These Terms and Conditions shall apply to goods and services which are supplied by the Company or at the request of the Customer;
888 CRUSHING AND SCREENING EQUIPMENT PTY LTD CONDITIONS OF SALE CONTRACT
GOODS & SERVICES (TRADING TERMS)
- CONDITIONS OF SALE
(a) These conditions apply to all dealings between 888 Crushing and Screening Equipment Pty Ltd (“the Company”) and the Customer for the supply of goods and services from the Company, unless the Company otherwise agrees in writing.
(b) The placing of an order verbally or in writing by the Customer with the Company shall be deemed to constitute an agreement between the Customer and the Company on the terms and conditions of these Trading Terms, which shall contain the whole of the agreement between the Customer and Company and no variation of the terms in these Trading Terms shall be binding on or enforceable against the Company unless in writing and with written confirmation by a person authorised by the Company who shall have authority to alter any or all of these Trading Terms.
(c) Acceptance of goods or services by the Customer is conclusive evidence before any court that these Trading Terms (as varied under clause 12.9) apply and are binding on it and the Guarantors referred to in the application for credit account.
- PRICE AND PAYMENT
(a) Unless otherwise expressly stated, prices are due and payable in full, in accordance with the terms of these Trading Terms, before the dispatch of the goods from the Company’s depot or before the provision of services.
(b) The Customer shall only be deemed to have an approved account for goods and services (excludes the purchase of plant) if the Company notifies the Customer in writing to that effect in which case payment shall be strictly net within 30 days from the end of month. Interest shall be charged on overdue accounts at a rate that is two percent (2%) per annum higher than the business overdraft rate charged by the Company’s Australian bank from time to time.
(c) The Company may at any time withdraw or suspend the account or increase or decrease the credit limit without notice to the Customer. The Company may at any time require payment in advance of the whole or any part of an order or the account as a condition precedent to the continued supply by the Company.
(d) If the Customer defaults in the due and punctual observance of all or any of their obligations or covenants under these Trading Terms, all monies owed by the Customer to the Company shall become immediately due and payable.
(e) The price quoted or invoiced is based on costs, taxes, duties, awards, statutes, rate of exchange and conditions as at the date of these Trading Terms. The price is subject to increase by an amount equivalent to all increases in costs, taxes, duties, awards, statutes, rates of exchange and conditions taking place prior to delivery of the goods or performance of the services. The price does not include the cost of delivery from the Company’s premises.
(f) If there is any increase in the cost to the Company for materials, labour, currency exchange rate, or other expenses arising in connection with the order, between the date of the order and the date of delivery of the goods or the supply of services, the Company shall be entitled to charge a fair and reasonable sum in addition to the order price, to cover the cost of any such increase.
(g) Until payment in full of all moneys owing to the Company:
(i) the goods shall remain the Company’s property;
(ii) if in the Customer’s possession, the goods will be held as bailee and returned immediately on demand unused and undamaged; and
(iii) any sale of goods by the Customer to a third party prior to the passing of property to the Customer will be deemed to have been made by the Customer as agent for the Company, and the sale proceeds sufficient to cover the price of the goods and the cost of transit, delivery etc. shall be held in trust for the Company as its property.
(h) The consideration for any supply has been calculated initially without regard to, and is exclusive of, goods and services tax (“GST”). If GST is payable in respect of any supply, the Company may increase the price for the supply (“original amount”) by an amount sufficient so that the total amount payable in respect of the supply, after discounting for the amount of any GST payable in respect of the supply, is equal to the original amount.
Subject to clause 7:
(a) Any representation, promise, statement or description not given in writing by an authorised representative of the Company is expressly excluded. The Customer acknowledges that it has relied solely upon its own inspection, skill and judgment and not on any other representation, promise, statement or description. The Customer acknowledges that it has relied solely upon its own determination with regards to the fitness for purpose.
(b) All photographs, weights, illustrations, dimensions and other particular given in or accompanying a quotation or order or contained in descriptive literature are approximate only and deviations there from shall not give rise to any claim against the Company.
- ACCEPTANCE AND DELIVERY
(a) All goods shall be at the Customer’s risk on leaving Company’s premises, even if the Company has agreed to deliver the goods to a location nominated by the Customer. The Customer, at its own cost will insure the goods from the time they leave the Company’s premises. The Customer will indemnify the Company against any claim or liability regarding damage or injury to or by the goods after dispatch from the Company’s premises.
(b) The Customer shall inspect the goods immediately on their arrival and within three (3) days from that inspection give notice to the Company of any claims that the goods are not in accordance with these Trading Terms. If the Customer does not give such notice the goods shall be deemed to be in all respects in accordance with these Trading Terms and the Customer shall be bound to accept and pay for the goods.
(c) The Company may resell any goods not taken by the Customer within seven (7) days from the date of attempted delivery and, at its option, deem these Trading Terms repudiated or, by subsequently substituting other goods, treat these Trading Terms as subsisting.
- DELAY IN DELIVERY AND FORCE MAJEURE
(a) Delivery and availability dates are approximate only. The Company will use its best endeavours to meet these estimates but is not liable for delay from any cause whatsoever.
(b) If for any cause beyond the Company’s control, the Company is prevented from or delayed in making delivery or performance the Company may either extend the time for delivery or performance for a reasonable period or terminate these Trading Terms. The Customer shall not have any claim for damages and shall pay for all deliveries made or services performed prior to the date of such termination and all expenses incurred and moneys paid by the Company in connection with these Trading Terms. Causes beyond the Company’s control shall include without limitation any act of God, war, strike, lock out, industrial dispute, governmental or semi-governmental award, enactment, priority or restriction, fire, flood, storm or tempest, delay in obtaining licences, transport, labour or materials, accidents, damage to the Company’s works or business or those of its suppliers, epidemic or pandemic.
(c) The time of delivery in any quotation or order represents the time at which the goods are to be ready for dispatch from the Company’s premises and if applicable, the Company is to be allowed the further time necessary to cover transit from the Company’s premises. The Company does not accept orders under penalty for late delivery.
The Company may terminate any agreement forthwith if:
(i) The Customer shall commit any breach of any of the terms (including without limitation terms concerning the time for payment of the purchase price) of this or any other agreement with the Company on its part to be observed or performed provided that if such breach is remediable the Company shall have previously given to the Customer notice thereof and the same has not been remedied within 7 days thereafter;
(ii) The Customer compounds with or negotiates for any composition with his creditors generally or permits any judgment against him to remain unsatisfied for 7 days;
(iii) Being an individual the Customer shall die or have a sequestration order made against him or commit any act of bankruptcy; or Being a Company the Customer shall call any meeting of its creditors or have a receiver of all or any of its assets appointed or enter into any liquidation, or have a winding up order made against it.
(a) Despite anything to the contrary in these Trading Terms, where the Customer is a consumer as defined by any relevant law such as the Competition and Consumer Act 2010 (Commonwealth) (CCA) and similar State laws, certain conditions and warranties (“the consumer guarantees”) cannot be excluded, restricted or modified. The Customer then has the benefit of both the consumer guarantees and any other warranty or guarantee that may be provided by the manufacturer of the goods. To the extent permitted by Law, all implied warranties and conditions are excluded.
(b) Subject to clause 7(a), if any of the goods are expressly warranted by a manufacturer or supplier other than the Company, that warranty is not a warranty of the Company and the Company shall have no liability in respect of any breach of that warranty. The Company in its absolute discretion may present such claims to the manufacturer or supplier on behalf of the Customer.
- LIMITATION OF LIABILITY
(a) The Customer will indemnify the Company against any claim or liability for damage or injury to or by the goods or services.
(b) To the extent permitted by law, the liability of the Company for a breach of the consumer warranties and/or any warranty provided by the Company is limited, at the option of the Company, to the repair or replacement of the goods or the cost of such repair or replacement or the performance of the services again.
(c) Parts and labour for repair or replacement under clause 7(a) shall be provided by the Company during normal working hours at a place of business of the Company. The Company shall have no liability for the cost of transportation of the goods to such place of business.
(d) The Customer’s property under the Company’s custody or control will be entirely at the Customer’s risk as regards loss or damage from all causes to that property or caused by that property.
(e) To the extent permitted by law and other than any remedies the Customer may have under the CCA the sole remedies of the Customer under or in relation to these Trading Terms or the supply of goods or services under them, whether in contract, tort (including negligence) under statute or otherwise, are only as specified in these Trading Terms and are subject to the limitations set out in clause 8(f).
(f) To the extent permitted by law:
(i) the Company, and the Company’s officers, employees and agents, will not have any liability or other obligation to any person or other entity, including the Customer, arising out of, or in any way directly or indirectly connected with, the matters supply of goods or services under these Trading Terms except to comply with its obligations (subject to the other provisions and limitations in this clause 8);
(ii) all conditions, warranties and other terms pertaining to the condition or quality of goods and/or services are excluded to the extent permitted by law (including the CCA);
(iii) the Company’s maximum liability for any claim under or in relation to these Trading Terms and/or the supply of goods and/ or services under them is the price paid by the Customer for the goods or services the subject of the claim; and
(iv) the Customer must not make any claim or demand, or take any action or other proceeding against the Company, or any of the Company’s officers, employees or agents and he Customer releases the Company from any claim action or liability for consequential loss or damage to persons or property including, without limitation, loss of use of the goods or of profits, or loss on resale, arising by reason of delays, non-delivery, defective materials or workmanship, negligence, or any act, matter, conduct or thing done, permitted or omitted by the Company.
(g) All rejected goods or defective goods shall be the property of the Company to dispose of as it sees fit.
(h) The Company accepts no responsibility for loss of or damage to or maintenance of secrecy with respect to any plans, drawings, samples or other materials supplied by the Customer to the Company.
- PERSONAL PROPERTY SECURITIES ACT (PPSA):
(a) In no case will property in any goods supplied pursuant to these Trading Terms pass to the Customer until payment of all moneys owing has been made to the Company including the full contact price for the goods supplied including cost of transit, delivery etc.
(b) This clause applies to the extent that these Trading Terms provides for a security interest for the purpose of, and as defined in, the Personal Property Securities Act 2009 (Cth) (“PPS Law”).
(c) The Customer and the Guarantor each:
(i) grant a security interest in all of its present and after-acquired personal property (as defined in the PPS Law) (Personal Property) and in all of its present and future rights in relation to any Personal Property to the Company;
(ii) charge as a fixed charge all of its other rights, property and undertaking of any kind and wherever situated, whether present of future including, without limitation, any interest in any real property (both legal and beneficial) (other than any Personal Property to which the PPSA applies ) to the Company; and
(iii) agree to mortgage all of its present and future interests in any real property to the Company , on request from the Company
as security for the performance of its obligations under these Trading Terms including payment of any amount payable to the Company by the Customer.
(d) The Customer must on demand pay the costs and expenses incurred by the Company to so register its security interests. The Customer must do anything, such as obtaining consents and signing documents, which the Company requires for the purpose of:
(i) ensuring that the Company’s security interests are enforceable, perfected and otherwise effective under the PPS Law;
(ii) enabling the Company to gain first priority for its security interests; and
(iii) enabling the Company to exercise its rights in connection with its security interests.
(e) The rights of the Company under these Trading Terms are in addition to and not in substitution for the Company’s rights under any law, including but without limitation the PPS Law, and the Company may choose whether to exercise rights under these Trading Terms, and/or under such other law, as it sees fit. To avoid any doubt, the Company’s security interest will attach as to proceeds from the sale of the goods.
(f) The Customer must not create or purport to create or permit to be created any other security interest in the goods or parts other than with the written consent of the Company;
(g) To the extent that Chapter 4 of PPS Law applies to any security interest under these Trading Terms, section 95 (notice of removal of accession to the extent it requires the Company to give notice to the Customer); section 96 (retention of accession); section 121(4) (notice to grantor); section 125 (obligations to dispose of or retain collateral); section 130 (notice of disposal to the extent it requires the Company to give notice to the Customer); sections 129(2) and 129(3); section 132(3)(d) (contents of statement of account after disposal); section 132(4) (statement of account if no disposal); section 135 (notice of retention) and section 142 (redemption of collateral) of the PPS Law do not apply and, for the purposes of section 115 of the PPS Law, are contracted out in respect of all of the items of Goods or parts to which that section can be applied;
(h) Section 123 (seizing collateral); section 126 (apparent possession); section 128 (secured party may dispose of collateral); section 129 (disposal by purchase) and section 134(1) (retention of collateral) of the PPS Law confer rights on the Company. The Customer agrees that in addition to those rights, the Company will, if there is default by the Customer, have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of the goods or parts, not only under those sections but also as additional and independent rights, under these Trading Terms and the Customer agrees that the Company may do so in any manner it sees fit including in respect of dealing and disposal by private or public sale, lease or licence.
(i) The Customer and the Guarantor waives its rights to receive a verification statement in relation to registration events in respect of commercial property under section 157 of the PPS Law;
(j) The Company and the Customer and the Guarantor agree not to disclose information of the kind which can be requested under section 275(1) of the PPS Law. The Customer must do everything necessary on its part to ensure that section 275(6)(a) of the PPS Law continues to apply. The agreement in this subclause is made solely for the purpose of allowing to the Company the benefit of section 275(6)(a) and the Company will not be liable to pay damages or any other compensation or be subject to injunction in respect of any actual or threatened breach of this subclause.
The Company shall accept returns of goods (excludes plant) which are wrongly supplied by the Company or which are wrongly ordered by the Customer subject to the following:
(i) That written advice of such wrongly supplied goods by the Company, or wrongly ordered goods by the Customer is given to the Company within three (3) days of the delivery of the goods to the Customer;
(ii) That the returned goods have not been put into use, damaged or defaced;
(iii) That the goods are received at the depot within seven (7) days and at the Customer’s expense;
(iv) That returns of goods supplied pursuant to a specialist order, or which are especially manufactured or ordered for the Customer shall not be accepted by the Company;
(v) That in the event of the goods being incorrectly ordered by the Customer, the amount credited to the Customer in respect of the returned goods shall be the price applicable to such goods reduced by the total of twenty per centum (20%) of such price plus the Company’s associated handling costs.
(a) The Customer and each Guarantor irrevocably appoints the Company and each of the Company’s authorised officers, jointly and severally, to be its attorney to do any act or thing which it is required to do under these Trading Terms.
(b) The Company may only exercise the power set out in clause 11(a) where the Customer or Guarantor (as applicable) is in breach of these Trading Terms. The Company may exercise its powers even if this involves a conflict of duty and even if it has a personal interest in doing so.
(c) A third party may rely on a copy of these Trading Terms certified by a solicitor as evidence of the appointment of the Company as the attorney of the Customer or Guarantor.
(d) The Customer and each Guarantor must ratify all acts and things done by the Company and its authorised officers in the exercise of the power of attorney granted in accordance with this clause.
In these Trading Terms, unless the context otherwise requires:
(a) a reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
(b) a reference to a party to these Trading Terms includes the party’s successors, permitted substitutes and permitted assigns and, where applicable, the party’s legal personal representatives; and
(c) a right or obligation of any two or more persons confers that right or imposes that obligation, as the case may be, on each of them severally and on any two or more of them jointly.
12.2 Nature of Goods or Services
The Customer acknowledges that all goods and services will be purchased for the purpose of re‑supply or in connection with a business carried on by the Customer with or without other persons and not for personal, domestic or household use.
12.3 Time of essence
If any provision of these Trading Terms or their application to any person or circumstance is or becomes invalid or unenforceable, that provision will be taken to be omitted without invalidating or modifying the remaining provisions of these Trading Terms, which will continue in full force and effect as if the invalid or unenforceable provision had not been included in them.
Each indemnity in these Trading Terms is a continuing obligation, independent of the other obligations of the party giving it, and survives the end of these Trading Terms or the supply arrangement between the Customer and the Company.
The Customer must do anything (including executing a document) the Company reasonably requires in writing to give full effect to these Trading Terms.
12.7 Trading Terms binding
These Trading Terms bind the Customer and each Guarantor both personally and as trustee of any trust of which it is trustee.
Notices in respect of these Trading Terms may be provided to the Customer and Guarantors by mail or facsimile to the recipient’s address provided by it to the Company.
12.9 Variation of Trading Terms
(a) The Company reserves the right to vary these Trading Terms from time to time. It may give notice of any variation of these Trading Terms by publishing the revised Trading Terms on its website and may (but is not obliged to) notify the Customer and/or the Guarantors that it has done so on an invoice, statement or other written communication. If the Customer continues to deal with and place orders for the supply of goods and services with the Company after any such variation of these Trading Terms, the Customer is taken to have agreed to those Trading Terms as varied and to have taken the supply of goods and services on those varied Trading Terms.
(b) If within 14 days after the Company has notified the Customer of a variation of the Trading Terms the Customer gives the Company written notice that the variation is not acceptable to it, the Company may within 30 days after receipt of such written notice discuss the matter with the Customer with a view to arriving at a variation that is acceptable to both parties and if they are unable to do so or if the Company does not withdraw the variation for the Customer, the Customer may terminate these Trading Terms without penalty.
These Trading Terms will be construed in accordance with and governed by the laws of Western Australia.
The Customer acknowledges that prior to accepting the Trading Terms they could negotiate for the alteration of or rejection of any of the provisions of the Trading Terms, there was no material inequality in bargaining power between the parties and it had consulted or had the opportunity to consult independent legal advisers.