TERMS AND CONDITIONS OF TRADE
To the fullest extent legally possible all contracts, dealings and/or arrangements made between Swift Sports (C & T Thomas Pty LTD) ACN 151 339 409 and any Customer (“Customer”) relating to any goods, products, services or materials supplied or to be supplied by Swift Sports to the Customer (“Goods”) are subject to the following Terms and Conditions of Trade (“these Terms”) unless otherwise agreed in writing.
(a) Payments to be within 30 days of end of month of invoice date without deduction or set-off of any kind
(b) Swift Sports may apply a payment received from the Customer to any amounts owed by the Customer (including part payment of an invoice, administration, collection and other costs) in any order
(c) Swift Sports is entitled to set-off or deduct any amount payable by Swift Sports to the Customer.
(d) Swift Sports may require the Customer to pay a credit card surcharge (in addition to any payment) of up to 3% plus GST of the payment amount where the Customer pays by credit card.
(e) A payment dishonour fee may be charged by Swift Sports if a Customer’s payment is dishonoured in any way. This fee will be in addition to any fees the Customer’s financial institution or credit provider my charge the customer.
(a) The legal and equitable title to the Goods will only be transferred from Swift Sports to the Customer when the Customer has met and paid all that is owed to Swift Sports on any account whatsoever (“Full Payment”)
(b) The Customer acknowledges that until the Customer has met and paid all that is owed to Swift Sports on any account whatsoever, the Customer holds the Goods as bailee for Swift Sports and that a fiduciary relationship exists between the Customer and Swift Sports.
(c) Swift Sports reserves the right to take possession and dispose of Goods as it sees fit at any time until Full Payment and the Customer grants permission to Swift Sports to enter any property (whether owned by it or otherwise) where any Goods are, in order to do so and with such force as is necessary.
(d) Immediately upon delivery the Customer accepts liability for the Goods
(e) A document signed by an officer of Swift Sports identifying Goods and certifying that monies are owing to Swift Sports will be conclusive evidence of Swift Sports’s title thereto.
(f) Until Full Payment the Customer agrees:
(i) to keep all Goods as fiduciary for Swift Sports and to store them in a manner which:
- shows Swift Sports as owner and
- will keep them safe and free from deterioration, destruction, loss or harm
(ii) only to sell Goods in the usual course of business, and
(iii) sale on terms, at cost or less than cost will not be “in the usual course”
(g) Clause 2 is not intended to create a charge and must be read down to the extent necessary to avoid being a charge.
(h) If the customer uses or incorporates any Goods in any production, process or manufacture or combines them with anything to create a finished or combined new thing for disposition then upon such disposition prior to Full Payment, the Customer agrees to hold such part of the proceeds thereof (and until payment is received by the Customer, that part of any applicable book debt) as equals the cost of the Goods used and/or incorporated therein (at the prices invoiced by Swift Sports to the Customer) Upon Trust for Swift Sports until Full Payment.
(i) The Customer agrees, at Swift Sports’s request, to do all acts matters and things including sign all documents (provided they are on terms similar to or having the same effect and are on terms no more onerous on the Customer than these Terms) to ensure Swift Sports holds a valid and perfected security interest under the Personal Property Securities Act 2009 (Cth). Any failure by the Customer to promptly comply with any such request constitutes a default by the Customer pursuant to clause 13.
- Limitation of Liability:
(a) The Customer must limit any claim upon Swift Sports relating to Goods, to the cost of replacement of Goods or the supply of equivalent Goods and relating to services, to the cost of having services supplied again.
(b) Swift Sports will not be liable for any claim arising after 7 days from delivery of Goods or performance of services (or at all once Goods have been unpacked, modified, on-sold or otherwise used or applied) after which there will be deemed to be unqualified acceptance.
(c) Swift Sports will not be liable in any way for any contingent, consequential, direct, indirect, special or punitive damage arising whether due to Swift Sports’s negligence or otherwise and the Customer acknowledges this limit of liability and agrees to limit any claim accordingly.
(d) No other term, condition, agreement, warranty, representation or understanding whether express or implied in any way extending to or otherwise relating to or binding upon Swift Sports is made or given.
(e) Swift Sports will not be liable for any claim relating to or arising from any alleged fault or defect, whether caused or contributed to by Swift Sports, the Customer or any 3rd party otherwise.
(a) If Swift Sports elects to take back product it must be in as new and saleable condition and upon terms agreed and a re- stocking fee will apply.
(b) Custom made or custom processed Goods or Goods acquired by Swift Sports specifically for the Customer will not be returnable.
(c) Any Goods which are accepted by Swift Sports as defective may be returned and will be replaced free of charge or be the subject of a credit for the invoiced value.“Free of charge” does not include labour, transport or material costs.
(d) Credits will not be accepted later than 28 days after invoice date
- Specific Order: Customer specific order may be rejected by Swift Sports at its election, unless accompanied by a non-refundable deposit of at least 50% of the total order price.
- Placement of Orders:
(a) If any dispute arises concerning any order (and including any measurement, quality, quantity, identity, or authority or any telephone, e-mail or computer generated order) the internal records of Swift Sports will be conclusive evidence of what was ordered.
(b) Each order placed will be and be deemed to be a representation made by the Customer at the time that it is solvent and able to pay all of its debts as and when they fall due.
(c) Failure to pay in accordance with these Terms will be and be deemed to be conclusive evidence that the Customer had no reasonable grounds for making the representation referred to in clause 6 (b) and that the representation were unconscionable, misleading and deceptive.
(d) When any order is placed, the Customer must inform Swift Sports of any material facts which would or might reasonably affect the commercial decision by Swift Sports to accept the order and/or grant credit in relation thereto. Any failure to do so will create and be deemed to create an inequality of bargaining position and will constitute and be deemed to constitute the taking of an unfair advantage of Swift Sports and to be unconscionable, misleading and deceptive.
(a) Swift Sports accepts no responsibility for delivery but may elect to arrange delivery at its discretion and without any liability and at the Customers costs and responsibility in all things.
(b) Swift Sports reserves the right to charge for any delivery.
(c) The Customer will be deemed to have accepted delivery and liability for the Goods immediately after Swift Sports notifies that they are ready for collection or when they are delivered to a carrier or to the Customer’s business premises or site whether attended or not.
(d) A document (including without limitation a consignment note) purporting to be signed by an officer (s) of Swift Sports confirming delivery will be conclusive evidence of delivery as will any signed delivery docket.
(e) Swift Sports will not be liable for delay, failure or inability to deliver any Goods
(f) Once the Customer has been notified that Goods are ready for collection, the Customer agrees to pay all cots of holding or handling goods.
(g) Frustrated Delivery If time spent delivery exceeds 30 minutes or requires more than one attempt, the Customer agrees to pay all costs relating thereto.
Variation or cancellation of any order, dealing or arrangement must be agreed in writing.
(a) No dealing with the Customer will be deemed to be a sale by sample or description.
(b) If Swift Sports publishes material about its Goods and prices, any part which is incompatible with these Terms is expressly excluded.
(c) The customer will rely on its own knowledge and expertise in choosing any product for any purpose.
(d) Any advice or assistance given for or on behalf of Swift Sports must be accepted at the Customer’s risk and must not be or be deemed given as expert or adviser nor to have been relied upon.
- On-Sale: The Customer agrees that upon on-sale of any Goods to inform any third party involved of these Terms and in particular the provisions of clause 2 and especially clause 2(i).
- Severability: If a provision of these Terms would but for this clause, be unenforceable, that provision must be read down to that extent necessary to avoid that result and if that provision cannot be read down to that extent, it must be severed without altering the validity and enforceability of the remainder of these Terms
- Purchase Price:
(a) All sales are made by Swift Sports at its ruling price at the time of delivery.
(b) All government imposts and any GST (“imposts”) will be to the Customer’s account
(c) Swift Sports’s price lists exclude Imposts unless expressly noted thereon.
- Default: Default or breach by the Customer of these Terms or in any dealings with Swift Sports will entitle Swift Sports to retain all monies paid, call-up all monies due or owing (whether currently due and owing or not) cease further deliveries and recover from the Customer all loss of profits without prejudice to any other of its rights under these Terms or at law.
- Product and Services:
(a) Swift Sports disclaims any responsibility or liability whatsoever relating to any dyes colours colour fastness characteristic suitability for any particular purpose or process.
(b) The customer agrees to check and test all Goods prior to use alteration or any sale or application thereof whether in relation to any dyes colours, colour fastness characteristic or suitability for any particular purpose or process or otherwise.
(c) The Customer agrees to check and test all Goods for compliance with all relevant applicable standards and regulatory bodies before use on- sale or application and to use or apply same in accordance with all applicable standards, regulations and guidelines with all manufacture’s and/ or Swift Sports recommendations and directions as well as with good commercial practice.
(d) Swift Sports may update, modify, make substitution or alter any of its Goods or any component or raw material incorporated in or used in forming any part of any Goods as part of its ongoing business. The Customer agrees to accept current Goods in substitution of any Goods ordered provided they are not materially different.
(e) Swift Sports disclaims any responsibility or liability relating to any Goods:
(i) processed or made to designs, drawings, specifications or measurements etc or with materials which are provided or approved (whether in part or fully) by or on behalf of the Customer: and/or
(i) utilised, sorted, handled or used incorrectly or inappropriately
- Other Terms and Conditions and Notice:
(a) Terms and/or conditions sought to be imposed by the Customer upon Swift Sports will not apply unless agreed in writing by Swift Sports.
(b) The customer will be deemed to have notice of any change to these Terms, immediately Swift Sports adopts them.
- Recovery Costs: The Customer will pay ( on a full indemnity basis) all costs and expenses of Swift Sports, its legal adviser, mercantile agents and others acting on its behalf in respect of anything instituted or being considered as a result of any breach of these Terms or breach of any dealings with Swift Sports.
- Attornment: To give effect to its obligations arising under these Terms (and especially clause 22) the Customer hereby irrevocably appoints any solicitor for Swift Sports from time to time as its attorney.
- Customer Restructure:
(a) The customer will notify Swift Sports of any change in its structure or management including any sale in or disposition of any part of the business of the Customer, any change in director, shareholder, management, partnership or trusteeship or sale of any material part of its business (“Restructure”) within 7 days of any such change.
(b) The customer agrees it will:
(i) cause any new entity created by virtue of a Restructure (“New Entity”) to be bound by the Terms; and
(ii) Continue to be bound by these Terms despite a Restructure and will indemnify Swift Sports for any loss or damage it suffers as a result of a breach of these Terms by the New Entity.
- Jurisdiction: All contracts made with Swift Sports will be deemed to be made in the State of New South Wales and the parties submit to the exclusive jurisdiction of the appropriate Courts in or nearest Sydney in that State.
- Credit Line: Swift Sports can vary or withdraw any credit facility or limit it any time at its discretion and without any liability to the Customer or any other party.
- Waiver: If Swift Sports elects not to exercise any rights arising as a result of breach of these Terms it will not constitute a waiver of any rights relating to any subsequent or other breach.
- Security For Payment: The Customer agrees subject to clause 40, that:
(a) Despite anything to the contrary contained therein or any other rights which Swift Sports may have howsoever, where the customer is the owner of land realty or any other asset capable of being charged (“Asset”) the Customer agrees, upon Swift Sports’s written request to mortgage and/or charge all of their joint and/or several interest in the Asset to Swift Sports to secure all amounts and other monetary obligations payable by the Customer to Swift Sports.
(b) it grants a lien to Swift Sports over any of its property in the possession or control of Swift Sports until Full Payment.
(c) it will execute any documents and to do all things requested by Swift Sports to register a mortgage (or such other security Swift Sports requires) over any current or later acquired real property the Customer has an interest in.
(d) it consents unconditionally to Swift Sports lodging a caveat noting Swift Sports’s interest in any current or later acquired real property the Customer has an interest in and
(e) Swift Sports may (without limitations) exercise its rights under clause 17 to effect compliance with this clause 22 where the Customer fails to comply with any provision of these Terms.
- Force Majeure: Swift Sports will not be in default or breach of any dealings with the Customer as a result of Force Majeure (i.e. anything beyond Swift Sports’s reasonable control)
- Sampling: The Customer must pay for all Goods provided to or ordered by the Customer as “sampling” unless otherwise agreed in writing.
- Intellectual Property:
(a) If Swift Sports utilises any design patent or intellectual property or follows any instruction provided by or on behalf of the Customer, the Customer indemnifies Swift Sports against any claim, proceeding, damages or liability for any loss cost or expense arising as a result whether for any alleged infringement of any intellectual property or otherwise.
(b) The Customer must not advertise, use or represent any intellectual property of Swift Sports or of any goods themselves in any way without the prior written consent of Swift Sports.
(c) If the Customer breaches or permits any breach of this clause, it acknowledges Swift Sports may suffer claims by third parties as a result ( e.g. by models who’s images are reproduced without authority and/or by parties who are entitled to exploit any intellectual property) and clause 34 will apply.
(a) Any discount offered by Swift Sports is at its complete discretion and will only be available provided the Customer is not in breach of any part of these Terms nor in default in any of its dealings with Swift Sports.
(a) Any illustration drawing or specifications supplied by Swift Sports (“Specs”) are drafts and approximates and are for illustration purposes and the Customer should not rely on the accuracy of such Specs in any way.
(b) Any tangible or intellectual property rights in Specs remain the property of Swift Sports and may be recalled at any time.
(c) Specs are to be treated at all times as confidential and not made use of without the prior written consent of Swift Sports.
28.No Set-Off: No set off or counterclaim will be made or applied by the Customer until payment in full of all bona fide invoices raised by Swift Sports (whether current or overdue) and this clause may be pleaded as a bar to any action taken prior to such payment in full.
- Trusts: The Customer agrees that these terms bind it not only in its own capacity but also as the Trustee of every trust of which it is a trustee.
- No Merger: Termination of these Terms and/or dealings between the Customer and Swift Sports (“Cessation”) will not end those provisions of these Terms that are capable of surviving Cessation.
- Stock Discretion: Swift Sports has a continuing discretion to allocate available stock and gives no warranty as to certainty of supply unless expressly agreed in writing in advance.
- Partial Delivery/Forward Orders: If the Customer places forward orders or request partial or instalment delivery, the Customer agrees:
(a) to pay for so much of any order as is from time to time delivered by Swift Sports: and
(b) that no delay or failure to fulfil any part of any order will entitle the Customer to cancel or vary any order or delay or reduce any payment.
- Acceptable Variation: The Customer will accept variation in quantities at plus or minus 5% and will pay pro-rata for the actual quantity delivered.
- Indemnity: The Customer indemnifies Swift Sports against any claim or loss arising from or related in any way to any contract or dealing between Swift Sports and the Customer or anything arising there from or arising as a result of or subsequent to any breach of these Terms.
- Insolvency: If the Customer commits or is involved in any act of insolvency, it will be deemed in default under these Terms. An act of insolvency includes bankruptcy, liquidation, receivership, administration or the like and failure to pay in accordance with these Terms.
- All Divisions: The Customer agrees that these Terms will apply to all dealings between the Customer and Swift Sports and any part or member of the Swift Sports Group.
- Recalls: In the event of a product recall (“Recall”) the Customer must give Swift Sports such assistance as Swift Sports reasonably requires in relation to that Recall.
- 38. Exclusion of warranty: Swift Sports is not bound by any warranty (and the Customer agrees not to make any claim against Swift Sports in relation to any warranty) in respect of Goods or services unless all Goods and services have been paid for in full without set-off or deduction of any kind.
- Personal Property Securities Act 2009:
(a) Where the Personal Property Securities Act 2009 (“PPSA”) is in force, the Customer acknowledges that these Terms create a security interest under the PPSA in all Goods supplied by Swift Sports to the Customer, and for avoidance of doubt, the proceeds of sale of those Goods.
(b) The Customer consents to Swift Sports effecting a registration on the PPSA register (in any manner Swift Sports considers appropriate) in relation to any security interest contemplated by these Terms (including but not limited to an interest under clause 2 and 22) and further agrees:
(i) to do all things necessary and required by Swift Sports to make sure that the security interest is a perfected “purchase money security interest” under the PPSA; and
(ii) not to allow any third party to acquire a security interest in the Goods.
(c) To the extent that the goods are for the Customer’s business use, the Customer agrees to the extent permitted under the PPSA, that the Customer has no right:
(i) to receive notice of removal of an accession under the PPSA
(ii) under Chapter 4 if the PPSA; or
(iii) under the PPSA to receive a copy of any verification statement of a financing statement under the PPSA.
(d) Without in any way limiting clause 40(c) the Customer agrees that to the extent permitted under the PPSA, the Customer hereby waives its rights under sections 95, 96, 117, 118, 120, 121 (4), 123, 125, 126, 128, 129, 130, 132, 134, 135, 142 and 143 of the PPSA.
(e) Unless otherwise agreed to in writing by the Seller, the Buyer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
(f) The client hereby waives its rights to receive notices under sections 95, 118, 121 (4), 130, 132 (3) (d) and 132 (4) of the PPSA.
(g) The Customer must not assign or grant a security interest in respect of any accounts owed to it in relation to the Goods without Swift Sports’s prior written consent.
(h) Without limiting any other provision of these Terms, if the Customer makes a payment to Swift Sports at any time whether in connection with the supply of Goods or otherwise, Swift Sports may at its absolute discretion apply that payment to first satisfy obligations that are not secured, then obligations that are secured, but not by a purchase money security interest, in the order in which those obligations were incurred, and then obligations that are secured by a purchase money security interest in the order in which those obligations were incurred.
- 40. Swift Sports not Manufacturer:
(a) The Customer agrees that Swift Sports is not the manufacturer of any goods;
(b) Goods are sold subject to any manufacturer’s trading terms and conditions and are covered (if at all) by any manufacturer’s warranty applicable thereto.
(c) Swift Sports shall not be liable to any party as manufacturer
(d) Swift Sports will use all reasonable endeavours to assist the Customer to claim upon the actual manufacturer at the Customers cost in all things; and
(e) If Swift Sports is deemed manufacturer of any goods in any circumstances, the Customer will fully indemnify Swift Sports against any liability loss or cost associated with or arising as a result of such deeming.