Cummins Used parts and equipment are sold in a where is as is condition.
Any warranty offered will be specified on that particular item.
TERMS AND CONDITIONS APPLYING TO THE SALE OF GOODS AND SERVICES
Cummins South Pacific Pty Ltd (ABN 42 006 332 949) Trading as "Cummins"
1. DEFINITIONS
In these terms and conditions:
(a) "Debt" means all monies owing to the Seller from the Purchaser, including any amounts due in accordance with Clause 12;
(b) "Goods and/or Services" means all goods, chattels, labour, work performed, plant, equipment, machinery, stores, parts or components sold by the Seller;
(c) "Manufacturer" means the maker or makers of Goods (or any part or component of the Goods) sold by the Seller;
(d) "Purchaser" means the person, firm or corporation to whom the Goods are sold; and
(e) "Seller" means Cummins South Pacific Pty Ltd (ABN 42 006 332 949) trading as "Cummins".
(f) "User Manual" means manuals, instructions and other documents which provide information on usage and operation which are supplied to the customer in relation to Goods or Services.
2. CONDITIONS TO APPLY
2.1. Unless otherwise agreed in writing, Goods and/or Services are supplied by the Seller only on these terms and conditions which shall become part of the contract ("Contract") between Seller and Purchaser with respect to the Goods and/or Services and which shall apply to the exclusion of any terms or conditions contained in any written order or confirmation provided by the Purchaser. The giving by the Purchaser of any delivery instructions for the Goods and/or Services or any part thereof or the acceptance by the Purchaser of delivery of the Goods and/or Services or any part thereof or any conduct by the Purchaser in confirmation of the transaction after receipt by the Purchaser of the Seller’s acceptance shall constitute unqualified acceptance by the Purchaser of these terms and conditions.
2.2. All descriptive matter and specifications, drawings and particulars of weights and dimensions submitted with or prior to any quotation of the Seller or contained in the Seller’s catalogue, price lists or advertising matter are intended merely to present a general idea of the Goods and/or Services described therein, and none of these shall form part of the Contract.
3. DELIVERY
3.1. All reasonable efforts will be made by the Seller to complete and deliver the Goods within seven (7) days of notifying the Purchaser that the Goods are ready for delivery but time shall not be of the essence and no penalty or damages will be incurred by the Seller for late delivery or failure to deliver the Goods or any part thereof due to:
(a) acts of God, strikes, lockouts, trade disputes, fire, breakdowns, interruption of transport, government action or any other cause whatsoever outside the Seller’s control; or
(b) any acts, omissions, neglect or default of the Seller, its servants or agents; or
(c) any breach by the Seller, its servants or agents of any term of the Contract.
3.2. The Purchaser shall accept delivery in accordance with any quotation and if the Purchaser fails to do so within fourteen (14) days after being requested to accept delivery by the Seller, the Goods shall be deemed to have been delivered upon the expiration of that period and shall be thereafter at the risk of the Purchaser, who shall pay the Seller upon demand for costs incurred thereafter by the Seller in relation to the Goods provided that the Seller is under no obligation to store or insure or care for the Goods after that expiration.
4. SPECIFICATIONS
4.1. The Purchaser may provide specifications to the Seller with the written order for the Goods and/or Services.
4.2. If before the manufacture of the Goods the Manufacturer modifies its specification the modified specification shall be substituted for any specification in the quotation and:
(a) the Purchaser shall accept the Goods as manufactured in accordance with the modified specification in satisfaction of the Seller’s obligations under the Contract; and
(b) the Purchaser shall pay any increase in the Manufacturer’s prices resulting from such modifications.
5. TITLE
5.1. Title to the property in the Goods shall not pass to the Purchaser until the Purchaser has paid to the Seller, by way of cleared funds, the Debt.
5.2. Until payment, by way of cleared funds, of the Debt, the Purchaser will hold the Goods as bailee for the Seller and is to insure the Goods and store them with all proper care. The Purchaser hereby indemnifies the Seller against any loss or damage to the Goods howsoever arising.
5.3. The Purchaser may sell the Goods by way of bona fide sale at full market value and in the ordinary course of the Purchaser’s business. The proceeds of such sale will be held on trust for Seller in a separate account, or otherwise clearly identified in the books and records of the Purchaser. Any rights against the Purchaser’s customers arising as a consequence of the sale of Goods and the proceeds of such a sale will be held on trust for the Seller, payable immediately on demand.
5.4. The Purchaser must, on request, disclose to the Seller all relevant information regarding the Goods and any sub-sale by the Purchaser.
5.5. The Purchaser must inform the Seller immediately of any levy of execution or attempt to levy execution by any third party against the Goods, the title to which is reserved to the Seller hereunder.
5.6. In the event that:
(a) the Seller receives notice of or reasonably believes that a third person may attempt to levy execution against the Goods; or
(b) the Purchaser becomes unable to pay its Debts as and when they fall due; then the Seller may at any time without notice to the Purchaser terminate any provision of these terms and the bailment referred to in sub-clause 5.2, and enter upon any premises owned or occupied by the Purchaser where the Seller reasonably believes the Goods may be stored, repossess the Goods without being liable for any damage caused, and subsequently dispose of the Goods at the Seller’s discretion.
5.7. If the Purchaser incorporates or mixes the Goods with any other items to create new products (the "Products") such that the Goods are not a readily identifiable and removable part of the products, then until the Debt has been paid:
(a) the Purchaser shall store the Product separately so as to be readily identifiable;
(b) the Seller shall have title to the Products; and
(c) this clause 5 shall apply as if references to "Goods" were references to "Products".
In the event that the Goods are sold by the Seller following repossession under this clause 5, any excess of the proceeds of the sale (less expenses of repossession and sale over the costs of the Goods) as supplied to the Purchaser shall be paid to the Purchaser, after all the Debt has been paid.
5.8. The Purchaser:
(a) grants a first ranking security interest and purchase money security interest ("PMSI") in all Goods, and all proceeds from the sale of the Goods, for the purposes of the Personal Property Securities Act 2009 (Cth) (and all regulations made pursuant to it) ("PPSA");
(b) will do all things necessary (including executing all documents the Seller requires) and provide all relevant information to enable the Seller to register a financing statement or financing change statement in relation to the Goods on the Personal Property Securities Register or otherwise perfecting the Seller's interest in the Goods; and
(c) waives the right to receive any verification statement.
5.9. The parties agree that the notice requirements under sections 95, 96, 123, 125, 126, 128, 129, 130, 132(3) (d), 132(4), 134(1), 135, 142 and 143 of the PPSA shall not apply.
6. RISK
The risk of any loss or damage to or deterioration in the Goods from whatever cause arising shall pass to the Purchaser immediately upon delivery into the hands of the Purchaser, its agents or employees or deemed delivery pursuant to clause 3.
7. LIEN
The Seller reserves the right to retain the Goods until payment, by way of cleared funds, has been received in full.
8. NO REPRESENTATIONS
Except for any conditions or warranties issued in writing by the Seller, the Purchaser agrees that it has not relied on any inducement, representations or statements made by or on behalf of the Seller in acquiring the Goods and/or Services.
9. LIMITATION OF LIABILITY: NON-DOMESTIC GOODS
In the case of Goods and/or Services which are supplied by the Seller to a consumer within the meaning of the Competition and Consumer Act 2010, to the extent that the Goods and/or Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the liability of the Seller shall be limited, at the option of the Seller to:
(a) the replacement of the Goods or the supply of equivalent Goods; or
(b) the cost of repair or replacement of the Goods; or
(c) the re-supply of services or the cost of re-supplying them again, and without limiting the generality of the foregoing, shall not include any other liability in respect of, arising out of or in connection with any loss of profits or revenues, special, consequential, direct or indirect loss, damage, harm or injury suffered or incurred as a result of such breach.
10. LIMITATIONS OF LIABILITY: NON-CONSUMER TRANSACTIONS
Any claim for defective Goods must be made in writing to the Seller within seventy-two (72) hours after delivery. The Goods in respect of which any such claim is made shall be preserved intact as delivered for a period of fourteen (14) days after such notice is given within which time the Seller shall have the right to attend and inspect the same. Any breach of this condition shall disentitle the purchase to any consideration of such claims. The Seller shall not be liable to make good any expenditure, damages and/or loss arising out of any user or dealing with the Goods howsoever such expenditure, damages or loss shall arise and whether from any defect in the Goods or otherwise the Seller's liability being strictly limited to further repair of the Goods on the Goods being returned to the Seller.
11. GOODS NOT IN ACCORDANCE
Subject only to the application of any statutory rights, guarantees, conditions and warranties implied or imposed by the Competition and Consumer Act 2010 which cannot be modified or excluded, the Purchaser shall within fourteen (14) days of delivery or deemed delivery of the Goods give notice in writing to the Seller of any matter or thing by reason whereof the Purchaser alleges that the Goods are not in accordance with the Contract, failing which the Goods shall be deemed to be in all respects in accordance with the Contract and the Purchaser shall be bound to accept and pay for the Goods accordingly. Where the Goods are returned within the period of fourteen (14) days, the Seller shall refund the price (if already paid) less 10% thereof.
12. PRICE
12.1. Unless otherwise stated in writing, all quoted prices are for delivery at the place specified in the quotation (if any) and are payable without discount or allowance.
12.2. The Purchaser shall pay to the Seller in addition to the quoted or list price:
(a) all packaging costs;
(b) all taxes, duties and charges whatsoever imposed by any government or other authority and payable in respect or by reason of the sale or delivery of the Goods/and or Services or any part thereof whether or not the same were payable at the date of the quotation or order and including (without prejudice to the generality of the foregoing) charges for import, export or currency licenses, sales, consumption, turnover or purchase taxes and duties of customs and excise;
(c) the amount of any increase in the cost of the Seller of supplying or delivering the Goods and/or Services or any part thereof occurring after the date of quotation or order for any reason whatsoever including (without prejudice to the generality of the foregoing) changes in Manufacturer’s prices, rates of exchange, landing charges and port dues and the cost of carriage, insurance and handling;
(d) any increase in the cost to the Seller arising from delivery of the Goods and/or Services to a place at a time or in a manner other than that specified in the quotation or order resulting from any request made by the Purchaser or any other reason whatsoever beyond the control of the Seller;
(e) merchant’s fees, including merchant’s fees charged to the Seller in respect of payments received by credit card or other form of credit facility;
(f) any excess over the amount allowed by the Seller in quoting the price actually incurred by the Seller in respect of freight and insurance or port dues or handling charges at any port to which the Goods are to be shipped which is not regularly served without trans-shipment by a line of steamers; and
(g) any excess over the amount allowed by the Seller in quoting the price for supplying or delivering the Goods and/or Services where such excess results from any error or omission on the part of the Seller, its servants or agents affecting the price or its calculation.
12.3. The purchase price shall be paid by the Purchaser to the Seller in full within thirty (30) days of the delivery notification and the Purchaser shall not be entitled to withhold payment or make any deduction from the price in respect of any set-off or counter-claim.
12.4. If the Purchaser fails to pay the purchase price or any other expenses required under clause 12.3 as aforesaid, the Seller shall be entitled (without prejudice to any other right hereunder):
(a) to charge interest thereon from the date when due until payment at the rate of two per centum (2%) above the maximum overdraft rate of the Seller’s bankers for the time being in force; and
(b) to give the Purchaser written notice that the Seller intends to retake possession of the Goods and to resell the Goods within a stated period being not less than seven (7) days. If the Purchaser fails within that period to pay the purchase price (and interest thereon) the Seller shall be entitled to retake possession of the Goods (and for that purpose the Purchaser irrevocably licenses the Seller to enter upon any premises where the Goods may be situated for the purposes of removing the Goods and the Purchaser indemnifies the Seller against any action, claim or demand arising out of any
act lawfully done by the Seller in the exercise of its powers hereunder) and to resell the Goods and shall be released from all obligations under the Contract and the Purchaser shall pay to the Seller:
(i) charges for and incidental to the storage and handling of the Goods until their delivery under the resale;
(ii) interest on the purchase price of the Goods from the date when due until payment upon their resale at the rate of two per centum (2%) above the maximum overdraft rate of the Seller’s bankers for the time being in force;
(iii) the amount, if any, by which the purchase price on resale is less than the purchase price hereunder;
(iv) the balance of any expenses incurred by the Seller in making delivery under resale of the Goods over and above normal delivery expenses incurred by the Seller on such delivery; and
(v) the Seller’s gross profit on the sale to the Purchaser who acknowledges that the resale has deprived the Seller of a probable customer for other like Goods.
13. EXCLUSION OF CONSEQUENTIAL LIABILITY
13.1. Subject only to terms implied or imposed by the Competition and Consumer Act 2010 or rights of action created thereunder which cannot be excluded or modified, the Seller shall not be responsible or liable for damage, injury or loss of any kind whatsoever, to any property or persons howsoever caused arising out of or in connection with the installation or use of the Goods and/or Services by the Seller or any third party whether such loss arises directly or indirectly.
13.2. The Purchaser shall indemnify and hold harmless the Seller for any loss or damage caused by the Seller, its agents, sub-contractors, or employees in removing the Goods and/or Services in accordance with clause 12.4 unless such loss or damage was caused by the negligence of the Seller, its agents, sub-contractors or employees.
14. WARRANTIES AGAINST DEFECTS
14.1 In the event the goods are defective while under warranty, Cummins will replace or repair the defective goods at Cummins’ option and expense. The Purchaser will not be entitled to a warranty claim if the goods are misused or not used in accordance with the User Manual and which are outside the warranty period as applicable in the warranty as updated from time to time relevant to the goods or services purchased.
14.2 Warranties against defects are provided by Cummins South Pacific Pty Ltd of 2 Caribbean Drive, Scoresby, Victoria (03) 9765 3222. Warranty claims should be directed to your closest Cummins authorised dealer or branch, or call 1300CUMMINS.
14.3 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 for 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.
14.4 This warranty is in addition to other rights and remedies available to the Purchaser under the law.
15. INTELLECTUAL PROPERTY
15.1. If the Purchaser provides to the Seller specifications, designs, plans, descriptions, prototypes, samples, tooling or components for or in relation to the Goods and/or Services or their manufacture or delivery, the Purchaser shall indemnify the Seller against any claims, actions, demands, costs, damages or expenses arising from or incurred by reason of any infringement or alleged infringement of any registered or unregistered patent, design or trade mark or name, or any copyright, rights in respect of confidential information or other protected or proprietary rights arising from the supply or use of such specifications, designs, plans, description, prototype, samples, tooling or components. The Seller shall not be required to defend any action, claim or demand or to contest any costs or expenses covered by this indemnity before it shall be entitled to the benefit of this indemnity.
15.2. The copyright, patent rights, design rights and all other intellectual property rights in respect to or contained within the Goods and/or Services or in any drawing, plan, prototype or specification in relation to the Goods and/or Services or their manufacture which have been developed by or on behalf of the Seller shall remain the property of the Seller and no transfer to the Purchaser of any such rights is included in the price paid or agreed to be paid whether or not such price includes an amount for designing or producing the Goods and/or Services. All such items and all documents, information, systems and know-how provided to or disclosed to the Purchaser by the Seller and marked or described as "Confidential" or "Commercial in Confidence" shall be treated as confidential by the Purchaser and items, the Purchaser shall not loan, copy, use, dispose of or sell such items, documents, information, systems, or know-how without the prior written consent of the Seller.
16. LICENSES
If it is necessary for the lawful fulfilment of any Contract:
(a) for the Purchaser to hold or obtain any import, export, currency or other license, consent or authority ("license"), the Purchaser shall be obliged to obtain the license; or
(b) for the Seller to hold or obtain any such license, the Seller shall apply for it but if it is refused, the Contract shall forthwith come to an end and neither the Seller nor the Purchaser shall be under any liability in respect thereof.
17. APPLICABLE LAWS
These terms and conditions and any Contract formed under them shall be construed in accordance with and be governed by the laws of the State of Victoria and the parties agree to submit all disputes arising between them to the courts of such state and any court competent to hear appeals therefrom.
18. STATUTORY RIGHTS
Nothing in these terms and conditions excludes, restricts or modifies any condition, warranty, statutory guarantee, right or remedy implied or imposed by statute, regulation or common law which cannot be lawfully excluded, restricted or modified, which may include the Competition and Consumer Act 2010 (including the Australian
Last updated 08/02/12
Consumer Law) and corresponding provisions and relevant laws of State or Territory legislation.
19. NO WAIVER
No failure to exercise and no delay in exercising any right, power or remedy under these terms will operate as a waiver. Nor will any single or partial exercise of any other right, power or remedy preclude any other or further exercise of that or any other right, power or remedy.
20. SEVERABILITY
Any provision of any of these terms which is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of these terms nor affect the validity or enforceability of that provision in any other jurisdiction.
TERMS AND CONDITIONS APPLYING TO THE REPAIR OF GOODS
Cummins South Pacific Pty Ltd (ABN 42 006 332 949) Trading as "Cummins"
1. APPLICATION
These terms and conditions shall apply to all Goods submitted to the Repairer for repair and shall prevail over any conflicting conditions presented by the Owner. Unless expressly acknowledged by the Repairer in writing, any variation to these terms and conditions is not accepted and will be treated as inapplicable.
2. DEFINITIONS
In these terms and conditions:
(a) "Contract" means the contract for repair of Goods constituted by acceptance of the Owner's order by the Repairer;
(b) "Goods" means any goods of the Owner which the Repairer has agreed to repair;
(c) "Manufacturer" means the maker or makers for whom the repairs are undertaken;
(d) "Owner" means the person presenting the Goods for repair; and
(e) "Repairer" means Cummins South Pacific Pty Ltd (ABN 42 006 332 949) trading as "Cummins".
3. QUOTATIONS
A quotation is open for acceptance by the Owner in writing within thirty (30) days after the date of the quotation or within such further time as the Repairer may agree in writing. If not accepted, it will be deemed to have been withdrawn. If accepted subject to variation, the price and delivery dates originally quoted will not necessarily remain effective. The Contract constituted by such acceptance shall be upon and subject to these terms and conditions and no others not withstanding that the said acceptance may purport to be upon different or additional terms.
4. ESTIMATED REPAIR TIME
Any date quoted for completion for the repair is estimated and the Repairer will not be liable for any loss or damage caused by delay in providing the service. Where the Repairer is unable to repair the Goods because of accidents to machinery, differences with workmen, strikes, lockouts, breakdowns, labour shortages, fires, floods, priorities required or requested by any government or agencies thereof, delays in transportation, lack of transportation facilities or restrictions imposed by any laws or any cause beyond the control of the Repairer, then the estimated date of completion of the repair shall be extended until the cessation of the effect of such matter or matters.
5. INDEMNITY
Subject only to terms implied or imposed by the Competition and Consumer Act 2010 or rights of action created thereunder which cannot be excluded or modified, the Owner shall indemnify and save the Repairer from the following:
(a) all claims, demands, penalties, suits, costs, charges, losses, judgements and expenses to which the Repairer may become wholly or partially liable through any work required to be done by the Repairer or Goods or materials to be supplied by the Repairer in accordance with the Owner's specifications, orders or otherwise and involving an infringement or alleged infringement of any patent, registered design, copyright or trade mark;
(b) all claims for loss, damage, death or injury sustained by the Repairer, its employees or any person whomsoever by reason of any defect in design, material, manufacture or workmanship of the Goods, whether the same be caused by the sole negligence of the Repairer or otherwise;
(c) all claims for loss, damage, death or injury arising from the existence of defects in machinery or equipment used by the Repairer, its employees, servant and agents (in accordance with clause 14) as are not notified to the Repairer or from the operation of any equipment, machine or any part thereof or from any combination of both causes.
6. CANCELLATION OF ORDERS
Orders cannot be countermanded, terminated or cancelled under any circumstances except with the written consent of the Repairer and upon terms that will indemnify the Repairer against all loss and damages.
7. COST OF REPAIRS
The cost of repairs and services shall be the list price on completion of the repairs or as quoted on the Repairer's quotation.
8. CANCELLATION
The Repairer may cancel the Contract or suspend or continue delivery hereunder at the Repairer's discretion and the Repairer reserves all rights to recover any loss or damages consequent upon any such cancellation or suspension due to any of the following:
(a) in case of death, incapacity, bankruptcy or liquidation of the Owner;
(b) suspension of payment;
(c) the making of any agreement with creditors on the part of the Owner;
(d) any non-payment punctually for any delivery tended;
(e) any failure by the Owner to make any payment, by way of cleared funds, or to meet any obligation under this or any other Contract or obligation to the Repairer;
(f) if the Owner rejects any delivery; or
(g) if a receiver is appointed in respect of the Owner's business or assets.
9. PRICES
Prices quoted are for delivery of the Goods at the place specified on the quotation and are payable, by way of cleared funds, without discount or allowance. Prices quoted do not include any of the following items which (if incurred by the Repairer)
must be paid, by way of cleared funds, by the Owner to the Repairer in addition to and at the same time as the prices quoted:
(a) freight, insurance and all other charges whatsoever borne by the Repairer by reason of or arising out of the Repairer's compliance with any request by the Owner for or which for any reason beyond the control of the Repairer results in delivery elsewhere than the place specified;
(b) packing costs;
(c) the amount of all increases in costs to the Repairer by reason of any change after the date of quotation in:
(i) Manufacturers' prices;
(ii) labour cost;
(iii) equipment or material costs;
(iv) rates of exchange; or
(v) charges for carriage or insurance including costs of handling, landing charges and port dues;
(d) all taxes whether or not in force at the date of the quotation or order in respect of the sale or delivery of the Goods including:
(i) charges for import, export or currency licenses;
(ii) consumer, sales, turnover or purchase taxes; or
(iii) duties of customs or excise and for any other charge or impost whatsoever by any government or governmental authority;
(e) merchant’s fees, including merchant’s fees charged to the Repairer in respect of payments received by credit card or other form of credit facility; or
(f) any expenses incurred as a result of any delay in delivery resulting from the need of the Owner to obtain a license pursuant to clause 11 hereof.
The price for the repair of the Goods shall be paid by the Owner to the Repairer in full within thirty (30) days of the delivery notification and the Owner shall not be entitled to withhold payment or make any deduction from the price in respect of any set off or counter claim.
10. CHANGES IN SPECIFICATION
If before the Repairer commences to perform its part of the Contract, the Manufacturer modifies the specification for any Goods to be used in the repair of the Goods which are then manufactured in accordance with the new specification, then that specification shall be substituted for the specification of the Goods that has been used in the quotation and neither the Manufacturer nor the Repairer shall be under any obligation to the Owner by reason of such change of specification. If any such change of specification shall result in an increase in the Manufacturer’s prices, such increases shall be borne by the Owner in accordance with the provisions of clause 9 hereof.
11. LICENSE AND PERMISSIONS
If for the lawful fulfilment of any Contract, it shall be necessary for the Owner to hold or obtain any import, export, currency, or any other license ("License"), it shall be a condition of the Contract that the Owner shall obtain the license. If it shall be necessary for the Repairer to hold or obtain a license, the Repairer shall apply for it but if it is refused, then the Contract shall be deemed discharged and neither the Owner nor the Repairer shall be under any liability in respect thereof.
12. UNCOLLECTED GOODS
Subject to any legislation governing the sale of uncollected Goods which might be applicable, the Repairer will notify the Owner when the repairs will be completed and the Owner will collect the repaired Goods from the Repairer within forty eight (48) hours of being advised that the Goods are ready for delivery. Delivery is deemed to take place on collection of the said Goods by the Owner and the Owner shall pay, by way of cleared funds, for the Goods before taking delivery. Storage charges will be made on Goods which are not collected within seven (7) days of notification to the Owner of completion of repairs. The Repairer reserves the right to recover outstanding monies should the repaired Goods not be collected by the Owner within three (3) months of repair completion.
13. RIGHT TO SUB-CONTRACT
Subject only to terms implied by the Competition and Consumer Act 2010 or rights of action created thereunder which cannot be excluded or modified, the Repairer may sub-contract any work to any person, firm or Repairer without notifying the Owner thereof and shall not thereby become liable for any delay, damage, loss, failure or any other matter, cause or thing whatsoever which shall occur or arise as a result of such sub-contracting either before or at any time after delivery.
14. NO OTHER DEFECTS
The Owner hereby grants to the Repairer and its employees, servants and agents authority and permission to operate any equipment, machine or any part thereof in any manner whatsoever for the purposes of repairing the Goods and certifies that there are no defects whatsoever in such equipment, machines or any part thereof other than of those notified to the Repairer at the time of placing the order of repair.
15. NO REPRESENTATION
In case of services which are supplied by the Repairer to a consumer within the meaning of the Competition and Consumer Act 2010, the Owner agrees that it has not relied on any inducement, representation or statement made by or on behalf of the Repairer in requiring the services, except for any conditions or warranties issued in writing by the Repairer.
16. LIMITATION OF LIABILITY: NON-DOMESTIC GOODS
In case of services which are supplied by the Repairer to a consumer within the meaning of the Competition and Consumer Act 2010, to the extent that the services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the liability of the Repairer shall be limited, at the option of the Repairer, to the re-supply of the services or the cost of re-supplying them, and without limiting the generality of the foregoing, shall not include any other liability in respect of, arising out of or in connection with any loss of profits or revenues, special,
consequential, direct or indirect loss, damage, harm or injury suffered or incurred as a result of such breach.
17. PASSING OF RISK
Goods delivered to the Repairer remain at the Owner's risk and subject to clause 16, the Repairer shall not be liable for any loss or damage to the Goods in the Repairer's possession whether caused by the negligence of any of the Repairer's servants, agents or employees or any other cause whatsoever.
18. LIMITATION OF LIABILITY: NON-CONSUMER TRANSACTIONS
In the case of services which are supplied by the Repairer to a person or corporation who or which is NOT a consumer within the meaning of the Competition and Consumer Act 2010:
(a) any claim for defective Goods or workmanship must be made in writing to the Repairer within seventy two (72) hours after delivery. The Goods in respect of which any such claim is made shall be preserved intact as delivered for a period of fourteen (14) days after such notice is given or within which time the Repairer shall have the right to attend and inspect the same. Any breach of this condition shall disentitle the Owner to any consideration of such claim. The Repairer shall not be liable to make good any expenditure, damages and/or loss (including loss of profit for downtime) arising out of any user or dealing with any Goods repaired pursuant to any Contract, howsoever such expenditure, damage or loss shall arise and whether from any defect in the Goods or otherwise howsoever, the Repairer's liability shall be strictly limited to further repair of any such Goods on such Goods being returned to the Repairer; and
(b) the Repairer shall not be liable for any loss of profits or revenues, special, consequential, direct or indirect loss, damage, harm or injury suffered or incurred by the Owner. Goods delivered to the Repairer remain at the Owner's risk. The Repairer shall not be liable for any loss or damage to Goods in the Repairer's possession whether caused by the negligence of any of the Repairer's servants, agents or employees or any other cause whatsoever subject only to any rights accruing under the Competition and Consumer Act 2010 which cannot be modified or excluded.
19. WARRANTIES AGAINST DEFECTS
19.1 In the event the goods are defective while under warranty, Cummins will replace or repair the defective goods at Cummins’ option and expense. The Purchaser will not be entitled to a warranty claim if the goods are misused or not used in accordance with the User Manual and which are outside the warranty period as applicable in the warranty as updated from time to time relevant to the goods or services purchased.
19.2 Warranties against defects are provided by Cummins South Pacific Pty Ltd of 2 Caribbean Drive, Scoresby, Victoria (03) 9765 3222. Warranty claims should be directed to your closest Cummins authorised dealer or branch, or call 1300CUMMINS.
19.3 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 for 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.
19.4 This warranty is in addition to other rights and remedies available to the Purchaser under the law.
20. RETENTION OF POSSESSION OF GOODS/LIEN
The Repairer reserves the right to retain possession of the Goods until payment, by way of cleared funds, for providing its service or any other consequential expenses has been received by the Repairer. The Owner represents and warrants that the Goods are not subject to any security agreement which prohibits the creation of a lien.
21. APPLICABLE LAWS
These terms and conditions and any Contract formed under them shall be construed in accordance with and be governed by the laws of the State of Victoria and the parties agree to submit all disputes arising between them to the courts of such state at and any court competent to hear appeals therefrom.
22. STATUTORY RIGHTS
Nothing in these terms and conditions excludes, restricts or modifies any condition, warranty, statutory guarantee, right or remedy implied or imposed by statute, regulation or common law which cannot be lawfully excluded, restricted or modified, which may include the Competition and Consumer Act 2010 (including the Australian Consumer Law) and corresponding provisions and relevant laws of State or Territory legislation.