1.0 DEFINITIONS
In these Terms:
"ACL" means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) as amended;
"Agreement" means any agreement entered into for the provision of goods or services by Wacker to the Customer;
"Consumer" is as defined in the ACL and in determining if the Customer is a consumer, the determination is made if Customer is a consumer under the Agreement;
"Customer" means a person, firm or corporation jointly and severally if there is more than one, acquiring goods or services from Wacker;
"Goods" means goods supplied by Wacker to the Customer;
"GST" means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended, and includes any other broad-based consumption or value-added tax;
"Intellectual Property" means all copyright, trade marks, designs, specifications, drawings, instruction manuals and confidential information (whether registrable or not) owned or licensed by Wacker in respect of the goods or services;
"PPSA" means the Personal Property Securities Act 2009 (Cth) as amended;
"Price List" means any price list issued by Wacker from time to time in relation to the price payable for the goods or services;
"Quotation" means any written quote provided by Wacker to the Customer concerning the proposed supply of goods or services;
"Services" means services supplied by Wacker to the Customer in connection with the goods;
"Terms" means these Terms and Conditions of Sale; and
"Wacker" means Wacker Neuson Pty Ltd (ACN 004 659 590).
2.0 BASIS OF AGREEMENT AND ORDERS
2.1 Unless otherwise agreed in writing, the Terms apply exclusively to every Agreement and cannot be varied or supplanted by any other terms.
2.2 Any Quotation provided by Wacker to the Customer is valid for 30 days, is an invitation only to the Customer to place an order based upon that Quotation ("Order") and is subject to the Customer offering to enter into an Agreement and accepting these Terms.
2.3 The Terms may include additional terms in Wacker's Quotation which are not inconsistent with these Terms, or, if consistent, the Quotation will prevail to the extent of any inconsistency.
2.4 The Agreement is accepted by Wacker when Wacker confirms its acceptance of an Order from the Customer in writing or electronic means or provides the Customer with the goods or services.
2.5 Wacker may refuse to accept any Order.
2.6 The Customer must provide Wacker with its specific requirements in relation to the goods and services.
2.7 All Orders must be placed in accordance with Wacker's procedures specified from time to time.
2.8 Wacker may vary these Terms by written notice to the Customer at any time. Any variations will apply to Orders placed after the date of notice.
3.0 PRICING
3.1 Unless otherwise agreed in writing, prices specified by Quotation, verbally or in a Price List, for the supply of the goods and services exclude taxes and duties imposed on or in relation to the goods or services, including (without limitation) GST. The Customer must pay such taxes and duties in addition to payment of the price of the goods or services.
3.2 If the Customer requests any variation to the Agreement, Wacker may adjust the price to account for the variation.
3.3 If there is any change in Wacker's costs incurred in relation to the goods or services, Wacker may vary its price to take account of any such change, by notifying the Customer.
3.4 Wacker may change the specifications of the goods or services at any time without notice and without liability.
4.0 PAYMENT
4.1 Unless otherwise agreed in writing, payment for the goods and services must be made strictly in full prior to collection of the goods or completion of the services.
4.2 Where credit is supplied, full payment for the goods or services must be made within 30 days from end of month of invoice.
4.3 Payment must be made to Wacker without any deduction or set-off.
4.4 Payment terms may be revoked or amended at Wacker's sole discretion immediately upon giving written notice to the Customer.
4.5 The time for payment is of the essence.
4.6 Credit Card Payment Charges:
A surcharge of 1.5% will apply to all credit card payments made. Alternatively you may wish to pay by cash, cheque, Eftpos or direct credit which will not incur a surcharge. For COD customers your cheque must be cleared before we can release the goods or repairs to you.
5.0 PAYMENT DEFAULT
5.1 If the Customer defaults in payment by the due date of any amount payable to Wacker, then all money which would become payable by the Customer to Wacker at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and Wacker may, without prejudice to any other remedy available to it:
(a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 4 per cent for the period from the due date until the date of payment in full;
(b) charge the Customer for, and the Customer must indemnify Wacker from, all costs and expenses (including without limitation all legal costs and expenses) incurred by Wacker resulting from the default or in taking action to enforce compliance with the Terms, to recover any goods, or to recover any sum due;
(c) cease or suspend for such period as Wacker thinks fit, supply of any further goods or services to the Customer;
(d) by written notice to the Customer, terminate any Agreement so far as unperformed by Wacker; without effect on Wacker's accrued rights under any Agreement.
5.2 Clauses 5.1(c) and (d) may also be relied upon at Wacker's option where the Customer becomes bankrupt or enters into any scheme of arrangement with its creditors or has a liquidator, administrator or similar functionary appointed in respect of its assets.
6.0 PASSING OF PROPERTY
6.1 Until Wacker receives full payment in cleared funds for all goods and services supplied by it to the Customer, as well as all other amounts owing to Wacker by the Customer:
(a) title and property in all goods remain vested in Wacker and do not pass to the Customer;
(b) the Customer must hold the goods as fiduciary bailee and agent for Wacker;
(c) the Customer must keep the goods separate from its own goods and maintain Wacker's labeling and packaging;
(d) the Customer must hold the proceeds of sale of the goods on trust for Wacker in a separate account with a bank to whom the Customer has not given security however failure to do so will not affect the Customer's obligation as trustee;
(e) the Customer must not destroy, dispose of (other than by sale in the usual course) or damage the goods;
(f) the Customer must not mortgage, assign or otherwise encumber the goods under any security; and
(g) in addition to its rights under the PPSA, Wacker may without notice, enter any premises where it suspects the goods may be and remove them, and for this purpose the Customer irrevocably licences Wacker to enter such premises and also indemnifies Wacker from and against all costs, claims, demands or actions by any party arising from such action.
7.0 PERSONAL PROPERTY SECURITIES ACT
7.1 Notwithstanding anything to the contrary contained in these Terms, the PPSA applies to these Terms.
7.2 For the purposes of the PPSA:
(a) Terms used in this Clause 7 that are defined in the PPSA have the same meaning as in the PPSA;
(b) these Terms are a security agreement and Wacker has a Purchase Money Security Interest in all present and future goods supplied by Wacker to the Customer and the proceeds of the goods;
(c) the security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any particular time; and
(d) the Customer must do whatever is necessary in order to give a valid security interest over the goods and their proceeds which is able to be registered by Wacker on the Personal Property Securities Register.
7.3 The security interest arising under this Clause 7 attaches to the goods when the goods are collected or dispatched from Wacker's premises and not at any later time.
7.4 Where permitted by the PPSA, the Customer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under Sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
7.5 Wacker and the Customer agree to contract out of and nothing in the provisions of Sections 96, 125, 129, 142 and 143 of the PPSA will apply to these Terms.
7.6 To the extent permitted by the PPSA, the Customer agrees that:
(a) the provisions of Chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on Wacker will apply only to the extent that they are mandatory or Wacker agrees to their application in writing; and
(b) where Wacker has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
7.7 The Customer must immediately upon Wacker's request:
(a) do all things and execute all documents necessary to give effect to the security interest created under this Agreement; and
(b) procure from any person considered by Wacker to be relevant to its security position such agreements and waivers (including as equivalent to those above) as Wacker may at any time require.
7.8 Wacker may allocate amounts received from the Customer in any manner Wacker determines, including in any manner required to preserve any Purchase Money Security Interest it has in goods supplied by Wacker.
8.0 RISK AND INSURANCE
8.1 The risk in the goods and all insurance responsibility for theft, damage or otherwise in respect of the goods passes to the Customer immediately upon the goods being made available for collection from Wacker's premises ("ex works").
8.2 The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use or possession of any of the goods or services sold by Wacker, unless recoverable from Wacker on the failure of any statutory guarantee under the ACL.
9.0 ACKNOWLEDGEMENTS
9.1 The Customer acknowledges that:
(a) It has not relied on any service involving skill and judgment, or on any advice, recommendation, information or assistance provided by Wacker in relation to the goods or services or their use or application.
(b) it has not made known, either expressly or by implication to Wacker, any purpose for which it requires the goods or services and it has the sole responsibility of satisfying itself that the goods or services are suitable for the Customer's use.
(c) the goods and services are supplied on the basis that the Customer has obtained all necessary permits, licenses and qualifications required to store, and use the goods.
10.0 DELIVERY
10.1 The Customer must arrange, at its own cost, for the collection of the goods from Wacker's premises within seven (7) days of notification that the goods are ready. If the Customer does not collect the goods within this time, the Customer will be deemed to have taken delivery from such date and will be liable for storage charges payable [weekly/monthly] on demand.
10.2 The Customer will be responsible for all costs associated with collection of the goods, including packaging, freight and insurance.
10.3 Delivery is deemed to occur upon the earlier of the goods being collected from Wacker's premises "ex works", or the goods being deemed to be delivered in accordance with Clause 10.1.
10.4 Any period or date for delivery of goods or completion of services stated by Wacker is intended as an estimate only and is not a contractual commitment. Wacker will use all reasonable endeavours to meet any estimated dates for delivery of the goods or completion of the services.
10.5 If Wacker cannot complete the services by any estimated date, it will complete the services within a reasonable time.
10.6 The Customer indemnifies Wacker against any loss or damage suffered by Wacker, its subcontractors or employees as a result of delivery, except where the Customer is a consumer and Wacker has not used due care and skill.
10.7 Wacker reserves the right to make part delivery of Orders.
11.0 LIABILITY
11.1 Except as specifically set out in the Terms, or contained in any express warranty statement provided with the goods or services, the Agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services, or any contractual remedy for their failure.
11.2 If the Customer is a consumer, nothing in these Terms restricts, limits or modifies the Customer's rights or remedies against Wacker for failure of a statutory guarantee under the ACL.
11.3 If the Customer on-supplies the goods to consumer:
(a) if the goods or services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in Section 276A(1) of the ACL is the absolute limit of Wacker's liability to the Customer;
(b) if the goods or services are of a kind ordinarily acquired for personal, domestic or household use or consumption, then payment of any amount required under Section 274 of the ACL is the absolute limit of Wacker's liability to the Customer, howsoever arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods or services by the Customer or any third party.
11.4 If Clause 11.2 or 11.3 does not apply, then other than as stated in the Terms or any written warranty statement, Wacker is not liable to the Customer in any way howsoever arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods or services by the Customer or any third party.
11.5 Wacker is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
11.6 Wacker is not liable for any loss or damage suffered by the Customer where Wacker cancels or suspends the supply of goods or services as permitted by these Terms.
11.7 Nothing in the Terms is to be interpreted as excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.
12.0 CANCELLATION
12.1 If, through circumstances beyond Wacker's control, Wacker is unable to provide the goods or services, then Wacker may, by written notice to the Customer and without any liability to the Customer, cancel any Order (even if it has already been accepted).
12.2 No purported cancellation or suspension of an Order by the Customer is binding on Wacker after that Order has been accepted. However, if Wacker accepts the Customer's cancellation, Wacker may charge the Customer for the cost of any goods ordered or services commenced prior to the cancellation.
13.0 SHORTAGES AND EXCHANGES
13.1 Subject to Clause 13.2 and 13.5, Wacker will not be liable for any shortages, damages or non-compliance with the specifications in the Agreement unless the Customer notifies Wacker with full details within 7 days of delivery otherwise the Customer is deemed to have accepted the goods. Wacker must be given the opportunity to inspect the goods or services and investigate the complaint before any further dealing.
13.2 When any shortages, claim for damages goods or non-compliance with the Agreement specifications is accepted by Wacker, Wacker may, at its option, replace the goods or refund the price of the goods.
13.3 Subject to Clause 13.5, Wacker will not under any circumstances accept goods for return that:
(a) have been specifically produced, imported or acquired to fulfill the Agreement;
(b) are discontinued goods or no longer stocked by Wacker;
(c) have been altered in any way;
(d) have been used; or
(e) are not in their original condition.
13.4 The Customer must bear the cost for the return of goods and pay all freight charges associated with return of the goods.
13.5 If the Customer is a consumer, nothing in this Clause 13 limits any remedy available for a failure of the guarantees in Sections 56 and 57 of the ACL.
14.0 RETURNS
14.1 Return of machines is not accepted.
14.2 Parts that are normally stocked by the Company may only be returned for credit up to 45 days from invoice.
14.3 A handling and re-stocking fee applies at the greater of 15% of the purchase price or $120.
14.4 Parts that are not able to be returned for credit include but are not limited to:
(a) where the parts proposed return date is more than 45 days from invoice;
(b) parts not normally stocked by Wacker;
(c) parts which are specifically ordered for the Customer;
(d) damaged parts and parts not returned in original and undamaged packaging;
(e) parts which have been fitted or otherwise used;
(f) parts supplied to the Customer as used parts;
(g) batteries, bearings, cups, cones, seals, seal kits, gaskets, gasket kits, lubricants, fluids in containers, hoses, and items specifically made or sized to specifications.
14.5 Conditions applicable to parts proposed for return for credit include but are not limited to:
(a) the Customer must provide a copy or the number of the original invoice;
(b) the Customer is responsible for all transport costs involved with the parts return;
(c) parts are transported and returned at the Customer’s risk.
15.0 INTELLECTUAL PROPERTY
15.1 The Customer acknowledges that it has no proprietary right or interest in the Intellectual Property.
15.2 The Customer must not register or record or attempt to register or record anywhere in the world the Intellectual Property or any part thereof or anything similar to it nor aid or abet anyone else to do so.
15.3 Any Intellectual Property provided by Wacker to the Customer remains Wacker's exclusive property and must be returned to Wacker on demand and must not be copied or communicated to any third party without Wacker's express written consent.
16. FORCE MAJEURE
16.1 Wacker shall have no liability whatsoever under these Terms to the extent that such fulfillment is prevented by circumstances beyond its reasonable control, including but not limited to industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, act of God, act of terrorism, or act of war. If an event of force majeure occurs, Wacker may terminate the Agreement by written notice to the Customer.
17.0 MISCELLANEOUS
17.1 The law of Victoria from time to time governs the Terms and the parties agree to the non-exclusive jurisdiction of the Courts of Victoria.
17.2 Wacker's failure to enforce any of these Terms shall not be construed as a waiver of any of Wacker's rights.
17.3 If any of the Terms are unenforceable it must be read down so as to be enforceable or, if it cannot be so read down, the term must be severed from these Terms without affecting the enforceability of the remaining terms.
17.4 A notice must be in writing and handed personally or sent by facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile are deemed to be received upon the sender's facsimile machine confirming such transmission.
