Flower Flow Pty Ltd – Terms and Conditions
1. Definitions: Company means Flower Flow Pty Ltd ABN 50 169 804 362, Confidential Information means any information or document about or in any way relating to the Company in any form that is acquired by or made available to the Reseller in the course of the Parties’ relationship, Parties means the Company and the Reseller, Price per Unit means the price paid by the Reseller for a Product, Product means a product sold by the Company to the Reseller for resale, Reseller means any person requesting the Company to sell Products to it for resale, Term means the period for which the Company has appointed the Reseller as the reseller of the Products (unless terminated earlier under these Terms) and Terms means these terms and conditions.
2. Engagement of Reseller: The Reseller may sell and distribute the Products for the Term. The Reseller may only sell the Products in the agreed distribution area, without the Company’s prior written consent. The exclusivity of the Reseller’s appointment is as agreed by the Parties. The Company will provide and the Reseller will undergo one day’s training, at the Reseller’s cost. The Reseller will use any marketing materials the Company provides to promote the Products. The Company will provide ongoing Product care and treatment support to the Reseller during the Term.
3. Supply and Price: The Reseller will buy the Products from the Company and the Company will sell the Products to the Reseller at the Price per Unit, subject to the right of the Company to change the prices of its Products (particularly for high and low seasons) without notice in its absolute discretion from time to time. If the Company ceases to make available a type of a Product, the Company will provide and the Reseller will purchase such other type as the Company substitutes for the unavailable type.
4. Orders and Invoicing: The Reseller will order Products from the Company in accordance with the Company’s processes and procedures, as notified by the Company from time to time. Weekly orders placed by the Reseller will be delivered to the nominated delivery address the following week. The Company will invoice the Reseller electronically for any Products ordered by the Reseller. The Reseller will pay any invoice issued by the Company via electronic funds transfer or bank cheque, within 7 days of the Product being delivered to the nominated delivery address (the Due Date). Where the Company receives an order from the Reseller, the Company (a) has no obligation to deliver the Product to the Reseller until payment is received for the Product, unless otherwise agreed, (b) will use its best endeavours to supply the Products in a timely manner, in accordance with the Reseller’s order and in compliance with any applicable legislation or standards and (c) will use its best endeavours to ensure that the Products supplied are of a merchantable quality for distribution by the Reseller. The Reseller will pay the price specified at the time that it places its order, plus any applicable delivery and insurance costs that apply. All amounts are stated in Australian dollars and exclude Australian GST (where applicable). Delivery and any insurance charges will be separately shown. In the absence of fraud or mistake, all payments made are final. Late payments will be charged an interest rate of 5% compounded daily until the payment is made. If invoices are unpaid by the Due Date, the Company may engage debt collection services for the collection of unpaid and undisputed debt, and may commence legal proceedings for any outstanding amounts owed to it. The Reseller is liable for and will pay all costs including debt collection, commission, legal fees and any out of pocket expenses, and the Company may place a default against the Reseller with a credit reporting agency. The Reseller will indemnify the Company for the full amount of its legal and debt recovery costs. The Company’s pricing structure or payment methods may be amended from time to time in its sole discretion.
5. Delivery: Unless otherwise agreed, the Company must arrange delivery of the Products to the Reseller’s nominated delivery address. The delivery price in respect of a Product may or may not be added to the purchase price of that Product (at the Company’s sole discretion). Upon collection or receipt of the Products by the Reseller or its representative, risk and legal title in the Products will pass from the Company to the Reseller. Title passes from the Company to the Reseller on the delivery of the Products to the address provided by the Reseller or the applicable airport in the case of airport deliveries, including if the address is unattended. The Reseller indemnifies the Company from and against any loss of and/or damage caused to the Products after the Products are collected by the Reseller or its representative.
6. Product Maintenance: The Reseller must maintain a stock of all the Products in good order for display and demonstration purposes. The Reseller has no right of action against the Company in respect of any loss occurring to it by reason of (a) any delay in delivery caused by or contributed to by shortage of stock or delays in transit or delays caused by accidents or strikes; Australian Quarantine and Inspection Services finding issues with the Products and holding them back; or flight delays; or (b) a Product handler not taking reasonable care of the Product causing them to be harmed.
7. Resale: The Company may provide to the Reseller a list of minimum and maximum resale prices at which the Products may be resold. The parties agree for the purposes of the Competition and Consumer Act 2010 (Cth) that (a) the minimum resale prices in that list are recommended minimum
resale prices only and there is no obligation on the Reseller to comply with those recommendations, (b) the Company may set maximum resale prices for the Reseller to comply with, and (c) this clause is taken to be incorporated into every price list issued by the Company to the Reseller under these Terms. The Reseller must at all times during the Term offer for sale and sell the Products according to the specifications supplied by the Company to the Reseller from time to time either generally or in any particular case. The Reseller must not make any representation or give any warranty in respect of the Products other than those contained in the
Company’s conditions of sale as current at the time of the offering for sale or the sale. The Reseller must sell the Products in the same condition as it receives them. The Reseller must not alter, remove or in any way tamper with any of the Company’s marks or numbers on the Products or the Company’s branded packaging.
8. Insurance: The Reseller (and its employees and agents) is not entitled to the benefit of any insurance or workers compensation policies that the Company may hold. The Reseller will ensure adequate insurance coverage is effected and maintained throughout the Term and ensure that the Company is nominated as an interested party on any such insurance policies. The Reseller will provide the Company with evidence of such arrangements, if requested.
9. Reseller’s Obligations and Warranties: The Reseller acknowledges and agrees that (a) it has legal capacity, power and authority to enter into these Terms, (b) there are no legal restrictions preventing it from selling the Products, (c) in selling the Products it will act with due care and skill, (d) it will comply with any reasonable directions given to it by the Company from time to time, (e) it will sell the Products in the same condition, without alteration or modification in any way, as they were received from the Company, (f) it will act lawfully and will comply with any applicable licenses, laws, regulations, industry codes of conduct, health and safety requirements and Australian standards in selling the Products, (g) the Company owns all intellectual property rights in the Products, (h) in selling the Products it will acknowledge the Company as the manufacturer of and the owner of any intellectual property rights in the Products, and it will not represent itself as the manufacturer or owner of any intellectual property rights in the Products, (i) it will seek approval in advance from the Company in relation to all advertising and promotion of the Products,
(j) it will follow the Company’s directions and marketing materials regarding the Products, and will make no new or different statements or representations about the Products, and will make no false or misleading representations about the Products, (k) it is not aware of any actual or potential conflict of interest in it selling the Products (unless otherwise agreed in writing with the Company), (l) it will not sell any other goods of a similar type to the Products or that compete with the Products, other than with the prior written consent of the Company, (m) it has a valid ABN which has been advised to the Company, and (n) it is registered for GST purposes. The Reseller must provide to the Company a report setting out the volume of the Products, and sale price, for all sales during the preceding month, within 5 business days of the end of each calendar month.
10. Confidentiality: The Reseller agrees (a) not to disclose Confidential Information to any third party, (b) to use its best endeavours to protect the Confidential Information from any unauthorised disclosure, (c) only to use the Confidential Information for the purpose for which it was disclosed by the Company and not for any other purpose, and (d) to be responsible for and assume liability in relation to all of its employees, agents, consultants and contractors to whom Confidential Information is disclosed and ensure that they maintain the confidentiality of the Confidential Information and otherwise comply with the obligations set out in these Terms. The Reseller’s obligations set out in this clause do not apply to Confidential Information (a) that is already in the public domain, except as a result of the actions of the Reseller in breach of these Terms, or (b) received from a third party, except where there has been a breach of confidence, or (c) that must be disclosed by law, provided that the Reseller reveals only so much of the Confidential Information as the Reseller is required by law to disclose and gives sufficient notice to the Company in order to allow the Company to object to, or otherwise prevent, the Confidential Information being disclosed. The obligations under this clause survive termination of these Terms.
11. Privacy: The Parties will comply with the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or Privacy Guidelines.
12. Intellectual Property: The Company owns all intellectual property rights in the Products, marketing materials and Company branding, as between it and the Reseller. The Company grants the Reseller a world-wide, royalty free, non-exclusive, non-assignable license to use the marketing materials and Company branding as relevant to sell the Products. The licence under this clause expires immediately on termination of these Terms.
13. Termination: Either Party may terminate these Terms (a) by giving at least 3 months’ written notice to the other Party or (b) immediately, by giving written notice to the other Party following material breach of these Terms. The Company may terminate these Terms by giving 1 month’s written notice (a) where the Reseller fails to sell more than the minimum
quantity of the Products for a particular sale period as agreed by the Parties, (b) if the Products are withdrawn from sale by the Company for any reason or (c) if the Reseller is declared or must be presumed to be unable to pay its debts as they fall due. Upon termination of these Terms, the Reseller will (a) immediately stop selling Products, (b) immediately stop ordering Products, (c) immediately return to the Company all Company property, including Confidential Information, marketing material and Products in its possession that belong to the Company, and
(d) pay to the Company any amount owed in respect of any indemnities provided under these Terms. Upon termination of these Terms, the Reseller will pay the Company any outstanding amounts for Products that the Reseller has sold. The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms.
14. Non-Compete: The Reseller may engage in other work during the Term provided it does not conflict with the Reseller’s obligations under these Terms. If the Reseller becomes aware of any conflict of interest between these Terms and any other work it has been offered or is undertaking, it must inform the Company immediately and take all steps reasonably agreed with the Company to resolve the conflict. During the Term and when the Term ends, the Reseller will not as a sole trader, partner, manager, employee, director, consultant, advisor, shareholder, unit holder, trustee or with any other entity in which the Reseller may at any time have any direct or indirect interest (a) compete with the Company’s business, enter into business arrangements, advise, work for, consult with, provide services to, or in any way assist a competitor of the Company, (b) directly approach, canvass, solicit or deal with any client or customer of the Company with whom the Reseller had business contact with during the Reseller’s relationship with the Company (who were clients or customers at the date of termination of these Terms or within the 12 months prior), (c) interfere with, disrupt or attempt to disrupt the relationship, contractual or otherwise, between the Company and any supplier of the Company (who were suppliers at the date of termination of these Terms or within the 12 months prior) or (d) induce or solicit any employee, contractor or agent of the Company or any of its subsidiaries or related companies to leave the employment or agency of the Company or such subsidiary or related Company (who were employees, contractors or agents at the date of termination of these Terms or within the 12 months prior).This clause applies for 12 months, or (if that duration is held by a court to be unreasonable) 6 months, or (if that duration is held by a court to be unreasonable) 3 months in the Commonwealth of Australia, or (if that geographical area is held by a court to be unreasonable) the State or Territory in which the Reseller works for the Company at the date of termination of these Terms, or (if that geographical area is held by a court to be unreasonable) the metropolitan area of the capital city in which the Reseller works for the Company at the date of termination of these Terms. Each restraint contained in these Terms, resulting from any combination of the wording and definitions in the clause, constitutes a separate and independent provision, severable from the other restraints. If a court of competent jurisdiction finally decides any such restraint to be unenforceable or whole or in part, the enforceability of the remainder of that restraint and any other restraint will not be affected. The Reseller acknowledges that this clause is reasonable in terms of its extent and duration and goes no further than is reasonably necessary to protect the interests and confidential information of the Company. The Reseller also agrees that this clause does not unreasonably restrict the Reseller’s right to carry on his or her profession or trade.
15. Liability and Indemnity: The Reseller is liable for and agrees to indemnify the Company in respect of any claim, action, damage, loss, cost, charge, expense, penalty, fine or payment which the Company suffers, incurs or is liable for as a result of (a) the distribution of the Products by the Reseller, (b) any loss, damage or injury suffered by a third party or the Reseller, caused by any negligence, or deliberate act by the Reseller misusing or consuming the Products, (c) any loss, damage or injury suffered by a third party, caused by any negligence, or deliberate act, by the Reseller performing under these Terms or (d) any breach by
the Reseller (or its employees, agents or subcontractors) of these Terms. The Company is liable for and agrees to indemnify the Reseller in respect of any claim, action, damage, loss, cost, charge, expense, penalty, fine or payment which the Reseller suffers, incurs or is liable for as a result of any breach by the Company (or its employees, agents or subcontractors) of these Terms. The obligations under this clause survive termination of these Terms.
16. Dispute Resolution: Any notice of issues with the Products must be given to the Company within 24 hours of delivery supported by photographic evidence. The Company will address, investigate and respond to customer complaints relating to the Products provided that, if the Reseller is a wholesaler, it will not be subject to any claims that arise 24 hours after the Product is delivered to the nominated delivery address. If there is a dispute between the Parties in relation to these Terms, the Parties agree that (a) the complainant must tell the respondent in writing the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute, (b) the Parties will meet in good faith to attempt to resolve the dispute within 2 weeks of the complainant sending the notice, if reasonable, or as soon as possible thereafter, (c) if the Parties will not meet, or cannot agree on how to resolve the dispute within 2 weeks of the meeting, either of the Parties may refer the matter to a mediator. If the Parties cannot agree on whom the mediator should be, either Party may ask the Law Society of New South Wales to appoint a mediator. The Parties must attend mediation to try to resolve the dispute. Any attempts made by the Parties to resolve a dispute under this clause shall be without prejudice to any other rights or entitlements of the Parties under these Terms, by law or in equity.
17. Force Majeure: Neither Party is liable for any delay or failure to perform its obligations under these Terms if such delay is due to any circumstance beyond its reasonable control. If a Party is delayed in performing its obligations due to such a circumstance for at least 2 months, it may terminate these Terms by giving 5 business days’ written notice.
18. Governing law and jurisdiction: These Terms are governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales.
19. General: Each Party must pay its own costs and expenses (including legal costs and expenses) in relation to the negotiation, preparation and execution of this Agreement and any variation or replacement of this Agreement. Any notice given by a Party under these Terms must be in writing and sent to the other Party using the contact details provided. Any notice may be sent by standard post or email and notice will be deemed served on the expiry of 48 hours in the case of post or at the time of transmission in the case of email. The Reseller may describe themselves as an authorised distributor of Company Products, but must not describe itself as an employee or agent of the Company. These Terms are not intended to create a relationship between the Parties of partnership, agency or employer-employee. Neither Party has authority to enter into any agreement that imposes rights or obligations on the other Party. Neither Party may assign or deal with its rights or obligations under these Terms without the prior written consent of the other Party. Any failure or delay by a Party in exercising a power or right in relation to these Terms does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right. The powers, rights and/or remedies of a Party under these Terms are cumulative and are in addition to any other powers, rights and remedies of that Party. These Terms contain the entire understanding between the Parties and supersede any prior agreement, understanding or arrangement between the Parties.