Claims and Returns

Term of trade

 

 

1. Interpretation

1.1 Unless otherwise inconsistent with the context the word “person” shall include a corporation.

1.2 “goods” shall include services.

1.3 Words importing the singular number shall be deemed to include the plural and vice versa, words importing the male gender shall be deemed to include the female and neuter gender and vice versa.

1.4 “TRUCKLINE” shall mean IVECO TRUCKS AUSTRALIA LIMITED ABN 86 004 065 061, its successors and assigns.

1.5 “customer” shall mean the person named as “the Applicant” on the credit application annexed to these terms or any customer purchasing goods from TRUCKLINE on a cash basis.

1.6 “GST” means any goods and service tax.

 

2. Offer and Acceptance

2.1 Any quotation or goods listed in any catalogue of TRUCKLINE is not an offer to sell or to provide goods. TRUCKLINE shall not be bound by any order until it is accepted in writing. All orders are subject to acceptance by TRUCKLINE within thirty (30) days of receipt by TRUCKLINE of the order. These terms and conditions shall be deemed to be incorporated into any agreement between TRUCKLINE and the customer. Any terms and conditions contained in any order, offer, acceptance or other document of the customer and all representations, statements, terms and conditions and warranties (whether implied by statute or otherwise) not set out in these terms are expressly excluded to the fullest extent permitted by law.

2.2 The customer may only order goods to the extent of the credit limit approved by TRUCKLINE, provided that TRUCKLINE may in its sole discretion extend the credit limit or allow the customer to exceed the credit limit without notice. TRUCKLINE may decide not to supply goods where a customer has exceeded any credit limit or otherwise may refuse supply without giving any reason to the customer. 

2.3 Insofar as goods supplied by TRUCKLINE are not of a kind ordinarily acquired for personal, domestic or household consumption, the liability for breach of a condition or warranty, implied into this contract by the Sale of Goods Act or the Trade Practices Act (other than a condition implied by Section 69) is limited:

(a) in the case of goods to any one of the following as determined by TRUCKLINE:

(i) the refund of the price paid by the customer for the goods or the issue of a credit note for such amount; or

(ii) the replacement of the goods or the supply of equivalent goods; or

(iii) the repair of the goods; or

(iv) the payment of the cost of replacing the goods or at acquiring equivalent goods; or

(v) the payment of the costs of having the goods repaired;

 

(b) in the case of services to any one of the following as determined by TRUCKLINE

(i) the supplying of the services again; or

(ii) the payment of the cost of having the services supplied again.

2.4 The customer acknowledges and agrees that it has not relied upon any advice given by TRUCKLINE, its agents or employees in relation to the suitability for any purpose of the goods and that any description of the goods is approximate and is given by way of identification only and the use of such description shall constitute a contract of sale by description. 

 

3. Delivery

3.1 Any date quoted for delivery (“the quoted date”) is an estimate only and unless a guarantee shall be given by TRUCKLINE in writing providing for liquidated damages for failure to deliver by the quoted date TRUCKLINE shall not be liable to the customer for any loss or damage even if arising out of the negligence of TRUCKLINE for failure to deliver on or before the quoted date. The customer shall accept and pay for goods and any GST if and when tendered despite any failure by TRUCKLINE to deliver by the quoted date. Written advice to the customer that goods are ready for delivery whether in whole or in part shall constitute tendering and the terms of payment shall apply.

3.2 TRUCKLINE shall not be liable to any customer or any other party for direct or indirect or consequential injury, loss or damage whatsoever by reason or any delay in delivery whether the same is due to the negligence of TRUCKLINE or any other party, strike or any other industrial action be it of TRUCKLINE or other party or any other cause.

3.3 TRUCKLINE reserves the right to deliver by instalments. If delivery is made by instalments the customer shall not be entitled:

(a) to terminate or cancel the contract; or

(b) to any claim, loss or damage howsoever arising failure by TRUCKLINE to deliver any instalments on or before the quoted date.

3.4 It is agreed that TRUCKLINE shall not be responsible for the delay in delivery caused by, or in any way incidental to an act of God, war, fire, breakages of machinery, strikes or arising out of any other unexpected exceptional cause, or any cause beyond reasonable control of TRUCKLINE. 

3.5 Any quotation containing a provision to supply goods “ex stock” is subject to fulfilment of prior orders at the date of receipt of the customer’s order.

 

4. Payment

4.1 Unless otherwise agreed in writing or the sale is on a cash basis, payment terms are net cash thirty (30) days from the end of the month in which the goods are invoiced to the customer and payment can be made by cash, debit card, Mastercard, Bankcard, Visa, direct deposit or EFTPOS.

4.2 TRUCKLINE reserves the right to charge a surcharge when payment is made by credit card.

4.3 Payment by cheque is at the sole discretion of TRUCKLINE and is subject to clearance of the cheque.

4.4 The customer shall pay the price of any goods supplied by TRUCKLINE and any GST in addition to the price.

4.5 This term as to payment shall be of the essence of the contract.

 

5. Title 

5.1 Despite the delivery of the goods or part of them, the goods remain the sole and absolute property of TRUCKLINE as full legal and equitable owner until such time as the customer shall have paid TRUCKLINE the full price together with the full price of any goods then the subject of any other contract with TRUCKLINE.

5.2 The customer acknowledges that he receives possession of and holds goods delivered by TRUCKLINE solely as bailee for TRUCKLINE until such time as the full price including any GST thereof is paid to TRUCKLINE together with the full price including any GST of any goods then the subject of any other contract with TRUCKLINE.

5.3 (a) Until the goods are paid for in full including any GST, TRUCKLINE authorises the customer to sell the goods as its agent. However, the customer shall not represent to any third parties that it is acting in any way for TRUCKLINE. TRUCKLINE will not be bound by any contracts with third parties to which the customer is a party.

(b) The customer is entitled to a period of credit, but if prior to the expiration of the period of credit the goods are sold and the proceeds of sale are received by the customer then the customer shall account to TRUCKLINE for the price of the goods including any GST.

(c) Should the customer die, stop payment or call a meeting of its creditors or become insolvent or subject to the bankruptcy laws, or being a company, appoints an administrator or calls a meeting for the purpose of or to go into liquidation or has a winding-up application presented against it or has a receiver appointed, TRUCKLINE may at its option despite its waiver of such default or failure and without prejudice to its other rights under this contract, suspend or cancel this contract or require payment in cash before or on delivery or tender of goods despite the terms of payment previously specified, or may repossess and take over the goods and dispose of the same in its own interest without prejudice to any claim it may have for damages for any loss resulting from such resale. 

5.4 If the customer does not pay for any goods on the due date then TRUCKLINE is hereby irrevocably authorised by the customer to enter the customer’s premises (or any premises under the control of the customer or as agent of the customer in which the goods are stored) to take possession of the goods without liability for the tort of trespass, negligence, assault and battery or payment of any compensation to the customer whatsoever.

5.5 On retaking possession of the goods TRUCKLINE may elect to refund to the customer any part payment that may have been made and to credit the customer’s account with the value of the goods less any charge for recovery of the goods, or to resell the goods.

 

6. Risk

Unless otherwise agreed in writing, risk in the goods shall pass to the customer at the time when the goods have been placed on the vehicle which is to effect delivery from TRUCKLINE store or warehouse. The goods shall remain at the customer’s risk at all times unless and until TRUCKLINE retakes possession of the goods pursuant to these terms and conditions.

 

7. Claims and Returns

7.1 Subject to clause 2.3 herein, TRUCKLINE shall not be liable for any loss or damage however arising whether direct or indirect or consequential or in respect of any claim whenever and however made for any loss or damage, deterioration, deficiency or other fault or harm in the goods provided by or on behalf of or in any arrangement with TRUCKLINE or occasioned to the customer or any third party or to his or their property or interest and whether or not due to the negligence of TRUCKLINE, its servants or agents.

7.2 The customer shall immediately notify TRUCKLINE in writing of any of the facts or matters which form any part of any claim or complaint whatsoever provided such claim or complaint is made no later than seven (7) days after delivery.

7.3 TRUCKLINE shall not be liable in any circumstances for any:

(a) defects or damages caused in whole or in part by misuse, abuse, neglect, improper application, repair or alteration (other than by TRUCKLINE)or accident;

(b) any transport installation removal, labour or other costs;

(c) details in goods not manufactured by it but TRUCKLINE will endeavour to pass on to the customer the benefit of any claim made by TRUCKLINE and accepted by the customer and the benefit of any claim made by TRUCKLINE and accepted by the manufacturer of such goods under a warranty given by the manufacturer of such goods provided that nothing contained in this subparagraph shall limit the rights of the customer to proceed against TRUCKLINE pursuant to the Trade Practices Act; and

technical advice or assistance given or rendered by it to the customer or not in connection with the manufacture construction or supply of goods for or to the customer.

7.4 TRUCKLINE will accept the return of parts that comply with the following procedure:

goods returned must have been purchased from TRUCKLINE. TRUCKLINE will issue the customer with a credit 

return to be accepted.

costs of returning goods to TRUCKLINE will be the customer’s responsibility except for goods incorrectly supplied by TRUCKLINE. The invoice price for goods returned will apply to credits and re-stocking fees.

goods returned for credit must not have been fitted. Goods must be in original packaging and in a saleable condition.

goods especially procured at the customer’s request will not be accepted for return.

goods returned within 30 days of invoice date will be credited in full. Goods returned between 30 and 45 days of invoice date will incur a 20% restocking fee. Goods returned after 45 days will not be accepted for credit.

shortages must be advised within 24 hours of delivery. Shortages must be advised by sending the relevant advice (credit returns and shortages book) to TRUCKLINE’ parts department.

TRUCKLINE retain the right to reject returns which do not conform with this policy 

 

8. Force Majeure

If by reason of any fact, circumstance, matter or thing beyond the reasonable control of TRUCKLINE, TRUCKLINE is unable to perform in whole or in part any obligation under this contract, TRUCKLINE shall be relieved of that obligation under this contract to the extent and for the period that it is so unable to perform and shall not be liable to the customer in respect of such inability.

 

9. Default

Upon the occurrence of default by the customer in compliance with the terms herein:

9.1 TRUCKLINE may at its discretion withhold further supplies of goods or cancel the contract, or vary the terms of this contract without prejudice to its rights hereunder PROVIDED HOWEVER that TRUCKLINE may at any time and from time to time upon such terms as it may determine waive any of its rights under this clause, but without prejudice to its rights thereafter of any of the events herein before referred to or upon the continuation after any such waiver of any state of affairs the subject of such waiver.

9.2 TRUCKLINE reserves the right to charge the customer interest at the rate of 1.5% per month on daily balances in respect of any amounts as may from time to time be overdue until paid and such money together with all interest shall be recoverable from the customer as a liquidated debt.

9.3 Without prejudice to any other right or remedy the customer shall indemnify TRUCKLINE against any costs, fees, charges and disbursements (inclusive of any GST) charged by any solicitor engaged for the purpose of the collection or recovery of monies due and payable by the customer to TRUCKLINE on an indemnity basis and all such costs shall be recoverable as a liquidated debt and, at the option of TRUCKLINE, may be recovered as a Minor Debt Claim.

 

10. Change Of Ownership

The customer agrees to notify TRUCKLINE in writing of any change of ownership of the customer or its business, or of directorships in the case of a corporate customer, or of any other change whatsoever affecting this agreement within seven (7) days from the date of such change and indemnifies TRUCKLINE against any loss or damage incurred by it as a result of the customer’s failure to notify TRUCKLINE of any change.

 

11. Lien and Charge

11.1 The customer hereby acknowledges and agrees that TRUCKLINE has a lien over all goods in its possession belonging to the customer to secure payment of any or all amounts outstanding from time to time.

11.2 The customer hereby charges all real estate of the customer to secure any monies that may at any time be owing to TRUCKLINE under this contract by the customer or otherwise and authorise TRUCKLINE or its solicitors to execute any consent form as their attorney for the purpose of registering a caveat over any real property owned by the customer at any time.

 

12. Indemnity

The customer indemnifies and holds harmless TRUCKLINE against any liability to any third party for any loss of profit, injury, death, damage or economic loss (whether direct, consequential or otherwise), or the infringement or alleged infringement of a patent, registered design, trademark, copyright or any other intellectual property right in respect of the goods. 

 

13. Jurisdiction

This contract for the supply of the goods is deemed to have been entered into in the State of Queensland. Any legal action arising out of or in respect of the contract and/or the interpretation thereof shall be brought only in the Courts of Brisbane in the State of Queensland and the customer irrevocably submits itself to the jurisdiction of the Courts of Brisbane in the State of Queensland.