Terms and Conditions

Trading Account Terms (“Terms”)

1 The effect of the Credit Application
1.1 We may extend you credit if:
  (a)   we receive a completed Credit Application from you on terms which are satisfactory to us; and
  (b)   we consider, in our sole discretion, that your application ought to be approved.
1.2 You acknowledge that any credit we may approve under clause 1.1 will be subject to these Terms which (together with the Privacy Statement are incorporated into the Credit Application.
1.3 If you wish to negotiate the terms of the Trading Account or otherwise any terms incorporated in the Credit Application, you should respond to us marking up the terms you seek, and drawing those changes to our attention and obtain our agreement in writing.
1.4 It is not our practice to otherwise review terms and conditions on documents that you issue to us.
1.5 Unless we otherwise agree in writing, we do not accept, and will not be bound by, any terms or conditions included in, attached to, or referenced in, any other document you give to us like a purchase order.
2 Payment terms
2.1 Charges on your approved Trading Account must be paid:
 
 (a) (for invoices or charges raised on or between the 1st and 19th day of the month): by the 25th day of the first month following the date of invoice or charge;
 
 (b) (for invoices or charges raised on or between 20th and the 31st of the month): by the 25th day of the second month following the date of invoice or charge;
 
 (c) (for invoices or charges billed on a current month statement): by the 25th day of the first month following the current statement month and if the 25th day of the month falls on a day that is not a business day, payment is due on the last business day prior; or
 
 (d) on such other terms as nominated by us in writing at the time we establish your Trading Account.
2.2 Payment may be made by electronic funds transfer, and Visa, Mastercard, and AMEX credit cards. We reserve the right to change the payment methods that we accept at any time.
2.3 We may charge a payment surcharge for applicable payment transactions equal to our reasonable cost of acceptance.
2.4 You agree to pay GST on all taxable supplies upon us issuing you a tax invoice relating to the taxable supply.
2.5 You agree to pay sums due to us free of any set off or counterclaim and without deduction or withholding.
3 Unauthorised use of your Trading Account
3.1 You are solely responsible for ensuring there is no unauthorised use of your credit account. You must keep details of your Trading Account with us confidential, including your account number, and treat it like a banking PIN or password.
3.2 If you become aware that your Trading Account is, or may be, the subject of unauthorised use, you must:
 
(a) notify us in writing as soon as possible via email to credit.au@newbalance.com; and
 
(b) provide us with any information you have regarding the misuse or potential unauthorised use of your credit account.
3.3 You will be liable for charges that you have not authorised to your credit account unless:
 
(a) we had actual knowledge that they were unauthorised; or
 
(b) you have notified us in accordance with clause 3.2.
4 Credit remains at our discretion
4.1 Your Trading Account will be ascribed a credit limit, which you must not exceed.
4.2 At our sole discretion we may:
 
(a) extend, or refuse, credit to you for any reason;
 
(b) provide you with credit in excess of your credit limit; and
 
(c) cease to provide further credit even if your credit limit has not been, or will not be, exceeded.
4.3 We may close your Trading Account if you do not use it for six (6) months.
5 Variations
5.1 We may decrease your Trading Account limit by written notice to you effective immediately.
  If:
 
(a) we decrease, suspend, or close your Trading Account by giving notice pursuant to clause 5.1; and
 
(b) your Trading Account would fall into default as a consequence by reason of that notice,
  then we will not treat this as an event of default.
6 Allocation of payments
  We may in our reasonable discretion, allocate any payment received from you toward any invoice and we may do so at the time of receipt or at any time afterward.
7 Default
7.1 Your Trading Account will be in default if any of the below events occur.
 
(a) You fail to pay any sums to us when they fall due.
 
(b) Your account balance exceeds the amount we have identified as your credit limit and clause 5.2 does not apply.
 
(c) Any corporate entity that is a Customer or Guarantor is the subject of the appointment of administrators, liquidators, receivers, provisional liquidators or enters into an arrangement or compromise with creditors.
 
(d)  Any individual person that is a Customer or Guarantor commits an act of bankruptcy.
 
(e) You have given us information in support of your credit account which is false or misleading.
 
(f) You breach a material obligation or essential condition under our Terms.
7.2 If your Trading Account is in default due pursuant to 7.1(a), then:
 
(a) we may temporarily suspend your credit account;
 
(b) we may charge you interest on the outstanding debt (including any judgment debt) at the rate of 10% per annum;
 
(c) we may suspend or cease the supply of any further Goods or Services to you;
 
(d) we may suspend or cease any rebates, discounts, reductions, concessions, or other sales or marketing promotions that you are or may become entitled to;
 
(e) we may require pre-payment in full for any Goods or Services which have not yet been supplied; and
 
(f) we may close your Trading Account.
7.3 Where:
 
(a) any person(s) controls (within the meaning of Section 910B of the Corporations Act 2001 (Cth)) you and any other New Balance (our) customer, or there is at least one director common to such parties (“Related Accounts”); and
 
(b) any of the Related Accounts fail to observe these Terms,
then, without prejudice to any other rights which may be conferred upon us by law or equity, we shall be at liberty to:
 
(c) suspend your Trading Account (and the credit facilities of any Related Accounts); and / or
 
(d) terminate any contract of which these Terms form part.
7.4 Subject to clause 5.2, if you or a Related Account continue or repeatedly fail to pay any sums to us when they fall due then we may suspend or close your Trading Account for poor payment history.
8 Charge over your real and personal property
8.1 As security for the sums you owe, or may owe, us, you charge in our favour all of your estate and interest in:
 
(a) any real property (i.e. any house or land); and
 
(b) personal property (i.e. any other assets including for example and without limitation, any plant, equipment, vehicles, personal effects, and household items),
  whether:
 
(c) such property is held in your own right or in your capacity as trustee;
 
(d) you own the property at present or later acquire it; and
 
(e) wherever it is situated.
8.2 You irrevocably appoint our company secretary from time to time as your duly constituted attorney to execute in your name a real property mortgage, general or specific security agreement, bill of sale, or consent to any caveat upon written notice and demand to you.
8.3 If you have previously entered into an agreement with us by which you have granted a charge, mortgage, or other security interest in respect of your property then those security interests will continue and will co-exist with the security interests created in these Terms and will secure all of your indebtedness and obligations hereunder. We may, at our election and upon the provision of written notice, vary the terms of such previous charges, mortgages, or other securities to reflect these Terms.
8.4 You acknowledge that:
 
(a) you have read and understood this clause 8; and
 
(b) this clause 8 is necessary to protect our legitimate interests including having regard to:
 
  (i) the risk that retention of title and personal guarantees (if applicable in the Credit Application) may not in substance, provide adequate protection to us;
 
  (ii) the terms of any credit we may approve under clause 1.1 are given on the basis that this clause 8 would apply, and if that were not the case, we would not have given the same credit terms; and
 
  (iii) the risk of your insolvency given the nature of the industry in which you and we operate.
9 Waiver
  A waiver of any provision of these Terms will only be effective if made by the affected party in writing.
10 Notices
10.1 A notice or other communication connected with these Terms has no legal effect unless it is in writing.
10.2 In addition to any other method of service provided by law, a notice or other communication may be sent by pre-paid post to the address of the addressee or sent by email or SMS to the email or mobile number of the addressee.
10.3 For clarity, a notice or other communication is deemed to be received by the addressee:
 
(a) if delivered by hand, at the time of delivery;
 
(b) if sent by post, on the seventh (7th) day after the day on which it is posted; or
 
(c) if sent by email or SMS, at the time that would be the time of receipt under the Electronic Transactions Act 2000 (VIC), as amended.
11 Provision of further information
11.1 You undertake to comply with any reasonable written requests made by us from time to time to provide us with further documents and information we may require for the purpose of assessing your creditworthiness, including financial statements (which may be required by our insurer to assess our limit endorsement application).
11.2 If you are a corporation (with the exception of a public listed company), you must give us not less than fourteen (14) days’ prior written notice of any change to your company name or any alteration to your corporate structure (for example, by changing directors, shareholders, or your constitution). In the case of a change of directors or shareholders, we may ask for your directors to sign a guarantee and indemnity.
12 Insolvency
12.1 If you become insolvent, to the extent permitted by law, you remain liable under these Terms for payment of all liabilities incurred hereunder. You remain liable under these Terms even if we receive a dividend or payment as a result of you being insolvent.
12.2 If you are a partnership, you must not alter your partnership (for example, adding or removing partners or altering its partnership agreement) without notifying us in writing.
13 Entire agreement
13.1 You warrant that if you have entered into these Terms in reliance upon any oral understanding or representation that you have written such matters on the Credit Application and brought them to our attention in accordance with clause 1.3.
13.2 Otherwise, these Terms (together with all terms incorporated in the Credit Application):
 
(a) constitutes the entire agreement and understanding between the Parties in relation to its subject matter;
 
(b) excludes all implied terms; and
 
(c) supersedes all previous negotiations, understandings, representations, and warranties.
13.3 Notwithstanding clauses 13.1 and 13.2, where you have previously entered into a credit agreement with us (Original Agreement), these Terms will constitute a variation of the Original Agreement whereby the terms the Original Agreement are deleted and replaced with these Terms, unless the terms of the Original Agreement are otherwise expressly or implicitly preserved by these Terms, in which case they will co-exist with these Terms and, to the extent of any inconsistency, these Terms will prevail.
14 Application of Terms to Orders and contracts for supply
14.1 Our Terms govern our supply of Goods and Services to you, including supplies on a cash basis (where applicable).
14.2 Where:
 
(a) you are a member of a Buying Group;
 
(b) an Order is placed by the Buying Group at your request or direction; and
 
(c) the Goods are delivered to you directly, then these Terms will be enforceable against you directly (notwithstanding that the Buying Group is obliged to pay us for the Goods delivered).
  then these Terms will be enforceable against you directly (notwithstanding that the Buying Group is obliged to pay us for the Goods delivered).
15 Sourcing and distribution
15.1 You undertake to not source New Balance products other than from us.
15.2 Our Goods may only be sold by you to consumers and end users. Sales to, or purchases from, any other retailer or wholesaler are strictly prohibited.
15.3 You must not:
 
(a) sell, offer to sell, or purchase counterfeit New Balance products;
 
(b) engage in any conduct that is misleading or deceptive (or likely to mislead or deceive) or otherwise illegal;
 
(c) supply to or purchase from, any person or entity that you know or ought to know, has or will facilitate, or otherwise cause parallel imports of New Balance products into any Australian jurisdiction; and
 
(d) on-sell or supply our Goods to, or purchase our Goods from, non-approved suppliers.
15.4 You acknowledge and agree that you must only sell Goods supplied by us from store locations that have been pre-approved by us. 
15.5 The parties acknowledge and agree that clauses 15.1 to 15.4 are essential terms and are reasonably necessary to protect our legitimate interests.
16 Quotations
16.1 Each quotation that we issue:
 
(a) is an estimate only;
 
(b) is not an offer or obligation to supply any Goods or to perform any Services;
 
(c) is exclusive of GST;
 
(d) does not include the costs of delivering Goods
 
(e) remains valid for acceptance for a period of thirty (30) days from the date of quotation, unless withdrawn or varied by us at any time before a contract for supply is formed; and
 
(f) contains a price on the basis that all Services are performed, and all Goods delivered, during our usual business hours,
  unless the quotation states otherwise.
16.2 Quotations provided orally are subject to written confirmation.
16.3 A quotation may include additional terms or conditions, which will supplement these Terms.
16.4 Should you wish to have Services performed or Goods delivered outside our usual business hours please let us know as additional charges may apply.
17 Formation of contract
17.1 We are not obliged to supply any Goods or provide Services until after a contract for supply is formed.
17.2 A contract for supply is formed, and you have accepted these Terms, when:
 
(a) you have placed an Order with us; and
 
(b) we have received any deposit we have required from you in respect of the Order before progressing it; and
  either we have:
 
(c) accepted your Order in writing; or
 
(d) supplied you with any Goods or performed any Services following receipt of your Order.
17.3 If you seek to cancel an accepted Order:
 
(a) prior to the formation of a contract for supply then:
 
  (i) we will refund you any deposit you have paid in respect of that Order; and
 
  (ii) you will not be required to pay any fee for the cancellation of the Order; or alternatively
 
(b) after the formation of a contract for supply then unless we are in breach of the contract for supply:
 
  (i) you must pay our reasonable costs associated with fulfilment of your Order; and
 
  (ii) we may apply any deposit you have paid towards those costs.
18 Order cancellations
18.1 This clause 18 applies where an Order has been accepted and a contract has formed pursuant to these Terms.
18.2 A request for cancellation will not be considered by us unless made in writing by you and received by us not less than forty-five (45) days prior to the scheduled delivery date.
18.3 We reserve the right to refuse any cancellation request.
18.4 Unless otherwise agreed in writing, Special Make-Up Orders and Custom Goods Orders may not be cancelled.
18.5 You acknowledge and agree that we are under no obligation to accept revocations or cancellation requests of Orders, special make-up Orders, or custom Goods Orders.
19 Price
19.1 The price payable for the Goods or Services will be:
 
(a) the price agreed in writing; or alternatively
 
(b) the price by our prevailing price list or rates as when you place your Order.
20 Minimum spend
20.1 Unless otherwise agreed in writing, you agree to use your best endeavours to satisfy a yearly (New Balance Fiscal Year) minimum spend of $25,000 or such other minimum spend as reasonably notified to you in writing from time to time (net of any discounts).
20.2 In the event that you do not satisfy the yearly minimum spend contemplated by clause 20.1, we reserve the right:
 
(a) to close your Trading Account upon the provision of forty-eight (48) hours’ notice to you; and
 
(b) (where an Order has not been accepted by us pursuant to clause 17.2(c)) to cancel any Orders that will not be delivered within 90 days’ from the date of closure.
21 Minimum Orders
21.1 Where an Order is below the Minimum Commercial Value we reserve the right to levy a freight charge for each delivery.
21.2 The Minimum Commercial Value is available at any time upon request by email to credit.au@newbalance.com.
22 Order variations
22.1 This clause 22 applies where a contract for supply has not formed.
22.2 We may amend your Order by notifying you in writing.
22.3 If you do not agree with the amendments proposed by us, you must notify us in writing within fourteen (14) days. We will then be at liberty to reject the Order or suspend your Trading Account until such time as an agreement can be reached.
22.4 Obvious or manifest clerical errors (such as spelling mistakes, grammatical errors, or numerical errors) may be subject to reasonable correction by us without notification.
23 Price variations
23.1 This clause 23 applies where a contract has formed and we have accepted your Order pursuant to clause 17.2(c).
23.2 Where you request or direct that any Goods or Services be supplied that are not strictly in accordance with your Order, then such Goods or Services shall constitute a price variation, unless otherwise agreed between the parties and clause 23.3 will apply.
23.3 You acknowledge and agree that:
 
(a) all price variations under clause 23.2 must be agreed between the parties in writing prior to the Goods or Services being supplied; and
 
(b) all price variations shall be, at our discretion acting reasonably, invoiced at the rate(s) specified in the quotation, as specifically quoted, or in accordance with our current prevailing rates (as amended from time to time).
23.4 Subject to clause 23.5, we reserve the right to vary the price or rates specified in the Order if:
 
(a) there is any movement in the cost of supplying the Goods or Services specified in the Order (including, without limitation, any actual increase in the costs to manufacturing, procuring, or transporting the Goods, foreign exchange fluctuation, currency regulation of duties, or significant increases in the cost of labour, materials);
 
(b) additional Goods or Services are required due to the discovery of hidden or unforeseen problems (including, without limitation, issues, faults or problems identified upon further inspection) which have been discovered following the commencement of the Services;
 
(c) the Goods or Services specified in the Order are varied from the Goods or Services specified in the quotation;
 
(d) you request:
 
  (i) the Goods or Services be rendered outside our usual business hours;
 
  (ii) different Goods or Services to be supplied to the Order; or
 
  (iii) that we delay provision of the Goods or Services for sixty (60) days or more; or
 
(e) otherwise as provided for in these terms and conditions.
23.5 Where we vary the price or rates payable for the Goods or Services pursuant to clause 23.4, we will notify you of the new price or rates. Thereafter you may reject the new price or rates within ten (10) days and terminate the contract for supply without further cost, or any penalty to you, otherwise you agree that the new price or rates will apply to the contract. For clarity, any termination of the contract for supply under this clause will be without prejudice to any Goods or Services supplied prior to termination.
24 Delivery and risk
24.1 Unless otherwise agreed, you are responsible and liable for all reasonable charges and costs associated with delivery, shipping, demurrage, freight, cartage, or other transport costs.
24.2 We will use reasonable endeavours to deliver the Goods at the time and place agreed for delivery. You will make arrangements necessary to take delivery of the Goods.
24.3 You acknowledge and agree that:
 
(a) unless the contract for supply expressly states otherwise, time in respect of delivery is not of the essence; and
 
(b) any timeframe or date for delivery is an estimate only and is not a contractual commitment.
24.4 Risk of loss, damage, or deterioration to the Goods passes to you, and delivery is deemed to occur, at the time:
 
(a) you or any third party on your behalf collect the Goods from us;
 
(b) we or our nominated carrier deliver the Goods to the delivery location stated in your Order (or to such other location as agreed in writing); or
 
(c) your nominated carrier takes possession of the Goods.
24.5 It is your responsibility to provide suitable, practical, and safe means of access and egress to the place agreed for delivery. If the site is deemed unsuitable or unsafe (at the delivery driver’s sole discretion), then the delivery driver may:
 
(a) refuse to deliver the Goods and return the Goods to the point of despatch (in which case an additional delivery fee will apply to any subsequent delivery attempt); or
 
(b) deliver the Goods to the location nearest to the agreed place for delivery where delivery can be safely effected.
24.6 You agree to sign our delivery docket or consignment note or that of our nominated carrier as confirmation that you have received the Goods, and if appropriate, certify that you have received the Goods in apparent good order and condition in the quantity or volume you have ordered.
24.7 If you authorise us to deliver the Goods to an unattended location or to leave them outside the agreed place for delivery, we may deliver the Goods as requested at your risk.
24.8 If delivery or collection of the Goods is deferred;
 
(a) at your request; or
 
(b) due to you being unable or unwilling to accept delivery of the Goods (other than as a result of the Goods delivered not being in accordance with the contract for supply);
  in circumstances where:
 
(c) we are ready to deliver the Goods and a delivery date has not been agreed; or
 
(d) the Goods are due to be delivered or collected on an agreed delivery date,
  then you will pay to us:
 
(e) reasonable daily storage charges (which will continue to accrue until such time as the Goods are delivered or collected); and
 
(f) any costs associated with us or our nominated carrier attempting to re-deliver the Goods (where we or our nominated carrier has previously attempted to deliver the Goods).
24.9 You acknowledge and agree that we may deliver the Goods in one or more lots and may invoice you for pro rata progress in respect thereof.
25 Provision of Services
25.1 You must, prior to us commencing the Services:
 
(a) obtain, at your expense, all relevant Approvals;
 
(b) provide us with such information and documentation that we reasonably require to perform the Services; and
 
(c) inform us of any special requirements that we reasonably require to perform the Services.
25.2 You acknowledge and agree that unless the contract expressly states otherwise:
 
(a) time in respect of completion of the Services is not of the essence; and
 
(b) while we will take reasonable endeavours to complete the Services by the estimated date for completion, any timeframe or date for completion is an estimate only and is not a contractual commitment.
26 E-commerce
26.1 Any internet sales and online marketing conducted by you must only be conducted from the website and domain name nominated by you and approved by us.
26.2 Your website must:
 
(a) be designed to a standard that we consider appropriately professional;
 
(b) prominently state that New Balance and the relevant New Balance trade marks are our sole property and may not be used without our prior written approval;
 
(c) prominently state that you are an independent retailer and that your website is not owned or operated by us;
 
(d) include complete, up-to-date, legally compliant customer service policies, including shipping and returns policies, contact information, warranty information and terms and conditions of sale;
 
(e) be hosted with a business grade hosting provider with a written service level agreement providing at least 99.9% uptime;
 
(f) provide shopping cart, checkout, and payment processing functionality that is secure and CISP / PCI compliant;
 
(g) express all prices in Australian dollars;
 
(h) include a privacy policy; and
 
(i) not contain any of our trade marks, brand names, model / style names or model/style numbers in its URL.
26.3 All marketing that you conduct online or in connection with your website must be generally targeted to consumers in Australia.
26.4 You will do all things reasonably necessary to ensure that your online advertising is not displayed to consumers outside of Australia.
26.5 If you are a ‘brick and mortar’ retailer, you must ensure that any in-store promotions are offered on your website and vice versa.
26.6 You must not knowingly sell or ship our Goods to consumers located outside of Australia, whether directly or indirectly. You must refer to us all enquiries and orders you receive from consumers located outside of Australia.
26.7 You must:
 
(a) list a telephone contact number on your website and be contactable on that number during business hours;
 
(b) if you are not a ‘brick and mortar’ retailer, the telephone number that you list must be a national toll free number;
 
(c) respond to consumer enquiries received online or electronically within one (1) Business Day of receipt;
 
(d) (where applicable) provide consumers with electronic confirmation of online orders within one (1) Business Day of receipt;
 
(e) process all online orders within one (1) Business Day of receipt; and
 
(f) not charge a consumer’s credit card until their order has been shipped.
 26.8 All Goods offered for sale on your website must be displayed:
 
(a) in a manner that is clear, professional, and searchable;
 
(b) with comprehensive product information in accordance with our then current catalogues and publications; and
 
(c) using only Approved Materials.
26.9 You must:
 
(a) regularly update your website to ensure that new styles and Goods are listed and to remove discontinued Goods;
 
(b) maintain adequate inventory of our Goods listed on your website to ensure orders can be fulfilled and to minimise out-of-stock merchandise; and
 
(c) not offer for sale or take orders for any of our Goods that are not held and fulfilled from your own warehouse.
26.10 You may only use Approved Materials for the purpose of promoting our Goods on your website.
26.11  Your use of Approved Materials must comply with New Balance Trade Mark and Branding Policy Manual (as amended or replaced from time to time).
26.12 You must not:
 
(a) make any changes to Approved Materials without our prior written and fully informed consent; or
 
(b) use Approved Materials in a manner that is likely to expose us to the risk of legal liability (civil or criminal).
26.13 We may make changes to Approved Materials at any time and you must comply with any direction we give you in relation to the use or discontinuance of use of Approved Materials.
26.14 You must have an online privacy policy which complies with the Privacy Act 1988 (Cth), as amended.
26.15 You must:
 
(a) comply with our reasonable directions given by us;
 
(b) act lawfully, honestly, and professionally;
 
(c) act ethically and in a manner that does not bring us, our Personnel, or our Goods into disrepute;
 
(d) not sell or offer for sale our Goods on any third party website, including any third party shopping, auction, or catalogue website;
 
(e) comply with all applicable laws, regulations and industry codes of practice;
 
(f) maintain a sound credit standing with us and our affiliates to our absolute satisfaction;
 
(g) meet minimum sales levels as advised by us;
 
(h) comply with any of our Published Policies which we have the right to amend and update from time to time; and
 
(i) cooperate and do all things reasonably required by us to investigate any complaint or breach or potential breach of this agreement, a Published Policy or any applicable law, regulation, or industry code of practice.
26.16 We may conduct remote and onsite audits and inspections of your website and e-commerce operations to verify compliance with these Terms. You must provide us with all reasonable assistance and cooperation, including any data and information we may reasonably request.
26.17 If we request it, you must provide us with regular reports of your website key performance indicators, including total visitors, total visits, total orders, total net sales revenue, orders and other statistical and analytics information that we reasonably specify.
26.18 We may revoke our authorisation for you to sell our Goods via the internet:
 
(a) immediately where:
 
  (i) you suffer an Insolvency Event; or
 
  (ii) you commit a material or persistent breach of these Terms and do not remedy the breach within seven (7) days of receipt of a notice identifying the breach and requiring its remedy,
 
(b) otherwise, on thirty (30) days’ written notice.
27 Claims
27.1 All Claims will be subject to our reasonable investigation before a decision is made and any rejections by us will be communicated to you.
27.2 You must, within twenty-eight (28) days of the date of delivery:
 
(a) inspect the Goods for shortfall, incorrect supply, and for any obvious or apparent defects that a reasonable person upon inspection would identify;
 
(b) subject to clauses 27.3 and 27.4, give us notice in writing, with particulars, of any Claim that the Goods delivered are not in accordance with the contract for supply (including any Claim for incorrect supply, defects, or obvious or apparent damage to the Goods); and
 
(c) at our request:
 
  (i) provide us with photographic evidence (to our satisfaction) of any alleged damage to the Goods; and
 
  (ii) (where applicable) permit us access to your premises (or any premises that you own or occupy) to inspect the Goods;
 
(d) preserve Goods the subject of your Claim in the state in which they were delivered pending our inspection or review of your Claim.
27.3 You must advise us in writing of any Claims relating to incorrect pricing relating to either the price, freight, or administration charges within forty-five (45) days from the relevant date of invoice.
27.4 Non-delivery Claims (where a full or part consignment has not been delivered to the invoiced quantity) must be fully documented quoting the respective New Balance Tax Invoice Number and forwarded to our Customer Service Department within forty-five (45) days from the date of invoice.
27.5 Returned Goods the subject of any Claim will be inspected by us or our authorised agent. Acceptance of the returned Goods does not constitute our acceptance of any Claim.
27.6 If the contract for supply is not a Consumer Contract nor a Small Business Contract and you fail to notify us in accordance with clauses 27.2, 27.3, or 27.4 (as the context requires) then, to the extent permitted by law, the Goods are deemed to have been delivered in good condition and in accordance with the contract for supply.
27.7 If the contract for supply is a Consumer Contract or Small Business Contract and you fail to notify us in accordance with clauses 27.2, 27.3, or 27.4 (as the context requires), then, to the extent permitted by law, you waive your right to reject the Goods. For the avoidance of doubt, ‘reject goods’ and ‘rejection of goods’ has the same meaning given to these terms as in sales of goods legislation.
28 Returns
28.1 We will accept the return of any Goods if:
 
(a) the Goods supplied do not conform with the contract for supply;
 
(b) the Goods are defective; or
 
(c) we are required by law to accept the return of the Goods.
28.2 Unless required by law, we will not accept returned Goods under clause 28.1 where we have provided you with a sufficiently agreed ullage allowance or credit in respect of such Goods.
28.3 We reserve the right refuse a request for a return for Goods due to change of mind. At our discretion, we may accept the return of Goods where:
 
(a) you agree to:
 
  (i) pay a handling and administration charge of 10% of the purchase price of the returned Goods; and
 
  (ii) reimburse us for all costs we incur in connection with the return of those Goods (except for Goods we have incorrectly supplied or we agree are defective);
 
(b) the Goods are in substantially the same condition to the condition in which they were delivered and you have removed all price stickers, security devices, and non-New Balance labelling; and
 
(c) the Goods are accompanied by documentation showing:
 
  (i) your name, address, and account number / code;
 
  (ii) the relevant invoice number;
 
  (iii) the reason for the return; and
 
(d) the Goods were not specifically produced or procured at your request.
28.4 For accepted change of mind returns, if you do not:
 
(a) provide us with the applicable invoice details; and
 
(b) such other information or documentation we may reasonably request,
  we reserve the right to credit your Trading Account at the lowest invoiced prices.
28.5 You indemnify and release us from any damage that occurs to any Goods in return transit. You should ensure that any returned Goods are insured against such damage.
29 Retention of title
29.1 Until such time as you have made payment in full (in cash or cleared funds) for any Goods we have supplied:
 
(a) title in the Goods does not pass to you and we retain the legal and equitable title in the Goods;
 
(b) you will hold the Goods as fiduciary and bailee for us and agree to store the Goods in such a manner as to enable them to be readily identifiable as our property;
 
(c) you undertake to not mix the Goods with similar goods;
 
(d) unless and until we notify you to the contrary, you will be entitled to sell the Goods in the ordinary course of your business (provided any such sale is at arm’s length and on market terms) and will sell the Goods as our agent and bailee; and
 
(e) you undertake to hold any proceeds derived from the sale of the Goods on trust for us absolutely.
29.2 While title in the Goods remains with us, you permit us to enter upon any premises you occupy (or any premises any receiver, receiver and manager, administrator, liquidator, or trustee in bankruptcy of yours occupies) as your invitee to inspect the Goods and, when you are in default of payment of any invoice, to repossess any Goods in your possession, custody, or control.
29.3 Where we exercise our right of entry pursuant to clause 29.2, you agree that us doing so will not give rise to any Claim for trespass or similar action against us or our officers, employees, and agents.
29.4 Where we have retaken Goods into our possession, we have the right to sell or deal with those Goods, and, if necessary, sell any Goods bearing your name or trade mark, and you hereby grant us an irrevocable licence to do all things necessary to sell those Goods.
29.5 For the removal of doubt, our interest under this clause 29 constitutes a purchase money security interest for the purposes of the PPS Act.
30 Security interest
30.1 You must reimburse us for any costs we incur in registering our interests on the Personal Property Securities Register (including registration fees).
30.2 Unless you have obtained our prior written and fully informed consent, you undertake not to:
 
(a) register a financing change statement in respect of a security interest in our favour; or
 
(b) create, or purport to create, any security interest in the Goods (or any proceeds derived from the sale of such Goods), nor register, nor permit to be registered, a financing statement or financing change statement in relation to the Goods in favour of any third party.
30.3 You:
 
(a) waive your right to receive a copy of any verification statement in accordance with section 157 of the PPS Act; and
 
(b) agree that, to the extent permitted by the PPS Act:
 
  (i) sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 132, 134, 135, 142, and 143 of the PPS Act do not apply and are hereby contracted out of; and
 
  (ii) you waive your right to receive notices under sections 95, 118, 121(4), 127, 130, 132(3)(d), and 132(4) of the PPS Act.
30.4 We need not disclose information of the kind detailed in section 275(1) of the PPS Act, unless required by law.
30.5 Where we have rights in addition to those under Part 4 of the PPS Act, those rights continue to apply.
31 Particular Purpose
  If you require any Goods for a particular purpose, you must advise us of that purpose prior to placing your Order and must obtain a written assurance from us that the Goods will meet your requirements. If you do not advise us of your requirements and we do not expressly warrant in writing that the Goods will be fit for your particular purpose, then you agree that you did not rely upon our skill or judgment in relation to the suitability of the Goods for that purpose.
32 Customer Material
32.1 You warrant and represent to us that all Customer Material:
 
(a) is accurate and correct; and
 
(b) will not infringe the Intellectual Property Rights of any third-party.
32.2 You grant us a non-exclusive, non-transferrable, royalty free, perpetual, worldwide licence to use all Customer Material for:
 
(a) the purposes of supplying the Goods or performing the Services; and
 
(b) marketing and advertising.
33 Intellectual Property Rights
33.1 All right, title, and interest in the Intellectual Property Rights in and to all Working Documents, and all Goods sold or supplied by us are, and will at all times, remain our property.
33.2 All improvements, derivatives and modifications to the Intellectual Property Rights contemplated by clause 33.1 (the Improvements) vest in us immediately on creation. To the extent necessary to give effect to this clause 33, you assign to us all right, title, and interest in the Improvements.
33.3 You acknowledge and agree that:
 
(a) you have no rights to use our Intellectual Property Rights under these Terms, except as expressly set out herein, unless otherwise agreed in writing; and
 
(b) you must not modify, copy, clone, or reverse engineer any of our Goods (nor procure or permit any person within your reasonable control to do any of these things).
33.4 If we:
 
(a) terminate your credit facility in accordance with these Terms; or
 
(b) request that you discontinue using our Intellectual Property Rights,
  then you must:
 
(c) immediately discontinue the use or display of any of our Intellectual Property Rights; and
 
(d) as soon as practicable:
 
  (i) return to us all Works in your possession; or
 
  (ii) allow our Personnel to enter upon your premises to collect all Works in your possession.
33.5 For the purposes of us exercising our rights under clause 33.4, you irrevocably consent to our Personnel entering upon any premises occupied by you (as your invitee) to collect all any works, Working Documents, and other materials in which our Intellectual Property Rights subsist, in your possession.
34 Brand Guidelines and standards
34.1 Where you display, advertise, promote, or present our Goods (other than online or electronically) you must comply with our Brand Guidelines.
34.2 All Goods must be displayed:
 
(a) in a manner that is clear and professional;
 
(b) using only Approved Materials; and
 
(c) pursuant to the Brand Guidelines.
34.3 You permit us to enter upon any premises you occupy (or any premises any receiver, receiver and manager, administrator, liquidator, or trustee in bankruptcy of yours occupies) as your invitee to inspect the Goods for purpose of auditing your compliance with our Brand Guidelines.
34.4 Where you have a Trading Account with us and you are in breach of the Brand Guidelines, we may suspend or close your Trading Account immediately on written notice to you.
35 Confidentiality
35.1 You agree to keep confidential, and not use or disclose, other than for your internal business purposes, any Confidential Information provided to or obtained by you before or after your entry into a contract of which these Terms form part.
35.2 The obligations of confidence imposed on you by clause 35.1 do not apply to Confidential Information that is required to be disclosed by any applicable Law or under compulsion of a court, any government authority, or the rules of any securities exchange (as long as you disclose the minimum amount required to satisfy applicable law or rules, provide us with prior notice in writing, and take reasonable steps to maintain the confidence of such Confidential Information) or that is in the public domain otherwise than as a result of a breach of these Terms or other obligation of confidence.
35.3 Clauses 35.1 and 35.2 survive the termination or performance of any contract of which these Terms form part.
36 Indemnity
36.1 If you default in the performance or observance of your obligations under any contract of which these Terms form part, then:
 
(a) we will take steps to mitigate our loss and act reasonably in relation to any default by you; and
 
(b) we will give you notice requesting payment for loss and damage occasioned in respect of those events and requesting that you remedy any breach within a reasonable time; and
 
(c) if that demand is not met then you indemnify us in respect of loss, damage, costs (including collection costs, bank dishonour fees, and legal costs on an indemnity basis) that we have suffered arising therefrom.
36.2 Your liability to indemnify us will be reduced proportionally to the extent that any fraud, negligence, or wilful misconduct by us or a breach of our obligations under contract has contributed to the Claim, loss, damage, or cost which is the subject of the indemnity.
36.3 Your liability to indemnify us is a continuing obligation separate and independent from your other obligations and survives the termination or performance of any contract of which these Terms form part.
37 Limitation of liability
37.1 No party is liable to the other party for any Consequential Loss, including under clause 36, however caused arising out of or in connection with any contract for supply of which these Terms form part
37.2 While we will take reasonable endeavours to meet any estimated delivery date or estimated time for Goods and Services, you acknowledge and agree that we are not liable for any delay associated with meeting those estimated timeframes.
37.3 If the contract for supply is not a Consumer Contract or a Small Business Contract then, to the extent permitted by law, our liability is limited to:
 
(a) (in the case of a supply of Goods):
 
  (i) us repairing or replacing the Goods; or
 
  (ii) us paying you the cost of having the Goods repaired or replaced.
 
(b) (in the case of a supply of Services):
 
  (i) us supplying the Services again; or
 
  (ii) us paying you the cost of having equivalent Services supplied.
38 Termination
38.1 A party may, with immediate effect, terminate any contract for supply of which these Terms form part by notice in writing, if the other party:
 
(a) commits a material or persistent breach of these Terms and does not remedy that breach (if capable of remedy) within seven (7) days of the receipt of a notice (or such longer time as specified in the notice) identifying the breach and requiring its remedy; or
 
(b) has failed to pay sums due to the party within seven (7) days; or
 
(c) has indicated that it is, or may become, insolvent; or
 
(d) ceases to carry on business; or
 
(e) comprises an entity which is the subject of the appointment of receivers or managers; or
 
(f) comprises a natural person who:
 
  (i) has committed an act of bankruptcy; or
 
  (ii) has been made bankrupt;
 
(g) comprises a corporation which:
 
  (i) enters into voluntary administration;
 
  (ii) is subject to a deed of company arrangement; or
 
  (iii) is subject to the appointment of liquidators or provisional liquidators.
39 Trustees
39.1 If you are the trustee of a trust (whether disclosed to us or not), you warrant to us that:
 
(a) you enter into the contract for supply in both your capacity as trustee and in your personal capacity;
 
(b) you have the right to be reasonably indemnified out of trust assets;
 
(c) you have the power under the trust deed to enter into the contract for supply; and
 
(d) you will not retire as trustee of the trust nor appoint any new or additional trustee without first notifying us in writing and having the new or additional trustee sign an agreement on terms substantially the same as those governing your Trading Account (where applicable).
39.2 You must give us a true and complete copy of the trust deed upon request.
40 Variations
40.1 We may amend these Terms in the future by notifying you in writing. The amended Terms will thereafter apply to each Order you place unless you earlier give us written notice in advance of placing a further Order.
40.2 Any proposed variation to these Terms by you must be requested in writing and we may refuse any such request without providing reasons to you for doing so. For clarity, no proposed variation of these Terms will be binding upon us, unless varied in writing and agreed by an authorised officer of ours.
40.3 The parties may agree to amend any contract of which these Terms form part by agreement in writing.
41 Assignment
  A party may only assign its rights under the contract for supply with the written consent of the other party.
42 Conflicts and Inconsistencies
42.1 If there is any conflict or inconsistency between any of the documents which together govern the relationship between the parties, it is agreed the order of precedence will be (highest to lowest):
 
(a) any additional terms or conditions contained in our quotation applicable to the supply of Goods or Services;
 
(b) any terms governing your Trading Account; and
 
(c) these Terms.
43 Severance
If any part or term of our agreement with you (including any Trading Account) is illegal, invalid, or unenforceable, it will be read down so far as necessary to give it a valid and enforceable operation or, if that is not possible, it will be severed from the contract and the remaining provisions will not be affected, prejudiced, or impaired by such severance.
44 Governing law and jurisdiction
44.1 Our relationship is governed by and must be construed according to the law applying in the State of Victoria.
44.2 The parties irrevocably submit to the non-exclusive jurisdiction of the courts of the State of Victoria with respect to any proceedings that may be brought at any time relating to our relationship.
45 Definitions
In these Terms, unless the context otherwise requires, the following definitions apply.
45.1 Approval means any authorisation, assessment, accreditation, determination, registration, clearance, permit, licence, consent, certificate, or other approval obtained or required or applying in connection with any contract of which these Terms form part.
45.2 Approved Materials means any promotional artwork, graphics, banners logos, or other media that we approve and make available to our Internet Dealers from time to time.
45.3 Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth), as amended.
45.4 Brand Guidelines means our instructions, guidelines, and other recommendations for presenting or displaying Goods and other marketing or promotional materials in which our Intellectual Property Rights subsist.
45.5 Business Day means a day that is not a Saturday, Sunday, or gazetted public holiday.
45.6 Buying Group means a third-party buying group approved by us.
45.7 Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, or award howsoever arising, whether present, unascertained, immediate, future, or contingent, whether based in contract, tort, pursuant to statute or otherwise and whether involving a third party or a party to a contract for supply.
45.8 Confidential Information includes:
 
(a) any information relating to our business and affairs;
 
(b) any information that is by its nature confidential;
 
(c) any information which is designated by us as confidential;
 
(d) any information that you know, or ought to know, is confidential; and
 
(e) all financial information, pricing information, and commercially valuable information of ours.
45.9 Consequential Loss includes any:
 
(a) consequential loss;
(b) loss of anticipated or actual profits or revenue;
(c) loss of production or use;
(d) financial or holding costs;
(e) loss or failure to realise any anticipated savings;
(f) loss or denial of business or commercial opportunity;
(g) loss of or damage to goodwill, business reputation, future reputation, or publicity;
(h) loss or corruption of data;
(i) downtime costs or wasted overheads; or
(j) special, punitive, or exemplary damages.
45.10 Consumer Contract has the meaning given to this term in section 23(3) of the Australian Consumer Law.
45.11 Customer, means the person or other entity who has placed an Order with us for the supply of Goods or Services (or the person on whose behalf an Order is placed).
45.12 Customer Material means all information and documentation provided to us by you (or on your behalf) in the course of us supplying the Goods or Services.
45.13 Goods means all goods supplied by us, as described on our quotation, invoice, or any other form issued by us.
45.14 Intellectual Property Rights means all industrial and intellectual property rights throughout the world, whether present or future, and whether protectable by statue, at common law or in equity, including rights in relation to copyright, trade secrets, know how, trade marks (whether registered or unregistered or whether in word or logo/device form), designs, patents and patentable inventions, including the right to apply for registration of any such rights.
45.15 Internet Dealer means a customer of ours that is approved to sell our Goods online through approved internet channels.
45.16 Minimum Commercial Value means the minimum total net price needed for us to process an Order, as varied by us from time to time by written notice to you.
45.17 New Balance, Supplier, we, us means New Balance Australia Pty Ltd (ACN 003 049 296).
45.18 New Balance Fiscal Year means New Balance’s accounting periods from January to December each year.
45.19 Order means a written or oral order placed by you requesting that we provide Goods or Services
45.20 Personnel means officers, employees, and agents engaged by each party (but does not include the other party) and, in the case of the Supplier, includes its subcontractors (and any employee of those subcontractors).
45.21 PPS Act means the Personal Property Securities Act 2009 (Cth), as amended.
45.22 Services means all services performed by us, as described on our quotation, invoice, or any other form issued by us.
45.23 Small Business Contract has the meaning given to this term in section 23(4) of the Australian Consumer Law.
45.24 Trading Account means an account that we have opened for you on which we may, from time to time, extend you with additional time to pay for our Goods and Services and associated charges (i.e. credit).
45.25 Working Documents means all plans, designs, specifications, and schedules created by us in the course of or in relation to any contract in which Intellectual Property Rights may subsist and all drafts, variations, alterations, and adaptations of such plans, designs, specifications, and schedules (whether currently existing or created in the future).
46 Interpretation
In these Terms, unless the context otherwise requires:
46.1 A time is a reference to the time zone of Melbourne, Australia unless otherwise specified.
46.2  $, dollar, or AUD is a reference to the lawful currency of Australia.
46.3  A party includes a reference to that person’s executors, administrators, successors, substitutes (including a person who becomes a party by novation), assigns, and in the case of a trustee, includes any substituted or additional trustee.
46.4  A right includes a benefit, remedy, authority, discretion, or power.
46.5  The singular includes the plural and vice versa, and a gender includes other genders.
46.6  “In writing” or “written” means any expression of information in words, numbers, or other symbols, which can be read, reproduced, and later communicated, and includes electronically transmitted and stored information.
46.7  If a word or phrase is given a defined meaning, its other grammatical forms have a corresponding meaning.
46.8  Words such as “includes”, “including”, and “for example” are not words of limitation and are to be construed as though followed by the words “without limitation”.
46.9 A term of an agreement in favour of two or more persons is for the benefit of them jointly and each of them separately.