5.09/77 DUNNING AVE ROSEBERY NSW 2018
Ph: 02 9700 7977
1. In these Trading Terms and Conditions, the following words have the following meanings:
"Buyer" means the purchaser of the goods and the customer of the Seller, and includes any guarantor under the Credit Application Form;
“Confidential Information” means Business or commercial information, personal information including but not limited to profit margins, cost of production and pricing data, sales statistics, customers and supplier lists, sources of supply, market projections, information about customer requirements, negotiated prices paid by customers, and details of promotional strategies and expansion plans.
“Recipient” means a party to these Trading Terms and Conditions to whom confidential information is disclosed.
"Goods" means the products and, if any, services specified in the Purchase Order, Credit Application Form or Quote issued by the Seller;
“GST” means Goods and Services Tax, and applies to all transactions at the rate prevailing on the date of dispatch of goods;
“Initial Orders” means the first orders the Buyer makes to the Seller;
“Intellectual Property Rights" includes rights pertaining to copyright, trade mark, design, patent, semiconductor or circuit layout rights and confidentiality;
“Overdue Account Maintenance Fee” means a monthly accounting and management fee of two (2) per cent of the overdue statement amount;
“Party” means the either the Seller or the Purchaser as the context dictates;
“Security Interest” means any interest registered on the Personal Property Security Register pursuant to the Personal Property Security Act 2009 (Cth);
“Seller” means Velo-Vita (ACN 055 490 652) and TMO Sports Pty Limited (ACN 075 986 604), jointly and severally. Customers trading with Velo-Vita Pty Ltd under a credit account arrangement who also purchase goods from TMO Sports Pty Ltd, and vice versa, enter automatically the same T’s & C’s and Credit Account Conditions for both companies. If monies are owed the Seller, the debt(s) can be consolidated into a single account of either of the two companies for the purpose of debt recovery;
“Settlement Discount” means the discount that may apply from time to time for the settlement of an invoice within a nominated period after the issue of that invoice. The rate of discount is subject to change and is made available from the Seller’s accounts department;
“Third Party” means any person who is not the Buyer or the Seller;
“Trading Terms” means payment terms for the line of credit extended to the buyer. These terms require payment strictly within thirty (30) days from statement date; and
“Trading Terms and Conditions (T’s & C’s)” mean these terms and conditions which shall form part of any Purchaser Order, Credit Application or Quote issued by the Seller.
2. The Buyer waives any claim for shortage of any Goods delivered if a claim in respect for short delivery has not been lodged with the Seller within seven (7) days from the date of receipt of Goods by the Buyer.
3. All specifications, mock ups, drawings, and particulars of weights and dimensions submitted by the Seller to the Buyer are approximate only and any deviation from any of these things does not vitiate any contract with the Seller or form grounds for any claim against the Seller.
(a) The descriptions, illustrations and performances contained in catalogues, price lists and other advertising matter do not form part of the contract of sale of the Goods or of the description applied to the Goods.
4. The delivery times made known to the Buyer are estimates only and the Seller is not liable for late delivery or non-delivery, including Third Parties claiming through the Buyer.
(a) The Seller may at its option deliver the Goods to the Buyer in any number of instalments unless there is an endorsement overleaf to the effect that the Buyer will not take delivery by instalments.
(b) If the Seller delivers any of the Goods by instalments, and any one of those instalments is defective for any reason:
(i) It is not a repudiation of these T’s & C’s; and
(ii) The defective instalment is a severable breach that gives rise only to a claim for compensation with respect to that instalment only.
5. To the extent permitted by Law, the Seller is not responsible to the Buyer or any person claiming through the Buyer for any loss or damage to Goods in transit caused by any event of any kind by any person (whether or not the Seller is legally responsible for the person who caused or contributed to that loss or damage).
(a) The Seller must provide the Buyer with such assistance as may be necessary to press claims on carriers but only if the Buyer:
(i) Notifies the Seller and the carriers in writing immediately after loss or damage is discovered on receipt of Goods; and
(ii) Lodges a claim for compensation with the carrier within three (3) days of the date of receipt of the Goods.
6. The Buyer shall at all times indemnify and hold harmless the Seller and its officers, employees and agents (“those indemnified”) from and against any loss suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused in part or in full by:
(a) A breach by the Buyer of its obligations under these T’s & C’s; or
(b) Any wilful, unlawful or negligent act or omission of the Buyer.
7. Subject to subclause (a), any condition or warranty which would otherwise be implied in these T’s & C’s under common law is hereby excluded.
(a) the liability of the Seller for any breach of any condition or warranty implied by legislation shall be limited, at the option of the Seller, to one or more of the following:
(i) If the breach relates to goods:
1. the replacement of the goods or the supply of equivalent goods;
2. the repair of such goods;
3. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
4. the payment of the cost of having the goods repaired; and
(ii) if the breach relates to services:
1. the supplying of the services again; or
2. the payment of the cost of having the service supplied again.
8. Unless otherwise stated all prices quoted by Seller are net, exclusive of Goods and Services Tax (GST).
(a) Prices quoted are those ruling at the date of issue of quotation and are based on rates of freight, insurance, customs duties, exchange, shipping expenses, sorting and stacking charges, cartage, rate of water, cost of materials and other charges affecting the cost of production ruling on the date is made; and
(b) Prices offered by the Seller are subject to change at any time without notification.
9. All Initial Orders shall be subject to Cash on Delivery terms, being payment by cheque, direct deposit or credit card before delivery of goods.
10. The purchase price in relation to Goods is payable net and payment of the price of the Goods plus GST must be made on or before the thirtieth (30th) day after the statement is issued in accordance with the Trading Terms.
(a) All accounts exceeding the Seller’s Trading Terms will incur an Overdue Account Maintenance Fee.
(b) Whilst the Goods remain the property of the Seller, the Buyer agrees with the Seller that:
(i) The Buyer has no right or claim to any interest in the Goods to secure any liquidated or unliquidated debt or obligation the Seller owes to the Buyer, including third parties claiming through the Buyer;
(ii) The Buyer cannot claim any lien over the Goods, including third parties claiming through the Buyer;
(iii) The Buyer will not create any absolute or defeasible interest in the Goods in relation to any third party except as may be authorised by the Seller;
(c) The Seller and the Buyer agree that:
(i) The property of the Seller in the Goods remains with the Seller until the Seller has been paid in full for the Goods under all individual contracts for the supply of the Goods between the Seller and the Buyer;
(ii) The Buyer must not allow any person to have or acquire any security interest in the Goods;
(d) The Buyer must insure the Goods for their full insurable or replacement value (whichever is the higher) with an insurer licensed or authorised to conduct the business of insurance in the place where the Buyer carries on business;
(i) The Buyer must not remove, deface or obliterate any identifying plate, mark or number on any of the Goods.
(ii) The buyer must ensure that unpaid goods remain in condition fit for sale.
(e) If the Buyer supplies any of the Goods to any person before all moneys payable by the Buyer have been paid to the Seller (and have not been claimed or clawed-back by any person standing in the place of or representing the Buyer), the Buyer agrees that:
(i) It holds the proceeds of re-supply of the Goods on trust for and as agent for the Seller immediately when they are receivable or are received;
(ii) It must either pay the amount of the proceeds of re-supply to the Seller immediately when they are received or pay those proceeds into an account with a bank or a financial institution or deposit-taking institution as trustee for the Seller;
(iii) Any accessory or item which accedes to any of the Goods by an act of the Buyer or of any person at the direction or request of the Buyer becomes and remains the property of the Seller until the Seller is paid.
(iv) If the Buyer fails to pay for the Goods within the period of credit (if any) extended by the Seller, the Seller may recover possession of the Goods at any site owned, possessed or controlled by the Buyer and the Buyer agrees that the Seller has an irrevocable licence to do so; and
(v) If the Buyer fails to pay for the Goods within the period of credit (if any) extended by the Seller then the Buyer grants the Seller the right to recover the equivalent value of the Goods in money or any other value as approved by the Seller from time to time.
11. A Settlement Discount may apply to the settlement of an account within a particular nominated period. Payment received outside these terms will not receive the settlement discount. Settlement discounts apply only if all accounts are within the Trading Terms.
12. All orders are accepted on the basis that once goods have been delivered to the Buyer, or agent acting for the Buyer, they become the responsibility of the Buyer. Goods delivered to the Buyer shall remain the property of the Seller as legal and equitable owner until the full price for those goods has been paid to the Seller, as well as any other payments due to the Seller whether under this contract or in respect of any goods supplied to the Buyer by the Seller. This retention of title shall be enforced through registration of the Security Interest. The Seller reserves the right to register a Security Interest in:
(a) all the goods supplied to the Buyer by the Seller; and
(b) all the present and after acquired goods supplied to the Buyer by any Third Party to secure any debts owed to the Seller.
13. This Security Interest will be relied upon where:
(a) The Buyer becomes insolvent, any order is made or resolution passed for the winding up of the Buyer’s business or a receiver (and manager) is appointed over all or any part of the assets of the Buyer;
(b) The Buyer commits an act of bankruptcy or makes an assignment for the benefit of creditors;
(c) The Buyer fails to pay any amount owed to the Seller when they fall due; and
(d) Where the T’s & C’s have been breached by the Buyer.
14. The Seller may, at its discretion register its Security Interest on any other suitable register that may exist.
15. Where the Seller is entitled to register a Security Interest:
(a) The Buyer must provide the Seller with assistance as may be required for the Seller to register its interest in the Goods;
(b) The Buyer must not register, or permit the registration of any Security Interest in the Goods in favour of a third party without the Seller’s express written consent; and
(c) The costs for registering the interest in the Goods may be shared equally between the parties.
16. Any property of the Buyer under the Seller's possession, custody or control is completely at the Buyer's risk.
17. If the Buyer is a company, the officer or persons whose signatures appear as signing on behalf of the company jointly and severally guarantee all the obligations of the Buyer under the T’s & C’s and associated contractual documentation. This guarantee and indemnity is given by each guarantor as principal and is not discharged or released by any release or variation of the T’s & C’s.
18. In order for the Seller to issue a credit to the Buyer, all invoice numbers and dates must be quoted on all goods returned.
19. The Seller shall not be liable for any freight charges incurred by the Buyer on goods returned.
20. No order may be cancelled or goods returned except with the Seller’s consent in writing and on terms which will indemnify the Seller against all losses.
21. The Recipient, its employees, directors and agents must keep the Confidential Information secret and confidential and ensure that unauthorised persons do not have access to the Confidential Information. The Recipient, its employees, directors and agents must not disclose to any unauthorised person or make known in any manner any part of the Confidential Information.
22. The Recipient acknowledges that all of the Confidential Information disclosed to it by the Seller shall at all times remain the absolute property of the Seller. By accessing the Seller’s website, the recipient agrees to keep all materials confidential. The Recipient agrees not to disseminate or otherwise provide any confidential information obtained from the Seller’s website to any person not currently an Authorised User as defined under these trading Terms and Conditions. Prohibited dissemination includes, but is not limited to, publishing or posting content to other websites. Any non-confidential use must be authorised in writing and in advance by the Seller.
23. The Recipient is provided access to the Seller’s website by way of a username and password. In the event of the Recipient providing any of its employees, directors or agents with access to the username or password as an authorised person to gain access to the Seller’s website, the Recipient remains responsible for keeping the Seller’s confidential information secret and confidential. On the departure of any such authorised person from the services of the Recipient, the Recipient will change the user name and password for the Seller’s website to ensure the preservation of the Seller’s confidential information.
24. If the Recipient learns or believes that;
(a) any unauthorised person has come into possession of any part of the Confidential Information;
(b) any unauthorised person is doing anything in contravention of rights that attach to and arise from the Confidential Information, the Recipient must immediately report full particulars to the Seller, and must provide to the Seller all reasonable assistance and information it may request with respect to that information.
25. The copyright in the Seller’s website is owned by Seller, its agents and/or professional advisors. No part of parts hereof may be reproduced, distributed, republished, displayed, broadcast, hyperlinked or transmitted in any manner or by any means or stored in an information retrieval system without the prior written permission of the Seller. This permission terminates automatically if you breach any of these terms or conditions. Upon termination, you will immediately destroy any downloaded and printed materials. You also may not, without Seller's permission, "mirror" any material contained on this website on any other server
26. The Seller shall under no circumstances be liable for any loss, damages or expense including without limitation, direct, indirect, special, or consequential damage, or economic loss arising from or in connection with:
(a) Any access, use or the inability to access or use this website, or reliance on the contents of this website;
(b) any system, server or connection failure, error, omission, interruption, delay in transmission, or computer virus;
(c) any use of or access to any other website linked to this website;
(d) any product, service or information of any merchant or service provider, even if the Seller or its agents or employees are advised of the possibility of such damages, losses and/or expenses.
27. Any hyperlinks to any other websites are not an endorsement or verification of such websites and such websites should only be accessed at the user's own risks. This exclusion clause shall take effect to the fullest extent permitted by law.
28. The Seller will hold liable the Recipient for any loss, damages or expense resulting from a breach of the terms and conditions relating to the use of confidential information by the Recipient.
29. Without limiting the generality of any other clause in these T’s & C’s, the Seller may terminate these T’s & C’s immediately by notice in writing if:
(a) the Buyer is in breach of any term of these T’s & C’s and such breach is not remedied within thirty (30) days of written notice by the Seller; or
(b) the Buyer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration; or if the Buyer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving; or if the Buyer ceases or threatens to cease conducting its business in the normal manner.
(c) If notice is given to the Buyer pursuant to subclause (a), the Seller may, in addition to terminating the T’s & C’s, repossess the Goods if payment is not complete; retain any moneys paid; charge a reasonable sum for work performed in respect of which work or sum has been previously charged and any legal costs; be regarded as discharged from any further obligations under this T’s & C’s; and pursue any additional or alternative remedies provided by law.
30. No right under these T’s & C’s shall be deemed to be waived except by notice in writing signed by each Party.
31. The Seller reserves the right to change these T’s & C’s, and will provide thirty (30) days’ notice of any proposed amendment. Any amendment, extension or renewal of these terms will be considered at the Seller’s discretion or on an annual basis.
32. These T’s & C’s will be governed by and construed according to the law of the State of New South Wales.
33. The parties submit to the non-exclusive jurisdiction of the courts in the New South Wales and their appellate jurisdiction in respect of any proceedings in connection with these T’s & C’s.