These Terms and Conditions are to be incorporated into any contract between the Company and the Customer for the supply of Goods and/or services by the Company to the Customer.
The following definitions apply unless the context requires otherwise:
(a) ‘Company’ means Visitec Australia Pty Ltd ACN 097 735 361;
(b) ‘Customer’ means the person ordering the Goods the subject of this contract;
(c) ‘Goods’ means all goods supplied by the Company to the Customer or to such other party or location that the Customer may direct.
(d) ‘GST’ means A New Tax System (Goods and Services) Act, 1999;
(e) ‘Order’ means an order placed with the Company for Goods;
(f) ‘Quotation’ means the price estimation for the provision of Goods provided by the Company in respect of any enquiry made by the Customer;
(g) ‘insolvency event’ shall occur when: (except for the purpose of a solvent reconstruction or amalgamation previously approved by the Company in writing):
- an application or an order appointing an Administrator, Receiver, Provisional Liquidation, or Liquidator is made;
- proceedings are commenced;
- a resolution is passed or proposed in a notice of meeting for the winding up, dissolution, official management or voluntary administration of the Customer;
- an application to a court of other steps are taken for the winding up, dissolution, official management, or voluntary administration of the Customer;
- the Customer enters into any arrangement, compromise or composition with or assignment for the benefits of its creditors or any class of them;
- the Customer ceases, suspends or threatens to cease or suspend the conduct of its business or disposes of or threatens to dispose of its assets other than the ordinary course of its business;
- the Customer is, or is deemed under any applicable legislation to be, unable to pay its debts when they fall due (other than as a result of the failure to pay, deed or claim the subject of a good faith dispute) or stops or suspends or threatens to stop or suspend the payment of all or any class of its debts;
- a receiver, manager, administrator or similar officer is appointed to the Customer or any part of its property or a distress, attachment or other execution is levied or enforced;
- or (in the case of a customer who is a natural person) the Customer commits an act of bankruptcy.
1.1 Any Quotation given by the Company is open for acceptance for a period of (30) days. The Company may extend this acceptance period under certain circumstances in writing.
1.2 The prices quoted in any Quotation are exclusive of GST (Goods and Services Tax).
1.3 The Price for Goods shall be as specified by the Company from time to time and may be varied at the Company’s discretion and all prices quoted in any Quotation are subject to alteration at any time within (30) days of such Quotation. Prices quoted in any Quotation are subject to the cost of raw materials used in the manufacturing of the Goods and also to the rates of pay and conditions of employment of employees of the Company remaining unaltered from the date of Quotation. If any rise or fall in one or more of these items shall take place prior to or during manufacture of the Goods the subject of any Quotation, the price quoted for the Goods not then manufactured shall be varied by such amount as the accountant of the Company certifies in writing is the amount of the rise or fall in the costs to the Company of manufacturing the said Goods. Any such certificate shall be conclusive evidence of the matters stated in it.
1.4 Alterations to garments/articles (whether the property of the Customer, of the Company or of any third party) to meet Customers’ requirements and replacement or renewals of such garments/articles shall be paid for by the Customer.
1.5 If the Customer provides the Company with a sample or samples of any Goods and the Customer subsequently places an order with the Company, which the Company accepts, the Company reserves the right to charge for any sample or samples made on behalf and specifically for that Customer.
2.1 All new account Customers which includes new owner(s) of an established and existing business with which the Company has been dealing are required to complete an “Application for Credit Account” form which must be submitted in full to the Company.
2.2 The Customer shall pay all amounts due to the Company by the end of the month following the month in which the goods are invoiced. Interest will be charged @ 10.25%pa for all monies outstanding after this period.
2.3 At the discretion of the Company, from the information supplied by the prospective Customer, the Company will decide on any of the following payment terms by which the Company and the Customer will trade:
(a) Credit Account - with credit limit;
(b) Cash or bank cheque - payable to the Company;
(c) Payment to the Company on receipt of invoice
The Company may at any time, at its sole discretion, refuse to supply or refuse to continue to supply, Goods to the Customer or refuse to allow the Customer credit, whether or not the Company previously allowed the Customer credit, and may at any time, without giving reasons, require from the Customer information, references or security before allowing the Customer credit or continuing to allow the Customer credit.
4.1 The Customer is not entitled to make any complaint or receive any adjustment in price for defects in the Goods where such defects comprise less than 2.5% of the amount of Goods on order.
4.2 The Company may from time to time, by notice in writing to the Customer, vary these Conditions of Sale, and fix, give or vary, any price, amount, rate of interest or direction referred to in these Conditions of Sale as being fixed or given by the Company.
4.3 Any variation to this Agreement must be in writing and signed by both parties PROVIDED THAT a director of the respective party in accordance with this Agreement are hereby authorised by that party to sign on its behalf in respect of any variations to this Agreement.
These Conditions of Sale are the entire contract between the Company and the Customer and, whether or not there is any inconsistency, apply to the entire exclusion of and prevail over any terms and conditions included in any Order placed by the Customer.
6.1 The Customer may inform the Company when deliveries of Goods are required. If the Company fails to deliver the Goods at the times so informed, the Customer shall not be entitled to cancel the contract for those Goods and any other Goods ordered but then undelivered, nor shall the Company be liable for damages in any way attributable to the said failure.
6.2 If the Customer has not taken delivery of the Goods ordered by any date by which the Customer has informed the Company that the delivery of the Goods is required, or by a date six (6) months after the date of the Customers order for the Goods (whichever is earlier) the Company shall be entitled to deliver and the Customer obliged to accept the whole of the Goods ordered which are then undelivered. Payment for those Goods and any outstanding will be enforceable upon delivery of those Goods.
7.1 Title to the Goods remains with the Company until the total amount due in respect of the Goods under clause 5 and all monies owing to the Company on any account whatsoever have been paid (“the debts”)
7.2 The Company has the right to sell the Goods (in its own name and not as agent for the sale) by way of a bona fide sale at full market value and in the ordinary course of its business.
7.3 Until the debts have been paid:
7.3.1 the Customer holds the Goods as fiduciary for the Company.
7.3.2 the Customer must not alter the goods in any way and must keep such Goods properly protected, stored, identified as being goods owned by the Company and readily distinguishable from other Goods owned by the Customer or any other person;
7.3.3 the Customer indemnifies the Company against any claim, action, proceeding, damage, loss, cost, expense or liability incurred or suffered by the Company arising out of the possession, use or disposal of the Goods by the Customer or repossession or attempted repossession by the Company.
7.3.4 any sale of the Goods under subclause 7.2. is effected as fiduciary for the Company and the proceeds for such sale and rights against its Customers arising from such sales are held on trust for the Company. The proceeds of such sale must be held in a separate account, or otherwise clearly identified in the books and the records of the Customer.
7.4.1 the debts are not paid in accordance with these conditions and any other agreement between the Company and the Customer, the Company shall have a lien over all garments/articles (whether the property of the Customer or of a third party) and shall be entitled to retain possession of such garments/articles until payment of all sums owing to the Company by the Customer whether garments/articles, manufacture of Goods or on any other account (whether the same kind as the forgoing or not) whatsoever
7.4.2 the Company receives notice of or reasonably believes that a third person may attempt to levy execution against the Goods;
7.4.3 an insolvency event occurs;
the Company may at any time, without notice to the Customer and without prejudice to any other rights which it may have against the Customer terminate any contract relating to the Goods and the bailment referred to in subclause 7.3, and enter any premises owned or occupied by the Customer where the Company reasonably believes the Goods may be stored, repossess the Goods without being liable for any damaged caused, and subsequently dispose of the Goods at the Company’s discretion.
7.4.4 Termination does not affect any accrued rights the Company may have.
7.5 If the Customer incorporates or mixes the Goods with other Goods (“the products”) such that the Goods are not readily identifiable and removable parts of the product, then until the debts have been paid:
7.5.1 the Customer must store the products separately so as to be readily identifiable;
7.5.2 the Company has title to the products; and
7.5.3 this clause applies as if references to “Goods” were references to products.
7.5.4 In the event that the Goods are sold by the Company following repossession under subclause 7.4, any excess of the sale (less expenses of repossession and sale) over the cost of the Goods as supplied to the Customers will be paid to the Customer after all debts have been paid.
7.6 Upon the delivery the insurable risk in the Goods passes to the Customer.
8.1 The Customer acknowledges that where Goods of a particular style, colour and finish are specified, the Company may not be able to match such style, colour and finish and any minor variations in the total Order placed by the Customer are acceptable and do not give the Customer grounds to reject the Goods or cancel the Agreement on that basis.
8.2 Without limiting the generality of anything else in this Agreement, the Company may in its discretion and without any legal obligation to do so permit Goods, which have been delivered to a Customer to be returned upon terms that the Customer is allowed the credit for the price of the Goods. However the Company warns that it will not exercise its discretion in favour of a Customer unless:
8.2.1 the goods have been previously inspected at the customers premises by a duly authorised representative of the Company who after such inspection agrees to receive them back; or
8.2.2 the goods are returned to the Company’s premises accompanied by a form of advise showing the relevant invoice number, total quantity supplied, quantity rejected and reason for rejection within (14) days of delivery, and the Company, after inspection agrees to receive them back.
8.2.3 the Company must be informed of the Customer’s intention to return goods and any return must be authorised in writing by the Company including nominated freight carrier for such return.
8.3 credit claims shall not be accepted by the Company where the goods are samples
8.4 Goods for return must be in original packaging and be in a saleable condition
8.5 Superseded or deleted range items cannot be returned for credit by the Customer
8.6 No returns on SALE items
8.7 Without prejudice to any other rights of the Company to sue for breach of contract, it is expressly agreed and understood that once the Company has written a production order for goods ordered any cancellation of the order can only be made with the consent in writing of the Company. The Company warns that if such consent is given it shall only be on terms, which indemnify it against loss.
9.1 The Company makes no warranties or representations (other than those warranties and representations implied by statute and which cannot be excluded restricted or modified by the agreement of the parties) in relation to the Goods, their manufacture or use, and the Customer accepts the Goods entirely at his own risk. The Customer further acknowledges and agrees that the Company shall not be liable for any loss or damage whatsoever attributable to any quality or defect of the Goods or the use thereof in any way arising out of any warranty or duty express or implied contractual or statutory or otherwise and not being a warranty implied or duty imposed by statute which cannot be excluded restricted or modified by the agreement of the parties. In relation to any loss or damage whatsoever attributable to any quality or defect of the Goods or the use thereof in any way arising out of the warranty implied or duty imposed by statute which cannot be excluded restricted or modified by the agreement of the parties the liability of the Company shall be limited to the replacement or repair of those particular Goods supplied by the Company the subject of such loss or damage. The Company shall not be liable for any consequential loss or damage, which may be sustained by the Customer in relation to the Goods. The loss or damage referred to in this clause shall include without limiting the foregoing loss or damage caused by the negligence or wilful act or default of the Company or others whether or not such loss or damage is foreseeable or contemplated by the Company. The Customer in accepting the delivery of the Goods and not seeking a credit from them strictly in accordance with the provisions of clause 14 hereof agrees that no warranties or representations (other than those warranties and representations implied by statute and which cannot be excluded restricted or modified by the agreement of the parties) have been made by the Company in relation to the Goods their manufacture or use.
9.2 The Customer releases and indemnifies and agrees to release and indemnify and keep released and indemnified the Company and save harmless the Company from any and all suits actions claims costs demands or proceedings (whether brought by the Customer or any other person or persons, corporation or corporations) in respect of or arising out of anything attributed to any quality or defect of the Goods or the use thereof to the extent that such suits actions claims costs demands or proceeding are in excess of the liability accepted by the Company to replace or repair the particular Goods supplied by the Company the subject of such loss or damage where such liability arises out of warranty implied or duty imposed by statute which cannot be excluded restricted or modified by agreement of the parties.
9.3 The Company shall have no legal liability for any loss or damage to garments/articles (whether the property of the Customer or of any third party, whether arising by negligence or otherwise). The Company shall have no legal liability for any consequential loss arising from such loss or damage to garments/articles. The Customer agrees to indemnify the Company against all claims whatsoever for loss or damage to such garments/articles. It is expressly agreed that the Company is not obliged to insure such garments/articles.
9.4 In the event that the Company has provided or shall provide any information or advice to the Customer in whatsoever form in relation to the manufacture or use of the goods it is agreed by the customer that all such information and advice has been or will be provided by the Company without liability on the part of the Company its servants or agents for any loss or damage howsoever caused including negligence or wilful act or default for any other reason whatsoever and the Customer acknowledges that no reliance is placed by the Customer upon the accuracy or otherwise of such information or advice.
9.5 The Customer agrees with the Company that it will not bring any claim suit action or proceeding against any director, employee or agent for the Company arising from or related to the supply of any Goods by the Company to the Customer or the performance or any work by the Company for the Customer or the tendering of any advise by the Company to the Customer.
10.1 It is a condition of sale of any article or drawing or design or prototype that the copyright, patent rights and design rights contained in the article or in the article to which the design drawing or prototype relates remain the property of the Company, and no transfer of any rights included in the price paid or agreed to be paid whether or not such a price includes a figure for designing or producing the article. All persons are warned that any unauthorised manufacture, use or sale of such article may constitute an infringement of such rights, a breach of contract, and give rise to an action for damages.
10.2 If a Customer shall submit to the Company an order which bears printed terms and conditions, it is expressly agreed that those terms and conditions shall not be part of any contract between the Company and the Customer. The General Terms and Conditions of the Company shall be the ones which apply to any contract between the Company and the Customer. Without limiting the generality of the foregoing, the Customer agrees that if it accepts any Goods from the Company and does not seek a credit from them in strict accordance with clause 8 hereof, it shall be acknowledging and agreeing that the General Terms and Conditions of the Company apply to the sale of those Goods, and that the Company has relied upon the applicability of its General Terms and Conditions in the manner in which it has conducted its business.
10.3 If any of these Terms and Conditions of Sale or any part thereof is found to be invalid or illegal then that term or condition or part thereof shall be deemed deleted and such invalidity or illegality shall not affect any other term or condition in whole or in part.
11.1 The parties shall, without delay and in good faith, attempt to resolve any dispute which arises out of or in connection with this Agreement prior to commencing any court proceedings.
11.2 If any party requires resolution of a dispute it shall do so in accordance with the provisions of this clause and compliance with these provisions in condition precedent to any entitlement to claim relief or remedy whether by way of proceedings in a court of law or otherwise in respect of such disputes, but nothing contained herein prevents or precludes a party from applying at any time from a court for interim injunctive relief.
11.3 If a party requires a resolution of a dispute it shall immediately submit full details of the dispute to the chief executive officer of the other party.
11.4 If the dispute is not resolved through negotiation between the parties either party may submit the dispute for mediation in accordance with and subject to the Australian Commercial Disputes Centre’s Guidelines for Commercial Mediation.
11.5 If after a period of forty-two (42) days from the commencement of the mediation, the parties have not been able to resolve or agree on a process to resolve the dispute, at the written request of either party the dispute will be submitted for arbitration in accordance with the Rules for the Conduct of Commercial Arbitrations of the Institute of Arbitrators Australia or other similar commercial arbitration organisation and generally in accordance with the Commercial Arbitrations Act (NSW).
11.6 The arbitration will be conducted in Sydney, Australia by the Australian Commercial Disputes Centre. Each party shall be entitled to representation at such arbitration by duly qualified legal practitioners.
11.7 The finding of the arbitrator is final and binding on the parties and no appeal lies therefrom except on an issue of law.
11.8 Until a dispute is resolved, whether by agreement between the parties or by arbitration, the parties are obliged to perform their obligations under this Agreement.
11.9 If a dispute arises out of or relates to this Agreement or the breach, termination, validity or subject matter thereof, the parties agree to make every effort to resolve the dispute by mutual negotiation.
11.10 Nothing in this clause prevents any party from commencing legal proceedings at any time against the other party provided that such proceedings do not relieve any party from carrying out their obligations under this clause.
The Company is not liable for any loss incurred by the Customer as a result of the Company’s delay or failure to meet an Order or to observe these Conditions of Sale due to any event beyond the reasonable control of the Company.
The provisions of clauses 2, 6, 7, 8, 9 and 11 of this Agreement do not merge on termination of this Agreement or on payment of the full contract price, and shall continue in full force and effect.
This agreement shall be governed and construed in accordance with the laws in force in New South Wales and the parties hereby agree to submit to the non exclusive jurisdiction of the Courts of that State.
Any notice demand or other document under or related tot his Agreement shall be in writing and shall be sufficiently served if delivered personally or sent by facsimile or prepaid ordinary mail addressed to the party to be served at the address of such party specified in the Schedule or at such other address that may from time to time be notified in writing and such notice, demand or other document shall be deemed to have been delivered at the time of delivery or, if services is effected in any other manner set out above, at the time when it would in the ordinary course be delivered.
Each provision of this Agreement is severable and in the event that any provision is declared invalid or unenforceable for any reason then each and every other provision shall nevertheless remain in full force and effect.
This Agreement may be executed in as many counterparts as may be necessary or convenient and all such counterparts taken together constitute one and the same instrument.
Each party will bare its own legal fees associated with the preparation, negotiation, engrossment and execution of this Agreement.
The failure of a party at any time to enforce or assist upon the strict observance of any provision of this Agreement does not operate and may not be construed as a waiver of any subsequent breach of this Agreement.
Each party must sign all documents and do all such acts and things as may be reasonably necessary or desirable in order to give effect to the provisions of this Agreement.