Terms and Conditions

Conditions of Sale                 

1. Definitions

In this agreement unless the contrary intention appears or the context requires otherwise: – Agreement means these terms and conditions and any appendix or schedule to them; Charges means in respect of the Goods and the Order freight, insurance packaging and service

fees, sales tax or excise incurred by the Company with respect to the Order or the Goods or such other items the company may reasonably apply. Company means TENXPRO Pty Limited and  its successors and assigns ;Condit ions or these conditions means these conditions of sale;

Credit Card Limit means $5,000 per credit card transaction or such other sum or on such other conditions as the Company may from time to time advise the Customer in writing; Customer means the person, firm or company placing an Order with the Company in respect of the supply of Goods and Services and where applicable means its officers, directors, agents. successors and assigns; Force Majeure means any cause outside the parties’ reasonable control, including but not limited to an act of God, government or quasi government, act or regulation, riot, act of terrorism, war flood, fire, industrial disputes and epidemics or any risks to health or safety. Goods means all goods supplied or to be supplied by the Company to the Customer; GST means any consumption tax, good and services tax, value added tax and any similar tax impost or duty.

Insolvency Event includes the winding up, dissolution or cessation of business, the appointment of an administrator, liquidator, receiver or an official manager, an assignment for the benefit of creditors, scheme of arrangement with creditors, insolvency and bankruptcy of a party or any similar procedure; Order means a written or verbal

request from a Customer for the Company to supply Goods or Services; Parties means the Compa ny and the Customer Price means the price for the Goods and Services as listed in the Price List issued from time to time in writing or by verbal advice from an authorised employee of the Company; Services means supply of labour from the Company for activities which include, but is not limited to, repair work or consulting.

  1. Interpretation

In this agreement unless the contrary intention appears:

  • the singular includes the plural and vice versa:
  • a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes, assigns, employees, agents, representatives, and contractors;
  • if a period of time is specified, and dates from a given day or the date of an act or event, is to be calculated exclusive of that day;
  • headings in this agreement are inserted for convenience and do not affect the interpretation of this agreement;
  • a reference to a statute, ordinance, code, mandatory guideline, or other law includes regulations and other instruments under  and consol idations, amendmen ts, re-en actm ent s, extensions or replacements of that statute, ordinance, code, guideline or law;
  • a reference to a clause or provision is a reference to a clause or provision under this Agreement; and
  • a variation to these terms and conditions forms part of these terms and conditions and prevails to the extent of any inconsistency between the variation and these general terms and
  1. Supply of Goods
    • The Company agrees to provide and the Customer agrees to accept the Goods upon the terms and conditions of this Agreement.
    • The supply of Goods by the Company is subject to availability of the Goods.
    • The Company agrees, having regard to the nature of the Services being provided, to perform the Services in a proper and professional manner and in accordance with industry practice.
    • The parties may at any time agree in writing for the Company to provide additional services for the remainder of the term of this Agreement. The additional services will be provided to the Customer pursuant to the terms and conditions of this Agreement.
  2. These Conditions
    • These terms and Conditions shall apply to all Orders for Goods placed by the Customer with the Company to the exclusion of all other terms or conditions unless expressly agreed in writing. If the terms of the Customer’s Order are inconsistent with these Conditions, the delivery of Goods specified in any such Order to the Customer shall be deemed to be an offer by the Company to supply the Goods delivered pursuant to these Conditions which offer the Customer shall be deemed to accept by retaining the Goods.
  • The Purchaser agrees the Company shall give notice of changes under these Condit ions to the address appearing on Purchaser’s Orders as the business address and any such notice shall be deemed given to:
  • all branches, offices or premises from which the Purchaser conducts its business; and
  • all subsidi aries or related corporations of the Purchaser who with the consent of the Purchaser and the Company operate the Purchaser’s account
  • The Purchaser agrees that it will be deemed to have accepted any change of these Conditions by the Company by placing a subsequent Order or by seeking Services or by retaining Goods su bs equently  delivered by the Company.
  1. Charges and Payment
    • In consideration of the provision of Goods by the Company, the Customer must pay the Price, the Charges and the GST to the Company, within 30 days after the end of the month in which invoicing  occurs  (“the  Standard Credit  Terms”)  or  on such other credit  terms as the Company may specify in w
    • Notwithstanding 1 above, the Company shall be at liberty to withdraw credit facilities offered to the Customer at any tim e.
    • All payments of the Charges, the GST and the Price by the Customer to the Company under this Agreement must be paid in such manner as the Company may advise from time to time free of set-off and without deduction and must, where credit cards are used, not exceed the Credit Card Limit.
  • Any price advised by the Company to the Customer is based on rates of freight, insurance, customs duties, foreign exchange, shipping expenses, sorting and stacking charges, cartage, cost of materials and other charges affecting the costs of production and sub sequent supply and is subject to change from the date of the Order to the date of delivery of the
  • I f the Customer is in breach of clause 1, the Company may in addition to its rights and remedies at law or in equity, do any one or more of the following: –
  • Charge at the Company’s optio n, the Customer interest  on the outstanding amount from the due date, at the rate of $25.00 per invoice per month or 1.55% of the outstanding invoice amount compounded monthly;
  • recover from the Customer any reasonable costs including legal costs on an indemnity basis which the Company may incur in recovering any outstanding amounts from the Customer;
  • suspend the delivery of all or part of any Service or any Order until the Customer has performed its obligations under these terms and conditions including clause 5.1; and
  • terminate this agreement by giving 7 days written notice.
  1. Orders and Back Orders
    • Any Order placed by the Customer in accordance with the terms and conditions of this agreement is an offer by the Customer to purchase Goods and/or Services for the Price (including the delivery and other charges and taxes), specified in the schedule at the time the Customer places its Order.
    • the Company reserves the right to accept in whole or part any Order, or decline an Order, and any order or part order not accepted is deemed cancelled. This includes, without limitation, the unavailability of any product, an error in the Price or the product description or an error in the Customer’s Orde
    • If the Company accepts part of an Order (“the Part Order”) then Clause 5 applies to the Part Ord
    • The Customer’s contract with the Company only comes into existence when the Company accepts the Customer’s Order or Part Order.
    • If the Company cannot supply the Goods within a reasonable time due to lack of Stock, unavailability of the Goods or that the Goods have been superceded, the Company may

advise the Customer that part or all of the Order is on Back Order (“the Back Ordered Goods “). If the Back Ordered Goods subsequentl y become available the Company may offer the Back Ordered Goods or comparable Goods to the Custome r at the Price

where upon the Customer is at liberty to accept or reject the Company ‘s off er whereupon the Back Order becomes an Order for the purposes of clause 4 and 5 of these Terms and Conditions.

  1. Lien
    • The seller reserves the following rights in relation to the Goods until all amounts owed by the Customer to the Company are fully paid:
  • ownership of the Goods;
  • to enter the Customer’s premises (or the premises of any associated company or agent where the goods are located without liability for trespass or any resulting damage and retake possession of the Goods and the Customer agrees that the Company has an irrevocable licence to do so; and (iii) to keep or resell any Goods repossessed pursuant to l (ii) above. If the Goods are resold by the Customer, the Customer shall hold such part of the proceeds of any such sale as represents the invoice price of the Goods sold in a separate identifiable account as the beneficial property of the Company and shall pay such amount to the Company upon request. Notwithstanding the provisions above the Company shall be entitled to maintain an acti on against the Customer for the Price and the risk of the Goods shall pass to the Customer upon delivery.
    • In connection with the Goods, while they remain the property of the Company, the Custome r agrees with the Company that:
  • the Customer has no right or claim to any interest in the Goods to secure any liquidated or unliquidated debt or obligation that the Company owes to the Customer;
  • the Customer cannot claim any Lien over the Goods;
  • the Customer will not create any absolute or defeasible interest in the goods in relation t o any third party except as may be

authorised by the Company;

  • where the Customer is in actual or constructive possession of the Goods:
  • the Customer will not deliver them or any document of title to the Goods to any person except as directed by the Comp any; and
  • it is in possession of the Goods as a bailee of the Goods and owes the Company the duties and liabilities of a
    • Pending payment in full for the Goods, the Customer:
  • must not supply any of the Goods to any person outside of its ordinary or usual course of business;
  • must not allow any person to have or acquire any security interest in the Goods;
  • must insure the Goods for their full insur able or replacement value (whichever is higher) with an insurer licensed or authorised to conduct the business of insurance in the place where the buyer carries on business;
    • Despite clause 7.3 (i) if the Customer supplies any of the Goods to any person before all moneys payable by the Customer have been paid to the Company (and have not been claimed or clawed back by any person standing in the place of or representing the Customer), the Customer agrees that:
  • it holds the proceeds of resupply of the Goods on trust for and as agent for the Company immediately when they are receivable or received;
  • it must either pay the amount of the proceeds of resupply to the Company immediately when they are received or pay those proceeds in to an account with a bank or a financial institution or deposit taking institution as trustee for the
  1. Buyer’s Property
    • Any property of the Customer under the Company ‘s possession, custody or control is completely at the Customer’s risk as regards loss or damage caused to the property or by
    • The Company is not responsible to the Customer or any person claiming through the Customer for any loss or damage to the Customer ‘s goods in transit caused by any event of any kind by any person (whether or not the Company is legally responsible for the person who caused or  contributed  to  that loss or damage).
  2. Returns

Orders cannot be cancelled and Goods cannot be returned by the Customer without the prior authorisation by the Company and issue by the Company of a return authorisation number (“the Return Authorisation Number”). Should a Customer seek to cancel an Order or return Goods then the Customer must first contact the Company and a customer service representative will evaluate the Customer’s return request, record all the necessary product return information and provide address details of where the Customer should send the return. If the customer service representative is satisfied that the Customer ‘s request should be granted, the customer service representative will issue the Customer a Return Authorisation Number which the Customer must use in order to obtain a replacement or refund.

  • In order to return Goods the Customer must send the Goods to the address provided by the Company ensuring that the Return Authorisation Number is clearly displayed on the return Any items not bearing a Return Authorisation Number may be returned to the Customer at the Customer’s expense and without any credit  being issued by the Company.
  • All returns must be received by the Company within 14 days of the Return Authorisation Number being
  • Orders cancelled or Goods returned without the prior written authorisation of the Company or Goods returned, and which are not in original product packaging and conditi on, will not be credited to the Customer’s account. Any cred it provided by the Company to the Customer where Goods were supplied to order and subsequently returned  will be subject to a 10% processing fee plus any freight charges, these amounts will  be deducted  from any credit note provided by the Company to the Customer.
  1. Guarantee
    • Where the Customer is a company each of the directors of that company jointly and severally, unconditionally and irrevocably guarantee to the Company the due and punctual payment by the Customer of all amounts that are or may become owing to the Company in connection with any Order and any other agreement between the Customer and the Company and the due and punctual observance of the Customer’s covenants and obligations to the Company in connectio n with any agreement between the Company and the Customer.
  • Without prejudicing any pre-existing right the Company has by reason of  these Conditions  the Customer  is required  to  give notice to the Comp any within seven days of  any changes in  it’s  Directors, Shareholders, Proprietor, trading name or partners, or business address.
  1. Goods Guarantee
    • The Company’s liability for goods sold by it is limited to the guarantee provided by the manufacturer  of  the Goods and is limited to making good any defects by repairing the defects or at the Company’s option by replacement with an identical or comparable product, within a period not exceeding twelve (12) calendar months after  the goods  have been dispatched where:

(i) defects have arisen solely from faulty materials or workmanship; (ii) the goods have not received maltreatment, inattention or interference;

  • accessories of any good used by the Customer are manufactured by or approved by the Company; and
  • the defective Goods are promptly returned free of cost to the
    • Subject to the terms of this clause 11 the Company is not liable for and the buyer releases the Company from any claims in respect of defective design of any goods supplied unless such design has been wholly prepared by the Company and the responsibility for any claim has been specifically accepted by the Company in writing. In any event the Company’s liability is limited strictly to the replacement of defective parts in accordance with the terms of this paragraph 11 of these conditions.
  • Except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. The Company is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the Goods or  arising out of any alleged negligence of the Company or in any way whatsoever.
  • The Company’s liability for a breach of a condition or warranty implied by Div 2 of Pt V of the Trade Practices Act 1974 (other than s69) is limited to:
  • in the case of Goods, any one or more of the following:
  • the replacement of  the Goods or  the supply of  equivalent goods;
  • the repair of the Goods;
  • the payment of the cost of replacing the Goods or of acquiring equivalent goods;
  • the payment of the cost of having the Goods repaired; or
  • in the case of services:
  • the supplying of the services again; or
  • the payment of the cost of having the services supplied
    • The Company’s liability under s 74H of the Trade Practices Act 1974 is expressly limited to a liability to pay to the Customer an amount  equal to:

(i) the cost of  replacing  the Goods;

(ii) the cost of  obtaining equivalent  Goods; or

(iii) the cost of having the Goods repaired, whichever is the lowest amount.

  1. Customer Warranties
    • The Company is TENXPRO PTY LTD a Global provider for the sale of  Tennis equipment marketed under the trademark of    TENX TM.
    • The Customer agrees that the following are reasonable requirements to protect the value and reputation of the Trademarks and the Customer  covenant that:-
  • it will not do anything to adversely affect the value of any Trademarks or inconsistent with any right of the owner of the Trademarks;
  • it will not use the Trademarks on any Goods without written permission from the Company;
  • it will comply with all directions of  the Company with  respect  to the advertisement, display and marketing of the Goods in order to protect the value of  the Trademarks;
  • it will not advertise or promo te the Goods together with other products unless it shall obtain in advance the writt en consent of the Company for such advertising  or promotion;
  • the primary means of re-sale of the Goods is though retail premises which are open to the general public
  • the Customer maintains  and will continue to  maintain  retail space for  the sale of  the Goods;
  • where the Customer operates a website or if it seeks to sell Goods over the internet or by mail order it will comply with the Company ‘s permission from the Company;
  • it will comply with all directions of the Company with respect to the advertisement display and marketing of the Goods in order to protect the value of the Trademarks;
  • it will not advertise or promote the Goods together with other products unless it shall obtain in advance the written consent of the Company for such advertising or promotion;
  • th e primary means of re-sale of the Goods is though retail premises which are open to the general public
  • the Customer maintains and will continue to maint ain retail space for the sale of the Goods;
  • where the Cust omer operates a website or if it seeks to sell Goods over the internet or by mail order it will comply with the Company’s directions issued from time to time concerning the protection of the value of the Trademarks in  such  methods of sale;
  • that where the provisions of clause 13 apply that the Customer will immediately remove reference to the Trademarks from its website or mail order catalogue.
  • without limiting the generality of sub-clauses (a) and {g) of this clause 2, it will under no circumstances advertise Goo d s for sale (and in particular at “sale” or “special” prices) which are not stocked by the Custome r in reasonabl e quantities to meet demand for such advertised goods.
    • a. The Customer agrees, warrants and represents that: the Customer is a retailer and  is  purchasing  the  Goods  from  the Comp any for the sole purpose of  making retail sales  to  the public and end users only;
  • the Customer will not re-sell, on-sell or dist ribute the Goods to other retailers;
  • the Customer will not act as or hold itself out to be a distributor

of the Company.

b.ln the event of any breach of Clause 12.3(a) above, the Customer shall be liable to account to th e Company for any pro fits it has made arising out of any sales to other retailers and for this purpose shall, immediately upon request by the Company, provide to the Company any and all information or documents concerning  sales by the Customer to any other retailer.

  1. c. The Customer acknowledges that:
  • the Company may ob tain a Court Order enforcing the obligations imposed on the Customer both by this Agreement and generally at law; and
  • the Company is entitled to approach any Court of competent jurisdiction to obtain an injunction restraining the Customer from failing (or threatening to fail) to comply with this provision and/or to obtain monetary damages and/o r an accounting of ”
    • The Customer agrees that any breach by the Customer of the provisions of this clause 12 shall cause injury to the interests of the owner of the Trademarks and the Customer indemnifies the Company from any claim including damages and legal costs which the owner of Trademarks may have against the Company for such breach and indemnifies and will continue to indemnify the Company for any action against the Customer that the Company may be required to take by the owner of  the Trademarks to protect the value of the T
  1. .Termination
    • Without limiting the Parties other rights under these Terms and Conditions, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
  • an Insolvency Event occurs in respect of the other party; or
  • the other party materially breaches any of these terms and conditions and does no t remedy such breach within 14 days after notice of that breach  from the non-breaching
  1. Goods and Services Tax
    • All consideration provided under these Conditions is exclusive of GST, un less it is expressly stated If GST is payable by

the Company (or by the Representative Member of the GST group of which the Company is a member) on any supply made under these Conditions or in relation to any payment, whether by way of adjustment, reimbursement, indemnity damage or otherwise, the Customer must pay to the supplier an amount equal to the GST on that supply or payment. In this clause, the expressions have the same meaning as in the A New Tax System (Good s and Services Tax) Act 1999


  • No delay, omission or failure by the Company to insist  upon strict  performance of  any  part  of  these  conditions  will not  be deemed to be a waiver of these conditions or of any right s that the Company   may have in  connection  with these conditions.
  • Where the Company expressly waives a particular breach of these conditions by the Customer there shall not be deemed a waiver of any subsequent breach of  condition by the Customer .
  1. Severance
    • If any condition or part of these conditions is found to be invalid, illegal or vise unenforceable, then all other provisions which are self sustaining and capable of separate enforcement without regard to the invalid, illegal or unenforceable provision or provisions shall be and continue to be valid and enforceable.
  2. Applicable Law
    • Any contract made between the Customer and the Company will be governed by and const ru ed in accordance with the laws of New South Wales, Australia and the Customer submits to the jurisdiction of the courts of New South Wales including all Courts of Appeal.
  3. Dispute Resolution
    • If a dispute arises under these Conditions, a party may give written notice to the other specifying the dispute and requiring its resolution under this clause (“Notice of Dispute”).
    • If the dispute is not resolved within 14 days of the Notice of Dispute, the parties may jointly refer the dispute to mediation in accordance with this
    • If the Dispute cannot be resolved then the Parties will promptly submit the Dispute to the nominee of the President for the time being of the Institute of Mediators and Arbitrators (“the Institute “) for Determination in accordance with the lnstitute’s Rules for the Conduct of Mediations and Disputes.
  4. Force Majeure
    • The Customer acknowledges that the Company will not be liable for any delay or failure to perform its obligations if such delay or failure is due (whether partially or wholly) to Force
    • The Company will notify the Customer as soon as practicable of any anticipated delay due to Force The performance of the Company’s obligations under this Agreement will be suspended  for the period of  the delay due to  Force  Majeure.