1.1 In this document, the following expressions will have the meanings assigned below:
a. “Force Majeure” means any matter beyond Powertarps’ reasonable control, including fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lock-out, war or the inability of suppliers to supply necessary materials.
b. “GST Law” means respectively the A New Tax System (Goods and Services Tax) Act 1999 and any associated or replacement legislation and terms defined in the GST Law will have the same meanings when used in this document.
c. “CCA” & “ACL” mean respectively the Competition and Consumer Act 2010 and the Australian Consumer Law under the CCA.
d. “PPSA” & “PPSR” mean respectively the Personal Property Securities Act 2009 and the Personal Property Securities Register established under the PPSA and terms defined in the PPSA will have the same meanings when used in this document.
e. “Products” means goods of all kinds ordered by the Customer from PowerTarps or supplied by PowerTarps to the Customer, including any related services, such as installation.
1.2 These terms apply to orders for Products made by the Customer with Powertarps and any supplies of Products made by PowerTarps to the Customer and supersede any previously agreed terms. PowerTarps may from time to time amend these terms, by publishing amended terms on its website, in which case any supply made pursuant to an order made after such amended terms are published will be subject to the amended terms.
1.3 No failure to exercise a delay in exercising any rights under these terms will constitute a waiver of those rights.
1.4 The agreement between the parties will be governed by the law of New South Wales and subject to the jurisdiction of the courts of that State.
2. Delivery and Installation
2.1 PowerTarps will deliver or install the Products or make them available for collection, as specified in the relevant order. Delivery or collection of the Products will occur during normal working hours and delivery will be made to the address specified by the Customer. Installation will occur at a time specified by PowerTarps.
2.2 PowerTarps will make reasonable efforts to arrange delivery of the Products by any estimated delivery date, but PowerTarps will not be liable for any delay due to Force Majeure. If, due to Force Majeure, PowerTarps cannot practically arrange delivery of the Products by the estimated date, PowerTarps may, in its sole discretion, without liability to the Customer, either extend the time for delivery for a reasonable period or terminate the agreement to supply the Products, to the extent to which the Products have not already been supplied, with the Customer remaining liable to pay for Products already supplied.
2.3 The Customer is responsible for and must reimburse to PowerTarps on demand, without set off, all freight and insurance costs relating to delivery of the Products to the Customer.
2.4 Delivery of the Products to PowerTarps carrier or to any carrier or other third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
2.5 PowerTarps may, in respect of orders for quantities of the Products, make partial deliveries as Products are completed and invoice for such partial deliveries as if they were separate orders.
2.6 The Customer must inspect the Products on delivery and must within seven days of delivery notify PowerTarps of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer must afford PowerTarps an opportunity to inspect the Products within a reasonable time following delivery if the Customer claims the Products are defective in any way and if the Customer fails to comply with these provisions, the Products shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
2.7 The Customer is not entitled to cancel an order after acceptance by PowerTarps. PowerTarps may, in its discretion and without obligation to do so, accept cancellation of an order or return of the Products, in which case PowerTarps may forfeit any deposit paid by the Customer and the Customer must pay to PowerTarps, to the extent it exceeds any deposit, such portion of the agreed price for the relevant Products as PowerTarps in its discretion considers appropriate by way of payment for work performed by Powertarps to the date of cancellation.
2.8 PowerTarps may, without liability to the Customer and without cause being required, terminate any agreement to supply the Products to the Customer, at any time prior to delivery.
3. Price and Payment
3.1 The price payable for the Products (“the Price”) shall be the price agreed between PowerTarps and the Customer or failing agreement, PowerTarps usual charge for comparable goods.
3.2 PowerTarps may impose additional charges for variations and/or additions requested by the Customer as compared with PowerTarps’ quotation. Such additional charge will be calculated in accordance with clause 3.1 and paid at the time of payment of the Price.
3.3 Unless otherwise agreed, the Customer must pay the Price, by means approved by PowerTarps, on or before delivery, installation or collection of the Products or .The Customer is not entitled to set off against any monies owed to PowerTarps any moneys owed or claimed to be owed by PowerTarps to the Customer.
3.4 Unless otherwise agreed, the Price and any other amounts due to PowerTarps are exclusive of GST and the Customer must also pay to PowerTarps an amount equal to any GST payable by PowerTarps in respect of any taxable supply under the GST Law made by PowerTarps to the Customer.
3.5 The Customer must pay interest on any unpaid amount at the rate charged by PowerTarps’ bank on an overdraft of the same amount plus 4% from the due date for payment to the date of payment.
3.6 PowerTarps may, without liability to the Customer, suspend work on or delivery of the Products if the Customer fails to pay any amount due to PowerTarps (whether in respect of the Products or otherwise) by the due date or if PowerTarps on reasonable grounds believes that the Customer is or may become bankrupt or subject of an order for winding up or receivership or administration or otherwise unable to pay any amounts which are or may become due to PowerTarps.
3.7 The Customer must indemnify PowerTarps in respect of any costs, expenses or liabilities incurred by PowerTarps arising from failure by the Customer to pay any amount by the due date including legal costs and expenses on a solicitor and own client basis with respect to any proceedings or other action to recover the amount due, including action under clause 5.3.
4. Installation, Use and Maintenance of Products
4.1 The Customer must install, use and maintain the Products in accordance with PowerTarps’ manuals and guidelines, applicable laws and with due care and must indemnify PowerTarps in relation to any third party claims against PowerTarps arising from any contrary or negligent installation, use or maintenance of the Products by the Customer.
5. Passing of risk and title
5.1 Risk in the Productspasses to the Customer on delivery of the Products to the Customer.
5.2 Notwithstanding clause 5.1, title and property in the Products and any other goods supplied by PowerTarps to the Customer will not pass to the Customer unless and until the Customer has paid all moneys due to PowerTarps by the Customer, not limited to the Price for the Products. Until title to any Products passes:
a. the Customer holds such Products as bailee for PowerTarps and unless otherwise agreed by PowerTarps, must separately store the Products so that they are clearly identifiable as PowerTarps’ property.
b. the Customer may not encumber or sell such Products other than with PowerTarps’ consent and in the ordinary course of business and must hold the proceeds of any such sale for and to the account of PowerTarps and must take all steps necessary to keep such proceeds separate from other money until the proceeds are paid to PowerTarps.
c. If the Customer fails to pay any amount due to PowerTarps by the due date, not limited to the Price payable for the Products, PowerTarps may, by its employees or agents, enter the premises where the Products (or any other goods supplied by PowerTarps to the Customer) are situated and retake possession and/or resell or otherwise dispose of the Products or such other goods, without liability to the Customer. The Customer grants PowerTarps and its employees and agents an irrevocable licence to enter premises occupied by the Customer for the purpose of exercising such rights.
5.3 The parties acknowledge and agree that:
a. Powertarps rights under clause 5.2 constitute a personal property security interest (“Security Interest”) under the PPSA.
b. PowerTarps may do anything it considers necessary or appropriate to protect its Security Interest in relation to the Products, including registering its Security Interest in the PPSR, including registration as a purchase money security interest.
c. The Customer must execute such documents and do such acts and things as PowerTarps may reasonably request for the purpose of taking the action referred to in paragraph (d).
d. The Customer waives, pursuant to section 157(3)(b) of the PPSA, the right to receive notice of a financing statement, financing change statement or a verification statement in relation to any registration in the PPSR.
e. The Customer and Powertarps agree that, pursuant to section 115(1) of the PPSA, they contract out of sections 95, 96, 125, 129, 130, 132(4), 135, 142 & 143 of the PPSA to the extent that they require Powertarps to give any notice, allow any time or grant any opportunity to remedy to the Customer.
6.1 Nothing in this clause 6 is intended to or will be construed so as to have the effect of contracting out of or excluding, restricting or modifying any applicable provisions of the Commonwealth CCA or ACL, , except to the extent permitted by the CCA or ACL. For the avoidance of doubt, the limited warranty provided for in these terms is in addition to, rather than in substitution for, any such rights.
6.2 The Customer acknowledges and agrees that, in acquiring the Goods, the Customer is relying solely upon his own skill and judgment and not on any agreement, representation or undertaking by PowerTarps not reduced to writing and attached to the relevant order.
6.3 Subject to clause 6.1, the Customer acknowledges and agrees that PowerTarps’ liability, whether in contract, tort or otherwise, is limited to the extent permitted by law to the standard limited warranty given by PowerTarps in respect of its products, a copy of which the Customer acknowledges was provided to the Customer with PowerTarps’ quotation and the Customer releases PowerTarps from any liability to the extent it exceeds that provided for in such warranty. Without limiting the generality of that provision, PowerTarps’ liability to the Customer will not exceed refund or repair or replacement or payment of the reasonable cost of having the Products replaced (if goods) or refund or resupply or the reasonable cost of having the services resupplied (if services) and PowerTarps will have no liability for loss of profits or other consequential loss.
6.4 The Customer releases PowerTarps from any liability, including loss of profits or other consequential loss, arising from any of the following circumstances:
a. if the Customer does not collect a vehicle after installation, PowerTarps does not have space within its premises to store the vehicle and PowerTarps stores the vehicle outside its premises pending collection by the Customer.
b. if any loss of or damage to a vehicle occurs while the vehicle is in PowerTarps’ possession and such loss or damage is caused by a third a party or otherwise beyond PowerTarps’ reasonable control.
c. if damage to a vehicle occurs due to failure by the Customer to observe PowerTarps’ manuals and guidelines, including without limitation washing of the vehicle following installation to remove deposits which may occur on paintwork during the installation process.
7. Intellectual Property
7.1 PowerTarps retains all intellectual property rights in relation to theProducts, including patent rights, design rights,copyright and trademarks, whether or not registered and the Customer must not infringe those rights or produce or supply products similar in function or appearance to the Products.
7.2 The Customer must not remove any trademarks from the Products, supply the Products to third parties without attribution of the Products as products of PowerTarps or incorporate the Products in third party products without PowerTarps’ prior written consent.
7.3 The Customer consents to PowerTarps’ use of images of the Products and any vehicles on which they have been installed in PowerTarps’ promotional materials and advertising.
PowerTarps Limited Warranty
1. Subject to any exclusions and limitations set out above, PowerTarps warrants to the original Customer that all new tarpaulin materials and moving parts and components, excluding drive cables, supplied by PowerTarps are free of defects in materials and manufacture. This warranty does not apply to repair work.
2. This warranty is valid for a period of twelve months from the date of delivery , installation collection for new products and is conditional on the Customer reporting any defect and providing proof of purchase to PowerTarps within that period. Recognising that the products are subject to wear and tear, including from use and exposure to the elements, this warranty operates on a pro rata basis over the warranty period, i.e. as a condition of providing replacement products in the event of a valid warranty claim, the Customer will be required to contribute a portion of the cost pro rata to the elapsed portion of the warranty period.
3. PowerTarps may, in its sole discretion, if a product (“Product”) fails under normal use, either repair the defect or subject to paragraph 2 replace the Product with an equivalent product, at PowerTarps’ cost, on return of the Product to PowerTarps’ Sydney warehouse or such other location as PowerTarps may in its discretion approve .
4. To the extent permitted by law, this warranty is limited to defects in materials and/or manufacture and does not cover damage or deterioration, including but not limited to damage or deterioration from the following causes:
a. defects in materials or products incorporated in or supplied with the Product which are produced by a third party and subject to a separate warranty from the third party.
b. fair wear, tear or deterioration from normal use and passage of time.
c. improper installation, meaning installation contrary to PowerTarps’ installation manual or other advice to the Customer.
d. inadequate or improper maintenance and care.
e. accident or act of God.
f. improper use, meaning use contrary to PowerTarps’ manual or other advice to the Customer or which the Product could not reasonably be expected to withstand without damage, including without limitation:
i. windflap damage, i.e. wear caused by inadequate tensioning of tarpaulin material.
ii. damage caused by external environmental factors, including but not limited to damage caused by rocks, loaders or overhead power cables.
iii. corrosion due to exposure to a chemical environment, e.g. carriage of fertilizers and other corrosive materials.
iv. use otherwise than for any application specified on a quote or order form.
v. continued use after any defect becomes apparent to a reasonably prudent operator or user.
5. This warranty will be void and PowerTarps will have no further liability under this warranty if the Product is repaired, altered or overhauled without PowerTarps’ consent.
6. PowerTarps will not be liable for loss of profits or other consequential loss, including damage to a vehicle with which the product is used or materials carried in the vehicle (including as a result of water leakage).
7. This limited warranty does not cover the following costs, which must be borne by the Customer:
a. labour charges for installing replacement parts or accessories.
b. transportation costs to and from PowerTarps’ warehouse.
8. To the extent permitted by law, all other warranties and rights, whether express or implied, are excluded.