| (1) | DEFINITIONS | ||
| (1.1) | “Seller” shall mean and include the persons named herein as the supplier of goods and or services and trading as Brake Parts Australia, its employees and agents. | ||
| (1.2) | “Purchaser” shall mean and include any individual and/or body corporate lawfully trading under such right, style or name and or their partner, employee, contractor or agent to whom the goods and or services are charged. | ||
| (1.3) | Any “Notice” required to be given in writing to the Purchaser shall be deemed duly given when posted to the last known address of any Purchaser. | ||
| (1.4) | “Order” shall mean any request made either by phone, fax, electronically or in person, by the Purchaser for goods and or services. | ||
| (1.5) | “Trading Agreement” shall mean a contractual agreement between the Purchaser and Seller regarding terms of payment for goods and services. | ||
| (2) | GENERAL | ||
| (2.1) | These Terms and Conditions replace all previous Terms and Conditions with the exception of those specific exclusions otherwise agreed to in writing by the Seller. | ||
| (2.2) | Any order or direction given by the Purchaser, verbal or otherwise, to procure goods or services from the Seller shall constitute the Purchasers acceptance of these terms and conditions herewith. | ||
| (2.3) | Any variation or cancellation of an order must be provided in writing to the Seller. | ||
| (2.4) | The purchaser waives any terms and condition which contradict the Terms and Conditions Herewith. | ||
| (2.5) | The Purchaser agrees that all contracts made with the Seller shall be deemed to be made in the State of Queensland and the Purchaser agrees that the courts of Queensland shall have exclusive jurisdiction to determine any dispute which may arise. | ||
| (2.6) | All sales are made at the Sellers ruling price at the time of invoice, unless otherwise agreed to in writing. | ||
| (2.7) | Unless withdraw earlier, a Quotation is valid for thirty (30) days and is in no way an obligation to sell goods to a Purchaser, but merely an invitation to treat and no contractual relationship shall arise until such time as a Purchase shall action the quotation with an official order. | ||
| (2.8) | The Seller shall in no way be bound by any conditions attached to a Purchaser’s order or acceptance of a quote. | ||
| (3) | LIABILITY | ||
| (3.1) | The Seller shall not be liable for any claim, loss or expense whatsoever or howsoever arising which is made after the expiration of three (3) days from the date of delivery. | ||
| (3.2) | The Seller will not be subject to any liability which exceeds the replacement value of the subject goods. The Seller will not be liable for any contingent, consequential or punitive damages arising in any way whatsoever. The Purchaser acknowledges this express limitation of liability and agrees to limit any claim accordingly. | ||
| (3.3) | The Seller will not be subject to any liability which exceeds the replacement value of the subject goods. The Seller will not be liable for any contingent, consequential or punitive damages arising in any way whatsoever. The Purchaser acknowledges this express limitation of liability and agrees to limit any claim accordingly. | ||
| (3.4) | The Purchaser acknowledges that in purchasing any goods from the Seller it shall rely upon its own skill and judgement and acknowledges that it has not relied or been induced by any representation of the Seller. The Purchaser also acknowledges that the Seller shall not be liable for any information, recommendation, or advice provided by the Seller as to the quality, performance, suitability or otherwise, in relation to the goods, which may be given to offer general assistance only and done so in good faith. The Seller disclaims any and all liability or responsibility for any loss or damage of any kind, arising form the reliance or use of the information and recommends the Purchaser seek specialist advice. | ||
| (4) | PAYMENT | ||
| (4.1) | All goods invoiced to a Purchaser must be paid for in full, in Australian dollars, either by cash or other means acceptable to the Seller: | ||
| 4.1.1 | Where the Purchaser has a current Trading Agreement, within thirty (30) days from the end of the calendar month in which goods where purchased, unless otherwise agreed to in writing, or, | ||
| 4.1.2 | Immediately. | ||
| (4.2) | Should the Purchaser fail to abide by the terms in clause 4.1 the Seller, in addition to all other remedies provided at law, shall be entitled to: | ||
| 4.2.1 | delay, withhold, or cease supply of further goods and or services until delinquent payments are made, | ||
| 4.2.2 | require cash payment upon delivery, or in advance of any further goods and or services, even after delinquency is cured, | ||
| 4.2.3 | charge default interest at the rate of 1.5% per month, calculated on a daily basis from the due date of payment on any unpaid monies, plus applicable storage, inventory handling and carrying charges, | ||
| 4.2.4 | charge all costs incurred by the Seller, including but not limited to legal, solicitors, and collection agencies fees and charges in the collection or attempted collection of monies owed, | ||
| 4.2.5 | require immediate payment of all monies owing, regardless of due date, | ||
| 4.2.6 | Combine any of the above rights and remedies as is practicable and permitted by law. | ||
| (5) | PROPERTY and RISK | ||
| (5.1) | All goods supplied remain the property of the Seller until any debt owed to the Seller is paid for in full. | ||
| (5.2) | All goods supplied are at the Purchaser’s risk upon delivery to the Purchaser, or a carrier nominated by the Purchaser. The Seller shall not be liable for any loss, damage, or deterioration of the goods. | ||
| (5.3) | The Purchaser may effect sale of the goods or part thereof in the usual course of business upon the following conditions: | ||
| 5.3.1 | the Purchaser holds all proceeds of sale relating to the Seller’s goods on trust for the Seller; | ||
| 5.3.2 | the Purchaser agrees to adding to the Seller any rights to any outstanding monies relating to the sale or disposal of the Sellers goods; | ||
| 5.3.3 | The Purchaser hereby irrevocably nominates and appoints the Seller to be the true and lawful attorney of the Purchaser to act at any time after the Purchaser may breach these Terms and Conditions (a statutory declaration by an officer of the Seller being sufficient proof) to execute and sign an assignment of debts to the Seller and for this purpose use the name of the Purchaser and generally to do, execute and perform any act, deed, matter or thing relative to giving effect clause 5 hereof and the Purchaser hereby covenants to ratify and confirm all and whatsoever the said attorney shall lawfully do or cause to be done with respect of any such assignment of debts. | ||
| (5.4) | The Purchaser irrevocably authorises the Seller to, at any time and without notice enter upon any premises where goods supplied to the Purchaser are situated, or where the Seller believes such goods to be situated, to take possession of and to remove any goods for which full payment had not been made by the due date. All costs incurred by the Seller in taking action pursuant to this clause shall be paid by the Purchaser on demand and the Purchaser agrees to indemnify the Seller in respect to any or all claims which may be made against the Seller by any third party in respect of any action taken by the Seller pursuant to this clause. | ||
| (5.5) | The Purchaser shall pay the Seller upon demand all costs incurred by the Seller, including legal costs on a solicitor and own client basis, in the enforcement or attempted enforcement of these Terms and Conditions. | ||
| (6) | DELIVERY | ||
| (6.1) | The Purchaser shall be responsible for all costs associated with any delivery. If the Purchaser requests the Seller to arrange for the delivery of any goods, the Purchaser shall pay all delivery charges stipulated by the Seller. The Seller shall in all cases be entitled to choose the method of transport. | ||
| (6.2) | The Purchaser shall examine the goods immediately upon delivery to ensure the goods are of the correct description, quality and quantity as ordered. The Purchaser shall be deemed to have accepted all products invoiced in the event such as notification is not received by the Seller within forty eight (48) hours of delivery and written notification is not received by the Seller within seven (7) days of delivery. | ||
| (6.3) | The Seller may split the delivery of, delay, suspend or cancel the sale of any goods at its discretion without any penalty or liability whatsoever. | ||
| (7) | DEPOSITS (CORE), RETURNS and WARRANTIES | ||
| (7.1) | The Seller warrants it goods to be free from defects in material and workmanship during the applicable product warranty coverage period as published and revised by the Seller from time to time, but limits it’s obligations to replacing the defective parts only. | ||
| (7.2) | The Seller warrants it goods to be free from defects in material and workmanship during the applicable product warranty coverage period as published and revised by the Seller from time to time, but limits it’s obligations to replacing the defective parts only. | ||
| (7.3) | Goods returned for credit must comply with the Sellers Credit Return policy to avoid 10% handling charge or having the credit denied: | ||
| 7.3.1 | The Purchaser must obtain from the Seller a Credit Request Form and a Credit Return Authorisation Number; | ||
| 7.3.2 | The Purchaser must return any goods for credit, freighted pre-paid to the Seller, double boxed with no writing or labels on the original packaging, | ||
| 7.3.3 | Goods must include all factory packed accessories | ||
| 7.3.4 | When returning new goods the purchaser must ensure the goods are: | ||
| 7.3.4.1 In their original packaging and in a re-saleable condition, | |||
| 7.3.4.2 Not specifically manufactured or altered
to a customer’s requirement, a buy-in, a non stocked item, damaged, fitted or used. |
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| 7.3.4.3 Returned within fourteen (14) days from invoice date. | |||
| 7.3.5 | When returning defective goods the purchaser must ensure the goods are: | ||
| 7.3.5.1 When returning defective goods the
purchaser must ensure the goods are: Goods found non defective or outside the warranty scope will be rejected. |
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| (7.4) | Core deposit returns must be freighted pre-paid to the Seller, complete, recondition-able, within three (3) months from the date of invoice. | ||
| (7.5) | Any goods received for credit in the last week of the month may not be processed until the following month. | ||
| (7.6) | The Seller reserves the right to deny any credit request for any reason. | ||
| (8) | CONFIDENTIALITY | ||
| (8.1) | The Purchaser agrees that it shall not disclose or make available to any third party any data, pricing, or other information pertaining to this invoice. | ||
| (9) | WAIVER | ||
| (9.1) | The failure of the Seller to enforce any right or remedy provided hereunder or by law on a particular occasion will not be deemed a waiver of that right or remedy on a subsequent occasion or a waiver of any other right or remedy. | ||
Last updated 22/12/11
