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These Terms of Trade shall apply to all sales of goods, services and licence rights by the Seller to the Customer. In these Terms of Trade, the following terms have the corresponding meaning:
Customer means the party as set out in the Customer Order as the purchaser of the Goods from the Seller.
Customer Order means the document detailing the price, product and quantity of the Goods (and any other relevant specifications relating to the Goods) ordered by the Customer from the Seller) as attached to these Terms of Trade.
Consequential Loss means any consequential and/or indirect loss or damage including without limitation any loss of profit, loss of business, economic loss or depletion of goodwill or any costs or fees arising out of or in connection with any breach of these Terms of Trade by a party whether in contract or tort.
Goods means the goods, services or licensing rights supplied by the Seller to the Customer, as set out in an accepted Customer Order.
Personnel means any director, officer, employee, contractor or agent of the Seller.
Seller meansTLA Merchandise Pty Ltd ABN 79 119 725 469.
Terms of Trade means these General Terms of Trade and any Special Terms of Trade.
2.1 Any quotation provided by the Seller to the Customer from time to time shall not be construed or operate as an offer or obligation to supply but shall be an invitation to treat only and the Seller reserves the right to accept or reject in its absolute discretion any order which may be received by it from the Customer.
2.2 Until such time as the Seller accepts in writing a written order submitted by the Customer it shall not be obliged to supply to the Customer the Goods.
2.3 Where the Customer is in default of the Payment Terms, the Seller reserves absolutely the right to cancel or suspend any order of the Customer, including any order accepted by the Seller, without being obliged to supply or otherwise be liable to the Customer in any way.
2.4 Where the Customer is in default of the Payment Terms, the Seller reserves absolutely the right refuse any request for quotation from the Customer until such time the Customer is no longer in default of the Payment Terms.
2.5 Under no circumstances will the Seller be responsible to the Customer for a breach of its obligation to supply the Goods pursuant to an order that it has accepted where the failure is caused by matters beyond its reasonable control, including but not limited to acts of God, acts of any government, war or other hostility, national or international disasters, the elements, fire, explosion, power failure, equipment failure, strikes or lockouts, inability to obtain necessary supplies.
2.6 The Parties acknowledge and agree that the ongoing global effects of the COVID-19 Coronavirus (and subsequent mutations of the coronavirus) (COVID-19) may substantially impact, directly or indirectly (via government orders or directives, regulations or acts of regulatory authorities resulting in forced or mandatory closures of facilities, logistic services, transportation, or orders (whether temporary or permanent) or injunctions), the Sellers ability to obtain and deliver the Goods in accordance with the timelines as set out in each Customer Order. Provided the delay as notified by the Seller persists no longer than 6 months from the date of delivery set out in the Customer Order, such delay will not constitute a Force Majeure event pursuant to the terms of this Agreement nor a breach of the Terms of Trade by the Seller.
2.7 The Customer acknowledges and agrees that:
(a) the Customer has satisfied itself that the Goods, are suitable for the Customer's purposes; and
(b) the Customer has not entered into these Terms of Trade in reliance upon any warranty or representation given by the Seller in relation to the Goods.
2.8 If the total value of the Customer Order is $250 (excluding GST) or less, a $15 additional charge payable by the Customer will be applied to the Customer Order.
2.9 A freight and handling charge of 2.5% of the Customers total Customer Order will be added for each Customer Order the Seller delivers to the Customer (for the avoidance of doubt, this charge will not be applied to any Customer Order designated as ‘pick-up’ by the Customer).
2.10 If the Customer seeks to order Goods in one or more Customer Orders that exceeds $20,000 inclusive of GST, the Seller may require the Customer to submit a Credit Application and the supply of Goods by the Seller to the Customer will be in accordance with the Credit Application and the Terms of Trade therein (if successful).
3.1 In respect of the Customer’s obligation to pay for the Goods, time is of the essence.
3.2 Payment for the supply of the Goods by the Seller to the Customer must be made on the following terms (Payment Terms) indicated on the Customer Order:
(a) within 7 days of the date of invoice issued by the Seller; or
(b) Lump sum upfront; or
(c) Cash of Delivery of the Goods.
3.3 If the Customer pays for the Goods by cheque or other negotiable instrument, payment shall be deemed to be made on the date on which the cheque or other negotiable instrument is cleared by the Seller’s bank.
3.4 If the Customer pays for the Goods by electronic funds transfer, payment shall be deemed to be made on the date on which the electronic funds transfer is received and cleared by the Seller’s bank.
3.5 If the Customer is in default of payment, any payments made by the Customer following the default will be applied at the discretion of the Seller.
4.1 Title to the Goods shall remain with the Seller and not pass to the Customer until the purchase price for the Goods, including those produced under a licence agreement, has been paid in full in accordance with the Payment Terms, including any amounts owed by the Customer under clause 6.1 or otherwise, by the Customer and received by the Seller.
4.2 Notwithstanding clause 4.1, the Customer may sell the Goods in the ordinary course of business, as the Seller’s fiduciary and agent (but the Customer shall not hold itself out as such) and may for the purpose of any such sale part with possession of the Goods.
4.3 The risk in relation to any Goods passes to the Customer on:
(a) delivery of the Goods to the delivery address specified by the Customer; or
(b) collection by the Customer,
and the Customer shall, at its own cost, insure the Goods in the Seller’s name against such risks as a prudent owner of the Goods would insure
(c) for the full insurable value of the Goods.
4.4 These provisions apply notwithstanding any arrangement under which the Seller provides credit to the Customer. To the extent that there is inconsistency these provisions prevail.
4.5 If the Goods are not paid for by the Customer within the Payment Terms the Seller, without prejudice to any other rights it may have, may:
(a) Recover the purchase price for the Goods, including any amounts owed by the Customer under clause 5 or otherwise, by commencing legal proceedings and may file an application for the appointment of a liquidator for the Customer, notwithstanding that title in the Goods has not passed to the Customer; or
(b) Without prior notice, retake and resume possession of any Goods which the Seller retains title of, and the Customer authorises the Seller (or its Personnel) to enter the Customer’s premises, or the premises on which the Goods are stored, for that purpose if:
4.6 Upon retaking possession of Goods under clause 4.5, the Seller will within a reasonable period of time inspect those Goods and credit the Customer’s account with such sum as the Seller in its absolute discretion considers to be a fair and reasonable value of the said Goods after making due allowance for the price for which those Goods were sold to the Customer, the condition of the Goods at the time of repossession and the costs incurred by the Seller in connection with the repossession sorting and examination of the Goods.
5.1 The Seller may at any time register its interest in the Goods supplied to the Customer on the personal property security register (PPSR). For the avoidance of doubt, the Seller’s interest in the Goods constitutes a ‘purchase money security interest’ pursuant to the Personal Property Securities Act 2009 (Cth) (PPSR Act). The Customer agrees to, immediately on request by the Seller, sign any documents, provide any information, do any act or consent to any act being done by the Seller to ensure the Seller’s purchase money security interest is enforceable, perfected and otherwise effective.
5.2 To the extent that Goods supplied are not goods used predominantly for personal, domestic or household purposes, the parties agree that sections 95 (notice of removal of an accession), 121(4) (notice of enforcement – liquid assets), 129(2) (notice of disposal by purchase), 130 (notice of disposal to grantor), 132(3)(d) (contents of statement of account), 132(4) (statement of account no disposal), 134(2) (notice of retention of collateral), 135 (notice of retention), 142 (redemption of collateral), 143 (reinstatement of security agreement) and 157(1)and (3) (provision of verification statement) of the PPSR Act do not apply and the Customer expressly and irrevocably waives any rights it might otherwise have under these sections. To the extent any rights the Customer may have under any specific section as listed above cannot be waived or is deemed unenforceable, such section shall be severed from this clause and the remainder of clause 5.1 shall remain enforceable.
5.3 The Seller is under no obligation to provide the Customer with any notice of verification statement in connection with any security interest arising in favour of the Seller under a transaction contemplated by this clause or these Terms of Trade.
5.4 The Customer agrees not to change any of its details required for registration of any security interest arising in favour of the Seller under a transaction contemplated by these Terms of Trade without giving the Seller at least 14 days' prior written notice of the change.
5.5 Everything the Customer is required to do under this clause is at its own sole expense. The Customer agrees to pay (if demanded) the Seller’s costs, charges and expenses (including registration fees) in connection with anything the Seller does under this clause and in connection with enforcing any security interest arising in favour of the Seller under a transaction contemplated by these Terms of Trade, including legal fees on a full indemnity basis.
5.6 For the purposes of this clause, terms used in reference to the PPSR have the same meaning as in the PPSR Act.
6.1 If the Customer defaults in making payment to the Seller in accordance with these Terms of Trade, dies or becomes of unsound mind or permanently disabled or any of the events referred to in clause 4.5(b)(i)-(iv) occurs:
(a) the total sum owing by the Customer to the Seller for all Goods shall immediately become due and payable;
(a) the total sum owing by the Customer to the Seller for all Goods shall immediately become due and payable;
(c) the Seller may in its absolute discretion debit the Customer’s account with:
7.1 A claim relating to failure of delivery, late delivery or in respect of any faulty Goods will only be considered if received by the Seller in accordance with clause 7.2 within 7 days of the date of delivery or date of collection by the Customer (Claim Period) and a valid reason for return provided. The Seller shall not be liable in any way whatsoever for claims made after the Claim Period.
7.2 No Goods will be accepted for return without the prior consent of the Seller and must be accompanied by the authorisation number provided by the Seller to the Customer. Where authorisation is provided for return of Goods, all such Goods must be returned in original packaging in good order and condition, the same as originally delivered to the Customer, accompanied by the original invoice and authorisation number. The Seller undertakes to arrange for Goods to be collected from the Customer for return by the Seller’s authorised carriers. The Seller will have no responsibility whatsoever for the cost of carriers arranged by the Customer and not authorised in advance by the Seller.
7.3 If Customer has signed off and approved artwork for the Goods, the Seller will not accept return of the Goods on the basis that the artwork is incorrect, provided that it complies with the artwork that has been signed off by the Customer at the time of the Customer Order being made.
7.4 If Customer has an entitlement to make any claim (other than a claim under clause 7.1) against the Seller, the Customer must:
(a) the methods and conditions of application and use of Goods by the Customer are beyond the control of the Seller; and
(b) the Seller will not be subject to any warranties implied by law (which are not capable of being excluded or modified) or be held liable for any loss or damage sustained by the Customer as a consequence of any incorrect advice, recommendation or information provided by the Seller (or its Personnel) regarding the methods and conditions of application and use of the Goods regardless of whether such loss or damage was caused by any act of negligence, act of recklessness or any breach of any duty of care which may be owed to the Customer by the Seller (or its Personnel).
7.5 The Customer acknowledges and agrees that:
(a) the methods and conditions of application and use of Goods by the Customer are beyond the control of the Seller; and
(b) the Seller will not be subject to any warranties implied by law (which are not capable of being excluded or modified) or be held liable for any loss or damage sustained by the Customer as a consequence of any incorrect advice, recommendation or information provided by the Seller (or its Personnel) regarding the methods and conditions of application and use of the Goods regardless of whether such loss or damage was caused by any act of negligence, act of recklessness or any breach of any duty of care which may be owed to the Customer by the Seller (or its Personnel).
7.6 Subject to any warranties implied by law (which are not capable of being excluded or modified), the total liability of the Seller and its Personnel to the Customer for any claim under these Terms of Trade is limited to one of the following:
(a) replacement of the Goods or the supply of equivalent Goods; or
(b) the payment of the cost of replacing the Goods or of acquiring equivalent Goods
but does not extend to Consequential Loss.
7.7 Except where non-excludable rights under Schedule 2 of the Competition and Consumer Act 2010 (Cth) (as amended) (Act) (or analogous legislation) apply in relation to the supply of Goods by the Seller and to the extent permitted by law, the Seller excludes all liability, loss, damages, costs and expenses (including Consequential Loss), whether in contract, tort (including negligence), statute or otherwise (Loss), incurred by the Customer or any other person in connection with the supply of the Goods, regardless of whether such Loss was foreseeable and even if its possibility had been made known and any liability to the Customer or any other person for any Loss incurred as a result of the Customer or any other person not using the Goods or in accordance with guidelines, specifications or in a reasonably foreseeable manner.
8.1 The Seller may at any time and for any reason cancel a Customer Order.
8.2 Where the Seller cancels a Customer Order in accordance with this clause 8.1, the Customer will be entitled to a full refund of monies paid.
8.3 The Seller may terminate a Customer Order and these Terms of Trade where the Customer has committed a material breach of these Terms of Trade.
8.4 The Seller is not liable for any loss including Consequential Loss incurred by the Customer or any other person by reason of the termination of these Terms of Trade.
The Customer acknowledges and agrees:
(a) If the Customer changes the entity under which they trade, the Customer must immediately notify the Seller of such change in writing and agrees that to continue to deal with the Seller, a new Terms of Trade must be negotiated and signed by the new entity.
(b) Until new Terms of Trade are entered into with the new entity:
10.1 The Customer represents and warrants to the Seller that:
(a) the Customer is not aware of any information, notice or court proceedings that may result in the appointment of a trustee in bankruptcy, administrator, controller or managing controller, receiver or receiver manager or liquidator to it or any of its property.
(b) the Customer does not intend to enter into any scheme of arrangement with creditors either formally through a court or otherwise.
(c) None of its officers (if it is a company or other body corporate), partners (if it is a partnership) or it (if it is a sole trader) has been a director of a company which has been placed in liquidation or has been declared bankrupt or has entered into an arrangement under the Bankruptcy Act 1966 (Cth) (as amended).
10.2 The Customer agrees to notify the Seller in writing as soon as practicable and in any event within 3 days of the occurrence of the (suspected or actual) appointment of a liquidator, administrator or receiver, or the liquidation, administration, arrangement, receivership or bankruptcy of the Customer or any step being taken to sell an asset or assets of the Customer with a value of 20% or more of the gross assets of the Customer, or sell, transfer, encumber or otherwise dispose of 20% or more of the shares (if it is a company or other body corporate) of the Customer.
If the Customer is the trustee of the trust, it warrants and agrees that it enters into this Agreement in both its capacity as a trustee and in its personal capacity, it has the right to be indemnified out of the trust assets, it has the power and authority under the trust deed to sign this Agreement and will advise the Seller immediately if it ceases to be the trustee and the new trustee will be required to enter into a new agreement with the Seller.
No waiver by the Seller (or its Personnel) of any one breach of these Terms of Trade shall operate as a waiver of another breach of the same term or breach of any other term of these Terms of Trade or restrict in any way the Seller’s rights in contract, law or equity to rely on and enforce these Terms of Trade for any other breach.
13.1 For the purpose of assessing the credit worthiness of the Customer from time to time, to facilitate the delivery of Goods and collection of payments (including overdue payments), the Customer irrevocably authorises the Seller (including its Personnel) to make such enquiries they deem necessary, including but not limited to making enquiries with and obtaining reports (as permitted by law) from persons nominated by the Customer as trade references, the Customer’s creditors, bank, financiers, credit providers, mortgage and trader insurers and credit reporting agencies (together the Agencies).
13.2 The Customer consents to the Agencies providing to the Seller all information requested and relevant to the purposes of collection identified in clause 13.1.
13.3 The Customer consents to the Seller disclosing the contents of any credit report or personal information to a credit reporting agency for the purposes of that credit reporting agency creating or adding to any credit information file in relation to the Customer.
13.4 The Seller will comply at all times with their obligations in the Privacy Act 1988 (Cth) (Privacy Act) and the Australian Privacy Principles including taking all necessary steps to protect personal information (as defined in the Privacy Act) in its possession against misuse or loss.
These Terms of Trade and any warranties implied by law which are not capable of being excluded or modified embody the entire understanding and agreement between the Seller and the Customer in relation to the subject matter of these Terms of Trade and, subject to the express terms contained in any written customer order and written acceptance by the Seller (which shall only apply to that particular order), all prior negotiations, representations, warranties, arrangements or statements, whether express or implied, are excluded. A single or partial exercise of a right, power or remedy under these conditions does not preclude any other or further exercise of that or any other right, power or remedy.
The Seller may assign or otherwise deal with its rights under these Terms of Trade without the Customer's consent. The Customer must not assign, or purport to assign its obligations under these Terms of Trade without the express prior written consent of the Seller, which may be granted or withheld in the Sellers absolute discretion.
The Seller may amend or replace these Terms of Trade in its absolute discretion by providing prior written notice to the Customer. The amended or replacement Terms of Trade apply with effect from the date stipulated in the notice (which must be no earlier than the date the notice is given to the Customer) and do not affect accrued rights and obligations.
These Terms of Trade and the Customer Order may be signed in counterparts if expressly permitted by the Seller. Each counterpart when so executed shall be deemed to be an original and all of which together shall constitute one and the same document. The application of a wet signature or digital signature via DocuSign (only by the Seller) will constitute a valid and legally binding execution of these Terms of Trade.
Any provision of these terms that is unenforceable is, where possible, to be severed to the extent necessary to make these terms enforceable.
The parties acknowledge and agree that these Terms of Trade will be governed by and construed in accordance with the laws in force in Victoria, Australia and each party submits to the jurisdiction of the courts of Victoria, Australia.
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