Powerdown Australia Pty Limited Terms Of Trade
These terms of trade together with any credit application, quotation, order (including on-line or web-based orders) or proposal to which these terms are attached or in which these terms are referred (each called an “Engagement Form”), together make up a legally binding agreement (the Agreement) between POWERDOWN AUSTRALIA PTY LTD ABN: 20 003 833 574 (the “Supplier”) AND the person(s) or company named as the purchaser (the “Purchaser”) in the attached or previously signed or submitted Engagement Form, AND if the Purchaser is a corporation, the directors of the Purchaser who have signed or otherwise agreed to this Agreement (the “Guarantor/s”).
This Agreement may be accepted by doing either one or more of the following:
(a) Signing these terms and conditions of trade; or
(b) Signing the Engagement Form; or
(c) Placing an order or accepting a quotation or proposal after receiving notice of these terms and conditions of trade.
For the purposes of the preceding paragraphs the Purchaser acknowledges and agrees that reviewing and/or placing an order relying on or referring to a catalogue of products or other promotional material generated by or on behalf of the Supplier (“Catalogues”) in which these terms and conditions of trade are referred is adequate notice of these terms of trade.
In this Agreement “Copyright Material” means and includes (without limitation) logos and marks relating or referring to the Supplier’s brands or products or brands or products to which the Supplier is otherwise entitled to promote appearing in Catalogues or on the Supplier’s website, including Powerdown, Enveero, Adjustable T, Cool Cell, SuperShock, Road Train, Powerdown LTS, Tuff Yellow, RAW 4X4, RAW Nitro Max, RAW Nitro, RAW Predator, RAW Big Bore, RAW RFX, Ridewell Suspensions and Hadley.
Please read the undermentioned terms carefully. If you do not understand these terms of trade you should seek legal advice.
1. The Purchaser must pay to the Supplier the price in relation to each purchase of goods as set out in the corresponding tax invoice. The agreed trading terms are 30 days from the end of the month in which an invoice is issued.
2. The Purchaser hereby agrees and acknowledges that at the absolute discretion of the Supplier an account keeping fee of 2% per month will be levied on any or all amounts in default of the agreed trading terms. The Purchaser agreed that this levy is not a penalty, but a genuine pre estimate of the likely damage to be suffered by the Supplier as a result of the Purchaser’s default.
3. The Purchaser further agrees to indemnify the Supplier for any legal costs incurred by the Supplier (including but not limited to charges and commission charged by mercantile agents) in respect of the enforcement of this Agreement, personal guarantees, securities given or other documentation required whilst credit is being offered in consequence of this Agreement. The Purchaser further agrees to indemnify the Supplier for any dishonoured cheque fees incurred and, in the event that the Purchaser’s account is in default of the agreed trading terms, to indemnify the Supplier against its collection fees and legal costs.
4. Without prejudice to any other rights the Supplier may have under this Agreement or at law, the Supplier may withdraw credit facilities to the Purchaser at any time without notice. Without limiting the Supplier’s rights to withdraw credit, the Supplier reserves the right to stop supply and place the account and any supply on hold until the account is returned to the agreed trading terms, and the Supplier agrees to recommence supply. Where credit has not been extended to the Purchaser or is otherwise suspended or withdrawn, then the Purchaser must pay for all goods purchased in full in cleared funds prior to the Supplier releasing those goods for shipping or collection.
5. These Terms of Trade apply to all transactions from which the Purchaser is supplied goods and/or services on credit. If any future contract between the Supplier and the Purchaser is inconsistent with these Terms of Trade, then these Terms of Trade will apply unless the subsequent contract refers to and specifically alters these Terms of Trade in writing.
6. Should there be any variation to any of the information supplied by the Purchaser in this Agreement or in the structure of the Purchaser’s business (such as a conversion to or from a company or trust or the appointment of new directors), the Supplier shall be notified in writing. Until a new Engagement Form is submitted and approved in writing by the Supplier, the original Engagement Form and those person(s) who signed as guarantor(s) shall remain liable to the Supplier as though all goods and services were supplied to the original Purchaser.
7. The Supplier reserves the right to amend these trading terms, provided such amendments are conveyed to the Purchaser in writing. The Purchaser further acknowledges that such writing will be sent by ordinary mail to the address set out in the Engagement Form, unless the Purchaser advises in writing to the Supplier a new address, and this new address is acknowledged by return in writing by the Supplier.
8. The Supplier shall be entitled at any time to assign its rights under this Agreement to its successors, nominated transferees or assigns, (including but not limited to, where applicable, personal guarantees), and that these Terms of Trade shall not be in any way affected or discharged pursuant to such assignment.
9. Placement Of Orders And Variations
9.1 The Purchaser may order the goods from the Supplier in writing, by phone, email, facsimile, Supplier-hosted on-line or web-based ordering (if the Supplier has this facility) or other electronic communication or telecommunication acceptable to the Supplier (which includes without limitation purchase orders, the acceptance by the Purchaser of a quotation, proposal or variation prepared by the Supplier) (“orders”). Upon placement of the order, the Purchaser will be bound to proceed with the purchase of the goods at a price confirmed by the Supplier.
9.2 The Supplier will notify the Purchaser if goods ordered cannot be supplied ex stock at time of the order, or within a reasonable period of time following the order, and will be placed on back order and supplied once goods are available to the Supplier. Goods will remain on back order for a period of 60 days from placement of the original order and will then be deemed to lapse (“lapsed goods”). The Purchaser must liaise with the Supplier to re-order the lapsed goods to ensure delivery. Until the Purchaser re-orders the lapsed goods the Supplier is under no obligation to supply or deliver the lapsed goods.
9.3 The Supplier will not be bound by any terms or conditions expressed in orders or acceptances generated by the Purchaser except to the extent that such terms have been expressly agreed upon between the parties in writing and signed by the Supplier. For the avoidance of doubt, even where the Purchaser attaches or refers to other terms and conditions in purchase orders or other requests for quotations or supply of goods and/or services, received after this Agreement has been entered into (additional terms), such additional terms are expressly excluded from this Agreement and will be of no force or effect against the Supplier unless it expressly agrees otherwise (by notice in writing, signed by a director of the Supplier).
9.4 The Supplier may decline to accept any order without providing a reason in its absolute discretion.
9.5 If the Purchaser requests or the Supplier deems there to be a variation in the scope of the supply of goods, then the Supplier may (but is not obliged to) notify the Purchaser in writing of the variation, the price variation, associated delays and any other information the Supplier deems relevant.
9.6 The Supplier is not obliged to commence any supply associated with any variation identified in accordance with clause 9.4 unless and until the Purchaser acknowledges and accepts in writing the variations contained in that notice
10. Caveatable Interest Clause: In the event of Default of the agreed trading terms by the Purchaser, then the Purchaser by its Director(s)/Proprietor(s)/Partners/Individual(s), nominated the Engagement Form hereby charge all their Right, Title of Interest (if any) to any or all property(ies) owned or partly owned solely or jointly by the said Purchaser / Director(s) / Proprietor(s) / Partners / Individual(s) in favour of the Supplier, with the due and punctual observance and performance of all of the obligations of the Purchaser hereunder. Such Purchaser acknowledges that the Supplier may, at its discretion, register a caveat on such property in respect of the interest conferred on it under this clause. In the event that the Supplier is required to exercise its right under this clause, against the Purchaser, then the Purchaser grants to the Supplier the right to appoint a Receiver and sell the property(ies).
11. Retention Of Title: Until ALL INVOICES are paid in full, and ALL MONIES receipted and cleared, ownership of any goods supplied by the Supplier remains with the Supplier, but the risk passes to the Purchaser on delivery. Delivery shall occur if the Supplier or its Agent delivers, on delivery, and or if the Purchaser or its Agent(s) takes delivery, at that point of delivery. Until the supplier is paid in full, the relationship of the Purchaser to the Supplier shall be fiduciary in respect of the goods and the Purchaser shall hold the goods as bailee only for the Supplier. The Purchaser shall store the goods separately from its own until ownership has manifested in the Purchaser. Should the goods be onsold to a third party before payment, or in the event of the Appointment of an Administrator, Controller, Managing Controller, Receiver or Receiver Manager, or entry into an Informal/Formal Deed of Arrangement under the Bankruptcy Act of 1966 by the Purchaser, then the Purchaser hereby assigns to the Supplier its right of recovery of payment from the third party. The money(ies) resulting from the sale of the goods are to be specifically earmarked and placed in a separate account on trust for the Supplier, until payment in full is made to the Supplier for the cost of the goods only, to guarantee clear passage of ownership to the third party innocent purchaser. In the event the Purchaser is in default of the agreed trading terms, then the Purchaser without reservation grants right of entry waiver to any or all properties under the Purchasers control, where the goods are reasonably expected to be stored and where such goods are stored at sites not in the control of the Purchaser, then the Purchaser undertakes to use best endeavours to procure immediate rights of entry for the Supplier in respect of those sites upon request made by the Supplier. The Purchaser indemnifies and saves harmless the Supplier, its servants or agents in relation to loss or damage as a result of the retaking of possession of the said goods. Further, in the event the Supplier exercises its right of retaking possession of the said goods, the Purchaser grants power of sale to the Supplier to resell the said goods and the Purchaser acknowledges that any shortfall owing after the said goods are resold will be the responsibility of the Purchaser.
12. Security and PPSA
12.1 For the purposes of this clause, “PPSA” means the Personal Property Securities Act 2009 (Cth) as amended from time to time. Where a particular section or term existing or defined in the PPSA is used in this Agreement, it is deemed to be that section or term as used or defined in the PPSA as amended, renumbered or replaced from time to time.
12.2 The Purchaser acknowledges and agrees that this Agreement constitutes a security agreement in relation to the Supplier’s security interest in all present and after-acquired goods in accordance with the PPSA. The Purchaser agrees to grant a “Purchase Money Security Interest” to the Supplier.
12.3 For the avoidance of doubt, the Purchaser acknowledges and agrees that it grants to the Supplier a security interest in all goods supplied by the Supplier to the Purchaser (whether now or in the future) and in any proceeds from the sale of those goods.
12.4 To the extent permitted by law, the following provisions of the PPSA do not apply, and for the purposes of section 115 of the PPSA are contracted out of this Agreement:
a) sections 95 (notice of removal of accession), to the extent that it requires The Supplier to give a notice to the Purchaser, 96 (retain of accession) and 125 (obligation to dispose of or retain collateral);
b) section 130 (notice of disposal), to the extent that it requires The Supplier to give a notice to the Purchaser;
c) section 132(3)(d) (contents of statement of account after disposal);
d) section 132(4) (statement of account if no disposal);
e) section 135 (notice of retention);
f) section 142 (redemption of collateral);
g) section 143 (reinstatement of security agreement).
12.5 For the purposes of section 14(6) of the PPSA, the Purchaser (and The Supplier) agree that any payments received from the Purchaser by the Supplier pursuant to or in any way connected with this Agreement, will be applied in such order as the Supplier deems fit in its absolute discretion.
12.6 The Purchaser consents to:
a) and agrees to execute any other document or instrument required to give effect to the security interests created by this Agreement; and
b) the registration with the relevant authority or public register of any security interest created by this Agreement or any other document required to give effect to a security interest created by this Agreement, including without limitation the registration of a financing statement or financing change statement on the Personal Property Securities Register.
12.7 The Purchaser must pay all costs of and incidental to the preparation, execution and registration of any instrument which is executed for the purposes of giving effect to this clause and must also pay all costs incidental to the withdrawal, discharge or release of such instrument.
13. Delivery And Freight
13.1 Deliveries shall be made during normal working hours and will be at the sole cost and risk of the Purchaser. Deliveries required outside normal working hours will only be delivered upon the written request of the Purchaser, and all additional charges will be the sole responsibility of the Purchaser. In the event the Purchaser or the Purchaser’s Agent is not on site to accept the delivery, then the driver’s signature denoting the time, date and place of delivery shall be deemed to be acceptance of the said delivery in the quantity ordered and received in good condition. The date of delivery set forth in the order form is made in good faith and the Supplier will be deemed to agree to use reasonable endeavours to deliver by the relevant date, but the performance of the Supplier’s engagement is subject to industrial disturbances, delay in transit, damage to goods in transit, shortage of goods and any other cause beyond reasonable control of the Supplier. The Supplier shall be excused from any failure to deliver or complete which is contributed to by any such cause and the time specified for completion of delivery shall be extended commensurately. Delay in delivery or completion shall not constitute a breach of this Agreement, nor shall it affect any other provisions of the Agreement to the Supplier’s disadvantage.
13.2 The Purchaser may, acting reasonably, nominate and arrange for a delivery or freight carrier or provider, including an air freight courier, to uplift their order from the Supplier on its behalf. The Purchaser must supply full details of the delivery address, freight carrier & account number to the Supplier in writing prior to arranging a time for delivery. All costs associated with the delivery or freight carrier will be the sole responsibility of the Purchaser and the Purchaser assumes all risk in the products on and from the point of collection of the products by the delivery or freight carrier from the Supplier.
13.3 The Purchaser acknowledges that goods delivered to a courier are outside the Supplier’s control and the Supplier will not be liable for any loss, damage, delay or non-delivery of goods contributed to by a third party, to the extent permitted by law, irrespective of whether the delivery or courier was arranged, suggested or promoted by the Supplier.
13.4 If a delivery driver or courier, in their absolute discretion, deem the Purchaser’s delivery site unsafe or inaccessible then the delivery driver or courier reserves the right to not make the delivery of the goods until such time as the issues in relation to the site have been rectified or an alternative address supplied. In the meantime, the goods will be taken back to the Supplier’s premises at the Purchaser’s expense and any subsequent re-delivery will be at the Purchaser’s expense.
13.5 If a delivery driver or courier enters the Purchaser’s delivery site at the direction of the Purchaser or its personnel and becomes bogged or stuck, or otherwise causes damage then the Purchaser will be liable for the costs of recovering the delivery vehicle and for any damaged caused to the vehicle and any other property or person.
13.6 Subject always to the preceding clauses, the Supplier’s obligation to deliver goods will not extend beyond delivery immediately inside the boundary of the address details provided by the Purchaser.
13.7 The Supplier’s delivery driver or courier will not accept returns of any goods unless prior arrangements are made with the Supplier.
13.8 Some orders will require complete payment or a percentage of the order price to be paid up front by the Purchaser to the Supplier, some or all of which may be non refundable. This will be notified to the Purchaser after the order is placed.
13.9 If goods are to be collected from the Supplier’s premises and are not collected by the agreed collection date, then:
a) the Supplier will not be liable for any damaged caused to goods after that date;
b) the Purchaser will be liable to pay to the Supplier a storage fee calculated in accordance with clause 3, based on the price of the goods being stored; and
c) the Supplier may in its absolute discretion dispose of the goods in any manner it sees fit, including restocking the goods, and recover from the Purchaser the costs of doing so (along with the price of the goods, storage fees, Restocking Fee, and legal costs on an indemnity basis) as a liquidated debt.
14. Goods Returned For Credit
14.1 Subject to the warranty provisions contained in this Agreement, the Supplier may accept or refuse to provide a credit for returned goods in its absolute discretion. Goods will be accepted for credit only under the following conditions:
a) All returned goods must be delivered to the Supplier at an address to be nominate by the Supplier at the Purchaser’s sole risk, cost and responsibility;
b) All returned goods must be accompanied by proof pf purchase and a Credit Return Authorisation (CRA) number which must be obtained from the Supplier prior to return of the goods. Goods returned without a CRA will be returned to the customer at their expense;
c) Goods will not be accepted for credit after 30 days from date of purchase. Goods outside this time frame will require prior written authorisation from the Powerdown National Sales Manager or Powerdown Regional Sales Manager of the territory in which the goods were purchased and a CRA issued.
d) Goods are in a saleable condition, i.e. in original packaging, no damage to goods, nor defective packaging or accessory packages missing.
e) Non Stock Items and goods manufactured or supplied for a custom order or which have been modified to suit the Purchaser’s application will not be accepted for credit under any circumstances.
15. Restocking Fee
15.1 All “Stock Items” (ie, goods which are kept in stock in large quantities by the Supplier and are not ordered in on a job by job basis) that are not defective in design or manufacture, as determined by the Supplier acting reasonably, and are returned by the Purchaser shall incur a restocking fee of 10% of the total tax invoice price for those Stock Items.
15.2 The Purchaser acknowledges that the restocking fees are a genuine pre-estimate of the additional costs and damage suffered by the Supplier in accepting returns on the conditions specified in this clause.
16. Telephone Orders. All telephone orders are to be immediately confirmed in writing by the Purchaser. In the event the confirmation varies from that recorded and processed by the Supplier, then the Supplier’s record(s) shall prevail.
17. Payment. The Purchaser expressly acknowledges that at the absolute discretion of the Supplier, the Purchaser may be required to execute an authority to the Purchaser’s Bank authorizing a direct debit from the Purchaser’s Bank account, to the Supplier for all sums due on a monthly basis. The authority will be irrevocable without the express written consent of the Supplier.
18. Privacy Act. The Supplier acknowledges that all ‘personal information’ collected by the Supplier shall be treated in accordance with the Privacy Act 1988, as amended by the Privacy Amendment (Private Sector) Act No 155 of 2000.
19. Financial Information. The Purchaser agrees to provide financial information as is reasonably required by the Supplier from time to time, for the assessment of current and future credit limits only. The Supplier and the Purchaser further agree that such information shall be treated as strictly confidential and will not be disclosed to any third party(ies) without the express written permission of the Purchaser.
20. Price. All goods are sold at the price current at the time of delivery. The price of the goods are at the Suppliers works. Costs and charges for freight and handling at the point of delivery to the Purchaser or the Purchaser’s agent are payable by the Purchaser unless otherwise stated on the quote/order form. NOTE: – Pricing may vary from time to time subject to exchange rate variations and/or material increases outside the control of the Supplier.
21. Credit Limit. Notwithstanding any other provision in these terms, the Supplier may grant credit to a Purchaser under these terms either unconditionally or with any condition it sees fit, including, without limitation, a cap on the amount of credit the Supplier is comfortable extending to the Purchaser. The Supplier may increase or decrease any such cap as it sees fit from time to time throughout the duration of these terms. However, should the Supplier decide to extend beyond the credit cap in place from time to time, then the cap will in no way act to limit the ability or right of the Supplier to recover any monies owing to it nor will such cap act to limit the liability of the Purchaser or any Guarantor to pay those monies to the Supplier.
22. Credit Claims. It is the responsibility of the Purchaser to carefully inspect the goods immediately they are delivered. Credit Claims will be recognized if made in the first instance by phone within 48 HOURS of receipt, and also in writing within 7 days of delivery. Claims outside this period will be at the absolute discretion of the Supplier, and its decision final and binding on the Purchaser.
23. Return Of, Or Cancellation Of Goods Ordered. In the event the Purchaser elects to return goods or cancel goods on order, the Supplier at its absolute discretion reserves the right to charge a 10% handling fee on the amount involved. Further no return of goods will be accepted without prior approval of the Supplier in writing. All goods returned must be in original condition and packaging and complete in every detail. Goods will only be accepted if the freight is prepaid by the Purchaser.
24. Special Orders. Special orders attract a 50% deposit which will be debited to the Purchaser’s account upon receipt of a written order for goods outside our normal stock line, or for goods specifically modified to the Purchaser’s requirements. NOTE: – No return or cancellation of goods will be accepted once the order has commenced.
25. Warranties and Limitation Of Liability. Subject to clause 36, all goods sold carry only such warranty, if any, as is furnished by the manufacturer thereof, or as implied by law. The freight cost for goods returned for warranty consideration is the Purchaser’s responsibility. NOTE: – No warranty work will be completed whilst ever the Purchaser’s account is in default of the agreed trading terms.
25.1 This Agreement does not attempt to exclude, restrict or modify the application of any applicable laws of the Commonwealth State or Territory which cannot be excluded, restricted or modified including the Australian Consumer Laws.
25.2 The Purchaser acknowledges and agrees that to the extent permitted by law, the Supplier will not be liable for, and the Purchaser releases the Supplier in respect of, any claim, loss, cost, damage or expense (Claim) arising out of any act or omission of the Supplier or its employees, officers or agents unless that Claim is a direct result of the negligence of the Supplier or breach of this Agreement or a warranty by the Supplier.
25.3 The parties agree that to the extent permitted by law any liability for a Claim against the Supplier that cannot be excluded will be limited to the lesser of:
a) the re-supply or repair of defective goods or services (if applicable);
b) the cost of the re-supply or repair by a third party of defective the goods or services in question (if applicable); or
c) the contract price of the original supply of the goods or services.
25.4 Notwithstanding any of the above, the parties agree that the Supplier will under no circumstances be liable to the Purchaser for any indirect or consequential loss, loss of income, profit or opportunity or for any contingent, consequential direct/indirect special, or punitive damages arising out of or in connection with this Agreement, at law or in equity.
25.5 The Supplier’s liability/obligations to honour any claim under or in connection with this Agreement do not extend to any goods supplied by the Supplier to the Purchaser greater than 2 years or more from the date of purchase, rectification of defects, loss or damage which is caused or contributed to by use, storage or operation of any part of the goods other than in accordance with the more stringent of either: guidelines or specifications supplied by the Supplier or the manufacturer; industry best practice; or use under normal working conditions. The Supplier will also not be liable for defects, loss, costs or damage arising out of or in connection with:
a) the misuse, neglect, or wilful destruction of any part of the goods; or
b) any damage caused by or to the goods as a result of continued use of any part of the goods after a defect has been detected or ought to have been detected.
25.6 The Supplier will use reasonable endeavours to transfer warranties given by third party manufacturers of the goods supplied to the extent those warranties are transferrable. However, the Supplier will not be liable for negotiating with manufacturers on behalf of the Purchaser and will not be liable to provide warranties to the Purchaser in addition to those provided by the manufacturer and transferred under this clause.
25.7 To the extent permitted by law and unless otherwise expressly agreed or set out in the Terms of Trade, the Supplier does not provide and expressly excludes all other warranties and representations whether implied by statute or otherwise in respect of any goods or services.
25.8 If any provision of this Agreement is held to be unlawful, invalid, unenforceable or in conflict with any rule of law, statute, ordinance or regulation, it is to be severed so that the validity and enforceability of the remaining provisions are not affected.
25.9 The Purchaser indemnifies the Supplier and keeps the Supplier indemnified against all liability, loss, cost or damage in connection with or arising out of any of the following:
a) any breach by the Purchaser of these Terms of Trade or any contract between the Supplier and the Purchaser;
b) any claim arising out of or in any way related to any injury to or death of any person or loss of or damage to any tangible property arising out of or in any way relating to these Terms of Trade or any contract between the Supplier and the Purchaser and caused by an act or omission of the Purchaser or its employees or agents; and
c) any claim by a third party arising out of or in any way related to any wilful, negligent or unlawful act or omission of the Purchaser or its employees or agents, provided however that the Purchaser’s liability to indemnify the Supplier under this clause will be reduced proportionally to the extent that any negligent act or omission of the Supplier contributed to the liability.
26. GST. All prices quoted by the Supplier are exclusive of GST. GST will be charged where appropriate, unless a signed exemption form is received by the Supplier in the approved prescribed manner set down by the Australian Taxation Office. Any GST liability incurred as a result of a supply made by the Supplier to the Purchaser must be paid by the Purchaser to the Supplier in addition to, at the same time and in the same manner as the price for the supply.
27. Insurance. No Insurance Is Provided By The Supplier. The Purchaser acknowledges that insurance of all goods are the responsibility of the Purchaser at point of delivery.
28. Jurisdiction. The Purchaser acknowledges that this Agreement shall be governed by the Laws of the State of New South Wales, and the Purchaser hereby agrees to submit to the non-exclusive jurisdiction of the Courts of New South Wales.
29. Advice Given By The Supplier. The Purchaser acknowledges that, unless otherwise expressly stated in this Agreement, the Supplier is not an expert or otherwise qualified to give technical or other advice to the Purchaser. Should the Supplier or the Supplier’s employees give such advice to the Purchaser at the Purchaser’s request or otherwise, the Purchaser acknowledges that such advice, whilst given in good faith, may not be accurate or correct. The Purchaser releases and forever discharges the Supplier in respect of such advice and indemnifies the Supplier against any loss, cost, expense, damage or injury which may be caused or contributed to in reliance upon or otherwise as a result of such advice.
30. Special Orders Or Modifications. If the Supplier constructs or modifies any goods to meet the particular specifications of the Purchaser the Purchaser acknowledges and agrees that the modified goods are not covered by any warranty provided by the Supplier. The Supplier does not warrant that the modified goods will be suitable for the particular purpose to which the Purchaser intends to put them. The Purchaser releases and forever discharges the Supplier in respect of any modified goods and indemnifies the Supplier against any loss, cost, expense, damage or injury which may be caused or contributed by the Purchaser’s use, engagement, or on sale of such modified goods.
31. Copyright. All rights reserved. The Copyright Material or any part thereof cannot be printed, reproduced, altered or otherwise used without written authorization from the Supplier.
32. Intellectual Property. For the purposes of this Agreement, “Intellectual Property Rights” means copyright, trademark, design, patent, and any other rights whether or not they are registered or registrable, relevant to, among other things, the textual, graphical, audio and other information, content, data or material used by the Supplier in respect to this Agreement.
32.1 Any pre-existing Intellectual Property Rights owned by the Supplier before the commencement of this Agreement, will remain vested in the Supplier.
32.2 Any pre-existing Intellectual Property Rights owned by the Purchaser before the commencement of this Agreement, will remain vested in the Purchaser.
32.3 The Purchaser agrees to grant to the Supplier a non-exclusive, transferable, royalty free licence to use the Purchaser’s pre-existing Intellectual Property Rights to the extent that use relates to any material created by the Supplier pursuant to this Agreement.
32.4 Subject to any Intellectual Property Rights existing in any third party materials, all Intellectual Property Rights, created by the Supplier on or after the commencement of this Agreement will remain vested in the Supplier notwithstanding those rights were created pursuant to or for use in or with the goods.
32.5 Where goods are manufactured to the Purchaser’s specification, the Purchaser hereby indemnifies the Supplier from against liability to or action by a third party arising out of or in any way related to infringement of the intellectual property rights of a third party.
33. Disclaimer. Manufacturers names, part numbers, symbols or other references appearing in the Catalogues are used for reference for order of goods only. All information supplied was correct, to the best of the Supplier’s knowledge, at the time of publication and is subject to change without notice at any time at the discretion of the Supplier.
34. Credit Limit
34.1 Notwithstanding any other provision in these terms, the Supplier may grant credit to the Purchaser under these terms either unconditionally or with any condition it sees fit, including, without limitation, a cap on the amount of credit the Supplier is comfortable extending to the Purchaser. The Supplier may increase or decrease any such cap as it sees fit from time to time throughout the duration of these terms by notice to the Purchaser in writing
34.2 If a credit limit is set and then exceeded by the Supplier, such excess will not be a breach of this Agreement by the Supplier.
34.3 In the event that the Supplier serves notice in accordance with clause 35.1 then, apart from any extension, increase or reduction set out in the notice, this Agreement and any supporting guarantee will continue to operate in its amended form.
34.4 However, should the Supplier decide to extend beyond the credit cap in place from time to time, then the cap will in no way act to limit the ability or right of the Supplier to recover any monies owing to it nor will such cap act to limit the liability of the Purchaser or any Guarantor to pay those monies to the Supplier.
35. Guarantor And Purchaser’s Warranties
35.1 The Purchaser warrants that:
a) In the case of a natural person, he/she has never been a bankrupt or entered into a deed of arrangement or compromise or any other arrangement under Part X of the Bankruptcy Act or otherwise assigned his/her assets for the benefit of creditors;
b) It has never been under external administration or subject to the appointment of an external receiver or controller or entered into a deed of company arrangement and that it is solvent and able to pay its debts as and when they fall due;
c) It is not executing this Agreement as a result of or by reason of or in reliance upon any promise, representation, statement or information of any kind whatever given or offered to them by or on behalf of the Supplier whether in answer to an enquiry or otherwise;
d) All information provided in any Engagement Form is accurate and correct; and
e) Prior to the placement of any order, it has made its own independent enquiries and satisfied itself as to the size, design, capacity, quality and fitness for purpose of the goods and/or services and, to the extent permitted by law, the Purchaser is not relying on any warranty, promise or representation in relation to the goods and/or services, either expressly or impliedly given by the Supplier.
35.2 In entering into this Agreement, the Supplier relies upon the warranties provided in this clause and upon any information supplied by the Purchaser in any accompanying Engagement Form.
35.3 The Supplier relies upon the representation that the person signing this Agreement has authority to execute it on behalf of the Purchaser.
36. Component Specific Warranties
The Supplier gives the following limited warranties in respect of parts or products manufactured by the Supplier only:
36.1 Shock Absorbers
The Supplier warrants all shock absorbers are free from defects in materials or faulty workmanship provided always that the shock absorbers have been correctly installed as recommended by the Supplier. The warranty period for shock absorbers containing mineral oil is 12 months or 150,000 kms whichever comes first from date of purchase. The warranty period for shock absorbers containing Enveero fluid is 24 months or 250,000 kms whichever comes first from date of purchase.
36.2 Air Springs
The Supplier warrants that all air springs are free from defects in materials and workmanship for a period of 24 months from the date of purchase. This warranty is voided if the air springs are used, or applied, in a manner other than as recommended by the Supplier.
36.3 Polyurethane Products
These consumables are used as mounts and suspension bushes. The Supplier warrants that these products are free from defects in materials or faulty workmanship provided always that these products have been correctly installed in accordance with the Supplier’s recommendations. The warranty period is 3 months from date of purchase, and will not exceed the purchase price total of the products.
36.4 Height Control Valves
The Supplier warrants that all height control values supplied by the Supplier are free from manufacturing faults and material failures for a period of 12 months from date of purchase. Height control valves will not be warranted where the product failure is due to incorrect fitment, (or adjustment), poor maintenance, a contaminated air system or compressor failure.
36.5 No warranty claims will be considered if customer’s account is outside our trading terms.
36.6 These warranty conditions do not attempt to exclude, restrict or modify the application of any applicable laws of the Commonwealth, State or Territory which cannot be excluded, restricted or modified including the Australian Consumer Laws.
36.7 The warranties contained in this clause and the Suppliers liability under those warranties are limited by the provisions of clauses 24.2 to 24.5 (inclusive) and do not extend to defects caused or contributed to by accident, misuse, improper installation, neglect or wear and tear.
36.8 No warranty claims will be considered until the complete product, including all packaging and manuals, is returned to the Supplier at an address to be nominated by the Supplier, together with proof of purchase and a completed Warranty Claim Form (in the form provided by the Supplier upon request). The cost of dismantling, removing the product from any associated machinery and returning the product to the Supplier are to be paid by the Purchaser. The Supplier is not liable for any labour or other costs associated with removal or reassembly/reinstallation of the product the subject of a valid warranty claim.