Terms & Conditions
"ACL" means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) as amended.
“Agreement” means this Agreement, including the Schedule.
“Customer” means the party named in the Schedule, or, if no party is named, the party to whom Partswise provides this Agreement.
"GST" means the Goods and Services Tax as defined in A New Tax System (Goods and Services Act) 1999( Cth) as amended.
“Order” means a request by the Customer to purchase Products from Partswise.
"PPSA" means the Personal Property Securities Act 2009 (Cth) as amended.
“Products” means any goods which Partswise sells or provides to the Customer from time to time and includes goods described in any quotation, invoice, purchase order, or any other document.
“Product Price List” means any list of prices kept and updated from time to time by Partswise for the Products, including any prices listed on Partswise's website for Products.
“Schedule” means the schedule on the front page of or attached to this Agreement.
"Partswise” means Caldwell Family Pty Ltd (ACN 078 973 332).
2. ACCEPTANCE OF AGREEMENT
The Customer may enter into this Agreement with Partswise by eithera)
- Signing a copy of the Agreement; or
- b) Ordering Products from Partswise after having received a copy of this Agreement at some prior time.
3. ENTIRE AGREEMENT
- a) These terms shall constitute a full and complete statement of the Agreement between Partswise and the Customer and no variations or modifications of any term of the Agreement shall be binding unless agreed to in writing by Partswise.
- b) Partswise may vary or amend these terms by written notice to the Customer at any time. Any variations so made will only apply to Orders placed by the Customer after the time that the variation has been brought to the Customer's attention and shall not apply to prior Orders.
4. TERM OF AGREEMENT
This Agreement shall cover all dealings between the parties until it is replaced by an alternate written Agreement or is terminated in accordance with its terms.
5. SUPPLY OF THE PRODUCTS
- a) The Customer shall order such Products from Partswise as it requires from time to time.
- b) Whilst Partswise will use its best endeavours to ensure that it is able to provide Products and to the Customer within the time frame as advised by Partswise to the Customer at the time of sale, it does not warrant or guarantee that it will be able to do so and will not be responsible for any losses alleged to have been suffered by the Customer as a result of delay in supplying Products, regardless of the reason for the failure to supply. Any period or date for delivery of Products stated by or on behalf of Partswise shall be regarded by the Customer as an estimate only and not a contractual commitment.
- c) Partswise retains the absolute discretion at all time to refuse to accept any Order made by the Customer for Products.
- d) The Customer acknowledges that Partswise may engage agents or subcontractors in the provision of Products to the Customer.
6. DELIVERY OF PRODUCTS
- a) Partswise shall use its best endeavours to deliver the Products to the delivery location listed in the Schedule or such other location as agreed to by the Customer and Partswise from time to time.
- b) Partswise shall at its sole discretion determine the mode of delivery of the Products.
- c) Unless otherwise agreed, the Customer is responsible for all costs associated with delivery, including freight, insurance and other charges arising from the point of dispatch of any Products to the Customer to the point of delivery with the cost of the delivery to be in addition to the cost of the Products.
- d) In the event that, for whatever reason, it is not practicable to deliver the Products to the delivery location specified in the Schedule then Partswise shall, at its sole discretion, deliver the Products to an alternate location it considers to be most suitable in the circumstances.
- e) The Customer shall inspect the Products upon delivery and notify Partswise within 3 days of any defects, short deliveries or any failure to fulfill any quotation or Order.
- f) Partswise will, within a reasonable time following delivery, be given access to the Products in order to inspect for any alleged defects.
- g) Should the Customer fail to notify Partswise within the specified period then the Products shall be deemed to be in compliance with the order and free from any defect whatsoever.
- h) Partswise shall not be obliged to make delivery of any Products in circumstances where the Customer is in default in any way in regard to its obligations under this Agreement including but not limited to its obligations in respect to payment.
- i) Partswise’s obligation to deliver shall be discharged on arrival of the Products at the Customer’s nominated delivery destination, nominated agent or carrier or the address appearing on the Schedule.
- j) Partswise may make and invoice partial deliveries and each partial delivery shall be a separate sale pursuant to this Agreement.
7. CUSTOMER WARRANTY
The Customer warrants that it is suitably experienced and qualified to install any and all Products purchased from Partswise by the Customer and acknowledges that Partswise is entering in to this Agreement on reliance on the warranty provided by the Customer in this clause.
8. PRICING AND PAYMENT
- a) The Customer shall be charged for the Products in accordance with Partswise's Product Price List as it applies at the time of the Customer placing an Order. If a Product does not appear on the Product Price List then Partswise shall be entitled to charge a reasonable amount for that Product.
- b) The terms of payment shall be as specified in the Schedule.
- c) Should the Schedule be silent as to terms of payment then payment shall be made in advance of delivery of any Products.
- d) Payment by cheque is not deemed to have been made unless and until the proceeds of the cheque have cleared.
- e) Unless otherwise stated quotes for Products or delivery are exclusive of GST and any other applicable taxes or duties. In addition to the price for the Products and delivery the Customer shall also pay any applicable GST, taxes or duties.
- f) All prices are in Australian Dollars.
- g) Any quotation provided by Partswise to the Customer shall be valid only for 7 days from the time it was made and may be withdrawn at any time by Partswise within that period.
- h) The Customer shall be liable for, and expressly undertakes to pay, all fees (including an administration fee in an amount to be set from time to time by Partswise) for all costs incurred for any cheque being dishonoured for whatever reason.
- i) In respect of payments required to be made by the Customer under this Agreement time shall be of the essence.
9. BREACH BY CUSTOMER
- a) Interest shall be payable on any amounts outstanding outside payment terms by the Customer to Partswise at the rate of 2% over and above the rate applicable from time to time under the Penalty Interest Rates Act 1983 (Vic).
- b) The Customer hereby indemnifies Partswise in respect of any costs incurred by Partswise (including legal costs on a solicitor/client basis) as a result of any breach of this Agreement by the Customer, including any breach of terms of payment for Products. Such costs include but are not limited to the costs of any demands made of the Customer to remedy any breach, and any legal proceedings to recover unpaid money.
- c) Amounts received by the Customer in circumstances where the Customer is in breach of the payment terms of this Agreement may be applied first against interest, charges and expenses.
- d) If the Customer has an overdue account, the Customer will be precluded from participating in any special deals, discounts, bonus payments, redemptions, rebates and other incentive programs until the account is no longer overdue.
10. DIRECTOR'S GUARANTEE
In the event that the Customer is an incorporated entity
- a) The person signing these terms on behalf of the Customer hereby guarantees to Partswise the Customer's obligations under these terms, including the due and punctual payment of any money payable by the Customer to Partswise, for any reason, at any time. The guarantee provided is a continuing guarantee. The obligations under the guarantee are principal obligations and may be enforced against the guarantor without Partswise being first required to exhaust any remedy it may have against the Customer.
- b) The Customer agrees that it will, if called upon at any time by Partswise to do so, procure from any one or more of its directors (as directed by Partswise) a personal guarantee of the Customer's obligations pursuant to this Agreement in a form acceptable to Partswise, with such guarantee to cover both future liabilities and any liabilities of the customer to Partswise which predate the signing of the guarantee.
11. RETENTION OF TITLE TO PRODUCTS
Until Partswise receives full payment (in the form of clear funds) for any Products supplied by it to the Customer together with any other amounts owing by the Customer to Partswise
- a) Title and property in all of the Products yet to be paid for remains vested in Partswise and does not pass to the Customer until payment has been made in full;
- b) The Customer must hold the goods as bailee for Partswise;
- c) The Customer must hold the proceeds of any sale of the Products on trust for Partswise; and
- d) In addition to its rights under the PPSA Partswise may without notice, enter any premises where it suspects that the Products are and remove them, and for this purpose the Customer irrevocably licenses Partswise or its agents to enter onto such premises and also indemnifies Partswise from and against all costs, claims, demands or actions by any party arising from such action.
- e) For the purposes of the PPSA, by executing this Agreement the Customer agrees to grant to Partswise a Security Interest in the Products and Partswise shall be entitled to register the Security Interest on the relevant Security Register.
12. PERSONAL PROPERTY SECURITY ACT
- For the purposes of the PPSA –
- a) For the purposes of the PPSA – Terms used in this clause have the corresponding meaning to their use in the PPSA;
- These Terms constitute a security Agreement between Partswise and the Customer and Partswise has a Purchase Money Security Interest in all present and future Products supplied by Partswise to the Customer and the proceeds of those Products.
- The security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer to Partswise at any particular point in time.
- b) The Customer must do whatever shall be necessary in order to give a valid security interest over the Products and their proceeds which is able to be registered by Partswise on the Personal Property Securities Register. Without limiting the Customer's obligations under this clause, the Customer must immediately upon Partswise's request –
- Execute all documents and do any other things necessary to give effect to the security interest created under these terms; and
- Procure from any person considered by Partswise to be relevant to its security position such Agreements and waivers as Partswise may require at any time.
- c) The security interest arising under this clause attaches to the Products when the Products are collected from or dispatched from Partswise's premises and not at any later time.
- d) Partswise shall be free to allocate sums received from the Customer in any manner Partswise determines, including in any manner required to preserve any Purchase Money Security Interest or any other security interest it has arising by virtue of supply of Products to the Customer
13. RISK, INSURANCE AND LIABILITY
- a) The risk in the Products and all insurance responsibility for theft, fire, loss or damage of any other kind shall pass to the Customer immediately upon delivery of the Product to any site in Australia (including any port) to which delivery is to be made by Partswise or upon collection by the Customer, the Customer’s Agent or a carrier engaged on behalf of the Customer from Partswise (whichever is applicable).
- b) The Customer warrants that it has and will have at the time of making any particular order for Products all necessary licenses or permits under all relevant laws and regulations (Australian or otherwise) to possess and use the Products.
- c) If Partswise is liable for a breach of a guarantee implied by the ACL in respect to the provision of the Products and those Products are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then, to the extent permitted by the ACL, its liability to the Customer will be limited to –
- The replacement of the Products or the supply of equivalent Products;
- The payment of the costs of replacing the Products or acquiring equivalent Products
14. CANCELLATION OF ORDERS
- a) No purported cancellation, variation or suspension of an Order for Products (or any part of an Order for Products) shall be binding upon Partswise once the Order has been placed with Partswise.
- b) Partswise may cancel the delivery of Products at any time before delivery by giving notice to the Customer by any means.
- c) Partswise shall not be liable for any loss or damage, including any consequential loss or damage, arising from such cancellation in accordance with the above clause.
- d) In the event that the Customer cancels delivery of Products, the Customer shall be liable for any costs incurred by Partswise up to the time of the cancellation including, but not limited to, any re-stocking fees incurred by Partswise.
15. FORCE MAJEURE
Partswise shall not be liable in any manner whatsoever to the extent that it has been prevented from performing any obligation under this Agreement by reason of matters beyond its control, including without limitation-
- a)Inability to source material to produce Products;
- b) Lack of availability for whatever reason of staff or contractors.
- c) Acts of God, accidents or machinery breakdown;
- d) Changes in any law which may affect the supply of Products;
- e) Acts or threats of terrorism or war; or
- f) Industrial disputes or strikes.
16. TERMINATION ON NOTICE
Either party may terminate this Agreement at by giving the other party 30 days’ notice of its intention to do so however such termination shall not affect any existing Orders which have been accepted by Partswise.
17. IMMEDIATE TERMINATION OF AGREEMENT
Partswise may terminate this Agreement (including any pending Orders) immediately by giving written notice to the Customer if the Customer:
- a) goes into liquidation;
- b) has an administrator or a receiver to its property or assets appointed;
- c) is made bankrupt;
- d) fails to make any payment due under this Agreement by the date such payment was due;
- e) materially breaches its obligations under this Agreement where such breach is either not capable of remedy or, if capable of remedy, the Customer fails to remedy such breach within 14 days after receipt of written notice of such breach by the other party; or
- f) engages in any conduct (which includes any conduct by employees of the Customer) which in the opinion of Partswise is or might be damaging to the reputation of Partswise or any of the Products.
18. EFFECT OF TERMINATION
Other than as specifically stated, the termination of this Agreement for whatever reason shall not in any way affect any rights or responsibilities accruing prior to the termination taking effect and Partswise’s rights in the event of default (including the ongoing accrual of interest and the right to indemnity for costs) shall continue beyond any termination.
19. RELATIONSHIP OF PARTIES
Nothing in this Agreement shall give rise to a partnership or relationship of employment between the parties.
Any failure or delay by Partswise to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude either its exercise in the future of the exercise of any other power or right. A waiver is not effective unless it is in writing.
21. READING DOWN OF AGREEMENT
If a clause in this Agreement is unenforceable it must be read down so as to be unenforceable or, if it cannot be so read down, it must be severed from this Agreement without affecting the enforceability of the remaining terms of the Agreement.
22. Website Security
- This website encrypts all requests via 128 bit SSL Certificate provided by Commodo
- No credit card information is stored within this website
- All Credit Card payments are handled externally via Fat Zebra
- All transactions within the Partswise website (www.partswise.com.au) are in Australian Dollars only.
This Agreement shall be governed by the laws of Victoria, Australia