Terms & Conditions
BUSINESS HOURS
Monday - Friday, 8.00am - 5.00pm
1. Definitions
1.1 “JTR” means John Titman Racing Services Pty Ltd ABN 16 010 831 071 its successors and assigns or any person acting on behalf of and with the authority of JTR.
1.2 “Customer” means the Customer (or any person acting on behalf of or with the authority of the Customer) as described on any invoice, quotation, work authorisation or other form as provided by JTR to the Customer and shall include executors, administrators, successors and permitted assigns.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer.
1.4 “Goods” shall mean goods supplied by JTR to the Customer or at the Customer’s direction as described on any invoice, quotation, work authorisation or other form provided by JTR to the Customer.
1.5 “Price” means the price payable for the Goods as agreed between JTR and the Customer in accordance with clause 3 of these Terms & Conditions of Sale.
2. Acceptance
2.1 Any order, request or instructions received by JTR from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by JTR constitutes acceptance of these terms and conditions.
2.2 A quotation issued by JTR does not constitute an offer made by JTR. Customer orders will not be binding until accepted by JTR.
2.3 Where more than one Customer has entered into this agreement, each Customer is jointly and severally bound by these terms and conditions and is liable for all payments of the Price.
2.4 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of JTR.
2.5 Where the Customer gives JTR notice of any change in the Customer’s name, address and/or any other change in the Customer’s details such change is not binding on JTR until fourteen (14) days after such notice has been given.
3. Price and Payment
3.1 The Price is JTR’s quoted Price (subject to clause 3.2) which is binding upon JTR provided that the Customer makes an order in writing against JTR’s quotation within thirty (30) days of the date of quotation.
3.2 JTR reserves the right to change the Price in the event of a variation to JTR’s quotation.
3.3 At JTR’s sole discretion the Customer may be required to pay a deposit as a condition of acceptance of an order.
3.4 At JTR’s sole discretion payment may be due either on delivery of the Goods or before delivery of the Goods.
3.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment is due Thirty (30) days following the end of invoice month.
3.6 If payment is made by credit card then JTR reserves the right to pass the credit card fee on to the Customer.
3.7 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method agreed in writing from time to time by the Customer and JTR.
3.8 GST and other taxes and duties that may be applicable shall be added to the Price unless they are expressly included in the Price when the Price is expressed to be”GST inclusive”.
4. Delivery of Goods
4.1 Unless otherwise agreed in writing delivery is at JTR’s premises and any cost of transportation of the Goods must be paid by the Customer.
4.2 The Customer must make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then JTR is entitled to charge a reasonable fee for redelivery.
4.3 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement. In that event extra charges may apply to the Customer’s account.
4.4 JTR may deliver the Goods by separate instalments. Each separate instalment will be invoiced and paid for in accordance with the provisions of these terms and conditions.
4.5 The failure of JTR to deliver shall not entitle either party to treat this contract as repudiated. Any date quoted for delivery will be an estimate only and is not binding on JTR.
4.6 JTR is not liable for any loss or damage due to failure by JTR to deliver the Goods (or any of them) promptly or at all.
5. Risk
5.1 If JTR retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery under clause 4.1. If despatch is delayed, risk passes to the Customer after fourteen (14) days from the date of notification that the goods are ready for delivery.
5.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, JTR is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by JTR is sufficient evidence of JTR’s rights to receive the insurance proceeds without the need for any person dealing with JTR to make further enquiries.
6. Title
6.1 JTR and the Customer agree that ownership of the Goods remains with JTR as full legal and equitable owner and ownership does not pass to the Customer until:
(a) the Customer has paid JTR all amounts owing for the particular Goods; and
(b) the Customer has met all other obligations due by the Customer to JTR in respect of all contracts between JTR and the Customer.
6.2 Receipt by JTR of any form of payment other than cash will not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then JTR’s ownership or rights in respect of the Goods continues.
6.3 It is further agreed that:
(a) where practicable the Goods will be kept separate and identifiable until JTR receives payment and all other obligations of the Customer are met; and
(b) until such time as ownership of the Goods passes from JTR to the Customer. JTR may give notice in writing to the Customer to return the Goods or any of them to JTR. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods ceases; and
(c) JTR has the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Customer fails to return the Goods to JTR then JTR or JTR’s agent may enter upon and into land and premises owned, occupied or used by the Customer or any premises, where the Goods are situated as the invitee of the Customer and take possession of the Goods; and
(e) the Customer is only a bailee of the Goods until JTR receives payment in full for the Goods and until then the Customer shall hold any proceeds from the sale or disposal of the Goods on trust for JTR; and
(f) the Customer will not deal with the money of JTR in any way which may be adverse to JTR; and
(g) the Customer will not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of JTR; and
(h) JTR can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
(i) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that JTR will be the owner of the end products.
7. Customer’s Warranty
7.1 The Customer hereby warrants that the Customer has not relied on any representation or promise made by JTR other than as expressly agreed in writing or as set out in these terms and conditions. The Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgement.
8. Defects
8.1 The Customer will inspect the Goods on delivery and must within seven (7) days of delivery (time being of the essence) notify JTR of any alleged defect, shortage in quantity, damage or failure to comply with the description or quotation quoting the relevant invoice number. The Customer will afford JTR a reasonable opportunity to inspect the Goods within a reasonable time. If the Customer fails to comply with these provisions the Goods will be deemed to be free from any defect or damage. For defective Goods, which JTR has accepted in writing as being defective, JTR’s liability is limited in accordance with the terms and conditions contained herein.
9. Goods Returned
9.1 JTR may accept the return of Goods on the terms contained herein.
9.2 Goods returned will only be accepted provided that:
(a) the Customer has complied in all respects with the provisions of clause 8.1;
(b) the Goods are returned to JTR at the Customer’s cost within ten (10) days of the original delivery date in the condition in which the Goods were delivered accompanied by a Credit Request Form (available on JTR’s website www.jtr.com.au) and a Credit Request Number (which shall be available from JTR by telephone on request) and with all packaging material, brochures and instruction material (if any) in as new condition unused, not damaged nor defaced nor marked or disfigured; and
(c) after inspection of the Goods returned JTR has agreed in writing to accept the return of the Goods and to provide a refund to the Customer. Acceptance of Goods returned for stocking may incur a restocking fee which, if applicable, will be deducted from any refund.
9.3 JTR will not be liable to accept return of Goods which have not been stored or used in a proper manner or have been abused or neglected or have been proof tested without the prior consent of JTR.
10. Warranty
10.1 Subject to the conditions of warranty set out in clause 10.2 JTR warrants that if any defect in any Goods becomes apparent and is reported to JTR within thirty (30) days of the date of delivery (time being of the essence) then JTR will, at JTR’s sole discretion, either repair or replace the defective Goods or allow the Customer a credit for the cost of replacing the Goods or acquiring equivalent Goods.
10.2 The conditions applicable to the warranty provided by clause 10.1 are:
(a) The warranty will not cover any defect or damage which may be caused or contributed to or arise through:
(i) Failure on the part of the Customer to properly select appropriate Goods or to properly install, clean, maintain or care for any Goods; or
(ii) Failure on the part of the Customer to follow any instructions, information, advice or user guidelines provided by JTR; or
(iii) Any misuse, abuse, neglect of the Goods or use or installation of any Goods otherwise than for any application specified on a quote or order form; or
(iv) The continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) Fair wear and tear, any accident or act of God.
(b) The warranty will cease and JTR will thereafter in no circumstances be liable under the terms of the warranty if the Goods are repaired, altered or modified without JTR’s consent.
(c) In respect of all claims JTR will not be liable to compensate the Customer for any delay in either remedying the Goods or allowing a credit or in properly assessing the Customer’s claim.
11. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
11.1 Terms implied in this agreement by statute are excluded except to the extent that exclusion is prohibited by legislation. Nothing in this agreement is intended to have the effect of contracting out of any applicable terms implied by the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in the States and Territories of Australia, except to the extent permitted by those Acts where applicable. If there is a breach of such an implied term the liability of JTR will be limited, at JTR’s option, to one or more of repairing or replacing the defective Goods or allowing the Customer a credit for the cost of replacing the Goods or acquiring equivalent Goods.
12. Intellectual Property
12.1 Where JTR has designed, drawn or written anything relating to Goods for the Customer, then the copyright in those designs and drawings and documents will remain vested in JTR, and will only be used by the Customer with JTR’s express permission.
12.2 The Customer warrants that all designs or instructions to JTR will not cause JTR to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer will indemnify JTR against any action taken by a third party against JTR in respect of any such infringement.
13. Default & Consequences of Default
13.1 Interest calculated at 2% per annum in excess of the current Westpac Indicator Lending Rate for overdrafts above $100,000 (calculated from date of invoice to the date of full and final payment) will be payable if payment is not received on or before the due date for payment in accordance with the terms and conditions herein. Such interest shall compound monthly at such a rate after as well as before any judgement. Any payment will be applied first against any interest so accrued and the balance if any shall be applied in reduction of the outstanding balance of the contract price.
13.2 If the Customer defaults in payment of any invoice when due, the Customer will indemnify JTR from and against all costs and disbursements incurred by JTR in pursuing the debt including legal costs on a solicitor and own client basis and JTR’s collection agency costs.
13.3 Without prejudice to any other remedies JTR may have, if at any time the Customer is in breach of any obligation (including those relating to payment) JTR may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. JTR will not be liable to the Customer for any loss or damage the Customer suffers because JTR has exercised its rights under this clause.
13.4 If the Customer defaults in payment for more than 45 days from the due date as invoiced or more than 7 days in the case of a 7 day account the Customer and any associated businesses will be placed on stop credit.
13.5 Without prejudice to JTR’s other remedies at law JTR will be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to JTR will, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to JTR becomes overdue, or in JTR’s opinion the Customer will be unable to meet its payment obligations as they fall due; or
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
14. Security and Charge
14.1 The Guarantor guarantees the performance of the Customer’s obligations. Despite anything to the contrary contained herein or any other rights which JTR may have however:
(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to JTR or JTR’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/ or the Guarantor acknowledge and agree that JTR (or JTR’s nominee) will be entitled to lodge where appropriate a caveat, which caveat will be withdrawn once all payments and other monetary obligations payable to JTR have been satisfied.
(b) should JTR elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor will indemnify JTR from and against all JTR’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint JTR or JTR’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 14.1.
15. Cancellation
15.1 JTR may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice JTR will repay to the Customer any sums paid in respect of the Price. JTR will not be liable for any loss or damage whatever arising from such cancellation.
15.2 In the event that the Customer refuses acceptance of Goods upon delivery or otherwise repudiates the contract the Customer will be liable for any loss incurred by JTR (including, but not limited to, any loss of profits) up to the time of refusal or repudiation.
16. Privacy Act 1988
16.1 The Customer and/or the Guarantor/s agree for JTR to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and/or Guarantor/s in relation to credit provided by JTR.
16.2 The Customer and/or the Guarantor/s agree that JTR may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the credit worthiness of Customer and/or the Guarantor/s.
16.3 The Customer consents to JTR being given a consumer credit report to collect overdue payment on commercial credit (Section 18K (1) (h) Privacy Act 1988).
16.4 The Customer agrees that personal credit information provided may be used and retained by JTR for the following purposes and for other purposes as shall be agreed between the Customer and JTR or as required by law from time to time:
(a) provision of Goods; and/or
(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and/or
(d) enabling the daily operation of the Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
16.5 JTR may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
17. General
17.1 These Terms & Conditions of Sale will be deemed to be incorporated into any agreement between JTR and the Customer. All representations, statements, terms and conditions and warranties (whether implied by statute or otherwise) not contained herein are expressly excluded to the fullest extent permitted by law.
17.2 If any provision of these terms and conditions is invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.
17.3 These terms and conditions and any contract to which they apply are governed by the laws of Queensland and the parties subject themselves to the jurisdiction of the courts of Queensland.
17.4 JTR will be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by JTR of these terms and conditions or any breach by JTR of any term implied by legislation.
17.5 In the event that JTR breaches any term of this contract (whether express or implied by legislation or otherwise) the remedies of the Customer will be limited to damages which under no circumstances shall exceed the Price of the Goods.
17.6 The Customer will not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by JTR.
17.7 JTR may license, assign or sub-contract all or any part of its rights and obligations without the Customer’s consent.
17.8 JTR reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which JTR notifies the Customer in writing of such change.
17.9 Neither party will be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of the party.
17.10 The failure by JTR to enforce any provision of these terms and conditions will not be treated as a waiver of that provision, nor will it affect JTR’s right to subsequently enforce that provision.
PRICES
All prices are current at the point of delivery. Prices are subject to change without notice. Prices are all in Australian dollars.
ORDERING
Customers may place orders by mail, phone, fax, email or through sales representatives. Where possible orders should be accompanied by the current part number listed in our catalogue, along with the product description and desired quantity.
BACK ORDERS
All items that are not in stock at the time the order is shipped will be placed on back order UNLESS “OTHERWISE CANCELLED”. Please notify us should you wish to cancel a back order. Freight will be charged on back orders.
FREIGHT
Freight on all orders is borne by the customer. Every effort is made to dispatch orders on the same day they are received (excludes workshop and wheel work). Please specify the preferred method of shipping when ordering. If no instructions are received JTR will ship via the most effective measure i.e.; air, road freight or post.
PRODUCT COLOURS
Product photo’s which appear in this catalogue should be used as a guide, if making colour choice from the catalogue, consideration must be given that the images used are generic samples, and may vary due from batch to batch from suppliers. JTR is not responsible for the colour or difference in shades of colours that is supplied to JTR.
