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Terms & Conditions
All Orders are accepted and Goods and Services supplied subject to the following express terms and conditions which are in turn subject to the Competition and Consumer Act 2010 (Cth). No variation from these Terms and Conditions applies unless agreed in writing by the Company and the Customer prior to the commencement of the supply. Any acceptance by the Customer of the Goods and/or Services is deemed to be an acceptance that these Terms and Conditions are incorporated into the Contract to the exclusion of all others.’
Unless the context otherwise requires: (a) headings, boldings and underlines are for convenience only and do not affect the interpretation of the Contract; (b) words importing the singular include the plural and vice versa; (c) reference to a ‘person’ includes a company, partnership, joint venture, association, trust, corporation and vice-versa; (d) reference to any statute or regulation includes all statutes and regulations varying, consolidating or replacing them and includes all regulations, proclamations, ordinances and by-laws issued after that statute; (e) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of the Contract or any part of it; (f) the words “includes”, “including”, “for example” or “such as” or similar expressions are not words of limitation; (g) all references to “$” or “dollars” are to the lawful currency of Australia; (h) a covenant, an agreement or acknowledgment on the part of, or in favour of, two or more persons, binds them or enures to their benefit jointly and severally.
The Company is not obliged to accept any Order.
A Quotation by the Company shall be an invitation to the Customer to trade with the Company. It shall not constitute an offer by the Company to the Customer. The Customer may use the Quotation to submit an Order to the Company. Prices given in any Quotation are applicable to that Quotation only and will not apply in any other instance, unless confirmed in writing by the Company. Quotations are valid for the period specified in the Quotation or, if no period is specified, 7 days from the date of issue. If the Customer is given a Quote and instructs the Company to proceed, the Customer is taken to have submitted an Order to the Company on the terms of the Quote.
The Company may publish a price list for Goods and Services from time to time. Prices may be increased by the Company without notice and without republishing the price list. Notwithstanding the terms of the Order or any Quotation, the Company reserves the right to invoice all Goods and Services at the price prevailing at the date of despatch.
Unless otherwise specified, all prices are expressed exclusive of GST. In addition to the price of the Goods and/or Services provided to the Customer, the Customer must pay to the Company an additional amount calculated at the rate which GST is imposed on such Goods and/or Services and which is payable at the same time and in the same manner as the amount to which it relates is payable.
Unless otherwise stated, prices specified in any price list published by the Company include applicable customs duties. Where they do not include customs duties, then the Customer is liable for such costs.
The Company may cancel a Contract at any time before the Goods and/or Services (as the case may be) are supplied to the Customer, by notice to the Customer in which case the Company shall repay any sums paid by the Customer in advance to the Company in respect of the relevant Goods and/or Services but shall not otherwise be liable for any loss or damage of any kind suffered by the Customer in respect of such cancellation.
All Goods are sold “ex-warehouse”, and all prices are “ex-warehouse”. If the Customer requests the Company to arrange delivery and the Company agrees to make delivery, then freight (inclusive of insurance) will be charged as a separate item on the Customer’s account for an amount determined by the Company.
Unless otherwise specified, the price does not cover the cost of delivery of the Goods to the destination specified by the Customer.
If the Company delivers the Goods then, unless otherwise specified by the Company, the Goods must be unloaded by the Customer immediately on arrival at the specified destination.
The Customer is responsible for any loss, damage or injury incurred by any person or to any property in the course of unloading Goods delivered by the Company.
Although the Company will use reasonable endeavours to provide the Goods by the time specified for delivery, this time is not of the essence. If any material part of the Order cannot be supplied by the due date, the Company will advise the Customer as soon as possible. Should supply of the Goods be prevented, delayed or hindered directly or indirectly by circumstances beyond the Company’s control then, at the Company’s option, either the delivery time shall be extended until the effect of the delaying cause has ceased or the Company may cancel the Contract, without cost. If the Goods have been ordered in specifically for the Customer, the Customer is not entitled to cancel the Contract for the resultant delay, without first paying the Company’s cancellation costs. The Company is not liable for any loss or damage of any kind suffered by the Customer for resultant delay or cancellation of the Contract.
Unless otherwise specified, the Company is entitled to supply the Goods in one or more lots. Where there is a part provision, the Company may Invoice the Customer for pro-rata progress payments in respect thereof (with the pro-rata amount as determined by the Company). Once the Goods are available for delivery or collection, the Company is entitled to issue an Invoice for the Goods (even if the Customer delays delivery or collection as the case may be).
The Goods are at the Customer’s risk from the time that: (a) if they are to be collected by the Customer, at the earlier of the time that the Customer collects the Goods or the time when the Company makes the Goods available for collection; (b) if they are to be delivered by the Company, at the time that the Company or its agent or contractor arrives at the relevant delivery address (irrespective of whether or not the Customer immediately unloads the Goods). The foregoing applies notwithstanding that title may not have passed.
TITLE TO GOODS
Notwithstanding that risk in the Goods may have passed to the Customer in accordance with clause 9, until full payment for the Goods has been made, legal and beneficial title to the Goods remains with the Company, and until such time:
- title in the Goods does not pass to the Customer;
- the Customer must hold the Goods as bailee for the Company and must store the Goods securely and separately to those belonging to any other person and in a manner which makes them readily identifiable as the Goods of the Company;
- the Company may require the Goods to be returned to it at the cost of the Customer or go onto the premises of the Customer and re-take possession of the Goods;
- if the Customer sells the Goods, the Customer must hold the proceeds of the sale in a separate account in the name of the Customer on trust for the Company;
- the Company may maintain an action for the price of the Goods notwithstanding that title in them has not passed to the Customer;
- if an encumbrancer takes possession, or a receiver or trustee or liquidator is appointed, of the whole or a material part of the assets or undertaking of the Customer, the Customer and any such receiver, trustee or liquidator shall immediately cease to be entitled to sell the Goods.
In the case of payment other than by cash, full payment is deemed to occur on clearance or confirmation of the irrevocable receipt of funds by the Company.
Nothing in these Terms and Conditions or any circumstance arising from the fact that the Customer obtains possession of the Goods before obtaining title or any other circumstance makes the Customer an agent of the Company for any purpose.
The Company reserves the right in the event of non-payment of any amounts due by the Customer under the relevant Contract to retrieve the Goods from the Customer including by entering any premises where the Goods are stored and the Customer agrees that the Company is not liable for trespass as a result or for any damage caused in removing the Goods from the premises. If it becomes necessary to register this clause or the Contract in order to give effect to the retention of title created by this clause, the Customer agrees to promptly sign such reasonable documentation and promptly perform all reasonable acts necessary in order to enable the Company to register this clause or the Contract.
MIXED OR CONVERTED GOODS
If the Goods:
- become constituents of other products so as not to be separable from those products; or
- are converted into other products of a distinctly different character;
then title in the Goods passes to the Customer at the time the Goods become constituents of the other products or are converted into other products and if the Customer sells those other products or any of them, the Customer must hold the whole of the proceeds of sale on trust for the Company to the extent of the unpaid purchase price of the Goods.
QUANTITY AND DESCRIPTION
The Customer must within 7 days of the earlier of the time of collection or delivery of the Goods notify the Company in writing and the carriers responsible for delivery of the Goods if there is any shortfall in or damage to the Goods received or any discrepancy with the Goods ordered.
To the fullest extent permitted by law, the Company is not responsible for making good any such shortfall, damage or discrepancy unless: (a) it is so notified in writing within this timeframe; and (b) the relevant delivery note contains an agreed notation that there is a shortfall, damage or discrepancy.
The Customer must check the Goods delivered/collected against those due to be delivered/collected under the Contract and sign a delivery note relating to the Goods on delivery/collection.
If the Customer gives notice of damage to the Goods, it must preserve the Goods in the state in which they were delivered/collected for a period of 14 days from the date on which the Company is notified in writing. During that period of 14 days the Customer must allow the Company access to its premises for the purpose of inspecting the Goods. Alternatively, if requested by the Company, the Customer must return the Goods at the Company’s expense to the Company’s premises for inspection.
GGH provides a 36 month limited warranty (being a 12 month full warranty and an additional 24 month pro rata warranty) under the terms and conditions specified in our battery warranty document. Please refer to that document for the full terms and conditions applicable to that warranty offer.
Special Pricing – No Warranty
Stock which is offered at special pricing may not carry any warranty, and this will be shown on the front page of the invoice, and this stock is sold “as is, where is”, no warranty express or implied. Where this appears on the face of the invoice, the following applies:
To the fullest extent permitted by law, the purchaser agrees that the parts invoiced are sold “as is, where is’ as inspected by you (where applicable), with all existing faults. There are no warranties or guarantees given as to condition, safety or suitability for purpose, express or implied. The purchaser agrees that it relies entirely upon its own enquiries in this regard.
From the date of sale (to the fullest extent permitted by law) the purchaser agrees to release, forever discharge and indemnify GGH and its respective directors, officers, employees and agents from all claims and all present and future liabilities or obligations whatsoever, including negligence, that arise out of or in connection with the use of or any other matter associated with the parts.
Subject to the following conditions below, any other component or part supplied which fails by reason of defective material within the following six (6) months shall be repaired or replaced, at the option of the Company free of charge ( standard warranty).
- The Customer shall notify the Company in writing at the address identified below immediately if any problems develop in the component or part and before removal or disassembly is attempted. Compartment oil is to be saved.
- The Company alone shall determine whether failure occurred by reason of defective workmanship or materials. Such determination shall be made at one of the nominated service facilities.
- The cost of removal of failed components and installation of replacement components shall be borne by the Company only when done by the Company.
- If the repair involves an exchange transmission or a major transmission repair, this warranty is not applicable unless oil coolers were serviced or replaced at the time of installation.
- The Customer will not be able to rely upon this warranty unless it has first paid for all amounts owed to the Company for any service, supply or repair undertaken by the Company on the relevant component or part.
- The Customer will not be able to rely upon this warranty if the Customer failed to comply with and follow all relevant literature and operational manuals in respect to the use and/or operation of the relevant component or part.
- In the circumstances where the Company accepts or it is determined by the Company that the Customer has a valid claim under this warranty, and subject to paragraph (i) below, the Company will bear all of the Customer’s reasonable and proximate expenses incurred as a result of claiming under the warranty. The Customer is to inform the Company in writing to the address identified below within 21 days from when the Customer first makes a claim under the warranty of all such claims and expenses and provide it with copies of all receipts and invoices where relevant before any reimbursement is made by the Company to the Customer. The Customer is responsible for all other costs of claiming under the warranty.
- The Company will not be responsible for any courier, transport or freight related costs whatsoever associated with the return to it or to the Customer of any defective component or part that have not first been approved by it. The Company reserves the right to first inspect any defective component or part and decide how, if at all, the defective component or part is to be returned to it. Any unapproved courier, transport or freight related costs will be to the Customer’s account.
- This warranty is not transferable.
If you acquire goods from the Company as a consumer according to the Australian Consumer Law, 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 and for compensation for any other reasonably foreseeable loss or damage. 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.
Any rights a consumer may have under any warranty specified herein are in addition to other rights and remedies of a consumer under a law in relation to the goods to which these warranties relate. Nothing in this document shall exclude or modify any legal rights a Customer may have under the Australian Consumer Law or otherwise which cannot be excluded or modified at law. [Please note that this mandatory wording is not intended to exclude the Company’s right to rely on section 64A of the Competition and Consumer Act 2010 (Cth) where it is appropriate to do so.]
LIMITATION OF LIABILITY
To the fullest extent permitted by law:
(a) The Company shall not be liable to the Customer for any consequential, special, incidental or other indirect loss or damage including loss of profit, loss of opportunity, business, revenue, goodwill or anticipated savings arising out of the performance, non-performance or defective performance of the obligations of the Company irrespective of whether or not the Company was made aware of the possibility of such loss.
(b) All express and implied warranties, terms and conditions in relation to the obligations of the Company including those implied by use, trade, custom or otherwise are hereby excluded.
(c) The Customer agrees that the Company is not liable or responsible for any loss or damage that the Customer suffers or incurs due to circumstances beyond the reasonable control of the Company.
(d) Subject to the foregoing, the Company’s total liability to the Customer for breach of its obligations to the Customer (including due to negligence) are at the option of the Company limited to repairing, replacing or resupplying the component or part or paying for the cost of repairing, replacing or resupplying the component or part or to resupplying the services or paying for the costs of resupplying of the services.
The Customer indemnifies the Company against any loss, cost, damage or expense (including legal costs and disbursements on a full indemnity bases and any debt collection agency fees on a full indemnity basis), and any claims, demands, suits, actions and proceedings suffered, paid, incurred, instituted or defended by the Company, resulting from or arising out of any breach of the Contract by the Customer, or any misuse of the Goods.
Unless the Customer has an Approved Credit Facility, payment for all Goods and Services must be made in full in cash, EFT (see below) or by bank cheque before the Goods and Services are despatched.
Where a credit facility has been approved, payments must be made within 30 days from the date of Invoice.
All times for payment are of the essence.
Payment by EFT may be made by direct transfer into:
WESTPAC – PARRAMATTA
BSB NUMBER – 032 078
ACCOUNT NUMBER – 149311
Without limiting any other rights or remedies, if the Customer fails to make payment by the due date, the Company may charge interest from the date payment became due to the date of actual payment at the rate of 2 per cent per annum above the base lending rate of Westpac Banking Corporation.
If the Customer fails to make payment in accordance with this clause, all amounts owing by the Customer to the Company on any account shall immediately become due and payable.
DEFAULT OF CUSTOMER
- If the Customer defaults or fails or delays in performing its obligations then in addition to and without prejudice to any other rights or remedies of the Company (including exercising a right of termination after suspension), the Company may in its absolute discretion, refuse to supply the Customer and/or may suspend the performance of its obligations until such breach is rectified, and the Company shall not be liable to the Customer for any loss or damage of any kind the Customer may sustain as a result.
- The Company shall be entitled to a reasonable extension of any timeframe applicable to its obligations as a result of such suspension.
If a party: (a) has a receiver, receiver and manager, administrator, liquidator, provisional liquidator or external controller appointed to it; (b) becomes bankrupt, insolvent or is wound-up; (c) has a resolution passed for its winding up, commits an act of insolvency or bankruptcy; (d) enters into any scheme or arrangement with its creditors; (e) breaches an essential term of the Contract; (f) breaches a term of the Contract that is not capable of remedy; or (g) subject to the foregoing, breaches a term of the Contract that is capable of remedy but is not so remedied within 14 days of a written demand; then the other party to the Contract by written notice may terminate the Contract immediately.
Termination shall not affect any provision of the Contract expressed or capable of operating or having effect subsequent to termination and shall be without prejudice to any accrued right or remedy of a party in relation to any breach of or default by the other party occurring prior to termination.
To the fullest extent permitted by law, the Customer waives all existing and future claims and set-offs against any payment due under the Contract and agrees to pay the amounts payable under the Contract on the due date regardless of any equity, set-off, deduction or cross claim on the part of the Customer against the Company.
Any notice required or authorised to be given under the Contract may be given by email, facsimile, telegram, telex, cable or prepaid letter sent to the party to whom it is addressed at its last known place of business and is deemed to have been served two days following the day on which it is proved to have been sent.
- The Company may give the Customer a certificate regarding any matter concerning the Contract including any amount payable by the Customer to the Company.
- The certificate is sufficient evidence of the accuracy of its contents unless proven to be false.
- No right, power or remedy conferred by the Contract in favour of the Company is exclusive of any other right power or remedy also contained in the Contract or provided by law or equity in favour of the Company, but each is cumulative of every other right, power or remedy conferred or provided in favour of the Company and may be enforced concurrently with them or from time to time as the Company thinks fit in its entire discretion.
- No relaxation, forbearance, delay or indulgence of the Company in enforcing its rights under the Contract affects, prejudices or restricts such rights and any waiver by the Company in respect of a breach of Contract does not operate as a waiver of any subsequent or continuing breach.
APPLICATION OF TERMS AND AUTHORITY TO CONTRACT
The Terms and Conditions shall apply to every Order between the Company and the Customer for the supply of Goods and/or Services (even if not attached or referred to in an Order). Each Contract constitutes a separate and independent agreement. Any action taken in respect of one Contract does not automatically affect any or all other Contracts. The Customer agrees that the Company is entitled to assume that anyone on behalf of the Customer (including its employees) who places an Order with the Company has full power and authority to bind the Customer irrespective of whether or not such person followed the Customer’s internal procedures before placing the Order and the Customer agrees to be bound by the acts or omissions of such persons.
Any part of the Contract or the application of any part of the Contract, which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that part in any other jurisdiction or of the remaining provisions of the Contract in that or any other jurisdiction.
PERSONAL PROPERTY SECURITIES (PPS) LAWS
(a) In respect of the PPS, each Order, the Terms and Conditions, Contract and all Invoices issued by the Company in respect of the Contract constitute a “security agreement” for the purposes of the PPS.
(b) For the purposes of s115 of the PPS, the parties agree that to the fullest extent permitted by law, they have agreed to: (i) contract out of ss95, 117, 118, 120, 121(4), 123, 125, 128, 129, 130, 132(3)(d), 132(4), 134, 135, 142 and 143 of the PPS; and (ii) contract out of all matters permitted to be contracted out of pursuant to s115(7) of the PPS.
(c) To the fullest extent permitted by law, the Customer hereby waives its rights to receive any notice under s157 of the PPS pursuant to s157(3)(b) of the PPS.
(d) The Customer must do all things reasonably required by the Company to register and perfect that interest under the terms of the PPS and PPSR.
(e) The Customer will, at the Company’s request, pay any or all of the Company’s costs and expenses, on a full indemnity basis, related to registration and enforcement of any security interest or security agreement (including in relation to any security interest granted by a person guaranteeing the Customer’s performance of the Contract).
INCONSISTENCY AND VARIATION
In addition to (and without limiting) any provisions relating to variation, the Company may vary the Terms and Conditions from time to time, in which case those new Terms and Conditions shall apply to every new Order after the Customer is notified in writing of the new Terms and Conditions. Subject to the foregoing and any other provision of the Terms and Conditions, any variation, amendment or consent to departure by any party from the Contract shall have no force or effect unless agreed in writing by the Company. If there is any inconsistency between the Terms and Conditions and the Order, the terms of the Order prevail to the extent of the inconsistency. Any terms or conditions put forward by the Customer in respect of the Goods and/or Services are null and void and of no effect unless accepted by the Company in writing. If the Customer wishes to vary the Contract (which the Company can accept or reject in its sole discretion), the Company reserves the right to also vary the Contract to take account of such changes and in that case the Company is entitled to suspend the supply of the Goods and/or Services until the Customer approves of the variations in writing.
The Company may assign its rights and obligations under any Contract at anytime. The Customer may not assign its rights or obligations under any Contract.
In the Contract: (i) the Contract shall be governed by and construed in accordance with the laws of the State of New South Wales, Australia; (ii) any legal action or proceedings with respect to the Contract against any party or any of its property and assets may be brought in the Courts of the State of New South Wales, Australia and each party accepts, for itself and in respect of its property and assets, generally and unconditionally the jurisdiction of the Courts of that State; (iii) subject to the express written terms of the Contract, the Contract shall confer rights and benefits only upon a person expressed to be a party and not upon any other person; (iv) each party shall execute all documents and perform all acts necessary to give full effect to the Contract; (v) apart from any credit arrangements, the Contract expresses and incorporates the entire agreement between the parties in relation to its subject matter, and all the terms of that agreement, and supersedes and excludes any prior or collateral negotiation, understanding, communication, agreement, representation or warranty by or between the parties in relation to that subject matter or any term of that agreement. Neither party shall, after the Contract has been entered into, be entitled, as against the other party or other officers of any party, to bring suit on the basis of any verbal or written communications, representations, inducements, undertakings, agreements or arrangements except expressly as provided by the Contract or the credit arrangements; (vi) no provision of the Contract shall merge on completion of the Contract.