Terms & Conditions
Unless the context otherwise requires:
Agreement means the agreement between Allquip Water Trucks and Customer for the supply of Goods by Allquip Water Trucks to Customer and shall be constituted in this entirely by these Terms and Conditions of Sale and, if any, Allquip Water Trucks quotation;
Customer means the party to whom Allquip Water Trucks has agreed to supply Goods pursuant to the Agreement;
Goods means the goods and/or services agreed to be supplied by Allquip Water Trucks and purchased by Customer pursuant to the Agreement;
GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or, if that Act does not exist means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under that act;
Guarantee means the guarantee documents provided by Customer or Customer's directors, shareholders or principals to Allquip Water Trucks to guarantee the performance of the agreement by Customer;
Propriety 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, specification, circuit drawings, componentry, trade secrets, trademarks and copyright in such information;
Purchase Order means the written purchase order by Customer to Allquip Water Trucks for the supply of the Goods;
Allquip Water Trucks means Allquip Pty Ltd T/as Allquip Water Trucks ABN: 61 671 910 478
2. Quotation and Purchase Orders
a) Subject to the clause immediately below, quotations from Allquip Water Trucks are valid for a period of 30 days from the date of issue or as otherwise applicable to that quotation only, and will not apply in any other manner not specified in the quotation. Prices given in any quotation by Allquip Water Trucks are applicable to that quotation only an will not apply in any other instances. A quotation from Allquip Water Trucks is not an offer to sell.
b) In order to purchase the Goods, Customer must place with Allquip Water Trucks a Purchase Order setting out an order number, Allquip Water Trucks quotation number (if applicable), full description of the Goods to be purchased, the delivery date, delivery point and any other information required by Allquip Water Trucks. The Purchase Order may be accepted or rejected by Allquip Water Truck at Allquip Water Trucks sole discretion.
c) A contract shall be formed by and upon Allquip Water Trucks accepting from Customer a Purchase Order pursuant to the clause immediately above and each contract shall be governed by the Agreement.
d) The Agreement shall take precedence over any other representation, agreements, arrangement or understanding relation to the Goods and any matters in connection with the Goods.
e) Any condition or terms of purchase submitted by Customer deviating from or inconsistent with the Agreement will not bind Allquip Water Trucks notwithstanding any statement by Customer in its Purchase Order that its terms and conditions prevail over the Agreement.
f) Where the Goods to be supplied contain raw materials, the price and availability of which is unpredictable (for example, PVC, copper, steel), and there is a lack of availability of such raw material either to enable Allquip Water Trucks to supply the good or to supply the Goods at the price stated in the Purchase Order, Allquip Water Trucks may, at its sole option:
i) Expand additional time to make reasonable efforts to attempt to locate raw material, and if raw material cannot be located, serve notice of immediate termination of the Purchase Order under the Agreement; or
ii) Endeavor to reach agreement with Customer on an increase in the purchase price for the Goods, and if agreement cannot be reached, serve notice of immediate termination of the Purchase Order under the Agreement; or
iii) Serve notice of immediate termination of the Purchase Order under the Agreement. In no case shall Allquip Water Trucks have any liability to Customer as a result of termination, but customer shall pay to Allquip Water Trucks the purchase price of Goods actually supplied under the Agreement.
3. Payment of Purchase Price
a) Unless other wise agreed in writing, Allquip Water Trucks accepts Purchase Orders subject to the condition that Customer agrees to pay the price appearing on Allquip Water Trucks price list or quotation for those Goods current as at the date that Allquip Water Trucks accepts the Purchase Order.
b) If applicable, a copy of Allquip Water Trucks publicly available price list for the Goods is available on request. All prices on Allquip Water Trucks price list are subject to alteration without notice.
c) The total purchase price, unless otherwise stated in the Purchase Order, includes GST but may not include any delivery charges, packaging, freight, assembly costs, installation costs, costs and charges of third party suppliers such as electricians, insurance or imposts, all of which may be added to the purchase price or otherwise will be paid by Customer or reimbursed by Customer to Allquip Water Trucks, as Allquip Water Trucks may elect.
d) Customer may not set off any money owing or alleged to be owing by Allquip Water Trucks against money due by Customer to Allquip Water Trucks.
e) If Customer does not pay money by the due date rights which it may have against Customer, Allquip Water Trucks may require Customer to pay on demand interest at the Westpac Indicator Lending Rate effective from time to time plus 4% per annum calculated from the due date on daily balances of amounts unpaid.
4. Cancellation of Orders
Customer may not alter or cancel a Purchase Order without Allquip Water Trucks prior written consent. If Allquip Water Trucks agrees to alter or cancel the Purchase Order, Customer will indemnify Allquip Water Trucks against any loss, damage and expense incurred by Allquip Water Trucks in relation to the alteration or cancellation of that Purchase Order, including the cost of return freight, return shipping to factory of origin, items purchased form third parties for inclusion in the Goods and all labor and engineering costs incurred by Allquip Water Trucks in the execution or part execution of the Goods and including compensation payable to any of Allquip Water Trucks suppliers and loss of profit.
5. Delivery, Storage and Use
a) All quoted delivery or consignment dates are estimates only. Allquip Water Trucks is not obliged to meet such dates and will not be liable to Customer by reason of delays caused by any reason whatsoever.
b) Allquip Water Trucks is deemed to have delivered the Goods when the Goods are made available to Customer for physical collection by or on available to or on behalf of Customer at Customer's nominated delivery point (Delivery). Any unloading or loading shall be Customer's responsibility, unless Allquip Water Trucks otherwise agrees in writing.
c) Allquip Water Trucks may deliver the Goods by installments (where, in Allquip Water Trucks opinion, this is reasonable- and issue interim invoices to Customer.
d) Without limiting any other provision of the Agreement, failure by Customer to pay any installment, or any other amount when due, will entitle Allquip Water Trucks to withhold or delay delivery of any remaining Goods ordered.
e) If Customer is unable to Collect the Goods at Customer's nominated delivery point on the delivery day, Allquip Water Trucks 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 Customer must pay or reimburse all costs and expenses of storage, insurance, demur-rage, handling and other charges associated with such storage. Notwithstanding Customer's inability to collect the Goods, Delivery is deemed to have occurred.
f) The Customer acknowledges that it has the sole responsibility to confirm the suitability of the Goods for the intended purpose and that Allquip Water Trucks makes no representation or warranty in this regard.
6. Title and Risk
a) Title to the Goods shall remain with Allquip Water Trucks until all monies owing by Customer to Allquip Water Trucks for the Goods have been paid in full.
b) Until such time as Customer has paid Allquip Water Trucks in full for the Goods, Customer shall:
i) Store the Goods separately and mark them so that they are clearly and easily identifiable as Allquip Water Trucks property and, if Allquip Water Trucks requests, inform Allquip Water Trucks of the location of the Goods:
ii) Hold the Goods as Bilee for Allquip Water Trucks. (Bailment);
iii) Indemnify Allquip Water Trucks against any claim arising out of the possession, use or disposal of the Goods by Customer or repossession or attempted repossession by Allquip Water Trucks.
i) A payment is not made in accordance with the Agreement;
ii) Customer commits any other breach of the Agreement;
iii) Customer becomes bankrupt, has an administrator, a receiver or a receiver and manager appointed, goes into liquidation (whether voluntarily or otherwise), or is wound up, dissolved or declared insolvent, then Allquip Water Trucks may at any time, without notice to Customer and without prejudice to any other rights that it may have against Customer:
- Terminate the Agreement and the Bailment;
- Suspend some or all its obligations to Customer under the Agreement; and/or
- Enter upon any premises owned or occupied by Customer where Allquip Water Trucks reasonably believes the Goods may be stored and repossess the Goods without being liable for any damages caused.
d) In this clause the following definitions have the meaning given below:
i) PPSA means the Personal Property Securities Act 2009 (Cth)
ii) Security means the Goods;
iii)Security interest means a security interest in the Goods under the PPSA
Customer acknowledges and consents to the creation of a security interest in favor of Allquip Water Trucks. Until all monies owing by the Customer to Allquip Water Trucks have been paid in full the Customer must not create another security interest or lein over the Goods or sell, lease or dispose of the Goods except where Allquip Water Trucks expressly authorizes the Customer to do so.
e) The risk in the Goods passes to Customer at the time of Delivery.
Customer must keep the Goods insured against all risks for Goods of that kind from the time the risk in the Goods passes to Customer until the time that title to the Goods passes to customer. Customer holds the proceeds of that insurance on trust for Allquip Water Trucks up to the amount it owes Allquip Water Trucks in respect of those Goods, and must keep such proceeds in a separate account until the liability to Allquip Water Trucks is discharged and must immediately pay that amount to Allquip Water Trucks.
9. Limitation of Liability for Goods
a) Other than is provided for in this clause 9, Allquip Water Trucks makes no warranties or representation to Customer.
b) Allquip Water Trucks warrants the Goods to be free from defects in workmanship and materials under normal use and service for the period as stated on Allquip's quotation and/or invoice from delivery of goods. (Warranty Period). This warranty does not cover costs of recovery of the Goods from the site or damage, fault, failure or malfunction due to external causes including accident, abuse, misuse, mechanical or electrical overload, abrasion, corrosion, incorrect installation, failure to perform required preventative maintenance or normal wear and tear.
c) During the Warranty Period, to the extent permitted by law, Customer's sole remedy with respect to breach of warranties set out in the clause immediately above will be to repair or replace (as Allquip Water Trucks may elect) any such defective Goods at Allquip Water Trucks expense. The replacement or repaired Goods shall be covered by the unexpired portion of the Warranty Period in respect of the original Goods.
d) For equipment forming part of the Goods, which equipment is not manufactured by Allquip Water Trucks, the original manufacturer's warranty will apply. Allquip Water Trucks liability for such equipment shall not exceed the liability of the manufacturer.
e) In respect of Goods that are not ordinarily acquired for personal, domestic or household use or consumption, the liability of Allquip Water Trucks for a breach of any condition or warranty implied by law is limited at Allquip Water Trucks option to the repair of the Goods or supply replacement Goods.
f) Allquip Water Truck's liability under the agreement will be reduced by the amount of any contributory loss or damage to the extent caused by Customer's act or omission.
g) Customer acknowledges and agrees that, to the extent permitted by law, Allquip Water Trucks 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.
h) Allquip Water Trucks total liability under any contract and the Agreement shall not exceed the total dollar amount of the Goods purchased by the Customer under each contract.
10. Proprietary Information
a) Customer acknowledges that all Proprietary Information and all right, title and interest therein are the sole property of, or licensed by Allquip Water Trucks and Customer shall gain no right, title or interest in the Proprietary Information whatsoever. Customer specifically acknowledges Allquip Water Trucks 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 Customer or any buyer of Customer or otherwise.
b) Customer must not and must not permit any person reasonably within its control to procure any person to modify, copy, clone or reverse engineer the Goods or copy, modify or compile any of Allquip Water Trucks documentation relating to goods.
11. Export / Re-Export / Resale
a) The goods supplied are intended for use only in Australia, unless Allquip Water Trucks otherwise agrees. If Customer exports or re-exports the goods, it is Customer's responsibility to ensure that the Goods and the use to which they are put comply with the laws of the destination.
a) The fact that Allquip Water Trucks fails to do, or delays in doing, something it is entitled to do under the Agreement, does not amount to a waver of its right to do it. Allquip Water Trucks must agree in writing to any waiver.
b) If a clause or part of a clause can be read in a way that makes it illegal, unenforceable or involved, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from the Agreement, but the rest of the Agreement is not affected.
c) Allquip Water Trucks shall not be liable for any failure to fulfill or any delay in fulfilling any obligation arising under the Agreement if the failure or delay has been caused directly or indirectly by any act of God, water or other civil commotion, strikes, lockouts, stoppages, and restraints of labor, breakdown of machinery, inability to obtain raw materials or fuel, fire or explosion, accidents, suspensions, of supply for any reason or, any government action or any other cause beyond Allquip Water Trucks reasonable control and not as a consequence of Allquip Water Trucks negligence.
d) Any notice to be given to a party under the Agreement must be in writing and must be sent by post, facsimile or email to the address of that party shown in the quotation, Purchase Order or order acknowledgement. Notice is deemed to have been given at the time it would have been received in the normal course of post if sent by post, or if otherwise given at the time it was actually received.
e) The agreement shall be governed by and construed in accordance with the laws of New South Wales, Australia and the Customer unconditionally submits to the non-exclusive jurisdiction of the courts of that place.
f) Where there is more than one Customer then the liability of each shall be joint and several.
g) The rights and remedies provided in the Agreement will not affect any other rights or remedies available to Allquip Water Trucks.
h) Customer shall not assign this Agreement without Allquip Water Trucks prior written consent.
i) If the Customer is a trustee, then the Customer is bound by the Agreement both personally and in its capacity as a trustee.
j) If the customer is an agent, then the Customer is bound by the agreement both personally and in its capacity as an agent.