Rosmul Mechanical Terms of Trade.

Definitions
“Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
“ROSMUL MECHANICAL PTY LTD” means ROSMUL MECHANICAL PTY LTD and its subsiduaries its successors and assigns or any person acting on behalf of and with the authority of ROSMUL MECHANICAL PTY LTD .
“Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting ROSMUL MECHANICAL PTY LTD to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
if there is more than one Customer, is a reference to each Customer jointly and severally; and
if the Customer is a partnership, it shall bind each partner jointly and severally; and
if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
includes the Customer’s executors, administrators, successors and permitted assigns.
“Parts” means all Parts or Services supplied by ROSMUL MECHANICAL PTY LTD to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Parts’ or ‘Services’ shall be interchangeable for the other).
"Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
“Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when ordering from the website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Parts via the website.
“Price” means the Price payable (plus any GST where applicable) for the Parts as agreed between ROSMUL MECHANICAL PTY LTD and the Customer in accordance with clause 5 below.
“GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

Acceptance
The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts Delivery of the Parts.
In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
The Customer acknowledges and accepts that:
the supply of Parts on credit shall not take effect until the Customer has completed a credit application with ROSMUL MECHANICAL PTY LTD and it has been approved with a credit limit established for the account; and
in the event that the supply of Parts request exceeds the Customers credit limit and/or the account exceeds the payment terms, ROSMUL MECHANICAL PTY LTD reserves the right to refuse delivery; and
the supply of Parts for accepted orders may be subject to availability and if, for any reason, Parts are not or cease to be available, ROSMUL MECHANICAL PTY LTD reserves the right to vary the Price with alternative Parts as per clause 5.2, subject to prior confirmation and agreement of both parties. ROSMUL MECHANICAL PTY LTD also reserves the right to halt all Services until such time as ROSMUL MECHANICAL PTY LTD and the Customer agree to such changes.  ROSMUL MECHANICAL PTY LTD shall not be liable to the Customer for any loss or damage the Customer suffers due to ROSMUL MECHANICAL PTY LTD exercising its rights under this clause.
In the event that the Parts and/or Services provided by ROSMUL MECHANICAL PTY LTD are the subject of an insurance claim that the Customer has made, then the Customer shall be responsible for the payment of any monies payable to the insurance company and agrees to honour their obligation for payment for such transactions invoiced by ROSMUL MECHANICAL PTY LTD and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful.
Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.

Errors and Omissions
The Customer acknowledges and accepts that ROSMUL MECHANICAL PTY LTD shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
resulting from an inadvertent mistake made by ROSMUL MECHANICAL PTY LTD in the formation and/or administration of this Contract; and/or
contained in/omitted from any literature (hard copy and/or electronic) supplied by ROSMUL MECHANICAL PTY LTD in respect of the Services.
In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of ROSMUL MECHANICAL PTY LTD; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.

Change in Control
The Customer shall give ROSMUL MECHANICAL PTY LTD not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Customer shall be liable for any loss incurred by ROSMUL MECHANICAL PTY LTD as a result of the Customer’s failure to comply with this clause.

Price and Payment
At ROSMUL MECHANICAL PTY LTD’s sole discretion, the Price shall be either:
as indicated on any invoice provided by ROSMUL MECHANICAL PTY LTD to the Customer; or
ROSMUL MECHANICAL PTY LTD’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
ROSMUL MECHANICAL PTY LTD reserves the right to change the Price:
if a variation to the Parts which are to be supplied is requested; or
if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
if during the course of the Services, the Parts are not or cease to be available from ROSMUL MECHANICAL PTY LTD’s third party suppliers, then ROSMUL MECHANICAL PTY LTD reserves the right to provide alternative Parts; or
where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, obscured or other defect found on closer inspection or misdiagnosis in the first instance, delays in obtaining Parts, etc.) which are only discovered on commencement of the Services; or
in the event of increases to ROSMUL MECHANICAL PTY LTD in the cost of labour or materials which are beyond ROSMUL MECHANICAL PTY LTD’s control.
Variations will be charged for on the basis of ROSMUL MECHANICAL PTY LTD’s quotation, and will be detailed in writing, and shown as variations on ROSMUL MECHANICAL PTY LTD’s invoice. The Customer shall be required to respond to any variation submitted by ROSMUL MECHANICAL PTY LTD within ten (10) working days. Failure to do so will entitle ROSMUL MECHANICAL PTY LTD to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
At ROSMUL MECHANICAL PTY LTD’s sole discretion, a deposit may be required.
Time for payment for the Parts being of the essence, the Price will be payable by the Customer on the date/s determined by ROSMUL MECHANICAL PTY LTD, which may be:
on Delivery of the Parts;
by way of instalments/progress payments in accordance with ROSMUL MECHANICAL PTY LTD’s payment schedule;
the date specified on any invoice or other form as being the date for payment; or
failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by ROSMUL MECHANICAL PTY LTD.
Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and ROSMUL MECHANICAL PTY LTD.
ROSMUL MECHANICAL PTY LTD may in its discretion allocate any payment received from the Customer towards any invoice that ROSMUL MECHANICAL PTY LTD determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer ROSMUL MECHANICAL PTY LTD may re-allocate any payments previously received and allocated. In the absence of any payment allocation by ROSMUL MECHANICAL PTY LTD, payment will be deemed to be allocated in such manner as preserves the maximum value of ROSMUL MECHANICAL PTY LTD’s Purchase Money Security Interest (as defined in the PPSA) in the Parts.
The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by ROSMUL MECHANICAL PTY LTD nor to withhold payment of any invoice because part of that invoice is in dispute.
Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to ROSMUL MECHANICAL PTY LTD an amount equal to any GST ROSMUL MECHANICAL PTY LTD must pay for any supply by ROSMUL MECHANICAL PTY LTD under this or any other agreement for the sale of the Parts. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

Additional Charges
In the event that ROSMUL MECHANICAL PTY LTD is required to provide the Services urgently which may require ROSMUL MECHANICAL PTY LTD’s staff to work outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or Public Holidays) then ROSMUL MECHANICAL PTY LTD reserves the right to charge the Customer additional travel and labour costs (penalty rates will apply) and Parts, unless otherwise agreed between ROSMUL MECHANICAL PTY LTD and the Customer.
Where ROSMUL MECHANICAL PTY LTD is requested to store the Customer’s vehicle/machinery, or where the vehicle or machinery is not collected within twenty-four (24) hours of advice to the Customer that it is ready for collection, then ROSMUL MECHANICAL PTY LTD (at its sole discretion) may charge a reasonable fee per day for storage.
For roadside or on-site assistance, a minimum call-out fee shall be applicable, which shall be increased for any after-hours call-outs. Additionally, all Services provided shall be charged for at an hourly-basis unless agreed upon by the Customer and ROSMUL MECHANICAL PTY LTD.
If ROSMUL MECHANICAL PTY LTD has been requested by the Customer to diagnose a fault that requires disassembly and/or testing, all costs involved will be charged to the Customer irrespective of whether or not the repair goes ahead.
If a vehicle or component is submitted for repair under a warranty or insurance claim, and the claim is declined or payment delayed, the Customer is liable for payment and agrees to pay for any such repair.
Services completed under warranty or insurance claims will not cover consumables (including, but not limited to, lubricants, fuel, brake fluids, coolants, tyres, brake pads, air filters, etc.). Any consumables used during the Services shall be charged for as a variation in accordance with clause 5.2.

Delivery of Parts
Delivery (“Delivery”) of the Parts is taken to occur at the time that:
the Customer or the Customer’s nominated carrier takes possession of the Parts at ROSMUL MECHANICAL PTY LTD’s address; or
ROSMUL MECHANICAL PTY LTD (or ROSMUL MECHANICAL PTY LTD’s nominated carrier) delivers the Parts to the Customer’s nominated address even if the Customer is not present at the address.
At ROSMUL MECHANICAL PTY LTD’s sole discretion, the cost of Delivery is either included in the Price or is in addition to the Price.
ROSMUL MECHANICAL PTY LTD may deliver the Parts in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
Any time specified by ROSMUL MECHANICAL PTY LTD for Delivery of the Parts is an estimate only and ROSMUL MECHANICAL PTY LTD will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. However both parties agree that they shall make every endeavour to enable the Parts to be delivered at the time and place as was arranged between both parties. In the event that ROSMUL MECHANICAL PTY LTD is unable to supply the Parts as agreed solely due to any action or inaction of the Customer, then ROSMUL MECHANICAL PTY LTD shall be entitled to charge a reasonable fee for redelivery and/or storage.

Risk
Risk of damage to or loss of the Parts passes to the Customer on Delivery and the Customer must insure the Parts on or before Delivery.
If any of the Parts are damaged or destroyed following Delivery but prior to ownership passing to the Customer, ROSMUL MECHANICAL PTY LTD is entitled to receive all insurance proceeds payable for the Parts. The production of these terms and conditions by ROSMUL MECHANICAL PTY LTD is sufficient evidence of ROSMUL MECHANICAL PTY LTD’s rights to receive the insurance proceeds without the need for any person dealing with ROSMUL MECHANICAL PTY LTD to make further enquiries.
If the Customer requests ROSMUL MECHANICAL PTY LTD to leave Parts outside ROSMUL MECHANICAL PTY LTD’s premises for collection or to deliver the Parts to an unattended location, then such Parts shall be left at the Customer’s sole risk.
The Customer acknowledges that all descriptive specifications, illustrations, dimensions and weights stated in ROSMUL MECHANICAL PTY LTD’s or the manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Customer shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by ROSMUL MECHANICAL PTY LTD.
ROSMUL MECHANICAL PTY LTD is only responsible for Parts that are replaced by ROSMUL MECHANICAL PTY LTD and does not at any stage accept any liability in respect of previous services and/or parts supplied by any other third party that subsequently fail and found to be the source of the failure, the Customer agrees to indemnify ROSMUL MECHANICAL PTY LTD against any loss or damage to the Parts, or caused by the Parts, or any part thereof howsoever arising.
Where the Customer has supplied parts for ROSMUL MECHANICAL PTY LTD to complete the Services, the Customer acknowledges that they accept responsibility for the suitability of purpose, quality and any faults inherent in the parts. ROSMUL MECHANICAL PTY LTD shall not be responsible for any defects in the Services, any loss or damage to the Parts (or any part thereof), howsoever arising from the use of parts supplied by the Customer.
It is the Customer’s responsibility to:
ensure that the vehicle or machinery is insured against all possible damage (including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks) whilst stored on ROSMUL MECHANICAL PTY LTD’s premises. The vehicle or machinery is at all times stored and repaired at the Customer’s sole risk; and
remove any personal/valuable/perishable items from the vehicle or machine prior to ROSMUL MECHANICAL PTY LTD carrying out the Services. ROSMUL MECHANICAL PTY LTD shall not liable in the event of any apparent loss or damage to personal/valuable/perishable items left or stored in the vehicle.
ROSMUL MECHANICAL PTY LTD shall not be responsible for:
the loss of or damage to the vehicle, its accessories or contents while garaged, being serviced or being driven in connection with the work authorised unless caused by the negligence of ROSMUL MECHANICAL PTY LTD or ROSMUL MECHANICAL PTY LTD’s employees; and
any defect, deterioration and/or damage to the Parts if the Customer does not follow ROSMUL MECHANICAL PTY LTD’s recommendations.
The Customer acknowledges and accepts that:
Parts supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. ROSMUL MECHANICAL PTY LTD will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur; and
where ROSMUL MECHANICAL PTY LTD has performed temporary repairs on the vehicle that:
ROSMUL MECHANICAL PTY LTD offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
ROSMUL MECHANICAL PTY LTD will immediately advise the Customer of the fault and shall provide the Customer with an estimate for the full repair required.
The Customer also acknowledges and accepts that ROSMUL MECHANICAL PTY LTD shall be entitled to:
retain any components replaced during the provision of the Services; and
the right to retain all proceeds obtained from the sale of such components to any auto recycler or salvage yard.

Testing of Vehicles or Parts
ROSMUL MECHANICAL PTY LTD or its employees may test drive or carry out tests on the vehicle or Parts at ROSMUL MECHANICAL PTY LTD’s discretion. ROSMUL MECHANICAL PTY LTD will not be liable for (and the Customer indemnifies ROSMUL MECHANICAL PTY LTD against) any damages caused to, or by, the vehicle or Parts during such tests, collecting or delivery unless it arises from the recklessness or wilful misconduct of ROSMUL MECHANICAL PTY LTD or its employees.

Access
The Customer shall ensure that ROSMUL MECHANICAL PTY LTD has clear and free access to the site at all times to enable them to undertake the Services. ROSMUL MECHANICAL PTY LTD shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of ROSMUL MECHANICAL PTY LTD.

Compliance with Laws
The Customer and ROSMUL MECHANICAL PTY LTD shall comply with the provisions of all statutes, regulations and any other relevant safety standards, or legislation that may be applicable to the Services.

Title
ROSMUL MECHANICAL PTY LTD and the Customer agree that ownership of the Parts shall not pass until:
the Customer has paid ROSMUL MECHANICAL PTY LTD all amounts owing to ROSMUL MECHANICAL PTY LTD; and
the Customer has met all of its other obligations to ROSMUL MECHANICAL PTY LTD.
Receipt by ROSMUL MECHANICAL PTY LTD of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
It is further agreed that, until ownership of the Parts passes to the Customer in accordance with clause 12.1:
the Customer is only a bailee of the Parts and must return the Parts to ROSMUL MECHANICAL PTY LTD on request;
the Customer holds the benefit of the Customer’s insurance of the Parts on trust for ROSMUL MECHANICAL PTY LTD and must pay to ROSMUL MECHANICAL PTY LTD the proceeds of any insurance in the event of the Parts being lost, damaged or destroyed;
the Customer must not sell, dispose, or otherwise part with possession of the Parts other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Parts then the Customer must hold the proceeds of any such act on trust for ROSMUL MECHANICAL PTY LTD and must pay or deliver the proceeds to ROSMUL MECHANICAL PTY LTD on demand;
the Customer should not convert or process the Parts or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of ROSMUL MECHANICAL PTY LTD and must sell, dispose of or return the resulting product to ROSMUL MECHANICAL PTY LTD as it so directs;
the Customer irrevocably authorises ROSMUL MECHANICAL PTY LTD to enter any premises where ROSMUL MECHANICAL PTY LTD believes the Parts are kept and recover possession of the Parts;
ROSMUL MECHANICAL PTY LTD may recover possession of any Parts in transit whether or not Delivery has occurred;
the Customer shall not charge or grant an encumbrance over the Parts nor grant nor otherwise give away any interest in the Parts while they remain the property of ROSMUL MECHANICAL PTY LTD;
ROSMUL MECHANICAL PTY LTD may commence proceedings to recover the Price of the Parts sold notwithstanding that ownership of the Parts has not passed to the Customer.

Personal Property Securities Act 2009 (“PPSA”)
In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Parts and/or collateral (account) – being a monetary obligation of the Customer to ROSMUL MECHANICAL PTY LTD for Services – that have previously been supplied and that will be supplied in the future by ROSMUL MECHANICAL PTY LTD to the Customer.
The Customer undertakes to:
promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which ROSMUL MECHANICAL PTY LTD may reasonably require to;
register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
register any other document required to be registered by the PPSA; or
correct a defect in a statement referred to in clause 13.3(a)(i) or 13.3(a)(ii);
indemnify, and upon demand reimburse, ROSMUL MECHANICAL PTY LTD for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Parts charged thereby;
not register a financing change statement in respect of a security interest without the prior written consent of ROSMUL MECHANICAL PTY LTD;
not register, or permit to be registered, a financing statement or a financing change statement in relation to the Parts and/or collateral (account) in favour of a third party without the prior written consent of ROSMUL MECHANICAL PTY LTD;
immediately advise ROSMUL MECHANICAL PTY LTD of any material change in its business practices of selling the Parts which would result in a change in the nature of proceeds derived from such sales.
ROSMUL MECHANICAL PTY LTD and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
Unless otherwise agreed to in writing by ROSMUL MECHANICAL PTY LTD, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
The Customer must unconditionally ratify any actions taken by ROSMUL MECHANICAL PTY LTD under clauses 13.3 to 13.5.
Subject to any express provisions to the contrary (including those contained in this clause 13), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

Security and Charge
In consideration of ROSMUL MECHANICAL PTY LTD agreeing to supply the Parts, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
The Customer indemnifies ROSMUL MECHANICAL PTY LTD from and against all ROSMUL MECHANICAL PTY LTD’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising ROSMUL MECHANICAL PTY LTD’s rights under this clause.
The Customer irrevocably appoints ROSMUL MECHANICAL PTY LTD and each director of ROSMUL MECHANICAL PTY LTD as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Customer’s behalf.

Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
The Customer must inspect the Parts on Delivery and must within ninety (90) days of Delivery notify ROSMUL MECHANICAL PTY LTD in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Parts as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow ROSMUL MECHANICAL PTY LTD to inspect the Parts.
Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
ROSMUL MECHANICAL PTY LTD acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, ROSMUL MECHANICAL PTY LTD makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Parts. ROSMUL MECHANICAL PTY LTD’s liability in respect of these warranties is limited to the fullest extent permitted by law.
If the Customer is a consumer within the meaning of the CCA, ROSMUL MECHANICAL PTY LTD’s liability is limited to the extent permitted by section 64A of Schedule 2.
If ROSMUL MECHANICAL PTY LTD is required to replace the Parts under this clause or the CCA, but is unable to do so, ROSMUL MECHANICAL PTY LTD may refund any money the Customer has paid for the Parts.
If the Customer is not a consumer within the meaning of the CCA, ROSMUL MECHANICAL PTY LTD’s liability for any defect or damage in the Parts is:
limited to the value of any express warranty or warranty card provided to the Customer by ROSMUL MECHANICAL PTY LTD at ROSMUL MECHANICAL PTY LTD’s sole discretion;
limited to any warranty to which ROSMUL MECHANICAL PTY LTD is entitled, if ROSMUL MECHANICAL PTY LTD did not manufacture the Parts;
otherwise negated absolutely.
Subject to this clause 15, returns will only be accepted provided that:
the Customer has complied with the provisions of clause 15.1; and
ROSMUL MECHANICAL PTY LTD has agreed that the Parts are defective; and
the Parts are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
the Parts are returned in as close a condition to that in which they were delivered as is possible.
Notwithstanding clauses 15.1 to 15.8 but subject to the CCA, ROSMUL MECHANICAL PTY LTD shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
the Customer failing to properly maintain or store any Parts;
the Customer using the Parts for any purpose other than that for which they were designed;
the Customer continuing the use of any Parts after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
the Customer failing to follow any instructions or guidelines provided by ROSMUL MECHANICAL PTY LTD;
fair wear and tear, any accident, or act of God.
In the case of second hand Parts, unless the Customer is a consumer under the CCA, the Customer acknowledges that it has had full opportunity to inspect the second hand Parts prior to Delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by ROSMUL MECHANICAL PTY LTD as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Customer acknowledges and agrees that ROSMUL MECHANICAL PTY LTD has agreed to provide the Customer with the second hand Parts and calculated the Price of the second hand Parts in reliance of this clause 15.10.
ROSMUL MECHANICAL PTY LTD may in its absolute discretion accept non-defective Parts for return in which case ROSMUL MECHANICAL PTY LTD may require the Customer to pay handling fees of up to thirty percent (30%) of the value of the returned Parts plus any freight costs.
Notwithstanding anything contained in this clause if ROSMUL MECHANICAL PTY LTD is required by a law to accept a return then ROSMUL MECHANICAL PTY LTD will only accept a return on the conditions imposed by that law.
Subject to clause 15.1, customised, or non-stocklist items or Parts made or ordered to the Customer’s specifications are not acceptable for credit or return.

Default and Consequences of Default
Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at ROSMUL MECHANICAL PTY LTD’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Customer owes ROSMUL MECHANICAL PTY LTD any money the Customer shall indemnify ROSMUL MECHANICAL PTY LTD from and against all costs and disbursements incurred by ROSMUL MECHANICAL PTY LTD in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, ROSMUL MECHANICAL PTY LTD’s contract default fee, and bank dishonour fees).
Further to any other rights or remedies ROSMUL MECHANICAL PTY LTD may have under this Contract, if a Customer has made payment to ROSMUL MECHANICAL PTY LTD, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by ROSMUL MECHANICAL PTY LTD under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
Without prejudice to ROSMUL MECHANICAL PTY LTD’s other remedies at law ROSMUL MECHANICAL PTY LTD shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to ROSMUL MECHANICAL PTY LTD shall, whether or not due for payment, become immediately payable if:
any money payable to ROSMUL MECHANICAL PTY LTD becomes overdue, or in ROSMUL MECHANICAL PTY LTD’s opinion the Customer will be unable to make a payment when it falls due;
the Customer has exceeded any applicable credit limit provided by ROSMUL MECHANICAL PTY LTD;
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
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

Cancellation
Without prejudice to any other remedies ROSMUL MECHANICAL PTY LTD may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions ROSMUL MECHANICAL PTY LTD may suspend or terminate the supply of Parts to the Customer. ROSMUL MECHANICAL PTY LTD will not be liable to the Customer for any loss or damage the Customer suffers because ROSMUL MECHANICAL PTY LTD has exercised its rights under this clause.
ROSMUL MECHANICAL PTY LTD may cancel any contract to which these terms and conditions apply or cancel Delivery of Parts at any time before the Parts are delivered by giving written notice to the Customer. On giving such notice ROSMUL MECHANICAL PTY LTD shall repay to the Customer any money paid by the Customer for the Parts. ROSMUL MECHANICAL PTY LTD shall not be liable for any loss or damage whatsoever arising from such cancellation.
In the event that the Customer cancels Delivery of Parts the Customer shall be liable for any and all loss incurred (whether direct or indirect) by ROSMUL MECHANICAL PTY LTD as a direct result of the cancellation (including, but not limited to, any loss of profits).
Cancellation of orders for Parts made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

Privacy Policy
All emails, documents, images or other recorded information held or used by ROSMUL MECHANICAL PTY LTD is Personal Information, as defined and referred to in clause 19.1, and therefore considered Confidential Information. ROSMUL MECHANICAL PTY LTD acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). ROSMUL MECHANICAL PTY LTD acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customers Personal Information, held by ROSMUL MECHANICAL PTY LTD that may result in serious harm to the Customer, ROSMUL MECHANICAL PTY LTD will notify the Customer in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law.
Notwithstanding clause 18.1, privacy limitations will extend to ROSMUL MECHANICAL PTY LTD in respect of Cookies where transactions for purchases/orders transpire directly from ROSMUL MECHANICAL PTY LTD’s website. ROSMUL MECHANICAL PTY LTD agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
IP address, browser, email client type and other similar details;
tracking website usage and traffic; and
reports are available to ROSMUL MECHANICAL PTY LTD when ROSMUL MECHANICAL PTY LTD sends an email to the Customer, so ROSMUL MECHANICAL PTY LTD may collect and review that information (“collectively Personal Information”)
In order to enable / disable the collection of Personal Information by way of Cookies, the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via ROSMUL MECHANICAL PTY LTD’s website.   
The Customer agrees for ROSMUL MECHANICAL PTY LTD to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Customer in relation to credit provided by ROSMUL MECHANICAL PTY LTD.
The Customer agrees that ROSMUL MECHANICAL PTY LTD may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
to assess an application by the Customer; and/or
to notify other credit providers of a default by the Customer; and/or
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
to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
The Customer consents to ROSMUL MECHANICAL PTY LTD being given a consumer credit report to collect overdue payment on commercial credit.
The Customer agrees that personal credit information provided may be used and retained by ROSMUL MECHANICAL PTY LTD for the following purposes (and for other agreed purposes or required by):
the provision of Parts; and/or
analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Parts; and/or
processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
enabling the collection of amounts outstanding in relation to the Parts.
ROSMUL MECHANICAL PTY LTD may give information about the Customer to a CRB for the following purposes:
to obtain a consumer credit report;
allow the CRB to create or maintain a credit information file about the Customer including credit history.
The information given to the CRB may include:
Personal Information as outlined in 19.1 above;
name of the credit provider and that ROSMUL MECHANICAL PTY LTD is a current credit provider to the Customer;
whether the credit provider is a licensee;
type of consumer credit;
details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and ROSMUL MECHANICAL PTY LTD has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
information that, in the opinion of ROSMUL MECHANICAL PTY LTD, the Customer has committed a serious credit infringement;
advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
The Customer shall have the right to request (by e-mail) from ROSMUL MECHANICAL PTY LTD:
a copy of the Personal Information about the Customer retained by ROSMUL MECHANICAL PTY LTD and the right to request that ROSMUL MECHANICAL PTY LTD correct any incorrect Personal Information; and
that ROSMUL MECHANICAL PTY LTD does not disclose any Personal Information about the Customer for the purpose of direct marketing.
ROSMUL MECHANICAL PTY LTD will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
The Customer can make a privacy complaint by contacting ROSMUL MECHANICAL PTY LTD via e-mail. ROSMUL MECHANICAL PTY LTD will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
Unpaid Seller’s Rights
Where the Customer has left any item with ROSMUL MECHANICAL PTY LTD for repair, modification, exchange or for ROSMUL MECHANICAL PTY LTD to perform any other service in relation to the item and ROSMUL MECHANICAL PTY LTD has not received or been tendered the whole of any monies owing to it by the Customer, ROSMUL MECHANICAL PTY LTD shall have, until all monies owing to ROSMUL MECHANICAL PTY LTD are paid:
a lien on the item; and
the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
The lien of ROSMUL MECHANICAL PTY LTD shall continue despite the commencement of proceedings, or judgment for any monies owing to ROSMUL MECHANICAL PTY LTD having been obtained against the Customer.

Service of Notices
Any written notice given under this Contract shall be deemed to have been given and received:
by handing the notice to the other party, in person;
by leaving it at the address of the other party as stated in this Contract;
by sending it by registered post to the address of the other party as stated in this Contract;
if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
if sent by email to the other party’s last known email address.
Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

Trusts
If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not ROSMUL MECHANICAL PTY LTD may have notice of the Trust, the Customer covenants with ROSMUL MECHANICAL PTY LTD as follows:
the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
the Customer will not without consent in writing of ROSMUL MECHANICAL PTY LTD (ROSMUL MECHANICAL PTY LTD will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
the removal, replacement or retirement of the Customer as trustee of the Trust;
any alteration to or variation of the terms of the Trust;
any advancement or distribution of capital of the Trust; or
any resettlement of the trust property.

General
The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in which ROSMUL MECHANICAL PTY LTD has its principal place of business, and are subject to the jurisdiction of the Waverly Local Courts in that state.
Subject to clause 15, ROSMUL MECHANICAL PTY LTD shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by ROSMUL MECHANICAL PTY LTD of these terms and conditions (alternatively ROSMUL MECHANICAL PTY LTD’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Parts).
ROSMUL MECHANICAL PTY LTD may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
The Customer cannot licence or assign without the written approval of ROSMUL MECHANICAL PTY LTD.
ROSMUL MECHANICAL PTY LTD may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of ROSMUL MECHANICAL PTY LTD’s sub-contractors without the authority of ROSMUL MECHANICAL PTY LTD.
The Customer agrees that ROSMUL MECHANICAL PTY LTD may amend their general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for ROSMUL MECHANICAL PTY LTD to provide Parts to the Customer.
Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.