Terms & Conditions
In these conditions:
1.1. "Agent" means company or person able to sell products on behalf of Cometti Tyres;
1.2. "Attachment" has the same meaning as it is given in section 19 of the Personal Property Securities Act 2009;
1.3. "Contract" means the contract for the sale and purchase of the products comprising the Sales Contract/Invoice/Quotation and these Conditions;
1.4. "Customer" means the person named in the Sales Contract/Invoice/Quotation;
1.5. "Financing Statement" has the same meaning as it is given in section 10 of the Personal Property Securities Act 2009;
1.6. "GST" has the same meaning it does in Section 195-1 of the GST Act;
1.7. "Products" means the Products described on the Sales Contract/Invoice/Quotation;
1.8. "Sales Contract" means the Sales Contract/Invoice/Quotation for Products attached to these conditions;
1.9. "Security Interest" has the same meaning as it is given in section 12 of the Personal Property Securities Act 2009;
1.10. "Secured Party" has the same meaning as it is given in section 10 of the Personal Property Securities Act 2009; and
1.11. "Verification statement" has the same meaning as it is given in section 155 of the Personal Property Securities Act 2009.
2. Price of Products
2.1. The price of the Products shall be the price appearing on the Sales Contract/Invoice/Quotation. All prices quoted are valid for 7 days only or until earlier acceptance by the Customer, after which time they may be altered by Cometti Tyres without notice to the Customer.
2.2. Cometti Tyres reserves the right, by notice to the Customer at any time before delivery, to increase the price of Products to reflect any increase in costs to Cometti Tyres due to any factor beyond the reasonable control of Cometti Tyres or including, but not limited to;
2.2.1. any change in delivery dates, quantities or specifications for the Products which is requested by the Customer, or any delay caused by instructions of the Customer or failure of the Customer to give Cometti Tyres adequate information or instructions.
2.3. The amount shown as "Total Payable" on the Sales Contract/Invoice/Quotation is inclusive of GST.
2.4. Any variation to the Contract must be inwriting and signed by both parties. Cometti Tyres reserves the right to revise and amend the price of works if there are any such variations.
2.5. Any variations made after the Contract or formation of the oral Contract may incur an administration fee to be charged by Cometti Tyres in addition to the costs of the variation separately charged.
2.6. Where any variation to the Contract is necessary:
2.6.1. to comply with a written direction lawfully given by a person acting under a written law; or
2.6.2. by virtue of circumstances that could not reasonably have been foreseen by Cometti Tyres at the time the Agreement was entered into; then Cometti Tyres shall be entitled to payment for such a variation provided that before carrying out the work relating to the variation, Cometti Tyres gives to the Customer a statement setting out the reason for, and the cost to be incurred on account of the variation.
3. Terms of Payment
3.1. Subject to any special payment terms shown on the Sales Contract/Invoice/Quotation or as otherwise agreed between the Customer and Cometti Tyres, the Customer must pay for all Products at the time of collection from Cometti Tyres, unless alternative arrangements have been made with Cometti Tyres prior to collection.
3.2. If the Customer fails to make any payment on the due date, then without prejudice to any other right or remedy available to Cometti Tyres, Cometti Tyres may:
3.2.1. cancel the Contract and suspend any further Deliveries to the Customer;
3.2.2. appropriate any payment made by the Customer to such of the Products as Cometti Tyres may think; and
3.2.3. charge the Customer interest on the unpaid amount at a rate equal to 18% per annum.
3.3. In the event of Cometti Tyres granting credit facilities to the Customer then the following terms shall apply:
3.3.1. All accounts are to be settled in full within the agreed trading terms of the date of Cometti Tyres’ Sales Contract/Invoice/Statement and in any event by no later than the 25th of the month following the date the credit facility is granted.
3.3.2. It is expressly understood and agreed that the credit arrangement may be terminated at any time by either party upon which the total value of goods supplied to date of cessation will be immediately payable.
3.3.3. Cometti Tyres may at any stage during the life of the credit arrangement impose as a condition precedent to the granting of further credit that the Customer gives security or additional security as Cometti Tyres shall in its discretion think fit and Cometti Tyres shall be entitled to withhold supply of any goods or services or credit arrangements until such security or additional security shall be obtained.
3.3.4. Should the Customer default in the payment of any monies due, then all monies due to Cometti Tyres shall immediately be come due and payable and shall be paid by the Customer within 7 days of the date of demand and Cometti Tyres shall be entitled to charge interest at the rate of 18% per annum on all overdue accounts from the date of due payment until the date of actual payment.
4. Trustee Companies
4.1. In the case of a trustee company we acknowledge that the trustee shall be liable on the account and that the assets of the trust shall be available to meet payment of the accounts.
5. Privacy Act
5.1. I/We hereby authorise and unconditionally grant my/our consent to Cometti Tyres obtaining from a credit reporting agency or other person or company information and/or reports concerning me/us from time to time during the life of our credit account so as to assist in deciding whether to grant credit or to continue to grant credit tome/us for collecting overdue payments in respect of commercial credit applied for or extended to us.
5.2. I/We further authorise and consent to Cometti Tyres obtaining and disclosing information about my/our credit worthiness to and from credit reporting agencies and credit providers including identifying particulars of overdue payments, to those who have or are or intend to enter into some commercial or business dealings with me/us and or grant credit to me/us. For the purposes of this paragraph “report” and “information” include any credit report originating from a credit reporting agency and any other record or information that has any bearing on my/our credit worthiness, credit standing, credit history or credit capacity and personal information.
6.1. Delivery of the Products shall be made by:
6.1.1. The Customer, their Agents or courier collecting the Products from the Cometti Tyres premises after Cometti Tyres has notified the Customer that the Products are ready for collection.
6.2. Any dates quoted for delivery of the Products are approximate only and Cometti Tyres shall not be liable for any delay in delivery of the Products however caused.
7. Title & Risk
7.1. Risk of damage to or loss of the products shall pass to the Customer:
7.1.1. in the case of Products collected by the Customer from Cometti Tyres’ premises, at the time when the Products have been loaded on to the Customer’s vehicle.
7.2. Notwithstanding delivery as the passing of risk in the Products, the property and ownership of the Products shall not pass to the Customer until Cometti Tyres has received in cleared funds, payment in full for all indebtedness including the price of the Products delivered and any other sums which are or may become outstanding under these conditions or otherwise.
7.3. Until such time as full property and ownership in the Products passes to the Customer in accordance with clause 7.2:
7.3.1. the Customer must hold the Products as Cometti Tyres’ fiduciary agent and bailee and must keep the Products separate from all other goods except as is expressly consented to by Cometti Tyres in writing from time to time;
7.3.2. the Customer must keep the Products properly stored, protected and identified as Cometti Tyres’ property;
7.3.3. Cometti Tyres may at any time require the Customer to deliver up the unpaid Products to Cometti Tyres and, if the Customer fails to do so immediately, to enter the premises of the Customer or any third party where the Products are stored and repossess the Products; and
7.3.4. the Customer agrees that Cometti Tyres is authorised to enter any premises where the Products are located and the Customer will indemnify Cometti Tyres against all claims, damages or other losses of whatever nature suffered as a consequence of recovering or attempting to recover the Products.
7.4. The Customer will not (except with the written consent of Cometti Tyres) allow to be, or be liable to become, attached in favour of any person or company, a Security Interest or transitional Security Interest in any goods owned by Cometti Tyres without the prior written consent of Cometti Tyres.
7.5. The Customer agrees to promptly sign any documents and/or provide all necessary information requested by Cometti Tyres to lodge a Financing Statement with respect to the registration of any Security Interest or correct a defect in any Financing Statement or Verification Statement.
7.6. The Customer undertakes to not register a financial charge in respect of a security interest without the prior written consent of Cometti Tyres.
7.7. The Customer waives the right to receive a Verification Statement or Financial Change Statement relating to the Security Interests under this Contract.
7.8. The parties agree that Cometti Tyres and the Customer contract out of and nothing in the provisions of sections 95, 96, 117, 118, 121(4),130, 132(3)(d), 132(4), 135, 142 and 143 of the Personal Property Security Act 2009 shall apply to this Agreement.
8. No Warranty
8.1. Cometti Tyres makes no express warranties to the Customer, except those expressly set out in these Conditions.
8.2. Cometti Tyres excludes:
8.2.1. all conditions, warranties, and terms implied by the statute or general law or custom except any implied condition or warranty the exclusion of which would contravene any statute or cause this clause to be void ("Non-Excludable Condition");
8.2.2. all liability to the Customer in contract for consequential or indirect damages arising out of or in connection with these Conditions even Cometti Tyres knew they were possible or they were otherwise unforeseeable, including, without limitation, lost profits and damages suffered as a result of claims by a third party;
8.2.3. all liability to the Customer in negligence for acts or omissions of Cometti Tyres or its employees, Agents, or contractors arising out of or in connection with these conditions.
8.3. Cometti Tyres’ liability for breach of any express provision of these Conditions or any Non Excludable Condition (except a Non Excludable Condition referred to above or one implied by section 69 of the Trade Practices Act 1974) is limited at Cometti Tyres’ option to one of supplying, replacing or repairing the Products in respect of which the breach occurred.
9.1. The Contract is the entire agreement between the parties about its subject matter and supersedes all other contracts, arrangements and understanding relating to the supply delivery of the Products.
9.2. Governing Law
9.2.1. The parties agree that the above-mentioned terms and conditions shall be governed and construed in accordance with the laws of Western Australia and the Customer and Cometti Tyres submit to the non-exclusive jurisdiction of the courts of that State.
9.2.2. The Customer and signatories appearing below hereby acknowledge receipt of the copy of the application/conditions of sale and upon acceptance by Cometti Tyres by way of written notice or the supply of goods and services and having read and agree to be bound by the terms of trading above. We further acknowledge that we have had the opportunity of obtaining independent legal advice and that we understand the terms and conditions outlined above.
10 Return Of Goods
Should the customer wish to return any tyres supplied by Cometti Tyres the customer may do so within 30 days of the date of purchase of the tyres. Upon returning the tyres the customer will be charged a fee of 10% of the total cost of the tyres being returned together with a $10 restocking fee. These charges will be payable upon return of the tyres to Cometti Tyres. Tyres or Wheels that have been mounted or fitted will not be accepted for return.
11 Further Assurances
The parties shall execute such further documents and do any and all such further things, including the grant of any Security Interests, as may be necessary to implement and carry out the intent of this Contract.
12. Liability for goods manufactured by third parties
12.1. The Customer acknowledges that the goods supplied by Cometti Tyres are manufactured by third parties, and as such, Cometti Tyres is not liable for any defects attributable to their manufacture.
12.2. The Customer shall be entitled to any benefit of any manufacturer’s warranty in respect of such goods. Warranty of all goods sold is strictly limited by the discretion of the manufacturer.
12.3. Cometti Tyres accepts no responsibility for any manufacturer’s warranty or claim arising from the use of the goods, whether singularly or in combination with other products.
12.4. This clause 12 survives the termination or natural expiration of the Agreement.
13. Liability for advice
13.1. Cometti Tyres is only liable for expert advice which is:
(a) within the scope of the Agreement;
(b) inwriting; and
(c) accompanied by a written confirmation stating that Cometti Tyres is qualified to give the advice.
13.2. The Customer acknowledges that Cometti Tyres is not able to provide expert advice outside the scope of the Agreement.
13.3. Cometti Tyres is not liable for any technical advice or assistance given in good faith, but which it is not contractually bound to provide, and which does not fit the criteria set out in clause 7.1.
14.1. The parties agree not to commence proceedings in relation to any dispute arising in regard to the Agreement without first having regard to the procedure set out in this clause 14.
14.2 Should any dispute or difference arise between the Customer and Cometti Tyres in connection with the Agreement, then:
(a) The party that alleges they have suffered some loss or damage, or is otherwise aggrieved, shall serve the other party, by hand or by mail, with a Notice of Dispute in writing adequately identifying and providing details of the dispute.
(b) Within 7 days of receipt of the Notice of Dispute, the parties must meet and take reasonable steps to resolve the dispute.
(c) If the dispute cannot be resolved within 7 days of the meeting between the parties, then the parties agree to submit the dispute to arbitration.
If the dispute remains unresolved 14 days after service of the Notice of Dispute, the dispute must be arbitrated in accordance with this clause 14.
14.3. Arbitration shall be effected by a single arbitrator who shall be mutually agreed upon by the parties or, in the event that they fail to agree within 7 days, then the arbitrator shall be the President for the time being of the WA Chapter of the Institute of Arbitrators and Mediators Australia (“IAMA”)or his appointee.
(a) The parties agree to submit to the arbitration procedures and guidelines adopted by the IAMA.
(b) The rules of evidence will not apply strictly to the arbitration but may be considered by the arbitrator in determining the weight to be attached to each item of evidence.
14.4 If the dispute is not resolved within 90 days of service of the Notice of Dispute (or any longer periods agreed to by the parties), either party who has complied with this clause may end this dispute resolution process by written notice to the other party and immediately thereafter commence court proceedings in relation to this dispute.
15. Credit Notes/Vouchers
15.1. Credit Notes/Vouchers or Gift Cards are valid for 12 months from the date of issue/supply. If you have not used it within 12 months, the balance will be forfeited.