Terms & Conditions
These terms and conditions apply to Goods supplied by the Company to the Customer except where they are varied by notice in writing by the Company to the Customer prior to the supply of any Goods.
(a) “ACL” means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010;
(b) “Claim” includes any actual or potential claim, action, right to recover, cost, demand, liability, damage, loss or proceedings;
(c) “C.O.D” means cash on delivery of the Goods.
(d) “Company” means McIntyre Equipment Pty Ltd (ACN 070 419 304) and its related bodies corporate (within the meaning of the Corporations Act 2001);
(e) “Customer” means the person purchasing the Goods from the Company subject to these Terms and conditions;
(f) “Goods” means any Goods, products, services or materials to be supplied by the Company pursuant to the Contract.
(g) “Contract” means any contract between the Company and the Customer for the supply of Goods that is in writing, accepted by the Company and subject to these terms and conditions.
(h) “Delivery” means delivery, deposit, supply or installation and “Delivered” has the corresponding meaning.
(i) “GST” has the meaning given to the term in the A New Tax System (Goods and Services Tax) Act 1999;
(j) “Implied Terms” means all conditions, guarantees and warranties expressed in or implied by statue (including the ACL), the common law, equity, trade, custom, usage or otherwise;
(k) “Intellectual Property” means all intellectual property in and relating to the Goods including trademarks, patents, copyright, registered designs and the like;
(l) “PMSI” means a Purchase Money Security Interest;
(m) “PPSA” means the Personal Property Securities Act 2009;
(n) “PPSR” means the personal property securities register established under the PPSA;
Incorporation of Terms & Conditions
(a) The only terms that bind the Company are:
(i) these terms and conditions;
(ii) those agreed to in writing by the Company; and
(iii) those, if any, which are imposed by law and which cannot be excluded by these terms and conditions.
(b) Any term in these terms and conditions that is capitalised but not otherwise defined in these terms and conditions has the meaning given to the term in the PPSA.
(c) The use of examples does not limit the meaning of the general term or concept being exemplified.
(d) The term “includes” and similar expressions are not words of limitation.
(e) A person includes an individual and a body corporate.
(f) Words importing the singular number include the plural and vice versa.
(g) A statute, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of it.
(h) These terms and conditions may only be varied by agreement in writing between the Company and the Customer.
(i) These terms and conditions supersede and exclude all prior and other discussions, representations and arrangements between the Company and the Customer.
Prices and Terms of payment
(a) Unless otherwise specifically stated, the prices apply ex the Company’s works exclusive of GST; packing, freight, postage and insurance.
(b) GST will be added to all prices at the prevailing statutory rate (where applicable).
(c) Unless otherwise stated, the terms of payment shall be C.O.D.
(d) Payment by credit card will incur an additional service fee.
(e) The time for payment is of the essence.
(f) If the Customer does not pay for the Goods in full on time then the Company:
(i) may treat the Contract as repudiated;
(ii) may suspend delivery of the Goods until payment is made in full;
(iii) may require payment of interest on the outstanding amount at a rate of 18% per annum from the date payment is due until payment is made in full; and
(iv) will have a specific lien, including a right of sale, over the Goods until the invoice is paid in full, in which case the Customer will not be entitled to make any deduction from the amount of the invoice in respect of any setoff or counterclaim, and clauses 12 and 13 will apply.
(g) The Company reserves its right to vary the terms of payment and to require cash payment in full prior to delivery should the Company consider the creditworthiness of the Customer to be unsatisfactory.
Goods and Services tax
Incomplete Shipment/Defective Goods
(a) The Customer waives any claim for shortage of any Goods delivered if a claim in respect for short delivery has not been lodged with the Company within 7 days from the date of receipt of Goods by the Customer.
(b) The delivery times made known to the Customer are estimates only and the Company is not be liable for late delivery or non-delivery.
(c) The Company is not be liable for any loss, damage or delay occasioned to the Customer from late or non-delivery or late installation of the Goods.
(d) The Company may at its option deliver the Goods to the Customer in any number of instalments unless there is a specific term of the Contract that the Customer will not take delivery by instalments.
(e) If the Company delivers any of the Goods by instalments, and any one of those instalments is defective for any reason:
(i) the Contract is not repudiated; and
(ii) the defective instalment is a severable breach that gives rise only to a claim for compensation. All claims must be in writing and made within seven (7) days of receipt of the Goods by the Customer.
Return of Goods
(a) Freight shall be to the account of the Customer.
(b) Normally stocked items: – All returns subject to agreement of Company’s approval prior to the Goods being returned. The value to be credited is to be the original invoice less 12.5% restocking charge.
(c) Indented Non Stock Items: – The return of inventory purchased specifically at a customer’s request requires the approval of the Managing Director. Restocking charges will be based on costs incurred by the Company to return the Goods to the overseas or domestic supplier. In any case, Goods will not be accepted back if not returned within 30 days unless specified earlier.
Retention of Title
(a) The Company retains legal and equitable title to the Goods until the Company has received payment in full both for the Goods and of all other sums owing to the Company by the Customer whatsoever.
(b) The Customer is a bailee of the Goods until such time as property in them passes to the Customer and the Customer agrees:
(i) not to sell or otherwise dispose of the Goods without the written consent of the Company;
(ii) not to allow any person to have or acquire any security interest in the Goods;
(iii) to insure the Goods for the greater of their full insurable or replacement value with an insurer licensed or authorised to conduct the business of insurance in the place where the Customer carries on business;
(iv) not to remove, deface or obliterate any identifying plate, mark or number on any of the Goods;
(v) to keep the Goods separate and in good condition clearly showing the Company’s ownership of them;
(vi) At its cost deliver up the Goods to the Company on demand.
(c) If the Customer sells the Goods prior to property in them passing to the Customer, any sale is as the Company’s agent and the Customer shall hold the proceeds to the extent of the amount owing, on trust for the Company. Notwithstanding this, the Company shall be entitled to maintain an action against the Customer for the purchase price.
(i) If prior to property in them passing to the Customer, the Customer uses the Goods in some manufacturing or construction process and the end-product is sold, then the Customer shall hold such part of the proceeds as related to the Goods on trust for the Company. Such part is deemed to be equal to the amount owing by the Customer to the Company at the time of the receipt of such proceeds.
(ii) If the Customer fails to pay for the Goods on time, the Company may recover possession of the Goods from any site owned, possessed or controlled by the Customer and the Customer agrees that the Company and/or its representatives have an irrevocable licence to enter any site for this purpose. The Company will not be liable for any costs, losses, damages or other expenses suffered by the Customer or any third party in respect of the Company recovering possession and removing the Goods.
(a) The Contract constitutes a Security Agreement.
(b) The Company (as a Secured Party) holds a continuing:
(i) Security Interest over all of the present and after acquired Goods supplied by the Company to the Customer and any proceeds of the sale of such Goods; and
(ii) PMSI over any present and after acquired Goods supplied by the Company to the Customer on terms of credit or in which title has not passed to the Customer in accordance with clause 12.1, and any proceeds of the sale of such Goods, in order to secure payment and/or performance of any other obligation by the Customer under the Contract and all future Contracts.
(c) The Goods and proceeds of the sale of the Goods referred to in clauses 13.2(a) and (b) are together the “Collateral”.
(d) Any Security Interest and/or PMSI held by the Company will be given priority to the fullest extent permitted by the PPSA.
(e) In the event that the Collateral is sold, otherwise disposed of, processed, commingled, mixed or acceded with other Goods, the Company will continue to hold a Security Interest and/or PMSI in the Collateral in accordance with the PPSA.
(f) Until title in the Collateral has passed to the Customer in accordance with clause 12.1, the Customer must:
(i) keep the Collateral free from any other charge, lien, Security Interest and PMSI; and
(ii) not otherwise deal with the Collateral in any way that may prejudice any of the Customer’s rights or remedies under the Contract or the PPSA.
(g) The Customer must:
(i) sign any documents and provide such information which the Company may reasonably require to register, amend or update a Financing Statement or Financing Change Statement in relation to a Security Interest or PMSI on the PPSR;
(a) The Implied Terms are expressly excluded and/or limited to the maximum extent permitted by law.
(b) If and to the extent that an Implied Term cannot be excluded and the Implied Term is breached then:
(i) if the Implied Term is implied by the ACL, then the remedies available to the Customer are determined in accordance with the ACL; and
(ii) the remedies otherwise available to the Customer (if any) are limited to the maximum extent permitted by law and the Customer will have no other Claim against the Company.
(c) If the ACL applies to the supply of the Goods and any provision of the Contract would, but for this clause 14.3, breach the ACL, then such provision will be deemed to be amended so that it complies with the ACL and will not be void or unenforceable. For example:
(i) if any timeframe imposed on the Customer breaches the ACL, such timeframe will be deemed to be replaced with the words “within a reasonable time”; and
(ii) if the rights or remedies available (or otherwise) to the Customer breach the ACL, such rights or remedies will be deemed to be replaced with those available under the ACL.
(a) The Company reserves the right to make a reasonable charge for storage of the Goods if the Customer does not provide delivery instructions within 14 days of a request by the Company for such instructions. The parties agree that the Company may charge for storage from the first day after the Company requests the Customer to provide delivery instructions.
(b) Storage is completely at the Customer’s risk as regards loss or damage caused to the Goods or by it.
(c) The Company is not responsible for any failure or other problem attributable in whole or in party to a product which has been modified, including any modification of the delivered hardware, software and/or calibration.
(d) The Customer must satisfy the Company (acting reasonably) that the defect being claimed under the warranty is attributable to a warrantable failure, and is not attributable to inadequate maintenance, inadequate repairs or modifications undertaken by persons other than the Company or the Company’s representative without the written agreement of the Company. (d) The Company expressly disclaims any representations or warranties concerning whether the services and products will produce any specific result or perform any particular function.
Limitation of Liability
(a) indirect or consequential loss, loss of profit, loss of business opportunity or loss which, if not for this clause 17, may give rise to a Claim for special damages; and (b) loss or damage arising from or in connection with:
(i) the Customer’s negligence or default under the Contract, including the breach of any warranties provided by it under the Contract, or the negligence or default of its employees, contractors or agents;
(ii) The Company’s negligence or default under the Contract, or that of its employees, contractors or agents;
(iii) any defect in material or workmanship, or any other defect in or unsuitability for use of the Goods;
(iv) the performance of the Goods;
(v) the manufacture, sale, storage, Delivery, export, import or use of the Goods;
(vi) any other fact, matter or thing relating to the Goods;
(vii) any error, inconsistency or omission in information supplied to the Purchaser before or after the date of the Contract; and
(viii) any other circumstance described in these terms and conditions. The Customer indemnifies and must keep indemnified the Company against all Claims made, or which may be made, against the Company or which the Customer may incur as a result of or in connection with any loss or damage referred to in this clause 15.
Variation of Terms and Conditions
(a) The Customer defaults if the Customer: –
(i) breaches these terms and conditions;
(ii) being a natural person, dies or commits an act of bankruptcy;
(iii) being a Company, takes or shall have taken against it any action for the winding up of the Company or the placing of the Company under official management or receivership;
(iv) allows any judgment against him or it to remain unsatisfied for 14 days without taking formal steps to have same set aside;
(v) has execution levied against any of his or its assets.
(b) If the Customer defaults then the Company, without prejudice to any other rights or remedies open to it, may; –
(i) determine the Contract and/or suspend manufacture or delivery, installation, fitment, commissioning or testing of any Goods then outstanding;
(ii) retain any security given or monies paid by the Customer or available through the enforcement of guarantee of security bonds lodged, and apply this against the assessed loss and damages incurred by it in the performance of the Contract;
(iii) take possession of and/or remove any Goods supplied under the Contract for which payments has not been received;
(iv) take such steps, as it may deem necessary to mitigate the damages suffered, including putting to use, hiring out, sale or disposal of any Goods supplied, or to be supplied under the Contract, and in its possession.
(c) Any expenses, costs (including legal costs) and disbursements the Company incurs as a result of the Customer’s default are payable by the Customer on demand as a liquidated debt.
(a) In ordering equipment, apparatus or Goods to the Customer’s own design, the Customer guarantees that in making of them, the Company will not be liable for any infringement of Letters Patent, Trade Marks, Registered Designs or the like and agrees to indemnify the Company against any action, loss or damage that may be brought against or suffered by the Company for such manufacture.
(b) The Customer agrees not to use or disclose any confidential information that it receives from the Company unless the Customer receives the Company’s written consent or the use or disclosure is required by law.
(a) The Contract for sale of the Goods is made in the State of Queensland from which this document is issued. The parties submit all disputes arising between them to the courts of such state and any court competent to hear appeals from those courts of first instance.
(b) The Company’s failure to enforce or exercise any term of the Contract at any time will not constitute and will not be construed as, a waiver of such term and will in no way affect the Company’s right to later enforce or exercise it.
(c) If a term or condition of the Contract would, but for this clause, be unenforceable:
(i) the term or condition must be read down to the extent necessary to avoid that result; or
(ii) if it cannot be read down to that extent, it must be severed without altering the validity and enforceability of the remainder of the Contract.
(d) The Customer has not relied on any statement, representation, warranty, guarantee, advice, recommendation, information or service provided by the Company or any person on the Company’s behalf in respect of the Goods, except those expressly contained in the Contract.
(e) The Customer has and will maintain in full force and effect all things necessary in respect of the manufacture, development, use, Delivery, storage and any other dealing associated with the Goods, including export and import licences, authorisations, permits and consents and will pay all associated taxes, costs and fees.