Terms and Conditions
GENERAL TERMS AND CONDITIONS OF TRADE
To the fullest extent legally permissible all dealings between the customer (including all related and/or associated companies and/or other entities, all successors and/or assigns and in its own capacity and as trustee of each and every trust of which it is trustee) [jointly “the Customer”] and Goodyear & Dunlop Tyres (Aust) Pty Ltd ACN 004 098 346 (and/or any related and/or associated companies, trusts and/or other entities and/or any successors and/or assigns) whether trading as [“Beaurepaires”] and/or otherwise [“GDT”] relating to any goods and/or services [the “goods” and/or the “services”] are subject to the following terms and conditions [“these Terms”] unless otherwise expressly agreed in writing:
1. CREDIT TERMS
1.1. Payment: a) Payment shall be made by cash, cheque, bank cheque or EFTPOS, without deduction and within the credit period stipulated in each invoice or statement. If no credit period is stipulated, payment shall be made by the 30th day of the month following date of invoice without deduction. b) The Customer agrees to pay; (i) an administration fee of 2% as the liquidated processing cost on credit card payments and/or on payments made outside the credit period; and (ii) any administrative costs of GDT incurred at the request of the Customer.
1.2. Property: a) The Customer agrees that these Terms constitute a “security agreement” for the purposes of the Personal Property Securities Act 2009 (Cth) [“PPSA”], that GDT has and/or will have a “security interest” in respect of all goods and/or services whether present or after acquired for the purposes of the PPSA and that PPSA Sections 125, 130, 132(3)(d), 132(4), 135 & 157 shall not apply to any such security interest. b) Property in goods shall not pass until payment in full of all monies owed by the Customer. c) GDT reserves the right to take possession and dispose of goods as it sees fit at any time until full payment. The Customer grants permission to GDT to enter any property where any goods are stored with force if necessary. d) Immediately on delivery the Customer accepts liability for the safe custody of goods and indemnifies GDT for any related losses. e) Until payment in full the Customer agrees: (i) to keep all goods unpaid for as fiduciary for GDT and store all goods in a manner which shows GDT as owner; (ii) to only sell goods in the usual course of its business on the basis that all proceeds are held in trust for GDT; and (iii) that sale on terms, for less than cost and/or to a related entity of the Customer shall not be “in the usual course”. f) Without derogating from any rights of GDT as a creditor or under these Terms if goods are used in any construction, fabrication, manufacturing and/or other process [“the Process”] which results in an entitlement of the Customer to receive money from any other person the Customer agrees to hold such part of any monies received by the Customer (or the corresponding book debt owed to the Customer in respect of those monies) as is equivalent to the value of any goods used in the Process as invoiced to the Customer by GDT UPON TRUST for GDT until payment in full for those goods and all monies owed to GDT. g) Nothing in this clause is intended to create a charge and this clause shall be read down to the extent necessary to avoid creating any charge. h) The Customer agrees a certificate signed by an officer of GDT and stating certain facts for the purposes of this clause shall be conclusive evidence of each fact stated. i) GDT is not obliged to accept the return of goods.
1.3. Interest: Interest shall be charged on overdue accounts at the Penalty Interest Rates Act 1983 (Vic) Interest rate plus 3%.
1.4. Credit Limit: Any credit limit is an indication only of the intention of GDT at the time. GDT undertakes periodic reviews of credit limits and may vary or withdraw credit at any time at its discretion and without any liability to the Customer or any other party. Upon breach of these Terms or any other agreement with the Customer all monies owing by the Customer shall become immediately due and payable.
1.5. Security For Payment: The Customer hereby grants to GDT a general lien over all property of the Customer until payment in full of all monies owing to GDT.
2. PRODUCT TERMS
2.1. Products: a) To the extent permitted by the ACL and without derogating from clause 2.8 GDT disclaims all responsibility and/or liability whatsoever in relation to any goods and/or services (including tyres & tubes) sold subject to these Terms or otherwise which are: (i) fitted to or used on rims or wheels: (A) which do not comply with any specifications of the Tyre & Rim Association of Australia [“TRAA”] or which are used in contravention of any applicable statutory provision; (B) which are out of alignment, damaged, rusty or otherwise in improper condition; (C) used in abnormal conditions (including off‑road use, trials, rallies, record attempts etc); (D) in conjunction with tubes and/or valves which are not recommended or approved by GDT; (E) in breach of good practice or any GDT conditions of use or recommendations; (F) with undersized tubes or flaps; (ii) damaged in any way after manufacture; (iii) improperly inflated at any time or used with substitutes for air which are not recommended by GDT; (iv) used for any purpose which is in excess of the ratings marked on the tyre side walls or specified by the TRAA; (v) used for excessive loads or at excessive speeds; (vi) altered, reprocessed or repaired in any way whatsoever whether by GDT, its authorised agents or otherwise; (vii) purchased by the Customer second hand or blemished; and/or (viii) treated at any time with any sealant for any reason. b) The Customer acknowledges that tyres and tubes can be damaged by (inter alia) misuse, contact with solvents or other chemicals, prolonged exposure to infra red or ultra violet rays and other light sources, heat, incorrect storage, improper or careless fitting or use and any of the matters referred to above.
2.2. Warranty: a) Notwithstanding clause 2.8, if any tyre or tube sold by GDT develops any fault which is due to a defect in manufacture, processing or material and which in GDT’s opinion precludes reasonable usage being obtained by the Customer, then provided such tyre or tube is returned to GDT at any owned and operated tyre service centre within 14 days of the Customer becoming aware of the fault, with all transportation charges prepaid, GDT will either: (i) repair or replace the tyre or tube free of charge; or (ii) make such allowance to the Customer in a reduction in the then current price for a new, reconditioned or repaired tyre or tube as is appropriate, after taking into account the usage already rendered by the tyre or tube in question. b) All warranty adjustments must be made on a properly completed warranty adjustment processing form.
2.3. Purchase Price: All sales are made at the price prevailing at the time of delivery. Any price quoted or in any GDT publication shall be deemed an estimate only and shall be subject to alteration at the discretion of GDT to reflect movements in exchange rates, taxes and imports, CPI increases and increases in the cost of labour and/or raw materials or other costs up to the time of delivery. Unless agreed in writing the purchase price for any goods shall not include any GST or any other impost and all are payable by the Customer.
2.4. Quotations: The Customer agrees that: a) quotations must be in writing; b) GDT shall not be bound by any quotation if an order is not placed within 14 days from the date of quotation; c) GDT may prior to receipt of any order amend any quotation and notify the Customer accordingly without ramification; d) the Customer shall pay any additional charges GDT levies for holding any goods referred to in any quotation pending placement of an order.
2.5. Placement of Orders: The Customer agrees that if any dispute arises concerning any order (including any question of identity or authority) the internal records of GDT shall be conclusive evidence of what was ordered.
2.6. Supply and Delivery: a) GDT may supply by instalments and/or withhold or cancel supply without liability and/or ramification where: (i) GDT has insufficient goods to fulfil orders; (ii) goods are not available to supply; (iii) the Customer is in breach of these Terms or any agreement with GDT; (iv) GDT has any safety concerns; and/or (v) GDT considers it appropriate whether because of any minimum invoice policy or otherwise. b) the exercise of any of these rights does not entitle the Customer or any party terminate any agreement with GDT or to claim any loss or damage. c) The Customer agrees: (i) that GDT may elect to arrange delivery at its discretion and without any liability and at the cost and responsibility of the Customer in all things; (ii) that the Customer shall be deemed to have accepted delivery and liability for goods on being notified by GDT that goods are ready for collection and/or on goods being delivered to a carrier or to the Customer’s business premises or nominated site whether attended or not; (iii) to pay GDT for any demurrage or other costs and expenses in handling and/or holding any goods once ready for delivery and/or collection; (iv) to pay for so much of any forward order as GDT invoices from time to time; and (v) that a certificate purporting to be signed by an officer of GDT confirming delivery shall be conclusive evidence of delivery as shall any signed delivery docket.
2.7. Cancellations and Returns: The Customer agrees: a) not to cancel any order without GDT’s prior approval; b) not to return goods without an original invoice and GDT’s prior approval, and only if goods are in brand new and unused condition with undamaged packaging and/or if no more than 3 weeks have passed since delivery; c) that GDT may take back goods in saleable condition on such terms as GDT considers to be reasonable; d) to pay GDT on request a restocking fee of 15% of the gross invoice value of all returns; and e) not to return any goods which have been custom made, custom processed or custom acquired.
2.8. Limitation of Liability: To the extent permitted by the ACL: a) the Customer agrees to limit any claim to the replacement/repair of the goods (or cost thereof) and/or re‑supply of services (or cost thereof); b) GDT shall not be liable for: (i) any claim, loss or expense which is made after 7 days from the date of delivery of goods and/or services – after which there shall be deemed to have been unqualified acceptance; (ii) any consequential loss and/or any special and/or punitive damages through any fault of GDT or otherwise; and/or (iii) any claim in any way caused and/or contributed to by the Customer and/or any third party.
2.9. Exclusions: To the extent permitted by the ACL: a) no dealing between GDT and the Customer shall be or be deemed to be a sale by sample; b) the Customer shall rely on its own knowledge and expertise in selecting any goods and/or services for any purpose and any advice and/or assistance given by or for GDT shall be at the Customer’s risk and shall not be or be deemed to be given as expert or adviser nor to have been relied on by the Customer or anyone claiming through the Customer; c) all goods are sold subject to all applicable trading terms, warranties and representations of the manufacturer; d) GDT shall not be responsible nor liable for paying and/or obtaining any necessary judicial, statutory, government and/or utility fees, expenses, orders, approvals, permits and/or licences; e) GDT shall not be liable for any goods and/or services: (i) made or performed to designs, drawings, specifications and/or procedures etc. and/or with materials which are provided and/or approved (whether fully or in part) by or on behalf of the Customer; (ii) utilised, stored, handled and/or maintained incorrectly or inappropriately; and/or (iii) manufactured and/or supplied by any other party; and f) the Customer agrees to: (i) check all goods for compliance with all applicable laws, standards and/or guidelines before use, on-sale and/or application; (ii) comply with all applicable laws, standards and/or guidelines and with all recommendations and/or directions made and/or given by GDT and/or by any manufacturer; and (iii) act in accordance with good practice at all times.
2.10. Intellectual Property: The Customer agrees that all intellectual property in the creation of any goods and/or services shall be and remain the property of GDT notwithstanding any contribution by the Customer.
3.1. Consumer Guarantees & ACL: The Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) [“ACL”] provides consumers with certain consumer guarantees and rights in relation to certain transactions concerning goods and/or services (see www.consumerlaw.gov.au). Any rights the Customer may have under the ACL shall apply notwithstanding any inconsistent provisions in these Terms which shall be read down to the extent necessary to comply with the ACL and which shall otherwise apply to the fullest extent legally permissible.
3.2. Variations: To be binding any variation or cancellation of these Terms or any order must be approved by GDT in writing.
3.3. Default: a) On default or breach by the Customer or any part of these Terms or any other agreement with the Customer the full balance of all unpaid monies shall be deemed by this clause to be immediately due and payable and GDT may inter alia terminate any contract, retain all monies paid, cease further deliveries and/or provision of services, recover all costs, expenses and lost profits and/or at its discretion take immediate possession of any goods not paid for without prejudice to any other rights and without being liable in any way to any party. b) The Customer agrees to indemnify GDT for all fees and expenses payable to solicitors, mercantile agents and other parties acting on behalf of GDT in respect of anything instituted or being considered against the Customer whether for debt, possession of any goods or otherwise (including all legal costs on an indemnity basis). c) GDT may apply any payment in reduction of fees, interest and/or any principal debt in such order of priority as GDT in its discretion deems appropriate. d) The Customer irrevocably authorises the payment directly to GDT of any debt due to the Customer by any debtor of the Customer in reduction of any amount due to GDT under these Terms or otherwise.
3.4. Insolvency: The Customer shall be in default of these Terms if it commits an act of insolvency, appoints an insolvency practitioner and/or calls a formal meeting of creditors.
3.5. Customer Restructure: The Customer shall notify GDT within 7 days of any material change in the legal structure and/or management of the Customer including: (i) any sale or disposition of any part of the business of the Customer and/or of any trust of which the Customer is Trustee; (ii) any change in director, shareholder, management, partnership and/or trusteeship; (iii) any new charge, mortgage and/or security given to any supplier and/or financier; and/or (iv) any involvement in any franchised business in any capacity. Until notice of such change is received by GDT, the Customer guarantees to GDT the performance of all obligations of any party acquiring any part of the Customer’s business.
3.6. Indemnity: The Customer indemnifies GDT against any claim or loss arising from or related in any way to any dealing between GDT & the Customer and/or arising under these Terms.
3.7. Other Terms and Conditions: No terms and conditions sought to be imposed by the Customer upon GDT shall apply.
3.8. Jurisdiction: The Customer agrees that these Terms and any claim or dispute between GDT and the Customer shall be governed by the law applicable in the State nominated by GDT and the Customer agrees to submit to the jurisdiction of the appropriate Court nominated by GDT in the capital city of that State. If no State is nominated then
3.9. Waiver: An election by GDT not to exercise any rights on any breach of these Terms shall not constitute a waiver of any rights relating to that or any other breach.
3.10. Notice: The Customer agrees that it shall be deemed to have notice of any change to these Terms immediately any change is adopted by GDT and whether or not the Customer has actual notice.
3.11. Force Majeure: GDT shall not be in default or in breach of any contract with the Customer as a result of Force Majeure including any strike or lock-out.
3.12. Containers, Pallets and Stands: The Customer agrees on request to return all containers, pallets, stands, reusable packaging and/or display equipment [“Equipment”] provided by GDT and to indemnify GDT for the full replacement cost of any Equipment not returned or damaged.
3.13. Severability: Any part of these Terms shall be capable of severance without affecting any other part of these Terms.
3.14 Anti-Bribery and Corruption: Each party warrants that it and its related bodies corporate shall comply with all applicable anti-bribery and anti-corruption laws including (without limiting) the US Foreign Corrupt Practices Act. Without limiting the foregoing neither party shall make any improper or unlawful payment, gift, bribe, or advantage to any government or quasi government official in order to influence any administrative decision or to gain any improper advantage."