Tuesday, 21 December 2021 – final day for interstate orders
Wednesday, 22 December 2021 – final day for QLD orders
Thursday, 23 December 2021 – final day for NSW orders
Ag Tyre Specialists Pty Ltd Terms & Conditions
ABN 19 649 848 331
Unless otherwise agreed in writing by the Seller (AG Tyre Specialists Pty Ltd Pty Ltd ABN 19 649 848 331), the Buyer agrees that it will be bound by these terms and conditions on and from the time the Buyer places an order with the Seller and it is accepted by the Seller. The Buyer Acknowledges and agrees the Seller is not bound by any terms and conditions contained in any document issued by the Buyer, irrespective of the timing of the issue of that document by the Buyer.
Once an order has been accepted by the Seller, it cannot be cancelled by the Buyer. The supply of
goods or services is subject to availability. The Seller reserves the right to suspend or discontinue
the supply of goods or services to the Buyer. If the Seller is unable to supply all of the Buyer’s order,
these terms and conditions continue to apply to any part of the order supplied.
Where a written quotation has been given by the Seller, the selling price is the price specified in the
quotation unless revoked or amended by the Seller in its discretion and these terms and conditions
apply to that sale. In any other case, the Seller’s selling price is the price specified in the price list as
at the date of despatch and again these terms and conditions apply.
Unless otherwise stated, the selling price does not include GST. The Seller may at any time change
its price list to reflect, among other things, changes in exchange rates or the imposition of any duties,
levies or other taxes and the Buyer is bound by those changes. The Seller may charge a reasonable
handling fee for any orders delivered to the Buyer in addition to the sale price. The Buyer must accept
any errors or omissions in invoicing and, where applicable, the Buyer must accept the amended
pricing and pay the difference within the approved terms of trade.
Unless otherwise agreed in writing by the Seller, delivery is at the Seller’s premises and is taken to
have occurred when the goods are made available for collection and that availability is notified to the
Buyer by the Seller. If a delivery date is specified, that date is an estimate only and the Seller is not
liable for any delay in making the goods available for collection by that date. Time is not of the
essence in relation to delivery and the Buyer must accept delivery and pay for the goods delivered
including transport costs, if applicable, even if they are delivered after any specified delivery date.
To the fullest extent permitted by law the Buyer indemnifies the Seller from and against any and all
loss, cost or damage caused to the Seller’s premises or otherwise suffered by the Seller (including
built not limited to business interruption) as a direct or indirect result of the Buyer, or any agent,
distributor, contractor or employee of the Buyer collecting or attempting to collect the goods.
The Buyer must inspect the goods or services immediately following the time at which they are made
available for collection or completion of the services (as the case may be). The Buyer may only return
goods with the prior approval of the Seller, which may be withheld in the absolute discretion of the
Seller. If approved for return by the Seller, the goods must be returned within 10 business days of
the date of delivery in an unsoiled, undamaged and resaleable condition and, where appropriate, in
the original packaging. A reasonable handling fee for any returned goods will be charged to the Buyer
If the Buyer fails to collect the goods within 10 business days of the goods having been made
available for collection then the goods will be taken to have been accepted by the Buyer in their then
present condition and the Buyer will be indebted to the Seller for the full value of the goods without
set-off or counter claim. If the goods are not collected by the Seller within 10 business days of
having been made available for collection the Seller may proceed to sell the goods or otherwise deal with
the goods in whatever fashion it elects without affecting the indebtedness of the Buyer to the Seller.
Any claim that the goods or services are not in accordance with these terms and conditions (including
if they are defective, damaged during delivery, are short delivered or services not as per contract)
must be made at the time of delivery/services provided or in writing to the Seller within 48 hours
after delivery of the goods/completion of the services to the Buyer. If the Buyer fails to make a claim then,
to the extent permitted by law, the goods or services are deemed to have been accepted by the
Buyer and the Buyer must pay for the goods or services in accordance with these terms and
conditions.
Should the Seller be required to store the goods on behalf of the Buyer, at the Seller’s premises, the
Buyer shall be responsible for insurance coverage of the goods in the event of full or partial loss,
however caused.
Unless otherwise agreed, if the Buyer has an approved credit account with the Seller, the Buyer must pay for goods or services ordered by the Buyer in accordance with the terms agreed by the Seller or earlier if the approved credit limit is exceeded or if no terms are agreed, 30 days from the end of month of invoicing. The Seller may charge an administration fee for any payments by credit card. Time is of the essence in respect of the Buyer’s obligation to make payment for goods or services supplied by the Seller to the Buyer.
If the Buyer does not make any payment by the due date, exceeds its credit limit at any time, commits
any other material breach of these terms and conditions or an insolvency event in respect of the
Buyer arises or is reasonably suspected by the Seller, the Seller may (without limiting any other right
or claim it may have against the Buyer) do any or all of the following:
Charge the Buyer interest calculated on a daily basis on any portion of the Buyer’s account that
is overdue at Westpac Banking Corporation’s reference rate for business loans, available to
prime commercial customers plus 5% calculated from the date the payment was due until the
date payment is made (both dates inclusive);
vary or withdraw any approved credit limit and/or terms of trade;
cancel or suspend any unfilled orders or cease providing the services;
terminate any contracts between the Seller and the Buyer and demand immediate payment of
any moneys due and outstanding under those contracts;
cancel any rebate, discount or allowance due or payable by the Seller as at the date of the
event;
enter (at any time) any premises in which the Seller’s goods (including any merchandising
materials) are stored, to enable the Seller to inspect the goods and to reclaim possession of the
goods without liability for the tort of trespass, negligence or payment of any compensation to the
Buyer whatsoever;
lodge a caveat, take a charge or other form of security interest or other similar instrument over
any property of the Buyer; or
institute any recovery process as the Seller in its discretion decides at the Buyer’s cost and
expense.
If any part of an invoice is in dispute, the balance will remain payable and must be paid when due.
The Buyer has no right to set-off any claim against the Seller from moneys owing to the Seller.
Goods supplied by the Seller to the Buyer are at the Buyer’s risk immediately on the earlier of the
goods being made available by the Seller for collection by the Buyer or otherwise if by agreement
delivered into the Buyer’s custody, including its carrier or forwarder then at the time the Goods are
removed from the Seller’s premises.The Buyer must:
insure the goods at its cost from delivery of the goods until they are paid for in full against such
risks as are usual or common to insure against in a business of a similar nature to the Buyer; and
ensure that the insurance covers the Seller for its rights and interests.
Property and title in the goods supplied by the Seller to the Buyer does not pass to the Buyer until
those goods have been paid for in full without set-off or counter claim. In the meantime, the Buyer
takes custody of the goods and retains them only as fiduciary agent and bailee of the Seller.
Until goods have been paid for in full:
to the extent possible, the Buyer must store the goods in a manner that shows clearly they are
the property of the Seller, maintain records relating to the goods, secure the goods from risk,
damage and theft and ensure that the goods are kept in good and serviceable condition;
the Buyer may sell the goods, in the ordinary course of its business, but only as fiduciary agent
of the Seller. The Buyer must not represent to any third party that the Buyer is acting in any
capacity for or on behalf of the Seller and the Buyer has no authority to bind the Seller to any
contract or otherwise assume any liability for or on behalf of the Seller. The Buyer receives all
proceeds (including any proceeds from insurance claims) in trust for the Seller and must keep
the proceeds in a separate bank account until all liability to the Seller is discharged;
if the Buyer uses the goods in some manufacturing or construction process of its own or of a
third party, the Buyer must hold on trust for the Seller that part of the proceeds of the
Manufacturing or construction process as is equal to the amount owing by the Buyer to the Seller
at the time of receipt of the proceeds.
The Buyer:
acknowledges that the Seller has:
a security interest under the Personal Property Security Act 2009 (Cth) (PPS Act)
in any goods supplied by the Seller; and
an interest in the proceeds of the insurance referred to in clause 9.
agrees that the Seller may register (either or both) financing statements and financing change
statements under the PPS Act in respect of the goods and insurance proceeds referred to in
clause 11(a);
agrees to provide such assistance as may be required by the Seller from time to time for the
registrations referred to in clause 11(b); and
irrevocably appoints (for valuable consideration) the Seller (or its nominee) to be the Buyer’s
attorney to execute, sign, seal, and deliver all documents for the registrations referred to in
clause 11(b).
The Buyer agrees that:
any purchase by it on credit terms from the Seller or retention of title supply pursuant to this
clause 12 will constitute a purchase money security interest (PMSI) as defined under section 14
of the PPS Act;
the PMSI granted herein will continue to apply to any goods hereafter acquired or proceeds of
sale arising from the sale of any of the goods supplied by the Seller under these terms and
conditions;
the Seller will continue to hold a security interest in goods presently or hereafter acquired by the
Buyer in accordance with and subject to the PPS Act, notwithstanding that the goods may be
processed, commingled or become an accession with other goods.
The Buyer agrees to waive its right to receive:
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 the Seller;
a notice of the Seller’s proposal to remove personal property that has become an accession in
accordance with section 95 of the PPS Act;
a notice of the Seller’s proposal to dispose of any personal property under section 130 of the
PPS Act;
a notice of the Seller’s proposal to retain any personal property under section 135 of the PPS
Act;
details of any amounts paid to other secured parties in a statement of account provided by the
Seller under section 132(3)(d) of the PPS Act; and
a statement of account under section 132(4) of the PPS Act.
The Buyer agrees that:
The Seller is under no obligation to dispose of or retain any secured property seized by it within
a reasonable time under section 125 of the PPS Act;
Following a default, the Buyer has no rights to redeem the secured property under 142 of the
PPS Act; and
The Buyer has no rights to reinstate this agreement following a default under section 143 of the
PPS Act.
Except if section 275(7) of the PPS Act applies, the Buyer agrees not to disclose any information of
the kind referred to in section 275(1) of the PPS Act that is not publicly available and agree not to
request that such information is disclosed. The Seller also agrees to maintain confidence of
information in accordance with this clause 9.9.
Clauses 11, 12, 13, 14 and 15 will survive the termination of the Contract to the extent permitted by
law.
Where the Buyer is a Consumer for the purposes of the Competition and Consumer Act 2010
(Australian Consumer Law) the Seller’s liability for the failure to comply with a guarantee required
under the Australian Consumer Law is limited as follows:
if the failure cannot be remedied or is a major failure as defined in the Australian Consumer Law
(a Relevant Failure), the Seller’s liability is as stated in the Australian Consumer Law in
respect of that Relevant Failure;
if such failure is not a Relevant Failure, then in the Seller’s absolute discretion:
if the failure is in respect of services, the Seller’s liability is limited to the supply of those
services again or the payment of the cost of having those services resupplied;
if the failure is in respect of Goods, the Seller’s liability is limited to replacement of the
Goods, the supply of equivalent goods, the repair of the Goods or the cost of replacing the
Goods or having them repaired.
Subject to clauses 13 and 15, for all other liability arising from the performance or failure to perform
this agreement, whether in contract, tort, negligence, strict liability or otherwise, then to the extent
permitted by law, the Seller’s liability is limited to at the Seller’s option:
In the case of Goods:
replacement of the Goods or the supply of equivalent goods;
payment of the cost of replacing the Goods or of acquiring equivalent goods, by credit to
the Buyer’s account, in cash or by cheque at the Seller’s discretion; or
repayment of any part of the purchase price of the Goods which has been paid by the
Buyer, by credit to the Buyer’s account, in cash or by cheque at the Seller’s discretion.
In the case of advice, recommendations, information or services by supplying the advice
recommendations, information or services again.
Buyer acknowledges and agrees it must use the Goods in strict accordance with the manufacturer’s
technical and/or other specifications for any warranty in accordance with the manufacturer’s warranty,
to be applicable and that any failure to do so may void any warranty issued by the Seller and/or the
manufacturer together with any liability of the Seller generally or at all.
To the extent permitted by Law, the Seller 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) the Seller’s negligence, default, breach of contract
or misconduct even if informed of the possibility of such damages.
The application of the United Nations Convention on Contracts for the International Sale of Goods
(known as the Vienna Sales Convention 1980) is excluded.
If any provision of these terms or conditions is unenforceable, illegal or void, that provision is severed and the
other provisions of these terms and conditions remain in force.
The Buyer acknowledges and agrees the Seller may be required from time to time to share with its
suppliers, including but not limited to Michelin, various details in respect of its sales of the goods,
including but not limited to sales of the goods to the Buyer and the Buyer irrevocably consents to
such disclosures by the Seller.
The Seller may in its discretion and at any time amend or vary these terms and conditions by notifying
the Buyer in writing of the amendment or variation.
The laws of New South Wales, Australia apply to these terms and conditions, and any account
opened in the name of the Buyer. The parties irrevocably submit to the jurisdiction of the courts of
New South Wales in respect of all claims, proceedings and matters arising out of or in respect of
these terms and conditions.
The exemptions, limitations, terms and conditions in these terms and conditions shall apply whether
or not any loss or damage is caused by negligence or actions constituting fundamental breach of
contract.
