Terms and Conditions - Precision Automotive Equipment

Products & Services Terms and Conditions

QUOTE FOR SALE OF GOODS AND/OR SERVICES
By accepting sale and/or service per the attached quote (“Quote”), you (the “Customer”) acknowledge and agree to the Terms and Conditions (“T&Cs”) outlined in these T&Cs in favour of Precision Automotive Equipment (“PAE”).
GST
The Customer warrants that it is registered for Goods and Service Tax (“GST”) and will notify PAE if it ceases to be so. Each amount payable by the customer under these T&Cs in respect of a Taxable Supply by PAE is a GST exclusive amount and on receipt of a tax invoice the customer must, in addition to that amount and at the same time, pay the GST payable in respect of that supply. “Taxable Supply” and “GST” have the meanings set out in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
PRICES AND GST
All prices quoted are net of GST and are valid for 30 days and excludes (unless otherwise agreed in writing):
1. the costs of transportation of any goods to the customer’s point of delivery, with such costs to be added to the final invoice;
2. electrical connections; and
3. installation of products (unless otherwise provided in the Quote).
VARIATIONS
The final price may vary due to any product or specification changes requested by the Customer and/or additional works and/or charges incurred outside of the scope of the Quote.
PAE must inform the customer of any price variances. PAE reserves the right to request payment of price variances prior to delivery of the product or commencement of works. Payment of the price variance is payable within 7 days of the completion together with any applicable GST.
CLAIMS AND RETURNS
The Customer acknowledges that no claims for shortage of items delivered or damaged items will be recognised unless notified within seven (7) days from receipt of goods.
DELIVERY
Delivery dates of the goods or start or completion dates of the services are estimates only and subject to supplier lead times. PAE will provide notice of any delay to deliver the quoted goods or to start or to complete the quoted services.
SCAN DATA OBTAINED FROM THE CUSTOMER (hoist/equipment installation)
This clause 7 applies where the Customer agrees to purchase a hoist or equipment and agrees to PAE arranging installation using scan data obtained from the Customer.
1. Unless otherwise stated in the Quote, within seven (7) days of accepting the Quote, the Customer will give to PAE satisfactory details of:
  1. the depth, consistency and type of base of building; and
  2. any cavities, services and other issues or items concealed in the floor.
    (collectively known as the “Scan Data”)
2. The Customer:
  1. warrants that the Scan Data supplied is accurate and correct and good and suitable for the purpose which they are to be used; and
  2. acknowledges that it is reasonable for PAE to rely on the Scan Data and that PAE intends to rely upon the Scan Data supplied for the purposes of carrying out the hoist or equipment installation.
SCAN DATA OBTAINED FROM PRECISION AUTOMOTIVE EQUIPMENT (hoist or equipment installation)
This clause 8 applies where the parties agree in writing that PAE is to obtain Scan Data for the purposes of installation of a hoist or other equipment.
The Customer agrees to provide PAE a flat, level, compact and clear area prior to the commencement of scanning works. The customer acknowledges that:
1. environmental, obstacles & other factors can hinder or prevent accurate feedback of information;
2. the final depth profiles will be the result of an interpretation of the collected data. While state-of-the-art instrumentation and qualified person has been utilised for this study, there are circumstances under which the interpreted result can differ from the actual subsurface strata; and
3. due to the limitation of the technologies, there will on occasion be no indication of the presence of existing underground objects, cavities or concealed services, including pipes and cables. PAE accepts no responsibility for actions or decisions made on the basis of the presented result.
HOIST OR EQUIPMENT INSTALLATION
1. Where applicable, the parties are to agree to the location of installation. Where plans are provided, such plans must be agreed by the parties in writing prior to commencement of work.
2. The Customer must remove all contents that may obstruct, interfere with or hinder the carrying out of the installation from the premises or from any other portion of the land where the installation is to be carried out.
3. The Customer agrees to provide to PAE a flat, level, compact and clear area that is suitable for the equipment ordered complying with Australian Standards.
4. PAE agrees to give immediate notice to the Customer if the site is not suitable for installations.
CUSTOMER DEFAULT
The Customer acknowledges that all amounts owing to PAE will become immediately due and payable in the event the Customer:
1. defaults in making prompt payment of any amount due to PAE under these T&Cs or any other agreement or arrangement between the Customer and PAE;
2. becomes insolvent or bankrupt, commits an act of bankruptcy, convenes a meeting with its creditors, or enters into an arrangement with its creditors, or makes an assignment for the benefit of its creditors, or appoints a receiver, manager, liquidator (provisional or otherwise), ceases to carry on business, or is financially unable to pay its debts or meet its obligations under these T&Cs; or
3. the Customer is otherwise in default where the Customer breaches these T&Cs.
  In the event of any default event, PAE shall, without prejudice to any other remedy, have the right to immediately:
4. decline to deliver the goods or any balance of the goods ordered;
5. stop any goods in transit;
6. otherwise cease to perform any of its obligation to the Customer; and
7. terminate its agreements with the Customer without incurring any liability at law or in equity and without prejudice to PAE’s right to recover amounts owing to it by the Customer and any loss, expense or damage caused to PAE.
SITE CONDITIONS
Despite anything to the contrary in these T&Cs, under no circumstances will PAE rely on, carry out or obtain Scan Data, or commence installation where concretes surfaces are obscured by, including but not limited to, tiling, other floor coverings, fixtures or fittings, or any other items.
CANCELLATION
PAE reserves the right to cancel or postpone installation or delivery of products at any time prior to the commencement of installation by giving reasonable notice to the Customer in its absolute discretion.
Reasons for cancellation or postponement include (but not limited to):
1. the location of installation of hoists or other equipment is not cleared;
2. tiling, other floor coverings, fitting or fixtures, or other items obscure the location of installation;
3. the location of installation or the site conditions are not suitable for installation of hoists or other equipment or present safety concerns;
4. there has been delays in sourcing the hoist or equipment from the manufacturer or supplier, or the customer has delayed works.
PAE reserves its rights to claim for any costs incurred by PAE up to the time of the cancellation or postponement.
WARRANTY
PAE reserves the right to examine allegedly defective products, workmanship or materials.
The warranty periods against any perceived defects in PAE’s products or materials are not to exceed the manufacturer’s or supplier’s warranty period for that product or material.
If any item of products, workmanship or materials supplied in accordance with this Quote is allegedly defective during warranty period, the Customer must within 30 days notify PAE in writing of such alleged defect, and PAE must, at its option, adjust, modify, repair or replace the products, workmanship or materials.
This clause is a contractual right only and extends only to the original end user purchase. It is not assignable or transferable either voluntarily or by option of law. This warranty does not apply to:
1. any item which has been subject to misuse or alterations by the customer
2. any item which has been improperly stored, maintained, modified, adjusted, repaired or misused by the customer or unauthorised third persons, without the consent of Precision.
3. any item which has not been inspected and serviced in accordance with applicable Australian Standards or in accordance with the manufacturer’s instructions (whichever imposes a more stringent requirement);
4. any diagnostic equipment that has not had any or all software update installed.
5. accident or exposure to elements of water, sleet, snow, dirt or deterioration due to environmental condition.
6. negligent use, including but not limited to negligent use of improper voltage or current.
7. repair or damage or increase in service time caused by accident, disaster, which includes, but not be limited to fire, flood, wind or lightning, collision with vehicles, misuse or alterations.
In all cases, the commencement date for the warranty period is the actual day of installation or delivery as reflected on the final invoice/receipt provided to the Customer.
Subject to clause 14, the Customer acknowledges that all other warranties or guarantees whether express, implied or otherwise, regarding the quality, appropriateness or fitness for purpose of the goods or the supply of goods are excluded to the maximum extent permitted by law.
NOTICE PURSUANT TO AUSTRALIAN CONSUMER LAW
The following notice is provided for the purposes of regulation 90 of the Competition and Consumer Regulations and applies only to the extent that the products or services supplied under this Agreement are subject to the applicable guarantees and rights under the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010): “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:
- to cancel your service contract with us; and
- 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 a 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”
LIABILITY
Where liability cannot be limited (under the Australian Consumer Law or otherwise), to the extent permitted by law, the Customer acknowledges that PAE’s liability is limited as follows:
1. in respect of goods:
  1. If there is a major failure, the goods cannot be repaired or PAE have not responded within a reasonable time offering repair or replacement, a refund or replacement if the goods are rejected or payment of the reduction in value of the goods if the goods are not rejected; or
  2. If there is not a major failure, at PAE’s election, replacement, repair or refund; and
2. In respect of services:
  1. If there is a major failure, the problem cannot be fixed or PAE have not responded within a reasonable time, a refund if the contract is terminated or payment of difference between the value of the services provided compared to the price paid; or
  2. If there is not a major failure, at PAE’s election, a refund or a further service to rectify the problem. The Customer acknowledges that, to the maximum extent permitted by law, PAE’s liability to the Customer (under contract, tort, indemnity or otherwise), and the Customer hereby releases PAE from any claim or action due to or in connection with any damage, loss, whether direct or indirect, including but not limited to loss arising from business interruption or loss of actual or anticipated profit or revenue (whether arising at law as direct or indirect loss), or any consequential loss or damage which the Customer may suffer in connection with the supply of goods or services pursuant to these T&Cs.
PAYMENT TERMS
The Customer must, within the time specified in the customer’s quote, pay PAE the total outstanding amount in full. If no trading terms specified in the quote or invoice to the customer, payment of the total amount plus GST is payable prior to the commencement of installation or the delivery of goods.
For pre-ordered products that are not kept in stock (“Special Order”), a 25% deposit is required at the time of the acceptance of quote. Payment of the total remaining amount plus GST is required at the time of shipment of goods from PAE to the Customer.
APPLICATION OF MONIES RECEIVED:
The Customer acknowledges that PAE may, at their discretion, apply any recovered money received in respect of any debt of the Customer towards the payment of any debt or part of a debt owed by the Customer to PAE. The Customer acknowledges that PAE are not obliged to apply the money as directed by the Customer or any other person.
COSTS
Should payment remain outstanding beyond the payment terms outlined in Clause 16, the Customer acknowledges that it will be liable for all costs incurred by PAE in recovering the outstanding amount, including but not limited to PAE’s legal costs (on a solicitor/own client basis) and mercantile agents’ fees .
RETENTION OF TITLE
The Customer acknowledges that PAE retains the title and ownership of goods provided to the Customer in connection with these T&Cs. The Customer acknowledges that it will hold all goods on bailment for the benefit of PAE until all amounts owing to PAE by the Customer have been paid in full. The Customer acknowledges that all risk associated with goods supplied in connection with these T&Cs will pass to the Customer at the time of delivery. In the event the Customer defaults in payment, without prejudice to PAE’s other rights, the Customer expressly and irrevocably authorises PAE to enter and remain upon any premises occupied or used by the Customer without notice to recover possession of unfixed goods.
PERSONAL PROPERTIES SECURITIES REGISTER
The Customer agrees that the retention of title contained in clause 19 of these T&Cs give rise to a “security interest” as defined in the Personal Properties Securities Act 2009 (Cth) (“PPSA”) in any of and all personal property (as defined in the PPSA) (“Personal Property”) which is the subject matter of a credit application or these T&Cs.
The Customer must, within seven (7) days of request from PAE, do all things or execute or arrange execution of such documents required to perfect or register any “security interest” under the PPSA. The Customer acknowledges that, on and from the Registration Commencement Time (as defined in the PPSA):
1. ithe Customer will have no rights under, or by reference to, sections 125, 142 and 143 of the PPSA if the Customer defaults and PAE take enforcement action under these T&Cs in respect of the goods;
2. PAE will be under no obligation to dispose of or retain any secured property PAE seize within a reasonable time under section 125 of the PPSA;
3. if any part of the moneys owing to PAE by the Customer is secured by a purchase money security interest granted by the Customer, PAE may use any money received under this document in the following order:
  1. first, to pay obligations that are secured by which are not secured by a purchase money security interest; and
  2. second, to pay obligations that are secured by a purchase money security interest;
4. the Customer waives all rights to:
  1. receive any notice under sections 95, 130 and 135 of the PPSA in relation to the enforcement of any “security interest” over the goods;
  2. receive a statement of account under sections 132(3)(d) and 132(4) of the PPSA; and
  3. a copy of, or notice of, any verification statement confirming registration of a financing statement or a financing change statement relating to any “security interest” under, or provided for by, these T&Cs.
Unless section 275(7) of the PPSA applies, the Customer agrees not to disclose any information of the kind referred to in section 275(1) of the PPSA that is not publicly available.
PAE otherwise reserves the right to exercise any other security interests, including but not limited to, charges or mortgages or the like held over any property of the Customer as set out in any applicable credit application agreed between the Customer and PAE.
INDEMNITY AND GUARANTEE
The Customer indemnifies PAE in relation to any direct or indirect loss, claims, liability, cost or damage suffered by PAE arising from or in connection with:
1. the fraud or negligence of the Customer, its officers, contractors, employees, servants or agents;
2. a breach by the Customer of these T&Cs; or
3. any claim, demand or proceedings against PAE that any payment of the Customer is void, voidable or otherwise invalid for any reason (including pursuant to any provision of the Corporations Act 2001 (Cth)).
JOINT AND SEVERAL
If the Customer consists of more than one person, the obligations of each person are joint and several.
SEVERABILITY
Each clause, sub-clause and part of these T&Cs is separate and independent. If any clause or sub-clause or part is found to be invalid or ineffective, the other clauses or sub-clauses or parts will not be adversely affected.
WAIVER
Any waiver by PAE must be in writing. The Customer acknowledges that a failure by PAE to exercise any of its rights under or in connection with these T&Cs does not operate as a waiver and that the single or partial exercise of any right by PAE does not preclude any other or further exercise of that or any other right by PAE.
AMENDMENT
1. The Customer acknowledges that PAE may amend these T&Cs with the consent of the Customer, and that PAE will notify the Customer of any amendment these T&Cs.
2. The Customer may not amend or vary these T&Cs without PAE’s prior written consent.
3. The Customer acknowledges that any other contractual terms, of the Customer will not apply in any circumstances.
ASSIGNMENT
The Customer must not assign any of its rights or obligations under these T&Cs(whether by change of control in ownership or legal structure or otherwise) without PAE’s prior written consent. The Customer acknowledges that PAE may assign their rights and obligations under these T&Cs upon written notice to the Customer.
GOVERNING LAW
These T&Cs are governed by the laws of the State of Victoria. The customer irrevocably, generally and unconditionally submits to the non-exclusive jurisdiction of any court of competent jurisdiction in the State of Victoria in relation to both itself and its property.
PRIOR CONDUCT
The Customer represents that it has not, and does not, rely on PAE’s prior conduct or statements when entering into these T&Cs and agrees that PAE may rely on this representation for the purpose of agreeing to provide credit.
RESALE OF GOODS
Where applicable, the Customer acknowledges that it will be supplied with goods on the condition that it will only re-supply the goods to customers who purchase the goods at the Customer’s business premises or who order or purchase the goods by telephone, email or from the Customer’s website, which must be pre-approved in writing by PAE.
INELLECTUAL PROPERTY RIGHTS
The Customer must not use any intellectual property rights (including but not limited to any copyright, patent, trade mark, design or other right) in the goods that are owned or used by PAE for the purpose of using, promoting, advertising, distributing and/or selling or otherwise re-supplying the goods without the prior written consent of PAE. These T&Cs do not convey to the Customer any right, title or interest in such intellectual property rights.
COMPLIANCE
1. The Customer grees to comply with all laws and regulations, including but not limited to, compliance with local laws, requirements of governmental bodies and standards of care.
2. The Customer also agrees to comply where applicable all permits and authorisations required for any installation works. The Customer must obtain such permits or authorisations prior to delivery of hoists or other equipment.
3. The Customer must not do or permit to be done, anything that may obstruct, interfere with or hinder PAE, its contractors or employees, from carrying out its obligations under these T&Cs.

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