- These terms and conditions (as may be amended by us from time to time) (‘Terms’) set out the entire agreement between us and you in relation to the supply of Deliverables.
- In these terms and conditions:
- ‘we’ ‘us’ or ‘our’ mean and refer to Beacon Equipment ABN 15 081 442 908
- ‘you’ or ‘your’ means and refer to the purchaser or intending purchaser of the Deliverables; and
- ‘Deliverables’ means any goods, materials, equipment, parts, labor and/or services to be supplied by us to you pursuant to an order that you place and we accept under these terms and conditions and ‘Deliverable’ means any one of them.
- These Terms apply to the sale or supply of any Deliverables by us to you both now and in the future, and supersede and exclude all previous discussions, representations and terms or conditions of dealing between us and you. Unless otherwise specifically agreed to by us in writing, these Terms are the only contractual terms binding on us in respect of the Deliverables, and override any terms contained in any purchase order or any other document issued by you or correspondence or documents passing between you and us.
Each order by you is subject to acceptance or rejection by us, and is not binding on us prior to our written acceptance or performance of it (whichever occurs first).
We reserve the right:
- at any time prior to invoicing you for a Deliverable, to increase the price quoted to take account of increases in the cost of materials, labor or delivery due to factors beyond our reasonable control; and
- at any time, and without liability on our part, to correct any errors or omissions in any offer, quotation, invoice or other documentation issued by us.
- Taxes and Other Charges
- All prices do include any tax (including Goods and Services Tax within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any duty or impost levied in respect of any Deliverable that we have not expressly allowed for in calculating prices;
- any delivery charges will be itemized separately as required (the minimum being $15.00) or insurance charge associated with delivery of the Deliverables; or
- any fees charged by our bank that are reasonably related to the operation and maintenance of any account used by us in providing you credit.
These additional amounts will also be payable by you.
- “Delivery” will be deemed to occur on the earlier of:
- in the case of any Deliverable being a service, on our providing that service, and without the need for acceptance of that service by you;
- in the case of any Deliverable, the earlier of:
- our leaving or attempting to leave that Deliverable at a place nominated by you, whether or not any person is present to accept receipt of the Deliverables; or
- 7 days after we notify you, or a person ostensibly acting for you, that the Deliverable is available for collection or delivery.
- We will not be obliged to obtain a signed receipt or other acknowledgement of Delivery. However, if a signed receipt or other acknowledgement of delivery is obtained from a person on Delivery, to the extent permitted by law, such signed receipt or other acknowledgement shall be conclusive evidence of Delivery, the quantity of the Deliverables delivered, the lack of defects in the Deliverables, and compliance in all other respects with your order.
- Any time quoted for delivery is an estimate only and we will not be liable for any failure to Deliver, or delay in Delivering, any other Deliverable.
- Subject to clause 5.2, you will be deemed to have accepted the Deliverables free of defects or other non-conformity with your order, unless we receive a substantiated written claim as to such defect or other non-conformity within 7 days of Delivery.
- Bank Guarantee or other Security
- We reserve the right at any time to require you to provide us with:
- (a) payment in full on acceptance of an order, or prior to Delivery;
- (b) one or more unconditional bank guarantees in our favor, drawn on an Australian bank and on Terms acceptable to us, to secure your obligations under these Terms or any order, and/or
- (c) further security in a form and for an amount that is acceptable to us.
- Any bank guarantee you provide to us is provided as security for any amount payable to us pursuant to these Terms or any order, and we may claim under the bank guarantee without prejudice to any other right or remedy that we may have
- If we make a claim under a bank guarantee provided pursuant to these Terms, you must, within 7 days of our doing so, reinstate the bank guarantee or provide an additional bank guarantee at least equal to the amount of the claim and any previous claim.
- Invoices and Payment
In the event your compliance with such a requirement is a condition precedent to our performing any order or supplying any Deliverable, and we may suspend the performance of any order, or the provision of any Delivery, until you do so.
- Unless we otherwise agree in writing, we may invoice you for Deliverables at any time after Delivery, and payment in full is due within 30 days from the date of invoice.
- All payments must be made in Australian Currency, unless we otherwise agree in writing.
- If you fail to make full payment within the required time we may:
- suspend the provision of any further Deliverables under any order; and
- recover from you, in addition to the outstanding amount and interest, all reasonable costs incurred by us in collection of the outstanding amount including, without limitation, all reasonable legal costs (on a solicitor and own client basis), all reasonable debt collection agency costs and contingent expenses (such as debt collection agency commission).
- Risk in the Deliverables passes to you immediately on Delivery. We will not be liable on any basis whatsoever for any loss or damage to the Deliverables occurring after delivery.
- Title in any physical Deliverables remains with us and will not pass to you until you have paid us in full and without set-off or deduction, all monies owing to us by you in respect of the order that relates to the Deliverable.
- You acknowledge that until you have paid all monies owing by you to us in respect of that order, you hold those Deliverables as bailee for us, and you will return those Deliverables to us on request.
- Where permitted by the nature of those Deliverables, until title in a physical Deliverable passes to you in accordance with clause 9.1, you agree to store them on your premises separate from your own or any other person’s goods, and in a manner which makes them readily identifiable as our property.
- Until title in a physical Deliverable passes to you in accordance with clause 9.1 you hold the Deliverables on trust for us and:
- you only possess that Deliverable as our fiduciary agent (provided that you have no right to bind us to any liability to a third party by contract or otherwise).
- You may only incorporate or transform that Deliverable (or any portion of that Deliverable) into any other product you produce, provided that you hold a proportion of the value of that other product (or any payment that you receive or to which you become entitled on the sale or transfer of that product or Deliverable) (the “relevant proportion”) on trust for us. The amount of the relevant proportion must equal the dollar value of the Deliverable that has been incorporated, transformed, sold or transferred, and if you receive part payment (not exceeding the relevant proportion) for those products, you do so as to payment first of the relevant proportion; and
- your right to possession of the Deliverable will immediately cease, and all amounts invoiced to you will become immediately due and payable on the happening of any of the following events:
- you become, state that you are, or are deemed to be insolvent, or you commit an act of insolvency; or
- if you are a body corporate:
- an application is made to a court for an order, or an order is made, that you be wound up;
- an application is made to a Court for an order appointing a liquidator or a provisional liquidator, or one of them is appointed, whether or not under an order;
- you enter into, or resolve to enter into a scheme of arrangement, deed of company arrangement or composition with, or assignment for the benefit of all or any class of your creditors, or propose a reorganization, moratorium, or other administration involving any of them;
- you resolve to wind yourself up or otherwise dissolve yourself, or give notice of your intention to do so;
- as a result of the operation of section 459F(1) of the Corporations Act 2001 (Cth) you are taken to have failed to comply with a statutory demand; or
- you are, or you make a statement from which it may it may reasonably be deduced that you are, subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act 2001 (Cth);
- If you are an individual, you become an insolvent under administration as defined in section 9 of the Corporations Act 2001 (Cth), or action is taken that could result in that event;
- Execution is levied against any of your assets;
- your act or omission would entitle a receiver, a receiver and manager or a controller to take possession of any of your assets, or would entitle an external administrator to be appointed to you;
- judgement is entered against you in any court, which remains unsatisfied for a period of 7 days;
- any payment due under these Terms becomes more than 14 days overdue; or
- you commit a material breach of any of these Terms.
- On the happening of any of the circumstances in clause 9.4(c), you must promptly deliver all of the relevant Deliverables to us on written demand from us. If you do not comply with a demand made pursuant to this clause within 24 hours then, in order to recover possession of and remove those Deliverables, you irrevocably authorise us or our agent to enter any premises under your control, or to act in your name to enter any other premises.
- Return of Deliverables
- You may only return Deliverables that we sell as standard stock items provided that we first agree in writing, and you comply with any terms determined solely by us relating to the return. The question of whether we sell a Deliverable as a standard stock item is a matter for us in our absolute discretion.
- You must not deduct or set-off any anticipated credit from any payment that is due to us.
- If we agree to accept the return of any Deliverable under clause 10.1 we will credit your account with the value of the Deliverable less an administrative charge (which will not be less than 10% of the price of the Deliverables) for restocking and repacking.
- Customer Warranties
You warrant to us that:
- you possess all necessary licences, permits or approvals to receive, handle and store the Deliverables; and
- you will comply with all laws (including all environmental and safety laws), and the conditions of any licences, permits or approvals, relating to the handling and storage of the Deliverables.
- Party as Trustee
- If you are the trustee of any trust:
- you and your successors as trustee of that trust will be liable under these Terms in your own right and as trustee of the trust;
- nothing releases you from any liability in your personal capacity;
- you warrant that at the date of these Terms, and whenever Deliverables are ordered, or any amount is payable to us:
- the trust is validly constituted and has not vested;
- all powers and discretions conferred by the trust deed constituting the trust are capable of being validly exercised by you as trustee and have not been varied or revoked;
- you are the sole trustee of the trust, and you have the full and unfettered power under the terms of the trust deed constituting the trust to enter into, and be bound by these terms and conditions, and to order Deliverables from us on behalf of the trust;
- you have not resigned and will not resign as the trustee of the trust;
- you are agreeing to be bound by these Terms and ordering Deliverables from us as part of the due and proper administration of the trust and for the benefit of the beneficiaries of the trust;
- you have an unrestricted right of indemnity out of or lien over the trust’s assets, and that right will have priority over the right of the beneficiaries to the trust’s assets; and
- there has not been and will not be any distribution in specie or any capital distribution out of the assets of the trust.
- If you are the trustee of any trust:
- Warranties and Liabilities
We give no warranties, except those conditions or warranties that are implied and that cannot be excluded by law, in respect of the Deliverables.
Where it is lawful to do so, our liability for a breach of such a condition or warranty is limited to:
- in the case of goods, the repair or placement of those goods, the supply of equivalent goods, the payment of the cost of repairing or replacing the goods or acquiring equivalent goods; and
- in the case of services, supplying those services again, or paying the cost of having the services supplied again.
- Force Majeure
We are not liable to you for any failure to perform or delay in performing our obligations under these Terms or any order if that failure or delay is due to anything beyond our reasonable control.
- Governing Law
- If part or all of any provision of these Terms or its application to any person or circumstances is illegal or unenforceable, that provision will be interpreted as may be necessary to ensure it is not illegal or unenforceable. If any provision or part of it cannot be interpreted in that way, the provision or part of it will be severed from these Terms and the remaining provisions continue in force.
- Any failure by us to insist on strict compliance with any contract between us or any delay by us in exercising our rights under these terms and conditions will not constitute a variation or waiver or any provision of that contract or of any right available to us.
- This document sets out our current Terms. We may amend these Terms at any time by giving you at least 14 days written notice to that effect.
- The Deliverables are not sold by description. Any description of the Deliverables on any of our documents is given by way of identification only.
- Headings are inserted for ease of reference only, and do not affect the interpretation of these Terms and Conditions.
- Any certificate that we issue as to the amount you owe us shall, in absence of manifest error, be prima facie proof of its contents.
- Directors Guarantee
To: Beacon Equipment ABN 15 081 442 908 (the Company) of Unit 3/ 170 Bannister Road Canning Vale WA 6155
I/We confirm that the Company’s current Terms and Conditions of sale have been provided to us, and that I/We have read and understand them. In consideration of the Company agreeing to supply, and to continue to supply, goods and services on credit to the Applicant. I/We (jointly and severally) agree:
- To immediately pay to the Company all money due and payable by the Applicant to the Company, if the Applicant fails to pay any money due to the Company, or fails to perform or observe any of the Terms and Conditions of Sale. No demand by the Company for payment shall be necessary.
- To indemnify the Company and keep it indemnified against any loss by the Company arising out of or relating to any sale or credit granted by the Company to the Applicant, including any expenses and legal costs associated with the collection of outstanding monies and any loss suffered by the Company as a result of the Applicant’s failure to observe any of the Terms and Conditions of Sale.
- That this Guarantee and Indemnity is a continuing Guarantee and Indemnity and will not be invalidated, released or discharged by any event that which would or might invalidate, release or discharge this Guarantee and Indemnity, including (but not limited to) the giving of time, the alteration of the composition of the Applicant or the release of the Applicant or any co-guarantor.
If the Applicant is a trustee under any trust, I/We give each of the warranties set out in clause 12 of the Company Terms and Conditions of Sale as if they were repeated at length in this document.
Application and Acknowledgement
- The Applicant named on the first page of this document (“Applicant”) applies to Beacon Equipment ABN 15 081 442 908 (“the Company”) for credit, and acknowledges receipt of, accepts and agrees to be bound by the Company’s Terms and Conditions of Sale.
- The Applicant and each of its Directors or Proprietors authorizes the Company to:-
- obtain a credit report from a credit reporting agency that contains personal information about the applicant and its Directors or Proprietors.
- obtain a report from a credit reporting agency and other information pertaining to the Applicant’s, and any Director’s or Proprietor’s commercial card activities, and
- give to and obtain from any credit provider named in this Credit Application, or in any credit report issued by a credit reporting agency, information about the Applicant’s and any Director’s or Proprietor’s credit arrangements, including any information about their credit worthiness, credit standing, credit history or credit capacity (in accordance with Section 18N(1)(b) of the Privacy Act (1988) (Cth).
- The Applicant and each of its Directors or Proprietors acknowledges that the Company can use the information for the purposes of assessing this Application (Section 18L(4) of the Privacy Act, assisting the Applicant to avoid defaulting on its credit obligations, notifying other credit providers of a default by the Applicant, and assessing its credit worthiness