Wholesale Terms and Conditions

Coastal Standard Conditions of Sale:

1. DEFINITIONS

In these Coastal Standard Conditions of Sale:

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

‘Customer’ means any person who acquires Goods from TCAG under a Contract;

‘Goods’ means all products and services agreed to be supplied by TCAG to the Customer under any Contract;

‘Overdue rate’ means 2 percent per month calculated daily and charged monthly;

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

“PPSA” means the Personal Property Securities Act 2009 (Cth).

“PPS Register” means the Personal Property Securities Register established under section 146 of the PPSA.

“Security Interest” has the meaning given under the PPSA.

‘Statutory Provisions’ for Contracts undertaken in Australia means the Competition & Consumer Act 2010 (Cth), any statutory amendment or re-enactment thereof for the time being in force and any other relevant and applicable State and/or Commonwealth legislation;

‘TCAG’ means The Coastal Apparel Groupe Pty Limited (ABN 11 608 106 958) and its agents, servants and employees and any related bodies corporate as defined in the Corporations Law (if such related body corporate is named as party to the Contract);

2. STATUTORY PROVISIONS

These Coastal Standard Conditions of Sale:

(a) Unless TCAG otherwise agrees in writing, are the only conditions of sale for the supply of Goods by TCAG to the Customer to which TCAG will be bound and the Customer agrees that these Coastal Standard Conditions of Sale 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.

3. WARRANTIES & RETURNS

(a)TCAG warrants that the Goods supplied are of merchantable quality:

(b)TCAG 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 than a condition implied by Schedule 2 (51-53) of the Competition & Consumer Act) is limited to any one of the following as determined by TCAG:

(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 refund of the price paid by the Customer for the Goods.

(c) The Customer will examine the Goods for defects and shall notify TCAG of any defects in writing within 7 days of delivery. Returns can only be made if the evidence is clear that the Goods are faulty. A credit authorisation number must be obtained by the customer from TCAG prior to TCAG accepting return of any defective goods. A credit authorisation number will only be provided by TCAG if an adequate explanation as to the nature of any fault is provided. This credit authorisation number must be clearly displayed on the outside packaging containing the returning Goods. If the Customer does not notify TCAG within 7 days of delivery the Customer shall be deemed to have accepted the Goods.

(d)To the extent the law permits, TCAG excludes all other liability whatsoever to the Customer arising out of or in any way connected with a Contract including any liability for consequential or indirect losses of any kind howsoever arising and whether caused by breach of statute, breach of contract, negligence or other tort. Consequential or indirect losses will be taken to include but not be limited to:

(i) any loss of income, profit or business;

(ii) any loss in the nature of overhead costs; and

(iii) any loss of goodwill or reputation.

4. ADVICES
5. a) The Customer hereby acknowledges that it has not relied on any service involving skill or judgement, or on any advice, recommendation, information or assistance provided by TCAG in relation to the Goods or their use or application.
6. b) Notwithstanding the fact that catalogues, material, specifications or photographs may have been supplied by TCAG to the Customer no Contract shall be constituted by a sample or by description.
7. RESALE
8. a) By placing the order the Customer acknowledges the importance of preserving the reputation of the brand under which the goods are offered for sale to consumers, the reputation of TCAG as a supplier of high-end accessories, and agrees to uphold the TCAG marketing precepts.
9. b) The Customer agrees that the acceptance by TCAG of the order is made on the basis that the Customer shall not resell or threaten to resell any of the goods supplied by way of wholesale or by retail in such place (including without limitation places other than the approved outlets mentioned in the order) or in such a manner that could prove harmful to either such reputation. If the Customer shall breach such agreement then without prejudice to any other remedy which may be available to TCAG, TCAG shall be entitled to cancel the order forthwith without compensation, to decline to take orders in the future from the Customer and to claim damages against the Customer for loss of profit.
10. INTERNET SALES
11. a) The agreement by TCAG to supply the goods is done on the explicit understanding that these goods will not be offered for sale on the internet unless previously agreed in writing. This includes on any website regardless of whether it is operated, owned, or managed by the Customer.
12. b) The Customer may advertise on-line the goods purchased from TCAG for sale through the Customer’s physical retail outlet only in a manner consistent with TCAG marketing precepts.

 

7. DELIVERY

(a) TCAG 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 TCAG shall not be liable for any failure to deliver or delay in delivery for any reason.

(b) TCAG shall be deemed to have effected delivery of the goods the subject of the Contract between TCAG and the Customer if the Goods are delivered or delivery is attempted at the address requested by the Customer. In the event that the Goods cannot be so delivered to such address, delivery shall be deemed to be effected at the time the goods leave the TCAG warehouse.

(c) A freight charge is payable on all orders and will be included in each respective invoice.

(d) If TCAG does not receive forwarding instructions sufficient to enable it to dispatch the Goods within 14 days of notification to the Customer that they are ready, the Customer shall be deemed to have taken Delivery of the Goods from such date. The Customer shall be liable for storage charges payable monthly on demand.

8. RISK

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

(b)Without in any way limiting the operation of the foregoing, upon delivery of the Goods to the Customer or his agent or to a carrier commissioned by the Customer, the Customer covenants and warrants to TCAG that, in the storage and handling of the Goods, the Customer and his agents and carriers shall comply with all relevant environmental laws and regulations, and do comply with all necessary and/or relevant permits or licenses pertaining to the storing and handling of the Goods, and the Customer shall ensure that the Customer and his agents and carriers are familiar with and adhere to all the necessary and appropriate precautions and safety measures relating to the storing and handling of the Goods.

9. TITLE

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

(b)Until title in and to the Goods has passed to the Customer in accordance with clause 7(a), the Customer holds the Goods as fiduciary agent and the Customer will store the Goods separately in such a manner that they are clearly identified as the property of TCAG. TCAG shall be entitled at any time to demand the return of the Goods and is irrevocably authorised by the Customer to enter the Customer's premises or any other premises upon which the Goods are held in order to search for and remove the Goods.

(c)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 TCAG provided that such sales shall not give rise to any obligations on the part of TCAG.

(d)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 the Goods sold on trust for TCAG and will hold such proceeds in a separate account which clearly identifies the proceeds as monies held on trust for and on behalf of TCAG.

 

 

10. PRICE

(a) Unless otherwise agreed in writing, the price charged for the Goods shall be the price as determined by TCAG 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)Where goods and services tax (GST) applies to any supply made under these Coastal Standard Conditions of Sale, TCAG may recover from the Customer an additional amount on account of that tax.

11. FORCE MAJEURE

Deliveries may be totally or partially suspended by TCAG during any period in which TCAG may be prevented or hindered from manufacture, delivery or supply through any circumstances outside TCAG reasonable control, including but not limited to strikes, lockouts or other labour difficulty, inability to obtain any necessary materials, equipment, facilities or services, power or water shortage, accidents or breakdowns of plant, machinery, software, hardware or communication network. TCAG shall not incur any liability to the Customer in respect of such suspension

12. PAYMENT AND DEFAULT

(a)Unless otherwise agreed in writing all accounts shall be payable within 7 days of delivery or as otherwise identified on any statement of account issued by TCAG.

(b)If any of the events set out in (i) to (iii) below occur, TCAG may at its option withhold further deliveries or cancel the Contract without notice to the Customer and without prejudice to any other action or remedy which TCAG has or might otherwise have had and all moneys owing and outstanding to TCAG on any account whatsoever and irrespective of whether the due date on any statement of account has occurred or passed shall become immediately due and payable:

(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 Customer’s estate or any part of the Customer’s property or assets;

(iii) the Customer being a company, has a receiver or controller or administrator or voluntary administrator or manger appointed to it or passes a resolution for its winding up or is liquidated or has an application for winding up filed against it.

(c) Notwithstanding sub-clause 10(a) hereof TCAG 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 or payment terms without notice. Without limiting the generality of the foregoing, the decision of TCAG shall be final and TCAG accepts no liability or responsibility for any loss, howsoever arising, incurred by the Customer due to the operation of this condition.

(d) In the event of the Customer failing to effect payment on the due date and in the manner herein specified then notwithstanding anything to the contrary herein contained, the Customer shall pay to TCAG 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 TCAG nominated bank at the 'Overdue Rate'.

(e)An account keeping fee of $5.00 plus GST will be charged to the customers’ account for every statement issued over thirty (30) days.

 

 

13. WAIVER

The failure of TCAG at any time to insist on performance of any provision of these Coastal Standard Conditions of Sale is not a waiver of TCAG rights at any time later to insist on performance of that or any other provision.

14. SEVERANCE

If any provision of these Coastal Standard Conditions of Sale 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 to be void and severable and the remaining provisions of these Coastal Standard Conditions of Sale shall not in any way be affected or impaired.

15. INTELLECTUAL PROPERTY

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

(b) The Customer shall not use the TCAG 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 TCAG.

16. CANCELLATION

A Contract is not cancellable without the consent of TCAG. Subject as aforesaid, such cancellation must be written and must be received by TCAG not more than fourteen (14) days after the date of the Contract.

17. SECURITY INTEREST CHARGE AND MORTGAGE

(a) The Customer grants to TCAG a Security Interest in the Goods to secure payment of the Goods. The Security Interest:

(i) extends to and continues in all proceeds and Goods; and

(ii) is a purchase money security interest to the extent to which it secures payment of that part of the Goods which comprises the aggregate unpaid purchase price of Goods.

(iii)

(b) The Customer has a continuous positive obligation to notify TCAG of all registered interests registered against the Goods on the PPS Register, or any other register.

(c)The Customer acknowledges and agrees that acceptance of these terms and conditions constitutes a security agreement over the Goods.

d)The Customer charges in favour of TCAG all of its interest in all present and future real property of the Customer to secure the performance of the Customer's obligations under the Contract, including payment of the Goods. The Customer acknowledges that TCAG has a caveatable interest in any real property of the Customer under this clause and may lodge a caveat over that property. Upon demand by TCAG the Customer agrees to immediately execute a mortgage on terms satisfactory to TCAG to more particularly describe the security interest conferred by this clause. Should the Customer fail within a reasonable time of such demand to execute that mortgage then the Customer irrevocably appoints TCAG as its attorney with authority to do on its behalf anything that it may lawfully authorise an attorney to do including, without limitation, to make, sign, execute, seal and deliver any document and to take possession of, use, sell or otherwise dispose of any real property of the Customer

18. FINANCING STATEMENT

The Customer undertakes to:

(a) sign any further documents and/or provide any further information (which information the Customer warrants to be complete, accurate and up-to-date in all respects) which TCAG may reasonably require to enable registration of a financing statement or financing change statement in accordance with the PPSA;

(b) not register a financing change statement or a change demand in respect of the Goods without TCAG prior written consent;

(c) not permit anything to be done that may result in the purchase money security interest granted to TCAG ranking in priority behind any other Security Interest.

(d) indemnify and upon demand reimburse TCAG for all expenses incurred in the registering of financing statement or financing change statement on the PPS Register or release any Security Interest;

(e) at the date of acceptance of the terms and conditions, to provide written notice of the Customer’s name and/or any other change in the Customer’s details (including, but not limited to, changes in your address, facsimile number, trading name, registered ABN, ACN, ARBN, ARSN or business practice).

(f) give TCAG not less than 14 days prior written notice of any proposed change in the Customer’s name and/or any other change in your details (including, but not limited to, changes in your address, facsimile number, trading name or business practice).

19. CONTRACTING OUT OF PPSA

(a) The Customer:

(i) waives its right under section 157 of the PPSA to receive a copy of the verification statement verifying registration of a financing statement or a financing change statement relating to a Security Interest created under the Contract; and

(ii) waives its right to receive any other notice or statement under any other provision of the PPSA (including for the avoidance of doubt, any of the provisions specified in paragraph (b)).

(b) To the fullest extent permitted by the PPSA, the parties agree to contract out of sections 95, 117, 118, 120, 121(4), 125, the second sentence of section 126(2), sections 129(2), 129(3), 130, 132(3)(d), 132(4), 135, 142 and 143, which sections (or parts of sections) shall not apply.

20. GOVERNING LAW

These Coastal Standard Conditions of Sale are governed by the law of the State of New South Wales. The Sale of Goods (Vienna Convention) Act 1986 (New South Wales) (and any similar legislation relating to the Vienna Convention in other States or Territories) does not apply to the Contract.