1. SCOPE OF THESE TERMS OF TRADE

 

1.1 These Terms apply to all supplies of Goods by Breville to the Reseller unless specifically varied or excluded by the parties in a writing signed by the parties. Breville hereby supplies Goods to the Reseller for resale to the public in Reseller’s ordinary course of business. Reseller shall not resell the Goods online except on a website operated by Reseller or online marketplace, either of which shall clearly indicate Reseller’s usual business name.

 

1.2 These Terms and any Invoice contain, and are deemed to be a conclusive record of, the entire agreement and understanding between Breville and the Reseller with respect to the subject matter to which they relate. Breville’s acceptance of Reseller’s purchase order is expressly conditioned on Reseller’s acceptance of these Terms, which are in lieu of any additional or different terms contained in Reseller’s purchase order or other document or communication pertaining to the Reseller’s order or the Goods. Reseller’s assent to these Terms shall be conclusively presumed from Reseller’s acceptance of all or any part of the Goods or from payment therefor. Failure of Breville to object to any terms or conditions which may be presented by Reseller shall not be construed as a waiver of these Terms nor as an acceptance of other terms.

 

1.3 These Terms may not be amended or varied unless agreed in writing by authorised representatives of the parties.

 

1.4 An Invoice can be amended only if within 60 days of the delivery: (a) Breville or the Reseller gives to the other a written notice explaining its objection to the Invoice; and (b) Breville and the Reseller agree in writing to amend the Invoice.

 

 

2. DEFINITIONS

 

In these Terms unless inconsistent with the subject or context:

 

2.1 "Breville" means Breville Pty Limited (ABN 98 000 092 928), its successors in title, domestic subsidiaries and brands, transferees, assigns and, where applicable, its officers, employees and agents.

 

2.2 “Reseller” means the person named on the Invoice as the Reseller, any person who accepts the Invoice as Reseller and the successors in title, legal personal representatives, assigns, employees, servants and agents of the Reseller. Where more than one person is included in the term “Reseller” they will be jointly and severally liable.

 

2.3 “Delivered” means that the Goods have been, as directed by the Reseller, either: (i) delivered to the Reseller or its carrier; or (ii) removed from the premises of Breville, whichever is earlier. The receipt by Breville of a delivery acknowledgment signed by the Reseller is sufficient evidence of delivery.

 

2.4 “Delivery Date” means the date for delivery of a batch of Goods.

 

2.5 “Goods” means any electrical goods or other goods supplied, or to be supplied, by Breville to the Reseller.

 

2.6 “Insolvency Event” means any of the following events:

 

(a) a person becomes insolvent (or insolvent under administration) as defined in the Corporations Act 2001 (Cth), states that it is insolvent or is presumed insolvent under an applicable law;

 

(b) a person is wound up, dissolved or declared bankrupt or commits an act of bankruptcy;

 

 

(c) an IP Commencement;

 

(d) a person enters into or becomes subject to: (i) any arrangement or composition with one or more of its creditors or any assignment for the benefit of one or more of its creditors; or (ii) any re-organisation, moratorium, deed of company arrangement or other administration involving one or more of its creditor

 

(e) an application or order is made (and, in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), meeting called, resolution passed, proposal put forward, or any other action taken which is preparatory to or could result in an Insolvency Event;

 

(f) a person is taken, under Section 459F(1) of the Corporations Act 2001 , to have failed to comply with a statutory demand;

 

(g) a person suspends payment of its debts, ceases or threatens to cease to carry on all or a material part of its business or becomes unable to pays its debts when they fall due; or

 

(h) anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the other paragraphs of this definition, unless the event occurs as part of a solvent reconstruction, amalgamation, merger or consolidation that has been approved in writing by Breville.

 

2.7 “Insolvency Practitioner” (“IP”) means a liquidator, provisional liquidator, Controller, administrator, receiver, receiver and manager, encumbrancer, trustee for creditors, trustee in bankruptcy or other similar person

 

2.8 “Invoice” means a written invoice from Breville to the Reseller for Goods.

 

2.9 “IP Commencement” means an Insolvency Practitioner is appointed to, or takes possession or control of, any or all of a Reseller’s assets or undertakings.

 

2.10 “PPSA” means the Personal Property Securities Act 2009 (Cth).

 

2.11 “Purchase Price” means the price for Goods specified in the Invoice for those Goods.

 

 

3. PAYMENT FOR GOODS AND QUOTATIONS

 

3.1 Credit terms if applicable, are at Breville’s sole discretion, with payment due date as detailed on the invoice or if due date is not stated payment must be made within thirty days from the end of the calendar month during which those Goods were Delivered.

 

3.2 The Reseller must pay Breville the Purchase Price in Australian Dollars without deduction, set-off, counter-claim or cross-demand.

 

3.3 If the Purchase Price is not paid in full in accordance with clause 3.1, the Reseller must pay Breville a late payment fee calculated daily on the unpaid amount from the date that the unpaid amount became due and payable to the date that the Purchase Price is paid in full at a rate of interest equal to 1.5% per calendar month accrued daily.

 

3.4 The Reseller is not entitled to withhold payment of any amount due on account of any claim against Breville whether admitted or disputed by Breville.

 

3.5 Unless otherwise specified, all prices are exclusive of any sales tax or goods and services tax, which will be charged at the appropriate rate where applicable.

 

 

3.6 If Goods are Delivered in instalments, Breville may invoice on a pro rata basis as and when Delivered, and payments shall be due in respect of each Delivered instalment notwithstanding whether other instalments have not been, or will not be, Delivered.

 

 

4. DELIVERY OF GOODS

 

4.1 The Reseller acknowledges that any Delivery Date is an estimate only and that, whilst Breville shall use reasonable and commercial endeavours to deliver the Goods on or before the Delivery Date, Breville does not warrant or represent that the Goods will be delivered on the Delivery Date. Breville will not be liable under any circumstances for any loss, damage or delay arising from late or non-delivery nor shall the Reseller be entitled to treat the agreement between Breville and the Reseller as repudiated if Goods are not delivered on or before the Delivery Date.

 

4.2 If Breville is unable to deliver Goods to the Reseller on or before the Delivery Date for any reason whatsoever including but not limited to industrial dispute, fire or Act of God, then Breville may:

 

(a) deliver the Goods to the Reseller after cessation of any such disabling event and these Terms will continue to have full force and effect as though the Goods had been delivered on or before the Delivery Date; or

 

(b) cancel the order in which case the Reseller will have no recourse against Breville except for a refund of any part of the Purchase Price paid in respect of the Goods.

 

4.3 The Reseller agrees that if it fails or refuses to take delivery of Goods then Breville may, in its sole discretion and without prejudice to any of its other rights, store those goods at the risk and expense of the Reseller.

 

4.4 Where the Reseller requests Breville to arrange for transportation of Goods, the Reseller must pay for all carriage charges and expenses including cartage and insurance, unless otherwise agreed by Breville in writing.

 

4.5 Where Goods are transported by Breville or a contractor engaged by or on behalf of Breville, Breville shall be under no liability whether in tort or contract for any loss or damage to those goods or delay in delivery no matter how caused.

 

 

5. LIABILITY AND INDEMNITY

 

5.1 Any claims by the Reseller in respect of Goods must be notified in writing by the Reseller to Breville within seven days after delivery and if the Reseller does not do so, the Reseller is deemed to forever release and discharge Breville from all actions, suits, charges, claims and demands which relate directly or indirectly to those goods.

 

5.2 Subject to clause 5.6, the Reseller acknowledges and agrees with Breville that the Goods do not and shall not infringe any intellectual property right held by a third party and that all Products will materially conform to the product description in the applicable owner’s guide. Breville DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM CUSTOM, COURSE OF DEALING, USAGE OF TRADE, OR COURSE OF PERFORMANCE, IN EACH CASE TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW.

 

5.3 Breville shall have no obligation for any action or claim of infringement which is based upon or arises out of the use of any Good, or any part thereof (i) in a manner for which it was not intended; (ii) in a modified form; or (iii) in combination with any other system, equipment or devices not contemplated by the applicable Good’s specifications. Reseller shall not be entitled to indemnification for infringement unless Reseller (i)gives Breville prompt written notice of any action or threat of action, the ground for such action and all prior claims relating to any actual or threatened action; (ii) gives Breville in writing the sole control of

 

the defence and all negotiations for its settlement or compromise and (iii) fully and completely cooperates with Breville in the same. The indemnification shall not apply to any claim of patent or copyright infringement based upon the use of any part, component or other device furnished or supplied by Reseller.

 

5.4 To the extent permitted by law, in no event shall Breville be liable, whether in contract or tort (including negligence or breach of statutory duty) or otherwise for any loss, damage, cost or expense of any kind whether direct, indirect or consequential (including for loss of profits, business or anticipated savings):

 

(a) arising directly or indirectly out of or in respect of the use, custody or supply of Goods; or

 

(b) caused directly or indirectly by the inadequacy of Goods for any purpose or any defect in Goods;

and the Reseller releases and forever discharges Breville from all such responsibilities and liabilities and any claims, demands or causes of action in respect thereof.

 

5.5 The Reseller hereby indemnifies Breville against any liability, loss, damage, cost or expense suffered or incurred by Breville as a result of Reseller’s breach of or Breville taking any action or exercising any of its rights under these Terms, including but in no way limited to any debt collection costs and related legal costs.

 

5.6 The Reseller shall, to the extent permitted by law, defend, indemnify and keep indemnified Breville against any actions, proceedings, claims or demands for loss, damage, cost or expense of any kind an brought, made or threatened against Breville by any third party arising directly or indirectly out of or in respect of the use, custody or purchase and supply of Goods.

 

5.7 Nothing in these Terms, whether express or implied, shall be taken to exclude, restrict or modify any non-excludable conditions, warranties or rights contained in any applicable State or Commonwealth legislation.

 

5.8 If Breville is held liable in respect of Goods for a breach of a guarantee arising under the Competition and Consumer Act 2010 (Cth) or equivalent statutes of any relevant jurisdiction, to the extent permitted by law any liability for such breach will be limited at Breville’s option to any of the following as determined in the sole discretion of Breville: (a) a replacement of those goods or the supply of equivalent goods; (b) the payment of the value of the goods or of replacing the goods or of acquiring equivalent goods; (c) the repair or restoration of the goods; or (d) the payment of the costs of having the goods repaired or restored.

 

 

6. RETENTION OF OWNERSHIP

 

6.1 Upon Goods being Delivered to Reseller, those Goods shall be at Reseller’s risk.

 

6.2 Notwithstanding clause 6.1, property in and ownership of Goods will remain with Breville and not pass to the Reseller until the Reseller has paid Breville for those Goods in full and all other amounts owing on any account whatsoever by the Reseller.

 

6.3 When ownership of Delivered Goods has not passed to the Reseller, the Reseller will, from the time those Goods (the “Unpaid Goods”) are Delivered, take and retain custody of them as the fiduciary agent and bailee of Breville. The Reseller will ensure that the Unpaid Goods are clearly identifiable as the property of Breville and are properly stored, protected and insured.

 

6.4 Reseller may re-sell Unpaid Goods but only as the fiduciary agent and bailee of Breville. The Reseller has no other rights as agent. It cannot incur any liability for or on behalf of Breville to any third party by contract or otherwise. Any re-sale of Unpaid Goods must be at arm’s length, on market terms, and in the ordinary course of the Reseller’s business. Reseller will hold the proceeds from resold Unpaid Goods (the “Proceeds”) in trust for Breville up to the amount owed and only until payment is due. The receipt on trust of the Proceeds will not discharge the Reseller’s debt to Breville in respect of those goods until those amounts are actually paid to Breville.

 

6.5 The Reseller will maintain records to ensure that trust money is clearly identifiable as being held on trust for Breville. Moneys held on trust for Breville will be kept separate until they are paid to Breville.

 

6.6 In the event that:

 

(a) the Reseller fails to pay the Purchase Price for Goods in full by the due date;

 

(b) an Insolvency Event occurs in relation to the Reseller;

 

(c) the Reseller parts with possession of Unpaid Goods other than by way of sale in the ordinary course of business; or

 

(d) the Reseller breaches any of the other provisions of these Terms,

 

Breville shall have the immediate right to:

 

(i) demand that the Reseller immediately account to Breville for any money or property (including, but not restricted to, any Goods and any debt) held on trust for Breville;

 

(ii) enter any premises containing Unpaid Goods without notice to take possession of the Unpaid Goods free from trespass;

 

(iii) sell Unpaid Goods and apply the proceeds (after expenses of sale and enforcement) in or towards reduction of amounts due and payable on any account whatsoever to Breville; and

 

(iv) be indemnified by the Reseller from and against (and the Reseller must pay on demand to Breville) all loss, damage, costs or expenses which Breville may suffer or incur in exercising its rights under this clause 6.6.

 

6.7 The Reseller grants Breville, free from trespass, the right to enter any premises where Unpaid Goods are stored and inspect such goods at any time.

 

6.8 If an IP Commencement occurs, the IP must immediately conduct a stocktake of all property (including trust property) belonging to Breville in the Reseller’s custody and provide Breville with access to the results of that stocktake.

 

6.9 The Reseller must comply with any reasonable directions given by Breville to ensure compliance with this clause 6.

 

6.10 The Reseller irrevocably appoints Breville as its true and lawful attorney to recover any proceeds of Unpaid Goods re-sold and to exercise the Reseller’s rights against such buyer, including, without limitation, the right to re-take possession of those goods.

 

6.11 Breville’s rights under this clause 6 in no way limit any other of its rights against the Reseller.

 

 

7. PPSA – PERSONAL PROPERTY SECURITES ACT

 

7.1 In this clause 7, capitalised expressions have the meaning given to them in the PPSA.

 

7.2 The Reseller acknowledges and agrees that:

 

a) by entering into these Terms, the Reseller grants a Security Interest as governed by the PPSA to Breville in the Unpaid Goods and any proceeds of sale in respect of those Unpaid Goods;

 

b) for the purposes of s 20(1)(iii) of the PPSA, the description of the goods subject to any Security Interest created under these Terms is as set out in these Terms and any related Invoice; and the description of the goods in any Invoice is expressly incorporated into these Terms.

 

7.3 The Reseller consents to Breville registering any one or more Financing Statements or Financing Change Statements in respect of any Security Interest created by or contemplated under these Terms and undertakes to do all things reasonably required by the Supplier to facilitate this.

 

7.4 The Reseller agrees to pay, on demand, all costs incurred in registering any Financing Statement or any Financing Change Statement and shall indemnify Breville (and its agents) in respect of all such costs incurred.

 

7.5 The Reseller agrees not to cause (directly or indirectly) the registration of a Financing Change Statement in respect of the Unpaid Goods without Breville’s prior written consent.

 

7.6 Breville and the Reseller agree that pursuant to PPSA s 115, sections 95, 96, 125, 129, 130, 132(3)(d), 132(4), 135, 142 and 143 will not apply.

 

7.7 For the purposes of s 275(6) of the PPSA, Breville and the Reseller agree that neither party will, or is entitled to, disclose information of the kind specified in s 275(1) of the PPSA.

 

7.8 The Reseller agrees that it will not enter into any agreement or arrangement which permits any other person to register any Security Interest in respect of the Unpaid Goods, the proceeds of sale of the Unpaid Goods, or any accounts owed in respect of the Unpaid Goods without Breville’s prior written consent.

 

7.9 The Reseller agrees to give Breville at least 10 days’ prior written notice before changing any of its corporate details (such as i©name, ACN or ABN) or principal place of business.

 

7.10 Notwithstanding anything else in these Terms, any exercise, or attempted exercise, of any enforcement right by Breville under these Terms does not prejudice or limit, in any respect, any other rights or remedies of Breville arising at law or in equity.

 

 

8. CANCELLATION

 

8.1 Breville reserves the right to accept or reject all or part of any order submitted by the Reseller.

 

8.2 Subject to clause 5.6, the Reseller may not cancel any orders unless: (a) written notice of intention to cancel the order is given to Breville within seven days after the date of the order; and (b) Breville (in its absolute discretion) notifies the Reseller in writing that it agrees to accept the cancellation of the order; and (c) the Reseller pays Breville any amounts necessary, as determined by Breville, to indemnify Breville against all loss or damage resulting from the cancellation.

 

 

9. OTHER TERMS

 

9.1 The Reseller must immediately notify Breville of any alteration to the ownership or effective control of the Reseller.

 

9.2 Breville grants Reseller a limited, non-transferable, non-sub-licensable, revocable and non-exclusive right to use the Trademarks in the promotion, advertisement and sale of the Goods in Australia and its territories subject to the Breville Trademark Guidelines. Breville does not grant any other license, right, title or interest in any intellectual property. Should the Reseller engage in ecommerce promotional activities leveraging Breville’s trademarks and intellectual property, Breville only permits the license of its IP for use on web sites, marketplaces or other ecommerce platforms where the Reseller’s official business name or identity who purchased the goods from Breville is clearly identified and made visible to the public.

 

9.3 The Reseller may only sell the Goods to End Consumers in the territory of Australia unless prior written agreement has been obtained.

 

9.4 The Reseller may not assign its rights contained in any agreement between the parties without the prior written consent of Breville but any such agreement is assignable in whole or in part by Breville in its absolute discretion.

 

9.5 Breville will have the right to suspend deliveries of Goods (notwithstanding that the Reseller may not be in arrears with any payment) where Breville in its absolute discretion considers the amount outstanding in the Reseller’s account (whether actually due for payment or not) is the limit to which Breville is prepared to allow the Reseller credit.

 

9.6 The Reseller agrees that in the event of default of payment of a debt owed by the Reseller to Breville, Breville may disclose all information relating to the Reseller’s account to its debt collection agency, legal advisors and trade credit insurers for the purposes of receiving any or all amounts outstanding.

 

9.7 If any provision of these Terms, or the application of these Terms to any person or circumstance, is found to be invalid or unenforceable this will not affect the validity or enforceability of the other provisions of these Terms which will remain in full force and effect.

 

9.8 Notices or other communications to be given under these Terms will be deemed to have been given if they are in writing and signed by, or on behalf of, any of the respective parties and served upon the other party by being delivered by hand or sent by ordinary post or by being sent by email. Any such notice or communication will be deemed to have been received at the time at which it is left at the recipient’s address or at the expiration of 48 hours from the time of posting or upon receipt by the sender of email delivery confirmation.

 

9.9 These Terms will be governed by the laws of NSW and the Reseller and Breville agree to submit to the jurisdiction of the NSW Courts. The parties shall comply with all applicable laws.

 

9.10 By accepting delivery of the Goods, the Reseller agrees and acknowledges that it has read and fully understood these Terms and agrees to be bound by them.