Conditions of sale

1 Definitions and interpretation

1.1 Definitions

Buyer means the purchaser of the Goods, whose details are set out in the invoice.

Delivery means the completion of work in respect of the Goods.

Goods means the products and services specified in the invoice.

PPSA means the Personal Property Securities Act 2009 (Cth).

Volkstech means Volkstech Pty Ltd, A.C.N. 166 308 194.

1.2 Interpretation

Nothing in these conditions exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010 (Cth)) and which by law cannot be excluded, restricted or modified.

2 Terms of sale

The Goods and all other products sold by Volkstech are sold on these terms and conditions.

3 Volkstech’s quotations

Unless previously withdrawn, Volkstech’s quotations are open for acceptance within the period stated in them or, when no period is so stated, within 5 days only after its date or if the Buyer accepts the Volkstech’s quotation over the phone then same will be noted in the work order. The Volkstech reserves the right to refuse any order based on this quotation within 5 days after the receipt of the order

4 Specifications, etc.

a) All specifications, drawings, and particulars of weights and dimensions submitted to the Buyer are approximate only and any deviation from any of these things does not vitiate any contract with the Volkstech or form grounds for any claim against the Volkstech.

b) The descriptions, illustrations and performances contained in catalogues, price lists and other advertising matter do not form part of the contract of sale of the Goods or of the description applied to the Goods.

c) Where specifications, drawings or other particulars are supplied by the Buyer for the purposes of the Goods order, the Volkstech’s price will be calculated on the basis of estimates of quantities required to provide the Goods as specified, drawn or otherwise particularised by the Buyer. If there are any adjustments in quantities above or below the quantities estimated by Volkstech as set out in a quotation, then any such increase or decrease will be adjusted on a unit rate basis according to unit prices set out in this document or in the quotation.

5 Performance

a) Any performance figures given by the Volkstech are estimates only. The Volkstech is under no liability for damages for failure of the Goods to attain such figures unless specifically guaranteed in writing. Any such written guarantees are subject to the recognised tolerances applicable to such figures.

b) The Buyer acknowledges and agrees that any modifications to ECU or Transmissions including any parts which are intended for circuit racing only are expressly not intended for daily driving and the Volkstech will have no liability whatsoever in respect of:-

  • any claims, proceedings, expenses, costs (including legal costs on a solicitor and own client basis);
  • any personal injury or death of any person;

any special, indirect, punitive or consequential loss or damage, loss of business profits, loss of use of property, loss of business revenue, loss of anticipated savings, loss of bargain, loss of data, loss of opportunity or loss of or damage to goodwill or reputation, however caused and whether arising in contract, tort (including negligence); or any damages, losses and other liabilities of any kind including arising directly or indirectly; caused from daily driving and circuit racing.

6 Delivery

a) The delivery times made known to the Buyer are estimates only and the Volkstech is not liable for late delivery or non-delivery.

b) The Volkstech will not be liable for any loss, damage or delay occasioned to the Buyer or its customers arising from late or non-delivery or late installation of the Goods.

7 Consumer guarantees & Manufacturer Warranty

Our Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure. You are also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.

We may use OEM parts in new, refurbished or used parts and Goods in carrying out the Goods or service and as such are covered by the manufacturer’s warranty which could vary from 3 to 12 months, depending on whether the parts are new, refurbished or used, from the date of purchase as shown on your invoice. A receipt or other proof of purchase must be provided to verify the date of purchase.

Any Goods, parts or accessories not approved by the Volkstech, not confirming to the manufacturer’s factory specification or are counterfeit or are reconditioned and sold as new will fall outside any warranty period and the Buyer acknowledges and agrees to bear any and all liability in respect of same.

Any Goods which are purchased by the Buyer and subsequently used other than how those Goods were designed or intended to be used will fall outside any warranty period and the Buyer acknowledges and agrees to bear any and all liability in respect of same.

Any Goods which are designed to wear will not be covered for fair wear and tear, for example; brakes, clutch, filters, wiper blades, tyres, batteries, etc. These Goods must be used in compliance with manufacturer’s specifications to be covered in respect of faulty Goods.

The Volkstech’s liability for a breach of a condition or warranty implied by Part 3-2 Division 1 of the Australian Consumer Law is limited to:

a) in the case of Goods, any one or more of:

  • the replacement of the Goods or the supply of equivalent goods;
  • the repair of the Goods;
  • the payment of the cost of replacing the Goods or of acquiring equivalent goods; and
  • the payment of the cost of having the Goods repaired; or

b) in the case of services:

  • the supplying of the services again; or
  • the payment of the cost of having the services supplied again.

8  Limitation on Liability

The Volkstech’s liability to the Buyer under section 274 of the Australian Consumer Law is expressly limited to a liability to pay to the Buyer an amount equal to:

a) the cost of replacing the Goods;

b) the cost of obtaining equivalent goods; or

c) the cost of having the Goods repaired,

whichever is the lowest amount.

Expect as specified in clause 7 and 8, the Buyer acknowledges and agrees that the Volkstech will not be liable to the Buyer in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by the Buyer of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill.

9 Prices

a) Unless otherwise stated all prices quoted by Volkstech are exclusive of Goods and Services Tax (GST).

b) If the Volkstech makes any alterations to the price of the Goods or to any of their inputs either before acceptance of or during the currency of the contract, these alterations are for the Buyer’s account.

10 Payment

a) The purchase price for the Goods plus GST where applicable is payable when the work is completed (Payment Due Date) unless other terms of payment are agreed in writing between the parties.

b) The Buyer must pay interest on any outstanding amount not paid by Payment Due Date. Interest will be calculated on the basis of the NAB Business Indicator Rate as published from time to time plus 2%. Interest and reasonable storage charges will accrue daily from the Payment Due Date until the outstanding amount is paid in full.

c) If the Buyer does not pay the outstanding amounts due to the Volkstech within 14 business days of the Buyer receiving written notice from the Volkstech the Buyer hereby irrevocably;-

  • appoints the Volkstech as the Buyer’s attorney and authorises and empowers the Volkstech and its duly authorised representative to prepare, complete, execute, deliver, lodge, sell, file and otherwise do any other act or thing necessary to complete and perfect any sale of the vehicle the Buyer provided to the Volkstech for the Goods to be carried out as specified in the invoice to cover any outstanding amounts due to the Volkstech together with any; storage fees, cleaning fees, disposal fees, regulatory fees or any other costs required to sell the vehicle and any surplus money will be paid to the Buyer or will be dealt with according to the Unclaimed Money Act 2008 whichever is applicable; and
  • appoints the Volkstech to perfect any security interest that it considers by registration under the PPSA. To the extent the law permits, the Buyer waives its right to receive any notice (including notice of a verification statement) that is required by the PPSA.

11 Rights in relation to Goods

a) The Volkstech reserves the following rights in relation to the Goods until all accounts owed by the Buyer to the Volkstech are fully paid:

  • ownership of the Goods;
  • to enter the Buyer’s premises (or the premises of any associated company or agent where the Goods are located) without liability for trespass or any resulting damage and retake possession of the Goods; and
  • subject to, and in accordance with, the Personal Property Securities Act 2009, to keep or resell any Goods repossessed pursuant to clause 11(a)(ii).

b) If the Goods are resold, or products manufactured using the Goods are sold, by the Buyer, the Buyer will hold such part of the proceeds of any such sale as represents the invoice price of the Goods sold in a separate identifiable account. This will be held as the beneficial property of the Volkstech and the Buyer will pay such amount to the Volkstech upon request. Despite the provisions above, the Volkstech will be entitled to maintain an action against the Buyer for the purchase price and the risk of the Goods shall pass to the Buyer upon delivery.

12 Buyer’s property

The Volkstech will use all due care and diligence when in the possession of the Volkstech’s property. However, the property of the Buyer under the Volkstech’s possession, custody or control is completely at the Buyer’s risk as regards to loss, damage or theft caused to the property or by it.

13 Storage

The Volkstech reserves the right to charge a reasonable fee for storage if delivery instructions are not provided by the Buyer within 2 days of a request by the Volkstech for such instructions. The parties agree that the Volkstech may charge for storage from the first day after the Volkstech requests the Buyer to provide delivery instructions.

14 Returned Goods

a) Except for any provisions to the contrary contained in this agreement, the Volkstech is not under any duty to accept Goods returned by the Buyer. The Volkstech will do so only on terms to be agreed in writing in each individual case.

b) If the Volkstech agrees to accept returned Goods from the Buyer under clause 14(a) of this clause, the Buyer must return the Goods to the Volkstech at the Volkstech’s place of business referred to at the head of these conditions.

15 Goods sold

All Goods to be supplied by the Volkstech to the Buyer are as described on the work order agreed by the Volkstech and the Buyer and the description on such work order as so agreed prevails over all other descriptions of the Goods including any specification or enquiry of the Buyer.

16 Cancellation

No order may be cancelled by the Buyer except with the written consent of the Volkstech. If there is a cancellation of the order by the Buyer, the Volkstech has the right to claim indemnity against all losses suffered by the Volkstech as a result of such cancellation.

17 Personal Property Securities Act (Cth) 2009 (PPSA)

a) The Buyer consents to the Volkstech registering its security interest on the Personal Property Securities Register and agrees to provide all assistance reasonably required by the Volkstech to facilitate registration.

b) Until title in the Goods has passed to the Buyer as contemplated by clause 11 of this agreement, the Buyer agrees not to in any way assign, charge, lease or otherwise deal with the Goods in such a manner as to create, a security interest over, the Goods in favour of the Buyer or any third party, The parties agree that this clause will not prohibit the Buyer from selling the Goods in the ordinary course of business..

c) The Buyer waives its rights to receive any notice under PPSA (including notice of verification statement) unless the notice is required by the PPSA and cannot be excluded.

d) Expressions defined in the PPSA have the same meaning when used in this agreement.

18 Place of contract

This agreement shall be governed by and construed in accordance with Victorian law. The parties submit to the non-exclusive jurisdiction of the courts and tribunals of the governing law jurisdiction. Nothing in this clause is intended to undermine the jurisdiction of the Federal Court of Australia or Federal Magistrates Court of Australia.