Terms & Conditions of Sale – Gusto Clothing

Gusto Clothing and Design Pty Ltd ABN 53 074 080 541
Terms & Conditions of Sale                          Effective 30th August 2011

 

  1. DEFINITIONS

In these Terms of Trade:

‘Gusto’ means Gusto Clothing and Design Pty Ltd;

‘Customer’ means the purchaser of the goods specified overleaf;

‘Goods’ means the products and, if any, services specified;

‘Contract’ means any contract for the supply of Goods entered into between Gusto and the Customer;

‘Overdue rate’ means 12 percent per annum;

‘Quoted Date’ means the date of delivery as agreed between the Customer and Gusto;

‘Statutory Provisions’ means the Competition and Consumer Act 2010, any statutory amended or re-enacted thereof for the time being in force and any other relevant and applicable State and/or Commonwealth legislation.

 

  1. STATUTORY PROVISIONS

These Terms of Trade:

(a)      Unless Gusto otherwise agrees in writing, are the only Terms of Trade for the supply of Goods by Gusto to the Customer to which Gusto will be bound and the Customer agrees that these Terms of Trade will in all circumstances prevail over the Customer’s Conditions of Purchase (if any);

and

(b)      Supersede and exclude all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of the Goods.

 

  1. WARRANTIES

(a)      Gusto warrants that the Goods supplied are of merchantable quality;

(b)      The customer will examine the Goods for defects and shall notify Gusto of any defects in writing within eight (8) days of delivery. If the customer does not notify Gusto within eight (8) days of delivery the Customer shall be deemed to have accepted the Goods.

(c)      Gusto’s liability for breach of sub-clause 3(a) or a condition or warranty implied into the Contract by law including without limitation the Statutory Provisions (other that a condition implied by section 69 of the Competition and Consumer Act) is limited to any one of the following as determined by Gusto:

(i)       The replacement of the Goods or the supply of equivalent Goods;

(ii)      The repair of the Goods or payment of the cost of having the Goods repaired; or

(iii)     The credit of the price paid by the Customer for the Goods.

(d)      If the goods are not manufactured by Gusto, the guarantee of the manufacture of those goods is accepted by the Customer and is the only guarantee given to the Customer in respect of the goods.  Gusto agrees to assign to the Customer on request made by the Customer the benefit of any warranty or entitlement to the goods that the manufacturer has granted to Gusto under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.

 

  1. DELIVERY

(a)      Gusto will make all reasonable efforts to have the Goods delivered to the Customer on the date agreed between the parties as the Quoted Date, but Gusto shall not be liable for any failure to deliver or delay in delivery for any reason;

(b)      Failure to accept delivery will attract an administrative, storage and handling fee equal to 10 percent of the invoice/order amount;

(c)      If Gusto delivers any goods by installments, and any of those installments is defective for any reason:

  1. It is not a repudiation of the contract of sale formed by these conditions; and
  2. The defective installment is a severable breach that gives rise only to a claim for compensation.

(d)      The Buyer waives any claim for shortage of any goods delivered if a claim in respect of short delivery has not been lodged with the seller within eight (8) days from the date of receipts of goods by the buyer.

 

  1. RETURNED GOODS

(a)      Gusto is not under any duty to accept goods returned by the Customer and will do so only on terms to be agreed in writing in each individual case;

(b)      The Customer must notify Gusto of any complaints or defective/incorrect stock within 8 days of delivery;

(c)      Gusto reserves the right to refuse returned Goods if the Customer has not obtained a Return Authorisation Number or if the RA number is not clearly marked on the returned package.

 

  1. RISK

(a)      Unless otherwise agreed in writing, all risk in and to the Goods purchased shall pass from Gusto to the Customer upon delivery to the Customer or its agent or to the carrier commissioned by the Customer;

 

  1. TITLE

(a)      Title in and to the Goods will not pass from Gusto to the Customer until Gusto receives payment in full for all Goods and all monies owing by the Customer to Gusto on any account whatsoever;

(b)      Notwithstanding that title in and to the Goods may not have passed to the Customer, the Customer may sell the Goods to a customer in the ordinary course of its business. In such circumstances, the Customer sells the Goods as fiduciary agent of Gusto provided that such sales shall not give rise to any obligations on the part of Gusto;

(c)      If the Customer sells any of the Goods before title in and to the goods has passed in accordance with clause 7(a), the Customer will hold such part of the proceeds of sale as relates to the price of Goods sold on trust for Gusto and will hold such proceeds in a separate account which clearly identifies the proceeds are monies held on trust for and on behalf of Gusto.

(d)      At anytime and without notice to the Customer and without prejudice to any other rights Gusto has against the Customer, Gusto may end this agreement and enter upon any premises owned or occupied by the Customer and, using reasonable force if necessary, repossess the Goods without being liable for any damage caused and subsequently sell the Goods at Gusto’s discretion.

 

  1. PRICE

(a)      Unless otherwise agreed in writing, the price charged for the Goods shall be the price ruling as determined by Gusto at the date of delivery. Any price indications or price lists are subject to alteration in accordance with the price ruling at that date;

(b)      Unless previously withdrawn, Gusto’s evaluations are open for acceptance within the period stated in them or, when no period is stated, within 60 days only after its date. The seller reserves the right to refuse an order based on this evaluation within 7 days after the receipt of order.

(c)      Unless otherwise agreed in writing, all deliveries are subject to Freight charges.

 

  1. PAYMENT AND DEFAULT

(a)      Unless otherwise agreed in writing, all accounts shall be payable within 30 days of statement date;

(b)      At Gusto’s sole discretion a non refundable deposit may be required at the time of order.

(c)      At Gusto’s sole discretion payment shall be required before delivery of Goods.

(d)      Payments made via credit card will incur a processing fee which is immediately payable.

(e)      In the event of the Customer failing to effect payment on the due date and in the manner herein before specified, then, notwithstanding anything to the contrary herein contained, the Customer shall pay to Gusto interest on the whole of the monies so due and payable, calculated from the date of default up to and including the day upon which cleared funds are received in Gusto’s nominated bank at the ‘Overdue Rate’.

(f)       Any costs, fees (including cheque dishonor fees) and expenses including any legal or debt collection incurred by Gusto in connection with any overdue amount shall be recoverable as a debt immediately due to Gusto by the Customer and in the case of legal costs on a full indemnity solicitor-client basis.

(g)      Furthermore Gusto may at its option demand full payment of the account irrespective of whether the due date has occurred or passed, withhold further deliveries and/or cancel the Contract without notice to the Customer if:

(i)       The Customer makes default in any payments or is unable or states that it is unable to pay its debts as and when they fall due;

(ii)      The Customer being an individual commits an act of bankruptcy or has a controller or trustee appointed in respect of the Customers’ estate or any part of the Customer’s property or assets;

(i)       The Customer being a company passes a resolution for its winding up or enters into liquidation or has an application for winding up filed against it;

(ii)      A receiver, receiver and manager, controller or voluntary administrator is appointed over any part of the property or assets of the Customer;

(iii)     The Customer experiences any analogous event having substantially similar effect to any of the events specified above.

(h)      Notwithstanding sub-clause 9(g) hereof Gusto may at all times in its sole and unfettered discretion and without being under any duty or obligation to assign reasons therefore review, alter or terminate the Customer’s credit limit or payment terms without notice. Without limiting the generality of the foregoing, the decision of Gusto shall be final and Gusto accepts no liability or responsibility for any loss, howsoever arising, incurred by the Customer due to the operation of this condition;

 

  1. GENERAL LIEN

In addition to any right of lien to which Gusto may be entitled under the common law, Gusto shall be entitled to exercise general lien over all items in its possession belonging to the Customer until the Customer has paid in full for all Goods supplied by Gusto to the Customer and has otherwise paid all monies due to Gusto under these Terms of Trade. Gusto may in its sole discretion sell any item that is subject to the said lien, provided that Gusto shall pay to the Customer any surplus proceeds that are realised by it from a sale of any such items after discharging in full all monies outstanding to Gusto and all reasonable costs of sale incurred by Gusto.

 

  1. WAIVER

The failure of Gusto at any time to insist on performance of any provision of these Terms of Trade is not a waiver of Gusto’s rights at any time later to insist on performance of that or any other provision

 

  1. SEVERANCE

If any provision of these Terms of Trade or its application to any person or circumstance is or becomes invalid, illegal or unenforceable the provision shall so far as possible be read down to such extent as may be necessary to ensure that it is not invalid, illegal or unenforceable. If any provision or part of it cannot be so read down, the provision or part of it shall be deemed void and severable and the remaining provisions of these Terms of Trade shall not in any way be affected or impaired.

 

  1. INTELLECTUAL PROPERTY

(a)      Copyright in all photographs, drawings, designs, specifications, catalogues and other similar works supplied to the Customer by Gusto is vested in Gusto and the Customer shall not copy or reproduce or allow the copying or reproduction of any such works without the prior written consent of Gusto;

(b)      The Customer shall not use the Gusto name and/or any names or marks attached to any item the subject of this contract for advertising or promotional purposes in any manner or medium whatsoever without the prior written consent of Gusto.

 

  1. GOVERNING LAW

The supply of Goods under these Terms of Trade is governed by the law of the State of Victoria and Gusto and the Customer submit to the non-exclusive jurisdiction of the courts of the State of Victoria.

 

  1. CANCELLATION OF CREDIT AGREEMENT

Failure to comply with these terms and conditions will result in cancellation of credit privileges without further notice.