These terms and conditions (Group Trading Terms) apply to and form part of any Group Trading Agreement (the “Agreement”) between BSR and the Supplier.
1. DEFINITIONS & INTERPRETATION
1.1 In these Group Trading Terms, the following definitions apply:
ACL means the Australian Consumer Law, which forms Schedule 2 of the Competition and Consumer Act 2010 (Cth);
BSR means BSR Franchising Pty Ltd ABN 21122 556 094;
GSF means Group Services Fee as specified in the Agreement;
Heavy Vehicle National Law and Regulations means the Heavy Vehicle National Law which commenced on 10 February 2014 as adopted by each Australian State and Territory, the Heavy Vehicle (Fatigue Management) National Regulation, the Heavy Vehicle (General) National Regulation, the Heavy Vehicle (Mass, Dimension and Loading) National Regulation, the Heavy Vehicle (Registration) National Regulation, and the Heavy Vehicle (Vehicle Standards) National Regulation;
GST Act means A New Tax System (Goods & Services Tax) Act 1999 (as amended);
Modern Slavery Laws means the Modern Slavery Act 2018 (Cth), the Modern Slavery Act 2018 (NSW) and any other similar international legislation applicable to any goods and services provided under this Agreement;
Modern Slavery has the definition given to it under the Modern Slavery Act 2018 (Cth);
Purchase Data has the meaning given to it under clause 6.1;
Rebates means fees, rebates, subsidies, discounts, promotional assistance and/or incentives;
Relevant Month means each calendar month;
Retailers means each of BSR’s franchisee retailers and associate retailers;
STA means supplementary trading agreement (if any) entered into between BSR and Supplier; and
Supplier means the supplier of goods and services stated in the Agreement.
1.2 In this Agreement, unless the contrary intention appears:
1.2.1 the singular includes the plural and vice versa; and
1.2.2 a reference to a part includes its executors, administrators, successors and permitted assigns.
2. FEES AND REBATES
2.1 The Supplier will provide the Rebates as set out in the Agreement to BSR and each of BSR’s Retailers.
2.2 The GSF is calculated as a percentage of Purchase Data for each Relevant Month and is payable by the Supplier to BSR by the end of the month following the Relevant Month.
2.3 The Member Rebates as specified in the Agreement are payable for each Relevant Month by the Supplier to BSR by the end of the month following the Relevant Month.
2.4 Additional incentives are payable as set out in the Agreement, and if not specified, are payable for each Relevant Month, by the Supplier to BSR by the end of month following the Relevant Month.
3.1 It is a condition precedent to the payment of any rebate to a Retailer, that the Retailer is a party to a current licence agreement or service agreement with BSR or a related body corporate.
4.1 The Supplier will provide, and accepts full responsibility for, accurate model and pricing information to BSR and acknowledges this information is provided to Retailers.
4.2 All pricing information must include both GST inclusive and exclusive prices.
4.3 Where the Supplier increases its price/s, the Supplier must provide BSR with a price list for all goods offered by the Supplier incorporating such increase/s at least 30 days before the increases take effect.
4.4 Where the Supplier decreases its price/s on good/s (including by way of increasing rebates or other incentives in relation to the good/s), the Supplier must pay to BSR and the Retailers, in relation to good/s purchased by BSR and the Retailers from the Supplier but not sold by BSR and the Retailers prior to the decrease, the difference between the price paid by BSR and the Retailers to the Supplier for the good/s and the price of the good/s following the decrease in price.
4.5 Any time limits applied by the Supplier in relation to clause 4.4 must not be less than 90 days from the date of delivery of the good/s to BSR and/or the Retailer and must not apply in relation to good/s purchased by the Retailer and used for display purposes prior to being sold.
5. OTHER AGREEMENTS
5.1 Where other opportunities become available for the collection of Rebates, BSR may, with the agreement of the Supplier, issue an STA. Any STA is in addition to, and does not supersede, these Group Trading Terms. To the extent of any inconsistency, the terms of the STA will prevail.
6. TRANSACTION DETAILS – RETAILER PURCHASE DATA
6.1 The Supplier will use all reasonable endeavours to provide to BSR details of transactions (including transactions where payment has been made by way of credit) between the Supplier and Retailers and/or BSR no later than 5 working days after each trading month (Purchase Data). The Purchase Data is to be provided electronically in a format suitable to BSR at email@example.com . BSR will use the Purchase Data to calculate and claim Rebates on behalf of BSR and the Retailers.
6.2 BSR warrants that all Retailers have consented in writing to:
6.2.1. the Supplier providing Purchase Data to BSR in accordance with clause 1;
6.2.2 the Supplier paying Rebates to BSR, calculated on the value of goods purchased by the Retailers from the Supplier; and
6.2.3 the Supplier paying Rebates due to Retailers (as contemplated in clause 2.1) to BSR on the Retailers’ behalf.
6.3 BSR will be liable for loss or damage incurred by the Supplier to the extent that it directly results from a breach of the warranties contained in clause 6.2, and not where such loss, damage or expense arose as a consequence of the Supplier’s acts or omissions.
7.1 All Rebates will be calculated in accordance with the Agreement forming part of this Agreement, exclusive of GST and any other tax, fee, levy or duty, and paid to BSR. All purchases of goods and services from the Supplier (regardless of how they are paid for) by Retailers and BSR are to be included in calculating the Rebates and the Rebates shall be calculated on the original invoice price of the goods and/or services purchased from the Supplier.
7.2 The Supplier acknowledges the Rebates are payable to BSR and cannot be reduced or set off against any money that a Retailer or BSR may owe the Supplier from time to time.
7.3 If the agreement under which a Retailer obtains services from BSR is terminated, BSR will immediately advise the Supplier and all Rebates relating to that Retailer due and accrued from the date of that notice will become payable to BSR and not the Retailer. BSR will provide the Supplier with a list of its current Retailers on request.
7.4 If a Retailer:
7.4.1 being a natural person, commits an act of bankruptcy; or
7.4.2 being a corporation, by act or omission enables the appointment of an administrator, scheme manager, trustee, official manager, receiver, receiver and manager, liquidator or any other person authorised to enter into possession or assume control of any property of the Retailer pursuant to a mortgage or other security,
then, all accrued Rebates attributable to that Retailer’s Purchase Data will accrue and become payable to BSR.
8.1 Should any goods and services tax as levied under the GST Act or any other tax, fee, levy or duty imposed by any competent authority be payable on any of the Rebate arrangements set out in this Agreement, such tax, fee, levy or duty will be payable by the Supplier and shall be calculated using the rates and methods of assessment in force at the time the Rebate accrues. The Supplier is liable for any other applicable tax, including without limitation withholding tax.
8.2 Each supply made under these Group Trading Terms is made on a progressive/periodic basis and each progressive/periodic component of the supply is to be treated as a separate supply under the GST Act.
8.3 The Supplier will provide BSR with either an Adjustment Note or a Recipient Created Tax Invoice (as those terms are defined in the GST Act) on a monthly basis for all Rebates (including any fees payable under settlement terms).
9. CONFIDENTIALITY & PRIVACY
9.1 At all times (including for a period of 5 years after the termination or expiry of this agreement) each party must keep any confidential information or commercially sensitive information of the other party (the Information) confidential and not directly or indirectly disclose the Information to any other person or entity at any time except:
9.1.1 as required by law or the rules of the Stock Exchange; or
9.1.2 where the Information has become public knowledge other than through a breach of this Agreement; or
9.1.3 to enable a party to obtain legal or accounting advice, where prior to such disclosure the discloser of the Information has obtained the agreement of the recipient of the Information to keep the Information confidential.
9.2 Both parties must comply with the Privacy Act 1988 (Cth) with respect to any Personal Information (as defined under that legislation) provided under this Agreement.
10.1 The Supplier acknowledges that BSR is a reporting entity under the Modern Slavery Act 2018 (Cth) and warrants to BSR that during the term of this Agreement:
10.1.1 it will comply with its obligations under the Modern Slavery Laws;
10.1.2 it will take reasonable steps to ensure that there is no Modern Slavery in its supply chains or those of its subcontractors, including by implementing training and procedures to identify, investigate and remediate any instances where Modern Slavery is occurring or could occur; and
10.1.3 it will notify BSR as soon as it becomes aware of any actual or suspected slavery in its business or a supply chain which has a connection with this Agreement.
10.2 Supplier warrants that it will comply with all relevant state and federal Work Health and Safety Laws and the Heavy Vehicle National Law and Regulations.in delivering goods under this Agreement.
10.3 Where Supplier is supplying goods which include timber, Supplier warrants to BSR that it will only supply timber products which have been harvested in compliance with the Illegal Logging Prohibition Act 2012 and all applicable Australian laws and regulations, and also all laws and regulations applicable in the country where the timber was harvested;
10.4 Supplier agrees to promptly return the completed Compliance Questionnaire and all relevant supporting documentation to meet BSRs requirements under this clause 10, and warrants that all information provided is true, accurate and complete.
10.5 Supplier indemnifies BSR for any BSR retailer and third-party claims which arise in connection with Supplier’s breach of its warranties or obligations under this clause 10.
10.6 BSR may immediately terminate this Agreement where the Supplier commits a material breach of this clause
11. DELIVERY & RETURNS
11.1 The Supplier must deliver all goods safely into the retailer’s store premises or agreed point of receipt.
11.2 The Supplier will reimburse BSR for freight costs involved in any faulty or defective good returns.
12.1 In addition to BSRs termination right under clause 10.6, either party may terminate this Agreement where the other party commits a material breach of this Agreement which remains unremedied after being given minimum 90 days’ written notice to do so.
13.AUSTRALIAN CONSUMER LAW
13.1 Supplier warrants that it will comply with its obligations as a Manufacturer as defined under the ACL.
13.2 Where a consumer has elected for the BSR retailer (whether operated by BSR or one of its franchisees or service recipients) to provide a remedy under the ACL, the Supplier agrees to comply with its obligations under s.276 ACL to promptly reimburse the BSR retailer including compensation for reasonably foreseeable consequential losses including freight costs.
14.1 This Agreement, an STA and any contract incorporating these Group Trading Terms is deemed to be made in Brisbane and the laws of Queensland and the Commonwealth of Australia govern this agreement. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland.
14.2 If anything in this Agreement is unenforceable illegal or void then it is severed and the rest of this Agreement remains in force.
14.3 Each party must comply with all applicable laws and regulations to the extent applicable with respect to the goods and services provided under this Agreement.
14.4 The following clauses survive termination or expiry of this Agreement: clause 8 Taxes, clause 9 Confidentiality and Privacy, and clause 10 Compliance.
Current from 1 July 2023