LUSH PRODUCTIONS PTY LTD – STANDARD TERMS AND CONDITIONS OF SALE

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions
In these Terms and Conditions, unless the context otherwise requires:

• Applicant means the person or entity who submitted the Credit Account Application to the Supplier.

• Business Day means a day that is not a public holiday, Saturday, or Sunday in Victoria, Australia.

• Claim means any claim, demand, action, proceeding, notice, litigation, investigation, or judgment whether based in contract, tort, statute, or otherwise.

• Confidential Information means all existing and future commercial, financial, and operational information in the possession of the disclosing party, including product codes, pricing structures, indent order data, and brand marketing strategies.

• Customer means the person or entity to whom a quotation or invoice is issued by the Supplier, or to whom Products are supplied.

• Delivery Date means the date stipulated in an Order for the delivery of the Products.

• Delivery Point means the structural point of delivery for the Products specified in the Order.

• Force Majeure means any event or circumstance outside the reasonable control of a party, including acts of God, national emergencies, industrial strikes, lockouts, labor shortages, supply chain blockages, or government-mandated trade restrictions.

• Goods or Products means the apparel, garments, footwear, accessories, and promotional stock related to the 'Hurley' brand or other brands supplied by the Supplier.

• Order means a written indent or immediate stock order placed by the Customer and accepted in writing by the Supplier.

• PPSA means the Personal Property Securities Act 2009 (Cth).

• PPSR means the Personal Property Securities Register.

• Supplier means Lush Productions Pty Ltd (A.C.N. 633 202 856) trading as Lush Productions of 14D Levanswell Road, Moorabbin, Victoria 3189.

• Unit Prices means the commercial prices payable by the Customer for the Products as confirmed in an Order.

1.2 Interpretation

• (a) Headings are for convenience only and do not affect contractual meaning.

• (b) The singular includes the plural and vice versa.

• (c) A reference to any statute includes any amendments or re-enactments of that statute.

2. APPOINTMENT AND STATUS

• 2.1 Independent Contractor: The Supplier is an independent commercial contractor. Nothing in these Terms and Conditions creates a partnership, joint venture, agency, or employment relationship between the parties.

• 2.2 Scope of Contract: These Terms and Conditions apply exhaustively to all Goods sold by the Supplier to the Customer and supersede any terms attached to a Customer purchase order.

3. ORDERS AND CANCELLATIONS

• 3.1 Binding Orders: An Order is only binding when approved or acknowledged in writing by an authorized officer of the Supplier.

• 3.2 Order Cancellations & Fees: The Customer cannot cancel an Order once acknowledged by the Supplier without written consent. If consent is granted, the Customer must pay a cancellation fee equivalent to 30% of the gross value of the cancelled Order. This fee represents a genuine pre-estimate of the Supplier's administrative loss and inventory handling costs.

• 3.3 Indent Orders: Any adjustment or proposed cancellation of a specialized indent order must be submitted in writing a minimum of three (3) months ahead of the scheduled delivery date.

• 3.4 Product Availability: All Orders are subject to seasonal stock availability. The Supplier reserves the right to delay or cancel an Order by written notice without liability for loss.

4. DELIVERY CONDITIONS AND RISK

• 4.1 Freight Surcharges: Unless specified otherwise, all prices are quoted on an Ex Warehouse (Melbourne) basis. Freight will be arranged by the Supplier at the Customer's sole expense and billed separately based on volume and destination.

• 4.2 Access Liabilities: Delivery is strictly on a ground-floor/front-door basis. The Customer is solely liable for any delivery failure or surcharge resulting from vehicle height restrictions, narrow passages, or stairwell access issues.

• 4.3 Delivery Windows: Quoted delivery timelines are good-faith estimates only. Delays do not entitle the Customer to reject the delivery or refuse payment.

• 4.4 Delivery Re-scheduling: If a delivery is booked and fails because an authorized person over the age of 18 is not present to sign for the Goods, a mandatory re-delivery fee applies.

• 4.5 Transfer of Risk: All risk of loss, theft, or damage to the Products passes to the Customer immediately upon dispatch from the Supplier’s warehouse or delivery to the Customer's nominated carrier.

5. PRICING, GST, AND PAYMENT TERMS

• 5.1 Price Exclusions: All standard price lists, quotes, and calculations are exclusive of GST unless explicitly stated otherwise.

• 5.2 Account Payment Window: Approved credit account customers must pay all invoices within 30 days of the invoice date. A 2.5% settlement discount applies if paid within 7 days of the invoice date.

• 5.3 Non-Account / New Customers: Customers without an approved credit account must pay for stock in full prior to warehouse dispatch. New customers placing indent orders must submit a Credit Application within 4 weeks of order placement, failing which the Supplier may cancel the order without notice.

• 5.4 Default Interest: Unpaid accounts past the due date automatically incur interest at a rate of 15% per annum, calculated daily from the due date until paid in full.

• 5.5 Credit Card Surcharges: Credit card payments (Visa and Mastercard only) attract zero surcharge if paid within the agreed terms. Any credit card payment processed outside of terms automatically incurs a 1.5% processing surcharge.

• 5.6 No Set-Off Right: The Customer is strictly prohibited from withholding payment or attempting to set off or deduct sums from an invoice on the basis of a disputed claim or alleged cross-demand.

• 5.7 Debt Recovery Costs: The Customer is liable on a full indemnity basis for all legal fees, mercantile agency collection commissions, court costs, and internal administrative fees incurred by the Supplier in recovering overdue balances.

6. INSPECTION, DEFECTS, AND RETURNS POLICY

• 6.1 Strict 7-Day Inspection Window: The Customer must physically inspect all Products upon delivery. Any claim regarding defects, missing stock, shortages, or incorrect sizes must be logged with the Supplier’s Sales Support Head Office on (03) 8525 9999 within seven (7) business days of delivery. Time is of the essence; failure to log a claim within this period constitutes absolute acceptance of the Goods.

• 6.2 Proof Requirements: Every claim must be accompanied by the product item code, matching invoice number, and clear photographic evidence of the alleged defect.

• 6.3 Warranty Exclusions: No claim will be accepted if the damage or defect arises from:

  • (a) Transit damage caused by a carrier not directly employed by the Supplier.

  • (b) The natural characteristics of the materials or fabric (as outlined in the product care instructions on the website).

  • (c) Improper handling, commercial display cleaning, or customer misuse.

• 6.4 Return Authority (RA): No Goods may be returned to the warehouse without a formal, written Return Authority (RA) number issued by the Supplier. Returns arriving without an explicit RA label will be rejected at the dock.

• 6.5 Remedies: For valid, approved claims, the Supplier’s maximum liability is strictly limited to either replacing the items, repairing the items, or issuing a commercial credit note at the Supplier's absolute discretion.

• 6.6 Change-of-Mind / Non-Defective Returns: The Supplier is under no legal obligation to accept returns of non-defective stock. If the Supplier consents to a discretionary return:

  • (a) Stock must arrive in flawless, original retail packaging with all brand tags intact.

  • (b) All return freight costs must be prepaid by the Customer.

  • (c) A mandatory 25% restocking and handling fee will be deducted from any processed credit.

7. RETENTION OF TITLE (ROT) AND SECURITY INTERESTS

• 7.1 Retention of Title: Legal and equitable title to all Goods supplied remains exclusively with the Supplier and will not pass to the Customer until the Supplier has received payment in full in cleared funds for those specific Goods and all other outstanding balances.

• 7.2 Fiduciary Bailee Status: Until title passes, the Customer holds the Goods as fiduciary bailee for the Supplier. The Customer must store the Goods separately from third-party stock, keep them clearly marked as the property of the Supplier, and maintain full insurance coverage over them.

• 7.3 Right of Entry and Repossession: If the Customer defaults on payment, breaches these terms, or experiences an Insolvency Event, the Customer grants an irrevocable license to the Supplier and its agents to enter any commercial premises occupied or controlled by the Customer, without prior notice, to inspect and repossess the Supplier's Goods. The Supplier is not liable for trespass or damage during this process.

• Proceeds of Retail Sale: If the Customer sells the Goods before title passes, the Customer receives and holds the retail proceeds of such sale on trust for the Supplier in a separate, identifiable bank account and must immediately remit those funds to the Supplier to clear any outstanding indebtedness.

8. PERSONAL PROPERTY SECURITIES ACT 2009 (CTH) (PPSA)

• 8.1 Grant of Security Interest: The Customer acknowledges that these Terms and Conditions constitute a security agreement for the purposes of the PPSA. The Customer grants a security interest, including a Purchase Money Security Interest (PMSI), to the Supplier over all past, present, and future apparel, inventory, and accessories supplied, and over the proceeds of sale of such inventory.

• 8.2 Commercial Registration Threshold: Where the Supplier approves a commercial credit limit of $5,000 or more, the Supplier will register its security interest on the Personal Property Securities Register (PPSR). The Customer must provide all reasonable assistance and execute all documents required to perfect, preserve, or maintain this registration.

• 8.3 Commingling and Mass Attachment: If apparel or inventory supplied by the Supplier is commingled, mixed, or displayed with third-party inventory such that the specific identity of the Supplier's stock is obscured, the Supplier's security interest and ownership title will automatically attach to an equivalent proportion of the total mass, bulk, or commingled commercial stock.

• 8.4 Contracting Out and PPSA Waivers: To the maximum extent permitted by law, the parties contract out of the provisions listed in section 115(1) of the PPSA. The Customer contractually waives its right to receive any notices, statements, or demands under sections 95, 118, 121(4), 130, 132(3)(d), and 132(4) of the PPSA.

9. INTELLECTUAL PROPERTY AND ASSIGNMENT

• 9.1 Intellectual Property Ownership: The Customer explicitly acknowledges that the Supplier (or its licensors) is the sole owner of all Intellectual Property rights vesting in the Products, including the trademarks, logos, patterns, and design rights of the 'Hurley' brand. No license or transfer of IP is granted under this contract.

• 9.2 Image Reproduction Controls: The Customer must not copy, reproduce, download, or distribute designs, photography, catalogues, or technical specifications of the Products without explicit written authorization from a director of the Supplier.

• 9.3 Non-Assignment: The Customer is strictly barred from assigning, factoring, or transferring any of its rights or obligations under these Terms and Conditions without the prior written consent of the Supplier.

10. RESTRICTED DISTRIBUTION AND COMMERCIAL COVENANTS

• 10.1 Premium Brand Positioning: The Customer acknowledges that the Supplier's inventory consists of specialized, premium products and that marketing policy limits distribution to approved retail environments. Account approval is granted strictly for the specific brick-and-mortar storefront layout nominated in the application.

• 10.2 Subsequent Store Restrictions: The Customer must not display, market, or sell the Products at any alternative, secondary, or modified retail location without obtaining prior written approval from the Supplier.

• 10.3 Prohibited Trade Practices: The Customer is strictly prohibited from engaging in trade practices known as diverting, transshipping, or parallel importing/exporting. Selling stock to unauthorized wholesalers, brokers, or non-approved retail entities constitutes an incurable material breach of this contract.

11. E-COMMERCE AND ONLINE SELLING BANS

• 11.1 Blanket Online Selling Ban: The Customer must not sell, list, advertise, or market any of the Supplier’s products online, via mail order, or through e-commerce channels without prior written authorization from a director of the Supplier.

• 11.2 Third-Party Marketplaces: Under no circumstances will approval be granted for sales through third-party unmonitored digital marketplaces, including but not limited to eBay, Amazon, Catch, and Facebook Marketplace.

• 11.3 Geographical Shipping Restraints: Authorized online retailers are strictly prohibited from advertising for sale or shipping Hurley products to destinations outside the territorial borders of Australia.

• 11.4 Digital Asset Takedown Requests: The Customer must immediately comply with any written request by the Supplier to remove product images, promotional photography, or brand graphics from its website or social media feeds.

• 11.5 Search Engine Optimization Restrictions: The Customer must not engage in search engine optimization (SEO) tactics or search engine marketing (SEM) that reduces the digital visibility of the Supplier. The Customer is strictly prohibited from bidding on trademarked keywords (e.g., "Hurley", "Lush Productions") via Google Ads or similar services without written consent.

• 11.6 Sanctions for Breach: Any breach of this Clause 11 or Clause 10 will result in the immediate and permanent closure of all credit and account facilities, the cancellation of pending orders, and the immediate acceleration of all outstanding invoices as payable on demand.

12. TERMINATION RIGHTS

• 12.1 Supplier Termination: The Supplier may immediately terminate this agreement and cease all further product supply if the Customer:

  • (a) Commits an incurable breach of these Terms and Conditions.

  • (b) Fails to remedy a curable breach within 7 business days of written notice.

  • (c) Experiences an Insolvency Event, enters liquidation, administration, receivership, or is unable to pay its debts as they fall due.

• 12.2 Convenience Termination: The Supplier may terminate these terms without cause by giving the Customer 60 days written notice.

• 12.3 Post-Termination Liabilities: Upon termination, the Customer must immediately return all Confidential Information and work products, and must purchase all remaining ordered stock in production at cost plus the Supplier's standard profit margin.

13. AUSTRALIAN CONSUMER LAW AND LIMITATION OF LIABILITY

• 13.1 Statutory Guarantees: The Products come with non-excludable consumer guarantees provided under the Australian Consumer Law (ACL). Nothing in these terms excludes, restricts, or modifies those rights.

• 13.2 Commercial Liability Cap: To the full extent permitted by law, the Supplier's maximum aggregate liability for any Claim arising out of or in connection with the supply of Goods is strictly capped at, at the Supplier’s absolute discretion:

  • (a) The replacement of the Products or the supply of equivalent Products.

  • (b) The repair of the Products.

  • (c) A refund of the specific purchase price paid by the Customer for the affected Goods.

• 13.3 Consequential Loss Exclusion: In no event will the Supplier be liable for any indirect, special, economic, or consequential losses, including loss of profits, loss of revenue, business interruption, or brand damage suffered by the Customer or any third party.

• 13.4 Liability Discharge: The Supplier is entirely discharged from all civil liabilities under contract or tort at the expiration of one (1) year from the date the Customer received the Products.

14. DISPUTE RESOLUTION PROTOCOL

• 14.1 Notice of Dispute: Neither party may initiate formal court proceedings (except for urgent interlocutory relief) unless they have complied with this clause. A party claiming a dispute has arisen must issue a detailed written notice to the counterparty.

• 14.2 Mandatory Executive Negotiation: Within five (5) Business Days of the dispute notice, senior executives from both companies must meet in good faith to attempt to resolve the issue via commercial negotiation.

• 14.3 Mediation Trigger: If negotiation fails within five days, the dispute must be referred to formal mediation in Victoria. If the parties cannot agree on a mediator within 7 days, a mediator will be formally appointed by the Law Institute of Victoria.

• 14.4 Continued Payment Obligations: The existence of a dispute does not relieve the Customer of its contractual duties. The Customer must continue to pay all undisputed invoice amounts by their respective due dates.

15. GOVERNING LAW AND SEVERABILITY

• 15.1 Choice of Jurisdiction: These Terms and Conditions are governed by, and must be construed in accordance with, the laws of Victoria, Australia. The parties irrevocably submit to the exclusive jurisdiction of the courts of Victoria.

• 15.2 Severability: If any provision of these Terms is found by a court to be illegal, void, or unenforceable, it must be read down to the minimum extent necessary to make it valid. If reading down is impossible, the offensive clause will be severed, and the remaining provisions will continue with full force and effect.