COMMAND AUTO GROUP PTY LTD STANDARD TRADING CONDITIONS
These conditions apply to all supplies of goods and services by us to you, unless otherwise clearly agreed in writing.
Words used in these conditions have the following meanings: we, and similar expressions, refer to Command Auto Group Pty Limited ACN 093 260 381; and you, and similar
expressions, refer to you our customer or proposed customer.
- Any quotation is merely an invitation to you to place an order with us.
- If you offer to purchase goods based on a quotation from us, then your offer is subject to these conditions.
- We are not obliged to accept any order from you. If you place an order with us then it becomes binding from the moment that we accept it even if we do not tell you that it has been accepted.
- These conditions apply and prevail even if they are inconsistent with anything said or implied in any earlier or later order form or similar document.
- a) Once you give us an order and we accept it, you may cancel or return the goods by way of cancellation only with our agreement (in our discretion) and upon payment of our re-stocking charge, which is an amount between 15% and 20% of the sale price of the goods or services ordered, plus freight and insurance costs for the return of the goods. You acknowledge that this charge represents a reasonable and genuine pre-estimate of our expenses and loss resulting from your cancelled orders.
- b) Items specially manufactured for an order are non-returnable (i.e. non stock lines).
- c) Return of items over 60 days from invoice date will not be recognised.
- All prices are in Australian dollars and are ex-works our premises.
- You must pay all freight, packing, delivery and insurance costs, if we agree to deliver goods to you.
- You must also pay any sales tax, goods and services tax, stamp duty and all other excises and duties that are payable relating to the supply of goods or services by us.
- Unless we agree to give you credit, you must pay for all orders on delivery.
- We reserve the right to vary the specifications or performance criteria of any product from time to time and to obtain products from different sources, at our absolute discretion. We may do that without telling you provided we have reasonable grounds for believing that the alternate product offered is substantially similar to that previously offered or represents an improvement.
- Subject to clause 22 below, Command makes no guarantee, condition or warranty as to materials, workmanship or performance of the goods.
- You may have rights under the Australian Consumer Law or other rights in relation to the supply of the goods that cannot lawfully be excluded by Command (Non- excludable Rights). With the exception of Non-excludable Rights, and notwithstanding any other provision of these terms and conditions, the liability of Command to you, whether arising under or in connection with these terms and conditions or the performance or non-performance thereof or anything incidental thereto, and whether by way of indemnity, by statute (to the extent that it is possible to exclude such liability), in tort for negligence or otherwise, or on any other basis in law or equity is hereby limited and excluded as follows:
- (a) Command shall have no liability whatsoever to you for the loss of use, production, profit, revenue, business, data, contract or anticipated saving, or for any financing costs or increase in operating costs or any economic loss or for any special, indirect or consequential loss or damage; and
- (b) The total aggregate liability of Command is at all times limited to the amount equal to the purchase price of the goods.
- To the maximum extent permitted by law, Command’s liability pursuant to:
- We may decide to give you credit, but we are not obliged to do so merely because we have previously given you credit. 26.
- If we decide to give you credit, then you are bound by these conditions and any additional conditions that we set for giving you credit.
- We may decline to give you further credit at any time. If we do so, these conditions and any credit conditions continue to apply to any amounts which you then owe to 27.us.
- If any amount you owe us is not paid within 7 days of the due date then: 28.
- (a) All money that you owe us on any account becomes immediately payable despite any previously agreed credit conditions; 29.
- (b) We may suspend supply or cancel any outstanding orders we have accepted from you; and30.
- (c) We may charge you interest on any amount from the due date until payment, calculated daily, at the rate prescribed from time to time as payable on judgements
for monetary sums awarded by the Supreme Court of New South Wales, and interest may be capitalised each monthly so that cumulative interest may be payable. 31.
- Payments you make by cheque do not count until we receive payment on the cheque. 32.
- Until you become the owner of goods we supply to you, if we have reasonable grounds to expect that we might find any of those goods in any premises or vehicle you are entitled to access, our agent or we may enter into those places as if they or we are you.
- If you owe us any amount for goods supplied to you, we may retake possession of any goods we supply to you, up to the amount of the debt including 15% goods handling fee and any recovery costs. We may do so even if we hold some negotiable instrument or other security for the amount which is unpaid. Since goods we supply
to you do not have any serial numbers etc to individually identify with the goods listed on any unpaid invoices, you agree that any of our products (Command Stock) 33. remaining in any premises or vehicle you are entitled to access will be allocated to the unpaid debt by value of such goods & allow us to retake possession of such
goods up to the value of debt including 15% handling fee & recovery costs.
- If you resell any of our goods (even if mixed with other goods) before becoming the owner, you are acting as our selling agent although only to the absolute minimum extent necessary to protect our ownership.
- You accept the risk of damage or loss of goods we supply to you, from the date of delivery.
- Except to the extent expressly specified by us in writing, we sell our products by specification and you decide what purpose to use them for or re-supply them for. To the extent that we expressly specify in writing a purpose for which our products are suitable, we sell our products for use only as specified for that purpose.
- (a) Any warranty, term or condition implied in these terms and conditions; and
- (b) Any Non-excludable Right (including, for the avoidance of doubt, section 274 of the Australian Consumer Law (Indemnification of Suppliers by Manufacturers) or any similar or successor provision),
23.2 Is limited, at Command’s option, to repair or replacement of the goods or the cost of repairing or replacing the goods.
Any advice, recommendation, information or representation provided by Command as to the quality or performance of the goods or their suitability for a particular purpose or otherwise in relation to the goods is given in good faith but without any liability or responsibility on the part of Command. You acknowledge that you have not relied upon or been induced by any representation by Command.
Command shall not be liable for any claim, loss or expense sustained or incurred by any person arising in any way as a result of the unavailability of goods or any delay in delivery of the goods or any failure to deliver the goods.
Any firmware or software that comes with goods we supply to you is supplied under licence only. You agree to abide by the terms of all such licences. You may return your purchase within 7 days of delivery if you do not accept any applicable licence in part or whole. Typically, licenses limit use of firmware and software to the one machine.
We are not responsible for delay caused by something outside our reasonable control which makes performance in the usual way impractical. Without limiting those general words, that applies where we have problems due to accidents, strikes, transport difficulties or stock shortages.
Delivery times are estimates only and we are not liable for delays in delivery.
You are bound by a certificate signed by any of our directors or solicitors which shows any amount or calculation relevant to what you owe us. The only exception is where you can prove the certificate is wrong or there is an obvious error on the face of the certificate.
These conditions can only be varied by one of our authorised officers signing a document which states the variation, and the transaction to which the variation applies.
Our transactions are governed by the law of New South Wales.
In this section:
- (a) “Command Stock” means all products supplied to you by Command and proceeds (as defined in section 11SA of the Personal Property Securities Act 2009 (Cth);
- (b) “PPSA” means the Personal Property Securities Act 2009 (Cth);
- (c) “PPS Law” means”:
- (i) The PPSA;
- (ii) Any regulation made pursuant to the PPSA; and
- (iii) Any amendment from time to time made to any other legislation or regulation as a consequence of a PPS Law referred to in paragraph (a) or (b);
- (d) “Registration Commencement Time” has the same meaning as given to that term in the PPSA;
- (e) “Security Interest” means a security interest as defined in the PPSA; and
(f) Any examples are given for illustration purposes only and do not limit the operation of that clause.
- Command remains the owner of any and all goods supplied until you have paid the full price for all goods supplied plus any associated charges. You agree that the Command Invoice is full confirmation of your order. As and from the Registration Commencement Time you grant Command a Security Interest in the Command Stock to secure all moneys owing to Command under these terms. The Command Stock include all goods supplied by the secured party to the grantor from time to time under the secured party’s trading terms including (but not limited to) automotive products and accessories.
- After the Registration Commencement Time, you must, promptly upon request from Command:
Do anything to:
- (i) Ensure that any Security Interest created under, or provided for by, these terms and conditions:
- (A) Attaches to the Command Stock;
- (B) Is enforceable, perfected, maintained and otherwise effective; and
- (C) Ranks as a first priority Security Interest;
- (ii) Enable Command to prepare and register a financing statement or financing change statement; and
- (iii) Enable Command to exercise any of its powers in connection with any such Security Interest;
Provide any information requested by Command to enable it to exercise any of its powers or perform its obligations under the PPS Law.
- Command and you agree not to disclose any information of the kind referred to in section 275(1) of the PPS Law (information regarding these trading terms) that is not publicly available.
- Anything that is required by Command to be done under this section shall be done by you at your own expense. You must reimburse the costs of Command in connection with any action taken by Command under or in connection with this section.
- If Command takes enforcement action in respect of the Command Stock, you agree that:
- (a) Command is under no obligation to dispose of or retain any Command Stock within a reasonable time under section 125 of the PPS Law;
- (b) You waive any rights you may otherwise have to redeem the Command Stock by paying the amounts required or reinstating these trading terms under sections 142 or 143 of PPS Law;
- (c) You waive any right to receive a statement of account regarding the Command Stock under sections 132(3)(d) and 132(4) of the PPS Law;
- (d) You waive any right to receive a copy of, or notice of, any verification statement confirming registration of a financing statement or a financing change statement relating to any Security Interest under, or provided for by, these trading terms (for example, Command may register its interest in the Command Stock under the PPS Law. Command does not have to tell you when it has done this or if the registration of that security interest changes);
- (e) If Command intends to remove any accessions from Command Stock, Command does not have to give you notice of this under section 95 of the PPS Law (for example, if you attached something to the Command Stock (eg. for display purposes) Command does not need to give you notice before removing that item when retaking possession);
- (f) If Command disposes of Command Stock, you will not require Command to give you any notice of that disposal under section 130 of the PPS Law and will not require Command to provide you with a statement of account of that disposal under section 132 (for example, if Command retakes possession of Command Stock it does not have to give you notice before selling that stock to someone else and Command does not have to notify you when the stock is resold or how much it was resold for); and
- (g) If Command intends to retain any Command Stock it does not have to give you notice of that intention under section 135 of the PPS Law.