Terms and Conditions of Sale
Freedom Tyres Terms and Conditions of Sale
1. Definitions and Interpretation
Freedom Tyres means Freedom Tyres Pty Ltd ABN 42 136 722 220
Conditions means these Terms and Conditions of Sale.
Consequential Loss means loss of expected savings, loss of use, loss of opportunity, loss of profit, loss of revenue, increased financing costs, loss arising from delay, or any consequential, special or indirect loss or damage, whether or not the possibility or potential extent of the loss or damage was known or foreseeable, and whether arising from a claim under indemnity, contract, tort (including negligence), statute or otherwise.
Customer means an individual or the party making purchase from Freedom Tyres.
Goods means any goods supplied by the Supplier to the Customer.
Insolvency Event means, for the Customer, as applicable, being in liquidation or provisional liquidation, bankruptcy or under administration, having a controller (as defined in the Corporations Act under s.459F(1) of the Corporations Act to have failed to comply with a statutory demand, being unable to pay the Customer’s debts, dying, ceasing to be of full legal capacity or otherwise becoming incapable of managing the Customer’s own affairs for any reason, taking any step that could result in the Company becoming an insolvent under administration (as defined in s.9 of the Corporations Act 2001), entering into a compromise or arrangement with, or assignment for the benefit of, any of the Customer’s members or creditors, or any analogous event.
Loss means any expense, cost or damage of any kind and includes Consequential Loss and a fine or penalty imposed by a
statutory or other authority.
Real Property means all real property interests held by the Customer now or in the future.
Related Bodies Corporate has the same meaning as in the Corporations Act 2001.
Services means any services provided by the Supplier to the Customer.
Supplier means, in connection with the supply of any Goods or Services, Freedom Tyres making the supply to the Customer.
Supplier Ts&Cs means any terms and conditions of quotation and supply, however described, notified by the Supplier to the
Customer (whether on an invoice, quote, through the Supplier’s website, docket or otherwise,), or supply agreement (however
described in the Supplier’s standard form entered into in writing between the Supplier and Customer.
Singular words include the plural and vice versa. A mention of anything after include, includes or including, does not limit what
else might be included.
2. Structure of this document
(a) These Conditions are intended to regulate key sale terms including the extension of credit in connection with the supply of
Goods or Services by Freedom Tyres to the Customer.
(b) The terms set out in Part A of these Conditions are incorporated by reference as part of the Supplier Ts&Cs. Those terms are legally binding between the Supplier and the Customer and should be read together with the Supplier Ts&Cs. To the extent of any inconsistency, the Supplier Ts&Cs (excluding the incorporated Part A of these Conditions) prevail over these Conditions.
(c) The terms set out in part B form an agreement directly between the Customer and Freedom Tyres. Those terms are legally binding between the Customer and Freedom Tyres.
PART A
3. Customer obligations
(a) These Conditions apply if the Supplier accepts any order for Goods or Services or both from the Customer, whether for cash or on credit. The Customer has no entitlement to credit unless in the Supplier’s sole discretion the Supplier extends credit to the Customer. If in a particular case, the Supplier gives the Customer credit, the Supplier still reserves the right at any time and for any reason in the Supplier’s sole discretion to refuse to supply any further Goods or Services to the Customer and to refuse to supply any Goods or Services or both to the Customer on credit terms. If the Supplier does decline to give the Customer further credit then that decision does not affect the credit terms which apply to any amounts the Customer then owes to the Supplier.
(b) If the Customer fails to comply with any of the terms of these Conditions or in respect of any obligation to pay money to the Supplier when due, suffers an Insolvency Event or makes any misrepresentation to the Supplier, the balance of the Customer’s account to the Supplier will become due and payable immediately.
(c) The Customer agrees that it must:
(i) pay, without any deduction or setoff, the price charged by the Supplier for Goods or Services supplied to the Customer on delivery of the Goods or performance of the Services, or, if credit terms are offered, within 30 days after the Supplier forwards a statement to the Customer of the costs of the Goods or Services that were supplied or provided;
(ii) pay any stamp duty assessed on this document or fee to register or maintain any security interest held by the Supplier in respect of Goods or Services supplied to the Customer;
(iii) advise the Supplier in writing of the occurrence of any Insolvency Event, any change in its name, ownership or control, or any step being taken to sell an asset or assets (separately or together having a value being greater than 20% in value of its gross assets) as soon as practicable and not later than within two (2) business days of such event, change or step occurring. The Customer acknowledges that, despite any such event, change, or step, the Customer remains liable to pay the price for all Goods or Services supplied.
(d) If the Customer does not pay the Supplier for the Goods or Services in accordance with clause 3(c)(i), the Supplier may refuse to supply and Goods or Services to the Customer until the Customer pays all amounts that it owes to the Supplier.
4. Overdue accounts and security
(a) Any amount not paid by the due date will incur interest at a rate of 5% above the Reserve Bank of Australia Cash Rate calculated daily and compounded monthly but in no circumstances will the interest charged exceed 20% perannum.
(b) The Customer agrees to pay all costs and expenses (including legal costs, commissions paid by the Supplier or its Related Bodies Corporate to any commercial or mercantile agent and dishonour fees) incurred by the Supplier in connection with the recovery of overdue amounts and enforcing the charge in clause 4(c).
(c) As security for any amounts due to the Supplier from time to time, the Customer charges all of its legal and equitable interest (both present and future) of whatsoever nature held in any and all Real Property to theSupplier.
(d) Without limiting the generality of the charge in clause 4(c), the Customer agrees, on request by the Supplier, to execute any documents and do all things reasonably required by the Supplier, to perfect the charge given in clause 4(c) including a mortgage over any Real Property. The Customer appoints the Supplier to be the Customer’s lawful attorney for the purposes of executing and registering such documents and taking all such steps in that regard. The Customer indemnifies the Supplier on an indemnity basis against all costs and expenses incurred by the Supplier in connection with the preparation and registration of any such steps needed to perfect the security or prepare or register the mortgage documents.
(e) The Customer consents unconditionally to the Supplier lodging a caveat or caveats noting its interest in any Real Property.
(f) A statement in writing signed by an authorised officer of the Supplier setting out the moneys due or owing to the Supplier at the date of the statement shall be sufficient evidence of the amount so due or owing until the contraryis proven.
(g) The Supplier acknowledges that any payment made to it for a debt owed to the Supplier is in full satisfaction of the debt owed to it, to the extent of the payment made.
5. Retention of title
(a) The Supplier retains legal and equitable title in any Goods supplied to the Customer until payment in full for or in connection with the supply of the relevant Goods has been received by the Supplier. Until payment in full has been received, the following terms apply.
(b) Notwithstanding that title in the Goods remains with the Supplier until payment has been received in full, the Customer may sell such goods or use the Goods in the ordinary course of the Customer’s business. As between the Customer and the purchaser of any item of the Goods, the Customer sells as principal and not as agent of the Supplier. The proceeds of sale of each item of Goods must be held by the Customer in a separate fund on trust for the Supplier and the Customer is under a duty to account to the Supplier for such proceeds. The creation of, or any failure of, any such trust shall not in any way limit the obligation of the Customer to pay an amount to the Supplier for Goods supplied.
(c) Until Goods are sold, the Customer must keep the Goods safe and free from deterioration, destruction, loss or harm, clearly designate the Goods as the property of the Supplier, store them in such a way they are clearly identified as the property of the Supplier and keep full and complete records, firstly, of the physical location of the Goods and, secondly, the ownership of the Goods by the Supplier.
(d) The Supplier is irrevocably entitled at any time and from time to time before sale of any item of Goods by the Customer to inspect or to recover and retake possession of such Goods and otherwise exercise in relation to the Goods any of its rights whether those rights are as owner and/or unpaid Seller or otherwise and whether those rights are conferred by common law, contract, statute or in any other way. In order to exercise such entitlement, the Supplier and its agents are irrevocably authorised by the Customer to enter any of the Customer’s premises or vehicles or those of any third party. The Customer agrees to obtain the consent of any such third party to such entry by the Supplier and to indemnify the Supplier and its agents for any liability arising from any entry upon such third parties’ premises or vehicles. The Supplier and its agents agree to take all reasonable care in removing the Goods from such premises or vehicles but, to the extent this liability may be disclaimed by law, are not liable for any damage or injury to such premises caused by the removal of the Goods.
(e) This reservation of title and ownership is effective whether or not the Goods have been altered from their supplied form, or commingled with other goods.
6. Security Interest
(a) The retention of title arrangement described in clause 5 constitutes the grant of a purchase money security interest by the Customer in favour of the Supplier in respect of all present and after-acquired Goods supplied to the Customer by the Supplier.
(b) The Customer must immediately, if requested by the Supplier, sign any documents, provide all necessary information and do anything else required by the Supplier to ensure that the Suppliers purchase money security interest is a perfected security interest.
(c) The Customer will not enter into any security agreement that permits any other person to have or to register any security interest in respect of the Goods or any proceeds from the sale of the Goods until the Supplier has perfected its purchase money security interest.
(d) For any Goods supplied that are not goods that are used predominately for personal, domestic or household purposes, the parties agree to contract out of the application of ss 95, 118, 121(4), 130, 132(4), 135, 142 or 143 of the PPSA in relation to the Goods.
(e) The Customer hereby waives any rights the Customer may otherwise have to:
(i) receive any notices the Customer would otherwise be entitled to receive under ss 95, 118, 121, 130, 132 or 135;
(ii) apply to a Court for an order concerning the removal of an accession under s 97;
(iii) object to a proposal of the Supplier to purchase or retain any collateral under ss 130 and 135;
(iv) receive a copy of a verification statement confirming registration of a financing statement, or a financing change statement, relating to any security interest the Supplier may have in Goods supplied to the Customer from time to time.
(f) For the purposes of this clause “PPSA” means the Personal Property Securities Act 2009. The expressions “accession”, “collateral”, “financing statement”, “financing change statement”, “security agreement”, “security interest”, “perfected security interest” and “verification statement” have the meanings given to them under, or in the context of the PPSA. References to sections are to sections of the PPSA.
7. Risk
(a) Risk in relation to any Goods passes to the Customer on delivery of the Goods. Delivery of Goods will be at the Supplier’s premises on collection of the Goods by the Customer, its employees, agents or contractors. If the Supplier has expressly agreed to ship the Goods, risk in the Goods passes immediately to the Customer on delivery of the Goods by the Supplier to the Supplier’s freight agent.
(b) The Customer acknowledges that the Supplier is dependent upon others for the manufacture of the Goods, their supply, delivery dates and specifications and accordingly the Supplier does not warrant that the Goods will be delivered on any particular date or will be identical to any Goods previously delivered to the Customer.
8. Exclusion of implied terms
The Customer may have the benefit of consumer guarantees under the Australian Consumer Law. Otherwise, to the maximum extent permitted by law, all terms, conditions or warranties that would be implied into Supplier Ts&Cs or in connection with the supply of any Goods or Services by the Supplier under law or statute or custom or international convention are excluded.
9. Limitation of liability
To the maximum extent permitted by law and subject to clauses 8 and 10, the Supplier’s total liability arising out of or in connection with performance of its obligations pursuant to these Conditions, the Supplier Ts&Cs, or arising out of or in connection with the supply of specific Goods and Services (including pursuant to or for breach of these Conditions, Supplier Ts&Cs or repudiation thereof, under statute, in equity or for tort, including negligent acts or omissions) is limited as follows:
(a) the Supplier shall have no liability to the Customer for any Consequential Loss;
(b) the Supplier’s total aggregate liability for Loss, however arising, shall not exceed the GST exclusive aggregate price paid by the Customer to the Supplier for the specific Goods or Services that gave rise to the Loss in question. The limitations and exclusions in this clause 9(b ) do not apply to the extent that any Loss is directly attributable to:
(i) the personal injury or death caused by the Supplier’s default, breach of these Conditions or the Supplier Ts&Cs or negligence; or
(ii) fraud by the Supplier.
Each party must take reasonable steps to mitigate any Loss it suffers or incurs.
10. Limitation of liability under Australian Consumer Law Guarantees
To the extent that Goods supplied by the Supplier are not goods of a kind ordinarily acquired for personal, domestic or household use and the Customer is deemed to be a consumer for the purposes of s.64A of the Australian Consumer Law, the Customer agrees that the Supplier’s liability for a failure to comply with a consumer guarantee that the Customer may have a benefit under the Australian Consumer Law (other than a guarantee under ss.51 (title), 52 (undisturbed possession) and 53 (undisclosed securities), is limited to, at the option of the Supplier, one or more of the following:
(a) 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; or
(d) equivalent goods; or
(e) the payment of the cost of having the goods repaired. To the extent that Services supplied by the Supplier are services other than services of a kind ordinarily acquired for personal, domestic or household use or consumption, the Suppliers’ liability for failure to comply with a consumer guarantee that the Customer may have the benefit of is limited to, at the option of the Supplier:
(a) the supply of the Services again; or
(b) the payment of the cost of having the Services supplied again.
11. GST
If the Supplier has any liability to pay Goods and Services Tax (GST) on the supply of any Goods or Services to the Customer, the Customer must pay to the Supplier an amount equivalent to the GST liability of the Supplier at the same time as the consideration is paid for the Goods or Services (unless the consideration for that supply is expressed specifically to be GST inclusive).
12. Warranties
(a) Goods which are not manufactured by Freedom Tyres are subject solely to the warranties (if applicable) provided by the manufacturers or third party suppliers to Freedom Tyres and the customer acknowledges that to the extent provided by law, Freedom Tyres gives no warranties beyond such manufacturers or suppliers warranties
(b) The customer acknowledges that Freedom Tyres makes no representations or warranties as to the fitness or suitability for any purpose of goods sold.
13. Prices
(a) All prices shall be those referred to in Freedom Tyres price lists and /or arrangements current at time ofinvoice.
(b) Freedom Tyres reserves the right to vary prices at any time without notice.
PART B
14. Guarantee to Freedom Tyres
(a) The Customer has requested the Supplier to facilitate the extension of credit terms to the Customer. The Customer acknowledges that the Customer will receive a valuable commercial benefit because of the Supplier facilitating the extension of credit terms.
(b) The Customer guarantees to the Supplier that the Customer will pay all amounts payable to the Supplier from time to time for the supply of Goods or Services to the Customer when they are due including interest and tax. The Customer’s guarantee continues until all these amounts have been paid in full.
(c) The Customer must pay the Supplier for its reasonable costs in administering (including enforcing or taking any other action in connection with its rights) this guarantee.
(d) The Customer remains liable to the Supplier under this guarantee and the Customer’s obligations under this guarantee will not be affected by any refusal by the Supplier to provide further credit to the Customer or a variation in the Supplier Ts&Cs between the Supplier and Customer.
(e) The Supplier may at any time release or discharge the Customer from this guarantee and give time for payment, accept any composition from or make any other arrangements with the Customer without releasing or discharging any other guarantor or otherwise prejudicing or affecting the Supplier’s rights and remedies against the Customer.
(f) As long as this guarantee remains in existence the Customer may not, without the Supplier’s consent, reduce the Customer’s liability under this guarantee by claiming that the Customer or any other person has a right of set-off or counterclaim against the Supplier.
(g) Where the Customer is a partnership no change in the constitution of the partnership shall affect, impair or discharge the liability of the Customer under this guarantee and indemnity whether past, present or future notwithstanding the provisions of any legislation or any other similar enactment in amendment, modification or substitution regulatingpartnerships.
(h) A statement in writing signed by an authorised officer of a Supplier setting out the moneys due or owing to the Supplier at the date of the statement shall be sufficient evidence of the amount so due or owing until the contrary is proven.
(i) If the Customer enters into this guarantee as a trustee of any trust, then the following provisions shall apply:
a. the Customer shall be personally liable for the performance of all obligations and undertakings under this guarantee;
b. the Customer warrants that the Customer has full, complete and valid authority pursuant to the trust to enter into this guarantee;
c. notwithstanding that there is no reference to a specific trust, the Supplier’s rights of recourse shall extend to both the Customer’s assets personally and the assets of the trust;
d. the Customer undertakes to the Supplier that the Customer’s rights of indemnity against the trust assets have not been excluded by the provisions of the trust or by any breach of trust or otherwise and that the Customer will not release or otherwise prejudice such rights of indemnity.
(j) The Customer’s obligation to pay to the Supplier the amounts referred to under this document is a primary obligation and the Supplier is not obliged to proceed against or enforce any security or other right against the Customer or demand payment from the Customer before those amounts become due for payment.
15. Privacy disclosure and consent
The Customer authorises the Supplier to:
(a) obtain credit information about its personal, consumer and commercial credit worthiness from any bank or trade referee disclosed in this document and from any other credit provider or credit reporting agency for the purpose of assessing this application for credit, or in connection with any guarantee given by the Customer;
(b) use, disclose or exchange with other credit providers, information about the Customer’s credit arrangements in order to assess this application for credit, monitor credit worthiness and collect overdue accounts, and
(c) disclose the contents of any credit report on the Customer to the Supplier and other Related Bodies Corporate of the Supplier, and any of their solicitors and mercantile agents. If the Customer does not provide the information requested in this document, the Supplier may be unable to process the application.
Freedom Tyres complies with the privacy principles imposed by law in relation to the collection and disclosure of information regarding individuals.
16. Governing law
Part B of these Conditions is governed by and is to be interpreted according to the laws in force in the state of Queensland and the parties submit to the non-exclusive jurisdiction of the courts operating in that state.
17. Terms and Conditions for Brand Use
Freedom Tyres has been entrusted logos, images, emblems and other intellectual property associated with the branding of products supplied by Freedom Tyre’s which are the exclusive property of Freedom’s tyre suppliers/manufacturers. Freedom Tyres has the duty to protect this intellectual property and associated brand equity, by monitoring unauthorised use, abuse or misappropriation of marks associated with these brands.
Accordingly, use of Freedom Tyres and Freedom Tyre’s product’s trademarks and associated branding is prohibited, unless expressly authorised. Use of brand logos for commercial purposes without the prior written consent of Freedom Tyres may constitute trademark infringement and unfair competition in violation of federal and state laws. If Freedom Tyres approves your request to use our or any of our product’s trademarks, logos, web pages, trade names, product images, or other distinctive features (“Freedom’s Brands”), you agree to be bound by the following terms and conditions (the “Agreement”).
You agree to comply with the Guidelines for Third Party Use of Freedom’s Brand Features. So long as you do so, and provided that Freedom expressly approves your permission request, Freedom grants you a non-transferable, non-exclusive, royaltyfree limited license to use Freedom’s Brand Features set forth in your corresponding Permission Request Form for the sole purpose and only for the materials set forth therein.
Freedom Tyres reserves the right in its sole discretion to terminate or modify your permission to display Freedom’s Brand Features and to take action against any use that does not conform to these terms and conditions, infringes any Manufacturer’s intellectual property or other right, or violates applicable law.
Except as set forth above, nothing herein grants or should be deemed to grant to you any right, title or interest in or to Freedom’s Brand Features. Your use of Freedom’s Brand Features will inure to the benefit of Freedom. You agree not to challenge or assist others to challenge Freedom’s Brand Features (except to the extent such restriction is prohibited by applicable law), and you agree not to register or attempt to register any domain names, trademarks, trade names, or other distinctive brand features that are confusingly similar to those of Freedom Tyres or our products.
The Freedom’s Brand Features are provided “as is” and Freedom Tyres disclaims any warranties either expressed or implied by law regarding the Brand Features, including warranties of noninfringement. Furthermore, because you are not being charged for use of Freedom’s Brand Features, in no event shall Freedom Tyres be liable to you for the subject matter of this Agreement under any theory of liability including for any direct, indirect, incidental, special, consequential, punitive, exemplary or other damages arising out of this Agreement or the use of Freedom’s Brand Features. This limitation shall apply even if Freedom Tyres was or should have been aware or advised of the possibility of such damages and notwithstanding any failure of essential purpose of any limited remedy stated herein. Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you.
You may not assign your rights or delegate your obligations under this Agreement without Freedom Tyres prior written consent. This Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party. This Agreement will be governed by and construed in accordance with the laws of the State of Queensland, without regard to conflict of law principles. The venue for any dispute or claim arising out of or in connection with this Agreement shall be in Brisbane, Queensland. The parties are independent contractors. Neither party shall be deemed to be an employee, agent, partner or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other. The waiver by Freedom Tyres of a breach of any provision hereof shall not be taken or held to be a waiver of the provision itself. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect. This Agreement, the Guidelines for Third Party Use of Freedom’s Brand Features, and the Permission Request Form, constitute the entire agreement between the parties with respect to the subject matter hereof.
Therefore, the customer acknowledges that:
(a) Use of Freedom’ s brands, including logos, company names, product names, images of products or pattern types requires written authorisation.
(b) If granted permission to use Freedom’s Brands, you will do so in accordance with our terms.
(c) Our grant of permission at one point does not prevent us from revoking that permissions at a later point.
(d) Freedom Brand Features are provided “as is.
