Terms and Conditions

CATAMAC - Terms and Conditions of Trade - All quotations and invoices are subject to the following conditions

Seller means Catamac Pty Ltd & Filtrex Pty Ltd (trading as Catamac ABN 23 572 024 931) and Buyer means the person or firm whose order for the purchase of goods is accepted by Seller.

1. Acceptance of Buyers Orders: These terms and conditions shall apply to every sales contract and sale of goods between Seller and Buyer. Any Terms and Conditions of Buyer’s order deviating from or inconsistent with these terms and conditions are expressly rejected by Seller. This rejection also extends to any statement by Buyer that Buyer’s terms and conditions shall prevail and to any stipulation by Buyer as to the manner of declaring such rejection.

2. A contract shall only be or be deemed to have been entered into between Seller and Buyer for the supply of goods when, upon an order having been placed upon Seller for goods, that the order has been accepted by Seller (such acceptance of order may be made and communicated by Seller in writing or by overt act of acceptance). The provisions of this clause 2 shall apply to every quotation or offer by Seller for the supply of goods.

3. In the event that the Buyer cancels delivery of goods the Buyer shall be liable for any loss incurred by the Seller (including but not limited to any loss of profits) up to the time of cancellation. The Seller reserves the right to suspend or discontinue the supply of goods to the Buyer. If the Seller is unable to supply all of the Buyer’s order, these terms and conditions continue to apply to any part of the order supplied.

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

5. Price: Where a written quotation has been given by the Seller, the selling price is the price specified in the quotation and may be accepted within 30 days. Unless otherwise stated, the selling price does not include GST. All such prices are subject to variation without prior notice. The Seller may charge a reasonable handling fee for all orders delivered to the Buyer. Prices advertised on the Seller’s website are current at the time of publication, and are subject to change up until an order has been placed by the Buyer.

6. Insurance: The Buyer must effect and maintain insurance with a recognized and reputable public insurance company for goods for their full insurable or replacement value (whichever is the higher) from the time they leave the Seller’s Premises until the time the title in the goods passes to the Buyer.

7. Payment Terms

7.1 Terms of payment for trading accounts only are strictly net 30 days. (i.e. payment is due 30 days from the end of the month of purchase). Payment may be made via EFT, MasterCard, Visa or Amex and cheque is not deemed to be received until funds are cleared at bank. For buy-in or specially procured items payment is required with order. Long block assemblies require payment with order regardless of trading account status. If a Buyer fails to pay any sum to the Seller by the due date then, although no demand for payment may have been made, the sum in respect of which such default is made or so much thereof as shall from time to time remain unpaid shall bear simple interest at the rate which is 2.5% in excess of the maximum rate per annum charged by the Seller’s bank on the due date on overdraft accommodation of the same amount, and such interest shall accrue and be recoverable from day to day. All other transactions, strictly cash. For non-account clients payment may be made via EFT, MasterCard, Visa or Amex.

7.2 The Seller reserves the right to suspend or cancel the supply of further goods and services if the terms of payment are not strictly adhered to by the Buyer, or if the Buyer is in breach of or default under any other subsisting agreement between the Seller and the Buyer.

7.3 If a Buyer with an outstanding amount places an order, the Seller reserves the right to deny the Buyer’s credit facilities.

7.4 All costs and expenses incurred by the Seller in recovering any outstanding money (including, without limitation, debt collection agency fee or lawyer’s costs) shall by paid by the Buyer.

7.5 To the extent permitted by law, the Seller reserves the right in its absolute discretion to decline credit or terminate existing credit arrangements with the Buyer.

8. Product Part No’s etc: Manufacturers’ names, part number/s and descriptions on invoice, brochure, website, catalogue or any other document are for reference purposes only and do not in any way imply anything referred to is the product of an original equipment manufacturer.

9. Confirmation orders: Confirmation orders must be marked as such by Buyer. If not, Seller will consider Buyer’s order as original.

10. Claims, Returns and Credits: No claim for breakages, damage or shortages will be considered unless notified to the Seller within seven (7) days (or fourteen (14) days where delivery of the goods is outside Australia) of the date of the invoice. Goods may only be returned for credit subject to prior agreement with the Seller and then under the following conditions:

(a) Goods returned for credit will only be accepted if freight is pre-paid and the goods are in original packaging and re-sale condition. A 10% service fee of the price of the goods will be charged. No returns accepted after 21 days.

(b) Breakages or damage caused in transit to or from the Buyers premises (including a destination of Buyers direction) will forfeit any credit.

(c) Under no circumstances will goods be accepted for credit where the goods have been specially ordered at the Buyer’s request whether procured locally or overseas.

11. Limitation of Liability

11.1 The Seller warrants to the Buyer that engine components (bearing the brand names Empower, Catamac, Mahle or Clevite) and filters will be free from defects in materials or workmanship when installed, maintained and used correctly:

(a) for a period of 12 months from date of invoice for any new part (6 months for water pumps and replacement only);

(b) 6 months for remanufactured items and new assemblies (e.g. engines and cylinder heads); and

unless stated otherwise at point of sale.

11.2 All new parts are sold subject to the absolute discretion of the manufacturer/supplier’s warranty (if any) and can be applied without cost to the Seller, whom will take all reasonable action to pass on the benefit of any such manufacturer/supplier’s warranty to the Buyer.

11.3 Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

11.4 Provisions of Schedule 2 of the Competition and Consumer Act 2010 (Cth) (as amended or replaced from time to time) (Australian Consumer Law) and other laws in force from time to time in Australia may imply warranties or conditions or impose obligations on the Seller. The warranties offered by the Seller as set out above are provided in addition to any rights the Buyer may have pursuant to the Australian Consumer Law.

11.5 If any action is brought against the Seller pursuant to Part 5.4 Division 1 of the Australian Consumer Law, the Supplier’s liability will be as prescribed in Part 5.4 Division 1 of the Australian Consumer Law. If any other provisions of the Australian Consumer Law imply warranties or conditions or impose obligations on the Seller, the Seller’s liability will be limited, at the Seller’s sole discretion, to either:

(a) the replacement of the goods or the supply of equivalent goods;

(b) the repair of the goods;

(d) the payment of the cost of having the goods repaired.

11.6 In order to make a claim pursuant to these terms and conditions, the Buyer must first contact the Seller at 11-13 Phillips St Thebarton SA 5031 or on +618 8416 7777 or [email protected] and prior to the Buyer’s admission or acknowledgement of a claim to any 3^rd party. The Buyer’s claim will automatically be denied if the Buyer manages the claim himself, disregards the Sellers direction and requests or admits to or acknowledges a claim to any 3^rd party prior to the Seller having opportunity to provide input and assess the alleged defect. The Seller has the right to give direction at this point. Prior to disconnecting any connection of the engines wiring harness, a full download from the engine’s ECM computer giving all historical data, in particular fault codes is required by Seller. A representative oil/fuel sample may be required. The Buyer must provide in writing the sequence of events that lead to the defect, including dates and mileage or hours accumulated in relation to the allegedly defective goods, and the reason why he/she believes the defect warrants a claim. Supporting documentation and photos may also be required, at the Seller’s discretion. The Seller will advise whether the part or parts subject to the claim need to be returned, and if so, the address where to send them. Catamac reserves the right to supply replacement parts should they be required. To the extent permitted by law, the Seller will not be responsible for any costs incurred by the Buyer arising out of or in relation to making a claim under these terms and conditions, including without limitation, postage, freight, telephone or other costs associated with the delivery of the goods to the Seller.

11.7 The onus of proving a part is defective rests with the Buyer, who must prove the defect exists, and did not result from, but not limited to, the following: the installation procedure, parent component reuse and repair/restore, engine start-up and run-in procedure, lack of maintenance, overheating, the use of low excise fuel, crankcase oils and/or fuels, incorrect oils and fuels, continued operation of the engine after a defect became apparent, the malfunction, defect or imbalance of some other part in or associated with the engine, non-replacement of co-dependent or co-related part/s or usage of the part/s otherwise than in accordance with the purpose for which that part was manufactured and supplied, or non-adherence of the Sellers instructions or both.

11.8 To the extent permitted by law, the Seller is not liable in any way whatsoever for any consequential loss or damage arising out of any use or dealing with the goods.

12. Risk: Risk in the goods shall pass to the Buyer:

(a) at the point of delivery;

(b) when the goods come into the Buyer’s custody, including its carrier or forwarder; or

13. Property: Property in and legal beneficiary ownership of the goods shall remain with the Seller until the Buyer has made payment in full in cleared funds of the contract price of those goods and any other money owing by the Buyer to the Seller, and pending such payment the Buyer shall hold the goods as fiduciary bailee and agent for the Seller.

14.1 Processed or commingled goods: The Buyer agrees to retain the goods in a manner such that they are readily identifiable as Seller’s property, not in any way deal with, or part with possession of, the goods or part thereof or attempt to do so, handle and store the goods with due care and not use the goods for any other purpose whatsoever. For the avoidance of doubt and without prejudicing the Seller’s rights under the PPSA if the Buyer processes the goods or commingles the goods with other property in which case the Seller will have a Secured Interest in any processed and commingled goods. If the Buyer sells the goods to its Buyers, then the Seller will have a Security Interest in the proceeds of sale. The Buyer receives all proceeds (including any proceeds from insurance claims) in trust for the Seller and must keep the proceeds in a separate bank account until all liability to the Seller is discharged.

14.2 Personal Properties Securities Act 2009 (Cth) (“PPSA”): The Buyer acknowledges and agrees that by assenting to these terms and conditions, the Buyer grants a Security Interest (by virtue of the provisions of this clause 14) to the Seller in all goods previously supplied by the Seller to the Buyer (if any) and all other goods that will be supplied in the future by the Seller to the Buyer (or to your account) during the continuance of the relationship between the Seller and the Buyer. The Buyer undertakes to sign any further documents and/or provide any further information, (which information the Buyer warrants to be complete, accurate and up to date in all respects), or do any other things that the Seller reasonably requires (such as obtaining consents, completing, signing and producing documents and supplying information):

(a) to perfect and maintain the perfection of the Seller’s Security Interest (including by registering a financing statement or financing change statement on the Personal Property Security Register (“ PPSR”)) and ensuring that the Security Interest is enforceable, perfected and otherwise effective;

(b) for the purpose of enabling the Seller to apply for any registration, or give any notification, in connection with a Security Interest so that it obtains the priority reasonably required by the Seller; and

The Buyer agrees to:

(a) meet its own costs together with all of the reasonable costs of the Seller (and its legal advisers) in connection with this clause 14 and will indemnify and upon demand reimburse the Seller for all expenses incurred in registering a financing statement or financing change statement on the PPSR or releasing goods charged by a financing statement or financing change statement;

(b) not register a financing change statement or a changed demand in respect of the goods without prior written consent of the Seller; and

(c) give to the Seller 14 days prior written notice of any proposed change in the Buyer’s name and/or any other change in the Buyer’s details (including, but not limited to changes in the Buyer’s address, facsimile number, email address, or business practice) and immediately advise the Seller of any material change in its business practices of selling the goods which would result in a change in the nature of proceeds derived from such sales.

The Security Interest will continue until the Buyer has paid all amounts owing.

14.3 Contracting out and Waiver: Without limiting any other provision of these terms and conditions the Seller is not required to give any notice under the PPSA (including a notice of a verification statement under section 157(3) of the PPSA in respect of any financing statement or financing change statement relating to the Security Interest) unless the notice is otherwise required by the PPSA.

To the fullest extent permitted by the PPSA, the Seller and the Buyer contract out of section 115, except section 115(g) in relation the Seller’s right to seize collateral, of the PPSA and the Buyer agrees to waive its rights referred to in sections 115(1).

Pursuant to section 123 of the PPSA, if the Buyer defaults in payment of the contract price or any other money owing by the Buyer to the Seller, the Seller and its nominees shall have the right to enter the premises where the goods are believed to be stored to take possession of all or any of the goods, and for this purpose the Buyer shall grant or cause to be granted reasonable access rights and the Seller shall be entitled to do all things required to secure possession without liability for the tort of trespass, negligence or payment or any compensation of the Buyer whatsoever.

14.4 Definitions: For the purposes of this clause 14, unless something else is clearly indicated,

PPSA means the Personal Property Securities Act 2009 (Cth), any regulation made at any time under the PPSA (each as amended from time to time) or any amendment made at any time to any other legislation as a consequence of the PPSA;

Security Interest means:

(a) security interest under the PPSA or security for the payment of money or performance of obligations, including a mortgage, pledge, lien, charge, assignment by way of security, hypothecation, secured interest, title retention arrangement, preferential right, trust arrangement or other arrangement (including, without limitation, any set-off or "flawed-asset" arrangement) having the same or equivalent commercial effect as a grant of security;

(b) a purchase money security interest, whereby a security interest taken in collateral, to the extent that it secures all or part of a purchase price; or

15. Delivery Time: Seller may deliver the goods by installments or partial shipments and Buyer will accept each delivery. Requirements of Buyer shall not be a condition of the essence of the contract. Seller shall be under no liability for direct or consequential loss or damage to Buyer arising from delay or postponement in delivery.

16. Clerical errors: Clerical errors in computations, typing or otherwise of catalogue, quotation, acceptance, offer, invoice, delivery docket, credit note & specification of Seller shall be subject to correction.

17. Laws: The laws of South Australia apply to these Terms and Conditions and any account opened in the name of the Buyer.

These Terms and Conditions include standard Terms and Conditions of Contract of Seller.