STANDARD TERMS AND CONDITIONS OF SALE
Terms and Conditions
1 Definitions and interpretation
1.1 Definitions. In these Terms, unless the context requires otherwise:
Approved Materials means the advertising, marketing, visual merchandising, fixtures and Product display materials as supplied by Boody or authorised by Boody from time to time.
Approved Website means, for a Customer who is authorised by Boody to sell the Products Online pursuant to these Terms, the Customer’s website and domain that has been specifically approved by Boody.
Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 of the Competition Consumer Act 2010 (Cth).
Bank Account means:
Account name: Boody Australia Pty Ltd
BSB: 062 - 156
Account Number: 10220869
Boody means Boody Australia Pty Ltd (ABN 93155303012).
Boody Website means Boody’s internet site, namely
Brand means ‘Boody’, ‘Boody Baby’ and all other trade marks (registered or unregistered), get-up, packaging, logos, slogans and associated intellectual property used in connection with bamboo ecowear (including the Products) supplied by Boody.
Business Day means a day which is not a Saturday, Sunday or public holiday in New South Wales.
Consumer Guarantee means a consumer guarantee as it applies to supplies made under these Terms, as set out in under Part 3-2, Division 1, Subdivision B of the Australian Consumer Law.
Customer means the person described as such in an Order.
Customer Business means the Customer’s business as approved by Boody, including its trading name, branding and trade marks.
Default Rate means the pre-judgement interest rate set pursuant to the Civil Procedure Act 2005 (NSW) expressed as a percentage per annum.
Force Majeure Event means an act of God, fire, lightning, earthquake, explosions, flood, subsidence, insurrection or civil disorder or military operations or act of terrorism, expropriation, strikes, lock-outs or other industrial disputes of any kind not relating solely to the party affected, and any other event which is not within the reasonable control of the party affected but does not include any act or omission of the other party.
GST has the meaning given in GST Law.
GST Law has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Insolvency Event means the happening of any one or more of the following events:
(a) in relation to a natural person:
(i) that person being unable to pay his or her debts as and when they fall due;
(ii) an application and filing for bankruptcy being made in respect of that person; or
(iii) a receiver, or receiver and manager, trustee for creditors or trustee in bankruptcy or analogous person being appointed over that person’s assets or undertakings or any of them; or
(b) in relation to a body corporate:
(i) that body corporate being unable to pay its debts as and when they fall due;
(ii) a receiver, receiver and manager, administrator or liquidator being appointed over that body corporate’s assets or undertakings or any of them;
(iii) an application for winding up or other process seeking orders which, if granted, would render that body corporate an externally-administered body corporate being filed and not being withdrawn within 20 Business Days;
(iv) that body corporate being or becoming the subject of an order, or a resolution being passed, for the winding up or dissolution of that body corporate; or
(v) that body corporate entering into, or resolving to enter into, a deed of company arrangement or an arrangement, composition or compromise with, or proceedings being commenced to sanction such a deed of company arrangement or arrangement, composition or compromise, other than for the purposes of a bona fide scheme of solvent reconstruction or amalgamation.
Intellectual Property Rights means all current and future registered and unregistered rights in respect of copyright, trade marks, trade secrets, know-how, confidential information, patents, inventions and discoveries and all other intellectual property as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation 1967.
Online means internet sites, social media accounts, web marketplaces (i.e. eBay) and other digital and/or internet based platforms.
Online Retailing Approval means current, written authorisation by Boody for the Customer to sell the Products Online from the Approved Website.
Online Retailing Approval Terms and Conditions means the terms and conditions attached to these Terms and labelled as such, governing the sale of the Products Online by those Customers who have Online Retailing Approval.
Order has the meaning given in clause 4.1.
Ordering Portal means Boody’s online portal for placing Orders, namely https://boody.me/wholesale.
Policies and Procedures means Boody’s policies and procedures in respect of the sale by Customers of the Products, including but not limited to the Online Retailing Approval Terms and Conditions, as updated from time and communicated by Boody in writing or via the Ordering Portal.
PPSA means the Personal Property Securities Act 2009 (Cth).
Premises means the physical retail outlet, as approved by Boody, from which the Customer is authorised to display and sell the Products.
Product means products Boody offers for sale from time to time, as described on the Ordering Portal, catalogues, invoices, quotations, Orders or any other forms or communications as provided by Boody to the Customer.
Retail Displays means Boody’s branded fixtures and fittings.
Security Interest has the meaning given in the PPSA.
Terms means these Terms and includes the Online Retailing Approval Terms and Conditions.
Territory means Australia (and New Zealand and other overseas locations but only where authorised in writing by Boody) and excludes Online unless the Customer has Online Retailing Approval
1.2 Interpretation.
In these Terms:
(a) if a word or phrase is defined its other grammatical forms have corresponding meanings;
(b) the word 'includes' and other similar expressions shall not be taken to be words of limitation;
(c) an obligation includes a warranty or representation and a reference to a failure to comply with an obligation includes a breach of warranty or representation;
(d) a reference to these Terms, any other agreement or document includes that agreement or document as novated, varied or replaced and despite any change in the identity of the parties;
(e) a reference to anything required to be ‘written’ or ‘in writing’ will be taken to include e-mail correspondence;
(f) a term or expression given a meaning in the GST Law, that is not otherwise defined in these Terms, has the same
meaning in these Terms as in the GST Law; and
(g) a clause, schedule, annexure or part is a reference to a clause, schedule, annexure or part, as the case may be, of these Terms.
2 Agreement to supply
2.1 This document records the terms and conditions on which Boody agrees to supply and deliver Products to the Customer. Boody may at any time vary these Terms by placing an updated version on the Ordering Portal.
2.2 Subject to clause 3 and these Terms, Boody grants the Customer a non-exclusive right to use the Brand and re-sell the Products in the Customer Business from the Premises, in the Territory. The Customer may not sell the Products in any business other than the Business and must not on-sell or resupply the Products to any person (other than an ordinary consumer) without the prior approval of Boody.
2.3 By placing an Order for the Products, the Customer agrees to be bound by these Terms. The Customer acknowledges that these Terms may change and the version of the Terms as available on the Ordering Portal at the time an Order is placed (howsoever it may be placed) will be the version binding upon the Customer.
3 Online
3.1 The Customer is only entitled to sell the Products at the Premises or as otherwise authorised by Boody in writing. The Customer will not promote or sell the Products Online unless Online Retailing Approval has been granted by Boody.
3.2 If the Customer has been granted Online Retailing Approval, it must comply in full with the Online Retailing Approval Terms and Conditions annexed to these Terms.
3.3 Despite clause 15.1, Boody may withdraw the Online Retailing Approval at any time where the Customer fails to comply with these Terms or the Online Retailing Approval Terms and Conditions.
4 Orders
4.1 The Customer must submit a purchase order to Boody (each an Order) specifying:
(a) the amount and type of Products it wants supplied; (b) the address for delivery of those Products; and
(c) any special delivery instructions for those Products (provided always that the delivery date for each Order must fall on a Business Day).
4.2 Orders should be placed via the Online Ordering Portal or via Boody brand representatives directly unless another method has been approved by Boody.
4.3 Each Order constitutes an offer by the Customer to purchase the Products specified in that Order on the terms of these Terms (to the exclusion of any other terms other than those which apply or cannot be excluded by operation of law) irrespective of how an Order is placed (i.e. all Orders placed by means other than the Ordering Portal are also governed by these Terms).
4.4 Boody may, in its sole discretion:
(a) accept an Order by supplying the Products specified in that Order (each an Accepted Order); or
(b) decline an Order (without being obliged to give reason for doing so) by giving notice to that effect to the Customer.
4.5 If Boody is unable to supply the quantity of a Product specified in an Order but is able to supply a lesser quantity, it may give notice to that effect to the Customer. If the Customer does not wish to accept the lesser quantity, it must notify Boody in writing by 5.00pm AEST on the following Business Day from the date upon which Boody first notifies the Customer, otherwise the reduced quantity will be deemed accepted by the Customer and the Customer will be bound by that amended Order. For the avoidance of doubt, clause 4.4 applies to offers made in accordance with this clause 4.5.
4.6 Boody reserves the right to stipulate a minimum order quantity at any time for the Products.
5 Delivery
5.1 Boody will deliver the Products the subject of an Accepted Order to the address specified in the Accepted Order.
5.2 Boody will endeavour to deliver the Products in an Accepted Order within the delivery times specified in the Accepted Order (typically 3- 10 days).
5.3 Delivery times given by Boody are estimates only and Boody accepts no liability to the Customer or to any other person if it is unable to deliver Products within an estimated delivery time.
5.4 Boody reserves the right to charge the Customer reasonable storage costs and redelivery fees if the Products are unable to be delivered, for any reason not caused by Boody, to the Customer at the estimated delivery time.
6 Acceptance of Products
6.1 On delivery of Products to the Customer, the Customer must immediately check the quantity against the delivery confirmation and visually inspect the Products for their quality, condition and saleability.
6.2 The Customer will be deemed to have:
(a) accepted each Product received in a delivery from Boody;
(b) acknowledged that it is satisfied as to the quantity, condition, quality and saleability of that Product;
(c) to the maximum extent permitted by law, waived any rights it has to make claims against Boody relating to the quantity, condition, quality or saleability of that Product; and
(d) assumed full responsibility for the maintenance of the quality, condition and saleability of that Product after its delivery by Boody, unless it gives Boody a written notice setting out the nature of any defects within 3 Business Days of the delivery of the Product.
7 Defective Products
7.1 Subject to clause 12, if the Customer can verify to Boody’s reasonable satisfaction that a Product was defective at the time the Product was delivered to the Customer, Boody must use reasonable endeavours to either credit the Customer’s Boody account to the value of the Product or replace the defective Product within 20 Business Days of the Customer returning the defective Products to Boody, at the Customer’s cost unless otherwise agreed by Boody in writing.
7.2 Subject to clause 12, if a Product was free from defects when the Product was delivered to the Customer, Boody will not be obligated to replace the cost of that Product to the Customer.
8 Price and payment
8.1 The price of the Products will be as set out in Boody's standard price list on the Online Ordering Portal (which is subject to change at Boody’s sole discretion) at the time the Products are dispatched, unless Boody otherwise provides a written quotation to the Customer.
8.2 The price of the Products quoted by Boody or on Boody’s price list is exclusive of GST. In addition to the price payable for the Products, the Customer must pay to Boody, in accordance with the terms of Boody’s invoice, the GST payable in respect of the supply of those Products.
8.3 Boody provides “recommended retail prices” (“RRP”) in respect of its Products. The RRP is the price at which Boody recommends the Customer sell its Products, based on Boody’s experience in selling the Products in the market. The Customer acknowledges that the RRP is a recommended sale price only and the Customer is free to set its own prices.
8.4 Unless Boody has approved the customer to be supplied Products on credit under these Terms, all Orders must be paid in full prior to dispatch to Boody’s Bank Account.
8.5 Notwithstanding clause 8.4, Orders less than $3,000 (at Boody’s discretion) or orders for new Customers require 100% payment prior to dispatch to Boody’s Bank Account.
8.6 Boody will invoice the Customer for Products supplied in accordance with these Terms prior to dispatch of the Products.
8.7 If the Customer has been granted a credit account by Boody and subject to clause 8.5, the Customer must pay Boody the total amount set out in each invoice issued to the Customer within 14 days of the date of the invoice (and unless alternate payment terms have been approved in writing by Boody).
8.8 The Customer must pay all amounts due to Boody (whether under these Terms or otherwise):
(a) without set-off, deductions counter-claims or conditions; and
(b) in available cleared funds to the Bank Account.
8.9 If the Customer owes any amount to Boody (whether under these Terms or otherwise), Boody may, in its sole discretion and without prejudice to any of its other rights, do one or more of the following:
(a) withhold all future supplies of Products until that amount has been paid in full; or
(b) set-off that amount against any amount owing by Boody to the Customer.
8.10 If an amount due under these Terms is paid after the due date the Customer must pay Boody, in addition to the overdue amount:
(a) interest at the Default Rate calculated based on a 365 day year from the date of the default until the date the amount
(together with all accrued interest) is paid in full; and
(b) all costs and expenses incurred by Boody in collecting the overdue amount.
8.11 The Customer's obligation to pay an amount owing applies notwithstanding any delay in the delivery of the Products.
8.12 Time is of the essence in respect of all amounts payable pursuant to these Terms.
9 Freight and insurance
9.1 Unless otherwise agreed in writing:
(a) Boody will arrange for the freight of the Products to the Customer at the Customer’s cost except that Boody may at its discretion agree to waive freight costs for Orders of 25 units or more (this minimum requirement is subject to change at Boody’s discretion); and
(b) Boody will not arrange insurance of the Products during freight; and
(c) the price for the Products is exclusive of all freight and all freight and other carrier costs and any insurance associated with a delivery must be paid by the customer on the terms of Boody’s invoice and in accordance with clause 8.
10 Title and risk
10.1 Risk in each Product passes to the Customer upon dispatch of the Products by Boody or its agent or representatives.
10.2 Until Boody has received payment in full for all Products supplied by Boody under an Accepted Order:
(a) title to the Products shall remain with Boody;
(b) the Products shall, so far as practicable, be kept separate from other goods on the premises of Customer, so as to be readily identifiable as the property of Boody, and
(c) the Customer shall be at liberty to resell the Products in the ordinary course of business unless it fails to make any payment to Boody when it becomes due, default in the due performance or observance of any other obligation under these Terms or suffers an Insolvency Event. In any of those circumstances, Boody may by notice in writing to the Customer cancel the Accepted Order and enter upon the Customer’s premises to remove any of the Products to which Boody has retained title and for this purpose the Customer shall afford Boody all reasonable assistance to locate and take possession of the Products.
10.3 The Customer acknowledges that by virtue of clause
10.2, Boody has or will have a Security Interest in the Products and the proceeds from the sale of the Products for the purposes of the PPSA.
10.4 The Customer acknowledges that Boody may do anything reasonably necessary, including but not limited to registering its Security Interest on the personal property securities register established under the PPSA in order to perfect this Security Interest and comply with the requirements of the PPSA. The Customer agrees to do all things reasonably necessary to assist Boody to achieve perfection of this Security Interest under the PPSA.
10.5 The Customer and Boody agree that, pursuant to section 115 of the PPSA, the following provisions in the PPSA do not apply in relation to this Security Interest to the extent, if any, mentioned (words in this provision have the same meaning as in the PPSA):
(a) section 117 (obligations secured by interests in personal property and land);
(b) section 118 (enforcing Security Interest in accordance with land law decisions), to the extent that it allows a secured party to give a notice to the grantor;
(c) section 125 (obligation to dispose of or retain collateral);
(d) section 129 (disposal by purchase);
(e) section 130 (notice of disposal), to the extent that it requires the secured party to give a notice to the grantor and other secured parties before disposal;
(f) paragraph 132(3)(d) (contents of statement of account after disposal);
(g) subsection 132(4) (statement of account if no disposal);
(h) section 142 (redemption of collateral); and
(i) section 143 (reinstatement of security agreement).
10.6 The Customer waives its right to receive a verification statement under section 157 of the PPSA.
11 Force Majeure
11.1 Boody will not be liable for any loss incurred as a result of delay or failure to observe any of these Terms due to an event of Force Majeure. Boody’s obligations under these Terms will be suspended and will resume as soon as the cause of the Force Majeure has ceased to have effect.
12 Limitation of liability and indemnity
12.1 Boody makes no express or implied warranties under these Terms in relation to any Product, except those expressly set out on the label for each Product or separately provided by Boody to the Customer.
12.2 To the maximum extent permitted by law, Boody will not be liable for indirect, consequential, special, punitive or exemplary damages including but not limited to loss of profits, loss of business, loss by reason of delay, whether arising in negligence, from breach of contract or otherwise, in connection with these Terms. To the maximum extent permitted by law, Boody limits its liability for breach of these terms and conductions in relation to any particular supply of Products, to the price of the Products determined in accordance with clause 8.1.
12.3 To the maximum extent permitted under the Australian Consumer Law, Boody’s liability for breach of a Consumer Guarantee is limited to any one or more of the following, at Boody’s election:
(a) in relation to the supply of goods:
(i) the replacement of the Products or the supply of equivalent Products;
(ii) the repair of the Products;
(iii) the payment of the cost of replacing the Products or of acquiring equivalent Products; or
(iv) the payment of the cost of having the Products repaired.
12.4 This clause 12 continues to bind the parties after these Terms is terminated.
12.5 Subject to this clause 12, the Customer indemnifies and holds Boody harmless to the full extent permitted by law for any loss or damage whatsoever arising in connection with the supply of the Products to the Customer and the sale by the Customer of the Products from the Premises or Online.
13 Brand
13.1 The Customer acknowledges that Boody has Intellectual Property
Rights in the Products, the Approved Material, the Policies and Procedures and the Brand and agrees that it will not itself do or assist any third party to damage, infringe or challenge the Boody’s Intellectual Property Rights in those items.
13.2 Where the Products, Approved Materials or packaging for the Products is marked with any Brand or other information is placed on the Products by Boody or the manufacturer the Customer must not:
a) alter the Approved Materials or packaging;
b) remove or obscure the Brand or any information from the Products;
c) tamper with, alter or obscure any Brands in any way; or
d) place any other mark on the Products as a trade mark which is similar to or capable of being confused with any of the Brands.
13.3 The Customer must not do, cause or authorise the doing of anything which may adversely affect or jeopardise the distinctiveness of the Branding Marks or the goodwill in or value of the Branding Marks and acknowledges the Brand is positioned as a premium brand and re sale through channels such as discount and coupon based e commerce sites devalues the goodwill of the Branding Marks.
13.4 The Customer must notify Boody promptly and in writing if it becomes aware of any infringement of any of Boody’s Intellectual Property Rights.
13.5 The Customer acknowledges that damages may not be an adequate remedy if this clause 13 is breached and Boody is entitled to obtain injunctive relief against the Customer.
14 Advertising and use of the Brand
14.1 Subject to clause
14.2, the Customer is granted a non-exclusive licence to use the Brand and the Approved Materials to promote the Products as part of the Customer Business at its Premises within the Territory for so long as it is authorised by Boody to sell the Products.
14.2 Online use of the Brand and Approved Materials is not permitted unless the Customer has received Online Retailing Approval. Approved Online use must be in accordance with these Terms and the Online Retailing Approval Terms and Conditions.
14.3 Subject to clause
14.4, the Customer may only use the Approved Materials when advertising, displaying or promoting the Products.
14.4 Where the Customer wishes to use the Brand in any advertising, marketing or promotional material (outside of using the Approved Materials), the Customer must first obtain the approval of Boody, which must not be reasonably withheld. A request for approval must
be submitted to Boody no later than four (4) weeks prior to the planned advertising, marketing or promotion. Any approval given by Boody in relation to such advertising, marketing or promotional material will be valid for 90 days, after which the Customer must seek further approval to continue to use the materials in the marketplace.
14.5 Boody’s requirement to approve the Customer’s use of the Brand under clause 14.3 is necessary to protect Boody's Intellectual Property Rights and the integrity of the Brand to ensure a consistent and high quality use of the Brand in the market. Boody’s approval is not in respect of the Customer’s pricing or the amount or nature of its promotions.
14.6 Approval by Boody of the Customer’s use of the Brand in advertising, marketing and promotional material does not constitute advice and the Customer is responsible for ensuring compliance with all laws, particularly the Australian Consumer Law.
14.7 The Customer may not resell the Products or use the Brand or Approved Materials in connection with any business other than the Customer Business as approved by Boody. For the avoidance of doubt, the Customer must not resell the Products under other trading names or branding or from other premises (other than the Premises) or where Online Retailing Approval has been granted, from websites other than the Approved Website.
14.8 Boody retains ownership of all Retail Displays provided under the wholesale partnership agreement. The customer is responsible for maintaining the functionality and presentation of the display on the approved premise. Should the customer no longer wish to use the display, they must seek approval and instructions from Boody on how to effectively manage the Retail Display, which may include returning to Boody or one of its authorised representatives, of disposing of in an effective and considered manner.
15 Termination
15.1 Without prejudice to any other right under these Terms, Boody may terminate these Terms and/or the Online Retailing Approval:
a) Without cause on 90 days’ prior written notice; or
b) Immediately, in the event of:
i. an Insolvency Event affecting the Customer; or
ii. the Customer’s breach of these Terms which remains unremedied for a period of 7 days following written notice from Boody to the Customer.
15.2 Upon termination of these Terms:
a) The Customer’s right under clause 2.2 immediately ceases and the Customer must cease using the Brand and selling the Products; and
b) All amounts owing from the Customer to Boody are immediately due and payable; and
c) Any Approved Materials and other items associated with the Brand in the Customer’s possession must be immediately returned to Boody at the Customer’s cost.
16 General
16.1 These Terms constitute the entire understanding between the parties and supersede all prior agreements, understandings and communications, whether written or oral, including any Orders or any other document provided by the Customer.
16.2 The Customer warrants that it complies with all necessary laws in connection with the Products, the Brand and these Terms.
16.3 Except as required by law, the Customer must not disclose to any person without Boody’s prior written consent the existence of, or details in, these Terms or any other information Boody gives the Customer.
16.4 Each Order constitutes a separate contract for the sale of the Products and the breach of any one such contract will not be grounds for the termination of any other Order formed between the parties.
16.5 The Customer may not, without the prior written consent of Boody, assign, transfer or grant any Security Interest over, its right, title and interest in or to these Terms to any person (or agree or purport to do so).
16.6 If any provision of these Terms is illegal or unenforceable in any relevant jurisdiction, it must be enforced to the maximum extent possible, and if unenforceable may be severed for the purposes of that jurisdiction, without affecting its enforceability in any other jurisdiction or the enforceability of any other part of these Terms.
16.7 All waivers must be in writing. A single or partial exercise or waiver by a party of a right relating to these Terms does not prevent any other exercise of that right or the exercise of any other right.
16.8 These Terms are governed by and is to be construed in accordance with the laws applicable in New South Wales, Australia
Online Retailing Approval Terms and Conditions
1. Application
1.1. These Online Retailing Approval Terms and Conditions apply to the Customer in addition to the Terms where the Customer has been granted Online Retailing Approval.
1.2. The Customer’s Online Retailing Approval may be terminated in accordance with clauses 3.3 and 15 of the Terms.
1.3. Notwithstanding anything else contained in these Online Retailing Approval Terms and Conditions or the Terms, Boody may terminate the Online Retailing Approval without terminating the Terms.
2. Customer's obligations
2.1. The Customer must:
(a) provide at least the following customer services, in respect of the sale of the Products: (i) an email address or telephone number to answer customer inquiries regarding the Products during the Customer's business hours in the Territory;
(ii) a clear and conspicuous statement of the Customer's privacy and usage policies with regard to all customer information gathered via the Approved Website;
(iii) an industry standard secure transacting environment for ordering the Products online, including a prominent statement of the level of security provided for such transactions displayed at least on the ordering pages of the Approved Website;
(iv) provision to the customer of order status information (acceptance or rejection) and product availability status within 12 hours of the submission of each order and, if not immediately available, provide the customer with the option of cancelling the order; and
(v) delivery of the Products ordered to any location within the Territory within 10 days of order acceptance;
(b) use one or more reliable delivery service providers capable of proper and safe delivery of the Products to all locations within the Territory;
(c) not conduct auctions of the Products nor sell the Products by auction or substantially similar means from the Approved Website or through any third-party auction site or facility;
(d) make available to customers knowledgeable sales and support staff to provide information concerning the Products to customers;
(e) refrain from engaging in any unfair competitive practices, including but not limited to the imposition of unfair contract terms, misleading and deceptive conduct and bait advertising; and
(f) comply with all applicable laws.
2.2. Customer must ensure that customers of the Approved Website have the opportunity and right to return any Products for refund or replacement in a convenient manner, and that the Approved Website makes customers aware of this process.
3. Website
3.1. In relation to the Approved Website the Customer agrees that:
(a) the Customer cannot sell the Products from websites other than the Approved Website (i.e. no “sister” websites, auction sites, social media sites, third party advertising or amalgamation sites or other Online sites);
(b) the Approved Website must provide a facility for customers to submit queries and complaints via email, which must be promptly checked and adequately responded to by the Customer;
(c) comparisons between the Products and other products will only be for product technical and operational features, will use the Products data and Products information provided by Boody, will be objective and will not unfairly disadvantage Boody;
(d) the Customer must not use the Brand in any part of its domain name or URL other than for the Boody section of the Approved Website (“Boody Section”), which will take the following form: "www.[Customer domain name].com.au /Boody" or such other form as approved by Boody;
(e) the Approved Website must be well-presented and user-friendly and must meet the graphical, picture quality and resolution standards required by Boody and notified to the Customer from time to time; and (f) subject to reasonable downtime for maintenance, downtime for the Approved Website must not exceed a reasonable period as specified by Boody from time to time.
3.2. The Customer must create the Boody Section on the Approved Website, which must contain information and images about the Products and how to purchase the Products through the Approved Website. In particular, the Customer agrees that:
(a) for each of the Products referenced in the Approved Website, the Boody Section must fully describe the features and specifications of each Product and display a picture of each Product using only the approved
imagery supplied by Boody from time to time (being the current imagery used by Boody on the Boody Website);
(b) it must not allow any form of advertisement (including, without limitation, banner advertisements) on the Boody Section which promotes or markets any competitor of Boody or any product of a competitor of Boody. Boody will make Products data and Products information resources available to the Customer for use on the internet site.
3.3. Subject to this clause 3.4, the Customer will not copy from the Boody Website and replicate directly onto the Approved Website. The Customer may copy Products text from the Boody Website and replicate it without modification on the Approved Website. The Approved Website must not use creative templates similar to those used on, or have similar look or feel to, the Boody Website, or otherwise use html page designs, flash or gif animations or tools similar or identical to those used on the Boody Website.
3.4. The Customer hereby acknowledges and agrees that:
(a) Boody supplied Products information and images may not be modified in any way by the Customer; (b) the right to make and use all such information and copies of all such pictures of the Products terminates upon the expiration or termination of the Agreement; and
(c) Upon termination or expiration of Terms and/or the Online Retailing Approval for any reason the Customer must promptly remove any Boody supplied Product information and images from the Approved Website. 3.5. The Customer must submit the Approved Website to Boody for review and approval in advance of selling any Products from the Approved Website. Any changes to the Approved Website relating to the Products thereafter must be submitted to Boody for review and approval unless the changes made by the Customer are only to incorporate, without change, material, data or pictures supplied to the Customer by Boody.
3.6. The Customer warrants that:
(a) any product performance claims and warranties and representations made in relation to the Products by the Customer will be accurate, will comply with all laws and not be misleading or deceptive in any way; (b) it will not purport to alter or extend any warranties granted by Boody;
(c) nothing on the Approved Website will be injurious to Boody's good name, image or reputation, or to the Brand; and
(d) the content on the Approved Website will not be pornographic, defamatory or otherwise objectionable or unlawful.
4. Promotion
4.1. The Customer agrees that it must not, except in accordance with Boody's prior written approval, use or authorise others to use:
(a) the Brand or other Boody branding;
(b) any trademarks or substantially identical or deceptively similar mark to those of Boody; or (c) any image, name or other reference for any Products
anywhere on or in the internet, including, without limitation to the foregoing, as part of any internet marketing promotion, or any advertisement, including metatags, mass retailing e-mail or other existing or yet to be created methods or systems of retailing or purchase such terms as key words.
4.2. The Customer must not undertake any Boody related search engine marketing (SEM) campaign without the express written approval of Boody Australia.
4.3. Boody's approval of any SEM is in its absolute discretion. In relation to any approval of SEM, Boody will consider any conflicts with Boody promotional activities and will evaluate the Customer’s planned usage of all creative images, keywords and the campaign schedule.
4.4. Any promotion or communication of the Products undertaken by the Customer must be approved by Boody in advance in accordance with the Terms. Such promotions or communications:
(a) be clearly identified as originating from the Customer and must not, in any way, purport to be distributed by Boody, on behalf of Boody or with the permission of Boody;
(b) comply with all laws, including but not limited to the Privacy Act 1988 (Cth).
5. Collection of data
5.1. Subject to any relevant law or industry code, and in the interest of mutual business development, Boody can request the Customer to provide Boody a written report, monthly or quarterly, as agreed by both parties detailing:
(a) all Boody sales of Products sold via the Approved Website by style;
(b) any additional data as agreed by both parties.
6. Technical Standards
6.1. The Approved Website must conform to best industry practice and Boody's reasonable requirements with regard to online business practices including, but not limited to, the following:
(a) technical security;
(b) physical security;
(c) consumer security and privacy;
(d) adherence to the Privacy Act 1988 (Cth);
(e) inclusion of a secure transacting environment including the presence of SSL certificate; (f) inclusion of published privacy policy on the Approved Website; and
(g) meeting the minimum usability / accessibility standards of Australia.
7. Liability
7.1. Subject only to clause 12 of the Terms, Boody will not be liable for:
(a) any fraud occasioned by any customer in relation to a sale of any Products by the Customer. (b) any loss of data, including financial data or personal information;
(c) any security breach occurring on any part of the Approved Website, or the Customer's computer systems; and
(d) any computer virus introduced into the Customer's computer systems through the Boody Website or as a result of any email regarding the Products or Boody.
