Terms & Conditions – Skilton Truck Repairs

Skilton Truck Repairs – Terms & Conditions 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.
- “Skilton” means Skilton & Bell PTY LTD T/A Skilton Truck Repairs, its successors and assigns or any person acting on behalf of and with the authority of Skilton & Bell PTY LTD T/A Skilton Truck Repairs.
- “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting Skilton to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
  - if there is more than one Client, is a reference to each Client jointly and severally; and
  - if the Client is a partnership, it shall bind each partner jointly and severally; and
  - if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
  - includes the Client’s executors, administrators, successors and permitted assigns.
- “Services” shall mean all Services supplied by Skilton to the Client (and where the context so permits shall include any supply of Parts as hereinafter defined) all such Services shall be as described on the invoices, quotation, work authorisation or any other forms provided by Skilton to the Client and shall include any advice or recommendations.
- “Parts” shall mean Parts supplied by Skilton to the Client either separately, or as part of the Services (and where the context so permits shall include the supply of Services as defined above).
- “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 Client does not wish to allow Cookies to operate in the background when ordering from the website, then the Client 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 Services as agreed between Skilton and the Client in accordance with clause 6
- “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

Acceptance
- The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts Delivery of the Parts.
- In the event of any inconsistency between the terms and conditions of this Contract, Skilton Loan/Hire form or 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 Client acknowledges and accepts that:
  - the supply of Services and/or Parts on credit shall not take effect until the Client has completed a credit application with Skilton and it has been approved with a credit limit established for the account;
  - in the event that the supply of Services and/or Parts request exceeds the Clients credit limit and/or the account exceeds the payment terms, Skilton reserves the right to refuse Delivery;
  - any advice, recommendation, information, assistance or service provided by Skilton in relation to Parts or Services supplied is given in good faith, is based on Skilton’s own knowledge and experience and shall be accepted without liability on the part of Skilton. Where such advice or recommendations is not acted upon then Skilton shall require the Client or their agent to authorise commencement of the Services in writing. Skilton shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services;
  - 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, Skilton reserves the right to substitute comparable Parts (or components of the Parts) and vary the Price as per clause 1. In all such cases Skilton will notify the Client in advance of any such substitution, and also reserves the right to place the Client’s order and/or Services on hold until such time as Skilton and the Client agree to such changes;
  - where Skilton is required to provide the Services urgently which may require Skilton’s staff to work outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or Public Holidays) then Skilton reserves the right to charge the Client additional labour costs (penalty rates will apply), unless otherwise agreed between Skilton and the Client; and
  - in the event that the Parts and/or Services provided by Skilton are the subject of an insurance claim that the Client has made, then the Client 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 Skilton and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful.
- These terms and conditions may be meant to be read in conjunction with Skilton’s Hire form, and:
  - where the context so permits, the terms ‘Parts’ or ‘Services’ shall include any supply of Equipment, as defined therein; and
  - if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.
- Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.

Authorised Representatives
- Unless otherwise limited as per clause 2 the Client agrees that should the Client introduce any third party to Skilton as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Parts or Services on the Client’s behalf and/or to request any variation to the Services on the Client’s behalf (such authority to continue until all requested Services have been completed or the Client otherwise notifies Skilton in writing that said person is no longer the Client’s duly authorised representative).
- In the event that the Client’s duly authorised representative as per clause 1 is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise Skilton in writing of the parameters of the limited authority granted to their representative.
- The Client specifically acknowledges and accepts that they will be solely liable to Skilton for all additional costs incurred by Skilton (including Skilton’s profit margin) in providing any Parts, Services or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 2 (if any)).

Errors and Omissions
- The Client acknowledges and accepts that Skilton 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 Skilton in the formation and/or administration of this Contract; and/or
  - contained in/omitted from any literature (hard copy and/or electronic) supplied by Skilton in respect of the Services.
- In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of Skilton; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.

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

Price and Payment
- At Skilton’s sole discretion the Price shall be either:
  - as indicated on any invoice provided by Skilton to the Client;
  - the Price as at the date of delivery of the Services according to Skilton’s current price list; or
  - Skilton’s estimated Price (subject to clause 7) which shall not be deemed binding upon Skilton as the actual Price can only be determined upon completion of the Services. Skilton undertakes to keep the Client informed should the actual Price look likely to exceed the original estimate; or
  - Skilton’s quoted price (subject to clause 1) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
- At Skilton’s sole discretion a non-refundable deposit may be required.
- Time for payment for the Parts and/or Services being of the essence, the Price will be payable by the Client on the date/s determined by Skilton, which may be:
  - on or before Delivery of the Parts and/or Services;
  - by way of progress payments in accordance with Skilton’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Parts delivered to the Servicesite but not yet installed;
  - seven (7) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
  - 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 Client by Skilton.
- 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 Client and Skilton.
- Skilton may in its discretion allocate any payment received from the Client towards any invoice that Skilton determines and may do so at the time of receipt or at any time afterwards. On any default by the Client Skilton may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Skilton, payment will be deemed to be allocated in such manner as preserves the maximum value of Skilton’s Purchase Money Security Interest (as defined in the PPSA) in the Parts.
- The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Skilton 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 Client must pay to Skilton an amount equal to any GST Skilton must pay for any supply by Skilton under this or any other contract for the sale of the Parts. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client 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
- Skilton reserves the right to change the Price:
  - if a variation to the Services (including any applicable plans or specifications) which are to be provided is requested; or
  - where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, further faults which are found upon disassembly and/or further inspection) which are only discovered upon commencement of the Services; or
  - in the event of increases to Skilton in the cost of labour or Parts (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond Skilton’s control.
- Variations will be charged for on the basis of Skilton’s quotation, and will be detailed in writing, and shown as variations on Skilton’s invoice. The Client shall be required to respond to any variation submitted by Skilton within ten (10) working days. Failure to do so will entitle Skilton 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.
- Where Skilton is requested to store the Client’s vehicle, or where the vehicle is not collected within twenty-four (24) hours of advice to the Client that it is ready for collection, then Skilton (at its sole discretion) may charge a reasonable fee for storage.
- All tow and/or salvage fees will be charged to the Client, and will be added to the Price unless otherwise agreed.
- If Skilton has been requested by the Client to diagnose a fault that requires disassembly and/or testing, all costs involved will be charged to the Client irrespective of whether or not the repair goes ahead.
- The Client acknowledges and agrees that Skilton 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.

Provision of the Services
- At Skilton’s sole discretion Delivery (“Delivery”) of the Services shall take place when:
  - Skilton provides the Services at Skilton’s address; or
  - Skilton provides the Services at the Client’s nominated address.
- Where Skilton is to provide any Services at the Client’s nominated address then the Client shall be liable for all costs incurred by Skilton from the time they depart from, and until they return to, their normal place of work (including, but not limited to, mileage and time calculated at Skiltons standard rates and any Parts purchased for the Services).
- Skilton may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
- Delivery of any Services to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
- Skilton will not be liable whatsover where the Parts have not been stored correctly, not used other than the intended purpose or not installed as properly by the Client or a third party installer as per Skilton or the manufacturer’s recommendations.
- Any time specified by Skilton for Delivery of the Parts and/or Services is an estimate only and Skilton will not be liable for any loss or damage incurred by the Client as a result of Delivery being late. However both parties agree that they shall make every endeavour to enable the Parts and/or Services to be delivered at the time and place as was arranged between both parties. In the event that Skilton is unable to supply the Parts and/or Services as agreed solely due to any action or inaction of the Client, then Skilton 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 Client on Delivery and the Client 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 Client, Skilton is entitled to receive all insurance proceeds payable for the Parts. The production of these terms and conditions by Skilton is sufficient evidence of Skilton’s rights to receive the insurance proceeds without the need for any person dealing with Skilton to make further enquiries.
- Where Skilton gives advice or recommendations to the Client, or the Client’s agent, regarding the suitability of the Parts and/or the performance of the Parts and such advice or recommendations are not acted upon then Skilton shall require the Client or their agent to authorise commencement of the Services in writing. Skilton shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.
- Where the Client has:
  - supplied parts or products for Skilton to complete the Services, the Client acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the parts or products. Skilton shall not be liable for any defects in the Services or performance of the Parts, any loss or damage to the Parts and/or Services (or any part thereof), howsoever arising from the use of parts or products supplied by the Client and will be void of any warranty; and
  - provided instructions or specifications for Skilton to complete the Services (including, but not limited to, any requested variation to the original design), then Skilton shall accept no liability whatsoever for the finished Services being deemed as unsatisfactory to the Client.
- The Client acknowledges and accepts that:
  - Skilton is only responsible for Parts that are replaced by Skilton, and that in the event that other components subsequently fail, the Client agrees to indemnify Skilton against any loss or damage to the Parts or the Client’s vehicle, or caused by the components, or any part thereof howsoever arising; and
  - if during the course of the Services Skilton identifies associated faults, Skilton will communicate these faults to the Client prior to continuing with the Services. Where the Client chooses not to have the faults rectified Skilton will not be held liable for any futher damaged caused; and
  - where Skilton has performed temporary repairs on the vehicle that:
    - Skilton offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
    - Skilton will immediately advise the Client of the fault and shall provide the Client with an estimate for the full repair of the vehicle; and
  - Skilton, its employees, agents or contractors may test drive or carry out tests of the vehicle at Skilton’s discretion and may, if requested by the Client, collect or re-deliver the vehicle where nominated by the Client. Skilton will not be liable to the Client for any damage which occurs to or is caused by the vehicle during such driving, testing, collection or delivery unless it arises from the reckless or wilful conduct of Skilton, its employees, agents, or contractors; and
  - Parts supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. Skilton shall endeavour to match old for new however the Client accepts and acknowledges that colours may not match due to differences in colour matching/mixing technologies, fading and/or weathering of the sample provided to colour match from. Therefore, Skilton shall not be held responsible or liable for any differences that may result.
- Skilton will accept no responsibility for valuables or other items left in the Client’s vehicle. It is the Client’s responsibility to remove any valuables from the Client’s vehicle prior to servicing/repair.
- In the event the Client requests Skilton to work on a vehicle, and leaves the vehicle and/or the keys at Skilton’s premises whilst the site is unattended, then Skilton shall not be responsible for the security of the vehicle or the keys, and shall not be held liable for any loss, damages or costs howsoever resulting.
- Skilton shall not be liable whatsoever for:
  - the loss of or damage to the Client’s vehicle, its accessories or contents while being repaired or operated in connection with the authorised Services (including in the event of a call-out: it shall be the Client’s responsibility to remain with the vehicle to ensure security of the same), unless caused by the negligence of Skilton, or Skilton’s employees; and
  - any loss or damage to the Services that is caused by any other tradesmen after the completion of the Services; or
  - delays caused by any other third party Skiltons and/or contractors that impacts on the provision of the Services by Skilton;
  - any defect or damage resulting from incorrect or faulty installation carried out by any other third party.
- If the Client instructs Skilton to rectify any damage caused by any other tradesman, this will become a variation to the original quotation and will be charged at Skilton’s normal hourly rate
- It is the Client’s responsibility to ensure that the Client’s vehicle 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 at Skilton’s premises. The vehicle is at all times stored and repaired at the Client’s sole risk.

Access
- The Client shall ensure that Skilton has clear and free access to effect Delivery of the Services/Parts. Skilton 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 Skilton.

Compliance with Laws
- The Client and Skilton 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
- Skilton and the Client agree that ownership of the Parts shall not pass until:
  - the Client has paid Skilton all amounts owing to Skilton; and
  - the Client has met all of its other obligations to Skilton.
- Receipt by Skilton 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 Client in accordance with clause 1;
  - the Client is only a bailee of the Parts and unless the Parts have become fixtures must return the Parts to Skilton on request;
  - the Client holds the benefit of the Client’s insurance of the Parts on trust for Skilton and must pay to Skilton the proceeds of any insurance in the event of the Parts being lost, damaged or destroyed;
  - the production of these terms and conditions by Skilton shall be sufficient evidence of Skilton’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with Skilton to make further enquiries;
  - the Client 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 Client sells, disposes or parts with possession of the Parts then the Client must hold the proceeds of any such act on trust for Skilton and must pay or deliver the proceeds to Skilton on demand;
  - the Client should not convert or process the Parts or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Skilton and must sell, dispose of or return the resulting product to Skilton as it so directs;
  - unless the Parts have become fixtures the Client irrevocably authorises Skilton to enter any premises where Skilton believes the Parts are kept and recover possession of the Parts;
  - Skilton may recover possession of any Parts in transit whether or not delivery has occurred;
  - the Client 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 Skilton;
  - Skilton may commence proceedings to recover the Price of the Parts sold notwithstanding that ownership of the Parts has not passed to the Client.

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 PPS
- Upon assenting to these terms and conditions in writing the Client 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 Client to Skilton for Services – that have previously been supplied and that will be supplied in the future by Skilton to the Client.
- The Client 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 Skilton 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 3(a)(i) or 13.3(a)(ii);
  - indemnify, and upon demand reimburse, Skilton 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 Skilton;
  - 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 Skilton;
  - immediately advise Skilton 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.
- Skilton and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
- The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
- The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
- Unless otherwise agreed to in writing by Skilton, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
- The Client shall unconditionally ratify any actions taken by Skilton under clauses 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 Skilton agreeing to supply the Parts, the Client 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 Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
- The Client indemnifies Skilton from and against all Skilton’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Skilton’s rights under this clause.
- The Client irrevocably appoints Skilton and each director of Skilton as the Client’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 Client’s behalf.

Defects, Warranties and Returns, Competition and Consumer Act 2010 (“CCA”)
- The Client must inspect all Parts on delivery (or the Services on completion) and must within seven (7) days of delivery notify Skilton in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Parts/Services as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Skilton to inspect the Parts or to review the Services provided.
- 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).
- Skilton 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, Skilton makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Parts/Services. Skilton’s liability in respect of these warranties is limited to the fullest extent permitted by law.
- If the Client is a consumer within the meaning of the CCA, Skilton’s liability is limited to the extent permitted by section 64A of Schedule 2.
- If Skilton is required to replace any Parts under this clause or the CCA, but is unable to do so, Skilton may refund any money the Client has paid for the Parts.
- If Skilton is required to rectify, re-supply, or pay the cost of re-supplying the Services under this clause or the CCA, but is unable to do so, then Skilton may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services and Parts which have been provided to the Client which were not defective.
- If the Client is not a consumer within the meaning of the CCA, Skilton’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 Client by Skilton at Skilton’s sole discretion;
  - limited to any warranty to which Skilton is entitled, if Skilton did not manufacture the Parts;
  - otherwise negated absolutely.
- Subject to this clause 15, returns will only be accepted provided that:
  - the Client has complied with the provisions of clause 1; and
  - Skilton has agreed that the Parts are defective; and
  - the Parts are returned within a reasonable time at the Client’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 1 to 15.9 but subject to the CCA, Skilton shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
  - the Client failing to properly maintain or store any Parts;
  - the Client using the Parts for any purpose other than that for which they were designed;
  - the Client continuing to use any Parts after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
  - interference with the Services by the Client or any third party without Skilton’s prior approval;
  - the Client failing to follow any instructions or guidelines provided by Skilton;
  - fair wear and tear, any accident, or act of God.
- In the case of second hand Parts, unless the Client is a consumer under the CCA, the Client 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 Skilton as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that Skilton has agreed to provide the Client with the second hand Parts and calculated the Price of the second hand Parts in reliance of this clause 11.
- Subject to clause 1, non-defective, customised, or non-stocklist items or Parts made or ordered to the Client’s specifications are not acceptable for credit or return.

Intellectual Property
- Where Skilton has designed, drawn or developed Parts for the Client, then the copyright in any designs and drawings and documents shall remain the property of Skilton. Under no circumstances may such designs, drawings and documents be used without the express written approval of Skilton.
- The Client warrants that all designs, specifications or instructions given to Skilton will not cause Skilton to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Skilton against any action taken by a third party against Skilton in respect of any such infringement.
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 Skilton’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
- If the Client owes Skilton any money the Client shall indemnify Skilton from and against all costs and disbursements incurred by Skilton in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Skilton’s collection agency costs, and bank dishonour fees).
- Further to any other rights or remedies Skilton may have under this Contract, if a Client has made payment to Skilton, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Skilton under this clause 17 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
- Without prejudice to Skilton’s other remedies at law Skilton shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Skilton shall, whether or not due for payment, become immediately payable if:
  - any money payable to Skilton becomes overdue, or in Skilton’s opinion the Client will be unable to make a payment when it falls due;
  - the Client has exceeded any applicable credit limit provided by Skilton;
  - the Client 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 Client or any asset of the Client.

Cancellation
- Without prejudice to any other remedies Skilton may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Skilton may suspend or terminate the supply of Parts to the Client. Skilton will not be liable to the Client for any loss or damage the Client suffers because Skilton has exercised its rights under this clause.
- Skilton 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 Client. On giving such notice Skilton shall repay to the Client any money paid by the Client for the Parts. Skilton shall not be liable for any loss or damage whatsoever arising from such cancellation.
- In the event that the Client cancels Delivery of Parts the Client shall be liable for any and all loss incurred (whether direct or indirect) by Skilton as a direct result of the cancellation (including, but not limited to, any loss of profits).
- Cancellation of orders for Parts made to the Client’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 Skilton is Personal Information, as defined and referred to in clause 3, and therefore considered Confidential Information. Skilton 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”). Skilton acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by Skilton that may result in serious harm to the Client, Skilton will notify the Client 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 Client by written consent, unless subject to an operation of law.
- Notwithstanding clause 1, privacy limitations will extend to Skilton in respect of Cookies where the Client utilises Skilton’s website to make enquiries. Skilton 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 Client’s:
  - IP address, browser, email client type and other similar details;
  - tracking website usage and traffic; and
  - reports are available to Skilton when Skilton sends an email to the Client, so Skilton may collect and review that information (“collectively Personal Information”)

If the Client consents to Skilton’s use of Cookies on Skilton’s website and later wishes to withdraw that consent, the Client may manage and control Skilton’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.

The Client agrees for Skilton 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 Client in relation to credit provided by Skilton.
The Client agrees that Skilton may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
- to assess an application by the Client; and/or
- to notify other credit providers of a default by the Client; and/or
- to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
- to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
The Client consents to Skilton being given a consumer credit report to collect overdue payment on commercial credit.
The Client agrees that personal credit information provided may be used and retained by Skilton for the following purposes (and for other agreed purposes or required by):
- the provision of Services; and/or
- analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or
- processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
- enabling the collection of amounts outstanding in relation to the Services.
Skilton may give information about the Client 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 Client including credit history.
The information given to the CRB may include:
- Personal Information as outlined in 3 above;
- name of the credit provider and that Skilton is a current credit provider to the Client;
- whether the credit provider is a licensee;
- type of consumer credit;
- details concerning the Client’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 (provided Skilton is a member of an approved QAIC External Disputes Resolution Scheme), 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 Client no longer has any overdue accounts and Skilton has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
- information that, in the opinion of Skilton, the Client has committed a serious credit infringement;
- advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
The Client shall have the right to request (by e-mail) from Skilton:
- a copy of the Personal Information about the Client retained by Skilton and the right to request that Skilton correct any incorrect Personal Information; and
- that Skilton does not disclose any Personal Information about the Client for the purpose of direct marketing.
Skilton will destroy Personal Information upon the Client’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 Client can make a privacy complaint by contacting Skilton via e-mail. Skilton 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 Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.

Unpaid Seller’s Rights
- Where the Client has left any item with Skilton for repair, modification, exchange or for Skilton to perform any other service in relation to the item and Skilton has not received or been tendered the whole of any monies owing to it by the Client, Skilton shall have, until all monies owing to Skilton 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 Skilton shall continue despite the commencement of proceedings, or judgment for any monies owing to Skilton having been obtained against the Client.

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 Client 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 Skilton may have notice of the Trust, the Client covenants with Skilton as follows:
  - the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
  - the Client 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 Client against the Trust or the trust fund. The Client 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 Client will not without consent in writing of Skilton (Skilton will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
    - the removal, replacement or retirement of the Client 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.

Dispute Resolution
- Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute and the parties will seek to reach settlement amongst themselves within ten (10) Business Days of receipt of the dispute notice (“Negotiation Period”). The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.

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 the state of New South Wales, in which Skilton has its principal place of business, and are subject to the jurisdiction of the courts in that state.
- Skilton shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Skilton of these terms and conditions (alternatively Skilton’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Parts).
- Skilton may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
- The Client cannot licence or assign without the written approval of Skilton.
- Skilton 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 Client agrees and understands that they have no authority to give any instruction to any of Skilton’s sub-contractors without the authority of Skilton.
- The Client agrees that Skilton may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for Skilton to provide Parts to the Client.
- Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc., (“Force Majeure”) 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.