Terms
Effective date: March 1, 2021
Pitches, Quotes and Orders
The provision of Pitch Materials by MAHALO CONCEPTS is subject to following terms:
you acknowledge that Pitch Materials, including the designs, ideas and specifications they contain, comprise MAHALO CONCEPTS’s intellectual property rights and confidential information and we assert all our rights in the Pitch Materials;
Pitch Materials are issued to you solely for evaluating whether to order the proposed deliverables and shall be used for no other purpose and shall not be supplied to any third party except with MAHALO CONCEPTS’s prior written consent;
unless you have our consent to do so, supply of the Pitch Materials or confidential data contained within them, including design specifications, pricing information and other commercial details, to a third party will infringe MAHALO CONCEPTS’s rights and could expose the party supplying the material and the party receiving it to legal action;
should you not proceed with the order, all copies of the Pitch Materials within your custody and control must immediately be deleted or destroyed, as applicable; and
MAHALO CONCEPTS reserves the right to take legal action against any third party infringing its intellectual property and/or confidential information in connection with its Pitch Materials.
At the Customer’s request, MAHALO CONCEPTS may provide the Customer with a written quote for provision of Deliverables (the Official Estimate). Any Official Estimate is valid for 20 days from the date of issue, unless withdrawn earlier in writing by MAHALO CONCEPTS.
If the Customer wishes to receive Deliverables, they must propose a purchase order for the Deliverables expressly identifying MAHALO CONCEPTS’s applicable Official Estimate (the Order). The Order constitutes an offer by the Customer to purchase the Deliverables on the terms specified in the Official Estimate in accordance with these Conditions.
The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate and suitable for their requirements.
The Order shall only be deemed to be accepted if MAHALO CONCEPTS issues a written acceptance of the Order, at which point the Contract shall come into existence. Acceptance of any Order is at MAHALO CONCEPTS’s sole discretion. MAHALO CONCEPTS is not obliged to commence any work until it has accepted the Order.
If the Customer wishes to vary its requirements for an Order after the Contract has commenced, the Customer may request this in writing to MAHALO CONCEPTS. MAHALO CONCEPTS in its sole discretion may accept the variation. MAHALO CONCEPTS shall be entitled to propose variations to the terms of the Order as reasonably necessary to take account of the variation, including, where applicable, the price and time estimate for delivery. Where MAHALO CONCEPTS rejects the variation, or the Customer does not accept the proposed variations to the terms, the variation shall have no effect and the terms of the original Order shall apply.
The Customer agrees to cooperate with MAHALO CONCEPTS in connection with its performance of the Deliverables including but not limited to providing timely feedback to proposed designs and other requests for information and promptly providing Customer Materials to MAHALO CONCEPTS as reasonably required in connection with the Deliverables.
MAHALO CONCEPTS may at its discretion in the course of fulfilling an Order issue an artwork approval document for the Customer’s approval (the Artwork Approval) setting out details of the Deliverables which may include technical specifications, quantities and colours. In the event an Artwork Approval is issued:
The Customer shall carefully review the Artwork Approval and shall either approve it or request changes to it in accordance with the reasonable timeframe specified by MAHALO CONCEPTS or if no timeframe is specified then within 5 days; and
Once approved, the Artwork Approval shall form part of the Specification for the Order and MAHALO CONCEPTS shall be entitled to rely upon it in performing its obligations under the Contract.
The Customer acknowledges that MAHALO CONCEPTS may act in reliance on its feedback and instructions during the course of performing the Contract. The Customer acknowledges that written or oral acceptance by it of a Specification or design shall be binding on it.
To the extent there is any conflict between the terms specified in an Official Estimate and an approved Artwork Approval, the terms of the latter shall prevail.
Cancellation
Either party may cancel an Order without cause at any time by notifying the other party in writing.
If an Order is cancelled by the Customer without cause, MAHALO CONCEPTS is entitled to charge the Customer for all MAHALO CONCEPTS Order Costs as apply as at the date of cancellation.
If the Contract is cancelled by either party without cause: (i) the Customer is entitled to receive a Credit Note for the value of any payments made to MAHALO CONCEPTS in relation to the Order, less any amounts due to MAHALO CONCEPTS from the Customer; and (ii) MAHALO CONCEPTS shall have no obligation to deliver the Deliverables. The Customer acknowledges that in no circumstances shall MAHALO CONCEPTS be liable to the Customer for any losses or expenses arising from such cancellation including but not limited to the cost of obtaining similar Deliverables from a third party.
Price and Payment
The price of the Deliverables shall be the price set out in the Official Estimate applicable to the Order. Unless stated otherwise in the quote, the price is exclusive of GST, which shall be payable in addition.
MAHALO CONCEPTS, acting reasonably, may require the Customer to pay Additional Charges relating to the Order for the following reasons:
inadequate or incorrect information or material is provided by the Customer;
information or material is supplied late by the Customer;
a change agreed by the parties to the delivery date(s), quantities or types of Deliverables ordered or the Specification;
a change in the cost of raw materials, components, personnel, equipment or products, to the extent such change is beyond MAHALO CONCEPTS’s reasonable control (including but not limited to foreign exchange fluctuations, increases in taxes and duties, or increases in labour, materials and other manufacturing costs);
where the Customer does not collect the Goods, accept delivery or provide adequate delivery instructions and MAHALO CONCEPTS incurs storage costs as a result;
redelivery of Goods if the Customer does not accept the initial delivery; and
packaging, insurance, photocopying, packing, handling charges, transportation, delivery, taxes and other applicable charges not included in the price of the Order.
If MAHALO CONCEPTS has provided the Customer with a price concession or discount in the quote, that price concession or discount is conditional upon the Customer’s material compliance with these Conditions.
Unless agreed otherwise by MAHALO CONCEPTS in writing, payment for the Order shall be as follows: (i) on acceptance of the Order, MAHALO CONCEPTS may invoice the Customer for 50% of the price plus GST (invoice payable within 14 days of issue); and (ii) the balance of the price plus GST is payable within 14 days of the date on which MAHALO CONCEPTS provides the Deliverables.
MAHALO CONCEPTS is entitled from time to time to issue additional invoices relating to taxes, charges and expenses and Additional Charges. Such invoices shall be payable within 14 days of issue.
If any invoice is due but unpaid, MAHALO CONCEPTS may withhold the provision of any further Deliverables until overdue amounts are paid in full.
The Customer is not entitled to retain any money owing to MAHALO CONCEPTS notwithstanding any default or alleged default by MAHALO CONCEPTS of these Conditions. Nothing in this paragraph affects the Customer’s rights for any alleged failure of a guarantee under the ACL.
The Customer is to pay MAHALO CONCEPTS, on demand, interest on all overdue amounts owed by the Customer to MAHALO CONCEPTS, at the rate fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic) or an amount otherwise agreed in writing by MAHALO CONCEPTS and the Customer. All costs and expenses associated with collecting overdue amounts are to be paid by the Customer.
The Customer and MAHALO CONCEPTS agree to comply with their obligations in relation to GST under the A New Tax System (Goods and Services Tax) Act 1999 and any other applicable legislation governing GST.
If a Credit Note is issued in relation to an invoice which has been paid by the Customer, the Credit Note shall apply towards payment of a future invoice whether in relation to that same Order or for another order. MAHALO CONCEPTS shall not be obliged to provide the Customer with an amount of money in substitution for and equal in value to the Credit Note (but may, acting in its sole discretion, elect to do so).
Performance Location
The Customer shall be solely responsible for ensuring the Performance Location is suitable for performance of the Services, for obtaining all necessary consents, licences, permits and authorisations sufficient to enable the performance of the Services and for ensuring that the performance of the Services shall comply with applicable laws.
The Customer shall ensure that suitable insurance is in place in connection with the Performance Location to insure against all risks relating to the performance of the Services including but not limited to accidental property damage caused by MAHALO CONCEPTS or its agents. MAHALO CONCEPTS and its agents shall have no liability for property damage arising in the course of providing the Deliverables save where such damage is caused by its negligence.
In the event the Performance Location is inaccessible, unsafe, unavailable, or otherwise unsuitable and as a result MAHALO CONCEPTS cannot fully perform the Services in the manner anticipated in the Order, the Customer shall still be obliged to pay MAHALO CONCEPTS the full price for the Services, save where the unsuitability was due to MAHALO CONCEPTS’s negligence.
Delivery
MAHALO CONCEPTS shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location). Delivery is made on the completion of unloading of the Goods at the Delivery Location.
Any time for the provision of Deliverables is an estimate only and, subject to consumer guarantees under the ACL (if applicable), the Customer acknowledges and agrees that this delivery estimate is not binding upon MAHALO CONCEPTSand time is not of the essence.
In the event MAHALO CONCEPTS expressly agrees in writing to a target delivery date, the Customer acknowledges and agrees:
time will not be of the essence in relation to the target delivery date and failure to meet it shall not amount to a breach by MAHALO CONCEPTS of its contractual obligations; and
in the event the target delivery date is missed solely due to circumstances within MAHALO CONCEPTS’s control, the Customer shall still be obliged to accept the Deliverables but MAHALO CONCEPTS shall apply a discount to the price of the Order which MAHALO CONCEPTS reasonably believes reflects the impact of the delayed delivery on the utility of the Deliverables for the Customer. This discount shall be the Customer’s sole remedy for the delay.
Under no circumstances shall MAHALO CONCEPTS be liable for any Losses incurred by the Customer arising from late delivery or non-delivery of the Deliverables.
MAHALO CONCEPTS shall have no liability for any delay or failure to deliver the Deliverables to the extent that such delay or failure is caused by a Force Majeure Event or the Customer’s default including but not limited to the Customer’s failure to provide MAHALO CONCEPTS with adequate delivery instructions or any other material instructions that are necessary for the supply of the Deliverables.
MAHALO CONCEPTS may at its option deliver the Deliverables to the Customer in any number of instalments, each of which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
If the Customer fails to accept delivery of the Goods within 3 Business Days of MAHALO CONCEPTS notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or MAHALO CONCEPTS’s failure to comply with its obligations under the Contract:
delivery of the Goods shall be deemed to have been completed at 9.00 am on the 3 Business Day after the day on which MAHALO CONCEPTS notified the Customer that the Goods were ready; and
MAHALO CONCEPTS shall store the Goods until delivery takes place and charge the Customer for all related costs and expenses (including insurance).
If 10 Business Days after the day on which MAHALO CONCEPTS notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, MAHALO CONCEPTS may resell, destroy or otherwise dispose of part or all of the Goods and, after deducting reasonable storage, destruction and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
All pallets supplied by MAHALO CONCEPTS to the Customer with Goods remain the property of MAHALO CONCEPTS and the Customer must return them to MAHALO CONCEPTS at the Customer’s own expense in good and clean condition. If the pallets are not returned to MAHALO CONCEPTS within 30 days of their supply to the Customer, MAHALO CONCEPTS may charge the Customer the GST inclusive cost of replacing the pallets.
Loss or damage in transit
MAHALO CONCEPTS is not responsible to the Customer or any person claiming through the Customer for any loss or damage to Goods in transit, save where MAHALO CONCEPTS was directly at fault.
MAHALO CONCEPTS shall, at the Customer’s expense, provide the Customer with such assistance as may be reasonably necessary to institute claims against a carrier for damages to Goods in transit so long as the Customer (i) has promptly notified MAHALO CONCEPTS and the carrier in writing immediately after loss or damage is discovered by the Customer on receipt of Goods; and (ii) serves a claim for compensation on the carrier within 7 days of the date of receipt of the Goods.
Acceptance of Goods
The Customer shall inspect the Goods on delivery to check they comply with the Order and are of appropriate quality.
The Customer must advise MAHALO CONCEPTS in writing of any apparent fault in Goods or failure of Goods to accord with the Customer’s Order or a shortfall in the quantity of the Goods within 3 days of delivery, otherwise it shall be deemed to have accepted the Goods in fulfillment of the Order. Nothing in this paragraph affects the Customer’s rights for any alleged failure of a guarantee under the ACL.
If the quantity of Goods delivered by MAHALO CONCEPTS is more than the Customer ordered, the Customer must immediately inform MAHALO CONCEPTS in writing and make the excess Goods available to MAHALO CONCEPTS for its collection. If the Customer fails to do this, MAHALO CONCEPTS is entitled to charge the Customer for the excess Goods.
Title and risk
Risk in Goods passes to the Customer immediately upon delivery. Property and title in Goods supplied to the Customer under these Conditions does not pass to the Customer until all money due and payable to MAHALO CONCEPTS by the Customer has been fully paid.
Where Goods are supplied by MAHALO CONCEPTS to the Customer without payment in full, the Customer:
must not remove, deface, or obscure any identifying mark or packaging on or relating to the Goods;
must maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
is a bailee of the Goods until property in them passes to the Customer;
irrevocably appoints MAHALO CONCEPTS to be its attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of any security interest in favour of MAHALO CONCEPTS with respect to the Goods under applicable law;
must be able upon demand by MAHALO CONCEPTS to separate and identify as belonging to MAHALO CONCEPTS Goods supplied by MAHALO CONCEPTS from other goods which are held by the Customer;
must not allow any person to have or acquire any security interest in the Goods;
agrees that MAHALO CONCEPTS may repossess the Goods if payment is not made within 14 days (or such longer time as MAHALO CONCEPTS may, in its complete discretion, approve in writing) of the supply of the Goods; and
grants an irrevocable licence to MAHALO CONCEPTS or its agent to enter the Customer’s premises to recover possession of Goods pursuant to this paragraph. The Customer indemnifies MAHALO CONCEPTS for any damage to property or personal injury which occurs because of MAHALO CONCEPTS entering the Customer’s premises.
Where Goods are supplied by MAHALO CONCEPTS to the Customer without payment in full of all moneys payable in respect of the Goods and any Services provided by MAHALO CONCEPTS in respect of those Goods, the Customer acknowledges that MAHALO CONCEPTS has a right to register and perfect a personal property security interest.
If the Customer provides goods or materials to MAHALO CONCEPTS in connection with the Deliverables, the Customer retains title to such goods and materials and is responsible for insuring the goods and materials always including whilst in MAHALO CONCEPTS’s possession. MAHALO CONCEPTS shall take reasonable care of such goods and materials whilst they are in its possession but shall not be liable for any damage or loss to the Customer’s goods or materials, save to the extent it arises due to MAHALO CONCEPTS’s negligence. In the event MAHALO CONCEPTS is negligent and therefore liable for damage and/or loss, the value of the goods or materials shall be MAHALO CONCEPTS’s reasonable estimate of the market cost of replacing such goods or materials with the same or substantially similar goods or materials.
If a PPS Law applies or commences to apply to these Conditions or any transaction contemplated by them, or MAHALO CONCEPTS determines (based on legal advice) that this is the case; and in MAHALO CONCEPTS’s opinion, the PPS Law: (i) does or will adversely affect MAHALO CONCEPTS’s security position or obligations; or (ii) enables or would enable MAHALO CONCEPTS’s security position to be improved without adversely affecting the Customer, MAHALO CONCEPTS may give notice to the Customer requiring the Customer to do anything (including amending these Conditions or execute any new Terms and Conditions) that in MAHALO CONCEPTS’s opinion is necessary, to the maximum possible extent, to overcome the circumstances contemplated in paragraph 8(e)(a) or improve the security position as contemplated in paragraph 8(e)(b). The Customer must comply with the requirements of that notice within the time specified in the notice. If having completed everything reasonably practicable as required under this paragraph and in MAHALO CONCEPTS’s opinion MAHALO CONCEPTS’s security position or obligations under or in connection with these Conditions have been or will be materially adversely affected, MAHALO CONCEPTS may by further notice to the Customer cancel these Conditions. If this occurs, the Customer must pay to MAHALO CONCEPTS any money owed to MAHALO CONCEPTS by the Customer immediately.
Return of Goods
MAHALO CONCEPTS is not obliged to accept return of non-defective Goods due to change of mind or changes in the circumstances of the Customer.
In some circumstances MAHALO CONCEPTS, acting in its sole discretion, may decide to accept return of all or part of the non-defective Goods from the Customer and in such cases the Customer must within 14 days return the Goods to MAHALO CONCEPTS and shall receive in return a Credit Note for invoices relating to the Order, provided:
MAHALO CONCEPTS has agreed in writing to accept the return of the Goods;
the Goods are returned to the location specified by MAHALO CONCEPTS at the Customer’s expense; and
MAHALO CONCEPTS is satisfied that the Goods are returned in good working order and have not been used or damaged in any way.
Consumer Guarantees
In the event the Customer is a ‘consumer’ as defined by the ACL, MAHALO CONCEPTS’s liability for a breach of a condition or warranty implied by Part 3-2 Division 1 of the ACL is limited to:
in the case of Goods: any one or more of (A) the replacement of the Goods or the supply of equivalent goods; (B) the repair of the Goods; (C) the payment of the cost of replacing the Goods or of acquiring equivalent goods; and (D) the payment of the cost of having the Goods repaired; or
in the case of services: (A) the supplying of the services again; or (B) the payment of the cost of having the services supplied again.
Guarantees
MAHALO CONCEPTS’s liability for Goods manufactured by it is limited to making good any defects. This may be done by repairing the defects or, at MAHALO CONCEPTS’s option, by replacement, within a period not exceeding 12 calendar months after the Goods have been delivered. This applies so long as:
the defects have arisen solely from faulty materials or workmanship;
the Goods have not received maltreatment, inattention or interference; and
the defective parts are promptly returned free of cost to MAHALO CONCEPTS.
If the Goods are not manufactured by MAHALO CONCEPTS, the guarantee of the manufacturer of those Goods is accepted by the Customer and is the only guarantee given to the Customer for the Goods. MAHALO CONCEPTS agrees to assign to the Customer on request made by the Customer the benefit of any warranty or entitlement to the Goods that the manufacturer has granted to MAHALO CONCEPTS under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
MAHALO CONCEPTS is not liable for, and the Customer releases MAHALO CONCEPTS from, any claims in respect of faulty or defective design of any Goods supplied. This is unless the design has been wholly prepared by MAHALO CONCEPTS and the responsibility for any claim has been specifically accepted by MAHALO CONCEPTS in writing. MAHALO CONCEPTS’s liability under this clause 11(c) is limited strictly to the replacement of defective parts in accordance with clause 11(a) of these Conditions.
Except as provided in these Conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the Goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded.
If following completion of the Services the Customer believes performance has been defective, it must notify MAHALO CONCEPTS of such defect, providing reasons for its complaint, within 3 days of completion. MAHALO CONCEPTS shall then re-perform the defective Service in a timely manner.
Termination
Either party may immediately terminate these Conditions if the other party enters into any composition or arrangement with its creditors or has a receiver appointed over any of its assets or is the subject of any resolution or petition for winding up or judicial management (other than for amalgamation or reconstruction).
Either party may immediately terminate these Conditions if the other party is in material breach of any of its obligations under this agreement and if the breach is capable of remedy, fails to remedy the breach for a period of 30 days after receipt of a written notice by the other party requiring rectification of the breach.
On termination of these Conditions by MAHALO CONCEPTS under clause 12(a) or (b), MAHALO CONCEPTS may:
terminate any other order and credit arrangements (if any) with the Customer;
repossess and re-sell any Goods delivered to the Customer, the payment for which has not been received; and
charge the Customer for all MAHALO CONCEPTS Order Costs as apply at the date of termination.
In the event of termination of these Conditions by either party pursuant to clause 17(c): (i) where payment (in part or full) has previously been made by the Customer, MAHALO CONCEPTS shall refund to the Customer any payments made in connection with the Order less a deduction to cover all MAHALO CONCEPTS Order Costs; (ii) if the payment previously made by the Customer is less than the MAHALO CONCEPTS Order Costs, MAHALO CONCEPTS shall be entitled to charge the Customer for the difference; and (iii) if no payment has been made, MAHALO CONCEPTS shall be entitled to charge the Customer for all MAHALO CONCEPTS Order Costs.
Termination of these Conditions shall not affect any rights, remedies, obligations, or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
Any provision of these Conditions that expressly or by implication is intended to come into or continue in force on or after termination or expiry of these Conditions shall remain in full force and effect.
Exclusions and limitation of liability
MAHALO CONCEPTS acknowledges that provisions under the ACL (as amended) and other legislation from time to time in force imply or impose statutory guarantees, conditions, or warranties into contracts for the supply of goods and services which cannot be excluded, restricted, or modified or can only be restricted or modified to a limited extent (Non-Excludable Terms). Nothing in these Conditions is intended to exclude, restrict or modify the application of the Non-Excludable Terms, nor any other statutory guarantee, condition or warranty, or right or liability implied by any applicable legislation into the Contract, if such exclusion, restriction or modification would be void or prohibited by legislation.
The Customer expressly agrees that use of the Deliverables is at the Customer’s risk. To the full extent allowed by law, MAHALO CONCEPTS’s liability for breach of any term implied into these Conditions by any law is excluded.
All information, specifications and samples provided by MAHALO CONCEPTS in relation to the Deliverables are approximations only and, subject to any guarantees under the ACL, deviations or variations from them which do not substantially affect the Customer’s use of the Deliverables will not entitle the Customer to reject the Deliverables upon delivery, or to make any claim in respect of them.
To the fullest extent permissible at law, neither party is liable to the other for any indirect, punitive, incidental, special or consequential damages, damages for loss of profits, damages for loss of use or damages relating to data, connected with the provision of the Deliverables, whether based on these Conditions, negligence, strict liability or otherwise.
The total aggregate liability of MAHALO CONCEPTS to the Customer (whether in contract, for negligence or otherwise) under these Conditions shall not exceed the price of the Order, which the parties agree is reasonable in the circumstances.
The Customer acknowledges that the Deliverables are not for personal, domestic, or household purposes.
Indemnity
The Customer indemnifies MAHALO CONCEPTS in respect of any Loss suffered by MAHALO CONCEPTS arising in connection with the provision of Deliverables, any Order or the subject matter of these Conditions arising as a result of:
breach by the Customer of the Contract;
any negligent, reckless or intentional act or omission of the Customer;
any personal injury, death, disease or illness of any person or loss of, or damage to, or loss of use of, any property of any person to the extent caused by the Customer;
any clam made against MAHALO CONCEPTS for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with MAHALO CONCEPTS’s use of Customer Materials;
any misuse or infringement by the Customer or its agents of MAHALO CONCEPTS’s Intellectual Property Rights; and
any accidental property damage caused by MAHALO CONCEPTS or its agents to the Performance Location in connection with performance of the Services.
Confidentiality
No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
Each party undertakes that it shall not at any time during this agreement, and for a period of 3 years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients, or suppliers of the other party, except as permitted by this clause.
Each party may disclose the other party’s confidential information to: (i) its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement, provided the party ensures that parties to whom it discloses the confidential information comply with this clause; and (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
The Customer acknowledges that MAHALO CONCEPTS’s confidential information shall include but not be limited to designs and product ideas, details of its suppliers and MAHALO CONCEPTS’s product ranges and pricing information and rates.
Intellectual Property Rights
The Customer hereby grants MAHALO CONCEPTS a licence to use the Customer Materials in connection with the provision of the Deliverables. The Customer warrants that it owns or is a licensee of all Intellectual Property Rights in to the Customer Materials and is entitled to license MAHALO CONCEPTS to use all such Intellectual Property Rights.
The Customer acknowledges that all Intellectual Property Rights in the Deliverables and Pitch Materials vest in MAHALO CONCEPTS or its licensors and that supply of the Deliverables, Pitch Materials and related materials (including but not limited to product samples, designs, technical information models and specifications) to the Customer does not give the Customer any right, title or interest in such Intellectual Property Rights. MAHALO CONCEPTS expressly reserves all its Intellectual Property Rights in the Deliverables, Pitch Materials and related materials.
Save where agreed otherwise by MAHALO CONCEPTS in writing, supply of the Deliverables to the Customer shall be on a non-exclusive basis and MAHALO CONCEPTS and its licensors shall be entitled to supply the same or similar Deliverables to other customers.
Force majeure
Force Majeure Event means any circumstance not within a party’s reasonable control including without limitation (i) acts of God, flood, drought, earthquake or other natural disaster; (ii) epidemic or pandemic; (iii) terrorist attack, civil commotion or riots, threat of or preparation for war, imposition of sanctions or embargo; (iv) impediments or delays to transportation or navigation; (v) nuclear, chemical or biological contamination or sonic boom; (vi) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; (vii) collapse of buildings, fire, explosion or accident; (viii) labour or trade dispute, strikes, industrial action or lockouts; (ix) non-performance by suppliers or subcontractors; and (x) interruption or failure of utility service affecting MAHALO CONCEPTS or its suppliers or subcontractors.
Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure results from a Force Majeure Event.
If the period of delay or non-performance continues for more than 8 weeks, the party not affected may terminate the Contract by giving 2 weeks written notice to the affected party.
Product Recall
If the Customer is the subject of a request, court order or other directive of a Government Agency to recall or withdraw any Goods from the market (Recall Notice) it must immediately notify MAHALO CONCEPTS in writing and enclose a copy of the Recall Notice.
Unless required by law, the Customer may not undertake any recall or withdrawal of the Products from the market without the written permission of MAHALO CONCEPTS.
If any Products are the subject of a Recall Notice, or MAHALO CONCEPTS has other reasonable grounds to recall or withdraw the Products from the market, the Customer must comply strictly with: (i) any requirements set out in the relevant Recall Notice; and (ii) MAHALO CONCEPTS’s instructions about the process to implement the recall or withdrawal.
For the purposes of Clause 18(c), reasonable grounds for MAHALO CONCEPTS to recall or withdraw the Products include, but are not limited to where: (i) supply or use of the Products infringes, or may infringe, a third party’s Intellectual Property Rights; (ii) the Products are, or may be, unsafe; or (iii) a defect in the Product may cause harm to MAHALO CONCEPTS’s reputation or brand.
If the reason for the recall was not caused by MAHALO CONCEPTS, then the Customer shall pay the costs and expenses associated with any such recall, and shall indemnify MAHALO CONCEPTS for all of MAHALO CONCEPTS’s losses, damages, costs and expenses associated with such recall.
Miscellaneous
These Conditions represent the whole agreement between the parties relating to their subject matter and apply to all transactions between the Customer and MAHALO CONCEPTS to the exclusion of any other terms that the Customer seeks to impose, or which are implied by trade, custom, practice or course of dealing. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorized representatives).
In entering in to these Conditions, the Customer has not relied on any warranty, representation, or statement, whether oral or written, made by MAHALO CONCEPTS or any of its employees or agents relating to or in connection with the subject matter of these Conditions.
If any provision of these Conditions at any time is or becomes void, voidable, or unenforceable, the remaining provisions will continue to have full force and effect.
A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on the Order and delivered personally, sent by pre-paid mail or sent by email. A notice or other communication is taken to have been given (unless otherwise proved): if mailed, on the second Business Day after posting; or if sent by email before 4 pm on a Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.
MAHALO CONCEPTS may subcontract its obligations under these Conditions.
MAHALO CONCEPTS has the right to assign and transfer to any person all or any of its rights, duties and obligations arising in these Conditions provided MAHALO CONCEPTS acting reasonably anticipates that such assignment will not be to the Customer’s detriment. The Customer shall not subcontract, assign, or purport to assign, any of its obligations or rights under these Conditions without the prior written consent of MAHALO CONCEPTS.
These Conditions are governed by the laws of the state of Victoria. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of that state.
Definitions
The following definitions apply in these Conditions:
ACL the Australian law governing consumer rights is set out in Schedule 2 of the Competition and Consumer Act 2010 (previously known as the Trade Practices Act 1974).
Additional Charges (a) fees or charges relating to an Order; and (b) expenses incurred or to be incurred by MAHALO CONCEPTS relating to an Order, to the extent not already included in the price of the Order.
Business Day a day that is not a Saturday, Sunday or public holiday in the place where the Services are principally being carried out or the Goods provided.
Credit Note a record of an adjustment to an invoice, resulting either in a reduction of the Customer’s obligation to pay the invoice (for invoices which have not been paid) or a credit to the Customer’s account to be used against future invoices.
Conditions means the terms and conditions set out in this document as amended from time to time by the parties.
Contract the contract between MAHALO CONCEPTS and the Customer for the sale and purchase of the Deliverables governed by these Conditions.
Customer the person identified on a quote or Order as the customer.
Customer Materials materials supplied by the Customer including but not limited to the Specification (or part of it), designs, written materials, and any other part of the Order.
Deliverables the Goods and/or Services to be provided to the Customer in relation to the Order.
Designs designs in any form provided by MAHALO CONCEPTS to the Customer in relation to an Order, whether in draft or final versions.
Goods the goods (or any part of them) set out in the Order.
GST Goods and Services Tax in the case of Deliverables sold or consumed in Australia and/or any other local taxes levied which apply to the supply of the Deliverables as applicable depending on the place of supply or consumption.
Intellectual Property Rights intellectual property rights at any time protected by statute or common law throughout the world, including copyright, trade marks, patents, and designs.
Loss any and all liabilities, damages, losses, costs and expenses whether direct or indirect (including legal expenses and amounts reasonably paid in settlement of legal claims).
Performance Location the location for the performance of the Services as specified in the Order or as otherwise agreed by the parties in writing.
Pitch Materials all materials, data and information in any form issued by MAHALO CONCEPTS or its agents to third parties in connection with proposed deliverables, whether such proposals are ultimately converted into an Order or not.
PPS Law (a) the Personal Property Security Act 2009 (Cth) (PPS Act) and any regulation made at any time under the PPS Act (each as amended from time to time); and (b) any amendment made at any time to any other legislation as a consequence of items mentioned in (a).
MAHALO CONCEPTS Pty Ltd (ACN 608 184 685) and includes its agents and permitted assigns.
MAHALO CONCEPTS Order Costs means (i) all reasonable, necessary and unavoidable costs and liabilities incurred by MAHALO CONCEPTS in connection with an Order as at the relevant date including any binding orders for materials or goods placed by MAHALO CONCEPTS; and (ii) the cost of destroying the Goods (if applicable).
Services the services (or any part of them) set out in the Order.
Specification: any specification for the Deliverables, including any related plans and drawings, that is agreed by the Customer and MAHALO CONCEPTS.
