GENERAL CONDITIONS OF SALE
These General Conditions of Sale comprise the following terms:
1. TERMS AND CONDITIONS OF SUPPLY;
2. INTERNET SALES AND DIGITAL MARKETING POLICY;
3. BRAND PROTECTION POLICY;
4. TERMS AND CONDITIONS FOR RELEASE OF TAYLORMADE IMAGERY;
5. WARRANTY POLICY,
and any other documents attached to or otherwise incorporated into the General Conditions of Sale by reference (including, without limitation, the Credit Application Form), in each case as may be amended and/or supplemented from time to time by the Seller on no less than 30 days’ notice to the Buyer, together the “Agreement”.
Terms and Conditions of Supply
Definitions / Interpretation
1.1 “Approved Materials” means any promotional/advertising aids, fixtures and/or advertising materials relating to the Goods or the TaylorMade Trade Marks produced for or on behalf of the Buyer or buyers.
1.2 "Associate" means, in relation to a corporation, a related body corporate of that corporation, including such corporation's holding company, any subsidiary of such holding company, a subsidiary of such corporation and any person who has Control of such corporation or, in relation to an individual or a partnership, the husband or wife or child of that individual, or the husband or wife of that child, each of the partners and each partner's husband, wife or child or any legal personal representative of the individual or any of the partners.
1.3 "Brand Protection Policy" means the brand protection policy annexed to this Agreement and any and all related standards, policies and requirements notified by the Seller to the Buyer from time to time.
1.4 "Business Day" means, for receiving a notice, a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the notice is received.
1.5 "Change of Control" means in relation a company or a trust, the person that has Control of that company or trust on the date of signing this Agreement stops having Control.
1.6 "Consequential Loss" means:
(a) any and all Losses suffered by a party that cannot reasonably be considered to arise naturally from that breach or event or events giving rise to the losses;
(b) any and all consequential, special, indirect, exemplary or punitive Losses; and
(c) any and all loss of profit, loss of revenue, loss of goodwill and loss of savings.
1.7 "Control" means the ability to direct the affairs of another corporation, entity or person whether by virtue of a position as a director of a corporation, the ownership of shares in a corporation, contract or otherwise.
1.8 "Credit Application Form" means the credit application form (as amended by the Seller from time to time) which is to be completed by the Buyer if the Buyer wishes to purchase (or to continue to purchase) Goods on credit from the Seller.
1.9 "Goods" means the goods (or any instalment or part of them) sold by the Seller to the Buyer pursuant to this Agreement.
1.10 "GST (Australian Definition)" means the tax payable on taxable supplies in Australia under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any related law, act or regulation imposing such tax or legislation that is enacted to validate, recapture or recoup such tax.
1.11 “Intellectual Property Rights” means patents, design rights, copyrights, trademarks, trade names and domain names, moral rights, database rights, rights in confidential information (including without limitation know-how and trade secrets) and any and all other intellectual property rights, in each case whether registered or unregistered, which subsist now or will subsist in the future in any part of the world.
1.12 "Imagery" and "TaylorMade Imagery" mean any images provided to the Buyer or the Buyer's Associates by the Seller or the Seller's Associates relating to the goods sold by or TaylorMade Trade Marks of any of the Seller and the Seller's Associates.
1.13 "Internet Sales and Digital Marketing Policy" means the internet sales and digital marketing policy annexed to this Agreement and any and all related standards, policies and requirements notified by the Seller to the Buyer from time to time.
1.14 "Loss" means any liabilities, losses, damages, costs and expenses (including legal costs and expenses, regardless of whether incurred or awarded) arising in contract, tort (including negligence) or equity or under any statute.
1.15 "Order" means an order submitted by or on behalf of the Buyer to the Seller for goods offered for sale by the Seller.
1.16 “Promotional Materials” means any promotional/advertising aids, fixtures (including fixtures in retail premises) and/or advertising materials provided by the Seller to the Buyer from time to time.
1.17 “Seller's Brand Shop” means the internet sites at www.taylormadegolf.com.au and
1.18 “Specifications” has the meaning ascribed in clause 7.1.
1.19 “TaylorMade Trade Marks” means any trade marks (whether registered or unregistered) owned by or licensed to any of the Seller and the Seller's Associates.
1.20 “Term” has the meaning ascribed in clause 20.
1.21 "Terms and Conditions for Release of TaylorMade Imagery" means the terms and conditions for release of TaylorMade Imagery annexed to this Agreement and any and all related standards, policies and requirements notified by the Seller to the Buyer from time to time.
1.22 "Terms and Conditions of Supply" means the terms and conditions of supply set out in this document and includes any additional terms and conditions agreed in writing between the Seller and the Buyer.
1.23 "Warranty Policy" means the warranty policy annexed to this Agreement.
2.1 The Buyer shall complete a Credit Application Form as requested from time to time by the Seller and continue to abide by the terms of credit offered by the Seller (as changed from time to time by the Seller with reasonable prior notice to the Buyer) throughout the Term. The Buyer consents to the Seller’s engaging the services of a credit reference agency for the purposes of evaluating the Buyer’s credit application.
2.2 The Seller, in its sole discretion, may not accept any Order or supply any Goods to the Buyer until the Credit Application Form has been received and:
(i) the Buyer's application for credit has been approved and an account has been opened for the Buyer; or
(ii) the Seller has informed the Buyer that it shall only supply the Goods on a "cash on delivery" basis and the Buyer has agreed in writing to deal with the Seller on that basis.
2.3 Any agreement by the Seller to supply Goods on credit terms may be:
(a) withdrawn or varied by the Seller at any time upon giving reasonable notice to the Buyer; or
(b) withdrawn or varied without notice if any account is overdue at the absolute discretion of the Supplier.
2.4 If the Seller has agreed to supply Goods on credit terms, and the Seller:
(a) has reasonable grounds to believe that the Buyer may fail to pay an invoice within the period provided; and
(b) has not otherwise been provided with adequate assurance of payment within 14 days of written request, then the Seller may require the Buyer to pay the purchase price before the requested delivery date and the Seller is not required to deliver the Goods until such time as the purchase price is received or adequate assurance of payment is provided to the Seller's reasonable satisfaction.
Supply of Product
3.1 All Orders for the Goods shall be deemed to be an offer by the Buyer to purchase the Goods in accordance with this Agreement and acceptance of Orders shall be at the entire discretion of the Seller. In particular, the Seller shall be entitled:
(a) to accept part only of any Order submitted to it by the Buyer; and/or
(b) (notwithstanding the acceptance of any Order or part thereof) to reasonably reduce the quantity of Goods delivered to the Buyer to reflect the demand which, in the Seller's reasonable opinion, the Buyer will experience from its customers for the Goods.
3.2 All Orders submitted by the Buyer to the Seller must be in the format notified by the Seller from time to time. Orders must be placed:
(a) by such deadlines as specified by the Seller from time to time; and
(b) otherwise at least 1 month prior to the requested delivery date (except for "refill" and "at once" Orders, which can be placed at any time).
3.3 Orders (but not part Orders) to a value of less than AU$250, exclusive of any applicable GST, will attract a handling surcharge of AU$10 (plus any applicable GST), in addition to any freight that may otherwise be charged under this Agreement.
3.4 The Seller reserves the right to charge the Buyer an additional charge for Orders which do not comply with the Seller's standard carton quantities, which additional charge will be communicated in advance to the Buyer from time to time.
3.5 Once an Order placed by the Buyer has been accepted by the Seller:
(a) no more than 10% (by value) of TaylorMade branded equipment and related soft goods included in that Order can be cancelled by the Buyer; and
(b) any cancellation will be effective only if received by the Seller from the Buyer in writing at least:
(i) 14 days prior to the scheduled delivery date in relation to in-line products; or
(ii) 45 days prior to the scheduled delivery date in relation to special make up products specific to the Buyer, and approved in writing by the Seller, which shall not be unreasonably withheld or delayed.
Except as specified in this clause 3.5, Orders accepted by the Seller cannot be cancelled by the Buyer. The Seller reserves the right to cancel any Order made by the Buyer without reason by giving written notice to the Buyer not less than 14 days prior to the scheduled delivery date.
3.6 As a condition of the supply of Goods by the Seller to the Buyer under this Agreement, the Buyer agrees that it will exclusively obtain from the Seller (and not directly or indirectly from any other third party competitor of the Seller) Goods bearing, containing or referencing any TaylorMade Trade Marks or copyright material owned or controlled by the Seller or any of the Seller's Associates. The Seller reserves the right to withhold supply from the Buyer if it breaches this obligation, and the Seller shall not be liable to the Buyer for any Loss or damage directly or indirectly resulting from any such action.
Passing of Title
4.1 The Buyer agrees that title to the Goods will not pass to the Buyer until the Buyer has paid, and the Seller has received (in full cleared funds):
(a) all sums due in respect of those Goods; and
(b) all other sums which are due to the Seller or any of its Associates from the Buyer or the Buyer’s Associates (whether under this Agreement or any other contract with the Buyer or the Buyer's Associates).
The Seller may bring an action for any outstanding payment notwithstanding that title to the Goods has not passed to the Buyer.
4.2 Until title to the Goods has passed to the Buyer in accordance with this clause, if the Buyer has taken delivery of the Goods, the Buyer holds the Goods in a fiduciary capacity and must store the Goods (at no cost to the Seller) separately and identifiable from all other goods in its possession (and in a manner that clearly shows the ownership of the Seller), and shall not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods. The Buyer must ensure that the Goods are properly maintained in the condition in which they were delivered and agrees to make good any damage or deterioration to them.
4.3 Notwithstanding the provisions in clauses 4.1 and 4.2, the Buyer has the right to sell the Goods to a third party in the ordinary course of business and to deliver the Goods to that third party, provided that:
(a) where the Buyer is paid by the third party, and the Seller has not been paid by the Buyer for the Goods pursuant to this Agreement or any other contract with the Buyer, the Buyer holds the whole of the proceeds of sale on trust for the Seller and undertakes upon receipt of payment from the third party to immediately pay the Seller for the Goods in accordance with this Agreement; and
(b) where the Buyer is not paid by that third party, and the Seller has not been paid by the Buyer for the Goods pursuant to this Agreement or any other contract with the Buyer, the Buyer agrees (at the option of the Seller) to assign its claim against the third party to the Seller upon the Seller giving the Buyer notice in writing to that effect and title to the Goods passes to the third party once the third party has paid and the Seller has received (in full cleared funds) all sums due in respect of those Goods.
4.4 For the purpose of giving effect to or perfecting the assignment specified in clause 4.3(b), the Buyer irrevocably appoints the Seller as its agent and attorney with power to complete an assignment of its claim including the power for the Seller to execute all necessary documents to complete the assignment on behalf of the Buyer and do anything necessary to give effect to clause 4.3(b). The Buyer agrees to ratify and confirm whatever the Seller lawfully does or causes to be done under this clause 4.4 and indemnifies the Seller against any Loss, to the extent arising from a lawful exercise of all or any of the Seller's powers under this clause 4.4.
4.5 The Buyer shall not pledge, charge or encumber by way of security for any indebtedness any of the Goods for which title has not passed from the Seller to the Buyer, other than:
(a) in the ordinary course of the Buyer's ordinary business; and
(b) provided that the Seller's title to or security interest in the Goods at all times ranks in priority to any other such security interest in those Goods.
4.6 Until title to the Goods has passed to the Buyer, the Seller has a right to call for or recover the Goods and the Buyer is under an obligation to deliver up the Goods to the Seller provided that the Buyer has not sold the Goods under clause 4.3. In the event of failure by the Buyer to pay the price for the Goods in accordance with this Agreement, the Seller shall (without prejudice to any of the Seller’s other rights) have the power to resell the Goods.
4.7 The Buyer grants the Seller and its representatives an irrevocable licence at any time with reasonable prior notice to enter upon any premises or land occupied, controlled or owned by the Buyer to remove and/or inspect the Goods. The Buyer agrees to provide any assistance reasonably required by the Seller in making use of the licence under this provision, including without limitation assisting in locating and removing the Goods.
4.8 The parties agree that this clause 4 applies notwithstanding any agreement, whether subject to this Agreement or not, between the parties under which the Seller gives the Buyer credit.
Passing of Risk
5.1 Risk of loss or damage to the Goods passes to the Buyer at the time of delivery of the Goods to the Buyer's premises, when the Buyer becomes solely responsible for the custody, security and maintenance of the Goods.
5.2 Pending payment of the full purchase price of the Goods, the Buyer shall at all times, including without limitation from the time of delivery of the Goods, keep the Goods and any Promotional Materials comprehensively insured against loss or damage by accident, fire, theft and all other risks usually covered by insurance in the type of business carried on by the Buyer in an amount at least equal to the balance of the price of the Goods remaining outstanding and the value of the Promotional Materials. The Buyer must at any time upon the Seller's request produce a copy of the policy and certificate of currency of such insurance to the Seller.
6.1 The prices payable by the Buyer for the Goods (including without limitation any Order for delivery by instalments) will be the list prices of the Seller current at the date of despatch. The Seller reserves the right to reasonably increase the price of the Goods charged by the Seller to the Buyer by providing reasonable prior notice to the Buyer. Where the Buyer has already submitted an Order for the Goods and the Buyer does not agree to the change in the price of the Goods, it may cancel the Order.
6.2 Unless otherwise stated in writing, all prices are exclusive of applicable GST or other applicable sales tax, insurance charges and any other applicable taxes, duties or levies, all of which will be charged by the Seller and will be payable by the Buyer at the appropriate rate, in addition to the price of the Goods.
7.1 Any samples, drawings, advertising, specifications or other materials provided or contained in any brochure, promotional or other literature ("Specifications") are approximate only and, in keeping with its policy of continual development, the Seller reserves the right to alter such Specifications and to supply Goods to the Buyer reflecting such altered Specifications without prior notice to the Buyer, provided that such alterations do not materially affect the characteristics of the Goods.
Special Handling and Value Added Services
8.1 If the Buyer requires special handling for the Goods or requires the Seller to provide any value added services, the Buyer shall promptly notify the Seller and, if the Seller agrees to comply with such request (which, for the avoidance of doubt, it is not obliged to do), the special handling service or value added services shall be provided subject to additional terms and conditions, including a fee for the services, which shall be notified in writing by the Seller to the Buyer.
8.2 If the Buyer accepts the additional terms and conditions and the fee payable for the services, the fee shall be added to the price of the Goods (in the case of special handling requirements) or included in an invoice or debit note issued by the Seller to the Buyer (in the case of value added services).
Terms of Payment
9.1 Terms of payment shall be communicated in writing to the Buyer by the Seller on successful completion of a credit assessment. Such terms shall be subject to regular review and may be amended at any time at the discretion of the Seller by reasonable prior notice in writing to the Buyer. In the absence of formal written confirmation of the terms of payment by the Seller to the Buyer (if the Seller agrees to grant credit to the Buyer), the payment terms shall default to 30 days from the date of invoice.
9.2 If the Seller agrees to grant credit to the Buyer, the Buyer must bear any costs (such as electronic transfer fees) incurred by any of the Buyer and the Seller as a result of the payment method selected by the Buyer to make payments to the Seller.
9.3 The price of the Goods shall be due in full to the Seller in accordance with this clause 9 and the Buyer shall not be entitled to exercise any set-off, lien or any other similar right or claim.
Delivery of Goods
10.1 All times or dates given for delivery of the Goods are given in good faith but the Seller makes no warranty or guarantee on delivery times or dates. Non-delivery of the Goods by the scheduled delivery date shall not constitute a breach of this Agreement, however if the period of the delay exceeds 60 days from the scheduled delivery date the Buyer is entitled to cancel the Order.
10.2 Subject to clause 10.1, the Seller shall be entitled to delay or cancel delivery or to reduce the amount delivered if it is prevented from, or hindered in or delayed in manufacturing, obtaining or delivering the Goods by normal route or means of delivery through any circumstances beyond its reasonable control, including but not limited to strikes, lock-outs, accidents, war, pandemic, epidemic, fire, government declarations, a change in law, the actions of any third party, reduction in or unavailability of power at a manufacturing plant, breakdown of plant or machinery or shortage or unavailability of raw materials from normal sources of supply.
10.3 The Seller shall (by providing reasonable notice to the Buyer) have the right to make delivery by instalments of such quantities of the Goods and at such reasonable intervals as it may decide. Where the Seller exercises its right under this clause, each instalment shall constitute a separate Order and any failure or defect in delivery of any one or more instalments shall not entitle the Buyer to repudiate this Agreement as a whole nor to cancel any subsequent delivery of an instalment.
10.4 Clauses 10.1, 10.2 and 10.3 do not apply to the extent (if any) that the Seller and the Buyer have agreed in writing to the contrary.
10.5 If for any reason the Buyer is unable to accept delivery of the Goods at the time and date given for delivery of those Goods:
(a) (in accordance with clause 3.5) the Order for those Goods is non-cancellable;
(b) the Seller shall store and insure the Goods at the Buyer's risk and cost for up to 1 month; and
(c) for the avoidance of doubt, the Seller may store Goods under this clause 10.5 at its own storage facilities and may charge the Buyer for all costs it incurs in respect of any storage of the Goods (at its own storage facilities or otherwise) and associated insurance.
10.6 If the Buyer:
(a) fails to provide the Seller with appropriate facilities at the Buyer's premises to enable the Seller to make delivery of the Goods; or
(b) fails to provide the Seller with a slot in its delivery schedule to enable the Seller to make delivery of the Goods; or
(c) refuses to accept delivery of the Goods,
within one month of the scheduled due date for delivery as notified by the Seller to the Buyer, the Seller shall be permitted (without prejudice to its other rights) to treat such failure or refusal as a breach of this Agreement by the Buyer. Without limiting any other remedies that the Seller may have in relation to such a breach, the Seller may invoice the Buyer for the additional costs the Seller incurs as a result of such a breach.
10.7 Each delivery of the Goods to the Buyer will be accompanied by a packing list of the Goods included in the delivery. The Seller will send invoices for the Goods to the Buyer by electronic means agreed in writing between the Seller and the Buyer. The Buyer must make sure that the electronic means by which the Seller will send invoices to the Buyer is functional, operative and attended (at least during normal business hours). By way of example only, if invoices are to be sent by email, the Buyer must ensure that the email address to which the invoices are sent is regularly checked during business hours.
11.1 All Goods will be delivered free into store in Melbourne, Sydney, Brisbane, Adelaide, Perth, Hobart and Darwin provided the original Order exceeds AU$250 exclusive of applicable GST. Deliveries outside these cities will have freight charged from the city nearest the delivery address.
11.2 Deliveries where the original Order was less than the amount specified above will have a handling surcharge imposed in accordance with clause 3.3.
11.3 All Goods despatched by courier, air freight or any other special service (such as delivery of Goods on a Saturday) at the request of the Buyer shall be subject to a surcharge (as determined by the Seller in its discretion). In addition, the Seller reserves the right to pass on to the Buyer any supplementary charges incurred in arranging special delivery through its normal carriers at the Buyer's request. Details are available through the sales office of the Seller.
TERMINATION FOR CAUSE
(a) the Buyer breaches any of its obligations under this Agreement and the breach cannot, in the Seller's opinion, be remedied within 14 days of the breach occurring;
(b) the Buyer breaches any of its obligations under any other contract between the Buyer and the Seller or its Associates and, in the Seller's opinion, that breach cannot be remedied within 14 days of the breach occurring;
(c) a bankruptcy order is made against the Buyer, or negotiations are entered into for an arrangement or composition with the Buyer's creditors, or the Buyer takes the benefit of any statutory or legal provision for the relief of insolvent debtors, or the Buyer enters into liquidation (whether voluntary or compulsory), or the Buyer has a receiver, receiver and manager, administrator or administrative receiver appointed over its undertaking, or a resolution is passed or a petition is presented to any court for the winding-up of the Buyer, or the Buyer ceases or threatens to cease to trade, or the Buyer is unable to pay its debts as and when they fall due, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer, or the Buyer suffers any proceedings analogous to the foregoing in any jurisdiction;
(d) the Buyer suffers or allows any distress or execution, whether legal or equitable, to be levied on its property or its business or obtained against it;
(e) there is a Change of Control in relation to the Buyer; or
(f) the Seller is of the opinion that a serious reason for doubt has arisen as to the future or present solvency of the Buyer,
then all amounts owed by the Buyer to the Seller will become immediately due and payable and without limiting the Seller's legal rights arising from the Buyer's breach of this Agreement the Seller may do one or more of the following:
(g) terminate this Agreement and any agreement to supply under these Terms and Conditions of Supply:
(i) if as a result of an event in clause 12.1(a), by giving 7 days' written notice to the Buyer; or
(ii) in any other event, immediately by notice in writing to the Buyer;
(h) withhold supply and dispose of ordered goods held by the Seller;
(i) charge default interest (which the parties agree is a genuine pre-estimate of the loss that will be suffered by the Seller) at the rate of 2% per month on all overdue amounts, which shall accrue on a daily basis from the due date until payment of all outstanding moneys in full (including without limitation default interest), including without limitation before and after any court order or judgement;
(j) close the Buyer's credit account; and/or
(k) if the Buyer is operating on a credit account:
(A) institute proceedings for recovery of the outstanding balance and costs incurred (including without limitation any applicable GST associated with such costs, except to the extent the Seller is entitled to an input tax credit or similar); and/or
(B) terminate the credit facility (and the Seller shall not be liable to the Buyer for any loss or damage directly or indirectly resulting from any such action).
For the purposes of clauses 12.1(b) to (f) above, each reference to the Buyer shall be deemed to include the Buyer's Associates.
12.2 The Buyer may terminate this Agreement by giving 7 days' written notice to the Seller if the Seller materially breaches any of its obligations under this Agreement and the breach cannot be remedied within 14 days of the breach occurring. In the event of termination pursuant to this clause, then all amounts owed by the Buyer to the Seller will become immediately due and payable and the Seller may recover and resell any Goods in which title remains with the Seller.
TERMINATION FOR CONVENIENCE
13.1 Either party may terminate this Agreement at any time by giving 7 days' written notice to the other party.
CONSEQUENCES OF TERMINATION
14.1 In the event of termination of this Agreement by the Seller or the Buyer (in accordance with clause 12, clause 13 above or at common law), then (without prejudice to any other remedies the Seller might have):
(a) the Buyer's right to resell Goods in which title has not passed to it shall immediately terminate;
(b) any outstanding unpaid invoices rendered by the Seller or its Associates to the Buyer, whether under this Agreement or any other contract with the Buyer, shall become immediately payable by the Buyer;
(c) invoices in respect of Goods ordered and delivered prior to termination but for which an invoice has not been submitted shall be payable immediately upon submission of the invoice to the Buyer;
(d) the Seller shall be entitled to refuse to make delivery of any further consignment of any Goods agreed to be supplied, including without limitation cancelling any outstanding delivery or stopping any Goods in transit;
(e) at the discretion of the Seller, the Buyer shall either destroy the Promotional Materials and/or Approved Materials (where such materials bear, contain or reference the subject matter of any Intellectual Property Rights owned by or licensed to the Seller or any of its Associates) or return them to the Seller at the Buyer’s own cost;
(f) the Seller shall (without liability to the Buyer) be entitled to terminate any other contract between the Buyer and the Seller or the Seller's Associates; and/or
(g) the Seller shall be entitled to sell or otherwise dispose of to a third party any Goods which are the subject of any Order by the Buyer and which have not yet been delivered, which are recovered in accordance with clause 4.6 or which are removed in accordance with clause 4.7.
14.2 In the event that this Agreement, or any other contract between the Buyer and the Seller or the Seller's Associates, is terminated by the Seller or the Buyer under any of clause 12, clause 13 or at common law, the Buyer shall indemnify the Seller against all costs, losses, liabilities or expenses arising out of such termination.
14.3 Termination of this Agreement shall be without prejudice to any rights accrued in favour of either party prior to the date of such termination.
RETURN OF NON-DEFECTIVE GOODS
15.1 Subject to clauses 22.2 and 22.3, the Buyer is not entitled to return any non-defective Goods supplied in accordance with this Agreement, without the prior written authorisation of the Seller, which authorisation is given at the Seller’s sole and absolute discretion.
15.2 Unless otherwise agreed in writing by the Seller, if the Buyer wishes to return any non- defective Goods, it must notify the Seller in writing within 7 days of taking delivery of the non-defective Goods. If the Seller provides the Buyer with written authorisation to return the non-defective Goods, the Buyer must return the non-defective Goods to the warehouse nominated by the Seller as the most convenient place of return.
15.3 If the return of non-defective Goods is agreed by the Seller, the Buyer shall comply with the Seller’s returns policies and procedures as communicated to the Buyer from time to time. All returns authorised by the Seller must be made available for collection or returned in a re- saleable condition (including without limitation in original packaging and in good order) and accompanied by documentation showing the Buyer's name, address and account number, the Seller's invoice number, reasons for return and the returns authorisation reference number issued by the Seller. The Seller will not accept returns of unpackaged non-defective Goods.
15.4 Risk in the returned Goods does not pass back to the Seller until the Seller's designated carrier (or, on prior agreement with the Seller, the Buyer’s designated carrier) has delivered the duly authorised returned Goods to the Seller. The Seller reserves the right to apply a handling charge in respect of the returned Goods and will not pay the freight charges for the return of non-defective Goods unless the Seller has agreed in writing in advance and carriage is via the Seller's nominated carrier or a mail/rail service approved by the Seller (if it is impractical to use the Seller's nominated carrier).
15.5 Subject to clauses 22.2 and 22.3, the sole liability of the Seller in relation to the return of non-defective Goods shall be to credit the Buyer with:
(a) the price paid by the Buyer to the Seller for the non-defective Goods concerned; or
(b) if the Buyer has not paid the Seller for the non-defective Goods, the then-current list price of the item of the Goods.
DEFECTIVE GOODS AND SHORTAGES
16.1 Subject to clauses 22.2 and 22.3, unless otherwise agreed in writing by the Seller, all claims that any item of Goods is defective or for non-delivery or an alleged shortage of Goods must be notified in writing to the Seller, or if applicable, the Seller's claims team:
(a) within 7 days of delivery for claims of defective Goods or alleged shortages; or
(b) 7 days from the date of the invoice for Goods not received,
and, for the avoidance of doubt, after such periods, the Goods delivered shall be deemed to be in all respects in accordance with this Agreement.
16.2 Subject to clauses 22.2 and 22.3, prior authorisation must be obtained from the Seller prior to returning any Goods that are defective. All claims for Goods that are defective must be fully documented (including without limitation by providing the returns authorisation reference number issued by the Seller). The Seller reserves the right to inspect all Goods identified by the Buyer as defective. If the Seller requires the Goods to be inspected, acceptance of the Goods by the Seller's staff prior to inspection shall not constitute acceptance by the Seller that the Goods are defective or the grant of a credit by the Seller. For any item of the Goods which is found by the Seller to be defective, the Seller will authorise and arrange collection of that item of the Goods, or on prior agreement with the Seller, the Buyer shall destroy such item of the Goods in accordance with applicable laws, regulations and practices.
16.3 Subject to clauses 22.2 and 22.3, in the event of a valid claim for defects, shortages or non- delivery of the Goods notified in accordance with clause 16.1, the sole liability of the Seller shall be:
(a) in relation to shortages or non-delivery of the Goods:
(i) if the Buyer has paid for the Goods, to credit the Buyer with the price paid by the Buyer to the Seller for the item of Goods concerned; or
(ii) if the Buyer has not paid for the Goods, to credit the Buyer with the then- current list price of the item of the Goods; and
(b) in relation to defective Goods, as set out in clauses 22.2 and 22.3.
16.4 For the avoidance of doubt, the Buyer will not have a valid claim for shortage or non- delivery of Goods, where there has been a delay, cancellation or reduction in the quantity of Goods delivered by the Seller to the Buyer in accordance with this Agreement, including under clauses 3.1(b), 3.5, 6.1, 10.1 or 10.2 of this Agreement.
16.5 Except to the extent required under clauses 22.2 and 22.3, the Seller will not pay the freight charges for returns of defective Goods unless the Seller has agreed in writing in advance (which agreement shall not be unreasonably withheld or delayed) and carriage is via the Seller's nominated carrier or a mail/rail service approved by the Seller (if it is impractical to use the Seller's nominated carrier).
16.6 Where the Goods are delivered by instalments, any defect in any instalment shall not be a ground for cancellation of the remainder of the instalments.
17.1 Subject to clause 22.2, save as expressly provided in this clause 17 the Seller shall not be liable for:
(a) any delays in delivery, unless the delay exceeds 60 days from the scheduled delivery date;
(b) any minor variations in colour, texture, shade and/or general appearance of the Goods;
(c) any Consequential Loss of any kind whatsoever;
(d) any loss of production;
(e) the cost of substitute goods;
(f) any defect in the Goods arising out of the acts, omissions or negligence of the Buyer, its employees or agents; or
(g) any claims or actions of any kind whatsoever for damages, losses to persons and property which may be sustained in connection with the Promotional Materials and/or any Approved Materials.
17.2 Except in relation to the Non-Excludable Consumer Guarantees referred to in clause 22.2, and otherwise to the maximum extent permitted by law, the Seller excludes all conditions, warranties, guarantees, representations and other terms, whether express, implied, or applied by law or otherwise, that imply any liability or obligation on the Seller in relation to the Goods. Subject to clause 22.2, the Seller excludes all liability for any loss, damage or costs arising from the Goods or their supply, except to the extent that any loss, harm, damage, cost or expense was caused or contributed to by the Seller.
17.3 Subject to clause 22.2 and clause 22.3, and otherwise to the maximum extent permitted by law, the aggregate liability of the Seller, whether in contract or tort (including without limit negligence) or otherwise, to the Buyer for any loss or damage of whatsoever nature (except to the extent that any loss, harm, damage, cost or expense was caused or contributed to by the Seller), shall be limited to and in no circumstances shall exceed the price of the Goods to which liability relates.
17.4 Nothing shall have the effect of excluding or restricting the liability of the Seller for death or personal injury resulting from its negligence or for any fraudulent misrepresentation made by the Seller.
PRESENTATION AND RESALE OF THE GOODS
18.1 It is a condition of the supply of Goods by the Seller to the Buyer that the Buyer will not re- supply (whether by re-sale, re-distribution or transhipment) those Goods to any customer who is not an end user (and the term end user excludes any person who intends to re-sell the Goods) located within Australia. The Seller may in its sole discretion refuse to supply Goods to the Buyer if the Buyer fails to comply with this condition.
18.2 Where the Buyer sells the Goods through retail premises, the Buyer undertakes at all times during the Term to:
(a) store and display the Goods in clean conditions, in an attractive manner and by reference to sports category or lifestyle category or TaylorMade ‘concept’ (as appropriate) and generally so as to enable customers of the Buyer to compare and contrast the Goods with other appropriate products;
(b) apply clear product descriptions to the Goods; and
(c) ensure that its store(s) selling the Goods is/are open during normal business hours and is/are at all times staffed by a reasonable number of personnel who are adequately trained in order to be able to inform consumers about the Goods, their functional features, advantages and benefits. To the extent permitted by applicable law, the Supplier agrees to supply Goods to the Buyer under this Agreement on the following conditions:
(i) the Goods may only be resupplied by the Buyer to consumers at retail level and may not be resupplied to persons acting as wholesalers or resellers or to any other trader that is known or suspected to be purchasing for resale; and
(ii) subject to clause 18.5, the Goods may only be resupplied by the Buyer to consumers or displayed at the individual retail store or stores of the Buyer, the address or addresses of which are specified to the Seller at the time of ordering by the Buyer, and they may not be resupplied, displayed for resale, or in any other way used at any other retail store or stores of the Buyer without the prior written consent of the Seller, which consent may be withheld at the sole discretion of the Seller.
18.3 Notwithstanding any right (legal or otherwise) conferred on the Buyer, the Buyer must, and must ensure that its Associates, use the Promotional Materials and any Approved Materials exclusively to market, promote, advertise, display or sell the Goods. In respect of all Promotional Materials and Approved Materials, the Buyer agrees:
(a) to at all times comply with the Terms and Conditions for Release of TaylorMade Imagery and any other instructions given to it by the Seller; and
(b) not remove, alter or cover any mark or logo of the Seller or its Associates on, display the logo of any third party on or add to or remove any material part or parts of the Promotional Materials or Approved Materials.
18.4 Subject to clause 19 below, the Buyer shall follow the instructions in respect of the Goods, the Promotional Materials and the Approved Materials given to it by the Seller (including, but not limited to, compliance with the official launch dates of such Goods and the related embargo terms).
18.5 As a condition of the supply of Goods by the Seller to the Buyer under this Agreement, the Buyer agrees that the Goods may not be advertised, promoted or offered for resale or otherwise resupplied by the Buyer via or on an internet site (or equivalent) or by mail order, telephone, radio, television, email or any other electronic media without the prior written approval of the Seller (in its absolute discretion). If the Seller grants such approval, the Goods must not be offered for sale or resupplied by the Buyer via such medium at a wholesale level or to any other trader that is known or suspected to be purchasing for resale. Where the Buyer resupplies Goods via or on an internet site (or equivalent), the Buyer must and must ensure that its Associates comply with the Internet Sales and Digital Marketing Policy. For the purposes of the Internet Sales and Digital Marketing Policy, a reference to a 'TaylorMade retailer' is a reference to the Buyer and any Associate of the Buyer (as applicable). Where the Buyer sells Goods both through retail premises and via or on an internet site, when submitting an Order to the Seller the Buyer must state on the Order whether the Goods are for sale through the Buyer's retail premises or on or via the Buyer's internet site.
18.6 The Buyer shall ensure that, wherever the Goods are offered for sale or sold (whether through a retail premises, internet site or equivalent or otherwise), the Buyer shall:
(a) adhere to, and ensure that all of its applicable computer systems, policies and processes adhere to, the Payment Card Industry Data Security Standards (or equivalent) in relation to transactions involving payment by payment card (including without limitation credit and debit cards and other merchant services payment methods offered by the Buyer) and associated data; and
(b) comply with any card scheme rules applicable to such payment card transactions.
18.7 The Buyer shall submit to the Seller for its prior written approval (to be given or withheld in the Seller’s absolute discretion) samples of any proposed Approved Materials. Following receipt of the same by the Seller, the Buyer shall thereafter comply with any amendments which the Seller subsequently requests, and the Buyer shall in all cases re-submit the samples to the Seller for its final written approval (and not use or display any Approved Materials until approved by the Seller in writing).
18.8 All Promotional Materials at all times remain the property of the Seller and must be delivered to the Seller (at the Buyer's cost) within 7 days after the Buyer receives a written notice from the Seller requiring their delivery.
RECOMMENDED RETAIL PRICES
19.1 The Seller may publish suggested or recommended retail prices for its products (including without limitation the Goods). Any recommended retail prices provided by the Seller are recommended prices only and there is no obligation to comply with the recommendation. The Buyer is entirely free to resell the Goods at whatever price it considers appropriate.
20.1 This Agreement shall be effective from the earlier of the date of this Agreement and the date the Buyer places an Order of Goods and continues until terminated in accordance with the terms of this Agreement or at common law (“Term”).
APPLICATION OF TERMS AND CONDITIONS OF SUPPLY
21.1 The Buyer acknowledges and agrees that it shall be deemed to have accepted the terms and conditions of this Agreement by virtue of any submission of an Order for Goods from the Buyer irrespective of whether this Agreement is signed or returned to the Buyer by the Seller.
21.2 This Agreement shall form part of all Orders and other contracts for the sale or supply of the Goods by the Seller to the Buyer. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and shall apply to the exclusion of all other terms and conditions contained or referred to in any purchase order, enquiry, letter, form of contract, specification, computer program, software, portal, interface, electronic communication or other document or communication put forward by the Buyer or the Buyer's Associates (unless otherwise expressly agreed in writing signed on behalf of the Seller).
21.3 The Buyer confirms that in entering into the Agreement it has not relied upon any representation, warranty, statement, undertaking or matter not set out in this Agreement and acknowledges that, except in relation to fraudulent misrepresentation, the Seller shall not have any liability for pre-contractual statements, representations, warranties, undertakings or similar.
22.1 The Buyer acknowledges, warrants and agrees that all Goods supplied by the Seller or to be obtained by the Buyer will be acquired for the Buyer's business purposes including for the purpose of resupply to a consumer.
22.2 There may be laws which impose or imply non-excludable conditions, warranties or consumer guarantees or impose other non-excludable obligations on the Seller (including without limitation Australian consumer laws). Nothing in this Agreement operates to exclude, restrict or modify the application of any provision, condition or warranty, the exercise of any right or remedy, or the imposition of any liability, implied or conferred under the Australian Consumer Law or any other statute, where to do so would contravene that statute, or cause any part of this Agreement to be void (collectively "Non-Excludable Consumer Guarantees").
22.3 Except in relation to Non-Excludable Consumer Guarantees, and otherwise subject to any law or any term implied or imposed by law that cannot be excluded, where the Buyer supplies the Goods to any other person in the course of trade, the Buyer must not give or make any warranty, guarantee, undertaking, assertion or representation in relation to the Goods without the Seller's prior written approval.
22.4 The Buyer by this Agreement indemnifies and will keep indemnified the Seller against all costs, losses, liabilities or expenses arising out of any warranty, undertaking, assertion or representation by the Buyer or its employees or agents in relation to the Goods contrary to clause 22.3.
PERSONAL PROPERTY SECURITIES
23.1 The Buyer acknowledges and agrees:
(a) that by virtue of clause 4.1, the Seller has or will have security interests in the Goods (including purchase money security interests) and the proceeds relating to the Goods for the purposes of the PPS Act;
(b) that the Seller may do anything reasonably necessary, including without limitation registering one or more financing statements or financing change statements on the personal property securities register established under the PPS Act, in order to perfect the security interest and comply with the requirements of the PPS Law; and
(c) to do all things reasonably necessary (including providing information and signing any documents) to assist the Seller to take such steps, including providing the Seller on request with a certified copy of each source document necessary for the purposes of the PPS Law to make a registration.
23.2 The parties agree that, pursuant to section 115 of the PPS Act, the provisions of the PPS Act referred to in section 115(1)(c), (d), (e), (f), (h), (k), (l), (m), (n), (q), and (r) of the PPS Act do not apply in relation to the security interest created under clause 4.1 to the extent, if any, mentioned in that section.
23.3 The parties agree that, subject to section 275(7) of the PPS Act, neither of them will disclose information of the kind mentioned in section 275(1) of the PPS Act pursuant to section 275(4) of the PPS Act.
23.4 The Buyer irrevocably and unconditionally waives its right to receive notice of any verification statement in respect of any financing statement or financing change statement relating to this Agreement.
23.5 The Buyer must not, without the prior consent in writing of the Seller, enter into any arrangement with a third party to give that party control over the Goods or proceeds relating to the Goods.
23.6 The Buyer agrees that the Seller has an absolute discretion to apply any money received as a result of supplying the Goods or which represent the proceeds of enforcement of any security interest it holds, whether created under clause 4.1 or otherwise, in reduction of any part or parts of the moneys secured to the Seller by any such security interests, whether and on whatever account it became secured, despite any principle or presumption of law to the contrary or any direction given at the time of receipt and without the need to communicate its election to any person.
23.7 The Buyer shall immediately notify the Seller:
(a) in writing of any change in the Buyer's name, ACN, ABN or ARBN; and
(b) of any other information which is required to be included in a financing statement or financing change statement under the PPS Law.
23.8 For the purposes of the PPS Act, the Buyer warrants that the Goods are to be obtained for the purposes of being used as inventory in the Buyer's business.
23.9 The Seller will pay all costs, expenses and other charges incurred, expended or payable by the Seller in relation to the filing of a financing statement or financing change statement.
23.10 The Buyer will pay all costs, expenses and other charges incurred, expended or payable by the Seller in relation to enforcing or protecting any security interest created under this Agreement.
23.11 The Buyer acknowledges that at any time following:
(a) the insolvency of the Buyer; or
(b) failure by the Buyer to make payment for the supply of the Goods in accordance with the terms of this Agreement,
the Seller may:
(a) seize or obtain control of any Goods;
(b) dispose or any Goods in such a manner and on such terms and conditions as the Seller thinks desirable; and
(c) otherwise do anything that the Buyer could do in relation to the Goods.
23.12 The Buyer will not allow a security interest to be created or registered over the Goods in priority to the security interest held by the Seller.
23.13 For the purposes of this clause 23:
(a) "PPS Act" means the Personal Property Securities Act 2009 (Cth);
(b) "PPS Law" means the PPS Act and any regulation made at any time under the PPS Act, including the Personal Property Securities Regulations 2010 (Cth)
(c) "proceeds", "control", "security interest", ”verification statement", "financing statement", and "financing change statement" each have the meaning given to those terms in the PPS Law.
24.1 The Buyer shall, and shall ensure that its Associates shall, comply with the Brand Protection Policy.
24.2 Each of the provisions and separable parts of this Agreement shall be construed as independent and standing on its own. Should any provision or sub-provision of this Agreement be or become partially or totally invalid or for any reason unenforceable such part shall be deemed deleted and none of the other provisions or parts thereof shall be invalidated or affected in any way and shall remain in full force and effect. Without prejudice to the foregoing, the parties shall attempt to substitute any such invalid or unenforceable provision or sub-provision with a valid or enforceable provision, which achieves to the greatest extent possible, the commercial expectations of the parties as at the commencement date of this Agreement.
24.3 The Buyer acknowledges that all Intellectual Property Rights in:
(a) the Goods, any trade marks or copyright materials which the Goods bear, contain or reference and any invention or design used to manufacture the Goods;
(b) any Promotional Materials, any trade marks or copyright materials which the Promotional Materials bear, contain or reference and any invention or design used to manufacture the Promotional Materials; and
(c) any Approved Materials (to the extent that such materials bear, contain or reference any subject matter of Intellectual Property Rights owned by or licensed to the Seller or its Associates),
do and shall (as between the parties) continue to belong to the Seller. The Buyer must not use any of those Intellectual Property Rights on or in relation to any goods other than the Goods (and then only as approved by the Seller) and, as a condition of the supply of Goods by the Seller to the Buyer under this Agreement, shall not acquire and/or resupply goods directly or indirectly from a competitor of the Seller bearing any name, word, trade mark, logo, sign or device that is the same as, substantially identical with or misleadingly, deceptively or confusingly similar to any TaylorMade Trade Marks. The Buyer agrees that it shall not in any way question, dispute or infringe those Intellectual Property Rights and that it shall notify the Seller of any infringement of those Intellectual Property Rights immediately upon it coming to the Buyer's notice. The Seller (as between the parties) has the sole right to determine what action, if any, should be taken in respect of any infringement and the Buyer agrees that it shall cooperate in the conduct of any action by any of the Seller and the Seller's Associates.
24.4 A failure by the Seller to enforce any right conferred upon it by this Agreement or a breach of this Agreement shall not be deemed to be a waiver of such right or operate so as to bar the exercise or enforcement thereof at any subsequent time or times.
24.5 The Seller may assign or transfer the whole or part of this Agreement to any person, firm or company. The Buyer may not assign or transfer or purport to assign or transfer any obligation or benefit of this Agreement to any person whatsoever.
24.6 This Agreement shall not confer any benefit upon any person who is not a party to the Agreement, provided that any of the Seller’s Associates shall be able to enforce the terms of this Agreement.
24.7 A notice, demand, consent, approval or communication under this Agreement ("Notice") must be:
(a) in writing, in English and signed by a person duly authorised by the sender;
(b) hand delivered or sent by pre-paid recorded post or email to the recipient’s registered office address or to such other address as advised by the recipient from time to time.
A notice given in accordance with this clause 24.7 takes effect when taken to be received (or at a later time specified in it), and is taken to be received:
(c) if hand delivered, on delivery;
(d) if sent by prepaid post, 48 hours after despatch (or the seventh Business Day after the date of posting if posted to or from a place outside Australia); and
(e) if sent by email, when sent by the sender unless the sender receives a delivery failure notification indicating that the email has not been delivered to the addressee,
but if the delivery or receipt is not on a Business Day or is after 5.00pm on a Business Day, the Notice is taken to be received at 9.00am on the next Business Day.
24.8 Unless otherwise notified by the Seller in writing or required by any applicable law, the Buyer shall keep confidential at all times and take all necessary steps to preserve the confidentiality of any and all information, data and other items (“Information") received from the Seller or the Seller's Associates, including, without limitation, the provisions of this Agreement and any of the operations, dealings, Intellectual Property Rights and other affairs of the Seller or any of the Seller's Associates. This obligation shall not however apply to Information which is in or, without breach of this obligation, comes into the public domain or which is already in or comes into the Buyer’s possession without any obligation of confidence (and without a third party breaching any obligation to the Seller or any of the Seller's Associates).
24.9 The Buyer shall ensure that all information and data provided by the Buyer to the Seller in connection with this Agreement is collected, processed and otherwise transferred in accordance with all applicable laws, practices and codes of practice. Without prejudice to the foregoing, the Buyer further warrants that it has obtained all relevant consents, approvals and permissions for the Seller to use such information and data for the purposes contemplated by this Agreement or otherwise agreed between the parties (each acting reasonably).
24.10 Clerical errors by the Seller are subject to correction without notification.
24.11 In the event of any conflict between the provisions of these Terms and Conditions of Supply and any other terms of this Agreement, the provisions of these Terms and Conditions of Supply prevail.
24.12 Clauses 3, 4, 5, 7, 9, 13 to 18 (inclusive), 21, 22, 23 and this clause 24 survive expiry of this Agreement or termination of this Agreement for whatever reason.
24.13 This Agreement and any other contract between the Seller and the Buyer is deemed in all respects as being performed and construed according to the laws of Australia and the parties submit to the exclusive jurisdiction of the courts of Australia.
INTERNET SALES AND DIGITAL MARKETING POLICY
Taylor Made Golf Australia Pty Ltd (“TaylorMade”) strives to create the “The Best Performance Golf Brands in the World” through meaningful innovations and technologies combined with a respect for the traditions of the game. Consistent with this mission, TaylorMade prides itself on the high quality and prestigious image of its products and brands in the golf industry.
The advertising and sale of golf products over the Internet continues to evolve. TaylorMade has, and will continue to monitor and evaluate Internet sales acceptance, new platforms, and capabilities in order to maximise brand and customer value. To maintain and further the TaylorMade quality image, and to better promote this image in the distribution of its products, TaylorMade has set forth the following policy.
TaylorMade's Internet Sales Policy (this “Policy”) is designed to enhance the image of the TaylorMade brand and better enable TaylorMade to compete against other golf equipment and apparel brands. TaylorMade has determined that the best way to accomplish these objectives is to maximise the integrity of all TaylorMade intellectual property on the Internet, to maximise consumer access to qualified personal service, and to eliminate or minimise “free riding” on point of purchase services offered by other non-Internet-based TaylorMade Accounts. This Policy is in addition to and supplements any other agreements with TaylorMade.
Each TaylorMade retailer is free to decide on its own in what channels to offer or sell TaylorMade products, and there is no obligation on any TaylorMade retailer to supply via internet channels.
However, if a TaylorMade retailer wishes to supply TaylorMade products obtained from TaylorMade to consumers via internet channels, it must comply with this Policy. It is a condition of TaylorMade's supply of TaylorMade products to a retailer that the retailer will not re-supply those products to consumers via internet channels except to the extent (and as) set out in this Policy. (In this Policy, a retailer's re-supply or on-sale of the TaylorMade products is referred to, for convenience, as supply or sell.) Failure to comply with the terms of this Policy may result in a
non-compliant retailer having their authorisation to supply to consumers via internet channels withdrawn by TaylorMade.
Each TaylorMade retailer is free to sell or advertise TaylorMade products at whatever prices they wish. Nothing in this Policy should be construed as a specification by TaylorMade, or an agreement between TaylorMade and any retailer, as to the prices at which the retailer must resell or advertise TaylorMade products. TaylorMade does not seek and will not accept any agreement or assurance of compliance from any retailer regarding the pricing at which a retailer offers or supplies TaylorMade products.
1. Authorised Internet Retailer.
To sell TaylorMade products to consumers through the Internet, a retailer must be authorised by TaylorMade as an Authorised Internet Retailer in a written communication from TaylorMade to the account.
Any TaylorMade account (“Account”) may indicate in writing, its desire, willingness, and capabilities to serve as a TaylorMade Authorised Internet Retailer and TaylorMade will make a unilateral determination as to the retailers it authorises to serve as Authorised Internet Retailers (“Authorised Internet Retailer”).
Only Authorised Internet Retailers are authorised to sell or supply TaylorMade products to consumers through the internet, using an internet website approved in advance by TaylorMade.
2. Qualitative Criteria for Internet Sales.
An Authorised Internet Retailer wishing to sell TaylorMade Current Hard Goods (namely, TaylorMade products listed on TaylorMade's current price list) online via one or more websites must meet and comply with the following qualitative requirements.
2.1 Requirement for bricks-and-mortar retail outlet.
i. To obtain authorization to supply TaylorMade products to consumers via the Internet, an Authorised Internet Retailer must operate at least one authorised “bricks-and- mortar” retail outlet. It must have operated its authorised bricks-and-mortar retail outlet(s) for an amount of time sufficient to allows TaylorMade to objectively assess compliance with the qualitative criteria set forth in this section, which will typically be six months.
ii. To maintain authorization to supply TaylorMade products to consumers via the Internet, an Authorised Internet Retailer must continue to operate at least one authorised bricks-and-mortar retail outlet to ensure that the consumer can visit and physically view and handle the TaylorMade Current Hard Goods. If an Authorised Internet Retailer ceases to operates any authorised bricks-and-mortar retail outlet, the authorisation to supply TaylorMade products to consumers via the Internet will automatically be deemed to be revoked or suspended, as applicable.
2.2 Identification of bricks-and-mortar retail outlet.
An Authorised Internet Retailer’s website must identify where the bricks-and-mortar retail outlet is located to allow the consumer to visit and physically view and handle the TaylorMade Current Hard Goods.
2.3 Trading Name.
Where an Authorised Internet Retailer uses a different trading name for its internet site, it must identify on the site the contact details of the company or organisation operating the site to distinguish itself from the website operator and enable its end user customers to contact it.
2.4 Product Availability.
An Authorised Internet Retailer must stock an adequate number of and variety of TaylorMade Products to reasonably meet consumer demand and must be able to deliver Products to the consumer within a maximum of five (5) working days of receipt of an order from a consumer.
With respect to the consumer’s order, an Authorised Internet Retailer shall provide to the consumer:
i. An overview of the shipping costs charged to the consumer, based on the method of shipment and the value of the respective order(s). If duties and taxes are charged, they have to be listed separately. The same applies to handling fees.
ii. An order confirmation number with the submission of the consumer’s complete order. This confirmation number shall allow the consumer to track the order through the Authorised Internet Retailer’s customer service department.
ii. Information regarding the expected arrival of any back-ordered items that are not in stock and information regarding the availability of such shipment within 24 hours of the order placement by the consumer.
The consumer must have the option to cancel the order upon notification that the item(s) are on back-order and not in stock (in addition to any other rights of the consumer to cancel in accordance with the law, including under the Australian Consumer Law). For the avoidance of doubt, the retailer is not obliged to offer the customer an option to cancel the order of a custom- made product if the item is in stock and the order has been accepted, subject to any rights of the consumer to cancel in accordance with the law, including under the Australian Consumer Law.
After the order has been shipped to the consumer, an email should be sent to the consumer announcing shipping date, shipping address, carrier and expected delivery time.
The Authorised Internet Retailer’s return policy must be stated in writing within the website(s) and must comply with the Australian Consumer Law.
2.5 Online custom fitting options.
Any online platform used by an Authorised Internet Retailer to –supply TaylorMade Current Hard Goods to consumers via the internet, whether its own website or a third party marketplace (where applicable and authorised—see below), must promote custom fitting options and offer custom fitting functionality to enable consumers to choose the product that is best suited for their requirements.
i. Custom Fitting Services. In order to promote custom fitting, the website should clearly advertise the availability of custom fitting services. Furthermore, the website should require the consumer to confirm that he/she does not wish to use the custom fitting service before finalising the order.
ii. Website Functionality. The functionality of the website(s) must include at least one or more of the following:
(a) Drop-down boxes for each possible specification: Each TaylorMade Current Hard Good available for sale to consumers online by the Authorised Internet Retailer must include the full range of options for every possible specification relevant to the particular characteristics of that product. For example, for a fairway wood this would include: (1) left or right hand; (2) loft; (3) shaft type; and (4) flex;
(b) Retailer customer service number: a dedicated customer service telephone number promoted under the “Add to cart” button to enable consumers to discuss their specifications and place orders via the telephone; and/or
(c) Live chat: a “live chat” functionality (staffed at least during normal business hours) enabling consumers to discuss their options and specifications (with custom fit specialists) prior to purchase.
The following criteria in paragraphs 2.70 and 2.8 apply to website(s) owned and operated by Authorised Internet Retailers. Where an Authorised Internet Retailer is authorised to supply TaylorMade products to consumers through a third party online marketplace, the provisions of paragraph 2.9 will also apply.
2.7 Presentation and layout of Authorised Internet Retailer website(s).
The presentation and layout of the website(s) must maintain the high quality and premium image of the TaylorMade Trademarks and TaylorMade branded products. Under no circumstances should it devalue the TaylorMade Trademarks or Products, or lead to the risk of confusion in the minds of consumers. In particular, the website(s) must meet the following criteria:
i. Website appearance. Only the current logos and trademarks of TaylorMade, as provided by TaylorMade, may be used by an Authorised Internet Retailer on Authorised Internet Retailer’s website(s) and in no event should the value of TaylorMade Trademarks be undermined in the eyes of the consumer or any other similar marks be used that would confuse or mislead the consumer;
ii. Pop-ups. There must not be any pop-ups, fly-ins, or persistent banners on web pages on the Authorised Internet Retailer’s website(s) on which the TaylorMade products appear.
iii. Contact for Professional Advice. A contact telephone number for professional advice on the TaylorMade Products should be visible on a navigation bar on every web page on which the TaylorMade Products appear on the Authorised Internet Retailer’s website(s).
iv. Express Warranties. On any web page on which TaylorMade Current Hard Goods appear, a clear statement that, or a link to a page stating that, TaylorMade operates a warranty policy through its Retailers, and that for each sale the contract is between the consumer and the Retailer, and that TaylorMade warranty service can only be obtained by returning the product to the Retailer from whom it was purchased. The Authorised Internet Retailer should also prominently advise consumers of their rights and remedies under the consumer guarantees regime under the Australian Consumer Law, that the TaylorMade warranty is in addition to and does not replace those rights and remedies, and that under the consumer guarantees regime a consumer can seek a remedy from either the retailer or TaylorMade.
v. Comparison of Products. An Authorised Internet Retailer’s website(s) should provide consumers with the ability to compare TaylorMade Current Hard Goods’s performance with other golf equipment products and this comparison should involve other brands with a similar high quality reputation, such as Callaway Golf, Titleist or Ping. Any comparisons should be accurate, current and not misleading.
vi. Description of Products. Once the consumer has selected one of the TaylorMade Current Hard Goods to view or to purchase, a web page describing the facts and benefits (as such page is provided by TaylorMade) of such item needs to be shown prior to the consumer purchasing the product.
2.8 Technical standards for Authorised Internet Retailer’s website(s).
An Authorised Internet Retailer’s website(s) on which TaylorMade products appear must comply with the following technical standards:
i. Website Performance. The Authorised Internet Retailer's website(s) should have the ability to process on a secure web page, in real time, live orders against online confirmation of the allocation of stock to the order prior to completion of the check-out stage of the transaction, and without the need for further contact with the consumer; and the website should load in ten seconds or less on a current industry standard browser on an ISDN connection. If the website contains larger files, the longer loading time should be indicated (e.g. by a loading bar).
ii. Website navigation. The website(s) should have straightforward navigation and search capabilities. Upon TaylorMade’s request, the Authorised Internet Retailer must submit a written “content tree” to TaylorMade that illustrates the website layout and navigation/search “flow.”
ii. Website availability and security. The website(s) should:
(a) have functional availability of 99.5% (or industry standard, whichever is higher);
(b) be hosted on secured servers; and
(c) ensure that payment transactions are run on industry standard encryption technology complying with all applicable laws and regulations.
2.9 Data Security.
The Authorised Internet Retailer's website(s) shall have clearly published privacy statements/policies that are compliant with applicable laws including the Australian Privacy Act 1988 (Cth) ("Privacy Act") and in accordance with best industry practices. The Authorised Internet Retailer must implement and maintain appropriate technical and organisational measures to protect the Personal Information that it obtains in selling the TaylorMade Current Hard Goods ("Customer Data"). Upon TaylorMade’s request, an Authorised Internet Retailer shall submit to TaylorMade a complete description of the website’s security and privacy policies and features.
2.10 Use of Personal Information.
2.11 Data Breaches
i. Definitions. For the purposes of paragraph 2.12, ("Data Breach") has the meaning given in the applicable Privacy Act and includes any unauthorised access to or disclosure or modification of, any misuse or loss of, any interference with, any event that causes denial of access to, or any accidental or unlawful destruction of, any personal information as that term is defined in the relevant Privacy Act ("Personal Information").
ii. Data Breaches. The Authorised Internet Retailer must promptly notify TaylorMade if a Data Breach occurs, or it has reason to believe that a Data Breach may have occurred, in relation to the Customer Data.
ii. Suspicion of a breach. If the Authorised Internet Retailer suspects, or has reasonable grounds to believe, that a Data Breach has occurred, the Authorised Internet Retailer must:
(a) promptly conduct an assessment of the Data Breach and disclose to TaylorMade all information relevant to the actual or suspected Data Breach;
(b) take all reasonable steps to:
a. contain and remedy the Data Breach;
b. mitigate against the adverse effect and harm arising from the Data Breach; and
c. prevent a similar Data Breach in the future; and
(c) not disclose to any third party (including the Office of the Australian Information Commissioner or any other regulator) the existence or circumstances surrounding any Data Breach without the prior written approval of TaylorMade (not to be unreasonably withheld).
2.12 Customer service requirements.
i. An Authorised Internet Retailer must, in supplying TaylorMade products to consumers via the internet:
(a) be able to service consumers 24 hours a day, 7 days a week via the Internet;
(b) have at least one full-time website administrator; and
(c) have at least one full-time customer service representative dedicated exclusively to servicing the website golf equipment sales and who is trained in golf equipment and knowledgeable about TaylorMade Current Hard Goods in order to provide the consumer services detailed below in a professional way at least during normal business hours.
ii. An Authorised Internet Retailer's customer service must be available to respond to questions from consumers seeking to purchase TaylorMade products from the retailer's website(s) regarding product information, order tracking, returns and refunds. Customer service must be available via at least telephone call and email and the relevant contact details must be published prominently on the website. This customer service must be available between at least 09:00-18:00 each working day and offer the following minimum service levels:
(a) Telephone calls responded to within 30 seconds;
(b) Live chat conversations responded to within 30 seconds;
(c) Inbound emails responded to within 24 hours; and
(d) Enquiries resolved within 48 hours.
3 Ability to re-supply TaylorMade products to consumers via websites of third party marketplaces.
i. An Authorised Internet Retailer may apply to TaylorMade for authorization to supply TaylorMade Current Hard Goods to consumers via the Australian websites of third party marketplaces, which appear on the below pre-approved list:
(a) Amazon; and
ii. An Authorised Internet Retailer may not supply (and may not permit any employee, on behalf of the Authorised Internet Retailer, to supply) TaylorMade Current Hard Goods to consumers via any other third party online marketplace (such as Facebook Marketplace, Social Network Buy, Swap and Sell groups, and online golf forum marketplaces) , or through a third party fulfilment service (including Amazon's fulfilment service,).
iii. The Authorised Internet Retailer may make a written request to TaylorMade for further third party marketplaces to be added to the above approved list, which TaylorMade shall consider and approve or deny at its own discretion.
iv. An Authorised Internet Retailer may not supply TaylorMade products to consumers through the Australian websites of third party marketplaces by way of auction (only through use of the “Buy it now” button).
v. Any Authorised Internet Retailer that chooses to supply (including offering for sale) any TaylorMade product to consumers on the Australian website of eBay must:
(a) First register as an eBay seller with TaylorMade by completing the eBay registration form available on www.TaylorMadeagdirect.com and submitting the completed form to the email address listed on the registration form; and
(b) Maintain seller contact information with eBay that is visible to consumers and that matches the Account’s business name, primary business address and phone number that is on file with TaylorMade.
vi. Any Authorised Internet Retailer that chooses to supply (including offering for sale) any TaylorMade product on the Australian website of Amazon must:
(a) First register as an Amazon seller with TaylorMade by completing the Amazon registration form available on www.TaylorMadeagdirect.com and submitting the completed form to the fax or email address listed on the registration form; and
(b) Maintain seller contact information with Amazon that is visible to consumers and that matches the Account's business name, primary business address and phone number that is on file with TaylorMade.
vii. Only one eBay seller ID and Amazon seller name per Authorised Internet Retailer Account.
viii. Authorised Internet Retailers are permitted to use TaylorMade product stock images on the Australian websites of eBay and Amazon in conjunction with sales that comply with this Policy. Authorised Internet Retailers may not use an Amazon seller name or eBay user ID containing the words “TaylorMade,” “Ashworth,” or combinations or derivatives thereof.
ix. Authorised Internet Retailers are permitted to supply TaylorMade products to consumers only through the Australian websites of Amazon and eBay, and not to consumers through
any non-Australian URL, for example, www.amazon.co.uk, www.ebay.com, or www.ebay.co.uk.
x. Authorised Internet Retailers must not, in supplying TaylorMade products to consumers via the Australian websites of Amazon and eBay, advertise new product as 'used' or otherwise misrepresent the condition, past use or history of a TaylorMade product.
4. Ownership of Website(s) by Authorised Internet Retailer.
With the exception of Amazon and eBay.com, if applicable, an Authorised Internet Retailer supplying TaylorMade products to consumers via internet channels must have a bona-fide equity ownership interest in any website OR e-business on which the Authorised Internet Retailer supplies new TaylorMade products.
5. No re-distribution.
It is a condition of the supply of TaylorMade products to an Authorised Internet Retailer that the Authorised Internet Retailer must not re-supply (whether by re-sale, re-distribution or transhipment) TaylorMade products via internet channels to any person who is not an end user (and the term end user excludes a person who intends to re-sell the products) located within Australia. TaylorMade may in its sole discretion refuse to supply TaylorMade products to the Authorised Internet Retailer if the Authorised Internet Retailer fails to comply with this condition.
6. Portrayal of TaylorMade Quality and Premium Brand Image.
All Authorised Internet Retailers who supply TaylorMade products to consumers via the Internet must uphold and support the continuing portrayal of the TaylorMade quality and premium brand image as outlined in TaylorMade's Business Policy, guarantee the authenticity of the products offered, and abide by the other requirements of the TaylorMade Business Policy at all times.
7. Type and number of TaylorMade products that can be supplied
Because the Internet is an evolving concept, TaylorMade may, in its sole discretion, limit the extent to which the Authorised Internet Retailers can supply TaylorMade products to consumers via the Internet with respect to the number and range of TaylorMade products that Authorised Internet Retailers can supply . Each Authorised Internet Retailer acknowledges that TaylorMade may do so at any time, with thirty (30) days’ notice, and on terms and conditions satisfactory to TaylorMade.
8. Retailers to determine Price.
For the avoidance of doubt, each Account and Authorised Internet Retailer has the sole and complete discretion to determine the prices at which it will advertise and sell TaylorMade products to consumers.
9. Account Selection.
TaylorMade appoints Accounts, where deemed necessary by TaylorMade for the effective distribution of its products. Accordingly, it reserves the right to unilaterally appoint, terminate and/or limit the numbers, locations, and terms and conditions of sale to its Accounts. This principle is equally applicable to the appointment and termination of Accounts as Authorised Internet Retailers. Authorised Internet Retailers may only be approved by a TaylorMade Australia Sales Manager or above, and only in writing. Authorised Internet Retailers may only supply TaylorMade products under the trade name and at the website location approved in advance by TaylorMade. Such approval must be in writing and may be withdrawn at any time in TaylorMade’s sole discretion.
Any new or proposed trade name or website name is subject to individual, written pre-approval as a new account, and TaylorMade products shall not be supplied by an Authorised Internet Retailer to consumers from any such additional name or website without written approval from TaylorMade. In the event of a change of name or ownership of an account previously approved by TaylorMade, the account shall be treated as a new account. Approval, or lack thereof, shall be within the sole discretion of TaylorMade. TaylorMade retains the discretion to set criteria for account selection at its sole discretion, as the Internet evolves.
Authorised Internet Retailers may supply TaylorMade products via internet channels to legitimate consumers (end-users) outside Australia, as applicable, who shop on the Authorised Internet Retailer's approved website(s), but are not authorised to supply TaylorMade products to consumers using a non-Australian, as applicable, top-level domain of the approved website.
If an Authorised Internet Retailer supplies TaylorMade products via internet channels to consumers outside Australia, as applicable, TaylorMade may require the Authorised Internet Retailer to provide summary reports to TaylorMade that list the dollar volume and product SKUs sold and shipped on a per country basis.
10. Search Term Bidding.
Authorised Internet Retailers may not bid on internet search engine search terms containing the words “TaylorMade,” “Ashworth,” or any TaylorMade trademark, without the prior written consent of a TaylorMade Australia Sales Manager or above.
11. Website Upgrade Reapproval.
It shall be the responsibility of the Authorised Internet Retailer to utilise current TaylorMade information, including appropriate trade names, trademarks, logos, artwork, trade dress, and any other intellectual property information, in any website update, upgrade or other change.
Authorised Internet Retailers shall handle all warehousing and distribution to consumers. TaylorMade shall have no obligation to fill special orders or make drop shipments.
13. Statement of Authorisation.
Authorised Internet Retailers must state on the website that the site is authorised by TaylorMade to supply TaylorMade products to consumers on the Internet.
14. Follow Applicable Laws.
The Authorised Internet Retailer must operate its website in accordance with all applicable laws and regulations and will provide the following to TaylorMade upon request:
(a) Evidence of compliance with all applicable laws; and
(b) Evidence of compliance with any future laws or regulations applicable to Internet sales.
15. Modifications to Internet Sales Policy.
Any supplement, modification or amendment of the conditions upon which TaylorMade supplies TaylorMade products to retailers for supply (including under this Policy) may be unilaterally announced from time to time, in writing. The current version of this policy may be found on TaylorMade's website at https://taylormadegolf.com.au/
The Buyer shall not buy or sell counterfeit products which may be subject to civil or criminal penalties. A counterfeit product is a product using any TaylorMade Trade Mark, including, but not limited to: “TaylorMade” and "TaylorMade Golf" or any product of identical design to a product using a TaylorMade Trade Mark, but which was not produced by or with the consent of the Seller or the Seller’s Associates or the trade mark owner.
If for any reason the Buyer should become aware, either independently or upon notification from the Seller, that it has bought or sold any counterfeit products, the Buyer shall: (a) take such products off sale immediately; (b) deliver up such products to the Seller for destruction, or if the Buyer disputes their authenticity, agree to the products’ being stored in a location determined by the Seller pending resolution of the dispute; and (c) provide full details and all documentation relating to the production and supply of such products.
Capitalised terms used in these Terms and Conditions for Release of TaylorMade Group Imagery shall have the same meaning as set out in clause 1 of the Terms and Conditions of Supply above unless expressly stated otherwise.
In consideration of the Buyer undertaking to be bound by the terms and conditions set out below, the Seller agrees to grant the Buyer a non-exclusive revocable licence to use, reproduce, adapt, communicate to the public and otherwise exploit the Imagery set out in the enclosed disc(s) or file(s) or otherwise made available to the Buyer, strictly in accordance with the terms and conditions set out below.
By opening or using the Imagery, the Buyer agrees to be bound by the following terms and conditions:
1. The Buyer must submit samples and details of the proposed use of the Imagery to the Seller for its prior written approval (to be given or withheld in the Seller’s absolute discretion). The Seller will review the samples and details of the Buyer's proposed use and notify the Buyer of any amendments which the Seller requires. The Buyer must comply with any such amendments and the Buyer must in all cases resubmit the samples and relevant details to the Seller for its final written approval (and not use or display any Imagery until the samples and details have been approved by the Seller in writing).
2. Subject to clause 19 of the Terms and Conditions of Supply (which relates to recommended retail prices), the Buyer shall not alter the Imagery in any way without the prior written approval of the Seller (to be given or withheld in the Seller's absolute discretion). In particular, the Buyer shall not without the Seller’s approval:
(a) enlarge, shrink, delete, add to, alter or otherwise adapt the Imagery (whether by airbrushing or otherwise); or
(b) add any promotional price related information to the Buyer's use of the Imagery.
For these purposes, “add” or “add to” shall include, without limitation, any use of the Imagery on, next to or otherwise in association with any material supplied by the Buyer.
3. The Buyer shall comply with all instructions and guidelines issued from time to time by or on behalf of the Seller regarding the Imagery and the Buyer's use of the Imagery, including the Buyer's use of any of the Seller's or the Seller's Associates' Intellectual Property Rights, trademarks or brand logos in conjunction with the Imagery. In particular, the Buyer shall comply with any instructions or guidelines with regard to the specific format in which the Imagery is to be used or the types of media in which the Imagery may be used.
4. The Buyer may only use the Imagery in compliance with applicable laws and the Buyer shall not use the Imagery in a manner which is contrary to public morals, which is misleading or deceptive or likely to mislead or deceive, which violates or infringes any third party rights (including without limitation Intellectual Property Rights) or which reflects unfavourably upon or is prejudicial to the Seller or the Seller’s Associates and/or the contents of the Imagery.
5. The Buyer acknowledges and agrees that all Intellectual Property Rights attaching to, deriving from or generated by the use of the Imagery shall (as between the Buyer and the Seller) remain the sole property of and accrue exclusively to the Seller.
6. The Buyer is licensed to use, reproduce, adapt, communicate to the public and otherwise exploit each item of the Imagery only for a maximum period of 12 months from the date of release of that Imagery by the Seller, or such other period as notified to the Buyer by or on behalf of the Seller. The Seller may terminate the Buyer's licence to use, reproduce, adapt, communicate to the public and otherwise exploit any item of the Imagery by providing not less than 30 days written notice to the Buyer. The Buyer shall not make any further use of an item of the Imagery beyond such period without first obtaining the prior written approval of the Seller.
7. In the event that the Buyer breaches, or the Seller reasonably believes the Buyer is likely to breach, any of these terms and conditions, the Seller expressly reserves the right to:
(a) revoke and/or suspend the licence granted to the Buyer under these terms and conditions; and/or
(b) withhold the supply to the Buyer of other Imagery and/or brand assets.
8. The Buyer shall indemnify and keep indemnified the Seller and the Seller’s Associates against any and all damages, losses and expenses (including without limitation legal expenses) arising from any third party claims as a result of or in connection with the Buyer's breach of these terms and conditions and/or the Buyer's use of any Imagery other than in accordance with these terms and conditions and the Seller’s approval.
9. In the event that the Seller provides the Buyer with access to an individual TaylorMade endorsed athlete, as an ambassador for the Seller or the Seller’s Associates (“Asset”), the provisions of these terms and conditions shall apply to any photographs the Buyer takes of the Asset (and any such photograph(s) shall be construed as “Imagery” for the purposes of these terms and conditions). In addition, the Buyer acknowledges and agrees that:
(a) the Buyer may only photograph or otherwise record the Asset using the Seller’s or the Seller’s Associates’ product(s) and must only use the name, photograph(s), voice, likeness, image or anything else that identifies the Asset within the Buyer's promotional and/or point of sale materials (which shall be subject to the Seller’s prior written approval);
(b) the Buyer shall take out and maintain appropriate public liability insurance with a reputable insurance company in respect of the Buyer's use of the Asset; and
(c) the Seller shall have no liability to the Buyer in the event that the Asset fails to appear at the date and time specified by the Seller.
Taylor Made Golf Australia Pty Ltd., trading as TaylorMade-TaylorMade Golf (“TaylorMade”) is committed to the performance and durability of its products.
Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for 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.
THIS WARRANTY POLICY IS THEREFORE SUBJECT TO, AND WILL NOT APPLY TO THE EXTENT THAT IT EXCLUDES, RESTRICTS OR MODIFIES SUCH PROTECTIONS AND ANY CONSUMER GUARANTEES APPLICABLE TO CONSUMERS.
Any rights and remedies given to consumers under this warranty policy are in addition to the rights and remedies provided under the Australian Consumer Law.
TaylorMade Limited Consumer Warranty
Golf Clubs. TaylorMade warrants that its golf clubs will be free from defects in materials and workmanship during normal and customary use for two years from the original date of purchase from an authorised Australian retailer provided (1) the consumer presents appropriate proof of purchase (for example, in the form of an original register receipt from the authorised Australian retailer from whom the consumer purchased the golf club); and (2) the golf club has not been abused, altered, defaced, or misused, or otherwise damaged through the act or neglect of the consumer or a third party.
A club that has undergone conventional club modifications (e.g., reshafting, regripping) will be covered by this warranty policy only if no damage was done as a result of the modification. It is within TaylorMade’s sole discretion to determine whether any damage was caused to the club by such modification.
All Other Products. With respect to all other TaylorMade branded equipment and related soft goods, TaylorMade warrants that its products will be free from defects in materials and workmanship during normal and customary use for two years, and for accessories for one year, from the original retail purchase date from an authorised Australian retailer provided (1) the consumer presents appropriate proof of purchase (for example, in the form of an original register receipt from the authorised Australian retailer from whom the consumer purchased the product); and (2) the product has not been abused, altered, defaced, or misused, or otherwise damaged through the act or neglect of the consumer or a third party. It is within TaylorMade’s sole discretion to determine whether any damages were caused to the product by wilful actions or neglect of the consumer or third party.
This warranty does not cover normal wear and tear. All cosmetic and other repairs not covered under this warranty, or otherwise not covered under the Australian Consumer Law, may be made for a fee.
Our Responsibility. If a defect in a genuine TaylorMade product appears during the warranty period of the product, and the consumer complies with the requirements above, TaylorMade, will under this warranty (1) repair the defect; (2) replace the defective product with same or comparable product; or (3) refund your actual purchase price less reasonable depreciation based on actual use or the then-current market value of the defective product in any instance where the product is no longer available and repair is not possible, upon prompt return of the product to TaylorMade through any authorised Australian retailer. This operates in addition to and does not limit or affect any rights or remedies you may have under the Australian Consumer Law.
Your Responsibility. If a consumer has warranty questions or wishes to make a warranty claim, please contact the nearest authorised Australian retailer. If the consumer must return the product
to TaylorMade, the consumer is entitled to a refund of any reasonable shipping charges to return the defective product. TaylorMade will return the repaired or replacement product at no charge.
1) Warranty claims will be handled at TaylorMade’s sole discretion, pursuant to the terms and conditions stated above.
2) Any repaired or replacement product provided under this warranty will be warranted from the repair or replacement date.
3) This warranty is in addition to other rights and benefits the consumer may have under law in relation to the goods to which this warranty relates, as described at the beginning of this policy. WITH THE EXCEPTION OF ANY CONSUMER GUARANTEES PROVIDED UNDER THE AUSTRALIAN CONSUMER LAW THAT CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED, THE FOREGOING LIMITED WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, GUARANTEES, AGREEMENTS AND SIMILAR OBLIGATIONS OF THE MANUFACTURER OR SELLER (INCLUDING TaylorMade).
4) EXCEPT IN RELATION TO THE CONSUMER GUARANTEES IMPOSED BY THE AUSTRALIAN CONSUMER LAW AND OTHERWISE TO THE MAXIMUM EXTENT PERMITTED BY LAW, TAYLORMADE IS NOT LIABLE FOR ANY LOSS OR DAMAGE, INCLUDING ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, TO ANY PERSON (HOWEVER CAUSED, WHETHER BY NEGLIGENCE OR OTHERWISE) WHICH MAY ARISE DIRECTLY OR INDIRECTLY IN CONNECTION WITH THE USE OF TAYLORMADE PRODUCTS.
5) No person, agent, distributor, dealer, authorised Australian retailer or other third party is authorised to change, modify, or extend the terms of this warranty in any manner whatsoever.
6) The Warranty Policy above applies to TaylorMade products that have been purchased from an authorised Australian retailer. An "authorised Australian retailer" is a person to whom TaylorMade supplies TaylorMade golf clubs and/or other TaylorMade product for resale.
7) Any dispute concerning this warranty policy will be subject to the exclusive jurisdiction of the courts of Victoria.
8) For help, contact Customer Service at TaylorMade: TAYLORMADE GOLF AUSTRALIA PTY LTD., 1 Torteval Place, Clayton, Victoria. Or contact TaylorMade via telephone at 1- 800-270-868 or email at email@example.com. TaylorMade is a registered trademark of TaylorMade Golf Company, Inc. © TaylorMade Australia Pty Ltd. All rights reserved.