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” or “Us” means EASTERN TURBOCHARGERS PTY LTD ATF KTF FAMILY TRUST
t/a EASTERN TURBOCHARGER SERVICES – ABN: 86 040 925 655
“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.
“unit” means a complete turbocharger assembly ready to be fitted to an engine.
“surcharge” means core charge applied until suitable unit is received.
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 service is:
(a) valid for 30 days;
(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
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.
3.1 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 essence.
4.1 Old units will not be accepted for exchange unless they meet the following specifications:
(a) the old unit must be complete and not dismantled in any way (unless by prior agreement);
(b) the old unit must not have suffered deliberate or negligent damage.
(c) the old unit must be genuine OEM and the same part number.
5.1 Where it is agreed at the time of sale that an old unit will form part of the consideration provided by the customer and the old unit is not provided by the customer at the time of sale a surcharge shall be payable by the customer. The amount of such surcharge will be provided to the customer at the point of sale. Such surcharge shall be refunded to the customer provided that the old unit which is agreed will form part of the consideration is provided by the customer within 2 weeks of sale and provided that such old unit meets the specifications in clause 4 of these terms and conditions at the time it is so provided.
6.1 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 whom 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.
6.2 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).
7.1 The PPSA applies to these Terms.
7.2 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.
7.3 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.
7.4 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.
7.5 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.
8.1 Risk in the goods will pass to You on the goods being delivered to You or taken from Our premises.
8.2 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>
9.1 Any date for delivery of goods or provision of services stated by Us is an estimate only.
9.2 We will not be liable for any loss or damage suffered by You or any third party for failure to meet any estimated date.
9.3 If We cannot complete the services by any estimated date, We will complete the services within a reasonable time.
9.4 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.
10.1 In the event of the product proving defective during the period of guarantee owing to faulty material or workmanship, subject to these terms and conditions and subject to the terms set out in the warranty card, we shall either repair such defective product or supply a replacement product.
10.2 The period of guarantee is 12 months from the date of delivery of the product to the customer.
10.3 The supplier shall not be liable under the standard guarantee if the vehicle to which the product is fitted is not properly serviced in accordance with the vehicle manufacturer’s recommendations (but the supplier is not limiting its liability in these circumstances if the fault with the product is unrelated to the improper fitting and servicing and the supplier will consider each complaint on an individual basis to ascertain the cause of the fault).
10.4 The supplier shall not be liable under the standard guarantee if the product supplied by them and/or the engine of the vehicle to which it is fitted is/are modified to increase power output (but the supplier is not limiting its liability in these circumstances if the fault with the product is unrelated to the modification to increase power output and the supplier will consider each complaint on an individual basis to ascertain the cause of the fault).
10.5 Products supplied but not manufactured are not subject to any guarantee from the supplier but the supplier will pass on to the customer (in so far as possible) the benefit of any guarantee given by such third parties and will (on request) supply to the customer details of the terms and conditions such guarantees issued by such third parties but (except for the circumstances mentioned in clauses 10.3 and 10.4) The supplier is not limiting its statutory liability for any fault with the product.
10.6 The guarantee shall not apply and no guarantee is given in relation to any product fitted to a vehicle which is used for any form of racing.
11.1 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.
11.2 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 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.
11.3 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.
11.4 Nothing in the Terms excludes, restricts or modifies the application of any State or Federal legislation which cannot be excluded, restricted or modified.
11.5 Without prejudice to any of the foregoing, the supplier shall not be liable for damaged caused to an engine or vehicle by a failed turbocharger where such turbocharger has been used for any form of racing.
11.6 None of the above exclusions or restrictions of the suppliers liability shall apply to any claim for death or personal injury resulting from their negligence.
12.1 We reserve the right to change the specifications of the goods provided that the end performance is not materially prejudiced.
12.2 If We are unable to provide the goods or services, then We may cancel Your order.
12.3 No purported cancellation by You is binding on Us.
13.1 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.