In this document the following terms have the following meanings:
Application means the application by the Customer to Bossco for commercial credit;
Bossco means Bossco Auto Parts & Accessories Pty Ltd ABN 54 1581 926 475 and its related bodies corporate (within the meaning of the Corporations Act 2001);
Contract means the contract referred to in clause 2.5;
Customer means the person identified as the customer in the Application or any person who purchases Goods from Bossco;
Goods means any goods, products, services or materials supplied or to be supplied by Bossco;
Terms and Conditions means these terms and conditions; and
Unless otherwise stated, an expression used or defined in the Privacy Act 1988 (Cth) (Privacy Act), Corporations Act 2001 or Personal Property Securities Act 2009 (Cth) (PPSA) has the same meaning in the Terms and Conditions.
2. Offer and Acceptance
2.1. The Customer can offer to purchase Goods from Bossco for the purchase price verbally or in writing (e.g. by placing an order) ( Offer).
2.2. Any Offer by the Customer constitutes acceptance of these Terms and Conditions.
2.3. Bossco may in its absolute discretion accept or reject the Customer’s Offer.
2.4. An Offer is accepted when the Customer receives written or verbal acceptance from Bossco or receives delivery of the Goods, whichever occurs first.
2.5. When an Offer is accepted by Bossco, the Contract will consist of any specific term(s) agreed in writing, these Terms and Conditions, any Warranty and any Application.
2.6. The Contract constitutes the entire agreement between Bossco and the Customer with respect to the Goods supplied under the Contract. All prior negotiations, proposals and correspondence are superseded by the Contract and these Terms and Conditions will in all circumstances prevail over the Customer’s terms and conditions of purchase (if any).
3. Payment Terms
3.1. The Customer must pay the purchase price listed on the invoice to Bossco on delivery of the Goods, or if a credit account has been granted with Bossco, payment terms are strictly thirty (30) days, unless otherwise stated in the contract, from the date of invoice and payment is due and payable on that date.
3.2. All representations made in the invoice are made on the basis that errors and omissions are excepted.
3.3. Unless Bossco otherwise notifies the Customer in writing, the price charged for the Goods is exclusive of any goods and services tax, sales tax, excise, duty and/or any identified or new taxes that come into existence after the effective date of these Terms and Conditions).
3.4. Where any goods and services tax, sales tax, excise, duty and/or any identified or new taxes apply to any supply made under these Terms and Conditions, Bossco may recover from the Customer an additional amount on account of those taxes.
4.1. Bossco may grant the Customer credit upon the Terms and Conditions on the basis of the Application and such other documents and information as may be required by Bossco.
4.2. Until Bossco grants the Customer credit by notice in writing, Bossco will only supply Goods to the Customer on the basis of cash in advance.
4.3. The granting of credit does not oblige Bossco to extend any particular amount of credit to the Customer.
4.4. The Customer must notify Bossco in writing if there is any change in the shareholding or ownership of the Customer or any material change in the Customer’s financial position.
4.5. The Customer acknowledges and agrees that the credit to be provided by Bossco is to be applied wholly and predominantly for commercial purposes.
5.1. The Customer is liable for all transport charges and/or transport insurance of the Goods unless Bossco agrees in writing otherwise. If such charges are paid by Bossco, those charges are not refundable if included in the purchase price in the event the Goods are later returned.
5.2. If Bossco accepts liability for transport charges and/or transport insurance, the Customer agrees to indemnify Bossco from any loss which occurs to the Goods during transport and/or delivery including any consequential loss.
5.3. Upon delivery of Goods by Bossco to the Customer, the Customer must sign a proof of delivery.
5.4. Bossco will make all reasonable efforts to have the Goods delivered to the Customer or the Customer’s designated agent as agreed between the parties (or if there is no specific agreement then at Bossco’s reasonable discretion), but Bossco will not be liable for:
(a) any failure to deliver or delay in delivery for any reason;
(b) any damage or loss due to unloading; or
(c) damage to property caused upon entering premises to deliver the Goods.
5.5. Bossco may deliver the Goods by separate instalments (in accordance with any agreed delivery schedule). Each separate instalment will be invoiced and paid in accordance with the provisions of the Contract relating to the Goods.
5.6. The Customer will inspect the Goods on delivery and must within seven days of delivery notify Bossco of any alleged defect, shortage in quantity, damage, or failure to comply with the description or quote. The Customer must afford Bossco an opportunity to inspect the Goods within seven days after notifying Bossco in accordance with this clause. If the Customer fails to notify Bossco within seven days of delivery of any alleged defect, shortage in quantity, damage, or failure to comply with the description or quote, the Goods will be deemed to be accepted by the Customer, free from defect or damage and to be in accordance with the Contract relating to the Goods.
5.7. Notwithstanding anything in clause 5.6, except as required by law, Bossco will be under no obligation to accept Goods returned for any reason.
6. Title and related matters
6.1. The legal and equitable title to the Goods will remain with Bossco and will not pass to the Customer until such time as full payment is received by Bossco from the Customer for all Goods supplied by the Bossco to the Customer and for all other moneys owed by the Customer to Bossco.
6.2. Until title to such Goods passes to the Customer, the Customer acknowledges and agrees that:
(a) the Customer holds the Goods as bailee for Bossco and that a fiduciary relationship exists between the Customer and Bossco; and
(b) the Customer must keep the Goods separate and in good condition as a fiduciary of Bossco, clearly showing Bossco’s ownership of the Goods and, must keep books recording Bossco’s ownership of the Goods and the Customer’s sale or other use of them in accordance with paragraphs 6.4 and 6.5. The Customer if required, must deliver the Goods up to Bossco.
6.3. If the Customer defaults, in addition to clause 6.2(a), Bossco may take possession of the Goods wherever the Goods are located and the Customer agrees that representatives of Bossco may enter upon the Customer’s premises, or any premises where the Goods are situated as the invitee of the Customer, for that purpose.
6.4. Despite paragraph 6.1, the Customer may sell, as fiduciary agent for Bossco, the Goods to a third party in the normal course of the Customer’s business provided that where the Customer is paid by that third party, the Customer holds the proceeds of sale, to the extent of the money owing by the Customer to Bossco, on any account whatsoever, at the time of receipt of such proceeds, on trust for Bossco. The Customer must keep those proceeds separate on trust for Bossco and not mix those proceeds with any other money.
6.5. If the Customer uses the Goods, or allows the Goods to be used to manufacture or produce another product, then the Customer must hold on trust for Bossco such part of the proceeds of such manufacturing or production process as relate to the Goods. Such part will be deemed to equal, in dollar terms, to the price of the Goods used. The Customer must keep that part of the proceeds separate on trust for Bossco and not mix those proceeds with any other money.
6.6. The provisions of this title clause apply notwithstanding that Bossco may have provided credit to the Customer.
7.1. Risk in the Goods passes to the Customer upon delivery (including all risks associated with unloading) or upon title in the Goods passing to the Customer, whichever is the earlier.
8. Personal Property Securities
8.1. Terms defined in the PPSA have the same meaning when used in these Terms and Conditions.
8.2. The Customer acknowledges and agrees that under the PPSA:
(a) The Contract constitutes a security agreement;
(b) The Customer grants Bossco a purchase money security interest in all Goods supplied by Bossco to the Customer from time to time as security for payment of the purchase price of the Goods;
(c) The Customer grants Bossco a security interest in all Goods supplied by Bossco to the Customer from time to time as security for payment of anymoney owed by the Customer to Bossco and as security for the performance by the Customer of the obligations set out in these Terms and Conditions;
(d) Bossco may register a financing statement on the Personal Property Securities Register.
8.3. The Customer agrees to provide information and do anything Bossco reasonably requires to register, maintain and enforce Bossco’s security interest.
8.4. The Customer waives the requirement to provide information under various provisions of the PPSA, in particular, the Customer agrees that as provided for in:
(a) Section 157 – Bossco is not required to give you a verification statement;
(b) Section 144 – Bossco is not required to give you notice under section 95, 118, 121, 130, 132 and 135; and
(c) Section 275 – Bossco is not required to provide interested persons with information relating to Bossco’s security interest and neither is the Customer.
8.5. The Customer irrevocably grants Bossco the right to enter upon the Customer’s property or premises, without notice or liability, to enforce its rights under the PPSA.
9.1. The Customer must inspect the Goods on delivery and may return them within seven days from the delivery date if they are not of acceptable quality as defined under the ACL.
9.2. Bossco may in its absolute discretion accept or reject the return of Goods which are deemed by the Bossco to be of acceptable condition (e.g. change of mind). If the return of Goods in acceptable condition within 7 days is accepted, a 10% restocking fee will apply. The return of Goods will not be accepted upon the expiration of seven days after the delivery date, except in accordance with Bossco’s requirements under any applicable Warranty and the Australian Consumer Law.
9.3. Bossco in considering whether returned Goods are of acceptable condition will consider (amongst other things) whether the returned Goods are in the original packaging, accompanied by original invoice and in a condition suitable for Bossco to re-stock and re-sell.
9.4. If Bossco accepts the return of Goods pursuant to clause 9, Bossco in its absolute discretion may allow for an exchange for Goods of equivalent price or to provide a credit to the value of the Goods.
9.5. Transport charges for returned Goods must be prepaid by the Customer. The Customer is liable for all transport charges and/or transport insurance of returned Goods unless Bossco agrees in writing otherwise. If such charges are paid by Bossco, those charges are not refundable if included in the purchase price in the event the Goods are later returned. If Bossco accepts liability for transport charges and/or transport insurance, the Customerwill indemnify Bossco from all loss which occurs to the returned Goods during transport and/or delivery including all consequential loss.
9.6. Acknowledgement of receipt of returned Goods by Bossco does not amount to acceptance of those returned Goods nor of any liability to provide to the Customer an exchange or credit.
10.1. The Customer acknowledges and accepts the Terms and Conditions of the applicable Warranty.
11. Representations and implied terms
11.1. Except as expressly provided to the contrary in the Contract, all representations, warranties, terms and conditions in relation to the Goods (whether implied or otherwise) are hereby excluded to the maximum extent permitted by law.
11.2. The Customer agrees that if it is aware (or should be aware) that the Goods, the subject of an Offer, are for a particular purpose or are required to possess special characteristics, the Customer will clearly specify that purpose or those characteristics in any such Offer.
12. Limitation of liability
12.1. Bossco’s liability is limited in relation the sale of Goods to the Customer as follows:
(a) Bossco’s liability for any claims is limited at Bossco’s option to either:
i. Replacing the Goods or supplying equivalent goods;
ii. Repairing the Goods; or
iii. Repayment of the invoice price of the Goods.
(b) Bossco is not liable for any loss or damage to person or property arising from or caused in any way by the Goods,
(c) Bossco will not be liable for any indirect, incidental, special or consequential losses, liability costs or damages, any loss of business opportunity, production, profit or savings, or any reasonable foreseeable losses.
(d) This limitation of liability does not apply if it would restrict, modify or exclude the Customer’s rights in a way that is not permitted under ACL or other applicable laws.
12.2. Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. 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 the goods fail to be of acceptable quality and the failure does not amount to a major failure.
12.3. The Customer acknowledges and accepts that it is responsible for ensuring the Goods purchased are ﬁt for the purpose for which they are intended.
12.4. The Customer acknowledges that it is not relying upon any representation made by Bossco or its representatives whether in writing or verbally as to the suitability of the Goods for the purpose intended and the Customer acknowledges that it is responsible for undertaking its own due diligence with respect to the Goods and the respective fitness for purpose.
12.5. The Customer indemnifies Bossco against any damages arising out of fitment of the Goods which occurs due to the Customer’s failure to undertake proper due diligence with respect to the suitability of the Goods for the intended purpose.
13.1. The Customer will be in default if.
(a) the Customer breaches these Terms and Conditions or the Contract;
(b) payment for the Goods has not been received by Bossco by the due date for payment;
(c) the Customer becomes insolvent or unable to pay the Customer’s debts as and when they are due and payable;
(d) the Customer, being an individual, commits an act of bankruptcy or becomes an insolvent under administration;
(e) the Customer, being a body corporate, becomes an externally-administered body corporate or any proceedings are filed or steps taken that may result in the Customer becoming an externally-administered body corporate; or
(f) Bossco forms the opinion that the Customer’s credit worthiness or credit standing alters from that indicated in its Application.
13.2. If the Customer defaults, Bossco may do one or more of the following:
(a) without notice to the Customer, make all money owing by the Customer to Bossco, on any account whatsoever, immediately due and payable;
(b) treat the whole of the Contract and any other Contract with the Customer as repudiated and sue for breach of contract;
(c) refuse to supply or deliver any Goods to the Customer;
(d) repossess or claim repossession of any Goods in the Customer’s possession where title has not passed to the Customer;
(e) without notice to the Customer, withdraw or vary any credit Bossco has provided to the Customer;
(f) charge interest on any money owing until payment at the rate of 10% per annum, calculated daily.
14. Change of ownership
14.1. The Customer shall, no later than 14 days prior to any:
(a) change of ownership;
(b) change in registered particulars;
(c) alteration or addition to the shareholding or directorship,
notify Bossco of the proposed change, alteration or addition and shall provide full details of the proposed change, alteration or addition to Bossco.
14.2. The Customer is liable for any Goods supplied by Bossco after such change, alteration or addition unless Bossco has acknowledged by writing acceptance of the intended change, alteration or addition.
15. Force Majeure
15.1. Bossco is not liable for failure to perform the Contract to the extent, and for so long as, its performance is prevented or delayed because of:
(a) circumstances outside Bossco’s control;
(b) failure of Bossco’s machinery; or
(c) failure of a supplier to Bossco.
16.1. Bossco rights under a Contract may only be waived by notice in writing. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.
17. Bossco may assign
17.1. Bossco may assign a Contract to another person without notice to the Customer.
18.1. If a provision of a Contract would, but for this clause, be unenforceable:
(a) the provision must be read down to the extent necessary to avoid that result; and
(b) if the provision cannot be read down to that extent, it must be severed without altering the validity and enforceability of the remainder of the Contract.
19.1. Bossco may vary these Terms and Conditions at any time without notice to the Customer.
20.1. The Customer must pay all of Bossco’s costs and expenses in connection with the Contract, including legal expenses (on an indemnity basis), stamp duty and costs incurred in the recovery of monies owing by the Customer to Bossco, or in otherwise enforcing Bossco’s rights against the Customer, under the Contract.
21.1. These Terms and Conditions are governed by the laws of New South Wales. The parties submit to the jurisdiction of the courts of New South Wales.