1.1 These terms and conditions shall, without further notice, apply to all transactions between the Seller and the Purchaser, including all quotations, offers, orders and sales, whether or not this document is delivered or executed in the course of the transaction.
1.2 The Seller will sell and the Purchaser will buy the Goods for the Purchase Price on the terms and conditions set out herein, and acceptance of the Seller’s Goods shall constitute acceptance of these terms and conditions of sale.
1.3 Subject to any Prescribed Terms, this document embodies the sole terms and conditions of the Contract between the Seller and the Purchaser and supersedes all other conditions and agreements between the parties, unless expressly amended in writing by the Seller.
1.4 No amendment, deletion, addition, variation or abrogation of these terms and conditions shall be effective unless it is evidenced in writing signed on behalf of the Seller.
1.5 The Seller and Purchaser have entered into these terms and conditions without relying on any representation by the other party or any person purporting to represent the other.
1.6 These conditions will prevail over all conditions of the transaction to the extent of any inconsistency in any term or condition. Any term or condition specified by the Purchaser and not agreed to in writing by the Seller shall not be binding on the Seller.
1.7 The Purchaser must not assign its interest in this Contract without the consent of the Seller in writing.
1.8 Clerical errors or omissions in any quotation or invoice shall be subject to correction, clerical errors and omissions include but not limited to any calculation, tax code, product quantity, and pricing. Where an incorrect customer name has been put on the invoice, quotation or statement, then the Seller reserves the right to amend the invoice to reflect the correct customer name. Words importing the singular shall be deemed to include the plural and vice versa. Words referring to male gender shall be deemed to include female gender and vice versa.
1.9 Failure by the Seller to insist upon strict performance of any term, warranty or condition of these terms and conditions shall not be deemed as a waiver thereof or of any rights the Seller may have and no express waiver shall be deemed a waiver of any subsequent breach of any term warranty or condition. In the instance where an express waiver is given to the Purchaser, it is only valid for that specific instance to which it relates, and only for the specific purpose for which it is given. Any specific waiver is not effective unless given in writing by the Seller to the Purchaser.
In these terms and conditions and in any Contract to which these conditions apply, unless inconsistent with the context, the following mean:
“Additional Charges” means and includes all delivery, handling and storage charges, sales tax, Goods and Services tax, stamp duty, interest, legal and other costs of recovery of unpaid money and all other government imposts and all money, other than the Purchase Price, payable by the Purchaser to the Seller arising out of the sale of the Goods.
“Claim” means any claim, demand, action or proceeding.
“Contract” means the Contract between the Seller and the Purchaser for, or in relation to, the sale and purchase of Goods, and includes these standard terms and conditions of sale.
“Delivery Docket” means any delivery docket issued by the Seller, its agent, or transport carrier.
“Force Majeure Event” means a labour dispute and or strike; lockouts; act of government such as decree, proclamation, embargo or order; rebellion, war, riot or civil disturbance; storm, tempest, fire, flood, earthquake, natural calamity or any other act of God; shortages of raw materials; transport difficulties; failures or malfunctions of computers or other information technology systems; or any other event beyond the reasonable control of the Seller.
“Goods” means the goods which the Purchaser has ordered from the Seller and any services which the Seller has agreed to supply to the Purchaser.
“GST” and “Taxable Supply” have the meanings given in the GST Act.
“GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended.
“Interest Rate” means the rate charged on all outstanding money applied to the daily balances until paid at a rate of interest per annum equal to the rate 4% in excess of the Retail Index Rate (which equals the Personal Overdraft Rate) charged by Australia New Zealand Bank Limited.
“Payment Date and or Due Date” means where the Seller supplies the Goods to the Purchaser, payment is due immediately, or within 30 days from the end of the month of the date of issuance of the invoice, or any other time as communicated to the Purchaser.
“Prescribed Terms” means any terms, conditions, guarantees and warranties which The Act and any other law expressly provides may not in respect of the Contract be excluded, restricted or modified, or may be excluded, restricted or modified only to a limited extent
“Purchaser” means the person or corporation or any legal entity who buys or has agreed to buy the Goods from the Seller.
“Purchase Price” means the list price for the Goods as charged by the Seller at the date of the delivery or such other price as may be agreed by the Seller and the Purchaser prior to delivery of the Goods.
“Seller” means Reitara Pty Ltd trading as Ground Tec Equipment ABN 43 083 242 406.
“Standard terms and conditions of sale” means the terms and conditions set out herein, as amended by the Seller from time to time, without notice.
“The Act” means the Competition & Consumer Act 2010.
3. Purchaser’s Order for Goods or Cancellation of Order
3.1 All purchase orders are subject to acceptance by the Seller, and if accepted, will be binding between the Purchaser and the Seller. Acceptance constitutes the entire agreement between the Seller and the Purchaser and is expressly agreed that there are no other understandings, representations or warranties of any kind, expressed or implied, forming part of this Contract.
3.2 An order which has been accepted in whole or in part by the Seller cannot be cancelled by the Purchaser without obtaining the prior written approval of the Seller, which it may refuse in its absolute discretion. The Purchaser will pay reasonable compensation for any work done and for any costs and expense incurred for the supply of Goods.
4.1 Pricing will be in accordance with the Seller’s price list at time of order, which is subject to variation without notice. The Purchaser shall also pay any Additional Charges the Seller has incurred on behalf of and notified to the Purchaser or which the Seller is entitled to claim against the Purchaser for the supply of Goods.
5. Payment and defaults
5.1 The Purchaser will pay the full price of each order to the Seller by the Payment Date.
5.2 If the Purchaser fails to pay the price when due the Seller may treat the Contract as repudiated by the Purchaser or may suspend delivery of the Goods without incurring any liability whatsoever to the Purchaser in respect thereof.
5.3 Notwithstanding any rights of lien to which the Seller may otherwise be entitled, the Seller shall have a specific lien (including a right of sale) over the Goods until the Goods have been paid in full. The Purchaser shall not be entitled to make any deduction from the price in respect of any off-set or counter claims.
5.4 If the Seller is not paid for any Goods on the due date specified in this agreement, without prejudice to any other right or remedy:
(a) The Seller may, without demand, retake possession of the Goods and may, without notice, sell the Goods on such terms and in such manner as it may determine and will be entitled to deduct all expenses incurred; and
(b) For the purpose of recovering possession, the Purchaser hereby irrevocably authorises the Seller, its servants or agents to enter upon any premises where any Goods may be stored to repossess the Goods; and
(c) Where the Purchaser fails to pay the for the Goods or any other payment due under this Contract by the Due Date for payment then interest shall accrue, calculated daily, on the unpaid amount at the Interest Rate, from the date of Payment Due until the Purchase Price is fully paid. Charging interest does not extend the time for payment; and
(d) The Seller may recover the price of the Goods together with all interest forthwith from the Purchaser as a liquidated debt in a court of competent jurisdiction irrespective of any claim that the Purchaser may have against the Seller for any thing or matter related to the Goods delivered under this Contract; and
(e) The Purchaser shall pay any and all of the Seller’s debt collection and legal costs and expenses incurred in the recovery or attempted recovery of the overdue amounts from the Purchaser.
5.5 If the Purchaser is in default, the Seller may at its option withhold further deliveries or cancel a Contract without prejudice to any of its existing rights.
5.6 The Seller may offset any amount owed by the Seller to the Purchaser from any amount due by the Purchaser to the Seller.
5.7 Any payments submitted by the Purchaser shall be applied in the following order:
(a) Firstly, as reimbursement for any debt collection costs or expenses incurred by the Seller under Section 5.4(e);
(b) Secondly, in payment of any interest charges that may have accumulated under Section 5.4(c); and
(c) Finally, in satisfaction or part satisfaction of the oldest debt on the Purchaser’s outstanding account.
6.1 In the event that any part of an invoice is disputed, the amount not under question shall be paid promptly according to applicable payment terms, and any claim or dispute shall be subject to arbitration under the Commercial Arbitration Act 2010 of NSW.
7. Event of Default
7.1 The Seller will treat any default by the Purchaser in payment of any monies due to the Seller as a breach of these terms and conditions, and reserves the right thereupon to cease work on all orders placed by the Purchaser until the due payments on all moneys owed are made.
7.2 The Seller may, at its option and without prejudice to any of its rights, either suspend further deliveries, require payment in advance or terminate any Contract by written notice to the Purchaser where any one or more of the following event of default occur:
(a) Any default in any Contract whether between the Purchaser and the Seller or the Purchaser and any third party;
(b) The Purchaser commits an act of bankruptcy;
(c) The Purchaser, being a corporation, is subject to a petition being presented, an order being made or a meeting being called to consider a resolution for the Purchaser to be wound up, deregistered or dissolved; or if a receiver, receiver and manager or an administrator being appointed to all or any part of the Purchaser’s property and undertaking; or the entering of a scheme of arrangement (other than for the purpose of restructuring); or any assignment for the benefit of creditors;
(d) The Purchaser ceases or threatens to cease to carry on his business;
(e) The Purchaser dies or becomes incapacitated;
(f) Any cheque or instrument of credit not honoured on Seller’s presentation;
(g) A judgment of any Court which is not stated or satisfied within 7 days;
(h) Change of the effective control and/or management of the Purchaser;
(i) Any default under the terms of any lease for the premises on which any or all of the Goods are stored;
(j) Any other type of event that gives rise for concern under this provision at any time.
7.3 Written notice must be given to the Seller as soon as the Purchaser anticipates that an event under Section 7 has occurred or will occur.
7.4 The Seller can invoke this Section at any time, regardless of any passing of time since the default event.
7.5 Termination of the Contract under this section does not affect accruing or accrued rights to the Seller.
8. Delivery and acceptance
8.1 The Purchaser will inspect the Goods immediately upon receipt and must, within seven days, give written notice to the Seller of any claim that the Goods are not in accordance with the Contract. If the Purchaser fails to give that notice, then to the extent permissible by law, the Goods must be treated as having been accepted by the Purchaser and the Purchaser must pay for the Goods in accordance with these terms and conditions.
8.2 Delivery will be deemed to take place upon the dispatch of the Goods from the Seller’s or its agent’s premises. The Purchaser agrees that the signed Delivery Docket shall be conclusive evidence of delivery.
8.3 In addition to the Purchase Price, all delivery costs will be at the cost of the Purchaser, and unless the Purchaser has given specific written instructions, delivery will be effected by any means determined by the Seller.
8.4 Any time or date named as delivery date is an estimate only and does not constitute a condition of the Contract.
8.5 Should Force Majeure circumstances exist, the Seller will be free from any obligation to deliver Goods while such circumstances continue. The Seller may, at its option, cancel, rescind or terminate all or any part of the Contract or keep the validity of the Contract until such circumstances have ceased.
8.6 Each party must bear its own costs and no party will have any claim for compensation against the other arising from the cancellation of the Contract pursuant to this Section.
9. Shortages, damage or loss in transit
9.1 The Purchaser shall notify the Seller within seven days of delivery of any short fall in or loss or damage to Goods delivered. Failure to so notify shall, subject to the requirements of any Prescribed Terms, disentitle the Purchaser to any remedy in respect to the shortage, loss or damage.
9.2 The Seller is not liable for any loss or damage to Goods in transit including any consequential loss or damage. Claims made for in transit damage or loss must be made against the carrier in the prescribed manner by the Purchaser.
9.3 Prior to acknowledging delivery from the carrier the Purchaser must ensure that the complete consignment as per the carrier’s note has been received, and any shortage or visible damage to outer packaging the carrier’s note must be endorsed accordingly.
10. Return of Goods
10.1 Return of Goods will not be accepted by the Seller except by prior agreement in writing with the Seller, and any application for returns must be received within fourteen dates from delivery date.
10.2 Approved return Goods for credit must be returned within 30 days of the approval authorisation.
10.3 Goods are to be returned via freight prepaid, and if the Purchaser’s claim that the Goods are not in accordance with the Contract, the Seller will refund that freight charge paid to the Purchaser.
10.4 Credit will only be given if the Goods are returned in a saleable condition, and the Seller reserves the right to charge a restocking fee against any returned Goods they may agree to accept. Such fees will be levied solely at the Seller’s discretion.
11. Risk and Title
11.1 Risk shall pass to the Purchaser on collection of the Goods or by receipt of delivery. The Purchaser must insure the Goods at its own cost from delivery of the Goods until the Goods are paid for in full and include the Seller’s interest on that insurance policy, and produce a certificate to this effect upon the Seller’s request.
11.2 Ownership of all Goods sold by the Seller is retained by the Seller until full payment is received for all amounts owing in respect of all Goods supplied to the Purchaser under any Contract.
11.3 The relationship between the Seller and the Purchaser will be fiduciary. Pending payment in full the Purchaser shall hold the Goods as bailee for the Seller and shall return the Goods to the Seller if so requested.
11.4 Notwithstanding the foregoing, the Purchaser as fiduciary may sell or deal with the Goods in the ordinary course of its business whereupon the bailment shall immediately terminate.
11.5 If the Purchaser fails to make any payment in full on the due date to the Seller or the Purchaser commits an ‘event of default’ as defined in Section 7 the Purchaser must then:
(a) Receive any monies received from any on-sale of the Goods to a third party on trust for The Seller;
(b) Where any Goods have been on-sold by the Purchaser to a third party before the Purchase Price is fully paid, then the Purchaser must, if required by the Seller, assign all rights to the Seller to any claims it may have against such third parties to recover any unpaid amounts in respect of the Goods onsold;
(c) Keep the Goods and any monies received from any on-sale of the Goods to a third party separate and clearly identifiable;
(d) Where for whatever reason the Goods become mixed with other goods then title to such goods shall be assigned to the Seller until full payment of the Purchase Price is received and the rights of the Seller under this Contract shall apply to such other goods;
(e) Promptly pay to the Seller any monies received from any on-sale of any Goods, and such payment shall be a deduction from the Purchase Price;
(f) Have no right or claim to any interest in the Goods to secure any liquidated or unliquidated debt or obligation the Seller owes to the Purchase;
(g) Cannot claim any lien over the Goods;
(h) Will not create any absolute or defeasible interest in the Goods in relation to any third party except as may be authorised by the Seller;
(i) Cooperate fully with the Seller for the purpose of retaking possession of such Goods.
(j) The Purchaser will reimburse, indemnify and hold harmless the Seller, its employees and agents in respect of any costs, expenses, loss or damage (including such to any third parties) in respect of attempted exercise of the Seller’s remedies under this Section.
11.6 The Seller may cancel any or all Contracts with the Purchaser and the Seller will not be liable to the Purchaser therefore, and all monies owing by the Purchaser to the Seller on any account whatsoever shall become immediately due and payable.
11. 7 Notwithstanding the provisions above the Seller will be entitled to maintain an action against the Purchaser for the Purchase Price, Additional Charges and any other applicable charges.
12. Warranties and Exclusions of Liability
12.1 Without limiting the above Sections, the Seller warrants that the Goods sold shall be free from defects in material or workmanship, subject to fair and proper usage, within the guarantee period, provided always that such defective parts are promptly returned to the Seller, unless otherwise arranged.
12.2 This warranty comprises the sole and entire warranty pertaining to the Goods provided, and nothing in this Section will operate to exclude, restrict or modify any condition, warranty, right or liability implied into this Contract under The Act or otherwise by law. At the termination of the appropriate period all liability on the Seller’s part ceases.
12.3 The Seller’s liability under this Contract and the warranty in this Section is confined to the Purchaser named in this Contract.
12.6 The Purchaser shall immediately notify the Seller in writing of any defect in the Goods supplied.
12.7 The Purchaser acknowledges, agrees, represents and warrants that:
(a) the use of the Goods is outside the control of the Seller; and
(b) the Purchaser will ensure the Goods and any product that is produced from them will be without defect and suitable or fit for any purpose required of them; and
(c) the Purchaser has not relied upon any statement, representation, warranty, guarantee, condition, advice, recommendation, information, assistance or service provided or given by the Seller or anyone on its behalf in respect of the Goods, other than those that are expressly contained in the Contract; and
(d) The Purchaser releases and indemnifies the Seller and its officers, employees, consultants and agents from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly with the Purchaser and whether at common law, under tort (including negligence), in equity, pursuant to statute or otherwise, in respect of any loss, death, injury, illness, cost or damage arising out of any breach by the Purchaser under subsection 12.8.
12.8 Subject to the provisions of any Prescribed Terms, the Seller’s liability in respect of any Claim arising in any way out of the Contract or its performance or from any failure to perform the Contract including breach of any condition, warranty or guarantee contained in the Contract or in any implied Prescribed Terms and whether that liability arises under Contract, tort (including negligence), breach of statutory duty or otherwise, is limited as follows:
(a) if the Seller’s liability is due to a failure to comply with the guarantee and such failure cannot be remedied or is a major failure as defined in The Act as a Relevant Failure, the Seller’s liability is as stated under Division 1 of Part 5-4 of The Act in respect of that Relevant Failure;
(b) if the liability is due to a failure that is not a Relevant Failure, the Seller’s liability is limited, to the extent permitted by statute, being the replacement or resupply of the Goods, or the cost of replacement or resupply of the Goods; or refund of the Purchase Price; or the repair of the Goods, or the cost of repair of the Goods.
12.9 Unless otherwise specified, this warranty does not cover:
(a) modified, abused, neglected, accidentally damaged or excessively worn products, or products damaged or defective as a result of improper use; or
(b) repairs attempted or made by the Purchaser or a third party; or
(c) conditions or malfunctions caused by the reasonable effects of fair wear and tear or the malfunction of normally wearing parts; or
(d) products that are not distributed by the Seller through an authorised distributor or reseller.
13. Warranty Claim
13.1 Unless otherwise specified, the process for making a warranty claim as a consumer is as follows:
(a) Any Goods subject to a warranty claim must be returned to the place of purchase; and
(b) The Purchaser must present proof of purchase when making a warranty claim; and
(c) The claim under a warranty will be assessed and accepted if a relevant defect is found; and
(d) The warranty claim is made during the relevant warranty period.
13.2 Upon acceptance of a claim under a warranty, the Seller will arrange a replacement product or arrange for the product to be repaired free of charge. Any defect item that is subsequently replaced under warranty shall become the property of the Seller.
14.1 The Purchaser shall keep the Seller indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature, including, without prejudice to the generality of the foregoing, claims of death, personal injury, damage to property and consequential loss (including loss of profit) which may be made against the Purchaser or which the Purchaser may sustain, pay or incur as a result of or in connection with the manufacture, sale, or use of the Goods unless such costs, claim, demand, expense or liability shall be directly and solely attributable to any breach of Contract or guarantee by, or negligence of, the Seller or its duly authorised employee or agent.
14.2 The Seller will not be liable to the Purchaser in connection with this Contract, or under Contract, tort (including negligence), breach of statute or any other cause of action at law or in equity, for any cost, expense, loss or damage of an indirect or special nature, losses of profits, Contract, opportunity, goodwill, business reputation, revenue, use of property, production; increased costs of working or labour costs, costs of capital, business interruption, or any consequential loss.
14.3 Notwithstanding any provision to the contrary, the Seller’s total aggregate liability shall, under all circumstances, be capped at 100% of the value of the Purchase Price.
14.4 Section 14 will survive the termination of the Contract.
15. Withholding Supply
15.1 The Seller reserves the right, irrespective of whether or not an order has been accepted and without notice to the Purchaser, to withhold supply to the Purchaser and the Seller will not be liable for loss or damage resulting directly or indirectly from such action where:
(a) The Seller has insufficient Goods to fill the order;
(b) The Goods ordered have been discontinued; or
(c) The Seller has determined in the Seller’s absolute discretion that credit should no longer be extended to the Purchaser.
16. Goods and Services Tax
16.1 All invoices will be issued in accordance with Section 195-1 of The GST Act, and prices will be quoted exclusive of GST. Any and all payments must include any amount of GST as shown on the invoice, or as shown on any amended invoice.
16.2 If any supply under this Contract is a Taxable Supply then both parties acknowledge that they are registered for GST purposes.
16.3 GST will be charged on those products that attract GST at the applicable rate. GST will be shown separately in the account for the sale of the Goods. The Purchaser must indemnify the Seller in respect of GST paid and payable by the Seller in respect of the supply of the Goods.
16.4 References to GST payable and input tax credit entitlement in relation to the Purchaser includes any corresponding GST payable and input tax entitlement by the representative member of a GST group that the Purchaser may be a member of.
16.5 Where The GST Act treats part of a supply as a separate supply for the purposes of determining whether GST is payable on that part of the supply or for the purpose of determining the tax period the supply is attributable, that part of the supply is to be treated as a separate supply.
16.6 Any discounts or other terms agreed between the Purchaser and the Seller will be calculated on and applied to the Purchase Price exclusive of GST.
17. Compliances with Regulations
17.1 The Purchaser shall be solely responsible for obtaining any necessary permits under and for compliance with all legislation, regulations, by-laws or rules having the force of law in connection with the installation and operation of the Goods.
17.2 It is the Purchaser’s responsibility to ensure that all applicable health and safety regulations are observed and bring any potential hazards relating to the Goods to the attention of its employees, agents, sub-Contractors and visitors.
18. Proper Law, Jurisdiction and Severance
18.1 These terms and conditions are to be construed in accordance with the laws from time to time in the State of New South Wales and the Commonwealth of Australia.
18.2 Any conditions found to be void, unenforceable or illegal may, to that extent be severed from the Agreement
18.3 No actions arising out of the sale of the Goods or this document may be brought by either party more than three (3) years after the cause of action accrues.