White Label or Private Label Supply of Goods Agreement
This website (Site) is operated by My Skin Care Manufacturer Pty Ltd ABN 63 622 978 867 (we, our or us).
It is available at: www.myskincaremanufacturer.com.au and may be available through other addresses or channels.
White Label or Private Label Supply of Goods Agreement
In these Terms, when we say you or your, we mean both you and any entity you are authorised to represent (such as your employer). When we say we, us, or our, we mean My Skin Care Manufacturer Pty Ltd (ABN 63 622 978 867). We and you are each a Party to these Terms, and together, the Parties.
These Terms form our contract with you, and sets out our obligations as a service provider and your obligations as a customer. You cannot use our services unless you agree to these Terms.
Some capitalised words in these Terms have defined meanings, and each time that word is used in these Terms it has the same meaning. You can find a list of the defined words and their meaning at the end of these Terms.
For questions about these Terms, or to get in touch with us, please email: info@myskincaremanufacturer.com.au
These Terms were last updated on 14 March 2024
TERMS AND CONDITIONS
This Agreement is entered into between us and you, together the Parties and each a Party.
- Supply of Goods
1.1 This Agreement will commence on the Commencement Date and will continue until the date on which we have completed the supply of the Goods to you (as reasonably determined by us) (Term).
1.2 In consideration of your payment of the Price, we will supply the Goods in accordance with this Agreement, whether ourselves or through our Personnel.
- Orders
2.1 During the Term, you may request us to supply the services by notifying us in writing or by any other process we specify (Order Request).
2.2 If we accept the Order Request, we will provide you with a formal Order, and once the Order is agreed by both Parties in writing it will be binding in accordance with these Terms and the Order.
2.3 Each Order is subject to, and will be governed by, these Terms and any other conditions expressly set out in the Order. To the extent of any ambiguity or discrepancy between an Order and these Terms, the terms of these Terms will prevail.
- White Label or Private Label Services
3.1 You may request our white-label or private-label services as part of the services, by submitting an Order Request as per clause 2.
3.2 As part of our white-label services, you will have the right to sell the Goods with your own packaging. However, the formulation of the Goods will not be customised specifically for you.
3.3 As part of our private-label services, we will customise the formulation of our Goods as per your instructions. You will have the right to sell these Goods with your own packaging.
3.4 We agree to make the Goods or customised Goods that are detailed in an Order, subject to you prior providing us with all necessary specifications and anything else required by us to complete the services.
3.5 You warrant and represent to us, that our use of any of Your Materials provided to us under this Agreement for the purpose of the services (or otherwise) will not infringe any third party rights, including but not limited to, Intellectual Property Rights.
3.6 This clause 3 will survive the termination or expiry of this Agreement.
- Warranties
4.1 You represent warrant and agree that:
(a) you will store the Goods in appropriate conditions;
(b) you will not sell the Goods past any minimum shelf life or expiration date, or if they appear to have spoiled;
(c) you will not alter the Goods or combine them with any other products that may ruin their effectiveness; and
(d) you will conduct business in a manner that reflects favourably on us, including by not making any false or misleading representations about our Goods or our business.
- Delivery, Title and Risk
5.1 Title in the Goods will only pass to you on the date that you pay the Price in full in accordance with this Agreement.
5.2 If we are responsible for delivering the Goods to you, we will use reasonable endeavours to deliver the Goods by the time agreed between the Parties, and risk in the Goods will pass to you once we have delivered the Goods to the agreed delivery location. You be responsible for the costs of delivery.
5.3 If you are responsible for collecting the Goods from us, you must collect the Goods by the time agreed between the Parties, and risk in the Goods will pass to you once you have collected the Goods from the agreed collection location. You will be responsible for the costs of collection.
5.4 Where Goods are supplied to you without payment in full, you:
(a) are a bailee of the Goods until title in them passes to you;
(b) irrevocably appoint us to be your attorney to do all acts and things necessary to ensure our retention of title to the Goods, including the registration of any security interest in our favour with respect to the Goods; and
(c) must not allow any other person to have or acquire any security interest in the Goods without our prior written consent.
- Price and Payment
6.1 You agree to pay us the Price and any other amounts due under this Agreement in accordance with the Payment Terms.
6.2 If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion, and without prejudice to any of our rights or remedies under this Agreement or at Law):
(a) after a period of 5 Business Days from the relevant due date, cease supplying the Goods, and recover, as a debt due and immediately payable from you, our reasonable additional costs of doing so (including all recovery costs);
(b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the relevant due date in accordance with the Payment Terms; and/or
(c) enter any premises where the unpaid Goods are stored or held, for the purpose of retrieving and taking possession of those Goods, and you agree to provide any access, items and consents required to enable us to do so.
6.3 When applicable, GST payable will be clearly shown on our invoices. You agree to pay us an amount equivalent to the GST imposed on these charges. “GST” has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
6.4 Unless otherwise stated by us in writing, the Price is exclusive of any tax imposed by any government, state or local authority on the value of goods and services, and includes goods and services tax, sales tax, use tax, indirect tax, value added tax, excise tax, customs tax, tariffs and duties (Sales Tax), which will be your responsibility to pay. If we are required to pay any Sales Tax in relation to the Goods supplied under this Agreement, the applicable Sales Tax will be set out in the invoice provided to you and the Price payable by you under this Agreement must be increased by the applicable Sales Tax. This clause 6.4 does not apply to any taxes imposed on our net income.
- Security Interest
7.1 You acknowledge and agree that:
(a) this Agreement is a ‘security agreement’ under the Personal Property Securities Act 2009 (Cth) (PPSA);
(b) this clause 7 creates a security interest in the Goods and any proceeds from any sale or disposal of the Goods, and we are a secured party in relation to the Goods and any such proceeds;
(c) we are entitled to register our interest on the relevant register as (at our discretion) a security interest, and if applicable, a ‘purchase money security interest’; and
(d) you must (at your cost), where we request, take all steps that we consider necessary or desirable to assist us to register our security interest, to ensure our security interest in the Goods and the proceeds is enforceable, and to perfect, or better secure out position under this Agreement, or ensure our priority over all other security interests
7.2 Until such time as title in the Goods has passed to you as contemplated under clause 5.1, you must not allow any other person to have or acquire any security interest in the Goods, unless with our prior written consent.
7.3 To the extent the Law permits, you waive your right to receive any notice (including notice of a verification statement) that is required by the PPSA, including but not limited to notices under sections 95, 118, 121, 130, 132, 135 or 157. However, this does not prevent us from giving a notice under the PPSA.
7.4 You must not disclose any information of the kind referred to in section 275 of the PPSA, to the extent permitted under that section.
7.5 Nothing in this clause 7 is intended as an agreement to subordinate a security interest arising under this Agreement and conditions in favour of any person under section 61 of the PPSA.
7.6 In this clause 7, a ‘security interest’ includes any form or lien, encumbrance or a security interest under the PPSA.
7.7 Terms used in this clause 7 but not defined have the same meanings as in the PPSA.
7.8 This clause 7 will survive the termination or expiry of this Agreement.
- Confidential Information
8.1 Subject to clause 8.2, each Party must (and must ensure that its Personnel) keep confidential, and not use (except to perform its obligations under this Agreement) or permit any unauthorised use of, information provided by the other Party, including information about this Agreement and the other Party’s business and operations.
8.2 Clause 8.1 does not apply where the disclosure is required by Law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that the disclosing Party ensures the adviser complies with the terms of clause 8.1.
8.3 This clause 8 will survive the termination of this Agreement.
- Australian Consumer Law
9.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the supply of the Goods by us to you which cannot be excluded, restricted or modified (Consumer Law Rights). To the extent that you maintain Consumer Law Rights at Law, nothing in this Agreement excludes those Consumer Law Rights.
9.2 Subject to your Consumer Law Rights, we provide all material, work and goods (including the Goods) to you without conditions or warranties of any kind, implied or otherwise (including without limitation any implied warranties of merchantability or fitness for a particular purpose), whether in statute, at Law or on any other basis, except where expressly set out in this Agreement.
9.3 This clause 9 will survive the termination or expiry of this Agreement.
- Liability
10.1 Despite anything to the contrary but subject to your Consumer Law Rights, to the maximum extent permitted by Law:
(a) neither Party will be liable for Consequential Loss;
(b) a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and
(c) (where our Goods are not ordinarily acquired for personal, domestic or household use or consumption) in respect of any failure by us to comply with relevant Consumer Law Rights, our Liability is limited (at our discretion) to:
(1) replacing the Goods or the supply of equivalent Goods, or the payment of the cost of replacing the Goods or of supplying equivalent Goods; or
(2) the repair of the Goods, or the payment of the cost of having the Goods repaired;
10.2 This clause 10 will survive the termination or expiry of this Agreement.
- Term and Termination
11.1 This Agreement will operate for the Term.
11.2 This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:
(a) the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
(b) the Defaulting Party goes bankrupt, insolvent or is otherwise unable to pay its debts as they fall due.
11.3 Upon expiry or termination of this Agreement:
(a) we will immediately cease providing the Goods;
(b) without limiting and subject to your Consumer Law Rights, any payments made by you to us for Goods already supplied are not refundable to you;
(c) you are to pay for all Goods supplied prior to termination, including Goods which have been supplied and have not yet been invoiced to you, and all other amounts due and payable under this Agreement;
(d) by us pursuant to clause 2, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees);
(e) we may retain your documents and information (including copies) to the extent required by Law or pursuant to any information technology back-up procedure, provided that we handle your information in accordance with clause 8; and
(f) you agree to promptly return (where possible), or delete or destroy (where not possible to return), any documentation, information or material provided to you by us that is in your possession or control.
11.4 Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.
11.5 This clause 11 will survive the termination or expiry of this Agreement.
- General
12.1 Amendment: This Agreement may only be amended by written instrument executed by the Parties.
12.2 Assignment: Subject to clauses 12.3 and 12.11, a Party must not assign, novate or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
12.3 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party.
12.4 Disputes: A Party may not commence court proceedings relating to any dispute arising from, or in connection with, this Agreement (Dispute) without first meeting a representative of the other Party within 10 Business Days of notifying that other Party of the Dispute. If the Parties cannot resolve the Dispute at that meeting, either Party may refer the Dispute to mediation administered by the Australian Disputes Centre.
12.5 Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under this Agreement if such delay or failure is caused or contributed to by a Force Majeure Event, provided that the Party seeking to rely on the benefit of this clause:
(a) as soon as reasonably practical, notifies the other Party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and
(b) uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event.
Where the Force Majeure Event prevents a Party from performing a material obligation under this Agreement for a period in excess of 60 days, then the other Party may by notice terminate this Agreement, which will be effective immediately, unless otherwise stated in the notice. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement.
12.6 Governing Law: This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts. The Parties agree that the U.N. Convention on Contracts for the Sale of International Goods is excluded from application to this Agreement.
12.7 Intellectual Property: Nothing in this Agreement constitutes a transfer or assignment of one Party’s Intellectual Property Rights to the other Party.
12.8 Notices: Any notice given under this Agreement must be in writing addressed to the addresses set out in this Agreement, or the relevant address last notified by the recipient to the Parties in accordance with this clause. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
12.9 Publicity: Despite clause 8, you agree that we may advertise or publicise the broad nature of our supply of the Goods to you, including on our website or in our promotional material.
12.10 Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
12.11 Subcontracting: We may subcontract the supply of any part of the Goods without your prior written consent. We agree that any subcontracting does not discharge us from any liability under this Agreement and that we are liable for the acts and omissions of our subcontractor.
- Definitions
In this Agreement, unless the context otherwise requires, capitalised terms mean:
ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.
Agreement means these terms and conditions and any documents attached to, or referred to in, each of them.
Business Day means a day on which banks are open for general banking business in Beresfield, New South Wales, excluding Saturdays, Sundays and public holidays.
Commencement Date means the earlier of the date you accept this Agreement or any Quote, make part or full payment of the Price or instruct us to provide you with the Goods.
Consequential Loss includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us the Price will not constitute “Consequential Loss”.
Consumer Law Rights has the meaning given in clause 9.1.
Goods means the goods to be supplied as set out in the Quote or any order, as adjusted in accordance with this Agreement.
Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.
Intellectual Property Rights or Intellectual Property means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, whether or not registered or registrable.
Law means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with this Agreement or the supply of the Goods
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.
Order means an order for the supply of Goods, placed in accordance with clause 2.
Payment Terms means the timings for payment of the Price as set out in the Quote.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.
Price means the price set out in your Quote or any order, as adjusted in accordance with this Agreement.
Quote means the document to which these Terms are attached or incorporated.
For any questions or notices, please contact us at:
My Skincare Manufacturer Pty Ltd ABN 63 622 978 867
Email: info@myskincaremanufacturer.com.au
