AMBERLEY AUTOS PTY LTD A.C.N 108 566 632 trading as DIESEL TUNE AUSTRALIA (“DTA”)
INTERPRETATION In these Terms:
“Accessory Installation Service” means any installation of any accessory or peripheral product provided by DTA to the Customer in relation to an Order;
“DTA Product” means any ECU Tuning Service and/or an Accessory Installation Service provided to a Customer.
“DTA Product Specification” means the description and specifications of a DTA Product provided to a Customer from time to time;
“Business Day” means a day other than a Saturday, Sunday or public holiday or bank holiday in the State of Victoria, Australia;
“Customer” means any person, body corporate, or entity that purchases an DTA Product from DTA;
“Data Sheet” means a questionnaire provided to the Customer by DTA requesting information concerning the Vehicle for the purposes of preparing an DTA Product;
“ECU Software” means any software or data comprised within or written for a Vehicle’s in-car computer chips (i.e. its engine control unit or “ECU”), including any software updates;
“ECU Tuning Service” means any ECU Software analysis and remapping conducted by DTA on a Vehicle pursuant to an Order;
“Installation of a DTA Product” means delivery and/or installation of an DTA Product to a Vehicle;
“IP” means any and all intellectual property rights (including patents, right in inventions, trademarks, goodwill, database rights, image rights, rights in designs, copyrights and all forms of protection of a similar nature or having equivalent or similar effect anywhere in the world, howsoever arising and whether or not registered) in and to an DTA Product, ECU Software, or the Website;
“Losses” means losses, damages, liabilities, claims, costs and expenses including fines, penalties, legal and other professional fees and any Vehicle rectification, repair or replacement costs;
“Maintenance Services” means any installation, repair or maintenance services that may be provided by DTA to the Customer in relation to an Order;
“Order” means any order placed by the Customer for an DTA Product in accordance with these Terms;
“Purchase Price” means the price charged to the Customer by DTA for a DTA Product;
“Quotation” means a quotation issued by DTA to the Customer for the provision of a DTA Product;
“Terms” means these terms and conditions of sale;
“Vehicle” means a Customer’s motor vehicle;
“Warranty Period” means a period of three (3) months from Installation of an DTA Product; and
“Website” means www.dieseltuneaustralia.com.au
INFORMATION PROVIDED BY CUSTOMER
An Order must be clearly communicated by the Customer to DTA and must include a Data Sheet accurately completed by the Customer and any other information required by DTA from time to time concerning the Order. The Customer warrants that all information provided to DTA in relation to an Order is true and correct.
The Customer may request modification of an Order. Acceptance of any modification is subject to DTA’s approval. Additional charges may apply for modifications and may cause a delay in meeting an Order.
In the event that the Customer has provided DTA with incomplete or inaccurate information in the Data Sheet or otherwise, the Customer accepts full liability and waives the Customer’s warranty rights provided in these Terms for any damage caused to the Vehicle caused by the provision of the incomplete or inaccurate information.
QUOTATION AND ORDER
Upon receipt of an Order DTA may, but is not obliged to, provide a Quotation.
A Quotation is valid for 30 days from the date of issue barring errors or omissions.
DTA reserves the right to amend, withdraw or cancel a Quotation at any time by giving notice to the Customer of such.
A Quotation is an invitation to treat and does not constitute an offer to provide goods and/or services that may be accepted by the Customer.
By placing an Order in response to a Quotation the Customer acknowledges agreement to these Terms in full.
An Order is not binding on DTA until it is accepted by DTA and DTA may accept or reject an Order at its discretion.
An Order, once accepted, may not be modified by the Customer without DTA’s written consent.
The Customer must make full payment of the Purchase Price in accordance with the terms of any invoice issued by DTA to the Customer.
Payment can be made either by Direct Credit (EFT) into DTA’s account, Credit Card, Cheque (by arrangement), Cash or as otherwise specified on the Website.
The Customer acknowledges and accepts that payment by Credit Card may attract a fee which the Customer will be liable to pay.
CANCELLATION AND REFUND
The Customer may not cancel an Order without the written consent of DTA.
If DTA consents to the cancellation of an Order, DTA will refund to the Customer the Purchase Price less the reasonable costs, if any, incurred by DTA in providing an DTA Product.
If the Customer defaults in payment or breaches these Terms then the Customer will be liable and will indemnify DTA for all costs incurred through any loss, liability, charge, expense, outgoing or payment which DTA suffers, incurs or is liable for in respect of the recovery of monies owing to DTA.
Interest is payable on overdue accounts at the rate prescribed under the Penalty Interest Rates Act 1983 (Vic). Any payment received may be applied first against any interest accrued.
Personal Property Security Register (PPSR)
The Customer acknowledges and agrees that DTA has a registrable security interest in any DTA Product supplied to the Customer.
The Customer consents to DTA registering its interest in any DTA Product supplied to the Customer on the PPSR.
The Customer undertakes to sign any further documents and/or provide any further information (which information the Customer warrants to be complete, accurate and up-to-date in all respects) which DTA may reasonably require to enable registration of a financing statement or financing charge statement on the PPSR.
The Customer agrees that to the maximum extent permitted by law sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143 of the Personal Property Securities Act 2009 (PPSA) do not apply to the enforcement by DTA of its security interest in any DTA Product.
The Customer acknowledges and agrees to waive its rights under section 157 of the PPSA to receive verification of DTA’s registration of its security interest.
The Customer agrees to pay any legal fees incurred by DTA with respect to enforcing this security interest.
CUSTOMER USE of DTA product
The Customer acknowledges and agrees that:
their use of the Vehicle after Installation of an DTA Product will be for personal and not for commercial purposes; and
they will not allow any other party to use, copy, or modify any DTA Product or IP in the Vehicle unless authorised by DTA in writing;
8.2 The Customer accepts liability for any Losses DTA sustains from any breaches of clause 8.1 (a) and (b) of the Terms.
RISK and title
The risk in any DTA Product passes to the Customer upon Installation of an DTA Product.
DISCLAIMER AND LIMITATION OF LIABILITY
To the maximum extent permitted by law and subject to clause 11 of these Terms, DTA shall not be liable to the Customer (or any other party) for any loss or damage caused to the Vehicle by the Installation of an DTA Product.
DTA does not accept liability for any errors or bugs or other deficiencies contained in the ECU Software or the Vehicle’s other components that arise before or after Installation of an DTA Product.
The Customer acknowledges that the installation of an DTA Product may void or limit the Vehicle’s manufacturer’s warranty and/or other product warranties for third party components or accessories (“non-DTA warranties”). DTA accepts no liability for any such breach of non-DTA warranties.
DTA PRODUCT WARRANTY
DTA Products come with guarantees that cannot be excluded under the Australian Consumer Law. The Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have an DTA Product repaired or replaced if an DTA Product fails to be of acceptable quality and the failure does not amount to a major failure.
DTA will provide Maintenance Services to the Customer for the Warranty Period and, on request by the Customer, may provide additional Maintenance Services at its sole discretion following the expiry of the Warranty Period.
DTA undertakes to provide the Maintenance Services to the Customer with quality workmanship and care within a timely manner.
To the extent permitted by law DTA:
reserves its right to provide the Customer with Maintenance Services within the Warranty Period if the defect or fault in the Vehicle, as claimed by the Customer, arises as a result of the Customer’s, or any other parties’, own deliberate actions, negligence or force majeure; and
will not be liable to the Customer for continued use of the Vehicle following the discovery of a fault or defect by the Customer.
USE OF DATA
The Customer acknowledges and agrees that DTA may use and retain any data provided by the Customer including the Data Sheet or any other technical information as reasonably required by DTA from time to time to enable DTA to provide an DTA Product to the Customer.
DTA undertakes that it will at all times comply with the Australian Privacy Principles, and any State or Federal privacy law as may be in force from time to time, for the use of data supplied by the Customer. DTA undertakes that Customer data will only be used for the purposes set out at 12.1 and for any other reasonable ancillary correspondence with the Customer that may be necessary from time to time.
DTA shall not be liable for failure to deliver the goods and/or supply the services for any reason whatsoever outside reasonable control including, without limitation to the generality of the foregoing, industrial action, war, governmental action or regulation, act of God, riots, or non-availability of stock or materials. Any such failure shall not affect the obligation of the Customer to pay for goods already installed by DTA.
These Terms shall be governed by the laws of Victoria, Australia and the parties submit to the jurisdiction of the appropriate courts in or nearest Melbourne.
If any provision of these Terms shall be invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
The Customer acknowledges that, in entering into this Agreement with DTA, they do so without any reliance on any representation, warranty or other provisions except as expressly set out in these Terms.
Except as set out in these Terms, no variation of the Terms, including the introduction of any additional Terms, shall be effective unless it is agreed in writing and signed by DTA.
A waiver of any right under the Terms or by law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Terms or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
These Terms are not enforceable by any person who purchases the Vehicle from the Customer.