Terms
and conditions
1.
Definitions and interpretation
1.1
"Buyer" means the person purchasing
the Goods and includes persons
acting on behalf of or stating that
they have the authority of the
Buyer.
1.2
"Goods" means the goods supplied or
to be supplied by the Seller to the
Buyer.
1.3
"Guarantor" means the person who
agrees to guarantee the obligations
of the Buyer to the Seller.
1.4
“Insolvency Event” means, in
relation to a party:
(a)
a receiver, receiver and manager,
trustee, administrator, other
controller (as defined in the
Corporations Law) or similar
official is appointed over any of
the assets or undertaking of the
party;
(b)
the party suspends payment of its
debts generally;
(c)
the party is or becomes unable to
pay its debts as and when they fall
due or is or becomes unable to pay
its debts or is presumed to be
insolvent within the meaning of the
Corporations Law;
(d)
the party enters into or resolves to
enter into any arrangement,
composition or compromise with, or
assignment for the benefit of, its
creditors, or any class of them;
(e)
the party ceases to carry on
business or threatens to cease to
carry on business;
(f)
a resolution is passed or any steps
are taken to appoint, or to pass a
resolution to appoint, an
administrator; or
(g)
an application or order is made for
the winding up or dissolution of the
party, or a resolution is passed or
any steps are taken to pass a
resolution for the winding up or
dissolution of the party, otherwise
than for the purpose of an
amalgamation or reconstruction that
has the prior written consent of the
other party.
1.5
"Price" means the costs of the Goods
as agreed between the Seller and the
Buyer and subject to clause 4 of
these Terms and Conditions.
1.6
"Seller" means Australian Outback
Apparel ABN 591 1481 9582.
1.7
Unless expressed to the contrary, in
this document:
(a)
words importing the singular include
the plural and vice versa, words
denoting a gender include the other
gender, and if a word or phrase is
defined, cognate words and phrases
have corresponding meanings;
(b)
a reference to a person includes not
only a natural person but any
company, partnership, joint venture,
association, corporation or other
body corporate and any governmental
agency and that person’s successors
and permitted assigns;
(c)
where a party comprises two or more
persons an agreement or obligation
to be performed or observed by that
party binds those persons jointly
and each of them severally, and a
reference to that party shall be
deemed to include a reference to any
one or more of those persons;
(d)
“writing” encompasses all means of
reproducing words in a tangible and
permanently visible form and
includes facsimile transmissions;
(e)
wherever the word “include” or any
form of that word is used it must be
construed as if it were followed by
“(without limitation)”;
(f)
“Business Day” means a day excluding
a Saturday, a Sunday or a public
holiday in NSW.
2.
Terms and Conditions
2.1
Any transaction between the Buyer
and the Seller will be governed by
these Terms and Conditions. These
terms and conditions are accepted by
the Buyer if the Buyer places an
order with the Seller or accepts the
Goods from the Seller after
receiving a copy of these terms and
conditions, whether or not the
signature of the Buyer is endorsed
hereon.
2.2
These terms and conditions may only
be varied or rescinded with the
Seller's written authorisation.
2.3
None of the Seller’s officers,
employees or agents are authorised
to in any way vary these terms and
conditions unless in writing signed
by the Seller.
2.4
The Seller reserves the right to
review these terms and conditions at
any time and from time to time.
If, following any such review, there
is to be any change in such terms
and conditions, that change will
take effect from the date on which
the Seller notifies the Buyer of
such change and/or places the
revised terms and conditions on the
Seller’s website.
2.5
These terms and conditions supersede
any terms and conditions sought to
be imposed upon the Goods by :
(a) the
Buyer's general conditions of
contract, particularly in regard to
insurance, retention sums and
liquidated damages; or
(b) by
incorporation onto the Buyer's
purchase orders, despite the
acceptance by signature or otherwise
by the Seller of the purchase order.
2.6
Any
condition in the Buyer’s acceptance
or other document created or issued
by the Buyer inconsistent with these
Terms and Conditions are expressly
excluded and does not bind the
Seller.
2.7
The Seller reserves the right
to stop supply to the Buyer if there
is a breach of these Terms and
Conditions.
3.
Goods
3.1
The Goods are as described on the
invoices, quotation, purchase orders
or any other forms as provided by
the Seller to the Buyer.
3.2
Any quotation provided to the Buyer
is valid for 30 days, and must be
accepted by the Buyer in writing. At
any time prior to acceptance by the
Buyer, the Seller may withdraw or
vary the quotation by notice to the
Buyer in writing.
3.3
The Seller may, at its absolute
discretion, elect to treat any
request (whether in writing or
otherwise) by the Buyer to supply
the Goods in accordance with the
quotation as binding on the Buyer
and commence the supply of the
Goods.
3.4
All purchase Orders must have an
order number clearly displayed on
the form.
3.5
If the Buyer requests further Goods
to be provided, in connection with
the original Goods or otherwise, the
Buyer will be liable to pay the
Seller for those further Goods in
accordance with clause 4.
3.6
The Seller may cancel these terms
and conditions or cancel delivery of
Goods at any time before the Goods
are delivered by giving written
notice. The Seller shall not be
liable for any loss or damage
whatever arising from such
cancellation.
3.7
If artwork
is not supplied by the Buyer in the
correct format as directed by the
Seller, the Buyer may be liable for
artwork charges, to be billed at $60
plus GST per hour. Some minor
artwork changes may be done at no
cost, at the discretion of the
Buyer.
4.
Price and Payment
4.1
At the Seller's sole discretion, the
Price of the Goods shall be:
(a)
as indicated on invoices provided by
the Seller to the Buyer in respect
of Goods supplied;
(b)
at the Seller's current prices and
rates for the supply of the Goods;
or
(c)
the Seller's quoted Price if that
quote is accepted in accordance with
clause 3.2.
4.2
The Seller may require the Buyer to
pay a 50% deposit on the total
invoice for the Goods ordered.
The amount of the deposit will be
stated at the time of the order of
the Goods by the Seller and becomes
immediately due and payable on the
date that the invoice is issued. The
Seller is not required to provide or
deliver the Goods until any required
deposit is paid.
4.3
Payment of the Price is due, unless
otherwise stated,
upon delivery
(C.O.D) or the date that the Goods
were scheduled to be delivered.
Time is of the essence for payment
for the Goods. The Seller may
from time to time offer to a Buyer
other payment terms at its sole
discretion.
4.4
The Seller reserves the right to
issue monthly progress claims to the
Buyer for the proportionate amount
of delivered Goods in accordance
with the contract.
4.5
Unless expressly stated in any
quotation or contract, the cost
of samples
is not included and
will be invoiced as an additional
charge to the Buyer.
4.6
New Accounts are subject to the
following terms at the discretion of
the Seller:
(a)
The first 3 orders must be paid in
full before the dispatch of the
Goods;
(b)
For the 4th order the
Buyer may fill out a credit
application form and apply for a 30
day account from the date of invoice
for the Goods. This is subject to
the following exceptions:
(i)
Government or School Bodies who
produce their own purchase order
will be given a 30 day account;
(ii)
Corporate bodies who produce a
purchase order will be given a 14
day account from date of invoice,
after the first 3 orders they can
then apply for a 30 day account from
the date of invoice.
4.7
All credit accounts must be
maintained on a 30 day nett basis
from the date of invoice. Failure to
do so will result in the Buyer’s
supply being stopped and all future
orders will require payment in full
before the Goods are dispatched.
4.8
If the Buyer is a company,
the directors of that company agree
in consideration of the Seller
supplying the Goods, all of the
directors of the Seller irrevocably
guarantee the performance of the
Buyer with respect to all of these
Terms and Conditions. The directors
further indemnify the Seller against
any loss, damage or costs incurred
by Seller as a result of the Buyer’s
default of these Terms and
Conditions.
5. Supply of Goods
5.1
Supply of the Goods will be made to
the address nominated by the Buyer.
5.2
The Buyer must make all arrangements
necessary to:
(a)
take delivery of the Goods whenever
they are tendered for delivery, or
delivery of the Goods shall be made
to the Buyer at the Sellers address;
and
(b)
permit the Seller to supply the
Goods, including providing rights of
access to the site where the Goods
are to be delivered.
5.3
Without
prejudice to any other rights and
remedies which it may have, the
Seller may charge storage and
transportation expenses if the Buyer
fails or refuses to take or accept
delivery or indicates to the Seller
that it will fail or refuse to take
or accept delivery at the time
specified or at any other times that
the Seller (or its Carrier) is able
to deliver the Goods. The Seller
accepts no responsibility for any
damage whatsoever to the Goods
whether attributable directly or
indirectly to the Seller, its
employees, agents or contractors.
Notice by the Seller that the Goods
have been stored in accordance with
this clause shall constitute
delivery of the Goods.
5.4
The failure of the Seller to deliver
shall not entitle either party to
treat this contract as repudiated.
5.5
Any dates for delivery are estimates
only and the Seller shall not be
liable for and the Buyer indemnifies
the Seller from any loss or damage
whatever due to failure by the
Seller to deliver the Goods (or any
of them) promptly or at all.
5.6
The Seller
reserves the right to deliver the
Goods in installments and each
installment shall be deemed to be a
separate contract subject to these
Terms. Should the Seller be unable
to deliver one or more installments
this shall not entitle the Buyer to
repudiate the entire contract for
the Goods.
5.7
The Buyer, with the written
permission of the Seller may cancel
an order. In the event of a
cancellation of an order by the
Buyer, the Buyer agrees:
(a)
After the acceptance of an
order a cancellation fee in the
amount of $150.00 or 10% of the
purchase price, whichever is higher,
may apply; and
(b)
The Buyer will be liable for
any artwork costs and other
disbursements involved in preparing
the order;
(c)
The Buyer will be liable for
the full amount if the Goods have
already been customized
to the specifications of the Buyer,
or if the Goods have already been
paid in full by the Seller, or if
they are being delivered to the
Buyer;
(d)
The Buyer will not be liable
for cancellation fees if the Goods
are not in stock, or if the Goods
have not been ordered with the
Supplier/Manufacturer.
6. Risk
6.1
Notwithstanding that the Seller
retains property in the Goods until
the Price has been paid in full, all
risk for the Goods passes to the
Buyer upon
dispatch from the premises of the
Supplier or Manufacturer where the
Goods are being supplied from to
either the Buyer, their agent or to
the first carrier nominated by the
Buyer or by the Seller’s Carrier.
6.2
The Seller will arrange
insurance at the written request of
the Buyer for the value of 2% of the
total value of the invoice.
6.3
If any of the Goods are damaged or
destroyed prior to property in them
passing to the Buyer, the Seller is
entitled, without prejudice to any
of its other rights or remedies
under these Terms and Conditions of
Trade (including the right to
receive payment of the balance of
the Price of the Goods), to receive
all insurance proceeds payable for
the Goods. This applies
whether or not the Price has become
payable.
6.4
The delivery to the Buyer's insurer
of these terms and conditions by the
Seller is prima facie evidence of
the Seller’s rights to receive the
insurance proceeds.
6.5
All orders
will be shipped using the Seller’s
account and billed with the Buyer’s
order at published rates for that
carrier. The Buyer can make
alternate arrangements, but they
must provide to the Seller within a
reasonable time the name of the
carrier and the Buyer’s account
number. The Seller will not be held
responsible for any errors in the
details supplied to the by the
Seller. If that carrier cannot be
used for the particular order, then
the Buyer agrees to allow the Seller
to use their own nominated carriers.
7. Defects and
Returns
7.1
The Buyer shall inspect the Goods on
delivery and shall within fourteen
(14) days of delivery notify the
Seller of any alleged defect,
shortage in quantity, damage or
failure to comply with the
description or quote.
7.2
The Buyer shall afford the Seller an
opportunity to inspect the Goods
within a reasonable time following
delivery if the Buyer believes the
Goods are defective in any way.
If the Buyer fails to comply with
these conditions the Goods shall be
conclusively presumed to be in
accordance with the terms and
conditions and free from any defect
or damage.
7.3
For defective Goods which the Seller
has agreed in writing that the buyer
is entitled to reject, the Seller’s
liability is limited to either (at
the Seller’s discretion) replacing
the Goods or repairing the Goods
provided that:
(a)
the Buyer has complied with the
provisions of clause 7.1; and
(b)
the Seller will not be liable for
Goods which have not been stored or
used in a proper manner, and subject
to clause 8.
7.4
The Seller may (in its discretion)
accept the Goods for credit but this
may incur a handling fee of 10% of
the value of the returned Goods plus
any freight.
7.5
A variation of
2% above or below
the quantities of the Goods ordered
will be deemed as full supply of the
Goods.
7.6
Colours of items pictures on
the Seller’s website or in
catalogues are only indicative. If
exact colour matching is required
the Buyer must request a sample
before placing an order.
8. Warranty
8.1
Subject to clause 8.2 the Seller
warrants that if any defect in any
workmanship supplied by the Seller
becomes apparent and is reported to
the Seller within a time frame, as
determined by the Seller from time
to time, of the date of delivery
(time being of the essence) then the
Seller may (at the Seller's sole
discretion):
(a)
in the case of Goods:
(i)
repair the defective Goods free of
charge;
(ii)
replace the defective Goods or
defective parts thereof; or
(iii)
credit to the Buyer such amount as
the Seller, in its absolute
discretion, considers reasonable
having regard to the price paid for
the Goods and the use of the
Goods enjoyed by the Buyer, and
8.2
The conditions applicable to the
warranty given by Clause 8.1 are:
(a)
The warranty shall not cover any
defect or damage which may be caused
or partly caused by or arise
through:
(i)
failure on the part of the Buyer to
properly maintain any Goods; or
(ii)
failure on the part of the Buyer to
follow any instructions or
guidelines provided by the Seller;
or
(iii)
any use of any Goods otherwise than
for any application specified on a
quote or order form; or
(iv)
the continued use of any Goods after
any defect becomes apparent or would
have become apparent to a reasonably
prudent operator or user; or
(v)
damage caused to the Goods by any
third party; or
(vi)
fair wear and tear, any accident,
act of God or act of war.
(b)
The warranty shall cease and the
Seller shall thereafter in no
circumstances be liable under the
terms of the warranty if the
workmanship is repaired, altered or
overhauled without the Seller’s
consent.
(c)
In respect of all claims the Seller
shall not be liable to compensate
the Buyer for any delay in either
replacing or repairing the
workmanship/Goods or in properly
assessing the Buyers claim.
(d)
To the full extent permitted by law,
the Seller excludes all:
(i)
implied warranties in respect of the
Goods that would otherwise be
implied by law into the contract;
and
(ii)
liability for any damage, whether
direct, indirect, special or
consequential, arising in any way
out of the use of or in relation to
the Goods.
(e)
Where any law, including the
Australian Consumer Law or the Fair
Trading Act, would operate to render
the terms of clause 8.2(d)
ineffective or illegal, the
Supplier's liability for breach of
any warranty or any term implied by
law into the contract is limited to
the lowest of the cost of replacing
the Goods, acquiring equivalent
Goods or having the Goods repaired.
9.
Buyers Disclaimer
9.1
The Buyer hereby disclaims any right
to rescind, or cancel the contract
or to sue for damages or to claim
restitution arising out of any
misrepresentation made to him by any
servant or agent of the Seller and
the Buyer acknowledges that he buys
the Goods relying solely upon his
own skill and judgement, and that
the Seller shall not be bound by nor
be responsible for any term,
condition, representation or
warranty other than the warranty
given by the Manufacturer which
warranty shall be personal to the
Buyer and shall not be transferable
to any subsequent Buyer.
10. Default
& Consequences of Default
10.1
Interest on overdue invoices shall
accrue from the date when payment
becomes due daily until the date of
payment at a rate of 12.5% per annum
calculated daily and shall accrue at
such a rate after as well as before
any judgement.
10.2
If the Buyer defaults in payment of
any invoice when due, the Buyer
shall indemnify the Seller from and
against all of the Seller’s costs
and disbursements including on a
solicitor and own client basis and
in addition all of the costs of
collection incurred by the Seller
and any agent engaged by the Seller
for that purpose.
10.3
Without prejudice to any other
remedies the Seller may have, if at
any time the Buyer is in material
breach of any obligation (including
those relating to payment), the
Seller may suspend or terminate the
supply of Goods to the Buyer and any
of the Seller’s other obligations
under the terms and conditions.
The Seller will not be liable to the
Buyer for any loss or damage the
Buyer suffers because the Seller
exercised its rights under this
clause.
10.4
If any account remains unpaid at the
end of the second month after supply
of the goods the following shall
apply: An immediate amount of
the greater of $50.00 or 10% of the
amount overdue shall be levied for
administration fees which sum shall
become immediately due and payable.
10.5
In the event that the Buyer suffers
an Insolvency Event, then without
prejudice to the Seller’s other
remedies at law
(a)
the Seller shall be entitled to
cancel all or any part of any order
of the Buyer which remains
unperformed in addition to and
without prejudice to any other
remedies; and
(b)
all amounts owing to the Seller
shall, whether or not due for
payment, immediately become payable.
11. Title
11.1
Property in the Goods shall not pass
from the Seller to the Buyer until:
(a)
the Buyer has paid all amounts owing
for the particular Goods; and
(b)
the Buyer has met all other
obligations due by the Buyer to the
Seller in respect of all contracts
between the Seller and the Buyer,
and in addition the Buyer agrees to:
(i)
hold the
Goods as bailee and on trust the
Seller as fiduciary;
(ii)
store the Goods separately
and apart from its own goods and
those of any other person, and shall
keep appropriate records for the
Goods so that they can at all times
be identified as the property of the
Seller;
(iii)
not remove, deface,
obliterate any identifying plate,
mark or packaging number of any
Goods;
(iv)
refrain from selling the Goods,
except on the normal commercial
basis.
11.2
It is further agreed that:
(a)
The Buyer shall not deal with the
money of the Seller in any way which
may be adverse to the Seller.
(b)
Until such time as ownership of the
Goods shall pass from the Seller to
the Buyer the Seller may give notice
in writing to the Buyer to return
the Goods or any of them to the
Seller. Upon such notice the
rights of the Buyer to obtain
ownership or any other interest in
the Goods shall cease.
(c)
If the Buyer fails to return the
Goods to the Seller then the Seller
or the Seller’s agent may enter upon
and into land and premises owned,
occupied or used by the Buyer, or
any premises as the invitee of the
Buyer, where the Goods are situated
and take possession of the Goods,
without being responsible for any
damage thereby caused.
(d)
Receipt by the Seller of any form of
payment other than cash shall not be
deemed to be payment until that form
of payment has been honoured,
cleared or recognised and until then
the Seller’s rights of ownership in
respect of the Goods shall continue.
(e)
The Buyer shall not charge the Goods
in any way nor grant nor otherwise
give any interest in the Goods while
they remain the property of the
Seller;
(f)
The Seller may require payment of
the Price or the balance of the
Price due together with any other
amounts due from the Buyer to the
Seller arising out of these terms
and conditions, and the Seller may
take any lawful steps to require
payment of the amounts due and the
Price.
(g)
The Seller can issue proceedings to
recover the Price of the Goods sold
notwithstanding that ownership of
the Goods may not have passed to the
Buyer.
(h)
In the
event that the Buyer sells or parts
with possession of the Goods prior
to title in the goods passing to the
Buyer, the Customer agrees to hold
as trustee for the Seller, in a
separate trust account, any amount
received by the Buyer from a third
party for any of its Goods equal to
the amount then owing by the Buyer
to the Seller.
12.
Security and Charg
12.1
Notwithstanding anything to the
contrary contained herein or any
other rights which the Seller may
have howsoever, then if the Buyer
fails to pay the Price for the Goods
in accordance with clause 4 hereof,
the following provisions will apply:
(a)
Where the Buyer and/or the Guarantor
(if any) is the owner of land,
realty or any other asset capable of
being charged, both the Buyer and/or
the Guarantor agrees to mortgage
and/or charge all of their joint
and/or several interest in the said
land, realty or any other asset to
the Seller or the Seller’s nominee
to secure all amounts and other
monetary obligations payable under
the terms and conditions. The
Buyer acknowledges and agrees that
in order to give effect to this
mortgage and/or charge, it will be
necessary to sign further documents
in registrable form to permit the
mortgage and/or charge to be
perfected by the lodgement for
registration, and the Buyer agrees
to sign all such documents forthwith
upon provision by the Seller.
(b)
The Buyer will be liable for any
stamp duty payable on any security.
(c)
The Buyer and/or the Guarantor
acknowledge and agree that the
Seller (or the Seller’s nominee)
shall be entitled to lodge where
appropriate a caveat, which caveat
shall be released once all payments
and other monetary obligations
payable hereunder have been met.
(d)
Should the Seller elect to proceed
in any manner in accordance with
this clause and/or its sub-clauses,
the Buyer and/or Guarantor shall
indemnify the seller from and
against all the Seller’s costs and
disbursements including legal costs
on a solicitor and own client basis.
(e)
To give effect to the provisions of
this clause 12 the Buyer and/or the
Guarantor (if any) do hereby
irrevocably nominate constitute and
appoint the Seller or the Seller’s
nominee as the Buyer’s and/or
Guarantor’s true and lawful attorney
to execute mortgages and charges
(whether registrable or not)
including such other terms and
conditions as the Seller and/or the
Sellers nominee shall think fit in
his/her/its/their absolute
discretion against the joint and/or
several interest of the Buyer and/or
the Guarantor’s name as may be
necessary to secure the said Buyer’s
and/or Guarantor’s obligations and
indebtedness to the Seller and
further to do and perform all
necessary and other acts including
instituting any necessary legal
proceedings, and further to execute
all or any documents in the Seller’s
absolute discretion which may be
necessary or advantageous to give
effect to the provisions of this
clause.
13. Goods and Services
Tax
13.1 In
this clause,
(a)
“GST” means a tax, levy, duty,
charge or deduction, together with
any related additional tax,
interest, penalty, fine or other
charge, imposed by or under a GST
law;
(b)
“GST law” means A New Tax System
(Goods and Services Tax) Act 1999 (Cth);
or
(c)
an Act imposing, or relating to the
imposition or administration of such
a tax.
(d)
“Invoice” means a tax invoice under
the GST law.
(e)
“Supply” means the same as in the
GST law.
13.2 This
clause applies if a party to this
Agreement becomes liable to pay GST
(“the Supplier”) in relation to a
Supply made under this Agreement (“a
taxable supply”) to another party to
this Agreement (“the Recipient”).
13.3 In addition to any
amounts payable by the Recipient to
the Supplier under this Agreement,
the Recipient must pay to the
Supplier the amount of GST payable
on a taxable supply. The GST
is payable at the same time as
paying the amount on which the GST
is calculated.
13.4 Immediately upon
receipt by the Supplier of the
payment referred to in sub-clause
(c) hereof, or not later than such
other time as the GST law may
require, the Supplier must issue an
Invoice or invoices to the Recipient
for the amount of GST referrable to
the taxable supply containing such
particulars as are required by the
GST law.
14.
Intellectual
Property Rights
14.1
The Buyer has no intellectual
property rights (including
copyright) in any designs, patterns
and drawings which are provided by
the Seller in connection with Goods
supplied.
14.2
Where the Seller has followed
designs and specifications provided
by the Buyer, the Buyer shall
indemnify the Seller against all
damages, penalties, costs and
expenses in respect of which Seller
may become liable through the use of
those specifications including those
arising from infringement of any
patent, trademark, copyright,
registration design or any other
right of any third party.
15.
General
15.1 The Seller shall be
under no liability whatsoever to the
Buyer for any indirect loss and/or
expense (including loss of profit)
suffered by the Buyer arising out of
a breach by the Seller of these
terms and conditions.
15.2 The Buyer shall not
set off against the Price amounts
due from the Seller.
15.3 Neither party shall
be liable for any default due to any
act of God, war, terrorism, strike,
lock out, industrial action, fire,
flood, drought, storm or other event
beyond the reasonable control of
either party.
15.4 If any provision of
these Terms and Conditions are held
by a court to be unlawful, invalid,
unenforceable or in conflict with
any rule of law, statute, ordinance
or regulation the validity and
enforceability of the remaining
provisions shall not be thereby
affected.
15.5 An obligation of two
or more persons binds them jointly
and severally.
15.6
These Terms and Conditions and the
transactions contemplated by these
Terms and Conditions are governed by
and construed in accordance with the
law in force in the State of
