Terms & Conditions
1.1. These Terms govern the supply of any Goods by PAT to the Customer from time to time.
1.2. The Customer shall be deemed to accept these Terms for the purposes of any Order upon a copy of these Terms being sent or delivered by or on behalf of PAT to the Customer and the Customer subsequently placing an Order with PAT for the Goods.
1.3. Any condition contained in any document (including any order form) created or issued by the Customer (whether in response to these Terms or otherwise) does not bind PAT and the Customer acknowledges that in the absence of a variation in writing of these Terms agreed to by PAT, the Customer will be bound by these Terms.
2.1. Each Order constitutes an offer by the Customer to PAT to purchase Goods and is subject to acceptance by PAT. Any Order accepted by PAT shall constitute a binding agreement between the Customer and PAT on these Terms.
2.2. The Customer is solely responsible for determining that the ordered Goods are suitable for the purpose for which the Goods are purchased.
3. TERMS OF PAYMENT
3.1. Prices quoted are subject to variation without notice.
3.2. Unless otherwise agreed between the parties, PAT shall issue an invoice to the Customer (“Invoice”) upon delivery of any Goods ordered by the Customer or at such other time as PAT determines.
3.3. The Customer shall pay the price specified in all Invoices (“the Price”) (without set off, deduction or counterclaim) by the date specified in the Invoice, or if no date is specified, 30 days from the end of the month in which the Goods are supplied (“the Due Date”) using a method of payment approved by PAT from time to time.
4. VARIATION OR CANCELLATION BY CUSTOMER
4.1. The Customer shall not vary or cancel an Order, without the prior written consent of PAT.
4.2. If PAT does elect to accept variations to the Order, the Customer shall pay for any variations to the Order at rates specified by PAT which shall be in addition to the Price.
5. CANCELLATION OF ORDER BY PAT
5.1. PAT may at its sole and absolute discretion and for any reason whatsoever, by written notice to the Customer, cancel an Order at any time prior to delivery of the Goods. The Customer acknowledges that without limiting the foregoing, PAT may cancel an Order due to its inability to supply Goods including, without limitation, failure by its suppliers to provide any part of the Goods.
5.2. Upon cancellation of an Order pursuant to clause 5.1 and subject to the Customer having complied with its obligations under these Terms, PAT will refund to the Customer in full all amounts paid by the Customer prior to such cancellation.
6. AVAILABILITY OF GOODS
If Goods ordered by the Customer are not available at the time of Order they will be supplied by PAT when available, and PAT shall not be liable to the Customer to make good any loss or damage sustained by or incurred by the Customer or any other party, whether arising directly or indirectly as a result of any ensuing delay in delivery.
7. DELIVERY OF GOODS
7.1. The Customer acknowledges that any provisional Delivery Date specified by PAT at the time of Order is an estimate only and should PAT be unable to deliver the Goods by that date then:
(i) delivery of the Goods shall be extended by any amount of time deemed necessary by PAT; and
(ii) PAT may at its sole discretion cancel any Order, in which case any amounts paid to PAT by the Customer shall be refunded.
7.2. Goods are deemed delivered in accordance with the requirements of an Order unless, within seven (7) days following the Delivery Date, the Customer notifies PAT and the Carrier of any non-delivery, defect, shortage in quantity, damage or failure to comply with the Order (“Deficiency”) and the Carrier’s delivery document specifies full particulars of the alleged Deficiency.
7.3. Where PAT notifies the Customer that Goods have been dispatched for delivery but the Goods do not arrive at the Customer’s delivery address, the Customer must notify PAT and the Carrier in writing within 21 days of the estimated Delivery Date.
7.4. PAT accepts no liability for Goods that are damaged or lost in transit by the Carrier and the Customer is responsible for filing and negotiating any claims against the Carrier.
7.5. The Customer shall be responsible for insuring the Goods from the earlier of the Delivery Date or from the time that they are provided to a Carrier for subsequent delivery to the Customer.
8. RETURN OF GOODS
8.1. Goods ordered by the Customer may not be returned for credit, exchange or refund except with the prior written consent of PAT, which may be withheld in its sole discretion.
8.2. If PAT agrees to any return of the Goods, then the Goods will only be accepted by PAT if they are unused and returned in their original packaging by PAT’s nominated Carrier, at the Customer’s expense and risk, in a saleable condition, and received within 7 days following the date that PAT communicated its agreement to accept such return.
8.3. In the event that PAT deems, in it sole discretion, that any returned Goods are received by PAT in an un-saleable condition, the Customer must pay, in addition to any fees payable pursuant to clause 8.4, a repackaging fee equal to 10% of the Price of the returned Goods, which PAT may subtract from any refund or credit paid to the Customer.
8.4. Unless otherwise agreed by PAT in writing, any returned Goods which are received by PAT more than 30 days following the Delivery Date will be subject to a handling charge equal to 10% of the Price of the returned Goods, which PAT may subtract from any refund or credit paid to the Customer.
8.5. Goods may not be returned more than 90 days following the Delivery Date without PAT’s prior written approval.
9. APPLICATION OF PAYMENTS
9.1. Any payments made by the Customer to PAT shall be applied first as reimbursement for any sums payable under clause 10.1(ii), secondly in payment of sums payable under clause 10.1(i) and thirdly in satisfaction or part satisfaction of the oldest portion of the Customer’s account.
9.2. Any payments due by PAT to the Customer, whether arising by virtue of refund under clause 5.2, 7.1(ii), 8.1 or otherwise, may be paid in whole or in part by way of set off against any amounts payable by the Customer to PAT, irrespective of
whether such amounts have become due for payment.
10. DEFAULT BY THE CUSTOMER & INSOLVENCY EVENTS
10.1. If the Customer defaults in the payment of any sum of money due to PAT, breaches these Terms or an Insolvency Event occurs in respect of the Customer:
(i) where money is owed to PAT, the Customer must pay to PAT interest at the rate of 12.5% per annum, calculated daily from the Delivery Date of Goods referred to in an Invoice until the date of payment in full of the Invoice amount;
(ii) the Customer must pay or reimburse PAT for all collection agency costs incurred by PAT, legal costs incurred by PAT calculated on a solicitor and own client basis and any other administrative costs incurred by PAT arising directly or indirectly from such default;
(iii) PAT may cancel any Orders in existence or suspend all further deliveries of Goods to the Customer (without prejudice to any other rights or remedies of PAT and without any liability to the Customer) until any and all outstanding amounts are paid in full, including any interest or other sums payable under this clause;
(iv) the whole sum then owing by the Customer to PAT for all Goods sold by PAT to the Customer, shall immediately become due and payable and the Customer shall not thereafter be entitled to purchase Goods on credit from PAT unless PAT has agreed to same in writing, in which case, unless a contrary intention is shown in such agreement, the payment obligations contained herein shall apply; and
(v) PAT may, in its sole discretion, exercise its rights under clause 11.3.
11. RETENTION OF TITLE
11.1. Notwithstanding that the Customer has possession of the Goods, property in, and ownership of the Goods remains with PAT and no legal or equitable interest or property in the Goods whatsoever shall pass to or vest in the Customer until the
full amount due for the Goods and all other Goods supplied by PAT to the Customer (including any additional amounts
payable by the Customer pursuant to these Terms has been paid to PAT by the Customer.
11.2. Until property passes to the Customer:
(i) the Customer holds the Goods as fiduciary and bailee for PAT;
(ii) the Goods must be stored separately and in a manner that enables them to be identified and cross-referenced to
(iii) PAT, its employees or agents, are entitled to enter the Customer’s premises between 9.00am and 5.00pm on any
business day to inspect the Goods;
(iv) unless otherwise notified in writing by PAT the Customer is authorised to sell the Goods in the ordinary course of
the Customer’s business; and
(v) the proceeds of the Goods sold by the Customer are to be held in trust for PAT and must be paid immediately into
a separate account and must not be mixed with any other money, including funds of the Customer.
11.3. In the event that the Customer is in default of its obligations under these Terms, any Order or any other agreement that
exists between the Customer and PAT, the Customer must at its sole expense, deliver the Goods to PAT on demand. If
the Customer does not comply with such a demand, the Customer authorises PAT to enter the Customer’s premises at
any time to do all things necessary in order to take possession of the Goods. For this purpose the Customer must procure
the consent of all other persons having any interest in the premises where the Goods are situated to entry of those
premises by PAT, its employees or agents and the Customer indemnifies PAT against any claim, loss, liability, cost and
expense that may be incurred or sustained by PAT, its employees or agents, as a result of the entry of those premises
where the Goods are situated.
11.4. The Customer’s right to hold and sell the Goods will immediately cease if an Insolvency Event occurs in respect of the
Customer. In any such case, and without the need for notice or demand by PAT, the Customer acknowledges any sale or
purported sale of the Goods will not be in the ordinary course of the Customer’s business and the proceeds of any Goods
sold in such circumstances will be held on trust for PAT by the administrator, controller or similar officer as the case may
be, or if there is no such officer, by the Customer.
11.5. The Customer acknowledges that PAT has a ‘Security Interest’ (as that term is defined in the Personal Property Securities
(PPS) Act 2009) in all Goods and services supplied pursuant to these Terms and the Customer shall , if required by PAT,
assist PAT in any way necessary to ensure that the Security Interest becomes a ‘Perfected Security Interest’ as that term
is defined in the PPS Act.
12.1. Unless otherwise expressed to the contrary, all prices and amounts are expressed to be exclusive of goods and services
12.2. If GST is payable by PAT on the supply of goods or services to the Customer, the Customer must also pay to PAT at the
same time the amount is payable GST, and all other applicable taxes, duties, levies, penalties and any other government
charges payable in relation to the supply of goods or services (which have not been included in the price) on demand by
PAT, subject to PAT providing the Customer with a tax invoice required by law.
13. PRODUCT WARRANTY
If the Customer notifies PAT of any defect or failure in the Goods within twelve (12) months of the Delivery Date, PAT may elect, in its sole discretion, to either resupply the Goods or repair the original Goods at no cost to the Customer, provided that PAT and the relevant supplier are satisfied, in their sole discretion, that the defect or failure is due solely to faulty workmanship or the use of faulty materials and that the Goods have not been subject to maltreatment, inattention, interference or other improper use by the Customer or any third party.
14. PRIVACY AUTHORITY
The Customer irrevocably authorises PAT, its employees and agents to make such enquiries as it deems necessary to investigate the credit worthiness of the Customer from time to time including (but without limiting the generality of the foregoing) the making of enquiries of persons nominated as trade referees, the bankers of the Customer or any other credit providers and the Customer hereby authorises such information sources to disclose to PAT any information concerning the Customer which is within their possession and which is requested by PAT. The Customer agrees that, subject to the terms of the Privacy Act 1988 (Cth), PAT may in its absolute discretion disclose the status of the Customer’s account to any person or corporation.
15. FORCE MAJEURE
The obligations of PAT shall be suspended during the time and to the extent that PAT is prevented from or delayed in complying with its obligations by circumstances beyond the control of PAT which occur without default or negligence of PAT and include inevitable accident, storm, flood, fire, earthquake, explosion, peril of navigation, hostility, war (declared or undeclared), insurrection, strike, lockout or other labour difficulty, executive or administrative order or act either general or of particular application of any government whether de jure or de facto or of any official purporting to act under the authority of that
government, prohibition or restriction by domestic or foreign laws regulations or policies, quarantine or customs restriction, breakdown or damage to or confiscation of property.
16. INTELLECTUAL PROPERTY
16.1. The Customer acknowledges and agrees that under no circumstances will it take any interest in PAT’s Intellectual
Property Rights, and PAT reserves all of its rights in respect of its Intellectual Property Rights.
16.2. All drawings, specifications, photographs, schedules and other documents prepared by or on behalf of PAT shall remain
the sole property of PAT. No copies or amendments may be made or extracts taken without PAT’s prior written consent.
17. ERRORS IN PAT DOCUMENTS
Typographical and clerical errors in PAT’s documents shall be subject to correction by PAT by means of reissue of the document withreference to the original document or by amending the original document. The Customer shall not be entitled to a reduction or variation in the Price of the Goods or the Customer’s obligations under these Terms by reason of such an error.
18. EXCLUSION OF IMPLIED CONDITIONS AND WARRANTIES
18.1. The parties acknowledge that, under applicable State and Commonwealth law, certain clauses, conditions, guarantees and
warranties may be implied in these Terms and there are rights and remedies conferred on the Customer in relation to the
provision of goods or of services which cannot be excluded, restricted or modified by agreement (“Non-excludable Rights”).
These Terms are subject to the Non-excludable Rights.
18.2. Except to the extent of Non-excludable Rights, PAT will not be liable for:
(i) any claim by the Customer or any other person, including without limitation, any claim relating to or arising from all
clauses, conditions, guarantees and warranties expressed or implied, and all rights and remedies conferred on the
Customer, by statute, the common law, equity, trade, custom or usage or otherwise; and
(ii) any representations, warranties, conditions or agreement made by any agent or representative which are not expressly
confirmed by PAT in writing, and the liability of PAT for any such matters is hereby excluded.
18.3. Where (and to the extent) that the liability of PAT for a breach of a Non-Excludable Right can be limited by law, PAT’s
liability is limited, at PAT’s election, to the replacement of the Goods, the supply of equivalent Goods, the repair of the
Goods, the payment of the cost of replacing the Goods or of acquiring equivalent Goods or the payment of the cost of
having the Goods repaired, at the election of PAT.
18.4. Notwithstanding any other provision in these Terms, PAT is in no circumstance (whatever the cause) liable in contract, tort
(including, without limitation, negligence or breach of statutory duty) or otherwise to compensate any person for any loss or
damage consequential or otherwise, whatsoever and howsoever suffered or incurred, by any such person in relation to the
Goods, including without limitation, any failure, defect or deficiency of whatsoever nature or kind of or in the Goods, any
product data, specifications, drawings, design details or performance figures contained in documents produced by PAT or
any third party or any advice given by PAT or its employees, servants or agents.
18.5. To the full extent permitted by law, PAT’s liability to the Customer for all claims made by the Customer, in relation to a
breach of these Terms or otherwise, whether arising under contract, negligence or any other tort, under statute or
otherwise, will not exceed in aggregate the amounts paid by the Customer under these Terms.
19.1. These Terms contain the entire agreement between the parties about its subject matter. Any previous understanding,
agreement, representation or warranty relating to that subject matter is replaced by these Terms and has no further effect.
19.2. PAT may vary these Terms from time to time in its sole discretion by publishing such amended Terms on the Website.
Any variation of these Terms will be effective, whether or not notified to the Customer, from the effective date specified on
19.3. These Terms are governed by and must be construed in accordance with the laws of the State of Victoria. The parties
submit to the exclusive jurisdiction of the Courts of that State and the Commonwealth of Australia in respect of all matters
or things arising out of these Terms.
(i) “Carrier” means the delivery agent that PAT nominates to deliver Goods pursuant to an Order;
(ii) “Customer” means the person, firm, corporation or entity, which purchases or orders Goods from PAT from time to
time and includes legal representatives, agents, servants, contractors, administrators, successors or permitted
(iii) “Delivery Date” is the date on which the Goods are received or due to be received by the Customer;
(iv) “Goods”, unless the context requires otherwise, means the products and, if any, services supplied by PAT to the
Customer from time to time;
(v) “Insolvency Event” means:
(A) in the case of an individual, an application is made to a court for a sequestration order against that person or the
person commits an act of bankruptcy or takes any steps to obtain protection or is granted protection from that
person’s creditors under any applicable legislation;
(B) in either case a person or company entering into a composition, assignment or arrangement with creditors; and
(C) in the case of a company, an application is made to a court for an order or an order is made that the company be
wound up, an application is made to a court for an order appointing a provisional liquidator or receiver of the
company, a meeting is convened or a resolution is passed to appoint an administrator of the company, the
company calls a meeting for the purpose of appointing a liquidator or any of the events described in Sections
459C(2) (a) to (f) or 585 of the Corporations Act 2001 (Cth) occurs in relation to the company,
(vi) “Intellectual Property Rights” means all intellectual property rights of any kind whatsoever throughout the world
including all rights which subsist in copyright, patents, trade marks or designs, irrespective of whether such rights are
registered or capable of being registered;
(vii) “Order” means any request for the supply of Goods to the Customer or nominee of the Customer;
(viii) “PAT” means Premier Auto Trade Pty Ltd – ABN 92 141 626 664.
PAT includes its employees, agents, representatives, directors, offices, services and contractors and permitted
(ix) “Terms” means the agreement between the Customer and PAT on the basis of the terms and conditions set out
(x) “Website” means www.premierautotrade.com.au.
20.2. In the interpretation of these Terms, unless the contrary intention appears:
(i) headings are for convenience only and do not affect the interpretation of these Terms;
(ii) the words “includes” or “including” will not limit whatever follows;
(iii) a reference to a person includes a reference to a corporation, firm, association or other entity, and vice versa; the
singular includes the plural and vice versa; a reference to any gender includes a reference to all other genders;
(iv) a reference to any legislation includes a reference to any modification or re-enactment of that legislation; and
(v) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding
1002536 – n893205v3 Version 14.12.10