1. Defined Terms

1.1 In these Conditions, words importing the singular include the plural and vice versa. References to a party includes a corporation, trust, partnership, unincorporated body, government and local authority or agency, or other entity whether or not it comprises a separate legal entity and a reference to a party to this document includes the party’s successors, permitted substitutes and permitted assigns.

1.2 In these Conditions:

(a) App means the mobile application platform via which the Goods are provided;

(b) Associates means:

(i) in relation to a corporation (including a trustee of a trust, where the trustee is a corporation):

A. a related body corporate of that corporation;

B. a person who has a substantial holding in that corporation;

C. a director, secretary or officer of that corporation; or

D. any relative of any person holding office within the corporation;

(ii) in relation to a natural person:

A. any relative of that person; or

B. any corporation in respect of which the person is an Associate by virtue of this definition; and

(iii) in relation to a trust:

A. any person who is a trustee or a beneficiary under that trust; and

B. any person who is an Associate of any of the persons referred to by virtue this definition.

(c) Boup means Boupapp Pty Ltd ACN 660 984 510;

(d) CCA means the Competition and Consumer Act 2010 (Cth) and all related regulations, as amended from time-to-time;

(e) Claim includes any claim, legal action, demand, complaint, action, dispute or proceeding and all costs and expenses incurred in connection with it including lawyers’ fees and expenses on a solicitor/client basis;

(f) Conditions means these supply terms and conditions;

(g) Confidential Information means all pricing information, costs paid or payable to the Supplier by the Customer, all information received or developed under these Conditions, business affairs, operations and/or suppliers, contacts or clients of either party, any information disclosed by one party to the other and marked as confidential, any other commercially sensitive or other information which is not publicly available including (but not limited to) information relating to, arising from, or in connection with, these Conditions;

(h) Corporations Act means the Corporations Act 2001 (Cth) and includes the Corporations Regulations 2001 (Cth), both as amended from time-to-time;

(i) Customer means the party who has submitted the order for Goods via the App;

(j) Delivery Point means the location for delivery of the Goods, as nominated by the Customer;

(k) Drop Spot means the place as close to the Delivery Point as, in the opinion of the Supplier or its transport contractor, it is safe or prudent to deliver the Goods;

(l) Force Majeure means any cause or circumstance beyond the Supplier’s reasonable control, including but not limited to, pandemic or epidemic, any lack of production capacity or raw materials, strikes, lock-outs, labour disputes, fires, floods, acts of God or public enemy, malicious or accidental damage, delays in transport, breakdowns in machinery or restrictions or prohibitions by any government or any semi-government authorities or embargoes;

(m) Forced Labour means any activity, practice or conduct that would constitute an offence in relation to forced labour, involuntary servitude, debt bondage, human trafficking, modern slavery, or other slavery-like exploitation as prohibited or defined as a modern slavery offence under all application anti-slavery and human trafficking laws, statutes and codes from time to time in force, including (but not limited to) the Criminal Code Act 1995 (Cth) and other linked, related or similar legislation;

(n) Goods means goods which the Supplier lists on the App as being available to purchase by the Customer;

(o) GST means the tax payable on a Taxable Supply within the meaning of the GST Act;

(p) GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any related Act imposing such tax or legislation that is enacted to validate, recapture or recoup such tax;

(q) Guarantor means the Director/s of the Supplier, if the Supplier is a corporate entity;

(r) Intellectual Property means :

(i) all intellectual property whatsoever relating to the Goods where now existing or created after the date of these Conditions including (but in no way limited to) copyright and neighbouring rights, registered and unregistered trade and service marks, business and domain names, all rights in relation to inventions (including patents and patent applications), designs, confidential information, trade secrets, know how, research data, recipes, formulae, discoveries and any other intangible proprietary rights whether registered or not; and

(ii) all intellectual and technological property of whatever kind including but not limited to all patterns and designs artwork, protocols, patents and formula, compositions, mathematical equations, all processes, application, treatment and methodology, brand names, logos, words and phraseology used, all other non-descript material, documents and merchandise, service marks, know-how and all mental and human thoughts, ideas and intellect;

(s) Loss means any loss and includes without limitation, indirect, special or consequential loss or damage and is deemed to include economic loss, loss of opportunity, loss of profit or revenue, loss or damage in connection with clams against Boup or the Customer by third parties, liquidated sums or liquidated damages;

(t) Price Escalation means an increase in the cost of supplying the Goods incurred by the Supplier in the period between acceptance of a quote by the Customer, or an order by the Supplier, and the delivery of the relevant Goods, as a result of a Price Escalation Event;

(u) Price Escalation Event occurs where there is an increase in the cost to the Supplier of acquiring, producing or delivering the Goods (or raw material inputs required to produce the Goods), including those events or circumstances which are  outside of the Supplier’s reasonable control, as a result of an event including, without limitation, any one or more of the following:

(i) an increase in transportation costs, including changes to fuel prices, freight charges, importation costs and the like;

(ii) a tax, excise, duty, charge, levy or other impost charged by any domestic or foreign government;

(iii) a change in any law or regulation of any country; and

(iv) a change in current long term foreign currency exchange rates between Australia and any other foreign currency;

(v) Recipient means a party to these Conditions who is receiving a Taxable Supply;

(w) Related Body Corporate has the meaning given to the term in the Corporations Act;

(x) Supplier means the party named as such in the initial application formand their Associates, who is the party who has offered to provide the Goods to the Customer;

(y) Supply Maker means a party to these Conditions who is making a Taxable Supply;

(z) Taxable Supply has the meaning given to the term in the GST Act;

(aa) Variation means any modification, amendment or change to the terms of an order submitted by the Customer (whether or not such order has been accepted by the Supplier) including, without limitation, in relation to scheduling and re-scheduling, loading requirements, delivery times or delivery sites;

(ab) Working Hours means between 9:00 am and 5:00 pm, Monday to Friday (inclusive) excluding public holidays in the relevant State in which the Goods are being delivered to, or such other reasonable times mutually agreed between the parties.

2. Agreement Terms

2.1 The Supplier is taken to have accepted and is immediately bound, jointly and severally, by these Conditions at the point in time the Supplier accepts an order for Goods via the App (Agreement).

2.2 The Guarantor has agreed to guarantee the Supplier’s obligations under this Agreement, and unless expressly stated otherwise, any reference to Supplier in this Agreement is also a reference to the Guarantor.

2.3 Unless other terms and conditions are expressly accepted by the Boupby means of a written amendment to these Conditions signed by a validly appointed person of Boup and referring specifically to the Conditions to be amended, these Conditions shall exclude and supersede all prior discussions, representations and arrangements, and any other oral or written terms and conditions whether or not the same are endorsed upon, delivered with or referred to in any delivery docket or other document delivered with or referred to by the Supplier. For the sake of clarity, these Conditions prevail over any terms or conditions of the Supplier, even if notice of those terms or conditions has been given to Boup.

2.4 To the extent that any inconsistency arises between the terms of a quotation, invoice, purchase order or similar document and any clause of these Conditions, the terms of these Conditions prevail.

2.5 Upon acceptance or signing of this Agreement, Boup will allow access to the Supplier to create a ‘seller’ profile on the App, which will allow the Supplier to access all of the ‘seller’ functionalities of the App, including (but not limited to) listing Goods for sale to customers of Boup and advertising the Supplier’s business.

2.6 Upon being granted access to the App, the Supplier immediately accepts and agrees to be bound by the terms of use of the App, insofar as they relate to the Supplier’s access of it as a ‘seller’.

3. Orders

3.1 A listing of a product on the App by the Supplier is an offer to sell and overrides any price list otherwise provided by the Supplier. The Supplier will have the sole control over the price of Goods listed in the App, andmust comply with any price stated at the time an order is made.

3.2 A contract for the supply of Goods is made when the Supplier accepts it as contemplated in these Conditions, including but not limited to upon the Customer placing an order for the Goods via the App and making payment to Boup.

3.3 An order from the Customer via the App on terms which are inconsistent with the terms of any listing on the App by the Supplier is an offer by the Customer to buy Goods from the Supplier. A contract for the supply of Goods will only be made if the Supplier communicates that it is prepared to deliver the ordered Goods via the App, in which case the contract is deemed to have been made as at the date of the Customer’s order and these Conditions shall apply.

3.4 It is a term of the contract made between the Supplier and the Customer that in the event the Customer has made a payment for the Goods (either in part or in full), the Supplier is obliged to supply the Goods to the Customer.

3.5 If, after the contract is made between the Supplier and Customer the Goods are unavailable either at all or in accordance with any timeframe that has been agreed with or communicated to the Customer, the Supplier must:

(a) immediately notify Boup;

(b) take all reasonable steps to make alternative arrangements to procure the Goods (as the case may be) in accordance with the timeframe that has been agreed with or communicated to the Customer;  

(c) provide an updated timeframe by which the Goods will be made available to the Customer,

and Boup may, upon the direction of the Customer:

(d) cancel the order, in which case the Supplier must immediately refund any amount paid by the Customer to the Supplier, and authorise Boupto do so for any such amount that is held by Boup; or

(e) accept the revised timeframe given by the Supplier, and these Conditions will continue in force.

3.6 If, after the contract is made between the Supplier and Customer, the Customer wishes to alter or vary the order, the Customer may issue a written notice to the Boup or the Supplier, and the Supplier must:

(a) take all reasonable steps to accommodate the alteration or variation requested by the Customer;

(b) advise the updated costs to comply with the Customer’s request; and

(c) provide an updated timeframe by which the Goods will be made available to the Customer,

and Boup may, at the direction of the Customer:

(d) cancel the order entirely, in which case the Supplier must immediately refund any amount paid by the Customer to the Supplier, or otherwise authorise Boup to refund any amount held by Boup at that point in time; or

(e) withdraw the request to alter or vary the order, in which case the Supplier will continue to deliver the Goods as initially agreed; or

(f) accept the updated costs and revised timeframes as advised by the Supplier and proceed with the order as varied.

3.7 Boup is relying on the skill and judgement of the Supplier in relation to the suitability of any of the Goods, including (but not limited to) where it has indicated that purpose in writing to the Supplier and the Supplier has acknowledged in writing and provided evidence that is satisfactory that the Goods will be fit for the particular purpose.

4. Delivery of Goods

4.1 Where these Conditions relate to the purchase of Goods, the Supplier will deliver Goods to the Customer as follows:

(a) unless otherwise agreed to by Boup via a direction from the Customer, delivery will be made during Working Hours to the Delivery Point;

(b) the Supplier must ensure that Boup is given reasonable notice that the Goods will be delivered, and provide an estimated time of delivery;

(c) the Supplier or its transport contractor will deliver the Goods to the Delivery Point and delivery occurs and risk in the Goods passes to the Customer when:

(i) the Supplier’s or its transport contractor’s delivers the Goods to the Delivery Point; and

(ii) the Supplier’s or its transport contractor’s provides communication to Boup that this has been completed; and

(iii) the Customer communicates receipt of the Goods to Boup,

(Confirmation);

(d) the delivery of Goods at the Delivery Point is the Supplier’s responsibility at its own cost and risk, but the Supplier or its transport contractor may, if directed by Boup via a direction from the Customer (or the Customer if on location), unload the Goods at the Drop Spot if requested to do so or is absent from the Delivery Point at the time the Supplier or its transport contractor wishes to unload, however the Customer only releases and forever discharges the Supplier and its transport contractor from and against any Claim arising out of the unloading of Goods at the Drop Spot upon the giving of written acknowledgement from Boup (via the direction of the Customer) that the Goods have been received.

4.2 Where the Supplier or its transport contractor enters the Customer’s premises, or the premises of a third party nominated by the Customer in the course of delivering the Goods to the Customer, the Supplier or its transport contractor:

(a) does so at their own risk; and

(b) indemnifies Boup and the Customer from and against any Claim caused or contributed to by the Supplier or its transport contractor in respect of damage to the premises or injury to any persons in relation to or in connection with the delivery by the Supplier or its transport contractor, except to the extent that such loss, damage or liability is caused by the negligent or wilful act or omission of Boup; and

(c) releases Boup and the Customer from and against any loss, damage or liability suffered or incurred by the Supplier or its transport contractor in connection with the Supplier or their transport contractor attending the premises, except to the extent that such loss, damage or liability is caused by the negligent or wilful act or omission of Boup.

4.3 Unless otherwise agreed by the Supplier and Boup (via the direction of the Customer) in writing, the Supplier will bundle or package Goods the subject of an order in its discretion, exercising all reasonable care and skill, and the Supplier takes full responsibility for any damage, breaks, liability or claim arising out of such bundling or packing by the Supplier.

4.4 The Supplier will not be liable for any Loss incurred as a result of delay or failure to make any supply of Goods or to observe any of these Conditions due to an event of Force Majeure. During the continuance of an event of Force Majeure the Supplier’s obligations under these Conditions will be suspended to the extent that the Force Majeure event prevents the Supplier from complying with the obligation in question.

4.5 Boup will not be liable for any Loss incurred by the Supplier as a result of Boup’s failure to observe any of these Conditions due to an event of Force Majeure. During the continuance of an event of Force Majeure Boup’s obligations under these Conditions will be suspended to the extent that the Force Majeure event prevents the Supplier from complying with the obligation in question.

5. Passing of Title

5.1 The Supplier agrees that legal and equitable title to the Goods passes to the Customer upon delivery of the Goods to the Customer.

6. Price

6.1 The price of Goods will be the price listed by the Supplier on the App.

6.2 Where there is a Price Escalation, the Supplier will bear any additional costs arising in relation to a Price Escalation.

6.3 The Supplier agrees that the price of Goods includes (and the Supplier may not recover separately from Boup or the Customer):

(a) taxes (other than GST), stamp duty or other statutory charges or levies whether State or Federal payable in relation to the supply of the Goods;

(b) all costs, charges, expenses or any other outgoings incurred by the Supplier with respect to any Variation.

6.4 If a payment gateway is not used by Boup, the Supplier agrees that payment may be made by any method specified by Boup and agreed by the Supplier, which may include payment by credit card or debit card;

6.5 The Supplier acknowledges that Boup will receive 9% of all sales made by the Supplier, which includes gst and merchant service fees, and that in addition to the percentage of sales received:

(a) a membership fee of $25 including gst will be charged monthly but not applicable until 2024 and

(b) the membership fee will be charged to the credit card or other financial details the Supplier has provided.

7. GST

7.1 Where a Supply Maker makes a Taxable Supply under or in connection with these Conditions to a Recipient and the consideration otherwise payable for the Taxable Supply is not specifically stated to include GST, the Supply Maker will not be entitled to recover from the Recipient as an additional amount the amount of any GST payable on the Taxable Supply, as the Supply Maker is required to include the relevant cost for GST in the price for the sale of Goods.

7.2 A party to these Conditions will not be obliged to pay any amount in respect of GST to the other party unless and until a Tax Invoice (within the meaning of the GST Act) has been issued in respect of that GST.

8. Payment Terms, Default and Credit

8.1 Payment for Goods will be made by the Customer to Boup, and Boup will only release payment to the Supplier within 7 days from receiving Confirmation (as that term is as defined in clause 4.1).

8.2 If the Supplier is in breach or alleged breach of these Conditions (including the supply of allegedly faulty or defective Goods), Boup may retain or withhold any money not paid until the Supplier remedies such breach.

9. Warranties

9.1 The Supplier warrants and represents that:

(a) the Supplier (if a company or corporate trustee):

(i) has the legal power and authority to enter into and perform its’ obligations under these Conditions;

(ii) has not received any notice, summons or order for winding up, or any notice or order for the appointment of a receiver or of an official manager;

(iii) is not deemed to be insolvent within the meaning of the Corporations Act, and has not entered into any arrangement or compromise with its’ creditors (including, but not limited to, a small business restructure);

(b) the Supplier (being an individual or individual trustee):

(i) has not committed any act of bankruptcy;

(ii) has not been served with a bankruptcy notice or bankruptcy petition;

(iii) is not bankrupt;

(iv) is not aware of any currently unsatisfied judgements, orders or writs of execution against them, nor have they entered into any arrangement or compromise with creditors.

(v) are not involved in or aware of any current or threatened civil or criminal proceedings, arbitration or dispute, relating to any of their assets;

(c) the Supplier holds all necessary title, rights, interests and authority in relation to the delivery of the Goods, and is not infringing on any third party ownership, trademark, copyright or other real, personal or intellectual property rights in providing the Goods, and the Goods are given to Boup and the Customer free of any encumbrance;

(d) the Supplier (including any of the Supplier’s agents, directors, officers, employees, contractors, subcontractors or other authorised persons) has not, in complying with the Conditions and providing the Goods to the Customer, engaged in any form of Forced Labour;

(e) the Supplier will notify Boup and the Customer immediately if it believes, or has reason to believe, that any Forced Labour has been carried in in connection with these Conditions or any order placed by the Customer;

(f) the Goods will be fit for the purpose required by the Customer, and will comply with their description and quality advertised or separately advised by the Supplier in writing;

(g) the Supplier has complied with all laws, regulations, statutory, state and local government requirements in connection with these Conditions and in relation to providing the Goods to the Customer.

9.2 The Supplier acknowledges that Boup has entered into these Conditions on the basis of the warranties and representations given in this clause 9.1, and Boup would not have entered into these Conditions nor permitted a Customer to place an order via the App in their absence.

10. Return of Goods

10.1 The Customer is permitted to inspect the Goods on delivery and must notify Boup in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods within a reasonable timeframe after any such defect becomes evident. Upon such notification Boup must arrange for the Customer to allow the Supplier to inspect the Goods.

10.2 If Boup has not received any notification from the Customer regarding a defect in the Goods within twenty-four (24) hours of delivery by the Supplier, this is a ‘deemed acceptance’ of the Goods and Boup will process payment to the Supplier in accordance with the terms of these Conditions.

10.3 To the extent permitted by law, the liability of the Supplier in respect of any defect in or damage to the Goods is limited to, at the option of Boup(which may or may not be at the direction of the Customer):

(a) ​the replacement or repair of the Goods; or

(b) the payment of the cost of repairing or replacing the Goods; or

(c) a refund of any amount paid by the Customer, proportionate to the quantity of damaged Goods (if not all Goods comprising an order are damaged).

10.4 Notwithstanding anything contained in this clause if the Supplier is required by a law to accept a return then the Supplier will accept a return on the conditions imposed by that law.

11. Defective Goods and the CCA

11.1 The provision of Goods come with guarantees that cannot be excluded under the Australian Consumer Law (Non-Excluded Guarantees). Boupand the Customer will be entitled to a replacement of goods or compensation for a major failure. The Customer is also entitled to replacement of the Goods within a reasonable time and free of charge if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.

11.2 Nothing in these Conditions (or any other contract entered into between the Supplier and Boup or the Supplier and the Customer) is intended to exclude, restrict or modify rights which Boup or the Customer may have under the CCA or any other legislation which may not be excluded, restricted or modified by agreement.

11.3 If Boup or the Customer are a consumer within the meaning of the CCA, the Supplier’s liability is limited to the extent permitted by section 64A of Schedule 2 of the CCA.

11.4 If neither Boup nor the Customer are a consumer within the meaning of the CCA, the Supplier’s liability is only limited to any extent provided for in these Conditions including (but not limited to) this clause 11.

12. Confidential Information

12.1 The parties acknowledge that all of the Confidential Information is strictly confidential.

12.2 The Supplier and Boup are under an obligation to not and must not permit any of their officers, employees, agents, contractors or related bodies corporate to disclose any Confidential Information to any person, other than their professional advisers or as required by law, without the prior written consent of the party to whom the Confidential Information relates.

12.3 This clause operates for the benefit of all parties and continues despite the termination of any agreement formed pursuant to these Conditions.

13. Intellectual Property

13.1 The parties acknowledge that existing and future Intellectual Property Rights and any Intellectual Property created pursuant to, or in any way connected with the delivery of Goods or this Agreement, is the property of Boup and the Supplier is not permitted to use the Intellectual Property in any way with without Boup’s prior consent.

13.2 For the avoidance of doubt, the Supplier acknowledges and agrees that any Intellectual Property that the Supplier develops, creates or conceives(in whole or part) during and in the course of providing the Goods, whether during or outside working hours and whether solely or jointly with others, is the property of Boup.

13.3 Boup acknowledges that the Supplier may have moral rights in relation to works made or to be made by the Supplier in the course of providing the Goods, including a right of attribution of authorship, a right not to have authorship falsely attributed and a right of integrity of authorship. The Supplier consents to Boup, during and after the period in which the Goods are provided, using any work made or to be made by the Supplier in the course of providing the Goods, in a way which, but for this consent would infringe any moral right the Supplier has in respect of such work.  This consent applies to any acts or omissions occurring before or after this consent is given.

13.4 Boup and the Supplier must ensure that all work carried out in relation to or in connection with the provision of Goods under these Conditions does not infringe on Boup’s Intellectual Property rights or any third partyintellectual property rights.

13.5 This clause 13 survives the termination or expiry of this Agreement.

14. Default and Termination

14.1 Boup may terminate these Conditions or suspend the Supplier’s access to the App immediately by written notice to the Supplier if any of the following events has occurred;

(a) the Supplier cannot source and/or deliver the Goods;

(b) the Supplier advises they will not be able to deliver the Goods within any timeframe required by Boup or the Customer;

(c) Boup believes the professional relationship between the Supplier and Boup has broken down beyond repair;

(d) Boup believes that the Supplier is no longer in a position to provide Goods to customers of Boup, or the continuation of the Supplier doing so would harm the reputation of Boup;

(e) the Supplier breaches any term of these Conditions, and the Supplier fails to rectify the breach within fourteen (14) days of receiving a notice from Boup; or

(f) the Supplier is subject to an insolvency or bankruptcy event.

14.2 If Boup terminates these Conditions in accordance with clause 14.1:

(a) the Supplier must immediately refund any amount paid by Bouprelating to Goods which have not been delivered;

(b) the Supplier is immediately released from their obligations under these Conditions except those which, by their nature, survive termination; and

(c) Boup retains any claim it has against the Supplier.

14.3 The Supplier may terminate these Conditions by written notice to Boupif any of the following events has occurred:

(a) Boup has committed a material breach of these Conditions, which is not remediable or if capable of remedy, where Boup fails to remedy the default within fourteen (14) days of written notice; or

(b) Boup is subject to an insolvency or bankruptcy event, other than any internal restructure or reconstruction.

14.4 If the Supplier terminates these Conditions pursuant to clause 14.3:

(a) Boup must, within thirty (30) days, pay any amounts owing to the Supplier for Goods delivered, except in circumstances where such payment is in dispute; and

(b) Boup is immediately released from their obligations under these Conditions, except those which, by their nature, survive termination; and

(c) the Supplier releases Boup from any existing or future Claim relating to these Conditions.

15. Notices

15.1 Any notice given under these Conditions must be in writing and signed by the party or their solicitor and delivered to the respective address for that party as specified in these Conditions or in any quotation, invoice, purchase order or similar document or any other address more recently notified by one party to the other in writing.

16. General

16.1 A party waives a right under these Conditions only if it does so in writing. A waiver of one breach of a term of these Conditions does not operate as a waiver of another breach of the same term or any other term.

16.2 If a provision in these Conditions is wholly or partly invalid or unenforceable in any jurisdiction, that provision or the part of it that is invalid or enforceable must, to that extent, and in that jurisdiction, be treated as deleted from these Conditions. This does not affect the validity or enforceability of the remaining provisions in that jurisdiction, or of the deleted provision in any other jurisdiction.

16.3 The Supplier may not assign or otherwise deal with the benefit of any contract made pursuant to these Conditions without the prior consent of Boup.

16.4 Nothing contained in these Conditions creates any relationship of partnership, employment or agency between the parties.

16.5 All contracts made between the Supplier and Boup shall be governed by and construed in accordance with the laws of the State of Queensland. Boup and the Supplier agree to submit to the non-exclusive jurisdiction of the Queensland courts for all purposes of or in connection with such contracts.