TERMS AND CONDITIONS OF SALE
ACL means the Australian Consumer Law Schedule to the Competition and Consumer Act 2010 (Cth) and its associated regulations as amended.
Customer means the person or organization that has acquired, ordered and/or purchased Goods and/or Services fromPPG.
Goods means any goods manufactured and supplied by PPG to the Customer.
GST means any goods and services or value added tax, including GST, within the meaning of A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated regulations as amended or varied from time to time.
Intellectual Property means all intellectual property owned or created by or licensed to PPG, including but not limited to all registered and unregistered patents, trademarks, copyright, designs, confidential information, technical information, trade secrets, processes, techniques and know-how including (but not limited to) any intellectual property that is used or created by PPG in the production or manufacturing of the Goods or the provision of the Services.
Pfitzner Performance Gearbox or PPG means Pfitzner Performance Gearbox Pty Limited, ACN 095 283 686 and ABN 68 095 283 686.
PPSA means the Personal Property Securities Act 2009 (Cth) and its associated regulations as amended.
Price means any price, including any quotation, for the Goods or Services, subject to clause 3.
Purchase Order means a purchase order for Goods or Services placed by a Customer to PPG in accordance with these Terms.
Services means any services provided by PPG to the Customer.
Terms means these Terms and Conditions of Sale as amended from time to time.
2.1. These Terms shall apply to the sale of all Goods and the provision of all Services by PPG and cannot be varied, replaced, modified, superseded or affected by any other terms and conditions, including any terms and conditions stipulated by the Customer (if any).
2.2. PPG may vary or amend these Terms at any time by notice to the Customer. Any variations or amendments to these Terms will apply to orders placed after the date that the amended Terms are notified to the Customer. There shall be no modification or waiver of these terms by the Customer, unless confirmed by PPG in writing.
2.3. The Customer acknowledges that all decisions reserved for PPG pursuant to these Terms are made by PPG staff in accordance with company policy. Customers agree to engage with PPG staff in a respectful manner and in accordance with PPG’s “Unacceptable Contact” Policy, which can be accessed via the following link: https://www.ppgearbox.com/unacceptable-contact.
3.1. Unless otherwise agreed by PPG in writing, payment of the Price must be made in cash or via PayPal, direct debit, an approved Australian credit card or bank to bank transfer (account details to be provided upon request by the Customer).
3.2. Unless otherwise agreed by PPG in writing, all Prices are quotations only and are valid for acceptance by the Customer for a period of 30-days from the date of the quotation and are not binding on PPG until the Customer accepts the quotation in writing.
3.3. Customer Purchase Orders should refer to the quotation previously provided by PPG. In the event that there is any discrepancy between a Purchase Order and the associated quotation, a replacement quotation will need to be raised by PPG and PPG will be under no obligation to accept the Purchase Order.
3.4. Unless otherwise stated, all Prices are quoted in US dollars, are ex-works and exclude shipping, handling, delivery, taxes, GST, duties and insurance. Any liability in relation to taxation and other duties will be the responsibility of the Customer and will be invoiced to and payable by the Customer as applicable in the territory at that time.
3.5. PPG reserves the right to vary the Price at any time by notice in writing to the Customer to reflect any increase in costs that are beyond PPG’s reasonable control, including (but not limited to):
(a) fluctuations in foreign exchange rates and currency regulations; changes in rates of tax, duty and excise;
(b) changes in costs of labour and materials;
(c) changes in rates for shipping, handling, storage and delivery;
(d) changes in delivery dates; alterations to specification and quantities;
(e) delays caused by the Customer’s actions, errors and omissions;
(f) failure of the Customer to supply adequate and accurate information; and
(g) where PPG determines (at its discretion) that additional Goods or Services are required.
3.6. For the avoidance of doubt. the Customer acknowledges that Prices are based on (among other things) the costs of labour and materials at the time the Price is quoted. The costs of labour and materials are difficult to predict and subject to change. If the costs of labour and materials change at any time, PPG may vary the Price by notice in writing to the Customer.
3.7. If the Customer does not accept any written variation of the Price as provided by PPG, then subject to clause 3.8, the Customer may cancel its Purchase Order by providing written notice to PPG within 10 days of notice of the variation being given by PPG in accordance with these Terms. The Customer’s failure to give notice will constitute the Customer’s acceptance of the Price variation.
3.8. Where a Purchase Order is cancelled by the Customer in accordance with this clause 3.6, the Customer acknowledges and agrees that PPG will be entitled to recover from the Customer PPG’s reasonable costs and expenses incurred up to and including the date of such cancellation (including by retaining all or part of any Deposit paid by the Customer).
4.1. Unless otherwise agreed by PPG in writing, orders for Goods or Services must be secured with a deposit of at least 30% of the total Price payable by the Customer (Deposit). PPG will not commence any works or take any action in respect of a Purchase Order until such time as this Deposit has been received by PPG in full.
4.2. Unless otherwise stated by PPG, Goods will be invoiced when ready for dispatch from PPG’s premises. The Price (plus all applicable taxes and duties, less the amount of any Deposit paid) must be paid by the Customer (in full) on the earlier of:
(a) the date which is 14 days following the date of any invoice given to the Customer by PPG; and
(b) the date of dispatch or collection of the Goods by the Customer (as the case may be) and/or the provision of the Services by PPG (as the case may be).
4.3. To the extent permitted by law, the Customer is not entitled to make any deduction, set off or withhold payment of the Price.
4.4. Where PPG has agreed to grant a credit arrangement to the Customer, payment must be made no later than the date agreed between the Customer and PPG in writing. Credit terms may be withdrawn or altered by PPG at any time by written notice to the Customer.
4.5. Without prejudice to any other rights or remedies of PPG, if the Customer fails to settle any invoice by the due date, interest shall be payable on any overdue amount from the date on which payment was due, to that on which it is made on a daily basis at the rate from time to time fixed by the Penalty Interest Rates Act 1983 (Vic).
4.6. In addition, the Customer must reimburse PPG for all loss suffered or costs and expenses (including legal costs) incurred by PPG in the collection of any overdue amount.
4.7. If by reason of failure to pay, late payment or otherwise, PPG considers in its absolute discretion that the Customer’s creditworthiness or ability to pay is or may be impaired, then without prejudice to any other available rights and remedies, PPG shall be entitled to suspend further deliveries of Goods not yet paid for and may regard any former agreements between PPG and the Customer as null and void.
5.1. If PPG is unable to deliver or supply the Goods or Services listed in a Purchase Order for any reason, then PPG may cancel any order for Goods or Services by notice in writing to the Customer.
5.2. On cancellation of a Purchase Order by PPG, and subject to the Customer having complied with its obligations under these Terms, PPG will refund to the Customer in full all amounts paid by the Customer to PPG prior to such cancellation.
5.3. To the maximum extent permitted by law, no purported cancellation or suspension of a Purchase Order for the Goods or Services by the Customer is binding on PPG after that order has been accepted by PPG.
5.4. In the event that PPG accepts the Customer’s request to cancel an order for Goods in production or Services, the Customer will be liable to PPG for the costs of the Goods or Services to the extent that they have been created or provided, including all costs related to engineering and manufacturing.
5.5. In the event that PPG accepts the Customer’s request to cancel an order for made to order Goods or commissioned Goods for specific projects, PPG may retain any deposit paid by the Customer, and the Customer will be liable to PPG for any further costs of the Goods or Services to the extent that they have been created or provided, including all costs related to engineering and manufacturing.
6.1. Delivery dates quoted are estimated or indicative dates only and are based on the information available to PPG at the time that the Purchase Order is accepted. To the maximum extent permitted by law, any estimated delivery dates only are not binding on PPG. PPG will use all reasonable endeavours to meet any estimated delivery dates but will not be liable for any loss, consequential or otherwise, suffered by the Customer or any third party if Goods or Services are delayed or delivered on an alternative date.
6.2. To the maximum extent permitted by law, delays will not entitle the Customer or any third party to claim for financial loss or damages (whether direct or indirect), neither will they entitle the Customer to refuse delivery of the Goods or refuse to pay in full when the Goods are delivered.
6.3. Once the Goods leave PPG’s premises, PPG will not accept any liability for loss or damage, howsoever caused, in any stages of transit. Once the Goods have left PPG’s premises, the risk of damage passes wholly to the Customer or any agent that represents the Customer. However, if the Customer reports that Goods have been lost or damaged, PPG will use reasonable endeavors to assist the Customer with the claim against the shipping company.
6.4. In cases where Goods are being supplied for overseas export and forwarding, it is the Customer’s responsibility to ensure that:
(a) all documentation, legislation and regulations which apply or may apply to the import/export of the Goods are fully complied with; and
(b) all applicable taxes, duties and excise charges in respect of the import/export of the Goods are paid in full (by the Customer).
6.5. PPG accepts no liability for any costs associated with the exportation of Goods, including (but not limited to) any costs arising as a result of omissions and errors made by the Customer.
7. OWNERSHIP OF GOODS & TOOLING
7.1. All Goods shall remain the property of PPG until the Customer has paid the Price to PPG in full, in accordance with these Terms. Title to the Goods will pass to the Customer on the date that the Customer pays the Price in accordance with these Terms.
7.2. Where the Customer takes possession of the Goods before title passes, risk in the Goods will pass to the Customer. However, the Customer shall hold the Goods as the fiduciary agent of PPG. It is the Customer’s responsibility to store the Goods so they are identifiable as the property of PPG and shall allow access to representatives of PPG to visit the premises where the Goods are stored to check on or re-possess the Goods until such time as full payment of the Price is made in accordance with these Terms.
7.3. If the Goods are not available or have been sold, then the Customer is liable to pay the full amount of the re-sale to PPG, notwithstanding any other claim or costs that PPG may have incurred in order to recover the debt.
7.4. For the avoidance of doubt, any tooling, equipment and fixtures that are invoiced at part-cost only are to remain the property of PPG until the Customer pays the Price in full to PPG, in accordance with these Terms.
8. PERSONAL PROPERTY SECURITIES ACT
8.1. Notwithstanding anything to the contrary contained in these Terms, the PPSA applies to these Terms.
8.2. For the purposes of the PPSA:
(a) terms used in this clause 8 that are defined in the PPSA have the same meaning as in the PPSA;
(b) these Terms are a security agreement and PPG has a purchase money security interest in all present and future Products supplied by PPG to the Customer and the proceeds of those Goods;
(c) the security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any particular time; and
(d) the Customer must do whatever is necessary in order to give a valid security interest over the Goods which is able to be registered by PPG on the Personal Property Securities Register.
8.3. The security interest arising under this clause 8 attaches to the Goods when the Goods are collected or dispatched from PPG’s premises and not at any later time.
8.4. Where permitted by the PPSA, the Customer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
8.5. PPG and the Customer agree to contract out of and nothing in the provisions of sections 96, 125, 129, 142 and 143 of the PPSA will apply to these Terms.
8.6. To the extent permitted by the PPSA, the Customer agrees that:
(a) the provisions of Chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on PPG will apply only to the extent that they are mandatory or PPG agrees to their application in writing; and
(b) where PPG has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
8.7. The Customer must immediately upon PPG’s request:
(a) do all things and execute all documents necessary to give effect to the security interest created under these Terms; and
(b) procure from any person considered by PPG to be relevant to its security position such agreements and waivers (including as equivalent to those above) as PPG may at any time require.
8.8. PPG may allocate amounts received from the Customer in any manner PPG determines, including in any manner required to preserve any purchase money security interest it has in Goods supplied by PPG.
8.9. For the purposes of section 275(6) of the PPSA, the parties undertake and agree that these Terms and any information pertaining to the sale of Products and details of the Goods must be kept confidential at all times. The parties must not disclose any information relating to these Terms or the sale of the Goods, except as otherwise required by law or that is already in the public domain.
9. INTELLECTUAL PROPERTY
9.1. The Customer warrants that any designs, materials or documents provided by the Customer to PPG to assist in the provision by PPG of the Goods or Services will not infringe any third-party intellectual property rights.
9.2. Except as otherwise agreed by PPG and the Customer in writing, the Customer acknowledges and agrees that PPG retains all rights, title and interest in all Intellectual Property and nothing in these Terms will constitute a transfer of any rights in the Intellectual Property to the Customer.
9.3. For the avoidance of doubt, any designs, plans, engineering documents or similar prepared by PPG in respect of the Goods or Services to be provided to a Customer are part of the Intellectual Property owned by PPG. The Customer will not acquire any intellectual property rights in respect of such designs, plans or engineering documents unless expressly agreed in writing by the Customer and PPG.
10. CONSUMER GUARANTEES
10.1. Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Service, you are entitled:
(a) to cancel your Service contract with us; and
(b) to a refund for the unused portion, or to compensation for its reduced value.
10.2. You are also entitled to choose a refund or replacement for major failures with Goods. If a failure with the Goods or a Service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
11.1. Subject to the provisions of the ACL and the limitations set out in these Terms, we warrant the Goods against defects for a period of 6 months following purchase of the Goods.
12. EXTENT OF LIABILITY
12.1. Except as otherwise required by law, or as specifically stated in these Terms or any express warranty provided in relation to the Goods or Services:
(a) these Terms do not include by implication any other term, condition or warranty in relation to the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods or any contractual remedy for their failure; and
(b) PPG shall have no liability to the Customer or any third party (other than liability for death or personal injury resulting from PPG’s negligence) for any loss or damage of any nature arising from any breach of any expressed or implied warranty, term or condition of these Terms, or from any negligence or breach of statutory or other duty on the part of PPG in connection with the performance - or purported performance of - or failure to perform under these Terms.
12.2. To the extent permitted by law, PPG will not be liable for any claims for indirect or consequential injury or damage howsoever caused (including loss of profits, turnover, business or goodwill or any liability to any other party).
12.3. To the extent permitted by law, no claim shall arise against PPG:
(a) for any defect arising from any design or specification provided by the Customer;
(b) if any person other than PPG has done any adjustments, alterations, modifications or other work to the Goods;
if the Goods have been subject to an accident, negligent use, tampering, improper handling, use, operation or storage, or due to any other causes outside of PPG’s reasonable control; or
if the Goods have not been used, maintained or serviced in accordance with standard practice or PPG’s instructions and recommendations.
12.4. To the maximum extent permitted by law, the liability of PPG to the Customer shall not exceed the invoice value of the Goods or Services.
12.5. To the extent permitted by law, and subject to the limitations set out in these Terms, lightweight, weight-optimized and performance components are supplied subject to warranty only against manufacturing defects. It is possible that in certain conditions the operating life of Goods may be reduced. Similarly, prototype or experimental components or Goods, or components of Goods manufactured to the Customer’s design, are supplied subject to a warranty only against manufacturing defects. Furthermore, such components - by their very nature - are not warranted as to their suitability for use or performance.
12.6. To the extent permitted by law:
(a) Goods intended for motorsport or any related application, or for product development, evaluation or experimentation, are supplied subject to the Customer recognizing and accepting that such Goods are not for use on public roads, streets or highways, are to be used for racing purposes only and may operate under extreme loads and conditions, and that it is wholly the Customer’s responsibility to ensure that the Goods are correctly fitted, inspected, adjusted and maintained at all times to suit the specific conditions in which they may be used; and
(b) it is the Customer’s responsibility to ensure that the correct type and specification of Goods are fitted and that the products’ published limitations are not exceeded. PPG will accept no responsibility whatsoever for failure, damage, injury or consequential loss if the wrong product or products have been used or, in the opinion of PPG, if excessive loads have been applied to the components, in particular if used during an activity that can be described as motorsport, be it competitive or otherwise.
12.7. The Customer acknowledges that:
(a) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by PPG in relation to the Goods or Services or their use or application; and
(b) it has not made known, either expressly or by implication, to PPG any purpose for which it requires the Goods and/or Services and it has the sole responsibility of satisfying itself that the Goods and/or Services are suitable for the use of the Customer.
12.8. Nothing in these Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods and services which cannot be excluded, restricted or modified (including, but not limited to, the provisions of the ACL).
13. CLAIM PROCEDURE
13.1. If the Customer wishes to make a claim pursuant to these Terms, it must send the relevant Goods (including all relevant parts provided with the Goods at the time of sale) to PPG (at the address specified at clause 15 below) at its own cost and at its own risk, accompanied by a copy of its receipt for the Goods clearly showing the date and full details of the purchase, within 14 days of the defect becoming reasonably apparent.
13.2. All claims submitted to PPG under these Terms must also be accompanied by:
(a) the Customer’s full contact details;
(b) full details of the alleged defect;
(c) appropriate documentation such as historical or repair records; and
(d) any further information reasonably requested by us.
13.3. The Customer warrants that all information provided with a warranty claim is true, correct and complete.
13.4. Once the Goods have been delivered, we will assess the Goods and determine:
(a) The cause of the failure; and
(b) What will be required to remedy the failure.
13.5. If the result of the assessment is that the failure of the Goods is covered by these Terms, we will in our absolute discretion select and provide one of the remedies set out in clause 9 and you will be entitled to claim your reasonable expenses incurred in relation to the defect, by contacting us at the contact details specified in clause 15 below.
13.6. If the report establishes that the failure of the Goods is not covered by these Terms or the ACL, we will notify you and you will need to pay the costs of the return of the Goods, and any related costs (such as the cost of an independent maintenance specialist – if relevant).
13.7. The timing of any repair is not fixed and may depend on the repair schedule, staffing and availability of parts.
13.8. Any Goods replaced or repaired by us under these Terms will be warranted for the remainder of the original warranty period for the replaced or repaired Goods.
13.9. To the extent permitted by law, in the case of Goods not manufactured by PPG, the sole liability shall be passed to the Customer together with the benefit of any guarantees, conditions or warranties received by PPG in respect of such Goods.
14.1. For all Goods covered by the warranty under these Terms, PPG will either (at PPG’s complete discretion):
(a) repair or replace the Goods free of charge; or
(b) cause the defective Goods or the defective part of the Goods to be repaired or replaced by a qualified repairer free of charge.
14.2. These remedies are the Customer’s sole and exclusive remedy for defective Goods, subject to the provisions of the ACL (if applicable). If the Customer is a “Consumer” (as defined in the ACL), nothing in this clause 14 limits any remedy available for a failure of any of the consumer guarantees under the ACL.
14.3. PPG reserve the right to replace defective parts of the Goods with parts and components of similar age, quality, grade and composition where an identical part is not available. Goods presented for repair may be replaced by refurbished goods rather than being repaired. Refurbished parts may be used to repair the Goods.
15. RESPONSIBILITY OF THIRD-PARTY DAMAGES AND RIGHTS
15.1. PPG will not be responsible for damages, costs and expenses that are the result of work carried out in accordance with Customer requests, designs or specifications. This includes the infringement – or alleged infringement - of third party intellectual property rights, registered designs or patents.
16. SUB-CONTRACTING OF WORK
16.1. PPG reserves the right to sub-contract work – either in whole or part - at its absolute discretion.
17.1. Any information, technical or otherwise, provided by PPG to the Customer remains the property of PPG and is to be regarded as confidential and may not be disclosed unless written permission has been granted by PPG. Permission to disclose does not transfer the ownership or rights of the property.
18. RETURN OF GOODS
18.1. In cases where PPG has agreed that Goods may be accepted for credit, they must be returned in good order and a re-saleable condition within six-months of being supplied. Carriage will not be paid by PPG unless previously agreed in writing with the Customer. A handling charge of 15% of the Price may be applied.
18.2. Goods made to special order cannot be returned and therefore, no credit will be issued unless it is proved conclusively that they are incorrectly made or defective as a result of work carried out by PPG.
19.1. The law of South Australia from time to time govern these Terms. The parties agree to the non-exclusive jurisdiction of the courts of South Australia and of the courts entitled to hear appeals from those Courts.
19.2. PPG's failure to enforce any of these Terms shall not be construed as a waiver of any of PPG’s rights.
19.3. If any clause of these Terms is unenforceable it shall be read down to be enforceable or, if it cannot be read down, the term shall be severed from these Terms, without affecting the enforceability of the remaining terms.
19.4. A notice must be in writing and handed personally or sent by email, facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received on confirmation of successful transmission.
20. CONTACT DETAILS
Pfitzner Performance Gearbox Pty Ltd
Contact: Tom Perham
Tel: + (61) (8) 8285 2933
Address: 14a Watervale Drive, Green Fields, South Australia 5107. Australia.