These Terms of Trade set out the basis on which the Supplier provides its Services to the Customer as specified in the Quote or Order.

If you have any queries regarding these Terms of Trade, please contact the Supplier.

Agreed terms

1. Definitions and interpretations

1.1 Definitions

Additional Charge means:

fees or charges for additional work performed at the Customer’s request or reasonably required as a result of the Customer’s conduct, calculated in accordance with the Supplier’s then current prices; and
expenses incurred by the Supplier, at the Customer’s request or reasonably required as a result of the Customer’s conduct.

Agreement means the agreement between the Supplier and Customer consisting of the Quote, Order and these Terms, regarding the delivery of Services by the Supplier to the Customer.

Business Day means a day that is not a Saturday, Sunday or public holiday in the place where the Services are principally being carried out or the Services are provided.

Customer means the person identified on a Quote or Order as the customer and includes the Customer’s agents and permitted assigns.

Loss includes, but is not limited to, costs (including party to party legal costs and the Supplier’s legal costs), expenses, lost profits, award of damages, personal injury and property damage.

Order means a purchase order for the Services placed by a Customer in response to a Quote and as varied in writing from time to time by the parties.

PPS Law means:

the Personal Property Securities Act 2009 (Cth) (PPS Act) and any regulation made at any time under the PPS Act (each as amended from time to time); and
any amendment made at any time to any other legislation as a consequence of a PPS Law.

Quote means the written document (which may comprise a single document or exchange of correspondence) which contains a description of the Services to be provided, an estimate of the Supplier’s charges for the performance of the required work and an estimate of the time frame for the performance of the work.

Services means the vehicle towing services, any other services specified in a Quote or Order, and all services incidental thereto, to be provided by the Supplier to the Customer in accordance with these Terms.

Supplier means Wholesale Car Parts Australia Pty Ltd A.C.N 142 506 527 and includes the Supplier’s agents and permitted assigns.

Terms means this document setting out the terms on which the Supplier will provide the Services to a Customer.

1.2 Interpretations

In these Terms, unless the context otherwise requires:

a reference to writing includes email and other communication established through the Supplier’s website (if any);
the singular includes the plural and vice versa;
a reference to a clause or paragraph is a reference to a clause or paragraph of these Terms;
a reference to a party to these Terms or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
headings are for ease of reference only and do not affect the meaning or interpretation of these Terms; and
if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:
1. if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
2. in all other cases, must be done on the next Business Day.

2. General

These Terms apply to all transactions between the Customer and the Supplier relating to the provision of the Services. This includes all quotations, contracts and variations. These Terms take precedence over Terms contained in any document of the Customer or elsewhere.
The variation or waiver of a provision of these terms or a party’s consent to a departure from a provision by another party is ineffective unless in writing signed by the parties.
The Supplier may amend any details in a Quote by notice in writing to the Customer. Such amended details supersede any relevant prior detail in dealings between the parties.
The Customer will be bound by these Terms where it has:
1. executed a copy of these Terms;
2. advised the Supplier, either verbally or in writing, that it wishes to engage the Supplier to deliver the Services after receiving these Terms; or
3. paid to the Supplier any deposit or amount quoted in a Quote or Order.

3. Quote

The Supplier may provide the Customer with a Quote. Any Quote issued by the Supplier is valid for 24 hours from the date of issue.
Unless otherwise expressly agreed in writing, a Quote does not include delivery or confirmation of the Services.
Quotes are based upon the cost of the Services included at the time of preparation of the Quote and assume the timely supply by the Customer of the necessary Order and instructions to the Supplier.
Following provision of a Quote to the Customer, the Supplier is not obliged to commence work until the Quote has been accepted by the Customer. This occurs by the Customer completing an Order form and returning the form to the Supplier.
The Supplier reserves the right to amend any Quote before the Order has been completed to take into account any rise or fall in the cost of completing the Order. The Supplier will notify the Customer of any amendment as soon as practicable, at which point the amended Quote will be the estimate or Quote to these Terms.
An indication in a Quote of the time frame for the provision of the Services is an estimate only and is not a fixed time frame. Subject to any obligations in respect of consumer guarantees under chapter 3, part 3-2, division 1 of the Australian Consumer Law (ACL), this estimate is not binding upon the Supplier.

4. Orders

Every Order by the Customer for the provision of the Services must be submitted in writing on the Supplier’s standard Order form (unless otherwise agreed).
An Order will only be deemed to be placed by the Customer if the Order clearly identifies the Services ordered and the Supplier’s Quote. Any costs incurred by the Supplier in reliance on incorrect or inadequate information provided by the Customer in an Order may result in the imposition of an Additional Charge.
Orders must be signed by an authorised representative of the Customer and must specify the required date of delivery.
Placement of an Order by the Customer signifies acceptance by the Customer of these Terms and the most recent Quote provided by the Supplier relating to that Order.
The Supplier may in its absolute discretion refuse to provide the Services where:
1. it is unavailable for any reason whatsoever;
2. credit limits cannot be agreed upon or have been exceeded; or
3. payment for the Services previously provided to the Customer or any related corporation of the Customer or to any other party who is, in the reasonable opinion of the Supplier, associated with the Customer under the same or another supply contract, has not been received by the Supplier.
An Order cannot be cancelled without the prior written consent of the Supplier. Where an Order is cancelled, the Customer indemnifies the Supplier against any Losses incurred by the Supplier as a result of the cancellation. This includes, but is not limited to, loss of profit from other orders foregone as a result of the scheduling of the Order which is subsequently cancelled.

5. Variations

The Customer may request that its Order be varied by providing a request in writing to the Supplier. A request for a variation must be agreed to in writing by the Supplier in order to have effect.
If the Customer wishes to vary its requirements after a Quote has been prepared by the Supplier or after the placement of an Order, the Supplier reserves the right to vary the Quote to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates. A revised Quote issued by the Supplier in respect of the requested variation supersedes the original Quote. If the revised Quote only specifies additional work, the Quote for that additional work will be in addition to the immediately preceding Quote for the Services or both.
The Supplier has an automatic extension of time for the provision of the Services equal to the delay caused by the variation.

6. Vehicle Contents

The Supplier accepts no responsibility for personal belongings left in vehicles and the Customer acknowledges that it is the responsibility of the Customer to remove valuable items before towing.
Loss or damage to personal belongings left in vehicles will not be the responsibility of the Supplier and the Customer hereby releases the Supplier in respect of all such Loss.

7. Access and Safety

The Customer warrants to the Supplier that it will, for the purpose of enabling the Supplier to deliver the Service:

provide safe and adequate access to the vehicle to be collected by the Supplier;
inform the Supplier of any special conditions or hazards that may impact upon the ability of the Supplier to safely and efficiently provide the Services; and
comply with all reasonable directions from the Supplier and its personnel regarding the delivery of the Services.

8. Insurance Claims

If the Customer is intending to charge an insurance provider for delivery of the Service by the Supplier, the Customer acknowledges:

the Customer remains principally liable for payment to the Supplier for the Services;
where the insurer is unable to make payment to the Supplier within the standard payment terms of the Supplier, unless otherwise agreed in writing, the Customer must make payment to the Supplier directly and seek to recover any such amounts from the insurer directly;
the Customer must provide all relevant insurance information to the Supplier upon request; and
the Supplier will be entitled to recover any amounts from the Customer that are not paid by an insurer as a debt due and owing.

9. Invoicing and payment

The Supplier may, in its absolute discretion, issue an invoice to the Customer in any one or more of the following ways:
1. prior to commencing the provision of any Services, for an amount equal to the Quote and Additional Charges where the Supplier has not previously carried out work for the Customer or where the Supplier chooses to do so;
2. at the end of each week before the Order is completed, the Supplier may issue one or more invoices for a proportion or the whole of the amount of the Quote (the proportion to be calculated at the Supplier’s discretion either for work done to that point, work in the future or both) and require that proportion of the Quote be paid in advance of any further Services being provided; or
3. upon completion of the provision of the Services or any time after such completion, for an amount equal to the Quote or the balance of the Quote outstanding, any Additional Charges and any amount not previously invoiced, or if no Quote was provided, for an amount representing the Supplier’s charge for the work performed in completing the Order and for any Additional Charges.
The amount payable by the Customer will be the amount set out in the invoice. This will be calculated as:
1. the amount for the Services as set out in the Quote and any Additional Charges; or
2. where no Quote has been provided by the Supplier, the Supplier’s usual charges for the Services as described in the Order.
The Customer must pay an invoice issued by the Supplier to the Supplier within seven (7) days of a valid tax invoice being issued to the Customer.
If any invoice is due but unpaid, the Supplier may withhold the provision of any further Services until overdue amounts are paid in full.
The Supplier may in its complete discretion apply any payment received from the Customer to any prior or earlier amount owing by the Customer to the Supplier.
The Customer is not entitled to retain any money owing to the Supplier regardless of any default or alleged default by the Supplier of these Terms, including provision of Services to an inadequate standard or a delay in the provision of any Services. Nothing in this paragraph affects the Customer’s rights for any alleged failure of a consumer guarantee under the ACL.
All amounts outstanding from the Customer to the Supplier will incur interest calculated at the rate of 20% per annum, calculated daily.
All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees, costs of debt collection and internal costs and expenses of the Supplier, are to be paid by the Customer as a debt due and payable under these Terms.
The Customer and the Supplier agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any other applicable legislation governing GST.

10. Additional Charges

The Supplier may require the Customer to pay Additional Charges in respect of Costs incurred by the Supplier as a result of reliance on inadequate or incorrect information or material provided by the Customer or information or material supplied later than required by the Supplier in order for it to provide the Services within the specified time frame (if any).
The imposition of Additional Charges may also occur as a result of:
1. cancellation by the Customer of an Order where cancellation results in Loss to the Supplier;
2. storage costs for vehicles not collected from the Supplier within one week of the date on which the Services are performed; or
3. additional work required by the Customer or any other occurrence which causes the Supplier to incur costs in respect of the Customer’s Order additional to the quoted cost.

11. PPSR

If:
1. a PPS Law applies or commences to apply to these Terms or any transaction contemplated by them, or the Supplier determines (based on legal advice) that this is the case; and
2. in the Supplier’s opinion, the PPS Law:
  1. does or will adversely affect the Supplier’s security position or obligations; or
  2. enables or would enable the Supplier’s security position to be improved without adversely affecting the Customer,
3. the Supplier may give notice to the Customer requiring the Customer to do anything (including amending these Terms or execute any new terms and conditions) that in the Supplier’s opinion is necessary, to the maximum possible extent, to overcome the circumstances contemplated in paragraph 11(a)(ii)(A) or improve the security position as contemplated in paragraph 11(a)(ii)(B). The Customer must comply with the requirements of that notice within the time specified in the notice. If having completed everything reasonably practicable as required under this paragraph, in the Supplier’s opinion the Supplier’s security position or obligations under or in connection with these Terms have been or will be materially adversely affected, the Supplier may by further notice to the Customer cancel these Terms. If this occurs, the Customer must pay to the Supplier any money owed to the Supplier by the Customer immediately.

12. Agency and assignment

The Customer agrees that the Supplier may at any time appoint or engage an agent to perform an obligation of the Supplier arising out of or pursuant to these Terms.
The Supplier has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these Terms provided that the assignee agrees to assume any duties and obligations of the Supplier owed to the Customer under these Terms.
The Customer is not to assign, or purport to assign, any of its obligations or rights under these Terms without the prior written consent of the Supplier.

13. Default by Customer

Each of the following occurrences constitutes an event of default:
1. the Customer breaches these Terms for any reason (including, but not limited to, defaulting on any payment due under these Terms) and fails to remedy that breach within seven (7) days of being given notice by the Supplier to do so;
2. the Customer, being a natural person, commits an act of bankruptcy;
3. the Customer, being a corporation, is subject to:
  1. a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved;
  2. a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 (Cth) being appointed to all or any part of the Customer’s property and undertaking;
  3. the entering of a scheme of arrangement (other than for the purpose of restructuring); and
  4. any assignment for the benefit of creditors;
4. the Customer purports to assign its rights under these Terms without the Supplier’s prior written consent; or
5. the Customer ceases or threatens to cease conduct of its business in the normal manner.
Where an event of default occurs, except where payment in full has been received by the Supplier, the Supplier may:
1. terminate these Terms;
2. terminate any or all Orders and credit arrangements (if any) with the Customer;
3. refuse to deliver Services or provide further Services;
4. pursuant to paragraph 9(c), re-assign any Services delivered to the Customer, the payment for which has not been received; or
5. retain (where applicable) all money paid by the Customer on account of any Services or otherwise.
In addition to any action permitted to be taken by the Supplier under paragraph 12(b), on the occurrence of an event of default all invoices will become immediately due and payable.

14. Termination

In addition to the express rights of termination provided in these Terms, a party may terminate these Terms by giving two (2) days written notice to the other party.
If the Customer terminates this Agreement and does not provide two (2) days written notice to the Supplier, the Customer acknowledges that it will be responsible for payment of all amounts that would have otherwise been due and owing to the Supplier, had the Supplier delivered the Services.

15. Exclusion and limitations of liability

The Customer expressly agrees that use of the Services and all vehicles collected by the Supplier in delivery of the Services are and remain at all times at the Customer’s risk. To the full extent allowed by law, the Supplier’s liability for breach of any term implied into these Terms is excluded.
The Supplier gives no warranty in relation to the Services provided or supplied. Under no circumstances is the Supplier or any of its suppliers liable or responsible in any way to the Customer or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues) as a result, direct or indirect of any defect, deficiency or discrepancy in the Services. This includes their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:
1. any Services supplied to the Customer;
2. any delay in supply of the Services; or
3. any failure to supply the Services.
Any advice, recommendation, information, assistance or service given by the Supplier in relation to the Services or both, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. It is provided without any warranty of accuracy, appropriateness or reliability. The Supplier does not accept any liability or responsibility for any Loss suffered as a result of the Customer’s reliance on such advice, recommendation, information, assistance or service.
To the fullest extent permissible at law, the Supplier is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide the Services, or otherwise arising out of the provision of the Services, whether based on Terms, negligence, strict liability or otherwise, even if the Supplier has been advised of the possibility of damages.
The Customer acknowledges that the Services are not for personal, domestic or household purposes.
The ACL may give to the Customer certain consumer guarantees (if the Customer is defined as a consumer in section 3 of the ACL), which cannot be restricted, limited or varied.

16. Indemnity

The Customer indemnifies and keeps indemnified the Supplier, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Customer) against the Supplier or, for which the Supplier is liable, in connection with any Loss arising from or incidental to the provision of any Services, any Order or the subject matter of these Terms.
This includes, but is not limited to, any legal costs incurred by the Supplier in relation to meeting any claim or demand or any party or party legal costs for which the Supplier is liable in connection with any such claim or demand.
This provision remains in force after the termination of these Terms.

17. Force majeure

If circumstances beyond the Supplier’s control prevent or hinder its provision of the Services, the Supplier is free from any obligation to provide the Services while those circumstances continue. The Supplier may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.
Circumstances beyond the Supplier’s control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.

18. Dispute Resolution

If a dispute arises between the Customer and the Supplier, the following procedure applies:
1. A party may give another party a notice of the dispute and the dispute must be dealt with in accordance with the procedure set out in this paragraph.
2. A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with this paragraph.
3. A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this paragraph.
If a dispute is notified, the dispute must immediately be referred to the parties’ respective senior management. Those representatives must endeavour to resolve the dispute as soon as possible and in any event within 7 (seven) Business Days (or other period as agreed).
Unless otherwise agreed by the parties, any dispute that cannot be settled by negotiation between the parties or their representatives, the parties expressly agree to endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation. The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation (Guidelines) which operate at the time the matter is referred to ACDC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the Guidelines are incorporated into these Terms. This paragraph survives termination of these Terms.
Despite the existence of a dispute (including the referral of the dispute to mediation), each party must continue to perform its obligations under these Terms.
The parties must hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.

19. Miscellaneous

These Terms are governed by the laws of the state or territory where the Supplier’s registered office is situated and each party irrevocably submits to the non-exclusive jurisdiction of the courts of that state or territory.
These Terms and any Quotes and written variations agreed to in writing by the Supplier represent the whole agreement between the parties relating to the subject matter of these terms.
These Terms supersede all oral and written negotiations and communications by and on behalf of either of the parties.
In entering into these Terms, the Customer has not relied on any warranty, representation or statement, whether oral or written, made by the Supplier or any of its employees or agents relating to or in connection with the subject matter of these Terms.
If any provision of these Terms at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on a Quote (or as varied pursuant to this paragraph) and delivered personally, sent by pre-paid mail to the address of the addressee specified in the relevant Quote; sent by fax to the fax number of the addressee specified in the relevant Quote, with acknowledgment of receipt from the facsimile machine of the addressee; or sent by email to the email address of the addressee specified in the relevant Quote with acknowledgement of delivery.
A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second Business Day after posting; or if sent by fax or email before 4 pm one Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.
A party may only change its postal or email address or fax number for service by giving notice of that change in writing to the other party.

Terms of Trade