Application of General Terms and Conditions
1.1 These General Terms and Conditions will apply to the sale, hire or supply of any Goods and the provision of any Services by the Company to the Customer and will form part of any Contract resulting from the Company’s acceptance of an Order, or signed Agreement.
1.2 In the event of any inconsistency between the terms of the Agreement / Contract and the terms of a document issued by the Customer, the Customer agrees the terms of the Agreement / Contract will prevail.
1.3 If the Customer provides the Company with a Purchase Order or otherwise requests the supply of Goods, Parts A, B, C and D of these General Terms and Conditions will apply and form part of the Purchase Contract.
1.4 If the Customer provides the Company with an Order for Hire or otherwise requests the hire of Goods, Parts A, B, C and E of these General Terms and Conditions will apply and form part of the Hire Agreement / Contract.
1.5 If the Customer provides the Company with a Purchase Order for Services, Parts A, B, and C of these General Terms and Conditions will apply and form part of the Contract.
Part A –Definitions and Interpretation
In these General Terms and Conditions:
“Application for Credit” means an application for credit form completed by the Customer and submitted to the Company;
“Chattel Paper” has the same meaning as in the PPS Law;
“Claim” includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, order, settlement sum, damage, loss, cost, expense or liability, however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving the Company, the Customer, any Guarantors or a third party;
“Company” means the company who provides the Goods / and Services to the Customer being either West Coast Hire and Sales Pty Ltd (ACN 067 503 842) or West Coast Forklifts Pty Ltd (ACN 058 437 611) or their respective agents, successors or assigns;
“Contract” means, as the context permits or requires, a Purchase Contract, and / or a Hire Agreement / Hire Contract;
“Credit Account” means the Customer’s credit account with the Company established on the terms set out in the Credit Agreement;
“Credit Agreement” means the agreement between the Company and the Customer for the supply of Goods on credit, formed by written acceptance by the Company of the Credit Application;
“Delivery” means the Company making the Goods available to the Customer in the manner set out in clause 20;
“Delivery Date” means the date on which the Goods are deemed to be Delivered to the Customer as determined in accordance with clause 16;
“Delivery Point” means the location at which the Goods will be Delivered to the Customer as determined in accordance with clause 15;
“Good Operating Practice” means the highest practical standards from time to time, including practices, methods and acts, together with the exercise of that degree of skill, diligence, prudence and foresight that reasonably would be expected from an experienced and competent person under conditions comparable to those applicable to the relevant activities in light of known facts, which reasonably should have been known at the time, and consistent with applicable laws and authorisations;
“Goods” means all goods or services supplied by the Company to or at the direction of the Customer from time to time (and, in relation to any security interest in the Goods, includes any proceeds). The Goods may be “other goods” (such as spare parts) or “motor vehicles” or both as classified under the PPS Law;
“Guarantor” means a person that guarantees to the Company the performance of the Customer;
“Hire Charges” mean rental instalments set out in any Order for Hire or other document that forms part of the Hire Contract;
“Hire Agreement / Contract” means an agreement or a contract for the hire of Goods by the Company to the Customer formed on the acceptance by the Company of the Customer’s Order for Hire;
“Invoice” means an invoice issued by the Company to the Customer in accordance with clause 17;
“Order” means as the context permits or requires, a Purchaser’s Order or an Order for Hire;
“Order for Hire” means a written offer by the Customer to hire Goods from the Company;
“Other Services” means any services provided by the Company to the Customer other than the sale, hire or supply of the Goods or the provision of the Services;
“Payment Date” means:
(a) with regards to a Purchase Contract, the latest date on which the Customer must pay an Invoice as determined in accordance with clause 17;
(b) with regards to a Hire Contract, the dates on which the Hire Charges are payable as set out in any Order for Hire or other document that forms part of the Hire Contract; and
“PPS Law” means the PPSA together with any subsidiary legislation or regulations made under the PPSA and any amendment to a PPS Law from time to time;
“PPS Register” means the register established under the PPS Law;
“PPSA” means the Personal Properties Securities Act (2009) (Cth) as amended from time to time;
“Privacy Act” means the Privacy Act 1988 (Cth) as amended from time to time;
“Purchase Contract” means a contract for the sale of Goods by the Company to the Customer formed on the acceptance by the Company of the Customer’s Purchase Order;
“Purchase Order” means a written offer by the Customer to purchase Goods or Services from the Company;
“Security Interest” has the same meaning as under the PPS Law;
“Services” means the repair or maintenance services to be carried out by the Company in accordance with these General Terms and Conditions;
“Term” means, as the context permits or requires, the period commencing on the Delivery Date and ending on the date or at the expiry of the period set out in the Order for Hire
“West Coast Forklifts Group” means West Coast Forklifts Pty Ltd (ACN 058 437 611) and West Coast Hire and Sales Pty Ltd (ACN 067 503 842) and also includes their respective agents, successors and assigns.
Part B –General Terms
3.1 Any quotation issued by the Company is not an offer to sell, hire or supply any Goods or Services and may be withdrawn or varied at any time prior to a related Order being accepted by the Company in accordance with clause 4. A quotation will only be valid for 30 days from its date of issue unless extended in writing by the Company. All prices quoted by the Company are subject to variation and relate to the sale, hire or supply of Goods, or Services, under these General Terms and Conditions.
4.1 The Customer may request the Company to sell, hire or supply Goods or Services to the Customer in accordance with these General Terms and Conditions by providing an Order to the Company. All Orders received by the Company are subject to acceptance by the Company in writing. The Company may accept or reject an Order in whole or in part in its absolute discretion. The issue by the Company of a written acceptance of an Order will not be or imply acceptance of any terms or conditions in the Order which are inconsistent with these General Terms and Conditions or, if the Customer has a Credit Account with the Company, which are inconsistent with the terms of the Credit Agreement.
5.1 Unless stated otherwise, prices quoted to the Customer or set out in the Contract, do not include the taxes, imposts and duties which is the responsibility of the Customer.
6.1 The Company may, without notice, terminate a Contract, if:
(a) the Customer breaches any term of the Contract (including, without limitation, failing to pay an amount payable by the due date or failing to insure the Goods as required under the Contract);
(b) the Customer becomes bankrupt or insolvent, executes a personal insolvency agreement, enters into liquidation, administration, receivership or ceases to carry on business; or
(c) the Customer’s conduct indicates that it no longer intends to be bound by the Contract.
7.1 To the extent that a Security Interest arises under any Credit Agreement or Contract or any transaction contemplated by them in favour of the Company as the secured party:
(a) the Customer acknowledges that the Security Interest will attach to any proceeds or any accession;
(b) the Customer agrees to the Company effecting a registration on the PPS Register (in any manner the Company considers appropriate) in relation to any Security Interest and the Customer agrees to provide all assistance reasonably required to facilitate this (including paying all costs in connection with effecting, maintaining, amending or discharging that registration);
(c) the Customer waives the right to receive any verification statement (or notice of any verification statement) in respect of a registration made on the PPS Register; and
(d) the Customer must not, without first giving the Company 14 days’ prior written notice, change its name, ABN or any other identifiers which are required to be recorded on the PPS Register in connection with any Security Interest.
7.2 The Customer and the Company agree that to the extent section 115(1) of the PPS Act allows them to be excluded, sections 95 (to the extent that it requires the Company to give notice to the Customer), 96, 121(4), 125, 130 (to the extent that it requires the Company to give notice to the Customer), 132(3)(d), 132(4), 142 and 143 do not apply to the enforcement by the Company of any Security Interest arising under any Credit Agreement or Contract or the transactions contemplated by them.
8.1 The Company and the Customer acknowledge and agree that neither party may disclose any information or documents supplied by another party that is not publically available or that is not required by law to be disclosed.
8.2 Title, rights and interest in all intellectual property relating to the Goods and / or Services is, and will remain, the property of the Company.
9.1 If, at any time, any question, dispute or difference whatsoever shall arise between the Customer and the Company upon, in relation to, or in connection with a sale, hire or supply of Goods or Services (“Dispute”) such Dispute must be dealt with by the parties following this procedure before either party may take legal actions against the other:
(a) The disputing party shall provide a written notice to the other party outlining the Dispute (“Dispute Notice”).
(b) After receipt of the Dispute Notice the parties shall, within 7 days, arrange for a meeting of senior representatives to attempt to resolve the Dispute.
(c) If the Dispute cannot be resolved by the senior representatives, then either party may initiate legal proceedings.
10.1 If the Customer is a trustee of any trust or settlement including, but not limited to, any trust specified in an Application for Credit, the Customer:
(a) enters into any Credit Agreement or Contract in its personal capacity and in its capacity as trustee, and is liable in both of those capacities;
(b) represents and warrants that:
(i) any Credit Agreement or Contract is for the benefit of the trust;
(ii) it is the sole trustee of the trust;
(iii) it is not in breach of the trust;
(iv) it has authority to enter into any Credit Agreement or Contract;
(v) it has the right to be fully indemnified out of the trust assets for obligations incurred under any Credit Agreement or Contract.
10.2 If the Customer is a trustee of any trust or settlement including, but not limited to, any trust specified in Application for Credit, the Customer must not, without the prior written consent of the Company, permit:
(a) any resettlement or distribution of capital of the trust;
(b) any retirement or replacement of the trustee or any appointment of a new trustee of the trust deed establishing the trust;
(c) any amendment to the trust deed establishing the trust;
(d) any further encumbrance (including a Security Interest) or charging of any nature of any of the assets of the trust; or
(e) any breach of the provisions of the trust.
10.3 If any of the events listed in clause 10.2 occur (with or without the Company’s prior consent), the Customer must immediately notify the Company in writing.
11.1 The Customer must not, without the Company’s prior written consent, transfer, assign, encumber or otherwise dispose of any of the Customer’s rights or obligations under any Contract, Credit Agreement or these General Terms and Conditions. The Company may assign or novate any rights or obligations under any Contract, Credit Agreement or these General Terms and Conditions without notice to the Customer.
11.2 For the purposes of clause 11.1, if the Customer is a corporation, the Customer will be deemed to have assigned its rights and obligations if there is a change of effective control of the corporation or its ultimate holding company.
12.1 No waiver of any term of any Contract, Credit Agreement or these General Terms and Conditions will be valid unless such waiver is in writing and signed by the Company. If the Company does not enforce any right or delays in enforcing any right under any Contract, Credit Agreement or these General Terms and Conditions, this must not be construed as a waiver of such right.
13.1 These General Terms and Conditions and any Contract will be governed by and determined in accordance with the laws of Western Australia.
14.1 The Customer irrevocably appoints the Company as its attorney with the rights at any time to:
(a) comply with the obligations of the Customer under a Contract;
(b) do everything that, in the Attorney’s reasonable opinion, is necessary or expedient to enable the exercise of any right of the Company in relation to a Contract.
Part C – General Terms of supply of Goods and Services
15.1 Unless otherwise agreed by the parties, the Goods will be delivered and made available to the Customer at the delivery point agreed by the parties (“Delivery Point”), and all costs associated with the delivery shall be payable by the Customer.
16.1 The time within which the Company may advise the Customer that it will make Delivery of Goods will be regarded as a best estimate, but will not be guaranteed, and may be subject to extension to cover delays caused by, or contributed to, by Government priorities, manufacturers or suppliers, strikes, lockouts, breakdowns, delays in transport, fire, late delivery of raw material or components, or any other cause beyond the control of the Company and no responsibility will be accepted by the Company for the consequences of any such delays.
17.1 The Company will invoice the Customer for:
(a) the price of the Goods being the price set out in the Purchase Contract for Goods and/or Services (where applicable);
(b) the hire charges in accordance with the Hire Agreement / Contract (where applicable); and
(c) any applicable GST or other tax, stamp duty or statutory charges or levies payable in relation to or in connection with the supply of the Goods; and
17.2 Any change, after the earlier of the date of the Company’s quotation (if applicable), the Order or the Contract, and before the date of the Invoice, in the cost of labour, materials, transport, essential services, tariffs, duties, exchange, or any other costs or expenses incurred by the Company, must be paid for by the Customer.
17.3 Time for payment of the Invoice will be stated on the Invoice and, if no time is stated, then payment will be due within 30 days of the end of the month in which the Invoice is issued.
17.4 The Customer must pay the amount stated in the Invoice in full and in cleared funds on or before the Payment Date, without demand, deduction or set-off. If payment is made by way of cheque or electronic funds transfer, the Company will be deemed to receive payment of the funds on the date the Company receives cleared funds in its bank account.
18.1 All Goods (and any part of the Goods) will be at the Customer’s risk from the time they leave the premises where they are held until they are returned to the Company in a condition compliant with these General Terms and Conditions. The Company will not be responsible for any loss or damage to the Goods occurring after such time and no such loss or damage will affect the obligation of the Customer to pay any amount relating to the supply of the Goods in accordance with these General Terms and Conditions.
18.2 The Customer must take out, and maintain, insurance policies, which terms satisfy the Company’s insurer, to cover the following:
(a) any insurable loss in respect of the Goods howsoever caused between the Delivery Date and the earlier of:
(i) the Company receiving full payment of the Invoice relating to the Goods; and
(ii) the Customer returning the Goods to the Company and the Company accepting the return of the Goods in accordance with these General Terms and Conditions.
(b) General Third Party Public and Products Liability with a limit of liability of not less than $20,000,000.
(c) Worker’s Compensation and Occupational / Industrial Disease and any other insurance required at law relating to the Customer’s Worker’s Compensation liability to any person for the amount of $50,000,000.
18.3 The insurance policy must:
(a) note the Company’s interest in the Goods;
(b) be on terms and for an amount satisfactory to the Company; and
(c) be with an insurer approved by the Company;
(d) extend to indemnify the Company as principal and provide a waiver by the insurer of all rights of subrogation action or relief against the Company.
18.4 The Customer must provide written evidence of such insurance policy to the Company within 7 days of receiving a request to do so from the Company.
18.5 Unless the Company otherwise agrees in writing, the Company will not insure the Goods after the Delivery Date. If the Company does agree to insure the Goods after the Delivery Date, such insurance will be at the Customer’s expense.
18.6 Notwithstanding the termination, completion or expiry of any Contract, the Customer must keep any Goods which are the property of the Company and are in its custody, possession or control, safe and secure.
19.1 Subject to any warranties which are implied by law and cannot otherwise be excluded, the Company excludes all other warranties, conditions or liability in relation to the manufacture, sale, hire, use or supply of the Goods and the supply of the Services, and the Company will not be liable for any claim for direct, indirect or consequential loss or damage arising out of, or contributed to, by the manufacture, sale, hire, use or supply of the Goods or the supply of the Services.
19.2 The Customer acknowledges and agrees that it has made its own enquires as to the suitability of the Goods (or any part of the Goods) for the Customer’s intended use and the Customer does not rely on any statement, representation, or information provided by, or on behalf of, the Company in relation to the Goods (including the use of the Goods) other than the statements, representations and information set out in writing in the Contract for the Goods.
20.1 The Customer releases and discharges the Company from all claims and demands on the Company, and any loss or damage whatsoever, and whenever, caused to the Customer, of any other person of any nature or kind, and indemnifies and holds the Company harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by the Company, and from and against all actions, proceedings, claims or demands made against the Company, arising in either case as a result of, or which has been contributed to, by:
(a) the Customer’s failure to comply with any laws, rules, standards, or regulations applicable to the Goods or use of the Goods;
(b) the Customer’s failure to keep any Goods which are the property of the Company safe and secure;
(c) any use of the Goods contrary to any instructions or warnings given by the Company or the manufacturer of the Goods;
(d) any other negligence or any breach of duty by the Customer;
(e) any compliance or adherence by the Company with any instruction by the Customer; or
(f) any reliance by the Company on any representation by the Customer.
20.2 The parties agree and acknowledge that, for the purposes of clause 20.1, a reference to the Customer includes the Customer’s agents, employees, directors, representatives and contractors and any person or party who uses the Goods or claims an interest in the Goods as a result of a transaction with, or otherwise with the permission of, the Customer.
Part D – Special Conditions of Sale
21.1 The Goods will remain the sole and absolute property of the Company as legal and equitable owner, and property in and title to the Goods will not pass from the Company to the Customer, until the Customer has paid the Company for the Goods in full.
Part E – Special Conditions for Hire
22.1 The Goods (including any attachement, accessory, part or add-on) remain the property of the Company at all times and the Customer only has a right to use them.
22.2 The Customer must protect the Company’s interests in the Goods, and must not do anything inconsistent with those interests, including attempting to sell or dispose of, grant any interest (including any Security Interest) in or over, part possession with, or place any plates, stickers or marks on, the Goods. However, if the Company requests, or if otherwise required pursuant to these General Terms and Conditions, the Customer must put plates, stickers or marks on the Goods which identifies the Company’s interest in them and must not remove any plates, stickers or marks on the Goods which identifies the Company’s interest in them.
22.3 The Customer must ensure that it has all necessary rights, licences, permits and expertise to use the Goods.
23.1 The Customer must not remove the Goods from the location agreed to by the Company without the Company’s prior consent
24.1 The Customer must use the Goods only in its business operations and for the purposes for which they are designed. The Customer must ensure that:
(a) it complies with all applicable laws, regulations, approvals, licences or permits relating to the use and possession of the Goods;
(b) it keeps the Goods clean, properly serviced, in proper working order and condition, and in good and substantial repair (fair wear and tear excepted);
(c) it uses, operates and possesses the Goods in accordance with the supplier’s or manufacturer’s specifications;
(d) it uses, operates and possesses the Goods in accordance with any specific directions provided by the Company;
(e) the Goods are only operated by suitably qualified and trained operators;
(f) the Goods are kept safe and secure;
(g) its use, operation and possession of the Goods is in accordance with Good Operating Practice; and
(h) its use, operation and possession of the Goods is in accordance with best Safety practices including, but not limited to, ensuring that operators wear suitable clothing and protective equipment, are sober and not under the influence of any drugs, hold adequate licences or competency certificates, and observe all Safety signs and instructions.
24.2 The Customer agrees to use, operate and possess the Goods at the Customer’s risk. Without limiting clause 24.1, the Customer:
(a) releases and discharges the Company from all claims and demands on the Company, and any loss or damage whatsoever and whenever caused to the Customer of any other person of any nature or kind; and
(b) indemnifies and holds the Company harmless from and against all liabilities, losses, damages, costs or expenses incurred, or suffered, by the Company, and from and against all actions, proceedings, claims or demands made against the Company,
arising in either case as a result of, or which has been contributed to, by the Customer’s possession, operation or use of the Goods.
24.3 If required by law or otherwise requested by the Company in writing, the Customer must register the Goods and maintain such registrations.
24.4 The Customer must take proper care of the Goods and keep them clean and in good working order and in good repair (fair wear and tear excepted). The Customer must do all things necessary to maintain the supplier’s and manufacturer’s warranties.
24.5 The Customer must keep all maintenance records, log books and all other records relating to the inspection, commissioning, use or alteration of the Goods and make these records available to the Company on request.
25.1 If the Goods become unsafe or in a state of disrepair, the Customer agrees to discontinue use of the Goods and to notify the Company of such, immediately. The Customer must:
(a) on no account attempt to repair the Goods without the consent of the Company;
(b) take all steps necessary to prevent any injury, damage or loss occurring to any property or person as a result of the condition of the Goods;
(c) take all necessary steps to prevent further damage or loss to the Goods; and
(d) immediately return the Goods to the Company’s premises if required to do so by the Company.
25.2 Without limiting clauses 25.1, if the failure is caused by reasonable wear and tear, and for no other reason, including the Customer’s negligence or misuse, the Company agrees, in its discretion, to:
(a) repair the Goods within a reasonable time; or
(b) make similar Goods available;
26.1 The Customer must protect the Goods from loss or damage.
26.2 The Customer must notify the Company as soon as possible if any Goods are lost, stolen, destroyed, confiscated or damaged in whole or in part.
26.3 If any of the things in clause 26.2 occur, the Customer must:
(a) at the Company’s election and in the Company’s sole discretion either:
(i) at the Customer’s cost, repair the Goods to the satisfaction of the Company or replace the affected Goods with like goods approved by the Company, which have at least the same relative value; or
(ii) pay the Company, on demand, any costs incurred by the Company in repairing or replacing the Goods; and
(b) pay the Company, on demand, any costs, liabilities or expenses incurred, or to be incurred, by the Company as a consequence of the occurrence of the event in clause 26.2.
27.1 The Customer shall hire the Goods for the Term, subject to the terms of the Hire Agreement / Contract, any Credit Agreement and these General Terms and Conditions, commencing on the Delivery Date.
27.2 The Customer must, on or before the last day of the Term (or such other time as agreed between the Customer and the Company):
(a) return the Goods to the Company, at the Customer’s expense, in good working order, in a clean condition and in good repair (fair wear and tear excepted) at a place nominated by the Company.
(b) give the Company any certificates of registration, insurance certificates, warranties, log books, instructions and service manuals and other documents relating to them and a signed transfer of all such documents in favour of the Company (or such other person the Company nominates); and
(c) pay any amount owing to the Company.
27.3 Without limiting any other clause in these General Terms and Conditions, if the Company terminates any Contract, the Term shall immediately expire and the Customer must return the Goods, as in clause 27.2.
27.4 If the Company does not receive the Goods in the state required pursuant to clause 27.2(a), the Company may, without limiting any of its other rights following a breach of the Hire Contract or these General Terms and Conditions, take such steps as the Company considers necessary, at the Customer’s cost, to ensure that the Goods are in good working order, in a clean condition and in good repair (fair wear and tear excepted).
27.5 Without limiting the Company’s rights following a breach of clause 27.2, if the Customer retains the Goods with the consent of the Company after the end of the Hire Period, and the Customer has not entered into a new Hire Agreement / Contract (or Hire Extension) with the Company with respect to the Goods;
(a) the Customer must continue paying Hire Charges as if the last date of the Term had not occurred and the Contract had not ended;
(b) these General Terms and Conditions continue to apply; and
(c) the Company can give notice to the Customer at any time after the end of the Hire Period to return the Goods. If the Customer gives the Company notice under this clause 27.5(c), the Customer must return the Goods in accordance with clauses 27.2(a) to 27.2(c) as if the date specified in the notice was the last date of the Term.
28.1 The Customer must not lease, hire or otherwise part with possession of any Goods which are the property of the Company except with the prior consent of the Company.
28.2 In addition to any other Security Interest arising under or contemplated in these General Terms and Conditions, if the Customer leases or hires the Goods to another person / entity, the Customer grants a Security Interest in any Chattel Paper relating to the lease or hire arrangement to secure payment and performance of the Customer’s obligations under the Credit Agreement and/or Contract.
28.3 The Customer must perfect and continuously maintain perfection of any Security Interest that the Customer has over the Goods (including perfection as a Purchase Money Security Interest).
28.4 The Company may, but is under no obligation to do so, exercise its rights of power of attorney pursuant to clause 14.