Terms & Conditions

Application

All orders incorporate these terms and conditions of sale (“Terms”) and the placing of an order with JES Family Pty Ltd ACN 159 911 207 t/as Truracks Western Towbars & Bullbars by the customer (“Customer”) is deemed to be acceptance of these Terms by the Customer even if the Terms are not attached to or referred to in such order.

Acceptance

Truracks quotations and pricelists are not an offer by Truracks. All orders are only binding once they are accepted by Truracks (which may be done in writing, verbally or by Truracks commencing to fulfill the order) and once accepted a contract arises (“Contract”). To the fullest extent permitted by law, if the Customer includes any terms or conditions with their order that are inconsistent with or additional to the Terms, then those inconsistent or additional terms and conditions do not apply to the Contract unless accepted by Truracks in writing.

Cancellations and Variations

No variations to the Terms or the Contract are binding unless accepted by Truracks in writing. Subject to any variations permitted under the Terms, Truracks may vary the Terms from time to time and in that case the variation applies to all new orders after the Customer is notified of such variation. The Customer cannot cancel the Contract without the written consent of Truracks. In addition to any rights of termination, Truracks may cancel the Contract at anytime before the relevant goods or services are provided without having any liability to the Customer except for refunding any deposit paid to the Customer in respect of any goods or services not provided.

Payment, Merchant Fees and GST

Unless otherwise agreed by Truracks in writing, all payments by the Customer are due within 30 days from end of the month. Unless otherwise specified in the Contract, all amounts are stated to be exclusive of goods and services tax (“GST”) and therefore GST must be added to the amount and is payable at the same time as the amount is payable. If any payment is made by credit card then Truracks may also charge and deduct from the credit card any merchant fees that apply. All times for payment are of the essence.

Interest

The Customer must pay to Truracks interest on all overdue amounts at the general interest charge (GIC) rate as published by the Australian Taxation Office for the relevant period of time, calculated daily on the relevant unpaid amount.

Indemnity and Legal Costs

To the fullest extent permitted by law, the Customer indemnifies Truracks from and against all claims, suits, proceedings, actions, demands, litigation, judgments, losses, costs (including all legal costs and disbursements on a full indemnity basis and all debt collection agency fees on a full indemnity basis), damages, interest, charges, expenses and all other liabilities of every kind, suffered or incurred by Truracks arising from or relating to any breach of the Terms or the Contract by the Customer.

Suspension

If the Customer breaches the Contract then in addition to and without prejudice to any other rights or remedies of Truracks (including exercising a right of termination after suspension), Truracks may suspend the performance of its obligations until such breach is rectified and: (a) to the fullest extent permitted by law, Truracks is not liable to the Customer for any loss or damage of any kind suffered or incurred by the Customer arising from or relating to such suspension; and (b) Truracks is entitled to a reasonable extension of any timeframe applicable to its obligations arising from or relating to such suspension.

Termination

If the Customer or Truracks: (a) has a receiver, receiver and manager, administrator, liquidator, provisional liquidator or any form of external controller appointed to or over it or in respect of any of its assets; (b) becomes bankrupt, insolvent or is wound-up; (c) has a resolution passed for its winding-up, commits an act of insolvency or bankruptcy, or has an application or order made to a court for its winding-up; (d) enters into any scheme, compromise or arrangement with its creditors; (e) breaches an essential term of the Contract; (f) breaches a term of the Contract that is not capable of remedy; or (g) subject to the foregoing, breaches a term of the Contract that is capable of remedy but is not so remedied within 14 days of written demand; then the other party by written notice may terminate the Contract immediately.

Effects of Termination or Completion

Termination or completion of the Contract does not affect any provision of the Contract expressed or capable of operating or having effect subsequent to termination or completion and is without prejudice to any accrued right or remedy of a party in relation to any breach by the other party occurring prior to termination or completion.

Risk and Title

Notwithstanding that the risk of loss or damage in the goods passes to the Customer upon the earlier of delivery to, or collection by or on behalf of, the Customer, title to the goods remains with Truracks until all monies owing by the Customer to Truracks in respect of the Contract have been paid in full.

Security Interest

The Customer acknowledges and agrees that Truracks interest in the goods under the Contract is a Security Interest, and secures the payment of all monies and the performance of all obligations owing or assumed by the Customer under the Contract. The Security Interest extends to all proceeds of the goods and is effective and attaches to the goods immediately after the Customer acquires any right or interest in the goods. Truracks may take all steps as it considers appropriate to register, amend or remove the registration of, protect, perfect or record its Security Interest in the goods or to better secure its position in respect of the Contract under the PPS Law. In respect of the PPS Law, the Contract and all quotations and invoices issued to, and all orders placed by, the Customer applicable to the Contract constitute a “security agreement” for the purpose of the PPS Law. For the purpose of s115 of the PPS Law, to the fullest extent permitted by law, the Customer and Truracks have agreed to contract out of ss95, 117, 118, 120, 121(4), 125, 128, 129, 130, 132(3)(d), 132(4), 134, 135, 142 and 143 of the PPS Law, and to contract out of all matters permitted to be contracted out of pursuant to s115(7) of the PPS Law. To the fullest extent permitted by law, the Customer hereby waives its rights to receive any notice under s157 of the PPS Law pursuant to s157(3)(b) of the PPS Law. In this clause: PPS Law means the Personal Property Securities Act 2009 (Cth) and the regulations thereunder; Security Interest has the same meaning as that term has in the PPS Law.

Customer Warranty

The Customer warrants that it will use the goods in compliance with all instructions accompanying the goods.

Limitations of Liability

To the fullest extent permitted by law but subject always to the terms of the Australian Consumer Law to the extent that the Australian Consumer Law cannot be modified or excluded in the Terms: (a) Truracks is not liable for any consequential, special, incidental or other indirect loss or damage of any kind, or for any exemplary or punitive damages, irrespective of whether or not Truracks was made aware of the possibility of such loss or damage; (b) all implied warranties, terms and conditions in relation to the obligations of Truracks including those implied by or arising from usage, trade or custom are hereby excluded; (c) any drawings, descriptions, weights or dimensions given by or on behalf of Truracks are approximate only and intended merely as a general guide and Truracks will not be liable for any error or omission therein or for any reliance upon same; and (d) subject to all of the foregoing, Truracks maximum total liability to the Customer for breach of its obligations to the Customer in contract, tort (including negligence), equity or otherwise are at the option of Truracks limited to: (i) in the case of goods, repairing or replacing the goods, paying for the cost of repairing or replacing the goods, or refunding the price paid for the goods; and (ii) in the case of services, resupplying the services, paying for someone else to supply the services, or refunding the price paid for the services.

Australian Consumer Law

If the Customer acquires goods and/or services from Truracks as a “consumer” within the meaning of that term in the Australian Consumer Law, then the following applies:

Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

• to cancel your service contract with us; and
• to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

Intellectual Property

All intellectual property rights of every kind in respect of the goods or services remain the sole property of Tru-racks and the Customer receives no right, title or interest in same.

Delivery and Collection Dates

All delivery and collection dates are approximate only, are not of the essence, and are subject to change by Tru-racks (including due to force majeure). To the fullest extent permitted by law, Tru-racks is not liable to the Customer for any loss or damage of any kind suffered or incurred by the Customer arising from or relating to any delay in delivery or collection for any reason. The Customer cannot terminate the Contract or refuse to accept delivery or collection arising from any delay in delivery or collection.

Sale of Goods Act

To the fullest extent permitted by law, the United Nations Convention on Contracts for the International Sale of Goods including under the Sale of Goods (Vienna Convention) Act 1986 (NSW) is hereby excluded.

Assignment and Subcontracting

The Customer cannot assign or novate its rights or obligations under the Terms or the Contract without the prior written consent of Truracks. Truracks may subcontract, assign or novate its rights or obligations under the Terms or the Contract without the consent of the Customer.

Force Majeure

If Truracks is partially or wholly delayed, hindered or prevented from providing the goods or services arising from or relating to an event beyond Truracks reasonable control (including pandemics, epidemics, riots, wars, terrorism, civil commotion, malicious damage, strikes, industrial disputes, acts of God, compliance with any law or governmental order, rule, regulation or direction, accident, fire, flood, storm, or default of suppliers or subcontractors), and the relevant event continues for more than 60 days then either Truracks or the Customer may terminate the Contract and without Truracks having any liability to the Customer except for refunding any deposit paid to the Customer in respect of any goods or services not provided.

Governing Law

The Terms and the Contract are governed by and interpreted according to the laws of New South Wales and Truracks and the Customer consent and submit to the jurisdiction of the courts of New South Wales and of the Commonwealth of Australia. To the fullest extent permitted by law, the laws and courts of any other Australian State or Territory do not apply to the Terms or the Contract and this applies irrespective of where the Contract was entered into.

Miscellaneous, Definitions and Interpretation

Australian Consumer Law means the Australian Consumer Law that forms part of the Competition and Consumer Act 2010 (Cth). If any part of the Terms or the Contract is unenforceable in part or whole then it is to be severed to the extent of the unenforceability without affecting the remainder of the Terms or the Contract. Unless the context otherwise requires, the words “includes” or “including” are not words of limitation. Headings and holdings are for convenience only and do not affect the interpretation of the Terms. A reference to any legislation includes all legislation varying, consolidating or replacing it. All references to dollars are to the lawful currency of Australia. An agreement on the part of, or in favour of, two or more persons, binds them or ensures to their benefit jointly and severally. No rule of construction applies to the disadvantage of Truracks because they were responsible for the preparation of the Terms or the Contract or any part of them. The Terms and the Contract express and incorporate the entire agreement between Truracks and the Customer in relation to the subject matter of the Terms and the Contract and supersede and exclude all prior or collateral negotiations, understandings, communications, agreements and representations in respect of that subject matter.