Terms & Conditions
Unless the context otherwise requires:
Agreement means the agreement between Allquip and the Customer constituted by these terms and conditions, the Customer’s Purchase Order and Allquip’s Quotation (if any);
Allquip means Allquip Pty Ltd (ACN 124 967 380) trading as Allquip Water Trucks (ABN: 61 671 910 478);
Customer means the party to whom Allquip has agreed to supply the Goods pursuant to the Agreement;
Goods means the goods and/or services agreed to be supplied by Allquip to the Customer pursuant to the Agreement;
GST means the tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and related tax imposition Acts of the Commonwealth of Australia;
PPSA means the Personal Property Securities Act 2009 (Cth);
Proprietary Information means any and all information and intellectual property relating to the Goods or the installation or operation of the Goods including but not limited to patents, designs, drawings, instruction booklets, specifications, circuit drawings, componentry, trade secrets, trademarks and copyright in such information;
Purchase Order means the written purchase order given by the Customer to Allquip for the supply of the Goods;
Purchase Price means:
- if the Goods are the subject of a Quotation, the price set out in that Quotation; and
- in any other case, the price for the Goods set out in the price list most recently published on Allquip’s website.
Quotation means a quotation or proposal submitted by Allquip to the Customer for the manufacture and/or supply of goods and/or services.
- Quotations and Purchase Orders
- A Quotation is valid for a period of 30 days from the date of issue unless otherwise stated in that Quotation.
- A price given in a Quotation applies to that Quotation only and does not apply in any other circumstances.
- A Quotation is not an offer to sell and no contract is formed between Allquip and the Customer until the Customer places a purchase order with Allquip and Allquip accepts that purchase order in writing.
- A purchase order by the Customer must be in writing and include:
- the Customer’s purchase order number;
- if made in relation to goods and services the subject of a Quotation, the Quotation number; and
- a full description of the Goods to be purchased, the delivery date, delivery point and any other information required by Allquip.
- Allquip is under no obligation to accept a purchase order by the Customer and no contract is formed between Allquip and the Customer until and unless Allquip accepts the purchase order in writing.
- These terms and conditions, the Quotation (if any) and the Purchase Order (subject to subclause b) below) contain the entirety of the Agreement.
- Allquip shall not be bound by and the Customer may not rely on any representation, warranty, provision or condition not included in these terms and conditions and the Quotation, including but not limited to any terms and conditions submitted by the Customer, unless otherwise agreed in writing by Allquip.
- The Agreement may only be amended in writing signed by or on behalf of Allquip and the Customer.
- Unless otherwise stated in the Quotation, the Customer must pay the Purchase Price by no later than 28 days after the date upon which Allquip issues the Customer with a tax invoice.
- Unless otherwise agreed in writing, the Goods will not be delivered to the Customer until the Purchase Price is received by Allquip in cleared funds.
- If the cost to Allquip of:
- any component used in the manufacture of the Goods; or
- any material used in the manufacture of the Goods;
increases by more than 5% over the cost that would have been payable by Allquip at the later of:
- the date of the Agreement; and
- the date of the most recent increase in the Purchase Price made under this clause;
Allquip may by written notice to the Customer notify the Customer of:
- the precise component or material which is the subject of the increase;
- the dollar value of such increase in relation to the component or material; and
- the dollar value increase in the Purchase Price necessary to absorb such increased cost including a written statement of Allquip’s calculations in arriving at such proposed Purchase Price increase;
and within seven (7) days of receiving such notice, the Customer must:
- agree in writing to the increase in the Purchase Price by the amount specified in the notice; or
- by notice in writing terminate the Agreement and pay to Allquip the reasonable cost for all goods and services supplied by Allquip to the Customer under the Agreement.
- Unless otherwise stated in the Quotation and Purchase Order, the Purchase Price includes GST but does not include delivery charges, packaging, freight, assembly costs, installation costs, costs and charges of third party suppliers such as electricians, insurance or imposts, all of which will be payable by the Customer on the same terms as the Purchase Price.
- The Customer may not set off any money owing or alleged to be owing by Allquip against money due by the Customer to Allquip.
- If the Customer does not pay any moneys payable under the Agreement by the due date for such payment then in addition to any other rights which it may have against the Customer, Allquip may require the Customer to pay interest at the Westpac Indicator Lending Rate effective from time to time plus 4% per annum calculated from the due date of such payment on daily rests.
- Variation and Cancellation of Orders
- The Customer may not vary or cancel a Purchase Order without Allquip’s prior written consent.
- If the Customer requests and Allquip agrees to vary or cancel the Purchase Order, the Customer will indemnify and keep indemnified Allquip against any loss, damage and expense incurred by Allquip arising from or relating to the variation or cancellation of that Purchase Order, including but not limited to the cost of return freight, return shipping to factory of origin, items purchased from third parties for inclusion in the Goods and all labor and engineering costs incurred by Allquip in the manufacture or part manufacture of the Goods and including compensation payable to any of Allquip’s suppliers and loss of profit.
- Delivery, Storage and Use
- Unless stated otherwise in the Quotation, all delivery or consignment dates are estimates only and Allquip is not bound to meet such dates and will not be liable to the Customer if the Goods are not delivered by any such dates for any reason whatsoever.
- Allquip is deemed to have delivered the Goods pursuant to the Agreement when the Goods are delivered or made available to the Customer for physical collection at the Customer’s nominated delivery address.
- Any unloading or loading shall be Customer’s responsibility, unless Allquip otherwise agrees in writing.
- Allquip may deliver the Goods by instalments (where, in Allquip’s opinion, this is reasonable,) and issue interim invoices to the Customer.
- Without limiting any other provision of the Agreement, failure by the Customer to pay any instalment, or any other amount when due, will entitle Allquip to withhold or delay delivery of any remaining Goods ordered.
- If the Customer is unable to collect the Goods at the Customer’s nominated delivery point on the agreed delivery day, Allquip may at its option and without limiting its other rights and remedies arrange suitable storage of the Goods, whether at its premises or elsewhere, and the Customer must pay or reimburse all costs and expenses of storage, insurance, demurrage, handling and other charges associated with such storage. Notwithstanding the Customer’s inability to collect the Goods, delivery will be deemed to have occurred.
- The Customer acknowledges that it has the sole responsibility to satisfy itself about the suitability of the Goods for the intended purpose and that Allquip makes no representation or warranty in this regard.
- Title and Risk
- Allquip reserves its rights in relation to the Goods until all moneys owed by the Customer to Allquip are fully paid. These are rights:
- to ownership of the Goods;
- to enter the Customer’s premises (or the premises of any associated company or agent where the Goods are located) without liability for trespass or any resulting damage and retake possession of the Goods; and
- subject to, and in accordance with, the Personal Property Securities Act 2009 (Cth), to keep or resell the Goods repossessed pursuant to the subparagraph above.
- If the Customer resells the Goods or products manufactured using the Goods, the Customer must hold part of the proceeds of any such sale, as represents the Purchase Price of the Goods, in a separate identifiable account as the beneficial property of Allquip. The Customer must pay this amount to Allquip upon request. Despite these provisions, Allquip is entitled to maintain an action against the Customer for the Purchase Price and the risk of the Goods must pass to the Customer upon delivery.
- Prior to title in the Goods passing to the Customer under the terms of this agreement, the Customer agrees that:
- the Customer has no right or claim to any interest in the Goods to secure any liquidated or unliquidated debt or obligation Allquip owes to the Customber;
- the Customer cannot claim any lien over the Goods;
- the Customer will not create any absolute or defeasible interest in the Goods in relation to any third party except as may be authorised by Allquip; and
- where the Customer is in actual or constructive possession of the Goods:
- the Customer will not deliver them or any document of title to the Goods to any person except as directed by Allquip; and
- it is in possession of the Goods as a bailee of those Goods and owes Allquip the duties and liabilities of a bailee.
- In connection with the Goods, Allquip states to the Customer that:
- Allquip has the right to supply the Goods to the Customer;
- the activities of Allquip in supplying the Goods do not infringe the rights of the owner of the Goods (where Allquip is not the owner of the Goods); and
- if the Goods are not owned by Allquip, that the seller is authorised to supply the goods to the Customer.
- Allquip and the Customer agree that:
- the property of Allquip in the Goods remains with Allquip until Allquip has been paid in full for the Goods under the Agreement;
- the Customer is a bailee of the Goods until property in them passes to the Customer and this bailment continues in relation to each of the Goods until the price of the Goods has been paid in full; and
- pending payment in full for the Goods, the Customer:
- must not supply any of the Goods to any person outside of its ordinary or usual course of business;
- must insure the Goods for their full insurable or replacement value (whichever is the higher) with an insurer licensed or authorised to conduct the business of insurance in the place where the Customer carries on business; and
- must not remove, deface or obliterate any identifying plate, mark or number on any of the Goods.
- If the Customer supplies any of the Goods to any person before all moneys payable by the Customer have been paid to Allquip, the Customer agrees that:
- it holds the proceeds of re-supply of the Goods on trust for and as agent for Allquip immediately when they are receivable or are received;
- it must either pay the amount of the proceeds of re-supply to Allquip immediately when they are received, or pay those proceeds into an account with a bank or a financial institution or deposit-taking institution as trustee for Allquip;
- any accessory or item which accedes to any of the Goods by an act of the Customer, or of any person at the direction or request of the Customer, becomes and remains the property of Allquip until Allquip is paid in accordance with paragraph 7.e)i); and
- if the Customer fails to pay for the Goods within the period of credit (if any) extended by Allquip to the Customer, subject to, and in accordance with, the Personal Property Securities Act 2009, Allquip may recover possession of the Goods at any site owned, possessed or controlled by the Customer and the Customer agrees that Allquip has an irrevocable licence to do so.
- Risk in the Goods passes to the Customer upon delivery (or deemed delivery) of the Goods to the Customer or collection of the Goods by the Customer’s agent or courier as the case may be.
- Allquip reserves its rights in relation to the Goods until all moneys owed by the Customer to Allquip are fully paid. These are rights:
- Personal Property Securities Register
- This agreement is a security agreement.
- The interest of Allquip in the Goods and all proceeds from the sale of the Goods by the Customer to a third party is a security interest.
- The Customer consents to Allquip registering its security interest on the Personal Property Securities Register and agrees to provide all assistance reasonably required by Allquip to facilitate registration.
- Until title in the Goods has passed to the Customer as contemplated by the Agreement, the Customer agrees not to in any way assign, charge, lease or otherwise deal with the Goods in such a manner as to create a security interest over the Goods in favour of the Customer or any third party. The parties agree that this clause will not prohibit the Customer from selling the Goods in the ordinary course of business.
- The Customer waives its rights to receive any notice under the PPSA (including notice of verification statement) unless the notice is required by that Act and cannot be excluded.
- Allquip and the Customer agree that this agreement and all related information and document(s) are confidential (Confidential Information) and will not be disclosed to unauthorised representatives or third parties, except to the extent disclosure is permitted by this agreement or required by law. Allquip and the Customer agree that Allquip will not disclose the Confidential Information pursuant to a request under section 275(1) of the PPSA.
- Unless the Goods are used predominantly for personal, domestic or household purposes, Allquip and the Customer agree each of the following requirements or rights under the PPSA do not apply to the enforcement of Allquip’s security interest in the Goods or of this agreement:
- any requirement for Allquip to give the Customer a notice of removal of accession;
- any requirement for Allquip to give the Customer a notice of Allquip’s proposed disposal of the Goods;
- any requirement for Allquip to include in a statement of account, after disposal of the Goods, the details of any amounts paid to other secured parties;
- any requirement for Allquip to give the Customer a statement of account if Allquip does not dispose of the Goods;
- any right the Customer has to redeem the Goods before Allquip exercises a right of disposal; and
- any right the Customer has to reinstate this agreement before Allquip exercises a right of disposal of the Goods.
- Expressions defined in the PPSA have the same meaning when used in this agreement.
- Limitation of Liability for Goods
- Other than is provided for in this clause, Allquip makes no warranties or representations to Customer.
- Allquip warrants the Goods to be free from defects in workmanship and materials under normal use and service for the Warranty Period. This warranty does not apply to any failure or damage that arises from:
- improper adjustment, calibration or operation by the Customer;
- the use of accessories including consumables, hardware, or software which were not manufactured by or approved in writing by Allquip;
- any contamination, leakages overload or abrasion caused or induced by the Customer;
- any modifications of the Goods which were not authorised in writing by Allquip;
- any misuse of the Goods by the Customer or anyone for whom the Customer has legal responsibility (including a minor);
- any use or operation of the Goods outside of the physical, electrical or environmental specifications of the Goods;
- normal wear and tear; and
- inadequate or improper maintenance of the Goods.
- The warranty set out in subclause b) does not cover any costs of recovery of the Goods. Unless otherwise agreed by Allquip, it is the Customer’s responsibility to have the Goods delivered to Allquip to assess and undertake any repairs under the warranty.
- Without limiting subclauses a) to c) above and to the extent permitted by law, the Customer’s sole remedy with respect to any breach of warranty will be to repair or replace (as Allquip may elect at its sole discretion) any defective or damaged parts, components or Goods. The replacement or repaired parts, components or Goods shall be covered by any unexpired portion of the Warranty Period in respect of the original Goods.
- In respect of equipment or components forming part of the Goods that are not manufactured by Allquip, the manufacturer’s warranty will apply and Allquip’s liability shall not exceed the liability of the manufacturer.
- In respect of Goods that are not ordinarily acquired for personal, domestic or household use or consumption and to the extent permitted by law, the liability of Allquip for a breach of any implied condition or warranty is limited at Allquip’s option to the repair or replacement of the Goods.
- Allquip’s liability for any breach of the terms of the Agreement, including any breach of warranty, will be reduced by the proportion to which the loss or damage was contributed to by any act or omission of the Customer or their employees agents or contractors.
- The Customer acknowledges and agrees that, to the extent permitted by law, Allquip has no liability in contract, tort (including negligence or breach of statutory duty), by statute or otherwise for loss or damage (whether direct or indirect) of profits, opportunity, revenue, goodwill, bargain, production, contracts, business or anticipated savings, corruption or destruction of data or for any indirect, special or consequential loss or damage whatsoever.
- Without limiting any other provision of the Agreement, Allquip’s total liability to the Customer for any breach of the Agreement including but not limited to breach of warranty shall not exceed the Purchase Price.
- In this clause, unless otherwise required by the context, Warranty Period means the warranty period set out in the Quotation.
- Proprietary Information
- The Customer acknowledges that all Proprietary Information and all right, title and interest therein are the sole property of, or licensed by Allquip and the Customer shall gain no right, title or interest in the Proprietary Information whatsoever.
- The Customer acknowledges Allquip’s exclusive rights to ownership of any modification, translation or adaptation of the Proprietary Information and any other improvement or development based thereon, whether developed, supplied, installed or paid for by or on behalf of the Customer or any buyer of the Customer or otherwise.
- The Customer must not and must do all reasonable things to ensure that any other person does not and does not procure any other person to modify, copy, clone or reverse engineer the Goods or the Proprietary Information or copy, modify or compile any of Allquip’s documentation relating to the Goods.
- Export / Re-Export / Resale
- The Goods are intended for use in Australia only, unless Allquip otherwise agrees. If the Customer exports or re-exports the Goods, it is the Customer’s responsibility to ensure that the Goods and the use to which they are put comply with the laws of the jurisdiction to which they are exported.
Notices must be given to the parties’ addresses set out in the Quotation or as otherwise notified by the parties in writing and must be delivered in person or sent by prepaid post or email.
- if delivered in person — on the date of delivery;
- if sent by fax — on production of a transmission report from the sender’s fax machine evidencing that the fax was successfully sent in its entirety;
- if sent by prepaid post — 7 business days after posting; or
- if sent by email, on the date the email is received.
- No assignment
A party must not assign any of its rights or obligations under this agreement without the other party’s prior written consent.
- No waiver
No delay or indulgence by a party in enforcing this agreement will prejudice or restrict the rights of that party, nor will a waiver of those rights operate as a waiver of a subsequent breach.
- No disadvantage to party preparing section
No part of this agreement is to be construed to the disadvantage of a party because that party was responsible for its preparation.
- No relationship
Nothing in this agreement may be construed as creating a relationship of partnership, joint venture, employment, principal and agent or trustee and beneficiary.
- Parties must do all things and sign all documents
A party, at the request of another party, must do all things and sign all documents necessary to give effect to this agreement.
If any provision of this agreement is or becomes invalid or unenforceable then, if the provision can be read down to make it valid and enforceable without materially changing its effect, it must be read down, and otherwise the offending provision must be severed and the remaining provisions will operate as if the provision had not been included.
This agreement is governed by the laws of New South Wales, Australia, and the parties submit to the non- exclusive jurisdiction of the courts of that state.
- Authority of parties
Each signatory to the Agreement warrants that he or she has authority to bind the party that he or she is stated to represent.
- Force majeure
If by reason of any fact, circumstance, matter or thing beyond the reasonable control of Allquip, it is unable to perform in whole or in part any obligation under this agreement:
- it is relieved of that obligation under this agreement to the extent and for the period that it is unable to perform such obligation; and
- it will not be liable to the Customer for failure to perform such obligation to the extent and for the period of non-performance contemplated by this clause.
- Joint and several liability
If the Customer is made up of more than one person then each such person is jointly and severally liable under the Agreement.
- Customer as agent or trustee
If the Customer is a trustee or an agent, then the Customer is bound by the Agreement both personally and in its capacity as a trustee or agent.