Terms of service

CHERRY TUNING PTY LTD - ABN 71 640 904 927

AGREEMENT & TERMS AND CONDITIONS OF TRADE

1. Definitions in these Terms:

“ACL” means the Australian Consumer Law, Schedule 2 of the Competition and Consumer Act 2010 (Cth); “Consumer” is as defined in the ACL; “Contract” means this and any other agreement for the provision of goods or Services by Us to You; “Goods” means goods supplied by us to you; “GST” means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth); “PPSA” means the Personal Property Securities Act 2009 (Cth); “Services” means tuning and other services supplied by Us to You; “Terms” means this agreement and these terms and conditions of trade; “Vehicle” means any equipment or vehicle or part of a vehicle provided by You to Us for the purpose of obtaining any Goods or Services; “We”, “Our”, “Us”, and “Cherry Tuning” means Cherry Tuning and Performance Pty Limited ACN 640 904 927, including in its capacity trading as Cherry Tuning and Performance and/or D2 Suspension and/or D2 Australia, as well as Our successors and Our assigns; and “You” means the person, jointly and severally if more than one, acquiring Goods and/or Services from us.

1. Basis of Agreement

2.1 The Terms apply exclusively to every Agreement.

2.2 Any quotation provided by Us to You for the proposed supply of Goods and/or Services is: (a) valid for 14 days; (b) an invitation to treat only; and (c) only valid if in writing.

2.3 We have absolute discretion to refuse any offer from You to Us to provide Goods or to perform Services to the vehicle.

2.4 You must provide us with your specific requirements, if any, in relation to the Goods and Services.

1. Pricing & Payment

3.1 Prices quoted for the supply of Goods and/or Services include GST.

3.2 Full up-front payment must be made for all Goods to be provided by Us to You. Full payment for Services is required from You to Us at the time You pick up the vehicle from Us.

3.3 The time for payment is of the essence.

1. Passing of Property

4.1 Until you make full payment for all Goods and Services and for all other amounts owing to us: (a) title in all Goods remains vested in Us; (b) You must hold the Goods as fiduciary bailee and agent for Us; (c) You must hold the proceeds of sale of the Goods on trust for us in a separate account with a bank to which you have not given security (however failure to do so will not affect your obligation as trustee); (d) in addition to our rights under the PPSA, We may enter any premises and remove the Goods and for this purpose You irrevocably licence Us to enter such premises and also indemnify Us from and against all costs, claims, demands or actions by any party arising from such action; and (e) We retain a lien over any vehicle which entitles us to sell any vehicle in Our possession, subject to providing 14 days written notice to you, by treaty or public auction as we deem suitable, and allocate the proceeds to satisfy any amounts owing.

4.2 You acknowledge that We have a statutory right to sell or dispose of uncollected goods pursuant to and within the meaning of the ACL and Fair Trading Act 1987 (NSW) (or other equivalent legislation in another state or territory of Australia).

1. Personal Property Securities Act

5.1 The PPSA applies to these Terms.

5.2 These Terms are a security agreement and We have a Purchase Money Security Interest in all present and future Goods supplied by Us to You and the proceeds of the Goods. Where the Goods are installed in or affixed to other goods, the security interest extends to both the accession and the other goods or mass.

5.3 Where permitted by the PPSA, You waive any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.

5.4 The Supplier and You agree to contract out of and nothing in the provisions of sections 96, 125, 129, 142 and 143 of the PPSA will apply to these Terms.

5.5 To the extent permitted by the PPSA, You agree that: (a) the provisions of Chapter 4 of the PPSA which are for Your benefit or which place obligations on Us will apply only to the extent that they are mandatory or We agree to their application in writing; and (b) where We have rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.

1. Risk

6.1 Risk in the Goods will pass to you on the Goods being delivered to you or taken from our premises.

6.2 You are responsible for and will indemnify us against all loss, damage or injury to persons or to property arising out of the use, installation or possession of the Goods, including the time the vehicle is in our possession for the provision of Services, unless recoverable from us under the ACL.

1. Delivery

7.1 Any date for delivery of Goods or provision of Services stated by us is an estimate only.

7.2 We will not be liable for any loss or damage suffered by You or any third party for failure to meet any estimated date.

7.3 If we cannot complete the Services by any estimated date, we will complete the services within a reasonable time.

7.4 Unless otherwise agreed, You must collect the Goods and/or any vehicle within 7 days of being advised that they are ready. If You do not You will be liable for storage charges payable on demand.

1. Liability and Disclaimers

8.1 During our Service, some or all of your vehicle’s data, if any, may be lost. You must ensure that any data is saved elsewhere prior to any Service.

8.2 Except as the Terms state, or as contained in any express warranty provided in relation to the Goods or Services, this agreement does not include by implication any other term, condition or warranty in respect of the quality, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods or Services or any contractual remedy for their failure. Should any claim by an owner or any other third party be made against Us, You agree to indemnify Us for the full level of damages in relation to such claims.

8.3 If You are not the owner of the vehicle, by entering into this agreement with Us and by accepting these terms of trade, You warrant that you are authorised by the owner of the vehicle for Us to provide the Services as requested by You. You agree to indemnify Us for the full level of damages in relation to all claims We receive from the owner or any third party for any or all part of the Services to the vehicle as performed by Us.

8.4 Except to the extent of any liability under the ACL, We are not liable: (a) to You or any third party for any failure of a statutory or other guarantee under the ACL; (b) for any indirect or consequential losses or expenses suffered by You or any third party howsoever caused.

8.5 Nothing in the Terms excludes, restricts or modifies the application of any state or federal legislation which cannot be excluded, restricted or modified.

8.6 We use experienced tuners, who strive to perform at their absolute best and work within safe confines of what the engine is capable. The Services may include a modification to the engine's computer and it carries with it an increased risk of premature engine wear or even damage. By agreeing to these Terms, You agree to an assumption of risk and a hereby waive Your rights to hold Us liable of any and all liability claims, as well as demands of any kind or nature, either in law or equity, that arise or may hereafter arise from the Your participation in this process.

8.7 By agreeing to these Terms, You acknowledge, accept and agree that the performance of the Services by Us may void the manufacturer’s or other warranty on the vehicle. You hereby waive Your rights to hold Us liable of any and all declinature and voiding by the manufacturer of the vehicle or any third party of any warranty on the vehicle. You also agree to indemnify Us for any and all claims by the owner of the vehicle or any third party made against us in relation to the declinature or voiding of any warranty.

1. Variation and Cancellation

9.1 If we are unable to provide the Goods or Services, then we may cancel your order.

9.2 No purported cancellation by You is binding on Us.

1. Miscellaneous

10.1 The law of New South Wales, Australia govern these Terms.

10.2 Any dispute, controversy or claim arising out of, relating to or in connection with these Terms being an agreement between You and Us, including any question regarding its existence, validity or termination, shall be resolved by arbitration in accordance with the ACICA Arbitration Rules. The seat of arbitration shall be Sydney, Australia. The language of the arbitration shall be English. The number of arbitrators shall be one.

By using and/or purchasing from this website, you hereby agree to the Cherry Tuning Pty Ltd agreement and Terms and conditions of trade as set out above.