TERMS AND CONDITIONS OF TRADING
1. Definitions and Interpretation
(a) “Seller” means Auto Glass Solutions Pty Ltd ACN 102 438 620 of Unit 5, 47 – 51 Little Boundary Road, Laverton North, Victoria 3026, Australia.
(b) “Buyer” is the purchaser of the goods and the Applicant named in the attached Credit Application.
(c) “Goods” means glass for use with all automotive vehicles including locomotive, earth-moving and plant and equipment, earth movers, trucks, commercial vehicles and cars.
(d) “Services” means installation of the Goods, including replacement of any parts and fittings.
(e) “Credit Application” means the properly completed and submitted, approved by the Seller.
(f) “PPSA” means the PPS Act and any other legislation and regulations in respect of it and the following words in these terms and conditions have the respective meanings given to them in the PPS Act: collateral, financing change statement, financing statement, interested person, purchase money security interest, register, registration, security agreement, security interest and verification statement.
(g) “PPS Act” means the Personal Properties Securities Act 2009 (Cth) (as amended).
These terms and conditions, together with:
(a) Any credit application the Buyer has completed and submitted to the seller;
(b) Any guarantee, indemnity and charge the Buyer has completed and submitted to the seller;
(c) Any special terms specific to the type of Goods you have purchased by the Buyer,
make up the entire terms and conditions between the Buyer and Seller. Together, these documents form the entire agreement between Seller and Buyer.
3. Seller’s Quotations
Unless previously withdrawn, Seller’s quotations are open for acceptance within the period stated in them or, when no period is stated, within seven (7) days from the date of the quotation.
(a) The delivery times made known to the Buyer are estimates only and the Seller is not liable for late delivery or non-delivery.
(b) The Seller is not liable for any loss, damage or delay occasioned to the Buyer or its customers arising from late or non-delivery of the Goods.
(c) The Seller may at its option deliver the Goods to the Buyer in any number of instalments.
5. Loss or Damage in Transit
(a) The Buyer agrees that all risks associated with the Goods supplied by the Seller passes to the Buyer upon leaving the Seller’s premises and that it is the sole responsibility of the Buyer to ensure that all necessary insurances in place in respect of the Goods in transit.
(b) The Seller is not responsible to the Buyer or any person claiming through the Buyer for any loss or damage to Goods in transit caused by any event of any kind by any person (whether or not the Seller is legally responsible for the person who caused or contributed to that loss or damage).
(a) Unless otherwise stated all prices quoted by the Seller are exclusive of Goods and Services Tax (GST).
(b) All prices are subject to alteration without notice.
(a) The Buyer acknowledges and agrees that it must pay all fees, charges and costs that become due and payable under these terms and conditions within 30 days of the date of invoice, unless otherwise agreed between the parties.
(b) Buyers that do not hold a Credit Account must pay all fees, charges and costs that become due and payable under these terms and conditions upon receipt of the Goods and/or completion of the Services.
(c) If the Buyer does not pay the invoice in full by the due date, the Seller reserves the right to charge in addition to any other costs recoverable under these terms and conditions:
(i) Interest calculated monthly, on a total outstanding balance. The interest used to calculate the interest payable for the month is as directed by the Penalty Interest Rate Act 1983 (Vic); and
(ii) Any costs and expenses (including any commission payable to any commercial or agents and legal costs) incurred by the Seller in recovering any unpaid amounts under these terms and conditions.
(d) Payment may be made as follows:
(i) By direct deposit into the bank account:
Bank Account: Auto Glass Solutions Pty Ltd
(ii) By VISA, Mastercard or EFTPOS (credit card surcharge applies); or
(iii) Cheque payable to Auto Glass Solutions Pty Ltd. However personal cheques are not accepted.
(e) In addition to payment for Goods and Services, the Buyer agrees that it will be required to pay:
(i) GST arising out of these terms and conditions;
(ii) Charges in connection with the administration of your credit account;
(iii) Charges in connection with the registration and processing of any security interests or mortgage or caveat over personal property or real property.
8. Title to Goods
(a) The Buyer acknowledges and agrees that the Seller owns the Goods and in all circumstances retains title to the Goods (even if the Buyer goes into liquidation or becomes bankrupt during the operation of these terms and conditions). The Buyer’s rights to use the Goods are as Bailee only.
(b) Except in the circumstances set out in Clause 9 and 10 below, the Buyer is not permitted to offer, sell, assign, sublet, charge, mortgage, pledge or create any form of security interest or otherwise deal with the Goods in any way.
(a) The Buyer consents to the Seller registering and maintaining a security interest on the Register (in any manner appropriate to the Seller) with respect to the sales of any Goods and the provision of any Services arising in relation to these terms and conditions.
(b) The Buyer acknowledges and agrees to sign any document and provide any and all assistance and information to the Seller required to facilitate the registration and maintenance of any security interest.
(c) The Buyer acknowledges and agrees that the Seller may at any time register a financing statement or a financing change statement in respect of a security interest (including any purchase money security interest).
(d) The Buyer acknowledges and agrees to waive the right to receive any notice of any verification statement in relation to any registration on the Register of a security interest in respect of the Goods or Services.
(e) The Buyer undertakes to:
(i) Do anything that is required by the Seller to acquire or maintain one or more perfected security interests under the PPSA in respect of the Goods and Services and their proceeds, to register a financing statement or a financing change statement and to ensure that the Sellers security position, rights and obligations are not adversely affected by the PPSA;
(ii) Not register a financing change statement in respect of a security interest contemplated or constituted by these terms and conditions without the Seller’s prior written consent; and
(iii) Not register or permit to be registered a financing statement or a financing change statement in relation to the Goods in favour of a third party without the Seller’s written consent.
10. PPSA General
(a) If Chapter 4 of the PPS Act otherwise applies to the enforcement of a security interest arising under or in connection with these terms and conditions and;
(i) Section 115 (1) of the PPS Act allows for the contracting out of the provisions of the PPS Act, the following provisions of the PPS Act will not apply and the Buyer acknowledges and agrees that they will have no rights under them:
Section 95 (to the extent that it requires the secured party to give notices to the grantor);
Section 118 (to the extent that it allows the secured party to give notices to the grantor);
Section 121 (4);
Section 132 (3) (d);
Section 132 (4);
Section 142 and Section 143; and
(ii) Section 115 (7) of the PPS Act allows the contracting out of provisions of the PPS Act, the following provisions the following provisions of the PPS Act will not apply and the Buyer acknowledges and agrees that they will have no rights under them:
Section 129 (2) and (3);
Section 134 (2);
Section 136 (3), (4) and (5); and
(b) Unless otherwise agreed and to the extent permitted by the PPS Act, the parties agree not to disclose information of the kind referred to in Section 275 (1) of the PPS Act to any interested person, or any other person requested by an interested person. The Buyer agrees to waive any right it may have, or but for this clause may have had, under Section 275(7)(c) of the PPS Act to authorise the disclosure of the above information.
(c) The parties acknowledge and agree that these terms and conditions is a security agreement for the purposes of the PPS Act. For the purposes of Section 20 (2) of the PPS Act, the collateral is Goods referred to in these terms and conditions and provided by the Seller to the Buyer from time to time.
(d) The Buyer acknowledges and agrees to notify the Seller in writing of any change to any personal details set out in the credit application, within five (5) days of the date of that change taking effect.
11. Buyers Property
The Buyer acknowledges and agrees that any Goods under the Seller’s possession, custody or control are completely at the Buyer’s risk. The Buyer acknowledges and agrees to take out any necessary insurance required in the event of loss or damage caused to the property in its possession, custody or control.
The Seller reserves the right to make a reasonable charge for storage if delivery instructions are not provided by the Buyer within fourteen (14) days of a request by the Seller for such instructions. The parties agree that the Seller may charge for storage from the first day after the Seller requests the Buyer to provide delivery instructions.
13. Indemnities and Exclusions of Liability
(a) Except as otherwise specified in this clause, all guarantees, terms, conditions, warranties, undertakings, inducements or representations whether express or implied, statutory or otherwise, relating to these terms and conditions or its subject matter are excluded to the maximum extent permitted by law.
(b) Nothing in these terms and conditions excludes, restricts or modifies any right or remedy, or any guarantee, term, condition, warranty, undertaking, inducement or representation, implied or imposed by any legislation which cannot be lawfully be excluded or limited. This may include the Australian Consumer Law, which contains guarantees which protect the purchasers of goods and services in certain circumstances.
(c) Where any legislation implies or imposes a guarantee, term, condition, warranty, undertaking, inducement or representation in relation to these terms and conditions and the Seller is unable to exclude that guarantee, term, condition, warranty, undertaking, inducement or representation (“Non-Excludable Condition”), and the Seller is unable to limit the remedy for a breach of the non-excludable condition, then the Seller’s liability for breach of the Non-Excludable condition is limited (at the Seller’s discretion and election):
(i) In the case of Goods, the repair or replacement of the Goods or the supply of substitute Goods (or the cost of doing so); or
(ii) In the case of Services, the supplying of the Services again, or the payment of the cost of having the Services supplied again.
(d) Subject to the Seller’s obligations under the Non-Excludable Conditions and the maximum extent permitted by law, the maximum aggregate liability for all claims under or relating to these terms and conditions or its subject matter, whether in contract, tort (including without limitation negligence), in equity, under statute, under any indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, is limited to an amount equal to the fees paid by the Buyer under these terms and conditions. In calculating the aggregate liability under this clause, the parties must include any amounts paid or the value of any Goods or Services replaced, repaired or supplied by the Seller for a breach of any non-excludable provisions.
(e) Subject to the Clauses above, the Seller is not liable to the Buyer for any consequential, indirect or special loss or damage, loss of actual or anticipated profits or revenue, loss of business, business interruption, wasted costs the Buyer has incurred, amounts that the Buyer is liable to its customers for or any loss suffered by third parties under or relating to these terms and conditions or its subject matter, whether in contract, tort (including without limitation negligence), in equity under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, whether or not that loss or damage was foreseeable and even if advised of a possibility of a loss or damage.
(f) The Buyer is liable for and indemnifies the Seller against all liability, claims, damage, loss, costs and expenses (including without limitation legal fees, costs and disbursements on a full indemnity basis, whether incurred or awarded against the Seller) in respect of:
(i) Damage to tangible property; or
(ii) A claim by a third party,
in respect of the purchase of the Goods or Services under these terms and conditions. The Buyer’s liability under this indemnity is diminished to the extent that the Seller breaches these terms and conditions or the Seller’s negligence causes the liability, claims, damage, loss, costs or expenses.
(g) Each indemnity in these terms and conditions is a continuing obligation, separate and independent from the other obligations of the parties and survives termination, completion and expiration of these terms and conditions. It is not necessary for a party to incur expense or make any payment before enforcing a right of indemnity conferred by these terms and conditions.
(h) The Seller is not liable to the Buyer for any acts or omissions of any person, where that person is acting under the Buyer’s direction and control during the operation of these terms and conditions. The Buyer indemnifies the Seller against all liability, claims, damage, loss, costs and expenses (including without limitation legal fees, costs and disbursements on a full indemnity basis, whether incurred or awarded against the Seller) arising from or incurred in connection with such acts or omissions.
(a) Either party may terminate these terms and conditions and any purchase and sale of Goods or Services immediately by giving notice to the other party, if:
(i) The other party breaches any term of these terms and conditions and fails to remedy the breach within 14 days of written notification of the breach; or
(ii) The other party becomes bankrupt or insolvent, executes a personal insolvency agreement, enters into liquidation, administration, receivership or ceases to carry on business.
(b) The Seller may terminate these terms and conditions for any other reason on 24 hours’ notice.
(c) The rights of termination are in addition to any other rights either party has under these terms and conditions and does not exclude any right or remedy under law or equity.
15. Recovery of Goods
If the Buyer is in breach of these terms and conditions or these terms and conditions have been terminated as stated in Clause14 above, the Seller may take all necessary steps (including legal action) to recover the Goods, including entering the Buyer’s premises without liability for trespass or any resulting damage. Upon receiving notification from the Seller, the Buyer expressly consent to the Seller entering the premises for the purposes of recovering the Goods.
Except where Clauses 9 and 10 apply:
(a) As security for the Buyer’s obligations and liabilities under this Agreement, the Buyer agrees to allow the Seller to charge for the due and punctual payment and performance of those obligations and liabilities, all of the Buyer’s legal and equitable interests (both present and future), of whatsoever nature held in any and all real and personal property:
(i) Without limiting the generality of the charge in this clause, the Buyer agrees on the request of the Seller to execute any documents and do all things necessary required by the Seller to register a mortgage security or other instrument of security over any real property and against the event that the Buyer fails to within a reasonable period of time being requested, appoint any credit manager or solicitor engaged by the Seller to be the Buyer’s true and lawful attorney to execute and register any such instruments;
(ii) The Buyer indemnifies the Seller on an indemnity basis against all costs and expenses by the Seller in connection with the preparation and registration of any charges and mortgage documents; and
(iii) The Buyer also consents to the Seller lodging a caveat or caveats noting the Seller’s interest in any of the Buyer’s real property.
(a) The Buyer acknowledges and agrees that the Seller will apply with the National Privacy Principles in all dealings with the Buyer.
(b) The Seller may need to collect personal information about the Buyer, including but not limited to a full name and address, driver’s licence, credit card details, date of birth, credit or business history and other personal information. The Buyer consents to the Seller using the Buyer’s information in order to:
(i) Fulfil functions associated with these terms and conditions including but not limited to assessing the Buyer’s credit worthiness;
(ii) Provide Services to you;
(iii) Prevent theft of Goods;
(iv) Enter into contracts with the Buyer or third parties; and
(v) Market to the Buyer and maintain a client relationship with the Buyer.
(c) The Buyer consents to the Seller disclosing personal information:
(i) To any credit provider or credit recording agency for the purposes of obtaining information about consumer or commercial credit or business history or commercial activities or credit worthiness; and
(ii) To the Seller’s service providers, contractors and affiliated companies from time to time to help improve and market the Services of the Buyer.
(d) The Buyer has the right to access personal information held by the Seller at any time.
No order may be cancelled except with consent and notice in writing and on terms which will indemnify the Seller against all losses.
The proper law of all contracts arising between the Seller and the Buyer is the law of the State of Victoria and the Seller and Buyer agree that all claims and disputes relating to the Goods sold shall be determined in the Court of competent jurisdiction in the State of Victoria.
The Seller may, from time to time and without notice, change or add to these terms and conditions. The Buyer agrees that it will check the current terms and conditions on a regular basis so that they are aware of any changes or additions to these terms and conditions.
21. Force Majeure
(a) Subject to this clause, neither party will be responsible for any delays in delivery, installation or collection due to causes beyond their control including but not limited to acts of God, war, terrorism, mobilisation, civil commotion, riots, embargos, order or regulations of Government of any relevant jurisdiction, fires, floods, strikes, lockouts or other labour difficulties, shortages of or inability to obtain shipping space or land transportation.
(b) Nothing in this clause will limit or exclude the Buyer’s responsibility and liability under these terms and conditions that is lost, stolen or damaged beyond fair and tear during the terms of this Agreement, or has broken down or has become unsafe to use as a result of the Buyer’s conduct or negligence.
If any part of this Agreement becomes void or unenforceable for any reason, then that part will be severed with the intent that all remaining parts will continue to be in full force and effect and be unaffected by the severance of any other parts.
23. Entire Agreement
This Agreement comprises of the entire agreement between the parties. No additional terms or conditions (including any terms and contained in any purchase order or quotation) applied to these terms and conditions unless agreed in writing by the parties.
Except where Clause 14 applies, from time to time, the Seller may need to vary these terms and conditions. If the Seller intends to do so, the Seller will give 30 days’ written notice and clearly set out the proposed amendments. If the Buyer has reasonable grounds to believe the change will be detrimental to the Buyer’s rights, you may terminate this Agreement without penalty within 30 days of receiving the Seller’s written notice. Any other variation of these terms and conditions must be agreed in writing by the parties.
25. No Waiver of Rights
Subject to Clause 14 no delay or omission by a party to exercise any right, power or remedy available to that party as a result of a continuing breach or default under these terms and conditions will impair any such right, power or remedy, nor will it be construed to be a waiver of that party’s rights to take action or to make a claim in respect of a continuing breach or default.
26. Review of Credit Approval
(a) From time to time, the Seller may review its credit application terms and conditions granted to you without further notice.
(b) The Seller may at its discretion decide to withdraw credit for any reason including but not limited to, if the Buyer’s circumstances change, the Buyer fails to make payments on time, or the Buyer fails to use the Goods in accordance with terms of these terms and conditions.
(c) If the Seller withdraws credit, the Buyer may terminate this Agreement immediately by giving the Seller written notice. However, if the Buyer does so, the Buyer must:
(i) Pay amounts that were subject to credit in accordance with the terms on which that credit was provided; and
(ii) Still pay all amounts due the Seller under these terms and conditions.
27. Assigning These Terms and Conditions
(a) The person signing any document which forms part of this Agreement for and on behalf of the Buyer warrants that he or she has the Buyer’s authority to enter into the Agreement on the Buyer’s behalf and grants the security interest in connection with it and is empowered to bind the Buyer to the terms and conditions and each security interest granted in connection with it.
(b) Except where Clause 13 applies, the person signing these terms and conditions indemnifies the Seller against all losses, costs and claims incurred by the Seller arising out of the person so signing these terms and conditions not in fact having such power and or authority.
28. Provisions of this Agreement Excluded From Consumer Contracts
Where the Buyer is an individual acquiring Goods or Services wholly or predominantly for personal, domestic or household use or consumption, the following provision of these terms and conditions will not apply for the purposes of this Agreement:
(a) Clause 16 (security); and
(b) Clause 14 (variation).