Terms of Trade
Terms of Trade
Bridgestone supplies all present and after acquired goods as described in the attached Schedule (the "Goods") to you as the customer ("Customer") subject to the following terms and conditions of sale which shall prevail despite any indication to the contrary by any person acting or purporting to act on Bridgestone's behalf.
Where used in these terms and conditions, the expression "Consumer" means a Customer that is a “consumer” as defined in Section 2 of the Consumer Guarantees Act 1993 ("CGA") but does not include a Customer, who, by clause 9 of these terms and conditions, has contracted out of the CGA.
a. The placing by a Customer of an order will be deemed to be an acceptance by the Customer of these terms and conditions, notwithstanding anything that may be stated to the contrary on the Customer's order.
2. Pricea. Prices are subject to change without notice. All orders will be filled at prices prevailing at the date of delivery of the Goods or services and the Customer is to pay the prices charged.
b. If Goods and Services Tax ("GST") or other taxes are payable on Goods or services supplied or on any amount payable under clause 6, the Customer shall pay such tax in addition to any other amount due under these terms and conditions.
c. All prices are exclusive of freight costs, insurance charged and installation and maintenance costs, which must be paid by the Customer unless otherwise agreed by Bridgestone and the Customer in writing.
3. Terms of payment
a. Payment is due in cash at the time of placement of the order for the Goods (unless other payment terms have been arranged).
b. Payment of all monies will be without set-off or deduction of any kind other than to the extent the Customer is a Consumer and is entitled to exercise any remedies pursuant to the CGA.
c. Subject to clause 6.e, payments by the Customer will be apportioned by Bridgestone to outstanding accounts in such amounts and in such order as Bridgestone may determine in its sole discretion and specifies to the Customer. Until Bridgestone specifies its application of any monies received, they shall be held unallocated and in suspense and no amounts due in respect of any Goods or services or any invoice shall be reduced, or deemed reduced until monies have been expressly applied by Bridgestone.
4. Trade terms
a. Trade terms are available to approved Customers upon application and the written approval of an account by Bridgestone.
b. Where Goods are sold on trade terms, payment is due on the 20th of the month following the date of Bridgestone's invoice with the exception of any amount pursuant to which a claim has been notified in accordance with clauses 5.d or 12.
a. Bridgestone shall not be liable for any loss or damage to the Goods during transportation even though such loss or damage may be caused by Bridgestone's negligence or other default provided that this clause shall not prevent a Customer who is a Consumer from exercising any remedies that Customer may have under the CGA.
b. Dates given for shipment or delivery of Goods are stated in good faith but are not to be treated as a condition of the sale of those Goods. If delivery of the Goods is delayed for any reason whatsoever, Bridgestone shall not be responsible or liable in any way to the Customer or any other party for loss sustained due to such delay.
c. Where the Customer does not take delivery of the Goods by the delivery date specified or such later date as the parties agree, the Customer shall pay reasonable storage costs until such time as the Customer accepts the Goods, such cost to be determined by Bridgestone, and Bridgestone shall be entitled to invoice the Customer in accordance with these terms and conditions.
d. Where there is a discrepancy in Goods supplied by Bridgestone to the Customer, the Customer must provide notice in writing to Bridgestone of that discrepancy within 48 hours of delivery and such notice must:
i. be accompanied by the number and date of the relevant invoices;
ii. specifically identify the relevant discrepancy and to the extent practicable be accompanied by any Goods over or wrongly supplied; and
iii. allow Bridgestone to have a reasonable opportunity to investigate the claim.
e. Unless a notice is received by Bridgestone from the Customer in accordance with clause 5.d, the Customer is deemed to have accepted the order as correct. Where Bridgestone is satisfied as to the nature of the discrepancy it will, at Bridgestone's discretion, either remedy the discrepancy or provide a credit for the relevant Goods.
f. Delivery by Bridgestone to a carrier shall be deemed to be delivery to the Customer.
a. Where the Customer has breached any of these terms and conditions or if clause 6.c applies, then without prejudice to any of its other rights, Bridgestone may:
i. demand immediate payment of all or any monies owing (whether or not then due);
ii. suspend or terminate any trade terms offered to the Customer;
iii. cancel this agreement and any other contract of supply between the parties and seek damages;
iv. require security for such obligations to its full satisfaction before any further supplies are made to the Customer;
v. suspend or cancel without notice, deliveries of Goods and provision of services ordered by the Customer;
vi. appoint a receiver in respect of the Goods (including the proceeds of the same) supplied to the Customer under these terms and conditions. Any receiver so appointed may take possession of the Goods and re-sell them and otherwise exercise all rights and powers conferred on a receiver by law; and/or
vii. recover any Goods and/or mixed goods (referred to in clause 7.e) delivered to the Customer. The Customer agrees that Bridgestone may (without prejudice to any of its other rights) enter the Customer's premises or any other place where the Goods and/or mixed goods are stored by the Customer's servants or agents for that purpose and take possession of and sell the Goods (and the Customer grants to Bridgestone an irrevocable right and authority to so recover, re-enter and re-sell), provided that Bridgestone may only recover and re-sell for its own account sufficient Goods and/or mixed goods to satisfy all unpaid liabilities in respect of the Goods and/or mixed goods and the costs of resale and any costs under clause 6.d. If any excess is recovered by Bridgestone, Bridgestone shall account for the excess to the Customer but will not otherwise be liable in damages. Bridgestone can so recover, re-enter and re-sell even if Bridgestone does not have priority over other persons having a "security interest" (as that term is defined in the Personal Property Securities Act 1999 (the "PPSA") in the Goods and/or mixed goods. Sections 108, 109 and 120 of the PPSA do not apply to the extent that they are inconsistent with this clause.
b. Where the Customer fails to make payment within 30 days after the due date, the Customer may, at Bridgestone's sole discretion (without prejudice to Bridgestone's other rights or remedies under these terms and conditions) be liable to compensate Bridgestone by immediately making payment as liquidated damages (in addition to the amount due) of interest on the amount due from the due date until the date of actual payment at a rate equal to 1.5% per month.
c. The Customer will be in default of these terms and conditions, and Bridgestone shall be entitled to exercise any remedies provided in clause 6.a, or otherwise under these terms and conditions, in the following circumstances:
i. if the Customer becomes insolvent or is adjudicated bankrupt; or
ii. if a receiver is appointed in respect of the assets of the Customer; or
iii. if the Customer no longer carries on business or threatens to cease carrying on business; or
iv. if an arrangement with the Customer’s creditors is made or likely to be made; or
v. if the ownership or effective control of the Customer is transferred or the nature of the Customer’s business is materially altered; or
vi. if the Customer is in breach of any other contract for supply with Bridgestone.
d. The Customer shall pay all costs and expenses incurred by Bridgestone, including costs on a solicitor-client basis and debt collector’s costs incurred, in the recovery or attempted recovery of outstanding monies and the enforcement or attempted enforcement of these terms and conditions.
e. Payments by the Customer shall be applied first in reduction of interest, liquidated damages and costs due pursuant to this clause 6, the balance then being in reduction of any amounts due pursuant to clauses 3 or 4.
7. Ownership and risk
a. Notwithstanding that ownership in the Goods may not have passed to the Customer, risk in the Goods shall pass to the Customer when the Goods are being transported to the Customer, and the Customer shall be obliged to insure the Goods from the time of transportation until payment in full in the name of Bridgestone and the Customer for their respective interests.
b. Notwithstanding any trade terms offered to the Customer, legal and beneficial ownership of any and all Goods shall remain with Bridgestone, until payment in full is made for them and for all other Goods supplied by Bridgestone to the Customer.
c. Until payment is made in full by the Customer for all Goods, the Customer holds the Goods as fiduciary bailee for Bridgestone and will store the Goods in such a manner that they are clearly identifiable as the property of Bridgestone, and will keep separate records in respect of the Goods.
d. If the Goods are sold or otherwise disposed of by the Customer prior to payment in full, the Customer will have been deemed to have done so as agent for Bridgestone and the proceeds of such sale will be the property of Bridgestone. The Customer will hold the proceeds of such sale on trust, on account for Bridgestone, and keep them in a separate fund from its own money.
e. If any of the Goods are mixed or incorporated in other Goods (the "mixed goods") before payment, the Customer agrees that the property in the mixed goods shall be and remain with Bridgestone until such payment has been made in full. The Customer shall hold the mixed goods as fiduciary bailee for Bridgestone and will store the mixed goods in such a manner that they are clearly identifiable as the property of Bridgestone and will keep separate records in respect of the same. If the Customer sells the mixed goods it will hold the proceeds of such sale on trust for Bridgestone and will account to Bridgestone for the value of the Goods and keep the proceeds in a fund separate from its own money and will keep separate records in respect of such money.
a. Subject to clause 5.e, credits sought for returned Goods are at Bridgestone's sole discretion. For Bridgestone to consider granting a credit, the relevant Goods must be:
i. returned within seven (7) days of receipt;
ii. returned free into Bridgestone's store, all transportation charges, insurance, taxes, duties and additional charges being borne by the Customer;
iii. in as new condition in Bridgestone's original containers or packaging, unsoiled and undamaged; and
iv. accompanied by the number and date of supplying invoice.
9. Supply for business purpose
a. Where these terms and conditions would otherwise be subject to the provisions of the CGA, but where the Goods are supplied and acquired in trade and the Customer is itself in trade (in terms of the ‘in trade’ definition in sections 2 and 43 of the CGA), the Customer and Bridgestone agree that the provisions of the CGA do not apply to the supply to the Customer, and that it is fair and reasonable that the Customer and Bridgestone instead be bound by the provisions in this Agreement. Accordingly, such a Customer is not a Consumer for the purpose of these terms and conditions.
10. Warranties and conditions
a. This clause 10 shall apply where the Customer is not a Consumer.
b. Except as provided in any express written warranty given by Bridgestone, no warranty or condition shall be implied against Bridgestone by any statute, at common law or otherwise and no representation, express condition, warranty or variation of these terms and conditions shall be binding on Bridgestone unless it is in writing and signed by Bridgestone.
c. Where the Goods or any of them are subject to any express written warranty given by Bridgestone to remedy any defect by repairing or replacing the Goods with Goods of identical type, the ultimate consumer shall not be able to exercise its remedies set out in the CGA without first giving Bridgestone a reasonable opportunity to remedy the defect by repair or replacement in accordance with its express written warranty.
11. Guarantees and conditions
a. This clause 11 shall apply where the Customer is a Consumer.
b. Subject to the rights and remedies contained in the CGA, if, as the result of some fault on Bridgestone’s part, the Goods supplied are defective in that:
i. they are not of acceptable quality; or
ii. they are not reasonably fit for any particular communicated purpose where the Consumer has reasonably relied on Bridgestone’s skill or judgement; or
iii. they do not comply with the description, sample or demonstration model (if any) shown to the Consumer before purchase;
then the Consumer must notify Bridgestone within seven (7) days of when such defect was discovered or ought to have been discovered and, where possible, return the Goods to Bridgestone.
c. Where appropriate, Bridgestone will (at its sole discretion but subject to clause 11.d) remedy the defect by way of repair, replacement or (if necessary) refund.
d. Where the defect cannot be remedied or is of a substantial character (as defined in the CGA), Bridgestone will (without limiting its obligations under the CGA) refund the Consumer's money or replace the Goods, or compensate the Consumer for the amount of any reduction in value of the Goods below the price paid or payable by the Consumer.
e. With the exception of the relevant statutory warranties contained in the CGA, no warranty or condition shall be implied against Bridgestone by any other statute, at common law or otherwise and no representation, express condition, warranty or variation of these terms and conditions shall be binding on Bridgestone unless it is in writing and signed for, or on behalf of Bridgestone.
a. Where Goods are returned by the Customer, Bridgestone may, in its sole discretion, repair the Goods or make a reasonable allowance on the purchase from Bridgestone of replacement Goods, provided that the following conditions are met:
i. all claims must be received by Bridgestone within seven (7) days of delivery of the Goods;
ii. all claims must be accompanied by the number and date of supplying invoices;
iii. all claims must specifically identify the defect and be accompanied by the defective Goods; and
iv. Bridgestone shall have a reasonable opportunity to investigate the claim, provided that this clause 12.a shall not prevent a Customer who is a Consumer from exercising any remedies that Customer may have under the CGA.
b. Goods returned (whether to remedy a defect or otherwise) must be returned free into Bridgestone's store, all transportation charges, insurance, taxes, duties and additional charges being borne by the Customer.
c. If claims are not received in accordance with the requirements specified in clause 12.a, the Customer shall be conclusively deemed to have accepted the Goods, and Bridgestone shall not incur any subsequent liability whatsoever in relation to the Goods.
13. Limitation of liability
a. Bridgestone's liability in any case of defect or fault, shall be limited to the purchase price of the Goods in respect of which such liability arises. Bridgestone shall have no further liability or responsibility for any direct, indirect or consequential injury, loss or damage whatsoever and howsoever arising, provided that this clause 13.a shall not prevent a Customer who is a Consumer from exercising any remedies that Customer may have under the CGA.
b. Bridgestone shall not be responsible for any damage whatsoever caused either to the Goods supplied or as a result of the malfunction of such Goods if:
i. the Goods are fitted by unqualified tradesmen or in an un-tradesman like manner; or
ii. the Goods are in any way adapted to a use for which they are not specifically intended; or
iii. the Goods are added to or repaired using components not recommended or approved by the manufacturer of such Goods.
a. If any of these terms and conditions is held by a Court to be ineffective by virtue of non-registration, illegality or otherwise, then such condition, or part of it, shall be severed from all other conditions without affecting the validity or enforceability of all other conditions or part of them.
15. Personal Property Securities Act 1999
a. The Customer grants to Bridgestone a security interest in all present and after acquired Goods and their proceeds.
b. On the request of Bridgestone, the Customer shall promptly make, do, execute and deliver (or cause to be made, done, executed and delivered) any documents, contracts, agreements or deeds that Bridgestone may require from time to time to give effect to these terms and conditions, including without limitation doing all such things as Bridgestone may require in order to ensure that the security interest created under these terms and conditions, constitutes a first ranking perfected security interest over the Goods and their proceeds including providing any information Bridgestone reasonably requires to complete a financing statement or financing change statement. The Customer waives any right to receive a copy of the verification statement under the PPSA. The Customer will immediately notify Bridgestone in writing of any change in the Customer's name.
c. The Customer will pay to Bridgestone all costs, expenses and other charges incurred, expended or payable to Bridgestone in relation to the protection or preservation of its security interest, recovery or attempted recovery of outstanding monies and the enforcement of these terms and conditions, or the security interest contained in these terms and conditions.
16. Certain provisions not to apply
a. Bridgestone and the Customer agree that nothing in sections 114(1)(a), 117(1)(c), 133 and 134 of the PPSA shall apply to these terms and conditions.
b. Bridgestone and the Customer also agree that the rights of the Customer as debtor in sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA shall not apply to these terms and conditions.
17. Second-hand goods
a. For the purposes of section 18A(4) of the Health and Safety in Employment Act 1992, Goods that are second-hand are sold by Bridgestone, without any representation or warranties, as to quality, durability or fitness, and accordingly are sold "as is".
a. The Customer acknowledges that it has received a copy of these terms and conditions and in particular that the terms contained in these terms and conditions constitute a security agreement for the purposes of the PPSA.
19. Proper law
a. The law of New Zealand shall govern all contracts and the Customer hereby submits to the exclusive jurisdiction of the New Zealand courts.
a. Description of Goods
i. All Passenger Vehicle Tyres
ii. Industrial Tyres Forklift Tyres
iii. Truck Tyres
iv. Bus Tyres
v. Tractor Tyres
vi. Agricultural Tyres
vii. Earthmover Tyres
viii. Grader Tyres
ix. Light Truck Tyres
x. Retreaded Tyres
xi. Motorcycle Tyres
xii. Mag Wheels
xiii. Four Wheel Drive (4wd) Tyres
xiv. Go-Kart Tyres
xv. Tread Rubber
xvii. Bridgestone Golf Products and Accessories
xviii. Air Springs
xix. Motor Vehicle products
xx. and accessory inventory
b. Any of the above and any other goods that may be described in any quote, packing slip, invoice, or any other document provided by Bridgestone to the Customer.
ITEM 1. | Definitions
- Agreement: means these terms and conditions described herein and the arrangement Bridgestone has with the User.
- Bridgestone, we, us: means Bridgestone Australia Ltd (ABN 65 007 516 841).
- Iris Software: means the tool that allows a technician or service provider to compose a personalized video explanation of the customer’s vehicle and send it to them via text message or email, to arrive on a customer’s device wherever they are.
- User, you, your: the company or person with whom Bridgestone has entered or intends to enter into an agreement with and who are entitled to use the Iris Software.
ITEM 2. | Content of the Agreement
- The Iris Software is owned by Iris Concepts IP Pty Ltd and has licensed Bridgestone to distribute the product. Bridgestone grants the User the right to use the Iris Software by way of a non-exclusive license.
- By using the Iris Software the User agrees to pay the fees to Bridgestone described in the correspondence previously provided to you subject to these terms and conditions.
- The Iris Software may be used at one location and the agreed fees apply per location. If the User uses the Iris Software at more than one location, Bridgestone is entitled to charge the fees for the use of the Iris Software at multiple locations, as if the User had signed up all locations where the Iris Software was or is being used. The User may allow several technicians located at such site to use the Iris Software.
- Bridgestone may suspend and/or terminate the Agreement if there is a breach of the previous paragraph in accordance with Item 6.
- Bridgestone only makes the log-on available to the User. The User creates the texts, videos, photos and other data (content) and adds it to the Iris Software. Bridgestone will store the content for the User. The User is liable for the content they produce using the Iris Software. The User indemnifies Bridgestone against all third-party claims in this regard.
- Bridgestone reserves the right to remove content from the Users Iris Software storage if the video quality doesn’t reach training standards.
- Within the framework of the Iris Software, work proposed by the User can be submitted to car owners for approval. Bridgestone is not responsible nor liable for unintended approvals and rejections that have taken place. The User indemnifies Bridgestone against all claims from third parties in this respect.
ITEM 3. | Abuse
- The User is forbidden to break, remove or avoid any security in the Iris Software.
- Use of Iris Software is subject to the following restrictions:
- Iris Concepts IP Pty Ltd is the owner of the patent, copyright, trademarks, trade secrets and all other intellectual property rights that subsist in the Iris Software and training material. Iris Concepts IP Pty Ltd have licensed the above intellectual property rights to Bridgestone to use and distribute on its behalf.
- The User is forbidden to use equipment or software that can disrupt the normal operation of the Iris Software.
- The User is prohibited from sending unsolicited messages (SPAM) through the Iris Software.
- The User agrees that all content they add does not infringe the rights of third parties or any laws.
- Videos that are deemed violent, hateful, discriminatory or otherwise inappropriate content, as well as videos with a political message may be removed by Bridgestone without notice or compensation payable.
- If Bridgestone suffers damages as a result of misuse by the User, the User agrees to indemnify Bridgestone for such damages.
- The User is obliged to take adequate action against any misuse of the Iris Software that has come to their knowledge. The User must also notify Bridgestone of this abuse as soon as possible. Bridgestone reserves the right to immediately terminate the Agreement in whole or in part if and insofar as misuse is assumed to have taken place, without the User claiming a refund or remission of payments made by them.
i) you must not reverse engineer, decompile or disassemble the Iris Software except to the extent permitted by law;
ii) you shall not examine any part of the Iris Software for the purpose of developing a competing product, and nor shall you permit any third party access to Iris Software for this purpose.
ITEM 4. | Maintenance of the Software
- Bridgestone is at all times authorised to temporarily (partially) take the Iris Software and/or web portal out of use, if this is desirable with regard to maintenance, adjustment or improvement of the services. Where possible Bridgestone will advise Users of the pending maintenance as far in advance as possible.
- The User cannot claim compensation for any damage as a result of accessibility limitations of the Iris Software or the web portal.
- Non-urgent maintenance work will be carried out, as much as possible, at times when the User will experience the least disturbance. Bridgestone can never offer any guarantee in this respect.
ITEM 5. | Force Majeure
- Bridgestone is not obliged to fulfill their obligations under the Agreement if and insofar as they are hindered by a circumstance that is beyond their control, nor by law, legal act or generally accepted standards.
- If the force majeure situation continues or will continue for more than three months, either the User or Bridgestone are entitled to terminate the Agreement with immediate effect.
- The User is not permitted to claim compensation for damage that has occurred as a result of force majeure. The User is only entitled to a proportional refund of payments already made with regard to the period where force majeure was applicable and the User was unable to use the Iris Software.
ITEM 6. | Suspension and Termination
- Either party may terminate this Agreement upon providing the other party with 30 days written notice of termination.
- An infringement of the provisions of these general terms and conditions gives Bridgestone the right to terminate the Agreement with immediate effect, unless the infringement does not justify termination of the Agreement due to its minor significance.
- If the User commits an act of insolvency or bankruptcy, any seizure of their goods has been made or in cases where the User cannot freely access their assets, Bridgestone is entitled to terminate the Agreement with immediate effect, unless the User has already provided adequate security for (due) payments.
- Bridgestone is also entitled to terminate the Agreement if circumstances arise that are of such nature that fulfilment of the Agreement is impossible.
- Bridgestone is also entitled to terminate the Agreement if the User fails to pay its Bridgestone trading account to terms.
- The User can never claim any form of compensation in connection with the right of suspension and termination exercised by Bridgestone on the basis of this item.
- If Bridgestone terminates the Agreement on the basis of this item, all claims against the User are immediately due and payable.
- In the case that the Iris Software is unavailable for use, or does not for the most part function correctly, for the majority of Bridgestone customers for a period of at least 15 business days, the User may terminate this Agreement with immediate effect, giving written notice.
ITEM 7. | Prices and Payments
- All prices stated by Bridgestone are exclusive of Goods and Services Tax.
- Bridgestone is entitled to change the agreed prices upon providing the User with at least 30 days written notice. Upon receipt of the written notice, the User is entitled to terminate the Agreement.
- Bridgestone will implement the Agreement terms when the User has been set up with access to the Iris Software.
- The charges for use of the Iris Software will be billed to the User’s Bridgestone trading account. Payments will be made by bank transfer or direct debit.
- If timely payment is not made, the User will be in default and the User must pay Bridgestone interest of 1% per month on the outstanding amount, with part of a month being considered as a whole month. This interest is calculated up to and including the day that the outstanding amount, including interest, is paid in full. The performance of Bridgestone's obligations under this Agreement is conditioned upon the timely payment by the User of all amounts due pursuant to this Agreement.
- The User will be liable to pay Bridgestone all reasonable legal costs for obtaining amounts owed by the User.
ITEM 8. | Liability and Disclaimer
- Bridgestone is responsible for the presence of functionalities within the Iris Software.
- Bridgestone strives to make the Iris Software work on all internet browsers and application stores, but it is possible that the Iris Software does not work equally well on all internet browsers and applications. Any liability of Bridgestone in this regard is excluded.
- If Bridgestone should be liable for any damage, that liability is, without prejudice to the provisions of paragraph 2, limited to compensation for direct damage suffered by the User. Bridgestone is never liable for indirect damage or consequential loss, including loss of profit, loss suffered and damage as a result of business interruption.
- The possible liability of Bridgestone is, in any case, limited to the invoice value, to that part of the Agreement to which the liability of Bridgestone relates.
- Barring intent and deliberate recklessness on the part of Bridgestone, the User indemnifies Bridgestone against all claims from third parties, for whatever reason, with regard to compensation for damage, costs or interest, related to the Iris Software and other services provided by Bridgestone.
- You must observe the Privacy Act if it is applicable in respect of all personal information and indemnify us against all loss, cost, expense, damage or liability suffered if you breach this clause. The User and its staff acknowledge that content sent on the Iris Software may be shared by the customer receiving it. Bridgestone cannot prevent customers sharing any Iris Software content.
ITEM 9. | Intellectual Property and Confidentiality
- Iris Concepts IP Pty Ltd retains ownership of the intellectual property over all Iris Software manufactured and/or made available by it.
- Bridgestone and Iris Concepts IP Pty Ltd will never claim ownership of the content or data that Users have added to the Iris Software. After termination of the Agreement, Bridgestone is entitled to delete the content and data entered by the User. Before proceeding with this, the User may request Bridgestone to remove the data or provide it to the User.
ITEM 10. | Final Provisions
- Bridgestone and the User irrevocably agree that the courts of South Australia will have exclusive jurisdiction to hear, settle and/or determine any dispute, controversy or claim (including any non-contractual dispute, controversy or claim) arising out of or in connection with this agreement, including any question regarding its existence, validity, formation or termination. For these purposes, each party irrevocably submits to the jurisdiction of the courts of South Australia.
- Before appealing to the courts, the parties are obliged to make every effort to resolve the dispute in mutual consultation or mediation.