Condition of Order and Sale
DEFINITIONS In this document:
“Agreement” has the meaning given in clause 2.1.
“Company” means FIRMUS Group.
“Customer” means the person or persons, corporation, firm, organisation, trust or other entity purchasing Goods and / or Services from the Company, as identified in a Quote or Order.
“Goods” means the goods sold by the Company to the Customer from time to time, including without limitation vehicles, machinery, plant, equipment and parts.
“GST” has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
“Order” means a purchase order for Goods or Services submitted by the Customer to the Company in response to a Quote.
“PPSA” means the Personal Property Securities Act 2009 (Cth) (as amended), and the following words have the meanings given to them respectively in the PPSA: collateral, financing change statement, financing statement, interested person, purchase money security interest, registration, security agreement, security interest and verification statement.
“PPSR” means the Personal Property Securities Register.
“Quote” means a written quotation, estimate or price given by the Company to the Customer in respect of specified Goods or Services.
“Services” means any services supplied by the Company to the Customer from time to time.
2.0. AGREEMENT TO SUPPLY
2.1. The Company agrees to sell the Goods and supply the Services to the Customer on the terms of these Conditions of Quotation and Sale and any Commercial Credit Application properly completed by the Customer and returned to the Company (or submitted electronically) which the Company has accepted (the “Agreement”).
2.2. The Agreement constitutes the entire agreement between the parties. Unless agreed in writing by the Company, no other terms and conditions (including those contained in any Customer Order) apply to the sale of any Goods or the supply of any Services.
3.0. QUOTES AND ORDERS
3.1. The Company may provide the Customer with a Quote. Unless stated otherwise in the Quote, prices contained in Quotes: (a) in respect of labour and Goods other than parts, are valid for 30 days from the date of the Quote (except in the case of clerical error); (b) in respect of parts, are current as at the date of the Quote (except in the case of clerical error) but subject to change without notice, in which case the price in effect at the delivery date will be invoiced; (c) are subject to the Customer’s Order being for the full quantity of Goods quoted; (d) do not include delivery or insurance; and (e) are exclusive of GST.
3.2. Any Order submitted by the Customer is an offer to purchase the relevant Goods or Services on the terms of these Conditions of Order and Sale. An Order is not binding unless and until it is accepted in writing by the Company.
3.3. An Order cannot be cancelled or deferred without the prior written consent of the Company, which may be given or declined in the Company’s sole discretion and subject to any conditions the Company determines.
3.4. If an Order is cancelled or deferred by the Customer, the Company reserves the right to charge the Customer for all loss, damage and expense sustained or incurred by the Company as a result of the cancellation or deferral, including without limitation holding costs, freight costs, foreign exchange and treasury costs and expenses incurred by the Company in assembling or preparing the Goods to the Customer’s specification.
4.1. If the Customer has a commercial credit account with the Company, the Customer must (unless otherwise agreed in writing) pay for: (a) parts and Services, within 30 days from date of invoice; and (b) new and used vehicles, machinery, plant and equipment, in full before the relevant Goods are delivered.
4.2. If the Customer does not have a commercial credit account with the Company: (a) the Customer must pay for the Goods or Services in full before the Goods are delivered or the Services are supplied; and (b) the Customer authorises the Company to charge all amounts payable by the Customer under the Agreement to the Customer’s credit card or account details provided to the Company.
4.3. If the Customer fails to pay an invoice in full by the due date, the Company reserves the right to charge interest on the amount outstanding calculated on a daily basis and compounded monthly at an interest rate which is 7% greater than the Reference Rate published by the Commonwealth Bank of Australia or its successor as at the due date of payment. The Company’s right to charge interest is in addition to any other legal remedy the Company may have.
4.4. All costs and expenses associated with recovering overdue amounts or otherwise enforcing the Agreement (including but not limited to legal costs on an indemnity basis) are to be paid by the Customer as a debt due and payable to the Company.
4.5. The Customer must pay any taxes, including a sum equal to the amount of any GST payable by the Company on any taxable supplies made by the Company to the Customer under or in connection with the Agreement, any duties (including stamp duty), levies, charges, fines or imposts on or in connection with the Agreement.
5.1. Any date or time specified by the Company for delivery of the Goods is an estimate only and the Company will have no liability to the Customer for late delivery.
5.2. Delivery of the Goods will occur at the Company’s premises, unless otherwise agreed. If the Company agrees to a request from the Customer for Goods to be delivered at a place other than the Company’s premises, the Customer will be responsible for, and must indemnify the Company against, all costs, expenses and liabilities associated with that delivery.
5.3. In the event of a dispute as to the time of delivery, delivery will be deemed to have occurred when the Goods left the Company’s premises.
5.4. The Customer must notify the Company in writing within three days of delivery of any shortfall, loss or damage to the Goods delivered, failing which the Company will have no liability for any such shortfall, loss or damage. The Company must be given a reasonable opportunity to inspect the Goods in the same condition in which they were delivered.
5.5. The cost of any special packing and packing materials used in delivering the Goods is at the Customer’s expense (even if not included in a Quote).
5.6. The Company reserves the right to charge the Customer reasonable holding costs if the Customer does not take delivery of the Goods, or goods in respect of which the Company has performed repair or maintenance Services, within three days after the Company notifies the Customer that delivery is available.
6.0. RISK IN GOODS
6.1. Risk in the Goods passes on delivery even if ownership has not passed under clause 7.
6.2. The Customer must insure the Goods on normal commercial terms with a reputable insurer for their full replacement value, noting the interest of the Company, from the time risk passes until ownership passes under clause 7. The Customer must provide the Company with Certificates of Currency evidencing the insurance on request.
6.3. The Customer must hold the proceeds of any insurance claim on trust for the Company up to the amount owing to the Company for the Goods.
7.0. OWNERSHIP OF GOODS
7.1. Ownership of the Goods passes to the Customer when all monies owing by the Customer to the Company (whether under the Agreement or otherwise) have been paid in full.
7.2. Until ownership of the Goods passes to the Customer: (a) the Customer must store the Goods, including products into which the Goods have been incorporated, so that they are clearly identified as the property of the Company; (b) the Customer must act in a fiduciary capacity to the Company and hold any proceeds from the sale or disposal of the Goods, or any products into which the Goods have been incorporated, on trust for the Company’s benefit and pay those amounts to the Company on demand; (c) the Company may demand that the Customer return the Goods, and may enter any land or premises to repossess the Goods if that demand is not complied with; (d) the Customer must not grant a security interest in the Goods to any person other than the Company; and (e) despite any other rights or remedies to which the Company is entitled, the Company has a lien (including a right of sale) over the Goods.
8.0. SERVICE LIEN
If: (a) the Company is in possession of goods belonging to the Customer for the purpose of performing repair or maintenance Services in respect of those goods; and (b) the Company has completed, and payment is due in respect of, those Services under this Agreement, then without prejudice to any other rights or remedies to which the Company is entitled, the Company: (1) has a lien over the relevant goods; and (2) may on 48 hours notice to the Customer sell those goods to recover the unpaid amount owing to the Company in respect of the Services performed in respect of those goods.
9.1. For the purposes of the PPSA, the Customer acknowledges that the Agreement may be a security agreement in respect of which the Goods are the collateral.
9.2. The Customer consents to the Company effecting and maintaining registrations on the PPSR in respect of security interests (including purchase money security interests) created or contemplated by the Agreement in the Goods and any proceeds from dealing in the Goods.
9.3. The Company may register a financing statement or financing change statement in respect of a security interest at any time. The Customer agrees to sign any documents, provide information or do anything else the Company requires to effect and maintain its registrations on the PPSR, perfect its security interests, register financing statements or financing change statements or otherwise preserve the Company’s priority position as contemplated by the Agreement. The Company may recover from the Customer the costs incurred by the Company in registering, maintaining and enforcing security interests created or contemplated by the Agreement in the Goods and any proceeds from dealing in the Goods.
9.4. The Customer waives its right under the PPSA to receive a verification statement in relation to any registration on the PPSR of a security interest in respect of the Goods.
9.5. The Customer must not without the Company’s prior written consent: (a) register a financing change statement in respect of a security interest created or contemplated by the Agreement; or (b) register, or allow to be registered, in a third party’s favour a financing statement or financing change statement in respect of the Goods.
9.6. The Customer and the Company agree (to the extent the PPSA permits) not to disclose information to an interested person (or any other person nominated by an interested person), unless specifically agreed otherwise. However, if the Company wants or needs to disclose any particular information, the Customer authorises the disclosure by the Company of that information under the PPSA.
9.7. The Customer and the Company agree to contract out of the following enforcement provisions referred to in the PPSA (to the extent permitted by and if they would otherwise have applied to the enforcement of a security interest arising under or in connection with the Agreement).
9.8. The Company has absolute discretion as to the manner in which it applies money it receives under the Agreement.
10.1. Except where clause 16 applies, in order to secure the Customer’s due and punctual performance of all its obligations to the Company (including the payment of all monies owing) under the Agreement or otherwise, the Customer charges all of its legal and beneficial interest (present and future) in any and all real property and all present and after-acquired property.
10.2. On the Company’s request, the Customer must at its cost execute any documents and do all things required by the Company to more fully document or better secure a charge arising under clause 10.1 on such terms as it sees fit or to register a charge or security interest in respect of any of the Customer’s real and personal property including, without limitation, effecting and maintaining registrations on the PPSR. The Customer also consents to the Company lodging caveats in respect of any of the Customer’s real property.
10.3. The Customer appoints the Company or an authorised officer of the Company to be its attorney for the purpose of executing and registering such documents.
11.0. WARRANTIES AND LIABILITY
11.1. Except as provided for in these Conditions of Order and Sale, to the maximum extent permitted by law, all warranties, conditions, representations and guarantees (whether express or implied) in respect of the Agreement, the Goods or the Services are excluded. Used Goods are sold in an ‘as is’ condition and no warranties (express or implied) of any kind are given in respect of used Goods.
11.2. The Company will provide the Customer with details of any applicable manufacturers’ warranties in respect of the Goods (where the Company is not the manufacturer), which will be the only warranties given to the Customer in respect of those Goods.
11.3. The Company warrants that any plant it manufactures will be free from defects in materials and workmanship for 180 days from the date the plant is delivered to the Customer. The Company’s liability is limited, at the Company’s election, to the replacement or repair of the defective materials or the repair of the defective workmanship. This warranty does not cover labour for removal or installation, or parts or exchange components. The Customer will bear all transportation and handling costs.
11.4. The Company warrants that any repair Services it supplies will be free from defects in materials and workmanship for 90 days from completion of the relevant work. The Company’s liability is limited to the supply of the repair Services again. This warranty does not cover labour for removal or installation, or parts or exchange components. The Customer will bear all transportation and handling costs.
11.5. The Customer agrees that it has satisfied itself before placing its Order as to the condition and suitability of the Goods for the Customer’s intended use. Subject to clause 11.7, the Company makes no representation or warranty as to the suitability of the Goods for the Customer’s intended use.
11.6. If a condition, representation or guarantee is imposed by law and is not able to be excluded, as far as the law permits the Company’s liability for a breach of that condition, representation or guarantee will be limited to: (a) in the case of Goods, the replacement or repair of the Goods or the supply of equivalent goods, or the payment of the cost of replacement, repair or equivalent supply; and (b) in the case of Services, the supply of the Services again or the payment of the cost of having the Services supplied again.
11.7. Nothing in this Agreement affects any rights or remedies the Customer may have under the Australian Consumer Law or any other law if, and to the extent that, those rights or remedies may not lawfully be excluded or modified.
11.8. The Company’s liability for loss or damage, including consequential, special or indirect loss or loss of profits, arising under or in connection with the Agreement, the Goods or the Services, whether in contract, tort (including negligence) at law or in equity, is excluded to the maximum extent permitted by law.
11.9. The Customer must use best endeavours to ensure that any goods to be serviced or repaired by the Company (whether on the Company’s premises or otherwise) are not contaminated by hazardous material (including asbestos). Any apparent risk of contamination must immediately be notified to the Company.
12.1. The Company may terminate all or any part of an Order which remains unperformed or the Agreement as a whole immediately on written notice to the Customer if: (a) the Customer breaches the Agreement and fails to remedy that breach within 3 days of receiving notice to do so; (b) the Customer becomes insolvent, bankrupt, dies, ceases to carry on business, enters into liquidation or administration or has a receiver appointed to any of its assets; or (c) in the Company’s opinion any other event occurs which is likely to materially affect the Customer’s ability to meets its obligations to the Company.
12.2. The Company’s termination rights are in addition to any other rights or remedies the Company has under the Agreement or at law or in equity.
12.3. Following termination of an Order or the Agreement as a whole by the Company, the Company may take all necessary steps to repossess any Goods in respect of which ownership has not transferred to the Customer under clause 7.1. The Customer authorises the Company to enter the Customer’s premises to enable the Company to repossess the Goods. If the Company reasonably suspects that the Goods are located on premises other than the Customer’s premises, the Company or its agents may enter those other premises as the Customer’s agent to repossess the Goods. The Customer indemnifies the Company from and against all costs, claims, actions and liabilities the Company suffers or incurs as a consequence of terminating an Order or the Agreement or repossessing the Goods, including legal costs on an indemnity basis.
13.1. If the Company has agreed to purchase any trade-in goods from the Customer (as shown in the Quote), the Customer warrants that it has or will have at the time of delivery unencumbered title (including security interests) to those trade-in goods.
13.2. Risk in trade-in goods remains with the Customer until inspection and acceptance by the Company at the Company’s nominated point of delivery (which will be at the Customer’s expense).
13.3. If on inspection the Company reasonably considers that the value of the trade-in goods is significantly less than the value previously attributed to those goods by the Company (as shown in the Quote), the Company reserves the right reduce the value attributed to those goods accordingly and the difference is added to the sale or changeover price.
14.1. The Company will comply with the Australian Privacy Principles (as amended or replaced) in all dealings with the Customer.
14.2. The Customer agrees and acknowledges that the Company will collect personal information about the Customer and may use and / or disclose that information to: (a) provide and market goods and services to the Customer; (b) assess the Customer’s credit worthiness; and (c) assist the Company in the collection of overdue payments. If the Customer does not provide the personal information requested then the Company may refuse to enter into the Agreement. The Company may disclose the personal information to other related entities.
Except where clause 16 applies, the Company may vary or replace the Agreement at any time on 14 days written notice. If the Company varies these Conditions of Order and Sale, the varied version will be published on the Company’s website. Any subsequent Quotes and sales of Goods and / or Services will be on the varied or replaced terms. No other variations to the Agreement can be made without the written agreement of the Company and the Customer.
16.0. EXCLUSIONS FROM CONSUMER CONTRACTS
If the Customer is an individual purchasing Goods or Services wholly or predominantly for personal, domestic or household purposes, clauses 10 and 15 will not apply to the Agreement.
17.0. PARTS RETURN POLICY
17.1. Parts that are normally stocked by the Company may only be returned for credit: (a) up to 7 days from invoice, in which case a 5% handling and stocking fee applies; or (b) between 8 to 28 days from invoice, in which case a 10% handling and stocking fee applies.
17.2. The following parts are not able to be returned for credit: (a) all parts where the proposed return date is more than 28 days from invoice; (b) parts not normally stocked by the Company and which are specifically ordered for the Customer; (c) damaged parts and parts not returned in original and undamaged packaging; (d) parts which have been fitted or otherwise used; (e) parts supplied to the Customer as used parts; and (f) all batteries, ball and roller bearings, cups, cones, seals, seal kits, gasket kits, oils and fluids in containers, hoses and items specifically made or cut to specifications.
17.3. The following conditions apply to all parts returns for credit: (a) a copy of the Company’s original invoice or Shipping List must accompany the parts; (b) freight costs involved with credit returns are the Customer’s responsibility; (c) the Customer is responsible for arranging insurance cover for parts during return transportation, if required, and parts are returned at the Customer’s risk; and (d) credit requests with a total value of less than $20.00 will not be accepted.
18.0. REMANUFACTURED GOODS
18.1. At the time of purchase of a part (“Purchased Part”), the Company will advise the Customer if a component return credit may be available on the return, inspection and acceptance by the Company of the original component.
18.2 On return of the original component, the Company will inspect the component to determine whether it is accepted, based on its condition, and will determine the level of credit available to the Customer (“Available Credit”).
19.0. NO RELIANCE
Subject to clause 11.7, the Customer acknowledges that neither the Company nor any person acting on behalf of the Company has made any representation or other inducement to the Customer to enter into the Agreement and the Customer has not entered into the Agreement in reliance on any representations or inducements (including in relation to the Goods) except for any representations contained in this Agreement.
20.1. The Agreement is governed by the laws of 1.) Queensland, South Australia or Victoria, or 2.) Australian states and territories, and the parties submit to the non-exclusive jurisdiction of the courts of said states.
20.2. If any part of the Agreement becomes void or unenforceable then that part is severed so that all parts which are not void or unenforceable remain in full force and effect.
20.3. A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
20.4. Any indemnity under the Agreement is independent and survives termination of the Agreement.
20.5. Time is of the essence in respect of the Customer’s obligations under the Agreement.