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Terms and Conditions
1. APPLICATION
1.1. These Terms govern the supply of any Goods by PAT to the
Customer from time to time.
1.2. The Customer shall be deemed to accept these Terms for the
purposes of any Order upon a copy of these Terms being sent
or
delivered by or on behalf of PAT to the Customer and the Customer
subsequently placing an Order with PAT for the
Goods.
1.3. Any condition contained in any document (including any order form)
created or issued by the Customer (whether in
response to these
Terms or otherwise) does not bind PAT and the Customer
acknowledges that in the absence of a variation in
writing of these
Terms agreed to by PAT, the Customer will be bound by these Terms.
2. ORDERS
2.1. Each Order constitutes an offer by the Customer to PAT to purchase
Goods and is subject to acceptance by PAT. Any
Order accepted by
PAT shall constitute a binding agreement between the Customer and
PAT on these Terms.
2.2. The Customer is solely responsible for determining that the ordered
Goods are suitable for the purpose for which the Goods
are
purchased.
3. TERMS OF PAYMENT
3.1. Prices quoted are subject to variation without notice.
3.2. Unless otherwise agreed between the parties, PAT shall issue an
invoice to the Customer ("Invoice") upon delivery of any
Goods
ordered by the Customer or at such other time as PAT determines.
3.3. The Customer shall pay the price specified in all Invoices ("the Price")
(without set off, deduction or counterclaim) by the
date specified in the
Invoice, or if no date is specified, 30 days from the end of
the month in
which the Goods are supplied
("the Due Date") using a method of
payment approved by PAT from time to time.
4. VARIATION OR CANCELLATION BY CUSTOMER
4.1. The Customer shall not vary or cancel an Order, without the prior
written consent of PAT.
4.2. If PAT does elect to accept variations to the Order, the Customer shall
pay for any variations to the Order at rates specified
by PAT which
shall be in addition to the Price.
5. CANCELLATION OF ORDER BY PAT
5.1. PAT may at its sole and absolute discretion and for any reason
whatsoever, by written notice to the Customer, cancel an
Order at any
time prior to delivery of the Goods. The Customer acknowledges that
without limiting the foregoing, PAT may
cancel an Order due to its
inability to supply Goods including, without limitation, failure by its
suppliers to provide any part
of the Goods.
5.2. Upon cancellation of an Order pursuant to clause 5.1 and subject to
the Customer having complied with its obligations under
these Terms,
PAT will refund to the Customer in full all amounts paid by the
Customer prior to such cancellation.
6. AVAILABILITY OF GOODS
If Goods ordered by the Customer are not available at the time of
Order they will be supplied by PAT when available, and PAT shall not
be liable to the Customer to make good any loss or damage sustained
by or incurred by the Customer or any other party, whether arising
directly or indirectly as a result of any ensuing delay in delivery.
7. DELIVERY OF GOODS
7.1. The Customer acknowledges that any provisional Delivery Date
specified by PAT at the time of Order is an estimate only
and should
PAT be unable to deliver the Goods by that date then:
(i) delivery of the Goods shall be extended by any amount of time
deemed necessary by PAT; and
(ii) PAT may at its sole discretion cancel any Order, in which case
any amounts paid to PAT by the Customer shall be
refunded.
7.2. Goods are deemed delivered in accordance with the requirements of
an Order unless, within seven (7) days following the
Delivery Date,
the Customer notifies PAT and the Carrier of any non-delivery, defect,
shortage in quantity, damage or failure
to comply with the Order
("Deficiency") and the Carrier's delivery document specifies full
particulars of the alleged
Deficiency.
7.3. Where PAT notifies the Customer that Goods have been dispatched
for delivery but the Goods do not arrive at the
Customer's delivery
address, the Customer must notify PAT and the Carrier in writing
within 21 days of the estimated
Delivery Date.
7.4. PAT accepts no liability for Goods that are damaged or lost in transit
by the Carrier and the Customer is responsible for
filing and
negotiating any claims against the Carrier.
7.5. The Customer shall be responsible for insuring the Goods from the
earlier of the Delivery Date or from the time that they are
provided to a
Carrier for subsequent delivery to the Customer.
8. RETURN OF GOODS
8.1. Goods ordered by the Customer may not be returned for credit,
exchange or refund except with the prior written consent of
PAT,
which may be withheld in its sole discretion.
8.2. If PAT agrees to any return of the Goods, then the Goods will only be
accepted by PAT if they are unused and returned in
their original
packaging by PAT's nominated Carrier, at the Customer's expense
and risk, in a saleable condition, and
received within 7 days following
the date that PAT communicated its agreement to accept such return.
8.3. In the event that PAT deems, in it sole discretion, that any returned
Goods are received by PAT in an un-saleable condition,
the Customer
must pay, in addition to any fees payable pursuant to clause 8.4, a
repackaging fee equal to 10% of the Price
of the returned Goods,
which PAT may subtract from any refund or credit paid to the
Customer.
8.4. Unless otherwise agreed by PAT in writing, any returned Goods which
are received by PAT more than 30 days following the
Delivery Date
will be subject to a handling charge equal to 10% of the Price of the
returned Goods, which PAT may subtract
from any refund or credit
paid to the Customer.
8.5. Goods may not be returned more than 90 days following the Delivery
Date without PAT's prior written approval.
9. APPLICATION OF PAYMENTS
9.1. Any payments made by the Customer to PAT shall be applied first as
reimbursement for any sums payable under clause
10.1(ii), secondly
in payment of sums payable under clause 10.1(i) and thirdly in
satisfaction or part satisfaction of the
oldest portion of the Customer's
account.
9.2. Any payments due by PAT to the Customer, whether arising by virtue
of refund under clause 5.2, 7.1(ii), 8.1 or otherwise,
may be paid in
whole or in part by way of set off against any amounts payable by the
Customer to PAT, irrespective of
whether such amounts have
become due for payment.
10. DEFAULT BY THE CUSTOMER & INSOLVENCY EVENTS
10.1. If the Customer defaults in the payment of any sum of money due to
PAT, breaches these Terms or an Insolvency Event
occurs in respect
of the Customer:
(i) where money is owed to PAT, the Customer must pay to PAT
interest at the rate of 12.5% per annum, calculated
daily from the
Delivery Date of Goods referred to in an Invoice until the date of
payment in full of the Invoice amount;
(ii) the Customer must pay or reimburse PAT for all collection agency
costs incurred by PAT, legal costs incurred by
PAT calculated on
a solicitor and own client basis and any other administrative costs
incurred by PAT arising
directly or indirectly from such default;
(iii) PAT may cancel any Orders in existence or suspend all further
deliveries of Goods to the Customer (without
prejudice to any other rights or remedies of PAT and without any liability to the
Customer) until any and all
outstanding amounts are paid in full,
including any interest or other sums payable under this clause;
(iv) the whole sum then owing by the Customer to PAT for all Goods
sold by PAT to the Customer, shall immediately
become due and
payable and the Customer shall not thereafter be entitled to
purchase Goods on credit from PAT
unless PAT has agreed to
same in writing, in which case, unless a contrary intention is
shown in such agreement,
the payment obligations contained
herein shall apply; and
(v) PAT may, in its sole discretion, exercise its rights under clause
11.3.
11. RETENTION OF TITLE
11.1. Notwithstanding that the Customer has possession of the Goods,
property in, and ownership of the Goods remains with
PAT and no
legal or equitable interest or property in the Goods whatsoever shall
pass to or vest in the Customer until the
full amount due for the Goods
and all other Goods supplied by PAT to the Customer (including any
additional amounts
payable by the Customer pursuant to these Terms
has been paid to PAT by the Customer.
11.2. Until property passes to the Customer:
(i) the Customer holds the Goods as fiduciary and bailee for PAT;
(ii) the Goods must be stored separately and in a manner that
enables them to be identified and cross-referenced to
particular
Invoices;
(iii) PAT, its employees or agents, are entitled to enter the Customer's
premises between 9.00am and 5.00pm on any
business day to
inspect the Goods;
(iv) unless otherwise notified in writing by PAT the Customer is
authorised to sell the Goods in the ordinary course of
the
Customer's business; and
(v) the proceeds of the Goods sold by the Customer are to be held in
trust for PAT and must be paid immediately into
a separate
account and must not be mixed with any other money, including
funds of the Customer.
11.3. In the event that the Customer is in default of its obligations under
these Terms, any Order or any other agreement that
exists between
the Customer and PAT, the Customer must at its sole expense,
deliver the Goods to PAT on demand. If
the Customer does not
comply with such a demand, the Customer authorises PAT to enter
the Customer's premises at
any time to do all things necessary in
order to take possession of the Goods. For this purpose the Customer
must procure
the consent of all other persons having any interest in
the premises where the Goods are situated to entry of those
premises
by PAT, its employees or agents and the Customer indemnifies PAT
against any claim, loss, liability, cost and
expense that may be
incurred or sustained by PAT, its employees or agents, as a result of
the entry of those premises
where the Goods are situated.
11.4. The Customer's right to hold and sell the Goods will immediately
cease if an Insolvency Event occurs in respect of the
Customer. In
any such case, and without the need for notice or demand by PAT,
the Customer acknowledges any sale or
purported sale of the Goods
will not be in the ordinary course of the Customer's business and the
proceeds of any Goods
sold in such circumstances will be held on
trust for PAT by the administrator, controller or similar officer as the
case may
be, or if there is no such officer, by the Customer.
11.5. The Customer acknowledges that PAT has a 'Security Interest' (as
that term is defined in the Personal Property Securities
(PPS) Act
2009) in all Goods and services supplied pursuant to these Terms
and the Customer shall , if required by PAT,
assist PAT in any way
necessary to ensure that the Security Interest becomes a 'Perfected
Security Interest' as that term
is defined in the PPS Act.
12. GST
12.1. Unless otherwise expressed to the contrary, all prices and amounts
are expressed to be exclusive of goods and services
tax ("GST").
12.2. If GST is payable by PAT on the supply of goods or services to the
Customer, the Customer must also pay to PAT at the
same time the
amount is payable GST, and all other applicable taxes, duties, levies,
penalties and any other government
charges payable in relation to the
supply of goods or services (which have not been included in the
price) on demand by
PAT, subject to PAT providing the Customer
with a tax invoice required by law.
13. PRODUCT WARRANTY
If the Customer notifies PAT of any defect or failure in the Goods
within twelve (12) months of the Delivery Date, PAT may elect, in its
sole discretion, to either resupply the Goods or repair the original
Goods at no cost to the Customer, provided that PAT and the relevant
supplier are satisfied, in their sole discretion, that the defect or failure
is due solely to faulty workmanship or the use of faulty materials and
that the Goods have not been subject to maltreatment, inattention,
interference or other improper use by the Customer or any third party.
14. PRIVACY AUTHORITY
The Customer irrevocably authorises PAT, its employees and agents
to make such enquiries as it deems necessary to investigate the credit
worthiness of the Customer from time to time including (but without
limiting the generality of the foregoing) the making of enquiries of
persons nominated as trade referees, the bankers of the Customer or
any other credit providers and the Customer hereby authorises such
information sources to disclose to PAT any information concerning the
Customer which is within their possession and which is requested by
PAT. The Customer agrees that, subject to the terms of the Privacy
Act 1988 (Cth), PAT may in its absolute discretion disclose the status
of the Customer's account to any person or corporation.
15. FORCE MAJEURE
The obligations of PAT shall be suspended during the time and to the
extent that PAT is prevented from or delayed in complying with its
obligations by circumstances beyond the control of PAT which occur
without default or negligence of PAT and include inevitable accident,
storm, flood, fire, earthquake, explosion, peril of navigation, hostility,
war (declared or undeclared), insurrection, strike, lockout or other
labour difficulty, executive or administrative order or act either general
or of particular application of any government whether de jure or de
facto or of any official purporting to act under the authority of that
government, prohibition or restriction by domestic or foreign laws
regulations or policies, quarantine or customs restriction, breakdown
or damage to or confiscation of property.
16. INTELLECTUAL PROPERTY
16.1. The Customer acknowledges and agrees that under no
circumstances will it take any interest in PAT's Intellectual
Property
Rights, and PAT reserves all of its rights in respect of its Intellectual
Property Rights.
16.2. All drawings, specifications, photographs, schedules and other
documents prepared by or on behalf of PAT shall remain
the sole
property of PAT. No copies or amendments may be made or extracts
taken without PAT's prior written consent.
17. ERRORS IN PAT DOCUMENTS
Typographical and clerical errors in PAT's documents shall be subject
to correction by PAT by means of reissue of the document withreference to the original document or by amending the original
document. The Customer shall not be entitled to a reduction or
variation in the Price of the Goods or the Customer's obligations
under these Terms by reason of such an error.
18. EXCLUSION OF IMPLIED CONDITIONS AND WARRANTIES
18.1. The parties acknowledge that, under applicable State and
Commonwealth law, certain clauses, conditions, guarantees and
warranties may be implied in these Terms and there are rights and
remedies conferred on the Customer in relation to the
provision of
goods or of services which cannot be excluded, restricted or modified
by agreement ("Non-excludable Rights").
These Terms are subject
to the Non-excludable Rights.
18.2. Except to the extent of Non-excludable Rights, PAT will not be liable
for:
(i) any claim by the Customer or any other person, including without
limitation, any claim relating to or arising from all
clauses,
conditions, guarantees and warranties expressed or implied, and
all rights and remedies conferred on the
Customer, by statute, the
common law, equity, trade, custom or usage or otherwise; and
(ii) any representations, warranties, conditions or agreement made
by any agent or representative which are not expressly
confirmed
by PAT in writing,
and the liability of PAT for any such matters is hereby excluded.
18.3. Where (and to the extent) that the liability of PAT for a breach of a
Non-Excludable Right can be limited by law, PAT's
liability is limited,
at PAT's election, to the replacement of the Goods, the supply of
equivalent Goods, the repair of the
Goods, the payment of the cost of
replacing the Goods or of acquiring equivalent Goods or the payment
of the cost of
having the Goods repaired, at the election of PAT.
18.4. Notwithstanding any other provision in these Terms, PAT is in no
circumstance (whatever the cause) liable in contract, tort
(including,
without limitation, negligence or breach of statutory duty) or otherwise
to compensate any person for any loss or
damage consequential or
otherwise, whatsoever and howsoever suffered or incurred, by any
such person in relation to the
Goods, including without limitation, any
failure, defect or deficiency of whatsoever nature or kind of or in the
Goods, any
product data, specifications, drawings, design details or
performance figures contained in documents produced by PAT or
any
third party or any advice given by PAT or its employees, servants or
agents.
18.5. To the full extent permitted by law, PAT's liability to the Customer for
all claims made by the Customer, in relation to a
breach of these
Terms or otherwise, whether arising under contract, negligence or any
other tort, under statute or
otherwise, will not exceed in aggregate the
amounts paid by the Customer under these Terms.
19. MISCELLANEOUS
19.1. These Terms contain the entire agreement between the parties about
its subject matter. Any previous understanding,
agreement,
representation or warranty relating to that subject matter is replaced
by these Terms and has no further effect.
19.2. PAT may vary these Terms from time to time in its sole discretion by
publishing such amended Terms on the Website.
Any variation of
these Terms will be effective, whether or not notified to the Customer,
from the effective date specified on
the Website.
19.3. These Terms are governed by and must be construed in accordance
with the laws of the State of Victoria. The parties
submit to the
exclusive jurisdiction of the Courts of that State and the
Commonwealth of Australia in respect of all matters
or things arising
out of these Terms.
20. INTERPRETATION
20.1. Definitions:
(i) "Carrier" means the delivery agent that PAT nominates to deliver
Goods pursuant to an Order;
(ii) "Customer" means the person, firm, corporation or entity, which
purchases or orders Goods from PAT from time to
time and
includes legal representatives, agents, servants, contractors,
administrators, successors or permitted
assignees;
(iii) "Delivery Date" is the date on which the Goods are received or
due to be received by the Customer;
(iv) "Goods", unless the context requires otherwise, means the
products and, if any, services supplied by PAT to the
Customer
from time to time;
(v) "Insolvency Event" means:
(A) in the case of an individual, an application is made to a
court for a sequestration order against that person or the
person commits an act of bankruptcy or takes any steps to
obtain protection or is granted protection from that
person's
creditors under any applicable legislation;
(B) in either case a person or company entering into a
composition, assignment or arrangement with creditors; and
(C) in the case of a company, an application is made to a court
for an order or an order is made that the company be
wound up, an application is made to a court for an order
appointing a provisional liquidator or receiver of the
company, a meeting is convened or a resolution is passed
to appoint an administrator of the company, the
company
calls a meeting for the purpose of appointing a liquidator or
any of the events described in Sections
459C(2) (a) to (f) or
585 of the Corporations Act 2001 (Cth) occurs in relation to
the company,
(vi) "Intellectual Property Rights" means all intellectual property
rights of any kind whatsoever throughout the world
including all
rights which subsist in copyright, patents, trade marks or designs,
irrespective of whether such rights are
registered or capable of
being registered;
(vii) "Order" means any request for the supply of Goods to the
Customer or nominee of the Customer;
(viii) "PAT" means Premier Auto Trade Pty Ltd – ABN 92 141 626 664.
PAT includes its employees, agents, representatives, directors,
offices, services and contractors and permitted
assignees;
(ix) "Terms" means the agreement between the Customer and PAT
on the basis of the terms and conditions set out
herein; and
(x) "Website" means www.premierautotrade.com.au.
20.2. In the interpretation of these Terms, unless the contrary intention
appears:
(i) headings are for convenience only and do not affect the
interpretation of these Terms;
(ii) the words "includes" or "including" will not limit whatever follows;
(iii) a reference to a person includes a reference to a corporation,
firm, association or other entity, and vice versa; the
singular
includes the plural and vice versa; a reference to any gender
includes a reference to all other genders;
(iv) a reference to any legislation includes a reference to any
modification or re-enactment of that legislation; and
(v) where an expression is defined, another part of speech or
grammatical form of that expression has a corresponding
meaning.
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