Thank you for your interest in becoming a BananaLab supplier. This document sets out the terms on which we will act as your agent to sell, distribute, market, promote and advertise your products or services.
In this document, we, us or BananaLab means Private Sale Pty Limited trading as BananaLab (ABN 14 603 829 303) and you or Supplier means the company, or other legal person named on the Web Form.
1- THIS CREATES A BINDING CONTRACT
A- We offer to act as your agent in accordance with these standard terms and conditions. You may accept this offer by clicking on ‘I accept’ (or similar term) in the Web Form.
B- Subject to clause 1.1(c), if you accept the offer in accordance with clause 1.1(a), a legally binding contract will be created, comprising these standard terms and conditions plus the Web Form terms (Contract).
C- If BananaLab determines that the Supplier is unable to comply with these standard terms and conditions:
- BananaLab will give written notice to that effect to the Supplier; and
- the Contract will not come into effect unless and until BananaLab gives written notice to the Supplier confirming the effective date of the Contract.
1.2 Entire Agreement
This Contract contains everything we have agreed relating to the matters it deals with. You acknowledge that you have not relied on any warranty or representation which is not specifically stated in this Contract. If you give us your terms and conditions, those terms and conditions are of no legal effect between BananaLab and the Supplier and do not form part of this Contract.
- Box means a physical box containing a Catalogue of goods and/or services and a Voucher that a Customer may use to redeem an item listed in the Catalogue with the relevant Supplier of such goods or services.
- Booking Date means the date the Service is to be delivered or performed by the Supplier for the Customer.
- Catalogue means the catalogue included in a Box or online at www.BananaLab.com.au that lists goods or services that may be redeemed by a purchaser of a Box which may include the Services.
- Confidential Information means all personal data and any information, however it is conveyed, that relates to the business, affairs, developments, trade secrets, know-how, personnel, and suppliers of a party, including all Intellectual Property Rights and, in case of BananaLab, its pricing information, together with all information derived from any of the above, and any other information clearly designated as being confidential, (whether or not it is marked “confidential”) or which ought reasonably be considered to be confidential.
- Customer means a person that is booking, through BananaLab (as agent for the Supplier), a Service or the holder of a Voucher sold by BananaLab.
- Expiry Date means the expiry date of the Voucher, as printed on the Voucher.
- Force Majeure Event means any act, event, omission or accident beyond the reasonable control of the parties including any internet interruptions, pandemic, act of God, war or terrorism but excluding lack of funds.
- GST has the same meaning as the GST Act.
- GST Act means A New Tax System (Goods and Services Tax) Act as amended.
- Intellectual Property or Intellectual Property Rights includes copyright, trade mark, design, patents (whether registered or not), trade, business or company names, domain names, or other proprietary rights, Confidential Information or any rights to registration of such rights existing in any country, whether created before on or after the date of the Web Form.
- Net Price has the meaning given in clause 7(a).
- Services means the products or services of the Supplier as specified in the Web Form.
- Supplier Portal means a secure online system which BananaLab may require the Supplier to use to provide information to BananaLab, including information relating to Customer bookings.
- Term has the meaning given in clause 2.
- Voucher means a voucher issued or sold by BananaLab for use of Services by a Customer, which Voucher contains a number and security code for validation, plus an Expiry Date.
- Web Form means BananaLab’s standard online form as completed by the Supplier.
3- APPOINTMENT OF BANANALAB
A- The Supplier appoints BananaLab as its agent to sell, distribute, market, promote and advertise the Services during the Term, including for the purposes of sales at retail stores of Vouchers issued by BananaLab, which the Customer can redeem for the Supplier’s Services.
B- The Supplier agrees that where a Customer contacts the Supplier to redeem a Service it will supply the Service to the Customer in accordance with the procedure described in this Contract and otherwise in accordance with the terms of this Contract.
This Contract starts on the date the Supplier accepts these terms and conditions in accordance with clause 1.1(b) and continues until terminated in accordance with clause 15 (Term).
5- SUPPLIER OBLIGATIONS
- The Supplier must indicate to BananaLab if a deposit is required from a Customer (including the amount and form of any deposit) and notify Customers at the time of booking of the terms of any deposit including any conditions relating to forfeiture of a deposit.
- The amount of any deposit must be specified in the Catalogue and the Supplier will be responsible for collecting, holding and as the case may be, refunding any deposit.
- If the Supplier fails to indicate a deposit is required, the Supplier will honour Vouchers for the relevant Services without requiring a deposit from Customers.
5.2 Standard of Services
- The Supplier must ensure that the Services supplied to Customers:
- are supplied on the same terms and conditions that apply to the supply of the Services to its other customers;
- are supplied with all due skill, care and diligence and in a in a timely manner;
- are fit and suitable for the intended purpose and otherwise comply with all applicable laws; and
- are new and free from defects and deficiencies in materials, workmanship, performance and design.
- The Supplier must promptly notify BananaLab of any event or circumstance in respect of its Services which constitute a breach of the Supplier’s obligations under clause 5.2(a), including any material health and safety issues arising out or in connection with the Supplier’s Services.
5.3 Changes to Services
- The Supplier must immediately notify its BananaLab account manager in writing of any material change to any of its Services.
- Following receipt of a notice under clause 5.3(a), BananaLab, as agent of the Supplier, will notify any affected Customers of the change.
- If a Customer wishes to obtain a refund for the Services, the Supplier must direct the Customer to the BananaLab customer service team to process the refund voucher on behalf of the Customer.
5.4 Customer complaints
The Supplier must:
- use reasonable endeavours to resolve any disputes with Customers regarding the performance, non-performance or failure to perform the Services satisfactorily within one week of BananaLab giving the Supplier written notice of the complaint;
- promptly notify BananaLab in writing of any disputes it has with any Customer, including a summary of the dispute and steps taken to resolve the dispute. Notification must be by email to BananaLab at Hello@BananaLab.com.au;
- co-operate fully with BananaLab to deal promptly with any Customer request for a refund on grounds of breach of the Supplier’s standard terms and conditions or any law, or in any other circumstance where the Customer has a justifiable complaint in relation to the Supplier’s Services; and
- if BananaLab issues a refund or refund voucher to the Customer in respect of a Service, the Supplier must refund to BananaLab the Net Price for that Service.
5.5 Supplier’s trading status
The Supplier must give BananaLab one months’ prior written notice of any cessation of its business or a material part of it.
5.6 Supplier is an independent contractor
The Supplier is an independent contractor, not an employee, agent, partner, franchisee, or representative of BananaLab.
- The Supplier is not authorised to, and will not attempt to, create or assume any obligation or liability, express or implied, in the name or otherwise on behalf of BananaLab.
- The Supplier must not, and must not encourage or assist any other person to, take any action or omission which negatively impacts the reputation of BananaLab or is reasonably likely to do so.
6- BANANALAB OBLIGATIONS
6.1 Payment for Services
A- BananaLab, as agent for the Supplier, will receive payment from Customers for the Supplier’s Services.
B- Upon the Supplier confirming through the Supplier Portal completion of delivery of a Service to a Customer in accordance with clause 8.4, BananaLab must pay to the Supplier in accordance with clause 6.1(d) the Net Price for the Service.
C- The Supplier acknowledges and agrees that BananaLab will obtain a financial benefit from this agency relationship, which in the case of each Service is the difference between the Box retail price and the Net Price..
D- unless otherwise agreed, BananaLab will make payment for the Supplier’s Services direct to the bank account nominated by the Supplier by electronic funds transfer, which will be processed to the Supplier’s bank account on the Thursday following the date on which the Customer received the Service from the Supplier (Payment Processing Date), subject to adjustments made in accordance with clause 4(d).
E- BananaLab may set-off against any amount owing to the Supplier any amount owing by the Supplier to BananaLab.
A- The Supplier must provide BananaLab with the price of its Services (inclusive of any GST or similar overseas equivalent duty), as determined by the Supplier (Net Price).
B- For so long as a Voucher is valid, the Supplier must not increase the Net Price as stated to BananaLab.
C- Unless otherwise agreed, all Net Prices offered to BananaLab must at all times, unless otherwise agreed, be no less favourable than prices for the Services offered by the Supplier to any other party, including through its own distribution channels.
D- The Supplier must give BananaLab at least two weeks’ written notice of any change to the Net Prices.
E- A Net Price change will only take effect on the effective date notified by BananaLab to the Supplier and the value of any Vouchers sold or bookings made before that effective date will be at the Net Price applicable at the date of sale.
8- BOOKING SYSTEMS and PROCESSES
A- BananaLab does not guarantee and the Supplier acknowledges that there is no guarantee that BananaLab will sell any Supplier Services.
B- Subject to clause 8.2, the Customer will contact and liaise with the Supplier directly to arrange supply of the Services.
C- The Supplier must clearly explain to the Customer any conditions applying to supply of a Service including any conditions that may disqualify a Customer from receiving the benefit of the Service or may cause delivery of the Service to be cancelled or delayed and will notify the Customer of any subsequent changes.
8.2 Supplier Portal
A- The Supplier must only use the Supplier Portal in accordance with this Contract.
B- The Supplier’s details must be entered in the Supplier Portal or provided in writing to BananaLab.
C- The Supplier must promptly notify BananaLab of any changes to any Supplier details entered in the Supplier Portal, including any changes to the Supplier’s authorised persons.
D- The Supplier acknowledges and agrees that:
- it is the sole responsibility of the Supplier to ensure that the Supplier Portal includes its current contact details;
- all Customer bookings must be processed through the Supplier Portal;
- it must not accept a Voucher or booking directly from a Customer; and
- in relation to the supply of the Services, the Customer’s contractual relationship will be exclusively with the Supplier and subject to the Supplier’s applicable terms and conditions.
E- The Supplier will not be paid where a Service is supplied or performed after the Expiry Date or where a Voucher is invalid.
F- If the Supplier wishes to cancel or postpone a booking, it will notify the Customer as soon as possible to allow the Customer as much time as possible to reschedule or cancel. If a booking is cancelled, the Supplier must immediately cancel the booking in the Supplier Portal so that the relevant Voucher can be re-activated.
G- If a Customer wishes to change the Booking Date, the Supplier is responsible for ensuring the new Booking Date is no later than the Expiry Date by entering the new Booking Date into the Supplier Portal.
8.3 Availability of Services
During the Term:
A- the Supplier must have sufficient supplies of the Services available to meet BananaLab Customer demand;
B- the Supplier must reserve and honour all Customer bookings processed through the Supplier Portal; and
C- if the Supplier is unable to comply with clause 8.3(a) due to circumstances beyond its reasonable control it must immediately notify BananaLab in writing.
8.4 Confirmation of delivery of Service
Upon completion of delivery of a Service to a Customer, the Supplier must confirm delivery by logging on to the Supplier Portal and confirming, where indicated, that the Service the booking for was previously validated through the Supplier Portal has been delivered.
9- SUPPLIER WARRANTIES
A- The Supplier warrants:
- that the Supplier has full rights, power, legal capacity and authority to enter into this Contract and to carry out the terms of, and perform its obligations, under this Contract;
- it has and will maintain during the Term all necessary licences, authorisations, or any qualification concerning its ability to lawfully and safely deliver or perform the Services;
- it will at all times comply with all applicable laws relating to the delivery or performance of the Services, including where relevant, those relating to the transportation of Customers; and
- all goods supplied to Customers as part of the Services are free from all liens and encumbrances and the Supplier has good marketable title to those goods.
B- The warranties in clause 9(a) are in addition to any other warranties or guarantees implied by law or provided by the Supplier.
C- Upon request by BananaLab, the Supplier must provide BananaLab with evidence to BananaLab’s reasonable satisfaction of the licences, authorisations and qualifications it holds in accordance with clause 9(a).
10- SUPPLIER INSPECTION
The Supplier authorises representatives of BananaLab at reasonable intervals (and on reasonable prior notice) to inspect premises at which Services are performed or delivered for the purpose of BananaLab verifying that the Services conform to the description of the Services in the Catalogue, represent value for money and are otherwise being performed in accordance with the terms of this Contract.
A- During the Term, the Supplier must, at its own expense, effect and maintain on its own behalf:
- product liability insurance to a minimum value of $10,000,000 for any one originating cause for any liability arising in connection with any Services supplied to a Customer;
- public liability insurance to a minimum value of $20,000,000 for any one originating cause in respect of any property damage, bodily injury or death to any person;
- workers’ compensation insurance in a form prescribed or approved under any workers’ compensation legislation applicable to the Supplier; and
- where required by BananaLab, professional indemnity insurance to a minimum value of $5,000,000 any one originating cause for any liability arising in connection with any advice or recommendation provided to a Customer.
B- Upon request by BananaLab, the Supplier must give BananaLab evidence of the insurance policies affected and maintained in accordance with clause 11(a).
The Supplier must indemnify and pay to BananaLab on demand an amount equal to all damages, losses, costs, expenses and charges suffered or incurred by BananaLab, its related entities, officers, employees, agents and contractors arising out of or in connection with:
A- any breach by the Supplier of this Contract, including any breach of the warranties in clauses 9 and 14.2(b);
B- any negligence or misconduct of the Supplier in connection with this Contract;
C- any claim by a Customer (or any third party) relating to the supply of the Services; and
D- any misrepresentation or material inaccuracy in any information provided to BananaLab by or on behalf of the Supplier.
13- LIMITATION OF LIABILITY
A- The Supplier acknowledges and agrees that:
- BananaLab’s liability to the Supplier is limited to breach of its obligations under this Contract;
- BananaLab is not liable to the Supplier for the conduct of Customers in booking or using the Services; and
- BananaLab is not the provider of the Services and has no liability to Customers in relation to the performance of the Services.
B- To the maximum extent the law permits and notwithstanding any other term of this Contract, BananaLab excludes all liability whatsoever to the Supplier for indirect, special or consequential loss or damage of any kind, loss of business revenue, loss of profits, failure to realise expected profits or savings, overhead costs, loss of reputation and goodwill and commercial or economic loss of any kind arising in contract, tort (including negligence) under any statute or otherwise arising out of or in any way connected with this Contract.
C- Where BananaLab’s liability cannot be excluded, such liability is limited to the value of the Services to which a claim relates.
14- INTELLECTUAL PROPERTY
14.1 BananaLab’s Intellectual Property
Nothing in this Contract operates to transfer any title to BananaLab’s Intellectual Property Rights.
14.2 Supplier’s Intellectual Property
A- The Supplier warrants that it is the owner (or authorised licensor) of all Intellectual Property in connection with the Services and any materials supplied by the Supplier to BananaLab for inclusion in a Catalogue or other publication and grants a non-exclusive license to BananaLab to use, copy and modify such Intellectual Property, solely for the purpose of describing and/or advertising the Services in its Catalogues and Boxes and on its website and in other media.
B- The Supplier warrants that BananaLab’s use of the Supplier’s Intellectual Property Rights in accordance with this Contract will not infringe any third party rights.
C- The provisions of this clause will survive termination of this Contract.
15.1- Confidential Information
During the Term and after termination of the Contract each party:
A- must not use Confidential Information of the other party for a purpose other than performing its obligations (or exercising its rights) under the Contract; and
B- must not disclose the other party’s Confidential Information to any person except with the prior written consent of the other party or in accordance with clause 15.2.
15.2- Disclosure of Confidential Information
During the Term a party may disclose Confidential Information of another party to any of its directors, others officers, employees (Recipient) to the extent that disclosure is reasonably necessary for the purposes of the Contract. The disclosing party must ensure that a Recipient is made aware of and complies with the disclosing party’s obligations of confidentiality under the Contract as if the Recipient was a party to the Contract.
Clause 15.1 does not apply:
A- to Confidential Information which is at the date of the Contract, or at the time of its use or disclosure, is publicly known other than as a consequence of the receiving party’s breach of the Contract;
B- to Confidential Information which can be shown by the receiving party to have been known by the receiving party before the date of the Contract; or
C- to the extent disclosure of Confidential Information is required by any law or the rules of any recognised stock exchange, provided that, to the extent permitted by law, the disclosing party has consulted with the other party as to the form and content of the disclosure.
16.1- Termination without cause
A- BananaLab may terminate this this agreement at any time without cause by giving the Supplier at least 30 days’ prior written notice.
B- The Supplier may terminate this agreement at any time without cause by giving BananaLab at least 3 months’ prior written notice.
16.2- Termination for breach
Either party may, with immediate effect, terminate this Contract at any time, by giving written notice of termination to the other party, upon the happening of any one or more of the following events:
A- the other party is in breach of an obligation under this Contract and the breach is either not capable of remedy or has not been remedied within two weeks of the party in breach receiving written notice from the other party requiring remedy to the reasonable satisfaction of the other party;
B- where the other party is an individual, he or she commits an act of bankruptcy or is declared bankrupt or insolvent or his or her estate otherwise becomes liable to be dealt with under any law relating to bankruptcy and/or insolvency;
C- where the other party is a company, a resolution is passed or Court order made for the winding up of that party or an administrator is appointed to that party pursuant to any relevant law; or
D- a receiver or manager or receiver and manager is appointed to the assets or undertaking of the other party or any part thereof.
16.3- Consequences of termination
A- the Supplier must honour all confirmed Customer bookings for the Supplier’s Services in accordance with the terms of this Contract;
B- any clause which by its terms is intended to survive the expiration or termination of this Contract will do so, including clauses 12, 13, 14, 15, this clause 16.3 and clause 20; and
C- each party retains its rights under this Contract and at law in respect of any breach of this Contract by the other party.
17- FORCE MAJEURE
No party is liable to the other for any delay or failure to perform any of its obligations under this Contract if the delay or failure is due to a Force Majeure Event. Each party must use reasonable endeavours to mitigate the extent of any delay or failure as a result of a Force Majeure Event and its adverse consequences.
Any notice required to be given by one party to the other party under the Contract must be sent:
A- In the case of a notice to the Supplier, to the Supplier contact details in the Supplier Portal; and
B- in the case of a notice to BananaLab, to Tom Dufraisse Level 1, 455 Bourke Street Melbourne VIC 3000, hello@BananaLab.com.au or as notified by BananaLab to the Supplier from time to time; and by courier, deemed to be received on proof of delivery; or email, deemed received upon successful transmission (providing such notice is sent during normal working hours on a business day in the place or receipt or, if not, will be deemed received the next business bay).
A- To the extent that any supply made under or in connection with this Contract is a taxable supply, the recipient will pay, in addition to the consideration provided under this Contract for that supply (unless it expressly includes GST) an amount (additional amount) equal to the amount of that consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply. The recipient will pay the additional amount at the same time as the consideration to which it is referable.
B- If an amount in respect of GST is included in the total amount payable by BananaLab, the Supplier will, at the time of making the supply, or any other time as agreed, issue to BananaLab a “tax invoice” in the form prescribed by any relevant law or regulation.
C- If there is any amendment to the law or any other change in circumstances which affects or may affect the calculation of GST on a supply contemplated by this Contract or the amount of GST paid or payable in respect of any supply made under this Contract, the amount recoverable by the Supplier from BananaLab on account of the GST shall be adjusted accordingly.
20.1 Assignment and subcontracting
A- The Supplier may not assign, subcontract or otherwise transfer all or any part of this Contract without the prior written consent of BananaLab.
B- BananaLab may assign, subcontract or otherwise transfer all or any part of this Contract by giving the Supplier written notice (but without requiring the Supplier’s prior consent).
In interpreting this Contract, no presumption shall be made against the party that drafted the term. The singular includes the plural and vice versa. Words like including, for example, such as or similar expressions are to be interpreted as meaning including, without limitation. Headings are for convenience only and do not affect the interpretation of this contract.
20.4 Variation and Waiver
A- Subject to clause 20.4(b), no variation of this document will be of any force or effect unless it is in writing and signed by the parties to this Contract. The fact that a party fails to do, or delays in doing, something the party is entitled to do under this Contract, does not amount to a waiver of any obligation of, or breach of obligation by, another party. A waiver by a party is only effective if it is in writing. A written waiver by a party is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.
B- BananaLab may, from time to time amend these standard terms and conditions by giving notice in writing to the Supplier, such amendment to take effect on and from the date of a notice unless a later date is stipulated in the notice. BananaLab may not amend prices without the agreement of the Supplier.
20.5 Governing law
This Contract and performance under it shall be governed by the laws of Victoria without regard to its choice of law principles. Each party unconditionally accepts the jurisdiction of the courts of Victoria and any related appellate court provided that each party shall have the right to enforce a judgment of those courts in a jurisdiction in which the other party is incorporated or in which any assets of the other party may be situated.