TERMS AND CONDITIONS OF SALE
The following Terms & Conditions (Conditions) apply to the sale and delivery of all goods from Rachel Gilbert Pty Ltd, known as (Rachel Gilbert ).
1.1. In these conditions unless the context otherwise requires: “goods” means the products or stock ordered by you. “GST” or “VAT” means goods and services tax, consumption tax, value added tax, retail turnover tax or a tax of a similar nature. “Input Tax” means an amount equal to the amount of GST paid or payable for the supply of anything acquired. “Primary Payment” means any payment by you to us of any fees or other amounts payable by you to us under these Conditions. “Tax Invoice” means an invoice in the format required by the law and which also shows the amount of GST payable by you in respect of the relevant Primary Payment. “CBD” means cash before delivery. “We” and “Our” and “Us” means Rachel Gilbert the provider of goods. “You” and “Your” and “Customer” means you the applicant, the purchaser of the goods from us, as the case may be.
2.1.These conditions apply exclusively to each and every contract for the sale of goods by us to the you and cannot be varied or supplement by any other conditions without the prior written consent.
2.2. We may also vary these conditions from time to time without notice to the customer. Each time you submit an order it is an acknowledgement and agreement to the Conditions in force at the time of submitting the Order.
2.3. These Conditions shall apply to the exclusion of all others including any Conditions of the customer (whether appearing on the customer’s order form or otherwise).
2.4. Should these Conditions be inconsistent with any conditions specified in any other document, these conditions shall prevail to the extent of that inconsistency.
2.5. The customer acknowledges they have not relied on any representation by us, agent or any other person in entering into this Contract and these Conditions constitute the entire agreement between us and the customer in relation to the goods.
2.6. If any part of these Conditions is or becomes invalid, that part will be severed from these Conditions. This will not affect the validity of the remaining provisions of these Conditions.
3.1. By placing an Order, the customer is deemed to have read, understood and agreed to be bound by these Conditions.
3.2. A contract of sale shall be formed each time we notify you, we have accepted of your order “Order Confirmation”.
3.3. You may only cancel or amend your order within 5 business days of receiving our order confirmation.
3.4. An order may be supplied to us via email, via our nominated agent(s) or directly into our online order portal as instructed.
3.5. We are under no obligation to accept any order placed by you for any goods in whole or in part.
3.6. All orders are subject to minimum order value which we may vary at our discretion without notice.
3.7. All stock is made to order; orders must be placed by the order deadline as advised by us.
3.8. We reserve the right to discontinue production and/or supply of goods at any time. We may rescind or cancel all or part of an Order at any time and for any reason without any liability to the Customer.
3.9. We do not and will not offer goods on consignment, unless otherwise agreed.
- Pricing & Payment
4.1. All prices quoted on our price lists are current at the time of printing and are subject to change at any time.
4.2. Prices for the supply of goods exclude, if applicable:
4.2.1. sales tax, consumption or goods and services tax, value added tax and any other taxes or duties imposed on or in relation to the goods; and
4.2.2. the cost of freight and insurance arising from the point of dispatch to the point of delivery to the customer, unless otherwise agreed in writing by us.
4.3. All customers shall make payment for the goods on agreed terms detailed on your Order Confirmation
4.4. Where terms are agreed in writing, terms commence from invoice date, which is the date goods will be available for shipment.
4.5. At our absolute discretion, we reserve the right to request payment from customers prior to manufacture and/or dispatch of the goods.
4.6. Payments must be made in the agreed currency as detailed on the Order Confirmation in the method directed by us.
4.7. Where the customer fails to pay its account in accordance with these conditions or agreed payment terms, we may withhold further supply or require prepayment for any remaining goods and or cancel the order and apply the prescribed cancelation fee.
4.8. Invoices may be subject to an order processing fee of 2.5% of the total invoiced amount. Where payment is received by the due date, this fee will be credited.
5.1. Orders that attract a deposit, that deposit which becomes payable 7 days of receiving an Order Confirmation, unless otherwise agreed in writing.
5.2. Deposits will be applied on a pro rata basis to each invoice issued for each order.
5.3. Failure to pay the deposit by the due date creates a default event, where we reserve the right to cancel the order and apply the prescribed cancelation fee.
6.1. Orders on FOB terms where the collection of goods is from our nominated warehouse shall be the responsibility of the customer. Where other shipment terms are agreed in writing, we will dispatch goods using our preferred carrier.
6.2. We use best endeavours to make deliveries in accordance with agreed delivery dates, however delivery dates are estimates only and we are not liable for late delivery, nor do late deliveries grant you the right to cancel or vary the order.
6.3. We are not liable for any loss, damage or delay occasioned to you or your customers arising from late delivery of the goods.
6.4. At our discretion we may dispatch goods to you in any number of instalments unless otherwise agreed in writing.
- Damage in Transit
7.1. We are not responsible to you or any person claiming through you, for any loss or damage to goods in transit, caused by any event of any kind by any person (whether or not we are legally responsible for the person who caused or contributed to that loss or damage). However, we will provide you with any assistance that may be necessary to you to raise a claim with the carrier.
- Claims & Returns
8.1. You will be deemed to have accepted the goods free of defect or any nonconformity unless we receive a substantiated written claim within seven (7) days of receipt or attempted to delivery as the case may be.
8.2. Claims will only be honoured where you have advised us in writing, within 7 days of receipt, as confirmed by the carrier.
8.3. Claims for short delivery (where quantities delivered are less than invoiced) or incorrect pricing relating to unit prices, freight or other; will only be honoured where we are advised within 7 days of receipt.
8.4. Subject to clause 7, we are not liable for non-delivery by a third party, carrier or otherwise, once the goods have been released to a carrier
8.5. We are under no obligation to accept returned goods and will only do so as agreed in writing.
8.7. Returned goods must be shipped at your cost to the correct address. In the event goods are faulty, we will credit the cost of return postage to your account.
8.8. In the event goods are deemed faulty by us at our discretion, we may elect to repair, replace or provide credit.
8.9. Due to the inherent nature of textiles there may be slight variations in colour or shade throughout various batches of goods. The customer acknowledges such goods may not be returned for credit or otherwise.
- Payment default
9.1. If the customer defaults on any payment by the due date of any amount payable (including deposits) and or becomes bankrupt, enters into any scheme of arrangement or any assignment with or for the benefit of its creditors, has a liquidator, administrator, or receiver appointed, we may, without prejudice to any other remedy available to it:
9.1.1. We may immediately raise a cancellation invoice (being not less than 30% of the order amount) which will become immediately payable.
9.1.2. Charge the customer for all expenses and costs (including legal costs on a solicitor/own client basis) incurred by it resulting from the default and in taking whatever action it deems appropriate to recover any sum due;
9.1.3. Charge the customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 plus 2% for the period from the due date until the date of payment in full; and
9.1.4. Cease or suspend for such period as we think fit, supply of any further goods or services to the customer.
10.1. Orders cannot be cancelled or amended without prior written approval.
10.2. You may only cancel or amend your order within 5 business days of receiving your Order Confirmation.
10.3. We may cancel your order at any time, where you are in breach of any term or condition and reserve the right to cancel on terms which will indemnify us against all losses. We also entitled to levy any of the following cancellation fees:
10.3.1. Charge a cancellation fee, being not less than 30% of the total order
10.3.2. Charge a cancelation fee, being greater than 50% of the total order
10.3.3. Charge a cancellation fee, 100% of the total order.
10.4. At our discretion, we may apply any deposits that you may have paid for other orders to any cancellation fees.
10.5. Cancellation fees are due immediately upon receiving written notice and attract interest
- Title to goods
11.1. Notwithstanding anything to the contrary express or implied, property in the goods shall remain with us and shall not pass to you until we have received payment in full for the goods and you have discharged in full all of your accounts with us relating to all orders placed with us.
11.2. If a payment is made by you by way of cheque, ownership shall not pass to you until the cheque has been honoured.
11.3. Until the goods are paid for in full, you shall hold the goods as trustee for us and shall keep the goods as a fiduciary for us and shall store and identify the goods in a manner that clearly shows Our ownership thereof.
11.4. In the event you fail to pay us for goods by the due date, and without prejudice to our rights as an unpaid seller or any of our other rights and remedies, you grant us permission to enter your property without notice and take possession of our goods.
11.5. You hereby acknowledge we have a lien over all goods in your possession belonging to you to secure payment of any or all amounts outstanding from time to time.
12.1. Goods are sold to you on the condition that you only make them available for retail sale at agreed retail location(s).
12.2. You may not retail the goods at new or other locations without prior written approval.
12.3. Goods may not be resold at a wholesale level or to any other trader that is known or suspected to be purchasing for resale.
- Intellectual Property
13.1. Ownership in all intellectual property conceived of, or contributed to, by us including our trademarks and copyright in fabrics, remain our property and the Customer may only use our intellectual property with prior written consent. For the avoidance of doubt, you require our written permission to use our trademarks in any search engine marketing.
13.2. For the purposes of this clause, Intellectual Property includes all present and future intellectual property including inventions and improvements, trade marks (whether registered or common law trade marks), patents, designs, copyright, any corresponding property rights under the laws of any jurisdiction and any work product.
- Paid Search (SEM)
14.1. You must seek written approval to bid on our trademark(s) across all digital advertising platforms including but not limited to Google and Google AdWords. For avoidance of doubt:
14.1.1. You may not serve ads on the following Core Brand terms:
126.96.36.199. Rachel Gilbert
188.8.131.52. Rachel Gilbert (category name)
184.108.40.206. Rachel Gilbert (product name)
14.1.2. You may not serve ads on our Core brand + store locations (eg “Rachel Gilbert Paddingtoni”).
14.1.3. You may serve ads on Core brand + category keywords (eg “Rachel Gilbert Gown”) only where you have inventory of our product in these categories and have our written approval.
14.1.4. You may serve ads on Core brand + product keywords (eg “Rachel Gilbert Matteo”) only where you have inventory of our product in these collections and have our written approval.
15.1. The Customer indemnifies us from and against all claims, suits, demands, actions, liabilities, costs and expenses (including legal costs and expenses on a full indemnity basis) resulting from its breach of these Terms and Conditions or from any act, omission or negligence of the Customer or any party acting on behalf of the Customer. The Customer agrees to cooperate with us (at its own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of the Customer’s use of our Goods and Services. The obligations under this clause will survive termination of these Conditions.
- Limitation of Liability
16.1. To the extent permitted by law, we excluded and disclaim all express or implied warranties, representations, conditions, guarantees and terms relating to the Goods and Services and these Conditions.
16.2. The parties agree that to the maximum extent permitted by law, we will not to be liable for any loss, damage, costs including legal costs, or expense whether direct, indirect, special, consequential and/or incidental, including we will not be liable for economic loss, loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage costs of replacement Goods or otherwise suffered by the Customer, or claims made against the Customer, arising out of a breach by us of these Conditions, an Order, a negligent act or omission by us, a breach of statutory obligation by us, or in connection with the Goods and Services, the late supply of Goods and Services, even if we were expressly advised of the likelihood of such loss or damage. Nothing in these Conditions will exclude, restrict or modify any rights or obligations to the extent that they cannot be excluded, restricted or modified by the operation of the Australian Consumer Law (being Schedule 2 of the Competition and Consumer Act 2010 (Cth)).
16.3. The parties agree our total liability arising out of, or in connection with the Goods and Services or these Conditions, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the total Price paid by the Customer for the Goods and Services under these Conditions. This clause will survive termination of these Conditions.
- Force Majeure:
17.1. we will not be liable for any delay or failure to perform our obligations under the Conditions if such delay is due to any circumstance beyond our control. If we are delayed from performing our obligations due to such a circumstance for a period of at least 2 months, we reserve the right to terminate these Conditions and any order by giving the Customer 5 business days' notice in writing.
18.1. Any failure by a party to insist upon strict performance by the other of any provision of these Conditions will not be taken to be a waiver of any existing or future rights in relation to the provision. No waiver by us of any of the Conditions or our rights shall be effective, unless we expressly state it is a waiver and we communicate such waiver to you in writing.
- Change of Ownership
19.1. You agree to notify us in writing of any change of your ownership within 7 days from the date of such change and to indemnify us against any loss or damage incurred by us as a result of your failure to notify us of any change.
- Applicable Law
20.1. The laws of the State of New South Wales of Australia govern these Conditions. We both agree to submit to the exclusive jurisdiction of the Courts of New South Wales, Australia and agree that any legal proceedings may be heard in those courts.