Allied Pumps Pty Ltd – Terms and Conditions of Trade
1.1 “Acceptance” has the meaning given in clause 2.2. 1.2 “Buyer” means any purchaser of Goods and Services from the Seller or any person acting on behalf of and with the authority of the Buyer. 1.3 “Contract” has the meaning given in clause 2.3. 1.4 “Dispatch” means when the Goods leave the Seller’s premises for Delivery to the Buyer. 1.5 “Deliver”/“Delivery” means: if the Goods are to be collected by the Buyer or its carrier from the Seller, when loading of the Goods commences by the Buyer or its carrier; and if the Goods are to be delivered by the Buyer or its carrier to the Seller or its carrier, when the Goods are unloaded at the delivery place. 1.6 “Force Majeure” means and act of God, war, fire, strike, lockout, trade or industrial dispute, government interference, transport delays, accidents, breakdown of plant or machinery, or any other cause beyond the Seller’s control. 1.7 “Goods” means the Goods and/or Equipment referred to in the Quote and supplied by the Seller to the Buyer under the Contract. 1.8 “Guarantor” means the person(s) referred to in clause 19. 1.9 “Order” means a request or order for Goods and/or Services made by a Buyer pursuant to a Quote. 1.10 “Price” means the price of the Goods and/or Services specified in the Quote and subject to the terms of the Contract. 1.11 “Quote” means the quotation provided by the Seller to the Buyer for the Price, specification and scope of the Goods and Services, including any special terms and conditions set out in the Quote, and includes any revised Quote. 1.12 “Seller” means Allied Pumps Pty Ltd (ACN 143 208 440). 1.13 “Services” means all services supplied by the Seller to the Buyer. 1.14 “Terms” means these Terms & Conditions of Trade.
2. The Contract 2.1 By making an Order, the Buyer offers to contract with the Seller on the basis of the Order and the Quote. 2.2 The Seller accepts and is deemed to have accepted an Order made by the Buyer on the earlier of: (a) Delivery or when the Services are completed by the Seller as the case may be; or (b) when notification of acceptance of the Order is provided by the Seller to the Buyer; or (c) seven (7) business days after the Seller receives an Order and does not dispute it or any part of it within that period. 2.3 Upon Acceptance, a binding contract comes into existence between the Seller and the Buyer incorporating the following documents: (a) any Quote, invoice or other document of the Seller whether attaching these Terms or not; (b) any notice of acceptance of an Order under clause 2.2(b); and (c) these Terms. 2.4 No customer correspondence, document or terms and conditions, including any Order, will form part of the Contract or modify or vary the Contract. 2.5 In the event of any inconsistency, ambiguity or discrepancy, the order of precedence in clause 2.3 applies with the first listed document taking the highest priority and so on.
3. Price and Payment 3.1 Where: (a) the Buyer does not have an approved credit account with the Seller: (i) the Buyer must pay a deposit of 30% of the Price within 7 days of Acceptance; and (ii) the balance of the Price prior to Dispatch; (b) the Buyer has an approved credit account with the Seller: (i) the Buyer must pay a deposit of 30% of the Price within 7 days of Acceptance; and (ii) the balance of the Price within 30 days of the date of invoice, unless the Buyer has an overdue balance on the account in which case payment is to be made in accordance with clause 3.1(a)(ii). 3.2 The Seller may withhold Delivery of the Goods (or part thereof) until the Buyer has paid for them. 3.3 The Price shall be increased by the amount of any GST and other taxes and duties and charges which may be applicable, except to the extent that such taxes and charges are expressly included in any Quote. 3.4 The Buyer shall not retain part of, deduct from, or set-off against, the Price any amounts due or alleged to be due from the Seller.
4. Delivery of Goods 4.1 Delivery of the Goods shall be made to the Buyer’s address in the Contract, or if no address is stated in the Contract, delivery of the Goods shall be made to the Buyer at the Seller’s address. The Buyer shall make all arrangements necessary to take Delivery of the Goods whenever they are tendered for Delivery, including by ensuring the Buyer has the necessary lifting equipment available at the time of delivery. 4.2 The costs of carriage and any insurance which the Buyer reasonably directs the Seller to incur shall be reimbursed by the Buyer (without any set-off, retention, deduction or other withholding whatsoever) and shall be due on the date for payment of the Price. 4.3 Additional charges will apply to delivery: (a) outside the Perth Metropolitan Area; (b) where HIAB crane truck delivery is required; (c) where the delivery involves long distance transport and the size of Equipment requires the use of a flat top truck, the Buyer is responsible for ensuring the trailer must be fitted with air suspension to protect the Equipment from excess vibration/damage during travel. 4.4 The Seller may deliver the Goods by separate instalments (in accordance with any agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with these Terms. 4.5 The failure of the Seller to Deliver Goods shall not entitle either party to treat the Contract as repudiated. 4.6 The Seller shall not be liable for any loss or damage whatsoever due to failure or delay by the Seller to Deliver the Goods (or any of them) promptly or at all, and the Buyer is not entitled to retain part of, deduct from or set-off against the Seller’s invoice in respect of any such failure or delay. 4.7 The Buyer shall be liable for costs associated with storage of the Goods, if for any reason not attributed to the Seller, the Goods are not delivered within two (2) months after the Factory Acceptance Testing (FAT) has been completed in the Seller’s warehouse. The storage costs payable by the Buyer shall be 10% of the Price per month, between the date that is two (2) months after the FAT and the date of actual delivery.
5. Risk 5.1 All risk for the Goods passes to the Buyer on Delivery. 5.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Buyer, the Seller is entitled, without prejudice to any of its other rights or remedies under these Terms (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under the Contract. The production of these Terms by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
6. Defects on Delivery 6.1 The Buyer shall inspect the Goods on Delivery and shall within seven (7) days of Delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the Quote. The Buyer shall give the Seller an opportunity to inspect the Goods within a reasonable time following Delivery if the Buyer believes the Goods are defective. If the Buyer fails to comply with these provisions, the Goods shall be deemed to be in accordance with Contract and free from any defect or damage. 6.2 For Goods which the Seller has agreed in writing that the Buyer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods provided that: (a) the Buyer has complied with the provisions of clause 6.1; (b) the Goods are returned at the Buyer’s cost within fourteen (14) days of Delivery; (c) the Seller will not be liable for Goods which have not been stored or used in a proper manner; (d) the Goods are returned in the same condition as they were at Delivery and with all packaging material, brochures and instruction material in as new condition as is reasonably possible. 6.3 The Seller may accept the Goods for credit, but this may incur a handling fee of 20% of the value of the returned Goods plus any freight and other costs.
7. Warranty 7.1 To the extent permitted by law, the Seller excludes all warranties except as provided in these Terms or in a manufacturer’s warranty certificate provided with the Goods. 7.2 The Seller warrants that if any defect in any Goods manufactured by the Seller becomes apparent and is reported the Seller within 18 months of Delivery, or 12 months of commissioning (whichever is the earlier), then the Seller will, at its sole discretion, either repair the defect, or replace the Goods provided that: (a) the warranty shall not cover any defect or damage caused by: (i) the Buyer’s failure to properly maintain the Goods; or (ii) the Buyer’s failure to follow any verbal or written instructions or guidelines provided by the Seller for use or operation of the Goods; or (iii) the Buyer’s failure to follow any applicable legal or regulatory requirement or Australian Standards with respect to the installation, operation or maintenance of the goods; or (iv) any use of the Goods otherwise than for any application specified in Contract; or (v) the continued use of the Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or (vi) the use of the Goods prior to the Seller completing the installation and/or commissioning of the Goods; or (vii) fair wear and tear, any accident or act of God. (b) the warranty shall not cover the costs of testing, administration, freight and packaging or any off-site expenses incurred by the Seller including travel, vehicle expenses, freight, transport and accommodation, which will be at the cost of the Buyer. (c) the warranty shall be voided if the Goods are repaired, altered or overhauled without the Seller’s consent. (d) in respect of all warranty claims, the Seller shall not be liable to compensate the Buyer for any delay in either replacing or repairing the Goods or in properly assessing the Buyer’s warranty claim. (e) the warranty shall be voided if the Buyer defaults in any payment of the Price. 7.3 For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall have no liability whatsoever in addition to the terms of the manufacturer’s warranty.
8. Liability and Indemnity 8.1 To the extent permitted by law, the Seller excludes all liability, including in negligence, to the Buyer arising from and in connection with the Goods and/or Services except to the extent set out in clauses 6 and 7. 8.2 To the extent permitted by law, the Seller excludes all liability, including in negligence, arising from or in connection with the Buyer’s own site-specific equipment, and pumping / hydraulic system design. 8.3 The Seller’s liability will never exceed the Price of the Goods and/or Services, as the case may be, and the Seller will not be liable for any consequential loss or damages including (but not limited to) any loss of profit, business revenue, goodwill, anticipated savings of damage to property. 8.4 The Buyer indemnifies the Seller against any loss or expense suffered by the Seller that arises from the Buyer’s use of the Goods. The Buyer indemnifies the Seller against any claims made by a third party in respect of negligence, personal injury or death arising in relation to the Goods and/or Services.
9. Competition and Consumer Act 2010 9.1 Nothing in the Contract is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 except to the extent permitted by that Act.
10. Intellectual Property 10.1 Where the Seller has designed or drawn Goods for the Buyer, then the copyright in those designs and drawings shall remain vested in the Seller and shall only be used by the Buyer at the Seller’s discretion.
11. Default & Consequences of Default 11.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per month (compounding per calendar month) and shall accrue at such a rate after as well as before any judgement. 11.2 If the Buyer defaults on any obligation under the Contract: (a) the Buyer shall indemnify the Seller from and against all the Seller’s costs and disbursements including on a solicitor and own client basis and in addition all of the Seller’s nominee’s costs of collection; (b) the Buyer agrees that the Seller may negotiate payment with any interested third party. 11.3 Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any term of the Contract (including those relating to payment), the Seller may suspend or terminate the supply of Goods and/or Services to the Buyer and any of its other obligations under the Contract. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its rights under this clause. 11.4 If any invoice remains unpaid at the end of the second month after Delivery of the Goods and/or Services, an immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable in addition to the interest payable under clause 11.1. 11.5 In the event that: (a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payments as they fall due; or (b) the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer: then without prejudice to the Seller’s other remedies at law,
the Seller shall be entitled to suspend all or any part of its performance of the Contract without prejudice to any other remedies it may have, and all amounts owing to the Seller shall, whether or not due for payment, immediately become payable.
12. Title 12.1 Title and property in the Goods shall not pass to the Buyer until the Seller receives payment in full for the Goods in cleared funds in its bank account. 12.2 Until such time as title in the Goods passes from the Seller to the Buyer, the Seller may give notice in writing to the Buyer to return the Goods or any of them to the Seller. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease. 12.3 Until such time as the Seller has received payment in full for the Goods then the Buyer shall hold any proceeds from the sale or disposal of the Goods on trust for the Seller. 12.4 The Buyer shall not grant any security interest over the Goods while they remain the property of the Seller. 12.5 The Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Buyer. 12.6 Until such time as the Buyer has the Seller’s authority to convert the Goods into other products and if the Goods are so converted, the parties agree that the Seller will be the owner of the end products which incorporate the Goods.
13. Security and Charge 13.1 Each of the Buyer and Guarantor hereby charges all its presently owned and future acquired real property and agrees immediately upon being required by the Seller to enter into a mortgage to be prepared by the Seller’s solicitors to secure any liquidated or unliquidated sum payable to the Seller under the Contract, and further agrees and permits, and authorises the Supplier to register an absolute caveat over the Buyer’s and the Guarantor’s presently owned and future acquired real property to secure any liquidated or unliquidated sum payable to the Seller under the Contract. 13.2 Each of the Buyer and the Guarantor hereby charges all its present and after-acquired personal property as security, which includes all proceeds of the sale or divestment of any present or after-acquired Goods or personal property and the security interest granted pursuant to this clause extends to all rights in relation to accounts of the Buyer’s debtors. 13.3 Each of the Buyer and the Guarantor consents to the Seller perfecting any security interest which arises by the operation of the Personal Property Securities Act 2009 (“PPSA”) and agrees to do anything reasonably required by the Seller to enable it to do so. Each of the Seller and the Guarantor contracts out of each provision of the PPSA that it is permitted to contract out of under s115(1) of the PPSA. Each of the Buyer and the Guarantor waives its rights to receive all notices under the PPSA that are permitted to be waived under s157(3) of the PPSA. At the request of the Seller, the Buyer will procure and register a security interest under the PPSA against the Buyer’s clients in respect of any Goods sold to that client that is subject to a retention of title by the Seller. 13.4 Each of the Buyer and the Guarantor irrevocably appoint the Seller as its attorney to do all such things as are necessary on behalf of the Buyer and the Guarantor to give effect to the securities granted in this clause.
14. Termination for Convenience 14.1 Except where the Goods are custom-built for the Buyer, in which case the Buyer cannot terminate the Contract for its convenience, either party may terminate the Contract at any time before the Goods are delivered by giving 14 days prior written notice. Other than to refund any deposit on the Goods paid by the Buyer, the Seller shall not be liable to the Buyer for any loss or damage whatsoever arising from such termination. 14.2 In the event that the Buyer terminates the Contract under clause 14.1, it must pay to the Seller as compensation for termination: (a) the actual costs of Termination, including: (i) the cost of any equipment, parts, components and materials ordered by the Seller which it is liable to accept and cannot reasonably avoid or cancel; (ii) any costs of losses arising due to the cancellation or termination of third party contracts including contract break-costs and cancellation fees; (iii) reasonable demobilisation costs and any additional transport, freight, handling, packaging, consumables, insurance or maintenance costs; and (iv) any other costs incurred by the Seller up to the time of termination; and (b) an administration fee of 17% of the actual costs in clause 14.2(a).
15. Privacy Act 1988 15.1 The Buyer and/or the Guarantor/s agree for the Seller to obtain from a credit reporting agency a credit report containing personal credit information about the Buyer and Guarantor/s in relation to credit provided by the Seller. 15.2 The Buyer and/or the Guarantor/s agree that the Seller may exchange information about Buyer and Guarantor/s with those credit providers named in any application for a Credit account with the Seller completed by the Buyer, or named in a consumer credit report issued by a reporting agency for the following purposes: (a) to assess an application by Buyer; (b) to notify other credit providers of a default by the Buyer; (c) to exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other credit providers; and (d) to assess the credit worthiness of Buyer and/or Guarantor/s. 15.3 The Buyer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988). 15.4 The Buyer agrees that personal data provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Buyer and Seller or required by law from time to time: (a) provision of Goods and/or Services; (b) marketing of Goods and/or Services by the Seller, its agents or distributors in relation to the Services and Goods; (c) analysing, verifying and/or checking the Buyer’s credit, payment and /or status in relation to provision of Goods and/or Services; (d) processing of any payment instructions, direct debit facilities and /or credit facilities requested by Buyer; and (e) enabling the daily operation of Buyer’s account and/or the collection of amounts outstanding in the Buyer’s account in relation to the Goods and/or Services. 15.5 The Seller may give, information about the Buyer to a credit reporting agency for the following purposes: (a) to obtain a consumer credit report about the Buyer; and/or (b) allow the credit reporting agency to create or maintain a credit information file containing information about the Buyer.
16. Unpaid Seller’s Rights to Dispose of Goods 16.1 In the event: (a) the Seller retains possession or control of the Goods; (b) payment of the Price is due to the Seller; (c) the Seller has made demand in writing on the Buyer for payment of the Price; and (d) the Seller has not received the Price of the Goods, then, whether the property in the Goods has passed to the Buyer or has remained with the Seller, the Seller may dispose of the Goods and may claim from the Buyer the loss to the Seller on such disposal.
17. Buyers Responsibilities 17.1 It is the sole responsibility of the Buyer to; (a) obtain any Council or Government approvals; and/or (b) comply with any relevant Australian Standards that are required for the installation or use of the Goods. 17.2 Any fees applicable will be the sole responsibility of the Buyer.
18. Lien & Stoppage in Transit 18.1 Where the Seller has not received full payment of the Price, or the payment has been dishonoured, the Seller shall have: (a) a lien on the Goods; (b) the right to retain the Goods; (c) a right of stopping the Goods in transit whether or not Delivery has been made or title has passed; and (d) a right of disposal and resale.
19. Director Guarantee. 19.1 Where the Buyer is a corporation, each of its directors agree to jointly and severally guarantee the payment by the Buyer of the Price.
20. Disputes 20.1 If either party wishes to raise a dispute or difference in connection with the Contract, it must promptly give the other notice in writing and thereafter, as a condition precent to commencement of legal proceedings: (a) within 14 days of a party giving notice of a dispute, the other party must provide to the first party a written response stating its position; and (b) within seven (7) days of that response, the respective involved managers must meet in person at least once to try to resolve the dispute in good faith.
21. Law and Jurisdiction 21.1 The Contract is governed by and will be construed in accordance with the laws of Western Australia and the Seller takes no responsibility for changes in the law which affect the Goods supplied.
22. Subcontracting and Assignment 22.1 The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
23. Entire Agreement 23.1 The Contact constitutes the entire agreement between the parties relating in any way to its subject matter. All prior negotiations, agreements, communications, understandings and representations about the subject matter of the Contract are of no effect. The Buyer warrants and acknowledges that it relies solely upon its own skill and judgement in entering into the Contract.
24. Force Majeure 24.1 If the Seller is prevented either directly or indirectly from performing any of its obligations under the Contract by reason of Force Majeure, it may by notice to the Buyer either extend the time for Delivery, or terminate the Contract, and the Buyer will have no claim against the Seller for damages or any other remedy.
25. General 25.1 If any provision of the Contract or these Terms is invalid, void, illegal or unenforceable that provision is severable from the Contract and the remaining provision of the Contract remain enforceable. 25.2 If the Buyer is more than one person or entity, each person or entity (as applicable) shall be jointly and severally liable to the Seller under the Contract. 25.3 Each party must bear its own legal, accounting and other costs of and incidental to the preparation and entering into the Contract. 25.4 Nothing constitutes a joint venture, agency, partnership or other fiduciary relationship between the Seller and Buyer. 25.5 The Seller may only waive a requirement or breach of the Contract in writing signed by it, and any such waiver is limited to the instance referred to.