Terms of Trade
Terms of Trade of Upfitter Pty Ltd ("these Terms")
1. These Terms
(i) These terms and conditions are referred to as (these Terms).
(ii) If you are under 18 years of age, then you are unable to access or use the Website or make orders to Upfitter for Products advertised on the Website.
(iii) Your access to and use of the Website, including your order of Products through the Website, is subject to these Terms.
2. Agreement to be Bound by these Terms
You agree to bound by, and comply with, these Terms by you:
(a) using or accessing the Website;
(b) completing your registration and an opening a customer account through the Website; and/or
(c) obtaining or ordering Products from us using the Website.
3. Registration and Account Opening
(i) You may only have one active account, and your account is non-assignable.
(ii) The customer registration and account opening process is undertaken through the Website. The customer registration and account opening process may be modified by us as we see fit from time to time.
(iii) When you complete the customer registration and account opening process through the Website, an account will be opened for you with Upfitter, however Upfitter reserves the right to refuse to open an account or to cancel an account, in its absolute discretion.
(iv) If you wish to update, edit or cancel your account, you may do so at any time through the Website.
(v) Your choice of an email address for your account or to access the Website, is solely your responsibility and you agree that you will ensure that you comply with all legal obligations that apply to the use of your email address (including if your email is an email of your workplace).
(vi) You agree with us that once your account has been opened:
(a) you will ensure that your Username and password that is used to access the Website and the details of your account, is kept in a safe and secure manner and is not disclosed to any other persons;
(b) you will immediately notify us if you are or become aware, that there is or has been an unauthorised use of your Username and password or account, or any other security breach relating to your account;
(c) you will immediately advise us of any changes to information that you have provided to us as part of the customer registration and account opening process;
(d) you are responsible for any costs associated with your access to or use of the Website;
(e) you are responsible and liable for any person that uses your Username and password, or Payment Details to order Product(s) through the Website (even if this is done without your knowledge, approval or consent); and
(f) we may charge you for all Products that we agree to supply to you, that have been ordered using your Username and password through the Website.
(g) you are responsible for the safe keeping, custody and use of Coupon Codes and Vouchers issued to you by Upfitter.
4. Placing an Order for Products
(i) You may order Products by selecting and submitting your order through the Website in accordance with these Terms.
(ii) An order placed through this Website for Products is an offer by you to purchase the particular Product(s) for the price notified on the Website (including the delivery and other charges and taxes) at the time you place the order.
(iii) You agree to provide us with current, complete and accurate details concerning any orders made by you, when asked to do so by the Website.
(iv) We may ask you to provide additional details or require you to confirm your details to enable us to process any orders you have placed through the Website, and you agree to provide those details to facilitate the order processing.
5. Acceptance or Rejection of an Order
(i) We may accept or reject your order for any reason, in our absolute discretion, including:
(a) if the requested Product is not available, if there is an error in the price or the Product description posted on the Website or in your order;
(b) there is an error in shipping costs (including provided by our third-party logistics partner Shippit.com.au);
(c) if the chosen couriers refuses to provide service for your destination address; or
(d) for any misuse of a Coupon Code or Voucher including if we believe you or someone else is not eligible or authorised to use that Coupon Code or Voucher.
(ii) When we accept an order placed through the Website, an agreement will arise between you and us for the supply of those Products referred to in the order and at the price and with all applicable additional charges referred to in the order.
(iii) When an order is accepted by us, we will supply the Products the subject of that order to you in accordance with these Terms.
(iv) If we reject an order placed by you through the Website, then we will notify you of that rejection at the time you place the order or within a reasonable time after you have submitted your order.
We will accept payment by credit card, debit card, PayPal, Zip and other ecommerce platform payment types, as nominated by us on the Website from time to time. Our payment methods may change and vary from time to time, and we may do so in our absolute discretion, and we may refuse to accept payment methods tendered or offered by you in our discretion.
7. Order Cancellations
We may cancel all or any part of an order (including any orders that we have accepted) prior to the dispatch or delivery of the Products the subject of an order, if:
(a) the Products referred to in that order are not available;
(b) there is an error in the price, or the Product description posted on the Website in relation to the relevant Product the subject of that order;
(c) there is an error in shipping costs (including if provided by our third-party logistics partner Shippit.com.au) ;
(d) the chosen couriers refuses to provide service for your destination address;
(e) the order has been submitted by you in breach of these Terms;
(f) your account has been cancelled or suspended or the agreement with you comprised in these Terms has been terminated.
(g) or any misuse of a Coupon Code or Voucher including if we believe you or someone else is not eligible or authorised to use that Coupon Code or Voucher.
(ii) If we cancel all or any part of an order, then:
(a) we will try to provide you with reasonable notice of that cancellation;
(b) we will not charge you for the cancelled order if we cancel it before the delivery date;
(iii) You may ask us to cancel all or any part of an order (including orders that we have accepted) prior to you receiving a dispatch notification of Products the subject of an order.
(iv) If you ask us to cancel all or any part of an order, then you must provide us with notice and reasons why you wish to cancel the order, before the dispatch of products or services the subject of an order.
(v) We will consider any requests to cancel all or any part of an order and to the extent permitted by law, we are not obliged to cancel all or any part of an order and we may exercise our absolute discretion when considering any order cancellation request by you.
(vii) We are only required to give you reasons why we decline any order cancellation request you have made, to the extent required by law.
(vii) Once we have dispatched or provided Products the subject of an order to you, you cannot cancel all or any part of that order.
(viii) To the extent permitted by law, we are not liable to you for any Loss suffered or incurred by you for any cancellation of an order by us or by you, but we will refund you the price paid for an order if the law requires us to do so.
8. Delivery of Products
(i) The delivery time for Products is subject to stock availability at Upfitter or its suppliers.
(ii) Subject to sub clause (i), the time for delivery of Products, is at least 10 business days for from the date of receipt and payment for your order.
(iii) The delivery period may be extended by up to 28 days by us in our discretion.
(iv) Upfitter only despatches Products for orders, to Australian addresses.
(v) The Upfitter Shipping Policy, which is displayed on the Website, applies to all orders.
(vi) You warrant to Upfitter that any person receiving the Products at the delivery address nominated by you, is authorised by you to do receive same.
9. Prices, Fees and Charges
Prices Generally.(i) We will charge you, and you agree to pay the prices, fees and charges in relation to an order that we accept (as applicable) as follows:(a) the purchase price of each Products that are ordered;(b) any delivery fee for delivering the Products to you;(c) merchant fees charged to us for credit and debit card charges or other ecommerce payment platforms; and(d) any other fees and charges set out in these Terms or advised by us at the time of making the order.(ii) All fees and charges identified in these Terms and all prices for the Products as shown on the Website are inclusive of GST (unless otherwise indicated).(iii) The prices for the Products together with delivery and other charges are displayed on the Website.(iv) Upfitter reserves the right to change prices together with delivery and other charges at any time before acceptance of an order from you.(v) All prices are in Australian Dollars (AUD).Price Details(vi) The purchase price for each Product is displayed in the applicable Product list on the Website at the time you place your order.(vii) The purchase price of a Product on the Website may sometimes fail to correspond to the prices in any retail stores selling the same product.(vii) We are not required or obliged to match any prices for any Products, including matching any prices for a Product that is available through the Website that might be offered by other retailers of similar Products.
Delivery Fee Details(ix) We use a number of different delivery methods depending on the type of your order.(x) A delivery fee is payable in addition to the purchase price of each Product.(xi) If delivery is by courier, Products will not be delivered to an unattended address. Deliveries by courier require a signature from a person at the specified delivery address. In circumstances where no one is available to sign for the delivery, the parcel re-directed to the nearest courier depot and you will be advised of this. You are responsible for collecting the deliveries from that depot or paying an additional charge for re-delivery.(xii) Upfitter may charge additional delivery fees/freight charges (in excess of the fees and charges specified above) for:(a) express or urgent deliveries;(b) special, non-stock and/or bespoke items;(c) heavy, bulky and/or awkward items or bulk or large quantity orders.
10. Product Returns
(i) Upfitter may accept Product returns and at Upfitter’s discretion, may provide a replacement for the Product (subject to availability), an exchange voucher, refund or repair according to its obligations at law.
(ii) You agree to provide Upfitter (in order to enable us to evaluate your return request), with:
(a) your name and contact details;
(b) details of the order number, invoice number or receipt number;
(c) photograph(s) of Product that is damaged during transportation (when requested by Upfitter); and
(d) details of the problem or the reason for your request to the return the Product.
(iii) Upfitter does not accept Product returns where it is not obliged to so at law.
(iv) The Upfitter Returns Policy, which is displayed on the Website, applies to all orders.
11. Your Promises
(i) You promise and warrant to Upfitter that all information and data provided by you to us through the Website (including as part of the customer registration and account opening process) or otherwise, is true, accurate, complete and up to date, and not misleading in any material way;
(ii) You agree that:
(a) you will comply with all laws relating to your use of the Website and your placement of any order with us;
(b) you will review the labels, instructions and information provided on or with the Products before you use them; and
(c) you will use the Website only in accordance with these Terms.
(iii) You agree that you will not (and you will not allow or permit anyone else to) use:
(a) the Website in a manner or way, or post to or transmit to or via the Website any material, which is obscene, indecent, inflammatory or pornographic, or that interferes with other users or our other customers or defames, threatens, menaces, harasses, or offends any person or which prevents any other person from using, accessing the Website;
(b) for the purposes of reselling the Products purchased on the Website except with our written permission;
(c) the Website for fraudulent or speculative enquiries, purchases, orders or requests;
(d) the Website for any activities that breach any laws, infringe a third party’s rights or are contrary to law;
(e) the Website so as to post or transmit any or any other material that may give rise to civil or criminal proceedings against you or us;
(f) another person’s details without their permission or impersonate another person when using the Website or when making an order;
(g) the Website so as to interfere with or hinder the operation of the Website;
(h) the Website so as to modify, adapt, translate or reverse engineer any portion of the Website;
(i) the Website so as to use any website search and retrieval application or other mechanism to retrieve or index any portion of the Website or to knowingly transmit any disabling or malicious code to the Website;
(j) the Website so as to reformat or frame any portion of the web pages that are part of the Website, or to create accounts by automated means or under false or fraudulent pretences;
(k) the Website so as to violate the security of any computer or other network or engage in illegal conduct.
(iv) the Website so as to violate the security of any computer or other network or engage in illegal conduct.
(v) You agree that you will not (and you will not allow or permit anyone else to) use any Coupon Codes or Vouchers we have issued to you;
(vi) You agree that if any Coupon Codes or Vouchers issued to you by Upfitter as contemplated by the preceding sub clause, is lost, stolen, misused, or redeemed by any person without your knowledge, consent or approval (Unauthorised Conduct), then to the extent permitted by law, Upfitter is not liable to you for any Claim you may make against Upfitter in relation to any Loss suffered or incurred by you as a consequence of such Unauthorised Conduct, and you expressly release Upfitter from all such Claims.
12. Statutory Terms
(i) Nothing in this clause limits or varies any rights you may have as against Upfitter that are terms, conditions, guarantees and/or warranties expressed or implied by statutory provision or by law and which are Non Excludable Terms.
(ii) Any terms, conditions, guarantees and/or warranties expressed or implied by statutory provision or by law, other than Non Excludable Terms, do not apply to these Terms and are expressly agreed to not so apply.
(iii) Subject to sub clause(i), Upfitter makes no express or implied warranties or guarantees in relation to the Products (including but not limited to the quality, fitness for purpose, condition or merchantability of the Products).
(iv) Upfitter advises and you acknowledge and agree in relation to the Products, that Upfitter does not have spare parts and repair facilities for the Products
13. Upfitter Liability
(i) Nothing in this clause limits or varies any rights you may have as against Upfitter that are terms, conditions, guarantees and/or warranties expressed or implied by statutory provision or by law and which are Non Excludable Terms.
(ii) Subject to sub clause (i), to the extent permitted by law, Upfitter’s liability to you:
(a) in the case of services, is limited to the resupply of the services or to pay you the cost of resupply; and
(b) in the case of goods, is limited to the supply of equivalent goods, the replacement of the goods, the repair of the goods, or to pay you for the cost of replacing the goods (or of acquiring equivalent goods), or to pay you for the cost of having the goods repaired;
(iii) Subject to sub clause (i), to the extent permitted by law Upfitter do not warrant or represent the suitability of the Website or a Product for any purpose;
(iv) Subject to sub clause (i), to the extent permitted by law Upfitter is not liable to you for any Loss suffered or incurred by you in relation to your use of the Website or any order made by you from Upfitter or:
(a) in relation to your loss or corruption of data (relating to those matters); or
(b) any Claim against you by any person or entity (relating to those matters).
14. Changes to these Terms
(i) Subject to sub clause (ii), we may change these Terms at any time, and such modifications will be effective as soon as they are posted on the Website.
(ii) After these Terms have been modified, varied or altered, you agree to be bound by the changes to those Terms by continuing to use the Website or by making an order.
(iii) Where you have an order that has been accepted by us, these Terms will apply to that order as they applied at the time you placed your order.
15. Termination, Cancellation and/or Suspension of Account
(i) We may immediately suspend, cancel, terminate or limit your access to and use of the Website and (where relevant) your account, and/or the agreement constituted by these Terms if:
(a) you do not remedy a breach that capable of remedy, within 10 days of our notifying you of that breach; or
(b) there is a breach of these Terms by you that cannot be remedied.
(ii) We may terminate the agreement constituted by these Terms, for convenience at any time upon providing notice to you of that termination for convenience.
16. Website Ceases
We may stop making the Website (or any part of it) available to you at any time in our discretion PROVIDED THAT any orders that we have accepted will not be affected, subject to these Terms.
17. Products Sold On After Market Basis
You acknowledge and agree that when you purchase Products from us, that:
(i) the Products are sold by Upfitter are on an ‘after market’ basis and as an after market accessory;
(ii) it is your responsibility to ensure that the Products are suitable for your intended use of the Products, or in relation to your intended use of the Products on or for the vehicle you intend to use the Products with, and the vehicle manufacturer’s specifications and requirements relating to such use;
(iii) to the extent permitted by law, Upfitter is not liable to you for any Claim you may make against Upfitter in relation to any Loss suffered or incurred by you as a consequence of your use of those Products adversely impacting or voiding, any vehicle manufacturer’s warranty or other Product warranty and you expressly release Upfitter from all such Claims;
(iv) that the Products sold by Upfitter may require specialist or licensed fitment (including to any vehicle you intend to use the Products on or with) and to the extent permitted by law, that Upfitter is not liable to you for any Claim you may make against Upfitter in relation to any Loss suffered or incurred by you (and you expressly release Upfitter from all such Claims):
(a) relating to damage caused to the Product; or
(b) relating to damage caused to any applicable vehicle concerning any use or fitments of the Products on or for any such applicable vehicles.
(v) you will abide by your obligations under the next clause of these Terms concerning any fitment or installation of the Products and that you will ensure that you comply with all dealer or manufacturers specification’s and requirements when using, fitting or installing the Products for or on any applicable vehicle.
18. Services and Installations
(i) You agree that where you order Products from us, that we are not responsible for the fitment or installation of those Products to the extent any installation is required unless you have also purchased services from us for the installation of those Products.
(ii) You agree to use trained and where applicable licenced tradesmen or other professionals or experts for the fitment or installation of Products that you have purchased from us, at your cost and expense and in accordance with law.
(iii) Any videos, photographs or anything else you view on the Website (or any other website) may depict activities undertaken by qualified and trained professionals and/or experts. You agree not to attempt to undertake or to replicate any such activities shown on the Website (or any other website).
(iv) You agree to:
(a) review all information and specifications for the Products purchased by you , and from the manufacturer of the vehicle or system in respect of which the Product relates or has been purchased;
(b) obtain all necessary advice and assistance from qualified experts, tradesmen and/or professionals prior to using, fitting or installing the Products ;
(c) comply with all applicable laws, concerning the use, fitment or installation of the Products; and
(d) engage in safe practices at all times concerning the use, fitment or installation of the Products and in accordance with all applicable laws.
19. Upfitter Dealer and Website Promotional Activity
You acknowledge and agree that:
(i) dealers listed on the Website are neither endorsed nor recommended by Upfitter;
(ii) any fitment or installation of Products by a dealer is the subject of a separate agreement or arrangement bewen you and that dealer, and with no involvement of, or agreement by Upfitter;
(iii) There is no agreement, arrangement, contract or understanding between you , Upfitter, and the dealer relating to your purchase of the Products and any fitment or installation of Products by any such dealer;
(iv) Upfitter is an ‘authorised brand partner’ of RAM Trucks Australia, HOWEVER THE PRODUCTS ARE NOT in any way represented as a genuine manufacturer accessories of RAM Trucks Australia or FCA US LLC;
(v) Upfitter is not associated with FCA US LLC;
(vi) All product & customer reviews on the Website are not endorsed by Upfitter, and you will not and should not rely on them.
20. Intellectual Property
(i) You acknowledge and agree that this clause applies to all Intellectual Property that is owned by us, or is licenced to us in relation to:
(a) our business, tradenames, or trade marks;
(b) anything relating to the Website or its the software and content/materials; or
(c) anything else we do in the conduct of our business.
(ii) You agree you will not, and must not, do anything that in any way infringes, or adversely affects our rights, title or interest in or in respect of our Intellectual Property referred to in sub clause (i).
21. Computer Viruses & Web Links
(i) You agree that you are responsible for ensuring you have in place adequate and suitable protections from computer viruses when obtaining any information from the Website, and you acknowledge and agree that any information (including any files) obtained by you from or through this Website may not be free from viruses or other faults or defects.
(ii) To the extent permitted by law, you agree that Upfitter has no responsibility or liability to you for any Loss suffered or incurred by you in relation to viruses or other faults or defects concerning you obtaining any such information from the Website.
(iii) You acknowledge and agree the Website may contain links to external websites that are not operated by us or our related bodies corporate and that Upfitter does not make any endorsements or representation as to the accuracy of information contained within those websites.
(iv) As concerns any website links, you agree these are provided for your convenience only and you agree that to the extent permitted by law:
(a) Upfitter makes no representations or warranties, or have any responsibility or liability to you for Loss suffered or incurred by you concerning those websites or links;
(b) Upfitter do not endorse those websites or links, or the goods or services that are provided at those websites or links; and
(c) any access and use of those websites or links, or acquisition of the goods or services made available at those websites or links, are undertaken solely at your own risk.
22. Force Majeure
If Upfitter is not able to perform and obligations under these Terms as a result of any event that is out of its control, including but not limited to government intervention, legislative change or court order, military activity, war, strikes, terrorism, financial crisis, pandemics, epidemics, failure of a supplier to supply the Products or the delivery services for despatch of the Products to you, or a failure of a financial institution to process a transaction the subject of an order, then Upfitter may delay the completion of the delivery of the Products or cancel an order, in its discretion.
(i) You agree that in relation to the Products, that if the Products the manufacturer, or supplier (other than Upfitter) of the Products display that they have a warranty or guarantee other than as set out in these Terms, then to the extent permitted by law:
(a) those additional warranty or guarantees are not made or provided by Upfitter;
(b) no Claim may be made by you against Upfitter in relation to those additional warranties or guarantees, except where the law provides that such Claims may be made; and
(c) you release Upfitter form all such Claims you had, have or may have as concerns the additional warranties or guarantees except where such release would contravene a Non Excludable Term or the law provides that such releases may not be provided by you by agreement.
(ii) You agree that in relation to the Website:
(a) Upfitter does not represent or warrant as to the reliability, accuracy or completeness of the information contained on this Website and is general in nature and not advice.
(b) To the extent permitted by law, Upfitter is not responsible or liable for any Loss suffered or incurred by you for errors in, or omissions from, the information in the Website.
(c) Illustrations, information, videos and photos contained in the Website are only sample representations of the Products advertised, and variations may occur from time to time.
(d) Anything on the Website (other than as concerns orders by you that are accepted by Upfitter) are intended to be an information source only. Upfitter makes no statements, representations or warranties about the accuracy or completeness of these matters.
(e) To the extent permitted by law, and subject to these Terms, Upfitter is not liable for any Loss suffered or incurred by you in relation to your use of the Website and its contents;
24. General Provisions
(i) You must not assign any rights under these Terms or novate your rights or obligations under these Terms.
(ii) You agree the Website is an ecommerce Website for the browsing and/or ordering Products advertised on the Website from Upfitter.
(iii) If the whole or any part of a provision of these Terms is or shall become void, unenforceable or illegal, the remainder of these Terms shall have full force and effect. You agree that in such a case, the provision held void, unenforceable or illegal shall if it is possible to do so according to law, be replaced by such provision that in its commercial and legal context is most similar to the provision held void, unenforceable or illegal.
(iv) These Terms supersede any previous agreements, arrangements or understandings you may have with us.
(v) These Terms are governed by the laws of NSW Australia. You and Upfitter submit to the non-exclusive jurisdiction of the courts of that place.
(vi) The non-exercise of or delay in exercising any power or right of Upfitter does not operate as a waiver of that power or right, nor does any single exercise of any power or right preclude any other or further exercise of it or the exercise of any other power or right.
(vii) No provision of these Terms will be construed adversely to Upfitter solely on the ground that Upfitter was responsible for the preparation of these Terms or that provision.
(viii) Headings and under linings are for the convenience of reference only and shall not affect the interpretation of these Terms.
(ix) Words importing the singular include the plural and vice versa; Words importing a gender include any gender and expressions importing natural persons shall include companies and any other bodies or entities.
(x) References to clauses, are references to clauses of these Terms.
In these Terms:
Claim means any claim, action, proceeding or demand made or commenced, however arising and whether present or future, fixed or unascertained, actual or contingent;
Coupon Codes means all the details of all relevant codes (in printed or electronic form) provided to you by Upfitter that allow or can be used to obtain access to or use of Vouchers.
GST Goods and Services Tax or GST as contemplated by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property means business names, copyrights, patents, trade marks, service marks, trade names, designs, and similar industrial, commercial and intellectual property (whether registered or not and whether protected by statute or not and including formulae, Confidential Information, recipes and knowhow), and any thing that is similar or analogous to the foregoing and which would be a property right and all rights as a licensee in respect of any of the foregoing.
Loss means a damage, loss, cost, expense or liability however arising and whether present or future, fixed or unascertained, actual or contingent (including without limitation for loss of revenue, loss of profits, failure to realise expected profits or savings and any other commercial or economic loss of any kind).
our means Upfitter.
Username means the email address that you provided to us as part of the registration process to use the Website and any other username that you nominate, or we provide to you as part of the opening of an account with us.
Non Excludable Terms are terms, conditions, guarantees and/or warranties expressed or implied that by statutory provision cannot be altered, varied or deleted by agreement.
Product means each good or service that is advertised or promoted on the Website or is the subject of an order and Products has a corresponding meaning where there is more than one good or service as the context permits.
Payment Details means the credit card, bank account, payment provider or ecommerce platform information provided by you to us in connection with the payment of an order.
Upfitter means Upfitter Pty Ltd A.B.N. 34 000 290 611.
us means Upfitter.
we means Upfitter.
Website means the website at www.upfitter.com or such other website or internet platform (including www.amazon.com.au or www.Ebay.com.au used by Upfitter for ecommerce transactions for sale of Products)
you and your means any person who uses the Website and is referred to in these Terms as “you” or “your”.
Voucher means any of the following issued to you by Upfitter:
(a) gift and store vouchers and the like;
(b) digital gift cards, digital certificates, and the like;
(c) store credits and the like;
(e) refunds either including through Upfitter promotional activity, store credits or refunds; and
(f) anything else of a similar kind provided by Upfitter