Terms and Conditions

Definitions

1. “ACL” means the Australian Consumer Law as contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and includes any regulations forming part of or passed under it.

1. “Agreement” means these terms and conditions, our Quote, and any additional terms or policies provided in relation to the provision of Goods and/or Services by the Supplier.
2. “Business Day” means a day (other than a Saturday or Sunday) on which banks are ordinarily open for business in Queensland, Australia.
3. “Claim” includes, in relation to a person, a demand, claim, action, dispute or proceeding made or brought by or against the person, however arising and whether present, unascertained, immediate, future or contingent.
4. “Consequential Loss” means indirect economic Loss, Loss of income or profit, Loss resulting from wasted time, damage to goodwill or business reputation, Loss of opportunity or any other special, indirect, remote or punitive Loss.
5. “Credit Account” means an approved credit account established to receive Goods on credit from the Supplier to the agreed maximum credit limit.
6. “Credit Account Application” means the application form for an Account with the Supplier.

“Customer” means the persons or entity ordering Goods and/or Services from the Supplier (or any person acting on behalf of and with the authority of them) as described on the Quote, Account application or other documentation provided.

1. “Deposit” means an amount to be paid at the time and in the amount outlined in the Quote prior to fulfilment of an order.

“Goods” means Goods supplied by the Supplier to the Customer as described on the Quote, invoices or any other documentation provided by the Supplier to the Customer.

“Guarantee” means the section of the Credit Account Application to be executed, where applicable, by the Guarantor. 

“Guarantor” means a director or other authorised representative who has agreed to guarantee the payment and performance of the Customer’s obligations under this Agreement as indicated on the Credit Account Application.

“Loss” includes any damage, loss, cost, liability or expense of any kind and however arising (including as a result of any Claim) including penalties, fines and interest whether prospective or contingent and any amounts that for the time being are not ascertained or ascertainable.

“Services” means all Services supplied by the Supplier to the Customer and includes any advice or recommendations.

“Supplier” means Tackle Tactics Pty Ltd ACN 116 207 937 trading as Tackle Tactics, its successors and assigns or any person acting on behalf of and with the authority of Tackle Tactics Pty Ltd ACN 116 207 937.

“PPSA” means the Personal Property Securities Act 2009 (Cth) and any Regulations forming part of or passed under it.

“Price” means the price payable for the Goods and/or Services as agreed between the Supplier and the Customer in accordance with clause 3 of this contract.

“Quote” means our formal notice of the price charged for the Goods and/or Services, and includes notice by way of email, pricelist or invoice.

Acceptance

1. The Customer accepts this Agreement, if after receiving it, the Customer:
1. signs and returns the Credit Account Application;
2. requests (either orally or in writing) that the Supplier supplies the Goods and/or Services as outlined in a Quote; or
3. accepts Goods and/or Services supplied by the Supplier.
2. The Quote will automatically expire 30 days from the date of issue, if it is not accepted.

Upon acceptance of this Agreement by the Customer, these terms may only be amended with the written agreement of the parties.

Credit Account

General

1. Upon completion of a Credit Account Application and Guarantee (where applicable) the Supplier may in its sole discretion determine whether to approve the Customer for a Credit Account.
2. Upon approval, the Supplier will advance the Customer credit for the Goods up to the amount agreed in the Credit Account Application.
3. The approved Credit Account may be reviewed, altered or withdrawn at any time, without prior notice to the Customer and in the Supplier’s absolute discretion. 
4. The Supplier will have no liability or responsibility for any loss, however arising, incurred by the Customer due to a review, alteration or withdrawal of a Credit Account.
5. The Customer must notify the Supplier of any change in ownership, legal name, or address of any entity with a Credit Account within 7 days of the change occurring. 

Guarantee

Each Guarantor covenants and undertakes in the Supplier’s favour as follows:

1. In consideration of the Supplier extending or agreeing to extend credit to the Customer for Goods sold or to be sold to the Customer, each Guarantor guarantees:
1. the due and punctual performance by the Customer of all the Customer’s obligations under this Agreement; and
2. the due and punctual payment to the Supplier of all money the Customer owes to the Supplier under the Agreement.
2. Each Guarantor, as a separate and additional obligation, indemnifies the Supplier against all losses damages or expenses that the Supplier may suffer as a result of:
1. the Customer’s failure to pay any amount owing to the Supplier under the Agreement;
2. the Customer’s breach of any of its obligations under the Agreement;
3. any provisions of the Agreement that is not enforceable by the Supplier against the Customer for any reason (including, but not limited to, any lack of capacity on the part of any party, illegality, in proper execution or authorisation, disclaimer of the Agreement by a liquidator of the Customer);
4. the Customer becoming insolvent; or
5. any payment made to the Supplier by or on behalf of the Customer that is or becomes void or voidable.
3. The Guarantor's obligations under this Agreement remain in full force and effect until the Supplier confirms the release of the Guarantor in writing.
4. Where two or more persons execute a guarantee, it will be deemed to bind the Guarantors jointly and each of the Guarantors severally and the Supplier will be entitled to seek payment in full from any one or more of the Guarantors without seeking payment from the other Guarantors.
5. The Supplier may make demand upon and commence proceedings against a Guarantor without any obligation to first make demand to the Customer.
6. In any action, proceeding or claim brought or made against any Guarantor pursuant to this Agreement, a certificate signed by the Supplier shall be prima facie evidence of the outstanding amount owed by the Customer and also of the amount owed by any guarantor.
7. The Guarantor warrants and agrees that it has received, read and had the opportunity to obtain advice in relation to the terms of this clause.

Price And Payment

Deposit

1. The Supplier may, where set out in the Quote, require the Customer to make payment of a Deposit before processing of the order commences.
2. The Deposit will be applied by the Supplier against any amount owing under this Agreement, following the issue of invoice/s to the Customer.

Payment terms

1. The Customer must pay the amounts set out in the Quote or invoice for the Goods and/or Services, and any associated charges (including freight) in the manner specified.
2. The Supplier reserves the right to reasonably amend the Quote before fulfillment, where there has been a material rise or fall in the cost of supply, upon providing notice to the Customer.

At the Supplier’s sole discretion:

1. payment shall be due on delivery of the Goods; 
2. payment shall be due before delivery of the Goods; or
3. for Customers under an approved Credit Account with available credit, payment shall be due thirty (30) days from the invoice date. 

Time for payment for the Goods and/or Services is of the essence and will be stated on the invoice provided by the Supplier. If no time is stated then payment shall be due seven (7) days following the date of the invoice.

Payment will be made by cash, by cheque ,by direct debit, or by any other method as agreed to between the Customer and the Supplier.

1. All payments must be made in cleared funds without set-off, counterclaim, deduction or withholding.

GST and other taxes and duties that may be applicable will be added to the Price except when they are expressly included in the Price.

1. If the Customer fails to pay any amount owing under this Agreement when due, the Supplier may:
1. charge the Customer for all costs and expenses incurred in recovering the outstanding amount from the Customer; 
2. charge the Customer compound interest at a rate of 10% per annum on the overdue amount which will begin accruing on the first day that payment is overdue; and
3. immediately suspend the supply of any or all Goods and/or Services to the Customer until payment of all arrears is received by the Supplier.

Delivery Of Goods

Delivery of the Goods is taken to have occurred when:

1. the Customer collects the Goods at the Supplier’s address; 
2. the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by the Supplier or the Supplier’s nominated carrier); or
3. the Customer’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Customer’s agent.

The Customer shall make all arrangements necessary to take delivery of the Goods. In the event that the Customer is unable to take delivery of the Goods as arranged then the Customer agrees that the Supplier shall be entitled to charge a reasonable fee for the costs relating to the return, storage and redelivery of the Goods.

Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this Agreement.

The Supplier may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in this Agreement.

The failure of the Supplier to deliver shall not entitle either party to treat this contract as repudiated.

The Supplier shall not be liable for any loss or damage whatever due to failure by the Supplier to deliver the Goods (or any of them) at the anticipated time.

Defects

1. The Customer is responsible for inspecting the Goods at the time of collection or delivery and must within 10 Business Days of delivery notify the Supplier of any alleged defect, shortage in quantity, damage or failure to comply with the description or Quote.

The Customer must afford the Supplier an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. 

If the Customer fails to comply with these provisions the Goods shall be taken to be accepted and free from any defect or damage. 

Returns

Returns will only be accepted where:

1. the Customer has complied with the provisions of clause 5;
2. the Supplier has agreed in writing to accept the return of the Goods; 
3. the Goods are returned at the Customer’s cost within fourteen (14) Business Days of the delivery date; and
4. the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instructional material in as new condition as is reasonably possible in the circumstances.
1. The Supplier will not be liable for Goods which have not been stored or used in a proper manner.

Risk

All risk for the Goods passes to the Customer on delivery.

If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Supplier is entitled to receive all insurance proceeds payable for the Goods. 

Title

The Supplier and Customer agree that ownership of the Goods shall not pass until:

1. the Customer has paid the Supplier all amounts owing for the particular Goods; and
2. the Customer has met all other obligations due by the Customer to the Supplier in respect of all contracts between the Supplier and the Customer.
1. Title will not pass to the Customer nor to any person the Goods are purported to be sold to by the Customer until full payment has been received by the Supplier.

Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Supplier’s ownership or rights in respect of the Goods shall continue.

1. Until payment in full has been received by the Supplier, the Customer will:
1. hold the Goods as bailee of the Supplier;
2. where practical, store the Goods separately so that they can be identified as our property, and not mix the Goods with other Goods;
3. insure the Goods for their full replacement value and have the Supplier noted on the policy as an interested party where requested;
4. to the extent that the sale of Goods results in proceeds, hold such proceeds (up to the total amount owing to us) as trustee for the Supplier.
2. Until payment in full has been received the Customer must not:
1. claim any interest in the Goods to secure any liquidated or unliquidated debt or obligation;
2. claim a lien over the Goods or any part of them; or
3. create or purport to create any interest in the Goods in favour of any other person without the Supplier’s consent.

It is further agreed that:

1. until such time as ownership of the Goods shall pass from the Supplier to the Customer the Supplier may give notice in writing to the Customer to return the Goods or any of them to the Supplier. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; 
2. if the Customer fails to return the Goods to the Supplier then the Supplier or the Supplier’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods; and
3. the Supplier may sell or otherwise deal with the Goods it has repossessed.

Personal Property Securities Act

1. The Customer acknowledges and agrees that the retention of title in clause 8 constitutes a security agreement for the purposes of the PPSA and creates a security interest in favour of the Supplier in the Goods supplied under this Agreement.
2. It is the intention of the parties that the security interest in the Goods is a purchase money security interest (including proceeds from the sale of the Goods).
3. The Customer agrees that immediately upon:
1. the creation of a Credit Account; or
2. its failure to adhere to the payment terms in clause 3.2, 

all amounts owing under this Agreement are a secured debt, with the security being a security interest in all present and after-acquired property (including any proceeds from the sale of such property) of the Customer.

1. The Customer agrees that the Supplier may attend to registration of any security interests contemplated in this clause on the PPSR without further notice.
2. The Customer undertakes to:
1. promptly sign any further documents and/or provide any further information which the Supplier may reasonably require to:
1. register a financing statement or financing change statement in relation to a security interest on the PPSR; 
2. register any other document required to be registered pursuant to the PPSA; and
3. correct a defect in a statement or document referred to in sub-clauses (A) and (B).
2. pay for all expenses incurred in registering a financing statement or financing change statement on the PPSR or releasing any property the Supplier has a security interest in;
3. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party, without the Supplier’s prior written consent;
4. give the Supplier not less than 14 days written notice of any proposed changes in the Customer’s personal details, including but not limited to changes in name, address, facsimile number, email address, trading name or business practices; and
5. pay for any costs incurred by the Supplier, including legal fees and disbursements on a solicitor-client basis, in obtaining an order pursuant to s182 of the PPSA and/or enforcing or attempting to enforce any security interest created in favour of the Supplier under this Agreement or otherwise.
3. The parties agree that sections 96, 115 and 125 of the PPSA do not apply to the security interest created by this Agreement.
4. The Customer:
1. pursuant to section 144, waives any rights to receive notices under sections 95, 118, 121, 130, 132 and 135 of the PPSA;
2. waives its rights as a grantor and debtor under sections 142 and 143 of the PPSA; and
3. waives its rights to receive a verification statement in accordance with section 157 of the PPSA.
5. Any payments by the Customer under this Agreement will be applied in the order specified in section 14(6)(c) of the PPSA regardless of any direction or request by the Customer, any agreement between the parties (express or implied) or the application of any such payment by us. The Supplier does not waive any rights under this clause by applying any payment in a different order.

Cancellation and termination

Cancellation by Customer

1. If the Customer wishes to cancel an order, the Customer must notify the Supplier in writing as soon as possible, subject to sub-clauses (b) and (c). 
2. The Customer cannot cancel an order if the Goods have been dispatched for delivery or the order fulfilled.
3. Cancellation will not be effective unless confirmed by the Supplier in writing.

Cancellation by Supplier

1. The Supplier may refuse to supply the Goods and/or Services outlined in the Quote at any time where:
1. the Goods are unavailable for any reason whatsoever;
2. the Quote is more than 30 days old;
3. the Customer becomes insolvent, enters into administration or otherwise ceases to conduct its business in the normal manner (where the Goods are purchased using a Credit Account);
4. the Customer has not complied with its obligations under this Agreement; or
5. there is a dispute between the parties.

Termination for breach

1. If either party breaches this Agreement and such a breach is capable of rectification, the other party must give the defaulting party written notice requesting that the breach be rectified within 5 business days (Breach Notice).
2. If a breach has not been rectified within 5 business days of the giving of a Breach Notice, the party giving the Breach Notice may terminate this Agreement immediately by notice in writing to the other.
3. If any party breaches a material term and the breach is not capable of rectification, the other party may terminate this Agreement immediately by notice in writing to the party in breach.

General

1. Neither party will be liable to the other for any loss or damage arising from a cancellation under this clause 11.
2. Where the Customer has paid a deposit, and an Order has been cancelled under this clause 11, the Supplier will refund the deposit to the Customer less any amount deducted to cover any monies due and owing to the Supplier under this Agreement.

Warranty

Warranty for the Goods shall be the current warranty provided by the manufacturer of the Goods. The Supplier shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.

Limitation of liability and indemnity

Limitation of liability

1. All information, specifications and samples provided by the Supplier are approximations only and, subject to any guarantees under the ACL, small deviations or slight variations which do not substantially affect the use of the Goods will not entitle the Customer to reject them upon delivery, or to make any Claim against the Supplier in respect of them.
2. Unless otherwise required by law, the Supplier’s liability for any breach of the Agreement in contract, tort (including negligence) or equity is limited, at the Supplier’s option, to:
1. the replacement of Goods supplied; 
2. the supply of equivalent Goods; 
3. the cost of replacing the Goods supplied or of acquiring equivalent Goods; 
4. the amount paid by the Customer to us under the Agreement; or
5. the amount paid out under an insurance policy held by the Supplier (less any excess).
3. To the maximum extent permitted by law, the Supplier will not be liable for any Loss or Consequential Loss incurred by the Customer or any other person whether directly or indirectly related to this Agreement.

Indemnity

The Customer agrees to indemnify the Supplier and keep the Supplier indemnified against any Loss arising from or in connection with any breach or default by the Customer of this Agreement.

Limitation

To the extent that any Claim or Loss occurs as a result of any negligent act or omission caused by the Supplier or its failure to comply with the material obligations of this Agreement, the Customer’s liability under clause 12.1 will be proportionately reduced.

General

Privacy

1. The Supplier will collect, store, use and disclose the Customer’s personal information in accordance with the Privacy Act 1988 (Cth) and the privacy policy available on the Supplier's website, as updated from time to time.
2. Where the Customer has an approved Credit Account, the Supplier will collect, store, use and disclose credit related information in accordance with its credit reporting policy provided at the time of applying for a Credit Account or as available on request by the Customer.

Assignment

1. Subject to clause 13.2(b), a party cannot assign, novate or otherwise transfer any of its rights or obligations under these Terms without the prior written consent of the other party.
2. The Customer agrees that if the Supplier merges or amalgamates with another entity or otherwise sells or disposes of the business, the Supplier may assign or novate this Agreement, including all Goods, personal information and confidential information supplied by the Customer, to that other entity, provided that entity agrees to be bound by the stipulations in this Agreement or to stipulations equivalent in effect.

Further assurances

Each party must promptly do all further acts and execute and deliver all further documentation reasonably requested by the other party to give effect to the contemplations of this Agreement.

Consents

Unless this Agreement expressly states otherwise, a party may in its absolute discretion, give conditionally or unconditionally or withhold, any consent. To be effective any consent under this Agreement must be in writing.

Force majeure

A party will not be liable for any failure or delay in the performance of its obligations under this Agreement to the extent that such failure or delay:

1. is caused by a circumstance not within the reasonable control of the party; and 
2. could not have been reasonably avoided, prevented or circumvented by the party.

Waiver

The non-exercise of or delay in exercising a right of a party will not operate as a waiver of that right, nor does a single exercise of a right preclude another exercise of it or the exercise of other rights. A right may only be waived by written notice signed by the party to be bound by the waiver.

Jurisdiction

This engagement is governed by the law in force in the State of Queensland and each of us submit to the non-exclusive jurisdiction of the courts of Queensland.

Severability

Any provision of these terms and conditions that is illegal, void or unenforceable will be severed without prejudice to the balance of the conditions which will remain in force.