MORE 4X4 PTY LTD ABN 17 627 789 20
TERMS AND CONDITION OF SALE
The supply of Goods & Services by More 4X4 PTY LTD ABN 17 627 789 208 to
the Buyer will be subject to these terms and conditions.
1.1. In these terms and conditions, unless the context otherwise requires:
"GST" means goods and services tax or similar tax imposed by the A New Tax Systems (Goods and Services Tax) Act 1999.
"Seller" means More 4X4 Pty Ltd ABN 17 627 789 208
"Buyer" means any person or persons, company or business entity to whom the Seller sells or supplies, or proposes to sell or supply, Goods or Services.
"Goods" means the goods or products supplied or sold by the Seller to the Buyer from time to time.
“Services" means any services provided by the Seller to the Buyer.
"PPSA" means the Personal Property Securities Act 2009 (Cth).
“Price” means the total amount set out in the Seller’s quotation current at the date of the Buyer’s order or such other price as we may agree in writing.
"Scope of Works" means the services, work, materials or things specified (whether by description or by reference to another document) in a quote or order.
"Order" means a purchase order issued by the Buyer to the Seller in writing via email or any other way.
"GST Law" means the New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended or replaced
1.2. Words imparting the singular number include the plural and vice-versa
1.3. A gender includes all genders.
1.4. A reference to a Clause is to a clause of these terms and conditions.
1.5. Mentioning anything after include, includes or including does not limit what else might be included.
1.6. All obligations are taken to be required to be performed duly and punctually.
1.7. References to legislation include any amendment of the legislation and any other legislation which regulates the same or similar subject matter.
1.8. These terms and conditions will not be construed against a party solely because it is prepared by or at the instruction of the party
1.9. Headings are for convenience only and do not affect interpretation.
2.1. These terms and conditions will apply to the purchase of the goods detailed in in any Scopes of Work or Order.
2.2. These terms and conditions will be deemed to have been accepted by the Buyer when the Buyer issues an Order or accepts delivery of the Goods and services.
2.3. These terms and conditions constitute the entire agreement between the Buyer and the Seller and apply to the exclusion of any other terms which might otherwise be implied by law, trade, custom, practice or course of dealing
2.4. Any quotation by the Seller is not and shall not be interpreted as an offer capable of acceptance or as creating an obligation to sell.
2.5. All drawings, specifications & details furnished by the Seller or contained in any catalogues, price list or website are by way of general description only of the Goods and shall not form part of this contract.
2.6. If a Buyer cancels or modifies any Order at any time after the Seller has received the Order, then without prejudice to any other rights the Seller has, the Seller may re-charge to the Buyer the cost of materials already acquired for the Order together with the cost of any
labour and tooling expended to the date of such cancellation or alterations.
3.1. If the cost of the Goods to the Seller increases due to any factor beyond the Seller’s control including, but not limited to, material costs, labour costs, alteration of exchange rates or duties, or changes to delivery rates, the Seller can increase the Price prior to delivery.
3.2. In the event that the Buyer requests a change in their Scope of Work either orally or in writing, the Seller has the right to vary the price detailed in the Scopes of Work or Order and inform the Buyer either orally or in writing
3.3. The Price is exclusive of fees for handling insurance freight and delivery unless otherwise stated.
3.4. Prices are based on the full quantities specified and do not necessarily operate pro rata for any greater or less quantities.
3.5. A Quote is valid for 2 days.
3.6. In the event of the suspension of manufacture or supply on the Buyer’s instruction, or lack thereof, or due to the inability of the Buyer to accept the Goods for any reason on or after the date on which they are ready for delivery, the Buyer shall be liable for all extra
costs and losses thereby incurred by the Seller.
3.7. The Price is inclusive of GST. The Seller will provide a tax invoice within the meaning of the GST Act
3.8. The Seller is not obliged to accept or fulfill any Order for Goods unless it is accompanied by the full Price for those Goods.
3.9. The Seller is not obliged to accept or fulfill any Order for Services unless it is accompanied by an amount equal to 50% of Price for those Services.
3.10. Those amounts shall be treated as a non-refundable deposit.
4.1. the Seller will invoice the Buyer for the Price either:
4.1.1. On or at any time after delivery of the Goods; or
4.1.2. at any time after the Seller has notified the Buyer that the Goods are available for collection by the Seller.
4.2. The Buyer must pay the Price within 24 hours of receiving our invoice or otherwise according to any credit terms agreed between us.
4.3. If the Buyer does not pay within the period set out above, the Seller will suspend any further deliveries to the Buyer and without limiting any of the Sellers other rights or remedies for statutory interest, charge the Buyer interest at a rate which is 10 % per annum above the target cash rate last published by the Reserve Bank of Australia on the amount outstanding until the Buyer pays the invoice in full.
4.4. Time for payment will be of the essence r.
4.5. All payments must be made in Australian currency.
4.6. Both parties must pay all amounts due under these terms and conditions in full without any deduction or withholding except as required by law and neither party is entitled to assert any credit, set- off or counterclaim against the other in order to justify withholding
payment of any such amount in whole or in part.
4.7. If the Buyer tender’s payment by credit card (VISA< Mastercard or AMEX) then the Buyer must also reimburse the Seller for any merchant service fee or surcharge.
5.1. The Buyer consents to and authorises the Seller to charge the Owner’s credit card for any payments that are due and owing to Seller by the Buyer under this Agreement
5.2. The Buyer consents to and authorises the Seller to carry out credit checks with a credit reporting agency.
6. IMAGE RELEASE
6.1. The Buyer agree that the Seller may use images of his/her Motor Vehicle for social media, display, advertising, website, blog and magazine submissions and any other means of promotion of Sellers’s business.
6.2. The Buyer waives any right to payment, royalties or any other
consideration for the use of the images.
7.1. the Seller will arrange for the delivery of the Goods to the address specified in the Order to another location as agreed in writing between the Buyer & the Seller.
7.2. If an Order does not specify a delivery address the Buyer must collect the Goods from the Seller’s premises.
7.3. The Seller shall not be liable for any damage caused to the Goods whilst they are in transit.
7.4. The Buyer shall at the Buyer’s expense provide all labour, lifting equipment and practicable access to the point of delivery as may be necessary for the safe efficient and convenient offloading of Goods.
7.5. Delivery can take place at any time of the day and must be accepted at any time between 8 am to 8 pm.
7.6. If the Buyer does not take delivery of the Goods the Seller may, at the Seller’s discretion and without prejudice to any other rights:
7.6.1. store or arrange for the storage of the Goods and will charge the Buyer for all associated costs and expenses including, but not limited to transportation, re-stocking, storage and insurance; and / or
7.6.2. make arrangements for the redelivery of the Goods and will charge the Buyer for the costs of such redelivery; and/or
7.6.3. after 10 business days, resell or otherwise dispose of part or all of the Goods and charge the Buyer for any shortfall below the price of the Goods.
7.7. If redelivery is not possible as set out above, the Buyer must collect the Goods from the Seller’s premises and will be notified of this. The page 2 of 3 Seller can charge the Buyer for all associated costs including, but not limited to, storage and insurance.
7.8. Any dates estimated date for delivery are approximate only and the time of delivery is not essential. The Seller will not be liable for any delay in delivery of the Goods that is caused by a circumstance beyond the Seller’s control or the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
7.9. The Seller can deliver the Goods by instalments, which will be invoiced and paid for separately. Each instalment is a separate contract. Any delay in delivery or defect in an instalment will not entitle the Buyer to cancel any other instalment.
8. INSPECTION & ACCEPTANCE OF GOODS
8.1. So far as statute permits, it is the Buyer’s responsibility when accepting this Agreement or ordering to ensure the Goods ordered conform to the Scope of Work and are suitable and sufficient for the buyer’s purpose.
8.2. The Buyer must inspect the Goods on delivery or collection and inform us in writing of any the nature and extent of any damage or shortage within 7 days of delivery.
8.3. So far as statute permits, the Seller will only accept returned Goods if the Seller issatisfied that those Goods are defective and if required, have carried out an inspection.
8.4. If the Goods that are delivered are defective or not in accordance with the Scope of Work the Buyer may return the Goods and the Seller may elect to repair, or replace the Goods, or refund the Price of the Goods.
8.5. The Seller will be under no liability or further obligation in relation to
the Goods if:
8.5.1. if the Buyer fails to provide notice as set above; or
8.5.2. the Buyer makes any further use of such Goods after giving notice under the clause above relating to damages and shortages; or
8.5.3. the defect arises because Buyer did not follow the Seller’s oral or written instructions about the storage, commissioning, installation, use and maintenance of the Goods; or
8.5.4. the defect arises from normal wear and tear of the Goods; or
8.5.5. the defect arises from misuse or alteration of the Goods, negligence, wilful damage or any other act by Buyer, Buyer’s employees or agents or any third parties.
8.6. Buyer bear’s the risk and cost of returning the Goods.
8.7. Acceptance of the Goods will be deemed to be upon inspection of them by Buyer and in any event within 1 day after delivery.
9.1. Seller warrants that the goods supplied under this invoice (the “goods”) shall conform to the description of the goods.
9.2. The foregoing warranty is the seller's sole warranty with respect to these goods. All other warranties, express or implied, including but not limited to the implied warranties of merchantability and fitness for a particular purpose, are hereby disclaimed.
9.3. The Seller's liability for breach of warranty is limited solely to the replacement of the defective goods, which shall be returned to seller's plant, transportation charges prepaid by buyer; and the failure to give notice of a warranty claim within thirty (30) days from date of delivery shall constitute a waiver by borrower of all claims in respect to such goods. The foregoing shall constitute the sole remedy of buyer and the sole liability of seller under this warranty.
10.1. The risk in the Goods will pass to Buyer on delivery.
10.2. Title to the Goods will not pass to Buyer until the Seller has received payment in full (in cash or cleared funds) for:
10.2.1. the Goods and/or
10.2.2. any other goods or services that the Seller has supplied to Buyer in respect of which payment has become due.
10.3. Until title to the Goods has passed to the Buyer, the Buyer must:
10.3.1. hold the Goods to our order; and/or
10.3.2. store the goods separately and not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; and/or
10.3.3. keep the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery.
10.4. As long as the Goods have not been resold, or irreversibly incorporated into another product, and without limiting any other right or remedy the Seller may have, or can at any time ask the Buyer to deliver up the Goods and, if the Buyer failsto do so promptly, enter
any of the Buyer’s premises or of any third party where the Goods are stored in order to recover them.
11.1. If this Agreement or any transaction contemplated by it gives rise to a security interest for the Seller under the PPSA, then this clause 11 applies to enable the Seller to secure the amount owing by the Buyer to the Seller in relation to Goods and also the performance of all of the Buyer’s other obligations under these Terms and Conditions of Sale.
11.2. The Buyer consents to the Seller perfecting its interest in the Goods (and any product to which Goods are attached or converted into by any process) by registration under the PPSA of the security interest that the Buyer considers arises out of these Terms and Conditions of Sale.
11.3. To the extent permitted by law, the Buyer waives any rights that it might have (including to receive any notice) under sections 92, 93,
94, 95 and 96 of the PPSA.
11.4. To the extent permitted by the PPSA:
11.4.1. the Buyer waives its right to receive each notice which section
144 or 157 of the PPSA permits to be waived;
11.4.2. the Buyer waives its right to receive anything from the Seller under section 275 of the PPSA and agrees not to make any request of the Seller under that section.
11.5. For the purposes of section 275 of the PPSA, the information of the kind mentioned in section 275(1) of the PPSA must not be disclosed by the Buyer except where required by section 275(7) of the PPSA.
11.6. The Buyer, when requested to do so by the Seller, must do all things which the Seller asks to ensure that these Terms and Conditions of Sale (including any purchase order) and any security interest granted under it is fully effective, enforceable and perfected with the priority required by the Seller and otherwise enable the Seller to exercise its rights in connection with that security interest. This may include:
11.6.1. doing anything to make, procure or obtain any consent, authorisation, registration or approval in respect of anything, or to facilitate it;
11.6.2. creating or executing (or procuring the creation or execution of) any document, including any form, notice, consent or agreement; and
11.6.3. delivering documents or evidence of title or otherwise giving possession or control with respect to any personal property or other asset.
12. LIEN OVER VEHICLE
12.1. The Buyer grants the Seller a lien over any motor vehicle in which the Seller has installed any Goods or to which it has performed any Services as security for all charges pursuant to the Agreement
12.2. If any amount payable under this Agreement remains unpaid for 60 days after due date for payment, then:
12.2.1. The Seller may without an order from the New South Wales Administrative Tribunal (NCAT) as the Buyer’s agent sell the Motor Vehicle in such manner and so such terms of the Seller in its absolute discretion decides;
12.2.2. The Seller may without an order from the NCAT deduct from the sale proceeds of the Motor Vehicle all unpaid storage fees, sale costs, legal costs, charges and other money payable by the Buyer to the Seller arising out of the storage of the Motor Vehicle whether pursuant to this Agreement or otherwise together with any amount necessary to clear any
encumbrance effecting the Motor Vehicle in favour of a third party;
12.2.3. Any remaining surplus of the sale proceeds, after Seller makes any deduction under clause 12.2.2, shall be sent by the Seller to the Buyer at the Buyer’s last known address but if the Buyer cannot, after reasonable endeavours, be located, the Buyer
hereby irrevocably authorises the Seller to donate the surplus sale proceeds to a charity of Seller’s choice.
13.1. The Seller reserves the right to impose conditions as to the time and manner of access to the Motor Vehicle by the Buyer or any person authorised by the Buyer and is not obliged to provide access to the Motor Vehicle or to permit its removal from the premises unless the Seller is satisfied that the person or persons seeking access to the Motor Vehicle are properly authorised by the Owner.
13.2. The Seller shall be entitled to refuse access to the Motor Vehicle and to prevent its removal where moneys are owing by the Buyer to the Seller or if the Seller exercises its lien pursuant to clause 9.
13.3. The Buyer must pay Seller the applicable storage fee for any period which the Seller retains possession of the Motor Vehicle as a consequence of the exercise of the lien referred to in clause 9 and that lien shall extend over any storage fee charged pursuant to this clause.
14.1. The Seller can terminate the sale of Goods under the Agreement where:
14.2. Buyer commit’s a material breach of his obligations under these terms and conditions;
14.3. Buyer is or become or, in our reasonable opinion, are about to become the subject of a bankruptcy order or take advantage of any other statutory provision for the relief of insolvent debtors;
14.4. Buyer enters into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with Buyer’s creditors; or Buyer convene any meeting of Buyer’s creditors, enter into voluntary or compulsory liquidation, have a
receiver, manager, administrator or administrative receiver appointed in respect of Buyer’s assets or undertakings or any part thereof, any documents are filed with the court for the appointment of an administrator, notice of intention to appoint an administrator is given by Buyer or any of Buyer’s directors or by a qualifying floating charge holder, a resolution is passed or petition presented to any court for the winding up of Buyer’s affairs or for the granting of an administration order, or any proceedings are commenced relating to
Buyer’s insolvency or possible insolvency.
15. LIMITATION OF LIABILITY
15.1. The Seller’s liability under the Agreement, and in breach of statutory duty, and in tort, misrepresentation or otherwise will be limited to this clause.
15.2. Subject to the clauses above on Inspection and Acceptance and Risk and Title, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
15.3. The Seller total liability will not, in any circumstances, exceed the total amount of the Price payable by you.
15.4. If the Seller does not deliver the Goods, the Seller liability is limited, subject to the clause below, to the costs and expenses incurred by Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
15.5. The Seller will not be liable (whether caused by our employees, agents or otherwise) in connection with the Goods, for:
15.5.1. any indirect, special or consequential loss, damage, costs, or expenses; and/or
15.5.2. any loss of profits; loss of anticipated profits; loss of business; loss of data; loss of reputation or goodwill; business interruption; or, other third-party claims; and/or
15.5.3. any failure to perform any of the Seller’s obligations if such delay or failure is due to any cause beyond the Seller’s reasonable control; and/or
15.5.4. any losses caused directly or indirectly by any failure or breach by Buyer in relation to Buyer’s obligations; and/or
15.5.5. any loss relating to the choice of the Goods and how they will meet Buyer’s purpose or the use by Buyer of the Goods supplied.
15.6. In the event that the Seller is required to test drive the Motor Vehicle:
15.6.1. the Buyer guarantees that the Motor Vehicle is safe to operate, certified for road worthiness and insured; and
15.6.2. the Buyer agrees that the Seller will not be liable in connection with the Vehicle for any indirect, special or consequential loss arising from the Buyer’s failure to ensure the Vehicle is safe to operate, certified for road worthiness and insured.
15.7. The Price is for material or things supplied or work performed or to be performed by the Seller and excludes any 3rd party costs.
15.8. The exclusions of liability contained within this clause will not exclude or limit the Seller’s liability for death or personal injury caused by the Seller’s negligence; or for any matter for which it would be illegal for the Seller to exclude or limit the Seller’s liability; and for fraud or fraudulent misrepresentation.
16.1. All notices under these terms and conditions must be in writing and signed by, or on behalf of, the party giving notice (or a duly authorised officer of that party).
16.2. Notices will be deemed to have been duly given:
16.2.1. when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient;
16.2.2. when sent, if transmitted by fax or email and a successful transmission report or return receipt is generated;
16.2.3. on the fifth business day following mailing, if mailed by AUSPOST
16.3. All notices under these terms and conditions must be addressed to the most recent address, email address or fax number notified to the other party.
16.4. The Buyer consents to receive communications from the Buyer electronically, and the Seller agree that all agreements, notices, disclosures, invoices and other communications that the Buyer provides to the Seller electronically, via email, satisfy any legal requirement that such communications or agreements be in writing.
17. FORCE MAJEURE
17.1. Neither party shall be liable for any failure nor delay in performing their obligations where such failure or delay results from any cause, that is beyond the reasonable control of that party. Such causes include, but are not limited to: a delay caused by a third party in the delivery of goods to the Seller, power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question.
18. NO WAIVER
18.1. No waiver by the Seller of any breach of these terms and conditions
by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
19.1. If one or more of these terms and conditions is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these terms and conditions (which will remain valid and enforceable).
20. ELECTRONIC EXECUTION
20.1. Each party consents and agrees that this Agreementmay be executed and delivered by an online system using a web-based portal, or by way of email or other electronic means, and in each case, it must be considered an original and each party is legally bound by it as if the Agreement was delivered as an original document with original
21. LAW & JURISDICTION
21.1. These terms and conditions are governed by and interpreted according to Australian law. All disputes arising under these terms and conditions are subject to the exclusive jurisdiction of the Australian courts.