TERMS AND CONDITIONS
These T&Cs, and no terms and conditions of the Customer, will apply to any Order or Contract for the supply of Goods and/or Services by the Supplier to the Customer.
- Order for Goods and/or Services
- 2.1 Any quotation given by the Supplier is subject to written confirmation, and shall not be construed as an offer or obligation to sell. No Order is binding on the Supplier until the Supplier accepts the Order. The Supplier reserves the right to accept or reject any Order. Acceptance of the Order by the Supplier creates a binding Contract.
- 2.2 Placement of an Order by the Customer is irrevocable acceptance of these T&Cs by the Customer. No variation of these T&Cs is binding on the Supplier without the Supplier’s express written consent.
- 2.3 The Supplier shall be entitled to rely on the accuracy of any information, instructions, quantities and facts provided by the Customer. The Customer will be responsible for the quantity of any Goods in any Order.
- Delivery and Acceptance of Goods
- 3.1 The Supplier shall advise an estimated Delivery Date. The Supplier may vary the Delivery Date at any time without notice and the Supplier does not accept any liability for any delay, loss or damage.
- 3.2 Delivery shall be to the Delivery Address by the Supplier’s authorised carrier and may be made in separate instalments. If the Customer is not at the Delivery Address to accept delivery, the Customer expressly authorises the Supplier’s authorised carrier to deliver the Goods by the leaving the Goods unattended at the Delivery Address. The Goods shall be deemed duly delivered and shall be delivered at the Customer’s sole risk. The Supplier’s responsibility for the Goods ceases immediately upon delivery.
- 3.3 The Customer must inspect any Goods immediately on collection or delivery of the Goods.
- 3.4 Any delivery shall not have any insurance coverage included in the delivery price. The Customer must pay all delivery costs in advance of the Delivery Date.
- 3.5 If the Customer wishes to pick up the Goods, all Goods must be collected from the Supplier’s Premises by previous arrangement with the Supplier.
- Price and Payment
- 4.1 Unless otherwise agreed by the Supplier in writing, the Price will be the Supplier’s list price on the date of invoice and is subject to variation without notice. Unless stated otherwise, the Price is exclusive of GST, delivery costs and charges, standard packaging and installation fees. The Supplier may charge, in addition to the Price, any other fees, charges and surcharges that the Supplier notifies to the Customer in writing from time to time.
- 4.2 The Supplier reserves the right to require full payment prior to installation by the Customer.
- 4.3 Unless otherwise stated in writing, payment is due immediately upon receipt of the invoice, with payments to be made as directed by the Supplier from time to time. The Supplier requires payment to be made by eftpos, cash, cheque or afterpay. If the Customer purchases and Goods and/or Services via the Supplier’s Website, payment in full is required at the time of purchase.
- 4.4 If the Supplier is retained by the Customer to install Goods or provide Services from the Supplier’s Premises, the Supplier retains the right to withhold release of the Customer’s motor vehicle until payment in full is received.
- 4.5 All overdue invoices will incur interest at the rate of 12% per annum compounding monthly from the date of default.
- 4.6 If the Customer makes a telephone payment, the Supplier shall not retain any credit card information and shall utilise credit card information solely for the purpose of processing the telephone payment.
- Risk and Title
- 5.1 Risk in the Goods passes to the Customer upon delivery of the Goods. If the Customer picks up the Goods from the Supplier’s Premises, risk in the Goods will pass to the Customer immediately when the Goods are placed on any motor vehicle or means of conveyance.
- 5.2 Title in the Goods does not pass until the Customer makes payment in full in cleared funds of the Price and any other amounts payable to the Supplier.
- 5.3 Until the Customer receives title in the Goods, the Customer will be only a bailee of the Goods and must keep the Goods in good order and condition; safely and securely store the Goods as separately identifiable goods; ensure that the Goods are not modified, altered or installed; and return the Goods to the Supplier immediately upon request.
- Privacy, confidentiality and Intellectual Property Rights
- 6.1 The Supplier complies with the Privacy Act 1988 (Cth) and all Australian privacy principles, laws and regulations and all existing obligations of confidentially. Upon a written request from the Customer, the Supplier shall provide to the Customer all private and confidential information held by the Supplier.
- 6.2 All Intellectual Property Rights of the Supplier shall remain with the Supplier and will not be assigned to the Customer. No supply of Goods and/or Services to the Customer grants the Customer any Intellectual Property Rights.
- 6.3 The Customer warrants that the Supplier’s use of any designs, patterns, recipes, instructions or documents provided by the Customer to the Supplier for the purposes of any Contract will not infringe the Intellectual Property Rights of any other party.
- 7.1 The Customer must inspect all Goods immediately upon delivery or collection. If the Customer alleges the Goods are not in accordance with the Customer’s Order, the Customer must give written notice with full particulars to the Supplier within 7 days of the Delivery Date or collection, and failing such notice, the Goods will be deemed to have been delivered to and accepted by the Customer.
- 7.2 The Supplier will only accept Goods for refunds if the Goods are wrongly supplied or over-supplied. The Supplier will not accept any Goods for exchange. Any Goods made and delivered to order or special order cannot be refunded under any circumstances. In the event of a defect in materials or workmanship of such Goods, the Supplier shall at the Supplier’s absolute discretion, repair or replace the Goods, subject to the Supplier’s warranty in clause 8. The supplier will not provide refunds on afterpay purchases.
- 7.3 No refunds will be recognised where the claim is made in excess of 7 days of the Delivery Date or collection of the Goods; the Goods are made to order or special order, or to the Customer’s specifications or drawings; the Goods have been installed on any motor vehicle; the Goods are no longer required by the Customer; the Goods have been installed by the Customer or otherwise altered or modified (including changing colour); the Goods are returned to the Supplier without being securely packaged in its original packaging; the Goods are not returned in brand new condition; or the Goods are returned without meeting the particulars of clauses 7 and 8 of these T&Cs.
- 7.4 All postage and delivery charges for any returned Goods shall be the responsibility of the Customer, regardless of whether the Supplier accepts or denies any returned Goods for refund.
- Warranty and Guarantee
- 8.1 The Supplier warrants that all Goods manufactured by the Supplier will be in accordance with industry standards and will be free from defects in materials and workmanship for a period of twelve calendar months from the date of purchase, and warrants that all Services performed by the Supplier will be performed with due care, skill and diligence. All claims made under the Supplier’s warranty shall be determined and accepted or rejected by the Supplier at the Supplier’s absolute and final discretion.
- 8.2 The Supplier will, at its sole option, repair or replace any Goods which are found to be defective in materials or workmanship at the Supplier’s absolute discretion. Any defect in materials or workmanship must be notified to the Supplier in writing within 12 months of the Delivery Date or collection or provision of the Services, and any claim not made within this period shall be conclusively deemed waived by the Customer. Any repair or replacement is subject to the examination of the alleged defect by the Supplier. If required, the Customer must return the defective Goods to the Supplier.
8.3 The warranty does not apply:
- (a) if the Supplier identifies a risk of damage to the Goods prior to the installation of the Goods and the Customer proceeds with the installation, the Customer shall bear all risk of loss and damage and the Supplier bears no liability;
- (b) to any Goods purchased for resupply or resale, Goods and/or Services no longer required by the Customer, Goods and/or Services incorrectly chosen by the Customer, and Goods modified or altered by the Customer (including a change of colour);
- (c) if the Customer breaches any warranty contained in clause 9;
- (d) if the Customer fails to provide the Supplier with proof of original purchase;
- (e) if the Customer has engaged in acts of neglect or misuse; or unusual, improper or negligent use of the product has occurred, as assessed by the Supplier at the Supplier’s absolute discretion;
- (f) if the Customer’s motor vehicle has been modified from the vehicle manufacturer’s factory standards; is not the recommended vehicle of use for the purchased Goods; has been used in racing, competition or commercial circumstances; has been used beyond the expectations of the original motor vehicle manufacturer; has been involved in an accident; or has otherwise been used in extreme conditions including but not limited to overtly dusty or below-freezing conditions (as assessed by the Supplier);
- (g) if the care and protection guidelines issued by the Supplier have not been adhered to;
- (h) to any Goods being returned to the Supplier which are damaged in transit due to the Goods not being returned in their original packaging, or otherwise securely packaged;
- (i) if the Goods were installed by the Customer or by a third party; or
- (j) to any damage caused to the Customer’s motor vehicle as a result of any defective Goods, whether direct or indirect, contingent or subsequent. The Supplier’s liability to repair or replace is limited solely to the purchased Goods.
such repairs or replacements limited only to the defect in materials or workmanship.
repairs and replacement shall be conducted by the Supplier or the Supplier’s chosen repairer, with
- 8.5 The Supplier is not liable for any expense, loss or damage (whether direct or indirect) incurred by the Customer in returning the Goods, remedying any defect in the Goods and/or Services, or use of any defective Goods and/or Services. The Customer shall bear all costs incurred in returning the Goods for repair or replacement.
- 8.6 All Goods should only be installed by suitably qualified personnel in accordance with the Supplier’s installation instructions and specifications. Failure to ensure that the Goods are properly installed could result in damage to property, serious injury or death.
- Representations and Liability
- 9.1 The Customer acknowledges that the Supplier has made any representation or given any promise or undertaking which is not expressly set out in the Contract and/or T&Cs.
- 9.2 The Customer expressly warrants that:
- (a) all particulars and information provided to the Supplier are true and correct and all relevant and pertinent information has been provided, of which the Supplier is authorised to rely on;
- (b) they accept responsibility for any loss or damage of any Goods or motor vehicle whilst in the Supplier’s custody due to civil commotion, act of God, government intervention, war, strikes, seizure under legal process, accident, misadventure, fire or water;
- (c) they accept that any Goods which are not made to custom specifications are made in accordance with the vehicle manufacturer’s factory standards and that the Supplier does not guarantee that the manufactured Goods will fit the Customer’s motor vehicle;
- (d) they accept that any Goods and/or Services supplied by the Supplier may not be compatible with any after-market accessories or modifications made to the Customer’s motor vehicle and that the Supplier accepts no liability in this regard. The Customer must advise the Supplier of all after-market accessories and modifications made to the Customer’s motor vehicle prior to
the Supplier manufacturing the Goods or providing the Services. Failure to notify the Supplier may result in extra charges to the Customer and may render the Goods and/or Services unsuitable for the Customer’s motor vehicle. The Supplier accepts no liability in this respect;
- (e) they accept responsibility for any mismeasurement or incorrect particulars given to the Supplier;
- (f) they acknowledge that the provision of Goods and/or performance of Services by the Supplier may void the Customer’s motor vehicle warranty or motor vehicle insurance. The Customer accepts this risk with no liability to the Supplier. The Customer should conduct independent investigations into any potential voiding of warranties and insurances prior to entry into the Contract with the Supplier;
- (g) they accept responsibility of ensuring that the purchased Goods and/or Services are able to used under the relevant law in any jurisdiction where the Customer’s motor vehicle may be utilised;
- (h) they will advise the Supplier of any and all defects or damage to the Customer’s motor vehicle prior to any installation of Goods or provision of Services by the Supplier;
- (i) if the Supplier is engaged to perform Services on the Customer’s motor vehicle:
- (i) the Customer is the registered owner of the motor vehicle;
- (ii) the motor vehicle has full comprehensive motor vehicle insurance;
- (iii) the motor vehicle is in a roadworthy condition and is safe to drive;
- (iv) the Supplier and the Supplier’s Personnel are authorised to drive the Customer’s motor vehicle and may conduct any test-drive as considered necessary;
- (v) if the Customer is personally unable to deliver or collect the motor vehicle to the Supplier’s Premises, that the individual who delivers and/or collects the Customer’s motor vehicle is expressly authorised to provide instructions and undertake all such actions as if they were the Customer. The Supplier is expressly authorised to deal with the Customer’s authorised representative as if they were the Customer. The authorised representative is authorised to enter into these T&Cs and any Contract or documentation required by the Supplier and shall bind the Customer to these T&Cs. The Customer’s authorised representative is hereby jointly and severally liable with the Customer pursuant to these T&Cs;
- (vi) they will advise the Supplier of any damage to or defects with the Customer’s motor vehicle prior to the Services being performed. The Supplier and the Customer will sign a vehicle damage assessment prior to the Services being performed if required;
- (vii) the Customer’s motor vehicle will be delivered to the Supplier in a reasonably clean condition (both inside and outside);
- 9.3 The Customer acknowledges that all Goods to be delivered shall be appropriately packaged by the Supplier. Any claims for damage in transit must be made against the carrier and whilst the Supplier will not accept liability for any damage, details of any claim must immediately be notified to the Supplier.
- 9.4 The Supplier reserves the right to refuse to provide the Goods and/or Services if the Supplier considers that the Customer’s motor vehicle is unroadworthy, may pose an occupational health or safety hazard to the Supplier or the Supplier’s Personnel, or that a defect in the Customer’s motor vehicle is evident during any test-drive conducted by the Supplier or the Supplier’s Personnel.
- 9.5 The Supplier does not accept any responsibility and will not be liable to the Customer or any third party for any Liability or Claim of any kind arising directly or indirectly in relation to any physical or financial or direct, indirect or consequential loss, damage, injury or death whether or not in the reasonable contemplation of the parties as a result of any use of the Supplier’s Goods and/or Services, except to the extent that liability is imposed on the Supplier by any statutory provision which cannot be excluded. This includes but is not limited to any issue arising in the Customer’s motor vehicle as a result of the Supplier’s Goods and/or Services.
- Release and Indemnity
10.1 The Customer indemnifies the Supplier and the Supplier’s Personnel for all costs (including legal costs and disbursements on a full indemnity basis), expenses, loss or damage incurred or suffered by the Supplier, from and against any Liability or Claim arising directly or indirectly in relation to:
- (a) the accuracy of all information provided by the Customer to the Supplier;
- (b) any breach of these T&Cs or any Order or Contract;
- (c) the negligence or wilful misconduct of the Customer or the Customer’s authorised representative;
- (d) the Supplier delivering the Goods in accordance with the Customer’s instructions;
- (e) damage to the property of the Customer or any third party during any delivery of Goods or provision of Services;
- (f) the Goods and/or Services not being fit for any particular purpose subject to any written notification provided by the Customer;
- (g) the Supplier having to resupply the Goods and/or Services, or undertake any rework, as a result of the actions or omissions of the Customer or any third party;
- (h) the Customer not being present at the Delivery Address to accept any delivery;
- (i) the Customer purporting to cancel any Order or Contract;
- (j) recovery of monies owing to the Supplier;
- (k) retaking possession of the Supplier’s Goods by the Supplier;
- (l) the enforcement of these T&Cs; and
- (m) the supply of Goods and/or Services
and shall pay all such costs without the need for a demand.
- Termination, Cancellation, Variation and Suspension
- 11.1 The Supplier may cancel any Order or Contract at any time prior to delivery without notice no liability other than to repay to the Customer any amount of the Price paid by the Customer in advance.
- 11.2 The Customer is not entitled to vary or Cancel an Order or Contract if the Goods are made to order. The Customer may only vary or cancel an Order or Contract with the Supplier’s express written consent, which may be withheld at the Supplier’s absolute discretion. Any variation or cancellation may incur additional charges which the Customer covenants to pay. All variations are to be agreed in writing.
- 11.3 The Supplier may without notice to the Customer immediately terminate, vary or suspend any Order or Contract and the Customer must immediately pay all monies owed to the Supplier if the Customer breaches a term of these T&Cs or any Contract (including but not limited to the failure to pay the Price on the due date for payment) and does not remedy the breach within 7 days of receiving a verbal or written notice from the Supplier requiring the Customer to do so; or the Customer breaches a term of these T&Cs or any Contract which is not capable of remedy.
- 11.4 If the Supplier terminates, varies or suspends an Order or Contract pursuant to this clause 11, all monies owing to the Supplier including any interest is immediately due and payable without need for a demand. The Supplier may immediately repossess any Goods held by the Customer as a bailee without notice.
- 11.5 These T&Cs, as amended from time to time, are binding on all parties despite any action taken to terminate or suspend any Order or Contract and shall endure after the end of any Order or Contract.
- Loan Car
12.1 The Supplier may provide the Customer with an alternate motor vehicle for use by the Customer (“Loan Car”) if the Supplier requires the Customer’s motor vehicle to be left with the Supplier for the purposes of undertaking the Works. Any use of a Loan Car by the Customer shall be subject to the terms and conditions of the Supplier contained in the Supplier’s Loan Car Agreement, which shall be read in conjunction with these T&Cs.
- 13.1 The parties agree:
- (a) a contract and these T&Cs may only be amended with the Supplier’s express written consent;
- (b) the Supplier’s rights under these T&Cs or any Contract do not exclude any other rights of the Supplier;
- (c) the failure or delay by the Supplier to exercise any right, power or privilege is not a waiver thereof. Any waiver must be express and in writing and does not prevent the Supplier from exercising such right later;
- (d) if a conflict between a Contract and these T&Cs arise, these T&Cs will prevail to the extent of any inconsistency;
- (e) in the event of any dispute, the Supplier’s records will be conclusive evidence;
- (f) the actions of any person claiming or appearing to have the Customer’s authority will bind the Customer to the extent permitted by law;
- (g) the rights of the Supplier in any Order, Contract or T&Cs are cumulative with and do not exclude any rights given by law independently of the Order, Contract or T&Cs;
- (h) the Supplier reserves the right to amend the T&Cs at any time without notice and such change shall be binding on the Customer from the date of publication of the amended T&Cs by the Supplier. The purchase of any Goods and/or Services by a Customer after the date of variation will be deemed to be the Customer’s acceptance of such varied T&Cs;
- (i) any breach of the terms of these T&Cs by the Customer will entitle the Supplier to, without compensation, terminate the Contract, suspend or cease delivery of the Goods and set-off all deposits paid by the Customer against all amounts due and then payable, with all such amounts immediately becoming due and payable;
- (j) any notice must be in writing and handed personally or sent by email, facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received two business days after the date of posting. Notices sent by facsimile or email are deemed received immediately upon delivery;
- (k) the Contract and these T&Cs shall be governed by the law in the State of Victoria and the parties unconditionally submit to the non-exclusive jurisdiction of the courts thereof;
- (l) if any provision of a Contract or these T&Cs are held to be void, illegal or unenforceable, that provision(s) is severed and the validity or enforceability of all other provisions are not affected by such severance;
- (m) these T&Cs are subject to the Australian Consumer Law and are not intended to have contract out of the Australian Consumer Law. These T&Cs do not affect the Customer’s rights at law;
- (n) all conditions and warranties expressed or implied by statue, common law, equity, trade, custom or usage are expressly excluded to the maximum extent permitted by law. Where permitted, the Supplier’s liability for a breach of condition or warranty is limited at the Supplier’s option to replacement of the Goods, the cost of replacement or acquisition of equivalent Goods, or the Price.
- 13.2 In these T&Cs:
- (a) the headings will not affect interpretation;
- (b) the singular includes the plural and vice versa;
- (c) any other grammatical form of a word or expression defined in these T&Cs has a corresponding meaning;
- (d) a reference to a document includes the document as novated, altered, supplemented or replaced;
- (e) a reference to a party includes the party’s executors, administrators, heirs, successors in title, permitted assigns and substitutes;
- (f) a reference to a person includes a natural person, body corporate, partnership, trust, association or any other entity;
- (g) a reference to a statute, ordinance, code or law includes regulations, rules and other instruments under the statute, ordinance, code or law and any consolidations, amendments, re- enactments or replacements;
- (h) a word or expression defined in the Corporations Act 2001 (Cth) has the meaning given to the word or expression in the Corporations Act 2001 (Cth);
- (i) the meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar expressions;
- (j) any agreement, representation, guarantee, warranty or indemnity by two or more parties binds those parties jointly and severally;
- (k) any undertaking by a party not to do any act or thing will be deemed to include an undertaking not to permit or suffer the doing of that act or thing;
- (l) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of these T&Cs; and
- (m) if a day on or by which an obligation must be performed or an event must occur is not a business day, the obligation must be performed or the event must occur on or by the next business day.
In these T&Cs:
“Claim” means any actual, contingent, present or future claim, demand, action, suit, prosecution or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise;
“Contract” means a contract formed as a result of the acceptance of an Order by the Supplier;
“Customer” means the organisation, company, individual, joint venture, partnership, trust or other such entity set out in any quotation, offer, invoice, Order, Contract or other document provided by the Supplier including but not limited to the customer defined in the execution clause of these T&Cs (or, in the absence of such information, the customer who placed the Order), and includes any authorised representative of the motor vehicle owner who may deliver or collect any vehicle or Goods from the Supplier’s Premises, or in the event of the Customer requiring a Loan Car, the individual authorised by the Supplier to utilise the Loan Car;
“Delivery Address” means the address for the delivery of the Goods and/or Services in a Contract or Order;
“Delivery Date” means the date for the delivery of the Goods and/or Services in a Contract; “Goods” means the goods the subject of an Order or Contract;
“Intellectual Property Rights” means any present or future rights conferred by statute, common law or equity in any part of the world in relation to any confidential information, copyright, trade marks, service marks, designs, drawings, technical information, documents, patents, circuit layouts, plant varieties, business names, domain names, inventions, trade secrets or other results of intellectual activity in any industrial, commercial, scientific, literary or artistic fields;
“Liability” means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees);
“Order” means any written or verbal order by the Customer to the Supplier for Goods and/or Services;
“Personnel” means any employee, servant, contractor, subcontractor, agent, authorised representative, partner, director or officer of a party;
“Price” means the price of the Goods and/or Services as nominated by the Supplier from time to time and any price stated on any Order, Contract or invoice;
“Services” means the services in a Contract and any services associated with the Goods;
“Supplier” means the entity that accepts the Order to supply Goods and/or Services to the Customer being JMAX Engineering Pty Ltd (A.C.N. 623 435 469) as the Trustee for JMAX Engineering Trust (A.B.N. 43 857 327 357);
“Supplier’s Premises” means 305 Warburton Highway, Wandin North, Victoria 3139;
“T&Cs” means these Terms and Conditions of Supply and Sale; and
“Website” means the website and domain name held by the Supplier accessible at https://jmaxengineering.com.au.
I/We, the undersigned Customer, hereby acknowledge that I/We have received, read and understood these T&Cs of the Supplier, and I/We hereby agree that we have had the opportunity to seek independent legal and financial advice prior to the execution of and consent to be bound by these T&Cs and associated documentation and I/We have sought such advice as considered relevant and necessary or otherwise have elected not to obtain such independent advice and I/We hereby agree to be bound by these said T&Cs.