Should the application for credit be approved in favour of the customer whose name appears hereon then we, the signatories to this document (‘the Guarantors’) HEREBY GUARANTEE to you the supplier the due and punctual payment of all its obligations and other liabilities in respect to all the contracts entered into with you and in addition we agree, undertake and acknowledge:
(1) To provide for the customer to pay all goods and other products purchased and delivered as agreed no later than the last day of the month following the month in which the goods were delivered and irrespective of the date upon which any invoice or Statement for or in respect of such goods was received by the customer or within such other period or time may be notified to the customer by the supplier.
(2) That the amounts shown in Certificate or other papers provided by the supplier shall be evidence of the debts due to the supplier.
(3) That all sales of goods to the customer are made in accordance with Terms and Conditions of sale that are determined by the supplier from time to time.
(4) That the supplier may at any time alter its Terms and Conditions of Sale which shall apply to all transactions taking place therein after.
(5) That the purpose of any appointment of an official manager to the customer, sequestration, receivership, cessation of business or the inability to pay its debts then any amount due to the supplier shall therein after become immediately due and payable.
(6) That the goods supplied by the supplier shall remain the property of the supplier until such time the supplier has received the full payment thereof but subject to this limitation the supplier acknowledges that the customer may deal, sell or trade with the goods in the normal course of business and providing that it pays the agreed sale price in accordance with the Terms and Conditions of Sale. In the event of the customer defaulting in payment of the goods, the supplier shall have the immediate right and without the necessity of giving notice of retaking possession of the goods wherever they may be and we acknowledge and authorize the supplier or its servants or agents to enter the premises on which the goods are kept and to retake the possession and we further acknowledge that the supplier shall not be liable for any costs, losses, damage to other expenses suffered by the customer or any other third party in respect of such recovery.
(7) That we the Guarantors of the customer hereby agreed that this Guarantee shall be a continuing on in favour of the supplier in respect to all debts, losses, payments, damages, and other expenses to which the supplier is entitled and that each signatory hereto shall be jointly and severally liable for such payments and other obligations.
(8) That the supplier may at any time and without assigning any reason refuse to extend any credit to the customer.
(9) If any of the provisions of this Contract are unlawful or invalid by reason of any applicable statue or rule of Law, then such provision shall be severed from the rest of this Contract which shall remain valid and binding on the parties. The Law of Western Australia governs the Terms.
1) SELLER means DAVID NOWLAND HYDRAULICS or and BUYER means the Buyer whose order for the purchase of goods is accepted by Seller, and/or whose name is specified on the invoice.
2) ACCEPTANCE OF BUYER’S ORDER These terms and conditions shall apply to every sales contract and sale of goods between Seller and Buyer; any terms and conditions of Buyer’s order deviating from or inconsistent with these terms and conditions are expressly rejected by Seller. This rejection also extends to any statement by Buyer that Buyer’s terms and conditions shall prevail and to any stipulation by Buyer as to the manner of declaring such rejection. A contract shall only be or be deemed to have been entered into between Seller and Buyer for the supply of goods when, upon an order having been placed upon Seller for goods, that order has been accepted by Seller. (Such acceptance of order may be made and communicated by Seller in writing or by overt act of acceptance). The provisions of this Clause 2 shall apply to every quotation on offer by Seller for the supply of goods.
3) PRICES Quotations are to be treated as estimates only and subject to withdrawal, correction or alteration at any time before acceptance of Buyer’s order by Seller. PRICES ARE EX SELLER’S WAREHOUSE UNLESS OTHERWISE AGREED IN WRITING.
4) INSURANCE Buyer is responsible to effect whatever insurance cover he requires at his expense.
5) PAYMENT If Seller shall extend credit to Buyer, payment must be made by the last working date of the month, after the date of Invoice. Interest will becharged at 2.5% per month on overdue accounts. (This amount may vary according to the overdue account interest rates). Fees apply for payments by credit card for payment by credit card by account customers 1.5%. The Seller reserves the right to vary the terms of payment and in circumstances require full payment prior to delivery.
6) CANCELLATION Orders accepted by Seller cannot be countermanded or delivery deferred or goods returned except with the written consent of Seller and upon terms that reimburse and indemnify Seller against all loss including cartage, bank charges and other incidental expenses on any part of the order that is cancelled. Where Seller agrees to accept goods for return a re-stocking charge of 20% of the price of the goods returned will be made.
7) ACCEPTANCE AND CLAIMS Acceptance of the goods delivered shall be deemed for all purposes to have taken place at the expiration of seven (7) days from the date of each delivery. The Buyer does waive any claim for short supply of any goods delivered or failure to supply goods conforming with an order if such claim has not been lodged with the Seller within 7 days of receipt of goods.
8) DELIVERY AND RISK
(a) At additional cost unless otherwise stated. Delivery times quoted are estimates only and subject at all times to factors outside our control, holidays, fires, strikes, lockouts, and other contingencies and in all cases subject to confirmation or alteration if and when offered order is accepted by us.
(b) Unless the Buyer has requested Seller to make special delivery arrangements the risk in respect of the goods shall pass to the Buyer upon delivery to the Buyer’s premises or the nominated carrier’s depot. The Buyer shall provide or cause to be provide full and clear access for delivery and will at its own expense provide all necessary assistance in unloading the goods at the nominated place of delivery.
(c) Where the Buyer has requested special delivery arrangements (i.e. other than Seller delivery to premises of Buyer) risk in respect of goods shall pass to the Buyer upon the goods leaving the premises of Seller. Seller will not in any circumstances accept liability for damage, shortage or loss during transit.
9) SPECIAL ORDERS Buyer will place order in writing on Seller for non-stock items. Seller will not accept return of non-stock items unless Manufacturer agrees to accept return from Seller. Seller may deduct transport handling and restocking charges of 20% of the price of the goods from the credit due to Buyer and may also deduct there from reasonable labour costs associated with the restoration of non-stock items to the condition as supplied by the Manufacturer. Special manufactured goods or cut lengths are not returnable.
10) TITLE AND RISK
A) Risk in goods shall pass to the Buyer upon delivery and it shall be the Buyer’s responsibility to indemnify the Supplier in full for any loss or damage that may occur to the goods at any time prior to the payment by the Buyer in full to the Supplier.
B) Irrespective of time when risk in the goods shall pass, passing of property and title in the goods shall be determined as follows:
1) The Buyer hereby acknowledges that the property and title in the goods shall remain with the Supplier until the Buyer has made payment in full of the Contract Price and any other monies owing hereunder.
2) Pending payment in full of the Contract Price and any other monies owing hereunder:- The relationship between the Supplier and the Buyer shall be fiduciary, and the Buyer shall hold the goods as bailee for and on behalf of the Supplier. The Buyer shall in all cases retain the goods upon its premises in a manner such that they are readily identifiable as the Supplier’s property. The Buyer must store the goods in such a way that they can be recognized as the property of the Seller. Upon sale of the goods by the Buyer, the Seller has the right to trace the full proceeds of sale, and the Seller may recover from such proceeds of sale and any monies owing on any account whatsoever. In the event of the failure of the purchaser to pay for the goods, or in the event of the appointment of a receiver and manager, liquidator, agent in possession or execution of distress, DAVID NOWLAND HYDRAULICS, may enter the purchaser’s premises or elsewhere where the goods are stored or installed and recover them or to appoint an agent in writing to do so and the purchaser acknowledges and guarantees such right of entry during normal business hours.
10a. PERSONAL PROPERTY SECURITIES ACT The Personal Properties Securities Act (PPSA) commenced operation on 31st January 2012. As a result the Seller will be entitled to register those security interests where we consider it is necessary and appropriate and the Buyer gives us this right to register a Security Interest on the PPSA Security Register.The Seller retains the purchase money security interest in the goods and the proceeds of sale under the PPSA and Title and Property in the goods will not pass until the Buyer has paid all monies owed to the Seller for any account. The Buyer must do all things reasonably required by the Seller in respect of the registration of the Sellers interest in the goods for the enforcement of the Sellers rights under the PPSA in respect of the goods. Where permitted by the PPSA the Buyer does waive any rights to receive the notifications, verifications or other documentation specified under 95, 118, 121(4), 123, 129, 130, 132(3)132 (d), 132(4), 135, 142, 143 and 157 of the PPSA. The Buyer does waive any right to claim damages against the Seller under Section 271 of the PPSA. The Buyer shall not change its name without first notifying the Seller of the new name, not less than 7 days before such a change takes effect. The Buyer agrees that to the extent allowed by Law nothing in sections 129 to 153 of the PPSA will apply to these terms. TERMS & CONDITIONS OF SALE.
11} DELIVERY TIME Seller may deliver the goods by installments or partial shipments and Buyer will accept each delivery Requirements of Buyer shall not be a conditionor of the essence of the contract. Seller shall be under no liability for direct or consequential loss or damage to Buyer arising from delay or post- ponement indelivery.
12} WARRANTY Nothing in clauses under warranty has the effect on excluding, limiting or modifying any rights, entitlements or remedies that may be conferred on a purchaser under the Competition and Consumer Act 2011 or any other Law to the extent that those rights, entitlements or remedies cannot be excluded or modified by agreement. Where it is lawful to do so, the liability of David Nowland Hydraulics for a breach of a condition or warranty is limited to the repair of replacement of the goods, the supply of equivalent goods, the payment of the cost of repairing or replacing the goods or acquiring equivalent goods as determined by Equip- co. Goods supplied with ‘manufacturer’s warranty’ against defects for a certain period of time will be expressed in a transparent way. In plain language and be presented clearly and contains the warrantor’s name, business address, phone number and email address (if any). It will set out relevant claim periods or procedures and include a statement that rights under the warranty are set alongside the consumer guarantees, which cannot be excluded. The Seller will investigate and conclude in its discretion whether the goods and their components are defective. The Buyer shall not return any goods to the Seller without obtaining prior authorization and number from David Nowland Hydraulics. Freight and charges for returns must be paid by the Buyer, and will be at the risk of the Buyer while the goods are being returned to the Seller for investigation or repair. Under no circumstances is Seller liable for any indirect or direct or consequential loss or expenses suffered by the Buyer or any other party for damage to persons or properties of any nature due to any cause whatsoever, including but not limited to loss of turnover, profits, business or goodwill or any other liability to any other party, except to the extent of any liability imposed by the ACL.
13} AGREED USE The buyer acknowledges that the matters set out in the schedule hereto are a true description of the purpose for which the goods purchased herby are to be applied in respect or work required to be performed by such goods and that the Buyer may forfeit any rights he may have against Seller for the supply of the subject goods if they are applied to any other use. The Buyer forfeits any right or claim against the Seller if any alteration to the goods sold or quoted is carried out without the Seller’s written consent.
14) EXCLUSIONS & ACKNOWLEDGEMENTS The buyer acknowledges and agrees that;
A} the goods are of a size, design, capacity and manufacture selected by the Buyer.
B} the Buyer is satisfied that the Goods and/or the plans and specifications for such installation is suitable for the Buyers Purpose.
C} The Buyer in ordering the Goods and/or installation of such Goods has relied entirely on its own judgment and not on any Statements made by the Seller or its servants.
D} The Seller shall not be liable to the Buyer for any liability, loss, damage, or expense of any kind caused directly or indirectly By the Goods or any inadequacy thereof for any purpose or any defect therein or by the use thereof.
E} the Seller shall not be liable for any contingent, consequential or resulting loss or damage or any sum being or Representing Loss of profits or earnings or amounts payable in respect of any accident resulting from the use or condition of the Goods. But these terms and conditions shall not be read or construed as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition or warranty to the extent that is implied by the Consumer and Competition Act effective 1st January 2012 or by any other statute of any other State or the Commonwealth of Australia and which is not legally capable of being excluded, restricted or modified.
15} DISCLAIMER & INDEMNITY the Seller shall not be liable in contract or in tort or otherwise for any loss whatsoever arising from any information and assistance given to the Buyer whether by way of advice, instruction or demonstration or otherwise. The Buyer must indemnify and keep indemnified the Seller from all loss or damage to property or loss with respect to any personal injury to any person occasioned either directly or indirectly from the hire, sale or use by the Buyer of the Goods supplied by the Seller.
16} REPAIRS & RETURNS The Seller is not under any duty to accept goods returned by the Buyer and will do so only on terms to be agreed in each individual case. Goods returned by Buyer to Seller for any cause will be free of all charges to Seller and at Buyers risk. Nothing in this clause affects the buyers rights under Australian Consumer Law or in respect of any breach of terms.
17} VARIATION BY BUYER Should there be any variation in details, sizes and quantities, delivery instructions or any other item or matter on which the quotation or invoice is based Seller reserves the right to revise and amend the contact price accordingly.
18} CLERICAL ERRORS Clerical errors in computations, typing or otherwise of catalogue, quotation, acceptance, offer, invoice; delivery docket; credit notes; specification of Seller shall be subject to correction.
19} MODIFICATIONS All modifications and amendments to these Terms and Conditions shall be in writing and if otherwise shall be binding upon Seller.
20} LEGAL If any of the provisions of this Contract are unlawful or invalid by reason of any applicable statue or rule of Law, then such provision shall be severed from the rest of this Contract which shall remain valid and binding on the parties.The Law of Western Australia governs the Terms. The parties agree to non-exclusive jurisdiction of the courts of Western Australia and the Federal Court. Notwithstanding that any provision of the Terms may prove to be illegal or unenforceable pursuant to any statue or of law then that provision is deemed omitted without affecting the legality of the remaining provisions and the remaining provisions of the Terms shall continue in force.
