The Customer accepts the following Terms & Conditions:
1.0 GENERAL
- These Terms and Conditions of Sale (“Terms”):
- apply to the sale and supply of all the goods or services Exhaust Factory ABN 81582038271, to the exclusion of all other terms and conditions whatsoever, whether contained or implied in or from any order from the Customer or from any conduct of or representations made by the Customer or Exhaust Factory shall be deemed incorporated in any order placed by the Customer.
- shall prevail over all other conditions of the Customer’s order to the extent of any inconsistency (except where waived by Exhaust Factory in writing);
- may be changed at any time.
- shall not be read or applied to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law including the Trade Practices Act 1974, the Competition and Consumer Act 2010 or any other succeeding legislation) and which by law cannot be excluded, restricted or modified.
- QUOTATIONS AND ORDERS
- Where Exhaust Factory provides a written quotation for the supply of goods or services to the Customer, such quotation will be valid for Thirty (30) days and is subject to re-quotation thereafter.
- Unless otherwise agreed in writing, all prices quoted exclude the cost of delivery to the Customer and the goods are offered subject to local stock availability at the time the Customer accepts the quotation.
- Quoted prices may necessitate variations in the event of any changes in the nature of the Customer’s order or requirements and the quote will then therefore need to be re-negotiated with the Customer.
- Any taxes, duties and charges (if any) included in the quotation are based upon the rates of those taxes, duties and charges at the time of quotation and all variations in the rates of such taxes, duties and charges as a result of amendment of the relevant Acts or Regulations, or changes of interpretation of the relevant Acts, Regulations or By-laws or Classifications will be borne by the Customer.
- If the Customer seeks any variation to an order after Exhaust Factory has issued an order confirmation then Exhaust Factory is free to either accept the variation or not and if Exhaust Factory does not agree to the variation then Exhaust Factory is free to terminate the contract without any liability on the part of Exhaust Factory. If the variation is sought at any time after Exhaust Factory has incurred labour costs, purchased materials, commenced production, or incurred international freight costs, in respect of the order then the Customer shall be liable for the full purchase price notwithstanding any termination of the contract by Exhaust Factory. If Exhaust Factory accepts the variation but the variation involves additional labour, material freight or production costs, then Exhaust Factory will charge additional costs to the Customer for those additional labour, material freight or production costs.
- TERMS OF PAYMENT
- Unless otherwise agreed by Exhaust Factory, payment for goods is to be made by the Customer by clear funds either:
At the time of collection of the goods where Exhaust Factory provides a valid Tax Invoice at the time of collection.
- on or prior to the delivery of the goods where Exhaust Factory provides a valid Tax Invoice prior to the time of delivery; or
- if in accordance with Clause 3.3 for those Customers who have been approved for credit terms;
- Exhaust Factory may in its absolute discretion require payment of a deposit at the time of the Customer placing an order to secure that order. The amount of that deposit shall be any proportion of the total cost of that order as Exhaust Factory deems necessary.
- Exhaust Factory may in its absolute discretion grant a Customer credit terms pursuant to this Clause 3.3. In the event that the Customer has been granted credit terms, then payment for all goods delivered to that Customer is to be made by the Customer on a calendar monthly basis within seven (7) days of receiving a valid Tax Invoice from Exhaust Factory for such delivered goods. Exhaust Factory may at any time revoke such credit terms for any reason whatsoever, in the discretion of Exhaust Factory, including, but not limited to, as result of the Customer failing to make payments in accordance with this Clause or otherwise breaching these terms and conditions.
- The Customer agrees that all payments are to be made without retention or set off.
- In the event of there being any payments, in whole or in part, remaining unpaid beyond the terms for payment in Clause 3.1, then Exhaust Factory in its absolute discretion may charge interest on that outstanding amount at a rate of two (2) per cent per annum above the rate set out pursuant to Section 2 of the Penalty Interest Rates Act 1983 during the period such unpaid balance remains unpaid and such interest will be added to the said balance due from the Customer to Exhaust Factory and calculated on a daily basis.
- Notwithstanding the imposition of interest charges pursuant to this Condition 3.0, such interest charges will not be regarded as allowing any time for payment of any amount owing but are agreed as constituting reasonable compensation payable to Exhaust Factory because of the delay in payment and all such outstanding monies will remain immediately due and payable to Exhaust Factory and Exhaust Factory will be entitled to take legal proceedings at any time for recovery of any monies bearing interest charges pursuant to this Clause 3.0.
- In addition to the other rights of Exhaust Factory set out in this Clause 3.0, the Customer agrees that Exhaust Factory will have the right (although it will not be bound to do so) to suspend delivery to the Customer of all or any outstanding orders if the Customer is in default of these terms.
- Time is of the essence in respect to payments to be made by the Customer pursuant to this Clause 3.0
- If the Customer is a body corporate, the Directors of the Customer jointly and personally guarantee the payment of all monies owing by the Customer to Exhaust Factory.
- In the event of the Customer defaulting with respect to the payment of any monies owing to Exhaust Factory, the Customer hereby grants in favour of Exhaust Factory a charge over all real estate owned by the Customer if the Customer is an individual or a charge over all its assets if the Customer is a body corporate.
- DELIVERY
- Unless otherwise specified by Exhaust Factory, delivery will be made by courier and will be charged to the Customer on a reasonable basis in addition to the price payable for the goods.
- The delivery times made known to the Customer are estimates only and Exhaust Factory is not liable for any loss, damage or delay occasioned to the Customer arising from late or non-delivery of the goods.
- Exhaust Factory is not responsible to the Customer or any person claiming through the Customer for any loss or damage to goods in transit caused by any event of any kind by any person (whether or not the Customer is legally responsible for the person who caused or contributed to that loss or damage).
- RETURNS
- In the event that the Customer alleges that the delivered goods are not in accordance with the order, and only to the extent that the goods are faulty, defective, not fit for purpose or have been incorrectly supplied, the Customer must notify Exhaust Factory in writing within seven (7) days from the date of delivery. If the Customer does not give such notice, then subject to the extent permitted by statute the goods shall be deemed to have been accepted by the Customer.
- If the Customer wishes to return goods in accordance with clause 5.1, the Customer shall bear all associated transport costs to both return the goods to Exhaust Factory and to arrange for replacement goods to be shipped to the Customer.
- With respect to goods returned and received by Exhaust Factory after fourteen (14) days of the original date of Purchase, the Customer shall also pay a restocking fee equal to ten percent (10%) of the price of the returned goods. After thirty (30) days an additional fifteen percent (15%) will be charged. No returns accepted after three (3) months.
- The Customer acknowledges and agrees that shipping charges and any restocking fee (if applicable) are not refundable in the event that goods are returned.
- Upon Exhaust Factory confirming that the goods are faulty, defective, not fit for purpose or have been incorrectly supplied, then it shall, at its absolute discretion, elect to either provide replacements goods to the Customer or provide the Customer with a refund less any transport charges and restocking fee (if applicable).
- Exhaust Factory will not accept any returned goods unless they are:
- accompanied by an original Exhaust Factory proof of purchase, receipt or Tax Invoice for the relevant goods and a written statement noting the reason for the return; and
- Returned to Exhaust Factory in a new, resalable and unused condition with all packaging, accessories, manuals and such other contents as were delivered with the goods.
- The Customer may not return any goods on the basis of change of mind.
- WARRANTIES AND LIABILITY
- The only conditions and warranties which are binding on Exhaust Factory in respect of the state, quality or condition of the goods or services sold to the Customer are those imposed and required to be binding by statute (including the Trade Practices Act 1974, the Competition and Consumer Act 2010 or any other succeeding legislation).
- If the goods are not manufactured by Exhaust Factory the guarantee or warranty of the manufacturer of those goods is accepted by the Customer and is the only guarantee given to the Customer in respect of the goods. The Customer acknowledges that having goods fitted by a non-qualified automotive tradesperson may void any warranty applicable to the goods.
- Upon receiving a request from the Customer, Exhaust Factory agrees to assign to the benefit of any warranty or entitlement to the goods that the manufacturer has granted to Exhaust Factory under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
- With respect to the services provided by Exhaust Factory, it only warrants its proper workmanship in the installation of products on to the Customer’s vehicle. It shall not be liable for any pre-existing mechanical or issues associated with a Customer’s vehicle which may cause loss or damage to the Customer or any other party, nor for any consequential loss or damage to the Customer’s vehicle which may result from its installation of the Customer’s selected product.
- Except as expressly provided herein, Exhaust Factory shall not be liable to the Customer for any liability, (including liability in negligence) loss or damage of whatsoever nature, consequential or otherwise, howsoever suffered or incurred by the Customer, caused by, or resulting directly or indirectly from the goods or services provided.
- RIGHTS IN RELATION TO GOODS
- The property in the goods which are the subject of any particular order shall not pass to the Customer until payment for those particular goods has been received by Exhaust Factory by cleared funds.
- The Customer shall stand in a fiduciary relationship to Exhaust Factory in respect of goods or services supplied by Exhaust Factory but not paid for.
- If the Customer fails to honour any of these Terms, Exhaust Factory, without notice, shall have the right to take possession of the goods which are the subject of this reservation of title, or trace the proceeds of sale thereof, as the case may be, and to recover the full amount owing to Exhaust Factory together with interest and costs, if any. The Customer grants Exhaust Factory an irrevocable license to enter the Customer’s Premises for the purpose of retaking possession of its goods pursuant to this Clause.
- Personal Property Securities Act 2009 (Cth) (PPSA)
- 8.1 If the Supplier determines that the PPSA applies in relation to any security interest arising in connection with the supply of any Products under the terms of this agreement, then the Purchaser must promptly upon request from the Supplier do anything (including, without limitation, completing, signing and providing documents, obtaining consents, supplying information and making amendments to this agreement ) for the purposes of: ensuring that any Security Interest created under, or provided for by, this agreement : attaches to the collateral that is intended to be covered by that Security Interest; and is enforceable, perfected, Maintained and otherwise effective; enabling the Supplier to prepare and register a financing statement or financing change statement; and enabling the Supplier to exercise any of its rights or perform any of its obligations in connection with any such Security Interest or under the PPSA.8.1.1 Except if section 275(7) of the PPSA applies, each of the parties agree not to disclose any information of the kind referred to in section 275(1) of the PPSA that is not publicly available to a person or entity that is not a party to this agreement.
- 8.1.1 Where the Products supplied under this agreement are not used predominantly for personal, domestic or household purposes, the Purchaser agrees that: the Supplier is under no obligation to dispose of or retain any secured property the Supplier seizes within a reasonable time under section 125 of the PPSA; following a default, the Purchaser has no rights to redeem the secured property under section 142 of the PPSA; the Purchaser has no rights to reinstate this agreement following a default under section 143 of the PPSA; and despite the Purchaser paying for particular Products itemised in an invoice or order or otherwise in respect of moneys owing under or in connection with this agreement, any payments received by the Supplier from the Purchaser shall be applied in the following order: (A) first, to satisfy any obligations owed by the Purchaser to the Supplier which are unsecured, in the order in which the obligations were incurred; B) second, to satisfy any obligations owed by the Purchaser to the Supplier which are secured but which are not secured by a Purchase Money Security Interest (as that term is defined in the PPSA), in the order in which the obligations were incurred; and (C) third, to satisfy any obligations owed by the Purchaser to Supplier which are secured by a Purchase Money Security Interest, in the order in which the obligations were incurred. (d) The Purchaser waives its rights to receive: (a) any notices of the Supplier under sections 95, 118(1)(b), 130 and 135 of the PPSA;(b) a statement of account under section 132 of the PPSA; and (c) a copy of, or notice of, any verification statement confirming registration of a financing statement or a financing change statement relating to any Security Interest under, or provided for by, this agreement.
- 8.1.2 All costs and expenses arising as a result of actions taken by either party pursuant to this clause 8 will be for the account of the Purchaser. Within 5 days of a written request, the Purchaser must reimburse the Supplier for any costs or expenses it incurs in connection with this clause 8.
- Authority to Vary Terms
- No manager, employee, servant, agent or representative, other than a director or directors, of Exhaust Factory has any authority to vary these Terms or any of them and without limiting the generality of the foregoing no warranty, representation, promise, agreement, term or condition whether express or implied made by any such person shall be deemed to be included in or form part of these Terms or operate in any way collateral to these Terms other than those warranties, representations, promises, agreements, terms or conditions which expressly appear herein or which are implied by law and not excluded under Clause 6.
- MISCELLANEOUS
- The Customer shall not be entitled to withhold or set off payment of any amount due to Exhaust Factory under these Terms whether in respect of any claim of the Customer in respect of faulty or defective goods or services or for any other reason which is contested or liability for which is not admitted by Exhaust Factory.
- Any delay in or failure by Exhaust Factory to insist upon strict performance of any term, warranty or condition of these Terms shall not be deemed a waiver thereof or of any rights Exhaust Factory may have and no express waiver shall be deemed a waiver of any subsequent breach of any term, warranty, or condition.
- If any provision of these Terms shall be determined by any statute or any court having jurisdiction in relation thereto to be illegal, invalid, void, voidable or unenforceable the legality validity or enforceability of the remainder of these Terms shall not be affected and the illegal, invalid, void, voidable or unenforceable provision shall be deemed deleted here from to the same extent and effect as if never incorporated herein but the remainder of these Terms shall continue in full force and effect.
- These Terms shall survive any accepted repudiation or other termination of the contract to supply goods or services existing between Exhaust Factory and the Customer.
- These Terms shall be governed and interpreted according to the laws of Australia and the parties agree to submit to the non-exclusive jurisdiction of the courts of Australia
- Exhaust Factory reserves the right to decline or discontinue supply at any time, and without notice.
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