The Company hereby agrees with the Customer (‘the Customer’) that unless expressly amended in writing by the Company these General Terms and Conditions (‘GT&C’) comprise the sole terms and conditions of the contract between the Company and the Customer (‘the Contract’) and shall without further notice apply to all future transactions between the Company and the Customer whether or not these GT&C are delivered or executed in the course of such transactions.
In these terms and conditions of trade the following meanings apply:
‘Company’ means TIMBREN DISTRIBUTORS AUSTRALIA PTY LTD ABN No. 20 315 405 917 trading as Suspension Enhancements and/or Timbren Distributors Australia Pty Ltd.
‘Customer’ means the person described as such in the invoice of the Company or any party to whom the Company supplies goods and/or services. If the Customer is a company, the directors of the Customer acknowledge that they will be personally liable for any breach by the Customer of the contract or for non-payment of invoices by the Customer. ‘Customer’ shall also mean ‘grantor’ as defined under the Personal Property Securities Act 2009.
’PPSA’ means the Personal Property Securities Act 2009.
‘Price’ means the price specified in the invoice of the Company.
- QUOTATIONS, OFFERS and ESTIMATES
1.1 Offers, estimates or quotations given by the Company are subject to the following terms except where otherwise stated.
1.2 All quotations by the Company (a) will not bind the Company or form part of the Contract unless given or subsequently confirmed in writing by the Company and accepted by the Customer by way of placing an order, (b) shall be valid for thirty (30) calendar days after which date they are subject to alteration or withdrawal without notice by the Company and may be subject to alteration at any time prior to the Company accepting an order from a Customer.
1.3 1.3.1 All orders must be in writing and must be signed by the person placing the order on behalf of the Customer. An email will be accepted as signed and Orders cannot be cancelled or varied without the Company’s written consent and only on the basis that the Customer meets all loss and expenses incurred by the Company due to the cancellation of the order.
1.3.2 The Company reserves the right to cease or suspend supply or to terminate Customer accounts at its discretion.
All prices are expressed in Australian currency and exclude GST and also exclude the cost of delivery and/or insurance. Prices are subject to change without prior notice. Notwithstanding that an order is placed under a valid and binding quotation, the Company reserves the right prior to acceptance of such order and with notice to the Customer to add to the quoted price any additional cost incurred by the Company as a result of any agreed change to order quantities, any relevant increase in currency exchange rates, costs of labour, parts, materials.
- TERMS OF PAYMENT
3.1 Payment of accounts is required within 30 days of the end of the month appearing on the invoice. If the Customer fails to make a payment by the Due Date, the Company may charge interest on the overdue account at the rate of 1.5% per month until paid in full and will refuse to make any further deliveries under the Contract until the amount due has been paid.
3.2 The Company may allocate all amounts received from the Customer in any manner it determines including any manner required to preserve any personal property security interest in the Goods.
3.3 Unless credit facilities have prior approval good’s will be supplied on a prepaid cleared funds basis before delivery will be made to the Customer. The Company reserves the right to withdraw supply granted to the Customer at its discretion.
3.4 The Customer agrees that the Company has the right to make any enquiries to any Agency to ascertain the credit worthiness and financial responsibility of the Customer with respect to payment of accounts.
3.5 The Customer must pay to the Company all recovery costs including bank fees, dishonour fees, debt recovery costs including all legal costs, disbursements, Court fees and other charges incurred by the Company in the recovery of any amounts due by the Customer to the Company.
3.6 If the Customer becomes insolvent or under administration pursuant to any of the provisions of the Corporation Law, all amounts then owing by the Customer to the Company, whether or not those amounts are then due and payable shall immediately become due and payable to the Company.
- RETURNS & CLAIMS FOR DEFECTIVE GOODS OR SHORTFALL IN DELIVERY.
4.1 The Company may at its discretion accept the return of the goods where acknowledged by the Company to be faulty or defective or not in accordance with the Customer’s order and
(i) The Customer pre-pays the freight costs for such goods.
(ii) All goods returned must be in original condition, packaging and undamaged (except for of any fault or defect alleged by the Customer in respect of the Goods not caused by the Customer).
4.2 The Customer must provide us with any extra information the Company may need to process the return and the Customer must comply with the warranty procedure as determined by the Company from time to time.
4.3 All claims for defective Goods are to be notified to the Company within 48 hours of receipt of goods or installation of the goods, whichever is the earlier date. Failure to do so shall result in the loss of any rights the Customer may have against the Company except where the Customer is a consumer as defined under Australian Consumer Law.
4.4 Subject to clause 4.1 herein, except where the Customer is a consumer as that term is defined in the Australian Consumer Law, the Goods shall be deemed in all respects to have complied with the order of the Customer.
4.5 The Company will not accept any discrepancy in orders unless the Customer makes a written claim to the Company by email within two (2) working days of delivery.
- PERSONAL PROPERTY SECURITIES ACT 2009 (C’WEALTH)
5.1 The Customer acknowledges granting the Company a security interest in all present and after acquired goods supplied by the Company to secure all moneys owing to the Company now and in the future in respect of the supply of goods and that this Contract constitutes a security agreement.
5.2 The Customer must immediately notify the Company in writing of any changes in the Customer’s name and/or any other change in the Customer’s details (including, but not limited to, changes in Ownership, business or personal address, trading name or business practices).
5.3 The Customer agrees the Company may register a financing statement on the Personal Property Security Register (‘PPSR”). The Customer agrees to do all things necessary and execute all documents the Company requires to perfect a first ranking security interest in the goods including registering a statement of the PPSR.
5.4 The Customer waives its right to receive a verification statement in respect of any financing statement and agree to the extent permitted by law that:
5.4.1 where the Company has rights in addition to, or existing separately from those in Chapter 4 of the PPSA, those rights will continues to apply and in particular, will not be limited by Part 4 3 in Chapter 4: and
5.4.2 The rights of the Customer as debtor under Sections 130, 132, 135 and 137 of the PPSA shall not apply to terms and conditions.
- EXPRESS WARRANTIES
6.1 This Clause 6 does not apply to a consumer as defined under Australian Consumer Law.
6.2 Any advice, recommendation, information, assistance or service provided by the company in relation to the goods or their use or application is given in good faith, is believed by the Company to be reliable but is provided with a disclaimer for any liability or responsibility on the part of the Company.
6.3 All warranties, guarantees and conditions, other than those expressly stated in the Contract, and where implied by statute, common law, and consumer law of the trade or otherwise are to be the extent that the law permits, expressly excluded.
6.4 Any warranty against defects (as this term is defined under the Australian Consumer Law) which is offered by the Company to a Consumer will be provided in the Goods warranty (if any) separately supplied with the Goods or on our website, which is in addition to (and not in limitation of) any rights a Consumer may have under the Australian Consumer Law.
- INDEMNITY AND EXCLUSION OF LIABILTY
7.1 Except only for those rights and remedies that the Customer has in respect of the Goods and services under the Australian Consumer Law which cannot lawfully be excluded, restricted or modified, all warranties, conditions and guarantees, whether statutory or otherwise, are excluded in relation to the Goods and services sold by the Company.
7.2 The Company’s liability to the Customer in respect of all claims, actions, demands, proceedings, liabilities, damages, amounts, costs and expenses arising, paid, suffered or incurred by the Customer (directly or indirectly)as a result of or in connection with a negligent act or omission of the Company, any breach or non-performance of any express or implied obligation of the Company under these Terms or in any way related to the Goods or services or information or advice supplied in respect of the Goods and services shall be limited, at the Company’s option, in the case of the Goods (or parts thereof) to the repair or replacement of the Goods (or the parts) or the supply of equivalent Goods (or parts) or the payment of the cost of having the Goods (or parts) repaired or replaced or having equivalent Goods (or parts) supplied in the case of services to supply the services again or payment of the cost of having the services supplied again.
The Company will make reasonable efforts to have the goods delivered to the Customer on the date(s) agreed between the parties as the delivery date(s) but the Company shall be under no liability whatsoever should delivery not be made on the date(s) agreed or by the period stated. Any delivery date specified is an estimate only.
9.1 Title and Property in the goods remains with the Company until paid for in full by way of cleared funds together with any other sums outstanding by the Customer to the Company, and the Customer agrees to hold the goods as Bailee for the Company. If the goods are on-sold by the Customer, the Customer acknowledges that such sale by the Customer is as Bailee and the Customer agrees to hold such proceeds on trust for the Company until payment in full for the goods.
9.2 The Company may at any time terminate any contract relating to the goods and the bailment without notice to the Customer and may thereupon take possession of the goods by entering any premises occupied by the Customer.
- DELIVERY OF THE GOODS
10.1 In the Customer is unable to accept delivery of the goods the Company may deliver the goods to a place of storage nominated by the Customer and failing such nomination to a place determined by the Company. Such delivery shall be deemed to be delivery of the goods to the Customer at the agreed place of destination. The Customer shall be liable for all costs incurred by the Company due to storage detention, double cartage or similar causes if these costs are caused by the Customer’s inability or failure to accept delivery of the goods when delivered or ready for delivery by the Company.
10.2 If the company fails to deliver by reason of any circumstances beyond the control of the Company, the Company may at its option cancel any order or extend the time for completion of the order and the Company shall not be liable for the delay in delivery.
- RISK AND INSURANCE
11.1 All risk in the goods (including consigned goods) shall pass to the Customer upon shipping to the Customers nominated address notwithstanding that delivery may not be complete or that the Customer has not signed a receipt for the goods.
11.2 Risk in the goods passes from the Company to the Customer on shipping and the Customer may in its discretion arrange for such insurance as it considers appropriate including insurance to cover damage occasioned during delivery of the goods.
- AMENDMENTS & ASSIGNMENT
This agreement shall not be varied without the Company’s written consent. The Customer may not assign any agreement under these terms and conditions without the approval of the Company.
- LAW OF THE CONTRACT
The Contract is to be interpreted according to the laws of the State of Victoria and the parties subject to the exclusive jurisdiction of the Court to hear and determine all disputes of and incidental to the sale and these Conditions.
The Company may terminate this Agreement at its discretion upon the giving of 7 days’ notice to the Customer without affording a reason. The Company will not be liable for any loss or damages resulting from such cancellation or suspension.