TERMS & CONDITIONS OF SALE
a) REQUIP PTY LTD trading as RAEV ENGINEERING AGENCIES shall hereinafter be referred to as “The Company” and includes its successors, administrators and assigns.
b) “Customer” is the Company, Firm, Person, Corporation, or Public Authority purchasing The Company’s plant and includes their successors, administrators and permitted assigns.
c) “Plant” means all classes of plant machinery, equipment and accessories or other plant and materials that The Company agrees to sell to the Customer and includes spare parts either owned by The Company or being sold by The Company on behalf of any third party.
d) “Depot” means any yard or premises owned, leased or used by The Company from time to time.
e) “Spare parts” means replacement parts and consumable items used or supplied in relation to plant.
CONDITIONS OF QUOTATIONS
1. All quotations are subject to the Terms and Conditions of Sale of The Company details of which are set out below.
2. The Company reserves the right to vary or rescind quotations at any time prior to the customer ordering the plant the subject of such quotations.
3. The Customer acknowledges that it has checked all quotations and is satisfied that the quotations include all the plant which the customer requires and on which the Customer has requested The Company to quote and that The Company shall have no liability in respect of any omissions or errors in its quotations in respect of the plant on which the Customer has requested it to quote.
TERMS AND CONDITIONS OF SALE
1. The placing of an order either verbally or in writing by the Customer with The Company shall be deemed to constitute an agreement between the Customer and The Company on the terms and conditions hereinafter appearing, which terms and conditions shall contain the whole of the agreement between the Customer and The Company and no variation of the terms hereof shall be binding on or enforceable against The Company unless in writing and with written confirmation by a person authorized by The Company’s management to give such written confirmation and no other employee of The Company nor any transport owner or driver under contract to The Company nor any other person shall have any authority to alter any of all these conditions.
2. It is the duty of the Customer to provide The Company with all information necessary for the fulfilling of any order or for the carrying out of these terms and conditions of sale and if any delay takes place on the part of the Customer in giving such information then The Company may at its option cancel any orders or rescind this agreement or charge the Customer an additional price for the delay. In the case of cancellation the Customer will be liable to The Company for any loss incurred in connections with any order or this agreement.
3. To the extend of which law permits, all the terms herein are in lieu of and exclude all other conditions, guarantees or warranties expressed or implied, statutory or otherwise.
4. In no event will The Company be liable for any loss, injury or damage, howsoever arising, except as herein set forth, and shall not in any account be liable for consequential loss or damage howsoever caused or arising from stoppage or break-down of the plant or any part thereof or the quality of its production and shall not be liable in any other way for the performance of the plant in operation.
5. Any holding deposit or manufacturing deposit will not be returned upon cancellation of the order unless such cancellation is initiated by The Company.
6. In the event of The Company being unable to carry out its obligations under this agreement due to war, strikes, accidents, vis major, plant and delivery equipment breakdowns, shortages of raw materials or any other cause beyond, The Company may at its option suspend performance or cancel the agreement and in which case any holding deposit or manufacturing deposit will be returned.
7. While The Company will make every effort to delivery plant or perform its obligations by the time or date given by The Company, it will not be liable for loss arising because of delay in performance or delivery, it being understood that times or dates for delivery of performance are business estimates only and not contractual obligation by The Company. As The Company is not the manufacturer of the plant, it does not warrant the ongoing availability of spare parts.
8. No warranty is given with respect to second hand or used equipment. This equipment is sold on a “as is where is” basis. Warranty with respect to new equipment will only be honoured to the extent and method of the original equipment manufacturer. The Company will do its best to assist in this regard however, any claim for warranty must be accompanied by an order number which will be used should the claim be deemed by the original equipment manufacturer as not being a legitimate warranty claim. In any case we will only warrant replacement of defective parts; specifically labour and freight costs are excluded. Irrespective of any other advice, written or otherwise, The Company will not entertain any type of liquidated damages or loss of plant usage claims in relation to this or any sale.
9. Statements as to suitability, quality, fitness for purpose, capacity performance output power or otherwise contained in any drawing catalogue or specification or other documents issued by The Company shall not be regarded as forming part of the agreement resulting from acceptance of any orders unless specifically stated in writing by The Company and the Customer warrants that prior to the constitution of the Agreement he satisfied himself in relation to the above matters by means other than acknowledges that it is responsible for the plant being suitable for the purpose for which it is to be utilized including production, rates quality of products and gradings.
10. Unless otherwise expressly stated, prices are due and payable in full, in accordance with the terms hereof, on the dispatch of the plant from The Company’s depot. If the Customer fails to make payment in full in accordance with this condition then without prejudice to any other rights of The Company:
a) The Company shall be entitled to suspend all or any other deliveries to be made under this or any other contract with the Customer – and in such event the Customer shall not in any respect be released from his obligations to The Company under this or any such agreement.
b) Instead of suspension in accordance with paragraph (a) hereof The Company shall be entitled to terminate this agreement or any other agreement with the customer in accordance with condition 9 hereof and to claim damaged from the Customer for breach, and (if plant in the possession of the Customer) retake possession of the plant.
11. The Company may terminate any agreement forthwith if:
a) The Customer shall commit any breach of any of the terms (including without limitation terms concerning the time for payment of the purchase price) of this or any other agreement with The Company on its part to be observed or performed provided that if such breach is remediable The Company shall have previously given to the customer notice and the same has not been remedied within 7 days thereafter.
b) The Customer compounds with or negotiates for any composition with his creditors generally or permits any judgment against him to remain unsatisfied for 7 days;
c) Being an individual the customer shall die or have an sequestration order made against him or commit any act of bankruptcy; or
d) Being a company the customer shall call any meeting of its creditors or have a receiver of all or any of its assets appointed or enter any liquidation, or have a winding up order made against it.
12. Dispatch from The Company’s premises or associated entities premises shall constitute delivery of the plant to the Customer’s possession. Upon each dispatch the Customer as bailee accepts responsibility for the safety of the plant and takes the risk of any loss or injury thereto, however caused, which may occur before the property in the plant passes to the Customer. The Customer shall keep the plant fully insured and shall indemnify The Company against such loss or injury.
13. In no case will property in any plant supplied pursuant to this agreement pass to the Customer until payment of all moneys owing has been made to The Company including the full contact price for the plant supplied including cost of transit, delivery etc. Any sale of plant by the customer to a third party prior to the passing of property to the customer will be deemed to have been made by the customer as agent for The Company, and the sale proceeds sufficient to cover the price of the plant and cost of transit, delivery etc, shall be held in trust for The Company as its property. For the purposes of this agreement, where payment is made by cheque payment shall be deemed to have been made only when the cheque is paid by the drawer’s bank.
14. a) The Company’s delivery records shall be prima facie proof of delivery of the plant of the quality and description stated therein in good order to the Customer and his receipt thereof notwithstanding the absence of any representative of the customer at delivery, it is the responsibility of the customer to provide adequate signs and direction to enable The Company to effect delivery, Failure to do so will render the customer liable for any additional cartage charges incurred.
b) If, The Company may in its absolute discretion agree to deliver to a site other than the kerbside of the job address provided always that it is hereby acknowledged and agreed that any increases in cost to The Company of making such delivery shall be met by the Customer and, if it is necessary for a vehicle to cross the footpath or to enter upon private property in the course of effecting delivery, the Customer shall provide safe and adequate access and notwithstanding will indemnify The Company against all damage to any public or private property or to person which may arise as a result of The Company making such delivery.
15. Where an order is made orally based on a quotation and plant is delivered then each load delivered shall form a separate and distinct contract that shall be subject to the terms and conditions herein set out. Where an order is made in writing based on a quotation and involves a series of deliveries, then a contract shall not come into existence until there is an acceptance in writing by The Company provided however that, in the interim, The Company makes delivery of plant or a series of deliveries prior to acceptance in writing by it of the written order, then each delivery shall constitute a separate and distinct contact which shall be subject to the terms and conditions herein set out. Each and every contract The Company and the Customer shall be subject only to the terms and conditions herein set out and any variation of these conditions shall not be binding on The Company unless such variations are in accordance with the terms of clause 1 hereof.
16. Where a dispute arises between the Customer and The Company as to the performance by either the customer or The Company of any term, warranty or condition of any contract, The Company shall have the right to stop supply pending settlement of the dispute. The Company shall determine if there is a dispute and at what time the dispute is settled.
17. The Company’s prices, unless otherwise stated, are exclusive of any Goods and Services Tax, Stamp Duty or similar charges of a statutory nature applicable, such tax or charge will be charged at the rates ruling at the time of delivery. Should the customer wish to claim any exemption, the appropriate declaration must be supplied and filled in correctly stating the customer’s registration number or a declaration stating the purpose for which the plant will be used as required by the relevant Act. Should the Commissioner of Taxation at any time rule the Customer’s exemption invalid the Customer acknowledges that it will forthwith pay to The Company the amount of tax together with any penalties applicable.
18. The Company does not warrant or imply that the plant is capable of being registered for towing on any public road.
19. Payment for plant other than spare parts will be by way of cash prior to dispatch or delivery to the customer in accordance with the terms hereof. Likewise payment for spare parts will be made in cash prior to dispatch or delivery to the customer unless the customer is an “approved account” with The Company. The Customer shall only be deemed to be an approved account, if The Company notified the customer in writing to that effect in which case payment of the plant shall be strictly net within thirty (30) days from the date of delivery. The Company reserves the right to determine that a customer ceases to be an approved account by notifying the customer to that effect either verbally or in writing and immediately upon such notification the Customer shall cease to be an approved account. Interest shall be charged on any overdue accounts at a rate of 3.5 per centum (3.5%) per month.
20. Any dispute between the Customer and The Company may at the option of The Company be referred to a single arbitrator or be mutually agreed between the Customer and The Company or failing agreement to be nominated by the president for the time being of the Bar Association of Queensland and the Arbitrator Act for the time being in force shall apply to such arbitration.
21. The Company shall accept returns of spare parts which shall be shown to the satisfaction of The Company to be defective or which are wrongly supplied by The Company or which are not to the quality stipulated on The Company’s invoice or in the quotation or which are wrongly ordered by the Customer subject to the following;
a) That written advise of such defect, wrongly supplied spare parts by The Company, defect in quality of spare parts supplied or wrongly ordered spare parts by the Customer is given to The Company within three (3) days of the delivery of the spare parts to the customer;
b) That the returned spare parts have not been put into use, damaged, or defaced;
c) That the spare parts are returned to the depot promptly and at the Customer’s expense;
d) That defects to the spare parts have not been caused by carelessness or improper treatment or neglect omission of the customer to comply with any instruction given by The Company;
e) That returns of spare parts supplied pursuant to a specialist order, or which are especially manufactured for the customer (which goods are marked “N/S” in The Company’s invoice and/or in the quotation) shall not be accepted by The Company;
f) That in the event of the spare parts being incorrectly ordered by the customer, the amount credited to the customer in respect of the returned spare parts shall be the price applicable to such spare parts reduced by the total of ten per centum (10%) of such price plus The Company’s associated handling costs.
22. If there is any increase in the cost to The Company for materials, labour or other expenses arising in connection with the order contract, between the date of the contract order and the date of delivery of the plant or the supply or services, The Company shall be entitled to charge a fair and reasonable sum in addition to the contract order price, to cover the cost of any such increase.
23. The Company will transmit to the customer insofar as it is possible for The Company to do, the benefits or guarantees given to The Company by the manufacturers of any plant and the liability of The Company shall be limited to those benefits or guarantees which have been given by those manufacturers.
24. This Agreement is governed in all respects by the law of Queensland and the customer submits to the jurisdiction of the Courts of Queensland.
25. This Agreement is deemed to be made at The Company’s registered office and any breach of this Agreement by the customer including a failure to pay money’s hereunder by the customer to The Company, shall at The Company’s option, be deemed to be a breach occurring at the Company’s registered office.