BUGABOO AUSTRALIA PTY LIMITED
General Conditions of Sale and Delivery of Bugaboo Australia Pty Limited (ACN 129 828 280) of Level 10, 68 Pitt Street, Sydney NSW 2000, Australia for Retail Online Orders
In this document the reference to “ROO” is to be understood as a reference to “Bugaboo Business”
1. General
1.1 The Retailer agrees that these ROO Conditions: (a) set out the terms and conditions on which Products are to be supplied by Bugaboo for all Orders made by the Retailer via the ROO Portal; (b) will apply to all Orders made by the Retailer for Products via the ROO Portal; and (c) are to be read in conjunction with the Bugaboo Retail Agreement between Bugaboo and the Retailer and to the extent of any inconsistency, these ROO Conditions will apply.
1.2 By placing an Order via the ROO Portal, the Retailer acknowledges that they have read, understood and agree to be bound by these ROO Conditions, and that Order to Bugaboo is subject to these ROO Conditions.
1.3 All Orders by the Retailer not made via the ROO Portal will be made in accordance with the Bugaboo Retail Agreement and these ROO Conditions will not apply.
2. ROO Portal Access
2.1 Prior to the Retailer being granted access to the ROO Portal, the Retailer must, to satisfaction of Bugaboo, successfully pass all creditworthy checks as reasonably required by Bugaboo.
2.2 Upon satisfaction of clause 2.1, the Retailer will receive a unique username and access code from Bugaboo which will enable the Retailer to logon to the ROO Portal to place Orders.
2.3 The username and access code provided to the Retailer are unique and only applicable to the Retailer.
2.4 The Retailer must not disclose its username and access code to any third parties.
2.5 Bugaboo will not be liable for any loss or damage caused as a result of disclosure to third parties or improper use of the username and access code by the Retailer.
2.6 Bugaboo may at its sole discretion restrict, suspend or terminate access to the ROO portal if Bugaboo believes that the Retailer has breached these ROO Conditions.
2.7 Bugaboo may require maintenance to be carried out to the ROO Portal from time to time during which the Retailer will not be able to access the ROO Portal.
2.8 In the event that maintenance is required, Bugaboo will give the Retailer reasonable notice prior to carrying out the maintenance.
2.9 Bugaboo will not be liable for any loss or damage caused as a result of the Retailer not having access to the ROO Portal as a result of maintenance.
3. Orders
3.1 The Retailer must submit an Order via the ROO Portal indicating the number and type of Products they wish to purchase from Bugaboo.
3.2 The Retailer warrants that all information and data provided by the Retailer for each Order including details of the Retailer stored on the ROO Portal are accurate, complete, and up to date.
3.3 The Retailer acknowledges that Bugaboo will rely on the accuracy of the information and data provided by the Retailer in the Order and, if the Retailer fails to supply accurate information on the Order including details of the Retailer stored on the ROO Portal, the delivery of the Products from Bugaboo may be invalid or ineffective.
3.4 If there is any change to the information or data the Retailer provides to Bugaboo including details of the Retailer stored on the ROO Portal, the Retailer must notify Bugaboo of that change as soon as possible.
3.5 Upon the Retailer placing an Order via the ROO Portal, the Retailer will receive confirmation by email from Bugaboo that the Order has been placed via the ROO portal.
3.6 Subject to clauses 3.7 and 4, Bugaboo will honour all Orders which receive a confirmation to the best of its ability.
3.7 Bugaboo is only obliged to honour all Orders if the Retailer is not in default of any obligation under these ROO Conditions and if all obligations under any previous Orders made by the Retailer have been complied with to the satisfaction of Bugaboo.
4. Product Availability
4.1 Bugaboo cannot guarantee the availability of any Products and in the event that a Product is not available, Bugaboo reserves the right to substitute the Product with another or cancel the order for those Products which are unavailable.
4.2 The Retailer will not be charged for any Products that are not available for any reason. For the avoidance of doubt, the Retailer is required to pay for the substitute Product.
4.3 Bugaboo reserves the right to change the available range of Products without notice.
5. Product Price
5.1 The prices for the Products order via the ROO Portal are as listed on the ROO Portal.
5.2 All prices are stated in Australian dollars, exclusive of GST and excluding delivery costs, unless stated otherwise.
5.3 Bugaboo may change the price of any Products at any time in its sole discretion.
5.4 Without limiting Bugaboo’s rights under clause 5.3, Bugaboo may, in its sole discretion, pass on any cost price increasing factors, such as levies, taxes and surcharges, to the Retailer.
5.5 The Retailer must pay any GST payable on the supply of the Products.
6. Delivery
6.1 The Retailer may: (a) have all Products the subject of an Order delivered to the nominated delivery address of the Retailer; or (b) arrange for the Products the subject of an Order to be picked up from Bugaboo by the Retailer.
6.2 Bugaboo may deliver the Products to the Retailer in any number of instalments.
6.3 Any delivery times provided by Bugaboo to the Retailer for the delivery of any Order are estimates only and Bugaboo is not liable for late delivery or non-delivery of all or any instalment of the Products;
6.4 Bugaboo is not liable for any loss (including consequential loss), damage or delay suffered by the Retailer or its customers arising from any late or non-delivery of, or loss or damage to all or any instalment of an Order.
6.5 Each Order, upon acceptance by Bugaboo, will comprise a separate agreement that has been entered into subject to these ROO Conditions. If the delivery time for an Order is exceeded, the Retailer will not have any right to suspend or offset payments for other Orders.
6.6 If and to the extent that Bugaboo is able to foresee that a delivery time will be exceeded, it will inform the Retailer thereof without delay. Such instances where the delivery times are exceeded will not oblige Bugaboo to pay any compensation, nor will it give the Retailer the right to cancel its Order.
6.7 If the indicated delivery time is exceeded by more than 2 months, the Retailer may cancel the Order without penalty and will not be required to pay for those Products which are being cancelled.
6.8 In the event that the Retailer does not collect the Products within the timeframe indicated by Bugaboo, the Products will remain stored at the premises of Bugaboo at the risk of the Retailer, without prejudice to the Retailer’s obligation to settle the invoice amount due on the due date, and without prejudice to the retention of title of Bugaboo under clause 10.
7. Payment
7.1 The Retailer must pay Bugaboo in full for the Products supplied under any Order by: (a) the time stipulated in writing by the Bugaboo including in any credit application; or (b) the 30th day of the month following the month of supply if no other time is stipulated in writing by Bugaboo.
7.2 If the Retailer does not pay Bugaboo in full for the Products supplied within the applicable time period in clause 7.1, the Retailer will be in default and all outstanding and/or not yet due moneys owed to Bugaboo invoices will become due and payable immediately and in full and Bugaboo may, in addition to any other rights of Bugaboo, charge default interest on any outstanding amount.
7.3 The interest rate will be the rate equivalent to 4% above the cash rate as set by the Reserve Bank of Australia from time to time.
7.4 Interest accrues daily and will be calculated from the date payment is due to the date of full and final payment to the Customer.
7.5 A payment by the Customer will be credited first against the interest accrued to the date of payment.
8. Inspection and complaints
8.1 The Retailer must check immediately on delivery of an Order whether the number of Products delivered corresponds with the Order and any despatch documents, and if there are any visible defects to the Products.
8.2 The Retailer must notify Bugaboo of any deviations from the Order or visible defects to the Products on delivery, failing which the delivery will be deemed correct and the Retailer will not have any right to raise objections to the extent permitted by law.
8.3 In the event that a Product defect is not visible, the Retailer must notify Bugaboo in writing within 48 hours after the hidden defect has been discovered, providing a description and evidence of the hidden defect.
8.4 The Retailer must check all invoices from Bugaboo and notify Bugaboo in writing of any uncertainties or mistakes within 7 days after the invoice date, failing which the invoice will be deemed correct and the Retailer will not have any right to raise objections to the extent permitted by law.
8.5 All other complaints must be notified to Bugaboo in writing within 7 days after the Retailer has identified a defect, or, at any rate, could have identified a defect.
8.6 The Retailer waives any right to claim for an incorrect Order or Product defect upon the expiration of the periods outlined in clauses 8.1 to 8.5.
9. Risk, Title and Responsibilities
9.1 The risk of loss or damage to the Products will pass to the Retailer: (a) If the Products are being delivered by Bugaboo, at the time of delivery at the place nominated by the Retailer; (b) if the Products are being collected by the Retailer, at the time that the Retailer collects the Products from Bugaboo.
9.2 The Retailer must insure all Products that are at the Retailer’s risk.
9.3 The Retailer must:
(a) keep and maintain the Products in as new condition and ensure that all boxes and packaging accompanying the Products are kept and maintained so that in the event the any of the Products are returned to Bugaboo, such Products are in the same condition as when such Products were supplied by Bugaboo;
(b) ensure that all staff and agents of the Retailer treat the Products with the utmost care and ensure that the Products are not scratched, tampered or damaged in any way whatsoever;
(c) promptly notify and report to Bugaboo any:
(i) difficulties the Retailer encounters or will encounter in the performance of its obligations under these ROO Conditions; and
(ii) damage caused to the Products whilst in the possession, power or control of the Retailer; and
(d) comply with all applicable laws.
10. Retention of Title and Security Interest
10.1 The parties agree that the property in and title to the Products remains with Bugaboo until all debts and other amounts owing by the Retailer to Bugaboo have been paid in full.
10.2 The Retailer is permitted to sell the Products in the ordinary course of business, however on such sale then as between the Retailer and its customers purchasing the Products, the Retailer will be a principal and not the agent of Bugaboo.
10.3 The Retailer acknowledges and agrees:
(a) that these ROO Conditions constitute a security agreement for the purposes of the Personal Property Securities Act 2009 (Cth) and all regulations made pursuant to it as amended from time to time (PPSA), and that it grants a first ranking security interest and purchase money security interest in all of the Products that have been supplied to and are in the possession of the Retailer including all Products which have not been paid for by the Retailer, as security for all amounts owing now or in the future to Bugaboo;
(b) that these ROO Conditions constitute a continuing security despite any settlement of account or other matter or thing until a final discharge is given by Bugaboo;
(c) that it has received value as at the date of first supply of the Products and has not agreed to postpone the time for attachment of the security interest granted to Bugaboo under these ROO Conditions;
(d) that it will execute such further documents and do such further acts and things as Bugaboo may require for the purpose of registering a financing statement or financing change statement in relation to the goods on the Personal Property Securities Register (as defined in the PPSA) or otherwise perfecting or giving effect to Bugaboo’s interest in the Products;
(e) to irrevocably consent to Bugaboo, and its agents, without notice and without in any way being liable to any person, entering on to any premises where the Products may be situated for the purpose of inspecting, maintaining, stock-taking or reclaiming the Products;
(f) to waive its rights under the PPSA to:
(i) receive a copy of any verification statement;
(ii) receive any notice that Bugaboo intends to sell the Products or to retain the Products on enforcement of the security interest granted under these ROO Conditions;
(iii) object to a proposal by Bugaboo to retain the Products in satisfaction of any obligation owed by the Retailer to Bugaboo;
(iv) receive a statement of account on sale of the Products;
(v) reinstate any security agreement under s 143 of the PPSA;
(vi) retain the Products; and
(vii) where any Products become an accession, to receive notice of removal of the accession and to apply to the court for an order concerning the removal of the accession.
11. Warranty Claims
11.1 The Retailer must ensure that any warranty claim by a Customer is made in accordance with Bugaboo’s Warranty Policy and Procedures.
12. Intellectual Property Rights
12.1 The Retailer must comply with all terms and conditions in respect of any intellectual property rights as outlined in the Bugaboo Retail Agreement.
13. Default
13.1 Each of the following events is an Event of Default:
(a) the Retailer fails or refuses to pay or is late in paying any amount the Retailer owes to Bugaboo after that amount is due and payable;
(b) there is a change in:
(i) the shareholding of a the Retailer (or its ultimate holding company); or
(ii) the composition of the Retailer’s board of directors (or the board of directors of its ultimate holding company); or
(c) the Retailer commits any breach of these ROO Conditions; or
(d) an external administrator is appointed to the Retailer, or action is taken to make such appointment; the Retailer ceases to carry on business; a receiver or a receiver and manager of property of the Retailer is appointed whether by a court or otherwise; the Retailer enters into a compromise or arrangement with its creditors or a class of them; or the Retailer ceases to pay its debts when they fall due.
13.2 If the Retailer commits an Event of Default (as defined in clause 13.1, Bugaboo may:
(a) immediately terminate any Orders placed by the Retailer without notice;
(b) cease supply of all Products;
(c) enter onto any premises where the Products may be situated for the purpose of reclaiming the Products, without prejudice to any other remedy available it and all monies that the Retailer owes to Bugaboo at that date will become immediately due and payable.
14. Liability
14.1 Bugaboo will be liable for any indirect, special, consequential or economic loss or damage of whatever nature, however it may arise, including without limitation loss of anticipated profits, direct or indirect loss of actual profits, loss of anticipated savings, or loss of business.
14.2 To the extent permitted by law, any claim by the Retailer for damages arising out of negligent, wilful of fraudulent act or omission of Bugaboo is limited to the value of the invoiced amount excluding GST with respect to which the claim is made.
15. Force majeure, dissolution and consequences
15.1 If a party cannot perform its obligations under these ROO Conditions because of a force majeure event which is not within the reasonable control of the parties including but not limited to any act of God, outbreak or escalation of hostilities (whether or not war has been declared) or any other unlawful act against public order or authority, or industrial dispute or governmental restraint but not including an obligation to pay money, that party must give notice to the other party as soon as possible setting out:
(a) the circumstances amounting to the force majeure event;
(b) the nature of the force majeure event; and
(c) the expected length of time the circumstances will continue.
15.2 If there is a force majeure event and notice is given under clause 15.1:
(a) the obligations of the party giving notice will be suspended while the force majeure event continues; and
(b) the party affected by the force majeure event must:
(i) (i) take all reasonable steps to minimise the effects of the force majeure event;
(ii) permit the other party to take whatever steps it considers reasonably necessary to minimise the effects of the force majeure event (noting that there is no obligation on that party to do so); and
(iii) (iii) start performing its obligations under this agreement as soon as possible after the force majeure event ends.
16. Applicable law
16.1 These ROO Conditions are governed by the law in force in New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them.
17. Definitions
Bugaboo means Bugaboo Australia Pty Limited (ACN 129 828 280) of Level 10, 68 Pitt Street, Sydney NSW 2000, Australia.
Bugaboo Retail Agreement means the agreement between Bugaboo and the Retailer under which Bugaboo appoints the Retailer as Bugaboo’s authorised dealer under the conditions set forth in that agreement.
Bugaboo’s Warranty Policy and Procedures means guidelines as to warranties that the Retailer must provide to its customers as outlined in the Bugaboo Retail Agreement.
Event of Default means the events of defaults outlined in clause 13.1.
Order means an order placed via the ROO Portal for Products.
Products means the products of the type and specification manufactured and packed by Bugaboo as identified in the Bugaboo Retail Agreement or any other products which the Retailer may order via the ROO Portal to sell to its customers from time to time.
Retailer means the retail supplier of Products being a party to the Bugaboo Retail Agreement that places Orders on the ROO Portal.
ROO Conditions means these ROO General Conditions of Sale and Delivery of Bugaboo.