1. GENERAL
1.1
Orders are accepted and
Equipment and services
sold by TR Pty Ltd
(“TR”) on these terms and
conditions (“Terms”) and
any other terms and
conditions contained in
the Sale Agreement
(together the “Sale
Documents”). No
variation or modification
of, or substitution for, the
Sale Documents shall be
binding unless expressly
accepted by TR in writing.
The Sale Documents
apply despite any other
terms and conditions that
are proffered by the
Purchaser named in the
Sale Agreement.
1.2
The word “Equipment” in
the Sale Agreement shall
be taken to mean any
equipment as referred to in
the Sale Agreement or the
services referred to in the
Sale Agreement and
where applicable all
equipment, articles,
accessories, documents
(including operating
manuals) or things
supplied with the
Equipment or the services.
Further, Equipment
includes reference to any
individual item as well as
to a number of Equipment
whether or not included in
a single quote or invoice.
1.3
The Sale Documents shall
be governed in all respects
by the laws of Victoria
and the jurisdiction of
Victoria shall apply to any
dispute arising out of the
Sale Document.
1.4
Unless otherwise
expressly stated all
Equipment sold is exrental.
2. ORDERS
An order placed whether
orally, by facsimile, by telephone, by e-mail, by mail or otherwise can not be cancelled or altered
other than with the written consent of TR. The
Purchaser acknowledges
that in placing the order
with TR it has entered into
a legally binding contract
with TR subject to these
Terms.
3. PRICES/EXCHANGE FLUCTUATIONS
All prices quoted by TR
are quoted excluding GST
(at the prevailing statutory
rate) tax, duty and freight
and packaging costs and all
are subject to adjustment if
there is any adverse
exchange rate fluctuation.
4. VALIDITY
Subject to clause 3 any
quotation given for the sale
of Equipment is valid for a
period of thirty (30) days
from its date or such other
period (if any) stated in the
quotation.
5. EX-STOCK EQUIPMENT
Any Equipment quoted "ex-stock" is subject to
availability and prior sale
or rental.
6. DELIVERY & INSURANCE
6.1
Equipment sold is
available for collection at
the location specified in
the Sale Agreement.
6.2
At the Purchaser’s request
TR will arrange packing and delivery of the
Equipment to the
Purchaser with packaging
and delivery charges being
invoiced to the Purchaser.
6.3
Unless otherwise agreed
by TR in writing, the
Purchaser shall collect the
Equipment from the
location specified in the
Sale Agreement within 7
days of TR notifying the
Purchaser that the
Equipment is ready for
collection.
6.4
If the Purchaser fails to
take delivery in
accordance with this
condition the Purchaser
shall pay TR for all
storage and handling
charges and other
consequential loss or
damage arising from that
delay.
6.5
TR is not responsible to
the Purchaser for any
damage to or loss of the
Equipment whilst being
delivered to the Purchaser.
The Purchaser
acknowledges that any
Equipment delivered by
TR is not covered by
insurance unless otherwise
agreed in writing with TR.
If the Purchaser requires
insurance cover to be
effected by TR over the Equipment, then all details
required by TR must be
supplied with the Order
and the charges for such
insurance borne by the
Purchaser.
6.6
If there is any defect in the
Equipment upon delivery
TR is to be notified by the
Purchaser within 7 days
otherwise the Equipment
will be deemed to have
been delivered in good
order and condition and in
full compliance of these
Terms.
7. WARRANTY
7.1
To the maximum extent
permitted by law, where
the Equipment is sold exrental,
the warranty
applying to it in respect of
a fault with the Equipment
will be for a period of 60
days from the date of
delivery unless otherwise
stated in the Sale
Agreement.
7.2
To the maximum extent
permitted by law, where
the Equipment is sold
new, the warranty and
period of warranty in respect of any fault in the
Equipment will be the
warranty and period of
warranty permitted by the
manufacturer of the
Equipment unless
otherwise specified in the Sale Agreement.
7.3
The warranties in clauses
7.1 and 7.2 do not apply:
(a) in respect of vacuum
tubes, lamps, fuses, test
leads and batteries or
copyrighted or licensed
works in respect of the
Equipment or any part
of the Equipment.
(b) where the Purchaser is
in breach of any of the
Sale Documents.
(c) where any fault of the
Equipment has been
caused by misuse,
neglect, accident or abnormal conditions of
operation or use
contrary to TR’s or the
manufacturer's
recommendations or
operating instructions..
(d) where the Equipment
was the subject of a
rental agreement with
the Purchaser or a
related entity to the
Purchaser. |
8. LIABILITY
8.1
Subject to clause 7, to the
maximum extent
permitted by law, TR
makes no warranties or
representation and the
Purchaser releases TR
from all liability for any
loss, claim, damage or
injury suffered in
connection with the
supply of the Equipment.
8.2
TR's liability to the
Purchaser in respect of
any non-excludable
warranty or condition
shall be limited to the
maximum extent possible
to either of the following
(as TR may decide):
(a) the replacement of the
Equipment or the
supply of equivalent
Equipment;
(b) the repair of the
Equipment;
(c) the payment of the cost
of replacing the
Equipment or of
acquiring equivalent
Equipment; or
(d) the payment of the cost
of having the Equipment repaired.
8.3
Unless otherwise stated in
the Sale Documents all
express and implied
warranties, guarantees and
conditions under statute,
general law or trade usage,
as to merchantability,
description, quality,
suitability or fitness of the
Equipment for any
purpose, or as to design,
assembly, installation,
materials, workmanship or
otherwise are expressly
excluded.
8.4
Subject to any nonexcludable
warranty or
condition and to the
maximum extent
permitted by law, TR
maximum aggregate
liability for all claims
relating to the Sale
Documents or their
subject matter, whether in
contract, tort (including
negligence), in equity,
under statute, under an
indemnity, based on
fundamental breach or
breach of a fundamental
term or on any other basis,
is limited to an amount
equal to the Purchase
Price paid by the
Purchaser under the Sale
Documents.
8.5
TR shall not be liable to
the Purchaser in any
circumstance for indirect,
economic or consequential
loss suffered by the
Purchaser
8.6
The Purchaser
acknowledges that it has
not relied upon any
statement or
representation by TR in
respect of the purpose for
which the Purchaser
desires to use the
Equipment and that TR is
not responsible or liable
for any failure or
unsuitability of the
Equipment to perform the
purposes required by the
Purchaser.
9. THE COST OF REPAIRS
Where the warranty in clause 7
does not apply, any repairs
requested by the Purchaser will
be charged and invoiced to and
paid for by the Purchaser.
10. DEFAULT
10.1
If the Purchaser:
(a) defaults in making any
payment; or
(b) fails to comply with
the Sale Documents; or
(c) repudiates any Sale
Document or any
contract it has with TR;
or
(d) dies; or
(e) stops payment; or
(f) calls a meeting of
creditors, becomes
(g) insolvent or subject to
the bankruptcy laws; or
(h) being a company,
enters into any scheme
of arrangement with
creditors, or receivers
and managers or
administrators are
appointed or has any
winding up petition
presented against it.
(i) TR may at its sole
discretion and option at
any time prior to
payment in full for the
Equipment and for any
other Equipment
supplied by TR for
which payment is
outstanding:
(a) suspend or cancel
the Sale
Documents;
(b) require payment in
cash before
delivery of the
Equipment or
services
(irrespective of any
terms of payment
previously
specified);
(c) take over or
repossess the
Equipment and
dispose of the
Equipment without
prejudice to any
claim TR may
have for damages
for any loss
resulting from any
re sale or disposal
of the Equipment;
(d) exercise all rights
to the Equipment
as if it were the
owner.
This clause shall apply
notwithstanding any waiver
by TR of any default or
failure by the Purchaser to
comply with these Terms
and without prejudice to its
other rights under the Sale
Agreement.
10.2
If the Purchaser is in
default of the Sale
Documents, the
Purchaser consents to
TR its servants and
agents entering the
Purchaser’s premises,
or any other premises
where the Equipment is
located, using such
force as is necessary in
order to repossess the
Equipment. The
Purchaser must provide
TR with all reasonable
assistance in order to
locate and collect the
Equipment. If the
Equipment is not
available for collection
at the nominated time and or place the
Purchaser will be liable
for any additional costs
TR incur. TR will not
be liable for any
damage to property
caused by any person
in collecting the
Equipment. |
11. PAYMENT
Payment terms are strictly
thirty (30) days from date of
invoice unless otherwise stated
in the Sale Agreement. If any
amount is due and unpaid, the
Purchaser agrees to pay interest
on the overdue amount at the
rate of 7% higher than the
Reserve Bank of Australia’s 90
day bill rate calculated daily
until payment in full is received
and the Equipment has been
returned. The Purchaser is
liable for all additional costs
TR may incur, including legal,
administrative and collection
costs to recover unpaid
amounts.
12. RETENTION OF TITLE
At all times the property in the
Equipment remains with TR
(irrespective of delivery of the
Equipment to the Purchaser)
until the Purchaser has paid the
full invoiced price and any
other payments due to TR in
respect of the Equipment
arising out of the Sale
Documents.
13. SPECIAL LICENCE
13.1.
Expressions used in
this clause 13 and in
the Personal Property
Securities Act 2009
(Cth) (“PPSA”) have
the same meanings as
when used in the
PPSA.
13.2.
If TR already has a
prior registered
security interest in the
Equipment supplied,
that security interest
continues in this
Equipment. The
Purchaser
acknowledges that the
Sale Documents create
a security interest in
favour of TR for the
purposes of the PPSA,
and:
(a) TR may register this
security interest
with the Registrar
of Personal
Property Securities
pursuant to the
PPSA in order to
perfect its security
interest;
(b) the Purchaser
agrees the security
interest granted to
TR pursuant to the
Sale Documents
may be a purchase
money security
interest for the
purpose of the
PPSA;
(c) if requested, the
Purchaser must pay
or reimburse the
costs of registering
the security interest,
and provide TR
with all assistance
reasonably required
in order for TR to
register the security
interest; and
(d) for the purpose of
section 115 of the
PPSA, the
following sections
of the Act do not
apply to this the
Sale Document:
sections 95, 118,
121(4), 125, 130,
132(3)(d), 132(4)
and 135.\
13.3. The Purchaser
authorises TR to search
the Personal Property
Securities Register at
any time for any
information about the
Purchaser.
13.4. The Purchaser waives
its right to receive a
copy of the verification
statement confirming registration of a
financing statement or
financing change
statement relating to
any security interest
granted under the Sale
Documents in relation
to commercial
property.
14. RENTAL EQUIPMENT
The Purchaser agrees with TR
that until it has paid the full
invoices price and any other
payments due to TR in respect
of the Equipment:
(a) It has not right, title,
estate or interest in
the Equipment;
(b) it will not remove any
sticker or other
identification from
the Equipment giving
notice of TR
ownership of the
Equipment;
(c) purport to grant any
encumbrance over or
in connection with
the Equipment or
otherwise purport to
offer or use the
Equipment as secutiy.
For the purpose of
these Conditions,
emcumbrance means
any mortgage, lien,
charge, bill of sale,
option, title retention,
pledge, claim,
restriction, condition,
overriding interest,
security interest
pursuant to the PPSA
or other
encumbrance.
(d) It must not ‘on-hire’
the Equipment unless
it receives the prior
written consent of
TR. TRs consent
may be withheld in its
absolute discretion.
15. SPECIAL LICENCE
In the event that any item of
Equipment or component of an
item of Equipment contains a
copyright work or other thing to which intellectual property
rights subsist, usage thereof
shall be by way of licence only
upon the terms and conditions
of the owners licence. The
Purchaser shall not do or cause
or permit to be done anything
in contravention of such
licence and subject to all
limitations and obligations
imposed by such licence.
16. RENTAL EQUIPMENT
Any quotation or any Sale
Document for the Equipment
which is currently or was
previously on hire to the
Purchaser shall be additionally
subject to the conditions that all
of the terms of the rental
agreement are complied with.
Rent will continue to accrue up
to the date of payment of the
sale invoice. Payment shall be
applied first to rent and second
to sale price.
17. SUNDRY
To the extent of any
inconsistency between the Sale
Agreement and these Terms,
the Sale Agreement prevails. |
Download the PDF version
