Terms and conditions

Your  use of the website constitutes your agreement to follow and be bound by  these Terms and Conditions. If you do not agree with the Terms and  Conditions, please do not use the website.

In these Terms and Conditions

(a)           References to "Head4Hats", "we", "us" "our" and other similar terms is, in each case, a reference to head4hats.com.au

1. DEFINITIONS

1.1 In these Terms and Conditions the following terms shall have the meanings set out below:

ACL means the Australian Consumer Law which is contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Amount  Payable means at any time all amounts payable to us, whether or not  those amounts have become due for payment under these Terms and  Conditions, in connection with the Goods or the Contract, including  without limitation any invoiced amounts, interest, fees, costs or  expenses.

Contract means the Terms and Conditions and for a Purchase Order, the relevant Purchase Order Acknowledgement.

Customer  means the customer specified in the Purchase Order, the person placing  the Order or on whose behalf the Order is placed with us.

head4hats.com.au means head4hats.com.au and any related body corporates (within the meaning of section 50 of  the Corporations Act 2001 (Cth)) as specified in the Purchase Order.

Goods means any goods, products, services or materials supplied or to be supplied by us at  any time and from time to time, including without limitation any goods  specified in a Purchase Order, Purchase Order Acknowledgement or  invoice.

GST means any goods and services tax imposed on the Supply pursuant to the GST Law.

GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

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

Purchase Order means an order or offer to purchase Goods.

Purchase Order Acknowledgement is defined under clause 2.1(a).

Terms  and Conditions means the terms and conditions set out in this  documents, as modified or amended in relation to a particular Purchase  Order.


2. BINDING TERMS AND CONDITIONS

2.1 Purchase Order, Purchase Order Acknowledgement and Terms and Conditions
(a)  A Purchase Order or an offer to purchase can be made by the Customer  from time to time, however the Purchase Order shall be deemed accepted  when the Customer receives an acknowledgement of the Order from us or  delivery of the relevant Goods, whichever first occurs (“Purchase Order  Acknowledgement”).
(b) The Terms and Conditions apply to every Purchase Order, unless otherwise agreed in writing by us.
(c)  The Customer acknowledges that the Terms and Conditions constitute a  security agreement and that we may register a financing statement in  respect of the security interests provided for under these Terms and  Conditions.
(d) By submitting a Purchase Order to the Company, the  Customer hereby agrees and acknowledges that it accepts and ratifies the  Terms and Condition apply and are being binding on the Customer.

2.2 Contract
(a) The Contract shall comprise of the following documents, in order of precedence:
(i) Purchase Order and Purchase Order Acknowledgements;
(ii) These Terms and Conditions; and
(iii)  Any other document which is attached to, or incorporated by reference  in, the Purchase Order or these Terms and Conditions.
(b) The  Contract constitutes the entire agreement between us and the Customer  with respect to the Purchase Order. Any and all prior negotiations,  proposals, previous dealings, correspondence, trade custom and/or trade  usage are superseded by and will not affect the interpretation of the  Contract.
(c) If at any time in relation to a Purchase Order, the  Customer provides, refers to, submits or otherwise uses terms and  conditions other than the Terms and Conditions, such terms and  conditions will not form part of or be incorporated into the Contract.

2.3 Entire Agreement
(a)  The Contract contains the entire agreement between us and the Customer  with respect to its subject matter and supersedes all prior  communications and negotiations between us and the Customer in this  regard, save where such communications expressly form part of the  Contract.
(b) A Purchase Order is accepted by the Customer to the  exclusion of any terms stated on any of the Customers documents  including its terms and conditions, quotations, proposal, offer,  acknowledgement, confirmation, invoice or any other written instrument,  unless specifically expressly agreed to in writing signed by a duly  authorised representative of both parties.
(c) The Customer and/or a  person duly authorized to sign for and on behalf of the Customer and  whom is capable of binding the Customer to the agreements herein must  sign the Terms and Conditions where indicated.
(d) By signing the bottom of these Terms and Conditions, the Customer warrants to us that:
(i) they have read and understood these Terms and Conditions; and
(ii)  if and where they deem necessary or required obtained independent legal  and/or accounting advice (or at least availed themselves the  opportunity to do so).

3. GOODS

3.1 Fitness for Purpose
(a)  Except as expressly provided to the contrary in the Contract, all  representations, warranties, guarantees and implied terms or conditions  in relation to the Goods (whether implied or otherwise) are hereby  excluded to the maximum extent permitted by law.
(b) The Customer  agrees that if it is aware (or should be aware) that the Goods, the  subject of a Purchase Order, are for a particular purpose or are  required to possess special or uniform characteristics, the Customer  will clearly specify that purpose or those characteristics in any such  Purchase Order to assist us in providing guidance as to the type of  Goods the Customer is to purchase.
(c) Notwithstanding any other  provision contained herein, the Customer agrees that, unless expressly  agreed by us in writing, it has made its own enquiries in relation to  the suitability of the Goods and does not rely on representations
Terms and Conditions of Supply of Goods Version: July 2014
by us in relation to their suitability for a particular purpose or any steps may need to be taken in relation to their use.

3.2 Representations
Subject to clause 3.3 we will use our reasonable endeavours to:
(a)  supply Goods having the grade of material specified in the Purchase  Order and/or Purchase Order Acknowledgment (if applicable); and
(b)  ensure that any grade of material as specified in the Purchase Order  Acknowledgment will, unless otherwise agreed, be in accordance with  applicable Australian Standards and/or as detailed in any current,  relevant price schedules, product handbooks or other product literature  from us, including manufacturer warranties.

3.3 Standard Grade
Unless otherwise agreed in writing:
(a)  all Goods will be supplied and delivered in accordance with our  standard practices and shall be subject to our normal tolerances,  limitations and variations of the following: dimension, weight, shape,  composition, mechanical properties, structure, quality and service  conditions;
(b) any statements made by us as to weight, length,  quantity or other characteristics of Goods are approximate and we may  supply Goods on an actual or calculated basis (calculated in accordance  with applicable Australian standards); and
(c) our statements as to  weight, length, quantity or other characteristics are final (in the  absence of manifest error) and will not be contested by the Customer  unless the Customer has given us written notice of any error within 14  days of delivery and a reasonable opportunity to examine and re-test the  Goods before they are used or dealt with.

4. PRICE

4.1 Purchase Price
(a)  Unless otherwise agreed in writing, the purchase price charged for the  Goods shall be the prevailing price listed by us as at the date on which  the Purchase Order is submitted by the Customer (“Purchase Price”).
(b)  We may at liberty vary the Purchase Price of the Goods from time to  time, without further notice to the Customer. It is the Customer’s  obligation to ensure they are aware of the prevailing price at the time  of their Purchase Order.

4.2 GST
(a) Unless where otherwise  stated or agreed in writing, the Purchase Price shall include GST, if  applicable, as well as any identified or new transaction taxes that come  into existence after the effective date of the Terms and Conditions.
(b)  Where GST is payable on a Purchase Order, the Customer must pay to us  an additional amount equal to the GST, on or around the date on which  the Purchase Order was submitted.

5. PAYMENT TERMS

5.1 Method of Payment
Unless  where otherwise provided in the Contract, all payments made to us by  the Customer in relation to the performance of the Supply must be made  in Australian currency.

5.2 Invoices
(a) We shall render an  invoice to the Company in relation to the provision of the Supply upon  submission of the Customer’s Purchase Order (“Invoice”).
(b) Each Invoice must be in an acceptable form and must contain the following information:
(i) the number of the Purchase Order to which the Invoice relates;
(ii) a brief description of the Supply including description of Goods, quantities, unit prices, GST payable; and
(iii)  the costs of delivery and transportation of the Goods to the nominated  destination pursuant to the Purchase Order, including the costs of any  taxes, customs, charges and/or duty fees on the import or export of the  Goods under the laws of the relevant delivery destination.
(c)  Subject to the terms of the Contract, the Customer must pay the  outstanding balance of the Invoice upon making a Purchase Order and/or  within the stipulated payment terms contained therein.
(d) It is  acknowledged that due and punctual payment is not of the essence,  however where the Invoice relating to the Supply remains outstanding:
(i) We may not provide a Purchase Order Acknowledgement; and
(ii) We will not commence dispatch and delivery of the Goods pursuant to a Purchase Order, until payment is actually received.

5.3 Disputed Invoice
Where  there is a dispute of any amount shown on the Invoice or the Customer  discovers any errors or exceptions relating to its invoicing of the  Supply, the parties agree to cooperate in good faith to resolve the  dispute or error.

6. DELIVERY, TITLE AND RISK

6.1 Delivery
(a)  We will make all reasonable efforts to have the Goods delivered to the  Customer or its designated agent as agreed between the parties pursuant  to the Purchase Order on or before the estimated delivery date but we  shall not be liable for:
(i) any failure to deliver; or
(ii) delay in delivery for any reason; or
(iii)  any damage or loss due to unloading or packaging; or except to the  extent that such damage was caused by the negligent act or omission of  us, including such damage to property caused upon entering premises to  deliver the Goods.
(b) The parties acknowledge that any delivery date  prescribed under the Purchase Order or Purchase Order Acknowledgement  is an estimate of the expected delivery time and in any interpretation  is not a guaranteed delivery time.
(c) We (and or our agents) shall  provide updates to the Customer with respect to the delivery time,  dispatch dates and/or expected arrival dates, if and where reasonably  possible to do so.
(d) Any costs incurred by us due to any failure by  the Customer to accept the Goods at time of delivery will be reimbursed  by the Customer to us.
(e) Except as required by law, we will be under no obligation to accept Goods returned for any reason.

6.2 Title
Full  unencumbered title to each Good shall pass to us upon the earlier of  the Customer making payment in full to us for the Goods.

6.3 Risk
Risk in the Goods shall remain with the Customer on and from the date of receiving a Purchase Order Acknowledgement.

7. PACKAGING, DESPATCH AND TRANSPORT

7.1 Customer Responsible
(a)  Unless otherwise agreed in writing between the parties, we shall be  responsible for packing and transporting the Goods to the delivery  destination set out in Purchase Order, at the cost and expense of the  Customer.
(b) Where the Goods are shipped, carried or transport in  the course of delivery by the Customer or a third party by road, rail,  sea or air ("Shipment”), each Shipment must contain a packing list  stating the contents and the Purchase Order number. Where no packing  list is included with the Goods, our count of the Goods shall be  conclusive evidence of the Goods actually shipped.

7.2 Preparation for transport
We  must pack and protect all Goods ready for dispatch in accordance with  best practice having regard to methods of carriage and handling and to  the weather conditions through which the Goods will pass whilst being  transported, and, in a manner to secure the lowest transportation cost.

7.3 Shortages
(a) The Customer will inspect and check all Goods received as soon as practicable upon unloading.
(b)  No claim by the Customer for shortages of Goods may be made unless such  claim is notified to us within 48 hours of such inspection.
(c) We  will endeavour to rectify any shortages as soon as practicable after  receiving notice but will not be liable for or in respect of such  rectification.

8. DUTIES AND OBLIGATIONS OF THE CUSTOMER

8.1 Role of the Customer
The  parties agree and acknowledge that the Customer may only purchase the  Goods for the sole and exclusive purpose of wholesale or retail sale and  distribution to a third party.

8.2 Recommended Retail Price
(a)  In consideration of the Good markets of the Goods and each of the  Customer’s and our ability to be competitive in such markets, we have  provided each Wholesale Customer with a list of recommended retail  prices (“RRP”) of each Good, indicating the minimum floor price we  recommend the Customer to resell the Goods.
(b) The parties agree and  acknowledge that the RRP list is a mere recommendation of the resale  price of the Goods. Under no interpretation can the provision of the RRP  list to each of the Customers be construed as an enforceable  undertaking against each Customer to resell the Goods at the RRP list  price.

8.3 Positive undertakings
In entering into this Contract  and making or submitting Purchase Orders for the Supply of Goods, the  Customer undertakes to us that it will:
(a) act as the Customer of  the Goods dutifully and in good faith and in the best interests of  maintaining the goodwill of the Goods;
(b) act diligently to promote  and protect the interests of us concerning the Supply of the Goods and  the profile of the Goods generally;
(c) conduct business in a manner that reflects favourably at all times on the Goods;
(d)  avoid deceptive, misleading, or unethical practices that are or might  be detrimental or disparaging of or to the Goods, members of the public,  us and any of our related entities or authorized dealers;
(e) not knowingly make a false or misleading representations with regard to us or the Goods;
(f) refrain from knowingly publishing or employing any misleading or deceptive advertising material;
(g)  refrain from knowingly making any false or unauthorized  representations, warranties, or guarantees with respect to the  specifications, features, or capabilities of the Goods;
(h) comply  with any reasonable directives or instructions given by us in relation  to any promotional activities concerning the nature, type, quality,  characteristics, fitness for purpose, suitability, use and description  of the Goods;
(i) communicate promptly to us;:
(ii) any third party complaints made to the Customer concerning the Goods;
(iii)  any material market intelligence gathered by or known to the Customer  concerning the Good, competitors of us, the competing goods or services  supplied in the Territory and the economic conditions prevailing in the  Territory;
(j) comply with the laws in force in the country of  domicile of the Customer relating to marketing and the distribution of  the Goods including without limitation, the laws concerning product  registration, fair trading, consumer protection, product liability, and  product and safety standards;
(k) subject to clause 8.2 comply with  the overall pricing objectives of us and not undermine the integrity or  otherwise of such pricing objectives by employing either inflated or  deflated Product prices;
(l) maintain at its own expense all appropriate forms of insurance cover for the sale and application of the Goods;
(m)  promptly remit to us any moneys of ours or owing to us and secure any  approval, authority or permit from any competent authority for any such  remittance. Nothing prevents the Customer from depositing those moneys  in any bank account nominated by us (whether in the Territory or in  another place); and
(n) do all things necessary and required with respect to the Goods upon the reasonable direction of us from time to time.

8.4 Negative Undertakings
The Customer undertakes to us that it will not:
(a)  represent itself as the agent of us for the Supply of the Goods or of  any other goods or services (unless we consent to this);
(b) pledge the credit of us for any purpose;
(c) retain any moneys of ours except on a trustee or fiduciary basis;
(d)  knowingly and intentionally make any false or misleading statement to  any supplier or service provider to the Customer or its business about  the Goods or the liability of us for the cost of any goods or services  supplied to the Customer or its business; and
(e) incur any liability or assume any obligation on behalf of us.

9. LIMITATION OF LIABILITY

9.1 Limitation of Liability
(a)  Our liability to the Customer (and any party claiming through the  Customer against us) for any claim for loss or damages (including legal  expenses) made in connection with the Contract (including the supply of  Goods described in the Contract) whether in contract, tort (including  negligence), under statute, in equity or otherwise shall be strictly  limited as follows (except to the extent that the law prohibits such a  limitation):
(i) for any liability arising from Goods not meeting the  specification or which are said to be otherwise defective or deficient,  our liability is limited to the cost of replacement of those Goods as  soon as reasonably practicable, or the repair of those Goods or the  repayment (or allowance) of the Purchase Price of those Goods (at the  option of us);
(ii) for any liability arising from the services forming part of the Goods not meeting the scope

9.2 Consequential Loss
(a)  We may hold the Customer liable, to the maximum extent permitted by  law, for any indirect, special or consequential loss or damage of any  nature whatsoever resulting from or caused in any way by the Goods it  supplies, where “indirect, special or consequential loss or damage”  includes:
(i) any loss of income, profit, production, contract, customers, business opportunity or business;
(ii) any loss of goodwill or reputation;
(iii) any loss or damage resulting from the loss or damage to goods other than the Goods.

9.3 Defective Goods
(a)  Any claim by the Customer in respect of defective, non-conforming or  damaged Goods must be made in writing within 14 days of the delivery of  the Goods, unless a longer period is expressly agreed to by us in  writing.
(b) Despite any other provision of the Contract, we are not liable, to the maximum extent permitted by law, for:
(i)  the cost of removal of Goods not meeting the specification or which are  said to be otherwise defective or deficient, whether installed or  otherwise;
(ii) the cost of installation of replacements for Goods  not meeting the specification or which are said to be otherwise  defective or deficient;
(iii) defects or deficiencies in Goods caused  by improper installation or maintenance of Goods or related components  or normal wear and tear and damage.

10. CONFIDENTIALITY

The  Customer undertakes and agrees to hold in the strictest confidence all  confidential information and not to disclose or permit or cause the  confidential information to be disclosed to any person other than any of  its personnel who require the Confidential Information for the purposes  of providing the Supply, unless such information:
(a) becomes generally available to the public other than as a result of the breach of this clause 9; or
(b) is required to be disclosed in order to comply with relevant laws or legally binding order of a court or government agency.

11. PPS LAW

11.1 Definitions
Unless  otherwise defined, capitalised words in this clause 8 have the same  meaning as given to them in the Personal Properties Securities Act  (2009) Cth (“PPSA”) where applicable.

11.2 Security Agreement
(a)  The acceptance of a Purchase Order for the performance of the Supply,  constitutes an act giving rise to a Security Agreement under the PPSA,  whereby the Customer grants to and for the benefit of us a Security  Interest in the due and punctual performance of such Security Agreements  to the following extent and nature:
(i) a Security Interest over all  the Customer’s present and after-acquired property in which the  Customer can be a Grantor of a Security Interest including property in  which the Customer has or may have in the future have, rights or the  power to transfer rights, proceeds and any   retention of title property  (“PPSA Personal Property”); and
(ii) a fixed charge over all present and after acquired property of the Customer that is not PPSA Personal Property;
(b) In granting the Security Interest pursuant to clause 11.2(a), the Customer acknowledges and confirms that:
(i)  We have given value for the Security Interest in the PPSA Personal  Property as Collateral, including by its promises under this Contract;
(ii)  nothing in this Contract is intended as an agreement by the Parties  that a Security Interest Attaches at a later time than the time  specified in section 19(2) of the PPSA; and
(iii) it has not made any  other agreement with us to vary the time of Attachment of a Security  Interest except in any express written agreement between Parties.
(c)  The Customer must upon request by us do anything (including but not  limited to obtaining consents or executing a new Security Agreement) for  the purposes of ensuring that any Security Interest granted under the  Contract shall be enforceable, perfected, maintained and otherwise  effective.

11.3 Waiver of Notice
On and from the date of these Terms, the Customer waives its right to receive:
(a)  a copy of, or notice of, any Verification Statement confirming  Registration of a Financing Statement or a Financing Change Statement  relating to any Security Interest under or provided for by this clause;  and
(b) a notice of our proposal to retain PPSA Personal Property under section 135 of the PPSA.

12. FORCE MAJEURE
Neither  party shall be liable for delays or defaults due to acts of God, acts  of governmental war, fire, flood, strikes, or other causes beyond its  control, provided that in any event we may terminate this Contract as to  all or any outstanding portion of the Supply.

13. INSURANCE
If  the Customer believes reasonably and necessary, the Customer will, may  obtain insurance for and in respect of the Goods, including without  limitation public liability insurance and professional indemnity  insurance. We, at our option, shall be named as an additional insured  under all such coverages other than workers’ compensation insurance.

14. INDEMNITY

14.1 Customer to indemnify us.
The Customer agrees to indemnify us and hold us harmles and  our Personnel from any costs, expenses, losses, damages, claims,  actions or liabilities (“Liabilities”) that we may directly or  indirectly suffer, sustain or incur, arising from any one or more the  following:
(a) the breach by the Customer of any of the Customer’s obligations, including any warranty, under the Contract;
(b) any negligent act or omission or wilful misconduct by the Customer arising out of the performance of the Contract;
(c)  any claim made against us by any third person arising out of or alleged  to arise out of the Supply, including claims relating to the use of any  Goods by the Customer or third persons; and
(d) all claims,  expenses, and judgments based upon any actual or alleged infringement of  any patent, trademark, or copyright relating to any Goods unless such  claim arises out of non-compliance by the Customer of our  specifications.

14.2 Continuing Indemnity
Each indemnity in the  Contract is a continuing obligation separate and independent from the  Customer’s other obligations and survives the termination of the  Contract.

15. NO FAULT TERMINATION

(a) We  may at any time, without cause, terminate the Contract or any part of it  by giving the Customer thirty (30) days’ prior written notice of its  intention to do so (“Termination Notice”).
(b) Upon receipt of a Termination Notice, the Customer must:
(i) immediately pay any outstanding amounts due and payable to us from time to time;
(ii) return all Confidential Information belonging to us issued to the Customer, including copies of its Contracts; and
(iii) take any necessary action as we may reasonably require.

16. CUSTOMER DEFAULT

16.1 Event of Default
An event of default includes:
(a) a breach by the Customer of any term or provision of this Contract;
(b)  any voluntary or involuntary administration of the Customer including  but not limited to entering into Deed of Company Arrangement or being  issued insolvency proceedings by or against the Customer;
(c) the inability of the Customer to meet its obligations as they become due; or
(d) the appointment of a receiver for the Customer by any court of competent jurisdiction.

16.2 Default Notice
If  the Customer commits an event of default described in clause 16.1, we  may serve a notice of default (“Default Notice”) on the Customer  requiring that:
(a) if the breach is capable of being remedied, for  such breach to be remedied within fifteen (15) days of the date of the  Default Notice; and
(b) if the breach is incapable of being remedied,  then state that the Contract is wholly or partly terminated and without  limiting its other rights, to cancel and terminate its Contract with  the Customer as to any unfitted or unperformed portion thereof, without  any liability to the Customer of any kind.

16.3 Rights on Default
We  shall be entitled to take such action as it deems necessary and  required to cure the default, whereby the cost of such action so taken  by us shall be recoverable from the Customer as a debt due to us,  including:
(a) treating a Purchase Order Acknowledgement or the whole of the Contract as repudiated and sue for breach of contract; and/or
(b) refuse or cease to supply any Goods to the Customer at all; and/or
(c)  claim the return of any Goods in the Customer’s possession where title  has not passed to the Customer or exercise any other right or remedy  available to it under the Contract, the PPSA or any other applicable  law, including to enforce the security interests created by the  Contract; and/or
(d) by notice to the Customer declare all monies  owing by the Customer to us on any account immediately due and payable  (including the Amount Payable).

17. MISCELLANEOUS

17.1 Waiver
Except  as expressly set out in the Terms and Conditions, a party waives a  right under the Contract only by written notice that it waives that  right. A waiver is limited to the specific instance to which it relates  and to the specific purpose for which it is given.

17.2 Severance
If  any provision of this Contract shall be invalid, void, illegal or  unenforceable, the validity, existence, legality and enforceability of  the remaining provisions shall not be affected, prejudiced or impaired.

17.3 Further Assurances
Each  of the Parties will sign, execute, deliver and do and will procure that  each of its officers, employees and agents signs, executes, delivers  and executes, all deeds, documents, instruments and acts reasonably  required of it or them by notice from another party to effectively carry  out and give full effect to this Contract and the rights and  obligations of the Parties under it.

17.4 Assignment
No right  or interest in this order shall be assigned, nor any obligation  delegated by the Customer without our prior written permission.

17.5 Jurisdiction and Governing Law
All  dealings between us and the Customer shall be subject to the State of  New South Wales in the Commonwealth of Australia and the Customer agrees  to submit to the non-exclusive jurisdiction of the Courts of New South  Wales in the Commonwealth of Australia.

17.6 Interpretation
In this Contract, unless the context otherwise requires:
(a) clause and subclause headings are for reference purposes only;
(b) the singular includes the plural and vice versa;
(c) a reference to a monetary amount is in Australian Dollars (AUD);
(d) words denoting any gender include all genders;
(e) reference to a person includes any other entity recognised by law and vice versa;
(f) where a word or phrase is defined its other grammatical forms have corresponding meaning;
(g) any reference to any agreement or document includes that agreement or document as amended at any time; and
(h) the use of the word includes or including is not to be taken as limiting the meaning of the words preceding.

17.7 No Joint or Several Liability
If a party is made up of more than one person, or a term is used in this document to refer to more than one party:
(a) an obligation of those persons is joint and several;
(b) a right of those persons is held by each of them severally; and
(c)  any other reference to that party or term is a reference to each of  those persons separately, so that (for example) a representation,  warranty or undertaking is given by each of them separately.