Terms and Conditions
1.
Conditions
1.1
These Terms
and Conditions shall govern the purchase of any product including but not
limited to a harness racing sulky and its associated products from Bolt Sulky
Innovations Pty Ltd ACN 600 739 491 ("Goods"). Unless otherwise agreed by Bolt
Sulky Innovations Pty Ltd ACN 600 739 491 ("the Seller", "Bolt Sulky
Innovations Pty Ltd", "us", "our", "we") in writing, you ("the Buyer", "your") agree
that if you place an order with us and we accept this order, you will be bound
by these Terms and Conditions. We will not be bound by any other Terms and
Conditions.
1.2
Please
read the Terms and Conditions thoroughly before purchasing any Goods, as your purchase
of any Goods from us is subject to these Terms and Conditions.
2.
Disclaimer
2.1 To
the extent permitted by law, we make no representations or warranties (express
or implied) regarding the fitness for purpose of any Goods, except those which
are provided for in the Australian Consumer Law (where applicable). We also
make no representations or warranties (express or implied) regarding the
accuracy of any information which we provide, either verbally or on our
website.
3.
Payment Terms
3.1 An
order, either verbally or in writing, for the Goods ("Purchase Order") from you
shall be deemed to be an offer by you to purchase the Goods which we provide. Acceptance
of your offer will occur when you receive verbal or written acknowledgement
from us.
3.2 All
Purchase Orders must be paid for in full before the Goods will be despatched by
us.
3.3 Each
Purchase Order constitutes a separate Agreement for the provision of Goods described
in the Purchase Order ("Supply Agreement"). The terms of each Supply Agreement
consists of our quotation (if any), the Purchase Order and these Terms and Conditions.
All other terms or conditions including those in your offer are excluded,
unless agreed in writing at the time of acceptance.
3.4 We
will supply the Goods according to our standard published prices which may vary
from time to time.
3.5 We
reserve the right to make any changes necessary to the price to cover any cost
variation, including (but not limited to):
(a)
any act or omission on your part or the part of
your agents;
(b)
to correct any typographical or clerical errors
which may be present in the prices, deliveries or specifications in any offer
quoted in the Purchase Order; and
(c)
to cover our costs for any increases in the cost
of raw materials, components, labour rates, etc.
4.
Tax
4.1 Unless
otherwise stated, all quoted prices do not include sales tax, goods and services
tax or any other tax, duty or impost levied over the Goods in Australia or
elsewhere. All such taxes, duties and
imposts will be added to the price at the designated rate unless, in the case
of Australian sales tax (where it is applicable), a tax exemption number is
stated or exemption certificate is provided at the time of order.
4.2 If
GST is imposed in Australia on any supply made under or in connection with this
Agreement, we may recover from you an amount on account of GST. This amount
will be in addition to the price or any other amount or consideration payable
under this Agreement and to be calculated by multiplying the price or any other
amount or consideration payable by you for the relevant supply, by the
prevailing GST rate. Any amount on account of GST recoverable from you under
this clause, shall be calculated without any deduction or set-off of any other
amount and is payable by you upon demand by us, whether such demand is by means
of an invoice or otherwise.
4.3 Unless
stated otherwise, all prices or other amounts quoted in the Purchase Order are
in Australian Dollars (AUD$).
5.
Validity
5.1 Unless
otherwise stated, quotations are open for a period of fourteen (14) days from
the date of quotation and thereafter are subject to confirmation before acceptance.
We reserve the right to withdraw, either verbally or in writing, any quotation
prior to acceptance of your offer.
6.
Delivery
Dates
6.1 All
reasonable endeavours will be made to deliver Purchase Orders approximately 6
weeks after the Purchase Order is paid for in full by you.
6.2 Unless
warranted in writing by us to the contrary, delivery dates are approximate only
and although we will make every reasonable and best endeavour to deliver the
Goods in the Purchase Order by the estimated delivery date, any failure by us
to deliver by any particular date will not entitle you to cancel the Agreement
or void any of these Terms and Conditions or claim compensation. For the
avoidance of doubt, any dates given for delivery are stated in good faith but
are not to be treated as a term of this Agreement.
6.3 Where
we warrant in writing to guarantee a delivery date, to the extent permitted by
law, we will not be liable for failure to fulfil or delays in fulfilling the
order where fulfilment is prevented, delayed or hindered by strikes, lockouts,
accidents, shortages, of material or labour, shipping delays, wars or any other
cause (whether similar or dissimilar) beyond our control.
6.4 All
delivery dates are dependent upon the timely receipt by us of your Purchase
Order and payment, as well as receipt by us of all necessary particulars
required for production and delivery of the Goods.
6.5 Goods
must be signed for upon delivery, unless we are notified to the contrary, in
writing.
7.
Part
Deliveries
7.1 We
reserve the right to despatch part of the Purchase Order and you will be
invoiced in respect of such delivery in accordance with the payment terms set
out herein.
8.
Packing,
Crating, Transport and Insurance
8.1 Unless
stated otherwise in writing, the price of the Purchase Order includes packing
and crating in accordance with our standard practice. Any other packing or crating requested by you
or deemed necessary by us will be payable by you.
8.2 Unless
stated otherwise in writing, the quote includes our price for transport,
insurance and unloading costs. You must pay these costs prior to the despatch
of the Goods.
9.
Retention
of Title
9.1 Until
the Purchase Order is paid in full, ownership of the Goods remains with us.
Title to the Goods for each separable portion shall pass to you on the full
payment price of each Purchase Order.
9.2 Notwithstanding
the foregoing or anything to the contrary contained in this Agreement, until
payment is made by you to us in full, the parties agree:
(a)
We take
a security interest under the Personal Property and Security Act 2009 (Cth) ("PPSA")
in:
(i)
all
present and after acquired Goods including any services supplied by us in
connection with the provision of those Goods;
(ii)
any
proceeds of any sale of the Goods in accordance with clause 10.3 and
(iii)
any
proceeds of the insurance referred to in clause,
(iv)
to
secure (with equal priority) payment of all amounts that you owe us; and
(v)
the
security interest will continue until you have paid all amounts owing to us in
accordance with clause.
9.3
You:
(a)agree that we may register (either or both) financing statements and
financing change statements under the PPSA in any Goods supplied by us to you;
(b)
will
promptly sign any further documents, provide any further information, or do any
other things that we reasonably require at your own expense to enable us to
perfect and maintain the perfection of our security interest (including by
registering a financing statement or financing change statement); and
(c)indemnify (and if requested reimburse) us for all expenses that we
incur in registering a financing statement or financing change statement or
releasing Goods charged by the statement; and
(d)
will not
register or permit to be registered a financing statement or a financing change
statement in any goods in which we have a security interest without our prior
written consent; and
(e)will give us 14 days' prior written notice of any change in your name,
business practice or any other details, and use your best endeavours to ensure
that any applicable financing change statement is registered disclosing your
new details.
9.4
You
agree to waive your right to receive:
(a)
a
verification statement confirming registration of a financing statement or a
financing change statement relating to any security interest arising in
connection with the supply of present and acquired goods from us;
(b)
a notice
of our proposal to remove personal property that has become an accession in
accordance with section 95 of the PPSA;
(c)
a notice
of our proposal to dispose of any personal property under section 130 of the
PPSA;
(d)
a notice
of our proposal to retain any personal property under section 135 of the PPSA;
(e)
details
of any amounts paid to other secured parties in a statement of account provided
by us under section 132(3)(d) of the PPSA; and
(f)
a
statement of account under section 132(4) of the PPSA.
9.5
You
agree that:
(a)
we are under no obligation to dispose of or
retain any secured property seized by us within a reasonable time under section
125 of the PPSA;
(b)
following
a default, you have no rights to redeem the secured property under 142 of the
PPSA; and
(c)
you have
no rights to reinstate this Agreement following a default under section 143 of
the PPSA.
9.6 This
clause 9 will survive the termination of the Agreement to the extent permitted
by law..
10.
Shortage
in Delivery or Damage or Loss in Transit
10.1 If
on delivery there are shortages in the quantity of Goods delivered under the
Purchase Order, or if there is any breakage or loss of Goods, you must advise
us and the carrier within 72 hours of receipt of the consignment. In the event of non-delivery of a consignment
both we and the carrier must be notified in writing.
11.
Force
Majeure
11.1 We
shall not be liable for any failure to deliver, or delay in the delivery of the
Goods due to any cause beyond our reasonable control, including but not limited
to acts of God, acts of civil or military authority, fires, epidemics, floods,
riots, wars, sabotage, labour disputes, governmental actions or inability to
obtain materials, components, energy, manufacturing facilities, or
transportation. In the event of any such
delay, the date of delivery or performance hereunder shall be extended by a
period equal to the time lost by reason of such delay. In the event our production is curtailed for
any of the above reasons, we may allocate its production among our various
customers.
12. Risk
12.1 The
risk of loss of or damage to the Goods outlined in the Purchase Order will pass
to you on despatch. You must, at your own expense, effect full insurance on any
Goods in the Purchase Order against any loss or damage from such time that the Goods
are at your risk from despatch of the Goods from our principal place of
business or our other place of manufacture, to the transport provider.
12.2 Should
you elect in writing not to insure the Goods from the time of despatch you do
so at your own risk and we are not responsible for any damage or loss which
occurs once any Goods under the Purchase Order have been despatched. You
indemnify us to the fullest extent permitted by law for any loss or damage
suffered to the Goods as a result of your failure to insure the Goods from the
date of despatch from our principal place of business or our other place of
manufacture.
13.
Guarantees
13.1 In
respect of the Goods purchased by you, you may be entitled to the benefit of the
guarantees/warranties provided under the Australian Consumer Law in respect of
those Goods. However, you acknowledge
that any guarantee and/or warranty excludes the following:
(a)
replacement or repairs which are required as a
result of improper use of Goods by you or a third party;
(b)
damages arising from any act or omission by
you where your act or omission has
caused the Goods to become of unacceptable quality; and
(c)
damages arising from a situation where you have
failed to take reasonable steps to prevent the Goods from becoming of
unacceptable quality.
14.
Warranties
Non-consumer
14.1
This
clause applies if you are not a "Consumer" (as that term is defined under the
relevant part of the Australian Consumer Law).
14.2
If the Goods provided by us to you are not substantially
in accordance with the requirements of the Agreement between the parties,
excluding minor omissions or minor defects which do not substantially affect
normal use of the Goods, you must promptly advise us within 72 hours from the
time upon which you noticed that the Goods are not substantially in accordance
with the Agreement between us and you.
14.3
Any Goods
which have been rejected by you will be repaired or replaced by us on a
discretionary basis. If the Goods are rejected by you, you must provide a
notice which must state the reasons for the rejection. If such a notice is not
provided, we will not be obliged to repair or replace the rejected Goods.
14.4
If there
is a breach by us of any warranty provided by us in relation to the Goods, we
will do one or more of the following at our absolute discretion, which will be
your sole remedy in respect of such breach:
(a)
replace the Goods or supply of equivalent Goods;
or
(b)
repair the Goods; or
(c)
pay the cost of replacing the Goods or of
acquiring equivalent Goods; or
(d)
pay the cost of having the Goods repaired.
14.5
If you
have not made a claim within the relevant period, we will not be liable for the
defect, breach or non-conformance of the Goods at a later date.
14.6
The cost
of returning any defective Goods
to us shall be borne by you.
14.7 We
do not warrant the accuracy, sufficiency or completeness of any information
provided by you. Liability for any loss or damages arising out of information
provided by you remains your sole liability and you indemnify us to the extent
that we suffer or incur any loss, damages, cost, expense or liability arising
out of the inaccuracy or incompleteness of such information.
14.8 For
the avoidance of doubt this clause does not apply to any damage due to a racing
incident or any other racing accident. This clause only applies to a defect in
manufacture or design.
Consumer
14.9 This clause applies if you are a
Consumer (as that term is defined under the relevant part of the Australian
Consumer Law).
14.10 If
there is a breach by us of any warranty provided, you are entitled to a
replacement or refund for a Major Failure and compensation for any other
reasonably foreseeable loss or damage.
You are also entitled to have the Goods repaired or replaced if Goods
fail to be of Acceptable Quality and the failure does not amount to a Major Failure.
14.11 If
there is a breach by us of any warranty provided by us in regard to the Goods
provided under this Agreement then we will:
(a)
repair or replace the Goods or relevant parts; or
(b)
where we determine that it is not feasible to
repair or replace the Goods, we will refund
to you the amount invoiced for the Goods.
14.12 To
claim the warranty you must write to us within the relevant Goods warranty
period under the Australian Consumer Law, specifying the nature of the defect,
breach or non-conformance. All written correspondence must be sent to:
Bolt
Sulky Innovations Pty Ltd ACN 600 739 491
Lot
18, Collingridge Point,
Berowra
Creek, NSW, 2082
14.13 If
you make a warranty claim in accordance with this clause, you will be
responsible for all expenses associated with the warranty claim other than the
costs of the repair, replacement, rectification or refund for the Goods or services, including the cost of
returning any defective Goods to
us.
14.14 We
do not warrant the accuracy, sufficiency or completeness of any information
provided by you. Liability for any loss or damages arising out of information
provided by you remains your sole liability and you indemnify us to the extent
that we suffer or incur any loss, damages, cost, expense or liability arising
out of the inaccuracy or incompleteness of such information.
15.
Exclusion
of Liability
15.1
To the
extent permitted by law and subject to clause 15.2, we will not under
any circumstances be liable for any contingent, indirect, consequential or
special losses (including but not limited to loss of profit or income, loss of
business opportunity, business interruption, increased expense of operation or
any financing and holding costs), damages or injuries arising directly or
indirectly from this Agreement or any performance or failure to perform this Agreement,
whether in contract, tort, negligence, strict liability or otherwise, including
(but not limited to) our negligence, default or misconduct even if informed of the
possibility of such damages.
15.2 If
you are a Consumer, our liability for the failure to comply with a guarantee
required under the Australian Consumer Law is limited as follows:
(a)
if the failure cannot be remedied or is a Major
Failure (a "Relevant Failure"), our liability is as stated in the Australian
Consumer Law in respect of that Relevant Failure;
(b)
if such failure is not a Relevant Failure and if
the Goods are not of a kind ordinarily acquired for personal, domestic or
household use, then in our absolute discretion, our liability is limited to:
(i)
replacing the Goods or supply of equivalent Goods;
or
(ii)
repairing the Goods; or
(iii) paying
the cost of replacing the Goods or of acquiring equivalent Goods; or
(iv) paying
the cost of having the Goods repaired.
15.3 You
agree to indemnify us against all losses and expenses which we may suffer or
incur due to your failure to observe your obligations under these Terms and
Conditions; and any claims made against us by any third party arising out of
any act or omission by you in connection with these Terms and Conditions.
15.4 You
agree to release us from any liability whatsoever arising in connection with
any dispute between us and you as to whether any interest registered on the
Personal Property Security Register constitutes a valid security interest
capable of registration.
15.5 Notwithstanding
any other provision of this Agreement, including this clause, to the extent
permitted by applicable law, the limitations and exclusions stated in these Terms
and Conditions will apply regardless of whether liability arises from breach of
contract, tort (including but not limited to our negligence, default or
misconduct or the negligence, default or misconduct of our employees,
representatives or agents), by operation of law, or otherwise.
15.6 If
you are not a Consumer as defined under the relevant part of the Australian
Consumer Law, then to the extent permitted by law all causes of action against
us, arising out of or in connection with the supply of the Goods, shall expire
unless brought within twelve (12) months from the date of despatch of the Goods
to you from our principal place of business or our other place of manufacture.
15.7 In
no circumstances whatsoever will we be liable to you for any loss or damage to
the Goods after the expiration of the warranty period outlined in clause 15.6.
16.
Indemnity
and Release
16.1 We
warrant that the Goods have been approved by Harness Racing Australia (approval
number 714) and in accordance with rules 271 and 271A of the Australian
Harness Racing Rules. You agree to make all necessary enquiries in respect
of the approval to use the Goods in any proposed harness racing trials and race
meetings and agree to use the Goods in accordance with those approvals.
16.2 You
warrant that you use the Goods at your own risk and that you release us and
hold us harmless to the fullest extent permitted by law, from any loss or
damage resulting from your use of the Goods.
16.3 You
indemnify us to the fullest extent permitted by law against all actions, claims,
demands, losses, damages, costs and expenses which you may sustain or incur arising
from:
(a)
Loss, damage or injury from any cause to
property or person through use of the Goods in any way whatsoever
(b)
The negligent or improper use or misuse of the
Goods by yourself or anyone else;
(c)
Any personal injury sustained by any person using
the Goods however caused other than by the wilful or negligent act of us;
(d)
Any damage to the Goods arising from the use of
the Goods in a harness racing race, trial or racing incident or racing accident
16.4 You
acknowledge and agree that you will ensure that only parties licensed under the
relevant rules and legislation of Harness Racing Australia and its relevant
state bodies will use the Goods in harness racing races and trials and agree to
ensure all necessary insurances are obtained to cover any accidents or damage
to the Goods or injury to yourself or third parties in relation to you use of
the Goods. We will not be liable to you for any loss suffered as a result of
your failure to comply with this clause and you agree to indemnify us to the
fullest extent permitted by law against all actions, claims, demands, losses,
damages, costs and expenses which you or others may sustain arising from your
breach of this clause 16.4.
17.
Intellectual
Property
17.1 In
purchasing Goods from us, you acknowledge and agree that all intellectual
property rights in respect to the Goods or their manufacture (as applicable)
are owned exclusively by us, except for copyright in designs, specifications or
drawings provided by you.
17.2 You
must not without our prior written consent, decompile, disassemble, reverse
engineer, manufacture, duplicate or modify any of the Goods or components in
order to reproduce, copy or disclose or permit others to reproduce, copy or
disclose any of our designs, specifications or drawings.
18.
Bankruptcy,
Liquidation and Default
18.1 If
you default in due observance or performance of any or all of your obligations
herein or, if you are a person and die or commit an act of bankruptcy, or if
you are a company and you take or have taken against you any action for the
winding up or the placing of the company under official management, administration,
liquidation or receivership other than for the purposes of reconstruction, we
may without prejudice to any other rights herein or at law give notice to you
of our intention to do any or all of the following:
(a)
treat the Agreement as repudiated and sue for
breach;
(b)
suspend manufacture or delivery of the Goods;
(c)
claim the return of all Goods where title has
not yet transferred to you;
(d)
retain any security given or monies paid by you
and apply this against the assessed loss and damages incurred by us in performing
the contract; or
(e)
make all outstanding amounts immediately due and
payable.
19.
General
19.1
Headings
appear as a matter of convenience only and will not affect the interpretation
or meaning of the Agreement.
19.2
No
right, interest or obligation in this Agreement can be assigned or
subcontracted by you without our prior written consent. We may assign, sub-contract or otherwise
transfer any right, obligation or benefit under this Agreement, or any part
thereof, to any other party without your consent.
19.3
These
terms are subject to the laws of New South Wales and the parties submit to the
non-exclusive jurisdiction of the courts of New South Wales and the
Commonwealth of Australia.
19.4
Nothing
in this Agreement constitutes a joint venture, agency, partnership or other
fiduciary relationship between the parties.
19.5
These Terms
and Conditions may be amended or varied only by Agreement in writing, signed by
the parties.
19.6
Should
one of the provisions in these terms be or become entirely or partially
invalid, this shall not affect the validity of the remaining provisions.
19.7
Approval for use of our Bolt sulky in New Zealand is currently pending. Terms and conditions in relation to New Zealand sales will be finalised once appoval has been given.
20. Definitions
20.1 For
the purposes of these Terms and Conditions, "Major Failure" has the meaning defined in the Australian Consumer
Law.
20.2 For
the purposes of these Terms and Conditions, "Acceptable Quality" has the meaning defined in the Australian
Consumer Law.
