Terms and Conditions of sale for supply of goods and/ or services

  

  1. Definitions

 

In these Terms and Conditions of sale the following terms have the meanings indicated:

 

‘A2B Trailers’ means A2B Trailers Pty Ltd (ABN 66609680668) together with its agents, servants and employees.
‘Contract’ means any agreement for the sale and/ or installation of Goods entered into between A2B Trailers and the Purchaser.
‘Goods’ means Product and/ or Equipment sold by A2B Trailers.
‘Order’ shall include any acceptance by the Purchaser of a tender, quotation or offer made by A2B Trailers.
‘Offer’ means any formal offer made by A2B Trailers to the purchaser including tenders or quotations.
‘Purchaser’ means any person who acquires or agrees to acquire Goods from A2B Trailers and any successor in title to those Goods.
‘Terms’ means these terms and conditions of sale.
‘GST’ means the goods and services tax imposed by a government in which the Purchaser resides.

  1. Introduction

2.1 A2B Trailers has set out in this document our basic terms of business which, together with our Offer, when accepted by the Purchaser constitutes a Contract of Sale. If there is any conflict between these terms of business and A2B Trailers – offer then the Offer shall prevail.

  1. Formation and Scope of the Contract

3.1 Unless there is express written agreement to the contrary, A2B Trailers contracts upon terms that any Contract is subject to the Terms and Conditions of sale. Any Order placed by the Purchaser shall be conclusively deemed to have been made subject to the Terms and Conditions in force as at the date the Order is received by A2B Trailers, irrespective of any contrary terms printed on or accompanying the Purchaser’s order documentation, and such contrary terms shall in no circumstance prevail.

3.2 A reference in these Terms to a provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

  1. Confirmation of Orders

4.1 Purchaser must send accepted quote electronically or an email confirming acceptance of Order.  No Order placed by the Purchaser shall be binding on A2B Trailers unless and until A2B Trailers accepts the Order. Acceptance of any Order may be made by A2B Trailers taking any steps to satisfy the Order. Any Order which has been accepted by A2B Trailers may not be cancelled by the Purchaser except with the agreement of A2B Trailers and, in such circumstances, only on the basis that the Purchaser shall indemnify A2B Trailers in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by A2B Trailers as a result of such cancellation.

  1. Price

5.1 All Orders will be invoiced at the quoted prices in effect at the time of delivery of the Goods.

5.2 GST inclusive amounts.  For the purposes of these Terms and Conditions where the expression ‘GST inclusive’ is used in relation to a price, an amount payable or other consideration to be provided for a supply under these Terms and Conditions, the amount or consideration will not be increased on account of any GST payable on that supply.

  1. Payment and Default

 

6.1 Unless otherwise expressly agreed in writing, or specified in a separate dealership or agency agreement, the full purchase price shall be paid to A2B Trailers upon the goods arriving into Australia.

6.2 Should the Purchaser default in the payment of any monies due, then all monies fall due and payable within seven (7) days and A2B Trailers shall be entitled to charge interest of 18% per annum from the due date to the actual date of payment.

6.3 Any expenses incurred by A2B Trailers in recovery of debts are to made by the Purchaser.

6.4 Unless otherwise specified, payment by credit card facilities if offered to the Purchaser will attract a 2.5% surcharge.

6.5 The Purchaser will be in default if:

  1. a) the Purchaser breaches these Terms; and/ or
  2. b) payments have not been received by A2B Trailers by the due date of payment; and/ or
  3. c) the Purchaser is subject to any insolvency proceedings.

6.6 If the Purchaser defaults, A2B Trailers may treat the whole of the Contract as repudiated and:

  1. a) sue for breach of contract; and/ or
  2. b) claim the return of any Goods in the customer’s possession where title has not passed to the Purchaser
  3. Delivery Times

7.1 Subject to clause 8, A2B Trailers will use reasonable endeavours to achieve any delivery times stated by A2B Trailers.

7.2 Times stated by A2B Trailers for delivery are estimates only. A2B Trailers does not guarantee that the delivery of the Goods will be within the delivery times stated by A2B Trailers and no liability shall attach to A2B Trailers in the event of delivery being delayed by any circumstances. In no circumstances shall delay amount to, or be deemed to be a breach of the Contract and the Purchaser shall not be entitled to treat the Contract as repudiated by reason of any delay in delivery.

  1. Delivery and Risk

8.1 In circumstances where the product is being shipped to a region where the purchaser is arranging installation and unless expressly agreed otherwise by A2B Trailers in writing, or specified in a separate dealership or agency agreement, all Goods sold to Purchaser are delivered on an Ex-Works basis meaning the Purchaser is responsible for arranging freight and insurance of the Goods from A2B Trailers’s premises to the Purchaser. Should the Purchaser request A2B Trailers to arrange freight and insurance on behalf of the Purchaser;

  1. a) A2B Trailers shall advise the Purchaser of the estimated cost of freight and insurance prior to despatch of the Goods.
  2. b) A2B Trailers shall include the cost of freight and insurance on the overall invoice for the Goods which is payable in full prior to despatch of the Goods.
  3. c) Freight terms remain Ex-Works.

8.2 The Purchaser is responsible for complying with any legislation or regulations governing the importation of the Goods in the country of destination and for all local taxes and any customs or import duties payable for Goods delivered outside Australia.

  1. Title to Goods

9.1 Irrespective of the time when risk in the Goods shall pass, passing of property in these Goods shall be determined as follows:

  1. a) Legal and equitable title in the Goods shall remain with A2B Trailers until the Purchaser has made payment in full to A2B Trailers of the purchase price and any other indebtedness of the Purchaser to A2B Trailers
  2. b) Risk passes to the Purchaser when A2B Trailers delivers the Goods, either to the Purchaser’s nominated site or carrier.
  3. Purchaser’s Representations and Acknowledgement

10.1 In circumstances where the product is being shipped to a region where the purchaser is arranging installation the Purchaser shall not be entitled to refuse to accept the Goods or pay the purchase price, nor shall A2B Trailers be liable in any way whatsoever if the Goods fail to comply with any local requirements not disclosed by the Purchaser in writing to, and accepted by, A2B Trailers prior to the formation of the Contract. The Purchaser indemnifies A2B Trailers in full against any loss or damage suffered by A2B Trailers howsoever arising out of any failure to comply with any requirements not disclosed by the Purchaser in writing to, or not accepted by, A2B Trailers prior to the formation of the Contract.

10.3 The Purchaser acknowledges that:

  1. a) It has selected the Goods from a range of products offered by A2B Trailers and the Purchaser has satisfied itself that the Goods meet the Purchaser’s requirements;
  2. b) no oral or written information, representation or advice given by or on behalf of A2B Trailers, other than as contained in the Terms and Conditions, creates a warranty or in any way increases the scope of the Terms and Conditions, and;
  3. c) unless expressly agreed otherwise in writing, the Purchaser has not relied on any information, representation or advice given by or on behalf of A2B Trailers in selecting the Goods; and A2B Trailers makes no representation that its Goods conform to country, state or local laws, ordinances, regulations, codes or standards (except as may otherwise be agreed to in writing by A2B Trailers) and the all local laws relating to the use of the goods at its own cost and expense.
  4. Designs

11.1 Where a Purchaser asks A2B Trailers to follow any designs or instructions, the Purchaser hereby indemnifies A2B Trailers against all damages, penalties, costs and expenses arising from any infringement of a patent, trademark, registered design, copyright or common law right with respect to those designs or instructions.  The Purchaser warrants that any designs or instructions given to A2B Trailers will not cause A2B Trailers to infringe any patent, registered design, trademark, copyright or common law right.

  1. Product Warranty

12.1 A2B Trailers warrants that, subject to clause 12.3, Goods supplied by A2B Trailers will be free from defects caused by manufacture for a period of 24 months from the date an invoice is issued by A2B Trailers. Should any fault occur within that period as the result of such defect, A2B Trailers will make all necessary repairs, or at A2B Trailers’s sole discretion, replace the Goods at no charge to the Purchaser except for delivery.

12.2 To the fullest extent permitted by laws relevant to the sale and supply of Goods by A2B Trailers to the Purchaser, in the case of Goods not manufactured by A2B Trailers, A2B Trailers’s warranty in clause 12 shall be limited to the warranties implied by law and any further warranty contained in any manufacturer’s warranty for those Goods.

12.3 The warranty contained in clause 12 shall not apply in the following circumstances:

  1. a) In respect of loss or damage caused by an act of God or any other cause not within A2B Trailers’s control or otherwise not related to the Goods;
  2. b) The use of accessories or consumables with the Goods which are not approved of or recommended by A2B Trailers;
  3. c) Modification of any software in the Goods without the written approval of A2B Trailers;
  4. d) The use of spare parts other than those supplied by A2B Trailers.

12.4 To the fullest extent permitted by laws relevant to the sale and supply of the Goods by A2B Trailers to the Purchaser, A2B Trailers’s liability for breach of a condition or warranty implied by such laws, including any incidental or consequential loss which the Purchaser may sustain or incur shall be limited to one of the following, at the sole discretion of A2B Trailers:

  1. a) Replacement of the Goods;
  2. b) Repair of the Goods;
  3. c) Payment of the cost of replacing the Goods or acquiring equivalent Goods; or
  4. d) Payment of the costs of having the Goods repaired.

12.5 A2B Trailers shall not be liable (whether for breach of the Terms and Conditions, negligence or otherwise) for loss of profits or special, consequential or indirect loss or damage.

12.6 Save for the express conditions and warranties herein contained all other conditions and warranties (whether as to the quality, fitness for purpose or any other matter) expressed or implied by statute, the common law, equity, trade custom, usage or otherwise are hereby expressly excluded provided that nothing in these Terms and Conditions shall exclude or limit the liability of any breach of a term or condition implied by law, the exclusion or limitation of which is not permitted by law.

12.7 Goods returned under warranty for repair or testing will incur a charge, to be fixed by A2B Trailers, if no fault is found.

12.8 Warranty delivery, insurance and custom responsibilities are as follows:

  1. a) The Purchaser shall bear the cost of delivery and insurance of any Goods returned to A2B Trailers under warranty and any customs or import duties payable on the return of such Goods from A2B Trailers to Purchaser after replacement or repair.
  2. b) A2B Trailers shall pay any customs or import duties payable on goods returned under warranty from Purchaser to A2B Trailers; and
  3. c) Provided the warranty in clause 12 applies, A2B Trailers shall bear the costs of delivery and insurance of any repaired or replacement goods from A2B Trailers to the Purchaser.

12.9 Where Goods are returned under warranty or where the Purchaser has advised A2B Trailers in writing that the Goods are faulty but has not as yet returned the Goods, A2B Trailers may, at its sole discretion and subject to clause 12.10, provide to the Purchaser a replacement item with specifications that are not less than those of the Goods returned or to be returned.

12.10 A2B Trailers shall be entitled to invoice the Purchaser in respect of a replacement item provided to the Purchaser in accordance with clause 12.9 at the full price of that replacement item if the Goods to be returned by the Purchaser are not received by A2B Trailers within 30 days of the despatch of the replacement item.

12.11 Notwithstanding the provisions of this clause 12 nothing contained in any written warranty or in these Terms and Conditions shall have the effect of restricting or excluding the liability of A2B Trailers in respect of death or personal injury resulting from the proven negligence of A2B Trailers or under the applicable Consumer Protection Act. In addition, nothing in these Terms and Conditions affects the liability of either party for fraudulent misrepresentation.

  1. Claims

13.1 No claims will be recognised in respect of any mistake or shortage or over supply of Goods after seven (7) days from the delivery date.

13.2 Unless otherwise expressly agreed in writing, A2B Trailers shall not accept any conditions providing for the payment by A2B Trailers of liquidated damages or other penalties for delayed delivery of Goods or provision of information or for any other reason whatsoever.

  1. Return of products

14.1 Goods are not supplied on a sale or return basis. At A2B Trailers’s sole discretion, A2B Trailers may accept the return of Goods supplied, subject to the following conditions:

  1. a) Goods must be returned to A2B Trailers or a nominated agent in good order and condition, be resalable and be returned within seven (7) days of the date of delivery;
  2. b) Before returning Goods the Purchaser must first obtain a Return Authorisation Number (RAN) from A2B Trailers;
  3. c) When returning Goods the Purchaser shall quote the invoice number, RAN and date;
  4. d) The Purchaser shall pay freight charges to return the Goods to the place of business of A2B Trailers;
  5. e) The Purchaser shall pay a restocking fee of an amount determined by A2B Trailers at its sole discretion for handling; and
  6. f) Subject to the provision of clause 12 the return of Goods for credit will not be accepted except upon prior written agreement from A2B Trailers.
  7. Intellectual Property Rights

15.1 The Purchaser acknowledges A2B Trailers’s licence to use or ownership of the patents, trademarks, designs and any other intellectual property rights contained within the Goods manufactured or supplied by A2B Trailers and in particular agrees that neither the Purchaser, nor its servants or agents, will attempt to do anything with any of A2B Trailers’s intellectual property rights which will render the Purchaser liable to A2B Trailers for violation or infringement of its intellectual property rights.

15.2 The Purchaser acknowledges that any enhancement or improvement of A2B Trailers’s intellectual property which may result from work performed by the Purchaser will remain the exclusive property of A2B Trailers and the Purchaser irrevocably assigns to A2B Trailers all rights, title and interest the Purchaser may have in any improvement or enhancement to A2B Trailers’s intellectual property.

  1. Indemnity

16.1 The Purchaser indemnifies and holds A2B Trailers harmless from and against any and all losses, costs and expenses of A2B Trailers, including legal fees and expenses, in any way relating to:

  1. a) Any use of Goods not in compliance with these Terms and Conditions or misuse of the Goods by the Purchaser
  2. b) Any violation or infringement of any patent or other proprietary rights of third parties by the Purchaser in the handling or use of the Goods
  3. Modifications to Goods

 

17.1 Where the Purchaser provides information and/ or instructions in writing to A2B Trailers and where A2B Trailers makes any modifications, alterations or adjustments to any Goods as a result of or in reliance upon the information or instructions provided by the Purchaser, the Purchaser indemnifies A2B Trailers in full against any loss or damage suffered by A2B Trailers howsoever arising out of any reliance by A2B Trailers on the information or instructions provided by the Purchaser.

  1. Data Protection

By completing this Contract and submitting personal information (‘Information’) to A2B Trailers, the Purchaser consents to its Information being processed by A2B Trailers as follows:

  1. a) A2B Trailers will use the Information to supply Goods requested by the Purchaser and to supply marketing, administration and related services, including such transfer of Information to employees, agents and third parties as required for these purposes;

(i) A2B Trailers may maintain a database or similar record of Information for marketing purposes and to enable A2B Trailers to send the Purchaser relevant Information from time to time. A2B Trailers may transfer its business assets (which include Information) on re-organisation, sale or merger of the whole or any part of its business;

  1. General

 

19.1 No Waiver. Failure by A2B Trailers to insist upon strict performance of any term, warranty or condition of this Contract shall not be deemed a waiver of any term, warranty or condition, or of any rights.

  1. Governing Law

20.1 A Contract between the Purchaser and A2B Trailers is subject to the laws of New South Wales and the Commonwealth of Australia and the Client submits to the jurisdiction of the Courts of New South Wales and the Commonwealth of Australia

  1. Severance

21.1 In the event of any part of these Terms becoming void or unenforceable, then that part shall be severed and the remaining Terms shall remain in full force and effect.

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