TERMS AND CONDITIONS OF TRADE
1. General: These Terms and Conditions shall apply to the exclusion of all others including any terms and conditions of the Applicant (whether on the Applicant's order form or otherwise). No goods or services will be supplied by Exhaust Systems Australia (ESA) on any terms or conditions other than those set out herein and by taking delivery of the goods the Applicant shall be deemed to agree to these Terms and Conditions. For the purposes of these Terms and Conditions ESA shall mean and include the party named above and/or in whose name an Account is maintained by ESA.
2. Payment: Must be made by either of the following methods:
a) Credit card – Instore, online, over the phone or pre approved securely stored. A 2% transaction fee may be charged.
b) Direct Deposit – By directly depositing funds into our account using your customer code as reference. Goods will not be released until confirmation of cleared funds.
3. Prices: All prices are exclusive of GST and subject to change without notice.
4. Claims: The Applicant will be deemed to have accepted the goods / services, as being in accordance with its order unless it notifies ESA in writing of its claim within 7 days of delivery. No return of goods will be accepted by ESA unless ESA has given prior written authorisation for the return.
5. Force Majuere: If for any reason beyond the control of ESA (including without limitation as a result of any strike, trade dispute, fire, tempest, theft or breakdown), orders cannot be filled or completed at the time stipulated by the Applicant, ESA shall be entitled to determine the contract and the Applicant shall not have any claims for damages arising out of such cancellation, without prejudice to the rights of ESA to recover all sums owing to it in respect of deliveries made or services provided prior to the date of such determination.
6. Warranty or Representation: All warranties whether expressed or implied and whether statutory or otherwise with regard to the goods / services supplied by ESA as to quality, fitness for purpose or any other matter are hereby excluded except insofar as any such warranties are incapable of exclusion at law. The liability of ESA for damages arising out of the contract shall be limited to the costs of replacement of any damaged goods and ESA accepts no responsibility or liability whatsoever including liability for negligence or goods that do not correspond with the description on ESA invoice and/or the packaging of the goods sold or any liability for consequential loss however arising.
Any representation given by ESA to the Applicant as to quality or performance of the products or their suitability for a particular purpose or otherwise in relation to the products are given in good faith and the liability of ESA for any breach of warranty (whether express or implied) or misrepresentation is limited to the obligation to repair or replace defective products at its own cost during normal working hours and by its own employees or authorised representatives. The Supplier will not be liable to pay for any services or repairs carried out by others nor does it accept responsibility for any loss of production, profit or otherwise of the Applicant nor will it be liable for any indirect consequential loss or damage to persons or property of any nature due to any cause whatsoever arising from or in relation to the supply of products to the Applicant. The Applicant acknowledges that it will not rely upon nor be induced by any warranty or representation by ESA not expressly set out herein, in its price list or otherwise in writing.
7. These conditions do not include, restrict or modify the application of any provisions of any Commonwealth, State or Territorial law which law cannot be excluded, restricted or modified. Except where an Applicant shall be taken to have acquired the products as a consumer within the meaning of the Competition and Consumer Act 2010 and/or the Trade Practices Act 1974 or equivalent Commonwealth, State or Territorial legislation:
a) The Supplier shall not be liable or responsible for any loss, damage or injury to property or persons (including but not limited to loss of profits, business or other direct, indirect, special, consequential or incidental damages) resulting from or in connection with the acquisition, delivery, re-supply, installation, use or possession of the products irrespective of whether such loss, damage or injury results from the negligence of the Supplier, its servants or agents or any other cause whatsoever; and
b) All terms, conditions and warranties that the product shall correspond with their description, shall correspond with any sample, shall be of merchantable quality
or shall be reasonably fit for any purpose expressed or implied directly or indirectly, by common law or any Commonwealth, State or Territorial laws are hereby excluded to the fullest extent permitted by law.
8. Where an Applicant is taken to have acquired the products as a consumer within the meaning of the Competition and Consumer Act 2010 and/or Trade Practices Act 1974 or equivalent Commonwealth, State or Territorial legislation, the liability of the Supplier for a breach of any term, condition or warranty referred to in Clauses 5 or 7(b) herein shall be limited, at the absolute discretion of the Supplier, to the replacement of the products or the supply of equivalent products or the repair of the products.
9. Freight Costs: ESA shall not be liable for freight costs on goods returned to it by the Applicant unless otherwise agreed.
10. Additional Fees: The Applicant agrees that in the event the Applicant breaches any of the terms of trade including a failure to make payment of any monies due to ESA pursuant to these terms of trade, the Applicant shall pay to ESA all collection costs, commissions, fees, charges and expenses including legal costs on a full indemnity basis incurred by ESA of and incidental to this agreement or any matter arising out of or incidental to this agreement or the Applicant’s performance of or failure to perform any of the terms of trade. Interest may be charged at a rate of two and a half percent (2.5%) per month on all additional fees.
11. Change of Ownership: The Applicant agrees to notify ESA in writing of any change of ownership of the Applicant within 7 days from the date of such change and indemnifies ESA against any loss or damage incurred by it as a result of the Applicant's failure to notify ESA of any change.
12. Notices: Any notice to be given to you shall be deemed to be given upon it being posted or emailed to your appropriate address set out in the Contract or posted to your registered office or last known address. By signing this contract you agree to receive email notifications from ESA. This mechanism is used by ESA to inform customers of important information about products & pricing.
13. Deliveries and Cancellation: Deliveries may be totally or partially suspended by ESA during any period in which ESA may be prevented or hindered from affecting delivery by its normal means of supply or delivery by normal route by reason of any circumstances outside its reasonable control (including but not limited to strikes, lockouts, shortages of material, accidents or breakdowns of plant or machinery). In the event that because of short supply of any material or finished stock ESA shall be unable to supply, it may in its sole and unfettered discretion supply a portion of available supply to the Applicant without being thereby in breach of contract. Orders placed with ESA cannot be cancelled without the written approval of ESA. In the event that ESA accepts the cancellation of any order placed with it ESA shall be entitled to charge a reasonable fee for any costs incurred to the date of the cancellation including a fee for the processing and acceptance of the Applicant's order and request for cancellation.
14. Lien: The Applicant hereby acknowledges that ESA has a lien over all goods in its possession belonging to the Applicant to secure payment of any or all amounts outstanding from time to time.
15. Power to Sell Goods: Nothing herein contained shall prevent the Applicant from selling the goods to any third party provided that the proceeds of any such sale shall be held in trust by the Applicant for ESA until ESA has received payment in full for the goods.
16. Certificate: A Certificate signed by an officer of ESA will be prima facie evidence of the Applicant's liability to ESA at the date of the Certificate.
17. Jurisdiction: The proper law of all contracts arising between ESA and the Applicant is the law of the State of Victoria and the parties agree that all claims and disputes relating to the goods sold shall be determined in a Court of competent jurisdiction in the State of Victoria.
18. All words in this document importing the plural number include the singular and vice versa and if there is more than one applicant these conditions shall bind each of them jointly and severally.
19. To the fullest extent legally possible, all contracts made between ESA and any Applicant relating to any products, services or transactions are subject to the Terms &
Conditions of Sale as set out above unless otherwise agreed in writing.
20. Security in Goods
a. The Applicant grants to the ESA a security interest in the Goods and their proceeds to secure the obligation of the Applicant to pay the price of the Goods and any other
obligations of the Applicant to ESA under these Terms and Conditions.
b. If the Applicant sells the Goods or incorporates them into another product prior to payment of those Goods, the proceeds of sale of those Goods shall be held on trust for ESA, until payment of all monies that the Applicant owes to are paid in full.
c. Applicant agrees:
i. that these Terms create a security interest in all present and after acquired Goods as security for all of the Applicant’s obligations to ESA, and the Terms are a security agreement for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA) which is registrable under the PPSA;
ii. to do all such things and at any time as ESA requires to ensure that any security interest of ESA is perfected under the PPSA that ESA determines in its sole absolute discretion;
iii. will reimburse and indemnify ESA for all expenses it incurs in registering its security interest on the PPSA register;
iv. to provide not less than 14 days’ notice in writing of any proposed change in its name, business practice, contact details and will immediately notify the ESA of any material changes in business activities;
v. that it may (unless advised otherwise by ESA or where it has breached these Terms) use or sell the Goods in the ordinary course of business and if it sells the Goods, it must hold the proceeds (separately and in an identifiable account) in trust for ESA, and pay the same as directed by ESA if and when requested;
vi. subject to clause 24(c)(v) herein, not to give anyone any interest in or security over the Goods;
vii.to waives its rights to receive any of the documents referred to in sections 95, 118, 121(4), 123, 130, 132(3)(d), 132(4), 135, 157 and Part 4.3 (other than those in Division 6 of Part 4.3) of the PPSA; and
viii. with ESA to keep confidential the information and documents of the kind referred to in section 275(1) of the PPSA (except where section 275(7) of the PPSA applies) and both agree not to authorise the disclosure of such information at any time. (d) If the Applicant: (i) fails to make payment of monies owed to ESA in accordance with these Terms; (ii) fails to comply with any of these Terms; or (iii) commits an act of bankruptcy or makes an arrangement with all or any number of its creditors, or has a receiver or liquidator appointed or an administrator appointed pursuant to the provisions of the Corporations Act, then ESA may repossess and sell the Goods (subject to these Terms and in accordance with the PPSA) and the Applicant irrevocably authorises ESA to enter any premises where the Goods are kept and to use the name of the Applicant and to act on its behalf to recover possession of the Goods. (e) Goods for the purpose of this clause means all goods that ESA supply to the Applicant from time to time, and includes for the purposes of the PPSA, where the Goods supplied are inventory, all references to those Goods shall, in respect of those Goods, be read as references to inventory while they are held as inventory; and where the Goods supplied are not or are no longer held as inventory, then Goods shall, in respect of those Goods, includes the Goods described in any invoice of ESA relating to those Goods, on the basis that each such invoice is deemed to include any resulting product which the Goods subsequently become part of.