Terms and Conditions
1 General
The whole of the Agreement between Tri-Gear & Gadgets Pty Ltd ABN 93 060 314 365 trading as GKA Sports Distribution ("GKA") and the Applicant referred to in the Credit Application (“Customer”) are those
set out in these Terms and Conditions as amended from time to time and those, if any, which are implied and which cannot be excluded by law (“Terms”). Any other contractual terms of the Customer (whether upon the Customer’s order or elsewhere) which are contrary to or inconsistent with these Terms shall not apply nor shall they constitute a counter-offer. By receiving delivery and/or supply of all or a portion of the goods, materials and/or parts and/or labour and/or services supplied by GKA under these Terms ("Goods"), the Customer shall be deemed to have accepted these Terms and to have agreed that they
shall apply to the exclusion of all others. All Goods are charged at the price ruling at the date of invoice and any GST within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 or other
government imposts shall be payable by the Customer in addition.
2 Credit Terms
2.1 Payment is due on or prior to thirty (30) days from the end of the month in which the Goods were purchased unless otherwise stated in writing by GKA. GKA may charge liquidated damages at a rate equivalent to two and a half percent (2.5%) per month if payment is not received by the due date.
2.2 GKA's express or implied approval for extending credit to the Customer may be revoked or withdrawn by GKA at any time.
2.3 GKA is entitled to set-off against any money owing to the Customer amounts owed to GKA by the Customer on any
account whatsoever.
2.4 Any payments received from the Customer on overdue accounts will be applied first to satisfy interest which may have accrued, second to reasonable expenses and legal costs referred to in Clause 2.5, and then to principal.
2.5 The Customer is liable for all reasonable expenses (including contingent expenses such as debt collection commission) and
legal costs (on a full indemnity basis) incurred by GKA for enforcement of obligations and recovery of monies due from the
Customer to GKA.
3 Quotations and Pricing
3.1 Prices charged for Goods will be according to a current quotation for those Goods. Otherwise, they will be determined by GKA by reference to its standard prices in effect at the date of delivery (whether notified to the Customer or not and regardless of any prices contained in the order). GKA will use its best endeavours to notify the Customer of price changes but bears no liability in respect of this.
3.2 Any quotation by GKA shall not constitute an offer.
3.3 Any quotation, acceptance of quotation, purchase order or other document which requires signature may be signed in electronic form, and such signature shall be binding upon the person affixing that signature.
3.4 Unless otherwise specified by GKA, the prices exclude:-
3.4.1 Any statutory tax, including any GST, duty or impost levied in respect of the Goods and which has not been
allowed for by GKA in calculating the price.
3.4.2 Costs and charges in relation to insurance, packing (other than the standard packing of GKA), crating, delivery
(whether by road, rail, ship or air) and export of the Goods.
3.5 Any variations in the invoice or contract price as a consequence of currency fluctuations shall be payable by the Customer.
3.6 The contract between GKA and the Customer shall not be affected by any impositions or alterations of customs duties or by
decisions of the Customs Department with regard to either classification or value of duty or landing charges occasioned
thereby. Any such impositions shall be to the account of the Customer.
4 Delivery and Supply
4.1 Any times quoted for delivery and/or supply are estimates only and GKA shall not be liable for failure to deliver/supply, or for delay in delivery/supply. The Customer shall not be relieved of any obligation to accept or pay for Goods, by reason of any delay in delivery/supply or dispatch. GKA reserves the right to stop supply at any time if the Customer fails to comply with the Terms.
4.2 GKA may refuse to supply any order by the Customer for Goods in its absolute discretion and may make acceptance of an order conditional upon it receiving a satisfactory credit assessment of
the Customer.
4.3 If the Customer directs that delivery of the Goods be staggered over different times or to different addresses from those specified in the Credit Application, then the Customer:
4.3.1 shall be liable for any additional cost, charge and expense incurred by GKA in complying with the
Customer's direction; and
4.3.2 shall pay for the whole of the invoiced value of the Goods notwithstanding the staggered deliveries.
4.3.3 Such action shall be deemed to be delivery to the Customer.
4.4 The Customer is deemed to accept delivery of the Goods where it is either delivered to the Customer's premises or when GKA notifies the Customer that the Goods are available for collection.
4.5 If the Customer is unable or fails to accept delivery of the Goods, GKA may deliver it to a place of storage nominated by the
Customer and, failing such nomination, to a place determined by GKA. Such action shall be deemed to be delivery to the
Customer. The Customer shall be liable for all cost, charge and expense incurred by GKA on account of storage, detention,
double cartage/delivery or similar causes.
4.6 Subject to Clause 4.1, the Customer agrees that it will be obliged to and shall pay for the Goods on the due date notwithstanding that delivery is made after the agreed delivery date, and notwithstanding that the Goods may not yet be delivered.
5 Property
5.1 Until full payment has been made for all Goods, and any other sums in any way outstanding from the Customer to GKA from
time to time:-
5.1.1 All sums outstanding become immediately due and payable by the Customer to GKA if the Customer makes default in paying any other sums due to GKA, becomes bankrupt, or commits any act of bankruptcy, compounds with its creditors, has judgment entered against it in any court or, being a company, has a provisional liquidator, liquidator, receiver, receiver manager or administratorappointed, notwithstanding the provisions of any other
clause in these Terms.
5.1.2 The property in the Goods shall not pass to the Customer and the Customer shall hold the Goods as bailee for GKA
(returning the same to GKA on request). The Goods shall nevertheless be at the risk of the Customer from the time
of delivery/supply and the Customer must insure the Goods from the time of delivery/supply.
5.1.3 The Customer is only authorised to sell the Goods (or any portion of them) to third parties as the fiduciary agent of
GKA provided that there shall be no right to bind GKA to any liability to such third party by contract or otherwise.
All payments (direct or indirect) received from such third parties by the Customer for the Goods (or any portion of
them) shall be held on trust for GKA pursuant to the fiduciary relationship.
5.1.4 In the event that the Customer incorporates or transforms the Goods (or any portion of them) into any other goods
or products produced by the Customer (or a third party), then the Customer must hold a proportion of any payment
("relevant proportion") received by the Customer for such goods or products on trust for GKA. The Customer
expressly acknowledges that the relevant proportion shall be equal to the dollar value of the Goods incorporated or
transformed and the Customer further acknowledges that any part payment (not exceeding the relevant proportion)received by the Customer for such goods or products is received as payment first of the relevant proportion.
5.1.5 GKA is irrevocably authorised to enter any premises where the Goods are kept, and to use the name of the
Customer and to act on its behalf, if necessary, to recover possession of the Goods without liability for trespass or
any resulting damage.
5.2 In addition to any lien to which GKA may, by statute or otherwise, be entitled, GKA shall in the event of the Customer's insolvency,bankruptcy or winding up, be entitled to a general lien over all property or goods belonging to the Customer in GKA>'s possession (although all or some of such property or goods may have been paid) for the unpaid price of any Goods sold or delivered to the Customer under this or any other contract.
6 Availability of Stock
Any order that cannot be fulfilled on its receipt will automatically be back ordered and processed when stock becomes available unless the Customer specifically marks its order, "Do Not Back Order" or the Customer notifies GKA in writing within seven (7) days of receipt of the notification that the Goods have been placed on backorder. Deliveries at any time are subject to availability of stock and GKA will not be liable for any loss or damage due to product unavailability.
7 Restrictions
7.1 The Customer acknowledges and accepts that GKA sells its goods only through persons who have been authorised by GKA
to sell specific product categories at specific locations and who comply with GKA's Terms and Conditions.
7.2 Under no circumstances may the Customer sell Goods through the Internet or the mail without prior written authorisation from GKA.
7.3 The Customer is prohibited from selling Goods on the international market without the express written consent of GKA.
7.4 GKA does not grant to the Customer the exclusive rights to sell its Goods. GKA reserves the right to authorise and/or supply
additional retailers in any market area that it deems necessary to adequately cover the market.
8 Freight
Subject to Clause 3.4 and unless otherwise agreed, GKA will procure the delivery/supply by the least expensive route and carrier to all points. If the purchaser chooses a route or carrier with a higher charge than that chosen by GKA, GKA will charge the difference to the Customer.
9 Returns, Cancellations and Claims
9.1 The Customer shall not return any Goods to GKA without obtaining prior authorisation from GKA. No returns will be
accepted unless a copy of the relevant invoice is enclosed with the returned Goods. A list of the Goods returned including
product descriptions, quantity, date of return and the Customer's name and address must also be enclosed. Freight charges must be paid by the Customer. All Goods must be returned in the original packaging and the Customer shall be responsible for alldamage incurred during return shipment. A credit note will be issued by GKA only after Goods returned are either collected by
GKA's authorised representative or agent or returned to it by the Customer as set out above. The Customer shall not deduct the
amount of any anticipated credit from any payment due to GKA but must await receipt of a credit note.
9.2 All goods returned must be of merchantable and reasonable quality such that the goods are complete in their original
packaging, not shop-soiled, are not price ticketed and are still listed in the current price list.
9.3 If GKA accepts the return of any Goods that have been ordered, GKA may charge the Customer fifteen per cent (15%) of the invoice price as a handling fee with freight costs and risk remaining the responsibility of the Customer.
9.4 No cancellations or partial cancellation of an order by the Customer shall be accepted by GKA unless it has first consented
in writing to such cancellation or partial cancellation and unless a cancellation charge has been paid which, as determined by GKA, will indemnify GKA against all loss, without limitation.Cancellation will not be accepted on goods that are not regular
stock which are in the process of manufacture or ready for shipment.
9.5 All complaints, claims, or notification of lost Goods, incomplete Goods, Goods damaged in transit or Goods that do not comply with the Customer’s purchase order must be submitted by the Customer to GKA in writing within seven (7) business days of the date of the invoice rendered for the supply of the Goods. Otherwise, the Customer shall be deemed to have accepted the Goods and shall not refuse to pay for the Goods on the basis that they were lost, incomplete, damaged in transit, or do not comply with the Customer’s purchase order.
9.6 Where GKA has received a complaint, claim or notification of lost Goods in accordance with Clause 0 and such complaint, claim or notification is not disputed, GKA will arrange for the collection of Goods that were damaged in transit or do not comply with the Customer's purchase order and the delivery of replacement or lost Goods at GKA's expense.
10 Personal Property Security Interest
10.1 The Customer grants GKA a Security Interest in the Goods (supplied as Commercial Property, more particularly described as Other Goods) and their Proceeds to secure the obligation of the Customer to pay the purchase price of the Goods and any other obligations of the Customer to GKA under this contract (together the “Indebtedness”) and, where the Goods and/or Proceeds are not readily identifiable and/or traceable or their recoverable value is insufficient to pay the Indebtedness, the security interest shall also extend to all the Goods present and after acquired by the Customer, of which the Goods form part, to the extent required to secured the Indebtedness.
10.2 As and when required by GKA the Customer shall, at its own expense, provide all reasonable assistance and relevant
information to enable GKA to register a Financing Statement or a Financing Change Statement and generally to obtain, maintain, register and enforce GKA’s Security Interest in respect of the Goods and their Proceeds in accordance with the Personal Property Securities Act 2009 (“PPSA”).
10.3 GKA may at any time register a financing statement or financing change statement in respect of a Security Interest (including any Purchase Money Security Interest). The Customer waives any right to receive notice in relation to any registration on the register of a Security Interest in respect of the Goods.
10.4 The Customer shall not change its name or details without first notifying GKA of the new name or details at least 7 days before the change takes effect.
10.5 The Customer warrants that the Goods are not purchased for personal, domestic or household purposes.
10.6 Notwithstanding any reference to a particular invoice/order, where any sum remains outstanding by the Customer on more than one invoice/order, any payments received from the Customer shall be deemed to be made by the Customer and applied by GKA in the following order (unless GKA otherwise determines):
10.6.1 To any obligation owed by the Customer to GKA which is unsecured, in the order in which the obligations were
incurred;
10.6.2 To any obligations that are secured, but not by a Purchase Money Security Interest, in the order in which
those obligations were incurred;
10.6.3 To obligations that are secured by a Purchase Money Security Interest, in the order in which those obligations
were incurred.
10.7 Until the Customer has paid all money owing to GKAe the Customer shall at all times ensure that:
10.7.1 All Goods, while in the Customer’s possession, can be readily identified and distinguished, and/or
10.7.2 All Proceeds (in whatever form) that the Customer received from the sale of any of the goods are readily
10.8 Where the Goods are purchased by the Customer and held as Inventory, nothing in this clause shall prevent the Customer from selling or leasing and delivering the Goods in the ordinary course of the Customer’s business. Otherwise until the Customer has paid all money owing to GKA the Customer shall not sell or grant a Security Interest in the Goods without GKA’s written consent.
10.9 The parties agree to contract out of the PPSA in accordance with Section 115 of the PPSA to the extent that Section 115 applies for the benefit of, and does not impose a burden on, GKA. Specifically, the following provisions of the PPSA will not apply
and the Customer will have no rights under them:
10.9.1 Section 95 (to the extent that it requires the Secured Party to give notices to the Grantor); section 96; section
118 (to the extent that it allows a Secured Party to give notice to the Grantor); section 121(4); section 125;
section 130; section 132(3)(d); section 132(4); section 135; section 142; section 143.
10.9.2 Section 115(7) of the PPSA allows for the contracting out of provision of the PPS Act, the following provisions of the
PPS Act will not apply and the Customer will not have any rights under them: section 127; section 129(2),(3);
section 130(1); section 132; section 134(2); section 135; section 136(3), (4) and (5) and section 137.
10.10 Unless otherwise agreed and to the extent permitted by the PPSA, the Customer and GKA agree not to disclose any
information of a kind referred to in section 275(1) of the PPSA to an interested person or any other person. The Customer waives any rights which it may have, or but for this clause it may have had had, under section 275(7)(c) of the PPSA to authorise the disclosure of the above information.
10.11 GKA is irrevocably authorised to enter any premises where the goods are kept, and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the Goods and seize the Goods in accordance with the Act without liability for trespass or any resulting damage.
11 Privacy Act 1988 (“Privacy Act”)
To enable GKA to assess the Customer’s application for credit, the Customer authorises GKA:-
11.1 To obtain from a credit reporting agency a consumer or commercial credit report containing personal information about
the Customer and its guarantors pursuant to Section 18K(1) of the Privacy Act; and
11.2 To obtain a report from a credit reporting agency and other information in relation to the Customer’s commercial credit
activities, and
11.3 To give to a credit reporting agency information including identity particulars and application details AND in accordance with Section 18N(1) of the Privacy Act the Customer authorises GKA to give to and obtain from any credit provider
named in the accompanying credit application and credit providers that may be named in a credit report issued by a credit reporting agency information about the Customer’s credit arrangements. The Customer understands that this information can include any information about its credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act. The Customer understands that information can be used for the purposes of assessing its application for credit (Section 18L(4) Privacy Act), assisting it to avoid defaulting on its credit obligations, assessing its credit worthiness and notifying other credit providers and credit reporting agencies of a default by it under these Terms.
12 Notification
The Customer must notify GKA in writing within seven (7) days of:
12.1 Any alteration of the name or ownership of the Customer.
12.2 The issue of any legal proceedings against the Customer.
12.3 The appointment of any provisional liquidator, liquidator, receiver,receiver manager or administrator to the Customer.
12.4 Any change in the ownership of the business name of the Customer. The Customer agrees that it shall be liable to GKA for
all Goods supplied to the new owner by GKA until notice of any such change is received.
13 Warranties
13.1 No warranties except those implied and that by law cannot be excluded are given by GKA in respect of Goods supplied. Where it is lawful to do so, the liability of GKA for a breach of a condition or warranty is limited to the repair or replacement of the Goods,the supply of equivalent Goods, the payment of the cost of repairing or replacing the Goods or acquiring equivalent Goods, as determined by GKA.
13.2 The Customer must notify GKA of all claims it receives from endusers in relation to a breach of a warranty. All Goods the subject of a breach of warranty claim must be returned to GKA for GKA to assess whether there has been a breach of a warranty.
13.3 Where the wholesale value of the Goods the subject of a breach of warranty claim is fifty dollars ($50) or less, the Customer may replace the end-user's Goods before returning the Goods to GKA for assessment. The Customer's decision in relation to the replacement of Goods does not bind GKA and GKA will not indemnify the Customer for any loss suffered as a consequence.
13.4 Where the wholesale value of the Goods the subject of a breach of warranty claim is for more than fifty dollars ($50), the Customer must not replace the Goods but send the Goods directly to GKA for assessment.
14 Force Majeure
GKA shall be released from its obligations in the event of national emergency, war, prohibitive governmental regulation or if any other cause beyond the control of the parties renders provision of the Goods impossible, where all money due to GKA shall be paid immediately and, unless prohibited by law, GKA may elect to terminate the Agreement.
15 Equitable Charge
The Customer as beneficial owner and/or registered proprietor now charges in favour of GKA all of the Customer's estate and interest in any real property (including but not limited to any applicable land owned by the Customer named or described as the Customer's Street Address in the Credit Application if applicable) ("Land") to secure payment of accounts rendered by GKA to the Customer for the delivery and/or supply of the Goods including interest payable on these accounts and costs (including legal costs on a full indemnity basis) incurred by GKA and including the costs to prepare and lodge a Caveat against the Land and to remove the Caveat.
16 Failure to Act
GKA's failure to enforce or insist upon the timely performance of any term, condition, covenant or provision in these Terms, or GKA's failure to exercise any right or remedy available under these Terms or at law, or GKA's failure to insist upon timely payment of monies when due or to demand payment of any charges or fees which accrue or any extension
of creditor forbearance under these Terms shall not constitute a waiver of any subsequent default or a waiver of GKA's right to demand timely payment of future obligations or strict compliance with the Terms.
17 Legal Construction
17.1 These Terms shall be governed by and interpreted according to the laws of Victoria and GKA and the Customer consent and
submit to the jurisdiction of the Courts of Victoria.
17.2 Notwithstanding that any provision of the Terms may prove to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason that provision is deemed omitted without affecting the legality of the remaining provisions and the
remaining provisions of the Terms shall continue in full force and effect.