Terms & Conditions of Trade

Definitions

1.1       “E.A” means Equal Access Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Equal Access Pty Ltd.

1.2       “Client” means the person/s buying the Goods (and/or hiring Equipment) as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.

1.3       “Goods” means all Goods or Services  (including tools, accessories, parts, batteries, manuals and/or instructions) supplied by E.A to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).

1.4       “Equipment” means all Equipment including any accessories supplied on hire by E.A to the Client (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by E.A to the Client.

1.5       “Price” means the Price payable for the Goods as agreed between E.A and the Client in accordance with clause 4 below.

2.         Acceptance

2.1       The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods/Equipment.

2.2       These terms and conditions may only be amended with E.A’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and E.A.

2.3       Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.

2.4      These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on E.A’s website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.

3.         Change in Control

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

 4.         Price and Payment

4.1       At E.A’s sole discretion the Price shall be either:

(a)  as indicated on any invoice provided by E.A to the Client; or

(b) the Price as at the date of delivery of the Goods/Equipment according to E.A’s current price list; or

(c)  E.A’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

4.2       E.A reserves the right to change the Price if a variation to E.A’s quotation is requested. Any variation from the plan of scheduled Services or specifications (including, but not limited to, in the event that overseas transactions increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges or as a result of increases to E.A in the cost of the Goods) will be detailed in writing and charged for on the basis of E.A’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.

4.3       At E.A’s sole discretion a non-refundable deposit may be required.

4.4       Time for payment for the Goods/Equipment being of the essence, the Price will be payable by the Client on the date/s determined by E.A, which may be:

(a)  on delivery of the Goods/Equipment;

(b) before delivery of the Goods/Equipment;

(c)  thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;

(d) thirty (30) days following the date of the invoice;

(e)  the date specified on any invoice or other form as being the date for payment; or

(f)  failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by E.A.

4.5       Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Client and E.A.

4.6       Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to E.A an amount equal to any GST E.A must pay for any supply by E.A under this or any other agreement for the sale of the Goods/hire of the Equipment. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client 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.

5.         Delivery of Goods/Equipment

5.1       Delivery (“Delivery”) of the Goods/Equipment is taken to occur at the time that:

(a)  the Client or the Client’s nominated carrier takes possession of the Goods/Equipment at E.A’s address; or

(b) E.A (or E.A’s nominated carrier) delivers the Goods/Equipment to the Client’s nominated address even if the Client is not present at the address.

5.2       At E.A’s sole discretion the cost of delivery is either included in the Price.

5.3       The Client must take delivery by receipt or collection of the Goods/Equipment whenever either is tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then E.A shall be entitled to charge a reasonable fee for redelivery and/or storage.

5.4       E.A may deliver the Goods/Equipment in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

5.5       Any time or date given by E.A to the Client is an estimate only. The Client must still accept delivery of the Goods/Equipment even if late and E.A will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.

6.         Risk

6.1       Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.

6.2       If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, E.A is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by E.A is sufficient evidence of E.A’s rights to receive the insurance proceeds without the need for any person dealing with E.A to make further enquiries.

6.3       If the Client requests E.A to leave Goods outside E.A’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.

7.         Title To Goods

7.1       E.A and the Client agree that ownership of the Goods shall not pass until:

(a)  the Client has paid E.A all amounts owing to E.A; and

(b) the Client has met all of its other obligations to E.A.

7.2       Receipt by E.A 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.

7.3       It is further agreed that:

(a)  until ownership of the Goods passes to the Client in accordance with clause 7.1 that the Client is only a bailee of the Goods and must return the Goods to E.A on request.

(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for E.A and must pay to E.A the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.

(c)  the Client 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 Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for E.A and must pay or deliver the proceeds to E.A on demand.

(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of E.A and must sell, dispose of or return the resulting product to E.A as it so directs.

(e)  the Client irrevocably authorises E.A to enter any premises where E.A believes the Goods are kept and recover possession of the Goods.

(f)  E.A may recover possession of any Goods in transit whether or not delivery has occurred.

(g) the Client 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 E.A.

(h)  E.A may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

8.         Personal Property Securities Act 2009 (“PPSA”)

8.1       In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

8.2       Upon assenting to these terms and conditions in writing the Client 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/Equipment that has previously been supplied and that will be supplied in the future by E.A to the Client.

8.3       The Client 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 E.A 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 8.3(a)(i) or 8.3(a)(ii);

(b) indemnify, and upon demand reimburse, E.A 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/Equipment charged thereby;

(c)  not register a financing change statement in respect of a security interest without the prior written consent of E.A;

(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods/Equipment in favour of a third party without the prior written consent of E.A;

8.4       E.A and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

8.5       The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

8.6       The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

8.7       Unless otherwise agreed to in writing by E.A, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.

8.8       The Client must unconditionally ratify any actions taken by E.A under clauses 8.3 to 8.5.

8.9       Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.

 9.         Security and Charge

9.1       In consideration of E.A agreeing to supply the Goods/Equipment, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

9.2       The Client indemnifies E.A from and against all E.A’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising E.A’s rights under this clause.

9.3       The Client irrevocably appoints E.A and each director of E.A as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 9 including, but not limited to, signing any document on the Client’s behalf.

 10.       Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

10.1     The Client must inspect the Goods/Equipment on delivery and must within seven (7) days of delivery notify E.A in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods/Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow E.A to inspect the Goods/Equipment.

10.2     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).

10.3     E.A acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

10.4     Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, E.A makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods/Equipment. E.A’s liability in respect of these warranties is limited to the fullest extent permitted by law.

10.5     If the Client is a consumer within the meaning of the CCA, E.A’s liability is limited to the extent permitted by section 64A of Schedule 2.

10.6     If E.A is required to replace the Goods under this clause or the CCA, but is unable to do so, E.A may refund any money the Client has paid for the Goods.

10.7     If the Client is not a consumer within the meaning of the CCA, E.A’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 Client by E.A at E.A’s sole discretion;

(b) limited to any warranty to which E.A is entitled, if E.A did not manufacture the Goods;

(c)  otherwise negated absolutely.

10.8     Subject to this clause 10, returns will only be accepted provided that:

(a)  the Client has complied with the provisions of clause 10.1; and

(b) E.A has agreed that the Goods are defective; and

(c)  the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); the Goods are returned in as close a condition to that in which they were delivered as is possible.

10.9     Notwithstanding clauses 10.1 to 10.8 but subject to the CCA, E.A 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 Client failing to properly maintain or store any Goods/Equipment;

(b) the Client using the Goods/Equipment for any purpose other than that for which they were designed;

(c)  the Client continuing the use of the Goods/Equipment after any defect became apparent or should have become apparent to a reasonably prudent operator or user;

(d) the Client failing to follow any instructions or guidelines provided by E.A;

(e)  fair wear and tear, any accident, or act of God.

10.10  E.A may in its absolute discretion accept non-defective Goods for return in which case E.A may require the Client to pay handling fees of up to twenty percent (20%) of the value of the returned Goods plus any freight costs.

10.11  Notwithstanding anything contained in this clause if E.A is required by a law to accept a return then E.A will only accept a return on the conditions imposed by that law.

 11.       Intellectual Property

11.1     Where E.A has designed, drawn or developed Goods/Equipment for the Client, then the copyright in any designs and drawings and documents shall remain the property of E.A.

11.2     The Client warrants that all designs, specifications or instructions given to E.A will not cause E.A to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify E.A against any action taken by a third party against E.A in respect of any such infringement.

11.3     The Client agrees that E.A may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which E.A has created for the Client.

12.       Default and Consequences of Default

12.1     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 E.A’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

12.2     If the Client owes E.A any money the Client shall indemnify E.A from and against all costs and disbursements incurred by E.A in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, E.A’s collection agency costs, and bank dishonour fees).

12.3     Without prejudice to any other remedies E.A may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions E.A may suspend or terminate the supply of Goods/Equipment to the Client. E.A will not be liable to the Client for any loss or damage the Client suffers because E.A has exercised its rights under this clause.

12.4     Without prejudice to E.A’s other remedies at law E.A shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to E.A shall, whether or not due for payment, become immediately payable if:

(a)  any money payable to E.A becomes overdue, or in E.A’s opinion the Client will be unable to make a payment when it falls due;

(b) the Client 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 Client or any asset of the Client.

13.       Cancellation

13.1     E.A may cancel any contract to which these terms and conditions apply or cancel delivery of Goods/Equipment at any time before the Goods/Equipment are due to be delivered by giving written notice to the Client. On giving such notice E.A shall repay to the Client any money paid by the Client for either the Goods or Equipment hire. E.A shall not be liable for any loss or damage whatsoever arising from such cancellation.

13.2     In the event that the Client cancels delivery of the Goods/Equipment the Client shall be liable for any and all loss incurred (whether direct or indirect) by E.A as a direct result of the cancellation (including, but not limited to, any loss of profits).

14.       Privacy Act 1988

14.1     The Client agrees for E.A to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by E.A.

14.2     The Client agrees that E.A may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:

(a)  to assess an application by the Client; and/or

(b) to notify other credit providers of a default by the Client; and/or

(c)  to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or

(d) to assess the creditworthiness of the Client.

The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.

14.3     The Client consents to E.A being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

14.4     The Client agrees that personal credit information provided may be used and retained by E.A for the following purposes (and for other purposes as shall be agreed between the Client and E.A or required by law from time to time):

(a)  the provision of Goods/Equipment; and/or

(b) the marketing of Goods/Equipment by E.A, its agents or distributors; and/or

(c)  analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods/Equipment; and/or

(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or

(e)  enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods/Equipment.

14.5     E.A may give information about the Client to a credit reporting agency for the following purposes:

(a)  to obtain a consumer credit report about the Client;

(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.

14.6     The information given to the credit reporting agency may include:

(a)  personal particulars (the Client’s name, sex, address, previous  addresses, date of birth, name of employer and driver’s licence number);

(b) details concerning the Client’s application for credit or commercial credit and the amount requested;

(c)  advice that E.A is a current credit provider to the Client;

(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;

(e)  that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;

(f)  information that, in the opinion of E.A, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);

(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;

(h)  that credit provided to the Client by E.A has been paid or otherwise discharged.

 15.       Unpaid E.A’s Rights

15.1     Where the Client has left any item with E.A for repair, modification, exchange or for E.A to perform any other service in relation to the item and E.A has not received or been tendered the whole of any moneys owing to it by the Client, E.A shall have, until all moneys owing to E.A 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.

15.2     The lien of E.A shall continue despite the commencement of proceedings, or judgment for any moneys owing to E.A having been obtained against the Client.

16.       Equipment Hire

16.1     Equipment shall at all times remain the property of E.A and is returnable on demand by E.A. In the event that Equipment is not returned to E.A in the condition in which it was delivered E.A retains the right to charge the Client the full cost of repairing the Equipment. In the event that Equipment is not returned at all E.A shall have right to charge the Client the full cost of replacing the Equipment.

16.2     The Client shall;

(a)  keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to a lien over the Equipment.

(b) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment.

(c)  keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by E.A to the Client.

16.3     The Client accepts full responsibility for the safekeeping of the Equipment and the Client agrees to insure, or self insure, E.A’s interest in the Equipment and agrees to indemnify E.A against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.

 17.       General

17.1     The failure by E.A to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect E.A’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

17.2     These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which E.A has its principal place of business, and are subject to the jurisdiction of the Melbourne Court in Victoria.

17.3     Subject to clause 10 E.A shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by E.A of these terms and conditions (alternatively E.A’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods/Equipment hire).

17.4     The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by E.A nor to withhold payment of any invoice because part of that invoice is in dispute.

17.5     E.A may license or sub-contract all or any part of its rights and obligations without the Client’s consent.

17.6     The Client agrees that E.A may amend these terms and conditions at any time. If E.A makes a change to these terms and conditions, then that change will take effect from the date on which E.A notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for E.A to provide Goods/Equipment to the Client.

17.7     Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

17.8     The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.