mopdf.com

MaxiTRANS Terms & Conditions of Sale and Supply – Service and Parts – September 2019Where you (the Buyer) are acquiring goods and services from us (the Supplier) as a Consumer, the Australian Consumer Law automatically provides arange of consumer guarantees, including that goods will be of acceptable quality, fit for purpose, match the description or sample, and have spare par tsand repair facilities reasonably available. In addition, there is a consumer guarantee that services will be provided with d ue care and skill, fit for anyspecified purpose, and provided within a reasonable time.If the Supplier fails to comply with the consumer guarantees when supplying goods or services, the Consumer may be entitled to a remedy under theAustralian Consumer Law. The consumer guarantees regime (including a Consumer's right to a remedy and a Supplier's liability for failure to complywith a guarantee) cannot be excluded, restricted or modified, except to the extent permitted under the Australian Consumer La w. These Terms andConditions are therefore subject to, and will not apply to the extent that they exclude, restrict or modify, the consumer gua rantees regime (except to theextent permitted under the Australian Consumer Law).You (the Buyer) will be considered a Consumer (for the purposes of the consumer guarantees regime) where you acquire: goods or services that cost less than 40,000; or goods or services that cost more than 40,000 but are of a kind ordinarily acquired for domestic, household or personal use or consumption;or a vehicle or trailer primarily used to transport goods on public roads.You (the Buyer) will not be considered a Consumer if goods are purchased to be resold or to be transformed into a product tha t is sold.1. DEFINITIONSIn these Terms and Conditions:Account Application Form means the Account Application and CustomerInformation form incorporating these Terms and Conditions.Australian Consumer Law means the Australian Consumer Law set out inSchedule 2 of the Competition and Consumer Act 2010 (Cth) (as amendedor replaced from time to time).Breakdown Services means Minor Mechanical Repairs to make a Disabledtrailer able to be towed or otherwise moved to a place it can be repaired.Buyer means the person named below as the buyer and includes any RelatedEntity of the Buyer who accepts an Estimate or Quote, or whose Order isaccepted by the Supplier.Consumer means a consumer within the meaning of section 3 of theAustralian Consumer Law.Customer Goods means goods belonging to the Buyer and on which theSupplier will carry out Services.Disabled, in relation to a trailer or vehicle, means that it is unable to betowed or driven safely due to mechanical failure or breakdown, fire,flooding, or a malicious act.Delivery Date means for supply of Goods, the date on which the Goods aredelivered to the Buyer; and (b) for supply of Services or Services andGoods, the date the Supplier notifies to the Buyer as the date on which theFinished Goods are ready for delivery.Estimate means a preliminary assessment by the Supplier of the servicesrequired based on information provided by the Buyer, which may include anon-binding indication of a Purchase Price.Finished Goods means Customer Goods that have been serviced inaccordance with the Specifications and Services.Goods means goods which the Supplier supplies to the Buyer in accordancewith these Terms and Conditions.MaxiTRANS Entity means any of MaxiTRANS Australia Pty Ltd ACN081 151 699, Hamelex White (a division of MaxiTRANS Australia Pty Ltd),AZMEB Global Trailers (a division of MaxiTRANS Australia Pty Ltd),Lusty EMS Pty Ltd ACN 073 705 263, Transport Connection Pty Ltd ACN159 813 733, MaxiPARTS Pty Ltd ACN 110 786 215, MaxiPARTS (QLD)Pty Ltd ACN 082 691 423, Colrain (QLD) Pty Ltd ACN 084 354 496 andColrain (Albury) Pty Ltd ACN 111 881 951.Minor Mechanical Repairs means minor and in some cases temporaryrepairs to enable a trailer or vehicle to be safely towed or driven to a placewhere complete and/or permanent repairs can be carried out.Order means an order for Goods and/or Services given by the Buyer to theSupplier.PPS Act means the Personal Property Securities Act 2009 (Cth) and anyregulation made at any time under the PPS Act (each as amended andreplaced from time to time).PPS Register means the national online register established under the PPSAct.Purchase Price means the tax inclusive amount the Buyer must pay to theSupplier for the Goods and/or the Services, being the Supplier's quoted priceor, where no price has been quoted (or a quoted price is no longer valid), theprice listed in the Supplier's published price list current at the date ofacceptance of the Order.Quote means a quote for Services given by the Supplier to the Buyer, whichmay be in response to an Order.Related Entity, in the case of a Buyer that is a company, means a relatedentity as defined in the Corporations Act 2001 (Cth) and, in the case of aBuyer that is an individual, means a company controlled by that individualor of which that individual is a director and each related entity as defined inthe Corporations Act 2001 (Cth) of the companies.Services means the services that the Supplier supplies to the Buyer inaccordance with these Terms and Conditions.Specifications means the specifications of the Goods or Services asdescribed in the Estimate or Quote (if accepted by the Buyer) or the Order (ifaccepted by the Supplier).Supplier means the MaxiTRANS Entity that is supplying the relevant Goodsand/or Services to the Buyer.Terms and Conditions means the terms and conditions of sale and supply setout in this document and includes any additional terms and conditions agreed inwriting between the Supplier and the Buyer.Terms used in these Terms and Conditions which are defined in the PPS Acthave the same meaning given to them in the PPS Act.2. ACCEPTANCE OF TERMS AND CONDITIONS2.1. A binding contract is formed between the Buyer and the Supplierwhen the Buyer signs a copy of these Terms and Conditions,and/or when the Buyer places an Order, accepts an Estimate orQuote or otherwise authorises the Supplier to supply Goods orServices. The contract consists of: (a) the Account ApplicationForm; (b) these Terms and Conditions; (c) the Order, Estimate,Quote or Specifications; and (d) any other terms the Buyer andSupplier agree in writing, and in the event of an inconsistencybetween the terms of the above documents, the order of precedenceis as set out above. There is only a contract to supply specified orparticular Goods if the Supplier agrees to provide those Goods inaccordance with condition 3.1.2.2. Where the Buyer places an Order for Goods or Services whichcontains terms and conditions inconsistent with these Terms andConditions, the Buyer's terms and conditions are excluded, andthese Terms and Conditions apply to the Order.3. ORDERS, ESTIMATES, QUOTES AND SPECIFICATIONS3.1. Any Order submitted by the Buyer must be accepted in writing bythe Supplier's authorised representative before it will bind theSupplier. Each Order accepted by the Supplier will be deemed toincorporate these Terms and Conditions.3.2. The Buyer must verify the accuracy of any Order (including anyapplicable Specification) submitted by the Buyer to the Supplier.The Buyer must confirm any Estimate or Quote provided by theSupplier is acceptable to the Buyer prior to accepting the Estimateor Quote.3.3. The Supplier may make any changes to a Specification which arerequired to conform with any applicable safety, legal or otherstatutory requirements. The Supplier may make any changes to aSpecification which do not materially adversely affect the qualityor performance of the relevant Goods or Services, by givingreasonable prior notice to the Buyer. If the Buyer does not agree tothe change, it may cancel the Order, Estimate or Quote. Condition6 below relating to cancellations will apply to any costs, losses,charges and expenses incurred by the Supplier up to the date ofcancellation.3.4. If any process is to be applied to the Goods or Customer Goods bythe Supplier in accordance with the Specifications provided by theBuyer, the Buyer indemnifies and must pay to the Supplier ondemand the amount of all losses, damages, costs and expensesincurred by the Supplier in connection with any claim forinfringement of any intellectual property rights of any other personwhich arises from the Supplier's use of the Specifications providedby the Buyer in connection with the Goods or Customer Goods.4. BREAKDOWN SERVICES4.1. The Supplier may require a pre-payment for Breakdown Servicesbefore attending.4.2. The Price payable for Breakdown Services will be an hourly rateplus the cost of parts used.4.3. Breakdown Services may not be available in all areas. BreakdownService will be provided as soon as practicable and within areasonable period of time, but the specific response time will varydepending on the location of the trailer, demand for services andother factors beyond our control.

MaxiTRANS Terms & Conditions of Sale and Supply – Service and Parts – September 20194.4.5.6.The owner of the trailer or vehicle, or an authorisedrepresentative must remain with the trailer or vehicle when theSupplier Representative attends to provide Breakdown Services,and must have authority to authorise the Minor MechanicalRepairs conducted.4.5. Where a trailer or vehicle is leaking gas or fuel, or othercircumstances at the site render the site unsafe, the Suppliermay refuse to provide the Breakdown Services until emergencyservices have attended and deemed the trailer or vehicle, and thesurrounding environment, safe.4.6. Breakdown Services will end when the trailer or vehicle istowed or otherwise transported from the site of the BreakdownServices, or the Supplier representative in attendance hasdetermined that Minor Mechanical Repairs cannot be performedon the trailer or vehicle in order to enable the trailer or vehicleto be safely towed or driven to a place where complete and/orpermanent repairs can be carried out.PRICE AND PAYMENT5.1. The Supplier may require the Buyer to pay a deposit of notmore than 10% of the Purchase Price before commencing theServices or supplying the Goods. A deposit is non-refundable,except where the Buyer is entitled to a refund under theAustralian Consumer Law, or where the Buyer terminates theagreement as a result of a breach by the Supplier. TheSupplier's express or implied approval for extending credit tothe Buyer may be withdrawn at any time.5.2. Subject to condition 5.3 and 5.4, the Buyer agrees to pay theSupplier the Purchase Price, as invoiced by the Supplier to theBuyer, either: (a) on or before the Delivery Date; or (b) within30 days of the end of the month in which the Goods or Servicesare delivered or provided, as described in the Order, Estimate orQuote.5.3. Any agreement by the Supplier to supply Goods or Services oncredit terms may be cancelled or withdrawn without notice ifany account is overdue at the absolute discretion of theSupplier.5.4. If the Supplier has agreed to payment terms set out in condition5.2, or otherwise to supply Goods or Services on credit terms,and the Supplier: (a) has reasonable grounds to believe that theBuyer may fail to pay an invoice within the period provided; or(b) has not otherwise been provided with adequate assurance ofpayment within 14 days of written request, then the Suppliermay require the Buyer to pay the Purchase Price before theDelivery Date and the Supplier is not required to deliver theGoods until such time as the Purchase Price is received oradequate assurance of payment is provided to the Supplier'sreasonable satisfaction.5.5. The Supplier reserves the right to reasonably increase thePurchase Price to reflect any increase in the cost to the Supplierof supplying the Goods and/or Services due to: (a) any factorbeyond the Supplier's reasonable control; or (b) any change indelivery dates, quantities or specifications for Goods and/orServices which the Buyer requests by notice in writing; or (c)any delay caused by the Buyer's instructions or failure to givethe Supplier adequate information or instructions. Where theSupplier proposes to increase the Purchase Price, the Supplierwill provide reasonable prior notice to the Buyer. If the Buyerdoes not agree to the change in the Purchase Price, it maycancel the Order, Estimate or Quote. Condition 6 below relatingto cancellations will apply to any costs, losses, charges andexpenses incurred by the Supplier up to the date of cancellation.5.6. The Supplier has absolute discretion as to the manner in whichit applies money it receives from the Buyer (including anyAmount Overdue under condition 13).CANCELLATIONS AND DEFERRALS6.1. When an Order is accepted by the Supplier, or an Estimate orQuote is accepted by the Buyer, the Buyer is bound by theOrder, Estimate or Quote. If the Buyer cancels or defers theOrder, Estimate or Quote, the Buyer will, at the Supplier'sdiscretion, pay all reasonable costs, losses, charges andexpenses incurred by the Supplier associated with anycancellation or deferral of the Order, Estimate or Quote by theBuyer. Following cancellation or deferral, the Supplier will takereasonable steps to cease incurring or otherwise minimisefurther costs, losses, charges or expenses associated with thecancellation or deferral.6.2. The Supplier will provide the Buyer with an invoice setting outthe costs incurred by the Supplier associated with thecancellation or deferral of the Order, Estimate or Quote by theBuyer and the Buyer will pay the amount set out in the invoicewithin 7 days of the date of an invoice from the Supplier.7.DELIVERY7.1. Goods will be delivered free into store, unless otherwise specifiedin an Order.7.2. The Supplier will deliver the Finished Goods to the Buyer by theBuyer collecting the Finished Goods at the Supplier's premises onthe Delivery Date or, if another place for delivery is agreed by theSupplier, by the Supplier's delivery to that place.7.3. The Supplier will deliver Breakdown Services (and any Goodsrequired to deliver the Breakdown Services) at the place requestedby the Buyer (subject to condition 4).7.4. If the Buyer does not collect the Finished Goods on the DeliveryDate the Supplier may impose a reasonable charge for storage ofthe Finished Goods. Storage charges must be paid by the Buyerwithin 7 days of the date of an invoice from the Supplier.7.5. Where the Supplier agrees to deliver Finished Goods other than atthe Supplier's premises, the Buyer must pay the Supplier'sreasonable charges for transport, packaging and insurance.7.6. The Buyer is responsible for the delivery of Customer Goods to theSupplier's premises, including the cost of transport, packaging andinsurance.8. TITLE8.1. The Buyer agrees that title to Goods will not pass to the Buyeruntil the Purchase Price and all other amounts payable to theSupplier have been paid in full.8.2. Until title to Goods has passed to the Buyer in accordance with thiscondition, if the Buyer has taken delivery of the Goods, the Buyerholds the Goods as fiduciary bailee of the Supplier and the Buyeragrees to store the Goods separately so that the Goods areidentifiable as the Supplier's property. The Buyer has the right tosell the Goods in the ordinary course of trade if the Buyer accountsto the Supplier for all payments, including payments by thirdparties, in accordance with the Buyer's fiduciary relationship.8.3. The risk of loss or damage to the Goods passes to the Buyer on theDelivery Date.8.4. Subject to conditions 13.1 and 17.2, property in Customer Goodsand Finished Goods will remain the Buyer's at all times during thisagreement.9. ACCEPTANCE9.1. This condition 9 does not apply where the Buyer is acquiringgoods or services as a Consumer. Nothing in this condition 9 limitsany rights or remedies the Buyer may have under the AustralianConsumer Law in circumstances where the Buyer acquires goodsor services from the Supplier as a Consumer.9.2. Subject to condition 9.1, the Buyer must examine the Goods andthe Finished Goods and unless the Buyer gives written notice tothe Supplier of any defects in the Goods or the Finished Goods ortheir failure to correspond with the Specifications within 7 days ofthe Delivery Date, the Buyer is deemed to have accepted theGoods or the Finished Goods as being of merchantable quality,corresponding with the Specifications and free of defects.10. EXCUSABLE DELAYS10.1. A party is not liable for any delay in, or failure to comply with,these Terms and Conditions where the failure was due to any causebeyond that party's reasonable control (such as forces of nature,industrial action and action or inaction by a government agency).11. EXCLUSIONS AND LIMITATIONS11.1. To the extent that the Buyer acquires goods or services from theSupplier as a Consumer, the Buyer may have certain rights andremedies (including, without limitation, consumer guaranteerights) under the Australian Consumer Law that cannot beexcluded, restricted or modified by agreement. Nothing in theseTerms and Conditions operates to exclude, restrict or modify theapplication of any provision, condition or warranty, the exercise ofany right or remedy, or the imposition of any liability, implied orconferred under the Australian Consumer Law or any other statute,where to do so would contravene that statute, or cause any part ofthese Terms and Conditions to be void (Non-excludableConsumer Obligations).11.2. Except in relation to Non-excludable Consumer Obligations, andotherwise to the extent permitted by law, all conditions, warranties,guarantees, rights, remedies, liabilities or other terms implied orconferred by statute, custom or the common law that impose anyliability or obligation on the Supplier are excluded from theseTerms and Conditions.Except in relation to Non-excludable Consumer Obligations, andsubject to condition 11.2, to the extent permitted by law, theSupplier will have no liability to the Buyer for any: (a) loss, harm,damage, cost or expense (including legal fees), except to the extentthat any loss, harm, damage, cost or expense was caused orcontributed to by the Supplier; or (b) any special, indirect orconsequential loss or damage (including, without limitation,economic loss, loss of contract, loss of profit or revenue, loss of

MaxiTRANS Terms & Conditions of Sale and Supply – Service and Parts – September 2019opportunity, loss of production, production stoppage or loss ofdata), arising directly or indirectly under or in connection withthe supply of the Goods or Finished Goods, whether by way ofindemnity, statute, in tort (for negligence or otherwise), or on anyother basis in law or equity,.11.3. In relation to Non-excludable Consumer Obligations, exceptwhere the Supplier is supplying Goods or Services of a kindordinarily acquired for personal, domestic or household use orconsumption to the Buyer (in respect of which the Supplier'sliability is not so limited under these Terms and Conditions), theSupplier's liability to the Buyer for a failure to comply with anyNon-excludable Consumer Obligation (other than a guarantee asto title, encumbrances or quiet possession) is limited to: (a) inthe case of Services, the cost of supplying the Services again orpayment of the cost of having the Services supplied again; and(b) in the case of Goods, the cost of replacing the Goods,supplying equivalent Goods or having the Goods repaired, orpayment of the cost of replacing the Goods, supplyingequivalent Goods or having the Goods repaired, as permittedunder the Australian Consumer Law.12. TERMINATION12.1. If: (a) the Buyer materially breaches any of these Terms andConditions and the breach cannot be remedied within areasonable amount of time; or (b) the Buyer ceases to carry on abusiness; or (c) the Buyer is unable to pay its debts as theybecome due, is presented with a winding-up petition or if anystep is taken to appoint a receiver, receiver and manager, atrustee in bankruptcy, a provisional liquidator, a liquidator, oran administrator to the Buyer, its assets, operations or business;or (d) the Supplier believes that one of the events stated incondition 12.1-12.1 has occurred or there is a material risk thatone of those events will occur, then subject to Part 5 of theCorporations Act 2001 (Cth), all amounts owed by the Buyer tothe Supplier will become immediately due and payable and theSupplier may: (e) terminate this agreement and any agreementto supply under these Terms and Conditions (which if as a resultof an event in condition 12.1(a), may be terminated by at least 7days written notice, or in any other event, immediately bywritten notice); (f) suspend any further supply of Goods(including any Customer Goods and Finished Goods) orServices; (g) cancel any discounts provided to the Buyer forearly payment; (h) recover and resell any Goods in which titleremains with the Supplier; and/or (i) set-off any amount owedby the Buyer against any amount owing to the Supplier.12.2. The Buyer may terminate this agreement by giving 7 dayswritten notice to the Supplier if the Supplier materially breachesany of these Terms and Conditions and the breach cannot beremedied within a reasonable amount of time. In the event oftermination pursuant to this clause, then subject to Part 5 of theCorporations Act 2001 (Cth), all amounts owed by the Buyer tothe Supplier will become immediately due and payable and theSupplier may recover and resell any Goods in which titleremains with the Supplier.12.3. Termination of this agreement or suspension of the supply ofGoods or Services does not affect any accrued rights orremedies of the Supplier.13. FAILURE TO PAY13.1. If the Buyer fails to pay any amount under this agreement on theday it is due (including any amounts which becomeimmediately due and payable under condition 12.1) (AmountOverdue): (a) the Buyer will pay interest on the AmountOverdue at the rate fixed from time to time under the PenaltyInterest Rates Act 1983 (Vic) for the period from the day theamount fell due until the date of payment; (b) the Buyer willpay all of the Supplier's reasonable costs of recovering paymentof the Amount Overdue as invoiced by the Supplier to theBuyer; and (c) the Supplier may appropriate any payment madeby the Buyer on any other account in payment of the AmountOverdue.13.2. The Buyer agrees that the Supplier has a security interest overall of the Buyer's property in its possession (including anyCustomer Goods and Finished Goods) until the AmountOverdue and all other amounts due have been paid in full.14. INTELLECTUAL PROPERTY14.1. All patents, trademarks, copyrights, designs, know-how, tradesecrets, improvements and any other intellectual property(Intellectual Property) in the Goods and Services remain thesole property of the Supplier at all times and the Buyer agreesthat it will not infringe any of the Supplier's IntellectualProperty rights.14.2. All drawings, technical specifications and Intellectual Propertysupplied or made available to the Buyer by the Supplier aresubject to copyright and strictly confidential. The Buyer must not:(a) communicate any details of any drawings or technicalspecifications to any third party without the Supplier's prior writtenconsent; or (b) make any copies of or use the drawings or technicalspecifications for any purpose other than expressly authorised inwriting.15. TAXES15.1. In this condition 15, a word or expression defined in the A NewTax System (Goods and Services Tax) Act 1999 (Cth) has themeaning given to it in that act.15.2. If a party makes a supply under or in connection with thisagreement in respect of which GST is payable, the considerationfor the supply but for the application of this condition 15.2 (GSTexclusive consideration) is increased by an amount equal to theGST exclusive consideration multiplied by the rate of GSTprevailing at the time the supply is made.15.3. If a party must reimburse or indemnify another party for a loss,cost or expense, the amount to be reimbursed or indemnified isfirst reduced by any input tax credit the other party is entitled to forthe loss, cost or expense, and then increased in accordance withcondition 15.2.15.4. Any consideration to be paid or provided for a supply made underor in connection with this agreement, unless specifically describedin this agreement as GST inclusive, does not include an amount onaccount of GST.16. PRIVACY16.1. The parties agree to be bound by all applicable Australian privacylegislation. The Buyer consents to the Supplier’s use anddisclosure of personal information of the Buyer or any of theBuyer's directors, officers, principal, guarantors, employees oragents for the purposes of obtaining and/or maintaining acommercial and/or consumer credit report and for registering andamending financing statements under the PPS Act.17. PPS ACT17.1. These Terms and Conditions constitute a security agreement.17.2. The Buyer grants to the Supplier a security interest in the Goodsand their proceeds, as security for payment of the Purchase Priceand all other amounts payable by the Buyer to the Supplier and forthe Buyer's performance of its other obligations to the Supplier.17.3. The Buyer agrees: (a) at the Supplier's request, to promptly do allthings (including signing any documents) and provide allassistance and information necessary to ensure that the Supplierhas a perfected first ranking security interest in all Goods (and theproceeds of those Goods) at the Buyer's cost; and (b) that theSupplier may register a financing statement or financing changestatement at the Buyer's cost and do anything else required toperfect its security interest in the security interest granted underthese Terms and Conditions.17.4. The Buyer waives its right to receive notice from the Supplier ofany verification statement under section 157 of the PPS Act.17.5. The following provisions of the PPS Act do not apply: section 95(notice of removal of accession); subsection 121(4) (enforcementof liquid assets); section 125 (obligation to dispose of or retaincollateral); section 130 (notice of disposal); paragraph 132(3)(d)(contents of statement of account); subsection 132(4) (statement ofaccount if no disposal); section 135 (notice of retention); section142 (redemption of collateral); and section 143 (reinstatement ofsecurity agreement).17.6. To the extent permitted by law, the Buyer will indemnify theSupplier on demand, for all costs and expenses incurred inconnection with: (a) regi

Lusty EMS Pty Ltd ACN 073 705 263, Transport Connection Pty Ltd ACN 159 813 733, MaxiPARTS Pty Ltd ACN 110 786 215, MaxiPARTS (QLD) Pty Ltd ACN 082 691 423, Colrain (QLD) Pty Ltd ACN 084 354 496 and Colrain (Albury) Pty Ltd ACN 111 881 951. Minor Me