1. APPLICATION OF TERMS
The following terms will apply where the Agreement is a sale, hire or repair agreement.
2. DELIVERY OF GOODS
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 instalments, each instalment 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 instalments 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.
3. PRICE AND PAYMENT
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.
4. HIRE OF GOODS
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 cover all Claims in relation to the Goods and also all risks to third parties in connection therewith. 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.
5. TITLE TO GOODS
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.
Where:
(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.
6. RISK
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.
7. MAINTENANCE
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.
8. DEFECTS IN 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.
9. RETURN OF SPARE PARTS
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