K&R HYDRAULICS PTY LIMITED
ABN 86 003 658 964
TERMS AND CONDITIONS OF TRADE
In these Conditions:
“Conditions” means these Terms and Conditions of Trade;
“Customer” means a person, firm or corporation, jointly and severally if there is more than one, acquiring goods or services from K & R Hydraulics;
“Goods” means goods supplied by K & R Hydraulics to the customer;
“GST” means any goods or services or value added tax, including GST within the meaning of the A New Tax System (Goods and Services Tax) Act 1999;
“K & R Hydraulics” means K & R Hydraulics Pty Limited ABN 86 003 658 964 of 191 Old Maitland Road, Hexham, NSW
“Money” includes money whenever due or payable to K & R Hydraulics by the Customer on any account whatsoever;
“Price” means the price stated in K & R Hydraulics tender, quote, price schedule or invoice which is subject to clause 3;
“Services” means services supplied by K & R Hydraulics to the customer.
2. Basis of Contract
2.1 The conditions apply exclusively to every sale of Goods or Services by K & R Hydraulics to the customer and cannot be varied or supplanted by any other terms or conditions, unless agreed by K & R Hydraulics in writing.
2.2 Any quotation, tender, price schedule or estimate provided by K & R Hydraulics to the customer concerning the proposed supply of Goods or Services is valid for 30 days and is an invitation only to the Customer to place an order based upon that quotation, tender, price schedule or estimate.
3.1 Prices for the supply of Goods and Services exclude;
(a) GST; and
(b) The cost of packing, freight, insurance and other charges arising from the point ofdespatch of the Goods to the point of delivery.
3.2 IIn addition to the Price the Customer must pay to K & R Hydraulics any amounts specified in clauses 3.1 (a) and (b).
3.3 If the customer requests any variation to the Agreement, K & R Hydraulics may increase the Price to account for the variation.
3.4 Where there is any change in the costs incurred by K & R Hydraulics in relation to the Goods or Services, K & R Hydraulics may vary the Price for Goods or Services on order to take account of any such change.
4.1 Unless otherwise agreed, payment of the purchase price must be made in full on the delivery of the goods or the completion of services.
4.2 If credit terms are provided by K & R Hydraulics, payment must be made by the end of the month, following the month in which the invoice was issued. Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
4.3 Credit terms may be revoked or amended at the sole discretion of K & R Hydraulics immediately upon giving notice to the Customer.
4.4 K & R Hydraulics will provide a tax invoice for GST purposes. Any other payment terms must be agreed in writing and signed by K & R Hydraulics.
5. Payment Default
5.1 If the Customer defaults in payment by the due date of any amount payable to K & R Hydraulics, then all money owing or payable by the Customer to K & R Hydraulics, becomes immediately due and payable without the requirement of any notice to the Customer, and K & R Hydraulics may, without prejudice to any other remedy available to it:
(a) Charge the Customer interest at the rate equal to and varying with that charged by THE AUSTRALIAN AND NEW ZEALAND BANKING GROUP (“ANZ”) on normal business customer’s unsecured overdraft accounts on any sum due, plus 2 per cent for the period from the duedate until the date of payment in full;
(b) Charge the Customer for all expenses and costs (including legal costs and disbursements on an indemnity basis) incurred by it resulting from the default and in taking whatever action it deems appropriate to recover any sum due;
(c) Cease or suspend for such period as K & R Hydraulics thinks fit, supply of any further Goods and Services to the Customer.
(d) By notice in writing to the Customer, terminate or suspend any contract with the Customer then on foot without incurring any liability to the Customer by reason of such termination or suspension; without effect on the accrued rights of K & R Hydraulics under any contract.
5.2 Causes 5.1 (c) and (d) may also be relied upon, at the option of K & R Hydraulics:
(a) Where the Customer is an individual and becomes bankrupt and enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
(b) Where the Customer is a corporation and it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, provisional liquidator, administrator, receiver or receiver and manager appointed, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up the Customer.
6. Retention of Title
6.1 Until full payment in cleared funds is received by K & R Hydraulics for all Goods and Services supplied by it to the Customer, as well as all other amounts owing to K & R Hydraulics by the Customer;
(a) Title and property in all Goods remain vested in K & R Hydraulics and do not pass to the Customer;
(b) The Customer must hold the Goods as fiduciary bailee and agent for K & R Hydraulics;
(c) The Customer must keep the Goods separate from its goods and maintain the labeling and packaging of K & R Hydraulics;
(d) The Customer is required to hold the proceeds of any sale of the Goods on trust for K & R Hydraulics in a separate account, however failure to do so will not affect the Customer’s obligation to deal with the proceeds as trustee;
(e) Be and remove them, notwithstanding that they may have been attached to other Goods not the property of K & R Hydraulics, and for this purpose the Customer irrevocably licences K & R Hydraulics to enter such premises and also indemnifiesK & R Hydraulics from and against all costs, claims, demands or actions by any party arising from such action.
7. Intellectual Property
7.1 Documents pertaining to the Goods or Services provided by K & R Hydraulics, such as illustrations, drawings and measurements are only approximate and are not binding.
7.2 Costs and estimates, drawings and other documents relating to any quote, tender, price schedule or estimate must not be made available to third parties.
8. Risk and Insurance
8.1 The risk in the Goods and all insurance responsibility for theft, damage or otherwise in respect of the Goods passes to the Customer immediately on the Goods being dispatched from K & R Hydraulics’ premises or supplier.
9. Performance of Contract
9.1 Any period or date for delivery of Goods or provisions of Services stated by K & R Hydraulics is intended as an estimate only and is not a contractual commitment. K & R Hydraulics will use reasonable endeavors to meet any estimated dates for delivery of the Goods or completion of the Services.
9.2 A completed driver’s manifest or delivery docket whether signed by the driver or by the Customer or its employee or agent will be proof of delivery of the Goods invoiced.
9.3 K & R Hydraulics may, at its discretion make part delivery of the Goods or Services.
10. Right to Sub-Contract
10.1 K & R Hydraulics reserves the right to sub-contract with any other person (whether associated with K & R Hydraulics or otherwise) for the performance of any part of this contract.
11. Warranty and Limitation of Liability
11.1 (a) Certain legislation has the effect of giving the Customer certain rights against K & R Hydraulics which cannot be excluded, restricted or modified by agreement between the Customer and K & R Hydraulics. The provisions of this contract must therefore be read having regard to such legislation to the extent that it may be applicable and nothing in this Contract shall have the effect of excluding, restricting or modifying such rights.
(b) Subject to the rights conferred upon purchasers and the restrictions imposed upon suppliers (to the extent that such rights and restrictions may be applicable) as set out in clause 11 (a) above;
(i) K & R Hydraulics shall be under no liability, to the Customer for any loss (including but not limited to loss of profits and consequential loss) or damage to persons or property or death or injury caused by any act or omission in any way related to or arising out of the performance or non-performance of anything provided for or contemplated by or in
Pursuance of this Contract (including negligent acts or omissions) of K & R
Hydraulics, its servants or agents.
(ii) Without limiting the generality of the foregoing K & R Hydraulics shall not be liable for any defects in the equipment or faulty or negligent workmanship, advice, or services except as specifically provided for in clause 11.1 (c) hereof.
(iii) The Customer hereby agrees to indemnify K & R Hydraulics against any claims made against K& R Hydraulics by any third party in respect of any such loss, damage, death or injury.
(iv) Representations and agreements not expressly contained herein or incorporated herein by reference shall not be binding upon K & R Hydraulics as conditions, warranties or otherwise.
(v) All conditions, warranties and representations on the part of K & R Hydraulics whether express or implied, statutory or otherwise, whether collateral or antecedent hereto or otherwise with the exception of the express warranty set out in clause 11.1 (c) hereof are hereby expressly excluded.
(vi) This contract constitutes the whole of the agreements and understandings between the parties with respect to the subject matter hereof and all variations, additions and modifications to this contract shall be in writing and shall be signed by both parties.
(c) Subject to the foregoing provisions of this clause the company undertakes to make good, by repair or at K & R Hydraulics’s option by replacement, defects (fair wear and tear excluded) in equipment supplied by K & R Hydraulics which arise solely from faulty materials or workmanship, provided that a claim in writing is made to K & R Hydraulics within three months of delivery and the defective part or defective equipment is promptly returned by the Customer free to K & R Hydraulics’s engineering works failing which any claim hereunder shall be deemed to be waived and absolutely barred. The repaired or new parts will be made available free of charge at K & R Hydraulics’s engineering works. This warranty shall not apply to any defect arising from misuse or failure to comply with K & R Hydraulics’s or manufacturers instructions and from fair wear and tear or to any part or parts (provided proper maintenance and servicing has been carried out) which ordinarily would be expected to need replacement within three months.
(d) K & R Hydraulics, its servants and agents shall not be under any liability whatsoever for any loss or damage to the Customers property whilst such property or materials are in K & R Hydraulics’s possession. Such property is stored at the risk and expense of the Customer.
11.2 Section 68A of the Trade Practices Act 1974 as amended (The act’) – The Customer’s attention is drawn to section 68A of the Act, which has the effect of enabling suppliers in respect of contracts for the supply of goods or services (not being goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption) to limit their liability in certain circumstances for breach of certain conditions and warranties implied by the Act.
11.3 Subject to the qualifications contained in Section 6BA of the Act, should K & R Hydraulics be liable for breach of a condition or warranty implied by Division 2 of Part V of the Act (not being a condition or warranty implied by section 69 of the Act), K & R Hydraulics’s liability for such breach shall be limited to:-
(a) In the case of goods, any one of the following as determined by K & R Hydraulics;
(b) the replacement of the goods or the supply of equivalent goods;- or
(c) the repair of the goods; or
(d) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(e) The payment of the cost of having the goods repaired.
11.4 In the case of services (if applicable) any one of the following as determined by K & R Hydraulics;
(a) The supplying of the services again; or
(b) The payment of the cost of having the services supplied again.
12. Cancellation & Return
12.1 If, through circumstances beyond its control, K & R Hydraulics is unable to affect delivery or provision of Goods or Services, then K & R Hydraulics may cancel the Customers order (even if it has already been accepted) by notice in writing to the Customer.
12.2 Orders that have been accepted by K & R Hydraulics may not be cancelled by the Customer after the Goods have been dispatched by K & R Hydraulics.
12.3 Orders for goods that are not stocked items may not be cancelled after an order for the Goods has been placed by K & R Hydraulics.
12.4 Subject to clause 12.3, Goods returned for credit will only be accepted with the prior written consent of K & R Hydraulics and (where applicable) may only be returned by transport approved by K & R Hydraulics. A restocking fee of 20% of the Price may be charged to the Customer.
13.1 K & R Hydraulics is bound by the Privacy Amendment (Private Sector) Act 2000 and takes steps to ensure that all personal information obtained in connection with the Customer will be appropriately collected, stored, used, disclosed and transferred in accordance with the National Privacy Principles. Such information may be accessed by request to K & R Hydraulics in accordance with the Act.
13.2 K & R Hydraulics requires that the Customer comply with any personal information supplied to it by K & R Hydraulics in connection with this Agreement.