Terms and Conditions

For Wholesale Supply of Goods

1. Overview

This Agreement:

• is between Toshi Australia Pty Ltd ABN 48 267 865 345 (we, our or us) and the customer (you or your);

• applies in relation to any goods we sell you even if it is not signed; and

• overrides any inconsistent terms or conditions in any purchase orders or other documents you use (unless we specifically sign a document agreeing otherwise).

2. Quotations or pro forma invoices

Prices and other details in any pro forma invoice that we provide are only valid for 30 days or such other limited time period as stated in the document.

3. Orders

You acknowledge that once you place an order with us, we may order or manufacture goods especially for you and we may not permit you to vary or cancel the order unless you compensate us for the losses we incur or we otherwise consent.

4. Approved sales channels only

To protect the reputation of our brand, you may only sell the goods through retail outlets and sales channels approved by us. You must not re-sell our goods on a wholesale basis or to any person other than the end-user of the goods. We may refuse to supply you with goods if you breach this condition.

5. GST

Unless otherwise stated, the prices we state for the goods are exclusive of Goods and Services Tax (GST). You must pay GST at the same time and in the same manner as the consideration for the goods. We will give you a tax invoice showing the applicable GST.

6. Delivery

We will use reasonable endeavours to deliver the goods to the delivery point and on the date requested in your order. However, we will not be liable for any losses you suffer as a result of a delay or failure to deliver the goods.

7. Risk in the goods

Risk in the goods will pass to you when you take possession of them.

8. Return of obviously defective goods

You must inspect the goods on delivery and notify us within 7 days period if there are any obvious defects. This includes if the goods are defective because:

• there is a shortfall in the quantity delivered; or

• they are not of acceptable quality (as defined in the Australian Consumer Law);

• they do not conform to an agreed specification.

If you fail to return any defects goods within 14 days of delivery, you will be deemed to have accepted the goods and must pay for them in full despite any defects (other than non-obvious or latent defects that you could not be reasonably expected to have identified within the time period).

We will cover the charges for returning the goods to us if we accept that they are defective.

9. Payment terms

You must pay us for the goods within 30 days of the date of invoice. However, if we consider (in our absolute discretion) that your creditworthiness is unsatisfactory or the amount would exceed our credit limit, we may require you to pay for the goods on or before delivery.

If you fail to pay us strictly within the payment terms then you must pay us:

• interest on the late payments at the rate of 20% per annum calculated daily on the amount outstanding; and

• an administrative fee of $15.00 for each late payment.

10. Title and our security interest

Although you will assume the risk in the goods when you take possession, until you pay for them:

• we will retain ownership and title;

• you hold them on our behalf as fiduciary bailee; and

• if we request, you must return them or permit us to retake possession of them and we will not be any liable for any loss you suffer as a result.

However, you may dispose of the goods in the ordinary course of business on the basis that you will be taken to hold the proceeds of sale or trade on trust for us until you pay for them.

11. Personal Property Securities Act

You acknowledge that under the Personal Property Securities Act 2009 Cth (PPSA):

• this Agreement constitutes a security agreement;

• you grant us a purchase money security interest in the goods and any proceeds; and

• we may register a financing statement on the Personal Property Securities Register (PPSR),

You agree to provide information and do anything we reasonably require for us to register, maintain and enforce our security interest.

12. Provision of information under PPSA

You waive the requirement to provide information under various provisions of the PPSA. In particular, you agree that as provided for in:

• section 157 – we are not required to give you a verification statement;

• section 144 – we are not required to give you notices under section 95, 118, 121, 130, 132 and 135; and

• section 275 – we are not required to provide interested persons with information relating to our security interest and neither are you.

13. Terms defined in the PPSA

Terms defined in the PPSA (including purchase money security interest, verification statement, proceeds and various other terms) have the same meaning when used in this Agreement.

14. Enforcement expenses

You must pay any reasonable expenses (including legal fees) we incur to enforce our rights under this Agreement.

15. Goods supplied on a wholesale basis

You confirm you are purchasing the goods on a wholesale basis to on-sell or re-supply to your customers and that as such you may not be entitled to all of the consumer guarantees under the Australian Consumer Law.

16. Our warranties

We warrant that the goods we deliver will:

• match the description in the invoice and any agreed specification;

• be free of third party claims or undisclosed securities; and

• be of acceptable quality as defined in the Australian Consumer Law.

17. Limitation of liability

We limit our liability in relation to the sale of goods to you as follows:

• apart from the warranties in this Agreement or any express guarantees, we exclude all warranties and guarantees (whether written or oral);

• our liability for any claims (whether for negligence, breach of contract or statute) is limited at our option to either:
(i) replacing the goods or supplying equivalent goods; or
(ii) repairing of the goods; or
(iii) paying you the cost of having the goods replaced or repaired; and

• we are not liable for any indirect, incidental, special and/or consequential losses, liability, costs or damages; any loss of business opportunity, production, profits or savings; or any reasonably foreseeable losses.

However, this limitation of liability does not apply if it would restrict, modify or exclude your rights in a way that is not permitted under the Australian Consumer Law or other applicable laws.

18. Jurisdiction and governing law

This Agreement is governed by the laws Victoria, Australia and its courts (and appellate courts) are exclusively entitled to resolve disputes about this Agreement.

19. Variations

We may vary this Agreement by giving you written notice at any time. The variation will only affect future orders.