This Agreement applies to:
A. any Goods or any quotations for or offers to supply Goods; and/or
B. any Services or any quotations for or offers to supply Services; and/or
C. any other services in connection with Goods (including installation and Maintenance Services), provided to the Customer.
By the Seller providing Goods or Services to the Customer, the Customer indicates its acceptance of all the terms and conditions in this Agreement.
Agreement means the agreement constituted by these terms and conditions, and any other written terms and conditions relating to the supply relationship between the parties which are agreed by both parties.
Customer shall mean the customer (or any person acting on their behalf or with their authority) as described on any quotation, work authorisation or other form as provided by the Seller.
Goods shall mean goods supplied by the Seller to the Customer (and where the context so permits shall include any supply of Services) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Seller to the Customer.
Guarantor means that person (or persons), or entity, who agrees to be liable to the Seller for the debts of the Customer on a principal debtor basis.
Handover Certificate means a certificate signed by the Seller and the Customer confirming delivery of the Goods to the Customer (pro forma attached as Schedule 1 to this Agreement).
Maintenance Services means the supply of maintenance and repair services for the Goods.
Price shall mean the Price payable for the Goods and/or Services as agreed between the Seller and the Customer in accordance with clause 4 of this Agreement.
Reimbursement Costs means all reasonable and documented costs incurred by the Seller in the performance of the Maintenance Services (including but not limited to travel costs, freight and handling charges, delivery costs, accommodation).
Seller means Marrison Hydraulics Pty Ltd ACN 076 648 621 its successors and assigns or any person acting on behalf of and with the authority of Marrison Hydraulics Pty Ltd.
Services means all services supplied by the Seller to the Customer and includes any advice or recommendations and where the context so permits shall include any supply of Goods.
2. COMPETITION AND CONSUMER ACT 2010 (CTH) (‘CCA’)
2.1 Nothing in this Agreement is intended to have the effect of contracting out of any applicable provisions of the CCA, except to the extent permitted by the CCA.
3.1 Any instructions received by the Seller from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained in this Agreement.
3.2 Where more than one Customer has entered into this Agreement, the Customers shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended in writing and signed by the parties.
3.4 The Customer will not assign this Agreement or any of its rights or obligations under this Agreement or any part of this Agreement without obtaining the Seller’s prior written consent which may be granted unconditionally or upon such conditions as the Seller thinks fit, and may be withheld by the Seller in its absolute discretion.
3.5 The Customer must notify the Seller in writing not less than fourteen (14) days prior to any proposed change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by the Seller as a result of the Customer’s failure to comply with this clause.
3.6 Goods are supplied by the Seller only on the terms and conditions of this Agreement to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
4. PRICE AND PAYMENT
4.1 At the Seller’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by the Seller to the Customer in respect of Goods supplied;
(b) the Seller’s current price at the date of delivery of the Goods according to the Seller’s current Price list; or
(c) the Seller’s quoted Price (subject to clause 4.2 below) which shall be binding upon the Seller provided that the Customer shall accept the Seller’s quotation in writing within thirty (30) days of receipt.
4.2 The Seller reserves the right to change the Price in the event of a variation to the Seller’s quotation. Any variation from the plan of scheduled Services or specifications (including, but not limited to, for overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges, additional works required due to hidden or unidentifiable matters beyond the control of the Seller or as a result of increases to the Seller in the cost of materials and labour) will be charged for on the basis of the Seller’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full in accordance with the payment terms.
4.3 At the Seller’s sole discretion a non-refundable deposit may be required.
4.4 At the Seller’s sole discretion, payment shall be due:
(a) on delivery of the Goods;
(b) seven (7) days following the date of the invoice; or
(c) on such other time period or date agreed by the parties, provided that the invoice is correctly rendered.
4.5 The Seller may submit a detailed payment claim at intervals not less than monthly for Services performed up to the end of each month. The value of Services so performed shall include the reasonable value of authorised variations and the value of materials delivered to the Customer’s nominated address but not yet installed.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to two percent (2%) of the Price), or by direct credit, or by any other method as agreed to between the Customer and the Seller.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. DELIVERY OF GOODS
5.1 At the Seller’s sole discretion delivery of the Goods shall take place when:
(a) the Customer takes possession of the Goods at the Seller’s address;
(b) the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by the Seller or the Seller’s nominated carrier); or
(c) the Customer’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to take possession of the Goods at the Seller’s address.
5.2 At the Seller’s sole discretion the costs of delivery are:
(a) included in the Price;
(b) in addition to the Price; or
(c) for the Customer’s account.
5.3 The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then the Seller shall be entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this Agreement.
5.5 The Seller may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in this Agreement.
5.6 The failure of the Seller to deliver shall not entitle either party to treat this Agreement as repudiated.
5.7 The Seller shall not be liable for any loss or damage whatsoever due to failure by the Seller to deliver the Goods (or any part of them) promptly or at all, where due to circumstances beyond the control of the Seller.
6.1 If the Seller retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of this Agreement by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
6.3 Where the Customer expressly requests the Seller to leave Goods outside the Seller’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk and it shall be the Customer’s responsibility to ensure the Goods are insured adequately or at all.
6.4 Prior to the Seller commencing any work the Customer must advise the Seller of the precise location of all underground services on the site and clearly mark the same. Whilst the Seller will take all care to avoid damage to any underground services the Customer agrees to indemnify the Seller in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified in accordance with this clause.
7.1 The Customer shall ensure that the Seller has clear and free access to the Customer’s nominated site at all times to enable them to undertake the Services. The Seller shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Seller.
8.1 The Seller and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid the Seller all amounts owing for the particular Goods; and
(b) the Customer has met all other obligations due by the Customer to the Seller in respect of all contracts between the Seller and the Customer.
8.2 Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Seller’s ownership or rights in respect of the Goods shall continue.
8.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until the Seller shall have received payment and all other obligations of the Customer are met;
(b) until such time as ownership of the Goods shall pass from the Seller to the Customer the Seller may give notice in writing to the Customer to return the Goods or any of them to the Seller. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease;
(c) the Seller shall have the right of stopping the Goods in transit whether or not delivery has been made;
(d) if the Customer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods;
(e) the Customer is only a bailee of the Goods and until such time as the Seller has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to the Seller for the Goods, on trust for the Seller;
(f) the Customer shall not deal with the money of the Seller in any way which may be adverse to the Seller;
(g) the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller;
(h) the Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer;
(i) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that the Seller will be the owner of the end products.
9. PERSONAL PROPERTY SECURITIES ACT 2009 (‘PPSA’)
9.1 In this clause:
(a) financing statement has the meaning given to it by the PPSA;
(b) financing change statement has the meaning given to it by the PPSA;
(c) security agreement means the security agreement under the PPSA created between the Customer and the Seller by this Agreement; and
(d) security interest has the meaning given to it by the PPSA.
9.2 Upon assenting to this Agreement in writing the Customer acknowledges and agrees that this Agreement:
(a) constitute a security agreement for the purposes of the PPSA; and
(b) create a security interest in:
(i) all Goods previously supplied by the Seller to the Customer (if any);
(ii) all Goods that will be supplied in the future by the Seller to the Customer.
9.3 The Customer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Seller may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal;
(ii) Property Securities Register;
(iii) register any other document required to be registered by the PPSA; or
(iv) correct a defect in a statement referred to in clause 9.3(a)(i) or 9.3(a)(ii) above;
(b) indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Seller;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of the Seller; and
(e) immediately advise the Seller of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
9.4 The Seller and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by this Agreement.
9.5 The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
9.6 The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
9.7 Unless otherwise agreed to in writing by the Seller, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
9.8 The Customer shall unconditionally ratify any actions taken by the Seller under clauses 9.3 to 9.5 above.
10.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer fails to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Seller has agreed in writing that the Customer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods except where the Customer has acquired Goods as a consumer within the meaning of the CCA, and is therefore also entitled to, at the Consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
11.1 Returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 10.1 of this Agreement; and
(b) the Seller has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Customer’s cost within thirty (30) days of the delivery date; and
(d) the Seller will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
11.2 The Seller will not accept the return of Goods for credit.
11.3 The Seller may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of up to twenty percent (20%) of the value of the returned Goods plus any freight costs.
11.4 Non-stocklist items or Goods made to the Customer’s specifications are under no circumstances acceptable for credit or return.
12. MAINTENANCE AND REPAIR
12.1 The Customer may by written notice to the Seller request the Seller to undertake Maintenance Services on the Goods (‘Maintenance Request Notice’).
12.2 Within fourteen (14) days of receipt of a Maintenance Request Notice, the Seller shall by written notice to the Customer either accept or reject the Maintenance Services request.
12.3 In respect to any Maintenance Services undertaken by the Seller, the Customer will be invoiced for any such Maintenance Services on the following basis:
(a) In accordance with the labour rates;
(b) Prevailing parts prices; and
(c) Reimbursement Costs.
13.1 For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
13.2 In the case of second hand Goods, the Customer acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by the Seller as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Seller shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
Subject to the Customer maintaining a Log Book pursuant to clause 13.4, for Goods manufactured by the Seller, the Seller will rectify any omission or defect in the Goods under this Agreement:
(a) existing at the date of the Handover Certificate; or
(b) which become apparent prior to the expiration of twelve (12) months from the date of the Handover Certificate or 1,000 machine hours on the Goods, whichever is the earlier.
13.4 The Seller will provide the Customer with a Log Book on the date of the Handover Certificate, the Customer must maintain and service the Goods manufactured by the Seller for the period of twelve (12) months in accordance with the Seller’s specifications as detailed in the Log Book.
14. LIMITATION OF LIABILITY
14.1 The maximum liability of the Seller in respect of this Agreement shall not exceed the 10% of the total payments actually received by the Seller under this Agreement.
15. DEFAULT AND CONSEQUENCES OF DEFAULT
15.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
15.2 In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by the Seller.
15.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own client basis and the Seller’s collection agency costs.
15.4 Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment) the Seller may suspend or terminate the supply of Goods to the Customer and any of its other obligations under this Agreement. The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller has exercised its rights under this clause.
15.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of four hundred dollars ($400.00) shall be levied for administration fees which sum shall become immediately due and payable.
15.6 Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Customer will be unable to meet its payments as they fall due;
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
16. SECURITY AND CHARGE
16.1 Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:
(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under this Agreement. The Customer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 16.1.
17.1 The Seller may cancel any supply to which this Agreement applies or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice the Seller shall repay to the Customer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by the Seller (including, but not limited to, any loss of profits) up to the time of cancellation.
18. PRIVACY ACT 1988
18.1 The Customer and/or the Guarantor/s agree for the Seller to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by the Seller.
18.2 The Customer and/or the Guarantor/s agree that the Seller may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the credit worthiness of Customer and/or Guarantor/s.
18.3 The Customer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
18.4 The Customer agrees that personal credit information provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Customer and Seller or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by the Seller, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and/or
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
18.5 The Seller may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
19. UNPAID SELLER’S RIGHTS
19.1 Where the Customer has left any item with the Seller for repair, modification, exchange or for the Seller to perform any other Service in relation to the item and the Seller has not received or been tendered the whole of the Price, or the payment has been dishonoured, the Seller shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while the Seller is in possession of the item; and
(c) a right to sell the item.
19.2 The lien of the Seller shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.
20.1 If any terms and conditions of this Agreement shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.2 If any terms and conditions of this Agreement are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency.
20.3 This Agreement shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
20.4 The Seller shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Seller of the terms and conditions of this Agreement.
20.5 In the event of any breach of this Agreement by the Seller the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
20.6 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.
20.7 The Seller may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
20.8 The Customer agrees that the Seller may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Seller notifies the Customer of such change.
20.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
20.10 The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’s right to subsequently enforce that provision.