1. Definitions
1.1. Company: Terrequipe Pty Limited (ABN 64 141 662 562, ACN 141 662 562)
1.2. Contract: includes the Quotation, these Terms and Conditions and/or any equipment lease and is concluded between the Company and the Customer.
1.3. Customer: the purchaser or recipient of the Goods and Services.
1.4. Goods and Services: shall also mean all goods, products, services and advice provided by the Company to the Customer. This shall include (without limitation) the importation, distribution, exportation and repair of equipment, the supply of parts, technical advice and labour, equipment leasing, rental or hiring and insurance and freight associated with the supply of Goods by the Company to the Customer.
1.5. Invoice means an invoice issued by the Company for the supply of Goods and Services.
1.6. Quotation: any quotation attached, overleaf or otherwise accompanying these terms and conditions or any verbal quotation or document issued by the Company for the supply of Goods and Services
2. Quotation
2.1. Subject to clause 3.7, the Quotation is valid for a period of 30 days from the date of the Quotation.
2.2. If the Customer intends to order Goods and Services from the Company on the terms set out in the Quotation, the Customer must notify the Company in writing of its intention to do so.
3. Purchase Price and Other Charges
3.1. Purchase Price: The Customer must pay the Company the total purchase price for the Goods and Services, including any freight costs, delivery costs or installation costs as set out in the Quotation or the Invoice.
3.2. Deposit: A deposit of the amount set out in the Quotation or the Invoice will be payable by the Customer on the date that the Customer orders Goods and Services from the Company.
3.3. Cancellation: A cancellation fee of the amount set out in the Quotation will be charged to the Customer if the Customer changes or cancels an order of goods and services after manufacture of the goods or provision of the services has commenced.
3.4. GST and other taxes: Unless otherwise stated, the purchase price specified in the Quotation is exclusive of all taxes (including Goods and Services tax), duties, levies and all other statutory charges that may be imposed upon the sale of the goods and services by any governmental or state authority. All such taxes, duties, levies and other statutory charges are payable by the Customer to the Company.
3.5. Payment Due Date: The Customer is required to pay the purchase price together with all other applicable fees and charges that may become due and payable by the date specified in the Quotation and/or Invoice. If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further deliveries to the Customer.
3.6. Late Payment Fee: If the Customer does not pay all amounts owing under the Contract by the payment due date, a late payment fee of 1.5% per month (calculated monthly) may be imposed.
4. Risk
4.1. Risk in the Goods and Services passes to the Customer upon the first to occur of delivery to the Customer, delivery in accordance with the Customer's instructions or delivery to a carrier or agent commissioned by the Customer.
5. Delivery Date
5.1. Any delivery date or time specified is an estimate only. The Company will endeavour to deliver the Goods and Services in the timeframe specified but the Company will not be liable for any loss or damage of any kind whatsoever caused by any delay in or failure of delivery for any reason.
6. Retention of Title
6.1. Until the Customer has paid and the Company has received all amounts due and payable under the Contract:
- a) the Company retains ownership of the Goods and Services supplied to the Customer;
- b) the Company shall have a right to inspect and repossess the Goods and Services and to enter the Customer's premises for this purpose at all reasonable times;
- c) the Customer shall hold the Goods as the Company's fiduciary agent and bailee and shall keep the Goods separate from those of the Customers and third parties and stored, protected and insured as the Company's property;
- d) the Customer will be permitted to use or deal with the Goods and Services in the ordinary course of business, provided that:
- I) the Customer keeps the Goods and Services in a merchantable condition and clearly able to be identified as property of the Company; or
- II) if the Customer sells or offers to sell the Goods and Services, the sale is an arm's length transaction at market value and the Customer retains the proceeds of any sale of the Goods and Services in a separate bank account on trust for the Company.
6.2. Recovery of Goods and Services: If the customer fails to pay for the goods and Services by the payment due date, the Company may take all steps necessary (including entering the Customer's premises and legal action) to recover any goods and services supplied to the customer and for which full payment of all amounts due and payable under the Contract has not been received.
6.3. The Company will not be liable for any damage arising as a result of the recovery of the Goods and Services pursuant to clause 6.2 above.
7. Indemnities and Exclusion of Liability
7.1. Subject to clause 7.2, all terms, conditions, warranties, undertakings, inducements or representation whether express or implied, statutory or otherwise, relating to the Goods and Services are excluded.
7.2. Where any Act of Parliament implies a term in the contract and that Act prohibits provisions in a contract excluding or modifying the application, exercise or liability under that term, such term, shall be deemed to be included in this Contract provided that the liability of the Company for breach of the term, condition or warranty is limited to the repair or replacement of the Goods and Services or parts of the Goods and Services (or the cost of doing so).
7.3. Subject to clause 7.2, the Company excludes all liability for indirect and consequential loss (including for loss of profits of any kind, loss of revenue, loss of anticipated or expected profits or revenue, economic loss of any kind and any loss suffered as a result of any claim or claims of third parties) in contract or tort (including negligence) under statute or otherwise to you arising from or connected to these terms and conditions.
7.4. The Customer indemnifies the Company against all liability, loss, costs and expenses (including legal fees, costs and disbursements on the higher of a full indemnity basis and a solicitor/client basis, determined without taxation, assessment or similar process and whether incurred or awarded against the Company) arising from or incurred in connection with:
- a) the Customer's use or possession of the Goods and Services; or
- b) the Customer being in breach of the Contract (including late payment)
7.5. Each indemnity in this Contract is a continuing obligation, separate and independent from the other obligations of the parties and survives termination, completion and expiration of this Contract. It is not necessary for a party to incur expense or make any payment before enforcing a right of indemnity conferred by this Contract. The Customer must pay on demand any amount if must pay under an indemnity in this Contract.
8. Entire Agreement:
The Contract comprises the entire agreement of the parties. All Goods and Services sold by the Company are sold only on the basis of these terms and conditions. If any other terms are proposed by the customer, these terms and conditions will prevail to the extent of any inconsistency and the Company will be deemed by delivering the Goods and Services to the Customer to have made a counter-offer to sell the Goods and Services subject only to these Terms and Conditions. By accepting delivery of the Goods and Services, the Customer accepts the counter-offer.
9. No reliance
The Customer acknowledges that neither the Company nor any person acting on the Company's behalf has made any representation or other inducement to it to enter this Contract and that it has not entered into this Contract in reliance on any representations or inducements except for those representations or inducements contained herein.
10. Severability
If any part of this Agreement becomes void or unenforceable for any reason then that part will be severed with the intent that all remaining parts will continue to be in full force and effect and be unaffected by the severance of any other parts.
11. Governing Law
The Contract is governed by the laws of the state or Territory of Australia where the Purchase Contract is entered into by the parties and each party submits to the exclusive jurisdiction of the courts of that State of Territory.
12. Privacy
The Customer provides its consent for the Company to disclose personal information about the Customer to other entities within the Terrequipe Group
13. Guarantee or Other Security
If the Goods and Services are supplied to the Customer prior to payment of the full price, the Company may require the Customer to procure its directors to execute and deliver a guarantee & indemnity and/or to provide other security.
14. Equipment Leases
If there is any inconsistency between these Terms and Conditions and any equipment lease, the provisions of the equipment lease will apply.
15. Manufacturer Warranties
Any warranties in respect of the Goods are provided by the manufacturer of the Goods on its terms and are not provided by the Company.
Revision Date: 25 October 2020