Terms and Conditions of Sale
Terms and Conditions of Sale
STANDARD TERMS AND CONDITIONS FOR SUPPLY OF GOODS AND SERVICES
The following terms and conditions, apply to any supply of Goods and Services by AME Group Enterprises Pty Ltd ACN 609 766 261.
Please read these terms and conditions carefully. When you submit an order or accept delivery of the Goods or provision Services pursuant to an Order or make any payment for any Goods and Services supplied by us, whichever occurs first, you are deemed to have accepted and will be bound by these terms and conditions (“these Terms”).
If we adopt new Terms for the supply of Goods and Services you will be given written notice and unless otherwise agreed, the new Terms will apply to any supply of Goods and Services pursuant to any subsequent Orders.
Any references in these Terms to “we” “our” or “us” is a reference to the Company and any references in these Terms to “you” or “your” is a reference to the Customer
1. DEFINITIONS AND INTERPRETATION
In these Terms, unless the context otherwise requires, the following words have the following meanings:
Amounts Outstanding means, all amounts owed by the Customer to the Company at that time whether arising under the Contract or otherwise.
Deposit means 10% of the Price, or such other amount as provided in the Proposal.
Company means AME Group Enterprises Pty Ltd.
Contract means the agreement between the Customer and the Company for the supply of Goods or Services in accordance with clause 2(c).
Customer means the person or entity acquiring Goods and Services from the Company, as named in the Proposal.
Event of Default means:
(a) any breach by the Customer of any term of these Terms;
(b) a failure by the Customer to pay any part of the Price by the Payment Date;
(c) the Customer becoming an ‘externally administered body corporate’ as defined by the Corporations Act 2001 (Cth);
(d) any step being taken for the winding up or dissolution of the Customer, including the appointment of an administrator;
(e) the Customer being insolvent within the meaning of the Corporations Act 2001 (Cth);
(f) the Customer committing an ‘act of bankruptcy’ as defined by the Bankruptcy Act 1966 (Cth);
(g) a receiver or a receiver and manager being appointed to the Customer whether by a court or otherwise; and
(h) anything analogous or having substantially similar effect to any of the events specified in paragraphs (a) to (g) above (inclusive) happens under the law of any applicable jurisdiction.
Force Majeure Event includes circumstances beyond the Company’s reasonable control, including without limitation, fire, flood, act of God, strikes, lock outs, stoppage of work, trade disputes, shortage of raw materials, or breakdown in machinery, transport embargos or failure or delay in transportation, any act of war or terrorism, pandemic or disease or change in law.
Goods means the vehicles, equipment and/or parts to be provided by the Company to the Customer that are the subject of a Proposal.
GST Law means the A New Tax System (Goods and Services Tax) Act 1999 and GST has the meaning given in the GST Law.
Intellectual Property means any trademark, registered design, copyright, patent or any other intellectual property rights.
Location means the address for delivery of Goods or provision of Services specified by the Customer in the Order.
Order means an order for the supply of Goods or Services placed by the Customer with the Company in accordance with clause 2
Payment Terms means the terms of payment set out in clause 3.4.
PPSA means the Personal Property Securities Act 2009 (Cth) and any regulations made under it.
PPSR means the Personal Property Securities Register established by the PPSA.
Price means the price for Goods or Services specified in the Proposal (subject always to clause 3.3).
Proposal means the quotation and/or proposal sent to the Customer by the Company setting out the price, deposit, other customary details for the supply of the Goods or Services and any additional or varied terms which depart from these Terms.
Services means the services as described in a Proposal by the Company and includes maintenance and servicing of vehicles and equipment provided by the Company to the Customer from time to time.
In these Terms, unless the contrary intention appears:
(a) a reference to a person or entity includes a natural person, a partnership, corporation, trust, association, unincorporated body, authority or other entity;
(b) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(c) a reference to any document is a reference to that document (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time;
(d) a reference to a party to these Terms includes that party’s executors, administrators, successors and permitted assigns;
(e) a reference to “$” or “Dollars” is a reference to Australian currency; and
(f) the word “including” is not to be treated as a word of limitation;
(g) a reference to time is a reference to the time in Adelaide, South Australia;
(h) a term which purports to bind or benefit two or more persons binds or benefits them jointly and severally; and
(i) in the event of any inconsistency between these Terms and any Order, the terms of the Order will shall prevail only to the extent of any inconsistency.
2. APPLICATION OF TERMS, QUOTATIONS AND ORDERS
(a) These Terms apply to all supplies of Goods and Services by the Company to the Customer unless the Company expressly agrees otherwise in writing.
(b) When the Customer wishes to accept a Proposal issued by the Company to acquire Goods or Services from the Company, it must accept such Proposal in a form prescribed by the Company (including via an electronic portal) within 30 days of the date of the Proposal (Order).
(c) A contract between the Company and the Customer for the supply by the Company, and the acquisition by the Customer, of the Goods or Services specified in the Order will come into existence on the date the Customer submits a valid Order to the Company (Contract).
(d) The Contract will comprise:
(i) the Proposal;
(ii) the Order; and
(iii) these Terms.
(e) In the event of any inconsistency between the provisions of the Proposal and these Terms, the Proposal shall prevail.
(f) A separate Contract is entered into each time the Customer submits an Order to the Company.
(g) The Company will use its reasonable endeavours to supply the Goods or Services to the Customer in accordance with any Order.
3. PRICE AND PAYMENT
In consideration of the supply of the Goods or Services, the Customer must pay the Price to the Company in accordance with the Payment Terms.
(a) The Customer acknowledges that each Proposal has been prepared by the Company on the basis of, and in reliance upon, the information provided by the Customer, and further acknowledges that the provision of incomplete information by the Customer, unforeseen circumstances, misinterpretations and similar events may result in charges additional to those set out in the Proposal. The Customer must pay any such additional amounts to the Company, in full, as invoiced by the Company from time to time.
(b) The Proposal will remain open for acceptance for  days.
(c) Notwithstanding clause 3.2(b) the Company may withdraw the Proposal at any time prior to acceptance.
3.3 Variation in Price
(a) Prices contained in any Proposal for the supply of Goods or Services are based on the cost prevailing (and the specification supplied) at the time of the Proposal. Subject to your rights under law, the Company reserves the right to vary the price if:
(i) there is a change in the cost of supply of the Goods or Services specified in the Proposal;
(ii) the Goods or Services specified in your Order are varied from the Goods or Services specified in our Proposal; or
(iii) otherwise provided in these Terms, and the Company provides the Customer reasonable notice of any such variation of price.
3.4 Payment Terms
(a) The Company will be entitled to invoice the Customer for the Price at any time following the submission of a valid Order form.
(b) All payments due by the Customer under each Contract in relation to the supply of Goods must be paid in accordance with the following payment terms:
(i) The Customer must pay the Deposit upon submitting the Order.
(ii) The balance of the Price is to be paid by the Customer as follows:
(A) where the Customer is not a wholesaler or authorised dealer, in full prior to the delivery of the Goods; and
(B) where the Customer is a wholesaler or authorised dealer, within 7 days of delivery of the Goods.
(c) All payments due by the Customer under each Contract in relation to the provision of Services and delivery of associated parts or equipment must be paid within 30 days from the date of the Company’s invoice.
(d) All amounts owed to the Company for each Order in respect of any Goods or Services must be paid in full by the Customer without any setoff, withholding or deduction.
(e) It is acknowledged and agreed that for the purposes of the Customer’s payment obligations under these Terms, time is of the essence.
(f) If the Customer fails to make any payment to the Company by the due date, then without prejudice to any other right or remedy available to the Company, the Company can in its discretion:
(i) withhold any Goods or take back possession of Goods;
(ii) suspend any further supply of Goods or Services; and/or
(iii) charge the Customer (both before and after any judgement) on the unpaid amount at the rate of 10% per annum, until payment is made in full.
3.5 Cancellation by the Customer
(a) Subject to clause 3.5(b), the Customer may cancel an Order for Goods before the date quoted by the Company for the delivery of the Goods, provided that:
(i) the Company remains entitled to the Deposit; and
(ii) the Customer shall pay the Company all costs reasonably incurred by the Company in relation to the sale of the Goods in the cancelled order.
(b) Where an Order includes Goods customised to the specific requirements of the Customer, the Customer is not entitled to cancel that Order.
4. CUSTOMER OBLIGATIONS
(a) The Customer is solely responsible for confirming suitability of the Goods or Services for its purposes.
(b) The Customer is solely responsible, at its sole cost and expense, for obtaining and maintaining any necessary licences or permits, and all other clearances and consents required from government agencies or authorities for the acquisition and use of the Goods by the Customer.
(c) The Customer agrees to indemnify, defend and hold harmless the Company against any and all claims, demands, suits, causes of action, damages and legal fees (on a solicitor-own client basis) or expenses or costs whatsoever arising, directly or indirectly, from any failure by the Customer to comply with its obligations under this clause 4.
5. DELIVERY OF GOODS
(a) The Company will deliver the Goods to the Location. The costs of transport, delivery, freight and warehousing (if any) will be paid by the Customer
(b) All Goods will be delivered to the Customer either by the Company or using the Company’s nominated delivery agent, unless the Customer engages its own delivery agent and provides the Company with all necessary information (including but not limited to contact details and account numbers) at the time of placing an Order with the Company.
(c) The Customer must facilitate delivery by arranging appropriate access and area for delivery. If the Customer fails to provide appropriate access and area for delivery, the Customer will be liable for any costs incurred by the Company, including for redelivery and for the storage of the Goods until redelivery can be rearranged.
(d) The Customer acknowledges that any dates quoted by the Company for the delivery of the Goods are approximate only, and agrees that time and date of delivery will not be of the essence for the purposes of
these Terms or any Contract. The Company will use its reasonable endeavours to keep the Customer informed of any delays and any revised delivery dates.
(e) The Company will not be liable to the Customer for any direct, indirect, special or consequential losses, damages, liabilities, costs or expenses incurred by the Customer as a result of any failure by the Company to deliver the Goods by any estimated or confirmed delivery date.
6. PROVISION OF SERVICES
(a) The Company will use its reasonable endeavours to perform the Services in the timeframe specified in the Proposal and if unspecified, within a reasonable period.
(b) The Customer acknowledges that despite clause Error! Reference source not found.(a), any dates quoted by the Company for the completion of the Services are approximate only and agrees that the time and date of the provision of Services will not be of the essence for the purposes of these Terms or any Contract. The Company will use its reasonable endeavours to keep the Customer informed of any delays and any revised dates.
(c) The Company may in its sole discretion subcontract the provision of some or all of the Services to a third party, noting that the Company will remain responsible for the Services.
7. TITLE AND RISK
(a) Title in the Goods remains with the Company (despite delivery to the Customer) and will not pass to the Customer until the Customer has paid to the Company the Price and any other amounts owed to the Company in full.
(b) If the Company has not been paid in full at the time of delivery, then until such time as the Company receives payment in full, the Customer:
(i) holds the relevant Goods on trust for the Company and must store the Goods in such a way that they are clearly recognisable as the property of the Company;
(ii) grants to the Company and its employees and agents an irrevocable right to enter the premises at which the Goods are held without notice to search for and remove Goods supplied. The Customer agrees that the Company and its employees and agents will not be liable to the Customer or any person claiming through the Customer for any such action taken; and
(iii) can, as trustee for the Company sell the Goods to third parties in the normal course of its business subject to the terms of these Terms, provided that the Customer holds the book debt and proceeds of such sales on trust for the Company. All proceeds must be kept in a separate account and must not be mixed with any other monies (including the Customer’s own funds).
7.2 Risk and Returns
(a) Risk in the Goods will pass to the Customer on and from collection of the Goods by the Customer or shipment of the Goods for delivery to the Customer by the Company (as applicable).
(b) The Customer must examine the Goods immediately after delivery and the Company will not be liable or otherwise responsible for any mis-delivery, shortage, defect or damage or any related direct, indirect, special or consequential losses, damages, liabilities costs or expenses sustained by the Customer or any other party unless the Company receives c details in writing (together any supporting evidence as is reasonable in the circumstances) of any delivery issues, losses or defects within 48 hours of delivery of the Goods to the Location.
(c) Except as required under clause 10.4 or agreed by the Company in its discretion after written notification has been issued by the Customer under clause 7.2(b), in no circumstances will any Goods be accepted for return unless agreed by the Company in its sole discretion.
All terms in this clause take their meaning as defined in the PPSA.
(a) Where the Customer is a wholesaler or authorised dealer, the Customer acknowledges that until such time as full title of the Goods passes to the Customer under clause 7.1, these Terms constitute a Security Agreement for the purposes of the PPSA and the Customer grants the Company a Security Interest, both in the Goods whilst the Goods remain unpaid and any proceeds in respect of unpaid Goods to secure the Amounts Outstanding.
(b) The Customer agrees to do such things as the Company may require from time to time to ensure that any Security Interest of the Company arising from or connected with these Terms is Perfected under the PPSA for whatever period the Company determines in its sole discretion, including signing documents and providing the Company with all further information required to enable the Company to register its Security Interests on the PPSR, and to otherwise protect the Company’s position under the PPSA.
(c) The Customer must keep the Company fully informed of all relevant information regarding it and its activities, including by providing not less than 14 days notice in writing of any proposed change in its name or contact details, and immediately advising the Company of material changes in its business activities. (d) The Customer agrees to indemnify the Company for all expenses incurred by the Company in registering its Security Interests on the PPS Register, and will reimburse the Company for all such expenses immediately upon demand.
(e) The Customer waives its rights under section 157 of the PPSA to receive a notice in relation to the registration events to which section 157(3)(a) of the PPSA applies, including without limitation, the right to receive a copy of a verification statement confirming registration of a financing statement or financing change statement relating to the Security Interest created by these Terms.
(f) The Customer agrees that nothing in sections 125, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA and Part 4.3 (other than Division 6 of Part 4.3) of the PPSA shall apply to these Terms and any Security Interest in the Goods created by these Terms and to the extent permitted by the PPSA, the Customer waives its to receive any notice or statement under the following sections of the PPSA: 95, 118, 121(4), 123, 130, 132(3)(d), 132(4), 135, 157 and all sections in Part 4.3 (other than those in Division 6 of Part 4.3).
9.1 Consideration GST exclusive
Unless otherwise expressly stated, the Price and other sums payable or consideration to be provided under these Terms is exclusive of GST.
9.2 Payment of GST
If GST is payable by the Customer on any supply made by the Company under these Terms, the Customer must pay to the Company an additional amount that is equal to the amount payable by the Customer for the relevant supply multiplied by the prevailing GST rate. This additional amount is payable at the same time as the Price or other consideration for the relevant supply to which the additional amount relates.
9.3 Tax invoice
In the event of a taxable supply, the Company will provide a tax invoice in the form prescribed by the GST Law to the Customer.
10. EXCLUSION AND LIMITATION OF LIABILITY
10.1 Applicable law unaffected
The parties acknowledge and agree that:
(a) State and Commonwealth legislation implies certain non-excludable guarantees, warranties and conditions into particular agreements for the supply of goods and services, which cannot be excluded, restricted or modified (Non-Excludable Guarantees);
(b) the Company does not exclude, restrict or modify the Non-Excludable Guarantees and nothing in these Terms is intended or is to be construed as doing so; and
(c) nothing in these Terms affects any remedies available to the Customer at law and which cannot be lawfully excluded by the Company, including in respect of any of the Non-Excludable Guarantees which may be applicable.
10.2 Exclusion of liability
(a) The Customer acknowledges and understands that apart from any Non-Excludable Guarantees which may be applicable and the express limited warranty provided in clause 10.4, the Company does not make or provide any express warranties or guarantees regarding the Goods or Services.
(b) Subject to clauses 10.1 and 10.4 , to the maximum extent permitted by law, the Company excludes all warranties, terms, conditions and guarantees regarding the Goods and Services, and any other goods or services supplied or provided under these Terms which are implied by law (including the general law) or custom.
10.3 Limitation of liability
To the maximum extent permitted by law, the Company’s liability to the Customer for a breach of any of the Non-Excludable Guarantees in respect of any goods or services provided to the Customer under these Terms (including but not limited to the Goods and Services) is limited to any one of the following, at the option of the Company:
(a) in the case of goods, replacement of the goods or the supply of equivalent goods, repair of the goods, payment of the cost of replacing the goods or acquiring equivalent goods, or payment of the costs of having the goods repaired; and
(b) in the case of services, the supply of the services again, or payment of the cost of having the services supplied again.
10.4 Limited Warranty
(a) Whilst the Company makes every effort to ensure the accuracy of descriptions of its goods, products and services in all brochures, price lists and electronic communications and other descriptions such descriptions are general in nature and do not form part of these Terms or amount to any representation or warranty.
(b) Subject to the limitations in clause 10.4(c)(v), the Company warrants that the Goods sold and Services provided to the Customer will be free of defects for a period of 12 months from the date of delivery of the Goods or provision of the Services.
(c) The Customer acknowledges and agrees that:
(i) in order to benefit from this warranty, it must register the Goods by filling in and submitting a warranty form within 7 days from date the Customer submits a valid Order to the Company;
(ii) this warranty only covers non-wearing items and defects in material and workmanship, it does not cover damage caused by normal wear, improper maintenance or improper protection and use (which will be determined by the Company acting reasonably);
(iii) the cost of normal maintenance and normal replacement of service items shall be paid by the Customer;
(iv) this warranty shall be void and shall not apply to Goods which have been subject to operation in excess of recommended capacities, misused damaged by neglect or accident or have been altered or repaired in any manner not authorised by the Company or manufacturer; and
(v) the Company’s sole obligation with respect to Goods which, under normal use and service, fail to confirm to this warranty, is to repair or replace the Good or supply the Service again, without charge to the Customer. Such Good must be returned to the Company within 12 months from the date of delivery of Goods. Risk of loss to any Goods returned to the Company for servicing or repair remains with the Customer at all times; and
(vi) the warranty in this clause 10.4 is not a guarantee against the occurrence of any defect, and provides only for the repair and replacement of Goods and/or supply of Services again, which fail to confirm.
11. FORCE MAJEURE
A party will not be liable for its inability to perform its obligations under these Terms as a result of a Force Majeure Event. If a Force Majeure Event occurs, the party suffering it will notify the other party of the occurrence and expected duration of that event. The party suffering the Force Majeure Event must use all reasonable endeavours to prevent the force majeure occurrence. If a Force Majeure Event renders performance of these Terms impossible for a continuous period of at least sixty (60) days, either party may, by providing notice in writing to the other party, terminate these Terms.
To the fullest extent permitted by law, the Customer will at all times indemnify and keep indemnified the Company, its related entities and each of their directors, agents and employees (those indemnified) against all expenses, losses, damages and costs (on a solicitor and own client basis and whether incurred by or awarded against those indemnified) that those indemnified may sustain or incur as a result, whether directly or indirectly, of the occurrence of an Event of Default or any breach of these Terms or any Contract by the Customer.
13. INTELLECTUAL PROPERTY
(a) Subject to the remainder of this clause 13, all right, title and interest in and to any goods, materials or developments in which copyright or other Intellectual Property subsist created by or on behalf of the Company or otherwise supplied by the Company to the Customer, shall vest absolutely in and remain the sole property of the Company.
(b) The supply of Goods shall imply a bare licence to the Customer to use the intellectual property referred to in clause 13(a), for its own use but for no other purpose. The Customer undertakes not to utilise, copy, reproduce or disclose or permit others to utilise, copy, reproduce or disclose any such Intellectual Property without the prior written consent of the Company.
(c) The Company makes no representation or warranty that the Goods and Services supplied or the use of such Goods or items made from the Goods either alone or in conjunction with other goods will not infringe any Intellectual Property right. The Customer will notify the Company of any claim or suit involving the Customer in which such infringement is alleged and if the Company considers itself to be affected it will be entitled to control the defence of such infringement allegation.
14. CONFIDENTIAL INFORMATION
(a) The Customer must keep confidential any information obtained from the Company in the course of the negotiations for or performance of these Terms, as well as the terms of these Terms, the subject matter of these Terms and details of the transaction provided for in it, where that information is or can reasonably be considered to be confidential to the Company (Confidential Information).
(b) The Customer must not use or disclose the Confidential Information for any purpose other than that which the information was disclosed.
The obligations of confidence under these Terms do not apply to any information that is in the public domain (other than through any breach of these Terms); the Customer can prove was known to it at the time of disclosure by the Company, free from any obligation of confidence; or the Customer is required by law to disclose.
15. EVENT OF DEFAULT
15.1 Company entitlements
(a) If an Event of Default occurs or is threatened to occur to the Customer, the Company can immediately:
(i) terminate these Terms;
(ii) suspend or terminate any Contracts or other arrangements then in force between the parties;
(iii) suspend or cancel delivery or supply of Goods and Services;
(iv) refuse to accept any further Orders submitted by the Customer and cancel any Contracts which may otherwise be created as a result of such Order submissions;
(v) enter the premises of the Customer and immediately recover possession of any Goods delivered to the Customer in respect of which the Price has not yet been paid in full;
(vi) make the Price immediately due and payable; and/or
(vii) charge the Customer interest on any amounts then owed to the Company at the rate of 10 % per annum until payment is made in full,
without liability and without affecting or limiting any other rights or remedies available to the Company.
(b) If the Company has or recovers possession or control of any Goods, the Company can sell or otherwise dispose of the Goods in the Company’s absolute discretion and on its own account, but without limiting any of the Company’s rights arising as a consequence of any actual or anticipated Event of Default by the Customer.
15.2 Consequences of termination
Any termination of these Terms does not relieve the other party of any obligation remaining to be or performed by it or capable of having effect after such termination and is without prejudice to any right or cause of action already accrued to either party in respect of any breach of this by the other party.
15.3 Obligations upon termination
Upon termination of these Terms or any Contract between the parties the Customer must immediately pay to the Company any outstanding portion of the Price, any other amounts due and payable for Goods and Services supplied by the Company up until the date of termination or (in the Company’s discretion) the cost of raw materials and labour extended in complying with the Order.
The rights and obligations under clauses 3.4 7.1, 8, 4(c), 10, 12, 13, 14, 15.2, 15.3 and 16 survive the expiry or termination of these Terms and continue in full force and effect, together with any other rights and obligations which are by their nature or effect intended to survive.
Each party will pay its own costs in connection with the negotiation, preparation and execution of these Terms.
These Terms may only be amended in writing signed by all the parties and may not be amended in any other manner.
The Customer must not assign or transfer any of its rights or obligations under these Terms without the prior written consent of the Company, which will be granted or withheld by the Company in its absolute discretion.
No waiver by the Company of any breach or default by any other party is effective unless reduced to writing and signed by the Company, and any such waiver does not constitute a waiver of any other continuing breach or default under these Terms.
(a) Other than as provided in these Terms the rights and remedies provided under these Terms are cumulative and not exclusive of any rights or remedies provided by law or of any other such right or remedy. Any single or partial exercise of any power or right does not preclude any other or further exercise of it or the exercise of any other power or right under these Terms.
(b) The rights and obligations of the parties pursuant to these Terms are in addition to and not in derogation of any other right or obligation between the parties under any other deed or agreement to which they are parties
If any provision of these Terms is prohibited, invalid or unenforceable in any jurisdiction, that provision will, as to that jurisdiction, be ineffective to the extent of the prohibition, invalidity or unenforceability without invalidating the remaining provisions of these Terms or affecting the validity or enforceability of that provision in any other jurisdiction.
16.7 Governing Law
These Terms are governed by the law in force in the state of South Australia. The parties submit to the non-exclusive jurisdiction of the courts of that State and the South Australia Registry of the Federal Court of Australia in respect of all proceedings arising in connection with these Terms or any Contract.
16.8 Further Assurances
Each party will promptly do all things required by law or reasonably requested by any other party to give effect to these Terms.
16.9 No Merger
No right or obligation of any party will merge on completion of any transaction under these Terms. All rights and obligations under these Terms survive the execution and delivery of any transfer or other document which implements any transaction under these Terms.
(a) Any notice given under these Terms must be in writing and signed by or for the sender and delivered by post, hand or email to the last known address of the recipient.
(b) A notice or other communication is deemed given if:
(i) personally delivered, upon delivery;
(ii) mailed to an address in Australia, 2 business days after the date of posting (whether received or not); and
(iii) sent by email, at the time of transmission.