Terms & Conditions

1. GENERAL OPERATION

These terms and conditions, together with a Quote signed by the Customer and acknowledged in writing by the Company constitute the Contract for the delivery of Products and Services to the Customer.

1.1 Definitions and Interpretations

Capitalised terms have the meanings specified in clause 22 of these terms and conditions.

1.2 Precedence of documents

To the extent that there is any conflict or inconsistency between the documents comprising the Contract, the following order of priority applies to the extent of the inconsistency:

  1. these terms and conditions; then
  2. the Quote for Products and Services signed by the Customer and acknowledged in writing by the Company.

2. Quotations

2.1 Quote

  1. A Quote may be requested of the Company for Products and Services at any time.
  2. The Company may, at its discretion provide a Quote for some or all the Products and Services requested.
  3. Prices quoted by the Company are valid strictly for thirty 30 days of the date of the Quote.
  4. The Customer may accept a Quote by signing and returning the Quote to the Company within thirty 30 days of the date of the Quote.
  5. The Company’s written acknowledgement of receipt of a signed Quote, together with these terms and conditions constitute the entire agreement of the parties in relation to the supply of Products and Services.
  6. The Company is not bound by any conditions in a document prepared by the Customer, including any document attached by the Customer to a Quote.

3. PROVISION OF SERVICES

3.1 The Company’s Obligations

The Company must provide the Products and Services to the Customer on the scope outlined in the Contract.

3.2 Personnel and Services

  1. The Company will ensure the Services to the Customer are carried out:
    1. by suitably competent and trained Personnel; and
    2. to a standard of skill, care and diligence expected of a reasonably similar provider of the Services.
  2. The Company may, at its discretion, engage Personnel (including subcontractors) in connection with its provision of Services to the Customer.
  3. The Company remains responsible for the supervision of any Personnel engaged by the Company for the performance of Services to the Customer.

3.3 Delivery

  1. The Company will use reasonable endeavours to deliver the Products and provide the Services to the Customer on or before the delivery date estimated in a Quote.
  2. An estimated delivery date is not a guarantee a Product will be delivered, or the Services will be completed by that date.
  3. The Company is not liable to the Customer for delay in meeting the estimated delivery date.
  4. Delivery shall be affected upon:
    1. physical delivery of the Products to the address requested by the Customer; or
    2. collection of the Products by the Customer or the Customer’s authorised representative.
  5. The Company is not liable for delay:
    1. caused or contributed to by the Customer, including where the Customer fails to promptly provide any relevant assistance, cooperation, and provision of access, including a Customer’s failure to make a vehicle available to the Company for fit out or repair as planned;
    2. caused by the Customer re-scheduling a build or installation date; or
    3. caused by a Force Majeure Event or by an unforeseen circumstance outside of the reasonable control of the Company.

3.4 Provision of Services at the Customer’s site

  1. In requesting a Quote, the Customer may ask for the Services be conducted at the Customer’s site.
  2. The Customer warrants that the Customer’s site has sufficient access and is safe for Company Personnel to conduct the Services.
  3. The Company is under no obligation to conduct the Services from any site other than the Company’s own workshop.
  4. If the Company is prepared to conduct the Services from the Customer’s site, it will specify this in writing in the Quote.
  5. The Customer acknowledges and agrees that where the Company conducts the Services from the Customer’s site, the Customer must pay the reasonable costs of the Company for:
    1. Company Personnel to travel from the Company’s premises to the Customer site and their return, at the rate of $240 per hour + GST (Mon – Fri, 8am to 5pm <30kms);
    2. travel time of $240 per hour + GST (Mon – Fri, 8am to 5pm <30kms), per member of Company Personnel, capped at $2,500 + GST, in total per person day;
    3. the costs incurred by the Company to hire specialist equipment if it is not possible for the Company to bring its own equipment as necessary for the Services to be completed at the Customer’s site.
  6. The Company may, acting reasonably, suspend or withdraw from the provision of the Services if it considers it is no longer safe or appropriate to conduct the Services at the Customer’s site.

3.5 Title and Risk in Products

  1. Title in, and to all, Products Delivered remains with the Company until such time as the Products have been paid for in full.
  2. Payment in a form other than cash is not taken to be payment in full until such form of payment is cleared or recognised to the reasonable satisfaction of the Company.
  3. Until the Company has received payment for the Products in full:
    1. the Customer holds the Products as bailee for the Company;
    2. the Customer must store the Products securely and safely and clearly show the Products are the property of the Company;
    3. where the Products are held in or on any vehicle, vessel, site, facility, or location, whether or not owned by the Customer, the Company is entitled to enter or access to repossess the Products;
    4. the Customer agrees to indemnify the Company against all costs incurred by the Company to recover the Products; and
    5. the Customer agrees to indemnify the Company against all liabilities or claims against the Company in recovering the Products.

3.6 Security Interest

  1. In consideration of the Company supplying Products and Services to the Customer in accordance with these terms and conditions, the Customer:
    1. grants to the Company a purchase money security interest (PMSI);
    2. acknowledges and agrees that the PMSI attaches to all Products now or in the future supplied to the Customer by the Company;
    3. agrees, until title to the Products pass to the Customer, it must keep all Products free from any charge, lien, encumbrance except as created under these terms and conditions;
  2. The Customer must pay the Company’s expenses to register security interests in this clause.
  3. Until ownership of the Products passes to the Customer, the Customer waives its right to the following provisions of the Personal Properties Security Act 2009 (Cth):
    1. receive a notice under any of subsections 95(1), 121(4), 129(2) and 130(1) and sections 135 and 157 of the PPSA;
    2. receive a statement that includes the information referred to in paragraph 132 (3)(d) of the PPSA;
    3. receive a statement under subsection 132(4) of the PPSA; and
    4. and give a Notice of Objection under section 137 of the PPSA.

3.7 Storage costs

  1. Unless otherwise agreed, upon notice that:
    1. a Product is available for collection; or
    2. Services in respect of a Customer’s vehicle are complete,

    the Customer is granted seventy-two (72) hours to collect, (or arrange its authorised representative to collect) the Product or Customer’s vehicle from the Company.

  2. If the Customer (or the Customer’s authorised representative) fail to collect the Product or Customer’s vehicle, the Company may charge the Customer reasonable costs for storage, not exceeding $100 per day.

3.8 Company’s right to dispose of Products

  1. In the event the Customer:
    1. retains possession of the Products;
    2. payment is due to the Company;
    3. the Company has made a written demand of the Customer for payment;
    4. the Company has not received payment,

    the Company may dispose of the Products, including by selling them to a third party and the Customer is liable to the Company for any loss to the Company on disposal.

4. DESIGN VARIATION

  1. The parties may agree a variation to the scope of the works in the Contract in writing (Design Variation).
  2. The costs of a Design Variation, including but not limited to additional materials, or Personnel costs is borne by the Customer.
  3. The Customer must pay the Fees invoiced for the Design Variation.

5. CREDIT

5.1 The Company may, at its discretion request the Customer complete a credit application in a form prescribed by the Company.

5.2 Completion of a credit application does not infer, to any extent, the grant or guarantee of credit.

5.3 The Company reserves the right to refuse, suspend or withdraw credit facilities at any time without notice if the Customer is in breach of the Contract.

5.4 The Customer acknowledges that the Company may engage third-party providers to provide credit checks, including CreditorWatch Pty Ltd.

5.5 The Company may at its discretion require a personal guarantee from the owners or directors of the Customer when granting credit.

5.6 Subject to a credit facility being opened for the Customer, the Company may, at its discretion, offer the following credit terms to the Customer:

  1. payment due within 30 days from the date of an invoice, and

    payment must be in a form acceptable to the Company and must not be made with any deduction or set-off.

6. DEPOSIT

  1. Notwithstanding the Customer being granted a credit facility by the Company, the Company may require the Customer to pay a Deposit as follows:
    1. For Products or Services with Fees <=$5,000, 10% of the Fees;
    2. For Products or Services with Fees >=$5,000, 20% of the Fees; or
    3. as otherwise agreed by the Company in writing.
  2. For the avoidance of doubt the Deposit is calculated on the basis of the total value of all Products or Services in a Quote.

6.2 Cancellation

  1. The Customer acknowledges the Company incurs significant costs in materials and Personnel to deliver the Products and Services in the Contract.
  2. Once a Quote has been signed by the Customer and receipt of the Quote acknowledged by the Company, the Customer may not cancel any Product or Service in a Quote without the written consent of the Company.
  3. If the Company agrees to accept the Customer’s request for cancellation, the Customer forfeits their Deposit to the Company.
  4. If the Company does not agree to the cancellation, the Customer remains liable for all Fees payable to the Company.

6.3 Refunds

  1. It is the Customer’s responsibility to ensure a request for Quote for a Product or Service is for the correct Product or Service desired by the Customer.
  2. No exchanges or refunds are payable for errors on the part of the Customer. However, the Company may, in its sole discretion, agree to accept a return and issue a refund or credit for a Product which remains unused and is in its original packaging subject to a five percent (5%) restocking fee payable by the Customer.

6.4 Third Party Procurement

  1. Services provided by the Company to the Customer may include, rely upon, or be subject to a product and/or service procured on behalf of the Customer from a third party (Third Party Procurement).
  2. In respect of any third-party Procurement, the Company will use reasonable endeavours to assign the benefits of any third party supplier warranty to the Customer.

7. FEES AND PAYMENT

7.1 Fees

  1. Fees in a Quote are:
    1. in AUD;
    2. exclusive of GST; and
    3. may be corrected in the event of an error.
  2. The Customer must pay the Fees for the Products or Services invoiced by the Company in accordance with these terms and conditions. Subject to the terms of this Agreement and unless otherwise agreed, payment of Fees is due in full on Delivery for Trailers and within no more than thirty (30) days for Spares.
  3. The Customer acknowledges that some Products are sourced from the USA or payable by the Company in USD and there may be currency/exchange rate fluctuations in the time leading up to the Customer accepting a Quote. (See clause 2.1 – Quotes are valid for 30 days).
  4. Subject to clause 7.1(e) in the event of a decline in the value of the Australian dollar against the United States dollar, the Company may in its absolute discretion increase the Fees in a Quote by no more than four percent (4%) to account for a decline in value of the Australian dollar, and the Customer agrees to pay the revised Fee.
  5. An increase in Fees during the validity period of a Quote is only permitted in respect of the specific Product(s) which are identified as being sourced from the United States or payable by the Company in USD.

Worked Example

  1. A Quote is provided to the Customer on 1 January The Fee Quoted for the Product is $100,000 AUD. The Quote identifies the Product as sourced from the USA or payable by the Company to its supplier in USD.
  2. On 28 January the Customer accepts the Quote and the Company confirms the order the same day.
  3. In the 28 days from the date of the Quote to when that same Quote it is accepted and confirmed, the Australian dollar declines in value against the United States dollar from USD 0.68 to USD 0.65. This represents a decline in value of the Australian dollar of -4.6%.
  4. The Company may increase the original Fee Quoted of $100,000 AUD by up to 4% to account for the decline in value of the Australian dollar. The Fee payable by the Customer is now $104,000 AUD (4% of $100,000 = $4,000). The Company does not pass on the full 4.6% as the increase is capped at 4%.
  1. Subject to clause 7.1(g) where a Deposit has been paid the balance of Fees are payable upon Delivery.
  2. For Trailers, in addition to a Deposit, the Customer must pay to the Company a progress payment at the manufacturing mid-point equal to forty percent (40%) of the Fee(s). The Company will provide an invoice to the Customer on this basis.
  3. If the Customer has accepted a Quote and the Company has confirmed that order, the Company may in its discretion, require the Customer to enter into a payment plan for regular progress payments at intervals determined by the Company.

7.2 Trailer Delivery Costs in Addition to the Fees

  1. Where a Quote specifies delivery of a Trailer to the Customer’s site or nominated location, the Customer must in addition to the Fees, pay the Company’s reasonable transportation costs to deliver the Trailer. The Customer agrees and acknowledges these costs include fuel, labour rates, and accommodation for Company Personnel.
  2. In addition to the Fees, the Customer must pay the Company’s reasonable freight and delivery costs for Products dispatched by courier, mail, or post.

7.3 Invoicing

The Company must issue to the Customer a valid tax invoice in respect of any Fees charged by the Company to the Customer for the supply of Products and Services.

7.4 Payment

The Customer must pay any Fees invoiced by the Company:

  1. by cash, EFT or by credit card (plus a surcharge of up to two and a half percent (2.5%) of the total Fees), or by any other method agreed to between the Customer and the Company in writing; and
  2. by the due date specified in the invoice, or if no due date is specified, then by no later than 10 days from the date of the invoice (Invoice Due Date).

7.5 Interest and Levy for Late Payment

Where the Customer fails to pay any invoiced Fees by an Invoice Due Date, the Company shall be entitled to charge the Customer interest on any overdue amount at a rate of three percent (3.0%) above the Australian Reserve Bank cash rate. Interest shall accrue daily.

8. GST

8.1 Terms in this clause have the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

8.2 The Company and the Customer acknowledge that Goods and Services Tax (GST) applies to the Products and Services.

8.3 The Customer acknowledges that any quote for Works or Parts is exclusive of GST.

9. INSTALMENTS

9.1 Payment of outstanding Fees (if not subject to a deposit or credit in accordance with this Agreement) is required in full on Delivery.

9.2 Subject to written approval from the Company in writing, payment for Products and Services may be made in instalments.

9.3 The structure of instalments are to be determined at the sole discretion of the Company. If such a payment structure is agreed by the Company, the Customer must pay the instalments in accordance with the terms of the approval.

9.4 Failure to pay an instalment at the agreed time will result in written notice from the Company to the Customer. The Customer will be given two (2) days to rectify this failure. Failure to pay will be considered a default on the part of the Customer and a breach of the Contract, and the Company will be entitled to terminate the Agreement with written notice.

10. DEFECTS

10.1 A Trailer will be of an acceptable quality at the time of Delivery and will meet the applicable standards and Laws.

10.2 If a Trailer is defective, the Customer must notify the Company in writing within ten (10) days of Delivery. The Customer must provide reasonable evidence of the defect through video, photos and by making the Trailer available for physical inspection at the Company’s premises or an authorised dealer.

10.3 If the notice is received within the timeframe in clause 10.2 and the Company, acting reasonably accepts the evidence of the defect, the Company may either replace or repair or pay the cost of repair or replacing the defective Trailer at the Company’s cost.

10.4 If a notice in clause 10.2 is not received within ten (10) days of Delivery, the Trailer is deemed to have been accepted by the Customer.

10.5 The Company is not required to provide a refund, repair or replace the Trailer if it is not defective.

11. DEFAULT AND DEBTS

11.1 If the Customer defaults in payment of any invoice (or instalment) when due, the Customer shall indemnify the Company from and against all costs and disbursements incurred by the Company in pursuing the debt, including all legal costs and the Company’s collection agency costs.

11.2 Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Company may suspend or terminate the supply of Products or Services to the Customer and any of its other obligations under the Contract. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company has exercised its rights under this clause.

11.3 Without prejudice to the Company’s other remedies at law, all amounts owing to the Company shall, whether or not due for payment, become immediately payable if:

  1. an amount payable to the Company becomes overdue; or
  2. in the Company’s reasonable opinion, the Customer will be unable to meet its payments when they become due, or
  3. the Customer becomes insolvent, convenes a meeting with its creditors, proposes or enters into an arrangement with its creditors, and the Company is entitled to cancel all or any part of a Product or Service which remains unfulfilled.

12. CONSUMER GUARANTEE

12.1 In respect of a breach of a Consumer Guarantee under the Australian Consumer Law, the Company may offer the Customer one or more of the following:

  1. replace the Product at no cost to the Customer;
  2. repair the Product at no cost to the Customer;
  3. re-perform the Services at no cost to the Customer;
  4. refund the Fees paid by the Customer for the Product;
  5. refund the Fees paid by the Customer for the Services;
  6. pay the Customer the cost of replacing the Product; or
  7. pay the Customer the cost of re-acquiring the Services.

13. STANDARD WARRANTY

  1. The Company grants to the Customer;
    1. a 12 month warranty on Trailers; and
    2. a 12-month warranty on Parts manufactured by the Company,

    measured from the date of Delivery.

  2. Schedule 3 to these terms and conditions sets out:
    1. the process the Customer must follow to make a warranty claim; and
    2. the terms and conditions of the warranty including exclusions.
  3. Without limiting the Customer’s rights under Australian Consumer Law, in the event of a valid claim under warranty, the Company may refund, replace, repair, or pay the cost of repair or replacing the defective Trailer or Part at the Company’s cost.
  4. The Customer will be granted the opportunity to inspect second-hand Products offered for sale and accepts that second-hand Products are sold as is.
  5. No warranty is provided for second-hand Products.

14. INTELLECTUAL PROPERTY

  1. Each party retains all rights, titles, and interests in their respective Background IP.
  2. Any Intellectual Property created for the purpose of a Product or Service to the Customer, including but not limited to designs, drawings, schematics, blueprints, or illustrations immediately vests in the Company, notwithstanding any input or contribution from the Customer.
  3. The Company grants the Customer a limited, non-exclusive, non-transferrable and non-sublicensable licence to use the Company’s IP for the sole purpose of the Customer deriving the benefit of the Products and Services.
  4. The Customer must not copy, publish, distribute, sell, resell, transfer, assign, licence, modify, alter, or reverse engineer the Company’s Intellectual Property, or use it to create any derivative works.

15. LIMITATION OF LIABILITY

15.1 No Liability for Customer installation of Products and Parts

The Company disclaims all responsibility for, and accepts no Liability for loss or damage caused by the Customer, or a third-party engaged by the Customer, installing a Product or Part themselves.

15.2 Limitation of Liability

The Company’s (including any of its Related Entities’) Liability to the Customer arising under or in connection with this Agreement is limited to the lesser of:

  1. One-point five (1.5x) times the Fees paid by the Customer for the Products or Services; or
  2. the Fees payable by the Customer for the Products or Services (if no fees yet paid).

15.3 Exclusion of Consequential Loss

Neither Party shall be Liable to each other Party for any Consequential Loss.

15.4 No Exclusions to Statutory Rights

  1. The Company acknowledges that the Customer has statutory rights under the Laws, including, without limitations, the rights contained in the Australian Consumer Law.
  2. Nothing in this Agreement seeks to limit any right or remedy, or exclude Liability, as may be available for or relied upon by the Customer under the Laws, including the Australian Consumer Law, which cannot be limited.

16. TERMINATION

16.1 Mutual Termination

The Customer and the Company may mutually agree in writing to terminate the Agreement. Any such termination will be subject to the terms of that agreement.

16.2 Termination for Default

A Party (Non-Breaching Party) may immediately terminate this Agreement if the other Party (Breaching Party):

  1. has breached this Agreement and the breach:
    1. is not remedied by the Breaching Party within fifteen, (15) Business Days’ notice given by the Non-Breaching Party to the Breaching Party to remedy the Breach; or
    2. is not capable to be remedied;
    3. is of such seriousness or materiality that termination is warranted, having regard to the nature, extent, and impact of the breach;
  2. experiences an Insolvency Event;
  3. has a change of control in the Customer as defined by the Corporations Act 2001 (Cth).

16.3 Effect of Termination

Upon termination of this Agreement:

  1. the Company will cease providing any further Products or Services to the Customer under the Contract;
  2. the Customer must pay to the Company all Fees and costs payable by the Customer to the Company;
  3. any Deposit paid will not be refunded;
  4. each Party must promptly return any property in its possession owned or procured by the other Party; and
  5. each Party must cooperate with each other Party in good faith with respect to promptly effecting the following:
    1. the assignment or licensing of any Intellectual Property in favour of the relevant Party pursuant to this Agreement;
    2. the return or disposal of any Confidential Information in any Party’s possession or control pursuant to each Party’s obligations; and
    3. complying with any other obligations due upon the Party respectively in connection with the termination of this Agreement.

16.4 Survival of Terms

The terms of this Agreement which are capable or expressed as:

  1. having effect after this Agreement ends or by their nature intended to survive termination of this Agreement; or
  2. imposing an obligation on or granting a right to a person or entity after they cease to be a Party to this Agreement,

    continue to have full force after the termination of this Agreement or after such person or entity ceases to be a Party to this Agreement, including clauses in relation to:

    1. protection of Confidential Information;
    2. payment of outstanding Fees;
    3. warranties and indemnities; and
    4. obligations to make good or return property.

17. CONFIDENTIAL INFORMATION

Each party must ensure that Confidential Information is not disclosed by the party, except to the extent that:

  1. the other party provides its prior written consent to the disclosure;
  2. the disclosure is required by law;
  3. the disclosure is to a legal adviser, insurer, financier, auditor, or accountant of a party to the extent required to enable them to perform those roles; or
  4. the disclosure is to a related body corporate for internal management purposes;

18. DISPUTE RESOLUTION

18.1 Disputes

  1. The dispute resolution process under this clause 18 does not apply to debt recovery and the enforcement of unpaid monies.
  2. Nothing in this clause 18 prevents a Party from applying for an urgent injunctive, declaratory, or other interlocutory or equitable relief before an appropriate court.

18.2 Dispute Resolution Processes

  1. If any Party believes that there is a Dispute, that Party must notify the other Party to the Dispute in writing, specifying the nature and substance of the Dispute (Dispute Notice).
  2. Upon an issue of a Dispute Notice pursuant to clause 18.2(a), the Parties must respectively appoint a senior representative to resolve the Dispute by good faith negotiations within 7 days.

18.3 Continuity of Service Provision

The Parties agree that the obligations of the Parties in the Contract continue notwithstanding the existence of any Dispute.

19. FORCE MAJEURE

19.1 Exclusion

Force majeure relief in this clause 19 does not apply to any obligation relating to:

  1. the payment of monies; and
  2. the protection of Confidential Information.

19.2 Force Majeure

On the occurrence of a Force Majeure Event:

  1. the affected Party must, as soon as reasonably practicable, notify the other Party of any delay or failure in the performance of any obligation under the Contract as a result of the Force Majeure Event;
  2. the affected Party must use all reasonable endeavours to mitigate the effects of the Force Majeure Event and to resume the performance of their obligations under the Contract as soon as reasonably practicable; and
  3. any delivery date shall be extended to the extent of any delay caused by the Force Majeure Event.

19.3 No Liability

Neither Party shall be liable to the other Party for any delay or failure in the performance of any obligation under this Agreement as a result of a Force Majeure Event.

20. NOTICE

  1. A notice or communication is only effective if it is:
    1. in writing, signed by or on behalf of the person giving it (including an electronic signature or statement);
    2. addressed to the person to whom it is to be given; and
    3. given as follows:
      1. delivered by hand to that person’s address;
      2. sent to that person’s address by prepaid mail;
      3. sent by email to that person’s email address,
  2. A notice, consent or communication given under this clause is deemed given and received:
    1. if delivered by hand to the recipient’s address, when left at the person’s address;
    2. if delivered by mail, three (3) Business Days after posting; or
    3. if sent by email, at the time and on the day shown in the sender’s delivery report,

    but if the notice is deemed to be received on a day which is not a Business Day or after 5pm, it is deemed to be received at 9am on the next Business Day.

  3. A Party’s address for notice is set out in a Quote, or as otherwise notified by that Party in writing to the other Party from time to time.

21. GENERAL

21.1 Variation

This Agreement may only be varied by written agreement between the Parties.

21.2 General Representations

Each Party represents and warrants to each other Party that:

  1. it has all necessary powers, capacity, and consents necessary to enter into this Agreement; and
  2. it has not experienced an Insolvency Event and is not aware of any facts or circumstances which may lead to it experiencing an Insolvency Event.

21.3 Assignment

A Party may only assign its rights under this Agreement with the written consent of all Parties.

21.4 No Merger

The rights and obligations of the Parties under this Agreement do not merge on completion of any transaction contemplated by this Agreement.

21.5 Rights Cumulative

The rights, powers and remedies of each Party under this Agreement are cumulative and additional to, and do not prevent, the exercise of any rights, powers, or remedies available to that Party at Law.

21.6 No Waiver

  1. The failure of a Party to require full or partial performance of a provision of this Agreement does not affect the right of that Party to require performance subsequently.
  2. A right under this Agreement may only be waived in writing signed by the Party granting the waiver, and is effective only to the extent specifically set out in that waiver.

21.7 Severability

A provision or part of a provision in this Agreement that is illegal or unenforceable:

  1. must be read down to the extent necessary to remove the cause of the illegality or unenforceability; or
  2. if clause 21.7(a) is not possible, that provision or part thereof may be severed to the extent necessary to remove the illegality or unenforceability such that the remaining provisions shall remain fully effective in accordance with its terms.

21.8 Governing Law and Jurisdiction

The Contract is governed by the laws of New South Wales, Australia.

21.9 Entire Agreement

The Contract embodies the entire agreement between the Parties and supersedes all previous agreements, warranties, quotes or guarantees about its subject matter and any agreements collateral to those agreements.

22. DEFINITIONS

In these terms and conditions unless the context otherwise requires:

Australian Consumer Law means the consumer protection laws contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Background IP means any Intellectual Property of any Party which was in existence prior to the commencement of the Contract or which is subsequently developed by a Party independently of and for purposes other than in accordance with this Agreement.

Business Day means a day that is not a Saturday, Sunday, or public holiday in the Jurisdiction.

Contract means, collectively:

  1. these terms and conditions;
  2. Quote;
  3. any Company annexure, schedule, attachment, or document incorporated by reference.

Customer means any person or business transacting with the Company as herein defined.

Customer Data means any data, content, or information, of any form, collected, received, created, or uploaded by the Customer or any User in connection with their use of a Service supplied by the Company, and includes any Personal Information subsisting therein. Customer Systems means the Customer’s computing and IT assets and resources, including all hardware, software, information technology, telecommunications services, network, equipment, and systems.

CreditorWatch is a data and technology company and commercial credit reporting bureau that provides the Company with access to data products to enable credit risk management of commercial relationships and reduce financial risk.

Confidential Information means any information of any form, created at any time, that:

  1. is by its nature confidential;
  2. is indicated by the discloser as confidential;
  3. the recipient knows or ought to reasonably have known is confidential,

    and, as between the Parties, includes the Customer Data and the Company’s Data, but does not include information that:

    1. is public knowledge or has otherwise entered the public domain other than a result of a breach or by any other unlawful means;
    2. is obtained from a third party who is not subject to any restriction in relation to disclosure; or
    3. is independently discovered, acquired, or developed by the Recipient without reference to any Confidential Information or breach of the Contract.

Company means Muscat Trailers Pty Ltd and/or Muscat Trailers Spare Parts Pty Ltd, its successors and assigns or any person acting on behalf of, and with the authority of Muscat Trailers Pty Ltd and/or Muscat Trailers Spare Parts Pty Ltd.

Consequential Loss means all forms of indirect loss including loss of revenue, loss of profits, failure to recognise profits or savings and any other commercial and economic loss, howsoever caused.

Defect means a defect, fault, damage, malfunction, omission or flaw in the Product, Parts or Trailer relating to both operation and functionality, and design, workmanship, manufacture, and materials.

Delivery means, as the case may be:

  1. the arrival to the Customer at their nominated address of a complete order of Parts or Products ordered by the Customer from the Company;
    1. the Customer collecting Parts or Products from the Company’s premises; or
    2. the final completion of Services by the Company at the Company’s premises or the Customer’s nominated location.

Deposit means an advance payment nominated by the Company and made by the Customer in accordance with this Agreement.

Dispute has the meaning given in clause 18 of this Agreement.

Fee or Fees means any amount payable by the Customer for the supply of Services by the Company pursuant to the Proposal incorporating this Agreement.

Force Majeure Event means any event beyond a Party's reasonable control, including a/an fire, storm, flood, earthquake, explosion, accident, act of God, act of a public enemy, terrorist act, war, rebellion, insurrection, sabotage, epidemic, pandemic, quarantine restriction, government restriction, transportation embargo, power failure, failure of telecommunications network, malicious cyber-attacks, and strike by third party employees other than a subcontractor or supplier of that Party, but in each case, provided always that the Party is without fault in causing the relevant event and the event, or its effects, could not have been prevented by reasonable precautions by that Party. Guarantor means the person (or persons), or entity, who is listed as such.

Insolvency Event, in relation to any Party means, except in the ordinary course of business:

  1. a liquidator, provisional liquidator, receiver, trustee in bankruptcy, or any form of external administrator is appointed in respect of that Party;
  2. the Party proposes to its creditors a scheme of arrangement, deed of company arrangement or similar composition or arrangement involving any class of its creditors;
  3. a controller is appointed over or takes possession of all or a substantial part of the Party’s assets or undertakings;
  4. the Party is deemed insolvent under any relevant Law;
  5. if the Party is a natural person – they die or become permanently mentally incapacitated or disabled;
  6. any step is taken by the Party to obtain protection from its creditors, under any applicable legislation; or
  7. anything analogous or having a substantially similar effect to any of the above specified events happens in respect of a Party under the Laws of any applicable jurisdiction.

Intellectual Property means all existing or future species of industrial and intellectual property, whether registered or unregistered, registrable or not including copyrights, patents, designs, trade marks, circuit layout rights, confidential information, trade secrets and the right to register all such intellectual or industrial property rights.

Intellectual Property Rights means all rights arising from any statute, or principle of law or equity in relation to Intellectual Property.

Law means:

  1. all laws, statutes, codes, ordinances, decrees, rules, regulations or by-laws;
  2. any judicial, arbitral, administrative, ministerial, departmental, or regulatory judgment, order, decision, ruling; and
  3. any determination or award of any legislative authority.

Liability means responsibility for any loss (either direct or indirect), damage, cost or expense and includes liability for Consequential Loss. Parts means parts, spares and components supplied by the Customer either separately, or as part of a Trailer.

Party means any person or entity who executes this Agreement or otherwise agrees to be bound by its terms.

Personal Information has the meaning given to that term in the Privacy Act or any term analogous or having a substantially similar meaning to that term under the Privacy Laws of any applicable jurisdiction.

Personnel, in respect of any Party, means any officer, employee, secondee, agent, contractor and subcontractor, including any officer, employee, secondee, agent and contractor of any subcontractor.

PPSA means the Personal Property Securities Act 2009 (Commonwealth) and any regulation made at any time under the PPS Act.

Privacy Act means the Privacy Act 1988 (Cth).

Privacy Laws means:

  1. the Privacy Act; and
  2. any Law (to the extent that such legislation applies) as may be in force and amended from time to time in any jurisdiction which affects the Processing of Personal Information.

Process, in respect of Customer Data and Personal Information, means any operation (whether conducted manually or automated) performed with respect to data, and includes the collection, recording, organisation, structuring, storage, adaptation, alteration, retrieval, consultation, use, disclosure, dissemination, alignment, combination, consolidation, restriction, erasure or destruction of such data. Products means Parts, Trailers, items, hardware, materials, components, and manufactured goods provided by the Company or a Third Party. Recipient means any Party who receives Confidential Information under or in connection with this Agreement.

Related Entities, in respect of a person or entity, means:

  1. any ‘related body corporate’ of that person or entity (pursuant to section 50 of the Corporations Act 2001 (Cth)); and/or
  2. any ‘associate’ of that person or entity (pursuant to section 318 of the Income Tax Assessment Act 1936 (Cth)).

Service means the services to be provided by the Company to the Customer, including by way of Third Party Procurement.

Trailer means a commercial trailer towed by a vehicle for the purpose of transporting goods, materials, or other vehicles.

23. INTERPRETATION

23.1 Rules of Interpretation

In these terms and conditions, the following rules of interpretation apply:

  1. headings are for convenience only and do not affect the interpretation of this Agreement;
  2. the singular includes the plural and vice versa;
  3. words that are gender neutral or gender specific include each gender;
  4. where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
  5. a monetary amount is in Australian dollars;
  6. the words 'such as', 'including', 'particularly' and similar expressions are not used as, nor are intended to be, interpreted as words of limitation;
  7. a reference to:
    1. a person includes a natural person, partnership, joint venture, government agency, association, corporation, or other body corporate;
    2. a thing includes a part of that thing;
    3. a party includes its successors and permitted assigns;
    4. a document includes all amendments or supplements to that document;
  8. a clause, term, party, schedule, or attachment is a reference to a clause or term of, or party, schedule, or attachment to this Agreement;
    1. a clause or term in a particular Part of this Agreement is the clause or term in that particular Part;
  9. no provision will be interpreted to the disadvantage of a particular Party merely because that Party prepared the provision or would benefit under it;
  10. when the day on which something must be done is not a Business Day, that thing must be done on the following Business Day; and
  11. the relevant time of day is:
    1. for the purposes of giving or receiving notices the time of day where a party receiving a notice is located; and
    2. the time of day in the place the obligation is located.

Schedule 1 - Standard Warranty

Warranty period

  1. Trailers come with a twelve 12 month warranty period covering welding fabrication, structural materials, running gear and workmanship.
  2. Parts which are manufactured by the Company come with a twelve (12) month warranty.
  3. Repairs, other than those made to remedy a defect or failure of a Trailer or Part under warranty, are not covered by warranty.
  4. Short life consumables including light bulbs, fuses, tyres, hoses, batteries, and lubricants are at the cost of the Customer and are not covered by a Company warranty.

Making a Claim

  1. During the relevant warranty period the Customer may notify the Company in writing of any alleged defect or failure of a Trailer or Part to comply with the specifications in the Contract (Warranty Claim) The Company may require the Customer to provide proof of ownership.
  2. The Customer must afford the Company an opportunity to inspect the Trailer or Part within a reasonable time-frame. The inspection is to take place at the Company’s premises unless it is unsafe to transport the Trailer or Part to the Company’s premises. The Company may, at its discretion agree in writing to the Customer providing a video or photos of the alleged Trailer or Part.
  3. Upon completion of an inspection, the Company will write to the Customer to advise whether the Warranty Claim is or is not accepted by the Company.
  4. If a Warranty Claim is accepted by the Company, the Company will repair or replace the Trailer or Part at the Company’s cost.

Warranty voiding

  1. The warranty for a Trailer or Part will become void if the Trailer or Part has:
    1. not received regular and proper maintenance;
    2. been modified by the Customer or a third party (other than in the case of ordinary maintenance, application of signage, painting and replacement of tyres and ordinary consumables) without the consent of the Company;
    3. been operated with a vehicle not lawfully rated to tow the Trailer;
    4. been overloaded or otherwise operated outside of its prescribed specifications and limits;
    5. been used for an unlawful purpose;
    6. been subject to an attempted repair by the Customer or a third party;
    7. been submerged;
    8. been used on unsealed terrain not reasonably suitable for the commercial use of a Trailer;
    9. been subjected to fire or earthquake;
    10. been involved in a motor vehicle accident, operator error or collision; or
    11. been used in excess of lawful road user limits.