The Makers Club Terms of Use

TERMS FOR SUPPLY OF PRODUCTS

 

BETWEEN

 

J Tanner Pty Ltd (ABN: 28636914200) of 36 Stradbroke St, Biggera Water, Queensland, 4216 ("Supplier")

AND

The Makers Club Member ("The Makers Club Member”)

 

WHEREAS

(A)

The Supplier is a supplier of DIY Leather Craft Kits and Supplies

(B)

The Makers Club Member wishes to purchase products from the Supplier on the terms and

conditions contained in this Agreement.

AS AGREED

1. Interpretation

(a) In this Agreement the following words will have the meanings assigned to them in this

clause, except where inconsistent with the context.

"Agreement" means this agreement including any schedules or annexures and as varied

from time to time;

"The Makers Club Member's Ethics and Compliance Standards for Suppliers" set out

in Schedule 3:

"Business Day" means a standard business day in New South Wales, Australia;

"Commencement Date" means

"KPls" means the key performance indicators set out in Schedule 2;

"Order" means an order placed by The Makers Club Member with the Supplier for the

Products;

"Parties" means the parties to this Agreement and their respective successors and

permitted assigns, and Party means any one of them;

"Price" means the means the price list for the Products set out in Schedule 1: "Products"

means the products described in Schedule 1:

"Review Period" means three consecutive months; and

"Sustainability Activities" means the use or identification of products and/or services

which have a lower impact on the environment or support corporate social responsibility

while maintaining quality, functionality and cost competitiveness;

"Sustainability Report" means a report which sets out goals, targets and actions in

relation to Sustainability Activities which may include:

i) reducing hazardous materials in products and services;

ii) providing a safe workplace for employees;

iii) reducing waste; and

(iv)

promoting a diverse and inclusive workplace.

(b) In this Agreement, unless the context otherwise requires:

i) a reference to any document (including this Agreement) is to that document as

varied, novated, ratified or replaced from time to time:

ii) words in the sinqular include the plural and vice versa and words in one gender

include any other gender;

iii) a reference to a statute or to any statutory provision includes any statutory

modification or re-enactment of it or any statutory provision substituted for it, and all

ordinances, by-laws, regulations, rules and statutory (however described) issued

under it;

(iv) a reference to any party includes its successors in title and permitted assigns, a

reference to a "person" includes any individual firm, body corporate, association or

partnership, government or state (whether having a separate legal personality), and

a reference to a clause is to a clause of this Agreement;

v) the heading of clauses is for convenience only and will not affect the interpretation

of this Agreement;

vi) any undertaking under this Agreement not to do any act or thing will be deemed to

include an undertaking not to permit or suffer the doing of that act or things;

vii) a reference to "$" or "dollar" is to the lawful currency of Australia; and

(viii) the word "includes" in any form is not a word of limitation

 

2. Term of Agreement

(a)

The Agreement commences on the Commencement Date and, unless extended or

terminated earlier in the manner set out in this Agreement will continue for a period of

twelve (12) months (Initial Term).

(b)

The Makers Club Member may at its sole discretion renew this Agreement for a further

twelve (12) month term by providing the Supplier with notification in writing no later than

thirty (30) days prior to the expiry of the Initial Term.

(c)

If the Agreement is renewed for an extended term, with the exception of the Price which

may be the subject of further neqotiation between the parties, the terms and conditions of

this Agreement apply to any extended term.

 

3. Placement of Orders and Supply of Products

(a) The Makers Club Member may from time to time place Orders with the Supplier setting out

the requirements for the Order, including the date for delivery and the delivery address.

b) Following receipt of each Order, the Supplier will:

i) supply the Orders;

ii) abide by all laws, rules and regulations that apply the performance of its obligations

under this Agreement;

iii) use all reasonable skill and diligence in accordance with best industry practices;

and

(iv) comply with all of The Makers Club Member's relevant policies in performing its

obligations under this Agreement, including but not limited to, The Makers Club

Member's Ethics and Compliance Standards for Suppliers, a copy of which is

attached as Schedule 3 to this Agreement.

c) The Makers Club Member is under no obligation or requirement to place Orders for any

minimum quantity of Product during the term of the Agreement.

 

4. Risk and delivery

(a) Title to and risk in the Products will pass to The Makers Club Member only after The Makers Club Member has received delivery of the Products.

b) Products purchased are subject to The Makers Club Member's reasonable inspection,

testing, and approval at the delivery point nominated in an Order.

c) The Makers Club Member may reject the Products, even after they have been accepted, if

they are defective or are not in accordance with The Makers Club Member's specifications

or do not meet the requirements under the Order ("Rejected Products")

Rejected Products will be held entirely at the risk of the Supplier:

i) Rejected Products must be removed by and at the expense of the Supplier within

five (5) Business Days of the Supplier being notified of the rejection; and

ii) If the Supplier fails to remove the Products in the relevant time frame, then The

Makers Club Member may do so at the Supplier's cost.

(e) As soon as the Supplier is aware that it will be unable to fulfil an Order or meet the delivery

date set out in an Order, the Supplier must notify The Makers Club Member in writing of

the date that it will be able to fulfil the Order or deliver the Order for the Product. Except

where the delay in delivery is caused or contributed to by The Makers Club Member, if the

new date for delivery is unacceptable to The Makers Club Member, The Makers Club

Member may in its sole discretion:

i) terminate the Order: or

ii) purchase the Product in substitution for the Order from an alternate supplier and

any reasonable expense incurred by The Makers Club Member in the acquisition of such alternative Product which is more than the Price payable under this

Agreement for such Product will be payable by the Supplier.

(f) The Makers Club Member will not be liable to the Supplier for any cost, loss or expense

incurred by the Supplier due to The Makers Club Member exercising its rights under

clause 4 (e).

 

5. Price and Payment

a) The Supplier must provide The Makers Club Member with a valid tax invoice for each

Order detailing the Products supplied, the Price and the GST component in accordance

with clause 6.

b) Following acceptance of the Order, The Makers Club Member will pay the Supplier within

thirty (30) days from the date it receives a valid tax invoice.

c) The Makers Club Member will notify the Supplier if there is an error in the tax invoice, or if

it disputes some of the charges. Notwithstanding this, The Makers Club Member may

withhold payment of any disputed portion of the invoice pending resolution of the dispute

but remains obligated to pay the remaining balance of the tax invoice on time in

accordance with clause 5 (b).

d) The Makers Club Member is entitled to set off any amount the Supplier owes The Makers

Club Member under this

e) The Price must remain fixed and firm and no variation increasing the Prices will be

accepted during the Initial Term of this Agreement or any extended term without the prior

written approval of The Makers Club Member.

f) Notwithstanding clause 5 (e) The Makers Club Member may, at its discretion, at any time

during this Agreement, conduct benchmarking exercises to compare the Prices the

Supplier has been charging, with other suppliers who supply similar Products during a

similar period. The Supplier must provide The Makers Club Member with all reasonable

assistance with regard to the benchmarking exercise. Where the benchmarking exercise

demonstrates that the Supplier's Prices under this Agreement is not competitive, The

Supplier and The Makers Club Member will agree to vary the prices to reflect a competitive

position.

g) All other costs, charges, fees and expenses for or arising out of or in connection with the

supply of Products under this Agreement must be paid by the Supplier, including all costs

involved in the packaging, handling, storage insurances and any other expenses unless

otherwise stated and mutually agreed. The cost of freight and delivery is included in the

Price

 

6. GST

(a) Terms used in this clause 6 have the same meaning as those terms in A New Tax System

(Goods and Services Tax) Act 1999 (CT)

(b) If the supply of Products under this Agreement is subject to GST, The Makers Club

Member must pay the Supplier the price plus an amount equal to the GST payable on the

supply (unless the price is expressly stated as being inclusive of GST).

(c) The Makers Club Member must pay the additional amount payable under clause 6 (b) on

the same date as the price is payable provided that no payment is required under this

clause or clause 6 (b) until the Supplier has issued The Makers Club Member with a tax

invoice in respect of the relevant supply.

(d) The Supplier must issue a tax invoice in the format required by The Makers Club Member

and the law to The Makers Club Member for the supply. The tax invoice must set out the amount of the GST payable by The Makers Club Member.

(e) The Supplier warrants that it is registered with an Australian Business Number and for

GST purposes at each time a taxable supply is made.

(f) The Supplier indemnifies The Makers Club Member for any loss it suffers because of the

Supplier not being registered for GST and/or Australian Business Number purposes. On

request by The Makers Club Member the Supplier must produce evidence that it is so

registered.

 

7. Warranty

(a) The Supplier warrants that all Products supplied to The Makers Club Member:

i) are new:

ii) are of merchantable quality;

iii) are free from defects;

iv) are fit for their intended purpose:

v) are of good material and workmanship;

vi) in quality and in manufacturing process, comply with all relevant standards adopted

by such bodies as the Australian Standards Association and with any requirements

of the Commonwealth, State or Territory and local government authorities;

vii) have been manufactured in accordance with cGMP:

vii) meet the needs of The Makers Club Member as set out in The Makers Club

Member's tender for the provision of

(b) The Supplier warrants that it has clear title to the Products and that the Products are

delivered free of liens or encumbrances.

(c) The Supplier's Products come with guarantees that cannot be excluded under the

Australian Consumer Law. You are also entitled to have the goods repaired or replaced if

(d) the goods fail to be of acceptable quality and the failure does not amount to a maior failure

The Supplier warrants that it and its employees will comply with The Makers Club

Member's Ethics and Compliance Standards for Suppliers, site safety and security rules, and any other rules that may be provided by The Makers Club Member from time to time, as appropriate.

(e) The warranties in this Agreement and other warranties as may be prescribed by law will

extend to The Makers Club Member, its successors and assigns and will run through to

any expiration date on the Products, or if no expiration date is stated, then for a period of

twelve (12) months after delivery of the Products to The Makers Club Member.

 

8. Insurance policies

(a) The Supplier must effect and maintain appropriate and adequate insurance for:

i) public and product liability which must be drawn in terms acceptable to

ii) The Makers Club Member, covering a sum of not less than $10 million for each

insured event:

iii) loss or destruction (at full replacement cost) of the Product relating to this

Agreement and retained in the Supplier's possession, or whilst in transit;

iv) workers compensation in respect of its employees engaged in performing its

obligations under this Agreement to cover its potential liability at common law and

pursuant to all applicable workers compensation legislation or regulations in each

State/Territory; and

iv) any other insurance required by law or reasonably required by The Makers Club

Member.

(b) The Supplier must provide to The Makers Club Member a copy of a certificate of currency

in respect of any of the above insurances within 7 days of a request by The Makers Club

Member.

9. Indemnity

(a) The Supplier indemnifies and releases The Makers Club Member against any claims, loss,

damage, cost (including legal costs), expense or liability arising out of:

i) any breach of any warranty or obligation under this Agreement;

ii) any wilful or negligent act or omission of the Supplier or any of its officers,

employees or, agents in relation to the performance of its obligations under this

Agreement; and

iii) any breach of any third party's rights, including in respect of any claim that the

Product infringe, or their importation infringes the patent, copyright, design right,

trade mark or other intellectual property rights of any other person anywhere in the

world, except, to the extent caused or contributed to by any negligent act or

omission of The Makers Club Member, its officers, employees and agents.

 

10. Confidential Information

(a) Neither Party will use information contained in this Agreement, exchanged in prior

negotiations or any tender process for any purpose not contemplated by this Agreement.

Each Party must, and must ensure that its employees, agents and subcontractors who

need such access to perform their duties, receive this information under obligations of

confidentiality.

(b) Clause 10 (a) does not apply to the extent that.

i) either Party is required by law to disclose the information;

ii) the information is public knowledge (and has not become public knowledge

because of either party's breach of confidentiality); or

iii) the information was independently created by a Party (and that Party has evidence

in writing that the information falls within this exception).

 

11. KPIs and reporting

With agreement from The Makers Club Member, The Supplier may request Key Performance Indicators and reporting on (but not limited to) sales, customer demographics, feedback, and trends.

 

12. Relationship

The Parties are independent contracting parties, and nothing in this Agreement will make any

Party the employee, partner, agent, legal representative, trust or joint venture of the other for any

purpose whatsoever, nor does it grant either Party any authority to assume or to create any

obligation on behalf of or in the name of the other.

 

13. Assignment

The Makers Club Member may assign this Agreement or any of its rights or obligations under this

Agreement without the prior written consent of the other party. For this clause, assignment will

include any assignment by operation of law and change in control of a party.

 

14. Dispute resolution

(a) If any dispute or difference arises between the Parties as to:

i) either Party being unable to pay its debts as they fall due, become insolvent, a

receiver is appointed or enters a formal arrangement with creditors; or

ii) either Party committing any fundamental breach of the terms of this Agreement or

any other breach where the breach is not capable of being remedied;

and the dispute or difference ("Issue") is unable to be resolved by the Parties by

negotiation within ten (10) Business Days from the date one Party receives notice in

writing from the other Party giving details of the Issue then either Party may require that

the Issue is referred to mediation.

(b) The costs incidental to mediation, including but not limited to mediation fees and venue

fees will be divided equally between the Parties. Notwithstanding this, each Party will bear

its own legal costs incidental to the mediation, including costs between solicitor and The

Makers Club Member and costs of any experts a Party may elect to engage.

(c) Nothing in this clause 14 will prevent a Party from seeking interlocutory relief from a court

of appropriate jurisdiction.

 

15. Costs

Each party will bear their own respective legal costs (as between solicitor and The Makers Club

Member) of and incidental to the negotiation, any variation and execution of this Agreement, and

the enforcement or attempted enforcement of respective rights, remedies and powers under this

Agreement, including referral of any Issue under this Agreement to mediation.

 

16. Termination

(a) The Makers Club Member may terminate this Agreement without cause with 90 days'

written notice.

(b) The Makers Club Member may terminate this Agreement immediately with written notice to

the Supplier if:

i) the Supplier commits a fundamental breach of any of its obligations under this

Agreement, and such breach is not remedied (if capable of remedy) within seven

(7) days of notice in writing from The Makers Club Member requiring that such

breach be remedied;

ii) the Supplier is in breach of any of its obligations under this Agreement, which

breach is not a fundamental breach and such breach is capable of being remedied

and has not been remedied within thirty (30) days of notice in writing from The

Makers Club Member requiring that such breach be remedied;

iii) for any reason the Supplier is no longer able to perform its obligations under this

Agreement;

iv) the Supplier becomes insolvent or goes into administration, receivership or

liquidation or enters into any arrangement or composition with its creditors or any

action is taken for the appointment of an administrator or official manager or

receiver of the assets of the Supplier; or

v) the Supplier ceases or threatens to cease carrying on business.

(c) The Supplier may terminate this Agreement on immediately on written notice to The

Makers Club Member if:

i) The Supplier deems The Makers Club Member is no longer a good fit for the J Tanner Brand, whereby continuation of supply to The Makers Club Member could result in loss in customer confidence, sales, or reputation

ii) The Makers Club Member sells competing products from other suppliers or their own supply chain

iii) The Makers Club Member fails to pay or dispute any tax invoice in accordance with

clause 5 and:

iv) fails to remedy such breach within sixty (60) days of a notice from the Supplier

requiring The Makers Club Member to remedy the same and stipulating that The

Makers Club Member is in breach of this Agreement; or

v) The Makers Club Member becomes insolvent or goes into administration,

receivership or liquidation or enters into any arrangement or composition with its

creditors or any action is taken for the appointment of an administrator or official

manager or receiver of the assets of The Makers Club Member.

vi) Any other reason The Supplier deems fit

(d) Termination of this Agreement is without prejudice to any accrued rights of either party as

at the date of termination.

(e) Upon termination of this Agreement for any reason whatsoever, The Supplier must

Immediately return all of The Makers Club Member's property.

(f) Upon termination of this Agreement for any reason whatsoever, The Makers Club Member must cease selling any product designed by The Supplier. All remaining DIY Kits or other inventory The Makers Club Member has on hand that is in original condition can be repurchased by The Supplier.

 

17. Entire Agreement 

This Agreement constitutes the entire agreement between the Parties concerning the subject

matter of this Agreement and supersedes all prior negotiations, arrangements, agreements and

understandings, either oral or written, between the Parties.

 

18. Variation

This Agreement may be modified only in writing, signed by the authorized signatories of each

Party.

 

19. Governing Law and Jurisdiction

This Agreement is governed by the laws of the State of Queensland and the Commonwealth of

Australia. Each Party submits to the exclusive jurisdiction of the courts of Queensland.

 

20. Partial Invalidity

In the event of the invalidity of any part or provision of this Agreement such invalidity must not

affect the enforceability of any other part or provision of this Agreement.

 

21. Survival

Clauses 7 (Warranty), 8 (Insurance policies), 9 (Indemnity), 10 (Confidential Information), 14

Dispute Resolution, 24 (Notices) and clause 21 (Survival) survive the expiration and termination

of this Agreement.

 

22. Waiver

A Party's failure to exercise or delay in exercising a right or power does not operate as a waiver

of that right or power and does not preclude the future exercise of that right or power.

 

23. Counterparts

This Agreement may be executed in counterparts.

 

24. Notices

(a) Notices must be in writing. A notice may be delivered to a party by hand, by pre-paid

ordinary post, or by facsimile to that party's address shown in this Agreement or to the

alternate address notified to the party giving the notice.

A notice will be taken to be duly given and received:

i) if delivered by hand, when delivered;

ii) if delivered by pre-paid ordinary post, on the second business day after posting;

and

iii) if delivered by facsimile, upon completion of transmission and receipt by the sender

of the appropriate transmission report.