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WHOLESALE TERMS AND CONDITIONS


Overview

You are willing to buy, and We are willing to sell You certain Goods in the manner set out in the Proposal.

The Agreement between Us (the Wholesaler) and You (the Retailer) is set out in these General Terms and Conditions (T&Cs), the Proposal and each Order Form.

In the event of any inconsistency between these T&Cs and the Proposal, the Proposal will prevail to the extent of the inconsistency.

The Agreement will start on the Commencement Date and continue until terminated pursuant to these terms.

You acknowledge and agree, subject to the nature of the Goods being provided, additional special conditions may apply and such special conditions will be set out in the applicable Proposal.

Any variation to the Proposal must be agreed by You and Us in writing.

Orders

You agree that when you place an order for Goods with Us it must meet the Order Requirements.

You agree that orders will be subject to:
approval by Us;
the Lead Time set out in the Proposal, before the order is sent for fulfillment.

Approval occurs at the time that We acknowledge approval.

Once approval occurs, the order cannot be reversed and You must pay for and accept the order.

You agree and acknowledge that We are not responsible for the promptness of the fulfillment, and that any estimate provided to You for this time is out of Our control to meet.

Order will be delivered to Your Address as outlined in the Proposal.

Returns will be accepted only:
for Goods that are damaged on delivery from Our warehouse;
where the return request is received by Us within 5 days of delivery of the Goods;
where the return request is made to Our email address as listed in the Proposal;
and where the return request includes photos and written details of the damage and the invoice number.

You acknowledge and agree that We do not accept returns for Goods due to change of mind or change of circumstances and You are responsible for any returns policy You set for Your customers.

Retailing

You may retail and sell the Goods at your discretion in accordance with this Agreement and in the Territory set out in the Proposal.

You may advertise the Goods at your discretion in accordance with this Agreement and in line with the Advertising Specifications as set out in the Proposal.

The Goods must be sold by you at the Recommended Retail Price as set out in the Proposal. Where there is no Recommended Retail Price you must not sell the product for less than it is advertised on Our website www.yogat.com.au

Where the Goods are discounted this must be in line with the Sale Specifications as set out in the Proposal.

Purchase Price

You will pay us the Purchase Price:
on the relevant Payment Dates as set out in the Proposal and Tax Invoice;
by electronic funds to an account nominated by Us or by another method nominated by Us;
and following receipt of a Tax Invoice from Us.

If You do not pay Us any portion of the Purchase Price by the relevant Payment Dates:
We may charge You interest at the Interest Rate set out in the Proposal and You will pay Us that interest within 7 days of Us sending You a Tax Invoice;
and where We recover any unpaid Purchase Price through an external agency, You will pay Us all legal costs and collection agency costs involved in the recovery on a full indemnity basis.

You grant Us a security interest in the Goods until the full Purchase Price has been received by Us. This security interest includes any proceeds, including accounts receivable, obtained. If We request, You will execute and deliver any document required to perfect this security interest.

Title to the Goods will remain with Us until the full Purchase Price is received and You are in physical possession of the Goods.

We are entitled to vary the prices of the Goods as set out in the Proposal with 14 days written notice to You, prior to the change being implemented.

Obligations

We will:
provide the Goods in accordance with the Key Dates provided Us with all the Details and payments within a reasonable time for Us to meet the Key Dates and provided that there is no third party interference which delays the delivery of the Goods; Subject to You notifying us of any issues or damage to the Goods in accordance with clause 2.7, We will consider Your request and either provide replacement Goods or a refund; and comply with all Applicable Laws.

You will:
promptly provide Us with all the Retailer Details and any other information reasonably requested by Us to provide the Goods and/or meet Our Obligations; comply with any reasonable request by Us relating to the delivery and retailing of the Goods, the Proposal or the Details; You must ensure that the description of the Goods is not misleading or deceptive and undertake a full inspection of the Goods on receipt and notify Us in accordance with clause 2.7; and comply with all Applicable Laws.

You agree that:
We will not be liable for any failure to provide the Goods, meet the Key Dates or perform Our Obligations to the extent it is caused by a failure by You to comply with your obligations under the Agreement; to the extent applicable, both parties must ensure they have appropriate insurance in place; and if You or Your Employees or a Force Majeure Event prevent or delay Us from meeting Our Obligations then We may reschedule the Key Dates. We shall not be deemed in breach of this Agreement if We are unable to deliver the Goods or any portion thereof.

Intellectual Property Rights

Upon full payment of the Purchase Price and subject to this clause 4, We will grant You the Rights to the Licensed IP in the manner set out in the Proposal.

You agree that You in no way gain any ownership rights over any Intellectual Property.

Where You advertise the Goods whether on Your website, social media or through advertising such as Google or Facebook, You must ensure that the images and content is in compliance with the Advertising Specifications set out in the Proposal.

We may refer to You in Our portfolios, websites, galleries, and other media (including social media) or exhibits for the sole purpose of recognition of professional advancement and of You as an Authorised Retailer of the Goods.

You and We acknowledge that all Third Party Materials are the exclusive property of their respective owners. Where Our products include the use of Third Party Materials, We agree that We have the necessary license to be able to deal with the Goods in the way set out in the Proposal.

Termination

We may terminate the Agreement with immediate effect, by giving You written notice if:
You do not pay the Purchase Price when due by the Payment Dates;
You do not provide (within a reasonable time of Our request) the Retailer Details or any information or material necessary for Us to meet Our obligations;
We consider that mutual trust and/or confidence no longer exists; or
You otherwise breach any undertaking, warranty or obligation under the Agreement.

Subject to clause 5.1, either party may terminate the Agreement if the other party:
commits a material breach of the Agreement that is capable of remedy and does not remedy that breach within 7 days of receiving written notice;
commits a material breach of the Agreement which is not capable of remedy;
by mutual agreement; or becomes insolvent or bankrupt.

Without limiting Our rights, if the Agreement is terminated:
You must immediately pay Us the Purchase Price payable for Goods in your possession at the date of termination where payment remains outstanding;
each party must return or destroy (at the other party’s request) all Confidential Information of the other party;
You must immediately cease using our Licensed IP; and Our obligations to provide the Goods cease.

Warranties and Indemnities

You and We agree that:
the Goods are provided on an “as is” basis without representation, warranty or condition of any kind (either express or implied); all express or implied warranties, representations, statements, terms and conditions relating to the Agreement or its subject matter which are not contained in the Agreement, are excluded from the Agreement to the maximum extent permitted by law;
nothing in the Agreement excludes, restricts or modifies any condition, warranty, right or remedy implied by or imposed by any law (including statute or regulation) which cannot be lawfully excluded, restricted or modified;
if any condition or warranty is implied into the Agreement and cannot be excluded and We are able to limit Your remedy for breach of such a condition or warranty, then Our liability is limited:
in the case of goods, to the replacing of the goods or of acquiring equivalent goods or payment of the cost of having the goods repaired;
in the case of services, supplying the services again or the payment of the cost of having the services supplied again.

You must indemnify and hold harmless Us and Our Employees from all claims and losses arising from loss, damage, liability, injury to Us, Our Employees and third parties, infringement of third party Intellectual Property Rights (including Moral Rights) or third party losses by reason of or arising out of any information (including Retailer Details) You supply to Us.

You and We agree that:
neither party will be responsible, liable or held in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is directly caused by the other party failing to comply with its obligations under the Agreement or negligence or misconduct of the other party or its employees, agents, personnel or contractors;
each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done by the other party under or in connection with the Agreement;
in no event will either party be liable to the other party for any incidental, indirect, consequential, punitive or special damages (including damages to business reputation, lost business or lost profits), whether foreseeable or not and however caused, even if such party is advised of the possibility that such damages might arise. The foregoing restrictions will not apply to a party’s confidentiality and indemnification obligations under the Agreement;
Our liability to You (including under indemnity):
is capped to the return of all Purchase Price paid in the six months prior to the breach event;
and will be reduced to the extent that the acts or omission by You or Your Employees contribute to or cause the liability.

We will not be liable for any Goods that have been accepted by You in accordance with the Agreement.

Confidentiality

Each party agrees that, unless it has the prior written consent of the other party, it will:
keep confidential at all times, the Confidential Information of the other party;
and ensure that any personnel, advisors, agents, employees or contractors to whom Confidential Information is disclosed, is aware of and complies with this clause;
however, these obligations of confidentiality do not apply to any disclosure that:
is for the purpose of performing the Agreement or exercising a party’s right under the Agreement;
is required by Applicable Law;
or relates to Confidential Information which is publicly available through no fault of the receiving party or its personnel, or was rightfully received from a third party without restriction and without breach of any obligation of confidence.

Miscellaneous

Relationship of Parties

You and We agree that:
We are independent contractors and that the relationship between You and Us does not constitute a partnership, joint venture, agency or the relationship of employer and employee;
We will be the exclusive provider of the Services during the Term however, we may offer similar services to others, solicit other clients and advertise our services;
and We may use subcontractors to perform some or all of the Services.

Restraint Period

During the Restraint Period, You agree not to solicit, recruit, engage or otherwise employ or retain any of Our Employees on a full-time, part-time, consulting or any other kind of basis. In the event of a breach of this clause, You agree that We are entitled to an agency commission on the basis of the following:
An amount being 25% of the said person’s starting salary with You; and You will pay the agency commission amount to Us within 7 days of Our employee being retained, engaged or employed by You.

Disputes

If there is any dispute or if You are not happy about the Services:
Please contact Us so that we can discuss and both parties will use their best efforts to resolve any dispute under, or in connection with the Agreement, through good faith negotiations with the other party. In the event of a dispute arising out of this Agreement that cannot be resolved by mutual agreement, the Parties agree to engage in mediation and shall refer the dispute to an independent mediator as agreed and will use their best endeavours to resolve the dispute in mediation. All costs associated with the dispute (including legal, mediation or arbitration Purchase Price), will be at Your expense.

Notices

A party giving notice under this Agreement must do so in writing to the address specified in the Proposal, or such other address as specified in the Proposal. Subject to the method of delivery, the notice will be considered to be delivered:
By hand: date of delivery;
By registered or express post: 3 Business Days after date of posting if sent express or registered post otherwise within 5 Business Days; and/or
By email: If the sender’s email does not receive a delivery failure notice on the date the email is sent.

Entire Agreement

The Agreement constitutes Our entire agreement with You about the subject matter and supersedes all previous agreements, understanding and negotiations on that subject matter.

Governing Law

The formation, construction, performance and enforcement of the Agreement will be in accordance with the laws in force in the Australian State or Territory of Our address as set out in the Proposal. You and We submit to the non-exclusive jurisdiction of the courts of that jurisdiction.

Execution and Counterparts

The Agreement will become binding when any one or more counterparts of a Proposal, individually or taken together are signed by the parties. The Agreement may be executed in counterparts and by way of electronic signature, including by clicking “I consent” or “I agree” or similar and if so, will be considered an original, properly executed.

Amendment or Variation

Any amendment or variation to the Agreement is not effective unless in writing agreed by You and Us.

Validity

Whenever possible, each provision of the Agreement will be interpreted in such a manner as to be effective and valid under Applicable Law, but if any provision of the Agreement is held invalid or unenforceable, the remainder of the Agreement will nevertheless remain in full force and effect and the invalid or unenforceable provision will be replaced by a valid or enforceable provision.

Assignment

You cannot assign the Agreement or otherwise deal with the benefit of it or a right under it without Our prior written consent. We may assign or novate the Agreement or otherwise deal with the benefit of it or right under it without Your consent.

Interpretation

In the Agreement, clause and other headings are for ease of reference and do not affect the interpretation of the Agreement and:
words in the singular include the plural and vice versa; a reference to a party to the Agreement includes the party’s permitted assigns;
and a reference to “including” and similar words do not imply any limit.

Orders

In the Agreement, the following terms have the stated meaning unless a contrary intention appears:

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