Trading Terms

The following terms and conditions (“Trading Terms”) apply to all purchases of goods and/or services by you, (the “Customer”), from T.C Boxes Australia Pty Ltd ABN 78 646 286 615 (“T.C Boxes”). Placing an order with T.C Boxes will constitute deemed acceptance by the Customer of these Trading Terms. Any modifications of or deviations from these Trading Terms must be agreed in writing by T.C Boxes.

1.  Orders and quotations

1.1   Orders will be initiated by you making a request for stock from T.C Boxes. When placing an order with T.C Boxes, you will comply with any ordering procedures (including the required form of any order) notified to you from time to time by T.C Boxes.

1.2   T.C Boxes reserves the right to accept or reject any order in whole or in part for any reason, including without limitation the unavailability of any products.

1.3   Quotations are not valid unless they are provided to the Customer in writing.

1.4   All quotations provided to the Customer by T.C Boxes in writing are open for acceptance for a period of 14 days from the date of the quotation. Acceptance must be in writing and signed by the Customer within that time period.

1.5   If the quotation is not accepted in writing within that period the offer in the quotation will lapse.

1.6   Until the quotation is accepted by the Customer, T.C Boxes reserves the right to withdraw the quotation or to vary or alter any part, including without limitation any price or fee specified in the quotation.

1.7   The Customer agrees to be bound by the Contract, which becomes binding on the Customer when T.C Boxes gives written notice that it accepts an order or receives the Customer’s unconditional acceptance of the quotation in writing, and which acceptance or quotation shall constitute an invoice.

1.8   The Customer cannot cancel a Contract without the written agreement of T.C Boxes.

2.  Data errors and omissions

T.C Boxes makes every effort to ensure the accuracy of information shown in T.C Boxes’ documents and/or website, including without limitation its catalogues or databases. Such information may contain technical inaccuracies or typographical errors. T.C Boxes makes no representation or warranty as to the accuracy of any information.

3.  Pricing and payment

3.1   T.C Boxes will invoice all orders and provide all quotations at its current prices, which will be communicated to the Customer at the time of an order or quotation being provided. The Customer agrees to pay the Purchase Price for the goods and/or services supplied to the Customer by T.C Boxes as set out in the applicable Contract.

3.2   T.C Boxes may add to the published price of any goods and/or services:

(a)   any amount that T.C Boxes is required to pay on account of any excise duty or any taxes or charges which may be established or levied by any governmental authority (domestic or foreign) thereupon or on any part thereof or in connection therewith;

(b)   any amount that T.C Boxes is required to pay on account of any GST which may be established or levied by a government agency;

(c)   any transportation, packing and delivery costs; and

(d)   an amount that reflects any relevant increase in exchange rates, transportation costs and the cost of labour and materials.

3.3   Unless otherwise specified in the Contract or agreed in writing by T.C Boxes, the Customer shall pay each invoice for the goods and/or services supplied to the Customer in full before the goods and/or services are supplied to the Customer.

3.4   If goods and/or services are supplied to a Customer on credit by way of a Credit Account such credit is offered subject to the conditions set out in T.C Boxes’ application for Credit Account form, including with respect to the terms of payment set out in the Credit Account form.  Where no terms of payment are set out, the Customer shall pay each invoice for the goods and/or services supplied to the Customer in full in accordance with clause 3.3.

3.5   The Customer is not entitled to withhold payment in whole or in part, or claim any right to set off in respect of the Purchase Price.

4.  Interest

4.1   If the Purchase Price or any part of the Purchase Price remains unpaid after the payment date required by the Contract, the outstanding Purchase Price shall be subject to interest at a rate of 11.5% per annum.

4.2   Interest accrues from day to day, from the payment date required by the Contract until and including the day the Invoice is paid in full. Any amount of interest, together with the outstanding Purchase Price is payable by the Customer on receipt of a written demand from T.C Boxes. The Customer agrees to pay such interest levied from time to time.

5.  Credit Accounts and Events of Default

5.1   T.C Boxes may refuse to supply goods and/or services to the Customer if there is an Event of Default.

5.2   Upon the occurrence of an Event of Default all outstanding amounts become payable immediately, notwithstanding the terms of the Credit Account.

5.3   The Customer agrees that T.C Boxes, in its absolute discretion, may withdraw or vary the Credit Account facility at any time.

5.4   The Customer agrees to pay on demand all sums owing in connection with the Credit Account at any time.

5.5   If there is a change in ownership of the Customer which T.C Boxes deems to be material, T.C Boxes may withdraw the Credit Account facility and require that the Customer submit a new Credit Account application form.

6.  Ownership and risk

6.1   All risk in the goods supplied by T.C Boxes under a Contract will pass to the Customer when the goods are dispatched from T.C Boxes premises for delivery to the Customer.

6.2   Ownership of each unit of the goods will remain with T.C Boxes until all amounts owing by the Customer to T.C Boxes on any account whatsoever (including the Purchase Price for the goods) (“Amounts Owing”) have been paid.

6.3   Until the Amounts Owing have been paid, the Customer:

(a)   may, subject to applicable law and the terms of the Contract, take possession of the goods and hold them as trustee and agent for T.C Boxes; and

(b)   must ensure that the goods are insured and stored or identified so that they are readily distinguishable from other goods held by the Customer or other persons.

6.4   Until the Amounts Owing have been paid, the Customer has the right to move, sell and otherwise use the goods in the ordinary course of its business, subject to the following:

(a)   the Customer may sell the goods, but only as trustee and agent for T.C Boxes;

(b)   the Customer must hold the proceeds it receives from any sale of the goods as trustee and agent for T.C Boxes;

(c)   the Customer must place the whole of the monetary proceeds in an account separate from its own monies and maintain proper records of that account; and

(d)   if the goods become part of a product or mass through manufacturing, processing, assembly or becoming commingled, T.C Boxes’ security interest continues in that product or mass (“Commingled Property”) to the extent permitted by law.

6.5   Notwithstanding anything else in these Trading Terms, the Customer must not represent to any third parties that it is acting as agent of T.C Boxes and T.C Boxes will not be bound by any contracts with third parties to which the Customer is a party.

6.6   If the Customer fails to comply with any part of these Trading Terms in relation to the payment of any Amount Owing or otherwise, then:

(a)   immediately on T.C Boxes’ request the Customer must return to T.C Boxes any goods acquired from T.C Boxes on which there are outstanding Amounts Owing;

(b)   T.C Boxes may enter the premises at which those goods are stored, and seize possession of them; and

(c)   T.C Boxes may retain, sell or otherwise dispose of those goods.

6.7   The Customer must not assign or grant a security interest in respect of any accounts owed to it in relation to the goods without T.C Boxes’ prior written consent.

6.8   Without limiting the meaning of Amounts Owing, if the Customer makes a payment to T.C Boxes at any time whether in connection with these Trading Terms or otherwise T.C Boxes may, at its absolute discretion, apply that payment to first satisfy obligations that are not secured, then obligations that are secured, but not by a purchase money security interest, in the order in which those obligations were incurred, and then obligations that are secured by a purchase money security interest in the order in which those obligations were incurred.

6.9   If Chapter 4 of the PPSA would otherwise apply to the enforcement of these Trading Terms or any Contract, the Customer agrees the following provisions of the PPSA will not apply to the enforcement: section 95 (notice of removal of accession), to the extent that it requires T.C Boxes to give a notice to the Customer; section 96 (when a person with an interest in the whole may retain an accession); subsection 121(4) (enforcement of liquid assets – notice to grantor); section 125 (obligation to dispose of or retain collateral); section 130 (notice of disposal), to the extent that it requires T.C Boxes to give a notice to the Customer; paragraph 132(3)(d) (contents of statement of account after disposal); subsection 132(4) (statement of account if no disposal); section 135 (notice of retention); section 142 (redemption of collateral); and section 143 (reinstatement of security agreement).

6.10   Notices or documents required or permitted to be given to T.C Boxes for the purposes of the PPSA must be given in accordance with the PPSA.

6.11   The Customer consents to T.C Boxes effecting a registration on the PPSA register (in any manner T.C Boxes considers appropriate) in relation to any security interest contemplated by these Trading Terms or any Contract and the Customer agrees to provide all assistance reasonably required to facilitate this. The Customer waives the right to receive notice of a verification statement in relation to any registration on the register.

6.12   In these Trading Terms:

(a)   a reference to goods means the original goods supplied as described in each Invoice and also includes proceeds and Commingled Property when the context permits;

(b)   paid means receipt of cash or cleared funds by T.C Boxes in full satisfaction of the Amounts Owing;

(c)   PPSA means the Personal Property Securities Act 2009 (Cth) and any regulations made pursuant to it; and

(d)   the following words have the respective meanings given to them in the PPSA: account, commingled, proceeds, purchase money security interest, register, registration, security interest and verification statement.

7.  Delivery

7.1   T.C Boxes makes no warranty as to time of delivery or the availability of any goods. The estimated time frame for delivery of goods as specified in any order or quotation or in T.C Boxes’ documents and/or website, including without limitation its catalogues or databases, is based on the best estimates of T.C Boxes at the time. T.C Boxes will use its reasonable endeavours to effect delivery by the estimated time frame, but does not guarantee that delivery will be effected by such time, and T.C Boxes is not responsible for any delays in delivery.

7.2   T.C Boxes may, by notice in writing to the Customer, extend the period for delivery, change the delivery schedule or cancel a Contract where it is not able to reasonably meet an estimated time for delivery of goods due to unavailability of the goods or other circumstances beyond the reasonable control of T.C Boxes, in each case without liability to the Customer for any loss or damage of any kind.

7.3   T.C Boxes may deliver the goods in part with written notice to the Customer. If goods are delivered in part pursuant to such notice, the Customer must accept the part-delivery and pay that part of the Purchase Price represented by the goods delivered.

7.4   Goods will be delivered to the address or in the manner specified in the Contract.

7.5   For the avoidance of doubt, the Customer will bear all risks in relation to the destruction, loss or damage of any goods at all times from the time any goods are dispatched from T.C Boxes premises for delivery to the Customer.

8.  Warranties and returns

8.1   T.C Boxes gives the warranties specified in the Warranty as being given by T.C Boxes, and subject to and to the maximum extent permitted by law, excludes all other warranties in relation to the goods and services provided by T. C Boxes, whether express or implied, including without limitation any warranty regarding merchantability or fitness for a particular purpose.

8.2   To the maximum extent permitted by law, T.C Boxes excludes all liability in respect of the goods and services provided by T. C Boxes. To the extent that T.C Boxes is not able to exclude liability under law, then to the maximum extent permitted by law T.C Boxes’ liability under the Warranty or otherwise in respect of the goods and services provided by T. C Boxes is limited as in accordance with the Warranty.

8.3   Other than specifically stated in these Trading Terms and to the maximum extent permitted by law, T.C Boxes is not liable for and the Customer hereby releases T.C Boxes from any consequential loss or damages of any type including without limitation incidental, special, indirect, punitive or otherwise, including loss of profit, whatever the claim (tort, breach of contract or warranty or otherwise) and whatever the forum, whether arising out of or in connection with the goods and services provided by T. C Boxes or any other cause whatsoever.

8.4   The Customer releases T.C Boxes from all liability, in respect of personal injury or death or damage or loss of property of any person including the Customer or the Customer’s employees agents or contractors, arising wholly or in part from the Customer’s acts, omissions, negligence, breach of duty, breach of contract, or breach of the Contract.

8.5   In any event and without limiting the generality of the foregoing, T.C Boxes’s liability for any breach of a term, condition or warranty not excluded by the Contract will be limited to the replacement of goods delivered or the payment of the cost of replacing the goods or acquiring equivalent goods from an alternate supplier and/or the resupply of any services rendered or the cost of having those services resupplied.

8.6   Where goods and services have a defect that is covered by the Warranty, then T.C Boxes will deal with those good and services in accordance with the Warranty.

8.7   Where goods and services have a defect that is covered by applicable law, including any Australian Consumer Law, then T.C Boxes will deal with those good and services in accordance with the applicable law and Warranty (to the extent applicable).

8.8   In any other case, T.C Boxes will only accept a return and/or agree to provide a refund or credit in respect of goods purchased by a Customer in its absolute discretion and in accordance with the terms of a written confirmation to the Customer.

8.9   Where T.C Boxes does accept a return and/or agree to provide a refund or credit in respect of goods purchased by a Customer, it will be subject to the following conditions:

(a)   the goods must be a standard item that T.C Boxes has in stock on a regular basis;

(b)   the goods must be accompanied by original packaging, remain unused and in original condition;

(c)   the goods must be accompanied by the original proof of purchase or other relevant original documentation;

(d)   freight to and from T.C Boxes on all returns is to be borne by the Customer and handling charges or freight for the return of goods, if not prepaid, will be deducted from the total amount of credit or refund or otherwise charged to the Customer;

(e)   the Customer is responsible for ensuring that any returned goods are properly packaged, protected and insured for transit as risk in the returned goods remains with the Customer until the goods are received, inspected and accepted by T.C Boxes and T.C Boxes will not be responsible for any returned goods that are lost, damaged or delayed in transit, except to the extent caused by T.C Boxes or as otherwise required by applicable law;

(f)   T. C Boxes reserves the right to charge an inspection and re-stocking fee of 20% of the original invoice value of the returned goods;

(g)   a non-refundable fee of 20% of the order value may also apply to order cancellations in circumstances where T.C Boxes has incurred costs or committed resources, including where:

(1)   goods have been custom manufactured, modified or powder-coated;

(2)   goods have been pre-prepared for installation or dispatch; or

(3)   an installation or delivery date has been scheduled or booked at the Customer’s request; and

(h)   no restocking, handling or cancellation fee will apply where goods are proven to be faulty, damaged or misdescribed at the point of sale, subject to applicable law.

8.10   In the case of all goods returned to T.C Boxes, T.C Boxes is under no obligation to issue a refund or credit note to the Customer if the Customer owes any money to T.C Boxes.

9.  Customer’s acknowledgement

9.1   The Customer acknowledges that it has the sole responsibility of satisfying itself that the goods and services supplied by T.C Boxes are suitable for the use of the Customer or any contemplated use of the Customer and that it has conducted its own investigations and has not relied upon any information, statement, advice or representation by T.C Boxes of or in relation to:

(a)   the operating and/or performance parameters of the goods;

(b)   the outcomes that the goods or services may achieve;

(c)   the suitability of the goods and services to any particular application, installation or physical environment; and

(d)   the appropriateness of the use of the goods and services outside Australia.

9.2   The Customer acknowledges and agrees that:

(a)   the actual performance of the goods in situ might be affected by external factors (including without limitation environmental conditions) beyond T.C Boxes’ control;

(b)   T.C Boxes disclaims liability for any modification or alteration to goods, or failure to use the goods in accordance with the instructions or recommendations provided by T.C Boxes, or failure to use the goods in accordance with any applicable laws or regulations or for goods which are not installed by T.C Boxes; and

(c)   incorrect and/or negligent and/or unauthorised installation, application, modification or use of the goods may cause loss of life, injury and/or damage to property.

9.3   The Customer acknowledges and agrees that the goods supplied by T.C Boxes may affect a vehicle’s kerb weight, payload, and overall load capacity and further acknowledges and agrees that it is the Customer’s responsibility to ensure the vehicle remains within the manufacturer’s specified GVM and applicable legal limits.

9.4   The Customer acknowledges and agrees that, if installation of the goods is requested, T.C Boxes will be required to remove the factory tub or tray from the Customer’s vehicle, which may cause vehicle technology and driver assist features to become inoperable despite T.C Boxes carrying out its services with all due care and skill. The Customer further acknowledges and agrees that:

(a)   if the goods are installed on the vehicle, the installation technician will remove the vehicle’s pre-existing tub or tray and replace it with a T.C Boxes tray;

(b)   the installation technician may remove, re-install and/or relocate the vehicle’s safety, electrical and driver assist features as required;

(c)   the installation technician only removes, reinstalls and relocates standard safety features to the extent necessary for the vehicle to remain roadworthy, and not so as to ensure compliance with the vehicle’s original specifications or manufacturer’s warranty requirements;

(d)   the Customer may need to seek independent advice from the relevant vehicle manufacturer or authorised dealership regarding the operation, compatibility or reinstatement of any safety or driver assist features and any costs associated with such advice, inspection, recalibration, reprogramming or reinstatement are the sole responsibility of the Customer; and

(e)   in providing the services, the following systems and features associated with the vehicle may be affected, disabled, or rendered partially or wholly inoperable:

(1)   blind spot monitoring with cross traffic alert and trailer coverage;

(2)   CTA (Cross Traffic Alert);

(3)   reverse brake assist;

(4)   active park assist 2.0;

(5)   zone lighting;

(6)   rear parking sensors and front parking sensors; and

(7)   reverse park aid, 360° camera or single rear view camera;

and to the maximum extent permitted by law, the Customer releases and forever discharges T.C Boxes, its officers, employees, contractors and agents from any and all liability, claims, demands, actions or proceedings whatsoever arising out of or in connection with any loss, damage, malfunction, or reduction in performance of the vehicle’s systems or features referred to in clause 9.4(c), whether arising directly or indirectly from the removal, re-installation, relocation or interference with those systems in the course of providing the services.

9.5   T.C Boxes makes no representation, warranty or assurance as to any of these matters in this clause 9 and T.C Boxes shall not be liable for any loss or cost arising from those matters to the maximum extent permitted by law.

10.  Intellectual Property

10.1   The Customer must not deface or remove any mark, label or plate affixed by T.C Boxes on the goods.

10.2   The Customer acknowledges that all Intellectual Property in the goods is the property of T.C Boxes.

10.3   The Customer must not and must not cause, permit or assist any other person directly or indirectly to:

(a)   copy any Intellectual Property in the goods or record or replicate it by any other means;

(b)   make copies of or replicate the goods;

(c)   translate, reverse engineer, decompile or disassemble the goods; or

(d)   copy, publish, disclose or distribute any documentation associated with the goods (including without limitation, operating instructions and manuals).

11.  Indemnity

The Customer shall be responsible for and indemnify and hold harmless T.C Boxes from and against all Claims, damages, costs (including without limitation legal costs on a full indemnity basis), losses, liabilities and expenses caused by the Customer’s acts, omissions, negligence, breach of duty, breach of contract, or breach of the Contract.

12.  Privacy

T.C Boxes will use all information collected from you in accordance with T.C Boxes’ Privacy Policy. A copy of this policy is available on T.C Boxes’s website www.tcboxes.com.au or from T.C Boxes upon request.

13.  Taxation and Duties

Any amounts payable to T.C Boxes are exclusive of GST unless specified otherwise. Any government charges or duties, including sales tax, GST, use or excise taxes or similar taxes, are payable by the Customer.

14.  Variation of Terms

T.C Boxes reserves the right to change any of these Trading Terms at any time in its sole discretion, to be effective on written notice to the Customer, provided that this will not apply to any Contract that has already been formed (and that Contract may only be amended with the written agreement of both T.C Boxes and the Customer).

15.  Miscellaneous

15.1   If any term of the Contract is void, voidable or unenforceable, the term will be read-down, limited or, if necessary, excluded to the extent necessary to make it not void, voidable or unenforceable, and all other terms will remain in full force and effect.

15.2   Any waiver or relaxation by T.C Boxes partly or wholly of any provision of or right under the Contract:

(a)   is only valid if in writing and signed by T.C Boxes;

(b)   applies to a particular occasion only;

(c)   is restricted to its written terms;

(d)   is not continuing nor of application generally unless expressed so to be; and

(e)   does not constitute a waiver or relaxation of any other term or condition.

15.3   The Contract:

(a)   constitutes the entire agreement between T.C Boxes and the Customer; and

(b)   may not be varied or waived except agreed to in writing by T.C Boxes and the Customer.

15.4   No course of dealing or performance, usage of trade or failure to enforce any term will or will be construed to modify the terms of the Contract.

15.5   The Contract is governed by and construed in accordance with the law from time to time in the State of Victoria and the Customer agrees to submit to the non-exclusive jurisdiction of the courts of Victoria and the courts which hear appeals from them.

16.  Definitions

In these Trading Terms:

Claims means any cost, demand, legal proceedings, claims, actions, fines, penalties, obligation or liabilities of any nature;

Contract means:

(a)   the accepted quotation and/or sales order for the applicable goods and/or services;

(b)   the invoice for the applicable goods and/or service;

(c)   the application for Credit Account form (if any);

(d)   the Warranty; and

(e)   these Trading Terms,

to be read as one document, the contents of which, in the case of ambiguity or inconsistency, will be given precedence in interpretation in the order of paragraphs (a) to (d) above;

Credit Account means the Customer’s credit facility with T.C Boxes;

Event of Default means:

(a)   the Customer fails to pay the Purchase Price or any part of the Purchase Price outstanding and any accrued interest within two business days of receiving a written demand from T.C Boxes;

(b)   the guarantees provided by the directors or proprietors of the Customer are not binding or any person alleges that the guarantees are not binding;

(c)   the Customer commits an act of Insolvency; or

(d)   the Customer ceases to carry on business;

GST means a tax, duty, levy, charge or deduction, imposed by GST Law and any related interest, penalties, fines or other charges; GST Law means the A New Tax System (Goods and Services Tax) Act 1999, or any other act imposing a goods and services tax in Australia;

Insolvency means:

(a)   the Customer, not being a company committing an act of bankruptcy, making a proposal to its creditors for a composition or arrangement under the Bankruptcy Act or if any other act or event occurs that would entitle a petition for a bankruptcy order to be made;

(b)   the Customer, being a company, having a receiver or administrator appointed or doing, or omitting to do anything which would permit such an appointment to occur.

Intellectual Property includes the rights comprised in any patent, copyright, future copyright, design, trade mark, eligible layout, business name, brand name, trading style or similar right whether at common law or conferred by statute and includes rights to apply for registration under a statute in respect of those or like rights as well as rights to protect trade secrets, know-how, confidential information or unpatented production methods or technical information throughout the world for the full period of the rights and all renewals and extensions and all other rights with respect to intellectual property as defined in Article 2 of the July 1967 Convention Establishing the World Intellectual Property Organisation;

Invoice includes any invoice issued to the Customer for goods and/or services supplied to the Customer by T.C Boxes (including without limitation an invoice in the form of a quotation that has been accepted by the Customer or an order that has been accepted by T.C Boxes, in accordance with these Trading Terms);

Purchase Price means the amount or amounts specified in the Invoice;

Warranty means the document entitled “Warranty terms and conditions” provided with goods supplied by T.C Boxes or otherwise made available to the Customer, including on the T.C Boxes website.