TERMS & CONDITIONS
1.1 In these terms:
(a) “Buyer” means the buyer or any person acting on behalf of and with the authority of the Buyer;
(b) “Force Majeure Event” means any act of god, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party;
(c) “Goods” means Goods supplied by KW Dealer to the Buyer;
(d) “KW Dealer” means KW Dealer ABN: 13 536 150 521 and its successors and assigns;
(e) “Order” means a request for the supply of Goods and/or services in whatever form;
(f) “Price” means the cost of the Goods and the fees for the Services as agreed between KW Dealer and the Buyer subject to clause 4 of these terms.
(g) “Services” means all services supplied by KW Dealer to the Buyer and includes any advice or recommendations;
(h) “Specifications” means the manufacturer’s published specifications for advertised Goods; and
2. ACCEPTANCE OF THESE TERMS
2.1 Any instructions received by KW Dealer from the Buyer for the supply of Goods or Services and/or the Buyer’s acceptance of Goods or Services supplied by KW Dealer shall constitute acceptance of these terms and conditions.
2.2 Where more than one Buyer has placed an order, the Buyers shall be jointly and severally liable for all payments of the Price.
2.3 None of KW Dealer’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of KW Dealer in writing nor is KW Dealer bound by any such unauthorised statements.
3.1 The Goods are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by KW Dealer to the Buyer.
4. PRICE AND PAYMENT
4.1 KW Dealer reserves the right to alter advertised prices without notice.
4.2 At KW Dealer’s sole discretion the Price shall be either;
(a) as indicated on invoices provided by KW Dealer to the Buyer in respect of Goods supplied; or
(b) KW Dealer’s current Price, at the date of delivery of the Goods, according to KW Dealer’s current Price list; or
(c) KW Dealer’s quoted Price (subject to clause 4.2) which shall be binding upon KW Dealer provided that the Buyer shall accept in writing KW Dealer’s quotation within seven (7) days.
4.3 KW Dealer may, by giving notice to the Buyer at any time up to seven (7) days before delivery, increase the Price of the Goods to reflect any increase in the cost to KW Dealer beyond the reasonable control of KW Dealer (including, without limitation, foreign exchange fluctuations, taxes and duties, provisions of any laws enacted after the date of the quotation between the Buyer and KW Dealer and the cost of labour, materials and other manufacturing costs).
4.4 At KW Dealer’s sole discretion a deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods and shall become immediately due and payable.
4.5 Time for payment for the Goods will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be due thirty (30) days following the date of the invoice.
4.6 Payment will be made by cash on delivery, or by cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Buyer and KW Dealer.
4.7 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by KW Dealer.
4.8 KW Dealer reserves the right to request valid identification in order to verify the Buyer’s identity before shipment for any items purchased.
4.9 Invoices must be settled 14 days form invoice date.
4.10 Invoices outstanding for 30 or more days will incur interest.
5. DELIVERY OF GOODS AND SERVICES
5.1 All quoted delivery or consignment dates are estimates only.
5.2 Delivery of Goods shall be made to the Buyer’s nominated address. The Buyer shall make all arrangements necessary to take delivery of the Goods.
5.3 Delivery of the Goods to a carrier, either named by the Buyer or failing such naming to a carrier at the discretion of KW Dealer for the purpose of transmission to the Buyer, is deemed to be a delivery of the Goods to the Buyer.
5.4 The costs of carriage and any insurance which the Buyer reasonably directs KW Dealer to incur shall be reimbursed by the Buyer (without any set-off or other withholding whatever) and shall be due on the date for payment of the Price. The carrier shall be deemed to be the Buyer’s agent.
5.5 KW Dealer may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms.
5.6 Delivery of the Goods to a third party nominated by the Buyer is deemed to be delivery to the Buyer for the purposes of these terms.
5.7 KW Dealer will not be liable for any loss or damage whatever due to failure by KW Dealer to deliver the Goods (or any of them) promptly.
5.8 When “local pickup” is selected as shipping method on checkout the buyer will collect at his own expense at an agreed location within 40 kilometres of Kellyville, NSW, 2155, Australia.
6.1 Title in the Goods sold will only pass to the Buyer on payment in full of all sums due in connection with the supply of all Goods by KW Dealer to the Buyer. In the case of payment by cheque, title will not pass to the Buyer until the cheque is honoured.
6.2 If any of the Goods are incorporated into, or attached to, or mixed with other Goods by the Buyer, so that they are no longer identifiable or separable then title to the composite Goods shall vest in and be retained by KW Dealer in accordance with paragraph 6.1.
6.3 Until such time as ownership of the Goods passes from KW Dealer to the Buyer KW Dealer may give notice in writing to the Buyer to return the Goods or any of them to KW Dealer. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease.
6.4 KW Dealer shall have the right of stopping the Goods in transit whether or not delivery has been made.
6.5 If the Goods are not paid for by the due date KW Dealer may enter upon premises owned, occupied or used by the Buyer, or any premises as the invitee of the Buyer, where the Goods are situated and take possession of the Goods.
6.6 The Buyer is only a bailee of the Goods and until such time as KW Dealer has received payment in full for the Goods and the Buyer shall hold any proceeds from the sale or disposal of the Goods on trust for KW Dealer.
6.7 KW Dealer can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Buyer.
7.1 All risk for the Goods passes to the Buyer on shipment.
8. WARRANTY FOR GOODS
8.1 All products sold by KW Dealer are new from the manufacturer unless stated otherwise.
8.2 Most products carry a manufacturer’s warranty, whereby the Buyer may contact the manufacturer directly if need be.
8.3 KW Dealer is not responsible for faults in the installation or results to the vehicle from the after-market part purchased. The Buyer bears all risk for racing and the modification caused by the after-market parts.
8.4 Some products listed are legal only for racing vehicles which may not be driven on public roads.
8.5 All products shipped by KW Dealer include freight insurance.
8.6 To the fullest extent permissible pursuant to applicable law, KW Dealer disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.
9. DEFECTS IN GOODS
9.1 The Buyer must inspect the Goods on delivery and must within 24 hours of delivery notify KW Dealer of any alleged defect, shortage in quantity, shipping damage or failure to comply with the description or quote. If the Buyer believes the Goods are defective in any way the Buyer must afford KW Dealer an opportunity to inspect the Goods within a reasonable time following delivery. If the Buyer fails to comply with these provisions, the Goods will be deemed to be in accordance with the Order, these terms and conditions and free from any defect or damage. These restrictions do not affect any rights the Buyer has under statute.
9.2 Returns for any reason cannot be made:
(a) without prior authorisation from KW Dealer; and
(b) unless accompanied by a delivery docket showing KW Dealer’s authorisation reference Return Authority Form”.
9.3 KW Dealer will apply a handling charge to any unauthorised return and may return the Goods to the Buyer, at the Buyer’s cost.
9.4 For defective Goods, which KW Dealer has agreed that the Buyer is entitled to reject, KW Dealer’s liability under any warranty implied by law is limited to either (at KW Dealer’s discretion) replacing the Goods or repairing the Goods provided that :
(a) the Buyer has complied with the provisions of clause 9.1;
(b) the Goods are returned at the Buyer’s cost within seven (7) days of the delivery date;
(c) KW Dealer will not be liable for Goods which have not been stored or used in a proper manner;
(d) the Goods are returned in the condition in which they were delivered and with all packaging material in as new condition as is reasonably possible.
9.5 KW Dealer shall be under no obligation to accept Goods for credit and any Goods returned for credit by agreement may incur a handling fee of up to twenty percent (20%) of the value of the returned Goods plus any freight plus GST.
10.1 In consideration for the Buyer paying the Charges, KW Dealer will supply the Buyer with the Services described in the applicable Order and will use all reasonable endeavours to do so by the agreed completion date specified in that Order.
10.2 KW Dealer will not be liable for any delays in delivery caused by matters beyond its control.
10.3 KW Dealer will ensure that the Services are provided in a proper, professional, diligent, timely and workmanlike manner and with due care and skill.
10.4 If the Buyer requests that KW Dealer perform any services outside the scope of an Order, no such additional services will be performed until a further Order is received.
11. WARRANTY FOR SERVICES
11.1 To the extent permitted by law, other than the warranties provided under this clause 11, KW Dealer makes no warranty or representation, express or implied, in relation to the Services.
11.2 If, during the Warranty Period, the Buyer notifies KW Dealer in writing of a Defect in the Services, and returns the relevant Goods, map files or the vehicle to KW Dealer, KW Dealer must, at no cost to the Buyer:
(a) promptly commence rectifying the Defect;
(b) conduct analysis and testing to ensure that the Defect is rectified; and
(c) provide written notification to the Buyer that the Defect has been rectified.
12.1 The Buyer hereby acknowledges that he buys the Goods and the Services relying solely upon his own skill and judgement.
12.2 KW Dealer will not be liable for a Defect that is caused by:
(a) the Buyer, including the failure of the Buyer, or a third party on the Buyer’s behalf to operate the Goods or the vehicle in accordance with the Specifications;
(b) a third party, unless the third party is a contractor or agent of KW Dealer;
(c) a Force Majeure Event;
(d) a modification or configuration of the Goods or the vehicle by the Buyer which has not been authorised by KW Dealer in writing; or
(e) a modification to or the use of the vehicle or any product which interfaces with the Goods by the Buyer which has not been authorised by KW Dealer in writing or not in accordance with the Specifications.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 If any claim arises alleging that the sale, use or any other dealing with the Goods infringes trademarks, trade names patents, copyrights, registered designs or any other industrial property rights of third parties, the Buyer must promptly notify KW Dealer of the claim and give every assistance to KW Dealer in connection with such claims as KW Dealer may reasonably require and must not itself handle, deal with or compromise any such claim except with the written consent of KW Dealer
14. LIMITATION OF LIABILITY
14.1 If clause 102 of the Australian Consumer Law (under the Competition and Consumer Act 2010 (Cwlth)) applies, the Goods come with guarantees that cannot be excluded under the Australian Consumer Law and the Client is entitled to:
(a) a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage; and
(b) have the goods repaired or replaced if the goods fail to be of acceptable quality but the failure does not amount to a major failure.
14.2 KW Dealer’s aggregate liability, whether arising from breach of contract, indemnity, negligence or any other tort, in equity or otherwise and whether or not KW Dealer was advised of the possibility of such loss or damage is limited to the Price payable to KW Dealer under the Order.
14.3 In no event will KW Dealer be liable for any indirect, incidental, special or consequential loss or damage, or for loss of use, revenues, profits, goodwill, bargain or loss of opportunities, anticipated savings or loss or corruption of data, whether arising from breach of contract, negligence or any other tort, in equity, or under an indemnity, warranty or otherwise, and whether or not KW Dealer was aware of the possibility of such loss or damage.
15.1 The Buyer agrees for KW Dealer to obtain from a credit-reporting agency a credit report containing personal credit information about the Buyer in relation to credit provided by KW Dealer.
15.2 The Buyer agree that KW Dealer may exchange information about Buyer with those credit providers named in the application for Credit Account or named in a consumer credit report issued by a reporting agency for the following purposes:
(a) to assess an application by Buyer;
(b) to notify other credit providers of a default by the Buyer;
(c) to exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other credit providers; and
(d) to assess the credit worthiness of Buyer.
15.3 The Buyer agrees that Personal Information provided may be used and retained by KW Dealer for the following purposes and for other purposes as shall be agreed between the Buyer and KW Dealer or required by law from time to time:
(a) provision of Services and Goods;
(b) analysing, verifying and/or checking the Buyer’s credit, payment and/or status in relation to provision of Services and Goods;
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Buyer; and
(d) enabling the daily operation of Buyer’s account and/or the collection of amounts outstanding in the Buyer’s account in relation to the Services and Goods.
16. CUSTOM & PRELOADED TUNES/CALIBRATION
16.1 Charges for custom and pre-loaded tunes are non-refundable.
16.2 The tuning process starts when the tuning device or tune file is first sent to the Buyer or loaded on the Buyer’s vehicle. KW Dealer puts much effort and time into developing each device, and every custom tune. It is expected that the Buyer provides KW Dealer with all required vehicle information, including any modifications, known issues and history. All information is to be provided before KW Dealer starts the tuning process, and the process is usually completed within 14 days.
16.3 KW Dealer responds to most all emails on the same day received, or shortly after. The custom tuning process must be completed within 4 weeks of the date of commencement or 10 tuning files, whichever comes first. It is the Buyer’s responsibility to provide all information and logs required by KW Dealer during this time period.
16.4 Datalogs MUST to be provided within 24hours from when a tune file is sent.
16.5 No hardware modifications must be made to the vehicle during the tuning process. If any hardware changes are made during the tuning process KW Dealer must be made aware of these changes and will incur extra cost.
17. VEHICLE CONDITION
17.1 KW Dealer assumes that all vehicles being programmed are in good working mechanical, electrical and roadworthy condition, and have been reviewed by an experienced and qualified mechanic to ensure that the vehicle is capable of handling additional power and performance. It is the Buyer’s responsibility to ensure this is true.
17.2 Any unforeseen damage that may happen to the vehicle will not be covered or guaranteed by KW Dealer in any way. If anything does not feel normal after loading a tune/calibration, it is the Buyer’s responsibility to immediately return the tune to stock configuration, and notify KW Dealer immediately.
18.1 Once a KW Dealer or any third party product has been installed successfully, the Buyer is fully responsible for the safe function and operation of the car.
18.2 KW Dealer will not be held responsible for improper, unsafe, reckless, or careless driving of vehicles after installing any products.
18.3 Many tuning products are designed for off-road or race use only, and are not for use in on-road vehicles where anti-pollution requirements might be contravened.
18.4 The Buyer acknowledges that he is not relying on KW Dealer’s skill or judgment to select or furnish Goods and/or Services to be suitable for any particular purpose.
18.5 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.
18.6 The Buyer shall not set off against the Price amounts due from KW Dealer.
18.7 KW Dealer reserves the right to review these terms and conditions at any time and from time to time.
18.8 If following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which KW Dealer notifies the Buyer of such change or reflects such on KW Dealer’s invoice or posts the revised terms on KW Dealer’s web site.
18.9 Neither party shall be liable for any default due to a Force Majeure Event.