LEADER HYDRAULICS TERMS AND CONDITIONS OF SALE
1.1. "Agreement" means these terms and conditions of sale.
1.2. "Customer" means the purchaser or buyer of the Goods and further identified in the purchaser order.
1.3. "Goods" means the goods and, if any, services specified in the purchase order.
1.4. "Leader Hydraulics" means Raccks P/L t/as Leader Hydraulics, Pneumatics and Engineering (ABN 95 169 037 094)
2.1. All Goods to be supplied by Leader Hydraulics to the Customer are as described on the purchase order and the description on such purchase order as so agreed prevails over all other descriptions of the Goods including any specification or enquiry of the Customer.
3.1. Unless otherwise stated all prices quoted by Leader Hydraulics are exclusive of Goods and Services Tax (GST).
3.2. Prices quoted are based on cost of materials and other charges affecting the cost of production and are only valid for one (1) month.
3.3. Prices quoted do not include wrapping, packaging, or delivery unless specified in writing.
3.4. Leader Hydraulics reserves the right to refuse any order based on this quotation within seven (7) days after the receipt of the order.
3.5. The Customer acknowledges that the price of Goods may increase during this Agreement, due to changes in the cost of production or other variations, and any increases will notified to the Customer as soon as practicable and added to the Price.
3.6. Where specifications, drawings or other particulars are supplied by the Customer for the purposes of the purchase order, Leader Hydraulics's price will be calculated based on estimates of quantities required to provide the Goods as specified, drawn or otherwise particularised by the Customer. If there are any adjustments in quantities above or below the quantities estimated by Leader Hydraulics as set out in a quotation, then any such increase or decrease will be adjusted on a unit rate basis according to unit prices set out in this document or in the quotation.
4.1. The purchase price for the Goods plus GST is payable at the time of delivery of the Goods unless other terms of payment are agreed in advance in writing.
4.2. The cost of any packing, packaging materials, freight and insurance in relation to the Goods are at the Customer's expense and are in addition to the purchase price, notwithstanding that such cost may have been omitted from any quotation.
4.3. Any overdue accounts will accrue interest at the rate of 5% per annum above the maximum rate specified by the Reserve Bank of Australia for overdrafts on current accounts.
5.1. The delivery times made known to the Customer are estimates only and Leader Hydraulics is not liable for late delivery or non-delivery.
5.2. Leader Hydraulics will not be liable for any loss, damage or delay occasioned to the Customer or its customers arising from late or non-delivery or late installation of the Goods.
5.3. Leader Hydraulics is not responsible to the Customer or any person claiming through the Customer for any loss or damage to Goods in transit caused by any event of any kind or by any person (whether or not Leader Hydraulics is legally responsible for the actions of that person).
6.1. No purchase order may be cancelled by the Customer except with the prior written consent of Leader Hydraulics.
6.2. In the event of a cancellation of the purchase order by the Customer, Leader Hydraulics has the right to claim indemnity against all losses suffered by Leader Hydraulics as a result of such cancellation. Losses may include the cost of any re-stocking fee, the cost of any material plant or tools used or intended to be used for the purchase order, the cost of labour and other overheads associated with such a cancellation.
7.1. The Customer waives any claim for shortage of any Goods delivered if a claim has not been lodged with Leader Hydraulics within seven (7) days from the date of receipt of Goods by the Customer.
8. Drawings and specifications
8.1. All specifications, drawings, and particulars submitted by Leader Hydraulics are approximate only and any deviation from any of these does not vitiate any contract with Leader Hydraulics or form grounds for any claim against Leader Hydraulics.
8.2. The descriptions, illustrations and performances contained in catalogues, price lists and other advertising matter do not form part of the Agreement for sale of the Goods or of the description applied to the Goods.
9.1. Any performance figures given by Leader Hydraulics are estimates only.
9.2. Leader Hydraulics is under no liability for damages for failure of the Goods to attain such figures unless specifically guaranteed in writing. Any such written guarantees are subject to the recognised tolerances applicable to such figures.
10.1. Leader Hydraulics's liability for Goods manufactured by it is limited to making good any defects by repairing the defects or at Leader Hydraulics's option by replacement, within a period not exceeding three (3) calendar months after the Goods have been dispatched so long as:
10.1.1. the defects have arisen solely from faulty materials or workmanship;
10.1.2. the Goods have not received maltreatment, inattention or interference;
10.1.3. accessories of any kind used by the Customer are manufactured by or approved by Leader Hydraulics;
10.1.4. the defective parts are promptly returned free of cost to Leader Hydraulics.
10.2. If the Goods are not manufactured by Leader Hydraulics the guarantee of the manufacturer of those Goods is accepted by the Customer and is the only guarantee given to the Customer in respect of the Goods. Leader Hydraulics agrees to assign to the Customer on request made by the Customer the benefit of any warranty or entitlement to the Goods that the manufacturer has granted to Leader Hydraulics under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
10.3. Leader Hydraulics is not liable for and the Customer releases Leader Hydraulics from any claims in respect of faulty or defective or inaccurate design of any Goods supplied unless such design has been wholly prepared by Leader Hydraulics and the responsibility for any claim has been specifically accepted by Leader Hydraulics in writing. In any event Leader Hydraulics's liability under this paragraph is limited strictly to the replacement of defective parts in accordance with clause 10.1.
10.4. Except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the Goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. Leader Hydraulics is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the Goods or if the Goods have not been used, stored or maintained as recommended, or if the Goods have been modified or repaired other than by Leader Hydraulics,, arising out of Leader Hydraulics's negligence or in any way.
11. Consumer guarantees
11.1. Leader Hydraulics's liability for a breach of a condition or warranty implied by Pt 3-2 Div 1 of the Australian Consumer Law is limited to:
11.1.1. in the case of Goods, any one or more of the following:
18.104.22.168. the replacement of the Goods or the supply of equivalent goods;
22.214.171.124. the repair of the Goods;
126.96.36.199. the payment of the cost of replacing the Goods or of acquiring equivalent goods;
188.8.131.52. the payment of the cost of having the Goods repaired; or
11.1.2. in the case of services:
184.108.40.206. the supplying of the services again; or
220.127.116.11. the payment of the cost of having the services supplied again.
12. Indemnification of suppliers by manufacturers
12.1. Leader Hydraulics's liability under s 274 of the Australian Consumer Law is expressly limited to a liability to pay to the purchaser an amount equal to:
12.1.1. the cost of replacing the Goods;
12.1.2. the cost of obtaining equivalent goods; or
12.1.3. the cost of having the Goods repaired,
12.1.4. whichever is the lowest amount.
13. Rights in relation to Goods
13.1. Leader Hydraulics reserves the following rights in relation to the Goods until all accounts owed by the Customer to Leader Hydraulics are fully paid:
13.1.1. ownership of the Goods;
13.1.2. 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
13.1.3. subject to, and in accordance with, the Personal Property Securities Act 2009, to keep or resell any Goods repossessed pursuant to 13.1.2 above or 13.1.1 above.
13.2. If the Goods are resold, or products manufactured using the Goods are sold, by the Customer, the Customer shall hold such part of the proceeds of any such sale as represents the invoice price of the Goods sold or used in the manufacture of the Goods sold in a separate identifiable account as the beneficial property of Leader Hydraulics and shall pay such amount to Leader Hydraulics upon request. Notwithstanding the provisions above Leader Hydraulics shall be entitled to maintain an action against the Customer for the purchase price and the risk of the Goods shall pass to the Customer upon delivery.
14. Customer's property
14.1. Any property of the Customer under Leader Hydraulics's possession, custody or control is completely at the Customer's risk as regards loss or damage caused to the property or by it.
15.1. Leader Hydraulics reserves the right to charge a reasonable fee for storage if delivery instructions are not provided by the Customer within fourteen days of a request by Leader Hydraulics for such instructions. The parties agree that Leader Hydraulics may charge for storage from the first day after Leader Hydraulics requests the Customer to provide delivery instructions.
16. Returned Goods
16.1. Except for any provisions to the contrary contained in this agreement, Leader Hydraulics is not under any duty to accept Goods returned by the Customer and will do so only on terms to be agreed in writing in each individual case.
16.2. If Leader Hydraulics agrees to accept returned Goods from the Customer under 16.1 of this clause, the Customer must return the Goods to Leader Hydraulics at Leader Hydraulics's place of business.
17. Personal Property Securities Act 2009 (PPSA)
17.1. This agreement is a security agreement.
17.2. The interest of Leader Hydraulics in the Goods and all proceeds from the sale of the Goods by the Customer to a third party is a security interest.
17.3. The Customer consents to Leader Hydraulics registering its security interest on the Personal Property Securities Register and agrees to provide all assistance reasonable required by Leader Hydraulics to facilitate registration.
17.4. Until such time as title in the Goods has passed to the Customer, 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.
17.5. The Customer waives its rights to receive any notice under PPSA (including notice of verification statement) unless the notice is required by that Act and cannot be excluded.
17.6. Leader Hydraulics 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. Leader Hydraulics and Customer agree that Leader Hydraulics will not disclose the Confidential Information pursuant to a request under section 275(1) of the PPSA.
17.7. Unless the Goods are used predominantly for personal, domestic or household purposes, Leader Hydraulics and the Customer agree each of the following requirements or rights under the PPSA do not apply to the enforcement of Leader Hydraulics’s security interest in the Goods or of this agreement:
17.7.1. any requirement for Leader Hydraulics to give the Customer a notice of removal of accession and any requirement for Leader Hydraulics to give the Customer a notice of Leader Hydraulics’s proposed disposal of the goods;
18.104.22.168. any requirement for Leader Hydraulics to include in a statement of account, after disposal of the Goods, the details of any amounts paid to other secured parties;
22.214.171.124. any requirement for Leader Hydraulics to give the Customer a statement of account if Leader Hydraulics does not dispose of the Goods;
126.96.36.199. any right the Customer has to redeem the Goods before Leader Hydraulics exercises a right of disposal; and
188.8.131.52. any right the Customer has to reinstate this agreement before Leader Hydraulics exercises a right of disposal of the Goods.
17.7.2. Expressions defined in the PPSA have the same meaning when used in this agreement.
18.1. In the absence of any breach of this agreement, either party may terminate this agreement in its absolute discretion with a minimum of 60 days written notice to the other party.
18.2. This agreement will automatically terminate if a party enters into any arrangement with its creditors or has a receiver appointed over any of its assets or is the subject of any resolution or petition for winding up or judicial management (other than for the purpose of amalgamation or reconstruction).
18.3. Either party may terminate this agreement if the other party is in material breach of any of its obligations under this agreement and if the breach is capable of remedy fails to remedy the breach for a period of 30 days after receipt of a written notice by the other party requiring rectification of the breach.
18.4. Exercise of the right of termination afforded to either party under this clause will not prejudice the legal rights or remedies which either party may have against the other in respect of a breach of any term, condition or warranty of this agreement.
18.5. The obligations of the parties that by their nature could reasonably construed as being intended to continue to apply beyond the termination of this agreement will continue to apply.
19.1. This Agreement is governed by the laws of NSW and Australia and the parties submit to the courts of NSW and Australia.
19.2. This document may not be amended unless in writing and signed by both parties.
19.3. This Agreement excludes all prior discussions, and representations made by the parties.
19.4. This Agreement excludes all purchase orders or documents delivered by the Customer to Leader Hydraulics.
19.5. Nothing in these conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010) and which by law cannot be excluded, restricted or modified.