TERMS AND CONDITIONS OF WHOLESALE

1. General

1. These Terms and Conditions (“Terms”) contain all of the terms upon which you engage Gorfunkel Group Pty Ltd (ACN 127 639 669) as trustee of the Gorfunkel Family Trust trading as Viceroy Lingerie to sell Products to you and these Terms will be deemed incorporated into any order made by you.
2. In these Terms, unless the context or subject matter otherwise requires:
   Australian Consumer Law means the Australian Consumer Law contained in Schedule 2 Competition and Consumer Act 2010 (Cth);                                                    Confidential Information has the meaning given in clause 9;                                                                                                                                                                                                                              Directors means the directors or other officeholders of the Customer referred to in clause 7;
   GST has the same meaning as in the GST Act;
   GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
   PPS Act means Personal Property Securities Act 2009 (Cth);
   Product Order means an order by you to purchase Products that we sell pursuant to these Terms;
   Product Price means the wholesale price of the Product that you pay us to purchase the Product;
   Products means goods sold by us to you (excluding any goods that we sell to you in our capacity as an agent for a third party distributor or manufacturer);
   Tax Invoice has the same meaning as in the GST Act;
   Us, our or we refers to Gorfunkel Group Pty Ltd (ACN 127 639 669) as trustee of the Gorfunkel Family Trust;
   You or your and the Customer refers to the entity purchasing Products from us.
3. These Terms apply to Product Orders by you for Products sold by us in our own right as a distributor of the Products. These Terms do not apply to the sale of goods where we act as agent of a manufacturer or supplier, with the sale of such goods being governed by the terms and conditions between the manufacturer or supplier and you. A list of the current manufacturers and supplies for whom we act as agent and the sale of whose goods are not governed by these Terms are set out in the Schedule.
4. These Terms apply to all existing and future Product Orders, and shall be deemed incorporated into any existing contracts for the supply of goods by us to you.

2. Orders

1. You may elect to purchase Products from us for the purpose of reselling the Products on a retail basis to consumers.
2. You shall submit Product Orders to us in any manner approved by us. We recommend that you place orders in writing. In the event that you place an order by telephone, we shall not be responsible for any misdescription or misunderstanding arising from the order being placed by telephone and you agree to accept the Product Order as recorded by us.
3. Each Product Order shall contain a description of the Product(s) being purchased, being the brand name, article number, colour, size and quantity. We apply the European size by default. If you are ordering Products using a different metric please advise the metric that you are using as part of the Product Order.
4. You acknowledge that the actual colours of Products may vary from the colour shown in printed material or online due to the limitations of photography, printing and the electronic display of images. We recommend that you view a physical sample of the Product before placing an order for the Product. However, where you place an order for a Product without seeing a sample, you accept the risk that the Product may vary in colour from that shown in printed material or online.
5. The price applicable for each Product shall be our standard price for that Product applicable at the time that you place the Product Order, unless agreed otherwise in writing. If you require a current price list, please contact us.
6. Where you are a member of the Frontline Stores Retail Group:                                                                                                                                                                                                                      a. You are directly liable to us pursuant to these Terms for any Product Order notwithstanding that Frontline Stores may make payment to us on your behalf; and
   b. You must immediately notify us if your credit status with Frontline Stores changes. We may change our payment terms for Product Orders where your credit status with Frontline Stores changes.
7. Each Product Order shall constitute an offer from you to us to purchase the Product(s) contained in the Product Order.
8. In addition to the wholesale price of the Products, we may charge applicable delivery, shipping and insurance costs associated with the Product Order. Our standard delivery fees applicable from time to time shall apply, depending on the volume of the Product Order.
9. In the event that we accept your Product Order, such Product Order shall be deemed to form a contract between you and us which incorporates these Terms.
10. If you seek any variation to any Product Order after we have accepted your Product Order then:                                                                                                                                             a. We are free to either accept the variation or not and if we do not agree to the variation then we may (but are not required to) cancel the Product Order without any liability on our part; and                                                                                                                                                                                                                                                                                               b. If the variation is sought at any time after we have incurred costs, ordered or purchased the Products, then you shall be liable for costs and losses incurred by us, including but not limited to any shipping or storage costs and any lost profit on any resale of the Products, notwithstanding any termination of the contract by us, and you must pay us any such costs and losses upon written demand by us.

3. Terms of Payment:

1. You agree to pay monies owing to us in accordance with this clause.
2. All Product Prices and other monies owing under these Terms are exclusive of GST, unless stated otherwise.
3. You agree to pay us in the manner set out in the Schedule, or as otherwise set out on our Tax Invoice or directed by us in writing from time to time.
4. In the event that we offer you a discount, the discount shall only apply if you pay our Tax Invoice by the due date stated on the Tax Invoice.
5. In the event that any Product Order comes to an end as a result of your breach of these Terms or you cancelling an order without our consent, and without otherwise affecting any other rights that we may have against you, you agree that any deposit paid by you shall be forfeited to us.

4. Late Payment:

1. We are entitled to suspend the delivery of Products to you:
   a. Until such time as you pay any deposit or upfront payment that we have requested; and
   b. Where we have issued you with a Tax Invoice and you have not paid the Tax Invoice within the required timeframe, until you have paid the Tax Invoice.
2. In the event of any payment or part thereof remaining unpaid after a period of seven (7) days from when it became payable, then:
   a. We may charge interest on the unpaid amount at the rate of two per cent (2%) per annum above the rate set out pursuant to Section 2 of the Penalty Interest Rates Act 1983 (Vic) during the period such unpaid balance remains unpaid, and such interest shall accrue monthly; and
   b. We may charge you an administrative fee of $30.00 per reminder (up to once per fortnight) until such time as you make the payment.
3. Notwithstanding the imposition of interest charges pursuant to this clause, such interest charges shall not be regarded as allowing any time for payment of any amount owing but are agreed as constituting compensation payable to us because of delay in payment. Notwithstanding the imposition of any interest charges in respect of monies unpaid, all such monies shall remain immediately due and payable to us and we shall be entitled to take legal proceedings at any time for recovery of any monies bearing interest charges pursuant to this clause

5. Delivery

1. You acknowledge that any delivery timeframes provided by us are a best estimate only, and do not form a part of any Product Order. We shall use our best endeavours to deliver the Products within a timely manner. However, delivery timeframes are dependent on third party suppliers, couriers and delivery agents, and we shall not be liable for any loss, damage or delay occasioned to you arising from late or non-delivery of the Products.
2. We may cancel a Product Order where we consider, in our sole discretion, that we will not be able complete delivery within a reasonable time. In that event, we shall refund any deposit or other monies paid by you with respect to that Product Order. We shall not be responsible for any loss or damage arising from the cancellation of your Product Order.
3. We shall be responsible for the Products until such time as the Products:
   a. are delivered to your delivery address; or
   b. are made available to you for collection from our warehouse, a post office or our courier’s depot.
4. You acknowledge that you are solely responsible for the Products from the time that they arrive at your delivery address or they are made available to you for collection.
5. In the event that we agree to accept the return of any Products, you shall be responsible for the Products until they are delivered to our address or until we collect them from a post office or courier depot.

6. RETENTION OF TITLE AND SECURITY:

1. Words and phrases used in this clause 6 which are defined in the Personal Property Securities Act 2009 (“Cth”) (“the PPS Act”) have the same meanings as the meanings set out in that Act.
2. Legal ownership of goods supplied by us will not pass to the Customer until the Customer has paid all monies owing to us for those particular goods.
3. The risk in the goods (including, but not limited to, loss or damage to the goods) will pass to the Customer upon delivery of the goods by us in accordance with clause 5.3.
4. The Customer hereby grants a security interest to us over all goods supplied by us pursuant to these Terms until the Customer has made payment of all monies owing to us for those particular goods and these Terms constitute a Security Agreement for the purposes of the PPS Act.
5. The security interest held by us includes an interest in goods that become an accession to other goods.
6. Until such time as the Customer has made payment of all monies owing for goods supplied by us:
   a. The Customer will not charge the goods in any way nor grant or otherwise give any interest in the goods to any other person except in accordance with this clause 6;
   b. In the event that payment has not been received within these Terms, we may give the Customer notice in writing to return the goods or any part of them to us, in which event the Customer will forfeit any rights to obtain ownership of the goods and any monies partly paid by the Customer will be forfeited to us; and
   c. If the Customer fails to comply with a request to return the goods to us, or if the Customer commits any act of bankruptcy or insolvency, or if an administrator or liquidator is appointed for the Customer (but not a receiver or a receiver and manager), then we (or our agents) may enter upon and into land and premises owned, occupied or used by the Customer where the goods are situated, disassemble the goods and take possession of the goods.
7. The Customer must do all things necessary to assist us to perfect and enforce our security interest to the fullest extent available at law, including enabling us to gain first priority for our security interest.  Accordingly, the Customer must not grant a security interest in the goods to any other party without our prior written consent.
8. The parties agree that Sections 96, 125, 142 and 143 of the PPS Act shall not apply to these Terms.
9. The Customer waives its rights to receive any notifications, verifications, statements, disclosures, proposals and any other documentation specified under Sections 95, 121(4), 130, 132(3)(d), 132(4), 135, 157 of the PPS Act
10. For the purposes of Section 275 of the PPS Act, the Customer agrees not to disclose any information provided by us under that Section to any third party without our prior consent in writing (unless required by law or the information has entered the public domain).
11. The Customer indemnifies us for any costs, fees and expenses that we incur in the enforcement of the security interest.
12. Receipt by us of any form of payment for goods other than cash will not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the security interest will continue to apply in relation to those goods.

7. DIRECTORS’ GUARANTEES:

1. Where the Customer is a company or other body corporate, the Customer’s Directors, being the persons named in the Schedule, hereby jointly and severally personally guarantee the due payment by the Customer to us of all present and future debts, monies, charges and interest payable by the Customer to us pursuant to these Terms and they hereby jointly and severally undertake to us that they will pay such debts, monies, charges and interest forthwith upon receiving a demand from us.
2. As a separate and independent obligation, the Directors hereby jointly and severally undertake to keep us indemnified against all losses, interest and other monies payable pursuant to these Terms and all losses, costs, charges and expenses whatsoever which we may incur by reason of any default or repudiation on the part of the Customer.
3. In the event that any new Director is appointed to the Company after the signing of these Terms, the Company must notify us of the appointment of that Director and procure the Director to sign these Terms as guarantor.
4. This guarantee will be a continuing guarantee to us for or on account of the Customer and shall not be affected by: any neglect or forbearance on the part of us in enforcing payment of any of the moneys payable pursuant to these Terms or the performance or observance of any of the parties’ obligations; time being given to the Customer for any such payment, performance or observance; or by any other thing which under the law relating to sureties would but for this provision have the effect of releasing the Customer.
5. In the event that we receives any payment from the Customer or on the Customer’s behalf that reduces the amount the Customer owes to us, and any part of that payment is later declared to be void for any reason under law (including in the course of a liquidation), the amount that is guaranteed by the Directors will include that voided amount. Further, any discharge or partial discharge of the obligations of the Directors pursuant to this clause will be conditional upon no such declaration being made.
6. The Directors must not seek to recover any monies owing to us by the Customer until we have been paid in full for all amounts owing to us by the Customer. Further, the Directors shall not prove in the bankruptcy or winding up of the Customer for any amount while there are amounts owing that we have demanded from the Directors pursuant to this Guarantee and Indemnity.
7. This Guarantee and Indemnity and the agreements and obligations contained in this clause will be binding upon the Directors, their executors and administrators.

8. Warranties

1. The only conditions and warranties which are binding on us in respect of the state, quality or condition of the Products are those imposed and required to be binding by statute (including the Australian Consumer Law and the Competition and Consumer Act 2010 (Cth).
2. Except as expressly provided in these Terms or by statute, we will not be liable to you for any liability, (including liability in negligence) loss or damage of whatsoever nature, consequential or otherwise, howsoever suffered or incurred by you, caused by or resulting directly or indirectly from the Products or use of the Products.
3. In the event that you reasonably believe that any Products delivered by us are subject to a manufacturing defect, you must promptly notify us in writing and provide full details of the alleged defect.
4. Upon us (or the Product’s manufacturer) confirming that the goods are defective, then we shall either provide replacement Products to you or provide you with a refund.
5. No warranty claims may be made more than 12 months from the date of delivery of the relevant Products.

9. CONFIDENTIAL INFORMATION:

1. For the purposes of this clause 9, “confidential information” means all confidential information disclosed by that party to the other party or one of the other party’s representatives including, but not limited to:
   a. all pricing information;
   b. all trade secrets, confidential know how and information regarding its proposed business plan and any part of its business;
   c. all information regarding the Products;
   d. these Terms;
   e. information relating to either party’s financial position, assets and personnel;
   f. that part of all records (or any media) prepared by another party incorporating information referred to in clauses 9.1a – 9.1e or information derived from that information;
   g. all copies of information referred to in paragraphs referred to in clauses 9.1a – 9.1e.
2. Unless otherwise required by law, each party must:
   a. keep the confidential information confidential;
   b. use the confidential information solely for the purpose of these Terms;
   c. only disclose the confidential information to those parties who reasonably need to know of such information.
3. This clause 9 survives termination or cessation of these Terms but does not apply to:
   a. any information which is in the public domain at the time of disclosure by one party to the other party, otherwise than as a result of a breach of these Terms;
   b. any information which a party can prove was known to it at the time that information was disclosed to it by the other party, provided that the information was not obtained through a breach of confidence;
   c. any information which the parties are required to disclose by law.
4. The parties acknowledge and agree that the restrictions contained in this clause are reasonable and commercially necessary to give these Terms efficacy.

10. LIABILITIES AND INDEMNITIES:

1. You agree to be solely liable for all acts, matters and things done by you in the course of or as a result of your sale of the Products and, without limiting the generality of the foregoing, you will indemnify and keep us indemnified fully against such claims, liabilities, costs, expenses and damages unless such claims, liabilities, costs, expenses and/or damages have resulted in whole or in part from any act or failure to act by us or any employee or agent of ours or where such demands involve or result from any failure of the Products to comply with these Terms for any reason.
2. In the event of there being any demand by any third party against us or in the event of the us suffering or incurring any losses during the course of these Terms or as a result of any demand by any third party, then you agree to co-operate as may be reasonably required to defend or oppose any such demand notwithstanding that you may not receive a direct benefit from doing so provided only that there is no reasonable legal or other reason why such co-operation and assistance should not be given.

11. GST:

1. The parties agree that, unless otherwise stated, any consideration payable to us shall be exclusive of GST and you shall pay the amount of GST to us with the payment of the consideration.
2. To the extent that any moneys payable by you to us under an indemnity in this contract or for a breach of the Terms are regarded, for the purposes of the GST Law, as consideration (in whole or part) for a taxable supply made by us, you must pay an additional amount to us calculated by multiplying the prevailing GST rate by the consideration payable to us for the relevant supply.

12. MISCELLANEOUS:

1. A provision of these Terms which can, and is intended to, operate after the termination or expiry of these Terms remains effective.
2. You shall not be entitled to withhold or set off payment of any amount due to us under these Terms whether in respect of any claim of yours in respect of faulty or defective services or equipment, or for any other reason which is contested or liability for which is not admitted by us.
3. Any delay in or failure by us to insist upon strict performance of any term, warranty or condition of these Terms shall not be deemed a waiver thereof or of any rights we may have and no express waiver shall be deemed a waiver of any subsequent breach of any term, warranty or condition.
4. If any provision of these Terms does not comply with any law, then the provision must be read down so as to give it as much effect as possible. If it is not possible to give the provision any effect at all, then it must be treated as severable from the rest of these Terms. This approach is to be used equally where any court is construing these Terms and finds an invalid provision.
5. These Terms, along with each Product Order, constitute the entire agreement of the parties with respect to its subject matter and supersedes all prior agreements and understandings between the parties in connection with it and in connection with their relationship in respect to the subject matter of these Terms, whether written or verbal.
6. These Terms shall include all terms implied by operation of law.
7. We may update these Terms from time to time by writing to you. Where we update these Terms, the updated Terms will take effect for the next Product Order that you place with us.
8. The laws of the State of Victoria shall apply to these Terms and the parties submit to the exclusive jurisdiction of the courts of Victoria.