1.1 These Terms apply to any credit application and the supply of all Goods by us to you from the date that you accept these Terms.
1.2 You accept these Terms when:
1.2.1 you sign and return this Form to us; or
1.2.2 you submit an Order, which ever occurs first.
1.3 If we vary these Terms or adopt new terms and conditions:
1.3.1 you will be given written notice; and
1.3.2 unless otherwise agreed, they will apply to any Order for Goods provided to us after you have been given written notice of any variation or new terms and conditions.
2. CREDIT ACCOUNTS
2.1 You warrant that:
2.1.1 all information provided in the Form is true, correct and complete; and
2.1.2 each signatory to this Form is (where relevant) authorised to sign on behalf of the relevant body.
2.2 You acknowledge that we may, in our absolute discretion:
2.2.1 request further information from you, including financial information and further references, in order to assess your credit application;
2.2.2 refuse your credit application;
2.2.3 determine and/or vary the Credit Limit at any time; and
2.2.4 suspend or withdraw the Credit Facility at any time upon giving you notice.
2.3 All Goods the subject of a Credit Facility must be paid for within the Period of Credit. If Goods are not paid for within the relevant Period of Credit, all amounts owing by you to us will become immediately payable.
2.4 Unless we otherwise agree in writing, you must not place Orders with us in excess of your Credit Limit without notifying us in writing at the time the relevant Order is placed.
2.5 Notwithstanding clause 2.4, we may accept an Order from you in excess of your Credit Limit, which may be considered as a temporary increase to your Credit Limit.
2.6 Subject to the Privacy Act, we may retain Personal Information about you for the purpose of assessing a Credit Application or a Credit Facility.
2.7 We may obtain from a third party information about your credit worthiness, including information about the commercial activities and credit worthiness of your Directors and Officers for the purpose of assessing a Credit Application made by you, continuing the provision of a Credit Facility to you or recovering from you any unpaid monies pursuant to these Terms.
3. ORDERS + PAYMENT
3.1 You may place an Order for each supply of Goods.
3.2 Unless otherwise agreed by us in writing, these Terms will prevail over, and we will not be bound by, any conditions (express or implied) added or provided by you, whether in an Order or otherwise.
3.3 You may not cancel an Order, or any part of it, unless:
3.3.1 we give our written consent; and
3.3.2 you pay to us (if required by us and as determined in our absolute discretion) damages and this may include any and all costs and losses incurred by us (including loss of profits and any expenses we have incurred or committed to pay to any third party) in relation to the cancelled Order or the cancelled part of the Order to the date of cancellation.
3.4 We may in writing cancel an Order if:
3.4.1 we reasonably form the opinion that you are insolvent or at material risk of insolvency;
3.4.2 you fail to pay any amount for the Goods by the due date; or
3.4.3 we reasonably form the opinion that supplying Goods to you may have a negative impact upon our business or commercial reputation or image.
3.5 Unless otherwise agreed in writing, we will issue you an Invoice upon delivery of the Goods to you.
3.6 Unless otherwise agreed in writing, all Payments shall be made in full in cash or cleared funds by the 21st day of the month following the date of the Invoice.
3.7 In the event of your failure to make a Payment in accordance with this clause 3 we will charge you a Service Fee at the rate of 2.5% per month on the outstanding Payment Fee (which you agree is reasonable) and an administrative fee of $45 (plus GST) for each cheque that is dishonoured.
3.8 Payment of the Service Fee pursuant to this clause 3 shall be:
3.8.1 payable on demand; and
3.8.2 calculated daily from the date Payment was due to the actual date that the Payment is made in full.
3.9 We reserve the right to allocate payments received from you or any other person on your behalf in the following manner:
3.9.1 firstly towards any Service Fee, costs, charges and other expenses due and payable or becoming due and payable to us; and
3.9.2 secondly, towards the oldest invoices first unless otherwise advised at the time of Payment.
3.10 We may recover from you any costs we incur in the collection of Payment of any Invoice.
4. DELIVERY, RISK + INSURANCE
4.1 Delivery of the Goods shall take place upon pick up by or delivery of the Goods to you, your agent or nominee or to a carrier commissioned on your behalf as applicable at the place specified by you or as otherwise agreed.
4.2 We may charge you the cost of delivering the Goods to you, which will be included in the Payment to be made in relation to the Goods. We shall not be liable to you for late delivery.
4.3 The risk in the Goods shall pass to you upon the delivery of the Goods in accordance with clause 4.1.
4.4 If requested by us, you shall from the delivery date until we have received Payment for all Goods in full, have sufficient insurance in respect of the Goods to protect us against loss or damage by fire, theft or any other cause whatsoever and provide to us upon our request evidence of such insurance.
4.5 We will use reasonable efforts to deliver the Goods to you by the date and to the place specified by you. Without limiting clause 5 (Exclusions + Limitations), if the Delivery of the Goods is delayed we shall not be liable for late delivery or delay in delivery and the delay does not give you the right to cancel an Order or terminate these Terms.
5. EXCLUSIONS + LIMITATIONS
5.1 The exclusions and limitations in this clause 5 are subject to clause 6 (Statutory Rights).
5.2 All express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), relating to these Terms, that are not contained in it, are excluded to the fullest extent permitted by law
5.3 No warranty is given and we will not be liable for:
5.3.1 alterations to Goods for which we are not responsible;
5.3.2 damage or failure caused by unusual or non-recommended use, misuse or application of the Goods; or
5.3.3 loss caused by any factors beyond our control.
5.4 Our total liability for breach of these Terms or breach of our contractual obligations or duties at law or in equity (however arising) is limited at our option to:
5.4.1 the replacement of the Goods or the supply of equivalent goods;
5.4.2 the repair or rectification of the Goods;
5.4.3 the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
5.4.4 the payment of the cost of the repair or rectification of the Goods.
6. STATUTORY RIGHTS
6.1 In circumstances where you are acquiring Goods from us as a ‘consumer’ for the purposes of (and as defined in section 3 of Schedule 2 of) the ACL or as a ‘buyer’ for the purposes of the SGA, we acknowledge and agree that certain statutory guarantees and rights shall apply to you as provided by relevant laws but subject to these Terms as applicable and where permitted by relevant laws.
6.2 Nothing in these Terms excludes, restricts or modifies any condition, warranty, statutory guarantee, right or remedy implied or imposed by common law, statute or regulation which cannot be lawfully excluded, restricted or modified, which may include the ACL, the SGA and any relevant State or Territory legislation containing implied terms and/or statutory guarantees which operate to protect the purchasers of Goods in various circumstances.
7. TITLE + SECURITY INTEREST
7.1 This clause 7 sets out the Security Agreement between you (Grantor) and us (Secured Party).
7.2 After delivery of the Goods, until the full Payment has been made you shall possess the Goods as bailee only.
7.3 We will retain absolute title over the Goods until we have received Payment in full in respect of the Goods.
7.4 The Grantor grants to the Secured Party a Security Interest in the Goods supplied by us to you, including all related proceeds (Collateral), as security for all or part of the Payment of any amount relating to the Goods in accordance with these Terms or otherwise. For the avoidance of doubt, this Security Interest is also a Purchase Money Security Interest (PMSI) in the Collateral.
7.5 The Security Interest attaches to the Collateral by virtue of the Grantor’s possession of the Goods as bailee under clause 7.2.
7.6 The Grantor irrevocably gives authority to the Secured Party to register a financing statement with respect to the Security Interest on the PPSR. Despite this provision, the Secured Party may perfect this Security Interest by any other means in accordance with the PPSA.
7.7 The Grantor shall provide the Secured Party with any information required for the Secured Party to register a financing statement or a financing change statement with respect to this Security Interest on the PPSR.
7.8 Until this Security Interest in the Collateral has been extinguished, the Grantor will ensure that, as far as is reasonably practicable:
7.8.1 any identifying plate, mark or packaging number on any of the Collateral (including Goods) is not removed, defaced or obliterated; and
7.8.2 the Collateral is identifiable and distinguishable from any other goods or products that may be in the Grantor’s possession and as to each particular Invoice of Goods comprising the Collateral.
7.9 The Grantor acknowledges that this Security Interest continues to apply to Collateral that becomes an accession to other goods.
7.10 Until this Security Interest in the Collateral has been extinguished, if:
7.10.1 a Default Event occurs in respect of the Grantor; or
7.10.2 the Grantor is in breach of these Terms,
the Secured Party may as it sees fit and without notice to the Grantor, seize, retain or redeem the Collateral, or seek any and all remedies provided under Chapter 4 of the PPSA or any other remedies provided at law or in equity.
7.11 Sections 95, 118, 121(4), 125, 130, 132 and 135 of the PPSA shall not apply to the extent that they impose obligations on the Secured Party.
7.12 The Grantor irrevocably waives its right to receive from the Secured Party a copy of any financing statement, financing change statement or verification statement that is registered, issued or received at any time in relation to this Security Agreement.
7.13 The Grantor shall immediately notify the Secured Party in writing of any change of name of the Grantor.
7.14 The Grantor acknowledges due notice of this Security Agreement with acceptance of these Terms.
8.1 Unless otherwise agreed, prices with respect to any taxable supply are exclusive of GST.
8.2 We will issue a tax invoice for any taxable supply to you, which will enable you, if permitted by the GST Law, to claim a credit for GST paid by you.
8.3 If GST is payable for a taxable supply by a third party, we will request that party to provide you with a tax invoice.
9. INTELLECTUAL PROPERTY
9.1 You acknowledge that we have valuable Intellectual Property Rights in and relating to the Goods, including but not limited to the patents and trade marks in our name or logo. All of our Intellectual Property Rights in and relating to the Goods remains our property and nothing in these Terms operates as an assignment or transfer of any of our Intellectual Property Rights.
9.2 Upon full Payment of all amounts relating to the Goods, we grant you a non-exclusive, non transferable, perpetual royalty-free licence to use our Intellectual Property Rights in the Goods in Australia for the purposes as indicated to us in the Order and not otherwise.
10.1 If you provide us with material to be used in the supply of the Goods you warrant and represent to us that any Goods supplied to you based on the material you provide to us will not infringe the Intellectual Property Rights of any third party; and you indemnify and will keep us indemnified from and against any and all claims, liabilities, obligations, expenses or damages which we may suffer or incur as a result or in connection with the representation or warranty being untrue or breached.
10.2 You agree to indemnify and keep us indemnified in respect of all damages, losses, costs and expenses (including legal costs) that we may incur as a result of your breach or alleged breach of these Terms.
10.3 If a Default Event occurs, we may terminate any outstanding Order and any contract for the supply of Goods to you, and all Payments and any other money under these Terms becomes immediately payable.
10.4 These Terms shall bind our successors, administrators and permitted assigns and your executors and permitted assigns, or, being a company, its successors, administrators and permitted assigns.
10.5 You may not assign, transfer, hold on trust or otherwise delegate any of your rights or obligations under these Terms without our prior written consent.
10.6 Time shall be of the essence in relation to any date or period under these Terms.
10.7 Each clause in these Terms is severable and if any clause is held to be illegal or unenforceable, then the remaining clauses will remain in full force and effect.
10.8 No failure, delay, relation or indulgence on our part in exercising any power, right or remedy precludes any other or further exercise of that or any other power, right or remedy.
10.9 These Terms shall be governed by the laws of the State of New South Wales and the parties irrevocably submit to the non-exclusive jurisdiction of the Courts of the State of New South Wales.
11. INTERPRETATION + DEFINITIONS
In these Terms, unless otherwise provided:
11.1 the terms we, us or our refers to the Classic Sportswear;
11.2 the terms you or your refers to the Customer; and
11.3 the following terms shall have their meaning as specified:
ACL means the Australian Consumer Law under the Consumer and Competition Act 2010 (Cth) as amended.
Charges means any sales tax, excise duties, customs duty, transfer duty, GST or any other taxes, duties or charges applicable in respect of the provision of the Goods.
Classic Sportswear means Classic Sportswear Pty Limited (ACN 003 627 923).
Collateral means property that is subject of a security interest.
Credit Application means an application for a Credit Facility made by you to us by completing and submitting a Form.
Credit Facility means a facility whereby we offer you a Period of Credit and Credit Limit.
Credit Limit means the maximum amount of credit provided by us to you.
Customer means any person or entity that signs this Form or places an Order with us and agrees (by signing this Form, conduct or otherwise) to be bound by these Terms.
Default Event means any one of the following events:
(a) you fail to make any payment when due, whether for the Goods or otherwise;
(b) Winding Up commences against you;
(c) a receiver is appointed to you;
(d) you become insolvent, bankrupt or commit an act of bankruptcy;
(e) proceedings are commenced or an application is made for the appointment of any persons listed in items (b) to (e) above; or
(f) a mortgagee or their agent enters into possession of your assets.
Delivery means the delivery of the Goods in accordance with clause 4.1.
Form means this Credit Account Application form.
Goods means goods sold by us from time to time, including the nominated Classic Sportswear branded products.
Grantor means the person who has the interest in property to which a security interest is attached.
GST and GST Law have the meaning as set out in the A New Tax System (Goods Tax) Act 1999 (Cth).
Invoice unless otherwise agreed means the invoice issued upon the delivery of the Goods specified in your Order.
Intellectual Property Rights means all forms of intellectual property rights (whether registered or unregistered) in copyright, designs, patents, trade marks, domain names, trade secrets, know-how, confidential information, and all other similar proprietary rights and all extensions and renewals thereof anywhere in the world which currently exist and/or are recognised in the future.
Order means an order for Goods received by us.
Payment means payment of any amount relating to Goods in accordance with these Terms.
Period of Credit means the period from the date we send the Goods to you until you are to pay for the Goods as provided in clause 3.6.
Personal Information means information or an opinion (including information or an opinion forming part of a database) whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained from the information or opinion (regardless of its source).
PMSI means a purchase money security interest as defined by section 14 of the PPSA.
PPSA means the Personal Property Securities Act 2009 (Cth) as amended, including any regulations made pursuant to it.
PPSR means the Personal Property Securities Register.
Privacy Act means the Privacy Act 1988 (Cth) as amended from time to time.
Secured Party means a person who holds the benefit of a security interest.
Security Agreement means the security agreement set out in clause 7 (Title + Security Interest).
Security Interest means the security interest created in clause 7 (Title + Security Interest).
Service Fee means as defined in clause 3.
SGA means the Sale of Goods Act 1923 (NSW) as amended.
Terms means these terms + conditions of credit and the supply of Goods.
Winding Up means commencing to be wound up, or suffering a provisional liquidator, liquidator, official manager or any other administrator of the affairs of insolvent companies to be appointed.