TERMS & CONDITIONS

Application of these conditions

These conditions, subject to any variations we agree to in writing, apply to all supplies made by the company specified in the invoice. These conditions, in their present form or as changed, pursuant to these conditions, together with the relevant credit application form (if applicable), invoices and Purchase Orders exchanged between the parties form the contract.

Offer to purchase

The Purchaser hereby offers to purchase from the Company the goods identified on the Invoice for the Price on the Invoice.

The Company may in its absolute discretion accept the Purchaser’s offer to purchase.

Price

All Prices are excluding postage, whether that be supply in or out.

The Purchaser must pay the price noted on the Invoice to the Company on the date of the Invoice unless previously agreed upon. This excludes account customers.

All representations made in the Invoice are made on the basis that errors and omissions are accepted.

Terms of payment

Terms of payment are cash, credit card, advanced direct debit, supplied “buy now pay later” options and Bank cheque. If credit is satisfactorily established, invoices will be paid on or before the terms stated in the individual credit application forms, unless otherwise agreed to by the Company in writing. If use of credit card is approved, then payment is due on the date of invoice. In the event payment is not received by the due date the company, to its discretion, reserves the right to charge interest at 5% of the invoice commencing from the due date of payment in respect of all the Purchaser’s indebtedness which is overdue. Any interest so levied shall accrue on a daily basis and shall accrue until all monies owing are paid in full. The Purchaser shall also be liable to pay all expenses, legal costs on a solicitor and own client basis, of the Company in relation to obtaining remedy of the failure to comply.

Cancelations of purchase orders

Any request by the Purchaser for cancellation of a Purchase Order must be in writing and may be delivered by post, hand delivery or email. The Purchaser is liable to reimburse the Company for the costs it has incurred for labour and materials in fulfilling the Purchase Order up to the date the request for cancellation is received and acknowledged by the Company.

Force majeure

Neither party is liable for any Loss incurred by the other party as a result of any delay or failure to observe any of these conditions (other than an obligation to pay money) as a result of any circumstance beyond the party’s control, including but not limited to any strike, lock-out, labour dispute, act of God, fire, flood, accidental or malicious damage or breakdown in machinery. The party affected must notify the other party as soon as possible of such circumstance.

During the continuance of such circumstance the obligations of the party affected, to the extent they are affected by the circumstance, are suspended and resume as soon as possible after the circumstance has ceased to have effect.

Company’s Liability

Nothing in these conditions is to be interpreted as having the effect of excluding, restricting or modifying any statutory guarantee, condition or warranty, or right or liability implied by any applicable legislation into the Contract, if such exclusion, restriction or modification would be void or prohibited by the legislation.

To the extent that the Company breaches any statutory guarantee, condition or warranty implied into the Contract and which cannot be excluded or modified, the Company’s liability is limited to, at the Company’s discretion:
a) in the case of Goods:

i.) Replacement of the Goods or supply of equivalent Goods;
ii.) Payment of the cost of replacing the Goods or acquiring equivalent iii.) Goods; repair of the Goods; or
iv.) Payment of the cost of having the Goods repaired; or

b) in the case of services, to:
i.) Supply of the services again; or
ii.) Payment of the cost of having the services supplied again.

Subject to (a) and (b) above, the Company is not liable to the Purchaser (or to any third party claiming through the Purchaser) for any Loss caused by any act or omission of the Company, its employees or agent, and whether based on negligence, tort, contract or otherwise. Under no circumstances shall the Company be liable for indirect or consequential losses.

Artwork, Design, Drawings and Tools

All works produced by the Company and any intellectual property in and to such works, remain the exclusive property of the Company unless otherwise agreed in writing, and the Company may charge the Purchaser for maintenance of such works. Where the Purchaser supplies a drawing, artwork, tool or any other item used in the manufacturing process:

i) The Company shall not be liable for any loss or damage of any such item; and

ii) The Purchaser shall reimburse the Company for all maintenance expenses.

Quality tolerances

Should the Company be required to match any part, tolerance shall be allowed to such extent as shall be agreed upon by the Company and the Purchaser at the time the standard part is specified and in the absence of any agreement a reasonable tolerance shall be allowed.

Where the Purchaser supplies specifications to the Company, any Goods not varying in the specification stipulated by the Purchaser by more than the established industry tolerance must be accepted by the Purchaser as complying with the Contract.

Delivery

The Purchaser is liable for all transport charges and/or transport insurance of purchased goods unless the Company agrees in writing otherwise. If such charges are paid by the Company, those charges are not refundable if included in the purchase price in the event the goods are later returned.

If the Company accepts liability for transport charges and/or transport insurance, the Purchaser shall indemnify the Company from all loss which occurs to the goods during transport and / or delivery including all consequential loss.

Price variation

The price quoted by the Company is unless otherwise agreed in writing subject to variation at any time prior to the date of acceptance of the Purchase Order or invoice upon written notice to the Purchaser. Without limitation, if the cost of wages, materials or any other supply or input to the Company increases after the date of any written and/or price list and before delivery of the Goods or completion of the work specified in the Purchase Order or invoice, the Company may subject to, other agreed pricing mechanisms, add a fair and reasonable amount to the price quoted to cover the increase and the Purchaser must pay the price as varied.

Any addition or change to the specifications of the Goods must be agreed in writing by both the Company and the Purchaser and may result in a price variation.

Retention of title

Title to and in all Goods, sold, supplied or delivered by the Company to the Purchaser shall not pass to the Purchaser, but shall remain with the Company, until such time as full payment is made by the Purchaser for all Goods, sold, supplied or delivered to it by the Company and all other amounts owing to the Company by the Purchaser have been paid in full, whether such amounts are payable under this or any other contract or agreement between the Company and the Purchaser.

Until title to such Goods passes to the Purchaser, the Purchaser acknowledges and agrees to hold any goods delivered to it by the Company as bailee.

Notwithstanding any other provision of these Terms and Conditions, the Purchaser may sell any goods to a third party in the ordinary course of the Purchaser’s ordinary business and deliver them to that third party, provided that:

a. where the Purchaser is paid by that third party, the Purchaser shall hold and shall be deemed to hold the whole of the proceeds of sale on trust for the Company; and

b. where the Purchaser is not paid by that third party, the Purchaser agrees to assign, at the option of the Company, its claim against that third party to the Company upon receiving notice from the Company that it requires such an assignment.

Until title in such goods passes to the Purchaser or the goods are sold by the Purchaser to a third party:

a. the Purchaser agrees to hold and shall hold such goods as a fiduciary for the Company;

b. the Purchaser agrees to store those goods and shall store those goods in a manner which clearly indicates that the goods are the property of, and that title to them, remains with the Company;

c. notwithstanding that the title to such goods remains with the Company, the Purchaser agrees to hold and shall hold the goods at its risk and expense and be liable to compensate the Company for all loss and damage sustained to the goods whilst they are in the Purchaser’s possession or control;

d. until such time as the Purchaser has paid all sums owing to the Company whether under this or any other contract or agreement, the Company has the right to call for and/or recover the Goods, and the Purchaser agrees that the Company may in its absolute discretion enter upon the Purchaser’s premises and retake possession of the goods and the Purchaser hereby irrevocably authorises and directs the Company’s representatives or agents to enter onto the Purchaser’s premises during operating hours in order to repossess all Goods in the event that the Purchaser fails to make any payment when it is due, or commences to be wound up, or is placed under official management, or a receiver or manager is appointed to the Purchaser, or any amount in respect of Goods supplied by the Company is in the Company’s opinion in jeopardy.

e. For the purposes of facilitation of Clause (d), the Purchaser shall raise no objection to the Company’s or its representatives’ entry onto the Purchaser’s premises or to the repossession of those goods whether in the law of theft or trespass and agrees that the Company has claim of right over those goods. Where the Purchaser locks or otherwise would prevent the Company from retaking possession of its goods, the Purchaser acknowledges Clauses (d) and (e) applies.

The provisions of this Retention of Title clause apply notwithstanding that the Company may have allowed credit to the Purchaser.

The Purchaser further acknowledges and agrees that all goods may be repossessed in lieu of payment of any moneys due from the Purchaser to the Company and that the Company

shall not be liable for any costs, losses, damages or other expenses suffered by the Purchaser or any third party in respect of the Company taking any action to recover such moneys.

Returns Policy

The Company may accept, in its absolute discretion, the return of new parts which are deemed by the Company to be of acceptable condition within 30 days of the invoice date.

The Company in considering whether a returned good is of acceptable condition will consider (amongst other things) whether the returned good is in the original packaging, accompanied by original invoice and in a condition suitable for the Company to re-stock and re-sell the returned good.

If the Company accepts the return of goods, the Company in its absolute discretion may allow for an exchange for goods of equivalent price or to provide a credit to the value of the good.

In consideration of accepting the returned good and for assessing whether the good is of acceptable condition, the Purchaser must pay a restocking fee to the Company, up to, twenty five per centum (25%) of the total value of the good prior to the Company accepting the returned goods.

Without limiting the Company’s Warranty terms and conditions, its statutory obligations and its absolute discretion to reject returned goods, the Company shall not exchange goods or provide credit for the following: electrical items; second hand parts; engines; gearboxes; cabins; differentials whether they be new; reconditioned or second hand; incomplete part kit sets such as gasket kits, ring sets and packs; bearing sets/packs; piston; liner kits; separate goods which form part of an Engine Kit which was sold as a complete Engine Kit; new parts returned in packaging which is damaged, greasy/dirty, hand marked or shop soiled.

Transport charges for returned goods must be prepaid by the Purchaser. The Company will not accept “Freight forward”.

The Purchaser is liable for all transport charges and/or transport insurance of returned goods unless the Company agrees in writing otherwise. If such charges are paid by the Company, those charges are not refundable if included in the purchase price in the event the goods are later returned.

If the Company accepts liability for transport charges and/or transport insurance, the Purchaser shall indemnify the Company from all loss which occurs to the returned good during transport and / or delivery including all consequential loss.

Acknowledgement of receipt of returned goods by the Company does not amount to acceptance of those returned goods nor of any liability to provide to the Purchaser an exchange or credit.

Claims

Any claim by the Purchaser arising must be made in writing and may be delivered by post, hand delivery or email as soon as practicable after discovery by the Purchaser of the problem and in any

event no later than 14 days after delivery of the Goods. To the extent the Company can identify the Goods and the date of sale the Purchaser must supply photographic proof and information if requested. The Company has the right at any time within 14 days after receipt of the claim to inspect the relevant Goods. If the Purchaser disposes of any of the Goods within the 14 day period, except with the written consent of the Company, all claims in respect of the Goods disposed of are deemed to have been waived by the Purchaser.

Pallets

The Company retains the right of possession of any pallets used for delivery of the Goods, and the Purchaser agrees to indemnify the Company in relation to the hire and replacement costs of any pallets not returned in good order and condition to the Company within 28 days of delivery of the Goods, unless otherwise agreed in writing by the Company.

Disclaimer

The Purchaser acknowledges that any representations made whether orally or in writing by the Company in relation to goods, services or otherwise are general in nature and is intended only as a guide to the Purchaser. The Purchaser acknowledges and accepts that it is responsible for ensuring the goods purchased are fit for the purpose for which they are intended.

Consequences of Default

If the Purchaser defaults in payment, or an application is made to a court to wind up the Purchaser, or a receiver or administrator is appointed to manage the affairs of the Purchaser, or the Purchaser is in material breach of the Contract, then the Company may terminate the Contract or any Purchase Order immediately and may recover from the Purchaser, at a minimum, reasonable compensation for materials purchased and ordered and labour expended in complying with the Purchase Orders

Where credit has been extended by Dullys Customs and Engineering Pty Ltd, if the purchaser does not pay for the goods on the due date then Dullys Customs and Engineering Pty Ltd is hereby irrevocably authorised by the purchaser in which the goods are stored at such premises and use reasonable force to take possession of the goods without liability of the tort of trespass, negligence or payment of any compensation to the purchaser whatsoever.

The Company may recover as a debt all monies due and payable under these Terms and Conditions after it becomes due and payable, together with any interest payable and the expenses of the Company incurred in recovering those amounts, including but not limited to costs assessed on an indemnity basis, commission charges and disbursements charged by any mercantile agent or solicitor engaged for the purpose of the collection or recovery of moneys due and payable to the Company.

Outline of Warranty Policy

The Company may in its absolute discretion warrant the goods in accordance with its standard Warranty Documents. Without limiting the full effect of the Company, the Warranty Documents, the Company provides as a point of reference only a summary of the Warranty Periods.

New / Recondition Engine installation inspection

All New and Reconditioned engines supplied by Dullys Customs and Engineering are to be inspected within 7 days/200km of installation or warranty is void unless otherwise previously discussed with the company.

New / Recondition Engine run in oil

All New and Reconditioned engines supplied by Dullys Customs and Engineering are to be filled with Penrite 10TENTHS running in oil.

Odometer / Hour reading

Odometer / hour reading from the vehicle, vessel or machine is to be given upon delivery of all engines supplied by Dullys Customs and Engineering. Failure to do so could result in warranty being void.

Recovery, towing and/or storage

Costs incurred from a warrantable failure are not covered by Dullys Customs and Engineering. The company will not be held liable for the cost of recovery, towing, labour and/or storage fees. This applies to all warranties stated above.

General

Names, descriptions, symbols and numbers being quoted or appearing on invoices are used for internal reference purposes of Dullys Customs and Engineering Pty Ltd (“the Company”) only, and it is not implied that the parts supplied are the actual manufacturer’s whose part numbers may be quoted.

Where these Terms and Conditions are executed simultaneously to or in contemplation of a Deed of Guarantee and Indemnity, then they shall be read together and in contemplation of each other. To the extent of any inconsistency between this document and the Deed of Guarantee and Indemnity, this document shall prevail. This document together with any Deed of Guarantee and Indemnity (if any) constitutes the entire agreement of the parties and supersedes any other prior writing or agreement or representation.

These terms and conditions are governed by the law in force in Queensland. The parties submit to the jurisdiction of the courts of Queensland.

If any part of these terms and conditions is for any reason unenforceable, that part must be read down to the extent necessary to preserve its operation. If it cannot be read down, it must be severed.

The legal doctrine that a construction less favourable to the person putting forward this instrument should be accepted against it shall not apply to this Agreement.

The Purchaser agrees as an essential term of this agreement to act in good faith and honestly and in furtherance of the commercial efficacy intended by these Terms and Conditions.