Terms and Conditions for Advanced Maintenance Australia Pty Ltd
1. Definitions
1.1 “Seller” shall mean Advanced Maintenance Australia Pty Ltd.
1.2 “Customer” shall mean the Customer or any person acting on behalf of and with the authority
of the Customer.
1.3 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the
debts of the Customer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by the Seller to the Customer (and where the context
so permits shall include any supply of Services as hereinafter defined).
1.5 “Services” shall mean all services supplied by the Seller to the Customer and includes
any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
1.6 “Price” shall mean the cost of the Goods as agreed between the Seller and the Customer
subject to clause 4 of this contract.
2. Acceptance
2.1 Any instructions received by the Seller from the Customer for the supply of Goods and/or
the Customer’s acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and conditions
contained herein.
2.2 Where more than one Customer has entered into this agreement, the Customer’s shall be
jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions
are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent
of the manager of the Seller.
2.4 None of the Seller’s agents or representatives are authorised to make any representations,
statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by
any such unauthorised statements.
2.5 The Customer undertakes to give the Seller not less than fourteen (14) days prior written
notice of any proposed change in the Customer’s name and/or any other change in the Customer’s details (including but
not limited to, changes in the Customer’s address, facsimile number, or business practice).
3. Goods
3.1 The Goods are as described on the invoices and quotation as provided by the Seller to the
Customer.
4. Price And Payment
4.1 At the Seller’s sole discretion;
(a) The Price shall be as indicated on invoices provided by the Seller to the Customer in
respect of Goods supplied; or
(b) The Price of the Goods shall (subject to clause 4.2) be the Seller’s quoted price which
shall be binding upon the Seller provided that the Customer shall accept in writing the Seller’s quotation within
fourteen (14) days.
4.2 The Seller may by giving notice to the Customer (verbally or otherwise) at
any time before delivery increases the Price of the Goods to reflect any variation beyond the reasonable control of
the Seller, which increases the cost of the Goods/Services by more than 10% of the quoted Price.
4.3 Time for payment for the Goods shall be of the essence and will be stated on the invoice,
quotation or any other order forms. If no time is stated then payment shall be on delivery of the Goods.
4.4 The Seller may withhold delivery of the Goods until the Customer has paid for them, in which
event payment shall be made before the delivery date.
4.5 At the Seller’s sole discretion, for certain approved Customers payment will be due thirty
(30) days following the date of the invoice.
4.6 Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by direct
credit, or by any other method as agreed to between the Customer and the Seller.
4.7 The Price shall be increased by the amount of any GST and other taxes and duties which may
be applicable, except to the extent that such taxes are expressly included in any quotation given by the Seller.
5. Delivery Of Goods / Services
5.1 Delivery of the Goods shall be made to the Customer’s address. The Customer shall make
all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the
Goods shall be made to the Customer at the Seller’s address.
5.2 Delivery of the Goods to a carrier, either named by the Customer or failing such naming
to a carrier at the discretion of the Seller for the purpose of transmission to the Customer, is deemed to be a
delivery of the Goods to the Customer.
5.3 The costs of carriage and any insurance which the Customer reasonably directs the Seller
to incur shall be reimbursed by the Customer (without any set-off or other withholding whatever) and shall be due on
the date for payment of the Price. The carrier shall be deemed to be the Customer’s agent.
5.4 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery
to the Customer for the purposes of this agreement.
5.5 The failure of the Seller to deliver shall not entitle either party to treat this contract
as repudiated.
5.6 The Seller shall not be liable for any loss or damage whatsoever due to failure by the
Seller to deliver the Goods (or any of them) promptly or at all.
6. Risk
6.1 If the Seller retains property in the Goods nonetheless, all risk for the Goods passes
to the Customer on delivery.
6.2 If any of the Goods are damaged or destroyed prior to property in them passing to the
Customer, the Seller is entitled, without prejudice to any of its other rights or remedies under these Terms and
Conditions of Trade (including the right to receive payment of the balance of the Price for the Goods), to receive
all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under the
Contract. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights
to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
7. Customer’s Disclaimer
7.1 The Customer hereby disclaims any right to rescind, or cancel the contract or to sue for
damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Seller
and the Customer acknowledges that he buys the Goods relying solely upon his own skill and judgement and that the
Seller shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty
given by the Manufacturer which warranty shall be personal to the Customer and shall not be transferable to any
subsequent Customer.
8. Defect/Returns
8.1 The Customer shall inspect the Goods on delivery and shall within ten (10) days of
delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description
or quote. The Customer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following
delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these
provisions, the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from
any defect or damage.
8.2 For defective Goods, which the Seller has agreed in writing that the Customer is entitled
to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing
the Goods provided that the Customer has complied with the provisions of clause 8.1
8.3 The Seller may (in its discretion) accept the Goods for credit but this may incur a
restocking fee of 20% of the value of the returned Goods plus any freight.
9. Warranty
9.1 For Goods not manufactured by the Seller, the warranty shall be the current warranty provided
by the manufacturer of the Goods. The Seller shall be under no liability whatsoever, except for the express conditions
as detailed and stipulated in the manufacturers warranty.
10. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
10.1 Nothing in this agreement is intended to have the affect of contracting out of any applicable
provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories
of Australia, except to the extent permitted by those Acts where applicable.
11. Intellectual Property
11.1 Where any designs or specifications have been supplied by the Customer for manufacture by
or to the order of the Seller then the Customer warrants that the use of those designs or specifications for the
manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party.
12. Default & Consequences Of Default
12.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until
the date of payment at a rate of 2.5% per calendar month and shall accrue at such a rate after as well as before any
judgement.
12.2 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify
the Seller from and against all the Seller’s costs and disbursements including on a solicitor and own client basis and
in addition all of the Seller’s nominees costs of collection.
12.3 Without prejudice to any other remedies the Seller may have, if at any time the Customer is
in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of
Goods to the Customer and any of its other obligations under the terms and conditions. The Seller will not be liable to
the Customer for any loss or damage the Customer suffers because the Seller exercised its rights under this clause.
12.4 If any account remains unpaid at the end of the second month after supply of the goods or
services the following shall apply: An immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall
be levied for administration fees which sum shall become immediately due and payable.
12.5 In the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Customer
will be unable to meet its payments as they fall due; or
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters
into an arrangement with creditors, or makes an assignment
for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person
is appointed in respect of the Customer or any asset of the Customer; then
without prejudice to the Seller’s other remedies at law
(i) the Seller shall be entitled to cancel all or any part of any order of the
Customer which remains unperformed in addition to and without prejudice to any
other remedies; and
(ii) all amounts owing to the Seller shall, whether or not due for payment,
immediately become payable.
13. Title
13.1 It is the intention of the Seller and agreed by the Customer that property in the Goods
shall not pass until:
(a) The Customer has paid all amounts owing for the particular Goods, and
(b) The Customer has met all other obligations due by the Customer to the Seller
in respect of all contracts between the Seller and the Customer, and that the
Goods shall be kept separate until the Seller shall have received payment and
all other obligations of the Customer are met.
13.2 It is further agreed that:
(a) Until such time as ownership of the Goods shall pass from the Seller to the
Customer the Seller may give notice in writing to the Customer to return the
Goods or any of them to the Seller. Upon such notice the rights of the Customer
to obtain ownership or any other interest in the Goods shall cease.
(b) If the Customer fails to return the Goods to the Seller then the Seller or
the Seller’s agent may enter upon and into land and premises owned, occupied or
used by the Customer, or any premises as the invitee of the Customer, where the
Goods are situated and take possession of the Goods, without being responsible
for any damage thereby caused.
14. Security And Charge
14.1 Notwithstanding anything to the contrary contained herein or any other rights which the
Seller may have howsoever:
(a) Where the Customer and/or the Guarantor (if any) is the owner of land,
realty or any other asset capable of being charged, both the Customer and/or the
Guarantor agree to mortgage and/or charge all of their joint and/or several
interest in the said land, realty or any other asset to the Seller or the
Seller’s nominee to secure all amounts and other monetary obligations payable
under the terms and conditions. The Customer and/or the Guarantor acknowledge
and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge
where appropriate a caveat, which caveat shall be released once all payments and
other monetary obligations payable hereunder have been met.
(b) Should the Seller elect to proceed in any manner in accordance with this
clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the
Seller from and against all the Seller’s costs and disbursements including legal
costs on a solicitor and own client basis.
(c) To give effect to the provisions of clause [14.1 (a) and (b)] inclusive
hereof the Customer and/or the Guarantor (if any) do hereby irrevocably nominate
constitute and appoint the Seller or the Seller’s nominee as the Customer’s
and/or Guarantor’s true and lawful attorney to execute mortgages and charges
(whether registerable or not) including such other terms and conditions as the
Seller and/or the Seller’s nominee shall think fit in his/her/its/their absolute
discretion against the joint and/or several interest of the Customer and/or the
Guarantor in any land, realty or asset in favour of the Seller and in the
Customer’s and/or Guarantor’s name as may be necessary to secure the said
Customer’s and/or Guarantor’s obligations and indebtedness to the Seller and
further to do and perform all necessary and other acts including instituting any
necessary legal proceedings, and further to execute all or any documents in the
Seller’s absolute discretion which may be necessary or advantageous to give
effect to the provisions of this clause.
15. Cancellation
15.1 The Seller may cancel these terms and conditions or cancel delivery of Goods at any time
before the Goods are delivered by giving written notice. The Seller shall not be liable for any loss or damage whatsoever
arising from such cancellation.
16. Privacy Act 1988
16.1 The Customer and/or the Guarantor/s agree for the Seller to obtain from a credit-reporting
agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit
provided by the Seller.
16.2 The Customer and/or the Guarantor/s agree that the Seller may exchange information about
Customer and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer
credit report issued by a reporting agency for the following purposes:
(a) To assess an application by Customer;
(b) To notify other credit providers of a default by the Customer;
(c) To exchange information with other credit providers as to the status of this
credit account, where the Customer is in default with other credit providers;
and
(d) To assess the credit worthiness of Customer and/or Guarantor/s.
16.3 The Customer consents to the Seller being given a consumer credit report to collect overdue
payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Customer agrees that Personal Data provided may be used and retained by the Seller for
the following purposes and for other purposes as shall be agreed between the Customer and Seller or required by law from
time to time:
(a) provision of Services & Goods;
(b) marketing of Services and or Goods by the Seller, its agents or distributors
in relation to the Services and Goods;
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or
status in relation to provision of Services/Goods;
(d) processing of any payment instructions, direct debit facilities and/or
credit facilities requested by Customer; and
(e) enabling the daily operation of Customer’s account and/or the collection of
amounts outstanding in the Customer’s account in relation to the Services and
Goods.
16.5 The Seller may give, information about the Customer to a credit reporting agency for the
following purposes:
(a) to obtain a consumer credit report about the Customer; and or
(b) allow the credit reporting agency to create or maintain a credit information
file containing information about the Customer.
17. Unpaid Seller’s Rights To Dispose Of Goods
17.1 In the event that:
(a) the Seller retains possession or control of the Goods; and
(b) payment of the Price is due to the Seller; and
(c) the Seller has made demand in writing of the Customer for payment of the
Price in terms of this contract; and
(d) the Seller has not received the Price of the Goods, then, whether the
property in the Goods has passed to the Customer or has remained with the
Seller, the Seller may dispose of the Goods and may claim from the Customer the
loss to the Seller on such disposal.
18. Lien
18.1 Where the Seller has not received or been tendered the whole of the price, or the payment
has been dishonoured, the Seller shall have:
(a) a lien on the goods;
(b) the right to retain them for the price while the Seller is in possession of
them;
(c) a right of stopping the goods in transit whether or not delivery has been
made or ownership has passed; and
(d) a right of resale,
(e) the foregoing right of disposal, provided that the lien of the Seller shall
continue despite the commencement of proceedings or judgement for the price
having been obtained
19. General
19.1 If any provision of these terms and conditions shall be invalid, void or illegal or
unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected,
prejudiced or impaired.
19.2 All Goods supplied by the Seller are subject to the laws of the State in which the Goods
and/or Services have been provided and the Seller takes no responsibility for changes in the law which affect the
Goods supplied.
19.3 The Seller shall be under no liability whatsoever to the Customer for any indirect loss
and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Seller of these
terms and conditions.
19.4 In the event of any breach of this contract by the Seller the remedies of the Customer
shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the
Services.
19.5 The Customer shall not set off against the Price amounts due from the Seller.
19.6 The Seller may license or sub-contract all or any part of its rights and obligations
without the Customer’s consent.
19.7 The Seller reserves the right to review these terms and conditions at any time and from
time to time. If, following any such review, there is to be any change in such terms and conditions, that change will
take effect from the date on which the Seller notifies the Customer of such change.
19.8 Neither party shall be liable for any default due to any act of God, war, terrorism,
strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control
of either party.