Last Updated: 11/02/2020
Please read these Terms and Conditions carefully as they contain important information about your legal rights, remedies and obligations. By submitting this application to become a distributor for LSC products, for our consideration, you agree to be bound by these Terms and Conditions
TABLE OF CONTENTS
1.1. In this Agreement, unless otherwise indicated:
(a) ‘Agreement’ means this agreement;
(b) ‘Business Day’ means a day that is not a Saturday, Sunday or public holiday in State;
(c) ‘Commencement Date’ means the day we accept your application;
(d) ‘Distributorship’ means the relationship stipulated by this Agreement;
(e) ‘Events of Default’ means the events set out in clause 22;
(f) ‘GST’ means tax that is payable or imposed as goods and services tax under the GST Law and the GST Act;
(g) ‘GST Act’ means the Act of Parliament titled A New Tax System (Goods and Services Tax) Act 1999;
(h) ‘Intellectual Property’ means trademarks, patents, copyrights, designs, layout-designs (topographies) of integrated circuits and confidential information as may be applicable to the products and to any advertising and promotional material and any technical materials and user manuals associated with the manufacture or supply of the products;
(i) ‘LSC’ means the Trustee of Manoushian family trust ACN 294 791 493 trading as Little Storage Co, also referred to as ‘Company’, ‘our’, ‘us’ or ‘we’.
(j) ‘Party’ means a party to this Agreement;
(k) ‘Related Entity’ has the meaning ascribed to that expression in Section 9 of the Corporations Act 2001;
(l) ‘Site’ means the LSC website, www.littlestorageco.com.
(m) ‘Terms and Conditions’ means the terms and conditions set out in this Agreement;
(n) ‘Territory’ means within Australian, or the geographical area within Australia as determined by LSC.
2.1. This Agreement is governed by the laws of New South Wales and the parties submit to the exclusive jurisdiction of the courts of that state.
2.2. In the interpretation of this Agreement:
(a) References to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
(b) Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, references to documents or agreements also mean those documents or agreements as changed, novated or replaced, and words denoting one gender include all genders;
(c) Grammatical forms of defined words or phrases have corresponding meanings;
(d) Parties must perform their obligations on the dates and times fixed by reference to the capital city of New South Wales;
(e) Reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;
(f) If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next business day;
(g) References to a party are intended to bind their executors, administrators and permitted transferees; and
(h) Obligations under this Agreement affecting more than one party bind them jointly and each of them severally.
3.1. Upon your application be accepted; by ordering from LSC; using this Site; selecting or ordering products, you agree to be bound by and comply with these Terms and Conditions.
3.2. You agree to comply with all relevant laws relating to your use of our Site and any placement of order(s) through the Site.
3.3. You are prohibited from using any data recorded on the Site for commercial purposes (including client date, price or information scraping).
3.4. You agree to not use this Site for any purpose that is fraudulent, unlawful or otherwise prohibited by these terms and conditions. You may access the Site for your own personal use but otherwise neither the Site, nor any material on it, may be altered, modified, reproduced, transmitted or distributed without our prior written consent.
3.5. Whilst using this Site, you are prohibited from:
(a) breaching any laws, infringing a third party’s rights or act contrary to any relevant standards or codes or making any fraudulent enquiries, purchases or requests;
(b) using the Site in a manner or way, or post to or transmit to or via the Site any material which interferes with other users or other customers or defames, harasses, threatens, menaces or offends any person or which prevents any other person from using or enjoying the Site, or post any spam, unsolicited or bulk electronic communications;
(c) using another person’s details without their permission or impersonating another person;
(d) posting or transmitting any obscene, indecent, inflammatory or pornographic material or any other material that may give rise to civil or criminal proceedings;
(e) tampering with or hindering the operation of the Site;
(f) knowingly transmitting any viruses, worms, defects, trojan horses or similar disabling or malicious code to
(g) using any robot, spider, site search and retrieval application or other mechanism to retrieve or index any portion of the Site;
(h) modifying, adapting, translating or reverse engineering any portion of the Site;
(i) removing any copyright, trade mark or other proprietary rights notices contained in or on the Site;
(j) creating accounts by automated means or under false or fraudulent pretences;
(k) violating the security of any computer or other network or engage in illegal conduct;
(l) taking any action that imposes or that would, in our reasonable opinion, result in an unreasonable or disproportionately large load on our infrastructure;
(m) using the Site other than in accordance with these terms and conditions;
(n) using the Site if you are not able to form legally binding contracts, are under the age of 18 or are suspended from using the Site;
(o) failing to pay for products ordered using your login;
(p) transferring your login to another party without our consent;
(q) harvesting or otherwise collect information about other customers, including email addresses, without their consent; or
(r) attempting any of the above acts or engaging or permitting another person to do any of the above acts.
4.1. Little Storage Co reserves the right to modify these Terms and Conditions at any time in accordance with this clause. If we make changes to these Terms and Conditions, we will post the revised Terms and Conditions on the Site and update the “Last Updated” date at the top of these Terms.
4.2. We will also provide you with notice by email of the modification at least 14 days before the date they become effective. If you disagree with the revised terms, you may, write to us to terminate this Agreement. We will inform you about your right of refusal and your right to terminate this Agreement in the notification email. If you do not terminate your Agreement before the date the revised terms become effective, your continued use of the site will constitute acceptance of the terms.
5.1. We grant you the right to non-exclusively sell and distribute our products in the territory during the term subject to the stipulations of this Agreement.
5.2. You shall not promote or solicit orders for the products outside the territory. You acknowledge that this restriction is lawful, reasonable and necessary to protect the market LSC for the supply of the products outside the territory.
5.3. We reserve to the right to make direct sale of the products to any persons in the territory, and you shall not be entitled to receive any commission or other compensation for the products sold.
6.1. Subject to the provisions of early termination by us under clause 23.1(c), this Agreement continues for 12 months from the Commencement Date.
6.2. This Agreement will automatically renew at the end of each 12 month term for a further 12 months Term, unless either party gives the other written notice of termination at least 21 days prior to the end of the relevant term.
7.1. The range and types of products that which are subject to this Agreement include will be determined by LSC.
7.2. LSC may vary the range or types of products that the distributor may sell, from time to time, at LSC’s sole discretion.
8.1. You may order products by selecting and submitting your order through the Site in accordance with these Terms and Conditions.
8.2. Any order placed through this Site for a product is an offer by you to purchase the particular product for the price notified (including the delivery and other charges and taxes) at the time you place the order.
8.3. We may ask you to provide additional details or require them to confirm their details to enable us to process any orders placed through the Site.
8.4. You agree to provide us with current, complete and accurate details when asked to do so by us.
9.1. We reserve the right to accept or reject your order for any reason, including if the requested product is not available, if there is an error in the price or the product description posted on the Site or an error in your order.
9.2. Each order placed for products through the Site that we accept results in a separate binding agreement between you and us for the supply of those products. For each order accepted by us, we will supply the products in that order to you in accordance with these terms and conditions.
9.3. If we reject an order placed through the Site, we will to notify you of that rejection at the time you place the order or within a reasonable time after you submit your order.
10.1. We may cancel any order or part of an order (including any orders that we have accepted) without any liability to you for that cancellation at any time if:
(a) the requested products in that order are not available; or
(b) there is an error in the price or the product description posted on the Site in relation to the relevant product in that order; or
(c) that order has been placed in breach of these terms and conditions.
10.2. If we cancel an order in accordance with:
(a) clause 10.1(a) or 10.1(b) we will provide you with reasonable notice of that cancellation and will not charge you for the cancelled order. If any payment has been taken for the cancelled order, then the we will refund the amount paid to your original payment method or through an alternative means, less any postage and handling fees.
(b) if your order is cancelled under clause 10.1(c), we will provide you with reasonable notice of that cancellation.
(i) if your order is cancelled before the day of delivery or collection, depending on the payment method used, we will either not charge you, or if we have taken payment for the order, then we will refund the amount paid, to your original payment method or through an alternative means.
(ii) if your order is cancelled on the day of delivery or collection, provided we are not also in breach of these Terms and Conditions, then we may charge you a cancellation fee of 20% to restock the products and will refund you any excess amount to your original payment method or through an alternative means.
10.3. If you wish to cancel or amend your order you must do so within 24 hours.
10.4. If you wish to amend an existing order, you must submit written notice that you wish to amend your order.
(a) the written notice must outline the amendments you wish to make; and
(b) it is subject to our discretion whether we accept the amendment. You will be notified of the outcome within a reasonable time.
(i) if we accept your amendment, all prices for products in your amended order will update to the current website prices at the time you submit your written notice and previous pricing in your original order will not apply.
(ii) if we do not accept your amendment, your original order will be processed unless you cancel your order within the timeframe outlined in clause 10.3.
11.1. You agree to purchase a sufficient quantity of products from us to meet or exceed the minimum purchase requirement of $1,000.00 per order.
11.2. You acknowledge that we have the right to set the price for the products being sold you. We will provide you with a list of recommended prices at which the products can be sold by you. We may change product pricing, provided that no price change shall affect purchase orders submitted by you and accepted by us prior to the date any such price change becomes effective.
11.3. You must insure the products manufactured by you against all usual risks and liabilities including product liability risks and note the interests of LSC on the policies of insurance.
11.4. You and your related entity will ensure to:
(a) promptly deal with and inform us of any problem that arises during the course of manufacturing the products; and
(b) on request by us, permit the representative(s) of LSC to enter any premises where the products are manufactured to conduct a quality check on any of the products.
If we are not satisfied on reasonable grounds of the quality of the products, we may require you to do such acts or take such action to improve the quality of the products and you shall comply with such requirements.
12.1. You must:
(a) use at all times, to your best endeavours, promote and extend sales of the products throughout the territory to all potential buyers and work diligently to obtain orders for the products;
(b) in all correspondence and other dealings relating directly or indirectly to the sale or other dispositions of the products clearly indicate that you are acting as principal and not as agent or some other representative of LSC;
(c) immediately bring any improper or wrongful use in the territory of our patents, trademarks, emblems, designs, models or other similar industrial or commercial monopoly rights which come to your notice or to the attention of LSC. You must use every effort to safeguard the property rights and interests of LSC concerning this Distributorship and must assist us in taking all steps to defend the rights of LSC other than by the institution of legal proceedings;
(d) promptly bring to the notice of LSC any information received by you which is likely to be of interest use or benefit to us for the marketing of its products in the territory; and
(e) keep full, properly and up-to-date books of account and records showing clearly all inquiries, transactions and proceedings relating to the distributorship.
12.2. You must:
(a) not assign, transfer, charge or in any manner make over or purport to assign, transfer, charge or deal with any part of this Agreement or their rights under this Agreement whether this dealing is absolute or defeasible without our written consent;
(b) you must not make any promises, representations, warranties or guarantees with reference to the products except such as are consistent with those conditions or as are expressly authorised by us; and
(c) you must not either directly or through any agent or other form of intermediary sell any of the products outside the territory or knowingly or having reason to believe that they would be so resold sell the products to any person within the territory with a view to their resale outside the territory.
13.1. You must:
(a) provide a proper and business-like system of promoting the supply of the products in the territory;
(b) commit adequate and reasonable levels of time and financial resources to the Distributorship established by this Agreement;
(c) pay your own costs of advertising the products in the territory except where there is any separate advertising campaign which LSC and you have agreed to fund jointly in any agreed proportion; and
(d) use your best endeavours to obtain approval for you and LSC to attend any trade fair or promotional fair at which the products can be exhibited.
14.1. The parties agree that the sales target set out for each 12 month period nominated applies to your activities under this Agreement so that if you fail or are unable to achieve the target for the period nominated, then you are taken to have breached this Agreement.
14.2. At our request, you must provide monthly reports to us, in the format and manner required by LSC, setting out the orders for volume and monetary amounts of the products manufactured and sold by you during the applicable reporting period.
15.1. We agree to allow you to use any intellectual property it owns or is entitled to use in connection with the supply of the products in the territory.
15.2. You agree:
(a) to use the intellectual property only under the conditions which are set down by us or by any third-party owner of the intellectual property;
(b) to apply the intellectual property to the products and any associated advertising and promotional material in a manner and form as we direct;
(c) to notify the us promptly of any actual or suspected infringement of the intellectual property and all relevant information known to you concerning an infringement;
(d) to take reasonable action as may be specified by us; and
(e) to procure from any of its related entities, employees or sub-Distributors or agents instruments binding them to the same duties as are set out in this clause if we request this.
15.3. You must not without our consent:
(a) use the intellectual property for any purpose other than those stipulated in this Agreement;
(b) register or use any of the intellectual property as part of its corporate name, business name or trading name;
(c) do anything concerning the intellectual property which might lead to dilution or which might cause confusion or deception to the public concerning the origin of the rights which are the subject of the intellectual property; or
(d) disclose any confidential information forming part of the intellectual property to any person.
16.1. Except where the contrary intention appears, expressions used in this clause have the meanings given to them in the GST Act.
16.2. If a party makes a taxable supply in connection with this Agreement for a consideration which represents its value, then the recipient of the taxable supply must also pay, at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.
16.3. A party’s right to payment under this clause is subject to a valid tax invoice being delivered to the recipient of the taxable supply.
16.4. To the extent that one party is required to reimburse another party for costs incurred by the other party, those costs do not include any amount in respect of GST for which the other party is entitled to claim an input tax credit.
16.5. To the extent that any consideration payable to a party under this Agreement is determined by reference to a cost incurred by that party, the GST exclusive amount of that cost must be used.
17.1. You agree with us that you shall not:
(a) compete with LSC, including selling or dealing in any way with any goods which are identical to, similar to or competitive with the products, in the territory for a period of 12 months after the termination of this Agreement;
(b) act as agent for any other principal or represent any other person in any capacity (including as a Distributor) where that other principal or person conducts a business that is competitive with the business of LSC (except with the consent of LSC); and
(c) directly or indirectly, own or become entitled to own any legal or equitable interest (whether capital or loan capital or any other form of property or interest or participation interest) in any business or any legal entity that is competitive with the LSC’s business (except with the consent of LSC).
17.2. For the purposes of this clause, you contract for yourself and for any shareholder or other participant in the business of yours and you represent to us that you are lawfully entitled to do so.
18.1. For the purposes of this clause, ‘dealing’ means any transaction or event by which you confer or grant to any person a present or future right or interest:
(a) by way of security over your interests, rights and benefits under this Agreement;
(b) as a result of which a person is substituted for you as Distributor under this Agreement (regardless of the duration, form or nature of the transaction or the event); or
(c) by means of a settlement or declaration of trust.
18.2. You must not without our consent:
(a) enter into any dealing; or
(b) take the benefit of or assume any burden relating to any dealing.
18.3. If you seek our consent to any proposed dealing under the preceding clause, you must:
(a) disclose fully in writing all material facts relating to the dealing;
(b) comply fully with any conditions or requirements set down by us which attach to any of our consent that is given.
19.1. The parties agree that you may appoint any number of sub-Distributorships or agents (or both) as you wish with our written consent.
20.1. Our products and services are covered by guarantees under the Australian Consumer Laws which cannot be excluded. For major failures with goods, you are entitled to:
(a) a refund; or
(b) replacement of the products.
20.2. If a failure with any of our products does not amount to a major failure, you are entitled to have the failure rectified within a reasonable time. If this is not done, you are entitled to a refund for the goods and to obtain a refund for any unused portion.
20.3. Without excluding, restricting or modifying the rights and remedies to which you may be entitled under these consumer guarantees provisions of the Australian Consumer Law or LSC’s liabilities under those provisions:
(a) you acknowledge that the Site is provided “as is” and that we do not make any warranty or representation as to the suitability of the Site or our products for any purpose;
(b) we exclude all other implied terms and warranties, whether statutory or otherwise, relating to the Site or the subject matter of this Agreement; and
(c) we will not be liable to you for indirect and consequential loss arising from or connected to this Agreement in contract, tort, under any statute or otherwise (including, without limitation, for loss of revenue, loss of profits, failure to realise expected profits or savings, loss or corruption of data and any other commercial or economic loss of any kind) unless such loss arises as a result of our own negligence or wilful misconduct.
20.4. Our liability to you for loss or damage of any kind arising out of this Agreement or in connection with the relationship established by it is reduced to the extent (if any) that you cause or contribute to the loss or damage. This reduction applies whether our liability is in contract, tort (including negligence), under any statute or otherwise.
21.1. You agree to indemnify us on a full indemnity basis for all direct and consequential loss and damage and liabilities whether monetary or capable of being converted into money suffered by us as a result of or caused by or contributed to by any act or omission or default of you connected with this Agreement.
21.2. Without limiting to the generality of the preceding clause, the indemnity extends to all loss we suffer or may suffer:
(a) that is of a civil or criminal or penal nature;
(b) that involves increased expenditure or effort in supplying products to customers;
(c) that is caused by or contributed to by any person for whom you have legal responsibility;
(d) that is not indemnified under any contract of insurance in which we have interest; or
(e) as a result of any breach or default by you of any provision within this Agreement; whether during or after the termination of this Agreement.
22.1. An event of default occurs:
(i) fails to pay on the due day any monies owing pursuant to this Agreement; or
(ii) fails to perform any of its obligations pursuant to this Agreement, and the breach is incapable of remedy or a party has been notified by one or more of the other parties of the breach and has failed to remedy the breach within 14 days of receipt of notification;
(i) an order is made that the party is to be wound up; or
(ii) a liquidator, provisional liquidator, a receiver or receiver or manager for the party is appointed; or
(iii) a resolution is passed to appoint an official manager for the party; or
(iv) the party proposes to make any assignment of its assets for the benefit of any of its creditors or to wind itself up or otherwise dissolve itself.
23.1. This Agreement will terminate:
(a) by agreement of all parties;
(b) by a party serving a written notice to the other parties if another party is in default under this Agreement; or
(c) by us providing you with 14 days written notice of termination.
23.2. Termination of this Agreement will not discharge a party from its obligations to the other party arising up to the date of such termination.
24.1. Immediately on expiration or termination of this Agreement, you will:
(a) pay any and all amounts owing to us pursuant to this Agreement;
(b) deal with any products that are goods in your actual or constructive possession or are subject to the control of yours in the manner directed by us;
(c) deliver up to an agent or representative of LSC all of the documents and any advertising material and promotional material concerning the products;
(d) cease using any intellectual property of ours and sign any instrument and do any other act that is necessary to achieve this purpose;
(e) fulfil any contract of supply you have with any of your customers as if this Agreement and this Distributorship were still in force; and
(f) not hold yourself out or represent yourself as a Distributor of LSC.
25.1. If a dispute arises out of or related to this Agreement, including any dispute as to the interpretation, breach or termination of this Agreement, you cannot, except where you seek urgent interlocutory relief, commence any court or arbitration proceedings relating to the dispute unless you have complied with the following clauses:
25.2. You have provided us with notice that a dispute has arisen, specifying:
(a) the background and the issues in dispute;
(b) the relevant provisions of this Agreement;
(c) any particulars of quantification of the dispute.
25.3. On receipt of the notice by the us, we must endeavour in good faith to reach a mutually acceptable decision on the dispute within 10 business days or such other period that is agreed upon.
25.4. If the parties cannot reach an agreement within this period, the dispute must be submitted to conciliation in accordance with and subject to The Institute of Arbitrators and Mediators Australia Conciliation Rules.
25.5. Each Party pays for its own costs of attending the conciliation and the Parties will share the costs and expenses of the mediation equally.
26.1. If a party (‘affected party’):
(a) is prevented from or delayed in performing an obligation by a prescribed event;
(b) as soon as possible after the prescribed event occurs, must notify the other party of the particulars of:
(i) the prescribed event;
(ii) the effect of the prescribed event on performance of the affected party’s obligations;
(iii) the anticipated period of delay; and
(iv) the action (if any) the affected party intends to take or mitigate or remove the affected delay; and
(c) promptly and diligently acts to mitigate or remove the prescribed event and its effect;
(d) the obligation of the affected party under this Agreement is suspended during, but for no longer than, the period the prescribed event continues and such further period as is reasonable in the circumstances; and
(e) if the affected party is prevented from or delayed in performing the obligation by the prescribed event for at least 21 business days, any of the other party may by notice to the other party terminate this Agreement.
26.2. In this clause, ‘prescribed event’ means any of the following events:
(a) act of God;
(b) war, riot, insurrection;
(c) strike, lockout, ban, limitation or work or other industrial dispute; and
(d) law, rule or regulation of any government or governmental agency, and executive or administrative order or act of general or particular application;
(e) is unforeseen by the affected party;
(f) is beyond the control of the affected party; and
(g) occurs without the fault or negligence of the affected party.
27.1. Each party will bear its costs and expenses in the negotiation, preparation and performance of its obligations under this Agreement.
28.1. Time is of the essence of this Agreement.
29.1. A party must assign, charge, encumber or otherwise dispose of, or purport to do so, its rights and obligations under this Agreement, without the prior written consent of the other parties, which consent not to be unreasonably withheld.
30.1. A notice given under this Agreement must be signed by or on behalf of the party giving it, addressed to the party to whom it is to be given and:
(a) delivered to that party’s address; or
(b) transmitted to the party’s nominated email address.
(i) LSC’s email address is, unless stated otherwise: firstname.lastname@example.org
(ii) Your email address will be the one you nominated on your application form or otherwise updated to.
30.2. A notice given to a party under this Agreement is treated as having been given and received:
(a) on the date of delivery if it is to a party’s address; or
(b) on the date of delivery if it is transmitted by email in accordance with clause 30.1(b) and a correct and complete transmission report is received, on the day of transmission.
(c) for the purposes of this clause, the date of delivery must be a business day, if it is not a business day, the date of delivery will be considered as delivered on next earliest business day.
30.3. Any notice by a party may be given and may be signed by its solicitor.
30.4. Any notice to a party may be given to its solicitor by any of the means listed in this clause to the solicitor’s business address or email address.
31.1. This Agreement contains the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement and supersedes any earlier agreement and understanding between the parties on everything connected with the subject matter of this Agreement.
31.2. Each party acknowledges that it:
(a) has not been induced to enter into this Agreement by any alleged statement, representation, warranty or condition made by or on behalf of the other parties; and
(b) has entered into this Agreement in reliance solely upon its own research and inquiry.
32.1. No failure to exercise and no delay in exercising any right, power or remedy by a party under this Agreement will operate as a waiver. Nor will any single or partial exercise of any right, power or remedy preclude any other or further exercise of that or any other right, power or remedy.
33.1. The rights and obligations of the parties will not merge on completion of any transaction under this Agreement. They will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing any transaction.
34.1. This Agreement may be executed in any number of counterparts. All counterparts taken together will be taken to constitute one agreement.
35.1. Any provision in this Agreement which is invalid or unenforceable is to be read down, if possible, so as to be valid and enforceable, and is otherwise to be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of this Agreement.
36.1. Each party must do everything reasonably required of that party by notice from the other party to effectively carry out and give full effect to this Agreement and the rights and obligations of the parties under it.
37.1. Each party must treat the existence and provisions of this Agreement confidentially. No disclosure in relation to the negotiations of the parties or the existence or provisions of this Agreement can be made or authorised by a party except to that party’s professional advisors in the normal course of business or as required by law or as previously approved in writing by all other parties.