Rocktec Equipment
Terms and Conditions of Sale
Section 1 – Within these terms “goods” shall mean all goods, plant and equipment which are supplied by the company to, or at the request of, the client. The expression “Company” defines and means Rocktec Equipment and any related entity (as defined in the Corporations Act 2001).
Section 2 – The Client agrees to be bound by the terms and conditions within this document and any other accompanying additional terms and conditions. This is a continuing, binding and irrevocable agreement until the Company has been paid the entire price and any other monies. This agreement may be enforced by the Company, its successors and assigns.
Section 3 – As a separate and independent agreement, the Client agrees to indemnify and keep harmless the Company against any losses, costs (including but not limited to costs on a solicitor / client basis) or damages of whatsoever nature incurred by the Company as a result of the Client failing to pay the Company the price or other monies or as a result of the failure or default of the Client in the performance of their covenants and obligations contained under this agreement or under any other agreement between the Company and the Client.
Section 4 – The Client certifies that prior to the execution of any Sale of Goods or Services Contract, the Client had the opportunity to obtain independent legal advice in respect of the meaning and effect of these terms & conditions.
Section 5 – This document forms part of any Sale or Hire of Goods or Services Contract, which is executed as a deed. The signatories to any such contract warrant they have the authority to execute such a document for and on behalf of the Client and are also executing such document/s contemporaneously in the joint and several capacity of Guarantors.
Section 6 – The Client agrees to pay, without any deduction or set off in law or in equity whatsoever, the price outlined within any Sale of Goods or Service Contract, within the payment terms outlined in the contract.
Section 7 – Property in any goods that are being sold by the Company to the Client will not pass to the Client until such time as the goods are paid for in full. The Client agrees that the goods supplied by the Company to, or at the request of, the Client shall be at the Client’s risk (including insurance responsibility) immediately on leaving the Company’s premises or into the Client’s custody (whichever is sooner). Ownership or property in goods hired out or under hire-to-buy agreements does not pass to the Client, unless the Hire-to-buy Contract is made null and void by a superseding Sale of Goods Contract. The Client further agrees:
Section 7.1 – to store and maintain the goods in such a manner as to show clearly that they are the property of the Company and the Client shall be at liberty to sell the goods, in the ordinary course of business, but only as fiduciary agent for the Company and shall account to the Company for all proceeds from the sale;
Section 7.2 – under this agreement the Company may enter upon the Client’s premises or elsewhere without notice and force if reasonably necessary to repossess the goods without being liable for trespass. The Client shall indemnify the Company for any loss or damage suffered by the Company and against all claims brought against the Company arising from the Company repossessing the goods;
Section 7.3 – that in the event the Client uses the goods in some manufacturing or construction process of its own or some third party and so as to meet payment due to the Company under this agreement, the Client shall hold such part of the proceeds of such manufacturing or construction process as relates to the goods in trust for the Company. Such part shall be deemed to equal in dollar terms the amount owed by the Client to the Company at the time of the receipt of such proceeds;
Section 7.4 – to better secure any outstanding payment due to the Company under this agreement, the Client appoints the Company as their attorney to collect the goods and/or to collect payment from any third party for the goods and/or services and to apply that payment against the Client’s account with the Company. If payment is collected by the company from a third party, then the Client irrevocably agrees with the Company and with the third party that in providing this attorney the third party’s liability for payment to the Client in relation to the outstanding monies is reduced by the sum of the payments collected by the Company from the third party;
Section 7.5 – if the Client defaults in the due and punctual observance of all or any of their obligations or covenants under these terms, all monies owed by the Client to the Company shall become immediately due and payable.
Section 8 – It is the Client’s responsibility to provide uninhibited access to delivery sites. If in crossing or endeavouring to avoid any obstruction damage is caused to the obstruction or the goods being supplied by the Company, then the Client agrees to indemnify the Company against all claims whatsoever for such damage. The Client agrees that any price quoted by the Company for the delivery of the goods by the Company was on the basis of uninhibited access being provided to the delivery site and in addition to any price quoted the Client shall pay the price charged by the Company for any waiting time or time incurred by the Company in obtaining uninhibited access to the delivery site.
Section 9 – If the Client or Guarantor (a) defaults in the due and punctual observance of all or any of their obligations or covenants under these terms and conditions or any Sale of Goods or Services Contract; or (b) being a person, dies or commits an act of bankruptcy; or (c) being a company, takes or shall have taken against it any action for its winding up, placement under official management, administration or receivership, then the Company without prejudice to any right or remedies open to it may:
Section 9.1 – treat as discharged all or any obligation arising from any agreement with the Client;
Section 9.2 – retain any security given or monies paid by the Client or available through the enforcement of any guarantee, security or bond and apply this in reduction of any sum of money owed or owing by the Client to the Company;
Section 9.3 – reserve the right to enter upon the Client’s premises or enter upon any premises to which the Client has a right of access without notice and with force if reasonably necessary to take possession of and remove any goods supplied and/or hired out by the Company to the Client under this agreement or any other agreement between the Company and the Client for which payment has not been received, without being liable for trespass. The Client shall indemnify the Company for any loss or damage suffered by the Company and against all claims brought against the Company arising from the Company repossessing the goods;
Section 9.4 – take such steps as it may deem necessary to mitigate the damages suffered including the putting to use, hiring out or sale of any goods supplied and/or hired under any agreement between the Company and the Client;
Section 9.5 – appoint in writing any person or persons to be a receiver or receiver and manager of the property charged or any part of the charged property. The receiver so appointed shall be the agent of the Client or Guarantor (whichever is applicable) and the Client or Guarantor (whichever is applicable) shall be solely responsible for all acts and omissions by the receiver appointed under this clause and for the remuneration of the receiver. The receiver shall without the need for any consent on the part of the Client or Guarantor (whichever is applicable) have all the powers conferred on a receiver under the Corporations Act 2001.
Section 10 – Should there be any variation in the information supplied in any document by the Client to the Company concerning the Client, the proprietorship of the Client’s trading name or a variation in the structure of the Client’s business (such as conversion to, or from, a trustee), the Company shall forthwith be notified in writing by the Client by certified mail delivered to the Company’s registered office. Unless such notification is given to the Company, the Client and the Guarantors shall remain liable to the Company as though any goods or services supplied and/or hired out by the Company prior to such notification were supplied and/or hired out to, or at the request of, the original Client. The Client and the Guarantors agree this agreement also binds the Client and the Guarantors in relation to all goods and services supplied and/or hired out to, or at the request of, the Client as the proprietor (in whole or in part) or as agent for any business, and irrespective of whether the Client supplied and/or hired the goods and services under the trading name of the Client’s business disclosed on the front page of this document.
Section 11 – If any payment made by, or on behalf of, the Client to the Company shall subsequently be avoided by law or recovered by a liquidator or trustee in bankruptcy, such payment shall be deemed not to have discharged the Client’s liability and in such event the Company and the Client shall be restored to the position in which each would have been had the payment not been avoided. The Guarantors agree to be liable to the Company for the payment so avoided.
Section 12 – The Client and the Guarantors agree that a variation or waiver term or condition under these terms and conditions or any Sale of Goods or Service Contract is effective only if it is in writing and signed by the Company. Such waiver is effective only in the specific instance and for the specific purpose it was given.
Section 13 – The Client agrees and irrevocably authorises the Company to apply, or set-off, against the Client’s account any sums which may be owed to the Client by any company within the Company’s Group of Companies.
Section 14 – The Client and the guarantors (as the case may be) warrant and agree that where they are, at the time of executing any Sale or Hire of Goods or Services contract associated with these Terms & Conditions or at any time the Client has credit with the Company, a trustee of any trust (the “Trust”); (a) to produce a stamped copy of the Trust deed (with all amendments) if and when requested by the Company; (b) that they have full power and authority to execute, or continue with their obligations under, any Sale or Hire of Goods or Services Contract on behalf of the Trust as they are doing so in their individual capacity and in their several capacity as trustee; (c) that they shall be bound by these terms and conditions in their individual capacity, or further or alternatively, in their several capacity as trustee; and (d) that the assets of the Trust shall be available to meet payment of their obligations to the Company.
Section 15 – The Client and the Guarantors hereby in favour of the Company charge and mortgage with the due and punctual payment and the due and punctual and complete performance of all their liabilities and obligations hereunder all their legal and equitable interest of whatsoever nature held in any real or personal property both present and future and each of the Client and Guarantors herby consent to the Company lodging a caveat or caveats noting its proprietary interest hereunder.
Section 16 – The Client and the Guarantors agree that a certificate by the Company of any person authorised by the Company to give the same shall be conclusive evidence as to the amount owed to the Company by the Client and the Guarantors.
Section 17 – In this document words in the singular includes the plural and vice versa, and reference to any gender includes the other genders. If any party to any Sale or Hire of Goods or Services Contract associated with these terms and conditions comprises two or more parties each of those parties is jointly and serially liable on the covenants and obligations herein.
Section 18 – These terms and conditions shall be binding upon each party that has executed any associated Sale or Hire of Goods or Service Contract notwithstanding the failure of any other party named as a party to execute such a contract or the avoidance or unenforceability of any part of these terms and conditions or associated Sale or Hire of Goods or Service Contract.
Section 19 – If any part of these terms and conditions becomes void or unenforceable, then that part shall be severed to the intent that all parts that are not void or unenforceable shall remain in full force and effect. This agreement shall be governed and construed in accordance with the laws of Australia and the parties submit to the jurisdiction of the Courts of Sydney, New South Wales.
Section 20 – None of the provision of these terms and conditions will merge in or upon the execution of this or any other agreement, contract, document, act, matter or thing and will continue to remain in full force and effect for so long as is necessary to give effect to the provisions of these terms and conditions.
Section 21 – Where there is any inconsistency between these terms and conditions and any prior or subsequent agreement between the Company and the Client, any such prior or subsequent agreement shall be read down to the extent necessary to give full force and effect the these terms and conditions.
Further Terms and Conditions of Sale
1) The Client acknowledges that he has inspected the goods, is satisfied the goods are fit for purpose they are to be used for, are in clean condition and are in good and sustainable working order, repair and condition. The Client is aware of the proper use for which the goods are designed.
2) Notwithstanding anything contained herein the Client acknowledges that no warranty or condition, express or implied, is given by the Company as the condition of the goods or as to the suitability or fitness of the goods. Subject to the extent permitted by legislation any obligation of the Company under these terms and conditions shall be to use its endeavours to supply goods and/or service or to repair or replace (at the Company’s discretion) any goods which are found to be defective during any applicable warranty period (if any) and in no event shall the Company be liable for any other claims, losses or damages including but not limited to claims for faulty design, negligent or misleading advice, damages arising from the loss or use of the goods or howsoever arising and any indirect, special or consequential damage or injury to any person, corporation or other entity.
3) In the event of the Client requesting the Company to transport the goods, the Client shall pay in addition to the supply and/or hire charges all of the Company’s charges and expenses in relation to the transportation. The Company reserves the right to dispatch the Client’s order in one delivery or by instalments. Where the Company acknowledges an order which provides for delivery by instalments, the Company shall be entitled to payment for each instalment delivered (as if it were a separate agreement) but failure to deliver any instalment shall not entitle the Client to repudiate the agreement or contract as to any remaining instalments. Any variation, waiver or cancellation of the Client’s order shall be of no effect unless accepted in writing by the Company and where the Company accepts the variation, waiver or cancellation, the Company may levy a handling charge of up the 10% of the Price (as defined in the Sale or Hire for Goods or Services Contract between the Company and the Client).
4) It is the Client’s responsibility to check the quantity of goods delivered or in the case of hire, goods delivered or returned. No claim for shortages, missed deliveries or missed returns will be recognised unless notified in writing to the Company by the Client within 24 hours of delivery or return. Unless the Company receives for its consideration such a claim within this period, the Client acknowledges that the quantities or goods delivered or returned are those listed on the Company’s delivery and return dockets. If no signature is obtained from the Client upon delivery of the goods, then no claim will be recognised by the Company unless the Company’s employee or agent who delivered the goods is of the belief that such shortage or mis-delivery occurred. The Client agrees that the Company shall be able to deliver or accept return of the goods whether or not a representative of the Client is present at the time of delivery or return and that there be no representative of the Client present at the time of delivery or return, the quantities of goods delivered or returned are those listed on the Company’s delivery and return dockets.
5) The Client agrees to use the goods in a skilful and proper manner and for the purpose for which the goods were designed and are reasonably and safely capable of fulfilling. The Client will observe and comply at his own expense with all notices, directions and legal requirements (including those of all authorities, statutes and regulations) in any way relating to the goods.
6) The Client acknowledges the goods leaving the Company’s premises are adequately packed and prepared for transport. Claims for damage in transit must be made against the carrier. The Company is not responsible for any loss or damage of the goods in transit. It is acknowledged by the Client and the Company that the Trade Practices Act 1974 and other laws may imply conditions or warranties in certain contracts and also give parties to those contracts certain and other rights against suppliers of goods and services. To the extent such conditions, warranties or other rights are implied or given in respect of these terms and conditions and any related Sale or Hire of Goods or Services Contract and it is not lawful or possible to exclude them, then such conditions, warranties or other rights shall (but only to the extent required by law) apply to these terms and conditions and any related Sale or Hire of goods or Services Contract and all other conditions, warranties or rights which might but for this provision be implied are hereby expressly excluded.
7) Where the law implies any term or warranty into these terms and conditions which cannot be excluded, then the liability of the Company for any breach of such term will be limited in the manner permitted under section 68A of the Trade Practices Act 1974 to one of the following (as the Company may determine):
7.1 – in the case of goods supplied, to any one or more of the following:
7.1.A – replacement of the goods or the supply of equivalent goods;
7.1.B – repair of the goods;
7.1.C – payment of the cost of replacing the goods or of acquiring equivalent goods;
7.1.D – payment of the cost of having the goods repaired; and
7.2 – in the case of services supplied, to any one or more of the following:
7.2.A – supply of the services again; or
7.2.B – payment of the cost of having the services supplied again;
7.2.C – in the event that the Company (as a deemed “manufacturer”) has a liability to the Client (as a “Company”) pursuant to section 74H of the Trade Practices Act 1974, subject to the terms of section 74L of that Act, such liability is limited to a liability to pay to the Client an amount equal to whichever is lesser of the cost of;
7.2.D – replacing the goods; e. obtaining equivalent services; or
7.2.E – having the goods repaired.
8) Any quotation of delivery time by the Company is made in good faith but as estimates and not commitments. The Company shall not be bound by any such estimate.
9) Clerical errors or omissions by the Company, whether in computation or otherwise in any quotation, acknowledgement or invoice, shall be subject to correction.
10) If there is any inconsistency between these terms and conditions within and any other agreement between the Company and the Client then those terms and conditions shall, only to the extent of the inconsistency, prevail and the other agreement between the Company and the Client shall be interpreted accordingly unless it is expressly state that these terms and conditions are excluded from that agreement.
11) If any part of these terms and conditions become void or unenforceable, then that part shall be severed to the intent that all parts are not void or unenforceable shall remain in full force and effect.
12) Questions about our Terms & Conditions should be sent to us at sales@roktec.com.au