Terms & Conditions

ACR Industries Pty Ltd – Terms and Conditions,

1. Definitions and Interpretation
1.1 ‘Company’ – ACR Industries Pty Ltd and/or its authorised agents.
1.2 ‘Customer’ – the purchaser of Goods from the Company.
1.3 ‘Goods’ – all goods sold and/or delivered by the Company to the Customer.
1.4 ‘Contract’ – The Company’s Terms and Conditions of Sale, any contract issued by the Company (including any quotation or acknowledgement), and any technical or commercial specifications or terms and conditions expressly agreed to by the Company in writing.
1.5 ‘Terms’ – these terms and conditions of sale.

2. Application
2.1 These Terms apply to all contracts for the sale of Goods by the Company.
2.2 No amendment, alteration, waiver or cancellation of any of these Terms is binding on the Company unless confirmed by the Company in writing.
2.3 The Customer acknowledges that no employee or agent of the Company has any right to make any representation, warranty or promise in relation to the Goods or the sale of the Goods other than as contained in these Terms.

3. Orders and Acceptance
3.1 An order for Goods constitutes an offer to purchase the Goods by the Customer subject to these Terms and Conditions.
3.2 Orders accepted by the Company may not be cancelled or altered in whole or in part without the Company’s written consent.
3.3 The Company may at its absolute discretion decline any order either in whole or in part.
3.4 In placing any order the Customer expressly represents that the Customer:
a) Is solvent; and
b) Has not committed an act of bankruptcy; and
c) Knows of no circumstances which would entitle any creditor or secured creditor to appoint a receiver or which would entitle any creditor or shareholder to apply to the Court to liquidate the Company or exercise any other rights over or against the Customers’ assets.

4. Prices
Prices are determined at the time of order and, prior to payment of the deposit, are subject to change without notice.

5. Payment
5.1 Payments are to be made to the Company without any deduction or discount other than as stated in these Terms and Conditions or in the relevant invoice or statement.
5.2 A deposit of 10% of the invoice price must be paid when placing an order.
5.3 A progress payment of 50% of the invoice price must be paid once production commences.
5.4 The final balance of the invoice price must be paid in full 10-days prior to the given production completion date.
5.5 Interest is payable on all overdue accounts calculated on a daily basis at the rate of 4.5% per month as from the date due for payment until payment is received by the Company.

6. Cancellations
6.1 No order may be cancelled, modified or deferred without the prior written consent of the Company (which is at the Company’s sole discretion). If such consent is given it is, at the Company’s election, subject to the Company being reimbursed all losses, including loss of profits, and paid a cancellation fee as per following schedule;
a) Order cancelled prior to production – 2% of the invoice price of the Goods.
b) Order cancelled on advice of production commencement or beyond – Deposit non-refundable.
c) Order cancelled on advice of production completion date or beyond – Deposit non-refundable.
6.2 Paid Goods (body-chassis units) or part orders held for more than one calendar year without collection or shipment are non-refundable.

7. Warranty
7.1The Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law may guarantee certain conditions, warranties and undertakings in relation to the Goods. To the extent they apply, these guarantees cannot be modified nor excluded by contract, and these Terms of Sale does not purport to modify or exclude any conditions, warranties, guarantees and undertakings under the Australian Consumer Law.
7.2 The Company warrants its goods to be free from defects in material and workmanship for a period of one (1) year from the date of collection or shipment from the factory. The Company shall not be responsible for any damage resulting to or caused by its goods by reason of improper installation, improper storage, unauthorised service, alteration of goods, neglect or abuse, or use of the goods in a manner inconsistent with its design, accident, acts of God, or failure to properly maintain these goods. This warranty does not extend to any component parts not manufactured by Company, however, Company’s warranty herein shall not limit any warranties made by manufacturers of component parts which may extend to Customer. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, AND NO REPRESENTATIONS, GUARANTEES OR WARRANTIES, EXPRESS OR IMPLIED, (INCLUDING, BUT NOT LIMITED, TO A WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) ARE MADE BY COMPANY IN CONNECTION WITH THE MANUFACTURE OR SALE OF ITS GOODS. NO EMPLOYEE, DISTRIBUTOR, OR REPRESENTATIVE IS AUTHORISED TO CHANGE THIS WARRANTY IN ANY WAY OR GRANT ANY OTHER WARRANTY ON BEHALF OF COMPANY.
7.3 Claims for defects in material and workmanship shall be made in writing to Company within thirty (30) days of the discovery of defect. Failure to provide notice as required hereby shall be conclusive evidence that the product was in conformity with the warranty, and the Company shall be released from any and all liability relating to the product. Company may either send a representative or have the goods returned to its factory at Customer’s expense for inspection. If judged by Company to be defective in material or workmanship, the goods will be replaced or repaired at the option of Company, free from all charges except authorised transportation. THE REMEDIES OF CUSTOMER SET 2 FORTH HEREIN ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER REMEDIES. THE LIABILITY OF COMPANY WHETHER IN CONTRACT, TORT, UNDER ANY WARRANTY, OR OTHERWISE, SHALL NOT EXTEND BEYOND ITS OBLIGATION TO REPAIR OR REPLACE, AT ITS OPTION, ANY PRODUCT OR PART FOUND BY COMPANY TO BE DEFECTIVE IN MATERIAL OR WORKMANSHIP. COMPANY SHALL NOT BE LIABLE FOR COST OF INSTALLATION AND/OR REMOVAL, OR BE RESPONSIBLE FOR DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE.

8. Limitation of Liability
8.1Notwithstanding anything else in this Agreement, and to the extent permissible by law, the Company’s aggregate liability arising out of the performance or non-performance of its goods and services, whether under the law of contract, tort, statute or otherwise, shall be limited to the price paid to the Company by the original Customer for the item(s) giving rise to the claim.
8.2The Company shall not be liable for any business interruption, loss of profit, revenue, materials, anticipated savings, data, contract, goodwill or the like (whether direct or indirect), or for any other form of incidental or consequent damage of any kind.
8.3The Company shall not be liable for any loss or damage where an action against the Company for such loss or damage is commenced after a period of eighteen (18) months has elapsed after the circumstances on which the alleged cause of action have occurred. This clause shall apply regardless of any other contrary provision in these Terms of Sale and regardless of the form of action. Each provision of these Terms of Sale which provides for a limitation of liability, disclaimer of warranty or condition or exclusion of damages is separate and independent.

9. Return of Goods
9.1 The Company will not accept returns for credit, other than defective Goods and warranty claims for which a credit, refund or repairs are required under the Australian Consumer Law, without prior authorisation.
9.2 Any Goods which the Customer returns for credit, other than defective Goods and warranty claims will only be accepted if they are in the original packaging and in as new saleable order and condition.
9.3 If the Company authorises the return of Goods a Return Authority (RA) will be raised and the RA number must be quoted by the Customer on or with any claim documentation sent with the Goods, which must be sent freight pre-paid or otherwise, if approved by the Company, carried by the Company’s nominated carrier.
9.4 The Company reserves the right, except for credits for defective Goods, to charge a handling fee equal to 20% of the credit value (plus GST) and to deduct this fee from the credit amount.

10. Goods and Services Tax (GST)
10.1 All prices will be quoted exclusive of GST. However, all goods will be sold on a ‘plus GST (if any)’ basis. Invoices will be issued in the prescribed form as set out by Section 195-1 of the GST Act and the related imposition Acts of the Commonwealth (the GST Law).
10.2 Any discounts or other terms agreed between the Customer and the Company will be calculated on and applied to the Purchase Price exclusive of GST.

11. Title
Legal and beneficial ownership of the Goods will not pass to the Customer until such time as the Goods have been paid in full in cash or cleared funds.

12. Risk of Loss
The risk of loss or damage to the Goods shall pass to the Customer upon collection of the Goods either by the Customer, their representatives or transport company.

13. Delivery
13.1 All Sales and pricing from the Company are made ex-factory Biggera Waters, Queensland and all shipping arrangements and charges are the responsibility of the Customer.
13.2 All care and assistance will be provided by the Company, their agent or representatives for freight loading purposes but the Company will not be responsible for loss or damage to goods in transit.
13.3 If insurance is required the Company recommends the Customer contacts their insurance company to ensure that the goods are adequately covered.
13.4 If the Customer fails to collect the Goods or arrange shipping within 10 days of being notified of their availability, the Company may terminate this contract, keep the deposit and resell the Goods.
13.5 In addition, the Company reserves the right to charge the Customer storage on Goods not collected or shipped within 10 days of notification of their availability at the current commercial rate per week or part thereof.
13.6 Any failure on the part of the Company to deliver instalments within any specified time does not entitle the Customer to repudiate the contract with regard to the balance remaining undelivered.

14. Performance and Representations
14.1 The Customer acknowledges that neither the Company nor any person purporting to act on its behalf has made any representation or given any promise or undertaking which is not expressly set out in writing whether as to the fitness of the Goods for any particular purpose or any other matter.
14.2 The Customer is solely responsible for obtaining all necessary permits and licences to comply with all applicable legislation, regulations, by-laws or rules (if any) having the force of law in connection with the installation and operation of the Goods (unless otherwise stated supplied by the Company).
14.3 The Customer must comply with all instructions provided by the Company, it’s Agents or Supplier’s in relation to the fitting, installation and use of the Goods.
14.4 Individually Constructed Vehicles (lCV’s) must be constructed in accordance with the requirements of the National Code of Practice for Light Vehicle Construction and Modification and state based legislation including the Transport Operations (Road Use Management – Vehicle Standards and Safety) Regulation 2010.

15. Default in Payment
The Company will treat any default by the Customer in payment of any monies due to the Company as a breach of these Terms and Conditions. The Company reserves the right thereupon to cease work on the relevant order and all other orders placed by the Customer and hold all the Customer’s work until the due payment or payments on all moneys owed are made. Recurring payments default may, at the Company’s discretion, lead to the Customer’s account with the Company being closed and any further order placed by the Customer and accepted by the Company will only be processed when prepaid at the Company’s absolute discretion.

16. Waiver
Failure by the Company to insist upon strict performance of any term, warranty or condition of these Terms and Conditions shall not be deemed as a waiver thereof or of any rights the Company may have and no express waiver shall be deemed a waiver of any subsequent breach of any term warranty or condition.

17. Confidentiality and Intellectual Property Rights
All intellectual property rights, including but not limited to copyright, patents, design rights, trademarks, software and licences in, or related to, Goods supplied by the Company remain the property of the Company and shall not be available in any form to third parties, nor re-used by the Customer, unless agreed to in writing by the Company.

18. Non-Competitive Agreement
The Customer acknowledges that the Company has the sole rights to the design and manufacture of the goods (body-chassis unit known as Stryker) and the Customer agrees and warrants that they will not attempt to copy or reproduce these goods either in whole or in part. The Customer agrees that they will not allow their agents to do so, nor will they act as agents for any other person, group or corporation to do so. The Customer will not claim goods as their own and will not make any claims to the right to sell these goods, (except the re-sale of their own vehicle/s). The Customer further agrees that the provisions of this agreement shall be binding on their heirs, personal representatives, successors and assigns.

19. Indemnity
The Customer releases and indemnifies the Company, its related bodies corporate, and their respective officers, employees, consultants and agents from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly with those indemnified, and whether at common law, in equity or pursuant to statute or otherwise, in respect of any loss, death, injury, illness or damage (whether personal or property, and whether direct or consequential, including consequential financial loss) arising out of a breach of Customer’s warranties or obligations contained in these Terms, and from and against all damages, reasonable costs and expenses incurred in satisfying, defending or settling any such claim, proceeding or demand.

20. Improvements, Alterations & Cross Reference
20.1 The Company has a policy of continuous improvement to its Goods and in pursuance of that policy reserves to itself the right to make without notice any changes in material, dimensions or design of goods which having regard to all the circumstances it believes to be reasonable or desirable and such changes shall not affect the validity of the contract.
20.2 All Company’s literature containing product illustrations and dimensions and any other information relating to the Company’s goods are used for reference purposes only and are not guaranteed to be exact. The Company accepts no legal liability for errors or omissions to this information.
20.3 Other manufacturer’s product part numbers are used for reference purposes only and are not guaranteed to be exact. The Company accepts no legal liability for errors or omissions to this information.

21. Assignment and Sub-Contracting
21.1 Without the express written consent of the other party, neither party may assign any of its rights or obligations in connection with the sale of the goods and/or services.
21.2 The Company shall have the right to sub-contract any of its duties or obligations under this agreement.

22. Force Majeure
The Company will not be liable for any breach of contract due to any matter or situation beyond the Company’s control (including but not limited to transport stoppages, transport breakdown, fire, flood, earthquake, acts of God, strikes, lock-outs, work stoppages, wars, riots or civil commotion, acts of terrorism, intervention or public authority, explosion or accident.

23. Severability
If any provision contained in these Terms is held by a court to be unlawful, invalid or unenforceable, the validity and enforceability of the remaining provisions are not affected.

24. Notices
24.1 Any notice to be given by the Customer to the Company must be in writing and shall be sent to the Company’s registered address which is, until notified otherwise, as follows; 1a Panorama Parade, Seaforth NSW 2092
24.2 No notice shall be deemed to have been given until it is actually received at such address.
24.3 The Customer agrees that service of any notices or Court documents may be effected by forwarding the same by pre-paid post to the last known address of the Customer.

25. Governing Law
These terms and conditions and each Contract will be read and construed in accordance with the laws of the State of New South Wales and both parties agree to submit to the jurisdiction of the courts and tribunals of that State and of the Commonwealth of Australia.

26. Entire Agreement
These Terms and Conditions contain all the terms of the agreement between the parties and supersede all prior discussions and arrangements. In the event that there is any conflict between the provisions of these Terms and Conditions and the provisions of a Purchase Order or any record of any other agreement that the Company may have with the Customer, then the provisions of these Terms and Conditions shall prevail.