1.1 “E.P” shall mean Equine Performance Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Equine Performance Pty Ltd.
1.2 “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by E.P to the Customer.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Goods” shall mean all Goods supplied by E.P to the Customer (and where the context so permits shall include any incidental supply of services and any supply of Equipment as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by E.P to the Customer.
1.5 “Equipment” shall mean all Equipment (including any accessories) supplied on hire by E.P to the Customer (and where the context so permits shall include any incidental supply of services and any supply of Goods are defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between E.P and the Customer in accordance with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3.1 Any instructions received by E.P from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by E.P shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of E.P.
3.4 The Customer shall give E.P not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by E.P as a result of the Customer’s failure to comply with this clause.
3.5 Goods are supplied by E.P only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
4. Price and Payment
4.1 At E.P’s sole discretion the Price shall be either:
(c) as indicated on invoices provided by E.P to the Customer in respect of Goods supplied; or
(d) E.P’s Price at the date of delivery of the Goods according to E.P’s current price list; or
(e) E.P’s quoted Price (subject to clause 4.2) which shall be binding upon E.P provided that the Customer shall accept E.P’s quotation in writing within thirty (30) days.
4.2 E.P reserves the right to change the Price in the event of a variation to E.P’s quotation. Any variation from the plan of scheduled Services or specifications of the Goods (including, but not limited to, any variation as a result of fluctuations in currency exchange rates or increases to E.P in the cost of customs levies and taxes) will be charged for on the basis of E.P’s quotation and will be shown as variations on the invoice.
4.3 At E.P’s sole discretion. 4.4 At E.P’s sole discretion:
(c) a deposit may be required; and/or
(d) payment shall be due on delivery of the Goods; or
(e) payment shall be due prior to delivery of the Goods.
4.5 Time for payment shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due fourteen (14) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Customer and E.P.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Delivery of the Goods
5.1 At E.P’s sole discretion delivery of the Goods shall take place when the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by E.P or E.P’s nominated carrier).
5.2 At E.P’s sole discretion the costs of delivery are in addition to the Price and, where applicable, charged to the Customer’s account.
5.3 The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then E.P shall be entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
5.5 The failure of E.P to deliver shall not entitle either party to treat this contract as repudiated.
5.6 E.P shall not be liable for any loss or damage whatsoever due to failure by E.P to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of E.P.
6.1 If E.P retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
6.2 Where the Customer expressly requests E.P to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk and it shall be the Customer’s responsibility to ensure the Goods are insured adequately or at all.
6.3 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, E.P is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by E.P is sufficient evidence of E.P’s rights to receive the insurance proceeds without the need for any person dealing with E.P to make further enquiries.
7.1 E.P and the Customer agree that ownership of the Goods shall not pass until:
(c) the Customer has paid E.P all amounts owing for the particular Goods; and
(d) the Customer has met all other obligations due by the Customer to E.P in respect of all contracts between E.P and the Customer.
7.2 Receipt by E.P of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then E.P’s ownership or rights in respect of the Goods shall continue.
7.3 It is further agreed that:
(c) where practicable the Goods shall be kept separate and identifiable until E.P shall have received payment and all other obligations of the Customer are met; and
(d) until such time as ownership of the Goods shall pass from E.P to the Customer E.P may give notice in writing to the Customer to return the Goods or any of them to E.P. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
(e) E.P shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(f) if the Customer fails to return the Goods to E.P then E.P or E.P’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated and take possession of the Goods; and
(g) the Customer is only a bailee of the Goods and until such time as E.P has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to E.P for the Goods, on trust for E.P; and
(h) the Customer shall not deal with the money of E.P in any way which may be adverse to E.P; and
(i) the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of E.P; and
(j) E.P can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
(k) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that E.P will be the owner of the end products.
8.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify E.P of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford E.P an opportunity to inspect the Goods within a reasonable time following such notification if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which E.P has agreed in writing that the Customer is entitled to reject, E.P’s liability is limited to either (at E.P’s discretion) replacing the Goods or repairing the Goods except where the Customer has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
8.2 Goods will not be accepted for return other than in accordance with 8.1 above.
9.1 For Goods not manufactured by E.P, the warranty shall be the current warranty provided by the manufacturer of the Goods. E.P shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
10. Equipment Hire
10.1 Unless, specified otherwise by the Seller in writing, a minimum hire period of one (1) month shall be applicable.
10.2 Hire charges shall commence from the time the Equipment departs from E.P’s premises and will continue until the return of the Equipment to E.P’s premises, and/or until the expiry of the minimum hire period, whichever last occurs.
10.3 No allowance whatsoever can be made for time during which the Equipment is not in use for any reason, unless E.P confirms special prior arrangements in writing. In the event of Equipment breakdown provided the Customer notifies E.P immediately, hiring charges will not be payable during the time the Equipment is not working, unless the condition is due to negligence or misuse on the part of or attributable to the Customer.
10.4 E.P retains property in the Equipment; nonetheless, all risk for the Equipment passes to the Customer on delivery.
10.5 The Customer accepts full responsibility for the safekeeping of the Equipment and indemnifies E.P for all loss, theft, or damage to the Equipment howsoever caused and without limiting the generality of the foregoing whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the Customer.
10.6 The Customer will insure, or self insure, E.P’s interest in the Equipment against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Equipment. Further the Customer will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
10.7 The Customer accepts full responsibility for and shall keep E.P indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons or damage to property arising out of the use of the Equipment during the hire period however arising and whether or not arising from any negligence, failure or omission of the Customer or any other persons.
10.8 The Equipment is and will at all times remain the absolute property of E.P.
10.9 If the Customer fails to return the Equipment to E.P then E.P or E.P’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Equipment is situated and take possession of the Equipment, without being responsible for any damage thereby caused.
10.10 The Customer is not authorised to pledge E.P’s credit for repairs to the Equipment or to create a lien over the Equipment in respect of any repairs.
10.11 The Customer shall:
(c) notify E.P immediately by telephone of the full circumstances of any mechanical breakdown or accident. The Customer is not absolved from the requirements to safeguard the Equipment by giving such notification;
(d) satisfy itself at commencement that the Equipment is suitable for its purposes;
(e) operate the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instruction whether supplied by E.P or posted on the Equipment;
(f) ensure that all persons operating or erecting the Equipment are over the age of sixteen (16) years and suitably instructed in its safe and proper use;
(g) comply with all occupational health and safety laws relating to the Equipment and its operation;
(h) on termination of the hire, deliver the Equipment complete with all parts and accessories, clean and in good order as delivered, fair wear and tear accepted, to E.P;
(i) keep the Equipment in their own possession and control and shall not assign the benefit of the hire contract nor be entitled to lien over the Equipment;
(j) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment;
(k) employ the Equipment solely in its own work and shall not permit the Equipment of any part thereof to be used by any other party for any other work;
(l) not exceed the recommended or legal load and capacity limits of the Equipment; (m) not use or carry any illegal, prohibited or dangerous substance in or on the Equipment;
(n) not fix any of the Equipment in such a manner as to make it legally a fixture forming part of any freehold.
10.12 Immediately on request by E.P the Customer will pay:
(c) the new list price of any Equipment that is for whatever reason destroyed, written off or not returned to E.P;
(d) all costs incurred in cleaning the Equipment;
(e) all costs of repairing any damage caused by the ordinary use of the Equipment up to an amount equal to 10% of the new list price of the Equipment;
(f) the cost of repairing any damage to the Equipment caused by the negligence of the Customer or the Customer’s agent;
(g) the cost of repairing any damage to the Equipment caused by vandalism, or (in E.P’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Customer.
11. Default and Consequences of Default
11.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at E.P’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
11.2 In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by E.P.
11.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify E.P from and against all costs and disbursements incurred by E.P in pursuing the debt including legal costs on a solicitor and own client basis and E.P’s collection agency costs.
11.4 Without prejudice to any other remedies E.P may have, if at any time the Customer is in breach of any obligation (including those relating to payment) E.P may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. E.P will not be liable to the Customer for any loss or damage the Customer suffers because E.P has exercised its rights under this clause.
11.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
11.6 Without prejudice to E.P’s other remedies at law E.P shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to E.P shall, whether or not due for payment, become immediately payable in the event that:
(c) any money payable to E.P becomes overdue, or in E.P’s opinion the Customer will be unable to meet its payments as they fall due; or
(d) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(e) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
12. Security and Charge
12.1 Despite anything to the contrary contained herein or any other rights which E.P may have howsoever:
(c) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to E.P or E.P’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that E.P (or E.P’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(d) should E.P elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify E.P from and against all E.P’s costs and disbursements including legal costs on a solicitor and own client basis.
(e) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint E.P or E.P’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 12.1.
13.1 E.P may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice E.P shall repay to the Customer any sums paid in respect of the Price. E.P shall not be liable for any loss or damage whatsoever arising from such cancellation.
13.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by E.P (including, but not limited to, any loss of profits) up to the time of cancellation.
13.3 Cancellation of orders for Goods made to the Customer’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.
14. Privacy Act 1998
14.1 The Customer and/or the Guarantor/s (herein referred to as the Customer) agree for E.P to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by E.P.
14.2 The Customer agrees that E.P may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
to assess an application by the Customer; and/orto notify other credit providers of a default by the Customer; and/orto exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/orto assess the creditworthiness of the Customer.
The Customer understands that the information exchanged can include anything about the Customer's creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
14.3 The Customer consents to E.P being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
14.4 The Customer agrees that personal credit information provided may be used and retained by E.P for the following purposes (and for other purposes as shall be agreed between the Customer and E.P or required by law from time to time):
the provision of Goods; and/orthe marketing of Goods by E.P, its agents or distributors; and/oranalysing, verifying and/or checking the Customer's credit, payment and/or status in relation to the provision of Goods; and/orprocessing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/orenabling the daily operation of Customer's account and/or the collection of amounts outstanding in the Customer's account in relation to the Goods.
14.5 E.P may give information about the Customer to a credit reporting agency for the following purposes: to obtain a consumer credit report about the Customer;allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
14.6 The information given to the credit reporting agency may include:
personal particulars (the Customer's name, sex, address, previous addresses, date of birth, name of employer and driver's licence number;details concerning the Customer's application for credit or commercial credit and the amount requested;advice that E.P is a current credit provider to the Customer;advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;that the Customer's overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;information that, in the opinion of E.P, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customers credit obligations);advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once; Equine Performance Pty Ltd – Terms & Conditions of Trade © Copyright – EC Credit Control Pty Ltd - 2010that credit provided to the Customer by E.P has been paid or otherwise discharged.
15.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
15.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of Parramatta.
15.3 E.P shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by E.P of these terms and conditions.
15.4 In the event of any breach of this contract by E.P the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
15.5 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 E.P nor to withhold payment of any invoice because part of that invoice is in dispute.
15.6 E.P may license or sub-contract all or any part of its rights and obligations without the Customer’s consent. 15.7 The Customer agrees that E.P may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which E.P notifies the Customer of such change. 15.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
15.9 The failure by E.P to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect E.P’s right to subsequently enforce that provision.