Australian Automotive Parts
Australian owned National Wholesaler of Automotive Spare Parts
 
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Terms and Conditions

Australian Automotive Parts Pty. Ltd - Terms and Conditions of Trade

1. Definitions
1.1 “Seller” shall mean Australian Automotive Parts Pty Ltd and its successors and
assigns.
1.2 “Buyer” shall mean the Buyer or any person acting on behalf of and with the
authority of the Buyer.
1.3 “Guarantor” means that person (or persons), or entity who agrees herein to be
liable for the debts of the Buyer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by the Seller to the Buyer (and where the
context so permits shall include any supply of Services as hereinafter defined).
1.5 “Services” shall mean all services supplied by the Seller to the Buyer and includes
any advice or recommendations (and where the context so permits shall include
any supply of Goods as defined).
1.6 “Price” shall mean the cost of the Goods as agreed between the Seller and the
Buyer subject to clause 4 of this contract.

2. Acceptance
2.1 Any instructions received by the Seller from the Buyer for the supply of Goods
and/or the Buyer’s acceptance of Goods supplied by the Seller shall constitute
acceptance of the terms and conditions contained herein.
2.2 Where more than one Buyer has entered into this agreement, the Buyers shall be
jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Buyer the terms and
conditions are irrevocable and can only be rescinded in accordance with these
terms and conditions or with the written consent of the manager of the Seller.
2.4 None of the Seller’s agents or representatives are authorised to make any
representations, statements, conditions or agreements not expressed by the
manager of the Seller in writing nor is the Seller bound by any such unauthorised
statements.
2.5 The Buyer undertakes to give the Seller not less than fourteen (14) days prior
written notice of any proposed change in the Buyer’s name and/or any other
change in the Buyer’s details (including but not limited to, changes in the Buyer’s
address, facsimile number, or business practice).

3. Goods
3.1 The Goods are as described on the invoices, quotation, work authorisation or any
other work commencement forms as provided by the Seller to the Buyer.

4. Price And Payment
4.1 At the Seller’s sole discretion the Price shall be either;
(a) as indicated on invoices provided by the Seller to the Buyer in respect of
Goods supplied; or
(b) the Seller’s current Price, at the date of delivery of the Goods, according to
the Seller’s current Price list; or
(c) the Seller’s quoted Price (subject to clause 4.2) which shall be binding upon
the Seller provided that the Buyer shall accept in writing the Seller’s quotation
within thirty (30) days.
4.2 Any variation from the plan of scheduled works or specifications will be charged
for on the basis of the Seller’s quotation and will be shown as variations on the
invoice. Payment for all variations must be made in full at their time of completion.
4.3 At the Seller’s sole discretion a deposit may be required. The deposit amount or
percentage of the Price will be stipulated at the time of the order of the Goods and
shall become immediately due and payable.
4.4 Time for payment for the Goods shall be of the essence and will be stated on the
invoice, quotation or any other order forms. If no time is stated then payment shall
be on delivery of the Goods.
4.5 The Seller may withhold delivery of the Goods until the Buyer has paid for them, in
which event payment shall be made before the delivery date.
4.6 At the Seller’s sole discretion, payment for approved Buyers shall be made by
instalments in accordance with the Seller’s delivery/payment schedule.
4.7 At the Seller’s sole discretion, payment for approved Buyer’s shall be due on thirty
(30) days following the end of the month in which a statement is posted to the
Buyer’s address or address for notices.
4.8 At the Seller’s sole discretion, for certain approved Buyers payment will be due
either seven (7), fourteen (14) or thirty (30) days following the date of the invoice.
4.9 Payment will be made by cash on delivery, or by cheque, or by bank cheque, or
by credit card (subject to a 2.5% handling fee), or by direct credit, or by any other
method as agreed to between the Buyer and the Seller.
4.10 The Price shall be increased by the amount of any GST and other taxes and
duties which may be applicable, except to the extent that such taxes are expressly
included in any quotation given by the Seller.

5. Delivery Of Goods / Services
5.1 Delivery of the Goods shall be made to the Buyer’s address. The Buyer shall
make all arrangements necessary to take delivery of the Goods whenever they
are tendered for delivery, or delivery of the Goods shall be made to the Buyer at
the Seller’s address.
5.2 Delivery of the Goods to a carrier, either named by the Buyer or failing such
naming to a carrier at the discretion of the Seller for the purpose of transmission to
the Buyer, is deemed to be a delivery of the Goods to the Buyer.
5.3 The costs of carriage and any insurance which the Buyer reasonably directs the
Seller to incur shall be reimbursed by the Buyer (without any set-off or other
withholding whatever) and shall be due on the date for payment of the Price. The
carrier shall be deemed to be the Buyer’s agent.
5.4 Where there is no agreement that the Seller shall send the Goods to the Buyer,
delivery to a carrier at limited carrier’s risk at the expense of the Buyer is deemed
to be delivery to the Buyer.
5.5 Delivery of the Goods to a third party nominated by the Buyer is deemed to be
delivery to the Buyer for the purposes of this agreement.
5.6 The failure of the Seller to deliver shall not entitle either party to treat this contract
as repudiated.
5.7 The Seller shall not be liable for any loss or damage whatever due to failure by the
Seller to deliver the Goods (or any of them) promptly or at all.

6. Risk
6.1 If the Seller retains property in the Goods nonetheless, all risk for the Goods
passes to the Buyer on delivery.
6.2 If any of the Goods are damaged or destroyed prior to property in them passing to
the Buyer, the Seller is entitled, without prejudice to any of its other rights or
remedies under these Terms and Conditions of Trade (including the right to
receive payment of the balance of the Price for the Goods), to receive all
insurance proceeds payable for the Goods. This applies whether or not the Price
has become payable under the Contract. The production of these terms and
conditions by the Seller is sufficient evidence of the Seller’s rights to receive the
insurance proceeds without the need for any person dealing with the Seller to
make further enquiries.

7. Buyer’s Disclaimer
7.1 The Buyer hereby disclaims any right to rescind, or cancel the contract or to sue
for damages or to claim restitution arising out of any misrepresentation made to
him by any servant or agent of the Seller and the Buyer acknowledges that he
buys the Goods relying solely upon his own skill and judgement and that the
Seller shall not be bound by nor responsible for any term, condition,
representation or warranty given by the Manufacturer of the Goods, which
warranty shall be personal to the Buyer and shall not be transferable to any
subsequent Buyer.

8. Defects / Returns
8.1 The Buyer shall inspect the Goods on delivery and shall within two (2) days of
delivery notify the Seller in writing of any alleged defect, shortage in quantity,
damage or failure to comply with the description or quote. The Buyer shall afford
the Seller an opportunity to inspect the Goods within a reasonable time following
delivery if the Buyer believes the Goods are defective in any way. If the Buyer
shall fail to comply with these provisions, the Goods shall be conclusively
presumed to be in accordance with the terms and conditions and free from any
defect or damage.
8.2 For defective Goods, which the Seller has agreed in writing that the Buyer is
entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion)
replacing the Goods or repairing the Goods provided that:
(a) the Buyer has complied with the provisions of clause 8.1;
(b) the Goods are returned at the Buyer’s cost within seven (7) days of the
delivery date;
(c) the Seller will not be liable for Goods which have not been stored or used in a
proper manner;
(d) the Goods are returned in the condition in which they were delivered and with
all packaging material, brochures and instruction material in as new condition
as is reasonably possible in the circumstances.
8.3 The Seller may (in its discretion) accept the Goods for credit but this will incur a
handling fee of 15% of the value of the returned Goods plus any freight.
8.4 Credits will not be issued for Goods which;
(a) have been altered to suit a specific application; or
(b) are non-stock items and have been specially ordered in; and
(c) are returned without a copy of the original invoice.

9. Warranty
9.1 Subject to the conditions of warranty set out in Clause 9.2 the Seller warrants that
if any defect in any workmanship of the Seller becomes apparent and is reported
to the Seller within twelve (12) months of the date of delivery (time being of the
essence) then the Seller will either (at the Seller’s sole discretion) repair the defect
or remedy the workmanship.
9.2 The conditions applicable to the warranty given by Clause 9.1 are:
(a) The warranty shall not cover any defect or damage which may be caused or
partly caused by or arise through:
i) Failure on the part of the Buyer to properly maintain any Goods; or
ii) Failure on the part of the Buyer to follow any instructions or guidelines
provided by the Seller; or
iii) Any use of any Goods otherwise than for any application specified on a
quote or order form; or
iv) The continued use of any Goods after any defect becomes apparent or
would have become apparent to a reasonably prudent operator or user;
or
v) Fair wear and tear, any accident or act of God.
(b) The warranty shall cease and the Seller shall thereafter in no circumstances
be liable under the terms of the warranty if the workmanship is repaired,
altered or overhauled without the Seller’s consent.
(d) In respect of all claims the Seller shall not be liable to compensate the Buyer
for any delay in either replacing or repairing the workmanship/Goods or in
properly assessing the Buyer’s claim.
9.3 For Goods not manufactured by the Seller, the warranty shall be the current
warranty provided by the manufacturer of the Goods. The Seller shall be under no
liability whatsoever, except for the express conditions as detailed and stipulated in
the manufacturers warranty.

10. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
10.1 Nothing in this agreement is intended to have the effect of contracting out of any
applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair
Trading Acts in each of the States and Territories of Australia, except to the extent
permitted by those Acts where applicable.

11. Intellectual Property
11.1 The Buyer warrants that all designs or instructions to the Seller will not cause the
Seller to infringe any patent, registered design or trademark in the execution of the
Buyer’s order.
 
12. Default & Consequences Of Default
12.1 Interest on overdue invoices shall accrue from the date when payment becomes
due daily until the date of payment at a rate of 2.5% compounding per calendar
month and shall accrue at such a rate after as well as before any judgement.
12.2 If the Buyer defaults in payment of any invoice when due, the Buyer shall
indemnify the Seller from and against all the Seller’s costs and disbursements
including on a solicitor and own client basis and in addition all of the Seller’s
nominees costs of collection.
12.3 If the Buyer’s payment is dishonoured by their bank, then the Seller reserves the
right to increase the amount of the Price by any charges for dishonours charged
by the Sellers bankers.
12.4 Without prejudice to any other remedies the Seller may have, if at any time the
Buyer is in breach of any obligation (including those relating to payment), the
Seller may suspend or terminate the supply of Goods to the Buyer and any of its
other obligations under the terms and conditions. The Seller will not be liable to
the Buyer for any loss or damage the Buyer suffers because the Seller exercised
its rights under this clause.
12.5 If any account remains unpaid at the end of the second month after supply of the
Goods or Services an immediate amount of the greater of $20.00 or 10.00% of the
amount overdue shall be levied for administration fees which sum shall become
immediately due and payable.
12.6 In the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion
the Buyer will be unable to meet its payments as they fall due; or
(b) the Buyer becomes insolvent, convenes a meeting with its creditors or
proposes or enters into an arrangement with creditors, or makes an
assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is
appointed in respect of the Buyer or any asset of the Buyer,
then without prejudice to the Seller’s other remedies at law:
(i) the Seller shall be entitled to cancel all or any part of any order of the Buyer
which remains unperformed in addition to and without prejudice to any other
remedies; and
(ii) all amounts owing to the Seller shall, whether or not due for payment,
immediately become payable in addition to the interest payable under clause
12.1 hereof.

13. Title
13.1 It is the intention of the seller and agreed by the Buyer that property in the Goods
shall not pass until:
(a) The Buyer has paid all amounts owing for the particular Goods, and
(b) The Buyer has met all other obligations due by the Buyer to the Seller in
respect of all contracts between the Seller and the Buyer, and that where
practicable the Goods shall be kept separate until the Seller shall have
received payment and all other obligations of the Buyer are met.
13.2 Receipt by the Seller of any form of payment other than cash shall not be deemed
to be payment until that form of payment has been honoured, cleared or
recognised and until then the Seller’s ownership of rights in respect of the Goods
shall continue.
13.3 It is further agreed that:
(a) Until such time as ownership of the Goods shall pass from the Seller to the
Buyer the Seller may give notice in writing to the Buyer to return the Goods or
any of them to the Seller. Upon such notice the rights of the Buyer to obtain
ownership or any other interest in the Goods shall cease.
(b) The Seller shall have the right of stopping the Goods in transit whether or not
delivery has been made; and
(c) If the Buyer fails to return the Goods to the Seller then the Seller or the
Seller’s agent may enter upon and into land and premises owned, occupied
or used by the Buyer, or any premises as the invitee of the Buyer, where the
Goods are situated and take possession of the Goods.
(d) The Buyer is only a bailee of the Goods and until such time as the Seller has
received payment in full for the Goods then the Buyer shall hold any
proceeds from the sale or disposal of the Goods on trust for the Seller.
(e) The Buyer shall not deal with the money of the Seller in any way which may
be adverse to the Seller.
(f) The Buyer shall not charge the Goods in any way nor grant nor otherwise give
any interest in the Goods while they remain the property of the Seller.
(g) The Seller may require payment of the Price or the balance of the Price due
together with any other amounts due from the Buyer to the Seller arising out
of these terms and conditions, and the Seller may take any lawful steps to
require payment of the amounts due and the Price.
(h) The Seller can issue proceedings to recover the Price of the Goods sold
notwithstanding that ownership of the Goods may not have passed to the
Buyer.
(i) Until such time that ownership in the Goods passes to the Buyer, if the Goods
are so converted, the parties agree that the Seller will be the owner of the
end products.

14. Security And Charge
14.1 Despite anything to the contrary contained herein or any other rights which the
Seller may have howsoever:
(a) Where the Buyer and/or the Guarantor (if any) is the owner of land, realty or
any other asset capable of being charged, both the Buyer and/or the
Guarantor agree to mortgage and/or charge all of their joint and/or several
interest in the said land, realty or any other asset to the Seller or the Seller’s
nominee to secure all amounts and other monetary obligations payable under
the terms and conditions. The Buyer and/or the Guarantor acknowledge and
agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where
appropriate a caveat, which caveat shall be released once all payments and
other monetary obligations payable hereunder have been met.
(b) Should the Seller elect to proceed in any manner in accordance with this
clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify the
seller from and against all the Seller’s costs and disbursements including
legal costs on a solicitor and own client basis.
(c) To give effect to the provisions of clause [14.1 (a) and (b)] inclusive hereof the
Buyer and/or the Guarantor (if any) do hereby irrevocably nominate constitute
and appoint the Seller or the Seller’s nominee as the Buyer’s and/or
Guarantor’s true and lawful attorney to execute mortgages and charges
(whether registerable or not) including such other terms and conditions as the
Seller and/or the Seller’s nominee shall think fit in his/her/its/their absolute
discretion against the joint and/or several interest of the Buyer and/or the
Guarantor in any land, realty or asset in favour of the Seller and in the
Buyer’s and/or Guarantor’s name as may be necessary to secure the said
Buyer’s and/or Guarantor’s obligations and indebtedness to the Seller and
further to do and perform all necessary and other acts including instituting
any necessary legal proceedings, and further to execute all or any documents
in the Seller’s absolute discretion which may be necessary or advantageous
to give effect to the provisions of this clause.

15. Cancellation
15.1 The Seller may cancel these terms and conditions or cancel delivery of Goods at
any time before the Goods are delivered by giving written notice. The Seller shall
not be liable for any loss or damage whatever arising from such cancellation.
15.2 At the Sellers sole discretion the Buyer may cancel delivery of Goods. In the event
that the Buyer cancels delivery of Goods the Buyer shall be liable for any costs
incurred by the Seller up to the time of cancellation.

16. Privacy Act 1988
16.1 The Buyer and/or the Guarantor/s agree for the Seller to obtain from a creditreporting
agency a credit report containing personal credit information about the
Buyer and Guarantor/s in relation to credit provided by the Seller.
16.2 The Buyer and/or the Guarantor/s agree that the Seller may exchange information
about Buyer and Guarantor/s with those credit providers named in the Application
for Credit account or named in a consumer credit report issued by a reporting
agency for the following purposes:
(a) To assess an application by Buyer;
(b) To notify other credit providers of a default by the Buyer;
(c) To exchange information with other credit providers as to the status of this
credit account, where the Buyer is in default with other credit providers; and
(d) To assess the credit worthiness of Buyer and/or Guarantor/s.
16.3 The Buyer consents to the Seller being given a consumer credit report to collect
overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Buyer agrees that Personal Data provided may be used and retained by the
Seller for the following purposes and for other purposes as shall be agreed
between the Buyer and Seller or required by law from time to time:
(a) provision of Services & Goods;
(b) marketing of Services and/or Goods by the Seller, its agents or distributors in
relation to the Services and Goods;
(c) analysing, verifying and/or checking the Buyer’s credit, payment and/or status
in relation to provision of Services/Goods;
(d) processing of any payment instructions, direct debit facilities and/or credit
facilities requested by Buyer; and
(e) enabling the daily operation of Buyer’s account and/or the collection of
amounts outstanding in the Buyer’s account in relation to the Services and
Goods.
16.5 The Seller may give, information about the Buyer to a credit reporting agency for
the following purposes:
(a) to obtain a consumer credit report about the Buyer; and/or
(b) allow the credit reporting agency to create or maintain a credit information file
containing information about the Buyer.

17. Unpaid Seller’s Rights To Dispose Of Goods
17.1 In the event that:
(a) the Seller retains or regains possession or control of the Goods; and
(b) payment of the Price is due to the Seller; and
(c) the Seller has made demand in writing of the Buyer for payment of the Price
in terms of this contract; and
(d) the Seller has not received the Price of the Goods,
then, whether the property in the Goods has passed to the Buyer or has remained
with the Seller, the Seller may dispose of the Goods and may claim from the
Buyer the loss to the Seller on such disposal.

18. General
18.1 If any provision of these terms and conditions shall be invalid, void, illegal or
unenforceable the validity, existence, legality and enforceability of the remaining
provisions shall not be affected, prejudiced or impaired.
18.2 All Goods supplied by the Seller are subject to the laws of Australia and the Seller
takes no responsibility for changes in the law which affect the Goods supplied.
18.3 The Seller shall be under no liability whatever to the Buyer for any indirect loss
and/or expense (including loss of profit) suffered by the Buyer arising out of a
breach by the Seller of these terms and conditions.
18.4 In the event of any breach of this contract by the Seller the remedies of the Buyer
shall be limited to damages. Under no circumstances shall the liability of the Seller
exceed the Price of the Goods.
18.5 The Buyer shall not set off against the Price amounts due from the Seller.
18.6 The Seller may license or sub-contract all or any part of its rights and obligations
without the Buyer’s consent.
18.7 The Seller reserves the right to review these terms and conditions at any time and
from time to time. If, following any such review, there is to be any change in such
terms and conditions, that change will take effect from the date on which the seller
notifies the Buyer of such change.
18.8 Neither party shall be liable for any default due to any act of God, war, terrorism,
strike, lock out, industrial action, fire, flood, drought, storm or other event beyond
the reasonable control of either party.

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