CONSIGNMENT TERMS AND CONDITIONS
- Definitions and Interpretation
In this Agreement:
“Agreement” means this Consignment Agreement.
“Business Day” means a day which is not a Saturday, Sunday or Bank or public holiday in NSW.
“Consignment Order Form” means the order form provided by the Consignor to the Consignee to order Consignment Stock.
“Consignment Stock” means the stock supplied by the Consignor to the Consignee on consignment in accordance with the terms and conditions of this Agreement.
“Delivery Address” means the Consignee’s nominated address for delivery as set out in the Schedule.
“Event of Default” means:
(a) the Consignee does not pay any money due for payment by it in accordance with this Agreement;
(b) a representation, warranty or statement made or deemed to be made by a Party in this Agreement is untrue or misleading;
(c) an event or series of events, including any material adverse change in the property or financial condition of a Party, occurs which has or is likely to have a material adverse effect on its ability to perform its obligations under this Agreement;
(d) an investigation is instituted under the Corporations Act 2001 or other legislation into or an inspector is appointed to investigate a Party’s affairs;
(e) a Party is or states that it is unable to pay all its debts as and when they become due and payable;
(f) a corporate Party is taken or must be presumed to be insolvent or unable to pay its debts under any applicable legislation;
(g) an application or order is made for the winding up or dissolution of a corporate Party or a resolution is passed or any steps are taken to pass a resolution for its winding up or dissolution;
(h) an administrator, provisional liquidator, liquidator or person having a similar or analogous function under the laws of any relevant jurisdiction is appointed in respect of a corporate Party or any action is taken to appoint any such person and the action is not stayed, withdrawn or dismissed within 5 Business Days;
(i) a controller is appointed in respect of any property of a corporate Party;
(j) a corporate Party is deregistered under the Corporations Act 2001 or notice of its proposed deregistration is given to the corporation;
(k) a distress, attachment or execution is levied or becomes enforceable against any property of a corporate Party;
(l) a corporate Party enters into or takes action to enter into an arrangement (including a scheme of arrangement or deed of Consignor arrangement), composition or compromise with, or assignment for the benefit of, all or any class of its creditors or members or a moratorium involving any of them;
(m) a receiver or receiver and manager is appointed in respect of any individual Party;
(n) a petition for the making of a sequestration order against the estate of a Party is presented and the petition is not stayed, withdrawn or dismissed within five (5) Business Days or a Party presents a petition against itself;
(o) a Party presents a declaration of intention under section 54A of the Bankruptcy Act 1966;
(p) an individual Party dies; or
(q) anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs in respect of a Transaction Party.
“Invoice Terms” as set out in the Schedule.
“Parties” means the parties entering into this Agreement.
“Payment Method” as set out in the Schedule.
“Term” as set out in the Schedule.
In this Agreement, unless expressed to the contrary:
(a) words in the singular include the plural and vice versa;
(b) headings are for convenience and do not affect the interpretation of this Agreement;
(c) any gender includes the other gender;
(d) a reference to a clause, paragraph, schedule or annexure is a reference to a clause, paragraph, schedule or annexure, as the case may be, of this Agreement;
(e) if any act which must be done under this Agreement is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;
(f) a reference to any legislation includes subordinate legislation and all amendments, consolidations or replacements from time to time;
(g) if a word or phrase is defined in this Agreement then any other grammatical form of the word or phrase shall have a corresponding meaning;
(h) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity;
(i) “includes” and similar words mean includes without limitation;
(j) no clause of this Agreement shall be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
(k) a reference to a Party includes the Party’s legal personal representatives, successors, assigns and persons substituted by novation;
(l) a reference to this or any other agreement includes the agreement, all schedules and annexures as novated, amended or replaced and despite any change in the identity of the parties;
(m) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
(n) a reference to time is to local time in New South Wales; and
(o) a reference to “$” or “dollars” refers to the currency of Australia from time to time.
2.1 This Agreement shall be valid for the Term unless terminated earlier in accordance with this Agreement.
3.1 The Consignor will provide the Consignee with Stock as set out in the Schedule.
3.2 The Consignee will order Consignment Stock from the Consignor using the Consignment Order Form.
3.3 The Consignor will provide the cost price of the stock at the point of order for the Consignment Stock. If cost prices change over the time of the consignment stock being with the Consignee, the cost price will remain based on the order price unless agreed otherwise in writing.
3.4 It is agreed that the Consignee will provide the Consignor a stock and sales report on (or before) the last business day of a month. This report should confirm each item of Consignment Stock – the months opening stock, the unit sales for the month and the closing stock for the month (Which will be the opening stock of the following month).
This should be sent to email : XXX@XXX.com.au
- Delivery and return of Consignment Stock
4.1 The Consignor will arrange delivery of the Consignment Stock to the Consignee’s Delivery Address at the Consignee’s expense. If the Consignee requires the Consignment Stock to be delivered on an urgent basis by courier, the Consignee is responsible for the extra costs of the delivery.
4.2 The Consignee may, at its own expense and on giving not less than 30 day’s written notice to the Consignor, return any Consignment Stock to the Consignor.
4.3 The Consignor may at any time demand the return of any Consignment Stock. If this is within a 90 day period of the order the Consignor will do this at its own expense. If outside that time period, or another time period agreed between both parties in writing, then the Consignee will agree to return the stock at its own expense.
In the event that any Consignment Stock is not returned in accordance with any demand made by the Consignor, the Consignor may either alone or by/with others and without notice to the Consignee enter any premises at any time where the Consignment Stock may be and remove it without interference.
4.4 Any Consignment Stock returned by the Consignee to the Consignor must be in the same condition as when it was received by the Consignee. In the event that any Consignment Stock is returned to the Consignor and is not in the same condition as when it was received by the Consignee, the Consignee agrees that the Consignee will be deemed to have purchased such Consignment Stock.
- Risk and Indemnity
5.1 Upon delivery of the Consignment Stock to the Consignee, risk (but not legal title) in the Consignment Stock will pass from the Consignor to the Consignee.
5.2 The Consignee will immediately inform the Consignor of, and indemnify the Consignor from and against, any loss of and/or damage caused to the Consignment Stock during the period:
(a) commencing when the Consignment Stock is delivered to the Consignee; and
(b) ending on the earliest to occur of the date of the sale of each unit of the Consignment Stock or the date on which all the Consignment Stock is returned to the Consignor.
5.3 The Consignee is liable for and indemnifies and agrees to indemnify, hold harmless, release, and discharge the Consignor in respect of any claim, action, damage, loss, cost, charge, expense, penalty, fine or payment which the Consignor suffers, incurs or is liable for as a result of any breach by the Consignee (or its employees, agents or subcontractors) of the Agreement or its obligations or warranties under this Agreement.
5.4 The obligations under this clause will survive termination of this Agreement.
5.5 The Consignee is fully responsible for any insurance between the point of 5.2a and 5.2b. The liability for the Consignee is the cost price of the stock as defined in 3.3.
6.1 The Consignor will, on the date of receipt of the Stocktake Report, invoice the Consignee for all Consignment Stock sold (or missing) by the Consignee in the preceding month.
6.2 The Consignee will pay the Consignor the amount of each invoice within the Invoice Terms and using the agreed Payment Method/s.
- Consignee’s Obligations and Warranties
7.1 The Consignee acknowledges and agrees that:
(a) it has legal capacity, power and authority to enter into this Agreement;
(b) it will comply with any reasonable directions given to it by the Consignor from time to time;
(c) 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 relation to the use of the Consignment Stock;
(d) it will follow the Consignor’s directions regarding the Consignment Stock;
(e) it is registered for GST purposes.
- Consignor’s Obligations and Warranties
8.1 The Consignor warrants and represents to the Consignee that throughout the Term:
(a) it has legal capacity, power and authority to enter into this Agreement;
(b) it has all rights in relation to the Consignment Stock and to perform its obligations as set out in this Agreement.
9.1 Either party may terminate this Agreement at any time by giving notice in writing in accordance with the Notice Period.
9.2 At any time during the Term, the Consignor may terminate this Agreement by giving notice in writing to the Consignee where there is an Event of Default.
9.3 Obligations on termination:
Upon termination of this Agreement, the Consignee will:
(a) at its own expense return the Consignment Stock to the Consignor or other place nominated by the Consignor in writing;
(b) pay to the Consignor the amount notified by the Consignor to the Consignee as the amount owing for the Consignment Stock that is not returned, plus all costs and expenses incurred by the Consignor in connection with any such termination following an Event of Default;
(c) immediately return to the Consignor all Consignor property; and
(d) pay to the Consignor any amount owed in respect of any indemnities provided under this Agreement.
9.4 The accrued rights, obligations and remedies of the Parties are not affected by the termination of this Agreement.
- Costs and Expenses
10.1 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.
10.2 The Parties will share equally any duty, taxes, registration, and other fees (including fines and penalties relating to the duty, taxes and fees) which are payable in relation to this Agreement and any transaction contemplated by it.
11.1 Taxable supply
If GST is payable on any supply made under this Agreement, the payer must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under this Agreement and must be paid in addition to the consideration expressed elsewhere in this Agreement. On receiving that amount from payer, the recipient must provide the payer with a tax invoice for the supply.
11.2 Adjustment events
If an adjustment event arises in respect of any supply made under this Agreement, a corresponding adjustment must be made between the recipient and the payer in respect of any amount paid by the payer under this clause, and any payments to give effect to the adjustment must be made.
If the payer is required under this Agreement to pay for or reimburse an expense or outgoing of the recipient, or is required to make a payment under an indemnity in respect of an expense or outgoing of the recipient, the amount to be paid by the payer is the sum of:
(a) the amount of the expense or outgoing less any input tax credit in respect of that expense or outgoing that the recipient is entitled to; and
(b) if the recipient’s recovery from the payer is in respect of a taxable supply, the amount equal to the GST payable by the recipient in respect of that recovery.
11.4 GST terminology
The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
12.1 This Agreement may only be amended by written agreement executed by all the Parties.
(a) Form of notice
A notice or other communication must be in writing in English and may be:
(i) delivered personally;
(ii) given by an agent of the sender;
(iii) left at a Party’s current delivery address for notices as set out in this Agreement;
(iv) sent by prepaid mail to a Party’s current postal address for notices as set out in this Agreement;
(v) sent by email to a Party’s current email address for notices as set out in this Agreement; and/or
(vi) sent by fax to a Party’s current fax number for notices as set out in this Agreement.
(b) Receipt of notice
A notice or communication is taken as having been given:
(i) when left at a Party’s current delivery address for notices; or
(ii) if mailed within Australia to an Australian address, on the third Business Day after posting; or
(iii) if mailed outside of Australia to an Australian postal address or within Australia to an address outside of Australia, on the tenth Business Day after posting;
(iv) if sent by email, when the sender receives an email read receipt regarding the recipient’s email address; or
(v) if send by fax, when the sender receives a fax report from the recipient’s fax machine acknowledging receipt of the notice, unless the fax is received after 5pm in the place of receipt, in which case it is taken as having been given at 9am on the next day that is not a Saturday, Sunday or bank or public holiday in the place of receipt.
(c) A Party may change its address for service of notices by written notice to the other Party.
(a) Relationship: The Consignee may describe themselves as an authorised Consignee of the Consignment Stock but must not describe itself in any way as an employee or agent of the Consignor. This Agreement is not intended to create a relationship between the Parties of partnership, joint venture, agency, or employer-employee. Neither Party has authority to create, assume or otherwise enter into any agreement that imposes rights or obligations on the part of the other Party.
(b) Assignment: This Agreement is personal to the Parties. A Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent not to be unreasonably withheld). Any purported dealing in breach of this clause is of no effect.
(c) Waiver or variation of rights: Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right. A Party is not liable to any other Party for any loss, cost or expense that may have been caused or contributed to by the failure, delay, waiver or exercise of a power or right.
(d) Powers, rights, and remedies: Except as expressly stated to the contrary in this Agreement, the powers, rights and/or remedies of a Party under this Agreement are cumulative and are in addition to any other powers, rights, and remedies of that Party. Nothing in this Agreement merges, extinguishes, postpones, lessens, or otherwise prejudicially affects any power, right, or remedy that a Party may have at any time against the other Party to this Agreement or any other person.
(e) Consents and approvals: Where this Agreement provides that a Party may conditionally or unconditionally give or withhold any consent or approval in relation to any matter in this Agreement, that Party may in its absolute discretion, and without being obliged to give reasons for doing so, withhold any consent or approval or give consent or approval conditionally or unconditionally.
(f) Further assurance: Each Party must from time to time and in a timely manner do all things reasonably required of it by the other Party to give effect to this Agreement.
(g) Counterparts: This Agreement may be executed in any number of counterparts and, if so, the counterparts taken together will constitute one and the same Agreement. The date of this Agreement will be the date that it is executed by the last Party.
(h) Entire agreement and understanding: In respect of the subject matter of this Agreement: this Agreement and schedules contains the entire understanding between the Parties; all previous oral and written communications, representations, warranties, or commitments are superseded by this Agreement and do not affect the interpretation or meaning of this Agreement; and each of the Parties has relied entirely on its own enquiries before entering into this Agreement.
(i) Governing law and jurisdiction: This Agreement is governed by the laws of New South Wales and the Commonwealth of Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.
The Contracting Parties and their respective employees, contractors, and counsel, represent and agree that, except for matters of public record as of the date of this Agreement, they will keep the terms and contents of this Agreement confidential, and that they will not hereinafter disclose the terms of this Agreement to other persons except as compelled by applicable law or to individuals who have a need to know about this Agreement and its contents, such as Contracting Parties’ legal counsel, tax advisors, or other retained professional representatives, all of whom shall be informed and bound by this confidentiality clause. In no event will any party make or cause to be made any comment, written statement, or press release to any member of the media concerning the fact of this settlement or the substance or terms of this settlement.
End of Terms – Schedule attached