1.1 In these terms and conditions:
(a) “Company” means the entity stated in the Application for Credit (namely “TYRECONNECT Pty Ltd.” ABN: 38 152 694 230) and any related body corporate as defined in the Corporations Act 2001 (Cth) and its successors and assigns.
(b) “Client” means the entity stated in the Application for Credit, its employees, representatives, successors and assigns.
(c) “Goods” means goods (as that term is defined under the PPSA) supplied to the Client (and where the context so permits includes Services).
(d) “Governing State” means the State or Territory where the Company has its principal place of business.
(e) “PPSA” means the Personal Property Securities Act 2009 (Cth).
(f) “ROT security interest” means a retention of title security interest under a “conditional contract” as defined under the PPSA.
(g) “Services” means all services supplied to the Client and includes any advice or recommendations, intellectual or intangible property under the PPSA (and where the context so permits includes any supply of Goods).
2.1 Delivery fees generally do not apply for delivery of Goods in metropolitan areas. Should delivery fees be applicable, the Client will be notified.
2.2 Should delivery fees be applicable, the cost of delivery will vary dependent upon the value of the order of Goods placed and the location of the Client.
2.3 Usual delivery time will vary depending on distance between elected delivery location and metropolitan areas. Delivery times will not exceed one business day from the time the order of Goods was placed.
2.4 The Company will not be responsible for non-delivery or delay in delivery of any Goods and where such non-delivery or delay occurs the Company may deliver the Goods not delivered or delayed at any subsequent time and the Client must accept and pay for them.
2.5 The Client is not entitled to any compensation from the Company of any nature for any loss, damage or delay.
3. Return Policy
3.1 Goods may be returned within 30 days of the Invoice date. Returns will not be accepted after 30 days.
3.2 The return process starts once the ‘Return Request’ form has been duly completed and send to the Company email address: firstname.lastname@example.org.
3.3 Credit notes will be issued within 24 hours of receipt of returned Goods by the Warehouse staff of the Company.
3.4 Goods returned should be free of damage and be in acceptable condition. The condition of Goods extends to the original packaging of rims, including accessories, nuts and centre caps and the original manufacturer sticker found on tyres. When applicable, returned Goods should be neatly packaged and stored in their original packaging.
3.5 Goods fitted will not be considered for return.
3.6 Goods specially transferred interstate will not be considered for return.
3.7 Where applicable, express freight charges will not be credited.
3.8 The Company reserves the right to refuse any return of Goods that do not comply with our Returns Policy.
3.9 The Company reserves the right to reverse any credit note of Goods returned that do not comply with the Returns Policy.
3.10 Should a credit be reversed, all freight charges incurred by the Company will be invoiced to the Client.
3.11 Every return of Goods will incur a restocking fee of $10.00 + GST, per item. The restocking fee includes all freight charges of returned goods.
4.1 Until all monies and obligations owing by the Client to the Company have been paid and discharged in full, the Company shall retain all legal and beneficial title in all Goods.
4.2 If Goods to which legal title has not passed to the Client are in the possession of the Client, the Client is under an obligation to:
(a) retain them in a good and merchantable condition until they are either paid for or collected by the Company; and
(b) allow the Company, its servants or agents onto the premises where they are stored for the purpose of inspecting and collecting the Goods.
4.3 In relation to Goods for which payment in full has not been received:
(a) The relationship between the Client and the Company shall be fiduciary;
(b) The Client will hold those Goods as bailee for the Company;
(c) Where the Client sells those Goods, the Client does so as fiduciary agent of the Company;
(d) Where the Goods are disposed of, the monies resulting from the disposal and all other proceeds received in respect of the Goods, including insurance proceeds will be kept separately in trust for the Company;
(e) Where the Goods are disposed of, the Client may only dispose of the Goods in the ordinary course of its business on commercially reasonable terms;
(f) The Client undertakes that until it delivers the Goods to a third party, it will store the Goods on its premises separately from its own Goods, or those of any other person, and in a manner which makes the Goods readily identifiable as the Company’s Goods.
5.1 The Client irrevocably permits the Company or any person authorised by the Company in writing, upon giving reasonable notice to enter the Client’s premises or at premises where the Goods are reasonably believed by the Company to be held on the Client’s behalf for the purpose of examining or recovering the Goods. The Client also agrees to indemnify and hold the Company harmless for reasonable costs of removal, enforcement, and legal action in respect of the removal of any Goods, the subject of this Agreement.
6. Transactions contemplated by this Agreement
6.1 The Company’s tender of delivery of Goods and Services under this Agreement is a condition of the Client’s duty to accept the Goods or Services provided and, unless otherwise agreed, the Client’s duty to pay for them.
7.1 If the Client disputes any Goods sold or Services supplied by the Company are faulty, defective or disputes the Invoices the Company has issued, the Client must notify their reasons in writing to the Company within 30 days of the Invoice date, failing which the Client loses any right to dispute the quality of the Goods, Services or value.
8. Whole Agreement
9.1 The Client agrees to pay all amounts due in clear funds from the date of invoice for the Goods and/or Services provided by the Company.
9.2 Payment is due and payable within 30 days from end of month in which the Goods were confirmed as available for collection or dispatched to the delivery address, as relevant to the order instructions.
9.3 The Company reserves the right to charge an administration fee for all payment made by credit card.
9.4 The Client agrees that if it fails to pay in accordance with this clause, the Company may:
(a) Charge interest on debts at 15% per annum from time to time;
(b) Withhold supply;
(c) Sue for the money owing on the Goods or Services provided;
Terms and Conditions
(d) Take steps to secure monies owing and enforce such security;
(e) Recover all collection and legal costs and expenses incurred in collecting overdue accounts and/or enforcing security interests on an indemnity basis.
9.5 Failure to comply with clause 9.1 and 9.2 will constitute a breach of contract and the Company may treat the whole Agreement as repudiated and act accordingly.
9.6 In the event this Agreement has been entered into by more than one party each party shall be jointly and severally liable for any amount due.
10.1 If the Client:
(a) Fails to pay for any Goods or Services on the due date;
(b) Otherwise breached this Agreement and failed to rectify such breach within seven days’ notice;
(c) Cancels delivery of Goods or Services;
(d) Commits an act of bankruptcy or allows a trustee in bankruptcy or receiver and manager to be appointed to the Client or any of its property; or
(e) Allow a judgment or order to be enforced or become enforceable against the Client’s property.
then the Company may enter upon the Client’s premises (doing all that is necessary to gain access) where Goods supplied under this contract are situated at any time and re-take possession of any or all of the Goods the Company has supplied to the Client and:
(i) Resell the Goods concerned;
(ii) Refuse or suspend an order;
(iii) Cancel the Client’s credit account;
(iv) Terminate the Agreement; and
(v) Sue for any monies owing.
10.2 The Client will be in default if the Client does not pay any monies payable when called upon to do so and the Client acknowledges and agrees that the Company is authorised to contact a credit reporting agency or a commercial credit reporting business throughout the term of the Agreement to assess the consumer or commercial creditworthiness of the Client.
10.3 The Client authorises the Company to engage in the exchange of information with a credit reporting agency or with other such parties as are necessary to give effect to the contract and to the ongoing relationship between the parties hereto.
10.4 The Client agrees for information from this Agreement or regarding the Client’s credit status to be disclosed.
10.5 The Client also authorises the Company to give, or receive, from any other credit provider, a report about the consumer or commercial credit worthiness of the Client.
10.6 The Company reserves the right to report a Client’s delinquent account to a credit reporting agency should payment remain outstanding for more than 30 days.
10.7 The Company may refer any outstanding account for debt collection or issue legal proceedings to recover any outstanding invoices. Should an account be referred for debt collection the Client acknowledges and agrees to pay debt collection charges to be calculated at not less than 20% plus GST and will be incurred on the day the Company refers the matter to their nominated debt collection agency. The Client shall also be liable for interest and all legal recovery costs associated with such action on a solicitor and own Client or indemnity cost basis.
11. Security Interest
11.1 The Client consents to registration of the security interests arising in favour of the Company as a result of these conditions and lodgment of a financing statement in respect of the security interests with the Personal Property Securities Register, and must do everything (including obtaining consents, signing and producing documents, completing documents or procuring that they are completed, and supplying information) which the Company considers necessary or desirable for the purposes of the PPSA including, without limitation:
(a) ensuring that the security interests are registered, enforceable, continuously perfected and otherwise effective in accordance with the PPSA;
(b) enabling the Company to apply for any registration, or give any notification, in connection with the security interests;
(c) enabling the Company to exercise rights in connection with the security interests in accordance with the PPSA;
(d) ensure that the security interests have priority as first priority interests or with such other priority as the Company agrees to in writing;
(e) indemnify and, upon demand, reimburse the Company for all expenses incurred in lodging a financing statement, financing change statement or any other document required under the PPSA or for the purpose of releasing any charged property;
(f) give the Company 14 days written notice of any proposed change in the Client’s name or any other change to the Client’s details; and
(g) immediately advise the Company of any material change in its business practice of selling Goods that could result in a change in the nature of proceeds derived from such sales.
12. Existing Agreements and security interests – Transitional and Non-transitional PPSA security interests
12.1 Where the Client has previously entered into an agreement with the Company for the supply of Goods on credit (Existing Agreement):
Upon any order being made by the Client for the supply of Goods after the first provision of this document to the Client.
(i) these Terms shall apply to such supply and any subsequent supply of Goods.
(ii) any security interest (including any ROT security interest) granted by the Client under an Existing Agreement shall immediately vest in the Company.
12.2 Any order made by the Client shall not constitute a new security agreement as between the parties, but only further performance of these Terms unless expressly excluded in writing signed by the Company.
12.3 This Agreement will not act as a merger of their rights but that the terms contained under such Existing Agreement will be amended by the terms contained herein to the extent of any inconsistency.
13. Creation of Charge
13.1 As further and alternative security for the obligations owing to the Company, the Client hereby grants a charge in favour of the Company over all of its rights title and interest in all of its present and after acquired property, including real property owned by the Client and consents to a caveat or other registrable interest being lodged with the relevant government department in respect of such charge. For the purposes of section 20(1) and (2) of the PPSA, the Client states that the charge is in all of the Client’s present and after acquired property (whether owned beneficially or otherwise) from time to time.
13.2 The Company may register one or more charges pursuant to the PPSA against the product, or against any deposit, promise to pay, card authority or other security granted, pursuant to this Agreement.
14. Contracting out
14.1 Where these Terms are inconsistent with the PPSA, the Australian Competition and Consumers Act 2009 (Cth) or any other legislation, to the extent permitted by law the parties are deemed to have expressly excluded and replaced those statutory provisions.
14.2 The Company and the Client contract out of the provisions of sections 92, 93, 94, 95, 97, 118, 121, 130, 132(3)(d), 132(4), 134(1), 135, 137, 140, and 142 of the PPSA and nothing in those provisions will apply to this Agreement.
14.3 The Client hereby waives its right to receive a verification statement, in accordance with section 157 of the PPSA.
14.4 The Company and the Client acknowledge the Client is a grantor and the Company is or will become the holder of a Purchase Money Security Interest (PMSI) by virtue of this Agreement and/or the PPSA.
Terms and Conditions
14.5 The Client hereby consents not to disclose any such information as described in section 257(1) of the PPSA without the prior written consent of the Company.
14.6 The Client hereby consents to and appoints the Company to be an interested person and their authorized representative for the purposes of section 275(9) PPSA.
14.7 The benefit of this contract and the security interest/s created hereunder may be assigned by the Company, but not by the Client.
15.1 The Client appoints and authorizes the Company, any director, officer or solicitor of the Company, as its attorney to execute and deliver in its name:
(a) such form of security interest, charge or mortgage as the Company may reasonably require to better secure any charge granted under these conditions; and
(b) any financing statement, consent form, security document or other document whatsoever for the purpose of:
(i) registering any caveat or other registrable interest in respect of the charge or any security interest whatsoever granted under these conditions; or
(ii) otherwise perfecting and enforcing the security interest.
16. Right to vary terms and conditions
16.1 These terms and conditions shall govern all transactions between the parties.
16.2 The Client and the Company agree that the terms of this Contract may be altered unilaterally by the Company.
16.3 Terms and Conditions can be found on the Company’s website at “Terms and Conditions” hyperlink located at the bottom of each page of the Company’s website.
17.1 The Client agrees that:
(a) The Company may set-off any credit amount that the Company owes to the Client against any debt due by the Client to the Company at the Company’s sole discretion and without notice;
(b) The Client is not entitled to withhold payment of any money in respect of any alleged set-off or claim the Client might have against the Company.
18. Limitation of Liability and Warranty
18.1 All Goods are covered by the applicable manufacturer’s warranty.
18.2 Except to the extent required by law, all other conditions, warranties and representations on the part of the Company, whether express or implied, are hereby expressly excluded.
18.3 Except to the extent required by law, all Goods are purchased by the Client “as is” and the Company will not be responsible for any damage or defect to the Goods.
18.4 Subject to any legislation or express agreement to the contrary, the Client acknowledges that it does not rely on the skill and judgment of the Company, its employees, agents or contractors in determining whether the Goods to be supplied are fit for any particular purpose and the Client further acknowledges that any advice with respect to the use of Goods is given on the basis that the Company assumes no obligation or liability for advice given or results obtained, all such advice being given and accepted by the Client is at the Client’s risk.
18.5 To the extent permitted by law, the Client has responsibility for ensuring that the Goods are not used for any purpose for which they are not suitable and warrants and represents that it has had adequate opportunity to inspect the Goods and obtain independent expert advice.
18.6 To the extent permitted by law, in relation to Goods, the Company’s liability is limited to supplying the Goods again.
18.7 To the extent permitted by law, under no circumstances shall the Company be liable for any direct or indirect loss (including without limitation loss of profit, loss of opportunity, loss of the use of money or any other consequential or pure economic loss) or damage whether special or consequential however arising suffered by the Client.
19. Severance and Waiver
19.1 If any provision of these Terms will be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.
20. Jurisdiction and Notices
20.1 The agreement shall be deemed to have been made in the Governing State and shall be interpreted in accordance with the laws of the Governing State, Australia, and the parties submit to the non-exclusive jurisdiction of that State’s Courts, except to the extent that the laws of the Commonwealth of Australia apply.
20.2 That in addition to any other means permitted by law, any documents, notifications or court proceedings may be given or served upon the Client, its successors and permitted assignees in the same manner as any notice or document may be given under Part 8.5 of the PPSA and will be deemed so given or served.
21.1 I/We acknowledge, accept, consent and warrant that I/ we have obtained the consent of any person whose personal information appears herein (if any) to the use of information in accordance with the provisions of these terms.
21.2 The Company may use personal information contained in the application to obtain credit reports containing consumer credit information and/or commercial credit information about the Client from credit reporting agencies.
21.4 Upon request, any person may gain access to his/her personal information.
22. Business Purpose Declaration
The Client and its signatory hereby acknowledges that the credit (if any) which is to be provided under the Agreement is to be applied wholly or predominantly for business purposes and not for personal, domestic or household purposes.