T&Cs - Teamwear

1. Interpretation

1.1       In these conditions:

(a)        “ISC” shall mean “ISC Sport Pty Limited (ABN 21 109 731 375)”;

(b)        the word “person” shall be deemed to include a corporation, words importing the singular or plural number shall be deemed to include the plural or singular number respectively and words importing the masculine gender only shall include the feminine or neuter gender as the case may require;

(c)        “Goods” shall mean Goods agreed to be supplied or supplied by ISC to the Buyer;

(d)        “Buyer” shall mean a person who purchases the Goods or a person to whom a quotation for supply of the Goods is submitted.

 

2. Acquisition for Re-supply

2.1       The Buyer, if a retail customer, warrants and agrees that they are acquiring the Goods for the purpose of re-supply or for the purpose of using them up or transforming them in trade or commerce in the course of a process of production or manufacture or of repairing or treating other goods or fixtures on land. Parties agree (whether or not a retail customer) that the Goods are of a kind not ordinarily acquired by the Buyer for personal, domestic or household use or consumption.

 

3. Special/Custom Orders

3.1       Goods manufactured that include sponsors or layouts or other designs and specifications that are customised for the Buyer are not returnable to ISC under any circumstances (unless those Good are defective) and the Buyer agrees to indemnify and to keep indemnified ISC from and against all costs, losses and damages claimed in relation to any design defect in such Goods and any third party claim that the Goods as manufactured infringe any patent, registered design, copyright, trademark or common law intellectual property right of any person.

 

4. Quotations

4.1       All quotations for the supply of Goods, however made, are not offers and are provided only as indicative statements of current price levels.

 

5. Representations

5.1       All information contained within our sales documentation, and  representations made by our staff, are for general guidance purposes only. The Buyer is relying on its own skill and judgement in relation to the purchase of the Goods.

 

6. Prices

6.1       Except where a fixed price or a price fluctuation formula is stated in a form of acceptance of order, all prices are subject to change by ISC without notice and shall be those ruling at the date of dispatch.  Where a firm price is stated in the form of acceptance of order then, unless otherwise stated, the price therein shall be binding for thirty (30) days from the date of the acceptance and, thereafter, ISC reserves the right to vary the price as it determines at any time prior to delivery of the Goods pursuant to Clause 10.  All quoted and list prices are excluding delivery and excluding GST (which shall be added/included at time of sale).

 

7. Acceptance of Orders

7.1       Orders for Goods shall only be deemed to have been accepted by ISC if:-

(a)        accepted in writing by ISC; or

(b)        delivery of the Goods in accordance with Clause 10 hereof is made to the Buyer.

 

8. Terms of Payment

8.1       Unless otherwise stated in ISC’s acceptance of order, Terms of Payment for Goods are 50% of the price cash at the time the order is placed and, where credit is not given to the Buyer, payment shall be made at the time that the order is placed and the remaining 50% payable prior to delivery. Manufacture will not commence until the first 50% payment is received in clear funds  All payments shall be made in Australian currency.  Where ISC has agreed to give the Buyer credit, payment shall, unless otherwise stated in its acceptance or order, be made by the Buyer within thirty (30 days of the date of delivery of the Goods.  ISC may at any time without notice withdraw any credit facility and require payment upon an order being placed.  All approvals to the granting of credit shall be in writing signed by a Director of ISC or their duly authorised representative and, unless approved in such manner, credit shall not be deemed to have been given to a Buyer for the purposes hereof.

8.2       If a payment due by the Buyer is not made within thirty (30) days of the date due for payment, ISC shall without further notice to the Buyer be entitled to charge interest on the monies so due on and from the expiration of the thirty (30) day as aforesaid at the rate of 12% per annum.  Time is of the essence so far as payment of monies owing by the Buyer to ISC is concerned.

8.3       Preferred payment is through EFT although cheques and credit cards are also accepted. A 1.25% fee will be levied on payments via Visa and Mastercard credit cards and 2.5% on American Express.

 

9. Ownership and Risk

9.1       The ownership of Goods supplied to the Buyer shall not pass to the Buyer and shall remain with ISC until the later of:

(a)        unconditional payment in full to ISC for those Goods; and

(b)        unconditional payment in full of all other monies, fees or charges owing or unpaid by the Buyer to ISC on any account including in respect of Goods previously or subsequently supplied to the Buyer.

9.2       The Buyer will hold the Goods as a fiduciary and as bailee for ISC and will be responsible for any loss, damage or conversion of ISC Goods.

9.3       The Goods shall be stored by the Buyer in a manner as to show clearly that they remain ISC property until such time as the Goods have been paid for in full. ISC may enter onto the Buyer’s premises to inspect the Goods or inspect the Buyer’s books or records regarding the Goods at any time.

9.4       The Buyer may sell the Goods in the ordinary course of the Buyer’s business for full market value at arm’s length to a bona fide purchaser for value without notice of this clause provided that:

(a)        The Buyer must hold all monies that they  receive for the sale of the Goods (Proceed) as bailee, fiduciary agent and trustee for ISC and not by way of security. ISC have the right to trace and claim Proceeds. Receipt by the Buyer of payment shall be treated as conclusive evidence that the Buyer has received Proceeds; and

(b)        The Buyer accounts to ISC for all Proceeds which must be kept in a separate account on trust for ISC for that purpose until accounted for to ISC.

9.5       For the purposes of identification of different shipments of Goods purchased from ISC and receipt of Proceeds the Buyer agrees that the principle of “Last in, First Out” shall be applied to any items that cannot be distinguished.

9.6       The Buyer shall ensure that the Goods are not and will not be subject to any security interest, including a lien, granted or created in favour of any third party (whether under contract, statue or common law) without ISC prior written consent. Without limiting ISC rights, if the Buyer becomes aware of a third party’s interest in or relating to a security interest, including a lien or any other interest, whether or not registered in the Personal Property Security Register in respect of the Goods, the Buyer shall notify ISC immediately in writing and provide ISC with all relevant details relating to the security interest, including the third party’s full name and contact details, the nature of the security interest and the Goods subject to the security interest.

9.7       Where the Buyer sells those Goods the Buyer will sell as principal and the Buyer has no power to commit ISC to any contract or otherwise or liability but as between the Buyer and ISC the Buyer will sell as fiduciary agent.

9.8       Despite this clause ISC are entitled to maintain an action against the Buyer for the purchase price of the Goods.

 

10. Delivery and Receipt of the Goods

10.1    ISC may supply Goods that vary from the Goods ordered by the Buyer and the Buyer must accept the Goods supplied provided that such variations are not material.

10.2    ISC 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 ISC, 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

10.3    Delivery of the Goods to the Buyer or to such person (including a carrier) or destination nominated by the Buyer and agreed by ISC shall constitute both delivery to and receipt of the Goods by the Buyer.  Unless otherwise stated in ISC’s acceptance of order the Buyer shall arrange and pay for the cost of the transportation of the Goods and shall pay the cost of all charges necessarily incidental to the transportation of the Goods, including but without limiting the generality of the preceding, insurance in respect of the Goods.

10.4    The Buyer must comply with all safety, care, cleaning, disposal and manufacturing directions or requirements issued by ISC in relation to the Goods.

10.5    ISC will not accept return for Goods ordered in error, or any Goods that have been damaged in any other way or where the Buyer has not complied with all safely, care, disposal and manufacturing directions or requirements. ISC will only accept return of Goods that do not comply with the agreed Specification or Purchase Order. The Buyer is deemed to have accepted a delivery of Goods upon delivery (unless the Buyer (within 48 hours of delivery) has notified ISC in writing of its rejection of that delivery and the reasons for the rejection are accepted by ISC).  The Buyer warrants that it will inspect the Goods upon delivery to ensure that the Goods correspond with the Purchase Order or the Specifications.

10.6    The Buyer agrees that ISC is not required to accept the return of any Goods for credit however ISC reserves the right to credit the Buyer’s account towards the Buyer’s next Purchase Order where ISC has supplied Goods not in accordance with the Specification or Purchase Order.

10.7    Any date for delivery of the Goods by ISC is an estimated date for delivery only.  ISC shall be under no liability for loss or damage, however it arises, if the Goods are not delivered by that date.

10.8    A statement in writing signed by any director, secretary, credit manager or other duly authorised person on behalf of ISC shall be conclusive evidence as to any of the following matters stated in these terms:

(a)        As to delivery of the goods:

(i)         The description and quantity

(ii)       The date of delivery; and

(iii)      The place of delivery

(b)        The amount of the Buyer’s indebtedness to ISC at any stated date.

10.9    If ISC (at its sole discretion) agrees 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 ISC may store or arrange for storage of such Goods and charge the Buyer for all related costs and expenses (including storage and insurance).

 

11. Privacy

11.1    Information received from the Buyer/s and any individual will otherwise be treated in accordance with ISC’s Privacy Policy and the Privacy Act 1988.

 

12. Defects and Delivery Date

12.1    In the event that the Goods or any of them or any parts thereof have defects or have been damaged, or, in the event that there are shortages in number, then the Buyer shall, within 48 hours (48) of the date of delivery, time being of the essence, notify ISC of the same in writing giving full particulars to the claim.  Thereafter, ISC shall investigate the Buyer’s claim and in the event that ISC reasonably determines that the defects damage or shortages as the case may be were in existence prior to delivery to the Buyer then ISC shall, at no charge to the Buyer, replace the Goods in question or otherwise remedy the defect or damage or makeup for the shortages as the case may be.

12.2    ISC shall endeavour to meet delivery dates (if any) specified by the Buyer but shall not be liable for any loss, damage or harm of any nature whatsoever suffered by the Buyer or any other person arising directly or indirectly from delivery of the Goods not being effected by any delivery date specified as aforesaid.

 

13. Statutory Warranty and Limitation of Liability

(a)        Warranties that may be implied by the Competition and Consumer Act, 2010, or any other legislation applicable to the Goods are hereby expressly excluded to the extent that such exclusion is not prohibited by such legislation.

(b)        ISC’s liability to the Buyer for any breach of its obligations hereunder in relation to delivery of the Goods, defective Goods, damaged Goods or any warranty implied by law (other than a warranty as to title) shall in all cases be limited to an amount equal to the lesser of (as determined by ISC);

(i)         the cost of having the Goods repaired; or

(ii)       the cost of replacing the Goods; or

(iii)      the cost of obtaining and supplying equivalent goods.

(c)        Notwithstanding any other provision of these terms and conditions and any  additional terms to which ISC and the Buyer have agreed apply to a supply of Goods, ISC shall not be liable;

(i)         for special, indirect or consequential loss or damage whatsoever in connection with the supply and use of the Goods, including but not limited to any loss of revenue or profits which would otherwise be derived from the use of the Goods; or

(ii)       in tort including any tortious act, neglect or default of ISC, its servants or agents, in connection with the supply, delivery and use of the Goods.

 

14. Assignment by Buyer

14.1    The Buyer shall not assign or purport to assign its rights and obligations herein to any third party without the prior consent in writing of ISC.

 

15. Force Majeure

15.1    No failure or omission to carry out or observe any of the conditions of this contract shall give rise to any claim against ISC or result in a breach of this contract if such failure or omission arises by reason of delay or inability to obtain materials, fire, storm or other action of the elements, accidents, government restrictions or from other causes whether like or unlike the foregoing which are unavoidable or otherwise beyond the control of ISC.

 

16. Waiver

16.1    Failure by ISC to insist upon the performance of any one or more of the conditions hereof shall not be deemed to be a waiver of any rights and remedies that ISC may have and shall not be deemed a waiver of any subsequent breach or default.  No provision of this contract shall be deemed to have been waived by ISC unless such waiver shall be in writing and signed by an officer of ISC giving notice in that behalf.

 

17. Notices

17.1    Any notice required to be given under this contract shall if the party is a Company, be signed by any person being or purporting to be a Director, Manager, Secretary or other officer of the party giving it, and if not a Company then by the party himself and shall be deemed to have been given on the second day following posting if sent by pre-paid mail in an envelope addressed to the registered office or principle place of business or last known address as the case may be of the party to whom the notice is being sent.

 

18. Terms and Variation

18.1    These terms and conditions and any other terms and conditions for supply of the Goods to which ISC has consented to in writing are the sole terms and conditions governing the sale and supply of the Goods by ISC to the Buyer.

18.2    The terms and conditions referred to in Clause 18.1 above may only be varied, modified, amended or added to with the consent in writing of ISC.

 

19. Disputes

19.1     If any dispute arises in relation to Goods supplied by ISC to the Buyer, ISC may by notice in writing to the Buyer at any time prior to determination by a court require that such dispute or part thereof be determined by arbitration according to law.  The arbitration is to be conducted in accordance with the relevant Commercial Arbitration Act (of whatever name) of the State or Territory nominated as being the governing law and in the capital city of that State or Territory.  ISC may give notice that any dispute with the Buyer is arbitrated with any other dispute relating to the same Goods or issues.  There is to be a single arbitrator appointed by agreement or failing agreement by the president of the law society of that State or Territory.  The arbitrator’s decision is final and binding subject to any right of appeal under the relevant Commercial Arbitration Act.

19.2    The reference of a dispute to arbitration does not affect the Buyer’s obligation to pay the price for the Goods when due which must be paid without deduction or equitable or other set off pending the resolution of any dispute whether referred to arbitration or otherwise.

 

20. Proper Law

20.1    These terms will be governed by and construed in accordance with the laws of New South Wales and the Buyer irrevocably submits to the exclusive jurisdiction of a competent court in the capital city of that State or Territory.

 

21. Intellectual Property

21.1    These terms do not give the Buyer any intellectual property rights in the Goods.

21.2    The Buyer warrants that the use by ISC of any intellectual property rights, designs, specifications, logo’s or other materials or information of any nature provided to ISC by the Buyer shall not infringe any third party's intellectual property rights. If any claim is brought or threatened against ISC in respect of such an infringement ISC, shall be entitled to suspend further work for the Buyer, and the Buyer shall indemnify ISC against all actions, claims, costs, demands, expenses and liabilities of whatsoever nature suffered or incurred by the ISC as a result of any such claim or threatened claim brought against the ISC.

 

22. Severability

22.1    If any of these terms are or alter become illegal or unenforceable, the illegal or unenforceable part of those terms are taken to be severed from these terms, but all other terms remain in place.