TERMS AND CONDITIONS OF ESAFE GROUP TRADING AS CRANESAFE SERVICES
1. Definitions
1.1 “Seller” shall mean eSafe Group Pty Ltd (ABN: 205 167 559 12) and its successors and assigns.
1.2 “Customer” shall mean the Customer or any person acting on behalf of and
with the authority of the Customer.
1.3 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Customer if a Limited Liability Customer on a
principal debtor basis.
1.4 “Goods” shall mean Goods supplied by the Seller to the Customer (and
where the context so permits shall include any supply of Services as hereinafter defined).
1.5 “Services” shall mean all services supplied by the Seller to the Customer and includes any advice or recommendations.
1.6 “Price” shall mean the cost of the Goods as agreed between the Seller and the Customer subject to clause 4 of this contract.
2. Acceptance
2.1 Any instructions received by the Seller from the Customer for the supply of Goods and/or the Customer’s acceptance of Services and/or Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Seller.
2.4 None of the Seller’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorised statements.
3. Goods/Services
3.1 The Goods and or Services shall be as described on the invoices, quotation, work authorisation, sales order or any other work commencement forms as provided by the Seller to the Customer.
4. Price And Payment
4.1 At the Seller’s sole discretion;
(a) The Price shall be as indicated on invoices provided by the Seller to the Customer in respect of Goods supplied; or (b) The Price of the Goods shall be the Sellers quoted Price, which shall be binding upon the Seller provided that the Customer shall accept in writing the Sellers quotation within thirty (30) days; or (c) The Price of the Goods, subject to clause 4.2 & 4.3, shall be the Sellers contracted Price, which shall be binding upon the Seller provided that the Customer shall accept in writing the Sellers contract within thirty (30) days.
4.2 Any variation from the plan of scheduled works or specifications will be charged for on the basis of the Seller’s variation and will be shown as extras on the invoice. Payment for all extras must be made in full at their time of completion.
4.3 In the event that the Sellers service employee has worked a full eight hour day, at the Sellers sole discretion the Buyer may be charged overtime time rates after the eight hour period regardless of whether or not the full eight hours are worked at the Buyers site. Any callouts outside the Sellers normal business hours are subject to a minimum four (4) hour call out fee.
4.4 Time for payment for the Goods/Services shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be on delivery of the Goods/Service.
4.5 At the Seller’s sole discretion, payment for approved Customers shall be due thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Customer and the Seller.
4.7 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Seller.
5. Delivery Of Goods / Services
5.1 Delivery of the Goods shall be made to the Customer’s address. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Customer at the Sellers address.
5.2 Delivery of the Goods to a carrier, either named by the Customer or failing such naming to a carrier at the discretion of the Seller for the purpose of transmission to the Customer, is deemed to be a delivery of the Goods to the Customer.
5.3 The costs of carriage and any insurance which the Customer reasonably directs the Seller to incur shall be reimbursed by the Customer (without any set-off or other withholding whatever) and shall be due on the date for payment of the Price. The carrier shall be deemed to be the Customer’s agent.
5.4 Where there is no agreement that the Seller shall send the Goods to the Customer, delivery to a carrier at limited carrier’s risk at the expense of the Customer is deemed to be delivery to the Customer.
5.5 The Seller may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract of sale.
5.6 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 agreement.
5.7 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
5.8 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
6. Risk
6.1 If the Seller retains property in the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
6.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Customer, the Seller is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions of Trade (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under the Contract. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
7. Customers Disclaimer
7.1 The Customer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Seller and the Customer acknowledges that he buys the Goods relying solely upon his own skill and judgement and that the Seller shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Customer and shall not be transferable to any subsequent Customer.
8. Defects/Return Of Goods
8.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery notify the Seller in writing of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery. If the Customer shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
8.2 For defective Goods which the Seller has agreed in writing that the Customer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods provided that: (a) the Customer has complied with the provisions of clause 8.1; (b) the Seller will not be liable for Goods which have not been stored or used in a proper manner.
9. Warranty
9.1 Subject to the conditions of warranty set out in Clause 9.2 the Seller warrants that if any defect in any Goods manufactured by the Seller becomes apparent and is reported to the Seller within thirty (30) days of the date of delivery (time being of the essence) then the Seller will (at the Sellers sole discretion) repair or replace the Goods.
9.2 The conditions applicable to the warranty given by Clause 9.1 are: (a) The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through: i) Failure on the part of the Customer to properly maintain any Goods; or ii) Failure on the part of the Customer to follow any instructions or guidelines provided by the Seller; or iii) Any use of any Goods otherwise than for any application specified on a quote or order form; or iv) The continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or v) Fair wear and tear, any accident or act of God. (b) The warranty shall cease and the Seller shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Seller’s consent. (c) In respect of all claims the Seller shall not be liable to compensate the Customer for: (i) any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Customers claim; or (ii) any damages caused to the Customers equipment or otherwise, in the event of failure of the Goods supplied by the Seller.
9.3 For Goods not manufactured by the Seller the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall be under no liability whatsoever (including, but not limited to, any expenses incurred by the Seller in returning Goods to the manufacturer of the Goods. At the Sellers sole discretion such expenses will be charged to the manufacturer of the Goods or to the Customer) except for the express conditions as detailed and stipulated in the manufacturer’s warranty.
9.4 In the case of second hand Goods the Customer acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by the Seller as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Seller shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
10. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
10.1 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
11. Intellectual Property
11.1 Where the Seller has designed or drawn Goods for the Customer, then the copyright in those designs and drawings shall remain vested in the Seller, and shall only be used by the Customer at the Seller’s discretion.
11.2 Conversely, in such a situation, where the Customer has supplied drawings, the Seller in its sale conditions may look for an indemnity (the specifications and design of the Goods (including the copyright, design right or other intellectual property in them) shall as between the parties be the property of the Seller). Where any designs or specifications have been supplied by the Customer for manufacture by or to the order of the Seller then the Customer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party.
11.3 The Customer warrants that all designs or instructions to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Customers order.
12. Default & Consequences Of Default
12.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and shall accrue at such a rate after as well as before any judgement.
12.2 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Seller from and against all the Seller’s costs and disbursements including on a solicitor and own Customer basis and in addition all of costs of collection.
12.3 Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller exercised its rights under this clause
12.4 If any account remains unpaid at the end of the second month after supply of the goods or services the following shall apply: An immediate amount of the greater of $50.00 or 10% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable.
12.5 In the event that: (a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Customer will be unable to meet its payments as they fall due; or (b) 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 (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer; then without prejudice to the Seller’s other remedies at law (i) the Seller shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies; and (ii) all amounts owing to the Seller shall, whether or not due for payment, immediately become payable.
13. Title
13.1 It is the intention of the Seller and agreed by the Customer that property in the goods shall not pass until (a) The Customer has paid all amounts owing for the particular Goods, and (b) The Customer has met all other obligations due by the Customer to the Seller in respect of all contracts between the Seller and the Customer, and that the Goods, or proceeds of the sale of the Goods, shall be kept separate until the Seller shall have received payment and all other obligations of the Customer are met.
13.2 It is further agreed that: (a) The Customer shall not deal with the money of the Seller in any way which may be adverse to the Seller. (b) Until such time as ownership of the Goods shall pass from the Seller to the Customer the Seller may give notice in writing to the Customer to return the Goods or any of them to the Seller. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease. (c) If the Customer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused. (d) Receipt by the Seller 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 and until then the Seller’s ownership of rights in respect of the Goods shall continue. (e) The Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller. (f) The Seller may require payment of the Price or the balance of the Price due together with any other amounts due from the Customer to the Seller arising out of these terms and conditions, and the Seller may take any lawful steps to require payment of the amounts due and the Price. (g) The Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer.
14. Security And Charge
14.1 Notwithstanding anything to the contrary contained herein or any other rights which the Seller may have howsoever: (a) Where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met. (b) Should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own Customer basis. (c) To give effect to the provisions of clause [14.1 (a) and (b)] inclusive hereof the Customer and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Seller or the Seller’s nominee, namely EC Credit Control Pty Limited as the Customer’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registrable or not) including such other terms and conditions as the Seller and/or EC Credit Control Pty Limited shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Customer and/or the Guarantor in any land, realty or asset in favour of the Seller and in the Customer’s and/or Guarantor’s name as may be necessary to secure the said Customer’s and/or Guarantor’s obligations and indebtedness to the Seller and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Seller’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
15. Cancellation
15.1 The Seller may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
16. Privacy Act 1988
16.1 The Customer and/or the Guarantor/s agree for the Seller to obtain from a credit-reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by the Seller.
16.2 The Customer and/or the Guarantor/s agree that the Seller may exchange information about Customer and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes: (a) To assess an application by Customer; (b) To notify other credit providers of a default by the Customer; (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 (d) To assess the credit worthiness of Customer and/or Guarantor/s.
16.3 The Customer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Customer agrees that Personal Data provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Customer and Seller or required by law from time to time: (a) provision of Services & Goods; (b) marketing of Services and or Goods by the Seller, its agents or distributors in relation to the Services and Goods; (c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Services/Goods; (d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and (e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Services and Goods.
16.5 The Seller may give, information about the Customer to a credit reporting agency for the following purposes: (a) to obtain a consumer credit report about the Customer; and or (b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
17. Unpaid Seller’s Rights To Dispose Of Goods
17.1 In the event that: (a) the Seller retains possession or control of the Goods; and (b) payment of the Price is due to the Seller; and (c) the Seller has made demand in writing of the Customer for payment of the Price in terms of this contract; and (d) the Seller has not received the Price of the Goods, then, whether the property in the Goods has passed to the Customer or has remained with the Seller, the Seller may dispose of the Goods and may claim from the Customer the loss to the Seller on such disposal.
18. Lien & Stoppage in Transit
18.1 Where the Seller has not received or been tendered the whole of the price, or the payment has been dishonoured, the Seller shall have: (a) a lien on the goods; (b) the right to retain them for the price while the Seller is in possession of them; (c) a right of stopping the goods 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, provided that the lien of the Seller shall continue despite the commencement of proceedings or judgement for the price having been obtained.
19. General
19.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
19.2 All Services/Goods supplied by the Seller are subject to the laws of Victoria and the Seller takes no responsibility for changes in the law which affect the Services/Goods supplied.
19.3 The Seller shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Seller of these terms and conditions.
19.4 In the event of any breach of this contract by the Seller the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.
19.5 The Customer shall not set off against the Price amounts due from the Seller.
19.6 The Seller may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
19.7 The Seller reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Seller notifies the Customer of such change.
19.8 Neither party shall be liable for any default due to any act of God, terrorism, war, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
19.9 In the event that the Customer requests a further breakdown of invoice components than is usually provided by the Seller then the Seller reserves the right to charge an invoice production fee. Any such fee is to become immediately due and payable.