Terms of Business
Introduction
The websites called bondispeedshop.com (and bondispeedshop.com.au) (Website) is owned and operated by Bondi Speed Shop Pty Ltd (ACN 604 793 811) which is registered in New South Wales, Australia (Bondi Speed Shop). The Website is an online sales portal for vintage muscle cars. In these terms and conditions (Terms), references to the “Customer” are to you, the end user of the Website and/or the person enquiring about the purchase of Cars (Customer). In the Terms, Content means all information, graphics, HTML, text, software and materials on the Website. A reference to use of the Website includes use of the Content.
By using the Website, the Customer agrees to be bound by the Terms.
Bondi Speed Shop may amend the Terms at its sole discretion by providing the Customer with a period of notice that Bondi Speed Shop determines to be reasonable. If the Customer is not on, or chooses to unsubscribe from Bondi Speed Shop’s mailing list, Bondi Speed Shop will not have the ability to notify the Customer of changes to the Terms, and it will be the Customer’s responsibility to regularly check the Terms. By continuing to deal with Bondi Speed Shop after an amendment to the Terms, the Customer agrees to be bound by the Terms as amended.
Information and Availability
Invitation to treat. A quote, or a representation of Cars for sale does not constitute an offer to sell but an invitation to treat. Such representations are not warranties that the Cars are available.
Information and Errors
All prices on the Website are shown in Australian Dollars (AUD) and include GST. There may be technical or administrative errors in a quote or other informational materials provided by Bondi Speed Shop, including but not limited to errors with respect to product description, pricing and availability. The colours of Cars that the Customer sees depend on the Customer’s computer display. Bondi Speed Shop cannot guarantee that the Customer’s monitor will display the colours accurately. Bondi Speed Shop reserves the right to do any of the following without notice: - change any price; and - correct any errors.
Testing and Inspection
Bondi Speed Shop testing. Bondi Speed Shop conducts inspections of all cars sold on the Website, as detailed in the testing guide in Schedule 1 to the Terms. Subject to any Non Excludable Condition, Bondi Speed Shop does not make any further representation or warranty as to the merchantability of Cars.
Customer test driving of cars
Bondi Speed Shop may, at its absolute discretion, permit the Customer to test-drive Cars. Bondi Speed Shop may decline to permit the Customer to test-drive a Car for any reason.
Third Party Cars
Some of the Cars on offer on the Website are Third Party Cars. Bondi Speed Shop acts as an agent on commission for Third Party Sellers in relation to Third Party Cars. Bondi Speed Shop does not take ownership of any Third Party Cars at any time and does not transfer legal ownership of them to the Customer. Bondi Speed Shop is not responsible for any reliance the Customer places on information: provided directly to the Customer by a Third Party Seller; or that Bondi Speed Shop passes on in good faith from a Third Party Seller to a Customer. Bondi Speed Shop is not responsible for Third Party Seller transactions. While Bondi Speed Shop may participate in negotiations relating to the sale of Third Party Cars, the Customer understands that any agreement to purchase a Third Party Car is a contract solely between the Customer and the Third Party Seller of the Car. Bondi Speed Shop is not a party to such a contract. The Customer agrees to comply with its contractual obligations to Third Party Sellers. The Customer acknowledges that Customer, and not Bondi Speed Shop, is responsible for enforcing the Customer’s contractual rights against Third Party Sellers. Bondi Speed Shop will use reasonable endeavours to facilitate agreements between Customers and Third Party Sellers, however Bondi Speed Shop is not responsible for: ensuring that Third Party Sellers agree to sell Cars; or ensuring that Third Party Sellers comply with any representation that they will sell or deliver a Car.
Other third party information
The Website may contain hyperlinks, images, banners, information and advertising from third party businesses, people and websites. The Customer consents to receiving this information as part of the Customer’s use of the Website.Bondi Speed Shop is not responsible for such information or its accuracy. Bondi Speed Shop is not liable for any reliance the Customer places on such information, or any loss in relation to the Customer’s dealings with any third party. The inclusion of any such information does not imply any endorsement or recommendation of a linked website by Bondi Speed Shop or its affiliates, directors or employees. Those websites are not under the control of Bondi Speed Shop, and Bondi Speed Shop is not responsible for their contents. The Customer’s link to any third party website, or decision to accept any third party offer made directly or indirectly through such a website is entirely at the Customer’s own risk.
Website Availability and Security
By using the Website the Customer agrees that Bondi Speed Shop accepts no responsibility for the Website or any part of it being unavailable, and Bondi Speed Shop makes no warranties or guarantees, implied or express, as to the ongoing availability of the Website or any part of it. The Customer agrees that Bondi Speed Shop is not liable for any loss or damage that the Customer or any other person incurs by not being able to access the Website or any part of it. Bondi Speed Shop does not guarantee that use of the Website will not cause damage to the Customers’ computer or other devices. It is the Customer’s responsibility to make sure that it has the proper equipment and anti-virus software to use the Website safely. Bondi Speed Shop may change, update or otherwise amend the Website or any part of it at Bondi Speed Shop’s sole and absolute discretion without any notice to the Customer, including when such changes result in the Website being offline.
Limitation of liability
Exclusions subject to the law. The obligations set out in this section are subject to Non Excludable Conditions to the extent of any inconsistency. Exclusion of implied guarantees, conditions and warranties. To the extent permitted by law, Bondi Speed Shop excludes all implied guarantees, conditions and warranties from the Terms, except any Non Excludable Condition.
Exclusion of Bondi Speed Shop’s liability
Subject to the application of any Non Excludable Condition, and to the extent permitted by law, Bondi Speed Shop excludes all other liability to the Customer for any costs, expenses, losses and damages suffered or incurred directly or indirectly by the Customer in connection with the Terms or the Customer’s use of the Website, including Consequential Loss, whether that liability arises in contract, tort (including by Bondi Speed Shop’s negligence), or under statute, including liabilities arising from: the Customer’s use of the Website or reliance on Content on the website; the Customer’s use or inspection of a Car; the Website being inaccessible to the Customer for any reason; errors in information on the Website or information otherwise provided to the Customer by Bondi Speed Shop or a Third Party Seller; errors in the results of tests or inspections of Cars, or errors in the communication of such test results on the Website or otherwise; the Customer’s or Bondi Speed Shop’s reliance on a misleading representation by a Third Party Seller; Bondi Speed Shop or a Third Party Seller’s decision not to let a Customer test drive a Car; or any breach of contract between a Third Party Seller and a Customer.
Where a Non Excludable Condition is deemed to apply
Where a Non Excludable Condition is deemed to apply, to the fullest extent possible under the law, Bondi Speed Shop limits its liability for any breach to the re-supply of the Car or services affected by the breach, or the payment of the cost of such re-supply, which is to be at Bondi Speed Shop’s option.
Indemnity
The Customer indemnifies Bondi Speed Shop and its directors, employees, contractors and agents (the Indemnified) against all any costs, expenses, losses, damages, claims, demands, proceedings and other liability suffered or incurred by the Indemnified (Costs) arising wholly or partially, directly or indirectly, in connection with the Terms or the Customer’s use of the Website. Without limiting the generality of the above, the Customer agrees to indemnify the Indemnified against any Costs arising directly or indirectly from: the Customer’s breach of the Terms; any negligent or unlawful act or omission by the Customer in connection with the Cars or Website; Bondi Speed Shop, or a Third Party Seller’s, reliance on a misleading representation made by a Customer; or a contract in force between the Customer and a third party connected with the Cars or Website.
Dispute resolution
Dispute resolution procedure. If a dispute arises between the Customer and Bondi Speed Shop in connection with the Terms (Dispute), either party may notify the other of the Dispute with a notice (Dispute Notice), which includes full and detailed particulars of the Dispute. Within 10 Business Days of a Dispute Notice notification, representatives (with the authority to resolve the Dispute) of the Customer and Bondi Speed Shop must meet and seek to resolve the Dispute. If the representatives of the Customer and Bondi Speed Shop do not resolve the Dispute within 20 Business Days, the Dispute will be submitted for mediation in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Mediation and Conciliation Rules. If the Dispute is not settled within 20 Business Days of the submission to mediation (unless such period is extended by agreement of the parties), it will be submitted to final and binding arbitration in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Rules for the Conduct of Commercial Arbitrations. When the Dispute is submitted to mediation or arbitration, each party will pay its own costs for the proceedings, and half of any costs payable to the Institute of Arbitrators & Mediators Australia.Subject to this section, a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause. Nothing in this section prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute. Despite the existence of a Dispute, the parties must continue to perform their respective obligations under the Terms and any other agreement between the parties.
Intellectual Property
All title, ownership rights and Intellectual Property Rights, including copyright, in relation to the Website is owned or used under licence by Bondi Speed Shop. The Customer may make whatever copies of the Website are necessary for ordinary browsing. Otherwise, without the express written permission of Bondi Speed Shop, the Customer shall not: replicate all or part of the Website in any way, including for private and domestic use; or
incorporate all or part of the Website in any other webpage, site, application or other digital or non-digital format. The Website includes registered and unregistered trade marks, including but not limited to the name Bondi Speed Shop and logo {{insert}}. The Customer shall not copy, alter, use or otherwise deal in Bondi Speed Shop’s trade marks without the prior written consent of Bondi Speed Shop.
Confidentiality
A party will not, without the prior written approval of the other party, disclose the other party's Confidential Information. A party will not be in breach of this confidentiality clause in circumstances where it is legally compelled to disclose the other party's Confidential Information. Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of the Terms, do not make public or disclose the other party's Confidential Information. Notwithstanding any other provision of this clause, a party may disclose the terms of this agreement (other than confidential information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
Privacy
The Customer authorises Bondi Speed Shop to share its contact details with Third Party Sellers in order to facilitate the purchase of Third Party Cars.
Notice
The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning. A consent, notice or communication under the Terms is effective if it is sent as an electronic communication unless it is required under law to be physically delivered. Notices may only be sent to the parties’ contact details as specified in the Terms. If a party relies on email to deliver a notice under the Terms, the email will be taken to be received at 9:00am on the Business Day after the email is sent, unless the party sending the email knows or reasonably ought to suspect that the email was not delivered to the addressee’s domain specified in the email address.
General
Entire agreement. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in the Terms.
Inconsistency with other documents
If the Terms are inconsistent with any other document between the parties, the Terms prevail to the extent of the inconsistency.
Relationship of parties
The relationship of the parties under the Terms does not form a joint venture, partnership or agency, or create any form of employment relationship. The relationship of Bondi Speed Shop and the Customer under the Terms is that of independent contractor and principal. No act or omission of either party is to bind the other party except as expressly set out in the Terms.
Governing law
The laws of New South Wales govern the Terms. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
Assignment
The Customer cannot assign, novate or otherwise transfer any of its rights or obligations under the Terms without the prior written consent of Bondi Speed Shop. Bondi Speed Shop may assign, novate or otherwise transfer any of its rights or obligations under any contract arising from the Terms to a third party without notice to, or the prior consent of, the Customer, but if Bondi Speed Shop requires, the Customer will sign any documents to give effect to an assignment, novation or transfer by Bondi Speed Shop under this clause.
Severability
Any clause of the Terms, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of the Terms.
Unforeseen Events
An act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government agency, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a virus or other malicious code will be an unforeseen event under the Terms (Unforeseen Event).
The obligations of Bondi Speed Shop under the Terms are suspended to the extent that an Unforeseen Event affects them, as long as the Unforeseen Event continues. However, if an Unforeseen Event continues for more than 40 Business Days, Bondi Speed Shop may terminate the Terms by notice in writing to the Customer of not less than 10 Business Days.
The occurrence of an Unforeseen Event does not suspend the obligation of the Customer to pay any money under the Terms.
A party claiming an Unforeseen Event must use their best endeavours to remove, overcome or minimise the effects of that Unforeseen Event as quickly as possible.
No waiver except in writing
No part of the Terms will be deemed waived and no breach excused unless such waiver or consent is provided expressly and in writing.
Time is of the essence
Time is of the essence for the performance of the Customer’s obligations.
Definitions
The following definitions apply in the Terms.
Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Sydney.
Confidential Information means information that is by its nature confidential, including but not limited to information relating to the personnel, policies, practices, clientele or business strategies of Bondi Speed Shop, but does not include information:already rightfully known to the receiving party at the time of disclosure by the other party; or in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under the Terms.
Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of opportunity or expectation loss and any other form of consequential, special, indirect, punitive or exemplary loss or damages.
Intellectual Property Rights means all intellectual property and proprietary rights, whether registered or unregistered, including but not limited to know-how, trade secrets, patents, inventions, copyright, registered designs, trade marks, semi-conductor or circuit layouts, plant breeders rights and the right to have confidential information kept confidential; and any application or right to apply for registration of any such rights.
Non Excludable Condition means the rights or duties under the Competition and Consumer Act 2010 (Cth) that cannot by law be excluded or limited (Non-Excludable Condition).
Third Party Seller means a person, other than Bondi Speed Shop, selling Cars through the Website or through Bondi Speed Shop.Third Party Cars means Cars Owned by a Third Party Seller.
Interpreting this Document
Headings are for convenience only, and do not affect interpretation. The following rules also apply in interpreting the Terms, except where the context makes it clear that a rule is not intended to apply.
A reference to: (legislation) legislation (including subordinate legislation) is to that legislation as amended, reenacted or replaced, and includes any subordinate legislation issued under it; (parties) a party to the Terms or to any other document or agreement includes a permitted substitute or a permitted assign of that party; (person) a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator or successor in law of the person; and (parts of things) anything (including a right, obligation or concept) includes each part of it. (number) A singular word includes the plural, and vice versa. (gender) A word which suggests one gender includes the other genders. A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets. A reference to a representative of Bondi Speed Shop or Client is to an employee, officer, agent or subcontractor of Bondi Speed Shop. A reference to dollars or $ is to an amount in Australian currency. If a party to the Terms is made up of more than one person, or a term is used in the Terms to refer to more than one party: an obligation of those persons is joint and several; a right of those persons is held by each of them severally; and any other reference to that party or term is a reference to each of those persons separately, so that (for example) a representation, warranty or undertaking is given by each of them separately.