Terms & Conditions

1. Definitions
In these Terms, capitalised words have the meaning given in the Dictionary.

2. Application
These Terms apply to and govern the supply by HEAD of Goods and provision of Services to the Purchaser from time to time and, more specifically, apply to and govern the supply by HEAD of Goods and/or Services to the Purchaser which are to be provided under an Offer accepted by HEAD.

3. Formation of Agreement
3.1 The Purchaser acknowledges and agrees that by submitting an Order to HEAD the Purchaser makes an offer to HEAD for HEAD to supply it with the Goods and/or provide it with the Services on the terms of:
(a) these Terms; and
(b) the Order,
(Offer).
3.2 A contract will be formed between HEAD and the Purchaser in respect of each Offer upon the earlier of:
(a) HEAD notifying the Purchaser in writing that it accepts the Purchaser’s Offer;
(b) HEAD accepting, in full or part, payment from the Purchaser for any Goods or Services the subject of the Offer; or
(c) the Purchaser accepting delivery of the Goods or performance of the Services the subject of the Offer to the Purchaser; or
(d) HEAD otherwise confirming its acceptance of the Offer.
3.3 An Agreement formed under clause 3.2 will comprise these Terms, any Account Application, the Order (only to the extent that any additional terms in the Order are accepted by HEAD in writing).
3.4 HEAD is not bound to accept any Offer and may decide not to accept any Offer for any reason and in the sole discretion of HEAD.
3.5 HEAD may require that the Purchaser pay a Deposit to HEAD at the time of making the Offer.
3.6 Subject to clause 3.7, the Deposit will not be refundable and HEAD will be entitled to keep the Deposit at the time it accepts the Offer.
3.7 The Deposit will only be refundable if:
(a) HEAD does not accept the Offer or the Agreement is terminated under clause 17 prior to HEAD having supplied the Goods;
(b) the Purchaser terminates the relevant Agreement under clause 18.2; or
(c) HEAD terminates the relevant Agreement under clause 19.

4. Price and payment
4.1 Unless otherwise agreed by the parties, the price the Purchaser must pay for the Goods and/or Services under each Agreement will be:
(a) the price for the Goods and/or Services specified in the Price List, in the accepted Order; plus
(b) the Delivery Fee,
(Purchase Price).
4.2 Subject to clause 16, unless otherwise expressly specified by HEAD or in these Terms, all prices stated are stated exclusive of Taxes and the Purchaser is solely responsible for the payment of all Taxes levied or payable in respect of the Goods and/or Services and must immediately upon request by HEAD provide HEAD with evidence of payment of any Taxes. Nothing in this clause 4.2 requires the Purchaser to pay Taxes that are assessed or payable in respect of the income of HEAD.
4.3 HEAD may invoice the Purchaser for the Purchase Price at any time following formation of the relevant Agreement (Invoice).
4.4 Subject to clause 4.6, unless otherwise agreed in writing between the Purchaser and HEAD the due date for payment by the Purchaser to HEAD of the Purchase Price for the Goods and/or Services supplied pursuant to an Agreement (Due Date) is:
(a) the due date agreed by HEAD when accepting the Account Application but only if the value of the Invoice, combined with any outstanding amounts owed by the Purchaser to HEAD, does not exceed any approved Trading Limit; or
(b) if no separate payment terms are agreed, 30 days from the end of the month of the Invoice.
4.5 Payment made by credit card will attract the following additional fees payable as a proportion of the Invoice paid:
(a) VISA / Mastercard 1% of payment value; and
(b) American Express 1.75% of payment value.
4.6 If:
(a) the Goods Ordered are made-to-order Goods or require modification to comply with the Order;
(b) the location for delivery of the Goods under an Agreement is outside of Australia;
(c) the Purchaser has previously failed to make any payment to HEAD by the due date for that payment (whether under these Terms or otherwise);
(d) the Purchaser undergoes a Change of Control, without the prior consent of HEAD; or
(e) the creditworthiness of the Purchaser is, in HEAD’s sole opinion, unsatisfactory,
HEAD may require payment of the Purchase Price in full prior to HEAD delivering the relevant Goods or providing the Services.
4.7 If the Purchaser fails to make any payment by the Due Date, and the Purchaser has not remedied the failure to make payment within 14 days of receiving notice of the failure to make payment or is the subject of an Insolvency Event, then, without prejudice to any other right or remedy available to HEAD (including any termination rights under clause 18.1) and to the extent permitted by law, HEAD may, in its sole discretion, elect to do any one or more of the following:
(a) suspend any further deliveries to the Purchaser arising from any Agreement;
(b) enter the property of the Purchaser in order to repossess the Goods and the Purchaser grants HEAD and its agents an irrevocable licence to do so;
(c) dismantle any other goods into which the Goods have been installed or incorporated and remove the Goods from those goods;
(d) charge the Purchaser interest (both before and after any judgement) on the unpaid amount at the Default Rate, which interest will accrue and be chargeable from the first day on which an amount becomes overdue until HEAD receives payment of all amounts (including all interest) by way of cleared funds;
(e) cancel any Trading Limit or account facilities previously granted to the Purchaser by HEAD (including under the Account Application); and
(f) exercise any rights which HEAD may have under law, including the Personal Property Securities Act 2009 (Cth).
4.8 If the Purchaser fails to make any payment by the Due Date the Purchaser must pay to HEAD on demand all amounts reasonably incurred by HEAD in recovering or seeking to recover the payment the Purchaser owes to HEAD (including any fees or commission paid to a debt collector, mercantile agent or similar).

5. Delivery of Goods and provision of Services
5.1 HEAD will deliver the Goods to the Purchaser in the manner:
(a) reasonably determined by HEAD; or
(b) as otherwise agreed between HEAD and the Purchaser (including collection by the Purchaser).
5.2 HEAD will use its best endeavours to deliver Goods or make the Goods available for collection and provide the Services between the hours of 9.00 am and 5.00 pm Monday to Friday at the place of delivery or service provision (excluding on any public holiday at the place of delivery or service provision).
5.3 The Purchaser expressly authorises and grants HEAD and its agents an express, irrevocable licence to enter the premises of the Purchaser or relevant third party in order for HEAD to deliver the Goods or provide the Services.
5.4 Except where the Agreement is a Website Sale, the Purchaser will be responsible, at its own cost, for the unloading of any Goods at the delivery location and there must be a representative of the Purchaser present at the delivery location at the time delivery is made of the Goods and, if no representative is present, a redelivery fee equal to the Delivery Fee may be charged by HEAD.
5.5 Without limiting any rights which the Purchaser may have under the Australian Consumer Law, the Purchaser must, prior to taking possession of the Goods, inspect the Goods and immediately notify HEAD in writing if the Goods are not fit for any purpose for which the Purchaser intends to use the Goods, are less than the number meant to be delivered under the Agreement, have any defect or otherwise do not meet any Specifications.
5.6 The Purchaser acknowledges that, after the time the Purchaser makes the Offer, a Good which is subject to an Offer may be modified by HEAD as a result of an improvement in technology or because of a requirement imposed by law.
5.7 Without limiting any other obligation of the Purchaser under an Agreement, the Purchaser must take all steps and fulfill all requirements reasonably necessary to accept delivery of the Goods from HEAD.
5.8 Unless the Order is a Website Sale, in the event HEAD is unable to deliver the Goods to the Purchaser because of an act or omission of the Purchaser, HEAD will be entitled to:
(a) recover on demand from the Purchaser any Loss reasonably incurred by HEAD as a result of inability to deliver the Goods (including payment for those Goods if those Goods cannot be resold or reused by HEAD);
(b) treat the obligation to supply the remainder of the Goods (if any) as cancelled by the Purchaser; and
(c) at the risk and cost of the Purchaser and without limiting any other rights HEAD may have, store any Goods which the Purchaser refuses to take delivery of or fails to collect.
5.9 HEAD will use its reasonable endeavours to deliver the Goods and provide the Services on any date specified or estimated by HEAD or set out in an Order, however the Purchaser acknowledges that:
(a) these dates are estimates only; and
(b) if HEAD does not currently stock a Good, then there may be a delay in the supply of that Good until HEAD has restocked that Good; and
(c) if a Good needs to be delivered urgently or overnight to the Purchaser, HEAD may agree to expedite delivery if the Purchaser agrees to pay an additional fee for that expedited delivery.
5.10 Without limiting clause 5.9, the Purchaser acknowledges that HEAD may deliver or provide the Goods or Services in a number of deliveries or instalments and may invoice or otherwise charge the Purchaser for each portion that is delivered or otherwise provided.
5.11 If there are multiple Agreements in place at any one time, then HEAD may, in its absolute discretion, determine in which order it satisfies the delivery of the Goods and provision of Services under the Agreements.
5.12 The Purchaser acknowledges and agrees that HEAD may, but will not be required to, provide proof of delivery or other similar documentation (whether at the time of delivery or after).

6. Return of Goods
6.1 Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
6.2 HEAD provides a warranty against manufacturer defects in all Goods supplied to a Purchaser under these Terms for a period of 12 months after the date of purchase.
6.3 Any claims in respect of defective Goods made under this warranty must be made by the Purchaser to HEAD Oceania Pty Ltd, Unit 2A/93 Burnside Rd, Yatala QLD Australia by calling (07) 3386 1210. HEAD will provide details to the Purchaser via phone of how to provide written notice to HEAD of its warranty claim.
6.4 If the Purchaser gives HEAD a written notice under clause 6.3, the Purchaser must:
(a) preserve the Goods in the state in which they were received for 14 days after it gives HEAD the notice (fair wear and tear excepted); and
(b) on receipt of a return authority from HEAD (RA), return the Goods to HEAD within 14 days of receipt of the RA.
6.5 Once the Goods are received, HEAD will assess the Goods and notify the Purchaser as to whether the Goods are defective and accordingly whether the claim falls within this warranty. HEAD will provide replacement goods to the Purchaser for any Goods that are found to be defective.
6.6 The Purchaser will bear the costs of freight for returning Goods to HEAD pursuant to a claim under this warranty. HEAD will bear the cost of freight for Goods replaced under this warranty.

7. Title and risk of Goods
7.1 Title to, and property in any Goods supplied under an Agreement remain with HEAD and will pass to the Purchaser once all moneys owing by the Purchaser to HEAD in respect of the Goods have been paid in full.
7.2 Risk in the Goods passes to the Purchaser upon the earlier of:
(a) if the Agreement is a Website Sale, the Goods being delivered to the delivery address set out in the Order;
(b) in all other cases, the Goods being removed from HEAD’s premises (or that of HEAD’s supplier or agent) for delivery to the Purchaser or collection by the Purchaser from those premises;
7.3 The Purchaser is responsible for all Loss and damage to the Goods after risk in the Goods passes to the Purchaser in accordance with clause 7.2.
7.4 The Purchaser is responsible for arranging, and taking out in its own name and its own cost, any insurance in respect of the Goods from the time risk passes to the Purchaser under this clause and HEAD is not obliged to give the Purchaser a notice referred to in section 35(3) of the Sale of Goods Act 1923 (NSW) (or any equivalent legislation).
7.5 In the event that the Purchaser is required to return any Goods to HEAD, risk in the Goods passes to HEAD on confirmation of receipt of the Goods by HEAD.
7.6 Until full title, property and ownership of the Goods passes to the Purchaser in accordance with clause 7.1, and while the Goods remain in the Purchaser’s full control and possession:
(a) subject to clause 7.8, the Purchaser must hold the Goods as HEAD’s fiduciary agent and bailee and must not sell, lease, dispose of or otherwise deal with the Goods in any way without HEAD’s prior written consent;
(b) the Purchaser must keep and maintain the Goods in good and substantial repair;
(c) the Purchaser must insure the Goods for their full replacement value (which must not be less than the Purchase Price) and must store the relevant Goods separately from any other goods and in a way that enables the Goods to be clearly identified as HEAD’s and referrable to a particular Invoice;
(d) HEAD may enter the premises of the Purchaser or any third party where the Goods are stored during the hours of 9.00 am to 5.00 pm to inspect the Goods.
(e) HEAD may at any time after payment is overdue require the Purchaser to deliver up the Goods to HEAD and, if the Purchaser fails to deliver up the Goods immediately, HEAD may enter the premises of the Purchaser or any third party where the Goods are stored and repossess them;
(f) the Purchaser must not pledge or grant a security interest in or in any way charge by way of security for any indebtedness, any of the Goods and if the Purchaser does pledge or in any way charge by way of security, for any indebtedness, any of the Goods for which property and ownership has not passed to the Purchaser, the Purchaser must remove the pledge, charge or security interest immediately and all moneys owing by the Purchaser to HEAD will (without prejudice to any other right or remedy of HEAD) immediately become due and payable to HEAD; and
(g) the Purchaser must not remove, deface, alter, obliterate or cover up any names, marks, designs, numbers, code or writing on the Goods.
7.7 For the purposes of HEAD exercising its rights under clauses 7.6(d) and 7.6(e), the Purchaser expressly authorises and grants HEAD and its agents an express, irrevocable licence to enter the premises of the Purchaser or relevant third party to inspect the Goods or to remove or arrange for the removal of the Goods.
7.8 Notwithstanding that title to the Goods has not passed to the Purchaser under clause 7.1, the Purchaser may, subject to obtaining HEAD’s prior written approval, resell the Goods or any part of them in the name of the Purchaser but only as agent for HEAD and may deliver any Goods so sold to the buyer of those Goods but only in the ordinary course of its business and on terms which will not prejudice HEAD’s ability to obtain any amount paid or due to be paid by the buyer of Goods (Sale Proceeds) and:
(a) any Sale Proceeds must be held by the Purchaser on trust for HEAD and any amounts received by the Purchaser must be banked in a separate bank account relating only to the sale proceeds of any Goods and must be forwarded as soon as possible to HEAD in satisfaction of any amount owed by the Purchaser in respect of the Goods;
(b) the Purchaser must keep and maintain separate records in relation to the Sale Proceeds received and held by the Purchaser and must provide those records to HEAD immediately upon request by HEAD; and
(c) if and when the full amount due to HEAD in respect of the Goods has been received by HEAD, any further Sale Proceeds may be retained by the Purchaser.
7.9 The Purchaser must immediately cease the resale of any Goods under clause 7.8 if:
(a) HEAD reasonably believes that the Purchaser may not be able to make any payment under an Agreement by the relevant Due Date and HEAD revokes any consent it has given to the Purchaser to resell the Goods under clause 7.8; or
(b) the Purchaser fails to make any payment under an Agreement by the relevant Due Date.
7.10 In the event that the Purchaser processes, incorporates, transforms or installs the Goods (or any portion of them) into any other goods, buildings or land then the Purchaser must:
(a) keep and maintain records in relation to the Goods which have been processed, incorporated, transformed or installed and the goods, buildings or land in which the Goods have been processed, incorporated, transformed or installed; and
(b) hold a proportion of any payment (Relevant Proportion) received by the Purchaser for those goods, buildings or land on trust for HEAD and the Purchaser acknowledges that the Relevant Proportion must be not less than the dollar value of the portion of the Goods processed, incorporated, transformed or installed.
7.11 If an Insolvency Event occurs in respect of the Purchaser then, without the need for notice or demand by HEAD, the Purchaser acknowledges that any sale or purported sale of the Goods will not be in the ordinary course of the Purchaser’s business and the proceeds of any Goods sold in those circumstances will, to the extent of any money owing by the Purchaser to HEAD, be held on trust for HEAD by the administrator, controller or similar officer as the case may be, or if there is no such officer, by the Purchaser.

8. PPSA
8.1 Words and expressions used in this clause 8 which are not defined in these Terms but are defined in the Personal Property Securities Act 2009 (Cth) (PPSA) have the meaning given to them in the PPSA.
8.2 Unless a Purchaser has paid for Goods in respect of an Agreement before they are delivered to the Purchaser, each Purchaser acknowledges that:
(a) the Agreement for the supply of Goods created under these Terms is a security agreement for the purposes of the PPSA, under which the Purchaser grants HEAD a security interest in the Goods, any amount owed to the Purchaser in respect of the Goods (Account) and any proceeds in connection with the sale of the Goods and the Account (Proceeds) to secure all monies owing by the Purchaser to HEAD from time to time;
(b) where HEAD has other enforcement rights in addition to the enforcement rights provided for in the PPSA, those other enforcement rights will continue to apply; and
(c) HEAD is not obliged to act in any way to dispose of or to retain any Goods which have been seized by HEAD or any person nominated by HEAD under its rights under the PPSA.
8.3 Without limiting anything else in these Terms, the Purchaser consents to HEAD effecting a registration on the register in relation to any security interest created by or arising in connection with, or contemplated by an Agreement or these Terms, including in relation to the Goods, the Account and the Proceeds. The Purchaser agrees to promptly do all things necessary to ensure that any security interest created under these Terms is perfected and remains continuously perfected, HEAD’s priority position is preserved or secured and any defect in any security interest, including registration, is overcome.
8.4 The Purchaser must promptly take all reasonable steps which are prudent for its business under or in relation to the PPSA (including doing anything reasonably requested by HEAD for that purpose in relation to the Goods, the Account or the Proceeds). Without limiting the foregoing, the Purchaser must:
(a) register a security interest in relation to the Goods where the Purchaser on sells the Goods to a third party or incorporates the Goods into another good or product;
(b) where appropriate, take reasonable steps to identify security interests in relation to the Goods in the Purchaser’s favour and to perfect and protect them, with the highest priority reasonably available; and
(c) not register a financing change statement in relation to any registration made under paragraphs (a) or (b) without HEAD’s prior written consent.
8.5 The Purchaser must on demand reimburse HEAD for all expenses incurred by HEAD in the enforcement of any rights arising out of any of HEAD’s security interests.
8.6 The Purchaser must not change its name, ACN, ABN, address or contact details without providing prior written notice to HEAD and must not apply to register a financing change statement or make an amendment demand that may affect the HEAD’s security interests without HEAD’s prior written consent (which will not be unreasonably withheld).
8.7 To the extent the law permits, the Purchaser waives its rights to receive a copy of any verification statement or financing change statement; to receive any notice required under the PPSA, including notice of a verification statement; to reinstate the security agreement by payment of any amounts owing or by remedy of any default; and HEAD need not comply with, and the Purchaser waives any rights under sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 127, 128, 129, 130, 132, 134(2), 135, 136(3), (4) and (5), 137, 142 and 143 of the PPSA.
8.8 The Purchaser may only disclose information or documents relating to the security agreement or any security interest created under these Terms, including information of a kind referred to in section 275(1) of the PPSA, if HEAD has given prior written consent (which will not be unreasonably withheld).

9. Liability
9.1 If the Purchaser is a Consumer and HEAD supplies PDH Goods or Services to the Purchaser, HEAD acknowledges that the Purchaser may have certain rights under the Australian Consumer Law in respect of the Consumer Guarantees as they apply to the PDH Goods or Services supplied by HEAD and nothing in these Terms should be interpreted as attempting to exclude, restrict or modify the application of those rights.
9.2 If the Purchaser is a Consumer and any goods or services supplied by HEAD to the Purchaser are non PDH Goods or Services, HEAD’s liability to the Purchaser in connection with any breach of the Consumer Guarantees in respect of those non PDH Goods or Services is limited (at HEAD’s discretion) to:
(a) in the case of Goods:
(i) the replacement of the Goods or the supply of equivalent goods;
(ii) the repair of the Goods;
(iii) the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the Goods repaired; and
(b) in the case of Services:
(i) the supplying the Services again; or
(ii) the payment of the cost of having the Services supplied again.
9.3 Subject to clause 9.7, if the Purchaser makes a claim against HEAD in connection with or arising out of these Terms which includes a cause of action other than for a breach of a Consumer Guarantee then, to the extent the claim, or part of the claim, does not relate to a Consumer Guarantee and to the extent permitted by law, HEAD’s total aggregate liability arising in connection with all such claims shall be limited to the price of the relevant Goods and Services provided by HEAD in relation to which the claim arose.
9.4 In relation to the supply of Goods which are non PDH Goods or Services, if HEAD is liable to indemnify the Purchaser under section 274 of the Australian Consumer Law, HEAD’s liability to the Purchaser is limited to an amount equal to the lower of:
(a) the cost of replacing the Goods;
(b) the cost of obtaining equivalent Goods; or
(c) the cost of having the Goods repaired.
9.5 Subject to clauses 9.6 and 9.7, the Purchaser’s total aggregate liability arising in connection with all claims HEAD makes against the Purchaser in connection with or arising out of these Terms shall be limited to the price of the relevant Goods and Services provided by HEAD in relation to which the claim arose. This clause will not apply for any liability for which the Purchaser is responsible under clause 10.3.
9.6 Clause 9.5 does not apply in relation to any claim which HEAD may make against the Purchaser in respect of the Purchaser’s obligation to pay the Purchase Price (including any amount under clause 4.7(d) or 4.8).
9.7 Without limiting and subject to clauses 9.1 and 9.2, neither party shall be liable to the other party for any Consequential Loss.

10. Notification of claims
10.1 The Purchaser must notify HEAD immediately if it becomes aware of:
(a) any claim; or
(b) any death, serious injury or serious illness,
in respect of, or caused by, the Goods or other goods of which the Goods are a component or mixed with and the Purchaser will take all reasonable steps to mitigate any Loss arising as a consequence of the claim, death, serious injury or serious illness.
10.2 If Goods are sold by the Purchaser to a third party for commercial use by that third party, the Purchaser must impose on the third party an obligation to notify the Purchaser immediately if the third party becomes aware of:
(a) any claim; or
(b) any death, serious injury or serious illness,
in respect of the Goods or other goods of which the Goods are a component or mixed with and to take all reasonable steps to mitigate Loss arising as a consequence of the claim, death, serious injury or serious illness.
10.3 The Purchaser must, and must impose on any third party to whom it sells the Goods (except where that third party is the end user of the Goods) an obligation to:
(a) not, without HEAD’s express written consent, make any representation to any Consumer regarding the purpose, performance or durability of the Goods, which is in breach of the Australian Consumer Law;
(b) take all steps and do all things necessary to promptly pass on to HEAD any claim made by a Consumer arising out of or in connection with the Australian Consumer Law and must, at the Purchaser’s expense, assist HEAD to comply with its obligations under the Australian Consumer Law;
(c) not, other than in respect of any warranties or guarantees which cannot be excluded by law, make on behalf of HEAD any undertaking, assertion, statement, warranty, admission or other representation in respect of the Goods which is inconsistent with the Agreement under which the Goods are supplied; and
(d) not agree to settle any claim made by a Consumer without the prior written consent of HEAD.

11 Marketing
11.1 Unless the Agreement for supply of Goods is entered into via a Website Sale or the Purchaser is the end user of the Goods, the Purchaser acknowledges and agrees that it must not market or sell the Goods on any online-marketplace such as “Amazon Marketplace”, “Ebay”, “Facebook Marketplace" or any other “marketplace”, without the written consent of HEAD.
11.2 HEAD may provide Marketing Material to the Purchaser to be used in conjunction with the advertising and sale of the Goods to end users. The Purchaser must only use the Marketing Material in accordance with the guidelines and restrictions communicated by HEAD to the Purchaser.
11.3 HEAD may at any time withdraw its permission for the Purchaser to use the Marketing Material.
11.4 Subject to applicable laws, HEAD does not warrant or represent that the Marketing Material or its use complies with any applicable laws.

12 Intellectual Property
12.1 The parties acknowledge and agree that, unless otherwise agreed in writing, as between HEAD and the Purchaser all Intellectual Property Rights in the Goods and any material created as part of the Services vests in and exclusively belongs to and are irrevocably assigned to HEAD and the Purchaser agrees that it must not infringe or use the Intellectual Property Rights of HEAD which exist in the Goods or materials created as part of the Services without the prior written consent of HEAD.
12.2 The Purchaser acknowledge and agrees that HEAD and its licensors own the Intellectual Property Rights in all Marketing Material and that a breach of clause 11.2 may comprise an infringement of the Intellectual Property Rights of HEAD or its licensors.
12.3 The Purchaser must not modify, adapt, vary, reverse engineer, disassemble or copy:
(a) all or any part of any Good; or
(b) the HEAD brand, logo, or any part of the Marketing Material,
without the prior written consent of HEAD.
12.4 The Purchaser must not remove, deface, change, distort, delete or cover up:
(a) any name plate or mark on the Goods which indicates that HEAD is the owner of the Goods; or
(b) any patent, copyright or other proprietary notices which appear in writing on or in any part of the Goods.
12.5 The Purchaser must only sell or promote the Goods using any trade mark, name or brand which is approved in writing by HEAD.
12.6 The Purchaser must not make available for purchase, sell or promote any:
(a) good which is a copy or imitation, in whole or in part, of any Good; or
(b) Good which has been modified or varied (other than the affixation of any labels or other packaging on the Goods).

13. Indemnity
The Purchaser indemnifies HEAD and holds HEAD harmless from and against all Losses (including all legal costs, and any other associated fees and costs) for which HEAD incurs as a direct or indirect result of the Purchaser’s breach of clause 10.3 or clause 12.3(b).

14. Specifications
14.1 The Specifications are approximate only and there may be minor variations or differences between the Specifications and the Goods and Services delivered to the Purchaser.
14.2 Where any instructions, materials or information in whatever form (including any Purchaser Specifications) are required to be provided by the Purchaser to HEAD before HEAD can proceed with or complete the provision of the Goods or Services, those instructions, materials or information must be supplied by the Purchaser to HEAD within a reasonable time so as to enable HEAD to deliver the Goods or Services within any agreed time frame.
14.3 HEAD may make changes to the specifications, dimensions, weights or other particulars of the Goods as may be required from time to time by:
(a) law; or
(b) any safety or manufacturing requirements, provided any such change does not have any material impact on the ability of the Purchaser to use the Goods for their intended purpose.

15. Confidentiality
15.1 The Receiving Party:
(a) may use Confidential Information solely for the purposes of the relevant Agreement;
(b) must keep confidential all Confidential Information; and
(c) may disclose Confidential Information only to (i) employees and contractors who (A) are aware and agree that the Confidential Information must be kept confidential and (B) either have a need to know the Confidential Information (and only to the extent that each has a need to know), or have been specifically approved by the Disclosing Party; (ii) as required by law or securities exchange regulation; or (iii) with the prior written consent of the Disclosing Party.
15.2 The Receiving Party must notify the Disclosing Party immediately once it becomes aware of any breach of confidentiality in respect of the Confidential Information and must take all reasonable steps necessary to prevent further unauthorised use or disclosure of the Confidential Information.

16. GST
16.1 In this clause, words and expressions which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended, varied or replaced from time to time) have the same meaning given to them by that Act.
16.2 If the Agreement is a Website Sale, the Purchase Price will include an amount for GST.
16.3 If the Agreement is not a Website Sale and unless otherwise expressly stated in writing in the Agreement, all amounts payable by the Purchaser in connection with an Agreement do not include an amount for GST.
16.4 If GST is payable on any supply made by HEAD under these Terms other than as provided in clause 16.2:
(a) the Purchaser must pay to HEAD, in addition to and at the same time as the payment for the supply, an amount equal to the amount of GST on the supply;
(b) where the Purchaser is required by these Terms to reimburse or indemnify HEAD for any Loss or other amount incurred, the amount to be reimbursed or paid will be reduced by the amount of any input tax credit that HEAD will be entitled to claim for the Loss or amount incurred and increased by the amount of any GST payable by HEAD in respect of the reimbursement or payment.

17. Force Majeure
17.1 Neither party will be liable for any failure to perform or delay in performing its obligations under an Agreement (other than in respect of the Purchaser’s obligation to pay the Purchase Price and any amount under clause 4.7(d) or 4.8) if that failure or delay is due to a Force Majeure Event.
17.2 If a Force Majeure Event under clause 17.1 exceeds 20 Business Days, either party may immediately terminate the Agreement by written notice to the other party.

18. Termination
18.1 Without limiting HEAD’s other rights under these Terms, and to the extent permitted by law, HEAD may terminate any and all Agreements and any account facility under an Account Application with immediate effect by written notice to the Purchaser if:
(a) the Purchaser fails to make any payment under the Agreement to HEAD by the due date for that payment and the Purchaser has not remedied the failure to make payment within 7 days of receiving notice of the failure to make payment;
(b) the Purchaser is the subject of an Insolvency Event;
(c) the Purchaser has materially breached the relevant Agreement (including these Terms) and the breach is not capable of remedy;
(d) the Purchaser has breached any term of the relevant Agreement (including these Terms) which is capable of remedy and has not remedied the breach within 14 days of receiving notice requiring the breach to be remedied; or
(e) in accordance with clause 17.2.
18.2 Without limiting the Purchaser’s other rights under these Terms, and to the extent permitted by law, the Purchaser may terminate any and all Agreements and any account facility under an Account Application with immediate effect by written notice to HEAD if:
(a) HEAD is the subject of an Insolvency Event;
(b) HEAD has materially breached the relevant Agreement (including these Terms) and the breach is not capable of remedy;
(c) HEAD has breached a term of the relevant Agreement (including these Terms) which is capable of remedy and has not remedied the breach within 14 days of receiving notice requiring the breach to be remedied; or
(d) in accordance with clause 17.2.
18.3 On termination of an Agreement:
(a) the Purchaser must not sell or part with possession (other than as required under clause 18.3(b)) any Goods the subject of the Agreement (other than any Goods which have been paid for);
(b) the Purchaser must, at its cost, immediately return to HEAD all Goods the subject of the Agreement (other than any Goods which have been paid for) and any displays and other promotional and advertising materials in relation to the Goods;
(c) HEAD may enter the premises of the Purchaser or any third party to repossess any Goods not returned under clause 18.3(b) and the Purchaser expressly authorises and grants HEAD and its agents an express, irrevocable licence to enter the premises of the Purchaser or relevant third party to remove or arrange for the removal of those Goods; and
(d) all money owed by the Purchaser to HEAD will become immediately due and payable.
18.4 Each party retains any rights, entitlements or remedies it has accrued before termination, including the right to pursue all remedies available to either party at law or in equity.

19. Cancellation
19.1 HEAD may cancel or suspend any Agreement effective immediately upon providing the Purchaser with written notice of cancellation or suspension where HEAD does not have the stock levels to fulfil the relevant Order, provided that if HEAD cancels an Agreement under this clause 19 it will refund to the Purchaser any amounts already paid by the Purchaser for the Goods or Services subject to the cancellation and which are not provided to the Purchaser. The refund of any amounts will be the Purchaser’s sole remedy against HEAD in respect of any cancellation under this clause 19.

20. Acknowledgements and representations
20.1 By making an Offer, the Purchaser warrants and represents to HEAD that it has read and understood these Terms prior to making the Offer and agrees to be bound by them in full.
20.2 Any Price List, product lists or other similar documents or catalogues (Documents) issued by or on behalf of HEAD do not constitute an offer by HEAD to supply Goods appearing in those Documents or an offer by HEAD to supply Goods at the prices set out in those Documents and for the avoidance of doubt those Documents do not form part of an Agreement except to the extent that they are expressly referred to in any Offer. HEAD’s Documents may be changed by HEAD at any time without notice.

21. Inconsistency
21.1 Unless otherwise specified in these Terms, in the event of an inconsistency between any of the documents listed in clause 3.3, the following order of precedence will apply to the extent of the inconsistency:
(a) these Terms;
(b) the Account Application; and
(c) without limiting clause 21.2, any terms in the Order which are accepted by HEAD in writing.
21.2 These Terms will prevail over any Purchaser terms and conditions, except to the extent specifically agreed by HEAD in writing and any terms or conditions included in an Order or other document provided or issued by the Purchaser will only be binding on HEAD if expressly agreed by HEAD in writing.

22. Miscellaneous
22.1 In these Terms:
(a) the singular includes the plural and vice versa;
(b) the word person includes a firm, a body corporate, an unincorporated association, body or organisation established pursuant to international treaty, intergovernmental body, or government authority and other official authority;
(c) a reference to a document or legislation includes a reference to that document or legislation as varied, amended, novated or replaced from time to time;
(d) the meaning of general words is not limited by specific examples introduced by ‘includes’, ‘including’, ‘for example’ or ‘such as’ or similar expressions;
(e) a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and permitted assigns;
(f) headings are inserted for convenience and do not affect the interpretation of these Terms;
(g) no provision will be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Terms or the inclusion of the provision in the Terms; and
(h) unless otherwise provided, all monetary amounts are in Australian dollars and a reference to payment means payment in Australian dollars.
22.2 The Purchaser must maintain and keep current and complete records of the Goods which HEAD has supplied to the Purchaser (in sufficient detail so as to be readily identified as goods supplied by HEAD), including any Goods which are sold by the Purchaser to a third party and must, immediately upon written request from HEAD, provide HEAD with access to, or copies of, those records.
22.3 HEAD may, to the extent permitted by law, vary these Terms from time to time with the variation becoming effective as soon as HEAD provides the Purchaser notice of the variation (Variation Date). Any variation to these Terms will only apply to, and in respect of, any Offer made after the Variation Date and the parties acknowledge that nothing in these Terms requires the Purchaser to make any further Offers after the Variation Date. The Purchaser may, by written notice to HEAD, terminate these Terms at any time within 30 days of receiving notice of a variation of the Terms but any such termination by the Purchaser will not have the effect of terminating any Agreement existing prior to the notice of termination.
22.4 A failure to exercise or delay in exercising any right under these Terms does not constitute a waiver and any right may be exercised in the future. Waiver of any rights under these Terms must be in writing and is only effective to the extent set out in that written waiver.
22.5 If any provision of these Terms is void, unenforceable or illegal and would not be so if words were omitted, then those words are to be severed and if this cannot be done, the entire provision is to be severed from these Terms without affecting the validity or enforceability of the remaining provisions.
22.6 The termination or expiry of these Terms or any Agreement does not operate to terminate any rights or obligations under an Agreement that by their nature are intended to survive termination or expiration, and those rights or obligations remain in full force and binding on the party concerned including without limitation the rights and obligations under clauses 23, 6, 7, 8, 9, 10, 12, 13, 16, 18, 21 and 22.
22.7 Each party must:
(a) do all acts necessary or desirable to give full effect to an Agreement; and
(b) refrain from doing anything which might prevent full effect being given to an Agreement.
22.8 The relationship between the parties is and will remain that of independent contractors, and nothing in these Terms or an Agreement constitutes the parties as partners or joint venturers or constitutes any party as the agent of another party or (except as expressly provided for) gives rise to any other form of fiduciary relationship between the parties.
22.9 Notices by a party must be delivered by hand, prepaid post or email and sent to the address of the receiving party specified in the Account Application or, if none are specified, in any other part of the Agreement. Notices will be deemed to have been received: by hand upon delivery; by post within six Business Days of sending; and by email one hour after the email is sent (unless the sender knows that email has failed to send).
22.10 These Terms each Agreement are governed by the laws in force in Queensland, and the Purchaser and HEAD submit to the non-exclusive jurisdiction of the courts of Queensland.
22.11 The United Nations Convention on Contracts for the International Sale of Goods (1980) (The Vienna Convention) and any acts or regulations enacting The Vienna Convention will not apply to these Terms or any Agreement and are excluded.

23. Dictionary
In these Terms and Conditions, the words below have the following meanings:
Account Application means the form approved by HEAD and completed by the Purchaser for an account with HEAD for the provision of Goods and/or Services.
Agreement means each Offer which is accepted by HEAD under clause 3.2.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent State or Territory legislation.
Business Day means any day except a Saturday, Sunday or public holiday in Queensland, Australia.
Change in Control means, in relation to a party:
(a) the person who Controls the party at the date that party first became bound by these Terms subsequently ceases to have Control of the party;
(b) a person who does not Control the party at the date that the party first became bound by these Terms subsequently obtains Control of the party; or
(c) if the party is Controlled by a group or consortium of persons, or if the group or consortium could Control the party were they to act collectively, any material change in the composition of that group or consortium.
Confidential Information means all information and other content disclosed by the Disclosing Party to the Receiving Party and includes these Terms and the prices of the Goods or Services but excludes information that:
(a) is public knowledge or becomes available to the Receiving Party from a source other than the Disclosing Party (otherwise than as a result of a breach of confidentiality); or
(b) is rightfully known to, or in the possession or control of the Receiving Party and not subject to an obligation of confidentiality in accordance with the terms of an Agreement.
Consequential Loss means:
(a) any form of indirect, special or consequential loss, including loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain and loss of opportunity; and
(b) any loss beyond the normal measure of damages.
Consumer has the meaning provided to it in section 3 of the Australian Consumer Law.
Consumer Guarantee means a guarantee provided under Division 1 of Part 3-2 of the Australian Consumer Law.
Control has the meaning given in section 50AA of the Corporations Act 2001 (Cth).
Purchaser means the entity or person named in the Account Application or who requested that Goods and/or Services be supplied to it by HEAD, including by submitting an Order on the Website.
Default Rate means a rate equal to the Reserve Bank of Australia cash rate plus 4%.
Delivery Fee means:
(a) the delivery fee agreed in writing between the parties or, for a Website Sale, set out on the Website; or
(b) if no delivery fee is agreed in writing between the parties or set out on the Website, then for any Order below $400 (ex. GST) the fee will be:
(i) $25 (inc. GST) for delivery to non-rural areas;
(ii) $30 (inc. GST) for delivery to rural areas.
Deposit means a proportion of the Purchase Price, as determined by HEAD.
Disclosing Party means a party who discloses its Confidential Information to the Receiving Party.
Dictionary means this clause 23.
Due Date is defined in clause 4.4.
Force Majeure Event means any event arising from, or attributable to, acts, events, omissions or accidents which are beyond the reasonable control of a party.
Goods means the goods to be supplied by HEAD to the Purchaser under an Agreement, which does not include any Mares, SSI or Zoggs branded goods.
HEAD means HEAD Oceania Pty Ltd ACN 619 606 790.
Insolvency Event means, in relation to a body corporate, a liquidation or winding up or the appointment of a voluntary administrator, receiver, manager or similar insolvency administrator to that body corporate or any substantial part of its assets; in relation to an individual or partnership, the act of bankruptcy, or entering into a scheme or arrangement with creditors; in relation to a trust, the making of an application or order in any court for accounts to be taken in respect of the trust or for any property of the trust to be brought into court or administered by the court under its control; or the occurrence of any event that has substantially the same effect to any of the preceding events.
Intellectual Property Rights means any and all intellectual and industrial property rights anywhere in the world including but not limited to the rights comprised in any patent, copyright, design, trade mark, eligible layout or similar right whether at common law or conferred by statute, rights to apply for registration under a statute in respect of those ort like rights and right to protect trade secrets and know how, throughout the world for the full period of the rights and renewals and extensions.
Invoice has the meaning provided to it in clause 4.3.
Loss means any loss, liability, cost, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and includes direct loss and Consequential Loss.
Marketing Material means material provided by HEAD to the Purchaser for the marketing of Goods to end users.
Offer has the meaning provided to it in clause 3.1.
Order means any order or other request by or for the Purchaser to HEAD to supply to the Purchaser any Goods or provide it with any Services (or both), whether the order or request is written, verbal or implied in the circumstances.
PDH Goods or Services means goods or services which, for the purposes of the Australian Consumer Law, are of a kind ordinarily acquired for personal, domestic or household use or consumption.
Price List means the price list issued by HEAD from time to time listing the relevant prices for Goods and/or Services
Purchase Price has the meaning provided to it in clause 4.1.
Receiving Party means a party who receives Confidential Information from or on behalf of the Disclosing Party.
Services means the services to be supplied by HEAD to the Purchaser under an Agreement in connection with the Goods.
Specifications means any physical, qualitative, technical or descriptive specifications, dimensions, weights or other particulars of the Goods or Services or photographs or illustrations of the Goods which are supplied by HEAD or which may be available on the internet, Order, Price List, catalogue, brochure or other document which describes the Goods or Services.
Tax or Taxes means any tax, levy, duty, charge, impost, fee, deduction, compulsory loan or withholding (including corporate tax, personal income tax, fringe benefits tax, payroll tax, withholding tax, excise and import duties, consumption tax, value added tax or any other taxes, levies or charges) which is assessed, levied, imposed or collected by any government agency, and includes any interest, fine, penalty, charge, fee or any other amount imposed on or in respect of any of those amounts.
Terms means these Terms and Conditions.
Trading Limit means the value of any trading account facility granted by HEAD to the Purchaser pursuant to any account created under the Account Application.
Website means www.head.com/en_AU.
Website Sale means an Agreement entered into between the Purchaser and HEAD via the Website for supply of Goods and/or Services.