These terms and conditions govern the use of NuOrder. In these terms and conditions, the following terms have the following meanings unless the context requires otherwise:
goods means the products offered for sale by a Hanes Group Company, including via NuOrder.
Hanes Group Company means in Australia: HBI Holdings Australasia Pty Ltd’s subsidiary Hanes Australia Pty Limited ABN 56 098 704 646 and any company that is a related body corporate (as defined in the Corporations Act 2001) of Hanes Australia Pty Ltd including but not limited to Hanes Innerwear Australia Pty Limited and Sheridan Australia Pty Limited and their successors and assigns; and in New Zealand: Hanes New Zealand Limited (company number 1174050) and Sheridan N.Z. Limited (company number 1056905) and further companies as may be owned by Hanes New Zealand Limited and/or Hanes Australia Pty Limited from time to time, and their successors and assigns.
Hanes Group Supplier means, in connection with the supply of any goods, the Hanes Group Company making the supply of goods to you.
We/us (being here the applicable Hanes Supplier) shall only supply goods to you on the following terms and conditions unless we agree, in writing, to vary these terms and conditions. Each order for goods that we accept from you forms an independent contract between you and us, and is governed by these terms and conditions.
1. Payment
1.1. All invoices are due and payable:
(a) for accounts operating on a cash basis, in full prior to dispatch of the goods; and
(b) for account to which credit has been extended, in full on the last banking day of the month following the date of invoice. You may not withhold payment or make any deductions from or set-off any amount without our prior written consent.
1.2. We reserve the right to charge a fee for overdue payments, credit card payments, cancellation of orders, manual processing of payments, and to pass on bank fees imposed on payments.
1.3. Unless expressly agreed in writing by us, may not cancel an order and you are liable for full payment of any order for Goods that you subsequently seek to cancel.
1.4. Should you fail to pay your invoices by the due date then:
(a) we may charge interest on any overdue invoices for Australian purchases at the penalty rate fixed under the Penalty Interests Rates Act 1983 (Victoria), and for New Zealand Purchases at a rate equal to 2% above the base lending rate from time to time of the ANZ Bank New Zealand Limited; calculated and payable daily, compounded from the due date until the invoice is paid in full;
(b) you shall pay all our costs and expenses (including legal costs determined as between solicitor/own client and mercantile agents fees) which may be incurred in the recovery or attempted recovery of the overdue amounts from you;
(c) for accounts operating on a cash basis, we may withhold supply until payment is received.
2. Settlement Discount
2.1. Where you have a credit account, you may take advantage of a discount for early settlement of accounts at the rates agreed between us from time to time provided:
(a) payment in full takes place within the time specified on our invoice; and
(b) you do not have any other invoices outstanding beyond their due date at the time of payment.
3. Prices and Delivery
3.1. Our prices are subject to change without notice. The price you will be charged for the goods is the price displayed on NuOrder at the time you submit your order, including any displayed discount (but excluding any settlement discount), unless there is an obvious error in the price displayed (in which case we will cancel your order if you do not wish to pay the correct price).
3.2. GST at the prevailing rate at the date of invoice will be included in the amount due and payable on the invoice. We state on the face of the invoice whether or not the prices shown on the invoice are inclusive or exclusive of such tax and any freight and insurance charges.
3.3. Whilst we shall use all reasonable endeavours to comply with your particular delivery requirements and order specifications, you will not be entitled to cancel the whole or part of your order or to claim compensation by reason of our failure to comply with your delivery requirements or minor variations to the goods.
4. Reservation of Title
4.1. You acknowledge that the ownership of goods delivered by us to you is only transferred to you when you have paid all sums owing to us on the purchase price of the goods and that until such time we have a security interest in the goods to secure payment of the purchase price of those goods and we have the right to call for or recover the goods at our option (for which purposes our employees or agents may enter your premises and remove the goods and we will not be responsible for any reasonable damage caused in doing so) and you are obliged to deliver up the goods if so directed by us. You agree to indemnify us against any claims arising from the exercise of this right of entry, and will pay all our costs and expenses as a result of any such action, together with transportation and storage charges, upon demand.
4.2. The goods shall be stored in such a manner as to be clearly identifiable as our property and you agree to keep the goods in a fiduciary capacity for us, until such time as ownership is transferred to you. Notwithstanding the foregoing, you may sell the goods to a third party in the ordinary course of business.
4.3. You must insure the goods.
4.4. You must account to us for all proceeds of the goods including any insurance proceeds.
5. PPSA / Security
A. This part of the clause does not apply to New Zealand purchasers
5.1. You acknowledge and agree that you grant us a Purchase Money Security Interest in the goods and their Proceeds including any Accounts and Accessions by virtue of the retention of title pursuant to Clause 4.
5.2. You agree that:
(a) these terms and conditions of sale apply to the supply of goods by us to you to the exclusion of all other terms and conditions of sale or purchase;
(b) no variation to our terms and conditions of sale will be of any effect unless agreed to by us in writing. Your continued purchase of goods from us following an amendment to these terms and conditions constitutes your acceptance of the amended terms and conditions;
(c) the retention of title arrangement pursuant to clause 4 secures the payment of the purchase price of supplied goods;
(d) you will do all the things necessary including providing all information we require to register a Financing Statement or Financing Change Statement on the Personal Properties Securities Register (PPSR) and to perfect our Purchase Money Security Interest;
(e) you will not change your name, ACN or ABN or other relevant PPSR identifier, without first notifying us;
(f) you waive your rights to receive a verification statement in respect of any Financing Statement or Financing Change Statement in respect of the Purchase Money Security Interest created pursuant to these terms and conditions.
(g) you must pay our costs of any discharge or necessary amendment of any Financing Statement or Financing Change Statement.
5.3. To the maximum extent permitted by law, you agree that the following sections of the Personal Properties Securities Act 2009 (“PPSA”) will not apply and we do not need to comply with the requirements of:
(a) Section 95
(b) Section 118
(c) Section 121(4)
(d) Section 125
(e) Section 130;
(f) Section 132(3)(d)
(g) Section 132(4)
(h) Section 135
(i) Section 142; and
(j) Section 143.
5.4. To the maximum extent permitted by law, you waive any rights you may have pursuant to receive notices under the following sections of the PPSA:
(a) Section 95;
(b) Section 118;
(c) Section 121;
(d) Section 130;
(e) Section 132; and
(f) Section 135.
5.5. Unless otherwise defined in these terms and conditions of sale, the terms and expressions used in this Clause 5 have the meanings given to them or by virtue of the PPSA.
B. This part of the clause applies only to New Zealand purchasers
5.1B You acknowledge and agree that you grant us a security interest in all present and after acquired goods supplied by us to you and all proceeds of the goods for the purposes of the Personal Property Securities Act 1999 (“PPSA”) as security for the payment for the goods and all other amounts owing from you to us from time to time.
5.2B You agree that:
(a) you will do all the things necessary including providing all information and executing any documents we require to register a financing statement or financing change statement on the Personal Properties Securities Register (PPSR) as a security interest and a purchase money security interest pursuant to the PPSA;
(b) you will not change your name without providing us with at least 10 business’ days prior notice;
(c) you waive your rights to receive a verification statement under the PPSA and agree that you will have no rights under the following sections of the PPSA: 114(1)(a) (to receive notice of sale of Goods); 116 (to recover a statement of account); 120(2) (to receive notice of proposal to take the Goods); 121 (to object to the secured party proposal to retain collateral); 125 (not to have Goods damaged when a secured party removes an accession); 126 (to be reimbursed for damage caused when a secured party removes an accession); 127 (to refuse permission to remove an accession); 129 (to receive notice of the removal of an accession); 131 (to apply to the Court for an order concerning the removal of an accession); 133 and 134 (to reinstate the security agreement).
5.3B You agree to reimburse, upon demand, all our costs and expenses incurred in relation to registering or maintaining any financing statement, releasing in whole or part our security interest or any document in respect of any security interest, and the enforcement of any rights arising out of our security interest.
5.4B Unless otherwise defined in these terms and conditions of sale, the terms and expressions used in this clause have the meanings given to them or by virtue of the PPSA.
5.5B You hereby charge in our favour an interest in any property owned or held by you, and agree that we shall have the right, at our absolute discretion, to complete and register a mortgage over your interest in any such property, and to lodge a caveat against the title to any property in respect of which you own or hold an interest, to secure the amounts owing from you to us from time to time. You hereby appoint us as your attorney for the purpose of us exercising our rights under this clause while any amount remains outstanding from you to us.
6. Risk
Notwithstanding the provisions of Clauses 4 and 5 you accept all risk of loss and damage of the goods, whether caused by you or not, following delivery of the goods. Delivery shall occur when we, or a third party instructed by us, hands possession or control of the goods to you (or a third party on your instruction).
7. Return of Goods
7.1. We will not accept returns for credit without prior authorisation or to the extent required by law.
7.2. Any goods which you return for credit will only be accepted if they are in the original packaging, in pristine order and condition and accompanied by documentation showing:
- your name, address and account number
- our invoice number
- reason for return
- our authorisation number
7.3. If we authorise the return of goods, the goods must be carried by our nominated carrier at your cost (normal rates).
8. Withholding Supply
8.1. We reserve the right, irrespective of whether or not an order has been accepted, to withhold supply to you to the extent permitted by law and we will not be liable for loss or damage resulting directly or indirectly from such action where:
(a) we have insufficient goods to fulfil the order;
(b) the goods ordered have been discontinued;
(c) if you have a cash account, until such time as the goods have been paid for in full; or
(d) If you have a credit account, we have determined, in our absolute discretion, that credit should no longer be extended to you.
9. Minimum Orders
We reserve the right to specify the minimum order value which we shall accept from time to time and to refuse supply or impose a surcharge should you require delivery of goods having a value less than the minimum order value. Recognising the administrative costs of holding your account and, where applicable offering credit to you, we may also specify an annual minimum cumulative order value. As at June 2023, that minimum spend for credit accounts is $5,000. If your annual orders fail to meet this value, we may require that your subsequent orders meet a higher minimum order value, or discontinue your credit or account.
10. Modifications to Labels or Goods
You may not, without our written consent, alter, remove or obliterate any labels which we attach to the goods. You may not in any way, without our written consent, alter or embellish the goods we supply to you prior to their re-sale.
11. Intellectual Property Rights
11.1 You acknowledge that you do not have any intellectual property rights, whether by way of copyright or registered design or otherwise, in the goods or images displayed on NuOrder and that we retain ownership of all such intellectual property.
11.2 You may use images of the goods and other marketing materials provided to you on NuOrder (provided any model faces are removed), but may not copy our general marketing materials from other sources for use as we may not have appropriate usage rights for these materials. You will be responsible for any claim of misuse or infringement resulting from your unauthorised use.
12. Confidentiality
12.1 Subject to clause 12.2, Neither party (Recipient) use or may disclose any Confidential Information of the other party (Discloser) except for the purposes of performing their obligations under this agreement.
12.2 Recipient may disclose Discloser’s Confidential Information:
(a) to its legal or financial advisers, to obtain advice; or
(b) as required or authorised by law; or
(c) with the Discloser’s prior written consent; or
(d) as required by the listing rules of any stock exchange on which Recipient’s shares are listed.
12.3 Confidential Information means any Discloser information disclosed in any form to Recipient or otherwise learned or acquired by Recipient under or in connection with these terms and conditions which is identified by Discloser as being confidential, or which due to the circumstances of disclosure Recipient knows or ought to know is confidential, whether disclosed visually, orally or in writing and including (without limitation) information which relates to Discloser’s business, systems, technology, affairs, or products but excluding information that:
(a) was or becomes generally available to the public, other than as a result of a breach of an obligation of confidentiality owed to Discloser;
(b) becomes known to Recipient, without an obligation of confidentiality, from a source other than Discloser;
(c) was in Recipient's possession, without an obligation of confidentiality, prior to receipt from Discloser; or
(d) is independently developed by Recipient without the use of Discloser’s confidential information.
13. Claims
13.1 Any claims by you for short delivery must be made within 7 days of the delivery.
13.2 Any other claims for adjustment to any invoice for any reason whatsoever must be made in writing within 60 days of delivery.
14. Clerical Errors
14.1 We reserve the right to correct clerical errors without prior notification.
15. Purpose of Supply
15.1 The goods are supplied to you solely for business purposes, being the resupply by sale direct to consumers. You will not otherwise on-sell or re-supply the goods to a third party without our written consent. Your sales of goods to consumers must only occur via the retail outlet or outlets advised to us in your initial application for supply and approved by us as a suitable outlet, unless additional outlets are subsequently agreed by us in writing.
16. No liability for consequential loss
16.1. You agree we have no liability to you for any Consequential Loss. Consequential Loss means loss of expected savings, loss of use, loss of opportunity, loss of profit, loss of revenue, increased financing costs, loss arising from delay, or any consequential, special or indirect loss or damage, whether or not the possibility or potential extent of the loss or damage was known or foreseeable, and whether arising from a claim under indemnity, contract, tort (including negligence), statute or otherwise.
17. Limitation of liability
A: In respect of Australian Consumer Law Guarantees
17.1 To the extent that goods supplied by us are not goods of a kind ordinarily acquired for personal, domestic or household use and you are deemed to be a consumer for the purposes of section 64A of the Australian Consumer Law, you agree that our liability for a failure to comply with a consumer guarantee that you may have the benefit of under the Australian Consumer Law (other than a guarantee under ss 51 (title), 52 (undisturbed possession) and 53 (undisclosed securities)), is limited to, at our option, to one or more of the following:
(a) replacement of the goods or the supply of equivalent goods;
(b) the repair of the goods;
(c) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(d) the payment of the cost of having the goods repaired.
B. In respect of the Consumer Guarantees Act 1993
17.1B If the goods are acquired by you for business purposes, you agree that the Consumer Guarantees Act 1993 does not apply.
17.2B You acknowledge that we do not provide any express guarantees (as defined in the Consumer Guarantees Act 1993), other than those expressly confirmed by us in writing.
17.3BTo the extent permitted by law, we accept no liability for any claim by you or any other person, including without limitation any claim relating to or arising from:
(a) any conditions, warranties, descriptions, representations, conditions as to fitness or suitability for purpose, tolerance to any conditions, merchantability or otherwise, whether express or implied by law, trade custom or otherwise;
(b) any representations, warranties, conditions or agreements made by any agent or representative, or by you, which are not expressly confirmed by us in writing, and you agree to indemnify us against any such claim.
17.4B To the extent that we breach any statutory guarantee, condition or warranty implied into these Terms and Conditions of Sale and which cannot otherwise be excluded or modified, we limit our liability to, at our discretion (and to the fullest extent permitted by law):
(a) the replacement of the goods or the supply of equivalent goods;
(b) the repair of the goods;
(c) the payment of the costs of replacing the goods or of acquiring equivalent goods; or
(d) the payment of the costs of having the goods repaired.
18. Acceptance
These terms and conditions govern the use of NuOrder. By accessing, using, registering with or purchasing from any area of NuOrder you agree that your access to, use of, and purchase of any goods is subject to these terms and conditions and all applicable laws, and is at your own risk. If you do not agree to these terms and conditions in their entirety, you must not use NuOrder.
19. Amendment
We may amend or update these terms and conditions at any time by posting any changes on NuOrder, without providing notice to you. By continuing to access and use NuOrder, you will be deemed to have agreed to any changes or updates to these terms. These terms and conditions (including where applicable, our credit and privacy policies) set out the entire agreement between you and us and to the fullest extent permitted by law, supersedes all prior terms and conditions.
20. General
20.1 The laws of the State of Victoria govern our trading and these terms and conditions, provided that if you are located in New Zealand, the laws of New Zealand govern our trading and these terms and conditions.
20.2 You agree with us to submit to the non-exclusive jurisdiction of the Courts of Victoria and the Federal Court of Australia (and the courts of New Zealand if you are located in New Zealand) and agree that any legal proceedings may be heard in those courts.
20.3 You may not assign your rights under these terms and conditions or any credit application, or any other document between you and us, without our prior written consent. A change of control will be deemed an assignment for the purposes of this clause.
20.4 You acknowledge that where you are comprised of more than one legal person or entity, your liability will be joint and several.
20.5 Neither we or you will be liable for the delay or failure in the performance of any obligation or the exercise of any right under these terms and conditions of sale, or for any loss or damage if such performance or exercise is prevented or hindered in whole or in part by reason of an event or circumstance beyond the reasonable control of the affected party.
20.6 Either party may terminate this agreement or any order or contract made pursuant to its terms if the other party commits an act of insolvency, comes under any form of insolvency administration, is unable to pay their debts when they become due or ceases, or threatens to cease, to carry on its business as described at the time of your initial application for supply.
Version 1.0
Date: 30 June 2023