1.1. “we”, “us” or “our” shall mean United Brake & Clutch Pty Ltd and its successors and assigns.
1.2. “you” shall mean you as the buyer or the legal entity identified in our Quotation or invoice.
1.3. “Costs Assessor” means any independent, qualified costs assessor on the register of approved cost assessors.
1.4. “Goods” shall mean Goods supplied by us to you (and where the context so permits shall include any supply of Services as herein defined).
1.5. “Legal Fees” means any fees, outlays or disbursements incurred as a result of retaining solicitor(s)/barrister(s) or Cost Assessor(s).
1.6. “Services” shall mean all Services supplied by us to you and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.7. “Price” shall mean the cost of the goods as agreed between us and you subject to clause 3 of this contract.
1.8. “PPSA” means Personal Properties and Securities Act 2009.
1.9. “PPSR” Means Personal Properties Security Register.
1.10. Any reference to “Quotation” is a reference to invoices, quotations, work authorisations, sale orders or any other work commencement forms.
2.1. You have rights provided to you under the Australian Consumer Laws and nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010, except to the extent that is permitted by that Act where applicable.
2.2. Subject to any rights you have under any consumer protection law and to the fullest extent permitted by Law, we will not be liable to you or any third party for any loss, damage, cost, expense or injury (including indirect loss such as loss of revenue, profits, anticipated savings, goodwill or business opportunity, injury to your reputation) in contract, tort, under statue or otherwise, howsoever caused including arising directly or indirectly from or in connection with these Terms and Conditions
3.1. The Goods/Services shall be as described on the Quotation as provided by us.
4.1. At our sole discretion;
(a) The price shall be as indicated on invoices provided by us in respect of Goods supplied; or
(b) The Price shall be our current price at the date of delivery of the goods according to our current Price list.
(c) The Price of Goods shall be our quoted price which shall be binding upon us provided that you accept in writing our quotation within thirty (30) days.
4.2. Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be due on delivery of the Goods.
4.3. Payment must be made by cash, by cheque, by bank cheque, by direct credit, or by any other method as agreed to between the Buyer and the Seller.
4.4. All payments must be made in Australian Dollars (AUD).
4.5. If GST or any other applicable taxes are not expressly included in any quotation provided by us then the Price of Goods or Services may increase by the amount of GST or taxes that are applicable.
5.1. All of the risk for the Goods passes to you upon delivery of the Goods, whether or not we retain ownership or property in the Goods.
5.2. If any of the Goods are damaged or destroyed prior to ownership or property in them passing to you, then we are entitled to receive all insurance proceeds payable in respect of the Goods. We will apply the insurance proceeds as follows:
(i) first, in payment of the Price of the Goods that are damaged or destroyed, if unpaid;
(ii) second, in payment of the outstanding Price of any other Goods supplied to you by us whether under these terms and conditions or otherwise;
6.1. If you fail to pay any invoice(s) by the due date(s) then we may charge interest on any overdue amounts that are still outstanding at a rate of 2.5% per month from the date that the relevant invoice falls due until payment is received or until judgement is obtained against you.
6.2. If you fail to pay any invoice when due, then you agree that we may employ the services of debt collection agencies or solicitors/barristers in order to recover payment from you
(a) The costs of debt collection agencies shall be added to any amount already owing by you at the time we incur those costs so long as those costs are reasonable. You may ask for copies of invoices provided to us by the debt collection agency to verify those costs.
(b) Legal Fees shall be added to any amount already owing by you at the time we incur those Legal Fees:
(i) Legal Fees shall be calculated on a party-party (standard) basis whether or not judgement is obtained against you including the costs in obtaining a costs assessment to ascertain the party-party costs. You are entitled to a copy of the Costs Assessment.
(ii) If judgement is obtained against you then the parties shall be bound by the Court’s order as to costs.
(iii) To avoid doubt, this clause 6.2(b). does not prevent us from seeking an order for indemnity costs from the Court in the process of litigation.
6.3. In the event that:
(a) any money payable to us becomes overdue by more than thirty (30) days; or
(b) Should you become insolvent/bankrupt, convene a meeting with your creditors or propose or enter into an arrangement with creditors, or make an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of your affairs or any of your assets, then;
(i) we shall be entitled to cancel all or any part of any order without prejudice to any other remedies; and
(ii) all amounts owing to us, whether or not due for payment, shall immediately become payable.
7.1. For the purposes of section 20 of the PPSA this agreement constitutes a security agreement and that a security interest exists in all Goods (and their proceeds) provided to you including Goods supplied as inventory as described from time to time in any Quotation.
7.2. You agree that we may register a Security Interest against you on the PPSR. This registration may be made prior to the delivery of Goods to you.
7.3. It is agreed that property in the Goods shall not pass until:
(a) you have paid all amounts owing for the particular Goods; and
(b) you have met all other obligations due to us in respect of all contracts between you and us, and that the Goods or proceeds of the sale of the Goods shall be kept separate until we have received payment in full.
7.4. It is further agreed that:
(a) If you are in breach of any term within this agreement and until such time as ownership of the Goods shall pass from us to you, we may give written notice to you to return the Goods or any of them to us. Upon such notice your rights to obtain ownership or any other interest in the Goods shall cease.
(b)If you fail to return the Goods to us within seven (7) days of us demanding them under clause 7.3(a) herein then you acknowledge that we or our legally appointed agents have a common law right to enter onto land owned by you or that is otherwise under your control or in your possession to which you may legally authorize our entry (e.g. a property you are renting), for the purposes of contacting you. Upon contacting you, we may seek to exercise our rights under sections 123 and 128 of the PPSA.
8.1. For this clause 8, a Force Majeure Event means an irresistible event that is unforeseen and not in the control of the party relying on this clause 8.
8.2. Neither party to this agreement is liable to the other for a delay or total failure to meet its obligations under this agreement due to a Force Majeure Event and in the event of delay the party relying on this clause is entitled to a reasonable extension of time.
8.3. If the Force Majeure Event makes it impossible for a party to meet its obligations under this agreement, then either party may terminate this agreement by notice in writing to the other.
9.1. You acknowledge that under section 18E(8) of the Privacy Act 1988, we may give to a credit reporting agency certain personal information about you.
9.2. You agree for us to obtain from a credit reporting agency a credit report containing personal information about you pursuant to section 18K of the Privacy Act 1988 until you owe no further obligations to us under this agreement. In order to:
(a) To assess an application by you;
(b) To notify other credit providers of a default by you;
(c) To exchange information with other credit providers as to the status of this credit account, where you are in default with other credit providers; and
(d) To assess the credit worthiness of you.
9.3. You agree that personal information provided may be used and retained by us for the following purposes and for other purposes as shall be agreed between you and us or required by law from time to time:
(a) Provision of Goods and Services;
(b) Marketing of Goods and or Services by us, its agents or distributors in relation to the Goods and Services;
(c) Analysing, verifying and/or checking your credit, payment and/or status in relation to the provision of Goods or Services;
(d) Processing of any payment instructions, direct debit facilities and/or credit facilities requested you; and
(e) Enabling the daily operation of your account and/or the collection of amounts outstanding in your account in relation to the Goods and Services
10.1. If any provision in this agreement is found to be invalid, void or unenforceable in whole or in part then the validity of the remaining provisions in this agreement or in question shall not be affected.
10.2. All Goods supplied and this agreement is subject to the laws of Australia as applicable in Queensland and the parties irrevocably and unconditionally submit to the jurisdiction of that place.
10.3. we reserve the right at all times to make changes to these terms and conditions. Any variations to these terms and conditions will take effect from posting on our Website. The Terms and Conditions which apply at the time of order are those that govern your relationship with us in respect to those Goods or Services
© 2010 United Brake & Clutch