The Merch Edit · Managed Merchandise
Service Terms
These terms form the standing legal framework for our managed merchandise Engagements. The details for each Store, Project or Programme are recorded in its Engagement Summary.
Version-controlled terms
The legal framework behind each Engagement
These Service Terms govern the agreement between The Merch Edit (we, us, our) and the Client (you, your) for the provision of managed merchandise services.
The specific Services for each Engagement are described in the applicable Engagement Summary.
These Service Terms and each applicable Engagement Summary together form the agreement between us for the relevant Engagement.
By engaging us, whether by signing an Engagement Summary, paying an amount required to commence an Engagement, providing written acceptance of an Engagement Summary or otherwise instructing us to commence Services, you acknowledge that you have read, understood and agree to be bound by the Agreement.
In these Service Terms:
Agreement means these Service Terms together with each applicable Engagement Summary and any written variation made in accordance with the Agreement.
Client means the business, organisation or individual engaging The Merch Edit for the provision of Services.
Engagement means a Project, Programme, Store or other managed merchandise engagement described in an Engagement Summary.
Engagement Summary means a document issued or agreed by the parties that records the specific scope, Services, fees, payment arrangements, timing, approvals, assumptions and other terms applying to an Engagement.
Force Majeure means any event or circumstance beyond the reasonable control of a party, including acts of God, natural disaster, pandemic, war, terrorism, industrial action, power failure, government action or embargo.
Fulfilment Supplier means a third-party supplier, manufacturer, decorator, warehouse, fulfilment provider, carrier or other provider engaged by The Merch Edit in connection with the sourcing, production, storage, packing, distribution or fulfilment of Merchandise.
Intellectual Property means all logos, brand assets, trademarks, designs, artwork and other intellectual property provided by the Client to The Merch Edit for use in connection with the Services.
Merchandise means branded apparel and other products sourced, supplied, produced or managed by The Merch Edit in connection with the Services.
Services means the managed merchandise services provided by The Merch Edit under an Engagement, as described in the applicable Engagement Summary.
Service Fees means the fees we charge for managing an Engagement, including a Project Fee, Programme Fee, Store Architecture fee, Seasonal Evolution fee or other management or service fee. Service Fees do not include Merchandise, freight, GST or third-party costs that we pass on to you.
Store-specific terms such as Store, End Customer, Merchant of Record, Store Architecture and Store Benefit are described in the Store Engagement Summary where relevant.
You are taken to have accepted, and are immediately bound by, the Agreement upon:
(a) execution of these Service Terms or an Engagement Summary;
(b) payment of an amount required to commence an Engagement;
(c) written acceptance of an Engagement Summary or other engagement document issued by us; or
(d) instructing us to commence any part of the Services.
These Service Terms may only be amended in accordance with the variation provisions below.
Each Engagement has its own Engagement Summary.
An Engagement Summary records the engagement-specific scope, Services, fees, payment arrangements, timing, approvals, assumptions and other agreed terms.
If there is an inconsistency between an Engagement Summary and these Service Terms, the Engagement Summary prevails only to the extent that it:
(a) expressly identifies the inconsistent term as an agreed departure; or
(b) records an engagement-specific matter that these Service Terms state may be determined in the Engagement Summary.
These Service Terms otherwise prevail.
A later written variation to an Engagement Summary can amend that Engagement without replacing these standing Service Terms.
We provide managed merchandise services.
Depending on the Engagement, we may manage or coordinate product sourcing and curation, supplier selection, artwork and approvals, procurement, production, fulfilment, replenishment, Store operation and other agreed merchandise activities.
The particular Services, responsibilities and fulfilment model for each Engagement are stated in the applicable Engagement Summary.
Subject to payment of amounts required to commence the relevant Engagement and your compliance with the Agreement, we will provide the Services described in that Engagement Summary.
Services not expressly included in the applicable Engagement Summary are outside scope unless otherwise agreed in writing.
Work outside the agreed scope will not be undertaken as chargeable additional work unless we first agree the scope and commercial impact with you in writing.
4.1 Personal information
Where personal information is provided to or collected by us in connection with the Services, we will handle it in accordance with our Privacy Policy and applicable privacy law.
You must ensure that any personal information you provide to us has been lawfully collected and may lawfully be disclosed and used for the purpose for which it is provided.
The applicable Engagement Summary may include additional arrangements for End Customer, staff, participant or recipient information.
4.2 Authority to operate systems and arrangements
You appoint us to act on your behalf solely for the limited and necessary purpose of configuring, managing and operating systems, supplier arrangements and other operational processes reasonably required to deliver the Services.
This authority is limited to operational functions required for the performance of the Agreement and does not create any partnership, joint venture, employment relationship, fiduciary relationship or general agency between the parties.
The Store Engagement Summary contains the more specific authority required to operate Store, eCommerce and payment systems where relevant.
Fees, Merchandise prices and other amounts payable for an Engagement are set out in, or determined in accordance with, the applicable Engagement Summary or another written quotation, approval or confirmation issued under that Engagement.
Unless expressly identified as a pass-through or reimbursable third-party cost, a Merchandise price quoted by us is our price for supply of that Merchandise. It is not a representation of the amount charged to us by a supplier.
Supplier trade pricing, discounts and other confidential supplier arrangements are not required to be disclosed unless otherwise agreed in writing.
No material commercial change to an Engagement will proceed without the change and its commercial impact being confirmed with you first.
6.1 Payment due date
Fees, charges and other amounts payable under the Agreement are due within 7 days of the relevant invoice unless another due date or payment arrangement is stated in the applicable Engagement Summary or agreed in writing.
6.2 Supplier commitment and prepayment
Unless approved credit terms are stated in the applicable Engagement Summary or otherwise agreed in writing, we are not required to incur or commit material supplier or third-party costs until the amount required to fund that commitment has been received in cleared funds.
6.3 Late payment and suspension
If any invoice is not paid in full by the due date, we reserve the right to:
(a) suspend the provision of Services until payment is received in full;
(b) decline to incur or commit further supplier or third-party costs while an amount remains overdue;
(c) charge interest on the overdue amount at the rate applied by our banking institution to overdraft facilities, calculated monthly on the outstanding balance; and
(d) recover reasonable costs incurred in pursuing the outstanding amount, including legal costs.
6.4 Payment methods and surcharges
We accept payment by electronic funds transfer.
Where another payment method is offered, a card or payment-processing surcharge may apply. Any applicable surcharge will be disclosed before payment.
You agree to:
(a) provide accurate, complete and suitable information, instructions, artwork and other materials reasonably required for the Services;
(b) respond to reasonable requests for decisions, confirmations and approvals within a reasonable timeframe;
(c) ensure information and instructions provided to us are accurate and not misleading;
(d) comply with applicable laws in connection with the Services and Merchandise; and
(e) notify us promptly of changes to your business, brand, contact details or circumstances that may affect the Services.
Any additional engagement-specific responsibilities are recorded in the applicable Engagement Summary.
8.1 Ownership and warranties
You warrant that you are the owner of, or are duly authorised to use, all Intellectual Property provided to us in connection with the Services and that our use of that Intellectual Property in performing the Services will not infringe the rights of any third party.
8.2 Licence to use Client Intellectual Property
You grant us a non-exclusive, royalty-free licence to use your Intellectual Property solely for the purpose of performing the Services, including reproducing your logo, artwork and other brand assets on Merchandise and within materials, systems or environments reasonably required to provide the Services.
8.3 Restrictions on use
We will not use your Intellectual Property for a purpose beyond the performance of the Services without your prior written consent.
8.4 Ownership
All Intellectual Property provided by you remains your property. Nothing in the Agreement transfers ownership of your Intellectual Property to us.
8.5 Third-party Intellectual Property claims
If a third party claims that Intellectual Property you supplied infringes their rights, you must give us the reasonable information and assistance we need to assess and respond to the claim.
Any indemnity relating to that claim is dealt with under clause 12.3.
All templates, systems, workflows, methodologies, processes, configurations, layouts, integrations and other materials developed or used by us in providing the Services, other than your Intellectual Property, remain our intellectual property unless otherwise expressly agreed in writing.
Nothing in the Agreement transfers ownership of those materials to you.
Where an Engagement gives you access to a Store, portal, workspace or other system, any service-specific access right, licence, administration arrangement or wind-down term is stated in the applicable Engagement Summary.
10.1 Fulfilment Suppliers
Merchandise may be sourced, produced, decorated, stored, packed, distributed or otherwise fulfilled by Fulfilment Suppliers engaged by us.
10.2 Supplier independence
Fulfilment Suppliers operate as independent third parties and are not controlled by us. We do not control their production processes, shipping methods or delivery operations.
10.3 Timeframes and estimates
Any production or delivery timeframe provided or communicated in connection with the Services is an estimate unless expressly stated otherwise.
Timeframes may change because of supplier operations, stock availability, logistics providers or circumstances outside our reasonable control.
10.4 Supplier performance
Fulfilment Suppliers are independent businesses. We use reasonable care when selecting, instructing and managing them, but we do not guarantee their stock, availability, production capacity, lead times, delivery performance or uninterrupted operation.
If a supplier issue affects an obligation we owe under the Agreement, we will take reasonable steps to manage and resolve it.
Nothing in this clause limits an obligation or liability that cannot lawfully be excluded or limited.
Where Merchandise supplied under an Engagement is defective, damaged or incorrect, we will assess the issue and provide or coordinate any remedy required under the Agreement or applicable law. If the issue arose with a Fulfilment Supplier, we may work with that supplier to assess and provide the remedy.
You must tell us promptly after becoming aware of the issue and provide the information or evidence we reasonably need to assess it.
Store End Customer claims may also be managed under the published Store returns and refund policy.
Nothing in this clause limits any right or remedy that cannot lawfully be excluded.
12.1 Liability cap
Subject to clause 17.6 and any liability that cannot lawfully be excluded or limited, our total liability arising out of or in connection with an Engagement, whether in contract, tort (including negligence), statute or otherwise, is capped as follows.
For a Project or Programme, the cap is the greater of:
(a) $5,000; and
(b) two times the Service Fees paid or payable for the affected Engagement.
For a Store, the cap is the greater of:
(a) $5,000; and
(b) the Store liability amount calculated in the applicable Store Engagement Summary.
If the Engagement Summary expressly states a higher liability cap for that Engagement, that higher cap applies instead.
The cap applies separately to each Engagement. Claims arising from the same event or related series of events are treated as one claim for the purpose of this cap.
This cap does not apply to:
(a) liability that cannot lawfully be excluded or limited;
(b) any obligation to provide a repair, replacement, refund, re-supply or other remedy required by law;
(c) fraud or wilful misconduct by us; or
(d) death or personal injury caused by our negligence.
12.2 Indirect or consequential loss
To the maximum extent permitted by law, neither party is liable to the other for indirect or consequential loss. This includes loss of profit, opportunity or anticipated savings only where that loss is indirect or consequential.
This clause does not exclude or limit liability that cannot lawfully be excluded or limited.
12.3 Client indemnity
You indemnify us against third-party claims and the reasonable external costs and liabilities arising from those claims, to the extent caused by:
(a) Intellectual Property, information, materials or instructions you supplied that infringe another person's rights; or
(b) your unlawful collection, disclosure, provision or use of personal information or other information or materials in connection with an Engagement.
This indemnity does not apply to the extent the claim, cost or liability was caused or contributed to by our breach of the Agreement, negligence, wilful misconduct or unlawful act or omission.
13.1 Suspension of obligations
Neither party will be liable for a failure or delay in performing its obligations under the Agreement to the extent that the failure or delay is caused by a Force Majeure event, provided that the affected party:
(a) gives prompt written notice to the other party setting out reasonable details of the Force Majeure event; and
(b) takes reasonable steps to minimise the impact of the Force Majeure event on performance of its obligations.
A Force Majeure event does not excuse payment of amounts that became due before the event, or amounts due for Services already performed or supplier or third-party commitments already incurred before the event.
13.2 Extended Force Majeure
If a Force Majeure event materially prevents performance of an affected Engagement for 30 consecutive days, either party may end that Engagement by written notice.
The affected Engagement may end earlier if the Force Majeure event means a fixed event date or other material purpose can no longer reasonably be achieved and there is no reasonable alternative.
Clause 14.4 explains what happens when an Engagement ends under this clause.
14.1 Term
These Service Terms apply to each Engagement from acceptance until that Engagement is completed, expires or ends under the Agreement.
Each Engagement starts and ends as set out in its Engagement Summary.
If an Engagement Summary states a minimum term, neither party has a general right to end that Engagement early for convenience. Paying by instalments does not make the Engagement month-to-month or create a cancel-anytime arrangement.
An Engagement can still end earlier where the Agreement gives a right to do so, or if we both agree in writing.
14.2 Future Engagements
Neither party is required to enter into future Engagements.
Choosing not to enter into another Engagement does not end one already in progress.
These Service Terms continue to apply to each active Engagement until it is completed, expires or otherwise validly ends.
14.3 Termination for breach or insolvency
Either party may end an affected Engagement by written notice if the other party:
(a) commits a material breach that can be fixed and does not fix it within 14 days after receiving written notice requiring it to do so;
(b) commits a material breach that cannot reasonably be fixed; or
(c) becomes insolvent, stops carrying on business or becomes subject to an insolvency or external-administration process, but only where the termination right can lawfully be exercised.
If the same material breach materially affects more than one Engagement, the non-defaulting party may also end those other affected Engagements.
Nothing in this clause allows either party to exercise a termination right contrary to a statutory stay or restriction under the Corporations Act 2001 (Cth) or other applicable law.
14.4 Consequences of termination
When an Engagement ends:
(a) amounts already due remain payable;
(b) the Client remains responsible for Services already performed, including the reasonable part of any fixed Project Fee that reflects work completed up to that point;
(c) the Client remains responsible for supplier or third-party commitments reasonably incurred before the Engagement ended and that cannot reasonably be cancelled;
(d) the Client remains responsible for Merchandise already produced or in production;
(e) we will refund any prepaid amount that relates to Services not performed, Merchandise not supplied and supplier or third-party costs not committed;
(f) ending the Engagement does not, by itself, make future fees immediately due. This does not limit either party's right to recover any loss or damage otherwise available under the Agreement or applicable law;
(g) each party must deal with the other party's confidential information in accordance with clause 15;
(h) any additional completion, transition or wind-down provisions in the applicable Engagement Summary apply; and
(i) termination does not affect rights or obligations accrued before termination.
Any provision intended by its nature to continue after the Engagement ends will continue.
Each party agrees to keep confidential all information received from the other party in connection with the Agreement that is not publicly available and not to disclose that information to a third party without the prior written consent of the disclosing party, except as required by law.
16.1 Use of subcontractors
We may engage subcontractors in performing the Services, including Fulfilment Suppliers, from time to time.
This includes the right to appoint, replace or change subcontractors or suppliers where reasonably required for operational, pricing, quality, capacity, technical or supply-chain reasons.
16.2 Supplier independence
Subcontractors and Fulfilment Suppliers operate as independent third parties and are not employees, agents or representatives of us.
Nothing in the Agreement creates a partnership, employment relationship, fiduciary relationship or agency relationship between us and a subcontractor.
Subcontractors have no authority to bind us or you.
16.3 Performance of Services
We remain responsible for the obligations we owe under the Agreement even where a subcontractor or Fulfilment Supplier performs part of the Services.
We do not guarantee a particular subcontractor's or Fulfilment Supplier's ongoing availability, pricing, stock, production capacity, delivery timeframe or uninterrupted performance.
Nothing in this clause requires us to control how an independent third party operates, and nothing in this clause limits an obligation or liability that cannot lawfully be excluded or limited.
16.4 Supplier variability
You acknowledge that subcontractor performance, pricing, production output and delivery timelines may vary over time.
We do not guarantee uninterrupted supply or consistent pricing from a specific subcontractor or Fulfilment Supplier.
17.1 Entire agreement
The Agreement, including each applicable Engagement Summary, constitutes the entire agreement between the parties in respect of the relevant Engagement and supersedes prior representations, negotiations and agreements relating to that Engagement.
17.2 Variation
A variation of these Service Terms must be in writing and agreed by both parties.
A later written Engagement Summary or written variation can amend the engagement-specific matters for that Engagement.
An Engagement Summary does not amend these Service Terms unless it expressly identifies the agreed departure or records an engagement-specific matter these Service Terms allow to be set in the Engagement Summary.
17.3 Governing law
The Agreement is governed by the laws of South Australia and the parties submit to the non-exclusive jurisdiction of the courts of that State.
17.4 Severability
If a provision of the Agreement is found to be invalid or unenforceable, it is severed without affecting the validity or enforceability of the remaining provisions.
17.5 Waiver
A failure or delay by either party to exercise a right or remedy under the Agreement does not constitute a waiver of that right or remedy.
17.6 Australian Consumer Law
Nothing in the Agreement excludes, restricts or modifies any right, guarantee, remedy or liability that cannot lawfully be excluded, restricted or modified, including under the Australian Consumer Law, Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Where section 64A of the Australian Consumer Law permits us to limit our liability for a failure to comply with a consumer guarantee, and it is fair and reasonable for us to rely on that limitation, our liability is limited to one or more of the remedies permitted by that section.
These Service Terms are incorporated into each Engagement Summary by reference.
The applicable Engagement Summary records the version and date of the Service Terms accepted for that Engagement. By signing the Engagement Summary, the Client confirms that it had access to these Service Terms before acceptance.