1. In these conditions:
“Customer” means any entity, including an incorporated or unincorporated business or an individual (and where the context permits its employees, agents and subcontractors) who acquires Goods or Services from Pirtek.
“Goods” means the products supplied by Pirtek to the Customer.
“Pirtek” means any entity lawfully trading under the Pirtek name and specified on either an invoice, order, tender document or credit application form, including Pirtek Fluid Systems Pty Ltd ABN 71 001 824 166, Pirtek OEM Pty Ltd ABN 43 123 752 563, or any entity which is a Pirtek Franchisee; and where the context permits, includes their employees, agents, subcontractors and assignees.
“Pirtek Franchisee” means any entity trading as a franchisee of Pirtek
“Services” means the services supplied by Pirtek to the Customer.
“Website” means www.pirtek.com.au
2. The Customer must pay to Pirtek all monies owing for the Goods and Services and associated charges, as set out in any invoice, order, agreement or tender document issued by or on behalf of Pirtek, unless otherwise agreed in writing.
3. An invoice will be issued to the Customer each time goods and/or services are supplied by Pirtek. Where the supply of goods and services have not been completed by each month end, or at such other stage of a particular supply when Pirtek reasonably determines it is appropriate to do so, a progress invoice may be issued to the Customer.
4. The Goods and Services are supplied subject to these Terms and Conditions, which shall prevail over all other conditions of the Customer’s order to the extent of any inconsistency, and which shall not be varied or waived unless agreed by Pirtek in writing. These Terms and Conditions apply whether or not the Customer has an account with Pirtek.
Goods Returns Policy
5. The Customer is not entitled to a refund if the Customer simply changes its mind and wishes to return any unused Goods or to cancel an order. Any request for a refund in those circumstances within 30 days of sale or order will be considered by Pirtek, but may be refused by Pirtek in its reasonable discretion. Where a refund in those circumstances is agreed by Pirtek in its discretion, a restocking fee of 15% of the value of those Goods will be charged to the Customer and deducted from any refund.
6. Pirtek will replace any Goods if:
a) Pirtek is satisfied that the Goods were defective in materials or in manufacture at the time of delivery of the Goods to the Customer; and
b) The Customer gives notice to Pirtek at the address shown on the front of the invoice or other delivery documentation or at the address otherwise notified to the Customer, within 7 days of receipt of the Goods, of the alleged defects in materials or in manufacture; and
c) The Customer actually returns the Goods to Pirtek at the expense of the Customer within 30 days of delivery, quoting invoice numbers.
The benefits to the Customer under this Replacement Policy are in addition to and are subject to any other rights and remedies which the Customer may have. If the Australian Consumer Law applies, the goods come with guarantees which cannot be excluded and which entitle the Customer to a refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. If the Australian Consumer Law applies you are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
Limitation of Liability
7. Subject to clauses 6 and 8 of these Terms and Conditions, and to the extent permitted by the Australian Consumer Law, the Customer has no claim against Pirtek for any damages whatsoever arising out of the purchase or the use of the Goods.
8. Assuming that the Goods or Services sold by Pirtek are not for personal, domestic or household purposes, Pirtek’s liability under any guarantee or warranty, whether express or implied by the Australian Consumer Law or other relevant legislation is limited to:
(i) in the case of goods, any one or more of the following:
a) the replacement of the goods or the supply of equivalent goods;
b) the repair of the goods;
c) the payment of the cost of replacing the goods or of acquiring equivalent goods;
d) the payment of the cost of having the goods repaired; or
(ii) in the case of services:
a) the supplying of the services again; or
b) the payment of the cost of having the services supplied again; or
(iii) in the case of a monetary claim in respect of goods;
a) the cost of replacing the goods;
b) the cost of obtaining equivalent goods; or
c) the cost of having the goods repaired, whichever is the lowest amount.
Exclusion of Warranties
9. Subject to conditions 6, 7 and 8, and subject to any statutory rights including under the Australian Consumer Law, Pirtek gives no warranties with respect to the Goods or Services supplied to the Customer. All warranties are excluded except where they are expressly given in writing by Pirtek, or except to the extent that any implied warranty cannot be excluded by law.
Use of Goods
10. (a) The Customer must only use the Goods for the purpose for which they were intended, and must comply with all legal requirements of use and all directions of use by Pirtek or by the manufacturer of the Goods, whether provided to the Customer or posted on the Goods.
(b) The Customer must only employ competent trained staff to use the Goods and must ensure that all persons using the Goods are suitably instructed in the safe and proper use of the Goods.
(c) The Customer must comply with all Occupational Health and Safety laws relating to the use of the Goods.
(d) The Customer indemnifies Pirtek against any claim whatsoever arising from the Customer’s improper use of the Goods, and any breach by the Customer of its obligations under this Agreement.
No Liability for Delay
11. Subject to any statutory rights including under the Australian Consumer Law, Pirtek will not be liable for any delivery delay or any non-delivery attributable to transport delays, unavailability of Goods or other products, lockouts, holiday periods, or any other cause whatsoever which is outside the control of Pirtek. Where part delivery of goods is made, payment will be made for those goods which are delivered.
Goods and Services for Oil Spills
12. Without limiting these terms and conditions, where Pirtek is providing goods and services at the request of a Customer specifically in respect of the cleanup of an oil spill, the Customer takes full responsibility in respect of the oil spill and indemnifies Pirtek in respect of any claim or prosecution by any party whatsoever in respect of the oil spill. The Customer acknowledges that in performing its tasks in relation to the cleanup of an oil spill, it may be unavoidable that Pirtek, whilst taking all due care, spills some further oil in the course of repairs and cleaning the oil spill, and the Customer indemnifies Pirtek in respect of any such spill and in respect of any contamination or consequential loss arising from that spill.
Rights in Relation to Goods
13. Pirtek reserves the following rights in relation to the Goods until all accounts owed by the Customer to Pirtek are fully paid:
(a) ownership of the Goods;
(b) to enter the Customer’s premises (or the premises of any associated company or agent or third party where the Goods are located) without liability for trespass or any resulting damage and retake possession of the Goods; and
(c) to keep or resell any Goods repossessed pursuant to (b) above.
If, before all accounts owing by the Customer to Pirtek are fully paid, the Goods are resold or products manufactured using the Goods are sold by the Customer, the Customer shall hold such part of the proceeds of any such sale as represents the invoice price of the Goods in a separate identifiable account as the beneficial property of Pirtek and shall pay such amount to Pirtek upon request. Notwithstanding the provisions above Pirtek shall be entitled to maintain an action against the Customer for the full purchase price of the Goods.
Personal Property Securities Act (Cth) (“PPSA”)
14. (a) The retention of title to the Goods by Pirtek until they are paid for, or the sale of any goods by Pirtek to the Customer on consignment, may create a Security Interest in the Goods. All terms in this clause have the meaning given in the PPSA; and “PPSA” includes all amendments to, regulations under, and legislation associated with, the Personal Property Securities Act.
(b) At the request of Pirtek, the Customer shall promptly execute any documents, provide all necessary information and do anything else required by Pirtek to ensure that any Security Interest which may be created under these Terms and Conditions in the Goods or their proceeds is enforceable, perfected and otherwise effective under the PPSA, and has priority over all other security interests in the Goods. Pirtek is authorised by the Customer to register its Security Interest in respect of the Goods in the PPS Register at any time.
(c) The Customer waives its rights under all sections of the PPSA which are referred to in Section 115 of the PPSA, to the extent permissible by law.
(d) The Customer waives its right to receive a notice of PPSR registration under Section 157 of the PPSA.
(e) Pirtek may in protecting its security interests rely on any rights which it has under statute or under this Agreement, in its discretion.
Risk on Delivery
15. The risk in the Goods passes to the Customer on delivery. The Customer must keep the Goods insured and in good condition and indemnifies Pirtek against any damage to or loss of the goods, however caused, after delivery.
Insolvency of Customer
16. In addition to non-payment by the Customer or other breach of these Terms and conditions, the Customer will also be in breach of these Terms and Conditions if the Customer becomes insolvent or passes a resolution concerning its bankruptcy, administration, receivership or liquidation, or enters into any form of external administration.
17. The Customer agrees that if the account is not paid by the due date, the account may be lodged with a mercantile agent for recovery, and in such circumstances the applicant will bear an account surcharge of minimum 5% to cover the agent’s commission. In addition the applicant agrees to bear all legal costs and disbursements incurred in the recovery of the debt.
18. Pirtek may charge interest on any overdue amount at a rate equivalent to 3.0% p.a. above the business overdraft interest rate of its principal banker, as determined and calculated by Pirtek. Such interest will be payable on demand by Pirtek and for so long as it remains unpaid will compound on a monthly basis.
19. The supply of the Goods and Services by Pirtek to the Customer is governed by the laws and courts of the state where the supply takes place.
20. These Terms and Conditions are not affected by any time or indulgence granted to the Customer by Pirtek.
21. Pirtek will comply with the Australian Privacy Principles. A copy of the Pirtek Privacy Statement and Policy is available on request or on the Website.
ALL PRICES QUOTED ARE SUBJECT TO CHANGE WITHOUT NOTICE