Terms and Conditions

Terms of the Account Application (“Agreement”) A. DEFINITIONS 1. Throughout this Agreement, the following definitions apply: a. “Agreement” means this Account Application; b. “Client” means the entity, party or person named as client in the Agreement; c. “Debt” means any and all money owing (past, present or future) by the Client to the Company under the Agreement and Terms; d. “Goods” means all or any products, goods and services rendered, delivered, supplied and provided by the Company to the Client under the Agreement and the Terms; e. “Parties” means “the Company” and “the Client”; f. “Company” means Race Wheels Australia Pty Ltd ACN 600 445 109 as trustee for the Race Wheels Trust; g. “Guarantee and Indemnity” means the Guarantee and Indemnity to this Agreement, which are contained in a document titled ‘Race Wheels Australia Pty Ltd ACN 600 445 109 as trustee for the Race Wheels Trust - Guarantee and Indemnity’, and which are included, incorporated and referred to herein; h. “Services” means all goods and services rendered, delivered, supplied and provided by the Company to the Client under the Agreement and the Terms; i. “Terms” means the terms and conditions to this Agreement, which are contained in a document titled ‘Racewheels Australia Pty Ltd ACN 600 445 109 as trustee for the Race Wheels Trust - Terms and Conditions (“Terms”)’, and which are included, incorporated and referred to herein; and j. “Third Party” means any party retained by the Company or from which the Company has obtained any goods, services, material or any other product under this Agreement. B. INTERPRETATION 2. In this Agreement: i. Words expressed in the singular include the plural and vice versa; ii. Words expressed in one gender include the other genders, as is appropriate in the context; iii. A reference to "person" includes a corporation; iv. Where any word or phrase is given a definite meaning in this Agreement, any part of speech or other grammatical form of that word or phrase has a corresponding meaning; v. A reference to any document or agreement includes reference to that document or agreement as amended, novated, supplemented, varied or replaced from time to time; vi. A reference to a related body corporate of a body corporate is to a body corporate which is related to that body corporate within the meaning of Section 50 of the Corporations Act 2001 (Cth); vii. Except where otherwise provided, any terms defined in this Agreement which are defined in the Terms have the same meaning as in the Terms. 3. Any headings or subheadings in this Agreement are inserted for guidance only and do not govern the meaning or construction of this Agreement or of any provision contained in this Agreement. 4. References to statutes, regulations, ordinances and by-laws in this Agreement include amendments, re-enactments or consolidations of any of them. 5. Covenants and powers implied by statute are excluded from this Agreement, unless any such covenant or power cannot be excluded by force of statute or is expressly incorporated in this Agreement. 6. When any provision contained in this Agreement requires a Party's consent or approval, then unless the provision expressly provides otherwise, that consent: i. shall not be unreasonably withheld or delayed or granted subject to unreasonable conditions; and ii. is only effective when given in writing and signed by or on behalf of the Party. 7. When a covenant contained in this Agreement prohibits a party from doing anything, it also prohibits a party from authorising or allowing it to be done by any other person. C. PAYMENT 8. The Client must pay to the Company all monies, costs, charges and expenses owing under the Agreement and the Terms, as agreed between the parties or within the period stated on the invoice. This clause is an essential term of this Agreement. 9. The Company may, at its absolute and sole discretion, provide any invoice by delivery, by post, by email or by facsimile to the Client. D. MISCELLANEOUS 10. This Agreement includes, contains and incorporates the Company’s Terms. Terms contained herein in this Agreement, and the Terms, have the same meaning as each other. 11. If there is any inconsistency or conflict between this Agreement and the Terms, this Agreement will prevail and take precedence to the maximum extent possible and the Terms will be read, as being amended by this Agreement. 12. This Agreement includes and covers all Goods and Services to be rendered, provided, delivered and supplied by the Company to the Client. 13. The Agreement is deemed to have been entered into in the State of Queensland. Any legal action arising out of, or in respect of the Agreement and/or the interpretation thereof shall be brought only in the State of Queensland. The parties further represent and agree to issue any proceedings in the Brisbane registry of the appropriate Court having jurisdiction over the matter. 5 14. The Client will be responsible for all and any expenses and costs (past, present or future) incurred by the Company in the recovery of the Debt, the Goods, any outstanding accounts and invoices under the Agreement, including by or against any Third Party. The Company may charge to the Client all monies, costs, charges and expenses (including all legal costs on an indemnity basis and any money owing and/or commission payable to any mercantile agent or debt collection agent) of the Company’s pursuit to recover payment of all or any monies owing by the Client or any third party to the Company or to secure any indebtedness or liability by the Client or any Third Party to the Company, notwithstanding that no demand has been made by the Company for payment by the Client. The Client will be responsible and must pay same within seven (7) days of written demand. The Client will be responsible and must pay, within seven (7) days of written demand, all and any money or costs incurred by the Company to any Third Party for any reason, including but not limited to all or any legal costs, any commission payable to any mercantile agent or debt collection agent or any other outlays. 15. The Client acknowledges and represents to the Company that: a. at the time of entering this Agreement, the Client is solvent; b. the Client has obtained or been given the opportunity to obtain independent legal advice, independent financial advice and any other expert advice that the Client requires concerning all aspects of this Agreement and the Terms; c. the Client (including, but not limited to, all its officers and employees) has carefully read and fully understands all the provisions of this Agreement and the Terms; and d. the person/s that initial, signed or executed the Agreement and the Terms is authorised to initial, sign or execute same and that person/s, on behalf of the Client and has read and understands the Agreement and the Terms. 16. An amendment or variation to this Agreement is not effective unless it is in writingand signed by the parties or their solicitors. 17. If the Client is or becomes entitled to terminate this Agreement under any legislative provision, then during the period that the Client is entitled to terminate this Agreement, the Company may, by written notice to the Client terminate this Agreement. 18. A term or part of a term of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining terms or parts of the term of this Agreement continue in force. 19. For the purposes of sections 11 and 12 of the Electronic Transactions(Queensland) Act 2001 and the Electronic Transactions Act 1999 (Cth), the Client consents and agrees to information being given or provided including any correspondence and any tax invoice, by electronic communication. 20. The execution of this Agreement by the Client or the Company of either facsimile and/or email copy of the Agreement shall constitute a valid and binding execution of this Agreement by the Client or the Provider. 21. The Client represents, agrees and acknowledges that the terms set out in this Agreement and the Terms constitute the entire and the only agreement between the Parties. 22. This Agreement replaces any prior agreement, arrangement or understanding concerning the subject property between the Parties. 23. Except where this Agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties. 24. A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver. 25. If under the provisions of this Agreement or under any notice or demand anything is required to be done on a day which is not a Business Day, the day or the last day for compliance is deemed to be the immediately following Business Day. 26. In the event that two or more persons are included within the same defined term in this Agreement: i. a liability of those persons under this Agreement is a joint liability of all of them and a several liability of each of them; ii. a right given to those persons under this Agreement is a right given severally to each of them; and iii. any conduct under or in respect of this Agreement, including the exercise of any entitlement or taking any action under this Agreement or a provision of this Agreement, shall be undertaken by all of those persons jointly, unless this Agreement expressly provides otherwise. 27. The rights and obligations of the parties under this agreement do not merge on completion of any transaction contemplated by this Agreement. E. ACCEPTANCE AND RETENTION 28. The Client agrees, represents and acknowledges receiving a copy of the Terms, prior to accepting this Agreement. 29. Acceptance of this Agreement by the Company may and shall occur: a. orally; b. in writing; or c. by conduct. 30. Title to the Goods shall remain vested in the Company and shall not pass to the Client until the Debt and all monies owing for those Goods has been paid in full by the Client, and received as cleared funds, by the Company. F. GUARANTEE AND INDEMNITY 31. If the Client is a company, the Director/s of the Client: a. represent, confirm and acknowledge that the Director/s of the Client has or have read and understand the Guarantee and Indemnity in all respects; b. has or have obtained or been given the opportunity to obtain independent legal advice, independent financial advice and any other expert advice that the Director/s require or requires concerning all aspects of the Guarantee and Indemnity; c. hereby consent and agree to be bound by the terms of the Guarantee and Indemnity; d. understand, acknowledge and consent to the Guarantee and Indemnity forming part, and are intended to be read in conjunction with this Agreement; and e. understand, acknowledge and confirm that the Company is only entering into this Agreement upon the basis of the Director/s of the Client agreeing, entering and providing the guarantee and indemnity.