AJB Diesel Mechanical Services Pty Ltd – Terms & Conditions of Trade
1.1 “Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 “AJB” means AJB Diesel Mechanical Services Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of AJB Diesel Mechanical Services Pty Ltd.
1.3 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting AJB to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a partnership, it shall bind each partner jointly and severally; and
(c) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Customer’s executors, administrators, successors and permitted assigns.
1.4 “Parts” means all Parts or Services supplied by AJB to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Parts’ or ‘Services’ shall be interchangeable for the other).
1.5 "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.6 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when ordering from the website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Parts via the website.
1.7 “Price” means the Price payable (plus any GST where applicable) for the Parts as agreed between AJB and the Customer in accordance with clause 5 below.
1.8 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts Delivery of the Parts.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Customer acknowledges and accepts that:
(a) the supply of Parts on credit shall not take effect until the Customer has completed a credit application with AJB and it has been approved with a credit limit established for the account; and
(b) in the event that the supply of Parts request exceeds the Customers credit limit and/or the account exceeds the payment terms, AJB reserves the right to refuse delivery; and
(c) the supply of Parts for accepted orders may be subject to availability and if, for any reason, Parts are not or cease to be available, AJB reserves the right to vary the Price with alternative Parts as per clause 5.2, subject to prior confirmation and agreement of both parties. AJB also reserves the right to halt all Services until such time as AJB and the Customer agree to such changes. AJB shall not be liable to the Customer for any loss or damage the Customer suffers due to AJB exercising its rights under this clause.
2.5 In the event that the Parts and/or Services provided by AJB are the subject of an insurance claim that the Customer has made, then the Customer shall be responsible for the payment of any monies payable to the insurance company and agrees to honour their obligation for payment for such transactions invoiced by AJB and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful.
2.6 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.
3. Errors and Omissions
3.1 The Customer acknowledges and accepts that AJB shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by AJB in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by AJB in respect of the Services.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of AJB; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.
4. Change in Control
4.1 The Customer shall give AJB not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Customer shall be liable for any loss incurred by AJB as a result of the Customer’s failure to comply with this clause.
5. Price and Payment
5.1 At AJB’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by AJB to the Customer; or
(b) AJB’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 AJB reserves the right to change the Price:
(a) if a variation to the Parts which are to be supplied is requested; or
(b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
(c) if during the course of the Services, the Parts are not or cease to be available from AJB’s third party suppliers, then AJB reserves the right to provide alternative Parts; or
(d) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, obscured or other defect found on closer inspection or misdiagnosis in the first instance, delays in obtaining Parts, etc.) which are only discovered on commencement of the Services; or
(e) in the event of increases to AJB in the cost of labour or materials which are beyond AJB’s control.
5.3 Variations will be charged for on the basis of AJB’s quotation, and will be detailed in writing, and shown as variations on AJB’s invoice. The Customer shall be required to respond to any variation submitted by AJB within ten (10) working days. Failure to do so will entitle AJB 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.
5.4 At AJB’s sole discretion, a deposit may be required.
5.5 Time for payment for the Parts being of the essence, the Price will be payable by the Customer on the date/s determined by AJB, which may be:
(a) on Delivery of the Parts;
(b) by way of instalments/progress payments in accordance with AJB’s payment schedule;
(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 Customer by AJB.
5.6 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 Customer and AJB.
5.7 AJB may in its discretion allocate any payment received from the Customer towards any invoice that AJB determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer AJB may re-allocate any payments previously received and allocated. In the absence of any payment allocation by AJB, payment will be deemed to be allocated in such manner as preserves the maximum value of AJB’s Purchase Money Security Interest (as defined in the PPSA) in the Parts.
5.8 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by AJB nor to withhold payment of any invoice because part of that invoice is in dispute.
5.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to AJB an amount equal to any GST AJB must pay for any supply by AJB under this or any other agreement for the sale of the Parts. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer 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.
6. Additional Charges
6.1 In the event that AJB is required to provide the Services urgently which may require AJB’s staff to work outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or Public Holidays) then AJB reserves the right to charge the Customer additional travel and labour costs (penalty rates will apply) and Parts, unless otherwise agreed between AJB and the Customer.
6.2 Where AJB is requested to store the Customer’s vehicle/machinery, or where the vehicle or machinery is not collected within twenty-four (24) hours of advice to the Customer that it is ready for collection, then AJB (at its sole discretion) may charge a reasonable fee per day for storage.
6.3 For roadside or on-site assistance, a minimum call-out fee shall be applicable, which shall be increased for any after-hours call-outs. Additionally, all Services provided shall be charged for at an hourly-basis unless agreed upon by the Customer and AJB.
6.4 If AJB has been requested by the Customer to diagnose a fault that requires disassembly and/or testing, all costs involved will be charged to the Customer irrespective of whether or not the repair goes ahead.
6.5 If a vehicle or component is submitted for repair under a warranty or insurance claim, and the claim is declined or payment delayed, the Customer is liable for payment and agrees to pay for any such repair.
6.6 Services completed under warranty or insurance claims will not cover consumables (including, but not limited to, lubricants, fuel, brake fluids, coolants, tyres, brake pads, air filters, etc.). Any consumables used during the Services shall be charged for as a variation in accordance with clause 5.2.
7. Delivery of Parts
7.1 Delivery (“Delivery”) of the Parts is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Parts at AJB’s address; or
(b) AJB (or AJB’s nominated carrier) delivers the Parts to the Customer’s nominated address even if the Customer is not present at the address.
7.2 At AJB’s sole discretion, the cost of Delivery is either included in the Price or is in addition to the Price.
7.3 AJB may deliver the Parts in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
7.4 Any time specified by AJB for Delivery of the Parts is an estimate only and AJB will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. However both parties agree that they shall make every endeavour to enable the Parts to be delivered at the time and place as was arranged between both parties. In the event that AJB is unable to supply the Parts as agreed solely due to any action or inaction of the Customer, then AJB shall be entitled to charge a reasonable fee for redelivery and/or storage.
8.1 Risk of damage to or loss of the Parts passes to the Customer on Delivery and the Customer must insure the Parts on or before Delivery.
8.2 If any of the Parts are damaged or destroyed following Delivery but prior to ownership passing to the Customer, AJB is entitled to receive all insurance proceeds payable for the Parts. The production of these terms and conditions by AJB is sufficient evidence of AJB’s rights to receive the insurance proceeds without the need for any person dealing with AJB to make further enquiries.
8.3 If the Customer requests AJB to leave Parts outside AJB’s premises for collection or to deliver the Parts to an unattended location, then such Parts shall be left at the Customer’s sole risk.
8.4 The Customer acknowledges that all descriptive specifications, illustrations, dimensions and weights stated in AJB’s or the manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Customer 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 AJB.
8.5 AJB is only responsible for Parts that are replaced by AJB and does not at any stage accept any liability in respect of previous services and/or parts supplied by any other third party that subsequently fail and found to be the source of the failure, the Customer agrees to indemnify AJB against any loss or damage to the Parts, or caused by the Parts, or any part thereof howsoever arising.
8.6 Where the Customer has supplied parts for AJB to complete the Services, the Customer acknowledges that they accept responsibility for the suitability of purpose, quality and any faults inherent in the parts. AJB shall not be responsible for any defects in the Services, any loss or damage to the Parts (or any part thereof), howsoever arising from the use of parts supplied by the Customer.
8.7 It is the Customer’s responsibility to:
(a) ensure that the vehicle or machinery is insured against all possible damage (including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks) whilst stored on AJB’s premises. The vehicle or machinery is at all times stored and repaired at the Customer’s sole risk; and
(b) remove any personal/valuable/perishable items from the vehicle or machine prior to AJB carrying out the Services. AJB shall not liable in the event of any apparent loss or damage to personal/valuable/perishable items left or stored in the vehicle.
8.8 AJB shall not be responsible for:
(a) the loss of or damage to the vehicle, its accessories or contents while garaged, being serviced or being driven in connection with the work authorised unless caused by the negligence of AJB or AJB’s employees; and
(b) any defect, deterioration and/or damage to the Parts if the Customer does not follow AJB’s recommendations.
8.9 The Customer acknowledges and accepts that:
(a) Parts supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. AJB will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur; and
(b) where AJB has performed temporary repairs on the vehicle that:
(i) AJB offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
(ii) AJB will immediately advise the Customer of the fault and shall provide the Customer with an estimate for the full repair required.
8.10 The Customer also acknowledges and accepts that AJB shall be entitled to:
(a) retain any components replaced during the provision of the Services; and
(b) the right to retain all proceeds obtained from the sale of such components to any auto recycler or salvage yard.
9. Testing of Vehicles or Parts
9.1 AJB or its employees may test drive or carry out tests on the vehicle or Parts at AJB’s discretion. AJB will not be liable for (and the Customer indemnifies AJB against) any damages caused to, or by, the vehicle or Parts during such tests, collecting or delivery unless it arises from the recklessness or wilful misconduct of AJB or its employees.
10.1 The Customer shall ensure that AJB has clear and free access to the site at all times to enable them to undertake the Services. AJB shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of AJB.
11. Compliance with Laws
11.1 The Customer and AJB shall comply with the provisions of all statutes, regulations and any other relevant safety standards, or legislation that may be applicable to the Services.
12.1 AJB and the Customer agree that ownership of the Parts shall not pass until:
(a) the Customer has paid AJB all amounts owing to AJB; and
(b) the Customer has met all of its other obligations to AJB.
12.2 Receipt by AJB 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.
12.3 It is further agreed that, until ownership of the Parts passes to the Customer in accordance with clause 12.1:
(a) the Customer is only a bailee of the Parts and must return the Parts to AJB on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Parts on trust for AJB and must pay to AJB the proceeds of any insurance in the event of the Parts being lost, damaged or destroyed;
(c) the Customer must not sell, dispose, or otherwise part with possession of the Parts other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Parts then the Customer must hold the proceeds of any such act on trust for AJB and must pay or deliver the proceeds to AJB on demand;
(d) the Customer should not convert or process the Parts or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of AJB and must sell, dispose of or return the resulting product to AJB as it so directs;
(e) the Customer irrevocably authorises AJB to enter any premises where AJB believes the Parts are kept and recover possession of the Parts;
(f) AJB may recover possession of any Parts in transit whether or not Delivery has occurred;
(g) the Customer shall not charge or grant an encumbrance over the Parts nor grant nor otherwise give away any interest in the Parts while they remain the property of AJB;
(h) AJB may commence proceedings to recover the Price of the Parts sold notwithstanding that ownership of the Parts has not passed to the Customer.
13. Personal Property Securities Act 2009 (“PPSA”)
13.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
13.2 Upon assenting to these terms and conditions in writing the Customer 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 Parts and/or collateral (account) – being a monetary obligation of the Customer to AJB for Services – that have previously been supplied and that will be supplied in the future by AJB to the Customer.
13.3 The Customer 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 AJB 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 13.3(a)(i) or 13.3(a)(ii);
(b) indemnify, and upon demand reimburse, AJB 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 Parts charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of AJB;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Parts and/or collateral (account) in favour of a third party without the prior written consent of AJB;
(e) immediately advise AJB of any material change in its business practices of selling the Parts which would result in a change in the nature of proceeds derived from such sales.
13.4 AJB and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
13.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
13.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
13.7 Unless otherwise agreed to in writing by AJB, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
13.8 The Customer must unconditionally ratify any actions taken by AJB under clauses 13.3 to 13.5.
13.9 Subject to any express provisions to the contrary (including those contained in this clause 13), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
14. Security and Charge
14.1 In consideration of AJB agreeing to supply the Parts, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
14.2 The Customer indemnifies AJB from and against all AJB’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising AJB’s rights under this clause.
14.3 The Customer irrevocably appoints AJB and each director of AJB as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Customer’s behalf.
15. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
15.1 The Customer must inspect the Parts on Delivery and must within ninety (90) days of Delivery notify AJB in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Parts as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow AJB to inspect the Parts.
15.2 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).
15.3 AJB acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
15.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, AJB makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Parts. AJB’s liability in respect of these warranties is limited to the fullest extent permitted by law.
15.5 If the Customer is a consumer within the meaning of the CCA, AJB’s liability is limited to the extent permitted by section 64A of Schedule 2.
15.6 If AJB is required to replace the Parts under this clause or the CCA, but is unable to do so, AJB may refund any money the Customer has paid for the Parts.
15.7 If the Customer is not a consumer within the meaning of the CCA, AJB’s liability for any defect or damage in the Parts is:
(a) limited to the value of any express warranty or warranty card provided to the Customer by AJB at AJB’s sole discretion;
(b) limited to any warranty to which AJB is entitled, if AJB did not manufacture the Parts;
(c) otherwise negated absolutely.
15.8 Subject to this clause 15, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 15.1; and
(b) AJB has agreed that the Parts are defective; and
(c) the Parts are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d) the Parts are returned in as close a condition to that in which they were delivered as is possible.
15.9 Notwithstanding clauses 15.1 to 15.8 but subject to the CCA, AJB 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 Customer failing to properly maintain or store any Parts;
(b) the Customer using the Parts for any purpose other than that for which they were designed;
(c) the Customer continuing the use of any Parts after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Customer failing to follow any instructions or guidelines provided by AJB;
(e) fair wear and tear, any accident, or act of God.
15.10 In the case of second hand Parts, unless the Customer is a consumer under the CCA, the Customer acknowledges that it has had full opportunity to inspect the second hand Parts prior to Delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by AJB as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Customer acknowledges and agrees that AJB has agreed to provide the Customer with the second hand Parts and calculated the Price of the second hand Parts in reliance of this clause 15.10.
15.11 AJB may in its absolute discretion accept non-defective Parts for return in which case AJB may require the Customer to pay handling fees of up to thirty percent (30%) of the value of the returned Parts plus any freight costs.
15.12 Notwithstanding anything contained in this clause if AJB is required by a law to accept a return then AJB will only accept a return on the conditions imposed by that law.
15.13 Subject to clause 15.1, customised, or non-stocklist items or Parts made or ordered to the Customer’s specifications are not acceptable for credit or return.
16. Default and Consequences of Default
16.1 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 AJB’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 If the Customer owes AJB any money the Customer shall indemnify AJB from and against all costs and disbursements incurred by AJB in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, AJB’s contract default fee, and bank dishonour fees).
16.3 Further to any other rights or remedies AJB may have under this Contract, if a Customer has made payment to AJB, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by AJB under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
16.4 Without prejudice to AJB’s other remedies at law AJB shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to AJB shall, whether or not due for payment, become immediately payable if:
(a) any money payable to AJB becomes overdue, or in AJB’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by AJB;
(c) the Customer 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 Customer or any asset of the Customer.
17.1 Without prejudice to any other remedies AJB may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions AJB may suspend or terminate the supply of Parts to the Customer. AJB will not be liable to the Customer for any loss or damage the Customer suffers because AJB has exercised its rights under this clause.
17.2 AJB may cancel any contract to which these terms and conditions apply or cancel Delivery of Parts at any time before the Parts are delivered by giving written notice to the Customer. On giving such notice AJB shall repay to the Customer any money paid by the Customer for the Parts. AJB shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.3 In the event that the Customer cancels Delivery of Parts the Customer shall be liable for any and all loss incurred (whether direct or indirect) by AJB as a direct result of the cancellation (including, but not limited to, any loss of profits).
17.4 Cancellation of orders for Parts made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
18.1 All emails, documents, images or other recorded information held or used by AJB is Personal Information, as defined and referred to in clause 19.1, and therefore considered Confidential Information. AJB acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). AJB acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customers Personal Information, held by AJB that may result in serious harm to the Customer, AJB will notify the Customer in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law.
18.2 Notwithstanding clause 18.1, privacy limitations will extend to AJB in respect of Cookies where transactions for purchases/orders transpire directly from AJB’s website. AJB agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to AJB when AJB sends an email to the Customer, so AJB may collect and review that information (“collectively Personal Information”)
In order to enable / disable the collection of Personal Information by way of Cookies, the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via AJB’s website.
18.3 The Customer agrees for AJB to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Customer in relation to credit provided by AJB.
18.4 The Customer agrees that AJB may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
18.5 The Customer consents to AJB being given a consumer credit report to collect overdue payment on commercial credit.
18.6 The Customer agrees that personal credit information provided may be used and retained by AJB for the following purposes (and for other agreed purposes or required by):
(a) the provision of Parts; and/or
(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Parts; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Parts.
18.7 AJB may give information about the Customer 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 Customer including credit history.
18.8 The information given to the CRB may include:
(a) Personal Information as outlined in 19.1 above;
(b) name of the credit provider and that AJB is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer’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 Customer no longer has any overdue accounts and AJB has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of AJB, the Customer has committed a serious credit infringement;
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
18.9 The Customer shall have the right to request (by e-mail) from AJB:
(a) a copy of the Personal Information about the Customer retained by AJB and the right to request that AJB correct any incorrect Personal Information; and
(b) that AJB does not disclose any Personal Information about the Customer for the purpose of direct marketing.
18.10 AJB will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
18.11 The Customer can make a privacy complaint by contacting AJB via e-mail. AJB 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 Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
19. Unpaid Seller’s Rights
19.1 Where the Customer has left any item with AJB for repair, modification, exchange or for AJB to perform any other service in relation to the item and AJB has not received or been tendered the whole of any monies owing to it by the Customer, AJB shall have, until all monies owing to AJB are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
19.2 The lien of AJB shall continue despite the commencement of proceedings, or judgment for any monies owing to AJB having been obtained against the Customer.
20. Service of Notices
20.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
20.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
21.1 If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not AJB may have notice of the Trust, the Customer covenants with AJB as follows:
(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
(b) the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Customer will not without consent in writing of AJB (AJB will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Customer as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
22.1 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.
22.2 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 AJB has its principal place of business, and are subject to the jurisdiction of the Waverly Local Courts in that state.
22.3 Subject to clause 15, AJB shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by AJB of these terms and conditions (alternatively AJB’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Parts).
22.4 AJB may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
22.5 The Customer cannot licence or assign without the written approval of AJB.
22.6 AJB may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of AJB’s sub-contractors without the authority of AJB.
22.7 The Customer agrees that AJB may amend their general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for AJB to provide Parts to the Customer.
22.8 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.
22.9 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.