Tasman Machinery PTY LTD, located in Australia, (referred to in these terms as “us”, “we” or “Tasman”) shall only supply and sell Goods (as that term is defined below) to you (being the person or entity named below or referred to in the Offer (as that term is defined below) on the following terms and conditions unless we agree in writing to vary these terms and conditions.
1. Orders
1.1 You will place orders for Goods with us, against which we will provide you with a written offer (“Offer”) which, unless previously withdrawn, shall be valid for 7 days.
1.2 You will notify your acceptance of the Offer to us in writing which will be deemed to be an acceptance of these terms and conditions, notwithstanding any conditions included on your order or acceptance of the Offer.
1.3 Any Offer accepted by you shall not be cancelled unless agreed by us in writing and shall be subject to payment by you of all costs, expenses and losses incurred by us as a result of such cancellation (as reasonably determined by us).
1.4 We may require you to provide at least one credit references acceptable to us prior to us providing you with the Goods.
1.5 You acknowledge that all specifications, drawings, illustrations, data, dimensions and weights furnished by us or otherwise contained in catalogues, price lists and advertising matter are approximate only, and that no representation is made by us that the Goods strictly comply with those particulars.
2. Payment
2.1 The terms and date for payment shall be stated on the Offer. If no date is stated, payment shall be made by the 20th day of the month following the date of the Offer.
2.2 Should you fail to pay your invoices by the due date then:
(a) we may require you to compensate us by making payment to us on demand of interest on the amount due from the due date until the date of payment at a rate equal to 20% per annum, such interest to be compounded monthly; and
(b) you shall pay all our costs and expenses (including legal costs) which may be incurred in the recovery or attempted recovery of the overdue amounts from you.
2.3 If the Offer refers to a deposit, we require payment of the amount specified with your acceptance of the Offer and prior to us ordering the Goods. You agree that the deposit is non-refundable should you breach any of the terms of this agreement.
2.4 We offer no cooldown periods or change of mind once terms have been accepted and deposit has been made. We reserve the full right take reasonable costs from deposit if agreement is cancelled at any point.
3. Prices and Delivery
3.1 You acknowledge that the Offer is based on the costs of labour, materials, freight, insurance and exchange rate current as at the date of the Offer. If any of those costs increase after the date of the Offer, or if there is any error in the calculations contained in the Offer, the price stated in the Offer will be increased/amended accordingly.
3.2 Unless specified in our invoice or the Offer, all prices are exclusive of Goods and Services Tax and delivery and costs, all of which you must pay when invoiced.
3.3 Delivery dates stated in the Offer are subject to receipt of your acceptance in clause 1.2, receipt of all necessary information from you and receipt by us of any deposit to enable us to order the Goods.
3.5 Notwithstanding anything else contained in this agreement or the Offer, while we shall use all reasonable endeavours to comply with your particular delivery requirements and order specifications, you will not be entitled to cancel the whole or part of your order or to claim compensation by reason of our failure to comply with your delivery requirements (including the date of delivery) or minor variations to the Goods as a result of changes to the manufacturing process, design or specifications.
4. Security Interest
4.1 You acknowledge and agree that this agreement constitutes a security agreement for the purposes of the Personal Property Securities Act 2009 (Cth) (“PPSA”) and we retain a purchase money security interest in the Goods to secure our interest in the Goods and all moneys owing or payable by you under this agreement. All Goods sold to you are sold subject to a security interest in favor of us, and we have the right to call for or recover the Goods at our option (for which purpose our employees or agents may enter your premises or the premises where the Goods are stored), and you are obliged to deliver up the Goods if so directed by us.
4.2 “Goods” means all goods sold by us to you from time to time, including (but not limited to) the goods described in the Offer accepted by you.
4.3 Our security interest in the Goods extends to any proceeds, book debts, and accounts receivable arising from selling or re-hiring of the Goods.
4.4 You waive any right to receive verification that our security interest in the Goods has been registered on the Personal Property Securities Register (PPSR) and agree that where relevant, the following sections of the PPSA are not applicable to this agreement: sections 115(1)(a), 121(4), 125, 130, 132(3)(d), 132(4), 135, 142, and 143.
5. Risk and Insurance
5.1 You accept all risk of loss and damage to the Goods, whether caused by you or not, following delivery of the Goods in accordance with clause 13.1.
5.2 You will, at your cost, arrange and maintain insurance for all Goods (which are at your risk but title of which has not passed) to their fullest replacement value, such insurance cover to name us as an additional insured and you agree to provide us with satisfactory evidence of such cover on request from time to time.
6. Withholding Supply
6.1 We reserve the right, irrespective of whether or not an Offer has been accepted, and without notice to you, to withhold supply to you and we will not be liable for loss or damage resulting directly or indirectly from such action where:
(a) we have insufficient Goods to fulfil the order;
(b) the Goods ordered have been discontinued; or
(c) we have determined, in our absolute discretion, that credit should not or no longer be extended to you.
7. Warranty
7.1 All sales of Products are subject to the Australian Consumer Law (ACL), contained within Schedule 2 of the Competition and Consumer Act 2010 (Cth). Nothing in these Terms shall exclude, limit, or modify the rights and remedies available to you under the ACL or any other applicable law that cannot be excluded, limited, or modified.
7.2 The ACL provides guarantees and warranties for consumers regarding the quality, fitness for purpose, description, and other aspects of goods and services. Our Products come with guarantees that cannot be excluded under the ACL. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
8. Consents
8.1 It is your responsibility to apply for and obtain any consents, including building consents, required in connection with the Goods. If required we will provide, at your cost, any information required to assist you obtain such consents.
9. Obligations
9.1 You agree:
(a) not to assign this agreement or your rights under this agreement without our prior written consent;
(b) to comply with all relevant Acts, regulations and bylaws relating to the use, possession or operation of the Goods;
(c) to give us 7 days prior written notice if you intend changing your name
(d) that the Goods are not, and will ensure that they do not become, a fixture.
10. Further Assurance
10.1 You agree to, at your cost, promptly execute and deliver to us and do all things which we require to protect our title and interest (including the priority of our interest) in the Goods and enable us to obtain the full benefit of this agreement.
11. Indemnity
11.1 You agree to indemnify us against any claims, losses, damages, liabilities and expenses of whatever nature arising in whole or in part out of your use or operation of the Goods and/or any breach of this agreement by you.
12. Execution, Costs and Governing Law
12.1 If this agreement is signed by you by an agent or on your behalf, that agent or person signing shall at all times remain jointly and severally liable for the obligations under this agreement.
12.2 You agree to pay all our costs and expenses (including legal costs) which may be incurred in the enforcement or attempted enforcement of this agreement by us.
12.3 These Terms are governed by the laws of the Commonwealth of Australia and the state or territory in which you reside. Any dispute arising out of or in connection with these Terms shall be subject to the exclusive jurisdiction of the courts of that state or territory.
13. Delivery and Title
13.1 Unless otherwise agreed in writing, we will arrange for the Goods to be delivered to a site nominated by you, such delivery shall be at your cost. Delivery of the Goods shall be completed upon arrival at your nominated site.
13.2 Title to the Goods remains with us until payment in full in cleared funds has been received by us. Until payment has been received and title passes, the Goods shall be held by you on bailment and be kept separate and identifiable.
13.3 If we arrange for delivery of the Goods and such Goods are lost or damaged before risk passes to you, we will, at our option replace, repair, or give credit for the Goods provided that you have notified us within 7 days of delivery (in the case of damaged or short delivery) or the intended date of delivery (in the case of non-delivery of all of the Goods).
14. Privacy Act 1988
14.1 You authorise us to obtain credit or trade references about you from any suitable person and/or organisation and to verify any information provided by any such person and/or organisation for the purpose of determining whether to extend credit to you.
14.2 By providing personal information to the Seller, the Customer consents to the collection, use, and disclosure of their personal information in accordance with the Seller’s Privacy Policy.
15. Scope
15.1 Notwithstanding anything contained in any correspondence between us or elsewhere, this agreement together with the Offer constitute the entire terms and conditions of the agreement between us in relation to the Goods and will prevail over all prior negotiations, proposals, correspondence or previous dealings between us.
15.2 You acknowledge that in entering into this agreement you did not rely on any representation other than those which are expressly contained in the Offer or this agreement.