TERMS AND CONDITIONS
These Terms and Conditions apply to the supply of goods and services to you by Carrfields Pty Ltd [ACN 155 462 516] trading as Carrfields Machinery unless otherwise agreed in writing.
1. CARRFIELDS GROUP
1.1 Carrfields Pty Ltd [ACN 155 462 516 trading as Carrfields Machinery (“the Seller”) is a member of the Carrfields Group. The Seller appoints Carrfields Limited (a company incorporated in New Zealand) as its agent for the purposes of administering and enforcing, and for invoicing and collecting payment under these Terms and Conditions. All rights, powers and entitlements granted to or conferred on the Seller under these Terms and Conditions may be exercised by Carrfields Limited or the Seller.
1.2 Carrfields Limited will issue to the Customer a monthly transaction statement showing all amounts owing by them to members of the Carrfields Group. Carrfields Limited may at any time in its sole discretion apply any credit balance owing by any member of the Carrfields Group to a customer in satisfaction of any amounts owing by that customer to any member of the Carrfields Group, whether or not such amount has fallen due for payment.
2. TERMS OF CONTRACT
2.1 The Seller will supply machinery and parts and any items attached to the machinery or parts and any replacements, alterations or additions, including any accessories to, spare parts for, or other goods supplied with or attached to the machinery or parts (“the Goods”) or services to the purchaser (“the Customer”) on these Terms and Conditions unless the Seller agrees in writing to change them.
2.2 The Seller will not be bound by any conditions included in the Customer’s Order unless it accepts them in writing.
2.3 If the Seller does not accept any conditions included in the Customer’s order and the Customer accepts delivery of Goods delivered under that order, those actions by the Customer will be deemed to be acceptance by the Customer of these Terms and Conditions notwithstanding anything that may be stated to the contrary in the Customer’s inquiries or on the Customer’s orders.
2.4 The Seller has the right to decline or cancel any orders to terminate any work which it has accepted if due to circumstances beyond the Seller’s control it would be impractical or uneconomic to fill the order, or if any information supplied by the Customer is materially incorrect.
2.5 These Terms and Conditions will prevail over and exclude all Acts or legal obligations to the extent permitted by law.
3.1 Unless otherwise agreed in writing the price for the Goods or services is stated in Australian dollars and shall be the current price charged by the Seller at the date of delivery. Unless otherwise agreed prices include GST.
3.2 Unless otherwise agreed in writing the price for machines includes the cost of delivery by the normal, rail, sea and air transport used by the Seller, but the cost of delivery for parts is an additional cost which is borne by the Customer. In addition, any extra cost of any special delivery or any special packaging for machines which is requested by the Customer may be added to the price.
3.3 Quoted prices may be altered at any time before delivery of Goods to the Customer if wages, salaries, costs of raw materials, freight charges, duty and / or exchange rate fluctuate before delivery.
3.4 The Seller may withdraw any quotation before it is accepted and in any event any quotation will lapse 30 days after it is given.
4.1 Unless otherwise agreed in writing the Customer must pay for the Goods in cash on delivery.
4.2 Unless otherwise agreed in writing the Customer must pay for Goods that are parts and for Services by the 20th day of the month following the date of invoice relating to those Goods or services.
4.3 The Seller may at its discretion require the Customer to pay a deposit.
4.4 Failure to pay for Goods on delivery may result in the delivery being stopped until the payment has been made. The Seller reserves the right to request from the Customer such guarantee or security as it may think desirable to secure to the Seller all sums due by the Customer and may refuse to supply further Goods until such security is given.
4.5 In the event of late payment (and to enable the extra cost incurred by the Seller arising from late payment to be recovered) the Seller may charge interest on a daily basis to the Customer at a rate equal to 5% per annum over the Seller’s bank overdraft rate from time to time, until the overdue amounts are paid, with the interest accruing after as well as before any judgement which the Seller may obtain against the Customer. The Customer will also be liable to pay all of the Seller’s expenses and legal costs incurred in obtaining a remedy for the Customer’s failure to pay for the Goods when due.
4.6 The Customer may not set off against the price payable for the Goods any claims which the Customer might have against the Seller. However, the Seller may agree to accept goods as a trade-in to be applied as a deposit or part payment.
4.7 The Seller may accept and apply payments from the Customer in respect of any indebtedness and the Seller will not be bound by any conditions or qualifications attaching to such payments.
4.8 The Seller may set-off against any moneys owed by the Seller to the Customer any moneys which the Customer owes to the Seller or to any subsidiary or related companies of the Seller so that the obligation of the Seller to the Customer will be to pay the net balance only. If any of the Seller’s subsidiary or related companies owe moneys to the Customer then they may set-off against such moneys any moneys owed by the Customer to the Seller in respect of any Goods and will only be liable to pay the net balance and the Customer agrees that this provision is made for the benefit of such subsidiary and related companies of the Seller and may be enforced directly by them in their own respective names.
4.9 Any payment received from the Customer may be applied by the Seller to all or part of the amount owing for any Goods or services as the Seller sees fit.
4.10 Subject to clause 4.9, any payment the Customer receives for Goods shall first be put towards the Customer’s obligation to pay the Seller for Goods that, at the time of receiving payment, have already been sold by the Customer. The balance (if any) shall then be put towards the Customer’s obligation to pay the Seller for Goods that the Customer has not sold at the time of receiving payment. This clause shall apply irrespective of the order in which the Seller has delivered Goods to the Customer, any entry contained in a statement of account issued by the Seller, any rule of law or any other matter. This clause 4.10 will also apply to any payment received in connection with services provided by the Seller.
4.11 Clause 4.9 and 4.10 shall apply to any payment received from the Customer irrespective of whether that payment is intended by the Customer to be for particular Goods or in respect of a particular invoice.
4.12 When there are amounts owing by the Customer to the Seller, the Customer shall, at the request of the Seller, promptly provide a written inventory of any dealings with the Goods, including details of those Goods that have:
(a) been sold by the Customer;
(b) become an accession; or
(c) been so manufactured, processed, assembled, or commingled that their identify has been lost.
Where the Customer has previously provided an inventory to the Seller any subsequent inventory need only include details of any dealings with the Goods since the most recent inventory. If requested by the Seller an inventory shall also include the amount and location of any proceeds that the Customer is at the time holding on trust for the Seller.
5. SECURITY INTEREST, RISK AND OWNERSHIP
5.1 The Customer grants the Seller a security interest in the Goods as security for all amounts owing by the Customer to the Seller and the performance of the Customer’s obligations under these Terms and Conditions.
5.2 The Customer shall ensure that it is always able to identify:
(a) the Goods from any other goods that may be in the Customer’s possession; and
(b) the particular Goods to which any invoice relates.
5.3 Title to any particular Goods shall remain in the Seller until there are no longer any amounts owing to the Seller for those goods.
5.4 Until title to any particular Goods passes to the Customer, the Customer shall:
(a) hold those Goods as the Seller’s bailee;
(b) return those Goods to the Seller on request; and
(c) hold any cash proceeds of those Goods on trust for the Seller in a separate account.
5.5 Even though title to any particular Goods remains in the Seller, the Customer may sell those Goods on the Customer’s own account provided that:
(a) any such sale is conducted at arms length and is for the full market value of those Goods; and
(b) the Seller has not requested the return of those Goods.
5.6 The Goods shall be at the Customer’s risk from delivery (whether to the Customer or another person on the Customer’s behalf) and the Customer shall insure the Goods for their full replacement value.
5.7 If the Customer fails to comply with any term of these Terms and Conditions or any other agreement with the Seller, the Seller or its agent may exercise any and all remedies afforded to a secured party by Part 9 of the Personal Properties Securities Act 2009 (“PPSA”) and enter any building or premises owned, occupied, or
used by the Customer, to search for and re-take possession of the Goods.
5.8 The parties agree that sections 130(1)(a), 140(2)(f), 143 of the PPSA shall not apply on the enforcement by the Seller of any security interest created or provided for by these Terms and Conditions. The Customer waives any rights the Customer may have under sections 92, 93, 94, 95, 97, 130(1)(a), 132, 137 and 142(f) of the PPSA on such enforcement.
5.9 The Customer acknowledges receipt of a copy of these Terms and Conditions and waives any right to receive from the Seller a copy of any financing statement, financing change statement or verification statement that is registered, issued, or received at any time in relation to these Terms and Conditions
5.10 The Customer shall immediately notify the Seller of any change of name.
5.11 Unless the context otherwise requires terms and expressions in this clause 5 that are defined in the PPSA shall have the same meaning in this clause 5 as in the PPSA and references to the Goods include references to any one of them.
6.1 Delivery will be deemed to be completed upon either receipt of the Goods by or on behalf of the customer, or upon receipt of the Goods by a carrier for delivery to the Customer.
6.2 The Seller will use its best endeavours to see that deliveries are made according to schedule but any period or dates quoted for delivery are approximate only and the Seller will not be responsible for delivery delays due to causes beyond its control. Transportation will be arranged by the Seller unless otherwise agreed.
6.3 Goods may be delivered in instalments.
7.1 The Seller warrants that the Goods will be free from all defects in workmanship and materials, for a period matching the manufacturer’s warranty for those Goods.
7.2 The Seller will use reasonable endeavours to ensure the Buyer receives the benefit of any manufacturer’s warranty provided in respect to the Goods.
7.3 No warranty is given and the Seller shall not be liable:
(a) Where the Customer has altered or modified the Goods or has subjected them to any unusual or non-recommended use, servicing, or handling.
(b) For loss caused by any factors beyond the Seller’s control.
(c) For failure to deliver the Goods by any specified dates.
(d) For any indirect or consequential loss of any kind.
(e) For any second-hand Goods.
(f) For normal wear and tear.
7.4 The Seller’s total liability for defective or damaged Goods supplied by the Seller is limited at the Seller’s option to either:
(a) Replacing or repairing the defective or damaged Goods; or
(b) Refunding the price of the defective or damaged Goods.
7.5 Except under this clause 7 the Seller has no liability for the Goods and gives no representations or warranties in relation to them. All other warranties expressed or implied by law are excluded.
8.1 The Seller will at its option either replace or repair defective Goods supplied by the Seller or give a credit or refund for them as long as the Customer’s claim has specifically identified the Goods and the defect and the Customer returns the defective Goods to the Seller in their delivered state within 21 days after delivery.
8.2 Goods must be returned freight paid and the Customer can claim for any reasonable freight charges.
8.3 The Seller will use all reasonable endeavours to repair the Goods as soon as possible, but will not be liable for any delay in completing the repairs.
8.4 Where the Customer has subjected any Goods to unauthorised repairs or servicing or has modified or altered the Goods in any way then the Customer will be deemed to have waived any claims in respect of the work.
8.5 The Customer may return any Goods that qualify under the Seller’s “Parts Return Policy” which varies from time to time at the Seller’s discretion. A copy of the Seller’s “Parts Return Policy” is available on request.
9.1 Unless otherwise agreed the Goods supplied are being sold by the Seller to the Customer for the Customer’s own use and the Customer may not:
(a) Appoint anyone to resell the Goods; or
(b) Sell the Goods to anyone who or which intends to resell the Goods; or
(c) Sell the Goods to the public.
9.2 The Customer accepts that it is purchasing the Goods for the purpose of its business.
10.1 Where there is a guarantor specified under any written sale contract, the guarantor guarantees the performance by the Customer of its obligations under this Agreement and it is acknowledged and agreed that as between the Customer and the guarantor, the guarantor may for all purposes be treated as being primarily liable and the Seller shall be under no obligations to take proceedings against the Customer before taking any proceedings against the guarantor.
11.1 The Customer may not cancel any order or part of it without the Seller’s written consent and as a condition of giving such consent the Seller may require that it be reimbursed for the cost of reallocating labour and materials and other direct or indirect costs incurred by the Seller to the date of cancellation.
11.2 In the event that:
(a) The Customer fails to pay any amount for the Goods or services on the due date; or
(b) The Customer becomes insolvent; or
(c) The Seller or the Customer is refused any required licences or permits in respect of the Goods.
Then without limiting any other legal rights the Seller may cancel any outstanding orders or deliveries of orders, and resell the Goods in question, or forfeit any deposit as liquidated damages, or sue the Customer for the purchase price of the Goods and any costs and expenses incurred by the Seller as a result of the Customer’s default.
If the Seller waives any breach of these Terms and Conditions by the Customer the waiver will not affect Seller’s right to exercise its rights under these Terms and Conditions at any future time.
Each clause in these Terms and Conditions is severable and if any clause is held to be illegal or unenforceable then the remaining clauses will remain in full force and effect.
14 GOVERNING LAW
These Terms and Conditions will be interpreted in accordance with and governed by the laws of Australia and the Australian courts will have exclusive jurisdiction over any dispute in relation of the Goods.
15. PRIVACY ACT
15.1 The following provisions apply to all dealings between the Seller and the Customer. For the purposes of the Privacy Act 1988 the Customer:
(a) Consents to the Seller collecting personal information from any source the Seller considers appropriate to be used for the purposes of assessing credit and finance applications, debt collection and any other lawful purpose related to the Seller’s business;
(b) Authorises the Seller to disclose information held about it for purposes listed on clause 15.1(a);
(c) Understands that they are entitled to access and to request correction of any errors of the collected information;
(d) Understands that the supply of the information is voluntary but without it the Seller cannot and will not process any credit or finance applications;
(e) Undertakes that information about other individuals supplied by the Customer has been disclosed to the Seller with their consent.