In this Agreement, unless the contrary intention appears or the context otherwise requires:
Agreement means these ‘General Terms and Conditions’ plus (as applicable and as attached) the:
(a) Application for Trading Account;
(c) Credit Terms;
(d) Sale, Hire & Repair Terms;
(e) Transport Terms; and
any other document, such as a purchase order, reasonably ancillary to this Agreement, of which documents have the precedence of terms in the order set out above with the ancillary documents having the highest precedence and the ‘General Terms and Conditions’ having the lowest precedence;
Amount Payable means the amount shown as payable on a Statement or an invoice;
Applicant means the Applicant named in the attached Application for Trading Account document;
Claim includes any claim, notice, demand, costs (including legal costs and expenses), debts, dues, liabilities, damages, losses, taxes, duties, fees, suits, action, demands, proceeding, litigation, judgment, however it arises;
Credit Terms means, in the case of an application for a trading account, the ‘Credit Terms’ attached to this Agreement;
Due Date means the due date shown on the Statement or relevant Tax Invoice (or within 7 days if not displayed) unless otherwise agreed in writing;
Goods means any goods to be supplied by the Supplier to the Applicant;
GST has the same meaning as in the GST Act and includes any replacement or subsequent similar tax;
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Guarantee means, in the case of a guarantee and indemnity the ‘Guarantee and Indemnity’ attached to this Agreement;
Guarantor means the guarantor named under the Guarantee;
Jurisdiction means Perth, Western Australia;
Person includes a natural person, firm, corporation, government authority or other body or organisation;
PPS Act means the Personal Property Securities Act 2009 (Cth);
PPSR means the ‘Personal Property Securities Register’ as defined within the PPS Act;
Privacy Act means Privacy Act 1988 (Cth);
Sale, Hire and Repair Terms means, in the case of a sale hire or repair arrangement, the ‘Sale, Hire and Repair Terms’ attached to this Agreement (if applicable);
Services means any services to be supplied by the Supplier to the Applicant and in the case of transport services, these include collection, loading, unloading, carriage, transportation, delivery and storage of any consigned or carried goods;
Statement means a statement at any time showing the debit or credit balance of a Trading Account at the date shown on the statement;
Trading Account means the trading account operated by the Supplier to supply, sell or hire Goods and Services of whatever nature to the Applicant from time to time on credit; and
Transport Terms means, in the case of a transport arrangement, the ‘Transport Terms’ attached to this Agreement (if applicable).
In this Agreement, unless the context otherwise requires:
(a) words importing the singular include the plural, and vice versa;
(b) the word “person” includes a natural person and any body or entity whether incorporated or not;
(c) headings are for convenience only and must be ignored in construing this Agreement;
(d) references to any person or any party include references to their or its respective representatives, nominees, contractors, sub-contractors, successors, permitted assigns and substitutes, affiliated companies, executors and administrators to the maximum extend allowable;
(e) references to any law are references to that law as amended, consolidated, supplemented or replaced and includes references to regulations and other instruments under it;
(f) references to time are references to time in the Jurisdiction;
(g) the words “include” or “including” or cognate words and expressions are to be construed without limitation;
(h) references to money and currency are Australian money and currency;
(i) if a payment or other act (but for this clause) be made or done on a day which is not a Business Day, then it must be made or done on the previous Business Day;
(j) a warranty, representation, covenant, liability, obligation or agreement given or entered into by more than one person binds them jointly and severally;
(k) a reference to a document includes the document as modified from time to time and any document replacing it;
(l) a reference to an obligation, warranty, covenant, representation, guarantee, security, mortgage, charge or a liability (Responsibility) in reference to the Applicant will mean that the Guarantor (to the extent it is able) has the same Responsibility; and
(m) the words “in writing” include any communication sent by letter or facsimile transmission or email.
No order for Goods or Services submitted by the Applicant is deemed to be accepted by the Supplier unless and until confirmed in writing by an authorised representative of the Supplier.
No order which has been accepted by the Supplier may be cancelled by the Applicant.
The Supplier reserves the right to accept or reject (in whole or in part), in its absolute discretion, any order for Goods or Services received by it from the Applicant and the Supplier does not accept any liability for any losses the Applicant may suffer as a result of any acceptance or rejection.
Unless otherwise agreed between the Supplier and the Applicant in writing, the content of any marketing materials or the content of other printed materials or the Supplier’s website are not binding on the Supplier and are excluded from any contract.
Subject to any statutory rights the Applicant may have as a consumer, all payments accepted by the Supplier are non-refundable.
Any payments tendered by the Applicant to the Supplier shall be applied in the following order:
(a) as reimbursement for any collection costs;
(b) in payment of any interest charged;
(c) in payment of any storage fees charged;
(d) in satisfaction of any other amounts payment under this Agreement, including under any indemnity; and
(e) in satisfaction or part satisfaction of the oldest outstanding portion of the Applicant’s account.
If there is any underpayment of the price by way of any mistake or omission on the part of the Supplier, the difference between the price agreed in the contract and the price paid by the Applicant is a debt due from the Applicant to the Supplier.
If the Applicant fails to pay the contract price and other amounts (and without prejudice to any other rights of the Supplier under this Agreement) the Applicant must pay to the Supplier interest on all unpaid amounts from the date when due until payment at the rate of 2% above the maximum overdraft rate charged by the Supplier’s bankers from time to time being in force.
Time is of the essence in respect of the Applicant’s obligation to make payment for Goods or Services provided by the Supplier to the Applicant.
The Applicant fully indemnifies and releases the Supplier, its directors, employees, servants agents and representatives (Indemnified Parties) from all Liability and Claims (including legal costs on a full indemnity basis), whether caused by the negligence of the Indemnified Parties, or otherwise in relation to:
(a) breach by the Applicant of any of its obligations under this Agreement;
(b) the provision of Goods and Services or their resale;
(c) cancellation of orders;
(d) the Supplier exercising its right of entry;
(e) maintenance and repair of hired Goods or if not capable of maintenance or repair, the full replacement value of the Goods,
(f) the costs of locating, recovering and repairing hired Goods;
(g) any unplanned storage and redelivery of Goods or consignment;
(h) any issue arising from dangerous or hazardous Goods or consignments; and
(i) disposal, destruction, abandonment or rendering harmless any Goods or consignments,
and acknowledges that the Applicant will be liable for all Claims to the maximum extent allowable by law, regardless of the existence of an insurance policy which may cover all or partially any liability. The Applicant will pay on demand all costs indemnified against under this indemnity.
Where by express written agreement the Supplier becomes responsible for a Claim, no Claim will be allowed unless the Claim is lodged in writing within 72 hours and the Applicant substantiates the Claim.
Failure to Claim within 72 hours is evidence of satisfactory performance. Time is of the essence in this clause.
Subject to agreement between the parties in writing:
(a) the Supplier may at any time arrange reasonably required insurance, for an additional fee, over the Goods, which the Applicant agrees to pay; or
(b) the Applicant may take out its own insurance cover for the Consignment at the request of the Supplier.
Should 7(b) above apply, the Applicant will make the Supplier a co-insured to the Applicant’s insurance policy.
In the case where the Applicant enters into the Agreement as the trustee of a trust, it is acknowledged that the Applicant will be liable under this Agreement both as trustee of the trust and in the Applicant’s own right and that in addition the assets of the trust will be available to satisfy the Applicant’s liabilities under the Agreement.
The Applicant grants to the Supplier a security interest in:
(a) all Goods and Services supplied by the Supplier to the Applicant; and
(b) over any monies outstanding from time to time as security of the Applicant’s obligations under the Agreement.
The Applicant acknowledges and agrees that the Agreement will be taken to be a security agreement for the purposes of each relevant security interest and each supply of Goods and Services to the Applicant by the Supplier.
The Applicant consents to the Supplier perfecting its security interest in all Goods and Services supplied by the Supplier to the Applicant from time to time (and all proceeds relating to the same) by registration on the PPSR.
The Applicant must do all things that the Supplier may require from time to time to ensure that the Supplier has a perfected purchase money security interest over Goods and Services supplied by the Supplier to the Applicant.
To the extent the law permits, the Applicant and the Supplier agree that:
(a) for the purposes of section 115(1) and 115(7) of the PPS Act:
(i) the Supplier need not comply with sections 95,
118, 121(4), 125, 130, 132(3)(d) or 132(4) of the PPS Act; and
(ii) sections 142 and 143 of the PPS Act are excluded;
(b) for the purposes of section 115(7) of the PPS Act, the Supplier need not comply with sections 132 and
137(3) of the PPS Act;
(c) if the PPS Act is amended after the date of the Application Form to permit the Applicant and the Supplier to agree to not comply with or to exclude other provisions of the PPS Act, the Supplier may notify the Applicant that any of these provisions is excluded, or that the Supplier need not comply with any of these provisions, as notified to the Applicant by the Supplier; and
(d) the Applicant will not exercise its rights to make any request of the Supplier under section 275 of the PPS Act, to authorise the disclosure of any information under that section or to waive any duty of confidence that would otherwise permit non- disclosure under that section.
To the extent the law permits, the Applicant waives:
(e) its rights to receive any notice that is required by:
(i) any provision of the PPS Act (including a
notice of a verification statement); or
(ii) any other law before a secured party exercises a right, power or remedy; and
any time period that must otherwise lapse under any law before a secured party exercises a right, power or remedy.
If the law which requires a period of notice or lapse of time cannot be excluded, but the law provides that the period of notice or lapse of time may be agreed, that period or lapse is one day or the minimum period the law allows to be agreed (whichever is the longer). However, nothing in this clause prohibits the Supplier from giving a notice under the PPS Act or any other law.
The Applicant acknowledges that it has received value as at the date of first delivery or collection of Goods or Services supplied by the Supplier and has not agreed to postpone the time for attachment of the security interest granted to the Supplier.
Terms used in this clause which are defined terms in the PPS Act, will have the same meaning as given to them in the PPS Act.
Any expenses, costs or disbursements (including solicitors’ costs on a full indemnity basis) incurred by the Supplier in recovering any outstanding monies under the contract is to be paid by the Applicant immediately upon the Applicant receiving written demand for payment from the Supplier.
If the Supplier is prevented or delayed (directly or indirectly) from carrying out an obligation or making delivery of the Goods or Services or any part thereof, either in whole or in part by reason of force majeure or any cause outside its control or by reason of strike, lockout, labour dispute or shortage, trade dispute, fire, breakdown, flood, serious inclement weather, cyclone, natural disaster, earthquake, lightning, explosion, accident, road or rail closure, rail derailment, wharf delays, act or omission of air traffic control, act of god, acts of war, acts of public enemies, terrorist acts, sabotage, epidemic, quarantine restriction, riots or civil commotion, the Supplier’s obligations will be suspended and the Supplier will be under no liability whatsoever to the Applicant and the Supplier is be entitled at its option either to cancel the contract or to extend the time for its performance of the contract.
The Supplier may terminate this Agreement at any time by giving the Applicant 7 days’ notice in writing.
The Supplier may terminate this Agreement immediately by written notice to the other party if the Applicant:
(a) is in default under the terms of this Agreement and, if the default is capable of remedy but the Applicant does not remedy that default within 14 days of notice requiring it to do so; or
(b) goes into liquidation or provisional liquidation, has an administrator or controller appointed to it or any of its property, fails to comply with a statutory demand, is unable to pay its debts or otherwise becomes insolvent.
On termination or expiry of this Agreement the Applicant must immediately:
(c) pay all outstanding amounts due to the Supplier; and
(d) return all Goods that have not been paid for by the Applicant but may be in the possession of the Applicant to the supplier.
A notice under this Agreement must be signed by or on behalf of the party giving it, addressed to the party to whom it is to be given and:
(a) delivered by hand to that party’s address;
(b) sent by pre-paid mail to that party’s address; or
(c) sent by email to that party’s email address.
A notice given to a party in accordance with this clause is treated as having been given and received if:
(d) delivered to a party’s physical or email address, on the day of delivery if a Business Day, otherwise on the next Business Day; or
(e) sent by pre-paid mail, on the third Business Day after posting.
For the purposes of this clause the addresses and email addresses of a party are those set out in the ‘Application for Trading Account’, or another address of which a party may from time to time give by Notice to any other party.
To the extent that a party makes a Taxable Supply under or in connection with this Agreement, the consideration payable by a party under or in connection with this Agreement represents the value of the Taxable Supply for which payment is to be made and on which GST is to be calculated.
If a party makes a Taxable Supply under or in connection with this Agreement for a consideration, which represents its value, then the party liable to pay for the taxable supply must also pay at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.
The right of a party to payment under this clause is subject to a Tax Invoice being issued and delivered by the supplier of the taxable supply to the recipient.
The Applicant acknowledges that they have had the opportunity to seek and obtain legal advice in relation to this Agreement.
This Agreement contains the entire understanding between the parties concerning the subject matter contained herein. All previous representations, warranties, explanations and commitments, expressed or implied, affecting the subject matter (except for agreements and deeds and documents reasonably ancillary to this Agreement and signed or executed on or about the same time) are superseded by this document and have no effect.
The Applicant must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this Agreement.
The Applicant acknowledges that the terms of this Agreement are reasonable and necessary.
Except as expressly stated otherwise in this Agreement, the rights of a party under this Agreement are cumulative and are in addition to any other rights of that party.
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction is ineffective to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.
The obligations in this Agreement (to the maximum extent possible), survive expiry of this Agreement and are enforceable at any time at law or in equity.
The non-exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other or further exercise of it or the exercise of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
To the extent enforceable this Agreement and its subject matter are governed by the law in the Jurisdiction and the parties submit to the non-exclusive jurisdiction of the Jurisdiction’s courts and any courts that may hear appeals from those courts in respect of any proceedings in connection with this Agreement and its subject matter.
The following terms apply to all credit accounts and all supplies of Goods and Services by the Supplier to the Applicant on credit.
The Supplier may, in its absolute discretion and without assigning any reason:
(a) grant, sell or supply any Goods and Services to the Applicant, as requested by the Applicant from time to time, on credit;
(b) set, change or limit credit in relation to the Trading
(c) refuse to open a Trading Account;
(d) close the Trading Account and refuse to extend credit to the Applicant on any account;
(e) suspend or terminate the supply of Goods and
(f) place such conditions on a trading account as the
Supplier determines is necessary;
(g) debit the Trading Account with all amounts payable by the Applicant to the Supplier under these Credit
(h) issue a Statement; and
(i) terminate the Trading Account by notice in writing to the Applicant accompanied by a Statement showing the final balance of the Trading Account.
The Supplier’s consent to open the Trading Account does not entitle the Applicant, at any time, to credit or any particular amount of credit.
The Applicant must, without demand from the Supplier, pay the Amount Payable on or before the Due Date.
This clause does not affect the obligation of the Applicant to pay the entire Amount Payable prior to a Due Date where required under any other provision of these Credit Terms.
By setting the Due Date on a particular Statement:
(a) the supplier does not represent that the Due Date will be the same number of days from the date of the Statement in future Statements; and
(b) the supplier does not limit its right to vary the number of days between the date of a Statement and the Due
Date from one Statement to another.
Without limiting any other rights of the Supplier under these Credit Terms or at law, if the Applicant defaults in the payment of any monies due to the Supplier, all monies owing by the Applicant to the Supplier will become immediately due and payable, together with all reasonable expenses, costs or disbursements (including legal costs on a full indemnity basis) incurred or to be incurred by the Supplier in recovering any outstanding monies from the Applicant, and the Supplier may, in its absolute discretion, do any one or more of the following:
(a) enforce its rights under these Credit Terms and under any security granted in favour of the Supplier by the Applicant.
(b) demand in writing that all such monies are paid in full by the Applicant to the Supplier within 7 days of the date of that demand.
(c) charge default interest on all outstanding amounts due and owing to the Supplier commencing from the date such amounts become due and continuing until the date payment is actually received. Default interest will be calculated at the rate of 2% above the maximum overdraft rate of the Supplier’s bankers for the time being in force.
(d) enter the Applicants premises or any other premises where the Goods are stored at any time following the failure to remedy any default and retake possession of any Goods supplied by the Supplier to or on behalf of the Applicant that are the subject of any security interest granted in favour of the Supplier or which are the property of the Supplier.
(e) take any action under any security granted in favour of the Supplier to recover any Goods which are part of
the collateral under that security, and recover any proceeds relating to the collateral under that security.
(f) enforce any right or remedy provided to the Supplier as a secured party under Chapter 4 of the PPS Act.
(g) refuse to supply further Goods and Services to the
(h) agree to only supply further Goods and Services to the Applicant on the condition that the Applicant pays for such further Goods and Services in advance to or immediately upon delivery by the Supplier.
(i) immediately terminate this Agreement upon notice to the Applicant and take such action as the Supplier deems necessary to recover all amounts due.
Any payments tendered by the Applicant to the Supplier will be applied in the following order:
(a) as reimbursement for any enforcement or recovery costs incurred by the Supplier;
(b) in payment of any interest charged;
(c) in satisfaction of any other amounts payable under these Credit Terms, including under any indemnity; and
(d) In satisfaction or part satisfaction of the oldest
outstanding debit on the Applicant’s Trading Account.
The Applicant acknowledges that, unless the Supplier determines otherwise in its absolute discretion, the Supplier will not extend any further credit to the Applicant until all defaults by the Applicant have been remedied to the Supplier’s satisfaction.
Until the Supplier receives payment of the whole of the purchase price for all Goods and Services supplied to the Applicant, the property in any Goods supplied under that Order remains with the Supplier notwithstanding that the risk passed to the Applicant upon delivery.
The Applicant will ensure that the Goods are always able to be identified from any other Goods that may be in their possession. If the Applicant deals, sells or trades with the Goods then the proceeds of any sale of the Goods will remain the property of the Supplier until all Goods and Services have been paid for entirely.
Should the Applicant be in default of these Credit Terms, the Applicant authorises and allows the Supplier or its representatives, servants, agents or employees to enter upon the premises in which the Goods are housed for the purpose of retaking possession.
The Supplier will not be liable for any loss suffered by the Applicant that results from the Supplier retaking possession of the Goods.
The Applicant will be liable and responsible for all costs incurred by the Supplier in taking any action to retake possession of any Goods or in enforcing any of its rights under this Agreement or any security granted in favour of it.
In applying for a Trading Account the Applicant gives permission to the Supplier and any credit reporting agency
or similar organisation to:
(a) use the personal information supplied by the Applicant to assess the credit worthiness of the Applicant;
(b) obtain a consumer credit report about the Applicant;
(c) create or maintain a credit information file containing information about the Applicant; and
(d) notify other credit providers or any credit reporting agency of any default by the Applicant.
The permission is effective from the date of the Application Form until the termination of the Trading Account or notice from the Supplier that it declines to provide, or continue to provide, credit to the Applicant. The information that can be used can include, without limitation, anything about the Applicant’s credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to use or exchange under the Privacy Act.
The following terms will apply where the Agreement is a sale, hire or repair agreement.
The Applicant will take delivery of the Goods and Services the subject of a contract within 7 days of notification from the Supplier that the Goods and Services are ready for delivery and the Supplier will be under no obligation to make delivery before payment of the purchase price in full.
If the Applicant fails to take delivery of the Goods and Services in accordance with this clause then the Applicant will pay to the Supplier all storage, handling and redelivery costs arising from the delay.
If delivery of the Goods or Services is made in installments, each installment will be construed as constituting a separate contract to which all the provisions of these Supply Conditions will (with any necessary alterations) apply.
Unless the otherwise provided in writing, the Supplier will be entitled to make partial deliveries or deliveries by installments and to determine the route and manner of delivery of the Goods and will for the purpose of any statute relating to the sale or repair of the Goods be deemed to have the Applicant’s authority to make such a contract with any carrier as the Supplier may deem reasonable.
Delivery of the Goods by the Supplier to any carrier or bailee, whether named by the Applicant or not, for the purpose of transmission to the Applicant will be deemed to be delivery of the Goods to the Applicant.
Delivery of the Goods will be deemed to have taken place at the earliest point in time of when the events specified in this clause takes place. Signature of any delivery note by any agent, employee or representative of the Applicant or by any independent carrier will be proof of the delivery.
Unless a credit arrangement is in place, the Applicant will pay to the Supplier the contract price for the hire or acquisition of Goods or for the Services in advance to or upon supply of the Goods or Services. The price will be paid without discount or allowance by cheque or EFT, payable to the Supplier using the account or payment details specified in the contract or as otherwise advised by the Supplier. The Applicant will not be entitled to withhold payment or make any deduction from the price in respect of any alleged set off, counterclaim or dispute. The price of the sale or repair of the Goods will include any charges, taxes and packing costs listed in the contract but will not include:
(a) any increase in the price to the Supplier arising from delivery of Goods or Services to a place at a time or in a manner other than as agreed resulting from any request made by the Applicant or authorised representative of the Applicant or any other reason whatsoever beyond the control of the Supplier; or
(b) any variation in the price of the Goods or Services arising from any mistake or omission on the part of the Supplier, its servants or agents in relation to the price, charges, taxes or packing costs of the Goods or Services, and the Applicant will pay the Supplier the amount of any such increases or variations at the
same time as it pays the contract price.
If the Applicant fails to pay for Goods by the Due Date, the Supplier may give the Applicant written notice that the Supplier intends to repossess the Goods and resell them.
If the Applicant fails within 7 days of the date of any such notice to pay the Supplier all amounts then payable under the contract the Supplier will be entitled to retake possession of the Goods and for that purpose the Applicant irrevocably licenses and authorises the Supplier to enter upon the premises where the Goods may be situated.
This clause applies to Goods which are hired and the period of hire will commence from the time and date when the Goods are delivered and will terminate when the Goods are returned to the Supplier’s premises.
During the contract the Applicant will:
(a) keep the Goods at the delivery address and in its own possession and not remove the same from that address without first giving written notice to the Supplier of its destination and not allow the Goods be transferred to any other country or jurisdiction without the prior written consent of the Supplier;
(b) permit an authorised representative of the Supplier at all reasonable times to enter upon the premises or vessels where the Goods are located and to inspect, maintain, repair and test the Goods;
(c) take all reasonable and proper care of the Goods, keep the Goods in good condition and not subject the same to any misuse (normal wear and tear excepted);
(d) ensure that any instructions or manuals supplied by
the Supplier for use of the Goods will be fully observed and ensure that anyone using the Goods has been provided with a copy of the instructions and manuals, has read them and is fully aware of the instructions and manuals prior to using the Goods;
(e) take all necessary steps to ensure that the Goods will be safe and without risks to health and safety when properly used by it;
(f) ensure that the Goods are operated in a skilful and proper manner and by persons who are fully licenced (as required), trained and competent to operate the same;
(g) preserve on the Goods the Supplier’s and any manufacturer’s identification number or mark or any nameplate that is or should be upon the Goods. The Applicant agrees to allow one or more GPS tracking devices to be fixed to the Goods if so required by the Supplier;
(h) arrange and maintain at its expense adequate insurance for the goods satisfactory to the Supplier. Such insurance will commence from the time and date of delivery for the period of hire up to and including the date when the Goods are delivered back to and received by the Supplier and acknowledged by it in writing;
(i) notify the Supplier in writing of any Claim relating to the Goods;
(j) not sell, assign, sub hire, transfer or charge the Goods or any part thereof or the benefit of the contract or part with possession of the Goods or any part thereof;
(k) not make any alterations, modifications or technical adjustments or do, or subject to this Agreement, attempt any repairs to the Goods without the prior written consent of the Supplier and the Applicant acknowledges that any items or non-expendable material not returned to the Supplier will be charged to it at full replacement cost;
(l) not by any act or default render the Goods liable to any distress, execution or other legal process;
(m) procure that by the terms of any mortgage, charge or debenture of or in respect of its assets or any premises or vessel in which the Goods may be installed or stored no rights whether present, future or contingent are created or become exercisable in respect of the Goods notwithstanding that the Goods may be or have become a fixture thereof. The Applicant acknowledges the right on the part of the Supplier to notify any mortgagee or chargee from time to time of the Goods and of such of these terms and conditions as the Supplier will consider appropriate; and
(n) upon expiry of the period of hire, return the Goods at
its expense to the Supplier unencumbered and in good repair and condition.
The Applicant will notify the Supplier if any maintenance of the Goods is required. The Applicant will undertake routine maintenance but will first obtain the Supplier’s written consent with other maintenance and repairs be undertaken by the Supplier if the Applicant at its expense returns the Goods to the Supplier. The Applicant indemnifies all costs and expenses incurred by the Supplier where the Supplier has returned them to an adequate condition.
Those persons who are: intoxicated or under the influence of any form of drug, not holding the relevant driver’s licence, or have held a driver’s license under 2 years are strictly prohibited from operating any Goods hired from the Supplier. The Goods must not under any circumstances be used without the Supplier’s express agreement: on unsealed roads, off-road, to carry passengers or animals, to tow anything or for any other unreasonable, illegal or reckless purpose.
The Supplier will:
(a) in relation to Goods which are hired to the Applicant, retain absolute title to those Goods (even if the Applicant becomes insolvent) and the Applicant’s right to use the hired Goods as bailee only;
(b) in relation to Goods which are sold to the Applicant, remain the sole and absolute owner of the Goods until the price for the Goods has been received in full by the Supplier from the Applicant;
(c) in relation to Goods provided by the Supplier in connection with the provision of Services, remain the sole and absolute owner of the Goods until the price for all Services provided by the Supplier in connection with the Goods has been received in full by the Supplier; and
(d) be entitled to retake possession of all Goods in the possession of the Applicant which have been supplied by the Supplier sufficient to clear any outstanding indebtedness by the Applicant to the Supplier under the contract and the Supplier will not be required to distinguish between Goods which have been paid for and Goods which have not been paid for.
Until the Supplier has been paid for the Goods in full:
(a) the Applicant will be bailee of the Goods for the Supplier and will store them upon its premises separately from its own Goods or those of any other person and will store them in a manner enabling them to be readily identifiable as Goods of the Supplier;
(b) the Supplier will have the right at any time to enter the Applicant’s premises and retrieve the Goods; and
(c) the Applicant will not sell or dispose of any of the Goods or any interest in the Goods without the prior written consent of the Supplier.
If the Supplier consents in writing to the sale or disposal or if any sale or disposal is made in breach of this Agreement and notwithstanding such breach:
(a) the Applicant will inform any person to whom it proposes to sell or dispose of any interest in the Goods (Acquirer) of the Supplier’s interest;
(b) any sale or disposal will be made as agent (including as agent exceeding its authority) of the Supplier;
(c) the Applicant will ensure that the terms of the sale or disposal to the Acquirer includes a term which is identical to these clauses except that references to the Applicant will be references to the Acquirer;
(d) notwithstanding that the payment of the price for the Goods would not otherwise have been due by the Applicant, the Applicant will be immediately obliged to pay the price for the Goods to the Supplier immediately it receives payment from the Acquirer;
(e) the purchaser will hold all its rights against the Acquirer and any proceeds it receives in trust for the Supplier;
(f) the Applicant agrees that the Supplier will be entitled to trace all and any proceeds arising from any sale or disposal of the Goods until the Applicant pays the full price to the Supplier for all other Goods supplied by the Supplier; and
(g) the Applicant will at the Supplier’s request assign its Claims against the Acquirer and agrees irrevocably to appoint the Supplier and each of its officers as its attorney to give effect to and complete that assignment.
(a) the Applicant makes a new object from the Goods, whether finished or not;
(b) the Applicant mixes the Goods with other articles; or
(c) the Goods become part of another product the Applicant agrees that:
(d) the ownership of the new object or the other Goods immediately passes to the Supplier; and
(e) until payment of all sums owing to the Supplier by the Applicant, whether under the contract or otherwise, the Applicant will hold them as a fiduciary for the Supplier.
For the purpose of removing doubt, the ownership of the new object or other Goods passes to the Supplier at the beginning of the single operation or event by which the Goods are converted into a new object, is are mixed or becomes part of other Goods (New Goods).
Where the Supplier has not been paid in the manner required by the contract, the Applicant agrees with the Supplier to keep the New Goods as a fiduciary for the Supplier and, unless otherwise required by the Supplier, to store the New Goods in a manner that clearly shows the ownership of the Supplier.
In the event of any part (including in that expression sub- clauses, phrases and individual words thereof) being or becoming void or unenforceable (whether by reason of width of expression, non-registration under any relevant legislation, lack of notice to any relevant person or for any other reason whatsoever) that part will be severed and the validity and enforceability of all other parts will in no way be affected thereby.
The Goods will be at the Applicant’s risk from the occurrence at the earliest point of time, of any of the following events:
(a) the physical delivery of the Goods to the Applicant at the Supplier’s premises;
(b) the physical delivery of the Goods to the Applicant’s carrier or to an independent carrier for the purpose of transmission to the Applicant or his nominee; or
(c) the physical delivery of the Goods to the Applicant’s place of business by the Supplier.
Notwithstanding the risk in the Goods has passed to the Applicant, the Supplier may effect insurance of the Goods in its own name and in their full value, or such value as the Supplier may decide, against, all usual risks and the costs of such insurance will be determined as at the date of and included in the invoice. All insurance monies received will be applied towards replacement or repair of the Goods.
The Applicant undertakes and agrees at all times, and until such time as title in the Goods passes to the Applicant, to ensure that the Goods are serviced regularly and maintained to the condition as provided, including paying for and keeping current all registrations, permits, licences and insurances as required.
The Applicant acknowledges that it received the Goods in good condition and unless payment is received in full by the Supplier, the Applicant must return the Goods in the same condition as originally supplied.
The Applicant will maintain all aspects of the Goods in accordance with the directions of the Supplier and for vehicles and machines this includes tyre pressures, keeping the required fluids and oils at the correct levels, using only the correct fuels and ensuring that Services are undertaken as required. The Applicant will immediately report any material defect or accidents to the Supplier.
Regardless of any insurance, the Applicant is required to immediately arrange for any repairs to the Goods.
Without limiting any other provision of these Sale, Hire and Repair Terms, whether the Applicant is hiring or purchasing the Goods, it will notify the Supplier in writing of any defects in the Goods within 24 hours of delivery of the Goods. Failing such notification, it will be conclusively presumed as between the Supplier and the Applicant that the Goods has been received in good condition and are in every way satisfactory for the Applicant.
Liability of the Supplier for breach of a condition or warranty compulsorily implied into the contract by the Competition and Consumer Act 2010 (Cth) (as amended), or any other legislation, will be limited to the maximum extent permitted by that legislation and the Supplier will have no obligation beyond the obligations imposed by that legislation.
The Applicant does not rely upon any representation made by or on behalf of the Supplier that the Goods or Services are fit for a particular purpose, of a particular standard, quality, grade, composition, style or model, has sponsorship approval, performance characteristics, accessories, uses or benefits, have any condition, warranty, guarantee, right or remedy imposed made or given on the part of the manufacture of the Goods and acknowledges that the Supplier is not the manufacturer of the Goods.
Except such as cannot by law be excluded:
(a) the Supplier does not give any warranty as to the quality of the Goods nor as to its fitness for the purposes of the Applicant;
(b) the Supplier does not warrant that the Goods or Services corresponds with any description or specifications given in writing or verbally;
(c) the Supplier accepts no responsibility whatsoever for any Claims of any kind resulting from the use, nature or condition of the Goods or Services irrespective of negligence on the part of the Supplier;
(d) the Supplier will in no circumstances be responsible for any loss of use, loss of profits or any consequential
loss of any kind suffered by the Applicant or any other party in any way connected with the contract or the use, nature or condition of the Goods or Services;
(e) to the extent the Supplier is liable in relation to any defective Goods or Services, the Applicant’s remedies is limited to, in the Supplier’s absolute discretion:
(i) in relation to Goods:
A. replacement of Goods;
B. repair of Goods;
C. the cost of replacing the Goods or acquiring equivalent Goods; or
D. costs of having the Goods repaired,
(ii) in relation to Services:
A. repeating the Services or component of the Services found to be defective; or
B. costs of having the Services re-performed, and provided that the cost of returning items to the Supplier’s premises for replacement or repair, or the repeat of Services, will be borne by the Applicant.
Where the contract is for the sale of Goods in the nature of spare parts, the Applicant, may within 28 days following delivery, at its own cost return such Goods to the Supplier, provided the Supplier has given its prior consent in writing to such return (and the Supplier will have no obligation to give such consent) and in such an event the following charges will be payable by the Applicant to the Supplier:
(a) where the Goods are returned with fourteen days of the date of delivery, no charge is payable; and
(b) where the Goods are not returned within 14 days of
the date of delivery, 15% of the contract price for those goods.