1 INTERPRETATION
In this Agreement, the following words have these corresponding meanings:
“ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) as amended.
“Agreement” means this Agreement including the Schedule and any annexures.
“Customer” means the party named in Item 1 of the Schedule, or, if no party is named, the party to whom Partswise provides this Agreement and/or Products and Services.
“Partswise” means Caldwell Family Pty Ltd (ACN 078 973 332) as trustee for the GR and LJ Caldwell Family Trust (ABN 66 363 870 217) trading as Partswise.
“GST” means the Goods and Services Tax as defined in A New Tax System (Goods and Services Act) 1999(Cth) as amended.
“Guarantor” has the meaning given to it in clause 12 of this Agreement.
“Installation” means the installation at the Site of the Products and Services.
“Order” means a request by the Customer to purchase the Products or Services from Partswise.
“Parties” means the Customer and Partswise.
“PPSA” means the Personal Property Securities Act 2009 (Cth) as amended from time to time.
“Price” means the price payable by the Customer to Partswise for the Products or Services pursuant to the Order.
“Products” means any Products which Partswise sells or provides to the Customer or installs for the Customer from time to time.
“Quotation” means any quotation from Partswise for the supply of Products to the Customer or the provision of Services to the Customer.
“Register” has the meaning given to it by section 10 of the PPSA.
“Schedule” means the Schedule on the front page of or otherwise attached to this Agreement
“Security Interest” has the meaning given to it by section 12 of the PPSA.
“Services” means any services which Partswise sells or provides to the Customer from time to time.
“Site” means any location to which the Customer requests that Products be delivered and/or installed or at which Services are to be performed.
“Warranty Claim Form” means the form annexed to this Agreement at Annexure “A”.
“Warranty Policy” means the policy annexed to this Agreement at Annexure “B”;
“Warranty Procedure” means completing the Warranty Claim Form in full and complying with the terms and the process set out in the Warranty Claim Form and the Warranty Policy.
2 ACCEPTANCE OF AGREEMENT
The Customer agrees to the terms and conditions set out in this Agreement and enters into this Agreement with Partswise by either:
a) signing a copy of the Agreement; or
b) placing an Order with Partswise; or
c) requesting Products or Services from Partswise after having received a copy of this Agreement.
3 ENTIRE AGREEMENT
a) This Agreement constitutes a full and complete statement of the agreement between Partswise and the Customer and no variations or modifications of any term of the Agreement shall be binding unless agreed in writing by Partswise.
b) Partswise may vary or amend these terms by written notice to the Customer at any time. Any variations made will only apply to Orders placed by the Customer after the time that the variation has been brought to the Customer’s attention. The variation is deemed to have been brought to the Customer’s attention if Partswise provides notice of the variation to the Customer’s details set out in the Schedule.
4 TERM OF AGREEMENT
This Agreement shall cover all dealings between the Parties until it is replaced by an alternate written agreement or is terminated in accordance with its terms.
5 SUPPLY OF THE PRODUCTS AND SERVICES
a) The Customer purchases the Products or Services from Partswise in accordance with the Order and the terms and conditions contained in this Agreement.
b) The Customer or the person completing the Schedule on behalf of the Customer, warrants to Partswise that they have full, unrestricted authority to enter into this Agreement and bind the Customer.
c) Partswise reserves the right to refuse any Order and/or terminate this Agreement for any reason, without penalty.
d) If requested by Partswise, prior to placing an Order, the Customer must provide Partswise with the details of three (3) trade references at Item 4 of the Schedule. Partswise reserves the right in its absolute discretion to refuse an Order or place any further restrictions or conditions on the Order as it sees fit as a result of the references or the refusal by the Customer to provide the references.
e) The Customer agrees to provide a current driver’s licence to Partswise and authorises Partswise to take a photocopy of the driver’s licence to better secure the performance by the Customer of its obligations contained in this Agreement. Partswise reserves the right in its absolute discretion to refuse an Order or place any further restrictions or conditions on the Order as it sees fit as a result of the refusal by the Customer to produce a driver’s licence.
f) Whilst Partswise will use its best endeavours to ensure that it is able to provide Products and Services to the Customer when required, it does not warrant or guarantee that it will be able to do so and will not be responsible for any losses alleged to have been suffered by the Customer as a result of failure to supply, or delay in supplying Products and Services, regardless of the reason for the failure to supply.
g) Partswise retains an absolute discretion at all times to refuse to acceptany Order made by the Customer for Products or Services.
h) Any period or date for delivery of Products or Services stated by or onbehalf of Partswise shall be regarded by the Customer as an estimate onlyand not a contractual commitment.
6 QUOTATIONS
a) Any quote provided by Partswise is valid for a period of fourteen (14) days and is based on information available to Partswise at the time of providing the quote to the Customer.
b) Unless otherwise stated, quotes for Products or Services are exclusive of GST and any other applicable taxes, duties or freight. In addition to the Price the Customer must also pay any applicable GST, taxes, duties or freight.
7 PRICE AND PAYMENT
a) The Price for the Products and/or Services is subject to change.
b) The Customer must pay the Deposit (if any) set out in Item 5 of the Schedule when placing the Order. The Customer agrees that the Deposit is non-refundable and is forfeited to Partswise absolutely in the event of default by the Customer or in the event that the Customer elects not to proceed with the Order after having placed the Order.
c) The Customer must pay the Price without set-off or deduction and strictly in accordance with Item 5 of the Schedule.
d) Payment by cheque is not deemed to have been made unless and until the cheque has cleared in the account of Partswise.
e) All payments must be made by way of cleared funds. The Customer agrees to reimburse Partswise for any payment dishonour fees.
f) All right, title and interest in the Products and Services remains with Partswise until the Customer has paid for the Products and Services in full (including any applicable interest).
8 DELIVERY & INSTALLATION
a) The Customer is responsible for collection and/or delivery of the Products.
b) The Customer may, subject to approval by Partswise, request Partswise to deliver the Products to the Customer.
c) The Customer is entirely responsible for all liability and risk relating to the Site.
d) If Partswise agrees to deliver the Products to the Customer, the Customer must notify Partswise of the Site to which the Products are to be delivered.
e) The Customer is responsible for all freight costs associated with the delivery of the Products unless otherwise agreed in writing by Partswise.
f) Partswise is not liable for any damage to, or loss of, the Products occurring during freight delivery to the Customer.
g) Delivery is deemed to have occurred when the Customer, or someone authorised by the Customer, signs the consignment or, where there is no one to sign the consignment, when the Products are left at the Site.
h) The Customer must ensure that the owner of the Site or someone duly authorised to make decisions regarding the Site is present at the time of delivery.
i) If Partswise delivers the Products to the Site and the owner or authorised representative is not present to accept delivery, Partswise may elect (at its discretion) to leave the Products at the Site without incurring any liability or, charge a redelivery and/or storage fee to the Customer. Partswise is under no obligation to deliver the Products if the Customer refuses to pay the redelivery and/or storage fees.
j) Any time or date for delivery given by Partswise to the Customer is an estimate only. The Customer must accept delivery of the Products even if late and Partswise will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
k) Partswise is not responsible for, and the Customer will indemnify Partswise against, any claims, costs, damages or losses incurred as a result of the Products being delivered to the Site or left at the Site where there is no one available to sign for the Products.
9 SITE REQUIREMENTS
a) If Partswise agrees to deliver Products to the Site, the Customer must provide safe, constant, suitable and practical means of access to the Site at all times and must ensure that the Site is suitable to allow the efficient and safe delivery and Installation of the Products and Services.
b) The Customer warrants that it is the owner of the Site, or, if it is not, that it is authorised by the owner to allow for Services being performed at the Site and/or for Products to be installed or delivered on or to the Site.
c) The Customer shall ensure that any other parties performing works at the Site do not interfere with or otherwise hinder Partswise’s provision of the Services or delivery and Installation of the Products. In this regard, the Customer shall provide to Partswise any information reasonably required by it in respect of the activities or proposed activities of any other party performing works at the Site.
d) At no time does Partswise take or accept any responsibility for the Site and all risk and liability in and relating to the Site remains with the Customer at all times.
e) The Customer must ensure that to the extent that the provision of Products and Services by Partswise is reliant upon the supply of access, goods, materials, areas, services or structures by others, such supply will be provided without delay or impediment.
f) The Customer warrants that the Site, at all times, will be safe and will not expose Partswise or any employees or agents of Partswise, to risk of any kind.
10 WARRANTIES
a) Subject to clauses 10(b) and 15 and provided the Customer has complied with the Warranty Procedure when making a claim, Partswise shall make every reasonable effort to ensure that the Customer will have the benefit of any manufacturer’s warranties relating to the Products as well as any additional warranty offered by Partswise pursuant to the Warranty Policy.
b) Partswise is under no obligation to, and will not, honour any warranty (whether a manufacturer’s warranty or a warranty provided by Partswise) where the Warranty Procedure has not been followed and/or where damage to Products or Services or failure of Products or Services is caused or contributed to by disregard of operating and/or maintenance instructions, accidents, neglect, unauthorised installations, installation errors, faulty repairs or alterations, incorrect fitting/installation, fitting/installation by tradesman who are not duly qualified to install/fit the Products, misuse or acts of God.
11 BREACH BY CUSTOMER
a) Interest is payable by the Customer to Partswise on any amounts outstanding outside of the Terms of Payment set out at Item 5 of the Schedule at the rate that is 2% above the rate set by the Penalty Interest Rate Act 1983 (Vic) at the time the amount becomes overdue which is calculated daily on the amount outstanding until paid in full.
b) Partswise shall be free to suspend or cancel any Order in circumstances where the Customer has failed to make any payment within the Terms of Payment set out at Item 5 of the Schedule.
c) The Customer hereby indemnifies Partswise in respect of any costs incurred by Partswise (including legal costs on a solicitor/client basis) as a result of any breach of this Agreement by the Customer, including (without limitation) any breach of the Terms of Payment set out at Item 5 of the Schedule. Such costs include but are not limited to the costs of any demands made of the Customer to remedy any breach, and any legal proceedings to recover any unpaid money.
12 DIRECTOR’S GUARANTEE
a) In the event that the Customer is an incorporated entity: (i) the person signing this Agreement on behalf of the Customer (the “Guarantor”) hereby personally guarantees to Partswise the due performance of the Customer’s obligations under this Agreement, including the due and punctual payment of any money payable by the Customer to Partswise, for any reason, at any time (the “Guarantee”). The Guarantee is a continuing guarantee. The obligations under the Guarantee are principal obligations and may be enforced against the Guarantor without Partswise being first required to exhaust any remedy it may have against the Customer. (ii) the Guarantor indemnifies Partswise against all costs and losses however arising or incurred as a result of the Customer’s or the Guarantors failure to comply with the terms and conditions contained in this Agreement.
b) The Guarantor charges in favour of Partswise as security for the Guarantee, all right, title and interest in the Guarantor’s real and personal property. The Guarantor agrees that Partswise is free to register any security over the Guarantor’s real or personal property to better secure the charge created by this clause.
c) In addition to the Guarantee above, the Customer and the Guarantor agree that they will, if called upon at any time by Partswise to do so, procure from any other directors of the Customer, a further personal guarantee of the Customer’s obligations pursuant to this Agreement in a form acceptable to Partswise, with such guarantee to cover both Partswise liabilities and any liabilities of the Customer to Partswise which predate the signing of the guarantee.
13 RETENTION OF TITLE IN PRODUCTS
Until Partswise receives full payment in the form of clear funds for all Products or Services supplied by it to the Customer together with any other amounts owing by the Customer to Partswise pursuant to this Agreement:
a) All right, title and interest in all of the Products and Services remains vested in, and the absolute property of, Partswise and does not pass to the Customer;
b) The Customer charges in favour of Partswise as security for payment for the Products or the provision of Services, all right, title and interest in the Customer’s real and personal property. The Customer agrees that Partswise is free to register any security over the Customer’s real or personal property to better secure the charge created by this clause;
c) The Customer must hold the Products as bailee for Partswise;
d) The Customer must hold the proceeds of any sale of the Products on trust for Partswise; and
e) In addition to its rights under the PPSA, Partswise may without notice, enter any premises where it suspects that the Products are and remove them, and for this purpose the Customer irrevocably licenses Partswise or its agents to enter onto such premises and also indemnifies Partswise from and against all costs, claims, demands or actions by any party arising from such action.
f) For the purposes of the PPSA, by executing this Agreement or by placing an Order, the Customer agrees to grant to Partswise a Security Interest in the Products or over all present and after acquired property of the Customer and Partswise shall be entitled to register the Security Interest on the Register.
14 PERSONAL PROPERTY SECURITIES ACT
a) For the purposes of the PPSA:
(i) terms used in this clause have the corresponding meaning to their use in the PPSA;
(ii) this Agreement constitutes a security agreement between Partswise and the Customer and Partswise has a Purchase Money Security Interest in all present and future Products or Services supplied by Partswise to the Customer and the proceeds of those Products or Services;
(iii) the Security Interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer to Partswise at any particular point in time.
b) The Customer must do whatever is required to give Partswise a valid Security Interest over the Products or Services and their proceeds which is able to be registered by Partswise on the Register. Without limiting the Customer’s obligations under this clause, the Customer must immediately upon Partswise’s request:
(i) execute all documents and do any other things necessary to give effect to the Security Interest created under this Agreement; and
(ii) procure from any person considered by Partswise to be relevant to its security position such agreements and waivers as Partswise may require at any time.
c) The Security Interest arising under this clause attaches to the Products when the Products are collected from or dispatched from Partswise’s premises and not at any later time.
d) Partswise shall be free to allocate sums received from the Customer in any manner Partswise determines, including in any manner required to preserve any Purchase Money Security Interest or any other Security Interest it has arising by virtue of supply of Products or Services to the Customer.
e) The Customer warrants that it will not nor allow any other person or entity to register a Security Interest over the Customer or the Products or Services which in any way affects the Products or Services or Partswise’s Security Interest.
f) The Customer waives its rights under the PPSA to receive a copy of any verification statement or financing change statement.
15 RISK, LIABILITY, RETURNS & DEFECTS
a) All risk in the Products and Services and all insurance responsibility for theft, fire or damage of any other kind, passes to the Customer immediately upon the Products being collected from Partswise or when dispatched from Partswise’s premises (if Partswise agrees to deliver the Products).
b) The Customer warrants that it has and will have at the time of making any particular Order for Products or Services, all necessary licenses, permits or approvals under all relevant laws and regulations and from any person from which the Customer is required to have obtained such approval, to possess and use the Products or Services.
c) If Partswise is liable for a breach of a guarantee implied by the ACL in respect to the provision of the Products or Services and those Products or Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then, to the extent permitted by the ACL, its liability to the Customer will be limited to:
(i) the replacement of the Products and Services or the supply of equivalent Products and Services;
(ii) the payment of the costs of replacing the Products and Services or acquiring equivalent Products and Services;
(iii) the supplying of the Services again; or
(iv) the payment of the cost of having the Services supplied again.
d) Partswise is not liable for any consequential loss to the Customer or any third party as a result of any defect with the Products and/or Services.
e) The Customer must inspect the Products or Services upon collection or upon delivery (as the case may be) and must, in writing, and within 7 days of collection or delivery, notify Partswise of any defect, damage, shortage in quantity, or failure to comply with the Order (the “Notification”).
f) The Customer must return the Products to Partswise within thirty (30) days of the Notification to allow Partswise to inspect the Products. Partswise is under no obligation to indemnify the Customer or replace/repair the Products where the Customer has failed to notify Partswise in accordance with clause 15(e) and/or has failed to return the Products within the timeframe set out in this clause 15(f).
g) Except as expressly set out in this Agreement and to the fullest extent permitted by law, Partswise makes no warranties or other representations under these terms and conditions including but not limited to the quality, suitability, merchantable quality or fitness for purpose of the Products.
h) If Partswise is required to replace the Products or Services under this clause or the ACL, but is unable to do so, Partswise may refund any money the Customer has paid for the Products or Services.
i) If the Customer is not a consumer within the meaning of the ACL, Partswise’s liability for any defect or damage in the Products or Services is:
(i) Limited to any warranty to which Partswise is entitled, if Partswise did not manufacture the Products; or
(ii) Otherwise negated absolutely.
j) Subject to this clause 15, returns will only be accepted provided that:
(i) The Customer has complied with the provisions of this Agreement; and
(ii) Partswise has agreed that the Products or Services are defective; and
(iii) The Products are returned in the same condition to that in which they were collected or delivered.
k) Notwithstanding any other clause to the contrary contained in this Agreement, and subject to the ACL (if applicable), Partswise shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(i) fair, wear and tear;
(ii) the Customer failing to properly maintain or store any Products;
(iii) the Customer failing to return the Products in accordance with this Agreement;
(iv) the Customer using the Products for any purpose other than that for which they were designed;
(v) the Customer or anyone claiming through the Customer, having the Products installed by someone who is not authorised or duly qualified to install Products of that nature;
(vi) ]the Customer continuing the use of any Products after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(vii) the Customer failing to follow any instructions or guidelines provided by Partswise;
(viii) any accident, or act of God.
l) Partswise may in its absolute discretion accept non-defective Products or Services for return in which case Partswise may require the Customer to pay handling fees for the returned Products plus any freight costs.
m) Notwithstanding anything contained in this Agreement, if Partswise is required by a law to accept a return then Partswise will only accept a return on the conditions imposed by that law.
16 INTELLECTUAL PROPERTY
a) Where Partswise has designed, drawn or developed Products or Services for the Customer, then the copyright in any designs and drawings and documents shall remain the property of Partswise.
b) The Customer warrants that all designs, specifications or instructions given to Partswise will not cause Partswise to infringe any copyright, patent, registered design or trademark in the execution of the Customer’s Order and the Customer agrees to indemnify Partswise against any action taken by a third party against Partswise in respect of any such infringement.
c) The Customer agrees that Partswise may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, Products or Services which Partswise has created for the Customer.
17 CANCELLATION OF ORDERS
a) No purported cancellation, variation or suspension of an Order for Products or Services (or any part of an Order for Products or Services) by the Customer shall be binding upon Partswise once the Order has been placed with Partswise.
b) In the event that the Customer cancels an Order, the Customer will be liable for any costs incurred by Partswise up to the time of the cancellation.
18 FORCE MAJEURE
Partswise shall not be liable in any manner whatsoever to the extent that it has been prevented from performing any obligation under this Agreement by reason of matters beyond its control, including without limitation;
a) inability to source Products or Services;
b) inability to access the Site or part of the Site;
c) lack of access to or other required resources at the Site;
d) lack of availability for whatever reason of staff or contractors;
e) acts of God, accidents or machinery breakdown;
f) acts or threats of terrorism or war; or
g) industrial, trade, economic or international disputes or strikes.
19 IMMEDIATE TERMINATION OF AGREEMENT
Partswise may terminate this Agreement immediately by giving written notice to the Customer if the Customer:
a) goes into liquidation;
b) has an administrator or a receiver to its property or assets appointed;
c) is made bankrupt;
d) breaches its obligations under this Agreement where such breach is either not capable of remedy or, if capable of remedy, the Customer fails to remedy such breach within 14 days after receipt of written notice of such breach by Partswise; or
e) engages in any conduct (which includes any conduct by employees of the Customer) which in the opinion of Partswise is or might be damaging to the reputation of Partswise or any of the Products and or Services.
20 EFFECT OF TERMINATION
Notwithstanding any other clause to the contrary contained in this Agreement, the termination of this Agreement for whatever reason shall not in any way affect any rights or responsibilities accruing prior to the termination taking effect and Partswise’s rights in the event of default (including the ongoing accrual of interest and the right to indemnity for costs) shall continue beyond any termination.
21 OBTAINING OF INFORMATION
The Customer and the Guarantor agree and authorises Partswise to make any enquiries or conduct any searches of the Customer or the Guarantor as Partswise deems necessary in its absolute discretion prior to accepting any Order.
22 RELATIONSHIP OF PARTIES
Nothing in this Agreement shall give rise to a partnership or relationship of employment between the Parties.
23 WAIVER
Any failure or delay by Partswise to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude either its exercise in the Partswise of the exercise of any other power or right. A waiver is not effective unless it is in writing.
24 READING DOWN OF AGREEMENT
If a clause in this Agreement is unenforceable it must be read down so as to be enforceable or, if it cannot be so read down, it must be severed from this Agreement without affecting the enforceability of the remaining terms of the Agreement.
25 CUSTOMER
This Agreement is binding upon the Customer, its successors, executors, administrators and permitted assigns.
26 JURISDICTION
This Agreement shall be governed by the laws of Victoria.