Terms and Conditions of Trade
P.C. Arbuckle Proprietary Limited Terms and Conditions of Trade
In these terms and conditions:
(a) “we” or “us” or “our” or “the Company” means P.C. Arbuckle Proprietary Limited ACN 005 204 982;
(b) “you” or “your” means the customer who seeks to or does obtain the Goods and Services and any other person entering a contract with us on these terms and conditions or, where such person is acting in the course of employment, such person’s employer;
(c) “Accessories and Spare Parts” means Machinery accessories and spare parts sold by us including rubber pads, service kits, safety sticker kits, oil and additives, grease, coolant, teeth and adapters, filters, and shims;
(d) “Attachments” means Machinery attachments sold by us including 5 finger grabs, rippers, hydraulic thumbs, augers, auger drives, and hydraulic hammers;
(e) “Consequential Loss” means consequential, special, indirect, incidental, punitive or exemplary loss, loss of income, loss of profits, loss of goodwill, wasted expenditure, reliance loss, expectation loss, loss of bargain, or any loss or gain for which restitution damages may be awarded;
(f) “Goods and Services” means goods and/or services supplied by us to you from time to time and “Goods” means such goods and “Services” means such services;
(g) “Light Equipment” means any light equipment sold by us, including generators, saws, pumps, concreting equipment, and compaction equipment, whether new or used;
(h) “Machinery” means any machinery and equipment sold by us, including telehandlers, site dumpers, tracked loaders, skid steer loaders, mini loaders, and excavators, whether new or used;
(i) “PPSA” means Personal Property Securities Act 2009 (Cth) as amended from time to time;
(j) “Website” means http://www.austces.com.au/ and its subdirectories; and
(k) the word “including” is not to be taken as limiting the meaning of the words preceding it.
2.1 You will purchase and we will supply Goods and Services to you pursuant to these terms and conditions. Prior to entering a binding agreement, we are not obliged to supply any goods and services to you when requested to do so.
2.2 All additions and amendments to these terms and conditions must be notified to and signed by us. All Goods and Services supplied after that notification and signature will be on such amended terms and conditions.
2.3 Subject to you and us agreeing otherwise, the Goods and Services are supplied only on these terms and conditions (and any applicable proposal or quotation provided by us) and to the exclusion of any terms and conditions contained in any document submitted or maintained by you.
2.4 You agree to notify us immediately of any changes to your business ownership (including a change of control in the entity operating the business) and you agree that until you do so and we enter into a new agreement with the new owners, then you remain liable for any further Goods and Services ordered from us in accordance with these terms and conditions.
2.5 The risk of loss or damage to the Goods passes to you on the date and at the time that:
(a) the Goods are removed from storage for the purpose of delivery to you;
(b) title ceases to be retained by us in accordance with clause 7,
whichever is earlier.
2.6 Any delivery times notified to you are estimates only and we are not responsible for late or non-delivery.
2.7 If you request us to postpone delivery of the Goods beyond the delivery date or dates specified in the order, we may (in our sole discretion) agree to do so if you pay our additional fee for such postponement and for storage charges.
2.8 Any quotes or estimates we provide to you are offers that once accepted by you constitute a legally binding agreement (incorporating these terms and conditions).
3.1 You agree that unless and until we confirm that credit terms have been granted to you, and subject to any deposit payable in advance, all Goods and Services are supplied on a cash on delivery basis.
3.2 Unless otherwise agreed in writing, all amounts owing to the Company on account of Goods and Services supplied to you on credit are due and payable within 30 days after the end of the calendar month in which they are invoiced.
3.3 Payment is to be made by electronic funds transfer with a 10% non-refundable deposit paid in advance or any other payment method we may, in our sole discretion, choose to accept. If we agree, you may pay by Visa or Mastercard. However, we reserve the right to charge a surcharge for effecting payment by this method at the lawful rate advised by us from time to time.
3.4 You agree that if you fail to pay in accordance with this clause 3, we may:
(a) charge interest on debts at the rate prescribed pursuant to the Penalty Interest Rates Act 1983 (Vic) from time to time;
(b) charge a dishonour handling fee at the rate advised by us from time to time (acting reasonably), where we are unable to obtain payment from your credit card provider or a cheque is not paid by your bank;
(c) recover all collection costs and expenses and legal fees incurred in collecting or attempting to collect overdue accounts;
(d) withhold supply; and
(e) retain any deposit.
3.5 Any forbearance or delay by us in charging any of the fees set out in this clause 3 does not constitute a waiver of our right to do so in the future.
4 CANCELLING ORDERS
4.1 You may not cancel an order for Goods or Services that has been accepted by us.
4.2 Despite clause 4.1, we may, in our sole and absolute discretion, agree to cancel an order after we have accepted it, on the condition that you agree to defray our costs of doing so on a full indemnity basis.
5.1 We will accept returns of Accessories and Spare Parts only if such Goods:
(a) have not been removed from the original packaging and remain in an unused condition;
(b) have not been fitted or used; and
(c) are returned with the original receipt (Returnable Goods).
5.2 If you wish to return a Returnable Good, you must do so within 7 days of the date you received the Returnable Good, by doing either of the following:
(a) returning the Returnable Good to us at:
(i) our premises at 225 Colchester Road, Kilsyth, Victoria 3137; or
(ii) if a different address is displayed on our Website as our current address—the address so displayed; or
(b) returning the Returnable Good to us by post or courier to:
(i) our premises at 225 Colchester Road, Kilsyth, Victoria 313; or
(ii) if a different address is displayed on our Website as our current address—the address so displayed.
5.3 You will pay the cost of any shipping, handling, postage or the like in connection with returned Goods and we will not credit or refund any such cost to you.
5.4 If we accept the return of a Returnable Good, we will refund to you the purchase price that you paid to us for the relevant Good (excluding any shipping, handling or delivery costs).
5.5 We will not accept returns of Machinery, Attachments and Light Equipment under any circumstances. You will pay any costs associated with any attempt to return such Goods to us unless you first receive our written consent to do so.
6 PRIVACY ACT AUTHORITY
6.1 For the purposes of assessing your credit worthiness from time to time and the collection of payments, you hereby authorise us to make such enquiries as we deem necessary including, without limitation, making enquiries of and obtaining reports (as may be allowed by law) from persons nominated by you as trade references, your creditors, bankers and financiers, credit providers, and credit reporting agencies (“the information sources”).
6.2 You consent to the information sources providing us such information as is requested by us and permitted to be given by law. You also consent to us disclosing personal information or the contents of any credit report to a credit reporting agency for the purpose of that credit reporting agency creating or adding to any credit information file in relation to you.
7 RETENTION OF TITLE
7.1 It is expressly agreed and declared by both parties that in relation to Goods supplied to you:
(a) the sole and absolute property in those Goods remains with us as legal and equitable owner until the later of:
(i) receipt of payment in full for the Goods; and
(ii) receipt of payment in full of all other monies owing or unpaid by you to us including monies in respect of Goods and Services previously or subsequently supplied to you by us;
(b) you will hold those Goods as bailee for us;
(c) where you sell those Goods, you have no power to commit us to any contract or liability, but as between you and us, you will sell as fiduciary agent;
(d) where you sell those Goods, our security interest in the Goods attaches to the proceeds of the sale (in addition to continuing in the Goods to the maximum extent permitted by law);
(e) we will be given full ownership of any new goods, objects, accessions, or personal property formed if you transform our Goods into other products, affix those Goods to other objects, or the Goods become an accession to other goods;
(f) your right to possess the Goods ceases immediately if you do or fail to do anything which would entitle a receiver, a receiver and manager, an administrator or a trustee to be appointed in respect of you, your undertaking or property or any part thereof, or entitle a person to present a creditor’s petition for winding up.
7.2 You undertake that until you deliver the Goods to a third party, you will store the Goods on your premises separately from your own goods, or those of any other person, and in a manner which makes the Goods readily identifiable as our goods.
7.3 You agree that our employees or agents may enter upon any of your premises (doing all that is necessary to gain access) where we reasonably believe Goods supplied under these terms and conditions are or may be stored or located for the purpose of examining or recovering possession of those Goods.
7.4 You acknowledge and expressly agree that this clause 7 constitutes a Security Agreement which creates a Security Interest in favour of us in all Goods, including any Commingled Goods and accessions, supplied by us to you. You acknowledge and agree that:
(a) we may, without providing notice to you, apply to register our Security Interest pursuant to the PPSA and it is the intention of both parties that upon registration of our Security Interest on the personal property securities register (“PPSR”), a Purchase Money Security Interest will result;
(b) you agree that we are not required to disclose to an interested person information regarding our Security Interest unless required to do so by law and that this clause 7 constitutes a Confidentiality Agreement for the purposes of section 275(6) of the PPSA;
(c) upon our request, you will promptly sign any documents, provide any further information and do anything else reasonably required by us to enable perfection of our Security Interest or registration of a Financing Statement or Financing Change Statement under the PPSA;
(d) you will not register a Financing Statement or Financing Change Statement or make a demand to alter a Financing Statement pursuant to section 178 of the PPSA in respect of the Goods without our prior written consent;
(e) you will not grant any other Security Interest or any lien over the Goods;
(f) you will give us no less than 14 days written notice of any proposed change in your name (including business name and company name), or contact details;
(g) you waive any rights you may have to receive any notices required under sections 95, 118, 121, 130, 132, 135 and 157 of the PPSA; and
(h) apart from previously defined terms, all capitalised terms in this clause 7 have the meaning ascribed to them in the PPSA.
8.1 This clause 8 applies to any application or request by you for us to provide you with credit, and, if such an application is accepted by us, the provision of that credit (in addition to any other terms and conditions that may be agreed in writing between you and us in relation to the provision of credit).
8.2 Apart from previously defined terms, all capitalised terms in this clause 8 have the meaning ascribed to them in the PPSA.
8.3 Whether or not we choose to:
(a) accept your application for credit; or
(b) supply you with any Goods and Services on credit,
and the terms and conditions on which we may choose to do so, is within our sole and absolute discretion.
8.4 As consideration for us agreeing (at your request) to accept your application for credit, you grant a Security Interest to us in all your present and after-acquired property as security for all obligations (including the payment of any money) owed by you to us.
8.5 You acknowledge and expressly agree that these terms and conditions constitute a Security Agreement which creates a Security Interest in favour of us in all your present and after-acquired property. You acknowledge and agree to all the matters set out at clause 7.4(a)–(g) in respect of the Security Interest created by this clause 8.
We may terminate the agreement constituted by these terms and conditions if you:
(a) fail to pay for any Goods and Services on the due date; or
(b) otherwise breach these terms and conditions and fail to rectify such breach within 7 days’ notice; or
(c) cancel delivery of the Goods or performance of the Services; or
(d) commit an act of bankruptcy or insolvency; or
(e) allow a trustee in bankruptcy or receiver and manager to be appointed to you or any of your property; or
(f) allow distress to be levied or a judgment, order or security to be enforced, or to become enforceable, against your property; or
(g) are a company and:
(i) proceedings are commenced to wind up you or any of your subsidiaries; or
(ii) a controller, receiver, liquidator or similar officer is appointed to you or in respect of any part of your property;
(iii) an administrator is appointed to you; or
(h) do or fail to do anything that causes us to believe on reasonable grounds that you are or will become unable to pay your debts as and when they fall due.
10.1 We are not liable to you for any Consequential Loss arising in connection with the Goods and Services.
10.2 Any and all warranties, guarantees and conditions in respect of the Goods and Services are excluded to the maximum extent permitted by law.
10.3 Our liability to you for a breach of any warranty, condition or guarantee that is not excludable under clause 10.2 is limited, at our option, to repairing or replacing the Goods, the payment of the cost of repairing or replacing the Goods, providing the Services again, or the payment of the cost of supplying the Services again.
11 NO WAIVER
Any delay or forbearance by the Company in enforcing these terms and conditions does not constitute a waiver. If the Company waives a breach of these terms and conditions, the waiver doers not operate as a waiver of another breach of the same or any other provision of these terms and conditions or as a continuing waiver.
You will indemnify and keep indemnified us from any loss or damage suffered by us as a result of:
(a) any breach by you of these terms and conditions;
(b) any breach by you of any law or regulation; and
(c) any infringement by you of any third party rights (including any intellectual property right of any person),
except to the extent that such loss or damage was directly caused by our act or omission.
13 GOVERNING LAW
These terms and conditions are governed by the laws of Victoria. You irrevocably submit to the exclusive jurisdiction of the Courts of or in Victoria and the Federal Court sitting in Victoria and courts of appeal therefrom.
14 WHOLE AGREEMENT
14.1 These terms and conditions (and any applicable proposal or quotation provided by us) embody the whole agreement between the parties and exclude any terms and conditions contained in any document or internet transmission from you relevant to the supply of the Goods and Services.
14.2 For the avoidance of doubt, these terms and conditions prevail over the terms of an applicable proposal or quotation to the extent of any inconstancy.
Should any part of these terms and conditions be held to be void or unlawful, these terms and conditions will be read as if the void or unlawful provisions are deleted and all remaining terms and conditions will be enforced to the fullest extent possible.