Trading Terms and Conditions

Bressington Family Trust & The Trustee for the Adam Bressington Family Trust & The Trustee for the Grant Bressington Family Trust Trading as Fabre Competition Parts

With effect on and from 11.9.2020 until varied pursuant to these Terms.

1. Definitions

In the Contract the following terms have the following meanings:

Additional Charge means:

fees or charges for additional work performed at the Customer’s request or reasonably required because of the Customer’s conduct, calculated in accordance with the Supplier’s then current prices; and

expenses incurred by the Supplier, at the Customer’s request or reasonably required because of the Customer’s conduct.

Application means the application by the Customer to the Supplier for commercial credit, which includes the Credit Account Guarantee;

Australian Consumer Law means schedule 2 of the Competition and Consumer Act 2010 (Cth);

Business Day means a day that is not a Saturday, Sunday or public holiday in Sydney New South Wales;

Consequential Loss includes any loss of income, profit or business, any loss of goodwill or reputation, and any loss of value of intellectual property.

Contract means the contract between the parties of the sale and purchase of Goods which consists of each Offer placed by the Customer, these Terms, any specific term(s) pertaining to an Offer agreed in writing and, if applicable, any Warranty and/or the Application;

Credit Account Guarantee means the deed of guarantee and indemnity set out in the Application;

Custom Order means Goods that are ordered by the Customer to be made to the Customer’s specifications and/or Goods that are not stocked, and/or that are custom or non-standard goods, and require the Supplier to purchase these Goods to fulfil the Customer’s Offer and, to avoid doubt, any Offer made on a ‘Indent and Backorder Processing Form’, ‘Custom Order Processing Form’, ‘Oliver Rod Custom Rod Form’ or ‘Gen II Custom Valve Form’ is a Custom Offer.

Customer means the person identified as the customer in the Application or any person who purchases Goods from Supplier;

Customer’s Terms means any terms and conditions provided by the Customer to the Supplier at any time or in any manner, including any printed terms and conditions on an Offer, as defined in clause 2.1 , made by the Customer, or terms and conditions other than this Contract purported by the Customer to apply to the Offer.

Goods means any vehicle related goods, components, parts, products, accessories, services or materials, including for competition vehicles, supplied or to be supplied by Supplier and any other goods or products supplied or to be supplied by the Supplier;

Guarantor means a Guarantor as defined in the Credit Account Guarantee.

Invoice means any Invoice for Goods to be provided by the Supplier;

Loss includes, but is not limited to, costs (including party to party legal costs and the Supplier’s legal costs), expenses, lost profits, award of damages, personal injury and property damage;

Offer means any offer by the Customer in accordance with clause 2.1 and this Contract, to purchase Goods from the Supplier including but not limited to telephone orders, email orders, or an order otherwise made in writing, and includes a Custom Order.

Payment System means any platform, portal, software based operating system, facility or other system provided by a third party to facilitate payment of monies to the Supplier, including payment of the Purchase Price;

Purchase Price means the amount listed on the Invoice for Goods and, for the purpose of a security interest or purchase money security interest, includes any credit charges and/or interest payable;

Supplier means Bressington Family Trust & The Trustee for the Adam Bressington Family Trust & The Trustee for the Grant Bressington Family Trust trading as Fabre Competition Parts and includes the Supplier’s agents and permitted assigns);

Terms means these terms and conditions of trade; and

Warranty means any applicable manufacturer’s warranty.

Unless otherwise stated, an expression used or defined in the Corporations Act 2001 (Cth) (Corporations Act) or Personal Property Securities Act 2009 (Cth) (PPSA) has the same meaning in these Terms.

2. Offer and Acceptance

2.1. The Customer can offer to purchase Goods from the Supplier for the Purchase Price verbally or in writing (e.g. by placing an order) (Offer).

2.2. Any Offer by the Customer constitutes acceptance of the Contract and the Customer agrees that the Contract prevails over the Customer’s Terms (if any).

2.3. The Supplier may in its absolute discretion accept or reject the Customer’s Offer and if the Offer is rejected by the Supplier (Rejected Offer), then the Rejected Offer will form part of the Contract only to the extent that the Supplier may reject the Offer in its absolute discretion.

2.4. An Offer is accepted when the Customer receives written or verbal acceptance from the Supplier or receives delivery of the Goods, whichever occurs first.

2.5. The Contract constitutes the entire agreement between the Supplier and the Customer with respect to the Goods supplied under the Contract. All prior negotiations, proposals and correspondence are superseded by the Contract and the Contract, which includes these Terms, will in all circumstances prevail over the Customer’s Terms (if any).

3. Payment

3.1. The Customer must pay the Purchase Price listed on the Invoice to the Supplier on delivery of the Goods, or if a credit account has been granted with the Supplier, payment terms are strictly thirty (30) days from the date of Invoice, unless otherwise stated in the Contract, and payment is due and payable on that date.

3.2. Despite clause 3.1, if the Customer places a Custom Order the Customer acknowledges and agrees that the Supplier may require payment of all or part of the Purchase Price in advance of placing the Custom Order with the relevant third party or in advance of having the Custom Order prepared.

3.3. All representations made in the Invoice are made on the basis that errors and omissions are excepted.

3.4. Unless the Supplier otherwise notifies the Customer in writing, the price charged for the Goods is exclusive of any goods and services tax, sales tax, excise, duty and/or any identified or new taxes that come into existence after the effective date of the Contract.

3.5. Where any goods and services tax, sales tax, excise, duty and/or any identified or new taxes apply to any supply made under this Contract, the Supplier may recover from the Customer an additional amount on account of those taxes.

3.6. The Customer agrees that the Supplier may vary the Purchase Price in the event of a variation to an Offer.

3.7. Unless agreed in writing by the Supplier, the Customer must not withhold payment of the Purchase Price due to a dispute or any other query arising in respect of the Offer, the Purchase Price or any other matter connected with the Contract.

3.8. The Customer acknowledges and agrees that if the Customer uses a Payment System the Customer must comply with the requirements of the Payment System, any terms and conditions relating to the Payment System and any applicable laws.

4. Credit

4.1. The Supplier may grant the Customer credit under a credit account in its sole discretion upon the terms of the Contract, and on the terms and basis of the Application and such other documents and information as may be required by the Supplier.

4.2. The Customer acknowledges and agrees that the Contract applies to the credit account.

4.3. Until the Supplier grants the Customer credit by notice in writing and, if applicable, receives a Credit Account Guarantee, the Supplier will only supply Goods to the Customer on the basis of cash in advance.

4.4. The Customer acknowledges and agrees that the credit to be provided by the Supplier is to be applied wholly and predominantly for business purposes, or investment purposes other than investment in residential property (Credit Purpose) and the Customer agrees not to use the credit for a purpose other than the Credit Purpose.

4.5. The granting of credit does not oblige the Supplier to extend any particular amount of credit to the Customer. Any credit granted may be changed by the Supplier if it is in the Supplier’s legitimate business interests to change the credit granted on providing seven (7) days written notice to the Customer of the change in credit limit taking effect.

4.6. The Supplier reserves the right to terminate the credit account in writing upon any breach by the Customer of the Contract or upon the Customer ceasing to trade and/or being subject to any legal proceedings and/or the Customer committing an act of insolvency as determined by the Supplier in its sole discretion.

4.7. If one or more Guarantor is deceased, becomes bankrupt or otherwise withdraws from being a Guarantor in accordance with the Credit Account Guarantee, then the Supplier in its absolute discretion may suspend or terminate the credit account in writing.

4.8. The Customer agrees that upon the termination of the credit pursuant to any right of the Supplier to terminate the credit account, any and all monies owing on the credit account shall become immediately due and payable.

4.9. The Customer must promptly notify the Supplier in writing if there is any material change in the Customer’s financial position or, in accordance with this Contract, notify the Supplier of any change in the shareholding or ownership of the Customer.

5. Additional Charges

5.1. The Supplier may require the Customer to pay Additional Charges in respect of Costs incurred by the Supplier as a result of reliance on inadequate or incorrect information or material provided by the Customer or information or material supplied later than required by the Supplier in order for it to provide the Goods or services within the specified time frame (if any).

5.2. The imposition of Additional Charges may also occur as a result of:

(a) cancellation by the Customer of an Offer where cancellation results in Loss to the Supplier;

(b) reasonable storage costs for Goods not collected from the Supplier within 2 weeks of the date on which the Goods are manufactured, fabricated, created or formed and the Customer has been notified that the Goods are ready for collection;

(c) reasonable photocopying, courier, packing or handling charges not included in a price quoted to the Customer for the Offer;

(d) Government or council taxes or charges not included in the price quoted for the Offer to the Customer; or

(e) additional work required by the Supplier or any other occurrence which causes the Supplier to incur costs in respect of the Customer’s Offer additional to the price quoted.

6. Delivery

6.1. Delivery of the Goods will be deemed to be complete when the Goods are collected by the Customer or are delivered to the Customer or to the carrier as nominated by the Supplier and/or Customer.

6.2. The Customer is liable for all transport charges and/or transport insurance of the Goods unless the Supplier agrees in writing otherwise. If such charges are paid by the Supplier, those charges are not refundable if included in the Purchase Price in the event the Goods are later returned.

6.3. If the Supplier accepts liability for transport charges and/or transport insurance, the Customer agrees to indemnify the Supplier from any Loss which occurs to the Goods during transport and/or delivery including any Consequential Loss.

6.4. Upon delivery of Goods by the Supplier to the Customer, the Customer must sign a proof of delivery, if applicable.

6.5. The Supplier will make all reasonable efforts to have the Goods delivered to the Customer or the Customer’s designated agent as agreed between the parties (or if there is no specific agreement then at the Supplier’s reasonable discretion), but the Supplier will not be liable for:

(a) any failure to deliver or delay in delivery for any reason;

(b) any damage or loss due to unloading; or

6.6. The Supplier may deliver the Goods by separate installments (in accordance with any agreed delivery schedule). Each separate instalment will be Invoiced and paid in accordance with the provisions of the Contract relating to the Goods.

6.7. If the Customer fails to collect or take delivery of the Goods the Customer may, at the discretion of the Supplier, be liable for costs incurred by the Supplier, including reasonable administrative costs incurred by the Supplier and the Supplier will be entitled, also at its discretion, to organise for the redelivery and/or storage of the Goods at the Customer’s cost and risk. The Supplier will provide to the Customer a compliant Invoice itemising the reasonable administrative cost, redelivery charges and/or storage charges as applicable.

6.8. The Customer will inspect the Goods on delivery and must within fourteen (14) days of delivery notify the Supplier of any alleged defect, shortage in quantity, damage, or failure to comply with the description or quote. The Customer must afford the Supplier an opportunity to inspect the Goods within fourteen (14) days after notifying the Supplier in accordance with this clause. If the Customer fails to notify the Supplier within fourteen (14) days of delivery of any alleged defect, shortage in quantity, damage, or failure to comply with the description or quote, the Goods will be deemed to be accepted by the Customer and to be in accordance with the Contract relating to the Goods and, without limiting any right available under the Australian Consumer Law, free from defect or damage.

6.9. Notwithstanding anything in clause 6.8, except as required by law, the Supplier will be under no obligation to accept Goods returned for any reason.

7. Title and related matters

7.1. The legal and equitable title to the Goods will remain with the Supplier and will not pass to the Customer until full payment (in cleared funds) is received by the Supplier from the Customer for all Goods supplied by the Supplier to the Customer and for all other moneys owed by the Customer to the Supplier.

7.2. Until title to such Goods passes to the Customer, the Customer acknowledges and agrees that:

(a) the Customer holds the Goods as bailee for the Supplier and that a fiduciary relationship exists between the Customer and the Supplier;

(b) the Customer is liable to compensate the Supplier for all Loss or damage sustained to the Goods whilst they are in the Customer’s possession; and

(c) the Customer must keep the Goods separate and in good condition as a fiduciary of the Supplier, clearly showing the Supplier’s ownership of the Goods and, must keep books recording the Supplier’s ownership of the Goods and the Customer’s sale or other use of them in accordance with paragraphs 7.4 and 7.5. The Customer if required, must deliver the Goods up to the Supplier.

7.3. If the Customer defaults, in addition to clause 7.2(a) and 7.2(b), the Supplier may take possession of the Goods wherever the Goods are located and the Customer agrees that representatives of the Supplier may enter upon the Customer’s premises, or any premises where the Goods are situated as the invitee of the Customer, for that purpose without liability for trespass or any resulting damage in retaking possession of the Goods.

7.4. Despite clause 7.1, the Customer may sell, as fiduciary agent for the Supplier, the Goods to a third party in the normal course of the Customer’s business provided that where the Customer is paid by that third party, the Customer holds the proceeds of sale, to the extent of the money owing by the Customer to the Supplier, on any account whatsoever, at the time of receipt of such proceeds, on trust for the Supplier. The Customer must keep those proceeds separate on trust for the Supplier and not mix those proceeds with any other money.

7.5. If the Customer uses the Goods, or allows the Goods to be used to manufacture or produce another product, then the Customer must hold on trust for the Supplier such part of the proceeds of such manufacturing or production process as relate to the Goods. Such part will be deemed to equal, in dollar terms, to the price of the Goods used. The Customer must keep that part of the proceeds separate on trust for the Supplier and not mix those proceeds with any other money.

7.6. The provisions of this title clause apply notwithstanding that the Supplier may have provided credit to the Customer.

8. Risk

8.1. Risk in the Goods passes to the Customer upon delivery (including all risks associated with unloading) or upon title in the Goods passing to the Customer, whichever is the earlier.

9. Personal Property Securities

9.1. The Customer acknowledges and agrees that under the PPSA:

(a) the Contract constitutes a security agreement and each Offer is incorporated into the Contract, which includes these Terms;

(b) as security for payment of the Purchase Price of the Goods, the Customer grants the Supplier a security interest being a purchase money security interest in favour of the Supplier:

(i) in all Goods supplied or to be supplied as specified in an Offer or any Offer; and

(ii) in any present or after acquired property representing the proceeds of sale of the Goods, including where the Customer uses the Goods, or allows the Goods to be used to manufacture or produce another product or in accession to other goods;

(c) as security for the performance by the Customer of the obligations set out in the Contract the Customer grants the Supplier a security interest:

(i) in all Goods supplied by the Supplier to the Customer from time to time as specified in an Offer or any Offer; and

(d) the Supplier may register a financing statement on the Personal Property Securities Register, including, a financing statement that describes the Goods as ‘other goods’ (or a description the Supplier otherwise considers appropriate for the Goods), specifies the security interest as a purchase money security interest and specifies that the security interest is taken in all Goods and in any present or after acquired property representing the proceeds of sale of the Goods.

9.2. The Customer agrees to provide information and do anything the Supplier reasonably requires to register, maintain and enforce the Supplier’s security interest.

9.3. The Customer indemnifies the Supplier and agrees to reimburse the Supplier on demand for costs incurred in respect of registering, maintaining and enforcing the Supplier’s security interest.

9.4. The Customer waives the requirement to be provided information under various provisions of the PPSA, in particular, the Customer agrees that as provided for in:

(a) PPSA section 157 – the Customer waives its right to receive a verification statement from the Supplier; and

(b) PPSA section 115 – the Customer waives its right to receive information, or has contracted out of receiving information, under the various provisions set out in clause 9.6 of these Terms.

9.5. To the extent permitted by PPSA section 275, for the purpose of confidentiality, the Supplier and the Customer agree that the Supplier and the Customer must not disclose the information referred to in section 275(1) except with the consent in writing of the other party.

9.6. To the extent permitted under PPSA section 115, the Supplier and the Customer agree the following PPSA sections are contracted out of, section 95, section 96(b), section 118 (to the extent of providing notice), section 121(4), section 125, section 129(2), section 130 (to the extent that it requires the secured party to give a notice to the grantor), section 132(3)(d), section 132(4), section 135, 142 and 143.

9.7. The Customer irrevocably grants the Supplier the right to enter upon the Customer’s property or premises, without notice or liability, to enforce its rights under the PPSA.

9.8. The Customer agrees that any rights of the Supplier under the Contract are in addition to the rights of the Supplier under the PPSA.

9.9. The Customer agrees not to allow a third party to obtain a security interest in the Goods or charge the Goods in anyway while title in the Goods remains with the Supplier without the Supplier’s prior written consent.

10. Returns / Refunds

10.1. The Customer must inspect the Goods on delivery in accordance with clause 6.8.

10.2 The return of Goods will not be accepted upon the expiration of fourteen (14) days after the delivery date, except in accordance with any applicable Warranty, the Australian Consumer Law and any other applicable law to the extent it is not excluded under this Contract.

10.3. To the extent permitted by law the Supplier may in its absolute discretion accept or reject the return of Goods which are deemed by the Supplier to be of acceptable condition (e.g. change of mind). If the return of Goods in acceptable condition within fourteen (14) days is accepted, the Customer will pay a reasonable administration and re-stocking fee, which will not exceed 10% of the value of the returned Goods, for the reasonable cost incurred by the Supplier for work conducted in respect of Goods that are of acceptable condition that are returned for change of mind or other return, but not if the Supplier has obligations in respect of the Goods under the Australian Consumer Law, Warranty or another applicable law not excluded by this Contract (Return Costs Fee), the Return Costs Fee will be due and payable seven (7) days from the date of the Invoice for the Return Costs Fee, and:

(a) in deciding whether to accept the return of Goods pursuant to this clause, the Supplier may consider (amongst other things) whether the returned Goods are in the original packaging, accompanied by the original Invoice and in a condition suitable for the Supplier to re-stock and re-sell;

(b) if the Supplier accepts the return of the Goods pursuant to this clause, then the Supplier in its absolute discretion may allow for an exchange for Goods of equivalent price or to provide a credit to the value of the Goods.

10.4. To the extent permitted by law, and unless agreed in writing otherwise by the Supplier, the Customer is liable for all transport charges and/or transport insurance of returned Goods, which the Customer must prepay. If such charges are paid by the Supplier, those charges are not refundable if included in the Purchase Price in the event the Goods are later returned. If the Supplier accepts liability for transport charges and/or transport insurance, the Customer will indemnify the Supplier from all Loss which occurs to the returned Goods during transport and/or delivery including all Consequential Loss.

10.5. Acknowledgement of receipt of returned Goods by the Supplier does not amount to acceptance of those returned Goods nor of any liability to provide to the Customer an exchange or credit.

10.6. The Customer acknowledges that Custom Orders and any Goods that are not stocked by the Supplier but purchased pursuant to a request by the Customer, are non-returnable except as provided under any applicable Warranty or the Australian Consumer Law.

11. Warranty

11.1. The Customer acknowledges and accepts the terms and conditions of the Supplier’s applicable Warranty (if any).

12. Termination and Cancellation

12.1. The Supplier may cancel an Offer under a Contract to cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice, the Supplier shall repay to the Customer any sums paid in respect of the Purchase Price including Additional Charges if applicable. The Supplier shall not be liable for any Loss, Consequential Loss or damage whatever arising from such cancellation.

12.2. Without prejudice to the Supplier’s other remedies at law, the Supplier shall be entitled to cancel all or any part of any Offer of the Customer which remains unfulfilled if the Customer is in default under this Contract, all amounts owing to the Supplier will, whether or not due for payment, become immediately payable in the event of a default as specified in clause 14.

12.3. An Offer cannot be cancelled by the Customer unless expressly agreed by the Supplier in writing.

12.4. In the event the Customer cancels the delivery of Goods, the Customer shall be liable for reasonable costs incurred by the Supplier and any Loss incurred by the Supplier (including, but not limited to, any loss of profits) up to the time of cancellation.

12.5. If the Customer places an Offer with the Supplier and:

(a) the Supplier places an order with a third party supplier to meet the Customer’s request, the Customer shall be liable for the Purchase Price of the Goods ordered if the Customer cancels the Offer and the Goods have already been dispatched;

(b) the Supplier specifically purchases the Goods from a third party supplier at the request of the Customer and those Goods are not generally stocked by the Supplier, the Supplier is supplying Goods pursuant to a Custom Order or the Supplier is supplying another type of special order specifically at the request of the Customer and is required to purchase Goods from a third party supplier or to undertake work to fulfil the Offer, then if the Customer cancels the Offer the Customer will be liable to pay to the Supplier all costs incurred by the Supplier to fulfil the Offer, including the amount that the Supplier must pay to third parties.

12.6. The Supplier may terminate the Contract on giving the Customer a minimum of forty (40) days written notice.

12.7. The Customer may terminate the Contract on giving the Supplier a minimum of forty (40) days written notice.

12.8. The Supplier may, in its absolute discretion, no earlier than forty (40) days before the termination takes effect suspend the Trading Account by giving the Customer notice in writing. Despite clause 4.8, such suspension will not affect the payment terms of Offers placed by the Customer more than forty (40) days prior to the termination taking effect. To avoid doubt the Customer may continue to purchase Goods within forty (40) days of the termination taking effect by making payment for the Goods in advance or on delivery.

13. Limitation of liability and liability

13.1. The Customer will ensure when making an Offer that there is sufficient information to enable the Supplier to execute the Offer. The Supplier takes no responsibility if the incorrect product type or quantity is ordered and/or if the specifications are wrong or inaccurate and the Customer will be liable for the expenses incurred by the Supplier for any work required to rectify and/or redeliver the Goods pursuant to the Offer.

13.2. To the extent permitted by law and except as provided in the Contract all express and implied warranties, guarantees and conditions under statute or general law as to merchantable quality, description, quality, suitability or fitness of the Goods and/or services for any purpose or as to design, assembly, installation, materials or workmanship or otherwise is expressly excluded.

13.3. To the extent permitted by law, including where permitted under the Australian Consumer Law, the Supplier’s liability is limited in relation the sale of Goods to the Customer as follows:

(a) the Supplier’s liability for any claims is limited at the Supplier’s option to either:

(i) replacing the Goods or supplying equivalent goods;

(ii) repairing the Goods; or

(iii) repayment of the Purchase Price of the Goods.

(b) the Supplier is not liable for any Loss or damage to person or property arising from or caused in any way by the Goods;

(c) the Supplier will not be liable for any indirect, incidental, special or Consequential Losses, liability costs or damages, any loss of business opportunity, production, profit or savings, or any reasonable foreseeable losses.

13.4. Any limitation of liability in clause 13.3 and/or this Contract does not apply if it would restrict, modify or exclude the Customer’s rights in a way that is not permitted under the Australian Consumer Law or other applicable laws.

13.5. Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

13.6. The Customer agrees that if it is aware (or should be aware) that the Goods, the subject of an Offer, are for a particular purpose or are required to possess special characteristics, the Customer will clearly specify that purpose or those characteristics in any such Offer.

13.7. The Customer acknowledges and accepts that it is responsible for ensuring the Goods purchased are ﬁt for the purpose for which they are intended.

13.8. To the extent permitted by law, and notwithstanding clause 13.6:

(a) the Customer acknowledges and agrees that the Customer is not relying on any representation in writing or verbally by the Supplier that Goods supplied pursuant to a Custom Order are suitable, fit for purpose, safe or durable and the Customer acknowledges and agrees that the Customer is responsible for conducting its own due diligence as to the suitability, fitness for purpose, safety and durability of the Goods supplied pursuant to a Custom Order and that the Goods supplied pursuant to a Customer Order comply with applicable laws;

(b) the Customer acknowledges and agrees that it is not relying upon any representation made by the Supplier or its representatives whether in writing or verbally as to the suitability of the Goods for the purpose intended and the Customer acknowledges and agrees that it is responsible for undertaking its own due diligence with respect to the Goods and the respective fitness for purpose.

13.9. To the extent permitted by law the Customer indemnifies the Supplier against any damages arising out of fitment of the Goods which occurs due to the Customer’s failure to undertake proper due diligence with respect to the suitability of the Goods for the intended purpose.

13.10. Where more than one Customer completes the Contract each shall be liable jointly and severally.

13.11. The Contract is binding on the Customer, their heirs, assignees, executors, trustees and where applicable, any liquidator, receiver or administrator.

13.12. To the extent permitted by law, the Customer acknowledges that in the event of any breach of the Contract by the Supplier, including Consequential Loss, the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the cumulative Purchase Price of Invoices issued in the 30 days immediately preceding the breach or, if no Invoices were issued in the 30 days immediately preceding the breach, the Purchase Price on the most proximate invoice prior to the breach.

13.13 The Customer acknowledges and agrees that the Customer will indemnify and hold the Supplier harmless against all Loss, including Consequential Loss, and damages, including in relation to third party claims against the Supplier, in connection with, or arising directly or indirectly out of, the Customer’s use of a Payment System, including misuse, fraudulent use, the failure to comply with the requirements or terms and conditions of the Payment System or incorrectly entering information into the Payment System.

14. Default

14.1. The Customer will be in default if.

(a) the Customer breaches the Contract;

(b) payment for the Goods has not been received by the Supplier by the due date for payment;

(d) the Customer, being an individual, commits an act of bankruptcy or becomes an insolvent under administration;

(e) the Customer, being a body corporate, becomes an externally-administered body corporate or any proceedings are filed, or steps taken that may result in the Customer becoming an externally-administered body corporate; or

(f) the Supplier forms the opinion that the Customer’s credit worthiness or credit standing alters from that indicated in its Application.

14.2. Without prejudice to any other rights of the Supplier, if the Customer defaults, the Supplier may do one or more of the following:

(a) without notice to the Customer, make all money owing by the Customer to the Supplier, on any account whatsoever, immediately due and payable (including any costs incurred as a result of trying to recover the outstanding amount);

(b) treat the whole of the Contract and/or any other Contract with the Customer as repudiated and sue for breach of contract;

(d) repossess or claim repossession of any Goods in the Customer’s possession where title has not passed to the Customer so that title to the Goods remains with the Supplier, and, for the purpose of locating and repossessing those Goods, the Customer irrevocably gives the Supplier authority to enter any premises occupied by the Supplier, (without liability for trespass), to resell those Goods and to apply the proceeds of that sale to payment of the Purchase Price or any other money owing under the Contract;

(e) without notice to the Customer, withdraw or vary any credit the Supplier has provided to the Customer;

(f) suspend or terminate the Customer’s credit account;

(g) charge interest on any money owing until payment at the rate of 10% per annum, calculated daily.

15. Change of ownership

15.1. The Customer shall, no later than 14 days prior to any:

(a) change of ownership;

(b) change in registered particulars;

notify the Supplier of the proposed change, alteration or addition and shall provide full details of the proposed change, alteration or addition to the Supplier.

15.2. On receiving the notice pursuant to clause 15.1 the Supplier, may:

(a) accept in writing the change, alteration or addition set out in the notice, which may include conditions the Supplier reasonably considers to be in its legitimate business interests;

(b) temporarily suspend the credit account to afford the Supplier an opportunity to consider if it is in its legitimate business interests to continue to provide the credit account in light of the change, alteration or addition set out in the notice;

(c) if the Supplier considers in its reasonable opinion that it is not in its legitimate business interests to continue to provide the credit under the credit account, and/or to provide Goods under the Contract, the Supplier may terminate the credit account and/or the Contract in writing signed by the Supplier.

15.3. The Customer and the Guarantors are liable for any Goods supplied by the Supplier after such change, alteration or addition unless the Supplier has acknowledged by writing acceptance of the intended change, alteration or addition and the Customer has complied with and satisfied any conditions of acceptance by the Supplier provided by the Supplier to the Customer.

16. Force Majeure

16.1. The Supplier is not liable for failure to perform the Contract to the extent, and for so long as, its performance is prevented or delayed as a result of circumstances beyond the reasonable control of the Supplier (including without limitation as a result of any strike, war, terrorist attack, trade dispute, fire, flood, tempest, theft, epidemic, pandemic or breakdown in machinery of any kind, disruption to electricity (or any other utility), or breakdown or disruption of any electronic communication support system).

16.2. The Supplier will notify the Customer in writing when such circumstances cause a delay or failure in performance and when they cease to do so.

16.3. If such circumstances continue for a continuous period of more than 6 months, either party may terminate this Contract by written notice to the other party.

16.4. If the Supplier is unable to fulfil or complete an Offer placed by the Customer within the time frame required by the Customer due to a circumstance in clause 16.1, then the Supplier may cancel the Offer without the Customer having a claim against the Supplier for Loss, including Consequential Loss, damage, costs or expenses arising from such a cancellation. The Customer is not relieved under this clause from the requirement to pay the Purchase Price for Goods dispatched to the Customer (as required by the terms of this Contract or as otherwise agreed in writing between the parties).

17. Waiver

17.1. The Supplier rights under a Contract may only be waived by notice in writing. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.

17.2. The failure by the Supplier to enforce any provision of this Contract will not be treated as a waiver of that provision or affect the Supplier’s right to subsequently enforce that provision.

18. Supplier may assign

18.1. The Supplier may assign, licence or sub-contract all or any part of its rights and obligations under the Contract to another person without notice to the Customer.

18.2. The Customer may not assign or otherwise transfer any or all of its rights and obligations under this Contract without the prior written agreement of the Supplier.

19. Severance

19.1. If a provision of a Contract would, but for this clause, be unenforceable:

(a) the provision must be read down to the extent necessary to avoid that result; and

(b) if the provision cannot be read down to that extent, it must be severed without altering the validity and enforceability of the remainder of the Contract.

20. Variation

20.1. The Supplier may vary these Terms at any time, Customers with trading accounts will be notified of the variation to the Terms, and the effective date of the varied Terms, by email or by other means of communication with the Customer and notification that the Terms have been varied and the effective date of the varied Terms will be provided on the Supplier’s website.

20.2. The Customer may request that its Offer be varied by providing a request in writing to the Supplier. A request for a variation must be agreed to in writing by the Supplier in order to have effect.

20.3. If the Customer wishes to vary its requirements after a price has been given to the Customer (Quote) or after the placement of an Offer, the Supplier reserves the right to vary the Quote to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates. If a revised Quote is issued by the Supplier in respect of the requested variation the revised Quote supersedes the original Quote. If the revised Quote only specifies additional work, the Quote for that additional work will be in addition to the immediately preceding Quote for the Goods or services or both.

20.4. The Supplier has an automatic extension of time for the provision of the Goods or services equal to the delay caused by the variation.

21. Costs

21.1. The Customer must pay all of the Supplier’s costs and expenses in connection with the Contract, including legal expenses (on an indemnity basis), stamp duty and costs incurred in the recovery of monies owing by the Customer to the Supplier, or in otherwise enforcing the Supplier’s rights against the Customer, under the Contract.

22. Jurisdiction

22.1. These Terms and Conditions of Trade are governed by the laws of New South Wales. The parties submit to the jurisdiction of the courts of New South Wales.

23. Trusts

23.1. If the Customer is a trustee of a trust:

(a) the Customer warrants that the Customer as trustee has the power under the trust deed to enter into this Contract and to comply with its obligations under this Contract, including using the trust assets to meet the Customer’s obligations under this Contract;

(b) the Customer agrees that the Contract binds the Customer in their capacity as trustee and in the Customer’s own capacity; and

(c) the Customer agrees that the Customer is liable for the failure to meet an obligation under this Contract in its capacity as trustee and it the Customer’s own capacity.

24. General

24.1 Names, descriptions, symbols and numbers being quoted or appearing on invoices are used for internal reference purposes of the Supplier only, and it is not implied that the parts supplied are the actual manufacturer’s whose part numbers may be quoted.

24.2 If any part of this Contract is for any reason unenforceable, that part must be read down to the extent necessary to preserve its operation. If it cannot be read down, it must be severed.

24.3 The legal doctrine that a construction less favourable to the person putting forward this instrument should be accepted against it will not apply to this Contract.

24.4 The Customer agrees that it is an essential term of this Contract to act in good faith and honestly and in furtherance of the commercial efficacy intended by this Contract.

24.5. The Customer will have no right of set-off in any suit, claim or proceeding brought by the Supplier against the Customer for default in payment, or in any suit, claim or proceeding brought by the Customer against the Supplier. The Customer acknowledges that the Supplier can produce this clause in bar of any proceeding for set-off.

24.6. If the Contract is terminated for whatever reason any rights or liabilities of the parties that accrued prior to the termination are not affected or prejudiced and the following clauses survive termination clause 3 (Payment), clause 4 (Credit), clause 5 (Additional Charges), clause 7 (Title and related matters), clause 8 (Risk), clause 9 (Personal Property Securities), clause 12 (termination and cancellation, clause 13 (Limitation of liability and liability), clause 14 (default), clause 15.3 (Change of ownership), together with any other clauses that by their nature survive termination.

25. Interpretation

25.1 In these Terms, unless the context otherwise requires:

(a) a reference to writing includes email and other communication established through the Supplier’s website;

(b) the singular includes the plural and vice versa;

(d) a reference to a party to these Contract or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;

(e) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;

(f) headings are for ease of reference only and do not affect the meaning or interpretation of this Contract; and

(g) if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:

(i) if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and

(ii) in all other cases, must be done on the next Business Day.