1.
Definitions
1.3
“Guarantor” means that person (or
persons), or entity, who agrees to be liable for the debts of the Client
on a principal
debtor basis.
1.4
“Goods” shall mean Goods supplied by the Seller to the Client
(and where the context so permits shall include any supply of Services, or
Items, as hereinafter defined) and includes Goods described on any invoices,
quotation, work authorisation or any other forms as provided by the Seller to
the Client.
1.5
“Items” shall mean items which are owned by the Client upon
which the Seller is to perform services (and where the context so permits shall
include any supply of Goods as defined above).
1.6
“Services” shall mean all services supplied by the Seller to
the Client and includes any advice or recommendations (and where the context so
permits shall include any supply of Goods as defined above).
1.7
“Price” shall mean the price payable for the Goods as agreed
between the Seller and the Client in accordance with clause
3 of this contract.
2.
Acceptance
2.1
Any instructions received by the Seller from the Client for
the supply of Goods and/or the Client’s acceptance of Goods supplied by the
Seller shall constitute acceptance of the terms and conditions contained herein.
2.2
Where more than one Client has entered into this agreement,
the Clients shall be jointly and severally liable for all payments of the Price.
2.3
Upon acceptance of these terms and conditions by the Client
the terms and conditions are binding and can only be amended with the written
consent of the Seller.
2.4
The Client undertakes to give the Seller at least fourteen
(14) days notice of any change in the Client’s name, address and/or any other
change in the Client’s details.
3.
Price And Payment
3.1
At the Seller’s sole discretion the Price shall be either:
(a)
as indicated on invoices provided by the Seller to the Client
in respect of Goods supplied; or
(b)
the Seller’s quoted Price (subject to clause
3.2) which shall be binding upon the Seller provided that
the Client shall accept the Seller’s quotation in writing within thirty (30)
days.
3.2
The Seller reserves the right to change the Price in the
event of a variation to the Seller’s quotation.
3.3
At the Seller’s sole discretion a deposit may be required.
3.4
At the Seller’s sole discretion:
(a)
payment shall be due on delivery of the Goods; or
(b)
payment shall be due before delivery of the Goods; or
(c)
payment for approved Clients shall be made by instalments in
accordance with the Seller’s payment schedule.
3.5
Time for payment for the Goods shall be of the essence and
will be stated on the invoice or any other forms. If no time is stated then
payment shall be due seven (7) days following the date of the invoice.
3.6
Payment will be made by cash, or by cheque, or by bank
cheque, or by credit card
(plus a surcharge of up to two
percent (2%) of the Price), or by any other method as agreed to between the Client and
the Seller.
3.7
GST and other taxes and duties that may be applicable shall
be added to the Price except when they are expressly included in the Price.
4.
Delivery Of Goods
4.1
At the Seller’s sole discretion delivery of the Goods shall
take place when:
(a)
the Client takes possession of the Goods at the Seller’s
address; or
(b)
the Client takes possession of the Goods at the Client’s
nominated address (in the event that the Goods are delivered by the Seller or
the Seller’s nominated carrier); or
(c)
the Client’s nominated carrier takes possession of the Goods
in which event the carrier shall be deemed to be the Client’s agent.
4.2
At the Seller’s sole discretion the costs of delivery are:
(a)
in addition to the Price, or
(b)
for the Client’s account.
4.3
The Client shall make all arrangements necessary to take
delivery of the Goods whenever they are tendered for delivery. In the event that
the Client is unable to take delivery of the Goods as arranged then the Seller
shall be entitled to charge a reasonable fee for redelivery.
4.4
Delivery of the Goods to a third party nominated by the
Client is deemed to be delivery to the Client for the purposes of this
agreement.
4.5
The Seller may deliver the Goods by separate instalments.
Each separate instalment shall be invoiced and paid for in accordance with the
provisions in these terms and conditions.
4.6
The Client shall take delivery of the Goods tendered
notwithstanding that the quantity so delivered shall be either greater or lesser
than the quantity purchased provided that:
(a)
such discrepancy in quantity shall not exceed five percent
(5%); and
(b)
the Price shall be adjusted pro rata to the discrepancy.
4.7
The failure of the Seller to deliver shall not entitle either
party to treat this contract as repudiated.
4.8
The Seller shall not be liable for any loss or damage
whatever due to failure by the Seller to deliver the Goods (or any of them)
promptly or at all.
5.
Risk
5.1
If the Seller retains ownership of the Goods nonetheless, all
risk for the Goods passes to the Client on delivery.
5.2
If any of the Goods are damaged or destroyed following
delivery but prior to ownership passing to the Client, the Seller is entitled to
receive all insurance proceeds payable for the Goods. The production of these
terms and conditions by the Seller is sufficient evidence of the Seller’s rights
to receive the insurance proceeds without the need for any person dealing with
the Seller to make further enquiries.
5.3
The Client agrees that the Seller shall not be liable for
replacing or repairing any Items supplied by the Client that are damaged during
the embroidery process.
5.4
The Seller reserves the right to refuse Client supplied Items
that the Seller deems to be unsuitable for the embroidery process.
5.5
The Client is responsible for ensuring their own Items are
free from any defects and flaws prior to delivery to the Seller.
6.
Title
6.1
The Seller and Client agree that ownership of the Goods shall
not pass until:
(a)
the Client has paid the Seller all amounts owing for the
particular Goods, and
(b)
the Client has met all other obligations due by the Client to
the Seller in respect of all contracts between the Seller and the Client.
6.2
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 ownership or rights in respect
of the Goods shall continue.
6.3
It is further agreed that:
(a)
where practicable the Goods shall be kept separate and
identifiable until the Seller shall have received payment and all other
obligations of the Client are met; and
(b)
until such time as ownership of the Goods shall pass from the
Seller to the Client the Seller may give notice in writing to the Client to
return the Goods or any of
them to the Seller.
Upon such notice the rights of the Client to obtain ownership or any
other interest in the Goods shall cease; and
(c)
the Seller shall have the right of stopping the Goods in
transit whether or not delivery has been made; and
(d)
if the Client 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
Client, or any premises as the invitee of the Client, where
the Goods are situated and take possession of the Goods; and
(e)
the Client is only a bailee of the Goods and until such time
as the Seller has received payment in full for the Goods then the Client shall
hold any proceeds from the sale or disposal of the Goods on trust for the
Seller; and
(f)
the Client shall not deal with the money of the Seller in any
way which may be adverse to the Seller; and
(g)
the Client 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; and
(h)
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 Client; and
(i)
until such time that ownership in the Goods passes to the
Client, if the Goods are converted into other products, the parties agree that
the Seller will be the owner
of the end products.
7.
Client’s Disclaimer
7.1
The Client hereby disclaims any right to rescind, or cancel
any contract with the Seller or to sue for damages or to claim restitution
arising out of any misrepresentation made to the Client by the Seller and the
Client acknowledges that the Goods are bought relying solely upon the Client’s
skill and judgement.
8.
Defects
8.1
The Client shall inspect the Goods on delivery and shall
within two (2) days of delivery (time being of the essence) notify the Seller of
any alleged defect, shortage in quantity, damage or failure to comply with the
description or quote.
The Client
shall afford the Seller an opportunity to inspect the Goods within a reasonable
time following delivery if the Client believes the Goods are defective in any
way.
If the Client shall fail to
comply with these provisions the Goods shall be presumed to be free from any
defect or damage. For defective Goods, which the Seller has agreed in writing
that the Client is entitled to reject, the Seller’s liability is limited to
either (at the Seller’s discretion) replacing the Goods or repairing the Goods.
8.2
Where the performance of any contract with the Client
requires the Seller to obtain Goods or Services from a third party, the contract
between the Seller and the Client shall incorporate and shall be subject to the
conditions of supply of such Goods and Services to the Seller, and the Client
shall be liable for the cost in full including the Seller’s margin of such Goods
or Services.
8.3
Whilst every care is taken by the Seller to carry out the
instructions of the Client, it is the Clients responsibility to undertake a
final proof reading of the Goods. The Seller shall be under no liability
whatever for any errors not corrected by the Client in the final proof reading.
Should the Clients alterations require additional proofs this shall be invoiced
as an extra.
8.4
The Seller is under no obligation to provide samples of Goods
ordered other than by virtual (computerised) sample. Whilst every effort will be
taken by the Seller to match virtual colours with physical colours, the Seller
will take no responsibility for any variation between virtual sale samples and
either the virtual sale sample displayed on the Client’s computer and/or the
final product.
Should a physical
sample be required this will be provided on request by the Client and will be
charged for as an extra including return freight, the charge will be contra
against final invoice.
9.
Returns
9.1
Returns will only be accepted provided that:
(a)
the Client has complied with the provisions of clause
8.1; and
(b)
the Seller has agreed in writing to accept the return of the
Goods; and
(c)
the Goods are returned at the Client’s cost within seven (7)
days of the delivery date; and
(d)
the Seller will not be liable for Goods which have not been
stored or used in a proper manner; and
(e)
the Goods are returned in the condition in which they were
delivered and with all packaging material, brochures and instruction material in
as new condition as is reasonably possible in the circumstances.
10.
Warranty
10.1
To the extent permitted by statute, no warranty is given by
the Seller as to the quality or suitability of the Goods for any purpose and any
implied warranty, is expressly excluded. The Seller shall not be responsible for
any loss or damage to the Goods, or caused by the Goods, or any part thereof
however arising.
11.
The Commonwealth
Trade Practices Act 1974 and Fair Trading Acts
11.1
Nothing in this agreement is intended to have the effect of
contracting out of any applicable provisions of the Commonwealth Trade Practices
Act 1974 or the Fair Trading Acts in each of the States and Territories of
Australia, except to the extent permitted by those Acts where applicable.
12.
Intellectual
Property
12.1
Where the Seller has designed, drawn or written Goods for the
Client, then the copyright in those designs and drawings and documents shall
remain vested in the Seller, and shall only be used by the Client at the
Seller’s discretion.
12.2
The Client warrants that all designs or instructions to the
Seller will not cause the Seller to infringe any patent, registered design or
trademark in the execution of the Client’s order and
the Client agrees to indemnify the Seller against any action taken by a third
party against the Seller in respect of any such infringement.
13.1
Interest on overdue invoices shall accrue from the date when
payment becomes due daily until the date of payment at a rate of two and one
half percent (2.5%) per calendar month and such interest shall compound monthly
at such a rate after as well as before any judgement.
13.2
If the Client defaults in payment of any invoice when due,
the Client shall indemnify the Seller from and against all costs and
disbursements incurred by the Seller in pursuing the debt including legal costs
on a solicitor and own client basis and the Seller’s collection agency costs.
13.3
Without prejudice to any other remedies the Seller may have,
if at any time the Client is in breach of any obligation (including those
relating to payment), the Seller may suspend or terminate the supply of Goods to
the Client and any of its other obligations under the terms and conditions. The
Seller will not be liable to the Client for any loss or damage the Client
suffers because the Seller has exercised its rights under this clause.
13.4
If any account remains overdue after thirty (30) days then an
amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the
amount overdue (up to a maximum of two hundred dollars ($200)) shall be levied
for administration fees which sum shall become immediately due and payable.
13.5
Without prejudice to the Seller’s other remedies at law the
Seller shall be entitled to cancel all or any part of any order of the Client
which remains unfulfilled and all amounts owing to the Seller shall, whether or
not due for payment, become immediately payable in the event that:
(a)
any money payable to the Seller becomes overdue, or in the
Seller’s opinion the Client will be unable to meet its payments as they fall
due; or
(b)
the Client becomes
insolvent, convenes a meeting with its creditors or proposes or enters into an
arrangement with creditors, or makes an assignment for the benefit of its
creditors; or
(c)
a receiver, manager, liquidator (provisional or otherwise) or
similar person is appointed in respect of the Client or any asset of the Client.
14.
Security And Charge
14.1
Despite anything to the contrary contained herein or any
other rights which the Seller may have howsoever:
(a)
where the Client and/or the Guarantor (if any) is the owner
of land, realty or any other asset capable of being charged, both the Client
and/or the Guarantor agree 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 these terms and conditions.
The Client 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 withdrawn once all payments and other monetary obligations
payable hereunder have been met.
(b)
should the Seller elect to proceed in any manner in
accordance with this clause and/or its sub-clauses, the Client 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.
(c)
the Client and/or the Guarantor (if any) agree to irrevocably
nominate constitute and appoint the Seller or the Seller’s nominee as the
Client’s and/or Guarantor’s true and lawful attorney to perform all necessary
acts to give effect to the provisions of this clause
14.1.
15.
Cancellation
15.1
The Seller may cancel any contract to which these terms and
conditions apply or cancel delivery of Goods at any time before the Goods are
delivered by giving written notice to the Client. On giving such notice the
Seller shall repay to the Client any sums paid in respect of the Price. The
Seller shall not be liable for any loss or damage whatever arising from such
cancellation.
15.2
In the event that the Client cancels delivery of Goods the
Client shall be liable for any loss incurred by the Seller (including, but not
limited to, any loss of profits) up to the time of cancellation.
16.
Privacy Act 1988
16.1
The Client and/or the Guarantor/s agree for the Seller to
obtain from a credit reporting agency a credit report containing personal credit
information about the Client and Guarantor/s in relation to credit provided by
the Seller.
16.2
The Client and/or the Guarantor/s agree that the Seller may
exchange information about the Client and the Guarantor/s with those credit
providers either named as trade referees by the Client or named in a consumer
credit report issued by a credit reporting agency for the following purposes:
(a)
to assess an application by Client; and/or
(b)
to notify other credit providers of a default by the Client;
and/or
(c)
to exchange information with other credit providers as to the
status of this credit account, where the Client is in default with other credit
providers; and/or
(d)
to assess the credit worthiness of Client and/or Guarantor/s.
16.3
The Client consents to the Seller being given a consumer
credit report to collect overdue payment on commercial credit (Section 18K(1)(h)
Privacy Act 1988).
16.4
The Client agrees that personal credit information provided
may be used and retained by the Seller for the following purposes and for other
purposes as shall be agreed between the Client and Seller or required by law
from time to time:
(a)
provision of Goods; and/or
(b)
marketing of Goods by the Seller, its agents or distributors
in relation to the Goods; and/or
(c)
analysing, verifying and/or checking the Client’s credit,
payment and/or status in relation to provision of Goods; and/or
(d)
processing of any payment instructions, direct debit
facilities and/or credit facilities requested by Client; and/or
(e)
enabling the daily operation of Client’s account and/or the
collection of amounts outstanding in the Client’s account in relation to the
Goods.
16.5
The Seller may give information about the Client to a credit
reporting agency for the following purposes:
(a)
to obtain a consumer credit report about the Client; and/or
(b)
allow the credit reporting agency to create or maintain a
credit information file containing information about the Client.
17.
Unpaid Seller’s Rights
17.1
Where the Client has left any item
with the Seller for repair, modification, exchange or for the Seller to perform
any other Service in relation to the item and the Seller has not received or
been tendered the whole of the Price, or the payment has been dishonoured, the
Seller shall have:
(a)
a lien on the item;
(b)
the right to retain the item for the Price while the Seller is in possession of
the item;
(c)
a right to sell the item,
17.2
The lien of the Seller shall continue despite the
commencement of proceedings, or judgement for the Price having been obtained.
18.
General
18.1
If any provision of these terms and conditions shall be
invalid, void, illegal or unenforceable the validity, existence, legality and
enforceability of the remaining provisions shall not be affected, prejudiced or
impaired.
18.2
These terms
and conditions and any contract to which they apply shall be governed by
the laws of
18.3
The Seller shall be under no
liability whatever to the Client for any indirect loss and/or expense (including
loss of profit) suffered by the Client arising out of a breach by the Seller of
these terms and conditions.
18.4
In the event of any breach of this
contract by the Seller the remedies of the Client shall be limited to damages
which under no circumstances shall exceed the Price of the Goods.
18.5
The Client shall not be entitled to
set off against or deduct from the Price any sums owed or claimed to be owed to
the Client by the Seller.
18.6
The Seller may license or sub-contract all or any part of its
rights and obligations without the Client’s consent.
18.7
The Seller reserves the right to review these terms and
conditions at any time. If, following any such review, there is to be any change
to these terms and conditions, then that change will take effect from the date
on which the Seller notifies the Client of such change.
18.8
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.
18.9
The failure by the Seller to enforce any
provision of these terms and conditions shall not be treated as a waiver of that
provision, nor shall it affect the Seller’s right to subsequently enforce that
provision.