Terms and Conditions
1. Orders and quotation – Rising Sun Subaru Pty Ltd ACN 141 447 547 (“the Company”) may decline any order received from the Customer by written notice to the Customer and may withdraw or vary any quotation prior to acceptance of it by the Customer. 1.1. Work will only commence and Goods ordered upon receipt of: (a) A facsimile of the, Customer with Signed Terms and Conditions of Sale with the original to follow; (b) The original Customer signed quotation; (c) The appropriate deposit.
2. Prices - All prices stated in quotations are for immediate acceptance as at the date of the quotation or order and are subject to amendment by the Company before or after acceptance by an amount equal to the rise or fall in cost to the Company of any of the labour, goods, materials or delivery comprised in the quotation or order (“the Goods”).
3. Payment: 3.1. Payment for the Goods shall be by either of the following: 3.1.1. Payment in clear funds in advance; 3.1.2. Payment of 50% Deposit in advance and the balance to be paid on delivery or attempted delivery of the Goods. 3.2. If, in the case of clause 3.1.1 or clause 3.1.2, the Customer does not make payment by the time of delivery or attempted delivery, the Customer will further pay to the Company interest, at the rate of 17% per year calculated monthly in arrears. 3.3. The Customer shall not be entitled on any ground whatsoever either wholly or in part, to withhold payment when it becomes due. 3.4. Default in payment shall entitle the Company to suspend delivery of any undelivered portions of the Goods and to take proceedings for the collection of outstanding amounts, without prejudice to any subsequent claim the Company may have for non-fulfilment of the Terms and Condition of Sale. 3.5. Payments made by Credit Card incur a 1.2% surcharge.
4. Rights in Relation to the Goods - The Company reserves the following rights in relation to the Goods supplied pursuant to this supply contract until all accounts owed by the Customer to the Company are fully paid in clear funds: a) legal ownership of the Goods; b) to enter the Customer's premises (or the premises of any associated company or agent where the Goods are located) without liability for trespass or any resulting damage and retake possession of the goods; and c) to keep, change, or resell any of the Goods repossessed pursuant to (b) above; 4.1. If the Goods are resold, or products manufactured using the Goods are sold, by the Customer, the Customer shall hold such part of the proceeds of any such sale as represents the invoice price of the goods sold or used in the manufacture of the goods sold in a separate identifiable account as the beneficial property of the Company and shall pay such amount to the Company upon request. 4.2. Notwithstanding the provisions above the Company shall be entitled to maintain an action against the Customer for the purchase price. 4.3. The Company unless otherwise provided in writing makes no representations and gives no guarantee/warranty whatsoever in respect of any goods provided by it to the Customer, except to the extent of any condition warranty rights provided by the Australian Consumer Law, being Schedule 2 of the Competition and Consumer Act 2010 as in force under relevant Commonwealth, State or Territory legislation (“the ACL”).
5. Application of the PPSR: 5.1. The Customer and Company agree that this agreement constitutes a security agreement within the meaning of the Personal Property Securities Act 2009 (“PPSA”) whereby: 5.1.1. a security interest is created in the Goods; and 5.1.2. if the Goods become an accession, then a security interest is created in the property to which the Goods are an accession; and 5.1.3. a security interest is created in the Proceeds of the Goods. 5.2. With respect to the security interests created in clauses 5.1.1 to 5.1.3 above, the Customer is a grantor within the meaning of the PPSA and the Company is a secured party within the meaning of the PPSA. 5.3. With respect to clause 5.1.3 above, the security interest in the Proceeds of the Goods includes: (a) a security interest in all of the customer’s present and after-acquired property derived from, or traceable to, the Goods; (b) any monies payable to the Customer for resupply of the Goods; (c) any monies payable under an insurance policy that covers the Goods; (d) Proceeds as defined in section 31 of the PPSA; and/or (e) Inventory supplied by the Company. 5.4. If the Customer is in default of any obligation in this agreement, the Company may recover possession of the Goods. 5.5. The Customer irrevocably authorises and permits the Company or its representatives to enter any site or premises for the purposes of recovering the Goods. 5.6. The Customer indemnifies and releases the Company from all damage caused as a result of the Goods having being recovered, including but not limited to damage caused to a structure or building by theft, rain or other reason that would have otherwise been prevented by the placement of the goods in that structure or building. 5.7. The Customer agrees to sign all documents and do all acts, as reasonably requested by the Company, to give effect to and allow for proper registration of securities on the Personal Property Securities Register. 5.8. The Customer shall not register a security interest over the Goods in favour of a third party without prior written consent of the Company. 5.9. The Customer shall indemnify and reimburse the Company for any costs associated with exercising or any attempts to exercise any of the Company’s powers rights or remedies under this clause in addition to this entire agreement, including but not limited to legal costs on an indemnity basis. 5.10. The Customer waives, and agrees to waive in event of default, the Customer’s rights to notices or parts of notices under sections 95, 118, 121, 130, 132(3)(d), and 135 of the PPSA and that the Company has no obligation under section 125 of the PPSA. 5.11. Subject to any condition expressed herein, nothing in these terms and conditions has the effect of contracting out of the PPSA.
6. Retention: 6.1. The Company will not, unless expressly confirmed in writing by the Company at the time the order is accepted or this sale is made, agree to any retention clauses contained in the Customer's order form. 6.2. The Company will be at liberty to destroy any film or other artwork supplied by the Customer to the Company which is not collected by the Customer from the Company within two (2) years of being supplied to the Company. 6.3. Any electronic file created by the Company in connection with the Goods shall at all times be and remain the property of the Company which shall be entitled to destroy it at any time. The Customer may purchase such electronic file from the Company at such price as is agreed between the Company and the Customer.
7. Specifications - The Customer acknowledges, upon acceptance of a quotation or the placing of an order, that the Goods particularised therein are those required by the Customer and agrees to pay for them under these terms and conditions.
8. Passing of Risk - Risk in each order shall pass to the Customer upon delivery of that order to the Customer or collection of that order by the Customer's agent or carrier as the case may be.
9. Shortage - The Customer waives any claim for shortage in the Goods as delivered if a claim in respect thereof has not been communicated to the Company in writing within seven (7) days from the date of receipt of the Goods by the Customer. For the purpose of this clause "shortage" shall mean less than 98% of the quantity ordered.
10. Delay - Any delivery times advised to the Customer are estimates only and the Company shall not be liable for late delivery or non-delivery and under no circumstances shall the Company be liable for any loss, damage or delay occasioned to the Customer arising from late or non-delivery of the Goods. The Customer shall accept the Goods regardless of any delay.
11. Loss or Damage in Transit - The Company is not responsible for any loss or damage to the Goods in transit. The Company shall render the Customer such assistance as may be necessary to press claims on carriers provided the Customer shall have notified the Company and the carriers in writing immediately loss or damage is discovered on receipt of goods and shall lodge a claim on the carrier within three days of the date of receipt of the Goods.
12. Waiver - The failure by the Company for any period whatsoever to exercise any right or remedy arising under these terms or at law shall not be deemed to be a waiver or abandonment of such right or remedy and the same shall remain exercisable and actionable at the will of the Company notwithstanding that all other matters have been completed. The wavier by the Company of any right or action on any particular occasion shall not be taken as a waiver of the same right or action on any other occasion.
13. No Representations - The Customer acknowledges that no representations have been made by any employee or agent of the Company to the Customer whatsoever. This agreement (consisting of the quotation, these terms and conditions, and the credit agreement if relevant) contains the entire understanding of the parties as to its subject matter. There is no other understanding, agreement, warranty or representation whether express or implied in any way defining or extending or otherwise relating to these provisions or binding on the parties with respect to the goods or services or the manner of provision.
14. Severance – If any clause of this agreement is void or invalid, then that clause shall be severed from the agreement without effect to the remaining clauses.
15. Storage -The Company reserves the right to make a reasonable charge for storage if delivery instructions are not provided by the Customer within fourteen days of a request by the Company for such information.
16. Cancellation - No order may be cancelled by the Customer except with consent in writing of the Company and on terms which will indemnify the Company against all losses.
17. Disputes – Should the Customer consider the Company has breached this agreement, the Customer must provide notice in writing to the Company setting out the details of any such alleged breach.
18. Consumers - If the Customer is a consumer within the meaning of the ACL, the warranty terms under the ACL may be implied into these terms and conditions but are limited to the maximum extent permitted by section 64A of the ACL. 18.1. Unless otherwise stated in this Terms and Conditions of Sale the Company does not warrant that the Goods supplied are of merchantable quality or that the site or method of installation by the Customer is safe for use. The Customer shall be solely responsible for choosing the Goods and site and method of installation of the Goods and their safe use after installation. Further, the Company does not warrant and the Customer shall be solely responsible to ensure that the Goods are compatible and do not interfere with the operation of the security systems or other appliances with on or to be installed in the vehicle. 18.2. The Customer will examine the Goods for defects and shall notify the Company of any defect in writing within 21 days of delivery. 18.3. If the Customer does not notify the Company within twenty one (21) days of delivery, the Customer shall be deemed to have accepted the Goods of merchantable quality and free of defects.
19. Non-consumers - If the Customer is not a consumer within the meaning of the ACL: 19.1. Should it become necessary for any of the Goods to be redone or rectified then it is a specific term of the contract between the parties that all such rectification work shall be carried out by the Company and the Customer will, at no cost to the Company, deliver that part of the Goods requiring rectification to the premises of the Company. Should the Customer fail to do so within 21 days from the date they are delivered then the Company shall be forever released from claims or demands of the Customer or all those claiming through or by the Customer. 19.2. Unless any part of the Goods are returned in accordance with clause 19.1 above, the Company shall not be under any obligation to accept any part of the Goods returned by the Customer and will do so only on terms agreed in writing in each individual case. 19.3. If the Company is liable for damages, that liability shall be limited to the lowest of the cost of replacing the goods, the cost of obtaining equivalent goods, and the cost of having the goods repaired.
Terms and Conditions of Sale
20. Application of the ACL - The Company and the customer agree that, save for clause 18 above, nothing in these terms and conditions restricts or modifies the effect of the ACL.
21. No other warranties - Subject to any warranty expressed herein or implied by the ACL, the Company’s liability shall be restricted to the fullest extent permitted by law. Other than those expressly provided for in these terms and conditions, no other warranties are provided and the Company shall not be liable for any loss or damage to person or property, consequential or otherwise, howsoever suffered or incurred, in relation to the Goods, including but not limited to any loss or damage howsoever suffered or incurred by any such person, caused by or resulting from: - any failure, breakage, defect, or deficiency whatsoever with respect to the Goods, or - installation of the Goods by the Customer, or - Installation of the Goods by the Company or its employees or agents.
22. Recommendations- The Customer hereby acknowledges that it does not rely on any service involving skill or judgment, advice, recommendation, information or assistance provided by the Company or its employees or agents in relation to the Goods sold or manufactured by the Company or their use or application. Further, it is acknowledged between the parties that the Customer is purchasing the Goods intended for use in high performance motor vehicles and, that the Customer has an increased awareness and knowledge of the problems and risks involved in the installation and running of engine and engine components in high performance motor vehicles, particularly where the equipment has been built in accordance with the Customers strict specifications.
23. Jurisdiction - The Terms and Conditions of Sale are governed by the law in Queensland and the Customer submits to the jurisdiction of the Queensland Courts in relation to any dispute, claim, proceeding, arbitration arising from or related to these Terms and Conditions of Sale.
24. Emissions - The Company does not warrant that the Goods comply with engineering, safety noise or pollution emission regulations of any state, territory or federal body. It is the responsibility of the Customer to ensure these requirements are complied with when installing and running the Goods.
25. Indemnity - The Company builds and develops engines and engine components, drive train & gearboxes for high performance motor vehicles. The Customer acknowledges these engines and engine components are primarily intended for use by the Customer in extreme conditions and activities including but not limited to racing and rallying (‘extreme activities’) and as such there are many variables involved in these extreme activities over which the Company is unable to control and for that reason the Customer acknowledges the Company is not liable in negligence for harm suffered by the Customer as a result of the materialisation of an obvious risk of a dangerous activity engaged by the Customer suffering harm and using the Goods during or for such extreme activities. 25.1. Further, the Customer acknowledges and agrees it would be unreasonable for the Company to be in any way responsible for any injury or death suffered by the Customer, damage both personal and to property and/or liability for injury or death to others which occurs as a result of the Customers participation in extreme activities and the Customer hereby, to the full extent permitted by law, waive all of the Customers legal rights of action against and fully release the Company for loss, damages, injury or death howsoever arising out of or in relation to the participation by the Customer in extreme activities. 25.2. It is acknowledged the Customer has a higher than usual level of expertise in driving and maintaining their vehicles and the Customer is well aware of the risk involved in installing and substituting engines and engine components.
26. Motor Vehicle Insurance - The Company shall not be liable to the Customer for any breach of the Customers insurance policy as a result of any modification to the Customers motor vehicle or Goods supplied by the Company.
27. Traffic Laws - The Company shall not be liable to the Customer for any breach of any State or Territory traffic legislation or regulations or any other State or Territory legislation or regulations in force at any time.