B.W. Truck Parts – Terms & Conditions of Trade

Please note that a larger print version of these terms and conditions is available from B.W. Truck Parts on request. #13594 © Copyright – EC Credit Control 1999 – 2024

1.Definitions

1.1
“Acknowledgment Document” means the document signed by the Customer in conjunction with these Terms and Conditions of Trade and applicable if B.W. Truck Parts elects, whereby the Customer acknowledges the extent and effect of the provision of security the Customer provides to B.W. Truck Parts in consideration of the provision of Goods or Services.
1.2
“B.W. Truck Parts” means Skyrise Investments Pty Ltd ATF The Wynhorst Family Trust T/A B.W. Truck Parts, its successors and assigns or any person acting on behalf of and with the authority of Skyrise Investments Pty Ltd ATF The Wynhorst Family Trust T/A B.W. Truck Parts.
1.3
“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.
1.4
“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.
1.5
“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 using B.W. Truck Parts’ 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 making enquiries via the website.
1.6
“Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting B.W. Truck Parts 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 on behalf of or part of, a Trust, shall be bound in its own capacity as a trustee; and
(d)
includes the Customer’s executors, administrators, successors, and permitted assigns.
1.7
“Goods” means all Goods or Services supplied by B.W. Truck Parts to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.8
“GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
1.9
“Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between B.W. Truck Parts and the Customer in accordance with clause 6 below.

2.Acceptance

2.1
The parties acknowledge and agree that:
(a)
they have read and understood the terms and conditions contained in this Contract; and
(b)
the parties are taken to have exclusively accepted and are immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
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 the supply of Goods:
(a)
on credit shall not take effect until the Customer has completed a credit application with B.W. Truck Parts and it has been approved with a credit limit established for the account. In the event that the supply of Goods requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, B.W. Truck Parts reserves the right to refuse delivery; and
(b)
for accepted orders may be subject to availability and if, for any reason, the Goods are not or cease to be available, B.W. Truck Parts reserves the right to vary the Price with alternative Goods as per clause 6.2. B.W. Truck Parts also reserves the right to halt all Services until such time as B.W. Truck Parts and the Customer agree to such changes.
2.5
No representation is given by B.W. Truck Parts as to the suitability of the Goods for any purpose, and no responsibility or liability is accepted by B.W. Truck Parts in the event that the Customer orders or purchases incorrect Goods.
2.6
Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 10 of the Electronic Transactions Act 2011 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3. Authorised Representatives

3.1
Unless otherwise limited as per clause 3.2 the Customer agrees that should the Customer introduce any third party to B.W. Truck Parts as the Customer’s duly authorised representative, that once introduced that person shall have the full authority of the Customer to order any Goods or Services on the Customer’s behalf and/or to request any variation to the Services on the Customer’s behalf (such authority to continue until all requested Services have been completed or the Customer otherwise notifies B.W. Truck Parts in writing that said person is no longer the Customer’s duly authorised representative).
3.2
In the event that the Customer’s duly authorised representative as per clause 3.1 is to have only limited authority to act on the Customer’s behalf then the Customer must specifically and clearly advise B.W. Truck Parts in writing of the parameters of the limited authority granted to their representative.
3.3
The Customer specifically acknowledges and accepts that they will be solely liable to B.W. Truck Parts for all additional costs incurred by B.W. Truck Parts (including B.W. Truck Parts’ profit margin) in providing any Goods, Services or variation/s requested by the Customer’s duly authorised representative (subject always to the limitations imposed under clause 3.2 (if any)).

4. Errors and Omissions

4.1
The Customer acknowledges and accepts that B.W. Truck Parts 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 B.W. Truck Parts 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 B.W. Truck Parts in respect of the Services.
4.2
In circumstances where the Customer is required to place an order for Goods, in writing, or otherwise as permitted by these terms and conditions, the Customer is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order for Goods (whether they are made to order Goods or not) (“Customer Error”). The Customer must pay for all Goods it orders from B.W. Truck Parts notwithstanding that such Goods suffer from a Customer Error and notwithstanding that the Customer has not taken or refuses to take Delivery of such Goods. B.W. Truck Parts is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Customer Errors.

5. Change in Control

5.1
The Customer shall give B.W. Truck Parts 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 B.W. Truck Parts as a result of the Customer’s failure to comply with this clause.

6. Price and Payment

6.1
At B.W. Truck Parts’ sole discretion, the Price shall be either:
(a)
as indicated on any invoice provided by B.W. Truck Parts to the Customer upon placement of an order for Goods; or
(b)
B.W. Truck Parts’ quoted Price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
6.2
B.W. Truck Parts reserves the right to change the Price if a variation to B.W. Truck Parts’ quotation is requested. Any variation from the plan of scheduled Services or specifications of the Goods (including, but not limited to, any variation as a result of inability to source parts, fluctuations in currency exchange rates or increases to B.W. Truck Parts in the cost of taxes, levies, freight charges, materials and labour which are beyond B.W. Truck Parts’ Control) will be charged for on the basis of B.W. Truck Parts’ quotation, and will be detailed in writing, and shown as variations on B.W. Truck Parts’ invoice. The Customer shall be required to respond to any variation submitted by B.W. Truck Parts within ten (10) working days. Failure to do so will entitle B.W. Truck Parts 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.
6.3
At B.W. Truck Parts’ sole discretion, a reasonable deposit may be required upon placement of an order for Goods, in accordance with any quotation provided by B.W. Truck Parts or as notified to the Customer prior to the placement of an order for Goods.
6.4
Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by B.W. Truck Parts, which may be:
(a)
on delivery of the Goods; or
(b)
before delivery of the Goods; or
(c)
for approved Customers, thirty (30) days following the end of the month in which a statement is delivered to the Customer’s address or address for notices; or
(d)
the date specified on any invoice or other form as being the date for payment; or
(e)
failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by B.W. Truck Parts.
6.5
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 B.W. Truck Parts.
6.6
B.W. Truck Parts may in its discretion allocate any payment received from the Customer towards any invoice that B.W. Truck Parts determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer B.W. Truck Parts may re-allocate any payments previously received and allocated. In the absence of any payment allocation by B.W. Truck Parts, payment will be deemed to be allocated in such manner as preserves the maximum value of B.W. Truck Parts’ Purchase Money Security Interest (as defined in the PPSA) in the Goods.
6.7
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 B.W. Truck Parts nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Customer must notify B.W. Truck Parts in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as B.W. Truck Parts investigates the disputed claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in B.W. Truck Parts placing the Customer’s account into default and subject to default interest in accordance with clause 14.1.
6.8
Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to B.W. Truck Parts an amount equal to any GST B.W. Truck Parts must pay for any supply by B.W. Truck Parts under this or any other agreement for the sale of the Goods. 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.

7. Delivery of Goods

7.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at B.W. Truck Parts’ address; or
(b) B.W. Truck Parts (or B.W. Truck Parts’ nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
7.2
The cost of Delivery will be payable by the Customer in accordance with the quotation provided by B.W. Truck Parts to the Customer, or as otherwise notified to the Customer prior to the placement of an order for Goods. Delivery charges shall vary depending on the weight and/or volume of the Goods, the means of conveyance, and the destination.
7.3
The Customer acknowledges and agrees that glass and/or fragile items are shipped at the Customer’s risk.
7.4
The Customer must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery.
7.5
Any time specified by B.W. Truck Parts for Delivery of the Goods is an estimate only and B.W. Truck Parts will not be liable for any loss or damage incurred by the Customer because of Delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. If B.W. Truck Parts is unable to supply the Goods as agreed solely due to any action or inaction of the Customer, then B.W. Truck Parts shall be entitled to charge a reasonable fee for redelivery and/or storage.

8. Risk

8.1
Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
8.2
If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, B.W. Truck Parts is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by B.W. Truck Parts is sufficient evidence of B.W. Truck Parts’ rights to receive the insurance proceeds without the need for any person dealing with B.W. Truck Parts to make further enquiries.
8.3
If the Customer requests B.W. Truck Parts to leave Goods outside B.W. Truck Parts’ premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Customer’s sole risk.
8.4
The Customer acknowledges and accepts that:
(a)
B.W. Truck Parts is only responsible for parts that are replaced by B.W. Truck Parts and that in the event that other parts/Goods, subsequently fail, the Customer agrees to indemnify B.W. Truck Parts against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising;
(b)
Goods supplied may exhibit variations of colour and shade. While every effort will be taken by B.W. Truck Parts to match colour and shade of products, B.W. Truck Parts shall not be liable for any loss, damages or costs howsoever arising
resulting from any variation in colour or shading between sale
samples or images on B.W. Truck Parts’ website, and the final product supplied; and
(c)
although second hand Goods supplied by B.W. Truck Parts shall be serviceable and fit for the purpose, the condition of such Goods may vary. No guarantee is made by B.W. Truck Parts as to the condition of the Goods, and any cosmetic repairs shall be the Customer’s responsibility and at the Customer’s own cost.

9. Compliance with Laws

9.1
The Customer and B.W. Truck Parts shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Goods/Services.
9.2
The Customer shall obtain (at the expense of the Customer) all licenses, permits, approvals etc. that may be required for the Goods/Services.

10. Title

10.1
B.W. Truck Parts and the Customer agree that ownership of the Goods shall not pass until:
(a)
the Customer has paid B.W. Truck Parts all amounts owing to B.W. Truck Parts; and
(b)
the Customer has met all of its other obligations to B.W. Truck Parts.
10.2
Receipt by B.W. Truck Parts 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.
10.3
It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 10.1:
(a)
the Customer is only a bailee of the Goods and must return the Goods to B.W. Truck Parts on request;
(b)
the Customer holds the benefit of the Customer’s insurance of the Goods on trust for B.W. Truck Parts and must pay to B.W. Truck Parts the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c)
the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for B.W. Truck Parts and must pay or deliver the proceeds to B.W. Truck Parts on demand;
(d)
the Customer should not convert or process the Goods 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 B.W. Truck Parts and must sell, dispose of or return the resulting product to B.W. Truck Parts as it so directs;
(e)
the Customer irrevocably authorises B.W. Truck Parts to enter any premises where B.W. Truck Parts believes the Goods are kept and recover possession of the Goods;
(f)
B.W. Truck Parts may recover possession of any Goods in transit whether or not Delivery has occurred;
(g)
the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of B.W. Truck Parts; and
(h)
B.W. Truck Parts may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.

11. Personal Property Securities Act 2009 (“PPSA”)

11.1
In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
11.2
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 Goods that have previously been supplied and that will be supplied in the future by B.W. Truck Parts to the Customer, and the proceeds from such Goods.
11.3
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 B.W. Truck Parts 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 11.3(a)(i) or 11.3(a)(ii);
(b)
indemnify, and upon demand reimburse, B.W. Truck Parts 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 Goods charged thereby;
(c)
not register a financing change statement in respect of a security interest without the prior written consent of B.W. Truck Parts;
(d)
not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods or the proceeds of such Goods in favour of a third party without the prior written consent of B.W. Truck Parts;
(e)
immediately advise B.W. Truck Parts of any material change in its business practices of selling the Goods which would result in a change in proceeds derived from such sales.
11.4
B.W. Truck Parts 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.
11.5
The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
11.6
The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
11.7
Unless otherwise agreed to in writing by B.W. Truck Parts, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
11.8
The Customer must unconditionally ratify any actions taken by B.W. Truck Parts under clauses 11.3 to 11.5.
11.9
Subject to any express provisions to the contrary (including those contained in this clause 11), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

12. Security and Charge

12.1
In consideration of B.W. Truck Parts agreeing to supply the Goods and/or provide its Services and as acknowledged by B.W. Truck Parts in accordance with any Acknowledgment Document the Customer grants B.W. Truck Parts a security interest by way of a floating charge (registerable by B.W. Truck Parts pursuant to the PPSA) over all of its present and after acquired rights, title and interest (whether joint or several) in all other assets that is now owned by the Customer or owned by the Customer in the future, including but not limited to those set out in any Acknowledgment Document, to the extent necessary to secure the repayment of monies owed under this Contract for provision of the Goods and/or Services under this Contract and/or permit B.W. Truck Parts to appoint a receiver to the Customer in accordance with the Corporations Act 2001 (Cth).
12.2
The Customer indemnifies B.W. Truck Parts from and against all B.W. Truck Parts’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising B.W. Truck Parts’ rights under this clause.
12.3
In the event that the Customer defaults or breaches any term of this Contract and as a result, the security provided in clauses 10.1,11.2
B.W. Truck Parts – Terms & Conditions of Trade
Please note that a larger print version of these terms and conditions is available from B.W. Truck Parts on request. #13594 © Copyright – EC Credit Control 1999 – 2024
and
12.1 as applicable, is deemed insufficient by B.W. Truck Parts to secure the repayment of monies owed by the Customer to B.W. Truck Parts, the Customer hereby grants B.W. Truck Parts a security interest as at the date of the default, by way of a charge, that enables the right and entitlement to lodge a caveat over any real property and or land owned by the Customer now, or owned by the Customer in the future, to secure the performance of the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money), in accordance with the Acknowledgement Document.

13. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

13.1
The Customer must inspect the Goods on Delivery and must within seven (7) days of Delivery notify B.W. Truck Parts 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 Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow B.W. Truck Parts to inspect the Goods.
13.2
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).
13.3
B.W. Truck Parts acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
13.4
Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, B.W. Truck Parts makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. B.W. Truck Parts’ liability in respect of these warranties is limited to the fullest extent permitted by law.
13.5
If the Customer is a consumer within the meaning of the CCA, B.W. Truck Parts’ liability is limited to the extent permitted by section 64A of Schedule 2.
13.6
If B.W. Truck Parts is required to replace the Goods under this clause or the CCA, but is unable to do so, B.W. Truck Parts may refund any money the Customer has paid for the Goods.
13.7
If the Customer is not a consumer within the meaning of the CCA, B.W. Truck Parts’ liability for any defect or damage in the Goods is:
(a)
limited to the value of any express warranty or warranty card provided to the Customer by B.W. Truck Parts at B.W. Truck Parts’ sole discretion;
(b)
limited to any warranty to which B.W. Truck Parts is entitled, if B.W. Truck Parts did not manufacture the Goods;
(c)
otherwise negated absolutely.
13.8
Subject to this clause 13, returns will only be accepted provided that:
(a)
the Customer has complied with the provisions of clause 13.1; and
(b)
B.W. Truck Parts has agreed that the Goods are defective; and
(c)
the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d)
the Goods are returned in as close a condition to that in which they were delivered as is possible.
13.9
Notwithstanding clauses 13.1 to 13.8 but subject to the CCA, B.W. Truck Parts 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 Goods;
(b)
the Customer using the Goods for any purpose other than that for which they were designed;
(c)
the Customer continuing the use of any Goods 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 B.W. Truck Parts;
(e)
fair wear and tear, any accident, or act of God.
13.10
B.W. Truck Parts may in its absolute discretion accept non-defective Goods for return in which case B.W. Truck Parts may require the Customer to pay handling fees of up to ten percent (10%) of the value of the returned Goods plus any freight costs.
13.11
Notwithstanding anything contained in this clause if B.W. Truck Parts is required by a law to accept a return, then B.W. Truck Parts will only accept a return on the conditions imposed by that law.

14. Default and Consequences of Default

14.1
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 B.W. Truck Parts’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2
If the Customer owes B.W. Truck Parts any money, the Customer shall indemnify B.W. Truck Parts from and against all costs and disbursements:
(a)
incurred; and/or
(b)
which would be incurred and/or
(c)
for which by the Customer would be liable;
in regard to legal costs on a solicitor and own client basis incurred in exercising B.W. Truck Parts’ rights under these terms and conditions, internal administration fees, B.W. Truck Parts’ Contract fees owing for breach of these terms and conditions’, including, but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.
14.3
Further to any other rights or remedies B.W. Truck Parts may have under this Contract, if a Customer has made payment to B.W. Truck Parts, 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 B.W. Truck Parts under this clause 14 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.
14.4
Without prejudice to B.W. Truck Parts’ other remedies at law B.W. Truck Parts shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to B.W. Truck Parts shall, whether or not due for payment, become immediately payable if:
(a)
any money payable to B.W. Truck Parts becomes overdue, or in B.W. Truck Parts’ 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 B.W. Truck Parts;
(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.

15. Cancellation

15.1
Without prejudice to any other remedies the parties may have, if at any time either party is in breach of any obligation (including those relating to payment) under these terms and conditions (“the Breaching Party”) the other party may suspend or terminate the supply or purchase of Goods and/or Services to the other party, with immediate effect, by providing the Breaching Party with written notice. Neither party will be liable for any loss or damage the other party suffers because one of the parties has exercised its rights under this clause.
15.2
If B.W. Truck Parts, due to reasons beyond B.W. Truck Parts’ reasonable control, is unable to deliver any Goods and/or Services to the Customer, B.W. Truck Parts may cancel any Contract to which these terms and conditions apply or cancel Delivery of Goods and/or Services at any time before the Goods and/or Services are delivered by giving written notice to the Customer. On giving such notice B.W.
Truck Parts
shall repay to the Customer any money paid by the Customer for the Goods and/or Services. B.W. Truck Parts shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.3
The Customer may cancel Delivery of the Goods and/or Services by written notice served within forty-eight (48) hours of placement of the order. If the Customer cancels Delivery in accordance with this clause 15.3, the Customer will not be liable for the payment of any costs of B.W. Truck Parts, except where a deposit is payable in accordance with clause 6.3. Failure by the Customer to otherwise accept Delivery of the Goods and/or Services shall place the Customer in breach of this Contract.
15.4
Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will not be accepted once production has commenced, or an order has been placed.

16. Privacy Policy

16.1
All emails, documents, images, or other recorded information held or used by B.W. Truck Parts is Personal Information, as defined and referred to in clause 16.4, and therefore considered Confidential Information. B.W. Truck Parts 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”). B.W. Truck Parts acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by B.W. Truck Parts that may result in serious harm to the Customer, B.W. Truck Parts 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.
16.2
Notwithstanding clause 16.1, privacy limitations will extend to B.W. Truck Parts in respect of Cookies where the Customer utilises B.W. Truck Parts’ website to make enquiries. B.W. Truck Parts 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 B.W. Truck Parts when B.W. Truck Parts sends an email to the Customer, so B.W. Truck Parts may collect and review that information (“collectively Personal Information”)
If the Customer consents to B.W. Truck Parts’ use of Cookies on B.W. Truck Parts’ website and later wishes to withdraw that consent, the Customer may manage and control B.W. Truck Parts’ privacy controls via the Customer’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
16.3
The Customer agrees for B.W. Truck Parts 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 B.W. Truck Parts.
16.4
The Customer agrees that B.W. Truck Parts 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.
16.5
The Customer consents to B.W. Truck Parts being given a consumer credit report to collect personal credit information relating to any overdue payment on commercial credit.
16.6
The Customer agrees that personal credit information provided may be used and retained by B.W. Truck Parts for the following purposes (and for other agreed purposes or required by):
(a)
the provision of Goods; and/or
(b)
analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; 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 Goods.
16.7
B.W. Truck Parts 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.
16.8
The information given to the CRB may include:
(a)
Personal Information as outlined in 16.4 above;
(b)
name of the credit provider and that B.W. Truck Parts 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 (provided B.W. Truck Parts is a member of an approved OAIC External Disputes Resolution Scheme), 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 B.W. Truck Parts has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g)
information that, in the opinion of B.W. Truck Parts, 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).
16.9
The Customer shall have the right to request (by e-mail) from B.W. Truck Parts:
(a)
a copy of the Personal Information about the Customer retained by B.W. Truck Parts and the right to request that B.W. Truck Parts correct any incorrect Personal Information; and
(b)
that B.W. Truck Parts does not disclose any Personal Information about the Customer for the purpose of direct marketing.
16.10
B.W. Truck Parts will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
16.11
The Customer can make a privacy complaint by contacting B.W. Truck Parts via e-mail. B.W. Truck Parts will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to reach a decision on the complaint within thirty (30) days of receipt of the complaint. If the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.

17. Unpaid Seller’s Rights

17.1
Where the Customer has left any item with B.W. Truck Parts for repair, modification, exchange or for B.W. Truck Parts to perform any other service in relation to the item and B.W. Truck Parts has not received or been tendered the whole of any monies owing to it by the Customer, B.W. Truck Parts shall have, until all monies owing to B.W. Truck Parts 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.
17.2
The lien of B.W. Truck Parts shall continue despite the commencement of proceedings, or judgment for any monies owing to B.W. Truck Parts having been obtained against the Customer.

18. Service of Notices

18.1
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.
18.2
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.

19. Trusts

19.1
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 or as an agent for a trust (“Trust”) then whether or not B.W. Truck Parts may have notice of the Trust, the Customer covenants with B.W. Truck Parts as follows:
(a)
the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust, the trustees and the trust fund;
(b)
the Customer has full and complete power and authority under the Trust or from the Trustees of the Trust as the case may be 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, the trustees and 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 during the term of the Contract without consent in writing of B.W. Truck Parts (B.W. Truck Parts 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 fund or trust property.

20. General

20.1
Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.
20.2
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, that provision shall be severed from this Contract, and the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.3
These terms and conditions and any Contract to which they apply shall be governed by the laws of Western Australia and are subject to the jurisdiction of the courts in that state. These terms prevail over all terms and conditions of the Customer (even if they form part of the Customer’s purchase order).
20.4
B.W. Truck Parts may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent provided the assignment does not cause detriment to the Customer.
20.5
The Customer cannot licence or assign without the written approval of B.W. Truck Parts.
20.6
B.W. Truck Parts 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 B.W. Truck Parts’ sub-contractors without the authority of B.W. Truck Parts.
20.7
The Customer agrees that B.W. Truck Parts 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 B.W. Truck Parts to provide Goods to the Customer.
20.8
Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Customer to make a payment to B.W. Truck Parts, once the parties agree that the Force Majeure event has ceased.
20.9
Both parties warrant that they have the power to enter 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.
20.10
The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution and Delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.
20.11
If part or all of any term of this Contract is or becomes invalid, illegal or unenforceable, it shall be severed from this Contract and shall not affect the validity