance with clause 3.2, the Reseller may sell the Products to their
customers through a brick & mortar store. The Products are not to be offered for sale
through online marketplaces.
(b) Nothing in this agreement creates any exclusive rights for the Reseller.
(c) Mr Indeva reserves the right to distribute the Products to any third party to market,
distribute and sell the Products in commercial markets in any jurisdiction.
(a) The Reseller must not remove, alter or otherwise interfere with any packaging or labelling
of the Products. The Products may only be commercialised by the Reseller in the
packaging and labelling in which the Products are provided.
(b) The Reseller acknowledges and agrees that failure to comply with this clause:
(i) will be a breach of this agreement for which Mr Indeva may terminate this
(ii) may result in the Reseller being in breach of applicable laws and regulations
and expose the Reseller to legal claims.
(c) The Reseller indemnifies Mr Indeva against any liability for breaches or claims that arise
in connection with the Reseller’s failure to comply with this clause 3.2.
4. PRICE & PAYMENT
4.1 PAYMENT TO MR INDEVA
(a) The Price payable by the Reseller to Mr Indeva is the amount set out in an Order Form.
(b) Unless otherwise agreed between the parties, the Price is payable in full prior to the
Products being dispatched for delivery. The Reseller acknowledges and agrees that
failure to make payments will result in delays to delivery commensurate with the delay in
(c) If the parties agree that the Price is payable after delivery, all invoices are due within 30
days of receipt of an invoice by the Reseller. If the Reseller fails to make payment of an
invoice when due, Mr Indeva may:
(i) charge interest at a rate of 10% per month calculated on a daily basis; and
(ii) refer the unpaid amount to third party debt collectors at the Reseller’s cost.
(d) Unless otherwise indicated, amounts payable under this agreement do not include GST.
In relation to any GST payable for a taxable supply by Mr Indeva, the Reseller must pay
the GST subject to Mr Indeva providing a tax invoice.
4.2 RESALE PRICE
(a) When determining the resale price that the Reseller applies to a Product:
(i) the Reseller is requested to have regard to the recommended resale prices for
Products as provided to the Reseller from time to time; and
(ii) the Reseller must not engage in “loss leader selling”, or sell the Products at an
amount lower than the Price for the purpose of promoting the Reseller’s
business or attracting customers so the Reseller can sell other Products.
(b) Nothing in this clause is intended to constitute resale price maintenance or prevent the
Reseller from offering genuine clearance sales, for the purposes of the Australian
5. SPECIFICATIONS AND QUALITY
(a) Mr Indeva will use reasonable commercial efforts to ensure Products supplied to the Reseller under this agreement meet the description of the Products in an Order Form, however exact styles are subject to change due to availability without further notice.
(b) Mr Indeva will use reasonable commercial efforts to ensure Products supplied to the Reseller under this agreement meet the specifications and descriptions communicated in writing to the Reseller (Specifications). However:
(i) the Reseller acknowledges that the numerical values included in the Specifications depend on a variety of factors beyond Mr Indeva’s control and are provided as a guide only; and
(ii) Mr Indeva cannot guarantee that the Products will be consistent with the Specifications and will not be liable for any failure of the Products to meet the Specifications.
(a) Mr Indeva does not offer change of mind returns.
(b) Mr Indeva will provide a full refund of the price paid for a Product if we determine that:
(i) a Product ordered by the Reseller was not received by the Reseller solely due to failure by Mr Indeva;
(ii) a Product provided the Reseller was not substantially the same as the Product ordered as displayed on Mr Indeva’s Website (subject to reasonable variation as a result of screen display, colour and brightness, and image quality); or
(iii) a Product is faulty, in accordance with clause 6(c).
(c) (Faulty products) The following process applies to any Product that a Reseller believes to be faulty.
(i) If the Reseller believes that a Product is faulty, please contact Mr Indeva using the details provided on our Website with a full description of the fault (including images).
(ii) If Mr Indeva determines that the Product may be faulty, Mr Indeva will request that the Reseller send the Product back to Mr Indeva at the Reseller’s cost for further inspection, including any accessories, manuals, documentation or registration shipped with the Product. Mr Indeva reserves the right to further inspection before deeming a Product faulty.
(iii) If Mr Indeva determines in its reasonable opinion that the Product is not faulty, or is faulty due to fair wear and tear, misuse, failure to use in accordance with the manufacturer's instructions, or failure to take reasonable care, Mr Indeva will refuse the return and send the Product back to the Reseller at the Reseller’s cost.
(iv) If Mr Indeva determines that the Product is faulty, the Reseller will be credited the full amount paid (including shipping costs) and may request a refund, exchange or store credit. All refunds will be credited back to the Reseller’s original method of payment unless the Reseller requests otherwise and Mr Indeva approves this request.
(v) If the Reseller fails to comply with the provisions of this clause Error! Reference source not found. in respect of a faulty Product, Mr Indeva may, in its absolute discretion, issue only a partial refund or no refund in respect of the faulty Product.
(vi) Nothing in this clause Error! Reference source not found. is intended to limit or otherwise affect the operation of any manufacturers' warranties which the Reseller may be entitled to or any of the Reseller’s rights which cannot be excluded under applicable law.
7. EVENTS BEYOND OUR CONTROL
(a) Mr Indeva will not be liable for any delay or failure to perform its obligations under this agreement if such delay or failure arises out of a Force Majeure Event.
(b) If a Force Majeure Event occurs, Mr Indeva must use reasonable endeavours to notify the Reseller of:
(i) reasonable details of the Force Majeure Event; and
(ii) so far as is known, the probable extent to which Mr Indeva will be unable to perform or be delayed in performing its obligations under this agreement.
(c) Subject to compliance with clause 7(b), the relevant obligation of Mr Indeva will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
(d) For the purposes of this agreement, a ‘Force Majeure Event’ means any:
(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
(ii) strikes or other industrial action outside of the control of Mr Indeva; or
(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
(iv) any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of Mr Indeva, to the extent it affects Mr Indeva's ability to perform its obligations.
(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
(b) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Reseller may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the Products or services provided.
(a) (Limitation of liability) To the maximum extent permitted by applicable law, the maximum aggregate liability of Mr Indeva to the Reseller in respect of loss or damage sustained by the Reseller under or in connection with this agreement is limited to the total fees paid to Mr Indeva by the Reseller in the 6 months preceding the first event giving rise to the relevant liability.
(b) (Indemnity) The Reseller agrees at all times to indemnify and hold harmless Mr Indeva and its officers, employees and agents ("those indemnified") from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those indemnified where such loss or liability was caused or contributed to by the Reseller or the Reseller's officers’, employees’ or agents’:
(i) breach of any term of this agreement; or
(ii) negligent, fraudulent or criminal act or omission.
(c) (Consequential loss) Mr Indeva will not be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this agreement or any Products or services provided by Mr Indeva, except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth) or any other applicable law.
10.1 TERMINATION BY MR INDEVA
Mr Indeva may terminate this agreement at any time without reason by giving 30 days’ written notice to the Reseller.
Either party (Non-Defaulting Party) may terminate this agreement immediately by written notice to the other party (Defaulting Party) if the Defaulting Party:
(a) is in breach of this agreement and either:
(i) fails to remedy such breach within 14 days of receiving notice from the Non-Defaulting Party requiring it to remedy such breach; or
(ii) that breach is not capable of remedy; or
(b) ceases, suspends or threatens to cease or suspend to conduct its business.
10.3 ACCRUED RIGHTS AND LIABILITIES
The expiration or termination of this agreement will not prejudice any accrued rights or liabilities of either party, nor excuse either party from a breach of this agreement occurring prior to expiration or termination of this agreement.
10.4 CONSEQUENCES OF EXPIRATION OR TERMINATION
Upon expiration or termination of this agreement:
(a) Mr Indeva will deliver to the Reseller any Products which were the subject of any outstanding orders received by Mr Indeva from the Reseller prior to the date of expiration or termination of this agreement; and
(b) the Reseller will immediately pay Mr Indeva:
(i) for the Products referred to in clause 10.4(a); and
(ii) any other amounts still owing by the Reseller to Mr Indeva as at the date of termination or expiry of this agreement.
(c) Both parties must return to the other party any documents that contain any confidential information of the other party.
Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this agreement will survive and be enforceable after such termination or expiry.
(a) A notice or other communication to a party under this agreement must be:
(i) in writing and in English; and
(ii) delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
(b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party's Email Address, notice will be taken to be given:
(i) 24 hours after the email was sent; or
(ii) when replied to by the other party,
whichever is earlier.
12.1 GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applying in Victoria, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
This agreement may only be amended in accordance with a written agreement between the parties.
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
12.5 JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.
12.8 ENTIRE AGREEMENT
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(c) (person) a reference to "person" or "you" includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(d) (party) a reference to a party includes that party's executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(e) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(f) (includes) the word "includes" and similar words in any form is not a word of limitation;
(g) (headings) headings and words in bold type are for convenience only and do not affect interpretation; and
(h) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.