TSCO
TERMS AND CONDITIONS
“Company”
collectively means each of TSCO Pty. Ltd. ACN 060 730 127, SNT Pty. Ltd. ACN 106
246 593 in its capacity as trustee of the SNT Trust and Smith Clothing Pty.
Ltd. ACN 105 442 019 in its capacity as trustee of the Smith Clothing # 2 Trust
severally (but not jointly or jointly and severally in any instance) and
reference to the Company is a reference to the respective entity which
contracts to supply goods or services to a Customer. “Customer(s)” means any person, firm, company, government body or
other entity which the Company contracts to supply goods or services.
1.
Orders
All orders for goods or
services from Customers which may be accepted by the Company are accepted on
the following conditions (the “Conditions”).
Any conditions of purchase offered by
Customers which purport to add to or are otherwise inconsistent with the
Conditions shall be deemed to be waived by the Customer upon placement of an
order by the Customer with the Company unless such conditions of purchase are
expressly agreed to by the Company in writing.
No order accepted by the
Company (in writing, orally or by conduct) may be cancelled or deferred by the
Customer without the prior written consent of the Company.
The Company reserves the
right to require orders to be for a minimum value determined by the Company
from time to time and to otherwise accept in whole or in part any orders for
goods or services by Customers or to decline such orders.
2.
Quotations and Published
Prices
Quotations issued by the
Company are open for the Customer to whom the quotation is addressed to place
an order within 30 days from the date of quotation (unless a shorter period is
expressly provided for in the quotation or the quotation is withdrawn by the
Company) and such orders are subject to acceptance by the Company in accordance
with Clause 1.
The issue of a quotation
and other publication of prices by the Company do not constitute offers to
supply, and are subject to changes in the costs of raw materials, exchange rate
fluctuations or other increases in the cost to the Company of supplying the
goods or services.
Quotations and orders
placed by Customers on such quotations are based on the information and details
provided by the Customer to the Company. Where exact specifications of the scope,
nature or extent of the work are not available to the Company at the time of
providing a quotation, such quotations are estimates only.
In the event the scope,
nature or extent of the work required to be undertaken by the Company to produce
the goods or provide the services change or the Customer requests any changes
to be made, the Customer will be responsible for and pay for all extra costs
and charges associated with such changes.
3.
Price
The Company reserves the
right to vary the prices charged from time to time without prior notification.
Published and quoted prices are (unless otherwise indicated) for the sale of
goods or provision of services Ex Works the Company’s premises and are
exclusive of any applicable goods and services tax and any applicable taxes and
duties and costs and charges associated with the carriage and insurance of
goods, and all such items shall be included as an additional item in the
invoiced price.
The Company shall be entitled to increase the
price for goods and services if there is an increase in the cost to the Company
of supplying the goods or services or an error by the Company in calculating
the price.
Goods and services
(including, without limitation, changes in the scope, nature or extent of work)
will be invoiced at the price ruling at the date of delivery.
4.
Payment
Where credit facilities
have been approved by the Company, payment for goods and services shall be due
and payable within 30 days of the date of invoice.
The Company reserves the
right to terminate all or part of the Customer’s credit facility at any time
and to require full or part payment with order or prior to delivery.
The Company may charge
interest on any overdue payments at the rate for the time being fixed under
section 2 of the Penalty Interest Rates Act 1983 (Vic) for the length of any
such delay in payment. The Company
reserves the right to withhold further deliveries of goods or the provision of
services until all arrears from the Customer have been paid.
The Company also reserves the
right to the extent permitted by law to charge all bank and other credit
provider or facility fees and charges incurred by the Company in processing the
Customer’s payment, including (without limitation) by credit card or for
dishonoured payment.
The Customer agrees to pay
all costs incurred by the Company for the collection of any monies owing by the
Customer to the Company which are not paid when due, including (without
limitation) commission charges by collection agencies and legal costs and
disbursements (on an own solicitor/client basis).
If the Customer is a person
or persons (as opposed to a company or other entity), the Customer charges any
property owned by the Customer whether alone or jointly as a tenant in common
or as a joint tenant in favour of the Company to secure any monies owing by the
Customer to the Company whether or not the Company has taken or has threatened
to take any action against the Customer in respect of such amounts.
5.
Supply and Delivery
Supply of goods and
services by the Company to the Customer shall (unless other terms of supply
have been agreed and accepted by the Company in writing on an order by order
basis) be Ex Works (the Company’s premises).
Delivery of, and transfer
of risk of loss and damage to, goods to the Customer shall be deemed to take
place upon the Company making the goods available for collection by the
Customer Ex Works (the Company’s premises) (unless other terms of supply have
been agreed and accepted by the Company in writing on an order by order basis). The Company shall not be responsible for any
loss or damage to goods in transit or otherwise once they have been delivered
to the Customer as aforesaid. If (where
applicable) the Customer has not made or notified the Company of arrangements
for delivery, the Customer hereby authorises and requests the Company to
nominate a carrier to take delivery of the goods from the Company on behalf and
at the risk of the Customer for carriage to the Customer or as the Customer
directs. Arrangements for insurance of
the goods are the responsibility of the Customer. Where the Company nominates a carrier on
behalf of the Customer, all freight and other carriage charges will be billed
to the Customer.
Signature of any delivery
note by any agent, employee or representative of the Customer (or where
delivery is to the Customer’s carrier, by such carrier or its agent) shall be
conclusive proof of delivery.
The Company will render to
the Customer such reasonable assistance as may be necessary to press claims on
carriers provided the Customer must have notified the Company and the carrier
in writing immediately if any loss or damage is discovered on receipt of goods
and must lodge a claim on the carrier within 3 days of the date of receipt of
the goods.
6.
Delivery
Whilst the Company endeavours to effect
deliveries or execute orders by the requested or estimated date, the Company
shall not be liable for any loss or damage whatsoever (including, without
limitation, special or consequential loss or damage) caused directly or indirectly
by any early delivery or delay or failure to deliver. The Company reserves the right to make
delivery in instalments and to invoice each instalment as a separate order.
7.
Specifications
The Company’s policy is one
of continuous development, and the Company therefore reserves the right to
improve, change, alter or discontinue fabrics, materials and other
specifications without prior notice. All
illustrations and samples are intended as approximate representations only and
are not binding in detail with regard to finishes, colour, shades, fabrics,
materials and other specifications. The
Company accepts no liability whatsoever for any loss or damage (including,
without limitation, consequential loss or damage), directly or indirectly,
arising out of or in connection with same.
8.
Materials
The Customer acknowledges
that due to the nature of the goods and services supplied by the Company
reasonable tolerances and variations in the quality, sizes, finishes, weight,
measurements, fabrics, materials, designs, patterns, shades, tints, colours,
shrinkage and other specifications of the goods and services may occur, and the
Customer agrees to accept same.
If the Customer intends to
print, embroider or otherwise alter ordered goods in anyway, the Customer is
encouraged to test the goods actually delivered prior to printing, embroidering
or otherwise altering in anyway, as the Company will not be liable for or
accept for return any goods which have been printed, embroidered or otherwise
altered in anyway.
9.
Special Orders
Orders for specially
ordered goods or services shall not be cancelled or deferred by the Customer
without the prior written consent of the Company.
The Customer acknowledges
and agrees that the Company may require full or part payment with order, prior
to production or delivery.
In the event the scope,
nature or extent of the work required to be undertaken by the Company to
produce the goods or provide the services change (including, without
limitation, as a result of the Customer not providing artwork in the prescribed
form, requesting special freight, provision of sample or mock-up of goods,
ordering special material, etc.) or the Customer requests any changes to be
made (including, without limitation, changes in logos, colours, styles,
materials, etc.) the Customer will be responsible for and pay for all extra
costs and charges associated with the changes.
The quantity of specially
ordered goods actually delivered may vary from the ordered quantities more or
less by 5%, and the Customer shall accept (without any claim for any overage or
shortage) and pay at the unit price for the quantity of goods actually
delivered within that range.
The Company shall be entitled to increase the
price for specially ordered goods and services if there is an increase in the
cost to the Company of supplying the goods or services due to changes in the
costs of raw materials, exchange rate fluctuations or other increases in the
cost to the Company of supplying the goods or services.
The Customer further
acknowledges and agrees that any illustration or sample of mock-up of goods
which may be supplied by or to the Customer is intended merely to present a
general idea of the goods or services to be provided and that nothing in such
illustration or sample shall form part of the agreement to provide goods or
services nor constitute a sale by sample. The Customer further acknowledges and agrees
that illustrations or samples of mock up of goods may vary from the end product
due to differences in materials.
Without in anyway limiting
Clauses 6 or 17, the Customer acknowledges that specially ordered goods are
generally obtained from offshore suppliers and that delivery times will be
effected by the time frame in which artwork is approved by the Customer, the
production schedules of such suppliers, shipping schedules and times and other
like matters beyond the control of the Company.
In the event the Customer
provides the Company with specifications for the provision of goods or services
by the Company for the Customer, the Customer warrants to the Company that the
specifications and any goods or services supplied by the Company based on the
said specifications will comply with all applicable laws relating to the supply
of such goods and services and not infringe the trade mark, copyright, patent,
design, other intellectual property rights or other rights of any third party,
and the Customer shall indemnify and keep the Company fully indemnified from
and against any and all claims, liabilities, obligations, expenses or damages
the Company may suffer or incur as a result of the use by the Company of the
said specifications in the provision of such goods or services to the Customer.
10.
Customer Materials
The Customer shall be fully
responsible for ensuring that it keeps and maintains duplicate originals or
copies of any materials and other property which it provides to the Company. Any such materials or property provided to the
Company shall be held or used by the Company solely at the risk of the
Customer, and subject to Clause 11 the Company shall not be under any liability
of any nature whatsoever to the Customer
for loss or spoilage of, or damage to, such materials or property.
11.
Warranty
Goods and services are
guaranteed to be free of defects in material and workmanship at the time of
delivery, taking into account reasonable tolerances and variations of the type
referred to in Clause 8. Should any such
defect exist at the time of delivery, which in the Company’s opinion is due to
faulty materials or workmanship the Company undertakes to repair or to replace
any such defective goods or services without charge, provided the goods have
not been tampered with, repaired by persons other than the Company or otherwise
altered or damaged and are advised and returned to the Company at the Customer’s
expense in accordance with Clause 13.
To the maximum extent
permitted by law and subject to the following paragraph of this Clause 11, the
guarantee of the Company as provided for in the preceding paragraph of this
Clause 11 shall be in lieu of and to the exclusion of any warranty, condition
or liability express or implied by law in respect of the description, quality,
suitability or fitness for any particular purpose of goods or services or
otherwise, and the Company shall not be under any liability, whether in
contract, tort or otherwise, for any injury, damage or loss whatsoever arising
in any way in connection with the supply or use of the goods or from any
services provided, including (without limitation) direct, indirect, special or consequential
loss or damage of any kind arising from claims by the Customer, third parties
or otherwise.
If rights are conferred
upon the Customer or obligations are imposed upon the Company by certain
Federal or State legislation which cannot be excluded, the provisions of this
Clause 11 shall be read subject to those rights or obligations, and to the
extent permitted by such legislation the Company hereby expressly limits its
liability under any such legislation to the maximum extent permitted by law.
Subject to the preceding
paragraph of this Clause 11, the Customer agrees that the liability of the
Company (which cannot be limited beyond the following provisions) is limited
to:
(a)
in
the case of the supply of goods, any 1 or more of the following (at the
Company’s option):
(i)
the
replacement of the goods or the supply of equivalent goods;
(ii)
the
repair of the goods;
(iii)
the
payment of the costs of replacing the goods or of acquiring equivalent goods;
or
(iv)
the
payment of the costs of having the goods repaired; or
(b)
in
the case of the supply of services, any 1 or more of the following (at the
Company’s option):
(i)
the
supply of the services again; or
(ii)
the
payment of the costs of having the services supplied again.
Without reducing the effect
of, and subject always to, the preceding provisions of this Clause 11, in no
event will the Company be responsible for printing, embroidery or other
alterations made to goods for or on behalf of the Customer, and the Company’s
total aggregate liability (if any) to a Customer for any particular order for
the supply of goods or services by the Company to the Customer will not, in any
event, exceed the amount invoiced by the Company to the Customer for the said
order.
12.
Shortages
Claims for shortages must
be made in writing within 48 hours of delivery of goods and any shortages must
be indicated on the delivery note at the time of delivery, failing which any
such claim shall be deemed to be waived by the Customer.
13.
Goods Return Policy
Goods may only be returned
if they are damaged (prior to delivery), not the ordered goods, oversupplied or
defective. Customers wishing to return goods must notify the Company within 3
days of delivery of goods and the goods must be returned to the Company with 10
days of delivery of goods, failing which the basis for any such claim for return
shall be deemed to be waived by the Customer.
No claims for damage will
be entertained unless the goods are noted as being “damaged” on the delivery
note at the time of delivery and the claim has been made within 3 days of
delivery of the goods.
The Company will not accept
any goods (even, without limitation, if they are not the ordered goods or
oversupplied) for return which have been printed, embroidered or otherwise
altered in anyway. The Company therefore
encourages the Customer to fully inspect all goods and services provided by the
Company prior to goods being altered, particularly where they may be forwarded
directly to a printer, embroiderer or otherwise to be worked.
The Company may (but is not
obliged to) accept goods that are not damaged, oversupplied or defective for
return on terms and conditions determined by the Company in its absolute
discretion.
In the event the Company
agrees to the return of goods or any part thereof by the Customer, the goods
will be at the Customer’s risk until such time as the goods reach the Company’s
premises. All expenses of return will be
borne by the Customer.
14.
Returns
Before any goods may be
returned Customers must phone the Company’s Customer Service Department for
authorisation of a Goods Return Authority (GRA) number. Goods must be returned
by and at the Customer’s expense in their original packaging with a copy of the
original invoice for the goods and the GRA number must be clearly marked on the
outside of the box or other packaging in order for goods to be accepted by the
Company’s staff. Goods returned without
a GRA number cannot be accepted by warehouse staff. The issue of a GRA number
and acceptance of returned goods by the Company’s staff does not constitute acceptance
by the Company of the Customer’s claim for return.
15.
Title
Title to and property in goods supplied by
the Company shall not pass to the Customer until the Company has received
payment in full of the price of all goods supplied by the Company to the
Customer at any time and the Customer has discharged all existing in
Until the price has been so
paid:
(a)
The
Customer shall store the goods in such a place and manner that they are clearly
identified as the property of the Company which the Customer is holding as the
Company’s bailee.
(b)
The
Customer may resell the goods in the ordinary course of its business (but may
not otherwise sell or encumber the goods) and if it does so shall receive the
proceeds of resale as trustee of the Company, and shall hold such proceeds as
such. The Company shall be entitled to trace the proceeds of resale.
(c)
The
Company shall have the right, at any time and without prejudice to any other
remedies:
(i)
to
enter without prior notice any premises where the goods may be without
liability for trespass or any resulting damage, and to repossess any of the
goods; and
(ii)
to
require the Customer not to resell or part with possession of, otherwise
dispose of, charge or otherwise encumber or in any way alter the goods until
payment is made in full.
The Company’s right to
retain title of goods shall not affect its rights as unpaid seller.
The Customer hereby grants
the Company an irrevocable perpetual licence to sell all goods (including,
without limitation, specially ordered goods, goods which have been embroidered,
printed or otherwise altered by or on behalf of the Customer) which are not
paid for by the Customer, and the Customer warrants to the Company that the
sale of such goods by the Company will not infringe the trade mark, copyright,
patent, design, other intellectual property rights or other rights of any third
party, and the Customer shall indemnify and keep the Company fully indemnified
from and against any and all claims, liabilities, obligations, expenses or
damages the Company may suffer or incur as a result of the sale of such goods
by the Company. The ability of the Company to sell such goods shall not affect
its rights as unpaid seller.
16.
GST
If prices published by the Company or
included in an order by a Customer do not expressly indicate that the prices
include GST (in the case of an order by a Customer, by express reference on the
face of the order and not by incorporation or reference of conditions of
purchase), then the Customer will be required to pay the Company the amount of
the price for the goods and services plus GST and the following provisions of
this Clause 16 shall apply.
The consideration payable
by the Customer for goods and services represents the value of any taxable
supply for which payment is to be made. If
a taxable supply is made to the Customer, then the Customer must also pay at
the same time and in the same manner as the value is otherwise payable the
amount of any GST payable in respect of the taxable supply.
Expressions used in this
Clause 16 bear the same meaning as those expressions in the A New Tax System
(Goods and Service Tax) Act 1999 (as amended).01
17.
Force Majeure
The Company shall not be
liable for any direct, indirect special or consequential loss or damage of any
kind arising from non-delivery or delay in delivery of any goods or services
caused by act of God, riot or civil commotion, strike, lock out, labour
disputes, fire, flood, drought, power restrictions, act of government, acts of
terrorism, delays in transport, breakdowns in machinery, failure to obtain or
shortages of raw materials or other supplies obtained from 3rd
parties or any cause whatsoever beyond its control.
18.
Miscellaneous
Nothing in these Conditions
shall be read or applied so as to exclude, restrict or modify or have the
effect of excluding, restricting or modifying any condition, warranty,
guarantee, right or remedy implied by law (including, without limitation, the
Trade Practices Act 1974) and which by law cannot be excluded, restricted or
modified.
These Conditions are
subject to variation by the Company by notice in writing to the Customer.
Headings used in these
Conditions are for convenience only and shall be ignored in construing these
Conditions.
“Ex Works” has the meaning ascribed to that term by Incoterms 2000
with the place of delivery being the Company’s premises in the State from which
the goods are made available by the Company for collection by the Customer.
“Incoterms 2000” means the International Chamber of Commerce
official rules for the interpretation of trade terms known as “Incoterms 2000”.
The failure of the Company
to enforce or exercise at any time or for any period of time any term of any
contract incorporating these Conditions shall not constitute or be construed as
a waiver of such term and shall in no way affect the Company’s right thereafter
to enforce or exercise same.
Any provision of these
Conditions which is or becomes prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective and severed to the extent
thereof without invalidating any other provision of these Conditions, and any
such prohibition or unenforceability shall not invalidate such provision in any
other jurisdiction.
These Conditions and any
contract entered into between the Company and the Customer shall be governed by
and construed in accordance with the laws of the State of Victoria, Australia
and the Customer hereby irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the Courts of the State of Victoria, Australia
and of any Courts which may hear appeals therefrom; provided however that these
Conditions may be enforced by the Company against the Customer in any other
jurisdiction.