TERMS & CONDITIONS OF SALE
These terms and conditions of sale ("Terms") are entered into between the Vendor and the Purchaser as stated in the Purchase Order Form (to which these Terms are attached) and govern the sale of the products as stated in the Purchase Order Form ("Products") to the Purchaser.
1.1 A contract is formed by the Vendor accepting the order from the Purchaser for the Products by signing the Order Form or giving written acknowledgement to the Purchaser of acceptance of the order.
1.2 The Vendor may decline to accept the order and not sign the Order Form, without giving any reasons to the Purchaser.
1.3 If the Vendor does not accept the order, the Vendor must:
(a) refund any Deposit paid by the Purchaser for the Products to the Purchaser; and
(b) return any Trade-in provided by the Purchaser, to the
Purchaser. If the Vendor has already sold the Trade-in, the Vendor must refund to the Purchaser the cash equivalent of the value of the Trade-in as determined when it was provided by the Purchaser.
1.4 The Customer Purchase Order Form and these Terms form the entire agreement between the parties in connection with the sale of the Products ("Contract") and any representation, undertaking or warranty made by the Vendor or its agent (unless recorded and confirmed by the Vendor in writing) is cancelled and withdrawn and shall not apply to the sale.
1.5 Notwithstanding the terms and conditions herein, the Purchaser making full payment or part payment, providing a Trade-in to the Vendor, providing instructions in relation to supply or giving verbal or written agreement to accept the Products, goods and/or services shall all constitute acceptance of the terms and conditions herein and the Contract.
The Purchaser acknowledges that the Products are each described in general terms only and may incorporate such structural and cosmetic design (including colour, trim and style) and mechanical alterations or modifications as are from time to time made by the respective manufacturers thereof in accordance with their policies of altering, modifying and up-dating their products or as are made to comply with legal requirements or to meet applicable design rules or standards. Any specifications, drawings and particulars provided by the Vendor to a Purchaser are approximate only, with any descriptions, illustrations and performance figures not forming part of any Contract, with any performance figures given by the Vendor being estimates only, with the Vendor not being liable for any loss or damage arising from a failure of any goods supplied to attain such performance unless specifically guaranteed in writing, and where such performance is guaranteed in writing, it is guaranteed subject to the recognised tolerances applicable to such figures.
3.1 Subject to this clause, the purchase price payable by the Purchaser for the Products is the total amount specified in the Contract ("Purchase Price").
3.2 Unless otherwise stated, an amount payable by the Purchaser under these Terms is exclusive of GST and other applicable taxes and duties.
3.3 Subject to clause 3.4 and 3.5, the Purchase Price may be varied by an amount necessary to take account of any increase or decrease in the cost of the Products or any items forming part of the Products (including as a result of any change in currency exchange rates or any tax, levy or duty payable) affecting the cost of supply, production or delivery of the Products between the date of Vendor's acceptance of the Contract and the date of delivery of the Products to the Purchaser.
3.4 The Vendor must give the Purchaser reasonable notice of the variation in the Purchaser Price in clause 3.3.
3.5 Except for an increase or decrease in the cost of the Products or any items forming part of the Products as a result of a change in a law, clause 3.3 only applies to Products that are not part of the Vendor's existing stocks as at the date of the Contract.
3.6 The Vendor shall be entitled to set off and deduct any money owing to the Purchaser against any amount owing to the Vendor.
4.1 The parties shall agree to the manner and date on which the Products shall be delivered to the Purchaser ("Delivery Date").
4.2 The Delivery Date is intended only as an estimate and the Vendor shall not be liable for the consequences of any delay however arising and the Purchaser acknowledges that the Vendor will not accept any liability for any claims for losses arising from its failure to deliver the Products on the Delivery Date, or arising from late delivery, non-delivery or late installation or non-installation of the Products. The Purchaser will accept the Products when delivered and pay the balance of the Purchase Price at the date of delivery notwithstanding any such delayed or defective deliveries. The Vendor may at its options provide the Products to the Purchaser in any number of instalments. If the Vendor delivers any Products by instalments, and any one of those instalments is defective for any reason, then it is not a repudiation of the whole of the order and the defective instalment is a severable breach.
4.3 Where the Vendor is dependent upon other manufacturers or suppliers to provide the Products to enable the Vendor to deliver the Products to the Purchaser, the Vendor is under no liability to the Purchaser for the failure of the manufacturer or supplier to provide the Products.
4.4 Where the Products are available and due for delivery by the Vendor and the Purchaser fails to take or accept the same when required to do so under these Terms, delivery shall be deemed to have been made on the date the Vendor was willing and able to effect delivery and the Purchaser authorises the Vendor to leave the Products at the Delivery Address whether or not any person is present to accept delivery. Any costs incurred by the Vendor due to the Purchaser's failure to accept the Products at the time of their delivery shall be reimbursed by the Purchaser to the Vendor on demand.
4.5 The Vendor is not obliged to obtain a signed acknowledgement of delivery from any person at the Delivery Address, but if they do so and the Vendor believes the person was authorised to sign on the Purchaser's behalf, then such signed acknowledgement is conclusive evidence of the Purchaser's acceptance of the Products.
4.6 The Vendor reserves the right to make a reasonable charge to the Purchaser for storage of Products if delivery instructions are not provided by the Purchaser or the Purchaser fails to collect the Products within 14 days of a request by the Vendor for the same. The parties agree that the Vendor may charge for storage from the first day after the Vendor requests the Purchaser to provide delivery instructions or collect the Products.
5.1 The Vendor may require a Deposit to be paid by the Purchaser by a date and of an amount determined by the Vendor.
5.2 The balance of the Purchase Price is to be paid by the Purchaser to the Vendor upon delivery of the Products, unless otherwise agreed in writing.
5.3 If the Purchaser fails to make a payment by a due date, it shall be liable to pay to the Vendor default interest at a rate which is 10% higher than the unsecured overdraft rate promulgated from time to time by the National Australia Bank Limited, calculated on a daily basis from the date upon which the amount is payable in accordance with these terms until the date upon which the amount and all accrued interest is received as cleared funds by the Vendor.
5.4 Receipt of any cheque or other bill of exchange shall not comprise payment for the Products until the same has been honoured or cleared.
6.1 Notwithstanding that title in the Products may remain with the Vendor, the risk of any loss, damage or deterioration of or to the Products shall pass to the Purchaser from the time of actual delivery of the Products to the Purchaser or a representative, agent, employee or contractor of the Purchaser or where the Products are left at the Delivery Address in accordance with clause 4.4.
6.2 Title to the Products shall not pass (and the Purchaser upon receipt of the same shall be bailee only) until the Purchaser has paid to the Vendor the balance of the Purchase Price owing in full. 6.3 While title to the Products remains with the Vendor:
(a) the Purchaser must advise the Vendor immediately of any action by third parties (including any of its creditors) affecting the Vendor's interest in the Products;
(b) the Vendor may require the Purchaser to return the Products to it on demand; and
(c) the Vendor may enter upon the Site to inspect or repossess the Products, and the Purchaser agrees to fully indemnify the Vendor, its directors, officers, agents and employees from any action, suit, claim, demand or damage howsoever arising in connection with the Vendor or Vendor’s agent exercising the Vendor’s right of entry pursuant to this clause.
6.4 Ownership, property and title to any repairs or additions to the Products that are made before title in the Products vests in the Purchaser shall be subsumed in the Vendor's ownership, property and title in the Products and any such repairs or additions shall become subject to the Security Interest.
6.5 The Vendor may apply any payments received from or on behalf of the Purchaser in reduction of the total amount owing in such order and manner as the Vendor thinks fit (despite any direction to the contrary and whether before or after the Purchaser has breached these Terms).
6.6 If the Purchaser resells or uses the Products before title to the Products has passed to the Purchaser, the Security Interest attaches to the proceeds of such sale or use and such proceeds shall be received and held by the Purchaser (in whatever form) in trust in a separate account for both the Purchaser and the Vendor. The Vendor's interest as beneficiary under that trust shall be all monies owing to the Vendor including but not limited to the balance of the Purchase Price, and any interest calculated pursuant to clause 5.3 and costs occasioned by the Purchaser’s default. The balance of the proceeds (if any) shall be the Purchaser's beneficial interest under that trust.
7.1 The parties acknowledge that a security interest (as that term is defined in the PPSA) in the Product (and any repairs or additions to the Product contemplated in clause 6.4) arises under the Contract in favour of the Vendor (“Security Interest”).
7.2 The Purchaser acknowledges and agrees that the Vendor is entitled to register a financing statement on the Personal Property Securities Register against the Purchaser and the Products in accordance with the PPSA.
7.3 The Purchaser:
(a) must promptly do anything the Vendor requires to ensure that the Security Interest is a perfected security interest and has priority over all other security interests;
(b) undertakes not to register a financing change statement or make an amendment demand pursuant to section 178 of the PPSA in respect of the Vendor’s registration;
(c) agrees that the following provisions of the PPSA will not apply and the Purchaser will have no rights under them: section 95 (to the extent that it requires the secured party to give notices to the grantor); section 121(4); section 125; sections 129(2) and (3); section 132; section 142 and section 143;
(d) agrees to keep all information of the kind mentioned in section 275(1) of the PPSA confidential and will not authorise the disclosure of such information except in accordance with section 275(7);
(e) waives its right under section 157 of the PPSA to receive notice of any verification statement relating to the registration of any financing statement or any related financing change statement;
(f) agrees that the Vendor is required to give a notice under the PPSA only if the notice is obligatory and the giving of the notice cannot be excluded under the PPSA, and the Purchaser waives any rights to receive any notices unless they are required to be given and cannot be excluded; and
(g) agrees to notify the Vendor in writing of any change to the Purchaser’s details provided in the Order Form or otherwise previously provided to the Vendor.
8.1 Where the Trade-in forms the whole or part of the Deposit, ownership and title to the Trade- in passes immediately to the Vendor upon acceptance of the Contract.
8.2 All risk in the Trade-in shall not pass to the Vendor until actual delivery of the Trade-in to the Vendor.
8.3 If the Contract is validly cancelled by the Purchaser in accordance with clause 14 and a Trade-in has already been sold by the Vendor, the Vendor must refund to the Purchaser the cash equivalent of the value of the Trade-in as stated on the Order Form.
9.1 To the extent permitted by law, all guarantees, warranties, terms and conditions implied by law (including any warranties as to the suitability of the Products for the use to which they will be put) (“Implied Terms”) are excluded from the Contract.
9.2 To the extent permitted by law, the Purchaser agrees that it does not rely on the skill or judgment of the Vendor regarding the suitability of the Products for a particular purpose.
9.3 With respect to any Implied Term not permitted to be excluded by law, to the extent permitted by law, the liability of the Vendor shall be limited to, at the Vendor's option:
(a) the replacement of the Products or the supply of equivalent products;
(b) the repair of the Products;
(c) the payment of the costs of replacing the Products or of acquiring equivalent products; or
(d) the payment of the cost of having the Products repaired.
9.4 The Vendor shall be under no liability for any damage, injury, direct or consequential or other loss or loss of profits, income, goodwill or costs, charges and expenses on the part of the Purchaser.
9.5 Where the Purchaser requests that the Vendor make a modification to a Product, the Purchaser accepts that once the modification is made, the Purchaser cannot rely on any manufacturer warranties.
9.6 To the extent permitted by law, the Vendor is not liable for any defects to the Products as a result of any modifications made to the Products.
9.7 For any second-hand or used Products sold, except to the extent that a manufacturer’s warranty applies, all used and second-hand Products are sold on as “as is where is” basis with all existing or future inadequacies, faults or defects, if any, and whether they are known or unknown. The Vendor does not warrant the second-hand or used Products are fit for any purpose or free from any defects and does not warrant the accuracy of any service or repair history, meter or hour readings and to the extent permitted by law, the Purchaser releases the Vendor from all liability arising or in connection with any defects, faults or inadequacies in the Products and any warranty under these Terms or at law excludes liability for costs other than what is reasonable or customary to rectify and does not include costs for time or labour, testing, travel or freight or packaging and handling.
10.1 The Purchaser must keep the Products insured against all risk for goods of that kind, from the time the risk in the Products passes to the Purchaser, until the time the title in the Products passes to the Purchaser and shall provide details of such insurance to the Vendor upon demand.
10.2 The Purchaser holds the proceeds of that insurance on trust for the Vendor up to the total amount owing in respect of the Products and the Purchaser must keep such proceeds in a separate account until the liability to the Vendor is discharged.
10.3 If the Purchaser does not insure the Products or fails to supply details of its insurance policy as required under this clause, the Purchaser shall reimburse the Vendor for the cost of any insurance the Vendor may reasonably arrange in respect of the Products supplied to the Purchaser.
11.1 Except those guarantees provided under the Australian Consumer Law, the Vendor provides no warranties in relation to new or used Products.
11.2 Subject to clause 11.3, if the Products being purchased are new Products, the Purchaser may rely on the manufacturer’s warranties, if any, set out in the enclosed manufacturer’s document.
11.3 Although the Vendor may in some instances be engaged by the manufacturer as the authorised dealer to fulfill the manufacturer’s warranties, the Purchaser acknowledges that the Vendor provides no warranties in its own capacity and agrees not to hold the Vendor liable for any failure to fulfill the manufacturer’s warranties.
11.4 The Purchaser acknowledges that it has been brought to the Purchaser's attention that:
(a) the respective manufacturers have branches, franchise dealers and distributors for the sale of service parts and the provision of service to owners of the manufacturers' products. While the manufacturers endeavour to ensure that such branches, dealers and distributors carry adequate stocks of service, to the extent permitted by law, neither the Vendor nor the manufacturers promise that such parts or service facilities shall be available or available at any specific location or at any particular time; and
(b) to the extent permitted by law, the Vendor does not warrant that suitable facilities for the repair of the Products or that spare parts for the Products shall be available in the case of Products not manufactured by the manufacturers.
11.5 The Vendor agrees to use all reasonable endeavours to assign all warranties provided by third parties in performing any modifications to the Products that are sold to the Purchaser.
12.1 The person signing the Order Form on behalf of the Purchaser warrants to the Vendor that he or she has the authority to sign the Order Form for and on behalf of the Purchaser, and the person signing the Order Form guarantees the Purchaser’s performance of any resulting contract between the Vendor and Purchaser, and indemnifies the Vendor against any losses arising from a breach of this clause.
12.2 The Purchaser warrants that at the time of delivering a Trade-in vehicle to the Vendor, the Trade-in vehicle is in the same condition as it was when it was valued by the Vendor for the purpose of this Contract.
13.1 The Purchaser will be in breach of the Contract if the Purchaser:
(a) refuses or fails to take delivery of the Products; or
(b) refuses or fails to pay the balance of the Purchaser Price when due.
13.2 If the Purchaser is in default under clause 13.1 above, the Vendor may (without prejudice to any other rights at law or in equity) enforce the Security Interest, and notwithstanding that title in the Products has not passed to the Purchaser, sue for and recover the balance of the Purchase Price, together with any loss of profits and all expenses and costs incurred as a consequence of the Purchaser's default, and retain possession of the Products until such time as the balance of the Purchase Price has been recovered by the Vendor.
14.1 Where the wholesale price of the Product increases by more than 10% and this is reflected in the Purchase Price, the Vendor shall notify the Purchaser of the increase and the Purchaser may, within 14 days of that notification, cancel the Contract.
14.2 The Purchaser or the Vendor may cancel the Contract if the Vendor fails to deliver the Products to the Purchaser within the period of 90 days from the Delivery Date.
14.3 The Vendor may in its sole discretion cancel the Contract at any time before Products delivered to and received by the Purchaser by giving written notice to the Purchaser and upon giving such notice shall not be liable for any loss or damage arising whatsoever from such cancellation.
14.4 If the Contract is cancelled in accordance with this clause, the Vendor shall repay any Deposit that has been received by the Purchaser in respect of the Products to the Purchaser, less the amount of all administrative and other expenses incurred by the Vendor in relation to the Contract up to and including the date of the cancellation of the Contract.
15.1 The Vendor is not liable for failure to perform the Contract during the time and to the extent that such performance is prevented, wholly or substantially by Force Majeure.
15.2 The Vendor may cancel the Contract by written notice to the Purchaser if the event of Force Majeure has continued for more than 60 days. The Vendor is not liable to the Purchaser for any loss or damage suffered by the Purchaser as a result of the Force Majeure or the Vendor's cancellation of the Contract under this clause.
16.1 If the Vendor exercises or fails to exercise any right or remedy available to it, this shall not prejudice the Vendor's rights in exercising that or any other right or remedy under the Contract.
16.2 Waiver of any term of these Terms must be specified in writing and signed by an authorised officer of the Vendor.
The Vendor is entitled at any time to assign to any other person either or both of the Contract and all or any part of any debt owing by the Purchaser to the Vendor.
The Vendor reserves the right to review and vary any of these Terms at any time and from to time. If, following any such review, there is a variation to these Terms, that variation will take effect from the date on which the Vendor gives notice to the Purchaser of such variation.
If the Purchaser is the trustee of a trust, the Purchaser warrants that it has full power and authority to enter into the Contract and that these Terms will bind the Purchaser personally and as trustee, irrespective of whether or not it discloses to the Vendor that it is the trustee at the time of entering into the Contract or any other agreement with the Vendor. The Purchaser agrees to provide a stamped copy of its trust deed (with all amendments) of and when requested by the Vendor.
If any part of the Contract is held by any Court to be illegal, void or unenforceable, such determination shall not impair the enforceability of the remaining parts of the Contract.
The rights, powers and remedies provided for in the Contract are in addition to, and do not limit or exclude (or otherwise adversely affect) any right, power or remedy provided to the Vendor by law.
These Terms are governed by and construed in accordance with the laws of Western Australia, and the parties hereby submit to the non-exclusive jurisdiction of the Courts of Western Australia.
23.1 Notices to be given by the Purchaser to the Vendor may be delivered personally, sent by post, email or facsimile to the Vendor's address as notified to the Purchaser from time to time, and such notices shall be deemed to be delivered if posted, on the third business day following posting of the notice, if delivered personally, when received by the Vendor at the notified address
23.2 Notices to be given by the Vendor to the Purchaser (including invoices) may be delivered personally or sent by post, email or by facsimile to the last known address or facsimile number of the Purchaser, and notices sent by post shall be deemed to be delivered on the second Business Day following posting, if delivered personally, when received by the Purchaser at the notified address, if emailed, when the sender receives an automated message confirming delivery, or 30 minutes after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered and if sent by facsimile, on the Business Day it was sent, provided a transmission confirmation receipt has been received by the Vendor.
24.1 The Purchaser shall pay any costs and expenses payable under these Terms or in connection with the Contract.
24.2 The Purchaser will pay all Duty that may be payable in respect of the Contract.
In these Terms: