1.1 “Regional Transport Spares Pty Ltd” means RTS its successors and assigns or any person acting on behalf of and with the authority of Regional Transport Spares Pty Ltd.
1.2 “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally (where the context so permits, the term ‘Client’ shall also mean the Client’s duly authorised representative).
1.3 “Goods” means all Goods or Services supplied by RTS to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between RTS and the Client in accordance with clause 6 below.
1.5 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and RTS.
2.3 The Client acknowledges that the supply of Goods on credit shall not take effect until the Client has completed a credit application with RTS and it has been approved with a credit limit established for the account.
2.4 In the event that the supply of Goods request exceeds the Clients credit limit and/or the account exceeds the payment terms, RTS reserves the right to refuse delivery.
2.5 RTS reserves the right to substitute comparable Goods (or components of the Goods), and in all such cases RTS will notify the Client in advance of any such substitution.
2.6 The Client acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, RTS reserves the right to vary the Price with alternative Goods as per clause 2.5.
2.7 Notwithstanding clause 2.6 RTS also reverses the right at their discretion to introduce additional new Goods as part of the Goods to be supplied.
3.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
4.1 Unless otherwise limited as per clause 4.2 the Client agrees that should the Client introduce any third party to RTS as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Goods or Services on the Client’s behalf and/or to request any variation to the Goods/Services on the Client’s behalf (such authority to continue until all requested Goods/Services have been supplied or the Client otherwise notifies RTS in writing that said person is no longer the Client’s duly authorised representative).
4.2 In the event that the Client’s duly authorised representative as per clause 4.1 is to have only limited authority to act on the Client’s behalf, then the Client must specifically and clearly advise RTS in writing of the parameters of the limited authority granted to their representative.
4.3 The Client specifically acknowledges and accepts that they will be solely liable to RTS for all additional costs incurred by RTS (including RTS’ profit margin) in providing any Goods/Services or variations requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 4.2 (if any)).
5.1 The Client shall give RTS not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by RTS as a result of the Client’s failure to comply with this clause.
6.1 At RTS’ sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by RTS to the Client; or
(b) RTS’ quoted price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30)days.
6.2 RTS reserves the right to change the Price if a variation to RTS’ quotation is requested. Any variation from the specifications of the Goods
(including, but not limited to, any variation as a result of fluctuations in currency exchange rates or increases to RTS in the cost of taxes, levies, materials and labour, or due to the unavailability) and any variations will be charged for on the basis of RTS’ quotation, and will be detailed in writing, and shown as variations on RTS’ invoice. The Client shall be required to respond to any variation submitted by RTS within ten (10) working days. Failure to do so will entitle RTS to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
6.3 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by RTS, which may be:
(a) upon delivery of the Goods;
(b) thirty (30) days following the end of the month in which a statement is delivered to the Client’s address for notices;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by RTS.
6.4 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction) or by any other method as agreed to between the Client and RTS.
6.5 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by RTS nor to withhold payment of any invoice because part of that invoice is in dispute.
6.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to RTS an amount equal to any GST RTS must pay for any supply by RTS under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
7.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that either;
(a) the Client (or the Client’s nominated carrier) takes possession of the Goods at RTS’ address; or
(b) RTS (or RTS’ nominated carrier) delivers the Goods to the Client’s nominated address, even if the Client is not present at the address.
7.2 At RTS’ sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.
7.3 RTS may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions herein.
7.4 Any time specified by RTS for delivery of the Goods is an estimate only and RTS will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties.
8.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
8.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, RTS is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by RTS is sufficient evidence of RTS’ rights to receive the insurance proceeds without the need for any person dealing with RTS to make further enquiries.
8.3 If the Client requests RTS to leave Goods outside RTS’ premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.
8.4 The Client acknowledges that all descriptive specifications, illustrations, drawings, data, dimensions and weights stated in RTS’ fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by RTS.
8.5 RTS shall not be liable for any defect in the Goods if the Client does not follow the manufacturer’s and/or RTS’ advice/recommendations.
9.1 The Client and RTS shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Goods/Services, including any work health and safety (WHS) laws and any other relevant safety standards or legislation.
9.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Goods/Services.
10.1 RTS and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid RTS all amounts owing to RTS; and
(b) the Client has met all of its other obligations to RTS.
10.2 Receipt by RTS 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.
10.3 It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 10.1:
(a) the Client is only a bailee of the Goods and must return the Goods to RTS on request;
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for RTS and must pay to RTS the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for RTS and must pay or deliver the proceeds to RTS on demand;
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of RTS and must sell, dispose of or return the resulting product to RTS as it so directs;
(e) the Client irrevocably authorises RTS to enter any premises where RTS believes the Goods are kept and recover possession of the Goods;
(f) RTS may recover possession of any Goods in transit whether or not delivery has occurred;
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of RTS;
(h) RTS may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
11.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
11.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Client to RTS for Services – that have previously been supplied and that will be supplied in the future by RTS to the Client.
11.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which RTS may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 11.3(a)(i) or 11.3(a)(ii);
(b) indemnify, and upon demand reimburse, RTS for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of RTS;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of RTS;
(e) immediately advise RTS of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
11.4 RTS and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
11.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
11.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
11.7 Unless otherwise agreed to in writing by RTS, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
11.8 The Client must unconditionally ratify any actions taken by RTS under clauses 11.3 to 11.5.
11.9 Subject to any express provisions to the contrary (including those contained in this clause 11) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
12.1 In consideration of RTS agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
12.2 The Client indemnifies RTS from and against all RTS’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising RTS’ rights under this clause.
12.3 The Client irrevocably appoints RTS and each director of RTS as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client’s behalf.
13.1 The Client must inspect the Goods on delivery and must within sixty (60) days of delivery notify RTS in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow RTS to inspect the Goods.
13.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non- Excluded Guarantees).
13.3 RTS acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
13.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, RTS makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. RTS’ liability in respect of these warranties is limited to the fullest extent permitted by law.
13.5 If the Client is a consumer within the meaning of the CCA, RTS’ liability is limited to the extent permitted by section 64A of Schedule 2.
13.6 If RTS is required to replace the Goods under this clause or the CCA, but is unable to do so, RTS may refund any money the Client has paid for the Goods.
13.7 If the Client is not a consumer within the meaning of the CCA, RTS’ liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by RTS at RTS’ sole discretion;
(b) limited to any warranty to which RTS is entitled, if RTS did not manufacture the Goods;
(c) otherwise negated absolutely.
13.8 Subject to this clause 13, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 13.1; and
(b) RTS has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
13.9 Notwithstanding clauses 13.1 to 13.8 but subject to the CCA, RTS shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by RTS;
(e) fair wear and tear, any accident, or act of God.
13.10 Notwithstanding anything contained in this clause if RTS is required by a law to accept a return then RTS will only accept a return on the conditions imposed by that law.
14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at RTS’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 If the Client owes RTS any money the Client shall indemnify RTS from and against all costs and disbursements incurred by RTS in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, RTS’ contract default fee, and bank dishonour fees).
14.3 Further to any other rights or remedies RTS may have under this contract, if a Client has made payment to RTS, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by RTS under this clause 14 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.
14.4 Without prejudice to RTS’ other remedies at law RTS shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to RTS shall, whether or not due for payment, become immediately payable if:
(a) any money payable to RTS becomes overdue, or in RTS’ opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by RTS;
(c) the Client 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
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
15.1 Without prejudice to any other remedies RTS may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions RTS may suspend or terminate the supply of Goods to the Client. RTS will not be liable to the Client for any loss or damage the Client suffers because RTS has exercised its rights under this clause.
15.2 RTS may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice RTS shall repay to the Client any money paid by the Client for the Goods. RTS shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.3 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by RTS as a direct result of the cancellation (including, but not limited to, any loss of profits).
16.1 If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
17.1 The Client agrees for RTS to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by RTS.
17.2 The Client agrees that RTS may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
17.3 The Client consents to RTS being given a consumer credit report to collect overdue payment on commercial credit.
17.4 The Client agrees that personal credit information provided may be used and retained by RTS for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
17.5 RTS may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
17.6 The information given to the CRB may include:
(a)personal information as outlined in 17.1 above;
(b)name of the credit provider and that RTS is a current credit provider to the Client;
(c)whether the credit provider is a licensee;
(d)type of consumer credit;
(e)details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f)advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and RTS has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g)information that, in the opinion of RTS, the Client has committed a serious credit infringement;
(h)advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
17.7 The Client shall have the right to request (by e-mail) from RTS:
(a) a copy of the information about the Client retained by RTS and the right to request that RTS correct any incorrect information; and
(b) that RTS does not disclose any personal information about the Client for the purpose of direct marketing.
17.8 RTS will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
17.9 The Client can make a privacy complaint by contacting RTS via e-mail. RTS will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
18.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. 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 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in which RTS has its principal place of business, and are subject to the jurisdiction of the Dubbo Courts in that state.
18.3 Subject to clause 13 RTS shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by RTS of these terms and conditions (alternatively RTS’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
18.4 RTS may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
18.5 The Client agrees that RTS may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for RTS to provide Goods to the Client.
18.6 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
18.7 Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.