Orders, Quotations and Price
1. Once an order has been accepted by XL Service Bodies, it cannot be cancelled by the Buyer. If the Buyer makes a change request to the already accepted order where it results in an increase in total price including labour (if applicable), the Buyer will be charged the additional cost. The supply of goods or services is subject to availability. XL Service Bodies reserves the right to suspend or discontinue the supply of goods or services to the Buyer XL Service Bodies will advise approximate supply date on acceptance of an order. If XL Service Bodies is unable to supply all of the Buyer s order, these terms and conditions continue to apply to any part of the order supplied. XL Service Bodies is not liable for any loss or damage suffered by the Buyer as a result of any failure to provide all or part of an order.
2. Where a written quotation has been given by XL Service Bodies, the selling price is the price specified in the quotation. In any other case, XL Service Bodies selling price is the price specified in the price list as at the date of despatch or as otherwise advised by XL Service Bodies. Unless otherwise stated, the selling price does not include GST. XL Service Bodies may at any time change its price list to reflect, among other things, changes in exchange rates or the imposition of any duties, levies or other taxes and the Buyer is bound by those changes. All quotes are valid for 30 days from date of issue.
3. Where the Buyer has requested a special order that requires XL Service Bodies to supply goods outside its standard supply, the Buyer will be required to provide payment in full prior to XL Service Bodies accepting that order.
4. In relation to vehicle fitment jobs, XL Service Bodies reserves the right to re−quote if the vehicle delivered to XL Service Bodies premises requires further work from the quoted work specification, including but not limited to the removal of tub body and/or other fittings and accessories that interferes with the correct fitment, and cleaning of the vehicle.
5. The Buyer must accept any errors or omissions in invoicing and, where applicable, the Buyer must accept the amended pricing and pay the difference within the approved terms of trade.
6. Unless otherwise notified in writing by XL Service Bodies, all goods including vehicles, will be completed and available for collection ex works from XL Service Bodies. Where a delivery point is an overseas destination, goods will be delivered CIF (as defined under INCOTERMS 2010) to the nominated port. Where notified by XL Service Bodies that delivery is at XL Service Bodies premises, all freight from XL Service Bodies premises to the Buyer is at the Buyer s expense. If XL Service Bodies arranges the carriage of the goods for delivery to the Buyer, XL Service Bodies will be deemed to contract as agent for the Buyer, and the Buyer will bear all risks with respect to the goods during carriage and will likewise be responsible for effecting any insurance of the goods during carriage. XL Service Bodies may charge a reasonable handling fee for all orders delivered to the Buyer. The Buyer indemnifies XL Service Bodies for the cost of all transport arranged by XL Service Bodies on the Buyer s behalf. If a delivery date is specified, that date is an estimate only and XL Service Bodies is not liable for any delay in delivery. Time is not of the essence in relation to delivery and the Buyer must accept delivery and pay for the goods delivered, including transport costs if applicable, even if they are delivered after any specified delivery date.
7. When a Service body is being fitted to a utility, the vehicle is to be delivered to XL Service Bodies as a cab chassis and with ADR approved tail lights and number plate lights. If this is not the case the Buyer must notify XL Service Bodies prior to the commencement of the fit out and the Buyer will be charged additional fees for the removal of the tub and provision of the after−market tail lights and number plate lights.
8. All OE parts that are removed from the vehicle will be disposed of unless specified otherwise by the Buyer. If the Buyer wishes to keep OE parts they must be collected with the vehicle. Any parts left after pick up of the vehicle will become the property of XL Service Bodies
Inspection, Acceptance and Returns
9. The Buyer must inspect the goods or services immediately following delivery or completion of the services (as the case may be). Any claim that the goods or services are not in accordance with these terms and conditions (including if they are defective, damaged during delivery, are short delivered or services not as per contract) must be made at the time of delivery/services provided or in writing to XL Service Bodies within 7 days (or otherwise agreed) after delivery of the goods or completion of the services to the Buyer. If the Buyer fails to make a claim then, to the extent permitted by law, the goods or services are deemed to have been accepted by the Buyer and the Buyer must pay for the goods or services in accordance with these terms and conditions.
10. Unless otherwise agreed, goods and services are to be paid for with funds cleared prior to delivery. Time is of the essence in respect of the Buyer s obligation to make payment for goods or services supplied by XL Service Bodies to the Buyer.
11. If the Buyer does not make any payment by the due date, exceeds its credit limit at any time, commits any other material breach of these terms and conditions, or an insolvency event in respect of the Buyer arises or is reasonably suspected by XL Service Bodies, XL Service Bodies may (without limiting any other right or claim it may have against the Buyer) do any or all of the following:
a) charge the Buyer interest calculated on a daily basis on any portion of the Buyer s account that is overdue at the utilised financial institution s reference rate for business loans, available to prime commercial customers, plus 5% calculated from the date the payment was due until the date payment is made (both dates inclusive);
b) vary or withdraw any approved credit limit and/or terms of trade;
c) cancel or suspend any unfilled orders or cease providing the services;
d) terminate any contracts between XL Service Bodies and the Buyer and demand immediate payment of any moneys due and outstanding under those contracts;
e) cancel any rebate, discount or allowance due or payable by XL Service Bodies as at the date of the event;
f) enter (at any time) any premises in which XL Service Bodies goods (including any merchandising materials) are stored, to enable XL Service Bodies to inspect the goods and to reclaim possession of the goods without liability for the tort of trespass, negligence or payment of any compensation to the Buyer whatsoever; or
g) institute any recovery process as XL Service Bodies in its discretion decides at the Buyer s cost and expense.
12. If any part of an invoice is in dispute, the balance will remain payable and must be paid when due. The
Buyer has no right to set−off any claim against XL Service Bodies from moneys owing to XL Service Bodies Risk and Title
13. Goods supplied by XL Service Bodies to the Buyer are at the Buyer s risk immediately on the earlier of delivery to the Buyer or into the Buyer s custody, including its carrier or forwarder. The Buyer must insure the goods at its cost from delivery of the goods until they are paid for in full against such risks as are usual or common to insure against in a business of a similar nature to the Buyer.
14. Property in the goods supplied by XL Service Bodies to the Buyer does not pass to the Buyer until all goods have been paid for in full. In the meantime, the Buyer takes custody of the goods and retains them only as fiduciary agent and bailee of XL Service Bodies. Until all goods have been paid for in full
a) to the extent possible, the Buyer must store the goods in a manner that shows clearly they are the property of XL Service Bodies, maintain records relating to the goods, secure the goods from risk, damage and theft and ensure that the goods are kept in good and serviceable condition;
b) the Buyer may sell the goods, in the ordinary course of its business, but only as fiduciary agent of XL Service Bodies. The Buyer must not represent to any third party that the Buyer is acting in any capacity for or on behalf of XL Service Bodies and the Buyer has no authority to bind XL Service Bodies to any contract or otherwise assume any liability for or on behalf of XL Service Bodies. The Buyer receives all proceeds (including any proceeds from insurance claims) in trust for XL Service Bodies and must keep the proceeds in a separate bank account until all liability to XL Service Bodies is discharged;
c) if the Buyer uses the goods in some manufacturing or construction process of its own or of a third party, the Buyer must hold in trust for XL Service Bodies that part of the proceeds of the manufacturing or construction process as is equal to the amount owing by the Buyer to XL Service Bodies at the time of receipt of the proceeds.
15. For the avoidance of doubt, XL Service Bodies s interest constitutes a purchase money security interest pursuant to the Personal Property Securities Act 2009 (PPSA). The Buyer undertakes that it will not grant any security interest over the goods to any other person. The Buyer will, at the request of XL Service Bodies, execute documents and do such further acts as may be required for XL Service Bodies to register the security interest granted by the Buyer under the PPSA. The Buyer further agrees that where XL Service Bodies has rights in
addition to those under part 4 of the PPSA, those rights will continue to apply. The Buyer irrevocably grants to XL Service Bodies the right to enter upon the Buyer s property or premises, without notice, and without being in any way liable to the Buyer or to any third party, if XL Service Bodies has cause to exercise any of its rights under sections 123 and/or 128 of the PPSA, and the Buyer will indemnify XL Service Bodies from any claims made by any third party as a result of such exercise.
Copyright, Designs, Drawings and Instructions
16. Where XL Service Bodies has used artwork or copyright material or followed a design or instruction furnished by or on behalf of the Buyer, the Buyer indemnifies and will keep XL Service Bodies indemnified against all claims, damages, losses, penalties, costs and expenses to which XL Service Bodies may become liable by reason of the use of the artwork, copyright material or design or any work required to be done in accordance with those instructions or design, including any infringement of any patent, registered design, copyright or any other right of a third party, including moral rights. XL Service Bodies will retain ownership and all copyright in relation to all specifications, recipes, designs, drawings, artwork, software, manuals, training and instructions, including those prepared for or on behalf of the Buyer, despite any payment made in accordance with these terms of sale.
17. XL Service Bodies warrants that the goods will, under proper use, be free from defects due to faulty workmanship or materials for a period of 12 months from the date of installation or Delivery, whichever is later. This warranty is in addition to any non−excludable statutory warranty or guarantee that may be implied by law. Refer to XL Service Bodies Express Warranty Statement for further details.
18. Where there is an alleged warranty issue, the Buyer must obtain the advice and approval of XL Service Bodies prior to carrying out any repairs. XL Service Bodies will, if it finds the goods to have a defect covered by this warranty, at its option, repair or replace the goods, or pay for the cost of the goods being repaired. The Buyer must, at its own cost and risk, once approved by XL Service Bodies, quarantine and hold the defective Product and, when instructed by XL Service Bodies, return, repair or destroy the Product. Where the Buyer repairs or arranges for the repair of the Product after approval by XL Service Bodies to do so, the Buyer is solely responsible for ensuring that the goods meet XL Service Bodies’s compliance criteria and are safe and fit for purpose.
Limitation of Liability
19. To the extent permitted by law these terms and conditions exclude all other conditions, guarantees, warranties, liabilities or representations in relation to the goods and/or services unless contained in a written warranty provided to the Buyer with the goods. Where legislation implies in these terms and conditions any condition or warranty that cannot be excluded or modified, to the extent permitted by law the liability of XL Service Bodies for a breach of any such condition or warranty is limited at XL Service Bodies s option to any one or more of the following:
a) In the case of goods:
i. replacement of the goods or the supply of equivalent goods;
ii. payment of the cost of replacing the goods or of acquiring equivalent goods, by credit to the
Buyer s account, in cash or by cheque at XL Service Bodies’s discretion; or
iii. repayment of any part of the purchase price of the goods which has been paid by the Buyer, by credit to the Buyer s account, in cash or by cheque at XL Service Bodies’s discretion.
b) In the case of advice, recommendations, information or services, by supplying the advice recommendations, information or services again.
20. Subject to clause 13, XL Service Bodies is not liable for any loss or damage of any kind whatsoever and howsoever arising out of or in connection with the supply of goods and services, including (without limitation) any indirect or consequential loss (including without limitation loss of profit, loss of revenue, loss of contract, loss of goodwill or increased cost of workings), arising out of or in connection with the supply of goods or services, even if due to the negligence of XL Service Bodies or any of its employees or agents. XL Service Bodies will not be liable for any act of war, strike, industrial action, fire, flood, drought, storm or other act of natural cause beyond its reasonable control.
21. This agreement contains the entire understanding of the parties as to its subject matter. Other than any written warranty provided with the goods, there is no other understanding agreement, warranty or representation whether express or implied in any way defining or extending or otherwise relating to these provisions or binding on the parties with respect to the goods of their operation. The application of the United Nations Convention on Contracts for the International Sale of Goods (known as the Vienna Sales Convention 1980) is excluded.
22. If any provision of these terms or conditions is unenforceable, illegal or void, that provision is severed and the other provisions remain in force.
23. This agreement is governed by the laws of the State of Queensland and the parties submit to the jurisdiction of the Courts of that State.
24. XL Service Bodies may amend or vary these terms and conditions by notifying the Buyer in writing of the amendment or variation.