TERMS AND CONDITIONS OF SALE
1 August 2008
1. Application of these Terms: All goods and services (“Products”) supplied to any person (“Customer”) by Martin & Savage Pty Ltd (ACN 000 020 235) (“M&S”) are supplied on these terms and conditions. These terms and conditions of sale (“Terms”) will apply to the exclusion of terms contained in the Customer’s order. In the event of any inconsistency, M&S will be deemed, by delivery of the Products to the Customer or supplying services to the Customer, to have made an offer to the Customer to sell the Products pursuant to these Terms, which offer will be deemed to have been accepted if the Customer accepts the Products. The Terms may be varied by M&S at any time.
2. Acceptance of Products: No order shall be binding on M&S until accepted by M&S. An individual contract for the supply of Products, on these Terms, is formed on acceptance by M&S of an order from the Customer. M&S reserves the right to accept any order in whole or in part. Where M&S makes a partial delivery of any order, such delivery shall constitute a separate contract. No order may be cancelled or varied after acceptance by M&S.
3. Payment Terms: All orders are accepted by M&S subject to satisfactory credit approval of the Customer, and are governed by M&S credit terms and conditions in force at the time of order placement, including the right to charge interest upon default. Credit approval once granted may be withdrawn at any time. Where credit approval has not been granted, or is withdrawn, payment of all Products supplied is required on delivery. Where credit has been granted, payment for the Products is to be made on or before 30 days from the date of each invoice raised. M&S will investigate any disputed amounts, and if resolved in favour of the Customer, a credit will be issued to the Customer. A service fee may apply to any payments made by credit card.
4. Title to Products: Ownership in the Products does not pass to the Customer until the Customer has discharged all outstanding indebtedness, whether in respect to Products or otherwise, to M&S. Risk in the Products will pass on delivery to the Customer. The Customer grants to M&S, its agents and servants, leave and licence to enter at any time and into any premises occupied by the Customer to inspect, search for or remove any of the Products. If the Products are sold by the Customer, the Customer acknowledges that sub sale is made by the Customer as bailee for and on behalf of M&S, to hold the proceeds of sale on trust for M&S, in an account in the name of M&S, until payment in full for the Products is made to M&S.
5. Delivery: Delivery may not be refused by the Customer. M&S reserves the right to charge for delivery of the Products at any time, notwithstanding that it may not have previously done so. Administrative fees may be imposed for orders under certain values. Where prices are stated as inclusive of delivery, delivery is to the delivery point accepted by M&S. The Customer shall make all arrangements necessary to accept delivery of the Products whenever they are tendered for delivery. In the event that the Customer is unable to accept delivery of the Products as arranged, then M&S shall be entitled to charge a reasonable fee for redelivery. Delivery of the Products to a third party nominated by the Customer is deemed to be delivery to the Customer for the purpose of the Terms. The failure of M&S to deliver shall not entitle the Customer to treat that contract as repudiated. M&S shall not be liable for any loss or damage or expense due to failure by M&S to deliver the Products promptly or at all.
6. Returns: Any Products which are damaged or defective, or which are not in accordance with the Customer’s order, may be returned within fourteen (14) days of delivery. The Customer may not return Products applicable to in Clause 16 without M&S’s agreement. The Customer may not return Products
that are not in a saleable condition. The Customer shall inspect the Products on delivery and shall within seven (7) days notify M&S of any defect, shortage in quantity, damage or failure to comply with the description or quote (“a Claim”). The Customer shall give M&S an opportunity to inspect the Products within a reasonable time following delivery if the Customer believes the Products are defective in any way. If the Customer shall fail to comply with these provisions, the Products shall be presumed to be free from any defect or any damage. For defective or damaged Products, which M&S has agreed in writing that the Customer is entitled to reject, M&S’ liability is limited to either (at M&S’s sole discretion) replacing the Products or repairing the Products. The Customer shall prior to cutting the Products check that it matches their order because it is agreed no Claim is valid after the Products have been altered, for example if the Products are cut. Samples of the Products supplied will not be accepted for return without prior agreement with M&S.
7. Duty Indemnity: The prices for the supply of Products to the Customer are set out in invoices issued to the Customer. If the Products are specifically procured by M&S for the Customer, the Customer indemnifies M&S against any increase in customs duty, excise or any government charge or tax that may occur after the order is accepted but before delivery affected.
8. Credit Policy: The Customer must pay M&S the amount set out in invoices within 30 days from the date on which the invoice is raised. M&S may charge interest on all amounts not paid by the Customer within the time for payment at a rate of 2% per calendar month accruing each calendar month until the date of payment. If the Customer defaults in payment of any invoice when due and payable, the Customer shall indemnify M&S from and against all costs and disbursements incurred by M&S in pursuing the debt including legal costs on a solicitor and own client basis and M&S’s mercantile agency costs. If any account remains over due thirty (30) days, then an amount of the greater of $20 or 10% of the amount overdue (up to a maximum of $200) may be charged for administration fees which sum shall become immediately due and payable. The Customer acknowledges this represents part of the loss for late
payment (i.e. liquidated damages). If the Customer fails to pay for the Products in accordance with invoices issued to the Customer, M&S may at its sole discretion:
a. cancel any provision of credit to the Customer;
b. require cash prepayment for further Products ordering;
c. start proceedings against the Customer and any guarantors for all outstanding amounts;
d. cease supplying Products to the Customer and terminate any agreement with the Customer; and
e. exercise any other rights at law.
9. Force Majeure: M&S will have no liability to the Customer in relation to any loss, damage or expense caused by M&S’s failure to complete an order or delivery or contract as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lock out, war or the inability of M&S’s suppliers to supply necessary materials or any other matter beyond M&S’s control.
10. Disclaimer of Liability: The Customer acknowledges that it has not relied on any advice given or made by or on behalf of M&S in connection with the Products. M&S excludes all implied conditions and warranties from the Terms, except any conditional warranty (such as conditions of warranties implied by
the Trade Practices Act including State Acts) which cannot be excluded (“Non Excludable Conditions”). M&S limits its liability:
a. for breach of any Non Excludable Conditions to the extent that liability for such breach can by law be limited to the invoice cost of the Products supplied; and
b. for any error or omission in delivery of the Products caused by M&S to (at M&S’ sole discretion) resupply of the Products affected by the breach, or any payment of the cost of resupply.
Subject to this Clause, M&S excludes all other liability to the Customer for any costs, expenses, losses and damages suffered or incurred by the Customer in connection with the Terms whether that liability lies in contract, tort (including M&S’s negligence) or under statute. Without limitation, M&S will in no
circumstances be liable for any indirect or consequential losses, including loss of profits, loss of revenue and loss of business opportunity. The Customer indemnifies M&S and its officers, employees, contractors and agents (the “Indemnified”) against any costs, expenses, losses, damages and liability suffered or
incurred by the Indemnified arising from the Customer’s breach of these Terms and any negligent or unlawful act or omission of the Customer in connection with the Products.
11. GST: M&S reserves the right to recover from the Customer all Goods and Services Tax (“GST”) payable in respect of supply of Products. All amounts expressed or described in the Terms are GST exclusive amounts.
12. Jurisdiction: The Terms are governed by and will be construed in accordance with the laws of NSW and the parties agree to submit to the exclusive jurisdiction of the Courts of the State of NSW.
13. No Waiver: The failure by M&S to exercise, or delay in exercising, any right, power or privilege available to it under the Terms will not operate as a waiver thereof or preclude any other or further exercise thereof or the exercise of any right or power.
14. General: These terms and conditions of sale may represent part of the contract with the Customer and may be incorporated with the Account Application. The Products supplied to the Customer are supplied subject to the essential condition that the Customer shall not, either direct or indirectly, reproduce or copy in whole or in part or make any substantially identical or acceptably similar version of the designed product without prior written consent of the company.
M&S may serve any notice or Court documents on the Customer by forwarding them by pre-paid post to the last known address of the Customer. If any provision of these Terms shall be invalid, void, illegal or unenforceable, the remaining provisions shall not be affected, prejudiced or impaired.
The Customer shall not be entitled to set off against or deduct from the price of Products of any sums owed or claimed to be owed to the Customer by M&S. M&S may licence or subcontract all or any parts of its rights and obligations without the Customer’s consent. A certificate of debt duly signed by a representative of M&S shall be evidence and proof of money owing by the Customer to M&S at that time.
15. Privacy Act: The Customer hereby authorises and unconditionally grants its consent to M&S obtaining from a credit reporting agency or any other person or company information from time to time. The Customer further authorises and consents to M&S obtaining and disclosing information about its credit worthiness to and from credit reporting agencies and credit providers.
16. Conditions for Fabric purchases: Where M&S procures Products for Customer orders:
a. No responsibility is accepted if fabric supplied is unsuitable for the type of garment to be manufactured. The Customer has the responsibility of ensuring samples obtained are fit for purpose.
b. The Customer acknowledges that separate batches of Products may vary slightly in colour. Colour within a season’s range will blend but not necessarily match.
c. Fabrics delivered within 10 percent of ordered lengths are to be accepted by the Customer as acceptable supply.
d. The Customer is to test fabric in sample Products in accordance with care instructions & inspect all fabric before the Customer cuts garments. No claims regarding Products are accepted if fabric has been cut or processed.
e. The Customer is not to conduct colour splicing on Products with “WASH SEPARATELY” care instructions.