Terms and Conditions

NEW BALANCE AUSTRALIA PTY LTD - TERMS OF TRADE
Application of Terms
1. These Terms, together with the Trading Term Agreement Schedule (if any), set out the
contractual basis upon which we agree to supply you with Goods and Services and apply to
each and every Contract between us and you for the supply of Goods and Services.
2. Any terms or conditions included in, attached to, or referenced in your Order, or any other
document provided by you deviating from, or inconsistent with, these Terms, are expressly
rejected by us and will not vary or supplement these Terms.
3. Where:
(a) you are a member of a Buying Group;
(b) an Order is placed by the Buying Group at your request or direction; and
(c) the Goods are delivered to you directly,
then these Terms will be enforceable against you directly (notwithstanding that the Buying
Group is obliged to pay us for the Goods delivered).
4. Each supply which we make following our acceptance of an Order will be regarded as a
separate Contract, which is subject to these Terms.
Sourcing and distribution
5. You undertake to not source New Balance products other than from us.
6. Our Goods may only be sold by you to consumers. Sales to, or purchases from, any other
retailer or wholesaler are strictly prohibited.
7. You must not:
(a) sell, offer to sell, or purchase counterfeit New Balance products;
(b) engage in any conduct that is misleading or deceptive (or likely to mislead or deceive) or
otherwise illegal; or
(c) on-sell or supply our Goods to, or purchase our Goods from, non-approved suppliers.
8. You acknowledge and agree that you must only sell Goods supplied by us from store locations
that have been pre-approved by us.
9. The Parties acknowledge and agree that clauses 5 to 8 are essential terms and are reasonably
necessary to protect our legitimate interests.
No obligation to supply
10. We reserve the right to refuse to accept any Order, whether on credit (even if you have not
exceeded your credit limit) or on payment before delivery terms, without having to provide
reasons to you for doing so.
Suspension of and changes to credit facility
11. We may, without prejudice to any other rights which may be conferred upon us by law or equity,
suspend your credit facility if you fail to make payment of any monies due to us by the due date
for payment or for any other reason in our sole discretion.
12. We may increase or decrease your account credit limit by written notice to you effective
immediately.
13. If:
(a) we decrease your credit limit by giving notice pursuant to clause 12; and
(b) your credit facility would fall into default as a consequence by reason of that notice,
then we will not treat this as an event of default.
14. Where:
(a) any person(s) controls (within the meaning of Section 910B of the Corporations Act 2001
(Cth)) the Customer and any other New Balance customer, or there is at least one director
common to such parties (“Related Accounts”); and
(b) any of the Related Accounts fail to observe these Terms,
then, without prejudice to any other rights which may be conferred upon us by law or equity,
we shall be at liberty to:
(c) suspend your credit facility (and the credit facilities of any Related Accounts); and/or
(d) terminate any Contract of which these Terms form part pursuant to clause 130.
15. We reserve the right to close your credit account without notice to you if you do not use your
credit facility for a period of twelve (12) months.
Liability for purchases
16. You are liable for all purchases made through the use of your credit facility. We are not
responsible for confirming the authority of persons using your account. You are solely
responsible for ensuring there is no unauthorised use of your account.
Minimum spend
17. Unless otherwise agreed in writing, you agree you will use your best endeavours to satisfy a
yearly (New Balance Accounting Months January to December) minimum spend of $25,000
(net of any discounts).
18. In the event you do not satisfy the yearly minimum spend contemplated by clause 17, we
reserve the right:
(a) to close your account upon the provision of forty-eight (48) hours’ notice to you; and
(b) to cancel any Orders or Contracts that will not be delivered within 90 days’ from the date
of closure.
Minimum Orders
19. Where an Order is below the minimum commercial value, we reserve the right to levy a freight
charge for each delivery. The minimum commercial value and freight charge will be advised by
us and may be varied from time to time without prior notice to you.
Formation of Contract
20. You may accept these Terms (and you will be deemed to accept these Terms) if you, following
receipt of a copy of these Terms:
(a) confirm your acceptance of these Terms; or
(b) place an Order with us.
21. We reserve the right to not accept your Order, without having to provide reasons to you
for doing so. For clarity, nothing in these Terms obliges us to accept any Order to supply you
with any Goods or perform any Services at any time.
22. Any Order placed by you will be construed as an offer. A binding Contract will only come into
existence, if:
(a) we communicate our acceptance of your Order, whether in writing or by electronic means;
or
(b) we supply you with any Goods or perform any Services following receipt of your Order.
23. For clarity, a Contract is formed at the location where your Order is placed.
Price
24. The Price payable for the Goods or Services will be in accordance with our then prevailing
price list (as notified by us to you from time to time), as applicable as at the date of your Order.
Payment terms
25. Goods invoiced between the 1st and 19th of the month for Goods supplied on credit will be
charged as current month and are due for payment no later than the 25th day of the month
following the invoice date or such date as is otherwise agreed in writing.
26. Goods invoiced between the 20th and the 31st of the month for Goods supplied on credit will be
forward charged and are due for payment no later than the 25th day of the second month
following the invoice date or such date as is otherwise agreed in writing.
27. Payment of invoices billed on a current month statement is due for payment no later than the
25th of the month following the current statement month or such date as is otherwise agreed in
writing. If the 25th of the month falls on a day that is not a Business Day, payment is due on the
last Business Day prior.
28. For payment before delivery sales, full payment in the form of cleared funds must be received
and verified by us prior to delivery being made. We reserve the right to supply Goods on a
payment before delivery basis and not offer credit (irrespective of whether credit has previously
been provided to you).
29. Payment may be made by EFT (Electronic Funds Transfer), VISA, MasterCard and AMEX
credit cards. We reserve the right to change the payment methods that we accept at any time.
30. You acknowledge that we will be at liberty to charge a payment surcharge for applicable
transactions equal to our reasonable cost of acceptance.
31. We reserve the right to require payment of a deposit. The amount of the deposit will be advised
by us and will immediately become due and payable upon the formation of a Contract in
accordance with clause 22, unless otherwise agreed in writing. For clarity, where we require payment of a deposit, we are under no obligation to procure or supply Goods or Services until
the deposit has been received by us in cleared funds.
32. If GST is imposed on a Taxable Supply made by us to you under any Contract of which these
Terms form part, the price of the Taxable Supply will be equal to the GST-exclusive
consideration that you must pay to us for the Taxable Supply under the Contract increased by
an amount (the “GST Amount”) equal to the amount of GST payable on that Taxable Supply.
The GST Amount is, subject to us issuing a Tax Invoice to you, payable at the same time and
in the same manner as the consideration to which it relates. If we become liable to pay any tax,
duty, excise, or levy in connection with any Contract of which these Terms form part, you must
pay us these additional amounts upon written demand.
33. Any sums owed to us by you will be made free of any set-off, or counterclaim, and without
deduction or withholding, unless agreed to otherwise in writing or as required by law.
34. We may set-off or deduct any amount we owe you from any amount you are liable to pay to
us.
Default
35. If you default in the payment of any money due to us pursuant to these Terms, then in addition
to any other rights which may be conferred upon us by law or equity, then we:
(a) will be entitled to charge you interest on such money at the rate of 10% per annum, which
interest will accrue and will be recoverable for each day (or part thereof), that the money
remains outstanding until payment is received by us in full;
(b) reserve the right to reverse or disallow any discounts offered by us in consideration for
you making payment by the due date for payment nominated by our Tax Invoice (which
shall become a debt immediately due and payable);
(c) require you to pay, in advance, for any Goods or Services (or any part of the Goods or
Services) which have not yet been supplied; and
(d) suspend or cease the supply of any further Goods or Services to you.
Variations
36. If you request or direct that any Goods or Services be supplied that are not strictly in
accordance with your Order, then such Goods or Services will constitute a variation.
37. A notice of variation must be submitted by you in writing and is only effective if accepted by us
in writing.
38. You understand and agree that:
(a) all variations must be agreed in writing prior to the Goods or Services that are the subject
of the variation being supplied; and
(b) all variations will be invoiced in accordance with our then prevailing price list.
Order cancellations
39. The following shall apply in relation to the cancellation of Orders:
(a) Orders may not be cancelled without our prior written approval.
(b) A request for cancellation will not be considered by us unless made in writing by you and
received by us not less than forty-five (45) days prior to the scheduled delivery date.
(c) We reserve the right to refuse any cancellation request.
(d) Unless otherwise agreed in writing, Special Make-Up Orders and Custom Goods Orders
may not be cancelled.
(e) If we accept the cancellation of an Order, you must pay all our reasonable costs
associated with fulfilment of your Order up to that time.
Delivery
40. We shall bear all freight costs of delivering the Goods where your place of business is situated
within a metropolitan area (as determined by us in our sole discretion) other than where clause
19 applies.
41. Where delivery is to be made to a non-metropolitan area (as determined by us in our sole
discretion) or where clause 19 applies, you will be liable for all costs associated with packaging
and delivery, including cartage/freight, handling, and other charges.
42. You must make all arrangements necessary to take delivery of the Goods whenever they are
tendered for delivery.
43. You acknowledge and accept that any period or date for delivery stated by us is intended as
an estimate only and is not a contractual commitment.
44. Delivery will be made within Normal Working Hours on Business Days, unless otherwise
agreed in writing.
45. Delivery is deemed to occur at the time:

(a) you, or any third party on your behalf, collect the Goods from us;
(b) the Goods are delivered to the delivery location specified in your Order (or to such other
location as otherwise agreed in writing); or
(c) your nominated carrier takes possession of the Goods, in which event the carrier will be
deemed to be your agent.
46. If requested by us, you or your duly authorised representative must sign our delivery docket as
confirmation that the Goods ordered by you have been received by you in apparent good order
and condition.
47. If delivery of the Goods is deferred:
(a) at your request; or
(b) due to you being unable to accept delivery of the Goods (for whatever reason),
when:
(c) (where no date for delivery has been specified by you) we are ready to deliver the Goods;
(d) (where a delivery date has been specified by you) the Goods are due to be delivered,
then we will be entitled to charge you, and you must pay to us:
(e) reasonable storage charges (which will accrue on a daily basis until such time as the
Goods are delivered); and
(f) a charge to re-deliver the Goods (where delivery has previously been attempted).
48. You acknowledge and accept that we may deliver Goods by instalments and reserve the right
to require payment for each separate instalment in accordance with these Terms.
49. You acknowledge and accept that you are not relieved from any obligation arising under these
Terms, or any Contract of which they form part, by reason of any delay in delivery, and delay
in delivery will not entitle you to rescind the Contract.
Risk
50. Risk of loss or damage to the Goods passes to you upon delivery to you or to your agent or to
a carrier commissioned by you in accordance with clause 45.
51. You must insure the Goods for their full replacement value on or before delivery against all
losses which may be sustained as a result of the loss, damage, or destruction of the Goods (or any part thereof) by accident, theft, fire, explosion, flood, negligence, and such other insurable
causes as may be available and must include us as co-insured.
52. If you request that Goods are to be delivered either to an unattended location, left outside your
premises, or left outside our premises for collection, you acknowledge that we may deliver the
Goods as requested at your sole risk.
Other claims
53. Short delivery claims (where Goods are short delivered within the cartons to the invoiced
quantity) must be fully documented quoting the respective New Balance Tax Invoice number
and forwarded to our Customer Service Department within fourteen (14) days from the date of
delivery.
54. Non-delivery claims (where a full or part consignment has not been delivered to the invoiced
quantity) must be fully documented quoting the respective New Balance Tax Invoice Number
and forwarded to our Customer Service Department within forty-five (45) days from the date of
invoice.
55. You must advise us of any claims relating to incorrect pricing relating to either the price, freight
or administration charges within forty-five (45) days from the date of invoice.
56. All claims will be subject to investigation before a decision is made and any rejections by us
will be communicated to you.
57. Goods cannot be returned to us without our prior written authorisation. In order to obtain our
authorisation, you must obtain a New Balance Return Authorisation Number (“RA Number”)
by contacting our customer service department on (03) 9582 5555. We will provide an RA
Number to accept the return of any Goods if:
(a) the Goods supplied do not conform with the contract for supply
(b) the Goods are defective; or
(c) we are required by law to accept the return of the Goods,
except where we may have provided you with a sufficient allowance or credit in respect of such
Goods.
58. Where we have authorised a return of Goods, no claim for the same shall be considered unless:
(a) the Goods are returned in good order and condition (subject to any faults or defects in
the Goods);
(b) all price stickers, security devices, and non-New Balance labelling must be removed; and
(c) the Goods are accompanied by documentation showing:
(i) the Customer’s name, address, and account number/code;
(ii) the relevant invoice number;
(iii) the reason for the return; and
(iv) our RA Number, and/or
(d) where we may otherwise agree (in our absolute discretion) not to require the return of the
Goods.
59. Goods that have been specifically procured or produced at your request cannot be returned in
any circumstances other than as required under clause 57.
60. All authorised returned Goods will be inspected by us or our authorised agent before any claim
will be considered. Acceptance of the returned Goods does not constitute our acceptance of
any claim.
61. Goods to be returned to us must be unsoiled, undamaged, packed and wrapped appropriately,
and must include all original packaging and documentation.
62. Goods to be returned to us must be returned by a nominated carrier of ours, otherwise you
shall be liable to pay all freight costs.
63. We accept no liability for any damage that occurs to any Goods in return transit and the Goods
shall be at your sole risk until they are returned to us.
64. If you do not provide us with invoice details, we reserve the right to raise credits at the lowest
invoiced prices.
E-commerce
65. Any internet sales and online marketing conducted by you must only be conducted from the
website and domain name nominated by you and approved by us.
66. Your website must:
(a) be designed to a standard that we consider appropriately professional;
(b) prominently state that New Balance and the relevant New Balance trade marks are our
sole property and may not be used without our prior written approval;
(c) prominently state that you are an independent retailer and that your website is not owned
or operated by us;
(d) include complete, up-to-date, legally compliant customer service policies, including
shipping and returns policies, contact information, warranty information and terms and
conditions of sale;
(e) be hosted with a business grade hosting provider with a written service level agreement
providing at least 99.9% uptime;
(f) provide shopping cart, checkout, and payment processing functionality that is secure and
CISP/PCI compliant;
(g) express all prices in Australian dollars;
(h) include a privacy policy; and
(i) not contain any of our trade marks, brand names, model/style names or model/style
numbers in its URL.
67. All marketing that you conduct online or in connection with your website must be generally
targeted to consumers in Australia.
68. You will do all things reasonably necessary to ensure that your online advertising is not
displayed to consumers outside of Australia.
69. If you are a ‘brick and mortar’ retailer, you must ensure that any in-store promotions are offered
on your website and vice versa.
70. You must not knowingly sell or ship our Goods to consumers located outside of Australia,
whether directly or indirectly. You must refer to us all enquiries and orders you receive from
consumers located outside of Australia.
71. You must:
(a) list a telephone contact number on your website and be contactable on that number
during business hours;
(b) if you are not a ‘brick and mortar’ retailer, the telephone number that you list must be a
national toll free number;
(c) respond to consumer enquiries received online or electronically within one (1) business
day of receipt;
(d) provide consumers with electronic confirmation of online orders within one (1) business
day of receipt;
(e) process all online orders within one (1) business day of receipt; and
(f) not charge a consumer’s credit card until their order has been shipped.
72. All Goods offered for sale on your website must be displayed:
(a) in a manner that is clear, professional, and searchable;
(b) with comprehensive product information in accordance with our then current catalogues
and publications; and
(c) using only Approved Materials.
73. You must:
(a) regularly update your website to ensure that new styles and Goods are listed and to
remove discontinued Goods;
(b) maintain adequate inventory of our Goods listed on your website to ensure orders can be
fulfilled and to minimise out-of-stock merchandise; and
(c) not offer for sale or take orders for any of our Goods that are not held and fulfilled from
your own warehouse.
74. You may only use Approved Materials for the purpose of promoting our Goods on your website.
75. Your use of Approved Materials must comply with New Balance Trade Mark and Branding
Policy Manual (as amended or replaced from time to time).
76. You must not:
(a) make any changes to Approved Materials without our prior written and fully informed
consent; or
(b) use Approved Materials in a manner that is likely to expose us to the risk of legal liability
(civil or criminal).
77. We may make changes to Approved Materials at any time and you must comply with any
direction we give you in relation to the use or discontinuance of use of Approved Materials
78. You must have an online privacy policy which complies with the Privacy Act.
79. You must:
(a) comply with our reasonable directions given by us;
(b) act lawfully, honestly, and professionally;
(c) act ethically and in a manner that does not bring us, our Personnel, or our Goods into
disrepute;
(d) not sell or offer for sale our Goods on any third party website, including any third party
shopping, auction, or catalogue website;
(e) comply with all applicable laws, regulations and industry codes of practice;
(f) maintain a sound credit standing with us and our affiliates to our absolute satisfaction;
(g) meet minimum sales levels as advised by us;
(h) comply with any of our Published Policies which we have the right to amend and update
from time to time; and
(i) cooperate and do all things reasonably required by us to investigate any complaint or
breach or potential breach of this agreement, a Published Policy or any applicable law,
regulation, or industry code of practice.
80. We may conduct remote and onsite audits and inspections of your website and e-commerce
operations to verify compliance with these Terms. You must provide us with all reasonable
assistance and cooperation, including any data and information we may reasonably request.
81. If we request it, you must provide us with regular reports of your website key performance
indicators, including total visitors, total visits, total orders, total net sales revenue, orders and
other statistical and analytics information that we reasonably specify.
82. We may revoke our authorisation for you to sell our Goods via the internet:
(a) immediately where:
(i) you suffer an Insolvency Event; or
(ii) you commit a material or persistent breach of these Terms and do not remedy the
breach within seven (7) days of receipt of a notice identifying the breach and
requiring its remedy,
(b) otherwise, on thirty (30) days’ written notice.
Retention of title
83. Until such time as you have made payment in full for any Goods supplied by us, and until such
time as you have made payment in full of all other money owed to us by you (whether in respect
of money payable under a specific Contract or on any other account whatsoever):
(a) title in the Goods does not pass to you;
(b) you agree that property and title in the Goods will not pass to you and we retain the legal
and equitable title in those Goods supplied and not yet sold;
(c) you will hold the Goods in a fiduciary capacity for us and agree to store the Goods in such
a manner that they can be identified as our property, and will not mix the Goods with other
similar goods; and
(d) you will be entitled to sell the Goods in the ordinary course of your business but will sell
as agent and bailee for us and the proceeds of sale of the Goods will be held by you on
trust for us absolutely.
84. Your liability to us will not be discharged by the operation of clause 83(d) (but your levels of
indebtedness will be reduced by the extent of the funds so remitted to us).
85. You agree that whilst property and title in the Goods remains with us, we have the right, with
prior notice to you, to enter upon any premises occupied by you (or any receiver, receiver and
manager, administrator, liquidator, or trustee in bankruptcy of yours) to inspect our Goods and,
when payment is overdue, to immediately enter the premises (as your invitee) to repossess
the Goods which may be in your possession, custody, or control when payment is overdue.
86. You will be responsible for our reasonable costs and expenses (including reasonable legal
costs, on a full indemnity basis) in exercising our rights under clause 85 where you are
otherwise in default of these Terms. Where we exercise any power to enter the premises, that
entry will not give rise to any action of trespass or similar action on your part against us, or our
employees, servants, or agents.
87. You agree that where the Goods have been retaken into our possession, we have the absolute
right to sell or deal with the Goods, and if necessary, sell any Goods bearing your name or
trademark, and you hereby grant us an irrevocable licence to us to do all things necessary to
sell such Goods.
88. For the avoidance of doubt, our interest constitutes a ‘purchase money security interest’
pursuant to the PPSA.
Personal Property Securities Act
89. You acknowledge that by assenting to these Terms, which constitutes a security agreement
for the purposes of the PPSA, you grant us a security interest in all Goods (and their proceeds)
now or in the future supplied by us to you (or to your account).
90. You undertake to do anything that is required by us:
(a) so that we can acquire and maintain one or more perfected security interests under the
PPSA in respect of the Goods (and their proceeds);
(b) to register a financing statement or financing change statement; and
(c) to ensure that our security position, and rights and obligations, are not adversely affected
by the PPSA.
91. Unless you have obtained our prior written consent, you undertake not to:
(a) register a financing change statement in respect of a security interest contemplated or
constituted by these Terms; and
(b) create or purport to create any security interest in the Goods, nor register, or permit to be
registered, a financing statement or a financing change statement in relation to the Goods
in favour of a third party.
92. You:
(a) waive your right under section 157 of the PPSA to receive a copy of the verification
statement relating to a security interest contemplated or constituted by these Terms;
(b) agree that to the extent permitted by the PPSA, the following provisions of the PPSA will
not apply and are contracted out of: section 95 (to the extent that it requires the secured
party to give notices to the grantor); section 96; section 118 (to the extent that it allows a
secured party to give notices to the grantor); section 121(4); section 125; section 130;
section 132(3)(d); section 132(4); section 135; section 142 and section 143; and
(c) agree that the following provisions of the PPSA will not apply and you will have no rights
under them: section 127; section 129(2) and (3); section 130(1); section 132; section
134(2); section 135; section 136(3), (4) and (5) and section 137.
93. You agree that you will, if requested by us, sign any documents, provide any information, or do
anything else we request, to ensure that any security interest contemplated or constituted by
these Terms is, to the fullest extent possible under the PPSA, perfected in accordance with
Part 2.2 of the PPSA.
94. Notwithstanding section 275 of the PPSA, the Parties agree to keep confidential all information
of the kind referred to in section 275 of the PPSA, unless compelled by law to disclose such
information.
95. You irrevocably grant to us the right to enter upon your property or premises, with notice, and
without being in any way liable to you or to any third party, if we have cause to exercise any of
our rights under sections 123 or 128 of the PPSA, and you will be liable for and indemnify us
from and against any claims made by any third party as a result of such exercise.
96. You will be responsible for our costs and expenses (including legal costs, on a full indemnity
basis) in exercising our rights under clause 95 where you are otherwise in default of these
Terms or any Contract of which these Terms form part. Where we exercise any power to enter
the premises, that entry will not give rise to any action of trespass or similar action on your part
against us, or our employees, servants, or agents.
97. You agree to accept service of any document required to be served, including any notice in
connection with these Terms or the PPSA or any originating process, by prepaid post at any
address nominated by you in writing or any other address later notified to us by you or your
authorised representative.
98. You further agree that where we have rights in addition to those under part 4 of the PPSA,
those rights will continue to apply.
Charge over your real and personal property
99. As security for the sums you owe, or may owe, us, you charge in our favour all of your estate
and interest in:
(a) any real property (i.e any house or land);and
(b) personal property (i.e. any other assets including for example and without limitation, any
plant, equipment, vehicles, personal effects, and household items),
whether:
(c) such property is held in your own right or in your capacity as trustee;
(d) you own the property at present or later acquire it; and
(e) wherever it is situated.
100. As security for the payment of the amount of your indebtedness to us from time to time, you
irrevocably appoint as your duly constituted attorney our company secretary from time to time
to execute in your name and as your act and deed any real property mortgage, bill of sale or
consent to any caveat we may choose to lodge against real property that you may own in any
Land Titles Office in any state or territory of Australia (even though you may not have defaulted
in carrying out your obligations hereunder) upon written notice and demand to you (in the event
that there is no default by you in carrying out its obligations hereunder).
101. Where you have previously entered into an agreement with us by which you have granted a
charge, mortgage, or other security interest (including a security interest as defined in the
PPSA) over or in respect of real or personal property, those charges, mortgages, or other
security interests and the terms which directly or indirectly create rights, powers, or obligations
in respect thereto will continue and co-exist with the obligations and security interests
contemplated or constituted by these Terms and will secure all of your indebtedness and
obligations hereunder. We may, at our election and upon the provision of written notice, vary
the terms of such previous charges, mortgages, or other securities to reflect the terms herein.
102. You acknowledge that:
(a) you have read and understood clauses 99 to 102 (inclusive); and
(b) clauses 99 to 102 (inclusive) are necessary to protect our legitimate interests including
having regard to:
(i) the risk that retention of title and personal guarantees (if applicable) may not in
substance, provide adequate protection to us;
(ii) the terms of any credit we may approve under these Terms are given on the basis
that clauses 99 to 102 (inclusive) would apply, and if that were not the case, we
would not have given the same credit terms; and
(iii) the risk of your insolvency given the nature of the industry in which you and we
operate.
Nature of relationship
103. We will perform our obligations as an independent contractor. Nothing in these Terms, or any
Contract of which they form part, is to be construed as creating a relationship of agency, joint
venture, or partnership.
Provision of further information
104. You undertake to comply with any reasonable written requests made by us from time to time
to provide us with further documents and information we may require for the purpose of
assessing your creditworthiness, including financial statements (which may be required by our
insurer to assess our limit endorsement application).
105. If you are a corporation (with the exception of a public listed company), you must give us not
less than fourteen (14) days’ prior written notice of any change to your company name or any
alteration to your corporate structure (for example, by changing directors, shareholders, or your
constitution). In the case of a change of directors or shareholders, we may ask for your directors
to sign a guarantee and indemnity.
106. If you are a partnership, you must not alter your partnership (for example, adding or removing
partners or altering its partnership agreement) without notifying us in writing.
Trustees
107. If you are the trustee of a trust (whether disclosed to us or not), you warrant to us that:
(a) you enter into any Contract of which these Terms form part in both your capacity as
trustee and in your personal capacity;
(b) you have the right to be reasonably indemnified out of trust assets;
(c) you have the power under the trust deed to assent to these Terms; and
(d) you will not retire as trustee of the trust or appoint any new or additional trustee without
advising us and having the new or additional trustee sign an agreement on substantially
the same terms as these Terms.
108. You must give us a copy of the trust deed upon request.
Insolvency
109. If you become insolvent, to the extent permitted by law, you remain liable under these Terms
for payment of all liabilities incurred hereunder. You remain liable under these Terms even if
we receive a dividend or payment as a result of you being insolvent.
Costs
110. You are responsible for your own legal, accounting, and business costs in connection with the
execution of this credit agreement. You must also pay for all stamp duty and other taxes
payable on this credit agreement (if any).
Application of payments
111. Subject to clauses 112 and 113, payments by, or on behalf of you will be applied by us as
follows.
(a) Firstly, in payment of any and all collection costs and legal costs in accordance with
clauses 86, 96 and 121.
(b) Secondly, in payment of any interest incurred in accordance with clause 35.
(c) Thirdly, in payment of any outstanding Tax Invoices (or part thereof) in an order
determined by us in our sole discretion.
112. To the extent that payments have been allocated to Tax Invoices by us in our business records,
we may allocate or retrospectively reallocate payments in any manner whatsoever at our
absolute discretion, including in a manner inconsistent with clause 111 herein.
113. Payments allocated (or reallocated) under clause 111 or 112 will be treated as though they
were allocated (or reallocated) in the manner determined by us on the date of receipt of
payment.
Intellectual property
114. All right, title, and interest in the Intellectual Property Rights in and to all Works, and all Goods
sold or supplied by us are, and will at all times, remain our property.
115. All improvements, derivatives, and modifications to the Intellectual Property Rights
contemplated by clause 114 (the “Improvements”) vest in us immediately on creation. To the
extent necessary to give effect to this clause 115, you assign to us all right, title, and interest
in the Improvements.
116. We grant you a non-exclusive, royalty-free, non-transferrable, non-sublicensable, perpetual
(subject to a termination under clause 118) license to use our Intellectual Property Rights for
the sole purpose of promoting and selling our Goods.
117. You acknowledge and agree that you have no rights to use our Intellectual Property Rights
under these Terms, except as expressly set out herein.
118. If we:
(a) terminate your credit facility in accordance with these Terms; or
(b) request that you discontinue using our Intellectual Property Rights,
then you must:
(c) immediately discontinue the use or display of any of our Intellectual Property Rights; and
(d) as soon as practicable:
(i) return to us all Works in your possession; or
(ii) allow our Personnel to enter upon your premises to collect all Works in your
possession.
119. For the purposes of us exercising our rights under clause 118, you irrevocably consent to our
Personnel entering upon any premises occupied by you (as your invitee) to collect all Works in
your possession.
Confidentiality
120. You must not, directly or indirectly, disclose to any other person, or exploit, any Confidential
Information without our prior written and fully informed consent, except to the extent that:
(a) disclosure is permitted by these Terms;
(b) the information is available to the public generally (except as a result of a previous breach
of these clause);
(c) you are required to make disclosure by operation of law; or
(d) the disclosure is made on a confidential basis to your representatives or professional
advisers for the purpose of obtaining professional advice.
Indemnity
121. If you default in the performance or observance of your obligations under any contract of which
these Terms form part, then:
(a) we will take steps to mitigate our loss and act reasonably in relation to any default by you;
(b) we will give you notice requesting payment for loss and damage occasioned in respect of
those events and requesting that you remedy any breach within a reasonable time; and
(c) if that demand is not met then you indemnify us in respect of loss, damage, costs
(including collection costs, bank dishonour fees, and legal costs on an indemnity basis)
that we have suffered arising therefrom.
122. Your liability to indemnify us will be reduced proportionally only to the extent that:
(a) any negligent act or omission by us or a breach of our obligations under any Contract of
which these Terms form part has contributed to the liability, claim, damage, loss, cost, or
expense which is the subject of the indemnity; or
(b) these Terms make us specifically liable for any cost or expense or rectifying or repairing
any defect in, malfunction of, or damage to the Goods.
123. Your liability to indemnify us is a continuing obligation separate and independent from your
other obligations and survives the performance or termination of any Contract of which these
Terms form part.
Limitation of liability
124. No party is liable to the other party for any Consequential Loss, including under clause 121,
however caused arising out of or in connection with any contract for supply of which these
Terms form part.
125. While we will take reasonable endeavours to meet any estimated delivery date or estimated
time for Goods and Services, you acknowledge and agree that we are not liable for any delay
associated with meeting those estimated timeframes.
126. If the contract for supply is not a Consumer Contract or a Small Business Contract then, to the
extent permitted by law, our liability is limited to:
(a) (in the case of a supply of Goods):
(i) us repairing or replacing the Goods; or
(ii) us paying you the cost of having the Goods repaired or replaced.
(b) (in the case of a supply of Services):
(i) us supplying the Services again; or
(ii) us paying you the cost of having equivalent Services supplied.
Notices
127. A notice or other communication connected with these Terms has no legal effect unless it is in
writing.
128. In addition to any other method of service provided by law, a notice or other communication
may be sent by pre-paid post to the address of the addressee or sent by email or SMS to the
email or mobile number of the addressee.
129. For clarity, a notice or other communication is deemed to be received by the addressee:
(a) if delivered by hand, at the time of delivery;
(b) if sent by post, on the seventh (7th) day after the day on which it is posted; or
(c) if sent by email or SMS, at the time that would be the time of receipt under the Electronic
Transactions Act 2000 (Vic).
Termination of Contract
130. A party may, with immediate effect, terminate any contract of which these Terms form part by
notice in writing, if the other party (including a Related Account within the meaning of clause
14):
(a) commits a material or persistent breach of these Terms and does not remedy the breach
within seven (7) days of receipt of a notice identifying the breach and requiring its remedy
(b) has indicated that it is, or may become, insolvent; or
(c) ceases to carry on business; or
(d) comprises an entity which is the subject of the appointment of receivers or managers; or
(e) comprises a natural person who:
(i) has committed an act of bankruptcy; or
(ii) has been made bankrupt;
(f) comprises a corporation which:
(i) enters into voluntary administration;
(ii) is subject to a deed of company arrangement; or
(iii) is subject to the appointment of liquidators or provisional liquidators.
131. For clarity, termination of any Contract of which these Terms form part will not affect the rights
which have already accrued to a Party at the time of termination, whether under that Contract
or otherwise.
Variation of Terms
132. Any proposed variation to these Terms by you must be requested in writing and we may refuse
any such request without providing reasons to you for doing so.
133. For clarity, no proposed variation of these Terms will be binding upon us, unless varied in
writing and agreed by an authorised officer of ours. Clerical errors (such as spelling mistakes,
grammatical errors, or numerical errors) may be subject to correction by us without notification.
134. We may amend these Terms by notifying you in writing. The amended Terms will apply to any
Order placed by you following us notifying you of the amendments.
135. If you do not agree with the amendments proposed by us, you must notify us in writing, within
fourteen (14) days from receipt of the written notice, that the amendments are not agreed to.
We will then be at liberty to suspend your credit facility until such time as an agreement can be
reached.
Assignment
136. Neither Party may assign, transfer, or novate its rights or obligations under any Contract of
which these Terms form part without the prior written and fully informed consent of the other
(which consent must not be unreasonably withheld).
Waiver
137. A waiver of any provision or breach of these Terms, or any Contract of which these Terms form
part, will only be effective if made by the affected Party in writing. If a Party elects not to enforce
its rights arising as a result of a breach of a Contract, that will not constitute a waiver of any
rights in relation to any subsequent or other breach.
Severance
138. If any part of these Terms, or any Contract of which these Terms form part, is illegal, invalid,
or unenforceable, it will be read down so far as necessary to give it a valid and enforceable
operation or, if that is not possible, it will be severed from the Contract. Other provisions which
are self-sustaining are, and will continue to be, enforceable in accordance with their terms.
Governing law
139. These Terms, and any Contract of which these Terms form part, will be governed by and
construed in accordance with the laws of Victoria, Australia, and the law of the Commonwealth
of Australia in force in Victoria.
140. The Parties agree to submit to the non-exclusive jurisdiction of the courts of Victoria and the
relevant federal courts and courts competent to hear appeals from those courts.
Entire agreement
141. You warrant that if you have entered into these Credit Terms in reliance upon any oral
understanding or representation that you have written such matters on these Terms and
brought them to our attention. Otherwise, these Terms, together with the Trading Term
Agreement Schedule (if any), constitute the entire agreement and understanding between the
Parties in relation to its subject matter. All previous negotiations, understandings,
representations, warranties, memoranda, or commitments about the subject matter of these
Terms are merged herein and are of no further effect. No agent or representative of ours is
authorised to make any representations, warranties, or agreements not expressly contained in
these Terms, and we are not in any way bound by such representations, warranties, or
agreements.
142. Notwithstanding clause 141, in circumstances where there is a pre-existing written credit
agreement (“Original Agreement”) between the Parties, this credit agreement will constitute
a variation of the Original Agreement whereby the terms and conditions of the Original
Agreement are deleted and replaced with these Terms, unless the terms and conditions of the
Original Agreement are otherwise expressly or implicitly preserved by these Terms, in which
case they will co-exist with this credit agreement, and, to the extent of any inconsistency, this
credit agreement will prevail.
Definitions
143. In these Terms:
“Approved Materials” means any promotional artwork, graphics, banners logos, or other
media that we approve and make available to our Internet Dealers from time to time.
“Australian Consumer Law” means Schedule 2 to the Competition and Consumer Act 2010
(Cth), as amended.
“Business Day” means a day that is not a Saturday, Sunday, or public holiday in Melbourne,
Australia.
“Buying Group” means a third-party buying group approved by us.
“Confidential Information” means information that:
(a) is by its nature confidential;
(b) is designated by us to be confidential; or
(c) you know or ought to know is confidential, relating to the Goods or our business which is
not in the public domain, including trade secrets, know-how, scientific, technical, product,
market, or pricing information.
“Contract” means a contract for the supply of Goods or Services, as constituted by our
quotation (if any), your Order, and these Terms.
“Customer,” “you,” “your” means the person acquiring Goods or Services from us.
“Consequential Loss” includes any:
(a) consequential loss;
(b) loss of anticipated or actual profits or revenue;
(c) loss of production or use;
(d) financial or holding costs;
(e) loss or failure to realise any anticipated savings;
(f) loss or denial of business or commercial opportunity;
(g) loss of or damage to goodwill, business reputation, future reputation, or publicity;
(h) loss or corruption of data;
(i) downtime costs or wasted overheads; or
(j) special, punitive, or exemplary damages.
“Consumer Contract” has the meaning given to this term in section 23(3) of the Australian
Consumer Law.
“Goods” means all goods supplied by us to you (and where the context so permits includes
any supply of Services) and as are described on the Tax Invoices, quotation, or any other forms
as provided by us to you.
“GST” has the meaning given to it by the GST Act.
“GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
“Insolvency Event” means any of the following events concerning a Party, unless the events
take place as part of a solvent reconstruction, amalgamation, merger, or consolidation on terms
approved by the other Party before it takes place and the implementation of the reconstruction,
amalgamation, merger, or consolidation complies with the terms of the approval:
(a) if an administrator, liquidator, receiver, receiver and manager or other controller (as
defined in the Corporations Act 2001 (Cth)) is appointed to, or over, any of the property
or undertaking of the Party;
(b) if the Party becomes bankrupt;
(c) if a controlling trustee is appointed to, or over, any of the property or undertaking of the
Party;
(d) if the Party's property or undertaking becomes subject to a personal insolvency
arrangement under part X Bankruptcy Act 1966 (Cth) or a debt agreement under part
IX Bankruptcy Act 1966 (Cth);
(e) the Party is unable to pay its debts when they become due and payable;
(f) if the Party ceases to carry on business; or
(g) if any event happens in Australia or any other country or territory in respect of a Party
that is similar to any of the events or circumstances referred to in this definition.
“Intellectual Property Rights” means all industrial and intellectual property rights throughout
the world, whether present or future, and whether protectable by statue, at common law or in
equity, including rights in relation to copyright, trade secrets, know how, trade marks (whether
registered or unregistered or whether in word or logo/device form), designs, patents and
patentable inventions, including the right to apply for registration of any such rights.
“Internet Dealer” means a customer of ours that is approved to sell our Goods online through
approved internet channels.
“New Balance,” ”we,” “us,” “our” means New Balance Australia Pty Ltd ACN 003 049 296.
“Normal Working Hours” means 08:30am to 5:00pm.
“Order” means a written or oral order placed by you offering to acquire Goods or Services from
us.
“Parties” means New Balance and the Customer, and “Party” means either one of them.
“Personnel” means officers, employees, and agents engaged by each Party (but does not
include the other Party).
“PPSA” means the Personal Property Securities Act 2009 (Cth).
“Price” means the price payable for the Goods or the Services, as notified by us to you from
time to time.
“Privacy Act” means the Privacy Act 1988 (Cth).
“Services” means all services supplied by us to you (and where the context so permits includes
any supply of Goods).
“Small Business Contract” has the meaning given to this term in section 23(4) of the
Australian Consumer Law.
“Tax Invoice” and “Taxable Supply” have the same meaning as in the GST Act.
“Terms” means these terms of trade.
“Trading Term Agreement Schedule” means the trading term agreement schedule executed
by the Parties (where applicable).
“Works” means all literary, artistic, and other works, including all physical works, production
materials, and subject matter created solely or jointly with others, by us in the course of or in
relation to any Contract in which Intellectual Property Rights may subsist and all drafts,
variations, alterations, and adaptations of such works or subject matter (whether currently
existing or created in the future). For clarity, this includes promotional and technical literature,
advertising and point of sale material, and Approved Materials.
Interpretation
144. If there is any conflict, ambiguity, or inconsistency between any of the documents which govern
the supply of Goods or Services, it is expressly agreed the order of precedence will be (in
descending order of precedent):
(a) any additional terms or conditions contained in our quotation (where applicable);
(b) these Terms.
145. Unless the contrary intention appears, a reference to:
(a) these Terms, or another document includes any variation or replacement of it,
notwithstanding any change in the identity of the Parties;
(b) the singular includes the plural and vice versa;
(c) a right includes a benefit, remedy, authority, discretion, or power;
(d) a person includes a natural person, partnership, body corporate, association, joint
venture, governmental or local authority or agency, or other entity;
(e) a person includes the person’s successors, executors, administrators, substitutes
(including a person who becomes a party by novation) and assigns; and
(f) any statute, ordinance, code, or other law includes regulations and other statutory
instruments under any of them and consolidations, amendments, re-enactments, or
replacement of any of them.
146. Headings are for convenience only and will not affect the interpretation of these Terms.
147. The meaning of general words is not limited by specific examples introduced by including, for
example, or similar expressions.
148. The expressions “in writing” or “written” means any expression of information in words,
numbers, or other symbols, which can be read, reproduced, and later communicated, and
includes electronically transmitted and stored information.
149. Where two or more persons are defined as a Party in these Terms, that term means each of
the persons jointly, each of them severally, and any two or more of them jointly.
150. An agreement, covenant, obligation, representation, or warranty on the part of two or more
persons binds them jointly and severally and an agreement, covenant, obligation,
representation, or warranty in favour of two or more persons is for the benefit of them jointly
and severally.
151. Unless specified otherwise, all reference to sums of money is in terms of Australian currency
(AUD), and all documents and correspondence between the Parties must be in the English
language