The EV Towbars Automotive Australia & Westfalia relationship

Terms of Trade

  1. Privacy Statement

(a) EV Towbars Automotive Australia Pty Ltd (EVT) is committed to protecting your privacy. Authorized employees within EVT on a need to know basis only use any information collected from individual clients. We constantly review our systems and data to ensure the best possible service to our clients. EVT collects and uses personal information EVT collected about you for the purpose of providing you with EVT's products and service, including in assessing the Credit Account Application and establishing and operating any credit account as a result. If EVT does not collect personal information EVT may be unable to provide you with its products and services, including extending trade credit. You, the Customer, authorise EVT to collect, maintain, use and disclose its personal information/the personal information for the purposes of assessing and determining whether or not to extend trade credit or to accept you as a guarantor; processing your credit application; providing you with products and/or services; accepting and processing payments from you; notifying other credit providers of your defaults; exchanging information about your credit status where you are in default with another credit provider; assessing your partners and directors’ creditworthiness; collecting overdue payments, managing credit, helping you avoid default on credit obligations and taking action in the event of your fraud or other serious credit infringement. EVT may also disclose your personal information to regulatory bodies where this is required by law. EVT may disclose your personal information to its related bodies, service providers and business partners overseas, specifically in Germany and New Zealand. Customers have the right to request access to the personal information that EVT holds about them, on the proviso that EVT is given reasonable notice of such a request and EVT may charge a reasonable fee for access. Further information about how you can access the personal information that we hold about you, and also how you can seek correction of that personal information, and how to make a complaint about a breach of privacy is set out in EVT's privacy policy. A full copy of EVT's privacy policy may be accessed at evt-automotive.com.au.

(b) Customers are requested to retain copies of any literature issued in relation to the provision of our products and services. Where appropriate, EVT shall issue Customers with appropriate written information, hand outs or copies of records as part of an agreed contract, for the benefit of both parties.

(c) EVT will not sell, share, or rent your personal information to any third party or use your e-mail address for unsolicited mail. Any emails sent by EVT will only be in connection with the provision of agreed products and services.

  1. Confidentiality

(a) Both parties shall maintain strict confidence and shall not disclose to any third party any confidential information, trade secrets, know-how, scientific, technical, product, market or pricing information, customer or supplier lists and any other information or material relating to the other or the other’s business or the products or services which come into that party’s possession (Confidential Information) and shall not use such information and material without written permission by the other party.

(b) The Customer is authorised to use the Confidential Information for the sole purpose of this Contract and must not otherwise use or disclose any Confidential Information for any other purpose. This provision shall not, however, apply to information or material which must be disclosed by force of law or which is, or becomes, public knowledge by means other than by breach of any law or legal obligation.

(c) In addition to and without derogating from the confidentiality obligations of the parties set out in clauses 2(b) and 2(c), neither party will disclose to a person or entity that is not a party to this Contract information of the kind mentioned in section 275(1) of the Personal Property Securities Act 2009 (Cth) (PPSA) unless section 275(7) of the PPSA applies or that information is publicly available.

  1. Credit Terms/Payment

(a) Payment is due in full to EVT on the 20th of the month following date of invoice. All products and services remain the property of EVT until paid for in full.

(b) EVT:

(i) reserves the right to charge interest to the purchaser at its trading bank base rate plus 2% calculated on a daily basis from the due date of payment and charge;

(ii) reserves the right to seek debt collection fees which may be incurred in recovering any overdue account. The Customer agrees to pay all EVT's costs and expenses on a solicitor and own client basis if legal action is necessary; and

(iii) may at its sole discretion, withhold delivery of further products and services to the Customer until the outstanding amount plus interest and/or costs are paid in full.

(c) The Customer must pay the price for products or services supplied to the Customer by cheque, payable to EVT or by credit card (plus any charges that may be applicable), by direct debit or in any other way that EVT directs. Payment by cheque or other negotiable instrument is not regarded as received until it is cleared.

(d) Returned cheques will incur a charge to cover banking fees and administrative costs. In an instance of a second returned cheque, EVT reserves the right to terminate the arrangement and, if agreed to, shall insist on future cash transactions only. Consequently, all bookings and/or transactions and agreements entered into will cease with immediate effect until such time as any outstanding monies are recovered in full.

  1. Cancellation Policy

(a) Purchase orders may be cancelled upon a minimum 48 hour’s notice of cancellation and written confirmation by EVT. Notification for instance, in person, via email, mobile phone and/or fax, or any other means is subject to confirmation by EVT in writing. We reserve the right to charge to cover any administrative expenses and costs incurred associated with the purchase order up to the date of confirmation of the cancellation of the purchase order and/or the cancellation of the purchase order.

  1. Prices

(a) All prices quoted are inclusive of goods and services tax (GST) (excluding freight) and are subject to change from time to time. The prices, quantities and delivery time stated in any quotation are estimates which EVT will make every effort to achieve. The prices quoted are binding, subject to written notice advising otherwise by EVT, for two (2) weeks after the date of the quote. You should always confirm with EVT the latest prices for EVT products as the prices may fluctuate over time due to factors such as fluctuation in the costs of materials.

(b) Where the quote allows for the payment of different currencies and/or includes freight costs and/or taxes, the quote shall be subject to these price adjustments which will be reflected in the product invoice and notified to the Customer as soon as these costs are determined by EVT and in any event, prior to delivery of the products.

  1. Delivery

(a) Unless agreed otherwise, EVT must deliver the products to the Customer as soon as reasonably practicable for EVT. However, EVT accepts no liability for delays or defaults in delivery or transportation costs incurred, except where agreed to in writing. Delivery of the products and services will be made at the Customer’s premises unless the Customer has instructed otherwise.

(b) Risk of any loss, shortage, damage, theft or deterioration to the products and services shall be borne by the Customer from time of delivery of the products and services.

(c) Freight may be charged on deliveries but where EVT at its sole discretion considers as possible free delivery will be made.

(d) EVT may deliver the products by separate instalments. Each separate instalment will be invoiced and paid in accordance with these Terms. Delivery of the products to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of these Terms. The failure of EVT to deliver the products does not entitle either party to treat this Contract as repudiated.

(e) If the Customer requests delivery to be made outside normal working hours, the Customer shall pay to EVT an amount equal to any extra cost EVT incurs for transport.

  1. Returns and Defects

(a) The Customer shall inspect the products and services on delivery and shall within 5 days of delivery notify EVT of any alleged defect, shortage in quantity, damage or failure to comply with description or sample (Defect). Subject to any rights a Customer may have under the Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of the Fair Trading Act 1999 (Vic) (Australian Consumer Law):

(i) if the product is Defective in any way the Customer must complete and send to EVT a return form within 7 days of receiving the products; and

(ii) returns of products will only be accepted for credit if the correct EVT returns form has been used.

(b) Subject to any rights a Customer may have under the Australian Consumer Law, if the Customer fails to comply with these provisions, the products and services shall be conclusively presumed to be free from any Defect which would be apparent on a reasonable examination of the products and services and the Customer shall be deemed to have accepted the products and services.

  1. Patents and Copyright

(a) Copyright in all drawings, specifications and other technical information provided by EVT concerning the Contract is vested in EVT.

(b) If the products and services are to be supplied to the Customer’s design, the Customer:

(i) warrants that the manufacture and supply of the products and services by EVT will not infringe any patent, copyright, registered design or other rights of any other person; and

(ii) indemnifies EVT against any liability it incurs (including any costs and expenses) as a result of any claim that the manufacture or supply of the products and services by EVT infringes any patent, copyright, registered design or other rights of any other person.

  1. Property

(a) Until payment in full has been received by EVT and cheque or any other payment methods are cleared by our bank for the products supplied by EVT to the Customer as well as all other amounts owing to EVT by the Customer under this or any other contract:

(i) ownership of and title to the products and services shall not pass to the Customer;

(ii) subject to clause 9(a)(iii), the Customer must keep the products separate from other goods and maintain the labelling and packaging of EVT so that they are readily identifiable as the property of EVT;

(iii) the Customer must not sell the products except in the ordinary course of the Customers business;

(iv) in addition to any rights EVT may have under Chapter 4 of the PPSA, EVT may, without notice, enter any premises where it suspects the products may be located and remove them without committing a trespass, even though they may have been attached to other goods or land not the property of EVT, and for this purpose the Customer irrevocably licenses EVT to enter such premises and also indemnifies EVT from and against all loss suffered or incurred by EVT as a result of exercising its rights under this clause. If there is any inconsistency between EVT’s rights under this clause 9(a)(iv) and its rights under Chapter 4 of the PPSA, this clause 9(a)(iv)prevails;

(v) the Customer acknowledges and warrants that EVT has a security interest (for the purposes of the PPSA) in the products and any proceeds until title passes to the Customer in accordance with this clause. The Customer must do anything reasonably required by EVT to enable EVT to register its security interest, with the priority EVT requires and to maintain that registration; and

(vi) the security interest arising under this clause attaches to the products when the Customer obtains possession of the products and the parties confirm that they have not agreed that any security interest arising under this clause attaches at any later time.

  1. Fitment of Towbar by Authorised Towbar Dealer (ATD) or Third Party

Subject to any rights a Customer may have under the Australian Consumer Law, EVT has no liability for any claim arising out of the performance, non-performance, or Defect in the products and services once they have been supplied to either an ATD or a third party. EVT holds no liability for the fitment of any product or services supplied to ATD or any third party.

  1. Third Party Claims

(a) The Customer must:

(i) promptly inform EVT of all complaints or claims relating to any of the products or services;

(ii) not admit liability on behalf of EVT in respect of any complaint or claim relating to any of the products or services;

(iii) not resolve or settle any complaint or claim relating to any of the products or services which may result in EVT incurring any liability (whether to a Customer, the Customer or any other person); and

(iv) deal promptly with all complaints or claims relating to any of the products or services, which will not result in EVT incurring any liability.

  1. Warranty

(a) EVT warrants that the fabricated products and services will conform to current Australian Standards.

(b) If EVT fabricates the products and services, EVT will guarantee the fabrication against faulty workmanship and provide a warranty for a period of 2 years.

(c) The benefits given by the warranties under these Terms are additional to other rights and remedies that you may have under any laws in relation to the goods and services. Our products come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the products repaired or replaced if the products fail to be of acceptable quality and the failure does not amount to a major failure.

  1. Limitation of Liability

(a) The Australian Consumer Law provides consumers with a number of consumer guarantees, as that term is used in the Australian Consumer Law (Consumer Guarantees) that cannot be excluded or limited. The limitations of liability set out in these Terms are therefore subject to, and will not apply to the extent that they limit or exclude, such Consumer Guarantees applicable to consumers. However where the Australian Consumer Law permits EVT to limit the remedies available to it for a breach of a Consumer Guarantee, EVT hereby limits its remedies to such consumers, in its sole discretion to, in the case of products:

(i) the replacement of the product or the supply of equivalent products;

(ii) the repair of the products;

(iii) the payment of the cost of replacing the products or of acquiring equivalent products; and/or

(iv) the payment of the cost of having the products repaired, and

in the case of services:

(v) the supplying of the services again; or

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

(b) For all claims not made under the Consumer Guarantees:

(i) EVT's liability for any claims whatsoever in respect of products and services sold here under shall not exceed the price of the product and/or service paid to EVT and the Customer assumes all risks and liability for the products and services purchased from EVT and their use upon and after delivery;

(ii) EVT limits its remedies to Customers and any third party, in its sole discretion to, to providing credit up to the price of the product paid to EVT or repairing the product:

(iii) any repairs to products will be done at such place as EVT specifies and the Customer is responsible for cartage of the products and services or parts of the products and services as is necessary to and from the place so specified. The repair of the products under this clause does not include the cost or removal of defective material and fixing replacement material;

(iv) the warranties under these Terms do not apply to products which have been:

(A) repaired or fitted by any person not authorized by EVT;

(B) used for purposes other than that for which they were intended; or

(C) used, handled, stored in any manner contrary to any instructions, manual or guidelines provided by EVT;

(v) the warranties under these Terms do not apply to any claims of Defect made more than 2 years after the date of delivery; and

(vi) EVT shall not be liable for any special, indirect, economic or consequential loss or damage howsoever arising or howsoever caused (including loss of profit or loss of revenue) whether from negligence or otherwise in connection with the supply, functioning or use of the products and services.

(c) Nothing herein shall limit either party’s liability for death or personal injury arising from the proven negligence by itself or its employees or agents.

  1. Indemnity

(a) The Customer fully indemnifies EVT and holds it harmless against any loss or damage which EVT suffers, incurs or is liable for in connection with this Contract including, but not limited to:

(i) any act or omission of the Customer;

(ii) any breach of this Contract by the Customer;

(iii) enforcing any security interest arising under this Contract; and

(iv) any liability to third parties arising out of the Customer’s use of the products and services,

but excluding loss or damage which EVT suffers to the extent that the loss or damage was caused by a breach of the Australian Consumer Law or any other applicable laws by EVT.

  1. Force Majeure

EVT will not be liable to the Customer for any loss or product damage suffered by the Customer as a direct result of EVT, its sub-contractors or approved tow bar dealers from whom the sample or other service or material is derived being unable to perform the Contract in the way agreed by reason of cause beyond its control including act of God, accident, war, riot, lockout, strike, flood, fire, power failure, breakdown of plant or machinery, delay in transit, postal delay, or any other unexpected or exceptional cause or circumstance.

  1. GST

(a) Any reference to this clause to a term defined or used in the A New Tax System (Goods and Services Tax) Act 1999 (GST Act) is, unless the context indicates otherwise, a reference to that term as defined or used in that Act.

(b) To the extent that any supply made under or in connection with this Contract is a taxable supply, the recipient must pay, in addition to the consideration to be provided under this Contract for that supply (unless it expressly includes GST) an amount equal to the amount of that consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply, provided that EVT has first issued to the recipient a tax invoice in respect of that taxable supply.

  1. Enforcement of Security Interests

(a) If Chapter 4 of the PPSA applies to the enforcement of the security interest created under this Contract, the Customer agrees that the following provisions of the PPSA will not apply:

(i) section 95 (notice of removal of accession), to the extent that it requires EVT to give a notice to the Customer;

(ii) section 121(4) (enforcement of liquid assets-notice to grantor);

(iii) section 130 (notice of disposal), to the extent that it requires EVT to give a notice to the Customer;

(iv) paragraph 132 (3) (d) (contents of statement of account after disposal);

(v) subsection 132 (4) (statement of account if no disposal);

(vi) section 135 (notice of retention);

(vii) section 142 (redemption of collateral); and

(viii) section 143 (reinstatement of security agreement).

  1. Notices under PPSA

EVT does not need to give the Customer any notice under the PPSA (including a notice of verification statement) unless the notice is required by the PPSA and that requirement cannot be excluded.

  1. General

(a) EVT and the Customer are independent contracting parties and nothing in these Terms makes either party the agent or legal representative of the other or grants either party any authority to assume or create an obligation on behalf of the other.

(b) Any disagreement between EVT and the Customer will be submitted in accordance with the laws of Victoria, Australia.

(c) Once accepted by the Customer, these terms will apply to all future work which we will carry out for you. EVT reserves the right to change these conditions from time to time as it sees fit and your continued use of the products and services will signify your acceptance of any adjustment to these terms. If there are any changes to our privacy policy, we will announce that these changes have been made. If there are any changes in how we use our clients’ Personal Information, notification by e-mail or postal mail will be made to those affected by this change. Any changes to our privacy policy will be sent out in writing 30 days prior to these changes taking place. You are therefore advised to re-read this statement on a regular basis.

Acceptance of terms

By completing credit application and or instructing us the Customer agrees to accept these terms and conditions.

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