GENERAL TERMS AND CONDITIONS OF SALE
In these Conditions unless the context requires otherwise any reference to the singular shall include the plural and vice versa and:
“Buyer” means the person, firm or company that has requested any Work;
“Company” means Tsunami Sport Australia Pty Ltd;
“Conditions” means the standard terms and conditions of sale set out herein;
“Contract” means an agreed price, the Job Sheet and these Conditions;
“Corporations Act” means the Corporations Act 2001 (Cth);
“Goods” means any goods supplied or to be supplied by the Company;
“Group” means Tsunami Sport Limited and/or any and all subsidiaries thereof from time to time (“subsidiary” being construed in accordance with s 46 of the Corporations Act. Insofar as any obligation under any Contract is undertaken by any subsidiary, that subsidiary shall be entitled to rely upon these Conditions and take the benefit thereof as if they were the Company.)
“Insolvency” means in relation to an individual, partnership or company the appointment of any trustee, receiver, administrator or liquidator (as relevant) pursuant to the Corporations Act or otherwise howsoever it may occur, including, but not limited to, the occurrence or sufferance of anything equivalent under any jurisdiction other than the State of Queensland, Australiaor the calling of any meeting or the passing of any resolution whether formal or informal for the purpose of proposing the taking any of the foregoing steps and “Insolvent” shall be construed accordingly;
“IPRs” means any intellectual property rights of any nature including without limit any and all inventions, patents, utility models, design rights, copyright, know how, trade secrets, confidential information, trade marks, service marks, trade names and goodwill;
“Job Sheet” means the document specifying the Work;
“Sale of Goods Act” means the Sale of Goods Act 1896 (Qld);
“Services” means any services supplied or to be supplied by the Company;
“Work” means the supply of Goods and/or Services.
a) All quotations and offers are made and Contracts are accepted subject to and shall be deemed to incorporate these Conditions and they shall apply to all Contracts to the exclusion of any other terms and conditions including without limit those which the Buyer purports to apply under any order. Variations to the terms of any Contract will only be effective if agreed in writing and signed by a duly authorised officer of the Company.
b) The Company may modify the specification of Goods or Services without notice provided that such modification does not materially affect the Services or the performance of the Goods. The Contract is not a contract for sale of goods by description. All descriptive matter, specifications and advertising issued by the Company is solely aimed at giving an approximate idea of the Work described in them and they do not form part of the Contract.
c) Any Contract may only be cancelled by the Buyer with the prior written consent of the Company and on terms that the Buyer shall indemnify the Company in full against all losses (including loss of profit), costs, damages, charges and expenses incurred (directly or indirectly) by the Company as a result of such cancellation.
3. Deliveries and Non-Delivery
a) Delivery times/ dates named/accepted by the Company are given in good faith but are an estimate only. Time of delivery of Goods or provision of Services is not of the essence. Subject to Condition 9.a), the Company shall not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by failure (for any reason) to meet the delivery time/date stated/agreed (even if caused by the Company’s own negligence), further, the Buyer shall have no right to cancel the Contract in the event of such a failure.
b) Services will be provided and Goods delivered as stated in the Contract. Delivery shall be deemed to take place either: (i) when the Goods arrive at the place stated in the Contract or at such place as is agreed by the Company; or (ii) upon delivery to a carrier for the purpose of transmission to the Buyer (whichever is the earlier). Sections 34(2) and 34(2A) of the Sale of Goods Actshall not apply.
c) The Company shall make such arrangements for carriage of the Goods and their insurance during carriage as it thinks appropriate. Goods will be packed so as to adequately protect against damage in normal conditions of transit of usual duration. Where, at the Buyer’s request, Goods are forwarded by any means involving a higher carriage charge than would be incurred by the Company’s usual means of carriage, the additional cost shall be paid by the Buyer in addition to and at the same time as the agreed price.
d) The Company may deliver Goods in instalments and perform Services in sections in any sequence. Deliveries of further instalments and performance of further sections may be withheld until the Goods and/or Services comprised in earlier instalments and/or sections have been paid for in full. Default by the Company, howsoever caused, in respect of one or more instalments and/or sections shall not entitle the Buyer to terminate the relevant Contract as a whole.
e) If the Buyer fails or refuses to accept delivery of any Goods when they are ready for delivery in accordance with the Contract; or the Company agrees (at its sole discretion) to postpone delivery of the Goods at the request of the Buyer; or the Buyer fails to provide or obtain any instructions consents or authorisations required to enable the Goods to be delivered on the due date; then risk in the Goods shall pass to the Buyer, delivery of the Goods shall be deemed to have taken place and the Company may store or arrange for storage of such Goods and charge the Buyer for all related costs and expenses (including storage and insurance).
f) If the Company agrees to permit the Buyer to collect the Goods from the Company’s place of business then delivery shall be deemed to take place when the Company notifies the Buyer that the Goods are ready for collection and unless otherwise agreed in writing by the Company the Buyer will collect the Goods within 7 days of such notice.
g) Upon delivery to the Buyer, all Goods should be examined. The Company shall not be liable for any shortages in, or non-delivery of, Goods unless the same is notified by the Buyer to the Company (together with all specific details) in writing within 48 hours of the actual or deemed date of delivery (as relevant). Subject to such notice being provided, the Company shall, if it is satisfied that any Goods have not been delivered and the cause thereof being beyond the reasonable control of the Company, at its sole discretion, either arrange for delivery as soon as reasonably possible or give credit to the Buyer for such Goods. Shortages in, or non-delivery of some or part of the Goods shall not effect the Contract in respect of the other or other parts of the Goods. The right of rejection under Section 32(1) of the Sale of Goods Act shall not apply.
4. Force Majeure
In the event that the Company is prevented or delayed in or from carrying out its obligations under the Contract as a result of any cause beyond its reasonable control such as (but not limited to): acts of God; governmental intervention or restriction, import or export regulations; war; riots; strikes or trade disputes (including by and with the Company’s own employees); power failure; inadequate performance of, failure of or incorrect processing by computer systems; fire; flood; default of suppliers or sub-contractors, or breakdown of plant, machinery or vehicles then the Company shall be relieved of its obligations and liabilities under the Contract for as long as such fulfilment is prevented.
a) Risk of damage to or loss of the Goods shall pass to the Buyer upon delivery or at the notified time for delivery if the Buyer fails for whatever reason to take delivery of the Goods at the notified time.
b) Title to the Goods (both legal and equitable) shall remain with the Company until full payment with cleared funds of all monies due from the Buyer to the Company under the Contract has been made, or title is properly vested in some other person by the operation of any statute.
c) Until title to the Goods passes, the Buyer shall hold the Goods as the Company’s bailee and must store the Goods (at no cost to the Company) such that they are easily identifiable as the property of the Company and must not destroy or deface any identifying marks on the Goods or their packaging; and must keep the Goods insured on the Company’s behalf for the full price of the Goods against “all risks” to the reasonable satisfaction of the Company and produce the policy of insurance to the Company upon request and must hold all proceeds of such insurance on trust for the Company and shall not mingle them with any other money nor pay the proceeds into an overdrawn bank account.
d) Until title to the Goods passes, the Buyer shall not be entitled to re-sell, use or otherwise dispose of the Goods without the written consent of the Company.
e) Once payment becomes due, the Company may, whilst still the owner of the Goods (without prejudice to its other rights) demand the immediate return of the Goods at any time and the Buyer must immediately comply with (and bear the cost of) such demand. If the Buyer fails to return such Goods, the Company or its successors in title, and their respective employees and agents, may enter the Buyer’s premises (with or without vehicles) during normal business hours to remove the Goods (the cost of which shall be borne by the Buyer) and/or may sell or otherwise deal with the Goods.
6. Price and taxes
a) Unless otherwise agreed in writing by the Company prices set out in any of the Company’s price lists, quotations and acknowledgement of order are exclusive of any value added, purchase or other taxes which shall be payable in addition to the price when the price is due.
a) The Company may invoice the Buyer for the Goods and/or the Services at any time after entering into the Contract.
b) Unless otherwise agreed in writing, the Buyer shall pay 50% of the agreedprice at the time of entering into the Contract and the balance (50%) within 7 days of delivery (or deemed delivery under clause 3 hereof) . If the first 50% is not paid, the Company has no obligation to commence production of the Goods or supply the Services.
d) Payment shall only be deemed received by the Company from the Buyer upon receipt by the Company of cleared funds net of any bank charges. Payment shall be made in full without any deduction, set off or abatement on any grounds. The Company may appropriate any payment made by the Buyer to any outstanding invoice. The Company may bring an action for the price of the Goods even though the property in them may not have passed to the Buyer.
e) Time for payment of the agreed price (including, without limit, any costs or charges payable pursuant to Condition 3.(b)) shall be of the essence. The Buyer shall indemnify the Company against all expenses and legal costs incurred by the Company in recovering overdue amounts. Interest shall be payable by the Buyer on overdue amounts (before as well as after judgement) at the Federal Court of Australia harmonised judgement interest rates for Australian dollars from time to time on the outstanding amount until the agreedprice and/or such costs and/or charges are paid in full.
a) The Buyer is relying on its own skill and judgement in relation to the Work irrespective of any knowledge of the Company or its servants, agents or employees or as to the purpose for which the Work is supplied or its suitability.
b) Subject to Conditions 8.a) and 8.c) the Company warrants that all Goods shall upon delivery be of satisfactory quality and be reasonably fit for any purpose for which they are commonly supplied and that all Services shall be carried out with reasonable skill and care.
c) The warranty given in Condition 8.b) will not apply:
- where the defect complained of arises from any drawing, design, specification or IPR supplied by the Buyer or arises from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing or whether relating without limit to the fabrication (including, without limit, the quality or performance of fabrics), operation, use or maintenance of the Goods), or misuse or alteration or repair of the Goods without the Company’s approval;
- if the Company or its agents is not permitted to safely inspect the Work;
- if the agreed price for the Goods or Services has not been paid in full by the due date for payment;
- to any parts, materials or equipment not manufactured by the Company, in respect of which the Buyer shall only be entitled to the benefit of any warranty or guarantee as is given by the manufacturer to the Company; or
- to any Goods which have been designated “seconds”, “clearings” or“specials“.
d) The obligations of the Company under the Contract are limited such that in the event of a breach by the Company of the warranty in Condition 8.b) or any defect in any Goods or Services the Company shall only be obliged (and shall have no further liability in contract, negligence or otherwise for any defect in quality of the Goods and/or Services or fitness for purpose of the Goods) at its option to credit the price (if already paid) attributable to the Goods or Services provided that such Goods are returned to the Company or its agent in their delivered state at the Buyer’s expense if so requested by the Company.
9. Limitation of Liability
a) Nothing in these Conditions shall exclude or limit the liability of the Company for death or personal injury caused by the Company’s negligence.
b) The Company shall not be liable to the Buyer in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever and whatever the cause thereof, (i) for any economic loss of any kind whatsoever, including without limit loss of profit, business contracts, revenues or anticipated savings, or (ii) for damage to the Buyer’s reputation or goodwill, or (iii) for any loss resulting from any claim made by any third party, or (iv) for any special, indirect or consequential loss or damage of any nature whatsoever.
c) Without prejudice to Condition 8.d), 9.a) and 9.b) the Company’s liability in contract, tort (including negligence or breach of statutory duty) or otherwise arising by reason of or in connection with the Contract shall be limited to the greater of the agreed price or the amount received by the Company for the claim under its insurance policy covering such risks, provided always that nothing herein shall oblige the Company to obtain any insurance or claim upon any insurance which it holds. The Buyer acknowledges that delay in notifying any claim may prevent the Company recovering under any such policy.
d) The Buyer warrants that the use by the Company and/or any person in the Group of any IPRs, designs, specifications, drawings or other materials or information of any nature provided to the Company and/or any person in the Group by the Buyer pursuant to the Contract shall not infringe any third party’s IPRs. If any claim is brought or threatened against the Company and/or any person in the Group in respect of such an infringement the Company, and/or any person in the Group, (as the case may be) shall be entitled to suspend carrying out further work for the Buyer, and the Buyer shall indemnify the Company (and/or, as the case may be, any person in the Group) against all actions, claims, costs, demands, expenses and liabilities of whatsoever nature suffered or incurred by the Company and/or any person in the Group as a result of any such claim or threatened claim brought against the Company and/or any person in the Group.
e) Nothing in these Conditions shall be construed as a representation or warranty by the Company that the design, manufacture, use or sale of the Goods or the provisions of the Services is not an infringement of any third party’s IPRs.
10. Intellectual Property Rights and Confidentiality
a) The Buyer shall not, under any circumstances acquire any right in or to any of the IPRs (including, without limitation, copyright) subsisting in, resulting from or relating to the Work, or any documents, drawings, specifications and/or patterns relating thereto either (a) supplied by the Company or any person in the Group to the Buyer in connection with the Work, or (b) resulting from the Work, unless otherwise expressly agreed by the Company in writing. If the Buyer shall in any way acquire any such rights then the Buyer shall immediately inform the Company and shall forthwith take such steps as may be required by the Company to assign such rights or vest such title in the Company.
b) The Company and any person in the Group shall have the right to apply any trade marks, trade names and/or service marks to the Goods. The Buyer acknowledges that no rights are granted to the Buyer by the use by the Buyer of such trade marks, trade names and/or service marks. The Buyer shall not deface, remove or obliterate any trade marks, trade names or logos applied by the Company and/or any person in the Group on or in relation to the Goods.
c) The Buyer shall keep confidential and not use, without the prior written consent of the Company, all or any information including without limit, those (as referred to in Condition 10.a)) supplied by the Company to the Buyer or disclosed to or obtained by the Buyer pursuant to or as a result of the Contract, and shall not divulge the same to any third party except to the extent that any such information is or becomes public through no fault of the Buyer, or disclosure of the same is required by law or by any other governmental or other regulatory body.
Without prejudice to any of its other rights the Company may immediately terminate the Contract and demand payment of any amount due or accruing to the Company whether under the Contract or otherwise, re-sell the Goods and/or withhold or cancel any deliveries if any of the following occurs or is likely to occur:
a) the Buyer is in breach of any of its obligations under the Contract which, if capable of remedy, the Buyer has not remedied within 30 days of receiving written notice from the Company; or
b) the Buyer is or becomes Insolvent or the Buyer suffers a distress or execution or other legal process to be levied or enforced or sued upon or against any part of the property, assets or revenue of the Buyer which is not discharged or stayed within 7 days.
a) Any temporary waiver or indulgence by the Company in exercise of its rights will not restrict it exercising any of its rights at a subsequent date.
b) The Buyer shall not be entitled to assign or sub-contract any of its rights or obligations under the Contract, without the prior written consent of the Company. The Company may assign, license or sub-contract all or any part of its rights or obligation under the Contract without needing the Buyer’s consent.
c) Unless otherwise agreed in writing, these Conditions, the agreed price and Job Sheet constitute the whole agreement between the Company and the Buyer. All other understandings, agreements, warranties, conditions, terms or representations, whether express or implied, statutory or otherwise, are excluded to the fullest extent permitted by law. The Buyer acknowledges that it has not been induced to enter into the Contract by any pre-contract representation of the Company, the Group or any of their servants or agents.
d) The Contract shall be construed in accordance with and governed in all aspects by Queensland law and the Buyer submits to the exclusive jurisdiction of the Queensland Courts.
e) If any provision of the Contract is found to be invalid, unenforceable, illegal, or incapable of being performed, the remainder of the provisions of the Contract shall nevertheless remain in force. If such provision would be valid, enforceable, legal or capable of being performed if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
13. Export Sales
Notwithstanding any other provision of the Contract, where Goods are sold outside Queensland:
a) the Company shall be under no obligation to give notice under Section 34(3) of the Sale of Goods Act;
b) Notwithstanding Condition 9.a) all liabilities for injury or death arising directly from the use of the Goods are expressly excluded;
c) Unless otherwise agreed in writing, delivery of Goods shall be to the nominated delivery address; and
d) The Buyer shall be responsible for complying with any legislation or regulations governing the import and export of the Goods to and fromQueensland and governing the importation of the Goods into the country of destination and for the payment of any duties or taxes on them.