All orders or offers to purchase are accepted, and Goods are supplied, subject to the following express terms and conditions which are in turn subject to the Trade Practices Act 1974 (Cth). For the purposes of these terms and conditions, "Goods" and "Services" mean the goods and services ordered by the Customer and supplied by Gough & Gilmour Holdings Pty Limited ("Company") on these terms and conditions. No variation from these terms and conditions applies unless agreed in writing by the Company and the Customer prior to the commencement of the supply. Any acceptance by the Customer of the Goods is deemed to be an acceptance that these terms and conditions are incorporated into the contract entered into relating to the Goods to the exclusion of all others.
No order is deemed to be accepted nor any contract made with the Company until a written acceptance of the order or contract is given by the Company to the Customer. All orders are accepted and contracts made subject to Goods of the description ordered being available at the times specified for delivery. If any material part of the order cannot be supplied by the due date, the Company will advise the Customer as soon as possible. In no event, however, shall the Company be liable for any indirect or consequential loss or damage or any loss of profit resulting from the non-supply in whole or in part of all of the Goods ordered.
The prices for any Goods are as agreed by the Parties in writing. However, the Company reserves the right to invoice all Goods at the price prevailing at the date of despatch.
Prices are exclusive of Goods and Services Tax ("GST") payable pursuant to A New Tax System (Goods and Services Tax) Act 1999 (Cth) and in addition to the price of the Goods and/or Services provided to the Customer, the Customer must pay to the Company an additional amount calculated at the rate which GST is imposed on such Goods and/or Services provided that the Company supplies the Customer with a valid tax invoice.
Unless otherwise stated, prices agreed in writing between the parties include applicable customs duties.
4.CARRIAGE AND DELIVERY
The Company will try to deliver the Goods by the time (if any) advised, but it is under no liability for any delay in delivery. Unless otherwise specified the Price does not cover the cost of delivery of the Goods to the destination specified by the Customer. If the Company delivers the Goods then, unless otherwise specified by the Company, the Goods must be unloaded by the Customer immediately on arrival at the specified destination. The Customer is responsible for any loss, damage or injury incurred by any person or to any property in the course of unloading the Goods delivered by the Company or in the course of loading Goods not delivered by the Company.
If applicable, prices for trade-in equipment are firm for a period of 28 days. The trade-in prices offered apply only to the machine appraised by the Company with the same attachments and are based on the condition of the machine as appraised prior to quote, subject to fair wear and tear (not including a major component failure). The trade-in price will be confirmed at the time of order placement with rectification of a major component failure, if any, being to the Customer's account. The trade-in machine is to be available for delivery to the Company on the day the new machine is delivered by the Company to the Customer.
The Goods are at the Customer's risk from the time that they are delivered to the Customer (or the Customer's agent or employee), notwithstanding that title may not have passed.
7.TITLE TO GOODS
Notwithstanding that risk in the Goods may have passed to the Customer in accordance with clause 6, until full payment for the Goods has been made, legal and beneficial title to the Goods remains with the Company and until such time:
a)title in the Goods does not pass to the Customer;
b)the Customer must hold the Goods as bailee for the Company and must store the Goods securely and separately to those belonging to any other person and in a manner which makes them readily identifiable as the goods of the Company;
c)the Company may require the Goods to be returned to it at the cost of the Customer or go onto the premises of the Customer and re-take possession of the Goods;
d)if the Customer sells the Goods, the Customer must hold the proceeds of the sale in a separate account in the name of the Customer on trust for the Company;
e)the Company may maintain an action for the price of the Goods notwithstanding that title in them has not passed to the Customer;
f)if an encumbrancer takes possession, or a receiver or trustee or liquidator is appointed, of the whole or a material part of the assets or undertaking of the Customer, the Customer and any such receiver, trustee or liquidator shall immediately cease to be entitled to sell the Goods.
In the case of payment other than by cash, full payment is deemed to occur on clearance or confirmation of the irrevocable receipt of funds by the Company.
Nothing in these terms and conditions, or any circumstance arising from the fact that the Customer obtains possession of the Goods before obtaining title or any other circumstance, makes the Customer an agent of the Company for any purpose.
8.MIXED OR CONVERTED GOODS
If the Goods:
a)become constituents of other products so as not to be separable from those products; or
b)are converted into other products of a distinctly different character;
then title in the Goods passes to the Customer at the time the Goods become constituents of the other products or are converted into other products and if the Customer sells those other products or any of them, the Customer must hold the whole of the proceeds of sale on trust for the Company to the extent of the unpaid purchase price of the Goods.
9.QUANTITY AND DESCRIPTION
The Customer must within 7 days of the date of the invoice notify the Company and the carriers responsible for delivery of the Goods if none of the Goods have been received. The Company is not responsible for making good any non-delivery unless it is so notified.
The Customer must check the quantity of Goods delivered against the quantity due to be delivered under the Contract and sign a delivery note relating to the Goods on delivery. The Company is not responsible for making good any deficiencies in quantity unless the delivery note is appropriately endorsed and the Company is notified in writing within 7 days of delivery.
The Customer must check on delivery that the Goods are those specified by it and as described in the Invoice and the Goods are deemed to comply with the specification and description unless the delivery note is appropriately endorsed.
The Customer must, as soon as possible after delivery, check that the Goods have not been damaged and the Goods are deemed to have been delivered undamaged unless the delivery note is appropriately endorsed and the Company is notified in writing within 7 days of delivery.
If the Customer gives notice of damage to the Goods it must preserve the Goods in the state in which they were delivered for a period of 14 days from the date on which the Company is notified in writing. During that period of 14 days the Customer must allow the Company access to its premises for the purpose of inspecting the Goods. Alternatively, the Company may request the Customer to return the Goods at the Company's expense.
Except for any express warranties agreed in writing between the parties, machines are offered for sale on an "as is, where is" basis, WITHOUT WARRANTY. No other warranty of any kind, except as contained herein, is made or authorised and all implied terms, conditions and/or warranties statutory or otherwise are hereby expressly negated to the extent that it is possible to do so at law.
Therefore, except to the extent provided in any express warranty agreed in writing by the Company:
a)if a machine fails in any way after the Customer purchases it the Company is NOT RESPONSIBLE for the cost of any repairs, and accepts no liability for damages, losses including any consequential or indirect loss or loss of profits or any other claims or liabilities the Customer may suffer as a result of purchasing the machine;
b)the Company makes no representations as to the condition of a machine or any attachment or modifications; and
c)it is a condition of any sale that the Customer accepts that a machine is sold without warranty and that all implied terms, conditions and/or warranties statutory or otherwise are hereby expressly negated to the extent that it is possible to do so at law.
11.LIMITATION OF LIABILITY IN CONSUMER TRANSACTIONS
In connection with the supply to a Customer who is a consumer of any goods or services within the meaning of the Trade Practices Act 1974 (as amended) other than goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption, the liability of the Company in the event of a breach of a condition or warranty implied by that Act (other than a condition or warranty implied by Section 69) is limited, subject to Section 68A of that Act, at the option of the Company, to:
i)In the case of goods, any one or more of the following:
-the replacement of the goods or the supply of equivalent goods;
-the repair of the goods;
-the payment of the cost of replacing the goods or of acquiring equivalent goods;
-the payment of the cost of having the goods repaired; or
ii)In the case of services:
-the supplying of the services again; or
-the payment of the cost of having the services supplied again.
TO THE EXTENT PERMITTED BY LAW AND EXCEPT TO THE EXTENT EXPRESSLY SET OUT IN THESE TERMS AND CONDITIONS, THE COMPANY AND ITS SERVANTS AND AGENTS SHALL NOT BE LIABLE FOR ANY NEGLIGENT ACT OR OMISSION OR FOR ANY NEGLIGENT ADVICE. FURTHER, TO THE EXTENT PERMITTED BY LAW THE COMPANY AND ITS SERVANTS AND AGENTS SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL LOSS OR LOSS OF PROFITS THE CUSTOMER MAY SUFFER AS A RESULT OF ANY ACT OR OMISSION.
Unless otherwise agreed in writing, payment is required in full on the date of delivery of the equipment. In the event of late payment the Company may (without prejudice to other remedies available to it) charge interest from the date payment became due to the date of actual payment at the rate of 2 per cent per annum above the base lending rate of Westpac Banking Corporation. If the Customer fails to make payment in accordance with this clause, all amounts owing by the Customer to the Company on any account shall immediately become due and payable.
13.DEFAULT OF BUYER
a)If these terms and conditions are not strictly observed by the Customer, the Company may in its absolute discretion, refuse to supply the Customer and the Company shall not be liable to the customer for an loss or damage the Customer may sustain as a result of such refusal.
b)The costs of collection of any monies due and payable by the Customer, including fees and/or agent commissions of any Mercantile Agent or Solicitor engaged by the Company shall be payable by the Customer.
The Customer waives all existing and future claims and set-offs against any payment due under the contract and agrees to pay the amounts payable under these conditions on the due date regardless of any equity, set-off or cross claim on the part of the Customer against the Company.
Any notice required or authorised to be given under these conditions may be given by telegram, facsimile, telegram, telex, cable or prepaid letter sent to the party whom it is addressed at its last known place of business and is deemed to have been served two days following the day on which it is proved to have been sent.
a)The Company may give the customer a certificate regarding any matter concerning this agreement including any amount payable by the Customer to the Company.
b)The certificate is sufficient evidence of the accuracy of its contents unless proven to be false.
a)No right, power or remedy conferred by these conditions is exclusive of any other right, power or remedy also contained in these conditions, or provided by law or equity, but each is cumulative of every other right, power or remedy conferred or provided and may be enforced concurrently with them or from time to time as the Company thinks fit in its entire discretion.
b)No relaxation, forbearance, delay or indulgence of the Company in enforcing its rights under these conditions affects, prejudices or restricts such rights and any waiver by the Company in respect of a breach of contract does not operate as a waiver of any subsequent or continuing breach.
Any of these terms and conditions, or the application of any of these terms and conditions, which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that term or condition in any other jurisdiction or of the remaining terms and conditions of the contract in that or any other jurisdiction.
19.ALTERATION TO CONDITIONS
The Company may, at any time and from time to time alter these terms and conditions without prior notice.
The contract is binding on and inures to the benefit of the successors and assigns of the entire business and goodwill of either the Company or the Customer or of that part of the business of either used in the performance of the contract, but is not otherwise assignable.
21. GOVERNING LAW
These terms and conditions and any contract including them shall be governed by the laws of New South Wales. The Company and the Customer submit to the exclusive jurisdiction of the Courts of New South Wales.