Reviewed: 11th May 2020
TERMS AND
CONDITIONS OF TRADE
To the fullest extent legally possible all contracts, dealings and/or arrangements made between PSI Cycling Pty Ltd Pty Ltd ACN 624 853 112 and any Customer (“Customer”) relating to any goods, products, services or materials supplied or to be supplied by PSI Cycling Pty Ltd to the Customer (“Goods”) are subject to the following Terms and Conditions of Trade (“these Terms”) unless otherwise agreed in writing.
1. Payments
(a) Payments to be within 30 days of end of month of invoice date without deduction or set-off of any kind.
(b) PSI Cycling Pty Ltd may apply a payment received from the Customer to any amounts owed by the Customer (including part payment of an invoice, administration, collection and other costs) in any order.
(c) PSI Cycling Pty Ltd is entitled to set-off or deduct any amount payable by PSI Cycling Pty Ltd to the Customer.
(d) PSI Cycling Pty Ltd may require the Customer to pay a credit card surcharge (in addition to any payment) of up to 3% of the invoiced amount plus GST of the payment amount where the Customer pays by credit card.
(e) A payment dishonour fee may be charged by PSI Cycling Pty Ltd if a Customer’s payment is dishonoured in any way. This fee will be in addition to any fees the Customer’s financial institution or credit provider my charge the Customer.
2. Retention of Title and liability for goods
(a) Immediately upon delivery the Customer accepts risk and liability for the Goods.
(b) A document signed by an officer of PSI Cycling Pty Ltd identifying Goods and certifying that monies are owing to PSI Cycling Pty Ltd will be conclusive evidence of PSI Cycling Pty Ltd.’s title thereto.
(c) PSI Cycling Pty Ltd retains legal and equitable title in any Goods supplied to the Customer until payment in full for or in connection with the supply of the relevant Goods has been received by PSI Cycling Pty Ltd (“Full Payment”). Until Full Payment has been received, the following terms apply:
(i) Notwithstanding that title in the Goods remains with PSI Cycling Pty Ltd until Full Payment, the Customer may sell such goods or use the Goods in a manufacturing or construction process in the ordinary course of the Customer’s business. As between the Customer and the purchaser of any item of the Goods, the Customer sells as principal and not as agent of PSI Cycling Pty Ltd. The proceeds of sale of each item of Goods must be held by the Customer in a separate fund on trust for PSI Cycling Pty Ltd and the Customer is under a duty to account to PSI Cycling Pty Ltd for such proceeds. The creation of, or any failure of, any such trust shall not in any way limit the obligation of the Customer to pay an amount to PSI Cycling Pty Ltd for Goods supplied;
(ii) Until Goods are sold or used in a manufacturing or construction process, the Customer must keep the Goods safe and free from deterioration, destruction, loss or harm, clearly designate the Goods as the property of PSI Cycling Pty Ltd, store them in such a way they are clearly identified as the property of PSI Cycling Pty Ltd and keep full and complete records, firstly, of the physical location of the Goods and, secondly, the ownership of the Goods by PSI Cycling Pty Ltd;
(iii) PSI Cycling Pty Ltd is irrevocably entitled at any time and from time to time before sale of any item of Goods by the Customer to inspect or to recover and retake possession of such Goods and otherwise exercise in relation to the Goods any of its rights whether those rights are as owner and/or unpaid seller or otherwise and whether those rights are conferred by common law, contract, statute or in any other way. In order to exercise such entitlement, PSI Cycling Pty Ltd and its agents are irrevocably authorised by the Customer to enter any of the Customer’s premises or vehicles or those of any third party. The Customer agrees to obtain the consent of any such third party to such entry by the PSI Cycling Pty Ltd and to indemnify PSI Cycling Pty Ltd and its agents for any liability arising from any entry upon such third parties’ premises or vehicles. PSI Cycling Pty Ltd and its agents agree to take all reasonable care in removing the Goods from such premises or vehicles but, to the extent this liability may be disclaimed by law, are not liable for any damage or injury to such premises caused by the removal of the Goods; and,
(iv) this reservation of title and ownership is effective whether or not the Goods have been altered from their supplied form or commingled with other goods.
(d) Clause 2 is not intended to create a charge and must be read down to the extent necessary to avoid being a charge.
(e) The retention of title arrangement described in this clause 2 constitutes the granting of a purchase money security interest by the Customer in favour of PSI Cycling Pty Ltd in respect of all present and after acquired Goods supplied by PSI Cycling Pty Ltd to the Customer and the Customer must immediately, if requested by PSI Cycling Pty Ltd, sign any documents, provide all necessary information and do anything else required by PSI Cycling Pty Ltd to ensure that PSI Cycling Pty Ltd.’s purchase money security interest is a perfected security interest and the provisions of clause 40 will apply. '
(f) The Customer will not enter into any security agreement that permits any other person to have or to register any security interest in respect of the Goods or any proceeds from the sale of the Goods until PSI Cycling Pty Ltd has perfected its purchase money security interest.
3. Limitation of Liability:
To the extent permissible at law (including under the Australian Consumer Law):
(a) PSI Cycling Pty Ltd will not be liable for any claim arising after 7 days from delivery of Goods or performance of services (or at all once Goods have been unpacked, modified, on-sold or otherwise used or applied) after which there will be deemed to be unqualified acceptance.
(b) PSI Cycling Pty Ltd will not be liable in any way for any contingent, consequential, direct, indirect, special or punitive damage arising whether due to PSI Cycling Pty Ltd.’s negligence or otherwise and the Customer acknowledges this limit of liability and agrees to limit any claim accordingly.
(c) No other term, condition, agreement, warranty, representation or understanding whether express or implied in any way extending to or otherwise relating to or binding upon PSI Cycling Pty Ltd is made or given.
(d) PSI Cycling Pty Ltd will not be liable for any claim relating to or arising from any alleged fault or defect, whether caused or contributed to by PSI Cycling Pty Ltd, the Customer or any 3rd party otherwise.
4. Returns:
To the extent permissible at law (including under the Australian Consumer Law):
(a) if PSI Cycling Pty Ltd elects to take back product it must be in as new and saleable condition and upon terms agreed and a re- stocking fee will apply.
(b) custom made or custom processed Goods or Goods acquired by PSI Cycling Pty Ltd specifically for the Customer will not be returnable.
(c) any Goods which are accepted by PSI Cycling Pty Ltd as defective may be returned and will be replaced free of charge or be the subject of a credit for the invoiced value. “Free of charge” does not include labour, transport or material costs.
(d) credits will not be accepted later than 28 days after invoice date.
5. Specific Order:
Customer specific order may be rejected by PSI Cycling Pty Ltd at its election, unless accompanied by a non-refundable deposit of at least 50% of the total order price.
6. Placement of Orders:
(a) To the extent permissible at law (including under the Australian Consumer Law),if any dispute arises concerning any order (and including any measurement, quality, quantity, identity, or authority or any telephone, facsimile, e-mail or computer generated order) the internal records of PSI Cycling Pty Ltd will be conclusive evidence of what was ordered.
(b) Each order placed will be and be deemed to be a representation made by the Customer at the time that it is solvent and able to pay all of its debts as and when they fall due.
(c) Failure to pay in accordance with these Terms will be and be deemed to be conclusive evidence that the Customer had no reasonable grounds for making the representation referred to in clause 6 (b) and that the representation were unconscionable, misleading and deceptive.
(d) When any order is placed, the Customer must inform PSI Cycling Pty Ltd of any material facts which would or might reasonably affect the commercial decision by PSI Cycling Pty Ltd to accept the order and/or grant credit in relation thereto. Any failure to do so will create and be deemed to create an inequality of bargaining position and will constitute and be deemed to constitute the taking of an unfair advantage of PSI Cycling Pty Ltd and to be unconscionable, misleading and deceptive.
7. Delivery:
(a) To the extent permissible at law (including under the Australian Consumer Law), PSI Cycling Pty Ltd accepts no responsibility for delivery but may elect to arrange delivery at its discretion and without any liability and at the Customers costs and responsibility in all things.
(b) PSI Cycling Pty Ltd reserves the right to charge for any delivery.
(c) The Customer will be deemed to have accepted delivery and liability for the Goods immediately after PSI Cycling Pty Ltd notifies that they are ready for collection or when they are delivered to a carrier or to the Customer’s business premises or site whether attended or not.
(d) A document (including without limitation a consignment note) purporting to be signed by an officer(s) of PSI Cycling Pty Ltd confirming delivery will be conclusive evidence of delivery as will any signed delivery docket.
(e) To the extent permissible at law (including under the Australian Consumer Law), PSI Cycling Pty Ltd will not be liable for delay, failure or inability to deliver any Goods
(f) Once the Customer has been notified hat Goods are ready for collection, the Customer agrees to pay all costs of holding or handling Goods.
(g) Frustrated Delivery If time spent delivery exceeds 30 minutes or requires more than one attempt, the Customer agrees to pay all costs relating thereto.
8. Variation:
Variation or cancellation of any order, dealing or arrangement must be agreed inwriting.
9. Exclusions
To the extent permissible at law (including under the Australian Consumer Law):
(a) No dealing with the Customer will be deemed to be a sale by sample or description.
(b) If PSI Cycling Pty Ltd publishes material about its Goods and prices, any part which is incompatible with these Terms is expressly excluded.
(c) the Customer will rely on its own knowledge and expertise in choosing any product for any purpose.
(d) Any advice or assistance given for or on behalf of PSI Cycling Pty Ltd must be accepted at the Customer’s risk and must not be or be deemed given as expert or adviser nor to have been relied upon.
10. Privacy disclosure and consent
The Customer authorises PSI Cycling Pty Ltd to:
(a) obtain credit information about its personal, consumer and commercial credit worthiness from any bank or trade referee disclosed in any credit application completed by it (“Credit Application”) and provided to PSI Cycling Pty Ltd and from any other credit provider or credit reporting agency for the purpose of assessing its Credit Application, or in connection with any guarantee given by the Customer;
(b) use, disclose or exchange with other credit providers and other PSI Cycling Pty Ltd entities information about the Customer’s credit arrangements in order to assess its Credit Application, monitor credit worthiness and collect overdue accounts, and
(c) disclose the contents of any credit report on the Customer to any of its related entities, and any of their solicitors and mercantile agents.
11. Severability
If a provision of these Terms would but for this clause, be unenforceable, that provision must be read down to that extent necessary to avoid that result and if that provision cannot be read down to that extent, it must be severed without altering the validity and enforceability of the remainder of these Terms.
12. Purchase Price:
(a) All sales are made by PSI Cycling Pty Ltd at its ruling price at the time of delivery.
(b) All government imposts and any GST (“imposts”) will be to the Customer’s account.
(c) PSI Cycling Pty Ltd.’s price lists exclude Imposts unless expressly noted thereon.
13. Default:
To the extent permissible at law (including under the Australian Consumer Law), default or breach by the Customer of these Terms or in any dealings with PSI Cycling Pty Ltd will entitle PSI Cycling Pty Ltd to retain all monies paid, call-up all monies due or owing (whether currently due and owing or not) cease further deliveries and recover from the Customer all loss of profits without prejudice to any other of its rights under these Terms or at law.
14. Product and Services:
(a) To the extent permissible at law (including under the Australian Consumer Law), PSI Cycling Pty Ltd disclaims any responsibility or liability whatsoever relating to any dye colour fastness characteristic suitability for any particular purpose or process.
(b) The Customer agrees to check and test all Goods prior to use alteration or any sale or application thereof whether in relation to any dyes colours, colour fastness characteristic or suitability for any particular purpose or process or otherwise.
(c) The Customer agrees to check and test all Goods for compliance with all relevant applicable standards and regulatory bodies before use on- sale or application and to use or apply same in accordance with all applicable standards, regulations and guidelines with all manufacture’s and/ or PSI Cycling Pty Ltd recommendations and directions as well as with good commercial practice.
(d) PSI Cycling Pty Ltd may update, modify, make substitution or alter any of its Goods or any component or raw material incorporated in or used in forming any part of any Goods as part of its ongoing business. The Customer agrees to accept current Goods in substitution of any Goods ordered provided they are not materially different.
(e) To the extent permissible at law (including under the Australian Consumer Law), PSI Cycling Pty Ltd disclaims any responsibility or liability relating to any Goods:
(i) processed or made to designs, drawings, specifications or measurements etc or with materials which are provided or approved (whether in part or fully) by or on behalf of the Customer: and/or
(ii) utilised, sorted, handled or used incorrectly or inappropriately
15. Other Terms:
Terms and/or conditions sought to be imposed by the Customer upon PSI Cycling Pty Ltd will not apply unless agreed in writing by PSI Cycling Pty Ltd.
16. Recovery Costs:
The Customer will pay (on a full indemnity basis) all costs and expenses of PSI Cycling Pty Ltd, its legal adviser, mercantile agents and others acting on its behalf in respect of anything instituted or being considered as a result of any breach of these Terms or breach of any dealings with PSI Cycling Pty Ltd.
17. Attornment:
To give effect to its obligations arising under these Terms (and especially clause 22) the Customer hereby irrevocably appoints any director of PSI Cycling Pty Ltd from time to time, as its attorney.
18. Customer Restructure:
(a) The Customer will notify PSI Cycling Pty Ltd of any change in its structure or management including any sale in or disposition of any part of the business of the Customer, any change in director, shareholder, management, partnership or trusteeship or sale of any material part of its business (“Restructure”) within 7 days of any such change.
(b) The Customer agrees it will:
(i) cause any new entity created by virtue of a Restructure (“New Entity”) to be bound by the Terms; and
(ii) Continue to be bound by these Terms despite a Restructure and will indemnify PSI Cycling Pty Ltd for any loss or damage it suffers as a result of a breach of these Terms by the New Entity.
19. Jurisdiction:
All contracts made with PSI Cycling Pty Ltd will be deemed to be made in the State of Victoria and the parties submit to the exclusive jurisdiction of the appropriate Courts in or nearest Melbourne in that State.
20. Credit Line:
PSI Cycling Pty Ltd can vary or withdraw any credit facility or limit it any time at its discretion and without any liability to the Customer or any other party.
21. Waiver:
If PSI Cycling Pty Ltd elects not to exercise any rights arising as a result of breach of these Terms, it will not constitute a waiver of any rights relating to any subsequent or other breach.
22. Security For Payment:
The Customer agrees subject to clause 40, that:
(a) Despite anything to the contrary contained therein or any other rights which PSI Cycling Pty Ltd may have howsoever, where the Customer is the owner, or becomes the owner in the future, of land realty or any other asset capable of being charged (“Asset”) the Customer agrees, upon PSI Cycling Pty Ltd.’s written request to mortgage and/or charge all of their joint and/or several interest in the Asset to PSI Cycling Pty Ltd to secure all amounts and other monetary obligations payable by the Customer to PSI Cycling Pty Ltd.
(b) it grants a lien to PSI Cycling Pty Ltd over any of its property in the possession or control of PSI Cycling Pty Ltd until Full Payment.
(c) it will execute any documents and to do all things requested by PSI Cycling Pty Ltd to register a mortgage (or such other security PSI Cycling Pty Ltd requires) over any current or later acquired real property the Customer has an interest in.
(d) it consents unconditionally to PSI Cycling Pty Ltd lodging a caveat noting PSI Cycling Pty Ltd.’s interest in any current or later acquired real property the Customer has an interest in and
(e) any officer of PSI Cycling Pty Ltd may (without limitation) sign documentation to affect the Customer’s compliance with this clause 22 by virtue of the provisions of clause 17.
23. Force Majeure:
PSI Cycling Pty Ltd will not be in default or breach of any dealings with the Customer as a result of Force Majeure (i.e. anything beyond PSI Cycling Pty Ltd.’s reasonable control).
24. Sampling:
The Customer must pay for all Goods provided to or ordered by the Customer as “sampling” unless otherwise agreed in writing.
25. Intellectual Property:
(a) If PSI Cycling Pty Ltd utilises any design patent or intellectual property or follows any instruction provided by or on behalf of the Customer, the Customer indemnifies PSI Cycling Pty Ltd against any claim, proceeding, damages or liability for any loss cost or expense arising as a result whether for any alleged infringement of any intellectual property or otherwise.
(b) The Customer must not advertise, use or represent any intellectual property of PSI Cycling Pty Ltd or of any Goods themselves in any way without the prior written consent of PSI Cycling Pty Ltd.
(c) If the Customer breaches or permits any breach of this clause, it acknowledges PSI Cycling Pty Ltd may suffer claims by third parties as a result (e.g. by models who’s images are reproduced without authority and/or by parties who are entitled to exploit any intellectual property) and clause 34 will apply.
26. Discounts:
Any discount offered by PSI Cycling Pty Ltd is at its complete discretion and will only be available provided the Customer is not in breach of any part of these Terms nor in default in any of its dealings with PSI Cycling Pty Ltd.
27. Specifications:
(a) Any illustration drawing, or specifications supplied by PSI Cycling Pty Ltd (“Specs”) are drafts and approximates and are for illustration purposes and the Customer should not rely on the accuracy of such Specs in any way.
(b) Any tangible or intellectual property rights in Specs remain the property of PSI Cycling Pty Ltd and may be recalled at any time.
(c) Specs are to be treated at all times as confidential and not made use of without the prior written consent of PSI Cycling Pty Ltd.
28. No Set-Off:
No set off or counterclaim will be made or applied by the Customer until payment in full of all bona fide invoices raised by PSI Cycling Pty Ltd (whether current or overdue) and this clause may be pleaded as a bar to any action taken prior to such payment in full.
29. Trusts:
The Customer agrees that these terms bind it not only in its own capacity but also as the Trustee of every trust of which it is a trustee.
30. No Merger:
Termination of these Terms and/or dealings between the Customer and PSI Cycling Pty Ltd (“Cessation”) will not end those provisions of these Terms that are capable of surviving Cessation.
31. Stock Discretion:
PSI Cycling Pty Ltd has a continuing discretion to allocate available stock and gives no warranty as to certainty of supply unless expressly agreed in writing in advance.
32. Partial Delivery/Forward Orders:
If the Customer places forward orders or request partial or instalment delivery, the Customer agrees:
(a) to pay for so much of any order as is from time to time delivered by PSI Cycling Pty Ltd: and
(b) that no delay or failure to fulfil any part of any order will entitle the Customer to cancel or vary any order or delay or reduce any payment.
33. Acceptable Variation:
The Customer will accept variation in quantities at plus or minus 5% and will pay pro-rata for the actual quantity delivered.
34. Indemnity:
To the extent permissible at law (including under the Australian Consumer Law), the Customer indemnifies PSI Cycling Pty Ltd against any claim or loss arising from or related in any way to any contract or dealing between PSI Cycling Pty Ltd and the Customer or anything arising there from or arising as a result of or subsequent to any breach of these Terms.
35. Insolvency:
If the Customer commits or is involved in any act of insolvency, it will be deemed in default under these Terms. An act of insolvency includes bankruptcy, liquidation, receivership, administration or the like and failure to pay in accordance with these Terms.
36. All Divisions:
The Customer agrees that these Terms will apply to all dealings between the Customer and PSI Cycling Pty Ltd and any part or member of the PSI Cycling Pty Ltd Group.
37. Recalls:
In the event of a product recall (“Recall”) the Customer must give PSI Cycling Pty Ltd such assistance as PSI Cycling Pty Ltd reasonably requires in relation to that Recall.
38. Pallets:
The Customer will return all pallets and any re-useable packaging provided with Goods and indemnifies PSI Cycling Pty Ltd for the full replacement cost thereof, if not returned to PSI Cycling Pty Ltd promptly and in good order.
39. Exclusion of warranty:
To the extent permissible at law (including under the Australian Consumer Law), PSI Cycling Pty Ltd is not bound by any warranty (and the Customer agrees not to make any claim against PSI Cycling Pty Ltd in relation to any warranty) in respect of Goods or services unless all Goods and services have paid for in full without set-off or deduction of any kind.
40. Personal Property Securities Act 2009:
(a) Where the Personal Property Securities Act 2009 (“PPSA”) is in force, the Customer acknowledges that these Terms create a security interest under the PPSA in all Goods supplied by PSI Cycling Pty Ltd to the Customer, and for avoidance of doubt, the proceeds of sale of those Goods.
(b) The Customer consents to PSI Cycling Pty Ltd effecting a registration on the PPSA register (in any manner PSI Cycling Pty Ltd considers appropriate) in relation to any security interest contemplated by these Terms (including but not limited to an interest under clause 2 and 22) and further agrees:
(i) to do all things necessary and required by PSI Cycling Pty Ltd to make sure that the security interest is a perfected “purchase money security interest” under the PPSA; and
(ii) not to allow any third party to acquire a security interest in the Goods.
(c) To the extent that the Goods are for the Customer’s business use, the Customer agrees to the extent permitted under the PPSA, that the Customer has no right:
(i) to receive notice of removal of an accession under the PPSA
(ii) under Chapter 4 if the PPSA; or
(iii) under the PPSA to receive a copy of any verification statement of a financing statement under the PPSA.
(d) Without in any way limiting clause 40(c) the Customer agrees that to the extent permitted under the PPSA, the Customer hereby waives its rights under sections 95, 96, 117, 118, 120, 121 (4), 123, 125, 126, 128, 129, 130, 132, 134, 135, 142 and 143 of the PPSA.
(e) Unless otherwise agreed to in writing by the Seller, the Buyer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
(f) The client hereby waives its rights to receive notices under sections 95, 118, 121 (4), 130, 132 (3) (d) and 132 (4) of the PPSA.
(g) The Customer must not assign or grant a security interest in respect of any accounts owed to it in relation to the Goods without PSI Cycling Pty Ltd.’s prior written consent.
(h) Without limiting any other provision of these Terms, if the Customer makes a payment to PSI Cycling Pty Ltd at any time whether in connection with the supply of Goods or otherwise, PSI Cycling Pty Ltd may at its absolute discretion apply that payment to first satisfy obligations that are not secured, then obligations that are secured, but not by a purchase money security interest, in the order in which those obligations were incurred, and then obligations that are secured by a purchase money security interest in the order in which those obligations were incurred.
41. PSI Cycling Pty Ltd not Manufacturer:
To the extent permissible at law (including under the Australian Consumer Law):
(a) the Customer agrees that PSI Cycling Pty Ltd is not the manufacturer of any Goods;
(b) Goods are sold subject to any manufacturer’s trading terms and conditions and are covered (if at all) by any manufacturer’s warranty applicable thereto.
(c) PSI Cycling Pty Ltd shall not be liable to any party as manufacturer
(d) PSI Cycling Pty Ltd will use all reasonable endeavours to assist the Customer to claim upon the actual manufacturer at the Customers cost in all things; and
(e) if PSI Cycling Pty Ltd is deemed manufacturer of any Goods in any circumstances, the Customer will fully indemnify PSI Cycling Pty Ltd against any liability loss or cost associated with or arising as a result of such deeming.
42. The Competition and Consumer Act 2010 (Cth) and Fair Trading Acts:
(a) Nothing in these Terms is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
(b) If the Customer is a consumer for the purposes of the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (“ACL”), nothing in these Terms limits any remedy available for a failure of the guarantees in sections 56 and 57 of the ACL.
43. Limitation of Liability:
(a) Australian Consumer Law Warranty: Our goods come with guarantees that cannot be excluded under Australian consumer law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
(b) This clause 43 is subject to any contrary provisions of any applicable law (including without limitation the Australian Consumer Law Schedule of the Competition and Consumer Act 2010), the operation of which cannot be excluded.
(c) Except as provided in subclause 43(d), PSI Cycling Pty Ltd.’s liability for a breach of these Terms, a condition, warranty or a guarantee of supply or in relation to defective goods and services is limited to (at PSI Cycling Pty Ltd.’s election):
(i) in the case of goods PSI Cycling Pty Ltd supplies:
A. the replacement of the goods or the supply of equivalent goods;
B. the repair of the goods; or
C. the payment of the cost of replacing the goods or of acquiring equivalent goods;
(ii) in the case of services PSI Cycling Pty Ltd supplies, the supplying of the services again, and the Customer will limit any claim upon PSI Cycling Pty Ltd accordingly.
(d) If goods or services PSI Cycling Pty Ltd supplies are of a kind ordinarily acquired for personal, domestic or household use or consumption, and there is a “major” failure of the goods or services to meet any consumer guarantee under Schedule 2 (The Australian Consumer Law) of the Competition and Consumer Act 2010 (Cth) then the Customer may choose one of the following remedies:
(i) in the case of goods PSI Cycling Pty Ltd supplies:
A. ask for a refund;
B. return the goods and ask for an identical replacement, or one of similar value if reasonably available; or
C. keep the goods and ask for compensation for the drop in value caused by the problem; or
(ii) in the case of services PSI Cycling Pty Ltd supplies:
A. cancel the contract and pay a reasonable amount for the work done, or seek a refund; or
B. for money already paid, keep the contract and negotiate a reduced price for the drop in value of the service — this may mean asking for some of the money back the Customer has already paid.
44. Safety Requirements – Bicycle Sales:
(a) The Customer must deliver all literature, owner’s manual and instructions supplied by PSI Cycling Pty Ltd with a given bicycle to the purchaser of that bicycle and urge that it be read before use.
(b) The Customer shall carefully orient each purchaser to the particular bicycle purchased, to review safety equipment, to explain that the bicycle will require expert service and to recommend use of an approved helmet.
(c) The Customer shall maintain orderly records of all PSI Cycling Pty Ltd bicycles sold along with purchaser names, addresses and phone numbers so that in the event a recall becomes necessary, the purchasers can be contacted.
(d) The Customer must sell PSI Cycling Pty Ltd bicycles only in a completely assembled and properly adjusted condition complete with all safety equipment supplied by PSI Cycling Pty Ltd installed on every bicycle. The Customer must not sell boxed bicycles to individuals.
(e) To the extent permissible at law (including under the Australian Consumer Law), the Customer indemnifies PSI Cycling Pty Ltd and shall keep PSI Cycling Pty Ltd fully and effectively indemnified from and against all actions, claims, demands, costs, losses or expenses of any nature brought by any person against PSI Cycling Pty Ltd (“Claim”) as a result of or in connection with or arising out of the use of the Goods, to the extent that the Claim is caused by, results from, or arises out of the failure by the Customer to comply with any of the requirements of this clause 44.
45. Approved Website:
(a) Subject always to clause 46 below, the Customer may sell the Goods on the Customer’s website or other web site specifically approved by PSI Cycling Pty Ltd in writing ("Website").
(b) Subject to sub-clause (c) below, the Customer must not sell the Goods through electronic channels other than the approved Website.
(c) Notwithstanding subclause (b) above, the Customer may sell Goods identified as “previous season” by PSI Cycling Pty Ltd on eBay.
46. General Web Site Restrictions:
(a) The Customer must not allow the Website to link to, or provide data feeds to, any “Transactional Website” or permit any Transactional Website to link to the Website. For the purpose of this clause 46, “Transactional Website” shall mean a shopping portal, online marketplace, or any other website which either:
(i) is capable of accepting orders from consumers; or
(ii) creates the perception that orders are accepted on the site, although the consumers are redirected to other third-party websites for order placements.
(b) The Customer must not use:
(i) the words “PSI CYCLING PTY LTD IMPORTS AUSTRALIA” or “PSI CYCLING PTY LTD”;
(ii) any PSI Cycling Pty Ltd trademarks or any trademarks owned by the brands it distributes; or
(iii) the names of any brands, or any words associated with the brands, PSI Cycling Pty Ltd distributes,
A. in metadata on the Website;
B. as internet search terms;
C. in any domain name or URL address.
(c) The Customer must not purchase or register:
(i) the words “PSI CYCLING PTY LTD IMPORTS AUSTRALIA” or “PSI CYCLING PTY LTD”;
(ii) any PSI Cycling Pty Ltd trademarks or any trademarks owned by the brands it distributes; or
(ii) the names of any brands, or any words associated with the brands, PSI Cycling Pty Ltd distributes.
(d) The Customer must not allow any fulfilment house or any other third party to fill consumer orders of Goods placed through the Website.
47. Sales and Distribution:
(a) To the extent permissible at law (including under the Australian Consumer Law), the Customer must not directly or indirectly offer for sale, sell, divert, ship, distribute or otherwise dispose Goods to:
(i) any individual that the Customer knows, or has reason to believe, will resell the Goods to a broker, jobber on the internet, at swap meets, flea markets, or on auction websites;
(ii) any distributors or wholesalers;
(iii) any e-tailer; or
(iv) to any other person under circumstances where it knows or should know, based on the circumstance of the transaction, that the Goods are intended for resale or will likely be resold.
(b) The Customer agrees to cooperate with PSI Cycling Pty Ltd to ensure compliance with the provisions of this clause 47, which will include the right for PSI Cycling Pty Ltd to inspect the Customer’s books and records upon reasonable notice during business hours. The Customer further agrees to reimburse PSI Cycling Pty Ltd for any costs incurred as a result of the Customer’s breach of clause 47, including reasonable legal fees, investigator’s costs and costs to repurchase diverted Goods. The Customer must not purchase authentic PSI Cycling Pty Ltd products from any third party.
48. International Sales:
To the extent permissible at law (including under the Australian Consumer Law), the Customer must not offer for sale, distribute or ship Goods outside of Australia.
49. Counterfeit Products:
The Customer must not manufacture, purchase or sell, offer to sell, or distribute, including at no cost, counterfeit product of the brands represented by PSI Cycling Pty Ltd.
50. Termination of Supply:
(a) PSI Cycling Pty Ltd may terminate supply without notice if the Customer is in breach of any of these Terms upon which the Customer agrees to immediately stop selling the Goods and return any Goods to PSI Cycling Pty Ltd.
(b) The Customer agrees that upon PSI Cycling Pty Ltd.’s request, it will immediately remove all references to PSI Cycling Pty Ltd and the Goods from its advertising and marketing materials and its website. All costs and losses in relation to such removal will solely be borne by the Customer.
~ END OF TERMS AND CONDITIONS OF TRADE ~