TERMS AND CONDITIONS OF TRADE
1. Definitions in these Terms:
“ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth); “Contract” means any agreement for the provision of goods or Services by Us to You; “Consumer” is as defined in the ACL; “You” means the person, jointly and severally if more than one, Acquiring goods or services from us; “Goods” means goods supplied by us to you; “GST” means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth); “PPSA” means the Personal Property Securities Act 2009 (Cth); “Services” means services supplied by Us to You; “We”, “Our”, “Us” or “Burgess Automotive” means Burgess Automotive Pty Ltd ATF Burgess Family Trust ABN 37 112 199 894 “Terms” means these Terms and Conditions of Trade; and “Vehicle” means any equipment or vehicle or part of a vehicle provided by you for the purpose of obtaining any goods or Services.
2. Basis of Agreement
2.1 The Terms apply exclusively to every Agreement.
2.2 Any quotation provided by the Supplier to you for the proposed
Supply of goods or services is:
(a) Valid for 14 days;
(b) (b) An invitation to treat only; and
(c) Only valid if in writing.
2.3 Any terms in our job sheet form part of the Terms and will prevail to the extent of any inconsistency.
2.4 A contract is accepted by us when we accept an offer from you or provide the goods or services to you.
2.5 We have absolute discretion to refuse any offer.
2.6 You must provide us with your Specific requirements, if any, in relation to the goods and services.
3. Pricing & Payment
3.1 Prices quoted for the supply of goods and services include GST.
3.2 Subject to clause 3.3, full payment must be made within 30 days of the date of our invoice.
3.3 We reserve the right to require payment in full on delivery of the goods or completion of the services.
3.4 The time for payment is of the essence.
3.5 Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
4. Passing of Property
4.1 Until you make full payment for all goods and services and for all other amounts owing to us:
(a) Title in all goods remains vested in us;
(b) You must hold the goods as fiduciary Bailee and agent for us;
(c) You must hold the proceeds of sale of the goods on trust for us in a separate account with a bank to which you have not given security however failure to do so will not affect your obligation As trustee;
(d) (in addition to our rights under the PPSA, We may enter any premises and remove the goods and for this purpose You irrevocably licence Us to enter such premises and also indemnify Us from and against all costs, claims, demands or Actions by any party arising from such action; and
(e) We retain a lien over any Vehicle which entitles us to sell any Vehicle in Our possession, subject to providing 14 days written Notice to you, by treaty or public auction as we deem suitable, and allocate the proceeds to satisfy any amounts owing.
4.2 You acknowledge that
We have a statutory right to sell or dispose of uncollected goods pursuant to and within the meaning of the Australian Consumer Law and Fair Trading Act 2012 (Vic) or disposal of Uncollected Goods Act 1968 (Tas) (as applicable).
5. Personal Property Securities Act
5.1 The PPSA applies to these Terms.
5.2 These Terms are a security agreement and We have a Purchase Money Security Interest in all present and future goods supplied by Us to You and the proceeds of the goods. Where the goods are installed in or affixed to other goods, the security interest extends to both the accession and the other goods or mass.
5.3 Where permitted by the PPSA, You waive any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
5.4 The Supplier and You agree to contract out of and nothing in the provisions of sections 96, 125, 129, 142 and 143 of the PPSA will apply to these Terms.
5.5 To the extent permitted by the PPSA, You agree that:
(a) the provisions of Chapter 4 of the PPSA which are for Your benefit or which place obligations on Us will apply only to the extent that they are mandatory or We agree to their application in writing; and
(b) where We have rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
6.1 Risk in the goods will pass to you on the goods being delivered to you or taken from our premises.
6.2 You are responsible for all loss, damage or injury to persons or to property arising out of the use, installation or possession of the goods, unless recoverable from us under the ACL.
7.1 Any date for delivery of goods or provision of services stated by us is an estimate only.
7.2 We will not be liable for any loss or damage suffered by you or any third party for failure to meet any estimated date.
7.3 If we cannot complete the services by any estimated date, we will complete the services within a reasonable time.
7.4 Unless otherwise agreed, you must collect the goods or any Vehicle within 2 days of being advised that they are ready If you do not you will be liable for storage charges payable on demand.
8. Liability and Disclaimers
8.1 Goods presented for repair may be replaced by refurbished goods of the same type rather than being repaired. Refurbished parts may be used to repair the goods.
8.2 During repairs, some or all of your stored data, if any, may be lost. You must ensure that any data is saved elsewhere prior to repairs.
8.3 Except as the Terms state, or as contained in any express warranty provided in relation to the goods or services, the Contract does not include by implication any other term, condition or warranty in respect of the quality, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services or any contractual remedy for their failure.
8.4 Except to the extent of any liability under the ACL, We are not liable:
(a) To You or any third party for any failure of a statutory guarantee Under the ACL;
(b) For any indirect or consequential losses or expenses suffered by you or any third party howsoever caused.
8.5 Nothing in the Terms excludes, restricts or modifies the application of any State or Federal legislation which cannot be excluded, restricted or modified.
9. Variation and Cancellation
9.1 We reserve the right to change the specifications of the goods provided that the end performance is not materially prejudiced.
9.2 If we are unable to provide the goods or services, then we may cancel your order.
9.3 No purported cancellation by you is binding on us.
10.1 The law of Victoria (where goods and services are being provided in (Victoria), or the law of Tasmania, (where the goods and services are being provided in Tasmania) govern these Terms.
11.1 Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
(a) to cancel your service contract with us; and
(b) to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done, you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
11.2 Burgess Automotive warrants that if any defect in any workmanship of Burgess Automotive becomes apparent and is reported to Burgess Automotive within the earlier of twelve (12) months of the date of delivery or 20,000 kilometres (time being of the essence) then Burgess Automotive will either (at our sole discretion) replace or remedy the workmanship.
11.3 For Parts not manufactured by Burgess Automotive, the warranty shall be the current warranty provided by the manufacturer or supplier of the Parts. Burgess Automotive shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the parts.
11.4 If failure occurs within this warranty period, Burgess Automotive is to be notified immediately, so that necessary repairs may be arranged. Warranty repairs must only be executed by, or at a venue nominated by Burgess Automotive. Removal or repair without our consent will render the warranty void.
11.5 This warranty does not cover consequential damage, injury to person or persons, towage, accommodation or loss of income nor does it cover defects arising from accidents, misuse, overloading, negligence or participation in competitive motor sports, nor does it cover parts fitted to vehicles modified from manufacturer’s specifications. Warranty is not transferable upon the sale of the vehicle. If a part is replaced during its warranty period, there are no extensions of the original warranty. The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through continued use of the vehicle after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user.