Terms of Trade
Link Sports Pty Ltd
[ ABN: 86 168 912 703 ]
Terms of Trade
General
1. You are the Customer referred to in the Application for Customer Credit and these Terms of Trade.
2. The Guarantor is the person referred to in the Application for Customer Credit and these Terms of Trade.
3. These general agreed terms apply to all transactions between us. Other documents relating to our transactions and any additional special conditions are described and provided as attached to this document or as provided to you during the terms of our engagement.
4. If you are a company we may require a personal guarantor of your company’s obligations.
5. “Price” means our fixed and published price or the amount agreed between us or the amount established by a course of dealing between us. The price unless otherwise agreed does not include GST, delivery costs and other costs of which we notify you in the communications between us. The price is for the quantities identified in the order forms or tax invoices we provide to you.
6. The observation of agreed time frames is of primary importance.
7. “Business Day” means Monday to Friday except public holidays which apply to the state of New South Wales. If you must make a payment or do any other thing on or by a day that is not a Business day you must make the payment or do the thing on or by the next Business day.
Payment
8. Unless otherwise agreed normally payment is a condition precedent to delivery of the goods.
9. The due date for payment is as is provided on the order forms and tax invoice provided by us to you.
10. By accepting payment of any sum after its due date we do not waive our right either to require payments as they fall due or to suspend or end our arrangements.
11. You and any guarantor will be in default if you do not pay us when monies are due for payment or fail to comply with any other obligation under our business arrangements.
12. If you are in default under our agreement we may send you a default notice. The notice will tell you what the default is and what you are required to do to correct the default. You will have 14 business days to rectify the default.
13. If you do not comply with the default notice we may suspend any credit we have provided to you and we may suspend all current and future orders submitted by you to us.
14. If you do not comply with the default notice you become immediately liable to pay us all monies owing with interest on that amount from the due date until payment at the rate of 5% per annum which you agree is a reasonable estimate of the damages incurred by us in the event of a default by you. In these circumstances, as title to the goods do not pass to you until we have been paid, we may repossess and sell the goods and apply the proceeds of the sale towards repayment of the monies owed under the agreement.
15. You also agree to pay on default all costs and expenses incurred by us in exercising our rights of recovery from you and the guarantor if any and indemnify us against any losses resulting from the default.
Title and security in goods
16. Title in the goods does not pass to you until we have received payment in full.
17. To protect our security interest in the goods until payment we may choose to register that security interest and any purchase money security interest [PMSI] contained in the agreement between us under the Personal Properties Securities Act 2009. You agree to do all things necessary to facilitate such registration and you waive the right to receive a Verification Statement in respect of any such registration
18. On default in payment you irrevocably permit us or any person authorised by us in writing upon reasonable notice to enter your premises or the premises where the goods are reasonably believed by us to be held on your behalf. You also agree to indemnify and hold us harmless for all reasonable costs and expenses of recovery of the goods and losses if any on their resale.
19. You agree to sign documents or do all things necessary to perfect our rights under the agreement and appoint us as your attorney to sign any document or do anything that may reasonably be required to enforce our rights on default.
Passing of risk
20. Unless otherwise agreed risk passes to you at the time we dispatch the goods ordered by you from our ordinary place of business or the place of business of our supplier to your specified location. You must insure the goods with your own insurer against loss or damage from the time of the risk passing to you upon dispatch by us. You assume all responsibility for filing claims for damage against the carriers and other agents.
21. If any of the goods are damaged or destroyed after shipment you must direct the insurer to make payment to us of all insurance monies payable in respect of the insurance claim made on the damaged or destroyed goods.
22. Insurance monies received by us will be applied firstly against the outstanding price of the goods that are damaged or destroyed, secondly against the outstanding price of all goods supplied under the agreement, thirdly against the outstanding balance payable to us by you on any account under our agreements and fourthly in payment of any balance to you.
Representation and warranty by you
23. You represent and warrant to us that all information and representations that you, or any person acting on your behalf has given in connection with our transactions are true and correct and that you have not failed to disclose to us anything relevant to our decision to have dealings with you and that no court proceedings or dispute is current that may have an adverse effect on performing your obligations under this agreement.
24. You must notify us in writing if you change ownership of your entity including any change to the majority shareholding of your private company and failure to do so may constitute a default by you.
Acceptance of goods
25. Acceptance of the goods must take place immediately following delivery and is established if you signify by words or conduct that the goods are conforming or that you retain them in spite of their nonconformity or deal with them in a way inconsistent with our ownership. You may reject them on good grounds after a reasonable opportunity to inspect them. The rejection must immediately be communicated to us and within 7 days of receipt by you with full particulars of the nonconformity. On acceptance if payment arrangements are in place then they must be honoured. If payment has been made then it will either be refunded by us or credited towards payment of replacement goods for the nonconforming goods.
26. Your right, as against us to retain or dispose of the goods or services delivered or supplied is conditional upon you honouring our payment arrangements.
27. We have undertaken an inspection of the goods to the extent required by us as wholesalers under the relevant laws including Trade Practices (Consumer Product Safety Standard) (Bicycle Helmets) Regulations 2001 and the relevant parts of AS/NZS 2063 as amended and you must ensure that you will undertake the examination and inspection of goods supplied by us and perform your obligations in respect of those goods as required under the Australian Consumer Law and associated standards and legislation including your obligations in respect of the supply of goods to consumers in accordance with those laws and standards.
Disputes
28. When a dispute arises between us you agree to comply with our dispute resolution process. To this end a party with a complaint against the other is first required to notify the other of the dispute by giving written notice specifying the nature of the dispute, the outcome required and the action believed necessary under the circumstances that will assist both in settling the dispute.
29. Each party will in good faith attempt to resolve the dispute by negotiation, and if the dispute in some aspect involves payment of monies, the party withholding payment is required immediately upon receipt of the notice to deposit the disputed amount into an escrow account with instructions pertaining to the release of funds. Undisputed amounts must be paid forthwith.
Notices
30. Notices must be in writing and be given personally by Express or Registered Post with delivery confirmation or by email to accounts@linksports.com.au.
Guarantee
31. Other than in the case where you are an individual sole trader or a public company we may require a personal guarantee from the following persons:
(a) In the case of a company, including corporate trustees, with a sole director then that director may be required to provide the personal guarantee; or
(b) a minimum of 2 directors in the case of other private companies including corporate trustees; or
(c) a minimum of 2 partners of a partnership.
32. All guarantors shall be jointly and severally liable for performance of all of the terms, covenants, and conditions of our agreements.
33. You and the guarantors jointly and severally authorise us to exchange information about the creditworthiness of either yourself or the guarantors with any credit reporting agency at any time during the term of the agreement.
Force Majeure
34. Neither you nor us will be liable for any loss incurred by that other party as a direct result of either party failing or being prevented, hindered or delayed in the performance of its liability under this Agreement by reason of a force majeure event.
35. The party affected by the force majeure event must as soon as reasonably practicable notify the other party of any anticipated delay or other non-compliance by them of their obligations under these terms and provide an estimated time by which compliance will occur.
36. In the event that the delay due to a force majeure event continues in excess of the date contained in the notice then the parties will use their best endeavours to rectify the situation and minimise the damage incurred to both parties arising out of the force majeure including accounting to the other party for the proceeds of insurance received by a party which are deemed to be due to the other party but for the force majeure event.
Intellectual Property
37. You agree that any goods or services provided by us may include the intellectual property of third parties including manufacturers of goods and you agree that you will not pass off or use that intellectual property without the prior written consent of the owner of the said intellectual property and you indemnify us in respect of any claim arising from or related to a breach by you of this term. This is an essential term of our contract with you.
Privacy
38. In the event that you are an individual or enterprise within the jurisdiction of the Australian Privacy Principles and you provide us with personal information we will comply with the Australian Privacy Principles in respect of that personal information and we will not disclose any personal information for any purpose other than the sole stated purpose of supplying you with the goods as agreed.
Jurisdiction
39. The jurisdiction of the agreement between us is the state of New South Wales and the Commonwealth of Australia and you agree to submit to those jurisdictions.