TERMS AND CONDITIONS OF TRADE & PRIVACY

1. DEFINITIONS
   • “Supplier” means Earthquake Pty Ltd ACN 634 642 863 trading as Earthmoving Warehouse its ‘related bodies corporate’ (as that term is defined in the Corporations Act 2001 (Cth)) and its successors and assigns.
   • “Customer” means the entity that has contracted with the Supplier to buy Goods and/or Services.
   • “Goods” means any goods supplied by the Supplier to the Customer (or ordered by the Customer but not yet supplied or works provided by the Supplier to the Customer) including and in no way limited to, earthmoving equipment, maintenance to equipment and related products.
   • “Services” means any services supplied by the Supplier to the Customer (or ordered by the Customer but not yet supplied) including, and in no way limited to, any services related to the Goods and where applicable, delivery of Goods and other materials and installation of the Goods.
   • “Price” means the cost of the Goods and/or Services as agreed between the Supplier and the Customer and includes all out of pocket expenses the Supplier incurs on the Customer's behalf subject to clause 6.
   • “Terms” means these Terms and Conditions of Trade.
2. ACCEPTANCE
   • Any orders received by the Supplier from the Customer for the supply of Goods and/or Services shall constitute a binding contract and acceptance of these Terms.
3. PRECEDENCE
   • The Customer acknowledges that these Terms take precedence over any terms and conditions contained in any document provided by the Customer, including any purchase orders issued by the Customer.
4. CREDIT FOR BUSINESS PURPOSES ONLY
   • The Customer expressly warrants and acknowledges that any credit provided to the Customer by the Supplier is to be used for wholly (or predominantly) business purposes.
5. PRIVACY POLICY AND CREDIT REPORTING POLICY NOTIFICATION
   • The Supplier collects personal information about the Customer (if a sole trader, individual trustee, or partnership of individuals) for the purposes set out in its Privacy Policy and its Credit Reporting Policy. Both of these policies may be located at [www.earthmovingwarehouse.com.au]. A hardcopy of these policies can also be provided to the Customer free of charge, upon request.
     • The Privacy Policy sets out: the personal information that the Supplier collects; how the Supplier collects and uses this information; how the Customer may access or correct it; and how the Customer may make a complaint in respect of Supplier’s management of the information;
     • The Credit Reporting Policy sets out: the types of credit related personal information the Supplier collects; how it is collected, why it is collected; how the Supplier may use and disclose the credit-related personal information, including the credit reporting bodies to which Supplier is likely to disclose the Customer’s credit related personal information to; and how a complaint may be made in respect of the Supplier’s management of the credit related personal information.
   • By the Customer completing the Application for Commercial Credit or providing orders to the Supplier for the supply of Goods and/or Services, the Customer is consenting to the Supplier collecting, handling, using, disclosing and otherwise dealing with the Customer’s personal information (including credit-related personal information) in accordance with the terms of the Supplier’s Privacy Policy, its Credit Reporting Policy and in accordance with Australia’s privacy laws.
6. PRICE
   • The Price shall be:
     • if the Supplier has provided a quotation for the relevant Goods and/or Services, as stated on any relevant quotation (subject to clause 9);
     • as agreed to (in writing) by the Supplier; or
     • pursuant to the Supplier’s current price list (if no quotation has been provided by the Supplier or there has been no agreement by the Supplier (in writing) in respect of the Price)
   • Pricing Errors: In the event of an obvious error on the Website, such as but not limited to an incorrect product price, Earthmoving Warehouse reserves the right to cancel or refuse to accept any order placed at the incorrect price.
7. PAYMENT
   • Subject to clause 7.2, payment of the Price, is on any of the follow dates (as determined by the Supplier) which may be:
     • on delivery of the Goods and/or supply of the Services;
     • before delivery of the Goods and/or supply of the Services;
     • the due date specified on the Supplier’s invoice;
     • in the absence of any notification of the due date by the Supplier, it shall be due 30 days from the date of invoice.
   • Payment for any amount outstanding shall be deemed immediately due and payable in any of the following circumstances:
     • there is non-payment of any sum by the due date;
     • the Customer is bankrupted or enters administration, liquidation or receivership;
     • there is a change in the financial position of the Customer which materially adversely affects its ability to pay for Goods and/or Services.
   • Unless prohibited by law, all payments to be made by the Customer to Supplier shall be made without set-off (whether arising at law or in equity) or counterclaim (whether arising at law or in equity) and free and clear of any withholding or deduction whatsoever.
   • Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until it results in the Supplier receiving cleared funds for the entire amount of the negotiable instrument. In respect of cheques, the Supplier will present the cheques within a reasonable time.

 

• Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to the Supplier an amount equal to any GST the Supplier must pay for any provision of the works by the Supplier.

8. INTEREST AND COSTS
   • Interest accrues on any amount owing after the due date at the rate of 2.5 (%) per cent per calendar month, calculated daily from the first day overdue until payment.
   • In the event that the Customer breaches any of these Terms, the Customer shall pay (on a full indemnity basis) any and all expenses, disbursements, collection and legal costs which the Supplier incurs or is liable to pay (including contingently liable to pay), in connection with the enforcement of any and all rights and/or preservation of any and all rights contained in this contract.
   • For the purposes of clause 8.2, the Customer acknowledges that collection agents’ costs may be calculated on a commission basis at a percentage rate of up to 20% of the overdue debt and be contingent upon payment of the Customer’s overdue debt (or any portion thereof), irrespective of the amount of work performed by the collection agent before the payment is made. The Customer agrees that it will pay any such commission or fees as liquidated damages on demand when making any payment of the overdue debt or part thereof.
   • The Supplier shall at its sole discretion charge a service fee of 2% percent per month on all overdue amounts due and owing by the Customer.
9. QUOTATION
   • Where a quotation is given by the Supplier for Goods and/or Services:
     • unless otherwise agreed in writing, the quotation shall be valid for no longer than 30 days from the date of issue;
     • the Supplier reserves the right, until the quote is accepted, to alter the quotation because of circumstances beyond its control, including and in no way limited to, increases in the price charged by its suppliers for products, services, freight and/or insurance.

10. PURCHASE ORDERS
    • Where a purchase order is provided by the Customer to the Supplier, the Supplier will invoice the Customer as per the purchase order.
    • If the quantities set out in the purchase orders are varied by the Customer or the Supplier, the Supplier will invoice the Customer for the varied quantity.
    • The Customer acknowledges and agrees that these Terms will supersede the terms and conditions contained within the purchase orders.
11. RISK TO GOODS AND DELIVERY
    • Subject to clause 11.5, risk in any Goods shall be deemed to pass to the Customer at the time when the Goods have been either (a) delivered to the Customer or (b) delivered to the delivery address nominated by the Customer (“Nominated Address”).
    • For the purpose of clause 11.1 the Customer agrees and acknowledges that in the event that there is no representative of the Customer present to receive the Goods, it is entirely responsible for any loss, expenses, damages and liabilities occasioned as a result. Under no circumstances shall the Supplier be liable for losses, damages, expenses or liabilities occasioned by the delivery of Goods being made to the delivery address when a representative of the Customer is absent when Goods are delivered to the nominated delivery address.
    • The Customer expressly acknowledges and agrees that any delivery date given by the Supplier as the delivery date for Goods is an estimate only and not a constitute contractual term or legally binding representation, since the Supplier is reliant upon third parties to supply Goods by any nominated delivery date. Accordingly, the Supplier shall not be liable for any loss or damage (howsoever arising) to the Customer or any third party if the Goods are not delivered by a nominated delivery date or cannot be manufactured within a specified timeframe.
    • The cost of freight and insurance to the point of the delivery address shall be at the Customer’s expense and shall form part of the Price.
    • Where the Customer arranges freight to its nominated location, risk in any goods shall pass when its nominated agent/carrier collects the Goods from the Supplier.
    • The Customer is responsible for unloading the Goods at the point of delivery.
    • The Supplier may charge a reasonable storage fee for storage and/or redelivery charges in the event the Customer does not, or is unable to, accept delivery of the Goods.
12. EQUIPMENT, MATERIALS, MEASUREMENTS AND PARTS SUPPLIED BY CUSTOMER
    • Where all equipment, materials, measurements and parts supplied by or on behalf of the Customer for the purpose of manufacture or test of the articles being or to be produced by the Supplier shall be of suitable specification for their intended performance.
    • The Supplier shall take all reasonable steps to protect and safeguard such equipment, materials and parts supplied while on the Supplies premises, however, all risk of loss, damage to, or destruction of the aforesaid, howsoever caused, shall be the responsibility of and be borne by the Customer.
    • Where material is supplied by the Customer, the Supplier will not replace such material damaged or in any way rendered unsuitable due to faulty workmanship. The Supplier will, however, perform the contracted work from replacement material with no variation to the original contract price.
    • Flaws, hard spots or other defects in materials supplied by the Customer shall be brought to the attention of the Customer and any additional costs incurred by the Supplier as a result of such defects shall be added to the Customers account.
13. EXPORT
    • If any article sold hereunder is for export, the Customer shall be responsible for arranging transportation, insurance, export clearances and payment of associated costs.
14. DRAWINGS, SPECIFICATIONS AND SAMPLES
    • Unless otherwise specified in writing beforehand, should any conflict exist or arise between the requirements of (a) any drawings, (b) any specification/s and sample’s furnished by the Customer in respect of the articles to be manufactured by the seller, the requirements of the drawing/s shall prevail, however in the case of supplied electronic CA.D data, then this will prevail over hard copy drawings.
15. TITLE AND PERSONAL PROPERTY SECURITIES ACT 2009 (PPSA)

Goods

• Whilst risk in the Goods passes on delivery, legal and beneficial title in the Goods shall remain with the Supplier until it has received payment in full for all monies owed by the Customer.
• Until the Supplier has received payment in full for all monies owed by the Customer, the Supplier reserves the following rights:
  • legal and beneficial ownership of the Goods;
  • the right to enter the Customer’s premises (as the Customer’s invitee) to retake possession of the Goods;
  • the right to keep or resell any Goods repossessed under sub-clause 15.2.2; and
  • any other rights it may have at law or under the PPSA.
• Where, pursuant to sub-clause 15.2.3:
  • the Supplier resells the Goods repossessed, it is agreed that the Supplier shall credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs); or
  • the Supplier retains possession of the repossessed Goods, it is agreed that the Supplier shall credit the Customer’s account with the invoice value less such sum as the Supplier reasonably determines on account of wear and tear, depreciation, obsolescence, loss of profit and costs.
• The Supplier shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of any action taken to repossess the Goods (unless the action taken to repossess the Goods was grossly negligent or constituted wilful misconduct).
• If the Goods are mixed (or commingled) with other property so as to be part of or a constituent of any new product, title to these products shall be deemed to be assigned to the Supplier as security for the full satisfaction by the Customer of the full amount owing between the Supplier and the Customer.
• Until the Supplier receives payment for Goods in full, the Customer acknowledges that the Supplier has a Purchase Money Security Interest (PMSI) which attaches over the Goods and their proceeds and a Security Interest in relation to other amounts owed by the Customer to the Supplier.

General

• Upon assenting to these Terms, the Customer acknowledges and agrees that these Terms constitute a Security Agreement for the purposes of the PPSA.
• The Customer undertakes to do anything (such as obtaining consents, producing documents, producing receipts and getting documents completed and signed) which the Supplier asks and considers reasonably necessary for the purposes of:
  • ensuring that a PMSI and/or Security Interest is enforceable, perfected and effective;
  • enabling the Supplier to apply for any registration, or give any notification, in connection with the Security Interest created under this Agreement so that the PMSI and/or Security Interest has the priority required by the Supplier.
• To the extent permitted by law, the Customer irrevocably waives its right to:
  • receive notices or statements under sections 95, 121(4), 125, 130, 132(3)(d), 132(4) and 135 of the PPSA;
  • redeem the Goods under section 142 of the PPSA;
  • reinstate this Agreement under section 143 of the PPSA;
  • receive a Verification Statement.
• Nothing in clause 15 prevents the Supplier from taking collection or legal action against the Customer to recover any monies owed from time to time.

16. DISPUTES
    • The Customer must, within 7 days of the relevant Goods and/or Services being provided, raise any issue associated with incomplete, damaged, incorrect or substandard quality and/or late supply (Complaint). The Customer acknowledges this 7-day timeframe ensures the Supplier can make contemporaneous enquiries and investigations about the issue and its causes.
    • In the event a Complaint is made, the Customer must, upon request of the Supplier, allow the Supplier’s nominated representative to attend the premises where the Goods are located or, in the case of Services involving workmanship, where the workmanship was done, in order to inspect the Goods and/or the workmanship (as the case may be).
    • If the Customer fails to give notice of any claim within the 7day period specified in clause 16.1 and/or fails to allow the Supplier to inspect the Goods and/or workmanship in accordance with clause 16.2, then, to the extent permitted by law, the Goods and/or Services (if involving workmanship) are deemed to be accepted by the Customer.
17. LIMITATION OF LIABILITY & INDEMNITY
    • All implied conditions, warranties and undertakings other than the statutory guarantees set out in Schedule 2 of the Competition and Consumer Act 2010 (“CCA”) are expressly excluded to the extent permitted by law.
    • Where the Goods are of a kind other than goods ordinarily acquired for personal, domestic or household use, then the Supplier’s liability is limited, at its option, to anyone or more of the following:
      • repairing the Goods
      • the costs of repairing the Goods;
      • the replacement or supply of the equivalent of the Goods; or
      • the payment of the costs of replacing the Goods or acquiring their equivalent.
    • Where the Services are of a kind other than services ordinarily acquired for personal, domestic or household use, then the Supplier’s liability is limited at its option to:
      • supplying the Services again; or
      • the payment of the costs of supplying the Services again.
    • Subject to the Customer’s rights under Schedule 2 of the CCA:
      • the Supplier shall not be liable for any loss or damage of any kind whatsoever, arising from the Goods and/or Services, including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from the Goods and/or Services, including the Customer failing to properly maintain or store the Goods and/or use of the Goods; and
      • the Customer shall indemnify the Supplier against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of the Supplier or otherwise, brought by any person in connection with any matter, act, omission, or error by the Supplier, its agents or employees in connection with the Goods and/or Services.

18. CANCELLATION OF ORDERS
    • Subject to clause 18.2, orders placed with the Supplier cannot be cancelled by the Customer without the written approval of the Supplier. In the event that the Supplier accepts the cancelation of any orders placed, it is agreed that the Supplier shall credit the Customer’s accounts with the invoice value less such sum as the Supplier reasonably determines on account of wear and tear, depreciation, obsolescence, loss of profit and costs.
    • Cancellation of orders for Goods made, modified or sourced by the Supplier to the Customer’s specifications, or for non-stock list items will not be accepted once the order has been placed.
    • Where the Customer orders any Goods from the Supplier that the Supplier does not have in stock, such that the Supplier is required to order the Goods from a third party (known as a “Special Buy-In”), the order is non-cancellable by the Customer, unless the third party itself is prepared to credit the Supplier for the cancelled Special Buy-In in which case the Supplier shall credit the Customer’s account with the invoice value (as rendered to the Customer) less such sum as the Supplier reasonably determines on account of wear and tear, depreciation, obsolescence, loss of profit and costs.
    • The Supplier reserves the rights to charge a restocking fee of 25% of the full value of the product/s non custom made and 100% for custom made.
19. RETURNS AND REFUNDS
    • In the event that the Customer wants to return the Goods purchased for reasons such as mis-purchase, incorrect measurements or incorrect specifications supplied by the Customer, the Customer is responsible for the cost to return the Goods to the original place of purchase or where the Goods were originally shipped from.
    • The Customer must ensure that the Goods are returned in their original packaging and be in new and unused condition.
    • The Supplier reserves the rights to charge a restocking fee of 25% of the full value of the product/s non custom made and 100% for custom made.
20. INTELLECTUAL PROPERTY
    • The Customer shall indemnify the Supplier against all claims, damages, demands, penalties, costs, charges and expenses which the Supplier may become liable for in relation to any infringement or alleged infringement of any intellectual property, including patents, rights relating to trademarks or copyrights, which result from data, information or instructions supplied by the buyer.
21. SUPPLIER NOT OBLIGED TO SELL ON CREDIT TERMS
    • The Supplier is not obliged to sell on credit terms and reserves the right to require cash on delivery before the Goods and/or Services are provided.
22. SECURITY AND CHARGES
    • The Customer hereby charges in favour of the Supplier all of the Customer’s estate and interest in any real property (whether held in its own right or in the capacity as trustee) that the Customer now has, or which it may later acquire any such interest in, with payment of all moneys owed by the Customer to the Supplier now and in the future and hereby consents to the Supplier lodging a caveat or caveats which note the Supplier’s interest.
    • The Customer also charges all of its present and after-acquired personal property with payment of all moneys owed by the Customer to the Supplier now and in the future.
    • Where the Customer has previously granted a charge, mortgage and/or other security interest to the Supplier in any previous agreement, that charge, mortgage and/or security interest will continue, and shall be in addition to and separate from the charges and security interests created in this agreement, they and shall secure all indebtedness and obligations of the Customer under this Agreement.
    • The Supplier will not seek to enforce the charges in clause 22.1, 22.2 and 22.3 unless it reasonably holds the view that there will still be a shortfall on recovery under its retention of title rights in clauses 15.1, 15.2 and 15.3.
23. UNPAID SELLERS RIGHTS
    • Where the Customer has left any item with the Supplier for repair, modification, exchange or for the Supplier to perform any other service in relation to the item and the Supplier has not received or been tendered the whole of any moneys owing to it by the Customer, the Supplier shall have, until all moneys owing to the Supplier are paid:
      • A lien on the item; and
      • The right to retain or sell the item.
    • The lien of the Supplier shall continue despite the commencement of proceedings, or judgment for any moneys owing to the Supplier having been obtained against the Customer.
24. MISCELLANEOUS
    • This agreement constitutes the entire agreement between the parties relating to its subject matter. All previous negotiations, representations and understandings are merged into this agreement. No oral representation or information provided by the Supplier constitutes a legally binding representation, contractual term or collateral agreement.
    • Failure by the Supplier to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of its rights or obligations under this agreement.
    • If any provision of this contract shall be invalid, void or illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected.
    • Any variation to the Terms must be agreed to in writing to have any legal effect.
    • If an order is placed as an agent of a principal (whether disclosed or undisclosed) both the agent and the principal shall be joint and severally liable to pay for the Goods and/or Services and the relevant contracts shall be governed by these Terms.
    • The Customer shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contract phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by the Supplied as a result of the Customer’s failure to comply with this clause.
    • The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute.
    • The Supplier may license or sub-contact all or any part of its rights and obligations without the Customer’s consent.

 

ADDITIONAL TERMS AND CONDITIONS - WORKSHOP MAINTAINCE ONLY

25. ADDITIONAL COSTS
    • The Supplier reserves the right to change the Price where:
      • There is a variation to the Goods and/or Services which are to be provided;
      • Additional Goods and/or Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, further faults which are found upon disassembly and/pr further inspection) which are only discovered upon commencement of the Goods and/or Services;
      • The Supplier incurs increases in the cost of labour or parts which are beyond the Supplier's control;
      • the Supplier is requested to store the Customer’s parts or vehicle, or where parts or vehicles are not collected within twenty-four (24) hours of advice to the Customer that they are ready for collection, then the Supplier (at its sole discretion) may charge the Customer a reasonable fee for storage
      • mobile works are required and a minimum call-out fee (equal to one (1) hour labour, plus travel costs) shall be applicable, which shall be increased (to two (2) hours labour, plus travel costs) for any after-hours call-outs.
      • tow and/or salvage fees are incurred;
      • the Supplier has been requested by the Customer to diagnose a fault that requires disassembly and/or testing, all costs involved will be charged to the Customer irrespective of whether or not the repair goes ahead.
    • Where the Supplier is required to provide its Services at the Customer’s nominated address, then the Customer is liable for all costs incurred by the Supplier from the time they depart from and until they return to, their normal place of work (including, but not limited to, mileage and time calculated at the Supplier’s standard rates and any Goods purchased for the Services.
    • Where the Supplier provides Goods and/or Services in separate instalments, the Supplier will invoice the Customer for each instalment and shall be paid in accordance with these Terms.
26. WARRANTY
    • The Customer acknowledges and agrees that warranty repairs exclude fluids, belts, gaskets, or other consumables unless expressly covered by warranty.
    • If a vehicle or component is submitted for repair under a warrant or insurance claim, and the claim is declined or payment delayed, the Customer is liable for payment and agrees to pay for any such repair.
27. RISK
    • The Customer acknowledges that the Supplier is only responsible for the works being performed in replacing the parts of the machine and that in the event that other components subsequently fail, the Customer agrees to indemnify the Supplier against any loss or damage to the machine, parts or caused by th components, or any part thereof howsoever arising.
    • The Supplier shall not be liable for the loss of or damage to the machine, its accessories or contents while being serviced or being driven in connection with the authorised works.
    • Is it the Customer's responsibility to ensure that the machines are insured against all possible damage, (including but not limited to the perils of accident, fire, theft and burglary) whilst stored at the Suppliers premises.