Note: these terms and conditions do not apply to online purchases.
This document sets out the terms and conditions upon which Allin Towbars Pty Ltd ACN 008 023 738 as trustee for Allin Towbars Unit Trust ABN 34 655 051 962 trading as Allin Tow Bars (Supplier, we, us, our) will provide Goods and Services to you, the Customer. Please read the Terms below under the heading “Operative Terms” in full. This brief informational summary of features does not form part of, or replace, the Terms.
If you do not collect your vehicle, towing device, or other item within 2 days after receiving the final invoice and notification that it is ready for collection, a storage fee of $25.00 per day will apply. We may require advance payment for goods specially ordered for you. For custom orders (special builds) costing $1,000.00 or more, or if otherwise notified, we may issue an interim invoice for half the estimated purchase price.
If you cancel an appointment for services without 24 hours’ notice or cancel a third party order, you may breach the contract, and we may claim compensation from you and/or charge you for the goods.
Under the Terms (refer to clause 10 and 11), we limit our liability to the extent permitted by law, potentially reducing or excluding compensation. This includes for goods and services provided to you, such as goods you purchase that will be used for, installed to, and/or built for a vehicle that may not have a tow rating or comply with the manufacturer’s specifications. It also applies to parts you provide us, if we choose to accept them. If we accept parts from you, you agree to indemnify us against any loss or damage arising from a claim in connection with such parts.
You warrant that the information you provide for an order is correct. For goods that do not meet vehicle manufacturer specifications or where the vehicle lacks a tow rating, you warrant that you have conducted due diligence and assessed the suitability of the goods for your intended purpose. You indemnify us against any claim arising from a breach of these warranties.
| 1. |
Definitions and interpretation |
| 1.1. |
In this document, the following terms have the following meanings:
Australian Consumer Law means the Australian Consumer Law provided in Schedule 2 of the Competition and
Consumer Act 2010 (Cth).
Claim means any claims including actions, complaints, debts, demands, dues, proceedings, suits or other legal recourse (whether in contract or tort (including negligence), at law or in equity) and including any causes of action or rights to bring or make any such claim.
Consequential Loss includes (i) any loss of income, revenue, profit or business; (ii) any loss of good will or reputation; (iii) any loss of value of intellectual property; (iv) lost opportunity costs; (v) special or indirect loss or damage; (vi) legal costs and expenses
Customer means the person or entity placing the Order or any person or entity who purchases the Goods and/or Service from the Supplier and includes Trade Credit Account Holders.
Custom Order means any Good ordered by a Customer that is specially made for the Customer and/or specially fitted to accommodate an item and/or purpose, including fabrication and testing of towbars, towing devices and hitches.
Customer Supplied Parts means any parts or products sourced and/or supplied by a Customer, which the
Supplier uses in providing services to that Customer.
Estimated Price means the estimated price for the Goods and/or Services to be supplied by the Supplier before
the Goods and/or Services are supplied in full.
Goods means the vehicle products and/or components and/or accessories, including Custom Orders, towbars,
hitches and wiring harness, supplied or to be supplied by the Supplier
GST means a goods and services tax as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth)
Invoice means any invoice for or relating to the Goods and/or Services
Loss means any loss, damage, debt, deficiency, diminution in value, charge, cost, expense, fine, outgoing, penalty or other liability of any kind or character (including legal fees, other professional fees, debt recovery fees and expenses on a full indemnity basis) that a party pays, suffers or incurs or is liable for, including all amounts paid in settlement for any claim, complaint, demand, proceeding, litigation, action, or other legal recourse whether under statute, contract, tort or otherwise, but does not include Consequential Loss unless otherwise specified in these Terms.
Order means any offer by the Customer to purchase Goods and/or Services from the Supplier whether written or verbal (includes telephone and online orders).
Purchase Price means the amount listed on the Invoice(s) for Goods and/or Services, as varied in accordance with clause 5.3.
Quote means any written or verbal quote estimating the Services, labour costs, Goods and/or materials.
Services means the services, including labour, in connection with a vehicle, including services relating to servicing, installing or repairing towbars, towing devices, hitches, Custom Orders or building Custom Orders.
Special Buy-In Orders means Goods which are not stocked by the Supplier and require the Supplier to purchase
these Goods from a third party.
Supplier means Allin Towbars Pty Ltd ACN 008 023 738 as trustee for Allin Towbars Unit Trust ABN 34 655 051 962.
Terms means these terms and conditions.
Trade Application Terms means the terms and conditions between the Customer and the Supplier pursuant to which the Supplier may grant a trade credit account to the Customer.
Trade Credit Account Holder means the Customer who has agreed to Trade Application Terms with the Supplier pursuant to which the Supplier may grant credit to the Customer |
| 2. |
GENERAL |
| 2.1. |
Subject to clause 2.2, the Customer accepts these Terms on receiving the Quote, on placing an Order, signing the Terms or signing the Trade Application Terms (whichever is the earlier). These Terms apply to all transactions between the Customer and Supplier relating to the provision of Goods and/or Services, this includes all Quotes, Orders and variations. Subject to clause 13.1, these Terms take precedence over terms and conditions contained in any document of the Customer or elsewhere. |
| 2.2. |
For Trade Credit Account Holders who accepted or signed the Trade Application Terms before 15 July 2024, these Terms apply to Orders placed on and from 15 July 2024. |
| 2.3. |
These Terms do not apply to online purchases, other terms and conditions apply to those purchases. |
| 3. |
QUOTE |
| 3.1. |
The Customer agrees that any labour costs, material and other costs, and any time frame provided in the Quote is an estimate only |
| 3.2. |
The Supplier may amend the details of the Quote verbally or in writing, including by SMS or other electronic messaging system, and such amended details supersede prior details in the Quote or dealings between the parties. |
| 3.3. |
The Quote is valid for 7 days from its original issue and is subject to the availability of, and changes to the cost of, materials. |
| 4. |
ORDER |
| 4.1. |
The Supplier may accept or reject any Order in its absolute discretion. An Order is accepted when the Customer receives written or verbal acceptance from the Supplier or receives delivery of the Goods and/or Services, whichever occurs first. |
| 5. |
INVOICING AND PAYMENT |
| 5.1. |
The Customer must pay to the Supplier the Purchase Price for the Goods and/or Services on or before delivery, except that Goods and Services supplied externally (e.g. for mobile service), must be paid in advance |
| 5.2. |
Despite clause 5.1, or anything to the contrary in these Terms, the Supplier may issue the Customer with an interim Invoice:
a) for payment in full or in part of a Special Buy-In Order any time after the Order is placed by the Customer;
b) if the estimated total cost for Goods and/or Services is or exceeds $1,000.00, the Supplier may issue an interim Invoice to the Customer at any time after the Order is placed by the Customer for payment of up to half the estimated Purchase Price for immediate payment;
c) for a Custom Order, the Supplier may issue an interim Invoice to the Customer for payment of half the estimated Purchase Price for immediate payment and may issue further interim Invoices beforecompletion of the Custom Order; and
d)as otherwise informed by the Supplier. |
| 5.3. |
The Supplier reserves the right to vary the Purchase Price and make an additional charge where further costs are incurred by the Supplier in the event of a variation to the Order for Goods and/or Services (including any Special Buy-In Order), including where the Supplier incurs further costs, including in the following circumstances:
a) any variation to the Order for Goods and/or Services (including any Special Buy-In Orders);
b) the Customer providing inadequate, late or incorrect information or materials in relation to the vehicle and/or Customer Supplied Parts, or changing instructions in respect of Goods and/or Services
c) the Supplier agreeing to provide additional Goods and/or Services not included in the Order or Quote (or specifically excluded), including alterations to the Order, or the supply of additional, Goods and/or Services, or visits to or by the Customer with the Supplier;
d) the Customer authorises, whether verbally or in writing, any additional Services and/or Goods, or changes to the Services and/or Goods to be supplied; and
e) if the Customer cancels a Service and/or Good, any Loss resulting from the cancellation that is incurred by the Supplier, and notice will be provided verbally or in writing by the Supplier within a reasonable time. |
| 5.4. |
All representations made in the Invoice are made on the basis that errors and omissions are excepted. |
| 5.5. |
Unless the Supplier otherwise notifies the Customer in writing, the price charged for the Goods and/or Services is exclusive of any GST, sales tax, excise, duty and/or any identified or new taxes that come into existence after the effective date of these Terms. |
| 5.6. |
Where any GST, sales tax, excise, duty and/or any identified or new taxes apply to any supply made under these Terms, the Supplier may recover from the Customer, an additional amount on account of those taxes and the Supplier will deliver to the Customer a compliant Invoice. |
| 5.7. |
The Supplier may, in its complete discretion, apply any payment received from the Customer to any amount owing by the Customer to the Supplier. |
| 6. |
FAILURE TO PAY, STORAGE AND LIEN |
| 6.1. |
If the Customer is in default for the failure to pay debts as and when they are due:
a) the Customer must pay the Supplier, on demand, interest at the rate of 5% per annum on all overdue amounts owed by it to the Supplier, calculated daily; and
b) all costs and expenses associated with collecting overdue amounts (for example, where the collection of the debt is referred to a debt collector or a law firm, or in respect of legal proceedings), including debt collection fees, commission on collection, legal fees, interest, storage charges and internal costs and expenses of the Supplier, are to be paid by the Customer as a debt due and payable under these Terms. |
| 6.2. |
If the Supplier provides a final Invoice and/or notice the vehicle or towing device is ready for collection by the Customer and the Customer fails to collect the vehicle or towing device within 2 days (excluding days on which the Supplier is not open for business), then, regardless of whether the Purchase Price is paid or not, the Supplier may charge the Customer $25.00 including GST per day (or part thereof) to store the Customer’s vehicle or towing device until the vehicle or towing device is collected. |
| 6.3. |
In addition to any lien existing at common law, the Supplier will exercise a lien on the Customer’s vehicle and/or towing device until the Customer has paid all amounts owing by the Customer to the Supplier, and the Customer agrees to such a lien. |
| 6.4. |
The Supplier may withhold the provision of any further Goods and/or Services until the Customer has paid all amounts owing by it to the Supplier. |
| 7. |
TITLE AND RISK |
| 7.1. |
Legal and equitable title to the Goods will remain with the Supplier and will not pass to the Customer until such time as full payment, in cleared funds, is made to the Supplier for the Goods and for any and all monies owed by the Customer to the Supplier in respect of the Goods and related Services. |
| 7.2. |
Risk in the Goods passes to the Customer on the Customer making payment as specified in clause 5.1, clause 5.2 or the Trade Application Terms (as applicable), or on the Customer collecting the Goods, whichever is the earlier. |
| 8. |
SUPPLY OF GOODS AND CUSTOMER SUPPLIED PARTS |
| 8.1. |
The Supplier supplies Goods in connection with Services and supplies Goods separately to the supply ofServices. |
| 8.2. |
Unless specified by the Supplier to the contrary in the Order, the Supplier does not warrant that it will be capable of providing the Goods at specific times requested by the Customer. |
| 8.3. |
If the Customer cancels an Order that is a Special Buy-In Order, and the Supplier is unable to cancel the order for the Special Buy-In Order with the third party or suffers Loss in doing so, the Customer will be liable for the price of the Special Buy-In Order (if unable to be cancelled), and/or costs connected with the purchase for the Special Buy-In Order and any Loss incurred by the Supplier. |
| 8.4. |
The Customer acknowledges and agrees that the Supplier may, in its absolute discretion, refuse to fit any goods supplied by the Customer including parts or products sourced and/or supplied by the Customer and for use by the Supplier in providing Services. |
| 8.5. |
If the Supplier agrees to fit the Customer Supplied Parts, the Customer warrants that any Customer Supplied Parts are free from any pre-existing defects or faults and are suitable for the supply of Services and the Customer acknowledges and agrees:
a) the Supplier only accepts new complete kits with complete installation instructions
b) the Supplier is not the supplier of the Customer Supplied Part for the purpose of the Australian Consumer Law and if the Supplier offers a warranty, then the warranty does not apply to the Customer Supplied Parts;
c) fitment of the Customer Supplied Parts is conditional on the Customer entering into a separate deed regarding supply and fitment of Customer Supply Parts, unless the Supplier waives such condition in the Supplier’s absolute discretion;
d) if the Customer Supplied Part is being delivered to the Supplier’s premises, or needs to be returned to the supplier of the Customer Supplied Part, the Customer must arrange such delivery and is liable for all transport charges, insurance, damage to the Customer Supplied Part and damage to the Supplier’s property in connection with such delivery;
e) the Customer must undertake their own due diligence in relation to the suitability of any Customer Supplied Part for the intended purpose of the Customer Supplied Part; and
f) to the extent permitted by law, the Customer indemnifies the Supplier from and against all existing and future Claims of whatsoever nature, wherever and however arising, known or unknown, including by any third party which arises out of or in connection with the Customer Supplied Parts. |
| 8.6. |
Except as required by law, the Supplier will be under no obligation to accept Goods returned for any
reason. |
| 8.7. |
Without limiting any rights that may be available under the Australian Consumer Law that are not lawfully excluded under these Terms, if the Customer is seeking to make a claim pursuant to a third party manufacturer warranty, the Good may be sent back to the manufacturer for inspection and the remedy in relation to that claim will depend on the decision of the third party manufacturer. |
| 9. |
SUPPLY OF SERVICES |
| 9.1. |
Unless specified by the Supplier to the contrary in the Order, the Supplier does not warrant that it will be capable of providing the Services at specific times requested by the Custome |
| 9.2. |
The Supplier may cancel or postpone appointments in relation to, and the supply of, Services if it is reasonable for the Supplier to do so, or it is in the Supplier’s legitimate business interests to cancel or postpone the appointment (for example, due to non-delivery of a required part, unavailability of a part or labour shortage). |
| 9.3. |
If the Customer fails to attend any appointment without at least 24 hours’ notice, the Customer may, at the discretion of the Supplier, be liable for any reasonable administrative costs incurred by the Supplier and the Supplier will provide to the Customer a compliant Invoice itemising the reasonable administrative costs. |
| 9.4. |
Subject to otherwise complying with its obligations under these Terms, the Customer agrees:
a) the Supplier will exercise its independent discretion as to the most appropriate and effective manner of providing the Services and of satisfying the Customer’s expectations of those Services; and
b) may at any time appoint or engage an agent to perform an obligation or right of the Supplier arising out of or pursuant to these Terms, a Quote or Order. |
| 9.5. |
The Customer authorises the Supplier and the Supplier’s employees, contractors and agents to test drive the vehicle and/or towing device (Vehicle Testing), and the Customer:
a) warrants the vehicle is registered and insured; and
b) agrees, to the extent permitted by law, the Supplier will not be liable to the Customer for any Loss which occurs to the vehicle and/or towing device, or is caused by the vehicle and/or towing device, except where such Loss arises from the negligence of the Supplier or the Supplier’s employees, contractors or agents. |
| 10. |
DEFAULT |
| 10.1. |
The Customer will be in default if:
a) the Customer breaches the Terms;
b) payment for the Goods and/or Services has not been received by the Supplier in full by the due date for payment;
c) the Customer becomes insolvent or unable to pay the Customer’s debts as and when they are due and payable;
d) the Customer, being an individual, commits an act of bankruptcy or becomes an insolvent under administration, or the Customer, being a body corporate, becomes an externally-administered body corporate or any proceedings are filed or steps taken that may result in the Customer becoming an externally-administered body corporate |
| 10.2. |
Without prejudice to any other rights of the Supplier, if the Customer defaults, and the default is not capable of remedy, or if the default is capable of remedy and the Customer fails to remedy the default within a reasonable time specified by the Supplier, the Supplier may do one or more of the following: |
|
a) without notice to the Customer, make all money owing by the Customer to the Supplier, immediately due and payable (including any costs incurred as a result of trying to recover the outstanding amount);
b) treat the whole of these Terms as repudiated and sue for breach of contract;
c) refuse to supply any further Goods and/or Services to the Customer. |
| 11. |
EXCLUSIONS AND LIMITATION OF LIABILITY |
| 11.1. |
To the extent permitted by law:
a) all express and implied warranties, guarantees and conditions under statute or general law as to merchantable quality, description, quality, suitability or fitness of the goods and/or services for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded;
b) the Customer will ensure it provides sufficient, correct and accurate information to the Supplier to execute the Order and, if the Customer fails to provide sufficient, correct and accurate information, the Supplier is not liable for costs and expenses incurred for any work to rectify and/or resupply the Order;
c) the Supplier is not liable for Consequential Loss; and
d) the Supplier is not liable for any Loss to a person or property arising from or caused in any way by Customer Supplied Parts. |
| 11.2. |
Any limitation of liability in these Terms does not apply if it would restrict, modify or exclude the Customer’s rights in a way that is not permitted under Australian Consumer Law or any other applicable law. |
| 12. |
CUSTOMER WARRANTIES AND ACKNOWLEDGMENTS |
| 12.1. |
In this clause, a Non-Specification Good means a Good the Customer chooses to purchase that will be used for, installed to, and/or built for (including a good built by the Supplier) a vehicle that may not have a tow rating or comply with the manufacturer’s specifications, including a Good that is a Custom Order. |
| 12.2. |
The Customer warrants:
a) the Customer has provided the correct information to the Supplier in connection with an Order, including an Order for a Non-Specification Good;
b) before placing the Order for the Non-Specification Good, the Customer has undertaken their own due diligence, obtained all relevant (and correct) information relating to the Non-Specification Good and assessed the suitability of the Non-Specification Good to ensure the Non-Specification Good is fit for the purpose of the Customer’s intended use,
(each a Warranty). |
| 12.3. |
To the extent permitted by law, the Customer indemnifies the Supplier from and against all existing and future Claims of whatsoever nature, wherever and however arising, known or unknown, including by any third party which arises out of or in connection with the Customer’s breach of a Warranty. |
| 12.4. |
The Customer acknowledges and agrees:
a) any advice provided by the Supplier is based only on information provided by the Customer and, to the extent permitted by law, the Supplier has not otherwise independently assessed the suitability of a Good, including a Non-Specification Good;
b) if the Customer places a Custom Order that is a tow bar and a Non-Specification Good, for a vehicle that is not recommended for towing and/or does not have a known tow rating, the Supplier has informed the Customer of this; and
c) if the Customer selects a Good, including a Non- Specification Good, for a purpose it is not suitable for, the Supplier excludes liability to the extent permitted by law. |
| 13. |
TRADE APPLICATION TERMS |
| 13.1. |
The following applies to Customers who are Trade Credit Account Holders:
a) subject to clause 13.1(b) of these Terms, if any provision in these Terms conflicts with any provision in the Trade Application Terms, the Trade Application Terms will prevail;
b) clause 5.1 and clause 5.2 of these Terms do not apply, unless credit granted to the Trade Credit Account Holder is suspended, cancelled or exceeded; and
c) clause 6.1 of these Terms does not apply. |
| 14 |
MISCELLANEOUS |
| 14.1. |
These Terms are governed by the laws of South Australia. The parties submit to the exclusive jurisdiction of the courts of South Australia. |
| 14.2. |
Where more than one Customer completes these Terms, each will be liable jointly and severally. |
| 14.3. |
These Terms are binding on the Customer, their heirs, assignees, executors, legal representatives, trustees and where applicable, any liquidator, receiver or administrator. |
| 14.4. |
Delivery of an executed copy of these Terms by email in PDF or other image format, or acceptance of these Terms by email or other electronic format, or electronic signature, will be equally effective as delivery of an original signed hard copy of these Terms |
| 14.5. |
The Supplier’s rights under these Terms, may only be waived by notice in writing. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given. The failure by the Supplier to enforce any provision of these Terms will not be treated as a waiver of that provision or affect the Supplier’s right to subsequently enforce that provision. |
| 14.6. |
If the Customer is a trustee of a trust:
a) the Customer warrants that the Customer as trustee has the power under the trust deed to enter into these Terms and to comply with its obligations under these Terms, including using the trust assets to meet the Customer’s obligations under these Terms;
b) the Customer agrees that these Terms bind the Customer in their capacity as trustee and in the Customer’s own capacity; and
c) the Customer agrees that the Customer is liable for the failure to meet an obligation under these Terms in its capacity as trustee and in the Customer’s own capacity. |
| 14.7. |
The Supplier may assign, license or sub-contract all or any part of its rights and obligations under these Terms, to another person without notice to the Customer, provided it is not to the Customer’s detriment. The Customer may not assign or otherwise transfer any or all of its rights and obligations under these Terms without the prior written agreement of the Supplier. |
| 14.8. |
If a provision of these Terms would, but for this clause, be unenforceable, then the provision must be read down to the extent necessary to avoid that result and, if the provision cannot be read down to that extent, it must be severed without altering the validity and enforceability of the remainder of these Terms. |
| 14.9. |
The Customer has no right of set-off in any suit, Claim or proceeding brought by the Supplier against the Customer for default in payment or brought by the Customer against the Supplier. The Customer acknowledges that the Supplier can produce this clause in bar of any proceeding for set-off. |
| 14.10. |
The Supplier may vary these Terms at any time by providing notice to the Customer of the variation, and such variation will apply to all Orders made after such notice. However, the Customer acknowledges that the Supplier may use these Terms on its website and that it may provide notice to the Customer of any variation, in which event, the Terms on the Supplier’s website will apply to any future dealings as between the parties, commencing on or after the variation, including future Orders placed by the Customer, and the Customer is deemed to have notice of any such Terms and/or variations. |
| 14.11. |
Subject to clause 13.1, these Terms constitute the entire agreement between the Supplier and the Customer with respect to the Goods and/or Services supplied under these Terms. All prior negotiations, proposals and correspondence are superseded by these Terms and these Terms will in all circumstances, prevail over the Customer’s Terms. Subject to clause 14.10, no subsequent correspondence or document or discussion will modify or otherwise vary these Terms unless such variation is in writing and signed by the Supplier. |
| 14.12. |
Nothing in these Terms is intended to have the effect of contravening Australian Consumer Law or any other applicable legislation. |
