GROUPE SPORTIF PTY LTD
PART 2: TERMS AND CONDITIONS OF TRADE
1. Definitions
In these Terms:
"ACL" means the Australian Consumer Law Schedule of the Competition and Consumer Act;
"Contract" means any contract for the provision of goods by GS to the Customer;
"consumer" is as defined in the ACL and in determining if the Customer is a consumer, the determination is made if Customer is a consumer under the Contract;
"Customer" means the person, jointly and severally if more than one, acquiring goods from GS;
"goods" means goods supplied by GS to the Customer;
"GST" means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended;
"PPSA" means the Personal Property Securities Act 2009 as amended;
"GS" means Groupe Sportif Pty Ltd (ABN 92 007 382 934); and
"T+Cs" means these Terms and Conditions of Trade.
2. Basis of Contract
2.1 The T+Cs apply exclusively to every Contract.
2.2 Any quotation provided by GS to the Customer for the proposed supply of goods is valid for 30 days; an invitation to treat only; and only valid if in writing.
2.3 The T+Cs may include additional terms in GS' quotation, which are not inconsistent with the T+Cs.
2.4 An Contract is accepted by GS when GS accepts, in writing or electronic means, an offer from the Customer or provides the Customer with the goods.
2.5 GS has absolute discretion to refuse to accept any offer.
2.6 The Customer must provide GS with its specific requirements, if any, in relation to the goods.
2.7 GS may vary or amend these T+Cs by written notice to the Customer at any time. Any variations or amendments will apply to orders placed after the notice date.
3. Pricing
3.1 Prices quoted for the supply of goods exclude GST and any other taxes or duties imposed on or in relation to the goods and services.
3.2 If the Customer requests any variation to the Contract, GS may increase the price to account for the variation.
3.3 Where there is any change in the costs incurred by GS in relation to goods, GS may vary its price to take account of any such change, by notifying the Customer.
4. Payment
4.1 Subject to clause 4.2, unless otherwise agreed by GS in writing, full payment for the goods must be made within 30 days of the date of GS' invoice.
4.2 GS reserves the right to require payment in full on delivery of the goods.
4.3 Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
4.4 Payment terms may be revoked or amended at GS’ sole discretion immediately upon giving the Customer written notice.
4.5 The time for payment is of the essence.
5. Payment Default
5.1 If the Customer defaults in payment by the due date of any amount payable to GS, then all money which would become payable by the Customer to GS at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and GS may, without prejudice to any of its other accrued or contingent right :
(a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 4 per cent for the period from the due date until the date of payment in full;
(b) charge the Customer for, and the Customer must indemnifyGS from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Contract or to recover any goods;
(c) cease or suspend supply of any further goods to the Customer;
(d) by written notice to the Customer, terminate any uncompleted contract with the Customer.
5.2 Clauses 5.1(c) and (d) may also be relied upon, at GS' option where the Customer becomes bankrupt or insolvent or enters into any scheme of arrangement or with or for the benefit of its creditors.
6. Passing of Property
6.1 Until GS receives full payment in cleared funds for all goods supplied by it to the Customer, as well as all other amounts owing to GS by the Customer:
(a) title and property in all goods remain vested in GS and do not pass to the Customer;
(b) the Customer must hold the goods as fiduciary bailee and agent for GS;
(c) the Customer must keep the goods separate from its goods and maintain GS’ labelling and packaging;
(d) the Customer must hold the proceeds of sale of the goods on trust for GS in a separate account with a bank to whom the Customer has not given security however failure to do so will not affect the Customer's obligation as trustee;
(e) in addition to its rights under the PPSA, GS may without notice, enter any premises where it suspects the goods are and remove them, notwithstanding that they may have been attached to other goods not the property of GS, and for this purpose the Customer irrevocably licences GS to enter such premises and also indemnifies GS from and against all costs, claims, demands or actions by any party arising from such action.
7. Personal Property Securities Act
7.2 For the purposes of the PPSA:
(a) terms used in clause 7 that are defined in the PPSA have the same meaning as in the PPSA;
(b) these T+Cs are a security agreement and GS has a Purchase Money Security Interest in all present and future goods supplied by GS to the Customer and the proceeds of the goods;
(c) The security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any particular time; and
(d) the Customer must do whatever is necessary in order to give a valid security interest over the goods which is able to be registered by GS on the Personal Property Securities Register.
7.3 The security interest arising under this clause 7 attaches to the goods when the goods are dispatched from GS' premises.
7.4 Where permitted by the PPSA, the Customer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
7.5 To the extent permitted by the PPSA, the Customer agrees that:
(a) the provisions of Chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on GS will apply only to the extent that they are mandatory or GS agrees to their application in writing; and
(b) where GS has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
7.6 The Customer must immediately upon GS' request:
(a) do all things and execute all documents necessary to give effect to the security interest created under this Contract; and
(b) procure from any person considered by GS to be relevant to its security position such agreements and waivers (including as equivalent to those above) as GS may at any time require.
7.7 GS may allocate amounts received from the Customer in any manner GS determines, including as required to preserve any Purchase Money Security Interest it has in the goods.
8. Risk and Insurance
8.1 The risk in the goods and all insurance responsibility for theft, damage or otherwise will pass to the Customer immediately on the goods being taken from GS’ warehouse.
8.2 The Customer is responsible for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use or possession of the goods, unless recoverable from GS on the failure of any statutory guarantee under the ACL.
9. Delivery
9.2 The Customer is responsible for all costs associated with delivery, including freight, insurance and other charges arising from the point of dispatch to point of delivery.
9.3 GS may make part delivery of goods and GS may invoice the Customer for the goods provided.
9.4 Any period or date for delivery of goods stated by GS is an estimate and not a contractual commitment. GS will not be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date.
9.5 The Customer indemnifies GS against any loss or damage suffered by GS, its sub-contractors or employees as a result of delivery, except where the Customer is a consumer and GS has not used due care and skill.
9.6 If delivery is attempted and unable to be completed the Customer is deemed to have taken delivery of the goods and is liable for storage charges payable monthly on demand.
10. Liability
10.1 Except as the T+Cs specifically state, or as contained in any express warranty provided in relation to the goods, the Contract does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or any contractual remedy for their failure. 10.3 Except to the extent of any liability imposed by the ACL, GS is not liable:
(a) to the Customer in any way arising under or in connection with the provision of the goods;
(b) for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused.
10.4 The Customer acknowledges that:
(a) it has not relied on any service involving skill and judgement, or on any advice or assistance provided by GS in relation to the goods or their use or application.
(b) it has not made known, either expressly or by implication, to GS any purpose for which it requires the goods and it has the sole responsibility of satisfying itself that the goods are suitable for its use.
10.5 Nothing in the T+Cs excludes or displaces any applicable State or Federal legislation.
11. Cancellation
11.1 If GS is unable to deliver the goods, then it may cancel the Customer's order (even if it has been accepted) by written notice to the Customer.
11.2 No purported cancellation or suspension of an order or part of it by the Customer is binding on GS once the order is accepted.
12.1 Subject to clause 12.2 and 12.5, GS will not be liable for any shortages, damage or non-compliance with the specifications in the Contract unless the Customer notifies GS with full details and description within 10 days of delivery otherwise the Customer is deemed to have accepted the goods.
12.3 Subject to clause 12.5, GS will not under any circumstances accept goods for return that:
(a) have been specifically produced, imported or acquired to fulfil the Contract;
(b) are discontinued goods or no longer stocked by GS;
(c) have been altered in any way;
(d) have been used; or
(e) are not in their original condition and packaging.
12.5 If the Customer is a consumer, nothing in this clause 12 limits any remedy available for a failure of the guarantees in sections 56 and 57 of the ACL.
13. Force Majeure
13.1 GS is not liable under the Contract to the extent that it is prevented from acting by events beyond its reasonable control. If an event of force majeure occurs, GS may suspend or terminate the Contract by written notice to the Customer.
14. Customer Restructure
14.1 The Customer must notify GS in writing of any change in its structure, management or name within 14 days of the date of any such change.
15. Miscellaneous
15.1 The law of Victoria from time to time governs the T+Cs.
15.2 GS’ failure to enforce any of these Terms shall not be construed as a waiver of any of GS’ rights.
15.3 If a clause is unenforceable it must be read down to be enforceable or, if it cannot be read down, it must be severed from the T+Cs, without affecting the enforceability of the remaining terms.
15.4 Noitces must be handed personally or sent by email, fax or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed received upon posting. Notices sent by fax or email are deemed received on confirmation of successful transmission.