1. Definitions
Business Day means a day that is not a Saturday, Sunday or public holiday in the place where the Vehicle being supplied.
Contract means this contract which is comprised of these terms of trade, the Quote and the Order.
Customer means the person identified on an Order as the customer and includes the Customer’sagents and permitted assigns.
Intellectual Property Rights means intellectual property rights at any time protected by statute or common law, including copyright, trademarks, patents and registered designs.
Loss includes, but is not limited to, costs (including party to party legal costs and Theault’s legal costs), expenses, lost profits, award of damages, personal injury and property damage.
Order means a purchase order for a vehicle placed by a Customer pursuant to a Quote.
Price means the price for the Vehicle specified in the Quote, including, as the case may be, the Customer’s trade-in vehicle.
PPS Law means the Personal Property Security Act 2009 (Cth) (PPS Act) and any regulation made at any time under the PPS Act (each as amended from time to time).
Quote means a written description of the vehicle to be supplied by Theault setting out the price for the vehicle and information relating to the supply of the vehicle.
Supplier means the entity specified as Theault of the Vehicle on the Quote and includes Theault’s agents and permitted assigns.
Theault means Theault South Pacific Pty Ltd ABN 90 628 120 329 and includes Theault’s agents, permitted assigns, and any related body corporate within the meaning of Section 50 of the Corporations Act 2001.
Vehicle means the vehicle to be supplied by Theault as described in the Quote. Warranties means the waaranties by Theault as set out in clause 12.
2. Interpretation
In these terms of trade, unless the context otherwise requires:
– a reference to writing includes email and other communication established through Theault’s website (if any);
– the singular includes the plural and vice versa;
– a reference to a clause or paragraph is a reference to a clause or paragraph of these terms of trade;
– a reference to a party to these terms of trade or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
– where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
– the word “including” or any other form of that word is not a word of limitation;
– headings are for ease of reference only and do not affect the meaning or interpretation of these terms of trade; and
– 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:
– if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
– in all other cases, must be done on the next Business Day
These terms of trade apply to all transactions between the Customer and Theault relating to the supply of the Vehicle. These terms of trade take precedence over terms of trade contained in any document of the Customer or elsewhere.
The variation or waiver of a provision of these terms or a party’s consent to a departure from a provision by another party is ineffective unless in writing signed by the parties.
Theault may amend any details in an Order by notice in writing to the Customer. Such amended details supersede any relevant prior detail in dealings between the parties.
Upon request by the Customer, Theault may provide the Customer with a Quote setting out the specifications of the Vehicle, estimate time frame for the delivery and the Purchase Price.
The Quote shall not constitute an offer by Theault to supply the Vehicle. Theault is not obliged to construct or supply the Vehicle until an Order is submitted by the Customer and accepted by Theault.
Every Order by the Customer must be submitted in writing on Theault’s standard order form (unless otherwise agreed in writing).
Placement of an Order by the Customer signifies acceptance by the Customer of these terms of trade.
To the fullest extent permitted by law, Theault may in its absolute discretion refuse to supply the Vehicle without reason.
An Order cannot be varied or cancelled without the prior written consent of Theault. Where an Order is cancelled, the Customer indemnifies Theault against any Losses incurred by Theault as a result of the cancellation. This includes, but is not limited to, loss of profit from other orders foregone as a result of the scheduling of the Order which is subsequently cancelled.
If a delivery date is specified in the Order, Theault will endeavour to deliver the Vehicle within the time so specified, but in no circumstances will Theault be liable for any loss or damage of any kind whatsoever caused directly or indirectly by any delay in or failure of delivery in whole or in part.
If a delivery location is specified in the Order, Theault will endeavour to deliver the Vehicle to that location.
Upon Theault giving notice to the Customer that the Vehicle is available for delivery, the Customer shall collect the Vehicle from the delivery location within 7 days after the date of that notice.
The Customer hereby authorises Theault to do all things reasonably necessary to effect the registration of the Purchase Vehicle in the name of the Customer, including to instruct a specialised third party to do so, and shall indemnify Theault against all registration fees, charges, insurance costs, stamp duty and other expenses incurred by Theault to register the Vehicle.
Unless otherwise agreed in writing, the Customer must pay the Price to Theault as follows:
– 30% of the Price as a deposit at the time the placement of the Order;
– 30% of the Price once the Vehicle is in transit; and
– The balance before the delivery of the Vehicle.
Each payment under this clause 6 must be made without set-off or counterclaim and otherwise in the manner specified in the relevant invoice.
If the Customer fails to make payment of the Price in accordance with this Contract, after demand for payment by Theault, then Theault may do one or both of the following:
– suspend performance of its obligations to the Customer until all amounts owing by the Customer to Theault (whether under this Contract, or otherwise and
whether or not actually payable at that time) are paid in full; and
– charge interest on the amount outstanding at the rate fixed under Section 2 of the Penalty Interest Rates Act 1983 (VIC) accruing daily from and including the due date for payment until the date of payment in full.
The Customer and Theault agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 and any other applicable legislation governing GST.
If the Customer fails to advise Theault in writing of any fault in the Vehicle or failure of the Vehicle to accord with the Order before leaving the delivery location, the Customer is deemed to have accepted the Vehicle and to have accepted that the Vehicle are not faulty (except latent defects) and accord with the Order. Nothing in this paragraph affects the Customer’s rights for any alleged failure of a guarantee under the Australian Consumer Law.
The Customer acknowledges that Theault is unable to satisfy itself absolutely as to the accuracy of the odometer reading of the Vehicle, and Theault does not warranty the odometer reading of the Vehicle is accurate at the time of delivery.
Risk in the Vehicle passes to the Customer immediately upon delivery.
Property and title in the Vehicle supplied to the Customer under these terms of trade does not pass to the Customer until all money (including money owing in respect of other transactions between Theault and the Customer) due and payable to Theault by the Customer have been fully paid.
Where the Vehicle is supplied by Theault to the Customer without payment in full, the Customer:
– is a bailee of the Vehicle until property in it passes to the Customer;
– irrevocably appoints Theault to be its attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of any security interest in favour of Theault with respect to the Vehicle under applicable law;
– must be able upon demand by Theault to separate and identify as belonging to Theault the Vehicle supplied by Theault from other goods which are held by the Customer;
– must not allow any person to have or acquire any security interest in the Vehicle;
– agrees that Theault may repossess the Vehicle at any time; and
– the Customer grants an irrevocable licence to Theault or its agent to enter the Customer’s premises in order to recover possession of the Vehicle pursuant to this paragraph. The Customer indemnifies Theault for any damage to property or personal injury which occurs as a result of Theault entering the Customer’s premises.
Where the Vehicle are supplied by Theault to the Customer without payment in full of all moneys payable in respect of the Vehicle and any provided by Theault in respect of those the Vehicle, the Customer acknowledges that Theault has a right to register and perfect a personal property security interest.
The Customer waives its rights to receive a verification statement in respect of any financing statement or financing change statement registered by or on behalf of the Company under the PPS Law to the extent permitted by the PPS Law and agrees to that as between the Company and the Customer, to the extent permitted by the PPS Law , the Customer will have no rights under (or by reference to) sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 132(3)(d), 132(4), 134(1), 135, 142 and 143 of the Personal Property Securities Act 2009.
Unless specifically agreed in writing between Theault and the Customer, all Intellectual Property Rights in the Vehicle and any works or designs created by Theault on behalf of the Customer vest in and remain the property of Theault.
The Customer agrees that Theault may at any time appoint or engage an agent to perform an obligation of Theault arising out of or pursuant to these terms of trade. Theault has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these terms of trade provided that he assignee agrees to assume any duties and obligations of Theault owed to the Customer under these terms of trade. The Customer is not to assign, or purport to assign, any of its obligations or rights under these terms of trade without the prior written consent of Theault.
Each of the following occurrences constitutes an event of default:
– the Customer fails to make any payment due under this Contract;
– the Customer breaches or is alleged to have breached this Contract for any reason and fails to remedy that breach within 14 days of being given notice by Theault to do so;
– the Customer, being a natural person, commits an act of bankruptcy;
– the Customer, being a corporation, is subject to:
– a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved.
– a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 being appointed to all or any part of the Customer’s property and undertaking;
– the entering of a scheme of arrangement (other than for the purpose of restructuring); and
– any assignment for the benefit of creditors;
– the Customer purports to assign its rights under this Contract without Theault’s prior written consent.
Where an event of default occurs, except where payment in full has been received by Theault, Theault may:
– terminate this Contract;
– terminate any or all Orders with the Customer;
– refuse to deliver the Vehicle;
– pursuant to clause 8.3, repossess and re-sell any the Vehicle delivered to the Customer, the payment for which has not been received; or – retain (where applicable) all money paid by the Customer on account of the Vehicle or otherwise.
Where this Contract is lawfully terminated by the Customer due to a substantial breach of this Contract by Theault, then Theault shall refund to the Customer all monies paid by or one behalf of the Customer.
Nothing in this clause affects the rights and duties conferred by section 43 of the Motor Car Traders Act 1986 (VIC) or regulation 10 of the Motor Car Traders Regulations 1998 (VIC).
Subject to other provision of this clause 12, Theault warrants during a period of 36 months from the date of delivery any part or component of the Vehicle’s body that is found to be defective from manufacture in materials or workmanship will be repaired, replaced or adjusted by Theault free of charge.
The benefits to a Customer given by the Warranties are in addition to other rights and remedies of the Customer as a consumer under a law in relation to the Vehicle to which the Warranties relate.
The Customer acknowledge that:
– the Warranties do not apply to the chassis base, or accessories installed (such as GPS, hands free kit, DVD player) not made by Theault. For warranty on these parts please refer to the manufacturer’s handbook;
– the Warranties do not apply to:
– wear, tear and damage caused by the goods being transported in the Vehicle;
– issues arise with or as the result of an item or fitting added or alternation made by any person other than Theault, with the authority of Theault;
– fair wear and tear on the Vehicle;
– damages caused by negligence or misuse of the Vehicle;
– defective function results from a major force, shock or impact
– the defective function results from a major force, shock or impact.
– the defect occurs on the floor coating or surfaces of normal wear of the Vehicle body.
– the defect is allowed by the Customer to deteriorate before action is taken to correct it. – defects result from the failure to comply the guidelines for care during cleaning/washing (described in vehicle handbook);
– damages provoked by environmental conditions (items falling on or hitting the vehicle, extreme atmospheric/weather conditions, chemicals, animals or vegetation, sand, salt, gravel/grit projections, flooding and other exterior factors accidental or otherwise); and
– in respect to defective paintwork, defects which are not reported to Theault within 2 months of it occurring.
The Customer expressly agrees that use of the Vehicle is at the Customer’s risk. To the full extent allowed by law, Theault’s liability for breach of any term implied into this Contract by any law is excluded.
All information, specifications and samples provided by Theault in relation to the Vehicle are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect the Customer’s use of the Vehicle will not entitle the Customer to reject the Vehicle upon delivery, or to make any claim in respect of them.
Theault gives no warranty in relation to the provided or supplied. Under no circumstances is Theault or any of its suppliers liable or responsible in any way to the Customer or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues) as a result, direct or indirect of any defect, deficiency or discrepancy in the Vehicle. This includes their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:
– any the Vehicle supplied to the Customer;
– any delay in supply of the Vehicle; or
– any failure to supply the Vehicle.
Any advice, recommendation, information, assistance or service given by Theault in relation to the Vehicle, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. It is provided without any warranty or accuracy, appropriateness or reliability. Theault does not accept any liability or responsibility for any Loss suffered as a result of the Customer’s reliance on such advice, recommendation, information, assistance or service.
To the fullest extent permissible at law, Theault is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the supply of or failure to supply the Vehicle, or otherwise arising out of the supply of the Vehicle, whether based on terms of trade, negligence, strict liability or otherwise, even if Theault has been advised of the possibility of damages.
The Australian Consumer Law may give to the Customer certain guarantees. Where liability for breach of any such guarantee can be limited, Theault’s liability (if any) arising from any breach of those guarantees is limited with respect to the supply of the Vehicle, to the replacement or repair of the Vehicle or the costs of resupply or replacement of the Vehicle.
If circumstances beyond Theault’s control prevent or hinder its supply of the Vehicle, Theault is free from any obligation to provide the Vehicle while those circumstances continue. Theault may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.
Circumstances beyond Theault’s control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems
Unless otherwise agreed by the parties, any dispute that cannot be settled by negotiation between the parties or their representatives, the parties expressly agree to endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation. The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation which operate at the time the matter is referred to ACDC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the Guidelines are incorporated into this Contract. This paragraph survives termination of this Contract.
These terms of trade are governed by the laws of the State of New South Wales and each party irrevocably submits to the non-exclusive jurisdiction of the courts of that state.
No salesperson, agent, representative or employee of Theault has any authority to vary these terms and conditions or any part there of without the prior written consent of a Director of Theault. These terms of trade supersede all oral and written negotiations and communications by and on behalf of either of the parties.
In entering into this Contract, the Customer has not relied on any warranty, representation or statement, whether oral or written, made by Theault or any of its employees or agents relating to or in connection with the subject matter of this Contract.
If any provision of this Contract at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on a Quote (or as varied pursuant to this paragraph) and delivered personally, sent by pre-paid mail to the address of the addressee specified in the relevant Quote; sent by fax to the fax number of the addressee specified in the relevant Quote, with acknowledgment of receipt from the facsimile machine of the addressee or sent by email to the email address of the addressee specified in the relevant Quote with acknowledgement of delivery.
A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second Business Day after posting; or if sent by fax or email before 4 pm one Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.
A party may only change its postal or email address or fax number for service by giving notice of that change in writing to the other party.
