Terms & Conditions

Current as at July 2025

1. Definitions
1.1 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, Contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.2 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.3 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when using the Supplier’s website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
1.4 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting the Supplier to provide the Services as specified in any proposal, quotation, order, invoice, or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a partnership, it shall bind each partner jointly and severally; and
(c) if the Customer is on behalf of or part of, a Trust, shall be bound in its own capacity as a trustee; and
(d) includes the Customer’s executors, administrators, successors, and permitted assigns.
1.5 “Goods” means all Goods or Services supplied by the Supplier to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.6 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
1.7 “Installation” shall mean the levelling and positioning of the Goods, removal of travel clamps, aligning of any auxiliary equipment, and checking and adjusting where necessary all lubricant levels but does not include the provision of a level site of sufficient strength capability for the Goods, or the connection of all necessary air and power supplies to the machine, the provision of which is the sole responsibility of the Customer.
1.8 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between the Supplier and the Customer in accordance with clause 7 below.
1.9 “Supplier” means Hare & Forbes Pty Ltd T/A Hare & Forbes Machinery House, Tools 4Industry its successors and assigns or any person acting on behalf of and with the authority of Hare & Forbes Pty Ltd T/A Hare & Forbes Machinery House or Tools 4Industry.

2. Acceptance
2.1 The parties acknowledge and agree that:
(a) they have read and understood the terms and conditions contained in this Contract; and
(b) the parties are taken to have exclusively accepted and are immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Customer acknowledges and accepts that the supply of Goods on credit shall not take effect until the Customer has completed a credit application with the Supplier and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Goods requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, the Supplier reserves the right to refuse delivery.
2.6 Any advice, recommendation, information, assistance or service provided by the Supplier in relation to Goods or Services supplied is given in good faith to the Customer, or the Customer’s agent and is based on the Supplier’s own knowledge and experience and shall be accepted without liability on the part of the Supplier. Where such advice or recommendations are not acted upon then the Supplier shall require the Customer or their agent to authorise commencement of the Services in writing. The Supplier shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services. Accordingly, the Supplier offers no warranty in regard to the aforementioned.
2.7 The Customer acknowledges that delivery lead times advised the Supplier are indicative only and shall not be binding on the Supplier.
2.8 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3. Errors and Omissions
3.1 The Customer acknowledges and accepts that the Supplier shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by the Supplier in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Supplier in respect of the Services.
3.2 In circumstances where the Customer is required to place an order for Goods, in writing, or otherwise as permitted by these terms and conditions, the Customer is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order for Goods (whether they are made to order Goods or not) ("Customer Error"). The Customer must pay for all Goods it orders from the Supplier notwithstanding that such Goods suffer from a Customer Error and notwithstanding that the Customer has not taken or refuses to take Delivery of such Goods. The Supplier is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Customer Errors.


4. Change in Control
4.1 The Customer shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Customer shall be liable for any loss incurred by the Supplier as a result of the Customer’s failure to comply with this clause.

5. Goods
5.1 Unless otherwise agreed in writing, any Goods supplied by the Supplier to the Customer shall be deemed to operate satisfactorily if the Goods operate in accordance with the relevant specifications of the manufacturer of the Goods.
5.2 The Customer acknowledges that the ability of the Goods to operate satisfactorily in accordance with their specifications is dependent upon the proper layout and maintenance of the Goods and all parts thereof, proper material control and other factors:
(a) for which the Customer is responsible; and
(b) which are beyond the control of the Supplier.
5.3 Unless otherwise agreed in writing, the Goods shall be supplied to the manufacturer’s standard finish and dimensions. Neither the Supplier nor the manufacturer accepts any responsibility or liability whatsoever should the colour, designs or dimensions of the Goods vary from the colour, designs or dimensions contained in any product catalogue, brochure or other promotional or information document in respect of the Goods.

6. On-Line Ordering
6.1 The Customer acknowledges and agrees that:
(a) the Supplier does not guarantee the website’s performance;
(b) display on the website does not guarantee the availability of any particular Goods; therefore, all orders placed through the website shall be subject to confirmation of acceptance by the Supplier;
(c) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades;
(d) there are inherent hazards in electronic distribution, and as such the Supplier cannot warrant against delays or errors in transmitting data between the Customer and the Supplier including orders, and you agree that to the maximum extent permitted by law, the Supplier will not be liable for any losses which the Customer suffers as a result of online-ordering not being available or for delays or errors in transmitting orders;
(e) when making a transaction through the website, the Customer’s information will pass through a secure server using SSL (secure sockets layer) encryption technology or any other similar technology as disclosed by the Supplier and/or displayed on the website. The encryption process ensures that the Customer’s information cannot be read by or altered by outside influences; and
(f) if the Customer is not the cardholder for any credit card being used to pay for the Goods, the Supplier shall be entitled to reasonably assume that the Customer has received permission from the cardholder for use of the credit card for the transaction.
6.2 The Supplier reserves the right to terminate the Customer’s order if it learns that you have provided false or misleading information, interfered with other users or the administration of the Customer’s business, or violated these terms and conditions.

7. Price and Payment
7.1 At the Supplier’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by the Supplier to the Customer upon placement of an order for Goods; or
(b) the Price as at the date of Delivery of the Goods according to the Supplier’s current price list, as previously disclosed to the Customer upon the Customer’s placement of an order for Goods; or
(c) the Supplier’s quoted Price (subject to clause 8.1) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
7.2 At the Supplier’s sole discretion, a reasonable non-refundable deposit may be required upon placement of an order for Goods, in accordance with any quotation provided by the Supplier or as notified to the Customer prior to the placement of an order for Goods.
7.3 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by the Supplier, which may be:
(a) on or before delivery of the Goods; or
(b) by way of instalments/progress payments in accordance with the Supplier’s payment schedule; or
(c) thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices; or
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Supplier.
7.4 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and the Supplier.
7.5 The Supplier may in its discretion allocate any payment received from the Customer towards any invoice that the Supplier determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer the Supplier may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Supplier, payment will be deemed to be allocated in such manner as preserves the maximum value of the Supplier’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
7.6 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Customer must notify the Supplier in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as the Supplier investigates the disputed claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in the Supplier placing the Customer’s account into default and subject to default interest in accordance with clause 18.1.
 

7.7 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to the Supplier an amount equal to any GST the Supplier must pay for any supply by the Supplier under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

8. Price Variations
8.1 The Supplier reserves the right to change the Price if a variation to the Supplier’s quotation is requested.
8.2 Variations will be charged for on the basis of the Supplier’s quotation, and will be detailed in writing, and shown as variations on the Supplier’s invoice. The Customer shall be required to respond to any variation submitted by the Supplier within ten (10) working days. Failure to do so will entitle the Supplier to add the cost of the variation to the Price.
8.3 Payment for all variations must be made in full at the time of their completion.
8.4 The Supplier reserves the right to charge the Customer for any fluctuation in foreign exchange currency rates resulting in an increase in the cost to the Supplier of obtaining the Goods or delivering the Goods to the Customer. The Customer acknowledges that any sum charged by the Supplier in respect of such fluctuation shall be based upon the entire purchase Price, irrespective of whether a deposit has been paid by the Customer.

9. Delivery
9.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at the Supplier’s address; or
(b) the Supplier (or the Supplier’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
9.2 The cost of Delivery will be payable by the Customer in accordance with the quotation provided by the Supplier to the Customer, or as otherwise notified to the Customer prior to the placement of an order for Goods.
9.3 Where 9.1(a) applies, and unless otherwise agreed in writing:
(a) the Supplier shall arrange for transport of the Goods to the Customer’s specified Delivery point; and
(b) the Customer is responsible for unloading the Goods from the transport vehicle; or
(c) if no Delivery point has been specified by the Customer, the Customer shall collect the Goods from the Supplier’s premises within seven (7) days of the Supplier notifying the Customer that the Goods are ready for collection.
9.4 If the Supplier notifies the Customer that the Goods are ready for transport or collection and the Customer requests the Supplier to hold the Goods, or where clause 9.3(c) applies and the Customer does not collect the Goods within seven (7) days of notification by the Supplier that the Goods are ready for collection then:
(a) the Supplier shall hold the Goods; and
(b) Delivery shall be deemed to have occurred and the Goods shall be at the Customer’s risk from the time of the Customer’s request or failure to collect as per 9.3(c); and
(c) the Supplier shall be entitled to charge storage fees in respect of the Goods so stored. Storage fees shall be due and payable by the Customer on the date for payment of the Price.
9.5 Delivery of the Goods to a third party nominated by the Customer is deemed to be Delivery to the Customer for the purposes of this Contract.
9.6 The Supplier may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
9.7 The Supplier may extend the anticipated Delivery date without consultation with the Customer. Where such an extension occurs, the Supplier shall notify the Customer of the extension as soon thereafter as is reasonably practicable.
9.8 Any time specified by the Supplier for Delivery of the Goods is an estimate only and the Supplier will not be liable for any loss or damage incurred by the Customer because of Delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. If the Supplier is unable to supply the Goods as agreed solely due to any action or inaction of the Customer, then the Supplier shall be entitled to charge a reasonable fee for redelivery and/or storage.
9.9 If the Supplier has agreed in writing to install the Goods, then:
(a) the Supplier shall arrange for the Installation of the Goods; and
(b) the Supplier is entitled to charge a fee for the Installation. The Installation fee shall be due and payable by the Customer on the date for payment of the Price.

10. Risk
10.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
10.2 Delivery of the Goods shall be deemed to occur, and the Goods shall be at the Customer’s risk:
(a) in the case of transport to the Customer’s specified Delivery point; upon the commencement of the unloading of the Goods from the transport vehicle; or
(b) in the case of collection by the Customer from the Supplier’s premises; upon the commencement of the loading of the Goods onto the Customer’s vehicle; or
(c) in the case of Installation; the risk in the Goods passes to the Customer upon Installation.
10.3 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, the Supplier is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.
10.4 If the Customer requests the Supplier to leave Goods outside the Supplier’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Customer’s sole risk.

11. Compliance with Laws
11.1 The Customer and the Supplier shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Goods/Services.
12. Title
12.1 The Supplier and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid the Supplier all amounts owing to the Supplier; and
(b) the Customer has met all of its other obligations to the Supplier.
12.2 Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
12.3 It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 12.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to the Supplier on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand;
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Supplier and must sell, dispose of or return the resulting product to the Supplier as it so directs;
(e) the Customer irrevocably authorises the Supplier to enter any premises where the Supplier believes the Goods are kept and recover possession of the Goods;
(f) the Supplier may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Supplier; and
(h) the Supplier may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.

13. Personal Property Securities Act 2009 (“PPSA”)
13.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
13.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by the Supplier to the Customer, and the proceeds from such Goods.
13.3 The Customer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Supplier may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 13.3(a)(i) or 13.3(a)(ii).
(b) indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Supplier;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods or the proceeds of such Goods in favour of a third party without the prior written consent of the Supplier; and
(e) immediately advise the Supplier of any material change in its business practices of selling the Goods which would result in a change in proceeds derived from such sales.
13.4 The Supplier and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
13.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
13.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
13.7 Unless otherwise agreed to in writing by the Supplier, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
13.8 The Customer must unconditionally ratify any actions taken by the Supplier under clauses 13.3 to 13.5.
13.9 Subject to any express provisions to the contrary (including those contained in this clause 13), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

14. Security and Charge
14.1 In consideration of the Supplier agreeing to supply the Goods and/or provide its Services, the Customer grants the Supplier a security interest by way of a floating charge (registerable by the Supplier pursuant to the PPSA) over all of its present and after acquired rights, title and interest (whether joint or several) in all other assets that is now owned by the Customer or owned by the Customer in the future, to the extent necessary to secure the repayment of monies owed under this Contract for provision of the Goods and/or Services under this Contract and/or permit the Supplier to appoint a receiver to the Customer in accordance with the Corporations Act 2001 (Cth).
14.2 The Customer indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under this clause.
14.3 In the event that the Customer defaults or breaches any term of this Contract and as a result, the security provided in clauses 12.1,13.2 and 14.1 as applicable, is deemed insufficient by the Supplier to secure the repayment of monies owed by the Customer to the Supplier, the Customer hereby grants the Supplier a security interest as at the date of the default, by way of a charge, that enables the right and entitlement to lodge a caveat over any real property and or land owned by the Customer now, or owned by the Customer in the future, to secure the performance of the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money.

15. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
15.1 The Customer must inspect the Goods on Delivery and must within seven (7) days of Delivery notify the Supplier in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow the Supplier to inspect the Goods.
15.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
15.3 The Supplier acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
15.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Supplier makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. The Supplier’s liability in respect of these warranties is limited to the fullest extent permitted by law.
15.5 If the Customer is a consumer within the meaning of the CCA, the Supplier’s liability is limited to the extent permitted by section 64A of Schedule 2.
15.6 If the Supplier is required to replace the Goods under this clause or the CCA, but is unable to do so, the Supplier may refund any money the Customer has paid for the Goods.
15.7 If the Customer is not a consumer within the meaning of the CCA, the Supplier’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Customer by the Supplier at the Supplier’s sole discretion;
(b) limited to any warranty to which the Supplier is entitled, if the Supplier did not manufacture the Goods; and/or
(c) otherwise negated absolutely.
15.8 Subject to this clause 15, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 15.1; and
(b) the Supplier has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
15.9 Notwithstanding clauses 15.1 to 15.8 but subject to the CCA, the Supplier shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Customer failing to properly maintain or store any Goods;
(b) the Customer using the Goods for any purpose other than that for which they were designed;
(c) the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Customer failing to follow any instructions or guidelines provided by the Supplier; and/or
(e) fair wear and tear, any accident, or act of God.
15.10 In the case of second-hand Goods, unless the Customer is a consumer under the CCA, the Customer acknowledges that it has had full opportunity to inspect the second-hand Goods prior to Delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by the Supplier as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Customer acknowledges and agrees that the Supplier has agreed to provide the Customer with the second-hand Goods and calculated the Price of the second- hand Goods in reliance of this clause 15.10.
15.11 The Supplier may in its absolute discretion accept non-defective Goods for return in which case the Supplier may require the Customer to pay handling fees of up to fifteen percent (15%) of the value of the returned Goods plus any freight costs.
15.12 Notwithstanding anything contained in this clause if the Supplier is required by a law to accept a return, then the Supplier will only accept a return on the conditions imposed by that law.
15.13 Subject to clause 15.1, customised, or non-stocklist items or Goods made or ordered to the Customer’s specifications are not acceptable for credit or return.

16. Limitation of Liability and Indemnity
16.1 The Supplier acknowledges that under applicable State, Territory and Commonwealth Law (including, without limitation, the Competition and Consumer Act 2010 (CCA)), certain statutory guarantees and rights may apply to the supply of Goods and/or Services (Non-Excluded Guarantees). Nothing in these terms and conditions purports to modify or exclude those Non-Excluded Guarantees where they cannot be lawfully excluded.
16.2 Subject to clause 16.1, if the Supplier is liable to the Customer in relation to the supply of Goods or Services (whether under statute, contract, tort or otherwise), the Supplier’s liability is limited, at the Supplier’s sole discretion, to one or more of the following:
(a) the replacement of the Goods or supply of equivalent Goods;
(b) the repair of the Goods;
(c) the payment of the cost of replacing the Goods or of acquiring equivalent Goods;
(d) the payment of the cost of having the Goods repaired;
(e) in the case of Services, the resupply of the Services or the payment of the cost of having the Services resupplied.
16.3 Subject to clause 16.1, the Supplier shall not be liable for any indirect or consequential loss or damage, including but not limited to loss of profit, loss of revenue, loss of opportunity, or loss of goodwill, unless such loss arises as a direct result of a breach of the Non-Excluded Guarantees or other rights which cannot lawfully be excluded.
16.4 Subject to clause 16.1, the Supplier shall not be liable for any defect, loss or damage arising as a result of:
(a) the Customer failing to properly maintain or store any Goods;
(b) the Customer using the Goods for any purpose other than that for which they were designed;
(c) the Customer continuing to use the Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Customer failing to follow any instructions or guidelines provided by the Supplier;
(e) fair wear and tear, accident, or act of God; or
(f) any unauthorised modification, repair or misuse of the Goods.
16.5 The Customer indemnifies the Supplier against any liability, loss, damage, cost or expense (including legal costs on a full indemnity basis) incurred by the Supplier as a result of:
(a) the Customer’s breach of these terms and conditions;
(b) the Customer’s negligent or unlawful act or omission;
16.6 provided that the Supplier’s right to be indemnified does not apply to the extent that the loss or damage is caused or contributed to by the Supplier’s own negligence or breach.
16.7 The Supplier’s liability shall be reduced proportionally to the extent that the Customer’s act or omission caused or contributed to the liability, loss, damage or expense.

17. Intellectual Property
17.1 Where the Supplier has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of the Supplier. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Supplier.
17.2 The Customer warrants that all designs, specifications, or instructions given to the Supplier will not cause the Supplier to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Supplier against any action taken by a third party against the Supplier in respect of any such infringement.
17.3 The Customer agrees that the Supplier may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Supplier has created for the Customer.

18. Default and Consequences of Default
18.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Supplier’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
18.2 If the Customer owes the Supplier any money, the Customer shall indemnify the Supplier from and against all costs and disbursements:
(a) incurred; and/or
(b) which would be incurred and/or
(c) for which by the Customer would be liable;
in regard to legal costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under these terms and conditions, internal administration fees, the Supplier’s Contract fees owing for breach of these terms and conditions’, including, but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.
18.3 Further to any other rights or remedies the Supplier may have under this Contract, if a Customer has made payment to the Supplier, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Supplier under this clause 18 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
18.4 Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by the Supplier;
(c) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

19. Cancellation
19.1 Without prejudice to any other remedies the parties may have, if at any time either party is in breach of any obligation (including those relating to payment) under these terms and conditions (“the Breaching Party”) the other party may suspend or terminate the supply or purchase of Goods and/or Services to the other party, with immediate effect, by providing the Breaching Party with written notice. Neither party will be liable for any loss or damage the other party suffers because one of the parties has exercised its rights under this clause.
19.2 If the Supplier, due to reasons beyond the Supplier’s reasonable control, is unable to deliver any Goods and/or Services to the Customer, the Supplier may cancel any Contract to which these terms and conditions apply or cancel Delivery of Goods and/or Services at any time before the Goods and/or Services are delivered by giving written notice to the Customer. On giving such notice the Supplier shall repay to the Customer any money paid by the Customer for the Goods and/or Services. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.
19.3 The Customer may cancel Delivery of the Goods and/or Services by written notice served within forty-eight (48) hours of placement of the order, prior to the Goods being dispatched. If the Customer cancels Delivery in accordance with this clause 19.3, the Customer will not be liable for the payment of any costs of the Supplier, except where a deposit is payable in accordance with clause 7.2.
19.4 However, cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will not be accepted once production has commenced, or an order has been placed.

20. Privacy Policy
20.1 All emails, documents, images, or other recorded information held or used by the Supplier is Personal Information, as defined and referred to in clause 20.4, and therefore considered Confidential Information. The Supplier acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). The Supplier acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by the Supplier that may result in serious harm to the Customer, the Supplier will notify the Customer in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law.
20.2 Notwithstanding clause 20.1, privacy limitations will extend to the Supplier in respect of Cookies where the Customer utilises the Supplier’s website to make enquiries. The Supplier agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to the Supplier when the Supplier sends an email to the Customer, so the Supplier may collect and review that information (“collectively Personal Information”).
If the Customer consents to the Supplier’s use of Cookies on the Supplier’s website and later wishes to withdraw that consent, the Customer may manage and control the Supplier’s privacy controls via the Customer’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
20.3 The Customer agrees for the Supplier to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Customer in relation to credit provided by the Supplier.
20.4 The Customer agrees that the Supplier may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
20.5 The Customer consents to the Supplier being given a consumer credit report to collect personal credit information relating to any overdue payment on commercial credit.
20.6 The Customer agrees that personal credit information provided may be used and retained by the Supplier for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
20.7 The Supplier may give information about the Customer to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Customer including credit history.
20.8 The information given to the CRB may include:
(a) Personal Information as outlined in 20.4 above;
(b) name of the credit provider and that the Supplier is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults (provided the Supplier is a member of an approved OAIC External Disputes Resolution Scheme), overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and the Supplier has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of the Supplier, the Customer has committed a serious credit infringement; or
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
20.9 The Customer shall have the right to request (by e-mail) from the Supplier:
(a) a copy of the Personal Information about the Customer retained by the Supplier and the right to request that the Supplier correct any incorrect Personal Information; and
(b) that the Supplier does not disclose any Personal Information about the Customer for the purpose of direct marketing.
20.10 The Supplier will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
20.11 The Customer can make a privacy complaint by contacting the Supplier via e-mail. The Supplier will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to reach a decision on the complaint within thirty (30) days of receipt of the complaint. If the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.

21. Unpaid Seller’s Rights
21.1 Where the Customer has left any item with the Supplier for repair, modification, exchange or for the Supplier to perform any other service in relation to the item and the Supplier has not received or been tendered the whole of any monies owing to it by the Customer, the Supplier shall have, until all monies owing to the Supplier are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
21.2 The lien of the Supplier shall continue despite the commencement of proceedings, or judgment for any monies owing to the Supplier having been obtained against the Customer.

22. Service of Notices
22.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission; or
(e) if sent by email to the other party’s last known email address.
22.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

23. Trusts
23.1 If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust or as an agent for a trust (“Trust”) then whether or not the Supplier may have notice of the Trust, the Customer covenants with the Supplier as follows:
(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust, the trustees and the trust fund;
(b) the Customer has full and complete power and authority under the Trust or from the Trustees of the Trust as the case may be to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust, the trustees and the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Customer will not during the term of the Contract without consent in writing of the Supplier (the Supplier will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Customer as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust fund or trust property.

24. General
24.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable, that provision shall be severed from this Contract, and the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
24.2 These terms and conditions and any Contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts in Parramatta, New South Wales. These terms prevail over all terms and conditions of the Customer (even if they form part of the Customer’s purchase order).
24.3 The Supplier may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent provided the assignment does not cause detriment to the Customer.
24.4 The Customer cannot licence or assign without the written approval of the Supplier.
24.5 The Supplier may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of the Supplier’s sub-contractors without the authority of the Supplier.
24.6 The Customer agrees that the Supplier may amend their general terms and conditions for subsequent future Contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for the Supplier to provide Goods to the Customer.
24.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Customer to make a payment to the Supplier, once the parties agree that the Force Majeure event has ceased.
24.8 Both parties warrant that they have the power to enter this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
24.9 The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution and Delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.
24.10 If part or all of any term of this Contract is or becomes invalid, illegal or unenforceable, it shall be severed from this Contract and shall not affect the validity and enforceability of the remaining terms of this Contract.

Current as at July 2025

PART A: OVERVIEW OF THESE TERMS

1. Introduction
1.1 These Terms set out all of the terms and conditions that apply to Products and Services that we supply to you.
1.2 Any other terms and conditions will not apply unless expressly approved in writing by us for a particular Order.
1.3 We may update these Terms on notice to you in writing. Our updated Terms will apply to all Products and Services you order after we have notified you that we have updated our Terms.

PART B: PRODUCTS AND SERVICES

2. Order process
2.1 You may order Products and Services from us in accordance with our order processes that we advise to you at any time.
2.2 All Orders are subject to acceptance by us. We may accept an Order (in whole or in part) by issuing an invoice for the applicable Products and Services, delivering the Products and Services or otherwise confirming the order in writing.
2.3 We are under no obligation to enquire as to the authority of any person placing an Order on your behalf.
2.4 You may request Variations to Orders. However, acceptance is at our discretion and is subject to our approval in writing, and in accordance with clause 8.
3. Delivery of Products and Supply of Services
3.1 We will use reasonable efforts to deliver Products and provide Services on the Delivery Date specified in the relevant Order. However, unless expressly agreed otherwise, the Delivery Date is indicative only.
3.2 You may collect the Products at our premises, or we will deliver the Products and provide the Services at the delivery location set out in the relevant Order or any other location agreed with you in writing.
3.3 Unless otherwise agreed in writing:
(a) we shall arrange for transport of the Products to your specified delivery point; and
(b) we are entitled to charge a delivery fee for such transport. The delivery fee shall be due and payable by you on the date for payment of the Price; but
(c) you are responsible for unloading the Products from the transport vehicle; or
(d) if no delivery point has been specified by you, you shall collect the Products from our premises within 7 days of us notifying you that the Products are ready for collection.
3.4 If we notify you that the Products are ready for transport or collection and you request us to hold the Products, or where clause 3.3(d) applies and you do not collect the Products within 7 days of notification by us that the Products are ready for collection then;
(a) we shall hold the Products; and
(b) delivery shall be deemed to have occurred, and the Products shall be at your risk from the time of your request or failure to collect as per 5.2 (d); and
(c) we shall be entitled to charge storage fees in respect of the Products so stored. Storage fees shall be due and payable by you on the date for payment of the Price.
3.5 If you request that we leave the Products outside our premises for collection or to deliver the Products to an unattended location, then the Products shall be left at your sole risk. In the event that the Products are lost, damaged or destroyed then replacement of the Products shall be at your expense.
3.6 Subject to clause 17, if the delivery location is at your premises, you must provide our Representatives with suitable access to your premises during normal business hours, together with any assistance reasonably required by our Representatives to deliver the Products and perform the Services.
4. Supply of Products
4.1 Clauses 4 and 6 applies if your Order relates to Products.
4.2 We may deliver Orders in instalments (unless agreed otherwise).
4.3 If you delay, fail or refuse to accept delivery of Products, the Products will be treated as delivered when we were willing and able to deliver the Products. Without affecting any other rights we may have, we may charge you for any reasonable expenses or additional costs incurred by us as a result of the delay, failure or refusal to accept delivery (including storage).
4.4 Risk in the Products passes to you on delivery.
4.5 You are responsible for ensuring that any instructions, recommended uses, applications and installation methods are followed for Products and any cautions and/or warnings are observed.
5. Second-hand Products
5.1 In the case of second-hand Products we supply, you agree that you have had full opportunity to inspect the second-hand Products prior to delivery.
5.2 Subject to us complying with clause 5.1, you agree that:
(a) any second-hand Products supplied may contain defects, which will not be treated as a Defect under these Terms;
(b) we do not give any warranty as to the quality or suitability of such Products; and
(c) any implied warranty (statutory or otherwise) in relation to such Products, is (to the extent permitted by law) expressly excluded.
6. Defects
6.1 You must inspect the Products on the date of delivery and notify us of any alleged defect or damage or incorrect products or quantity (Defects). Upon request, you must allow us to inspect, or return to us, any defective or damaged Products. You should notify us of any alleged Defects as soon as possible to enable us to confirm that any Defects occurred before delivery to you.
6.2 If there are any Defects in an Order, the remedies set out in clause 25.1 will apply.
7. Cancellation
7.1 Either party may cancel an Order by written notice if the other party:
(a) commits a material breach of these Terms which is not remedied within 20 Business Days of written notice of the breach from the other party; or
(b) suffers an Insolvency Event.
7.2 If we are unable to deliver any Products or Services to you, due to reasons beyond our reasonable control, we may cancel the Order (in whole or in respect of any instalment) by giving written notice to you. We will repay you any amount you have paid to us in advance for the relevant Products and/or Services. We will not be liable for any loss or damage arising from such cancellation.
7.3 You may cancel delivery of the Products and/or Services by written notice served within 30 hours of placement of the Order.
7.4 We will not accept cancellation of any Order or any Order for Products made to your specifications, or for non-stocklist items, after the Order has been accepted by us except in accordance with clause 7.
8. Variations
8.1 We may require variations to an Order if we identify factors that affect delivery of the Products and Services to you, before or during our provision of the Products and Services. Any such variations will be submitted to you for approval (Variation Notice). You must respond to a Variation Notice as soon as possible (and within 10 Business Days). We may suspend or delay provision of the Products and Services pending your approval.
8.2 If you do not respond to a Variation Notice within 10 Business Days, we may assume that you have accepted the applicable variations.
8.3 If you notify us, within 10 Business Days of a Variation Notice, that you do not accept the variations, we will cancel the Order (or, if applicable, the remaining Products and Services to be provided under the Order) on notice to you. We will repay you any amount you have paid to us in advance for the Products and Services that we do not provide as a result of such cancellation (less any unrecoverable costs that we have incurred).

PART C: PRICE

9. Price
9.1 The Price for Products and Services will be:
(a) calculated in accordance with our current price list as at the date you submit the relevant Order; or
(b) the Price that we have quoted for the Products and Services (subject to clause 9.5).
9.2 We may update our price list at any time on notice to you in advance. Any such updates will only apply to Orders placed after the effective date of the update.
9.3 Unless otherwise stated, the Price does not include GST.
9.4 We may charge you for freight, insurance, Installation, disbursements and any applicable taxes, duties and levies, in addition to the Price.
9.5 Where we provide a quotation, proposal or estimate:
(a) unless otherwise specified, the quotation, proposal or estimate is valid for 30 days from the date of issue and may be subject to such further conditions as are expressly set out in the quote, estimate or pricing;
(b) we may withdraw the quotation, proposal or estimate at any time before you accept it or we accept an Order by notice in writing to you; and
(c) the quotation, proposal or estimate will be exclusive of any applicable additional amounts referred to in clause 9.4.

PART D: PAYMENT TERMS

10. Payment
10.1 You must pay us all Amounts Owing to our bank account (notified to you and updated at any time) or any other payment method that we agree with you.
10.2 Payment shall be:
(a) before delivery of the Products; or
(b) on delivery of the Products; or
(c) by way of instalments/progress payments in accordance with the Order; or
(d) as indicated on our invoice; or
(e) for certain approved credit account holders, the 20th of the month following; or
(f) no later than 7 days from the date of the invoice (unless otherwise stated on the invoice), and
(g) in full without deduction, withholding, set-off or counterclaim.
10.3 If you have any dispute relating to an invoice issued by us, you:
(a) must notify us of that dispute in writing within 7 days from the date of invoice (after that period, unless there is a manifest error, you will be deemed to have accepted the invoice); and
(b) will only withhold payment of the amount in dispute and will, upon resolution of any dispute, immediately pay the balance (if any) due to us.
10.4 We and you each agree to promptly deal with any disputed invoices and, where possible, to resolve disputes before the due date for payment.
11. Credit terms and repayment obligations
11.1 The supply of Products and Services to you on credit is subject to our prior approval. We may use the services of credit reporters and debt collection agencies (in accordance with clause 18.2).
11.2 You must notify us immediately:
(a) if you suffer an Insolvency Event. Any Amount Owing will, whether or not due for payment, immediately become due and payable if an Insolvency Event occurs; or
(b) if you are a company and there is a material change in your effective management or ownership.
12. Deposit and guarantee
12.1 We may require that you pay us in advance, or pay a deposit, or provide a guarantee or other security, before we supply Products or Services, as security for any Amount Owing.
12.2 If we cancel an Order (for any reason other than your breach of these Terms), we will refund any deposit that you have paid to us in full. Otherwise, any deposit that you pay to us is non-refundable, unless we expressly agree otherwise in writing.
13. Rights to recover Products
13.1 We retain ownership of all Products that we supply to you until we have received payment in full of the Amount Owing.
13.2 You may resell or use any Products in the ordinary course of your business before ownership of the Products has passed to you. However, you will be deemed to hold the proceeds of sale or use (in whatever form) on trust for us to the extent of the Amount Owing.
13.3 If any Amount Owing is overdue or if an Insolvency Event occurs, you must return Products to us on request or permit us to enter any premises where Products may be stored to repossess those Products.
14. Late payments
14.1 If payment in full of any Amount Owing (which is not subject to a genuine dispute) is not made to us on the due date, we may:
(a) suspend, or cancel (in accordance with clause 7.1(a)), the provision of any or all Products and Services to you;
(b) cancel any rebates or discounts (whether or not previously credited); and
(c) charge you interest at a rate of 2.5% per month on the balance of the outstanding amount from the due date of payment until the date the outstanding amount is paid, accruing daily and charged monthly.
15. Costs of recovering Amounts Owing
15.1 You must reimburse us for any reasonable costs and expenses we incur to recover any Amount Owing, or exercise our rights to recover Products, including any debt collection fees or commission and full legal expenses.
16. Security interests
16.1 You acknowledge that these Terms create, in our favour, a security interest (as defined in the PPSA) in all Products and the proceeds of any Products (in accordance with clause 13.1) (Security Interest), to secure the payment by you to us of the Amount Owing.
16.2 You undertake to promptly sign any further documents which we may reasonably require to enable us to perfect and maintain the perfection of the Security Interest (including by registration of a financing statement) and to provide not less than 14 days’ prior written notice of any proposed change in your name and/or any other change in details (including changes in address, trading name or business practice).
16.3 The parties agree to contract out of sections 114(1)(a), 133 and 134 of the PPSA. You agree to waive your rights under the PPSA to the extent permitted by section 107(2) of the PPSA and to receive a verification statement relating to the Security Interest. Where we have rights in addition to Part 9 of the PPSA, those rights will continue to apply.
16.4 We reserve the right to require a guarantee, or any other additional security (at your cost), as security for payment, before we provide Products or Services to you.

PART E: COMPLIANCE AND INFORMATION

17. Health and safety
17.1 Each party will comply with the Health and Safety at Work Act 2015 (HSW Act), including all applicable regulations under the HSW Act, as well as all applicable standards and codes of practice relating to health and safety. In addition, each party will comply with the other party’s pre-notified and reasonable health and safety policies when on the party’s premises.
17.2 You must notify us of any known hazards arising from your premises to which any of our Representatives may be exposed while on the premises and ensure that your workplace is without risks to the health and safety of any person.
17.3 Each party must consult, co-operate with and co-ordinate activities with all other persons who have a health and safety duty in relation to the same matter in providing the Products and/or Services (including in connection with the delivery of the Products and/or Services).
18. Privacy
18.1 We may collect, use and share Personal Information:
(a) for the purposes of the performance of our obligations or exercise of our rights under these Terms; and
(b) in accordance with the Privacy Act 2020.
This may include sharing Personal Information with our Related Companies.
18.2 We may use the services of credit reporters and debt collection agencies. We may provide your Personal Information to those agencies in order to use their services. Information disclosed to credit reporters (including default information) will be held by them and used to provide credit reporting services.
18.3 If you provide us with any information about a third party (including a Representative), or authorise us to collect that information, you confirm that you are authorised by the individual concerned to provide their Personal Information to us or authorise the collection of information about them in accordance with this clause 18. You also confirm that you have informed the individual of their rights to access and request correction of Personal Information.
18.4 You (if you are an individual) and your Representatives have the right to access, and request correction of, any of your Personal Information held by us.
19. Confidentiality
19.1 Each party must keep confidential all Confidential Information.
19.2 Nothing in clause 19.1 prevents a party from disclosing Confidential Information if disclosure is:
(a) required by law or a Regulator (but only to the extent required or, if applicable, requested by a Regulator);
(b) is reasonably required to enable a party to perform its obligations or exercise its rights under these Terms; or
(c) to a Related Company or Representatives on a ‘need to know’ basis, provided that person is under a duty to keep the Confidential Information confidential in accordance with these Terms.
19.3 We may refer to you as a customer (including by using your logo) and publish any testimonials or references that you provide to us, on our website and associated marketing materials. We will ensure that any such references or testimonials accurately represent your experience with our Products and Services. Please contact us if you do not approve us referring to you in accordance with this clause or have any comments on published content.
20. Insights and Intellectual property
20.1 We may also use any information that we collect in connection with the Products and Services to improve our Products and Services, for statistical and research purposes, and for general information purposes including to provide industry and market insights (together, Insights), provided that:
(a) we must ensure that our obligations of confidentiality and privacy are paramount – for example, we will ensure that any information that we disclose or publish in accordance with this clause 20.1 is in a fully aggregated and de-identified form (so that it does not identify you or any individuals); and
(b) we will not use information that we collect in connection with the provision of Products and Services to you, in accordance with this clause 20.1, if you have informed us that you do not authorise us to do so.
20.2 To the extent required by law, you grant us a non-exclusive, perpetual, irrevocable, royalty-free licence to use and sub-licence information we collect in connection with the provision of Products and Services to you, in accordance with clause 20.1. However, for clarity, we own the intellectual property rights in all Insights.
20.3 We (or our licensors) own all rights, title and interest in the intellectual property rights in the Products and Services at all times.
20.4 Any new intellectual property which is created by us or on our behalf, including as a result of, or in connection with, the provision of our Products and Services, will be owned by us, unless otherwise agreed in writing.
20.5 You assign all intellectual property rights to us with effect from creation, to the extent required to give effect to clause 20.3 and 20.4, and agree to do all things reasonably required by us to give effect to such assignment.
20.6 You warrant that the use by us of any designs, instructions or specifications supplied to us by you will not infringe the intellectual property rights of any other person and indemnify us against any losses, damages, liabilities or costs (including full legal costs) that we may suffer or incur in the event of any such infringement.

PART F: DISPUTE RESOLUTION AND LIABILITY

21. Dispute Resolution
21.1 If a dispute arises out of or in connection with these Terms, either party may give a notice to the other setting out the details of the dispute (Dispute Notice).
21.2 Following receipt of a Dispute Notice:
(a) a Representative of each of us (with authority to settle the dispute) will meet, within 10 Business Days, to try to resolve the dispute;
(b) if the dispute is not resolved within 10 Business Days of our Representatives meeting (or if the meeting does not take place, for any reason, within 10 Business Days of the date of a Dispute Notice), the dispute will be referred to the senior manager of each party (if applicable), who will try to resolve the dispute within a further 10 Business Days; and
(c) if the dispute is not resolved by our respective Representatives in accordance with clause 21.2(b), then either party may commence court proceedings.
21.3 This clause 21 does not restrict either party from applying to a court for interim measures or any other form of urgent relief at any time. However, neither party may commence any other form of court proceeding without first following the procedure set out in this clause 21.
21.4 Each party must continue to perform its obligations in these Terms, despite the existence of a dispute, subject to the termination rights set out in these Terms.
22. Consumer Guarantees Act
22.1 If you are acquiring, or hold yourself out as acquiring, any Products or Services in trade, to the extent permitted by law, you agree that the parties are contracting out of the CGA (to the extent that the CGA would otherwise apply) and that the CGA does not apply to any matters covered by these Terms.
22.2 If you are acquiring any Products for the purpose of resupply in trade, you undertake that you will:
(a) contract out of the CGA to the maximum extent permitted by law in your contracts with your own customers; and
(b) procure that your customers, and each other person in the distribution chain thereafter, contract out of the CGA to the maximum extent permitted by law in their contracts with customers.
You will indemnify us against any liability or cost incurred by us as a result of your breach of this clause 22.2.
23. Warranties
23.1 We warrant that all Products and Services are free from material defects in materials and workmanship. However, this warranty will not cover any defect or damage to the extent that it is caused by:
(a) any fault or defect in our Products or Services resulting from any of your (or your Representatives) acts or omissions (outside of the ordinary use of the Products or Services); or
(b) minor deviations in specification, measurements, colour, weight, size or strength of the Products.
23.2 You acknowledge that, except for the warranty set out in clause 23.1 and any written materials that we provide to you:
(a) we do not provide any other express warranties relating to the Products and Services; and
(b) we expressly exclude any other Product and and/or Service warranties, including any warranties relating to the suitability for resale, quality or fitness for any particular purpose, of our Products or Services. However, this clause 23.2 is subject to any rights that you may have under the CGA (in accordance with clause 22).
24. Third party suppliers
24.1 If you request and authorise us to arrange the provision of Products or Services directly to you by a third party supplier (whether or not such arrangement involves us contracting as your agent), to the extent applicable, these Terms will apply to our Services in arranging such supply, provided that to the extent permitted by law we exclude all liability in connection with the supply of Products and Services to you directly by a third party supplier. You agree to pay any commission or other payments due to us in accordance with these Terms.
25. Limitation of liability
25.1 To the extent permitted by law, subject to clause 25.3, our total liability under or in connection with these Terms and the Products and Services is limited to, at our option:
(a) in the case of Products, any one or more of the following:
(i) the replacement of the Products or the supply of equivalent products;
(ii) the repair of the Products;
(iii) the payment of the cost of replacing the Products or of acquiring equivalent products; or
(iv) the payment of the cost of having the Products repaired; or
(b) in the case of Services:
(i) supplying the Services again; or
(ii) the payment of the cost of having the Services supplied again.
25.2 Subject to clause 25.3, if we have any liability under or in connection with these Terms, to the maximum extent permitted by law:
(a) our total aggregate liability to you for any loss, damage or liability arising out of or in connection with these Terms will be limited to the Price paid by you to us for the applicable Products and/or Services; and
(b) we will not be liable for any:
(i) indirect, special or consequential loss or damage whatsoever; or
(ii) loss of profits, revenue, data, goodwill, customers or opportunity or loss of or damage to reputation.
25.3 Nothing in these Terms (including clauses 25.1 and 25.2) will limit or exclude our liability for:
(a) any fraudulent act or omission;
(b) a breach of clause 19 (Confidentiality);
(c) our wilful breach of these Terms;
(d) our gross negligence; and/or
(e) any matter to the extent that liability cannot be excluded or limited by law.
25.4 The limitations and exclusions on liability in this clause 25 will apply irrespective of whether the legal basis for the applicable claim contract, equity or tort (including negligence) is. However, this clause 25 does not limit or exclude any rights that you may have under statute.
25.5 In no circumstances will we have any liability whatsoever under or in connection with these Terms:
(a) for the acts or omissions of your Representatives or any third party;
(b) for any acts or omissions of performance in accordance with your instructions (or instructions from your Representatives); or
(c) to any third party.

PART G: GENERAL

26. General
26.1 Governing Law: These Terms are governed by and to be construed in accordance with the laws of New Zealand and each party submits to the exclusive jurisdiction of the courts of Auckland, New Zealand.
26.2 Previous Agreements: These Terms supersede and replace any previous written agreements between the parties relating to the Products and Services.
26.3 Sub-contracting: We may subcontract the performance of our obligations (including to a Related Company), on the basis we remain solely liable to you for the performance of our obligations.
26.4 Assignment: You must not assign, novate or transfer your rights or obligations under these Terms without our prior written consent (which may be withheld in our sole discretion). We may assign these Terms to any other person on notice to you (provided that we will request your prior approval (not to be unreasonably withheld or delayed) if the assignment could have any material adverse effect on you). Without limiting the foregoing, we may assign to any other person all or part of the Amount Owing by you to us.
26.5 Amendments: Any amendment to these Terms must be in writing signed by each party, except where stated otherwise in these Terms or where we are required to make changes to ensure compliance with applicable laws (in which case we notify you of the changes in writing).
26.6 Force majeure: We will not be liable to you for any failure or delay in performing our obligations under these Terms where such failure or delay is caused by events or circumstances beyond our reasonable control, including any strike, lockout, labour dispute, delay in transit, embargo, epidemic, pandemic, accident, emergency, order of government or other authority or act of God.
26.7 Waiver: A single or partial exercise or waiver of a right relating to these Terms does not prevent any other exercise of that right or the exercise of any other right.
26.8 Survival: Any provision of these Terms, which is by its nature a continuing obligation, will survive termination.
26.9 Rights of Third Parties: These Terms are not intended to confer a benefit on any person other than the parties to these Terms.
26.10 Relationship: We will provide Products and Services to you as an independent supplier. Nothing in these Terms creates a relationship of employment, trust, agency, joint venture, partnership or any other fiduciary relationship between the parties.
26.11 Non-exclusive: These Terms are not exclusive and do not impose any restriction on us providing Products and Services to, or you purchasing any product or services from, any other person.
26.12 Counterparts: These Terms may be executed in any number of counterparts (including by electronic signature or by email exchange of .pdf copies) which together will constitute the one instrument.

PART H: DICTIONARY

27. Definitions
Amount Owing means any amount owed by you to us, from time to time, including the Price, any applicable amounts referred to in clause 9.4, any interest payable by you, your liability under these Terms and any enforcement costs incurred by us in seeking payment of any Amounts Owing by you.
Business Day means Monday to Friday, excluding public holidays in New Zealand.
Confidential Information means all information that could be reasonably regarded in the circumstances as confidential, including information which relates to the business, interests or affairs of a party, the terms of use, the Products and Services (as applicable), and intellectual property rights, but excludes information which is:
(a) in the public domain, other than as a result of a breach of these Terms;
(b) in the possession of a party prior to the commencement of these Terms without any obligation of confidentiality; and
(c) is independently developed or acquired by a party prior to the commencement of these Terms without relying on information which would itself be Confidential Information.
Consumer has the meaning given to that term in the Consumer Guarantees Act 1993.
Delivery Date means the date for delivery of the Products and/or Services, as specified in the Order.
Insolvency Event means, in relation to you, any of the following steps has occurred (or we have reasonable grounds to believe that any of these steps is likely to occur):
(a) the primary, or all, of your business activities is suspended or ceases
(b) the presentation of an application for your liquidation;
(c) the making of any compromise, proposal or deed of arrangement with all or some of your creditors;
(d) the appointment of a liquidator, receiver, statutory manager, or similar official;
(e) your suspension or threatened suspension of the payment of your debts as they fall due;
(f) the enforcement of any security against the whole or a substantial part of your assets;
(g) if you are an individual, anything having a similar effect to any of the events specified above happens in relation to you; or
(h) any other insolvency event or proceedings analogous to any of the foregoing occurs in any relevant jurisdiction,
in each case, unless it takes place as part of a solvent reconstruction, amalgamation, merger or consolidation.
Installation means the levelling and positioning of the Products, removal of travel clamps, aligning of any auxiliary equipment, connection of all necessary air and power supplies at the machine, and checking and adjusting where necessary all lubricant levels but DOES NOT include the provision of a level site of sufficient strength capability for the Products, the provision of which is the sole responsibility of you.
Order means an order for Products or Services that you submit to us and we approve, in accordance with clause 2.
Personal Information has the meaning given to that term in the Privacy Act 2020.
PPSA means the Personal Property Securities Act 1999.
Price means the Price payable, in accordance with clause 9.1.
Products means any Products (and associated services) supplied by us to you at any time, including the Products specified in an Order.
Regulator means any authority, commission, government department, court, tribunal, or similar having regulatory or supervisory authority over the parties or any of the Products and/or Services.
Related Company has the meaning given to it in the Companies Act 1993, read as if a reference to company was a reference to any body corporate of any jurisdiction.
Representatives means directors, officers, employees, agents and contractors of the relevant party.
Services means any services supplied by us to you at any time, including the Services specified in an Order.
Specific Terms means the terms (if any) that are included in Part I to these Terms.
Terms means these Terms of Trade (including any Specific Terms outlined in Part I), as may be amended from time to time, each Order and any additional terms expressly agreed in accordance with clause 1.2 (if applicable).
We or us means the supplier of Products and Services, Machineryhouse (NZ) Pty Ltd.
You or your means the customer purchasing Products and Services from us.
28. Interpretation
In these Terms, unless the context otherwise requires:
(a) headings are for convenience only and do not affect interpretation;
(b) a reference to legislation includes all regulations, orders, instruments, codes, guidelines or determinations issued under that legislation or and any modification, consolidation, amendment, re-enactment, replacement or codification of it;
(c) a reference to “in writing” includes by email and a reference to “agree” or “agreement” or “notice” or “approval” means an agreement, notice or approval (as applicable) in writing;
(d) the words “include” or “including”, or similar expressions, are to be construed without limitation;
(e) a reference to a party to includes that party’s successors and permitted assigns and substitutes; and
(f) a word importing the singular includes the plural and vice versa.

PART I: SPECIFIC TERMS

29. Information we provide
29.1 Any advice, recommendation, information or assistance provided by us in relation to the Products and Services supplied is given in good faith to you, or your agent and is based on our own knowledge and experience and shall be accepted without liability on our part. Where such advice or recommendations are not acted upon then we shall require you or your agent to authorise commencement of the Services in writing. We shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services. Accordingly, we offer no warranty in regard to the aforementioned.
29.2 You acknowledge that delivery lead times advised by us are indicative only and shall not be binding on us.
30. Credit card information
30.1 We will:
(a) keep your personal details, including credit card details for only as long as is deemed necessary by us;
(b) not disclose your credit card details to any third party; and
(c) not unnecessarily disclose any of your personal information, except in accordance with the Privacy Act (clause 18) or where required by law.
30.2 You expressly agree that, if pursuant to this contract, there are any unpaid charges or other amounts due and outstanding by you, we shall be entitled to immediately charge your nominated credit card for these amounts, and are irrevocably authorised to complete any documentation and take any action to recover from the credit card issuer any and all amounts which may be due by you pursuant to the terms of this contract.
31. On-line ordering
31.1 You acknowledge and agree that:
(a) we do not guarantee the website’s performance;
(b) display on the website does not guarantee the availability of any particular Products; therefore, all Orders placed through the website shall be subject to confirmation of acceptance by us;
(c) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades;
(d) there are inherent hazards in electronic distribution, and as such we cannot warrant against delays or errors in transmitting data between you and us including Orders, and you agree that to the maximum extent permitted by law, that we will not be liable for any losses which you suffer as a result of on-line ordering not being available or for delays or errors in transmitting Orders;
(e) when making a transaction through the website, your information will pass through a secure server using SSL (secure sockets layer) encryption technology or any other similar technology as disclosed by us and/or displayed on the website. The encryption process ensures that your information cannot be read by or altered by outside influences; and
(f) if you are not the cardholder for any credit card being used to pay for the Products, we shall be entitled to reasonably assume that you have received permission from the cardholder for use of the credit card for the transaction.
31.2 We reserve the right to terminate your Order if we learn that you have provided false or misleading information, interfered with other users or the administration of our Services, or violated these terms and conditions.
32. Your acknowledgments
32.1 If we have agreed in writing to install the Products, then:
(a) we shall arrange for the Installation of the Products; and
(b) we are entitled to charge a fee for the Installation. The Installation fee shall be due and payable by you on the date for payment of the Price.
32.2 We reserve the right to charge you for any fluctuation in foreign exchange currency rates resulting in an increase in the cost to us of obtaining the Products or delivering the Products to you. You acknowledge that any sum charged by us in respect of such fluctuation shall be based upon the entire purchase Price, irrespective of whether a deposit has been paid by you.
32.3 Delivery of the Products shall be deemed to occur, and the Products shall be at your risk, (subject to clause 32.2 above);
(a) in the case of transport to your specified delivery point, upon the commencement of the unloading of the Products from the transport vehicle; or
(b) in the case of collection by you from our premises, upon the commencement of the loading of the Products onto your vehicle; or
(c) in the case of Installation, the risk in the Products passes to you upon Installation.
33. Lien and stoppage in transit
33.1 Where we have not received, or been tendered the whole of the Price, or the payment has been dishonoured, we shall have:
(a) a lien on the Products;
(b) the right to retain the Products whilst we are in possession of the Products until such time as payment has been made in full;
(c) a right of stopping the Products in transit whether or not delivery has been made or ownership has passed; and
(d) a right of resale,
(e) the foregoing right of disposal,
(f) the lien of ours shall continue despite the commencement of proceedings, or judgment for the Price having been obtained; and
(g) we shall be under no obligation to release the Products to you if you are in default of payment except as may be required by any law or statute.