GEMINI BICYCLE CENTRES PTY LTD

ABN 32 003 102 538 ACN 003 102 538

 

 

STANDARD TERMS & CONDITIONS OF SALE.

Ver.G30813NM1

 

 

 

Please read this agreement carefully and do not hesitate to have professional advice from your accountant or solicitor.

 

Supply of goods by Gemini Bicycles is subject to the acceptance of these terms and conditions. Entering an order on the internet will denote acceptance of these terms.

 

 

GEMINI BICYCLE CENTRES PTY LTD - STANDARD TERMS & CONDITIONS OF SALE.

Ver.G30813nm1

The parties to this agreement are GEMINI BICYCLE CENTRES PTY LIMITED A.C.N. 003 102 538

"the wholesaler" or “Gemini” and "the retailer". The "retailer" also includes the retailer's executors, administrators and successors.

The Retailer is ……………………………………………………………..(for orders placed to Gemini on-line, the sales account choice will be used as identification of the Retailer.)

SCOPE

This agreement covers transactions of Gemini and Mongoose brand bicycles and Mongoose spare parts.

 

SECTION 1

SUPPLY OF SAFE PRODUCTS.

The purpose of this section is to define the relationship between Gemini and the retailer in relation to assembly of bicycles and their subsequent sale and supply to customers and to allocate responsibility for providing customers with safe products which comply with the applicable Australian Standards and which suit any purpose of the bicycle intended by the manufacturer.

 

1.1 The retailer must, in assembling any bicycle supplied by Gemini:

(a) Comply strictly with any written instructions or directions provided in writing by the manufacturer of the bicycle;

 

(b) Comply strictly with all Australian Standards in force from time to time which regulate assembly and re-supply of bicycles but only to the extent that compliance is within the control or power of the retailer; and

 

(c) With due care and skill, fit in a proper and safe manner, all components supplied with a bicycle and, if displaying the bicycle, do so with the components correctly fitted and the brake cables mounted to the correct brake levers.

 

1.2 The retailer agrees to supply Gemini Brand and Mongoose Brand bicycles only in a ready to ride condition.

 

1.3 The retailer agrees to take all reasonable care to ensure that a bicycle supplied is of the correct type and size for the intended rider whilst the purchaser makes the final choice of type and size.

 

1.4 The retailer agrees to explain and demonstrate directly (face to face with the customer rather than just in writing) the correct operation of quick release mechanisms where there are any such devices on a bicycle being supplied.

 

1.5 The retailer agrees to provide, with each bicycle that is sold, a copy of all of the bicycle manufacturers' manuals supplied for that bicycle by Gemini

 

1.6 An addendum with some advisory procedures for bicycle retailers is attached to this agreement.

 

1.7 The Retailer agrees to make genuine attempts to recommend bikes, which are “fit for purpose”. The parties to this agreement acknowledge that Gemini must make information about “purpose” known to the retailer and that the retailer must make that information known to all sales staff.

 

1.8 The Retailer acknowledges that they are aware that Gemini strongly recommends to the Retailer the carriage of Public and Product Liability insurance cover of at least $1,000,000.

 

1.9 The retailer expressly agrees to not offer to take orders for the wholesaler’s products on the internet. Marketing, not selling, on the internet is permitted under this agreement. This condition arises from the need to directly assess the customers needs, to fit the bike and to demonstrate aspects of the bike.

 

SECTION TWO.

COMMERCIAL

The purpose of this section is to define operational aspects of the commercial relationship between Gemini and the Retailer.

 

2.1. Types of accounts.

 

a)      Normal account. Used for all ex-warehouse sales and for forward orders (see forward ordering below) except when the retailer nominates to commit to payment on indent terms at the time of ordering. (see indent below).

 

b)      Indent account (where the last three characters of the Retailer’s account code are “IND”). This is an optional additional account. Orders are placed early and prices are discounted on the invoice. Special characteristics of this “indent” process are:

(i)           Indent orders must be placed on the specified Gemini Order Form which includes the internet form.

(ii)         Indent payments are to be made against a faxed or emailed invoice generated by Gemini during the order picking process.

(iii)       Payment is to be within three working days of date of the initial (proforma) invoice by direct deposit or TT. Cheques are acceptable if sent by express post.

(iv)        An indent order must be received by Gemini before 11pm on Gemini’s last working day of a month, at least two months prior to the requested month of delivery e.g. order cut off for October Indent deliveries is 11pm on 31 August. Orders placed within a month must be received by Gemini before 11pm on our last working day of that month

(v)          A special fee applies to an indent order if it is cancelled. The cancellation fee is the "Order Date" discount, (see below) plus 2.5% of the total value of the order or section of order that is cancelled.

(vi)        Where an indent order is not paid in the agreed time the sale will be transferred to the retailer’s normal account and the indent sale will be reversed. The price charged on the new invoice on the normal account will be what it would have been if originally placed on the normal account plus 2.5%.

 

Indent orders receive a 7.5% discount in addition to the order date discount of 4%/6% (faxed) or 5%/7.5% (internet) (see below). Gemini may, at its sole discretion, not accept an indent order from a retailer.

 

2.2 “Price Changes”. (clause applicable to non-indent accounts)

Gemini expresses payment terms in days-from-invoice rather than days-from-statement. The 45th day from invoice is notionally referred to as the “due date” and a system of price adjustment charges is applied to payments received later than 45 days. Adjustment is calculated daily at a rate of .0005% (18.18% p.a.) applied to the sale value before GST. GST is applied to the resultant price change. The “price change” is on a consolidated invoice level rather than product-by-product. A charge note is produced.

 

If an invoice is paid “late” then the retailer must pay the adjustment to Gemini, once on the account. When the adjustment debit for a month for the Retailer’s account would be less than $3.00, no transaction is recorded. Price adjustments are capitalized and treated as having 45 days themselves to be settled.

 

The retailer agrees to pay to Gemini, price change amounts which arise through the running, as described above, of the “price changes” system.

 

2.3 Forward Ordering.

Gemini refers to orders placed for delivery at a later date as “forward orders”. Gemini applies, to all forward orders a system of discounts called “Order Date” discounts. Gemini defines the month in which an order is received depending on whether it is received before 11pm on Gemini’s last working day of that month. Gemini’s order forms allow the Retailer to say in which month delivery is required.

 

After a delivery month is nominated Gemini may deliver the order at any time during that calendar month. For example, orders with a scheduled delivery date in the month of September can be shipped out at any time during September.

 

Order Date Discount Structure

(i)      Orders placed by phone and/or placed for delivery in the same calendar month as placement receive no ‘order date’ discount.

(ii)    Orders placed in the month prior to nominated delivery month receive 2.5% ‘order date’ discount if placed on the internet and 2% if placed by fax on the forward order form.

(iii)  Orders placed in the second month prior to nominated delivery month receive 5% ‘order date’ discount if placed on the internet and 4% if placed by fax on the forward order form.

(iv)   Orders placed in the third month prior to nominated delivery month receive 7.5% ‘order date’ discount if placed on the internet and 6% if placed by fax on the forward order form.

 

Order Date discounts are separate and additional to any settlement or indent discounts. For example an on-line order placed in the third month prior to delivery and selecting indent account terms receives a 15% (7.5 + 7.5) discount. This is shown on the invoice.

 

Gemini will add an additional 2% “Gemini Late” discount to an order if the goods are not shipped out by Gemini within the specified month of delivery. This does not apply to the first importation of a new model. “Gemini Late” and “Order Date” discounts apply to “on-line” or faxed forward orders only and not to phoned or ex-warehouse sales. Cancellation of “on-line” and faxed forward orders is possible if submitted in writing prior to Gemini’s dispatch. In such a case, a cancellation fee does apply and it is the "Order Date" discount percentage applied to the value of the order being cancelled plus, in the case of indent cancellation, 2.5%.

 

Gemini may announce that forward stock for a particular month is sold out. This means that Gemini may announce that orders for delivery in a particular delivery month, are no longer being taken. Reports showing forward availability and called “Open Order Reports” are sent out by Gemini from time to time.

 

2.4 Invoice Fee.

Gemini will charge a fee every time an order is entered. This fee recognises “one-off” order processing costs, which if recovered by Gemini this way, do not need to be added to the base price of the goods.

Generally, one order results in one invoice fee, but may be more if there are different delivery addresses or delivery dates or discount levels. In the year 2003 this order fee is $3 per order.

 

2.5 Settlement discounts (clause applicable to non-indent accounts)

a.       When the retailer makes payments they should advise Gemini by fax or email how to apply the payment. If the retailer does not advise how to apply, then Gemini will have to determine the payment application.

b.      At the end of each month Gemini calculates settlement discounts based on the number of days from invoice date to payment date. Payment date is defined as the date that payment is receipted by Gemini. There are six bands of settlement discounts:

Ÿ         payment into Gemini’s bank account on day 1 - day 7 after invoice date 5%

Ÿ         payment into Gemini’s bank account on day 8 - day 14 after invoice date 4%

Ÿ         payment into Gemini’s bank account on day 15 - day 21 after invoice date 3%

Ÿ         payment into Gemini’s bank account on day 22 - day 28 after invoice date 2%

Ÿ         payment into Gemini’s bank account on day 29 - day 35 after invoice date 1%

Ÿ         payment into Gemini’s bank account on day 36 - day 45 after invoice date 0.5%

 

c.       Payments on day 0 (invoice date) are not counted. NO (zero!) settlement discount is paid for zero days because of computation difficulties.

d.      Due to the complexity presented by six discount levels and by the need to know the actual final deposit date the retailer is asked to not deduct the discount from payments. Instead, Gemini calculates the discount monthly and provides a credit as a reversal of sales values. Credits may be picked up in the normal way during later payments.

e.       When the total credit for the month would be less than $3.00 no credit is processed.

f.        As result of this system, many Retailers find credits mounting on their account. If a Retailer fails to apply payments to credits (“pick up” credits) Gemini may, at its discretion after a credit is more than 60 days old, offset such credit against fresh invoices for goods. In such a case the Retailer will be advised in writing. If, in spite of this action, the retailer then pays the whole amount of an invoice already offset with credits by Gemini, the overpayment may be returned or may be left on the account not earning interest. The purpose of this clause is to prevent credits from accumulating indefinitely. If Gemini has to make the decision about how to apply, it will take up the oldest items.

 

SECTION THREE.

LOCATION OF SELLING and RETAIL ONLY SELLING.

The purpose of this section is to specify (a) the location or locations that the retailer requests Gemini to supply and (b) to restrict the movement of products away from the retailer's sites of operation other than through retail sale. "Retail sale" is understood to mean "sold to the enduser, consumer or the ultimate user".

3.1 Retailer's nominated addresses (list below).

(Please list every location which you seek permission to have Gemini’s products located at. This may include “retail” and “non-retail” locations. A non-retail location could be a storage unit or any place where the goods are not on show to the public.)

location 1 ……………………………(In case of on-line ordering, the locations previously nominated

location 2 …………………………… and agreed to are the only ones applicable to these goods.)

 

3.2 Other addresses.

If there is a further address or addresses that the retailer will on any occasion deliver Gemini's product to, transfer Gemini's product to, hold Gemini's product at, lend Gemini's product to, offer Gemini's product from, promote Gemini's product at, advertise as an outlet for Gemini's product, name as a pick-up address for Gemini's product, use as an address to perform credit or debit card transactions for Gemini’s product, store or assemble Gemini's product at, or move Gemini's product via whilst en route to a nominated address; then such further address will be added on the lines below by the retailer. These are also nominated addresses

.....................................................................................................................................................

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(if more space is required please use the back of this page and it will become page 5(a)

3.3 Agreement

The retailer agrees to

a.       make retail sales of Gemini's products only at an address nominated on this form as a retail outlet

b.      physically locate Gemini's products only at an address nominated on this form

c.       sell Gemini's products only by retail sale, unless section 3.4 applies.

 

3.4 Exception to Section 3, Cl (3).

The exception to the preceding clause is that sales may occur between retailers who have both entered this agreement with Gemini. A register of retailers is maintained at Gemini's Sydney office. As the list varies from time to time, a retailer intending to dispose of Gemini's goods to another retailer under this clause must receive written permission from Gemini before actually supplying the product and must retain that permission. When goods are purchased in this way the purchaser is bound by the preceding clause as if the goods were purchased from Gemini.

 

3.5 Brochure Territories

The retailer may produce its own marketing materials and distribute them as they choose. Gemini may produce marketing materials including brochures and newspaper advertisements for some of their products and make these available to the retailer for distribution, or may arrange distribution on the retailer’s behalf. In the case of Gemini-produced materials the areas of distribution of the materials for the retailer need to be agreed to by Gemini before instructions for brochure distribution will be made. Such areas are known herein as “brochure territories”. The Retailer expressly agrees that final rights to a brochure territory are attached to Gemini and do not accrue through use, to the retailer.

 

SECTION FOUR

4.1 ADDITIONAL STANDARD TERMS AND CONDITIONS OF SALE

The tender of delivery of goods by Gemini’s invoice is made upon the condition that if the Retailer or the agent thereof takes delivery of the goods, such action shall constitute confirmation on the part of the Retailer of the Retailer’s acceptance of an offer made by Gemini to the Retailer for the supply of goods and services by Gemini. Such an offer and acceptance are subject to the following conditions:

a.       Final payment shall be made by the Retailer to Gemini for all goods supplied, charges and services rendered before the 75th day after invoice date.

b.      Any amount paid after 45 days from the invoice date will attract price changes as set out in clause 2.2 of this agreement.

c.       The Retailer acknowledges that time is of the essence with regard to payment and that any breach of this term will enable Gemini to exercise all of its rights including its right to cancel further credit and to take legal action for the recovery of all sums outstanding.

d.      Should payment remain outstanding beyond 90 days from invoice the retailer is liable for all costs including legal costs and mercantile agent’s fees incurred by Gemini in recovering the amount outstanding.

e.       Property in any article sold by Gemini shall not pass from Gemini to the Retailer until the retailer has paid for the article in full and until all cheques and negotiable instruments have been cleared. The risk of loss or damage to the article shall be entirely at the risk of the Retailer.

f.        If the above payment terms are not met Gemini reserves the right to retake physical possession of the goods in full or partial satisfaction of the debt and for this purpose the Retailer hereby consents to Gemini or its agents or servants entering upon the Retailer’s premises.

g.       The Retailer hereby acknowledges that Gemini has a lien over all goods in its possession belonging to the retailer to secure payment of any or all amounts outstanding from time to time.

h.       The Retailer agrees that by placing an on-line order he or she has agreed to the contents of this Terms and Conditions document and is bound by the same.

i.         Where the Retailer is a corporation, the director or directors of that corporation, as they enter into this agreement, guarantee that, if the Retailer’s debts to Gemini can not be paid for reason of insolvency or company liquidation, then the director or directors will accept, jointly and severally, personal responsibility for those debts and the director or directors hereby personally guarantees those debts.

 

4.2 GOVERNING LAW.

These Terms and Conditions are governed by and must be construed in accordance with the laws of New South Wales and of the Commonwealth of Australia and the retailer hereby agrees to submit to the exclusive jurisdiction of the courts of those jurisdictions.

 

4.3 VALIDITY

a.         This agreement supersedes all previous agreements between the parties which covered on-line orders.

b.        This agreement is between the parties. The retailer specifically agrees that a sale of the retailer’s business would not result in Gemini having a duty or expectation under this agreement to supply or to offer to supply the purchaser. The Retailer also agrees to inform Gemini in writing of any change of ownership of the Retailer within seven (7) days from the date of such change and indemnifies the Wholesaler against any loss or damage incurred by it as a result of the Retailer’s failure to notify the Wholesaler of any such change.

 

4.4 VARIATION

Gemini may from time to time vary details and add or remove clauses in this agreement. Gemini must inform the retailer in writing as to any such variation. The parties are bound by any so advised variation providing that it applies only to transactions occurring after the date of advice of variation.

 

 

 

IN WITNESS WHEREOF the parties hereto have executed this Agreement on the ...................... (day)

 

........................ (month) ..................(year).

For the Wholesaler For the Retailer (if partnership please complete side by side)

 

signed ............................................... signed ........................................................

 

print name ....................................... print name ...................................................

 

Witness .......................................... Witness .........................................................

 

print name ....................................... print name ....................................................

 

 

Schedule 1. (Please complete A,B,or C)

 

A) Individual-Sole Trader

B) Partnership

 

C) Company or Trust

TRADE REFERENCES(Please complete)

1. ........................................................................................................Phone ....................................

 

2.      ........................................................................................................Phone ....................................

 

3.      ........................................................................................................Phone ....................................

 

 

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

End of this Terms and Conditions.

 

 

 

Addendum to GEMINI BICYCLE CENTRES P/L - STANDARD TERMS & CONDITIONS OF SALE.

 

A. Advisory procedures for bicycle retailers.

 

1. (a) Tell all buyers of bicycles that helmet use is mandatory.

(b) Point out warning labels on any built bicycle being sold.

 

2. Tell all buyers of bicycles that road regulations must be complied with.

 

3. Tell all buyers of bicycles that their bicycle should be brought back for a service soon regardless of whether or not the retailer charges for it and regardless of whether or not the owner thinks it is necessary. Failure to maintain the bike may lead to damage that is not covered by warranty.

 

4. Maintain a workshop that carries tools necessary for the servicing of any bikes that are made available through the retailer's store.