Goods are sold by the Company to the Customer subject to the following terms and conditions:
Company means Whitelaw Hydraulics Pty Ltd (ACN 005 911 339), its successors and assigns.
Corporations Act means the Corporations Act 2001 (Cth).
Customer means the entity or person acquiring the Goods upon these terms and conditions.
Goods mean the first class hydraulic equipment that the Company offers for sale.
GST has the meaning given to that term in the GST Law.
GSL Law has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
PPSA means the Personal Property Securities Act 2009 (Cth).
PPSR means the Personal Property Securities Register established pursuant to the PPSA.
Secured Property means all Goods that are supplied to the Customer by the Company (whether now or in the future).
Security Interest has the meaning given in section 12 of the PPSA.
If the Customer places an order or submits a purchase order with the Company for Goods, or enters into a contract with the Company for the Goods and the Goods are delivered or provided to the Customer, or the Customer provides any payments to the Company the Customer is taken to have accepted these terms and conditions.
Any statement or agreement made by the Company in these terms and conditions or otherwise is contingent on its ability to obtain, supply or deliver the goods.
(a) Prices quoted by the Company are based on present day costs and any increases in labour and/or all materials or increases in the supplier’s price to the Company up to the date of delivery will be for the Customer’s account. In respect of imported material, any quotation is based on the then current rate of freight, duty, primage, insurance and exchange. In the event of any variation in any of the aforementioned factors, the Company reserves the right to alter such price accordingly upon reasonable notice.
(b) Cost of cartage and insurance to the Customer’s required destination will be to the Customer’s account. Insurance, haulage, freight and other charges incurred once the goods have left the Company. are not included in the sale price
(c) G.S.T. is not included in any prices quoted unless stated but will be charged to the Customer’s account when applicable.
5. TERMS OF PAYMENT
(a) Payment shall be made by the Customer paying to the Company the amount shown on the invoice within 30 days of the date of despatch of the goods from the Company.
(b) The Company reserves the right to render a monthly progress claim at its discretion for up to 90% of the value of the work done or goods on hand at the Company. Progress payments are to be made within 28 days after the date of the claim. The balance will be payable 28 days after the request for final payment.
5. DELIVERY AND DELAYED DELIVERY
(a) Unless otherwise agreed in writing, the Company is entitled to make delivery in installments and to determine the route and manner of delivery of the Goods.
(b) The Company shall not be liable in respect of any delay in delivery arising from any industrial dispute or causes outside his control. Liability for proven loss due to delay arising from causes within the Company’s control shall not extend to consequential loss and shall be limited to the amount of the contract price for the delayed goods.
(c) The Customer shall be solely liable for and shall indemnify the Company against theft or damage in transit in respect of goods delivered to the Customer’s stipulated destination.
6. PATENTS AND DESIGN RIGHTS
(a) In the event of any claim or claims in respect of any infringement of letters patent, registered design, trademark or copyright patent (the specification of which is published prior to the date of the order) related to any part based on a design specified by the Company
(other than a part based on design specified by the Customer) the Company will at its expense either replace or modify such part with a non-infringing part or procure for the Customer the right to use such part PROVIDED THAT the Company is given full opportunity to conduct all negotiations in respect of such claims, but in no event shall the Company have any liability for loss arising from the use or non-use of any infringing part. The Customer warrants that any design or instruction furnished or given by the Customer shall not be such as will force the Company to infringe any letters patent, registered design, trademark or copyright in the execution of the Customer’s order.
(b) Patent and design rights relating to goods offered or supplied by the Company shall remain the Company’s absolute property and Company’s designs and drawings shall not be reproduced or disclosed without the written consent of the Company, copy or allow others to copy any drawings, goods or parts thereof supplied by the Company.
7. CANCELLATION OR DEFERMENT
(a) The Customer may not cancel an order or return any Goods unless the Company first agrees in writing.
(b) The Company will not agree to cancellation for an order unless the Customer compensates the Company for all loss and damage arising from the cancellation.
(c) The Company may cancel any order in whole or in part by notice to the Customer and resell the Goods if the Customer fails to comply with any of its obligations under these terms and conditions or under your agreement for the sale of Goods.
(d) Upon cancellation or an order the Customer must indemnify the Company for any costs and expenses incurred prior to or arising as a result of the cancellation and must pay any reasonable cancellation charges fixed by the Company.
(e) The Customer has no claim against the Company for any damage, loss, cost or expense arising from cancellation under this clause.
8. IMPLIED TERMS
(a) The Company acknowledges that where the supply of Goods are “consumer” supplies, under applicable State, Territory and Commonwealth law(s) (including, without limitation, the Competition and Consumer Act 2010 (Cth) (Competition and Consumer Act), certain statutory express and implied guarantees and warranties (including, without limitation, the statutory guarantees under the Competition and Consumer Act will be implied into these terms (Non- Excluded Guarantees).
(b) The Company acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
(c) Except as expressly set out in these terms or in respect of the Non-Excluded Guarantees, the Company makes no warranties or other representations under any contract with the Customer or these terms and conditions. The Customer’s liability in respect of these warranties is limited to the fullest extent permitted by law.
9. WARRANTY AND GUARANTEE
(a) The Customer warrants and agrees that they are not acquiring the Goods for the purpose of:
a. re-supply or using them up or transforming them in trade or commerce in the course of:
i. a process of production or manufacture; and
ii. repairing or treating other goods or fixtures on land. or
b. personal, domestic, household use or consumption,
and the Customer is therefore not a “consumer” as defined by the Competition and Consumer Act.
(b) Subject to clause 13, the Company warrants to repair or replace (at the Company’s option) all Goods and their components manufactured by it which the Company, in its sole and absolute discretion, determines are defective in materials or workmanship under normal use and service, up to the expiration of the relevant item’s warranty period. All other costs, including cartage and installation, must be paid by the Customer.
(c) While the Goods are in custody of the Company for investigation or repair they will be at the risk of the Customer and the Company or its employees or agents will not be liable for any damage to the goods;
(d) Parts and labour for repair or replacement will be provided by the Company during normal working hours at a place of business of the Company and the Company will have no liability for the cost of transportation of the goods to such a place of business; and
(e) All rejected parts or defective parts will be the property of the Company to dispose of as it sees fit.
(f) Goods that are classified as “consumer” goods come with guarantees that cannot be excluded under the Australian Consumer Law. If a Good is classified as a “consumer good”, the Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable damage. The Customer is also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure. This warranty against defects is given in addition to other rights and remedies of the consumer under law. The Company reserves the right to inspect the product at the Customer’s location or require it to be returned to the Company for inspection at the Customer’s expense.
(g) The provider of warranties given under these terms is given by the Company].
(h) The warranty period of the Goods is the later of 12 months from the date of delivery or 9 months from the date the Goods are put into service.
(i) In order for a Customer to make a claim under this warranty, the Customer must contact the Company and request a ‘return of goods authority’ form via:
a. Email: email@example.com; or
b. Phone: (+61 3) 95876155; or
c. Address: 25 Canterbury Road, Braeside 3195 Victoria.
(j) The Customer must complete the ‘return of goods authority’ form to the Company.
10. RISK AND TITLE
(a) The risk in the Goods will pass to the Customer immediately upon delivery of the Goods by the Company (unless otherwise agreed in writing by the Company).
(b) Until, the Customer has paid all amounts owing by the Customer to the Company (and all cheques or negotiable instruments have been paid), the title in the Goods does not pass to the Customer.
(c) Until all amounts owed to the Company are paid, the Customer:
a. must keep the Goods separate from the goods of the Customer and third parties and identified as the Company’s goods; and
b. may sell the Goods in the ordinary course of its business, as agent and fiduciary for the Company and must account to the Company for the proceeds of such sale which are to be kept in a separate bank account.
(d) The Customer irrevocably authorizes the Company to enter any premises where the Goods are kept, and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the Goods.
(e) If the Customer does not specify what Goods each payment is made for, the payments will be treated in the following order:
c. first, to the Goods that are no longer in the Customer’s possession:
d. then, to whatever Goods that are still in the Customer’s possession, at the Company’s absolute election.
(a) The Customer acknowledges that these terms and conditions create a Security Interest in the Secured Property and, for avoidance of doubt, the proceeds of sale of the Secured Property for the purposes of the PPSA.
(b) The Customer consents to the Company effecting a registration on the PPSR (in any manner that the Company considers appropriate) in relation to the Security Interest arising under or in connection with these terms and conditions and the Customer agrees to provide all assistance required by the Company to facilitate this.
(c) The Customer acknowledges and agrees that in relation to the part of the Secured Property that is inventory, the Customer will not allow any Security Interest to arise in respect of that Secured Property unless the Company has perfected the Security Interest in the Secured Property prior to the Customer’s possession of the Secured Property.
(d) If Chapter 4 of the PPSA applies to the enforcement of the Security Interest arising under or in connection with these terms and conditions, the Customer agrees:
a. to the extent that section 115(1) of the PPSA allows this, the following provisions of the PPSA will not apply to the enforcement of that Security Interest: section 95 to the extent that it requires the Company to give a notice to the Customer, section 96, section 121(4), section 125 (obligation to dispose of or retain collateral), section 130 to the extent that it requires the Secured Party to give notice to the Customer, paragraph 132(3)(d), subsection 132(4), section 142 and section 143 (reinstatement of security agreement); and
b. to the extent that section 115(7) of the PPSA allows this, the following provisions of the PPSA will not apply to the enforcement of that Security Interest: sections 127, 129(2), 129(3), 132, 134(2), 135, 136(3), 136 (4) and 136 (5) and 137.
(e) If the Customer make payments to the Company at any time whether in connection with these terms and conditions or otherwise, the Company may in its absolute discretion apply that payment in any manner it sees fit.
(f) The Customer agrees to immediately notify the Company of any changes to its name or address.
(g) The Customer agrees to do anything that the Company requests the Customer to do (such as obtaining consents, signing and producing documents, producing receipts and getting documents completed and signed):
a. to provide more effective security over the Secured Property;
b. to register in respect of a Security Interest constituted by these terms and conditions at any time;
c. to enable the Company to exercise its rights in connection with the Secured Property; and
d. to show the Company whether the Customer has complied with these terms and conditions.
(h) The Customer will pay on demand any losses arising from, and any costs and expenses incurred in connection with, any action taken by the Company under or in relation to the PPSA, including any registration, or any response to an amendment, demand or a request under section 275 of the PPSA.
(i) Any notices or documents which are required or permitted to be given to the Company for the purposes of the PPSA must be given in accordance with the PPSA.
(j) The Customer waives the right to receive any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.
12. LIMITATION OF LIABILITY
(a) The only conditions and warranties which are binding on the Company in respect of:
a. information, advice, recommendations or services supplied to the Customer in relation to the Goods; or
b. the suitability, use, quality or condition of the Goods or services,
are those applying by operation of law and required to be binding (including the Competition and Consumer Act 2010). All other warranties and conditions are excluded.
(b) To the extent permitted by law, the liability of the Company and its employees or agents for a breach of any warranty or liability which by law cannot be excluded, restricted or modified, or under any express warranty, is limited, at the Company’s option, to:
a. in the case of the Goods:
i. the replacement of the goods or the supply of equivalent goods;
ii. the repair of the goods;
iii. the payment of the costs of replacing the goods or of acquiring equivalent goods; or
iv. the payment of the cost of having the goods repaired, and
b. in the case of services:
i. the supplying of the services again; or
ii. the payment of the cost of having the services supplied again.
(c) Other than as provided in this clause 13, the Company, its employees or agents shall not be liable for any loss or damage (including any consequential loss or damage) of any kind whatever, even if due to the negligence of the Company, its employees or agents.
(d) The Customer acknowledges that the Customer does not rely on the skill or judgment of the Company as to whether or not the Goods are fit for any particular purpose and that the sale of the Goods is not a sale by sample.
(e) The Customer indemnifies the Company from every liability, loss, damage, cost or expense directly or indirectly incurred or suffered by the Company caused by or contributed to by any of the following:
a. the Company complying with any instruction of the Customer about the Goods;
b. the Customer’s failure to:
i. adequately provide or display safety markings or safety information on or with the Goods
ii. comply with any law about the Goods or their use (for example, their sale, marketing, labeling or marking)
iii. take any reasonable precaution to bring to the attention of any potential users of the Goods any dangers associated with Goods
iv. take any reasonable precaution to detect any matters in relation to which the Company may become liable in any way
c. the Customer making any statement about the Goods (for example, about their performance or characteristics) without the Company’s approval;
d. the use or operation of the Goods by the Customer; and
e. negligence or breach of duty by the Customer or any breach by the Customer of these terms and conditions.
(a) Both parties agree not to disclose information of the kind mentioned in section 275(1) of the PPSA, except in the circumstances required by sections 275(7)(b) to (e) of the PPSA. The Customer agrees that it will only authorize the disclosure of information under section 275(7) (c) or request information under section 275(7) (d), if the Company approves it.
(b) Nothing in clause 14(a) will prevent any disclosure by the Company that the Company believes is necessary to comply with its other obligations under the PPSA or under any other applicable law.
(c) For the purposes of section 275(6)(a) of the PPSA, the Customer agrees that the Company may disclose information of the kind mentioned in section 275(1) of the PPSA to the extent that the Company is not doing so in response to a request by an “interested person” (as defined in section 275(9) of the PPSA) pursuant to section 275(1) of the PPSA.
14. AGREEMENTS OR REPRESENTATIONS
No term, condition, warranty or representation other than such as specifically mentioned herein shall form part of any contract between the Company and the Customer or be binding on the Company whether such be written or oral, express or implied statutory or otherwise.
15. LAW OF AGREEMENT
Any agreement between the Company and the Customer shall be governed by the Law applicable in the State of Victoria.
A “return goods authority” form is required to return goods for credit and may be subject to a 20% restocking fee. Some items are non returnable. A 2.0% credit card surcharge applies.
(a) Unless otherwise stated, the prices referred to in these terms and conditions are GST exclusive.
(b) In addition to the price for the Goods, the Customer must pay to the Company an amount equal to any GST the Customer must pay on any supply by the Company under these terms and conditions.
(c) The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the price for the Goods.
(d) The Customer indemnifies the Company for any loss that the Company may incur as a result of the incorrect payment or non payment of any GST and associated fees or penalties.
(e) If the Company becomes liable for any penalties or interest as a result of a late payment of GST, where that late payment is as a direct result of a failure of the Customer to comply with the terms and conditions of this clause, the Customer will pay to the Company an additional amount on demand equal to the amount of those penalties and interest.