Terms & Conditions
TERMS AND CONDITIONS OF TRADE
1. Definitions and Interpretation
In this Agreement:
Company means Off Road Camping Accessories Pty Ltd ABN 58 075 829 882 and includes its successors and assigns;
Goods means the Goods and/or Services the subject of the sale described in the section headed “Camper Details” in the Order Form;
Order Form means the document entitled “Order Form” which these Terms and Conditions of Trade accompany.
Price means the Price in $AUD as described in the Order Form (payable in stages) and is inclusive of any applicable GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Purchaser means the Purchaser(s) named in the Order Form and where more than one, the obligations of the Purchaser are held by them jointly and severally;Headings in this Agreement are for convenience only and will not affect their interpretation.
2. Orders and Payment
2.1 Completion and submission of an Order Form by a Purchaser with payment of stage 1 of the Price as a deposit is an offer to purchase the Goods from the Company on these Terms and Conditions of Trade. The Company is not obliged to accept any order placed by a Purchaser.
2.2 The Company will issue a tax invoice to the Purchaser for the supply of Goods pursuant to an accepted order. The Company will sell the Goods at the Price nominated by the Company on its website or published promotional materials and special or customised orders will be charged at a Price to be agreed between the Company and the Purchaser. The Company reserves the right to amend the Price and specifications of Goods at any time (but not in relation to an accepted order).
2.3 Payment of the Price is made in stages as set out in the Order Form. The Price must be paid to the Company by the dates and times specified in the Order Form. Stage payments made at 90 days prior to pick-up shall be deemed as confirmation of the Purchaser’s intention to complete the transaction. Final confirmation of options and accessories shall be within 14 days of the 90 day stage payment. Payment of each stage of the Price other than the final stage may be made by cheque, money order, cash or electronic funds transfer. Payment of the final stage of the Price must be made by money order, cash or electronic funds transfer. Bank cheques will only be accepted provided they can be banked in time to clear before camper pick up. Credit cards (Visa, Mastercard) will be accepted subject to a handling/administration fee of 1.5% of the payment (subject to change). The Price is paid on receipt of the amounts on clearance of funds in the Company’s nominated bank account.
2.4 The Purchaser must collect the Goods from the Company’s premises. If the Purchaser is unable to collect the Goods, from the Company’s premises, arrangements may be agreed to between the Company and the Purchaser for transporting the Goods to another location however, the Company is not obliged to make those arrangements.
2.5 Signature of any delivery note by the Purchaser or any agent, employee, carrier or representative of the Purchaser is conclusive proof of delivery. The Company may make delivery of any Goods by instalments.
2.6 The Purchaser agrees to pay to the Company interest on any amounts due to the Company but unpaid after 30 days at the rate of 11.0% per annum, calculated daily until paid.
2.7 The Purchaser further agrees that all costs and disbursements incurred by the Company in recovering payment of any overdue invoice or in enforcing its rights under this Agreement, including without limitation, legal costs on a solicitor and client basis are recoverable against the Purchaser as a debt.
2.8 Apart from the right of cancellation conferred by clause 6 below, no order from the Purchaser may be cancelled by the Purchaser except with the written consent of the Company which may be withheld in the Company’s absolute discretion and on terms agreed with the Company, including that the Purchaser will forfeit accumulated stage deposits (Stages 1, 2 and 3 for Nautilus; Stages 1 and 2 for XPLOR and XTRK models) to the Company as a cancellation fee.
2.9 On acceptance of an offer from the Purchaser, the Company will immediately prepare to provide the Goods as ordered.
2.10 If a Purchaser wishes to alter an order placed with and accepted by the Company, the Company may accede to such a request on terms satisfactory to the Company, including any increase in the Price. Where no materials have been ordered and no work has been undertaken, there may be no cost for such alterations.
2.11 The Company may refrain from providing any Goods, cease production and terminate this Agreement in accordance with clause 6 if the Purchaser has not strictly complied with any term of this Agreement.
2.12 Delays can arise in the manufacturing process, particularly with technical issues and sourcing parts and components. The Company will use reasonable endeavours to seek to ensure that the Goods are available to the Purchaser by the expected Delivery Date noted on the Order Form however, the Company does not warrant that the Goods will be ready by that date and the Purchaser has no right of action for damages or any other remedy for any loss arising from a delay in delivery of the Goods.
3. Title and Risk
3.1 Risk of damage to or loss of the Goods passes to the Purchaser upon delivery of the Goods to the Purchaser. Goods will not be delivered or made available to a Purchaser until the Price is paid in full
3.2 Title in the Goods does not pass to the Purchaser until payment of the Price and any associated costs and expenses, in full.
3.3 Where Goods are to be transported to the Purchaser pursuant to clause 2.4, the Price and any transportation costs must be paid in full prior to transporting them. Risk in the Goods passes to the Purchaser from the time the Goods leave the Company’s premises so the Purchaser ought to arrange appropriate insurances.
4. Force Majeure
4.1 The Company will not be liable to the Purchaser in any manner or be deemed to be in breach of this Agreement because of any delay in performing or any failure to perform any of the Company’s obligations under this Agreement if the delay or failure was due to any cause beyond the Company’s reasonable control.
4.2 The following will be included (without limitation) as causes beyond the Company’s reasonable control: (a) governmental actions, war or threats of war, national emergency, riot, civil disturbance, sabotage or requisition; (b) Acts of God, fire, explosion, flood, epidemic or accident; (c) import or export regulations or embargoes; (d) labour disputes not including disputes involving the Company’s work-force; (e) any kind of carriage, transportation or postal delay; or (f) inability to obtain or delay in obtaining supplies to enable provision of the Goods.
5.1 The Company will provide the Goods in accordance with any applicable industry or statutory standards, any applicable literature regarding the Goods as published by the Company from time to time and any specifications agreed in writing between the parties. This warranty does not affect the Purchaser’s obligation to pay the Price. To the maximum extent permitted by law, the Company does not provide any other warranty in relation to the Goods other than that in this clause and those required by statute. To the maximum extent possible, any other warranties that may be asserted whether express or implied and including through statute, are expressly negatived and excluded.
5.2 The Purchaser warrants that before placing an order, the Purchaser satisfied itself that the quantities, descriptions and specifications in the Order Form were correct and that the Goods, including their specifications, are suitable for the Purchaser’s purposes and that the Purchaser’s vehicle is suited to the Goods.
5.3 The Purchaser further acknowledges that the Goods need to be properly and regularly checked and maintained and the Purchaser warrants to the Company that it will take all reasonable precautions in using, supervising the use of and regularly maintaining the Goods to minimise any risk of personal injury or damage to or loss of property, including those of third parties.
5.4 The Purchaser acknowledges that the Company has intellectual property and other similar rights (including pending and unregistered rights) in relation to the Goods and warrants that it will not and will not assist, whether directly or indirectly, any entity to take any steps to derogate from or impede those rights.
6.1 The Company may terminate this Agreement without cause and without prior notice at its absolute discretion.
6.2 Subject to clause 2.8 and 6.4, the Purchaser may terminate this Agreement on 14 days notice.
6.3 Termination by either party must be notified in writing to the other party.
6.4 Upon the termination of this Agreement prior to delivery of the Goods, the Purchaser will forfeit their accumulated deposit (inclusive of GST) up to any including 90 days prior to pick-up date unless the Directors of the Company deem hardship or unusual circumstance which will be solely at the discretion of the Directors. A tax invoice in this regard will be issued as described in clause 2.2.
6.5 The termination of the Agreement is without prejudice to the rights and obligations of either party accrued prior to termination.
7. Limitation of Liability
7.1 To the maximum extent permitted by law, the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Agreement is excluded.
7.2 Where such liability cannot be excluded completely, liability is limited to the Price or: (a) replacing the Goods or supplying equivalent products; (b) repairing the goods; (c) paying the cost or replacing the goods or acquiring equivalent goods; or (d) paying the cost of having the Goods repaired, as elected by the Company in the Company’s absolute discretion.
Any claim by the Purchaser for omissions, damage or defective workmanship must be notified to the Company in writing within 14 days of delivery, failing which no claim may be made. The Company shall have the right to inspect and if warranted, the Company shall have a reasonable time to repair or rectify (in the Company’s absolute discretion) the Goods having regard to the time it takes to source products, parts or labour. This clause relates to the initial delivery of the Goods, and does not affect the full warranty offered by the Company.
The Purchaser indemnifies the Company and its officers, contractors, delegates, employees and agents for any and all loss, cost, damage, liability or expense, whether direct, indirect, special or consequential (including, but not limited to, economic loss, loss of opportunity, loss of profit or revenue, loss or damage in connection with claims against the Purchaser by third parties, liquidated sums or liquidated damages) that the Company suffers itself or incurs in relation to any third party, where the loss, cost, damage, liability or expense (whether in relation to any claim in relation to any injury caused to any person or damage to or loss of any property or otherwise) is caused by or contributed to by an act or omission of the Purchaser or its officers, contractors, delegates, employees or agents for such things including but not limited to the use and maintenance of the Goods.
10. No Assignment
Neither this Agreement, nor any rights or obligations in this Agreement, may be assigned or otherwise transferred by the Purchaser without the prior written consent of the Company, which may be withheld in the Company’s absolute discretion. The Company may assign its rights or obligations without the Purchaser’s consent.
The Company may delegate or sub-contract the performance of any obligation under this Agreement without the written consent of the Purchaser
12. Governing Law and Jurisdiction
This Agreement and the transactions contemplated by this Agreement are governed by the law in force in New South Wales, Australia and the parties submit to the exclusive jurisdiction of the courts of New South Wales, Australia and all courts competent to hear appeals from the courts of New South Wales, Australia in respect of all proceedings arising in connection with this Agreement
13. Arbitration of Disputes
All questions, disputes or differences which arise between the parties with respect to this Agreement are to be referred to a single arbitrator in accordance with the provisions of the Commercial Arbitration Act 1984 (NSW) or any re-enactment or statutory modification of that law for the time being in force.
14. Variation and Waiver
The terms of this Agreement may be varied only by a written agreement between the parties. No right or remedy under or arising from this Agreement may be waived other than in writing signed by all the parties. Accordingly, any non-exercise or partial exercise of, or any delay in exercising any right or remedy does not constitute a waiver of that right or remedy.
If any provision of this Agreement should be held to be void, illegal or unenforceable in any way, it may be severed or read down as appropriate and the remaining provisions will not in any way be effected or impaired thereby and this Agreement will be construed so as to most nearly give effect to the intent of the parties as it was originally executed.
16. Entire agreement
This Agreement (comprising these Terms and Conditions of Trade and the Order Form) constitutes the entire agreement of the parties about its subject matter and any previous document, understanding and negotiation on that subject matter ceases to have any effect.