Terms & Conditions
1 - interpretation
In these Terms and Conditions, and any Contract to which these Terms and Conditions apply, unless the context otherwise requires:
“Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cwlth) and any other consumer protection legislation in force in Australia;
“Company” means Eagle S.M.F Distributors Pty Ltd (ACN 002 264 931), Eagle S.M.F Tyre Accessories Pty Ltd and any related bodies corporate;
“Contract” means any contract for the sale of Goods or Services by the Company to the Purchaser;
- (a) Actual delivery of the Goods or Services by the Company to the Purchaser or any agent, employee or representative of the Purchaser; and
- (b) Deemed delivery of the Goods or Services in accordance with clause 4.3;
“Goods” means any equipment, machinery, parts, accessories or item of any nature which is to be sold by the Company;
“GST” has the meaning given to it in the “GST Act” being a New Tax System (Goods and Services Tax) Act 1999 (Cth);
“Liability” means all liability whatsoever and howsoever arising including but not limited to any liability for liquidated damages, loss of production, loss of profit, loss of revenue, loss of use, cost of capital, economic loss or consequential loss;
“Order” means any order for the sale of Goods or the supply of Services placed by the Purchaser with the Company;
“Price” means the price of the Goods or the Services quoted to the Purchaser for the Order or where no price is quoted, then calculated pursuant to the Company’s current price list and rates from time to time, and subject to adjustment in accordance with the Contract and these Terms and Conditions;
“PPSA” means the Personal Properties Security Act 2009 (Cth).
“Purchaser” means the person so named on the Order form, or if there is no Order form, the person who requested the Goods or Services from the Company;
“Services” means any services which are to be supplied by the Company;
In these Terms and Conditions, and any Contract to which these Terms and Conditions apply, unless the context otherwise requires:
(a) Words importing the singular include the plural and vice versa;
(b) A reference to:
- (i) a person includes a corporation, a government entity and bodies politic;
- (ii) a statue, ordinance, code or other law includes regulations under it and any consolidations, amendments, re-enactments or replacements.
Headings are ignored in construing these Terms and Conditions.
2 - GENERAL
These Terms and Conditions:
- (a) Apply to every Contract unless expressly excluded in writing in accordance with these Terms and Conditions;
- (b) Apply to every Order that is accepted by the Company as described in clause 4.1;
- (c) Override any terms and conditions of the Purchaser and any carrier; and
- (d) Where a party comprises of two or more persons each person is jointly and severally liable for their obligations under this Contract.
3 - COMPANY PUBLICATIONS
All descriptions, specifications, illustrations, drawings and diagrams provided by the Company whether in the Company’s catalogues, trade literature and other published matter or otherwise are of a general informative nature and approximate only, and none of this published matter forms part of the Contract (unless expressly included in the Contract).
4 - ORDERS FOR GOODS & SERVICES
[4.1] The giving by the Purchaser of an Order constitutes unqualified acceptance by the Purchaser to be bound by these Terms and Conditions. No contractual obligation shall arise until the Company has accepted an Order from the Purchaser. From the time the Company has accepted an Order these Terms and Conditions will be binding on the Company and the Purchaser.
5 - PRICE & PACKING
[5.1] Unless otherwise stated in these Terms and Conditions or in the Contract, the Goods are to be delivered in basic packaging and any special packaging required by the Purchaser must be notified to the Company and added to the Price.
6 - DELIVERY
[6.1] The Purchaser has agreed to purchase and accept Goods and Services of the weight, quantity, quality and specification stated by the Order form, unless a different weight, quantity, quality or specification from that stated on the Order form has otherwise been expressly agreed in writing between the parties.
[6.2] The Company will use its reasonable endeavours to record any oral instructions received from the Purchaser, however will not be responsible for any errors or omissions in the Order.
[6.3] Any time or date named or accepted by the Company for performance, Delivery, despatch, shipment or arrival of the Goods or Services, or for tender of any documents, is an estimate only and does not constitute a term or condition of these Terms and Conditions or of the Contract.
[6.4] The Company is not liable for the consequences of any delay as a result of any cause outside the reasonable control of the Company, notwithstanding that any such cause may be operative at the time of entering the Contract or accepting an Order. In these circumstances, the Company may reasonably extend the time for performance, Delivery, despatch, shipment or arrival of the Goods or Services, or cancel the Contract without incurring any Liability.
[6.5] Time for performance, Delivery, despatch, shipment or arrival of the Goods or Services, or for the tender of any documents, is not of the essence of the Contract.
[6.6] Unless otherwise stated in writing, the Company may make any partial Deliveries of the Goods or Services, by instalments in any amounts the Company may determine, and these Terms and Conditions apply to each partial Delivery or instalment. Each part or instalment is taken to be sold under a separate Contract incorporating these Terms and Conditions.
7 - DELIVERY TO A CARRIER
[7.1] Despatch of the Goods or Services by the Company to a carrier for the purpose of, or in connection with, delivery to the Purchaser or the commencement of any storage of the Goods by the Company on behalf of the Purchaser constitutes deemed Delivery to the Purchaser and satisfaction of the Company’s obligation in respect of delivery under these Terms and Conditions, whether the Company arranges, procures or effects the carriage of the Goods at the request of the Purchaser or otherwise.
[7.2] Unless otherwise agreed, the Purchaser is responsible for the making of the contract with the carrier.
[7.3] The Company shall be under no obligation to give the Purchaser the notice referred to in section 35 (3) of the Sale of Goods Act (NSW) or equivalent legislation.
8 - DELAYS CAUSED BY THE PURCHASER
Without prejudice to any other rights of the Company under these Terms and Conditions, if the Purchaser causes or requests any delay, the Purchaser must pay, in addition to, and as if it were part of the Price, all storage and other costs reasonably incurred by the Company, and the Company is under no Liability to the Purchaser in respect of the Company’s possession of the Goods whether as bailee or otherwise. In the event that the Company is required to store the Goods for any reason, the Purchaser shall be bound by all of the Company’s terms and conditions of storage.
9 - PAYMENT
[9.1] Unless the Company requires payment in cash or bank cheque at the point of sale, payment of the Price is to be made in full by the Purchaser in cash, by electronic funds transfer or by bank cheque within 30 days of the date of the invoice.
[9.2] Time for payment of the Price is of the essence. If the Purchaser fails to pay the Price in accordance with clause 9.1, the Company may:
(i) treat the Contract as repudiated by the Purchaser; or
(ii) suspend Delivery of the Goods or Services the subject of the Contract and any Goods or Services the subject of any other Contract with the Purchaser, without incurring any Liability to the Purchaser in respect of such treatment or suspension.
[9.3] Without prejudice to the rights of the Company under the Contract, if the Purchaser fails to pay the Price in accordance with clause 9.1, the Purchaser must, if required by the Company, pay interest to the Company on the outstanding amount of the Price at the rate of 10% per annum calculated on the outstanding balance from the due date for payment of the invoice until the date payment is received by the Company.
[9.4] The Purchaser is not entitled to make any deduction from the Price (including, but not limited to) in respect of any set-off or counterclaim.
[9.5] The Purchaser must pay the Company an amount equal to any reasonable expenses, costs or disbursements incurred by the Company in recovering any outstanding monies owed by the Purchaser to the Company (including, but not limited to, debt collection fees, Court costs and solicitor costs on an indemnity basis).
10 - TRANSFER OF TITLE
[10.1] Title in the Goods remains with the Company until the Goods as well as any other amounts owing by the Purchaser to the Company have been paid for in full.
[10.2] Until title in the Goods passes, the Purchaser must:(i) hold the Goods on a fiduciary basis as bailee for the Company;(ii) keep the Goods separate from all other goods in its possession and marked in such a way that they are clearly identified as property of the Company; and (iii) upon request, deliver up the Goods (as have not ceased to be in existence or resold) to the Company. If the Purchaser fails to deliver up the Goods, the Company may, without notice, enter the Purchaser’s premises to recover the Goods. The Company’s right to request the return of the Goods includes but is not limited to the return of parts and equipment fitted to any Goods, equipment or machine.
[10.3] The Purchaser (acting on its own account and not as agent of the Company) may agree to sell any of the Goods in its possession in the ordinary course of trading even if title in the Goods has not passed to the Purchaser if, and only if, the Company has not required the return of the Goods and none of the events mentioned in clause 15 has occurred.
[10.4] The Purchaser must not otherwise deal with or dispose of the Goods until title in the Goods has passed to the Purchaser.
[10.5] Where the Purchaser (whether in the ordinary course of trading or otherwise) re-sells the Goods before title in the Goods has passed to the Purchaser and, as a result of such re-sale, title in the Goods passes to a third party’ purchaser, the Company is entitled to the proceeds of the re-sale and the Purchaser must hold the proceeds of the re-sale separately and on the trust for the Company.
[10.6] If the Purchaser pays the Price for the Goods in full: (i) clause 10.5 does not apply; and (ii) the Purchaser is entitled to the proceeds of the re-sale of the Goods in place of the Company.
11 - RISK
[11.1] The Goods or Services are supplied to the Purchaser at the Purchaser’s own risk from the time of Delivery.
[11.2] Whilst the Goods are in the possession of the Purchaser before title in the Goods has passed, the Purchaser must, at its sole expense, keep the Goods in the same condition as that in which they were Delivered and make good any damage or deterioration.
12 - WARRANTY & RETURN OF GOODS
[12.1] The Purchaser shall be entitled to receive the benefit of any warranty received by the Company from the manufacturer of the Goods. The Purchaser acknowledges that any warranty offered will be voided where:
(i) the Purchaser fails to maintain and service the Goods in accordance with the manufacturers maintenance and service requirements;
(ii) the Purchaser has altered, modified or tampered with the Goods;
(iii) the Goods, parts or equipment have not been fitted or installed by the Company’s trained technicians or where the Services have not been provided by the Company’s trained technicians; or
(iv) where the Purchaser has failed to pay for the Goods or Services strictly in accordance with the Company’s payment terms and conditions.
[12.2] In addition to any other rights the Purchaser may have under the Australian Consumer Law and subject to any rights the Company may have under the Australian Consumer Law or otherwise, the Company will not accept a return of Goods from the Purchaser, except where:
(a) The Goods are faulty and the Purchaser is entitled to make a warranty claim; or
(b) The Company has supplied the incorrect Goods or Services.
[12.3] The final determination as to whether the Purchaser is entitled to the repair or replacement of the Goods or Services under warranty shall rest with the manufacturer of the Goods whose determination shall be final and binding on the Purchaser. The Company may require the return of the Goods to determine any warranty claim.
13 -LICENCES AND DUTIES
[13.1] The Purchaser is required to pay any taxes and to obtain and maintain any necessary export or import licences, authorisations or consents in respect of the Goods or Services which are requested to be delivered outside of the territory of Australia.
14 - EXCLUSION OF LIABILITY
[14.1] To the extent permitted by law, the Company’s total Liability for any claim under or in relation to a Contract or these Terms and Conditions is limited to the Price paid by the Purchaser for the Goods or Services the subject of the claim.
[14.2] Nothing in these Terms and Conditions is to be taken to exclude, restrict or modify any guarantee, condition or warranty that the Company is prohibited by law from excluding, restricting or modifying. If such a statutory guarantee applies to these Terms and Conditions or to the Contract and the Company breaches it, the Company where it is lawful to do so, and fair and reasonable to do so, limits its Liability, at the Company’s option, to:
(i) in the case of Goods:
(A) the replacement of the Goods or the supply of equivalent goods;
(B) the repair of Goods;
(C) the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
(D) the payment of the cost of having the Goods repaired; and
(ii) in the cast of Services:
(A) Supplying of the Services again; or
(B) The payment of the cost of having the Services supplied again.
[14.3] To the extent permitted by law, all other guarantees, conditions, warranties, representations or Liabilities (including Liability as to negligence) are excluded, other than those expressly referred to in these Terms and Conditions or in the Contract.
[14.4] In the case of any deviations in the quantity of Goods Delivered from those stated in the Contract:
- (a) Where less Goods have been Delivered than those stated in the Contract, the Purchaser has no right to reject the Goods; and is only obliged to pay the Price for the quantity of Goods Delivered; and
- (b) Where more Goods have been Delivered than those stated in the Contract, the Purchaser, subject to clause 14.5 (c), has the right to reject any Goods in excess of the quantity stated in the Contract; and is not bound to pay for any quantity of Goods in excess of the quantity stated in the Contract; and
- (c) If the Purchaser rejects any Goods in excess of the quantity stated in the Contract, the Purchaser must notify the Company within seven (7) days of Delivery and keep excess Goods in same condition as that in which they were Delivered, and if requested by the Company, deliver the excess Goods to the Company at the Company’s reasonable expense.
15 - BREACH AND PURCHASER INSOLVENCY
[15.1] The Company may, without prejudice to any other claim or right the Company may have, terminate the Contract immediately and any other Contract, agreement or arrangement with the Purchaser then subsisting and sell the Goods to a third party, if:
- (a) The Purchaser defaults on or breaches its obligations to the Company, whether under the Contract or otherwise;
- (b) The Purchaser makes, or enters into any negotiations for, any arrangement or composition with its creditors or any of them;
- (c) The Purchaser commits any act of bankruptcy or if any petition in bankruptcy is presented against it;
- (d) The Purchaser is a corporate body and the Purchaser is insolvent or goes into liquidation or if a receiver of the Purchaser’s assets or undertaking or any part of the Purchaser’s assets is appointed; or
- (e) The Purchaser is unable to pay its debts.
16 - PPSA SECURITY INTEREST
[16.1] In relation to Goods that have been Delivered but for which the Price or any part thereof has not been paid, the Purchaser grants to the Company a purchase money security interest, as defined in the PPSA, in the Goods and any proceeds of the sale of the Goods (“PMSI”) to secure the Price of the Goods.
[16.2] The Purchaser agrees not to do or permit anything to be done that may result in the PMSI granted to the Company ranking in priority behind any other security interest (as defined in the PPSA).
[16.3] The Purchaser will take such further steps (including obtaining consents, supplying information, signing forms or executing documents) which may be required by the Company to take further or better security under the PPSA in respect of the Goods and proceeds of sale of the Goods or to maintain the effectiveness or priority of any security interest under the PPSA.
[16.4] The costs of registering a financing statement in relation to the PPSA will be paid by the Purchaser.
[16.5] The Company and the Purchaser agree that nothing in sections 125, 132 (3) (d), 132 (4), 135, 142 and 143 of the PPSA shall apply to the Contract and these Terms and Conditions, or the security thereunder, and to the extent permitted by the PPSA agree to waive and contract out of the right to receive any notice or statement under sections 95, 118, 124 (4), 123, 130, 132 (3)(d), 132 (4) and 157. The Company and the Purchaser also contract out of each other provision of Part 4.3 of the PPSA, under sections 115 (7) and 116 (2), but only to the extent that the provisions impose obligations on the Company. The Company and the Purchaser will not disclose information of a kind mentioned in section 275 (1) of the PPSA, unless required by the law (other than section 275 (1) of the PPSA).
17 - INTELLECTUAL PROPERTY
[17.1] No right or licence is granted to the Purchaser under any patent, copyright, registered design or other intellectual property right except the right to use or resell the Goods.
18 - MISCELLANEOUS
[18.1] Company salespersons and or service technicians are not authorised to agree to vary and or amend these Terms and Conditions and any purported amendment or variation will have no force and effect. Only the Company representative whose title is Financial Controller’ is authorised by the Company to amend or vary these Terms and Conditions.
[18.2] No alteration may be made by the Purchaser to any other part of the Contract including these Terms and Conditions unless expressly accepted in writing by the Company. The Company’s current Terms and Conditions will be published on its website at www.eaglesmf.com.au.
[18.3] A single or partial exercise or waiver of a right relating to these Terms and Conditions or the Contract will not prevent any other exercise of that right or the exercise of any other right.
[18.4] These Terms and Conditions are governed by, and are to be construed in accordance with, the laws of New South Wales.
[18.5] The parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of New South Wales.
[18.6] Should any part of the Terms and Conditions, or the Contract, be held to be void or unlawful, these Terms and Conditions, or the Contract, are to be read and enforced as if the void or unlawful provisions or part provision had been deleted.
[18.7] No course of prior dealing between the parties and no usage of trade are to be relevant to amend, supplement or explain any term used herein.
[18.8] If GST is imposed on any supply made under or in accordance with these Terms and Conditions, the recipient of the taxable supply must pay to the supplier an additional amount equal to the GST payable on or for the taxable supply. Payment of the additional amount must be made at the same time as payment for the taxable supply is required to be made in accordance with these Terms and Conditions. The terms “supply”, “tax invoice”, “recipient”, and taxable supply” have the meanings given to them in the GST Act.
19 - NOTICES
[19.1] Any notice required to be made under these Terms and Conditions or in relation to recovery of costs must be in writing, in the English language and may be given by an agent of the sender and delivered to the address of the party included in the Contract or Order, unless a different address has been notified in writing by that party, in accordance with any means authorised by law or by any means described in clause
[19.2] A notice given by:
- (a) Post is taken to be received, if posted within Australia to an Australian address, three days after posting and, in any other case, 10 days after posting;
- (b) Email is taken to be received when the sender receives the email; and
- (c) Facsimile is taken to be received when the sender’s facsimile machine produces a transmission report stating that the facsimile was sent to the addressee’s facsimile number.