TERMS AND CONDITIONS OF TRADING (“Terms”)
FIRST AUTO PARTS PLUS PTY LTD (ACN 007 357 717) (“us” or “we”)
1. Definitions - Throughout these Terms:
a. “Agreement” means these Terms and any Invoice;
b. “Us” or “we” means First Auto as named above;
c. “Goods” means the spare parts, goods, materials and services supplied or provided by us to you;
d. “Invoice” means any invoice issued by us to you for the sale of Goods;
e. “Major Mechanical Items” includes Goods that are engines, gearboxes and differentials; and
f. “You” means you as the person, firm or corporation to whom each invoice is addressed, including your employees, agents, successors and assigns having apparent authority to act on your behalf, and where you consist of two or more entities, includes each entity jointly and severally.
2. Acceptance of Terms - You acknowledge that, by accepting Goods from us, you accept these Terms.
3. Entire Agreement - The Agreement constitutes the entire agreement between you and us. You acknowledge that you have not relied upon any implied or verbal representations as to any aspect of the Agreement. The Agreement cannot be varied except in writing signed by both parties.
4. Terms of Payment - Unless otherwise stated on an Invoice, payment is due seven days after the Invoice date. Overdue amounts incur interest at 2% per annum above the rate imposed by s 2 of the Penalty Interest Rates Act 1983 (Vic). You are liable for any costs we incur in recovering/attempting to recover any amount from you or in enforcing our rights under the Agreement.
5. Supply of Goods
a. Unless otherwise stated on the Invoice, time for the supply of Goods is not an essential term of the Agreement.
b. We are not liable for delay in supply or non-supply of Goods where the delay or non-supply is/was beyond its control.
6. Risk in Goods - You bear all risks associated with the Goods once we have delivered the Goods to you. For the avoidance of doubt, you may bear the risk before title in the Goods has passed from us to you.
7. Dispute resolution – Where a dispute arises and save for debt recovery matters, the parties agree that prior to commencement of legal proceedings the matter is to be mediated before a mediator approved by both parties, or, failing agreement, a mediator appointed by the Law Institute of Victoria.
8. Our Obligations - Unless expressly stated in these Terms, our obligations do not exceed in nature, extent or otherwise the obligations imposed by law.
9. Severance of void or unenforceable terms or conditions - If any term in the Agreement is found to be void or unenforceable, such invalidity or unenforceability is not to affect the remainder of the Agreement and the void or unenforceable term is to be severed in whole or in part.
10. Governed by laws of Victoria - The Agreement is to be governed by the laws of Victoria, the courts of Victoria and their appellate courts.
RETURNS AND CANCELLATIONS
11. Cancellations - You may cancel an order by providing written notice to us prior to delivery. If you cancel an order, you are liable for all reasonable costs incurred by us up to the date that we receive your cancellation notice. We may use any money provided as a deposit by you for payment of these expenses.
a. We may, at our sole discretion, provide a refund for Goods returned where the Goods are returned with proof of sale within seven days of the date of sale in the same condition as when they were sold.
b. There are no returns or refunds for Goods that were customised for you.
c. Where Goods returned include electrical components, we may deduct from the refundable amount the cost of testing the Goods to ensure that they are in the same condition as when they were sold.
d. Where you return Goods to us via post or carrier, delivery costs are your responsibility unless otherwise agreed in writing by us.
MAJOR MECHANICAL ITEMS
13. Labour costs – Any labour costs involved in the sale and/or installation of Major Mechanical Items is not included in the price of the Goods unless otherwise agreed in writing by us.
14. Condition of Major Mechanical Items – You acknowledge that engines are sold by us in long bare condition; and accessories and manifolds, if fitted, are not guaranteed to be correct for your use. You should closely examine the Goods and the vehicle into which they are to be installed prior to installation, and swap parts from your original engine where necessary.
15. Australian Consumer Law (“ACL”) - The rights set out in these Terms are additional to the rights set out in the Competition and Consumer Act 2010 (Cth) and other applicable Australian consumer protection laws/regulations.
16. Warranty on part - We warrant that Goods that are spare parts sold to you will be of acceptable quality for three months from the date of sale.
17. Warranty on panel - We warrant that Goods that are rust-free panels at the time of sale will remain rust-free for 12 months in normal atmospheric conditions from the date of sale.
18. Making a claim – Warranty claims should be made at the outlet where you purchased the Goods. Proof of purchase is required.
19. Repair or replacement of Goods
a. Subject to cl 20, we will repair or replace any defective Good that is the subject of a successful claim under cls 16 or 17 of these Terms.
b. We reserve the right to utilise used Goods or components of Goods.
c. Where defective Goods are the subject of a successful claim, we will reimburse you for the cost of return postage where you contact us in advance and follow our instructions as to method of return.
20. Where warranties do not apply
a. Warranties do not apply where Goods are incomplete or have been damaged, altered, dismantled or subject to repair work unauthorised by us.
b. The warranties do not apply to Major Mechanical Items where a defect results from overheating, a missing heat tab, insufficient/incorrect oil, lubricant and/or fuels, unauthorised repairs, failure to properly maintain, alterations, dismantling, misuse, negligence or improper application/installation.
c. Where Goods shows preliminary signs of malfunction or defect, you must immediately cease use and report to us. You indemnify us against loss or damage caused by any continued use and may void any applicable warranties.
21. Repair authorization – In the event of a successful warranty claim, a third party may carry out repair work provided that we first give authorization.
22. Consequential loss and damage - Subject to the ACL, we are not liable for any consequential loss or damage resulting from failure of Goods.
PROVISION OF CREDIT
23. Withdrawal of credit - Any credit facility we provide to you may be withdrawn or varied at any time at our sole discretion without prior notice to you.
24. Charge over property of Purchaser – You charge with payment of any money owing to us at any time all assets which you have or may acquire, and you agree to execute any further documents or instruments necessary to enable the registration of this charge at the Land Titles Office and/or PPSA.
25. Application of Personal Property Securities Act 2009 (Cth) (“PPSA”)
a. The sale and delivery of Goods by us to you is subject to the following:
i. Words and phrases used in this paragraph which are defined in the PPSA have the same meaning in this paragraph;
ii. “collateral” for the purposes of the PPSA means the Goods;
iii. the content of this paragraph forms a security agreement for the purposes of the PPSA;
iv. “dealing” includes you using the Goods in some manufacturing or construction process of your own or of a third party; and
v. “resale” includes any form of sale, hire, loan or other dealing in which we part with possession of the Goods.
b. No title or ownership of the Goods passes to you until we receive payment in full of all amounts owing by you in respect of the Goods, and:
i. Until Goods are paid for, you act as our agent, trustee and bailee and must store the Goods separately, securely and away from harm, mark the goods as belonging to us and insure the Goods with a reputable insurer, noting our interest;
ii. You may resell the Goods on market, but only as our agent. Any right to bind us to any liability or to any third party is expressly negated, and you will hold on trust for us, in a separate account, all proceeds of resale or other dealings with the Goods on trust for us, until you have discharged your liability to us. Such proceeds are deemed to be equal in value to the amount owing by you to us in respect of the Goods;
iii. We may appropriate payments from you to such Goods or accounts as we think fit, notwithstanding any appropriation by you to the contrary;
iv. If you do not pay for the Goods by the due date, you irrevocably authorise us to enter your premises (or, where Goods are held in other premises under your control, those premises as your agent) and use reasonable force to take possession of the Goods without liability for trespass or negligence. You indemnify us in relation to any damage caused to the premises;
v. For the purpose of giving effect to any matters contained in this clause, you irrevocably appoint us as your attorney; and
vi. The parties agree that this clause applies notwithstanding any other agreement between the parties under which we give you credit.
c. It is expressly agreed by both parties that:
i. Neither the Goods or related proceeds of sale or other dealing shall be available for general distribution among creditors of yours in the case of corporate administration, liquidation or bankruptcy;
ii. Neither the Goods or related proceeds of sale or other dealing shall be available for distribution among your secured creditors; and
iii. Loss of identity of Goods subject to resale or other dealing does not prevent the proceeds of such dealing being held on trust by you for us.
d. The content of this clause constitutes a security agreement for the purposes of the PPSA, in respect of which you agree that the Goods are not to be used predominantly for personal, domestic or household purposes. You unconditionally and irrevocably contract out of sections 95, 96, 121(4), 130, 132(1) & (4), 135, 142 and 143 of the PPSA.
e. You consent to us registering any security interest pursuant to this clause at your cost and agree to do all things necessary to register this interest pursuant to the PPSA, including the registration of a Financing Statement, Financing Change Statement and any other document required. You unconditionally and irrevocably waive the right to receive a Verification Statement in relation to the registration.
f. You undertake not to act in a way that may prejudice/interfere with our right to registration of the security interest pursuant to the PPSA; register/seek to register a Financing Change Statement in respect of the Goods without our prior written consent; or allow any further encumbrance on the Goods in favour of any third party without our prior written consent.
g. Our rights under this clause are additional to our other rights against you.