Hydraulic & Diesel Services Brisbane – Terms of Trade
EXECUTION
By signing this document, the Customer and the Director(s) agree to be bound by these Terms of Trade. This agreement is binding on the Customer and the Director(s) once signed (even if one or more of them does not sign), whether the Supplier signs or not.
Version: [Ver1_Jan2026]
1 Terms
1.1 These terms of trade apply to all supply arrangements between the Customer and the Supplier relating to the provision of Goods and Services, whether based on individual transactions, ongoing supply relationships, or recurring orders. This includes all quotations, purchase orders, contracts, standing arrangements and variations. These terms of trade take precedence over any terms of trade contained in any document of the Customer.
2 Quotes
2.1 The Supplier may provide the Customer with a quote or estimate. Any quote issued by the Supplier is only valid for 30 days from the date of issue, unless otherwise specified, and all quotes are subject to these terms of trade.
2.2 Unless otherwise expressly agreed in writing, a quote does not include delivery or installation of any goods purchased and all amounts are GST exclusive.
2.3 All quotes are based upon the cost of materials available at the time of preparation of the quote and assumes the timely supply by the Customer of necessary material and instructions to the Supplier.
2.4 Following provision of an estimate or a quote to the Customer, the Supplier is not obliged to commence work until the terms of the quote or estimate have been accepted by the Customer. Acceptance may occur by the Customer providing written confirmation, completing a Purchase Order form, making payment, or by any other method agreed between the parties.
2.5 The Supplier reserves the right to amend any quote to take into account any rise or fall in the cost of supplying the Goods or Services. The Supplier will notify the Customer of any amendment as soon as practicable, at which point the amended quote will be the estimate or quote subject to these terms of trade.
2.6 An indication in a quote of the time frame for the provision of the Goods or Services is an estimate only and is not a fixed time frame. This estimate is not binding upon the Supplier.
3 Work Orders
3.1 The Customer may place work orders for the provision of Goods or Services by any method agreed between the parties, including but not limited to written purchase orders, email requests, electronic ordering systems, telephone orders, or pursuant to standing or
recurring supply arrangements. The Supplier’s standard purchase order form may be used but is not mandatory unless specifically required by the Supplier for a particular transaction.
3.2 An order will be deemed validly placed if it reasonably identifies the Goods or Services requested and (where applicable) references any relevant quote. Any costs incurred by the Supplier in reliance on incorrect or inadequate information provided by the Customer may
result in the imposition of an Additional Charge.
3.3 Where a written purchase order is provided, the Customer should specify the requested date for the completion of work where applicable.
3.4 Acceptance by the Customer of any Goods or Services from the Supplier, whether by placement of an order, acceptance of delivery, making payment, or otherwise dealing with the Supplier, confirms acceptance by the Customer of these terms of trade and (if applicable) any quote provided by the Supplier relating to that supply.
3.5 The Supplier may in its absolute discretion refuse to provide Goods or Services where:
(a) Goods are unavailable for any reason whatsoever,
(b) credit limits cannot be agreed upon or have been exceeded, or
(c) payment for Goods or Services previously provided to the Customer or any related corporation of the Customer or to any other party who is, in the reasonable opinion of the Supplier, associated with the Customer under the same or another supply contract, has not been received by the Supplier.
3.6 The parties may agree to standing or recurring supply arrangements for the regular provision of Goods or Services. Such arrangements may be established by written agreement, course of dealing, or mutual understanding, and in any event will be governed by these terms of trade.
4 Variations due to the nature of Maintenance and Repair work
4.1 The Customer acknowledges and agrees that:
(a) due to the inherent nature of maintenance, repair, diagnostic, and servicing work, the full extent of work required, parts needed, or time necessary to effect repairs or maintenance of the Customer’s equipment, vehicles, or other property cannot always be accurately determined or estimated until the work has commenced or is underway,
(b) during the course of maintenance or repair work, additional defects, wear, damage, or issues may be discovered that were not apparent during the initial inspection or assessment, and which may require additional work, parts, or materials to properly complete the maintenance or repair,
(c) any quote or estimate provided by the Supplier for maintenance or repair work is based on the information available at the time and is an estimate only of the likely scope and cost of work, and is not a fixed price unless expressly stated in writing by the Supplier,
(d) the Supplier will make reasonable efforts to keep the Customer informed of the progress of the work and to notify the Customer if it becomes apparent that the actual cost of the work will materially exceed any estimate or quote provided, however the Supplier is not obliged to cease work or seek further authorisation before proceeding with work that is reasonably necessary to complete the maintenance or repair,
(e) the Customer remains liable to pay for all work actually performed by the Supplier and all parts and materials actually supplied, even if the final cost exceeds any initial estimate or quote, unless the Customer has given express written instructions to the Supplier not to proceed with additional work, and
(f) where the Customer instructs the Supplier not to proceed with additional work that the Supplier reasonably considers necessary to complete the maintenance or repair, the Customer acknowledges that the equipment or property may not be fit for its intended purpose and releases the Supplier from any liability arising from the incomplete repair or maintenance.
5 Customer requested variations
5.1 The Customer may request variations to any supply arrangement by providing a request in writing to the Supplier. The Supplier is not required to agree to any variations, particularly where the extent of any new work or the availability of parts is unknown or not feasible.
5.2 The Supplier reserves the right to vary the quote or pricing to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the variation.
6 Timeframes
6.1 Any timeframe, delivery date, completion date, or other time estimate provided by the Supplier to the Customer for the completion of work or the supply of Goods or Services (whether specified in a quote, purchase order, or otherwise communicated) is an estimate only and does not constitute a binding obligation or contractual commitment by the Supplier.
6.2 The Supplier will use reasonable efforts to meet any estimated timeframes but is not liable for any delay in completing work or supplying Goods or Services, regardless of the cause of the delay.
6.3 The Customer acknowledges and agrees that the Supplier is not liable to the Customer or any other person for any loss, damage, costs, expenses, or other liability of any kind (including consequential loss, loss of profits, loss of revenue, or loss of business opportunity) arising from or in connection with any delay in the completion of work or the supply of Goods or Services, even if the Customer has advised the Supplier of the possibility of such loss or damage.
6.4 Time is not of the essence in relation to the performance of the Supplier’s obligations under these terms of trade.
7 GST
7.1 Unless otherwise stated, all amounts payable by the Customer under these terms of trade are exclusive of GST.
7.2 If GST is payable on any supply made under or in connection with these terms of trade, the Customer must pay to the Supplier an additional amount equal to the GST payable on that supply. The additional amount is payable at the same time and in the same manner as payment for the supply is required to be made.
7.3 The Supplier will provide the Customer with a tax invoice for any taxable supply in accordance with the GST legislation.
8 Invoicing and payment
8.1 The Supplier may, in its absolute discretion, issue an invoice to the Customer in any one or more of the following ways:
(a) prior to commencing the provision of the Goods or Services, for a deposit or for the full amount of any quote or estimate, where the Supplier has not previously carried out work for the Customer or where the Supplier chooses to do so,
(b) at regular intervals or at the end of each week before a supply arrangement is completed, the Supplier may issue one or more invoices for a proportion of the amount of the quote or estimated supply value, such proportion to reasonably reflect the value of work actually completed and materials supplied to that point. The Supplier may require payment of such invoices before providing further Goods or Services, and/or
(c) upon completion of the provision of the Goods or Services or any time after such completion, or at regular intervals for ongoing supply arrangements, for an amount equal to the quote or the balance of the quote outstanding, any Additional Charges and any amount not previously invoiced, or if no quote was provided, for an amount representing the Supplier’s charge for the work performed and for any Additional Charges.
8.2 The amount payable by the Customer will be the amount set out in the invoice. This will be calculated as:
(a) the amount for the Goods or Services (or both) as set out in the quote and any Additional Charges, or
(b) where no quote has been provided by the Supplier, the Supplier’s usual charges for the Goods or Services (or both) as agreed between the parties or as described in any order or supply arrangement.
8.3 The Customer must pay an invoice issued by the Supplier to the Supplier within the payment period set out in the invoice, or as specified in the Customer’s account terms or within 30 days, whichever is the shortest period.
8.4 If any invoice is due but unpaid, the Supplier may withhold the provision of any further Goods or Services until overdue amounts are paid in full.
8.5 The Supplier may in its complete discretion apply any payment received from the Customer to any amount owing by the Customer to the Supplier.
8.6 The Customer must pay the Supplier on demand interest at the rate of 1.5% per month on all overdue amounts owed by the Customer to the Supplier, calculated daily.
8.7 All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees (on a full indemnity basis) and internal costs and expenses of the Supplier, are to be paid by the Customer as a debt due and payable under these terms of
trade.
8.8 The Customer and the Supplier agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any other applicable legislation governing GST.
9 Additional Charges
9.1 The Supplier may require the Customer to pay Additional Charges in respect of costs incurred by the Supplier as a result of reliance on inadequate or incorrect information or material provided by the Customer or information or material supplied later than required by the Supplier in order for it to provide the Goods or Services within the specified time frame (if any).
9.2 The imposition of Additional Charges may also occur as a result of:
(a) cancellation by the Customer of any order or supply arrangement where cancellation results in loss to the Supplier,
(b) storage costs,
(c) courier, packing or handling charges not included in the quote,
(d) government or environmental taxes or similar charges not included in the quote, or
(e) additional work required by the Customer or any other occurrence which causes the Supplier to incur costs in respect of the Customer’s supply arrangement additional to the quoted cost or agreed pricing.
10 Acceptance of Goods
10.1 The Customer must inspect the Goods within a reasonable time after delivery and must notify the Supplier in writing of any apparent defect, damage, shortage, or non-conformity within 14 days of collection or delivery.
10.2 Any notice must include a detailed description of the issue and, where practicable, photographic evidence.
10.3 If the Customer fails to provide such notice within the 14-day period, the Customer will be deemed to have accepted the Goods and Services as being in accordance with the order and free from apparent defects. This deemed acceptance does not apply to latent defects that could not reasonably have been discovered upon reasonable inspection within the 14-day period. Nothing in this paragraph excludes, restricts or modifies any consumer guarantee, right or remedy conferred on the Customer by the Australian Consumer Law or any other applicable legislation that cannot be excluded, restricted or modified by agreement.
11 Delivery and On-Site Work
11.1 If delivery to the Customer is agreed by the Supplier, delivery of Goods will be made to the Customer’s nominated address during normal business hours. The Customer must ensure that there is appropriate access and suitable facilities for the Supplier to deliver the Goods.
11.2 Where the Supplier is required to attend the Customer’s premises, or any other 3rd party premises, to deliver Goods or provide Services (On-Site Work), the Customer must:
(a) provide the Supplier and its personnel, agents, contractors and subcontractors with safe and unrestricted access to the premises at all reasonable times,
(b) provide at no cost to the Supplier all necessary facilities, utilities, equipment, and working space reasonably required for the Supplier to carry out the On-Site Work,
(c) ensure that the premises are safe and comply with all applicable occupational health and safety laws and regulations,
(d) provide the Supplier with advance notice of any site-specific safety requirements, hazards, or restrictions that may affect the On-Site Work,
(e) ensure that any third parties, including other contractors, do not unreasonably interfere with or delay the Supplier’s work,
(f) obtain all necessary permits, approvals, and consents required for the Supplier to access the premises and perform the On-Site Work, and
(g) comply with any reasonable directions given by the Supplier’s personnel in relation to health and safety matters while On-Site Work is being performed.
11.3 The Customer is responsible for and must arrange and pay for the disposal of all replaced parts, components, packaging materials, waste, and other rubbish arising from or generated by the On-Site Work. The Supplier is not obliged to remove or dispose of any such materials unless expressly agreed in writing and will be entitled to charge Additional Charges for any disposal services provided.
11.4 The Supplier is not liable for any delay in performing On-Site Work or delivering Goods where such delay is caused by:
(a) the Customer’s failure to provide adequate access, facilities, or working space,
(b) unsafe site conditions,
(c) the presence of hazardous materials or conditions not disclosed to the Supplier in advance,
(d) interference by the Customer or third parties, or
(e) any other matter within the Customer’s control.
11.5 Where delay occurs due to circumstances described in paragraph 11.4, the Supplier is entitled to:
(a) payment for any additional costs incurred as a result of the delay, including (but not limited to) additional labour costs, standby time, demobilisation and remobilisation costs, and storage costs, and
(b) suspend performance of the On-Site Work until the matter causing the delay has been rectified to the Supplier’s reasonable satisfaction.
11.6 The Customer must ensure that its personnel, contractors, and any other persons present at the premises during On-Site Work:
(a) do not interfere with or obstruct the Supplier’s personnel or equipment,
(b) comply with any reasonable safety instructions given by the Supplier’s personnel, and
(c) maintain adequate insurance covering their own activities and any damage they may cause.
11.7 The Supplier and its personnel will comply with any reasonable site rules and procedures notified to the Supplier in writing prior to commencement of the On-Site Work, provided that such rules do not conflict with the Supplier’s obligations under occupational health and safety legislation or unreasonably impede the Supplier’s ability to perform the On-Site Work.
11.8 The Customer is responsible for and indemnifies the Supplier against any Loss, damage, or injury arising from or in connection with:
(a) any site conditions, hazards, or defects not disclosed to the Supplier in advance,
(b) any act or omission of the Customer’s personnel, contractors, or other third parties present at the premises,
(c) any breach by the Customer of its obligations under this clause 11, or
(d) any pre-existing conditions at the premises that contribute to or cause Loss, damage, or injury.
11.9 If the Customer is not present or able to accept delivery at the agreed time and location, the Supplier may, at its discretion:
(a) leave the Goods at the delivery location at the Customer’s risk, or
(b) store the Goods and charge the Customer transport and storage costs, handling fees, and any additional delivery charges.
12 Title and risk
12.1 Risk in Goods passes to the Customer immediately upon delivery or collection. For On-Site Work, risk in the Goods passes to the Customer upon installation of any Goods to the Customer’s vehicle or equipment.
12.2 Property and title in Goods supplied to the Customer under these terms of trade do not pass to the Customer until all money (including money owing in respect of other transactions between the Supplier and the Customer) due and payable to the Supplier by the Customer have been fully paid.
12.3 Where Goods are supplied by the Supplier to the Customer without payment in full, the Customer:
(a) is a bailee of the Goods until property in them passes to the Customer,
(b) irrevocably appoints the Supplier to be its attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of any security interest in favour of the Supplier with respect to the Goods under applicable law,
(c) must be able upon demand by the Supplier to separate and identify as belonging to the Supplier the Goods supplied by the Supplier from other goods which are held by the Customer,
(d) must not allow any person to have or acquire any security interest in the Goods,
(e) agrees that the Supplier may repossess the Goods if payment is not made within 30 days (or such longer time as the Supplier may, in its complete discretion, approve in writing) of the supply of the Goods, and
(f) the Customer grants an irrevocable licence to the Supplier or its agent to enter the Customer’s premises in order to recover possession of Goods pursuant to this paragraph. The Customer indemnifies the Supplier for any damage to property or personal injury which occurs as a result of the Supplier entering the Customer’s premises.
12.4 Where Goods are supplied by the Supplier to the Customer without payment in full of all moneys payable in respect of the Goods and any Services provided by the Supplier in respect of those Goods, and:
(a) the Customer makes a new object from the Goods, whether finished or not,
(b) the Customer mixes the Goods with other goods, or
(c) the Goods become part of other goods (New Goods), the Customer agrees with the Supplier that the Supplier has a security interest in the New Goods. The Customer will hold the New Goods on trust for the Supplier until payment of all sums owing to the Supplier in respect of the original Goods have been made. The Supplier may require the Customer to store the New Goods in a manner that clearly identifies the Supplier’s security interest.
12.5 For the avoidance of doubt, under paragraph 12.4, the ownership of the New Goods passes to the Supplier at the beginning of the operation or event by which the Goods are converted into, are mixed with or become part of other goods.
12.6 Despite paragraph 12.5, the Customer may transfer, sell or dispose of Goods, including New Goods, to a third party in the ordinary course of business. This is provided that:
(a) where the Customer is paid by a third party in respect of Goods including New Goods, the Customer holds the whole of the proceeds of sale, less any GST, on trust for the Supplier and in a separate account, until all amounts owed by the Customer to the Supplier have been paid, or
(b) where the Customer is not paid by a third party, the Customer agrees to assign all of its rights against the third party to the Supplier upon the Supplier giving the Customer notice in writing to that effect and for the purpose of giving effect to that assignment the Customer irrevocably appoints the Supplier as its attorney.
12.7 Where Goods are supplied by the Supplier to the Customer without payment in full of all moneys payable in respect of the Goods and any Services provided by the Supplier in respect of those Goods, the Customer acknowledges that the Supplier has a right to register and perfect a personal property security interest.
12.8 If:
(a) a PPS Law applies or commences to apply to these terms of trade or any transaction contemplated by them, or the Supplier determines (based on legal advice) that this is the case, and
(b) in the Supplier’s opinion, the PPS Law:
(i) does or will adversely affect the Supplier’s security position or obligations, or
(ii) enables or would enable the Supplier’s security position to be improved without adversely affecting the Customer, the Supplier may give notice to the Customer requiring the Customer to do anything (including amending these terms of trade or executing any new terms and conditions) that in the Supplier’s opinion is necessary, to the maximum possible extent, to overcome the circumstances contemplated in paragraph 12.8(b)(i) or improve the security position as contemplated in paragraph 12.8(b)(ii). The Customer must comply with the requirements of that notice within the time specified in the notice. If having completed everything reasonably practicable as required under this paragraph, in the Supplier’s opinion the Supplier’s security position or obligations under or in connection with these terms of trade have been or will be materially adversely affected, the Supplier may by further notice to the Customer cancel these terms of trade. If this occurs, the Customer must pay to the Supplier any money owed to the Supplier by the Customer immediately.
13 Uncollected Goods Act Notice
13.1 The Customer acknowledges the following notice under the Uncollected Goods Act 1967 (Qld):
“The Disposal of Uncollected Goods Act 1967 (Qld) covers inspection, custody, storage, repair and other treatment of goods. Under this Act, uncollected goods may be sold six months after the date on which they were ready for collection.”
13.2 The Supplier’s rights under the Uncollected Goods Act 1967 are in addition to the rights provided under this agreement and any other terms and conditions agreed by the parties.
14 Repairer’s Lien and Right of Retention
14.1 The Supplier has and retains a possessory lien over all vehicles, equipment, machinery, and other property (“Goods”) that are in the possession, custody, or control of the Supplier for repair, service, maintenance, or any other work (“Services”), including any components, parts, or accessories added to or incorporated into such Goods.
14.2 The Supplier’s lien secures payment of:
(a) all amounts owing for Services performed on the Goods,
(b) all amounts owing for parts, materials, and supplies provided in connection with the Services,
(c) all storage, holding, and administration fees,
(d) all amounts owing under this agreement or any other agreement between the Supplier and the Customer (whether related to the particular Goods or not),
(e) all interest, costs, and expenses incurred in connection with the Goods or in enforcing the Supplier’s rights, and
(f) all other amounts payable by the Customer to the Supplier on any account whatsoever.
14.3 The Supplier is entitled to retain possession of the Goods and refuse to release them to the Customer or any other person until all amounts secured by the lien have been paid in full in cleared funds.
14.4 The Customer acknowledges and agrees that:
(a) the Supplier’s lien extends to all Goods in the Supplier’s possession regardless of whether Services have been performed on those particular Goods,
(b) the Supplier may exercise its lien for any amounts owing by the Customer, even if those amounts relate to different Goods or different transactions,
(c) the Supplier is not required to release any Goods until all outstanding amounts owing by the Customer have been paid in full,
(d) if multiple items of property are in the Supplier’s possession, the Supplier may refuse to release any or all of them until full payment is received, and
(e) the lien is in addition to and not in substitution for any other rights, securities, or remedies available to the Supplier.
14.5 The Customer must pay all reasonable costs of storage, security, insurance, and preservation of the Goods while they remain in the Supplier’s possession, calculated at the Supplier’s standard commercial rates.
14.6 If the Customer fails to collect Goods within seven (7) days after notification that the Services have been completed and the Goods are ready for collection, the Supplier may charge storage fees at its standard commercial rates (currently $150 per day, subject to variation by written notice).
14.7 Due to the large size of the Goods, limited workshop space, and the operational requirement to regularly relocate the Goods within the workshop, the Customer agrees that a storage fee of $150 per day is reasonable.
15 Abandoned Property
15.1 If:
(a) the Customer fails to pay any amount due in respect of Goods within thirty (30) days of the due date,
(b) the Customer fails to collect Goods within sixty (60) days after notification that they are ready for collection, or
(c) the Supplier is unable to contact the Customer at the last known contact details for a period of sixty (60) days, then the Goods shall be deemed to be abandoned property.
15.2 If Goods are deemed abandoned, the Supplier may, after giving the Customer at least fourteen (14) days’ written notice to the Customer’s last known address and email (if available):
(a) sell the Goods by public auction, private sale, or any other method the Supplier considers appropriate,
(b) apply the proceeds of sale toward payment of all amounts owing by the Customer (including the costs of storage, sale, and enforcement), and
(c) if there is any surplus after payment of all amounts owing, hold such surplus for collection by the Customer (without any obligation to pay interest).
15.3 The Customer acknowledges that the Supplier may sell abandoned Goods for such price as the Supplier can reasonably obtain, and the Customer releases the Supplier from any claim that the Goods were sold for less than their market value.
15.4 If the proceeds of sale are insufficient to discharge all amounts owing, the Customer remains liable for the shortfall plus all costs of sale and enforcement.
15.5 The Customer indemnifies the Supplier against any claims, losses, damages, or expenses (including legal costs on a full indemnity basis) arising from the disposal of abandoned Goods, including claims by third parties alleging an interest in the Goods.
16 Directors Guarantee and Indemnity
16.1 In this agreement:
(a) “Guaranteed Money” means all money, debts, and liabilities which are now or may at any time hereafter be due, owing, or incurred by the Customer to the Supplier on any account whatsoever, including without limitation:
(i) all amounts payable for goods and/or services supplied or to be supplied by the Supplier to the Customer,
(ii) all interest, fees, charges, costs, and expenses payable under this agreement or any related agreement,
(iii) all damages, losses, and liabilities arising from any breach of this agreement or any related agreement,
(iv) all costs and expenses (including legal costs on a full indemnity basis) incurred by the Supplier in recovering or attempting to recover any amounts owing or in enforcing or attempting to enforce any rights under this agreement, and
(v) all other amounts payable by the Customer to the Supplier under this agreement or any related agreement, whether such amounts are actual or contingent, present or future, and whether incurred by the Customer alone or jointly with another person.
(b) “Guaranteed Obligations” means all obligations, duties, covenants, and agreements of the Customer to the Supplier, including without limitation:
(i) all obligations to accept and pay for goods and/or services supplied by the Supplier,
(ii) all obligations to comply with the terms and conditions of this agreement and any related agreements with the Supplier,
(iii) all obligations relating to the security interests granted under this agreement,
(iv) all obligations to maintain insurance, provide information, execute documents, and otherwise cooperate with the Supplier as required under this agreement,
(v) all obligations to comply with applicable laws and regulations in connection with the supply of goods and/or services, and
(vi) all other obligations, covenants, and agreements of the Customer under this agreement or any related agreement, whether such obligations are actual or contingent, present or future.
16.2 “Guarantor” means the Customer and the Director(s).
16.3 In consideration of the Supplier agreeing to supply goods and/or services to the Customer on credit terms, each Director (each a Guarantor and together the Guarantors):
(a) unconditionally and irrevocably guarantees to the Supplier the due and punctual payment and discharge by the Customer of all moneys, debts, and liabilities which are now or may at any time hereafter be due, owing, or incurred by the Customer to the Supplier on any account whatsoever (whether actual or contingent, present or future, and whether incurred by the Customer alone or jointly with another person) (Guaranteed Money), and
(b) unconditionally and irrevocably guarantees to the Supplier the due and punctual performance and observance by the Customer of all of its obligations, covenants, and agreements under this agreement and any related agreements with the Supplier (Guaranteed Obligations).
16.4 Each Guarantor as a separate obligation and indemnity independent of the guarantee under clause 16.3 indemnifies the Supplier and agrees to keep the Supplier indemnified against:
(a) all losses, damages, costs, and expenses which the Supplier may suffer or incur as a consequence of:
(i) any default by the Customer in payment of the Guaranteed Money,
(ii) any default by the Customer in performance of the Guaranteed Obligations,
(iii) the liquidation, administration, or bankruptcy of the Customer, or
(iv) any security held by the Supplier for the Guaranteed Money or Guaranteed Obligations being or becoming unenforceable, invalid, or insufficient, and
(v) all costs and expenses (including legal costs on a full indemnity basis) incurred by the Supplier in connection with enforcing or attempting to enforce this guarantee and indemnity.
16.5 The liability of each Guarantor under this clause 16 is as principal debtor and not merely as surety. Each Guarantor’s liability is not affected or discharged by:
(a) any variation, waiver, or release in relation to the Customer’s obligations,
(b) any time or indulgence granted to the Customer,
(c) any security taken from or given up by the Customer or any other person,
(d) the invalidity or unenforceability of the Customer’s obligations,
(e) the liquidation, administration, bankruptcy, death, or incapacity of the Customer or any Guarantor,
(f) any composition or arrangement with the Customer or any other person, or
(g) any other matter or thing which but for this provision might operate to discharge or affect the liability of the Guarantor.
16.6 Where there is more than one Guarantor, the obligations of each Guarantor under this clause 16 are joint and several, and the Supplier may enforce this guarantee and indemnity against any one or more of the Guarantors without first having recourse to any other Guarantor or to the Customer.
16.7 Each Guarantor must pay to the Supplier on demand all amounts owing under this guarantee and indemnity. The Supplier is not required to first demand payment from the Customer or take any action to recover any amounts from the Customer before demanding payment from any Guarantor.
16.8 This guarantee and indemnity is a continuing guarantee and indemnity and remains in full force and effect until:
(a) all Guaranteed Money has been paid in full,
(b) all Guaranteed Obligations have been performed, and
(c) the Supplier has released the Guarantors in writing.
16.9 If the Customer is a company, any new director of the Customer shall, when duly appointed, sign a guarantee and indemnity in respect of the Customer’s obligations under this agreement in substantially similar terms to this clause 16.
17 Security for Payment
17.1 To secure payment of all Guaranteed Money and the performance of all Guaranteed Obligations, the Customer and each Guarantor grants the Supplier a security interest (as defined in the Personal Property Securities Act 2009 (Cth) (‘PPSA’)) over all of their respective present and after-acquired property (excluding any property that is subject to a retention of title arrangement or other security interest that has priority under the PPSA), including but not limited to:
(a) all vehicles, equipment, machinery, and other property in the possession, custody, or control of the Supplier on which the Supplier is performing work or to which the Supplier is adding goods and services,
(b) all circulating assets including inventory, stock in trade, raw materials, work in progress, finished goods, accounts receivable, book debts, cash, and proceeds,
(c) all other non-circulating assets including plant, equipment, machinery, motor vehicles, furniture, fixtures, fittings, and other chattels,
(d) all present and future rights, interests, and claims in or to any property,
(e) all intellectual property rights, goodwill, and licenses,
(f) all proceeds, products, and accessions of any of the above property, and
(g) any other personal property (as defined in the PPSA).
17.2 To the extent that the Supplier supplies goods to the Customer on credit terms, the security interest granted under clause 17.1 is intended to be a Purchase Money Security Interest (PMSI) in those goods and their proceeds to the extent permitted by the PPSA.
17.3 The Customer and each Guarantor:
(a) acknowledge and agree that the Supplier may register its security interest on the Personal Property Securities Register (PPSR) at any time,
(b) consent to the Supplier registering one or more financing statements or financing change statements on the PPSR in relation to the security interests granted under this agreement,
(c) agree to provide all information and assistance reasonably required by the Supplier to register, maintain, and perfect its security interest, including executing any documents and providing any information required,
(d) waive their right to receive notice of any verification statement or other notice under the PPSA unless that right cannot be excluded by law,
(e) agree to pay on demand all costs and expenses incurred by the Supplier in registering, maintaining, perfecting, and enforcing its security interests, and
(f) agree not to register or permit to be registered a financing change statement in respect of the security interests granted under this agreement without the Supplier’s prior written consent.
17.4 The Customer and each Guarantor must:
(a) do all things necessary to ensure the security interest is perfected and maintains its priority, including where the security interest is or becomes a PMSI,
(b) not create or permit to arise any security interest over any of the secured property ranking in priority to or equal with the interest granted to the Supplier without the Supplier’s prior written consent,
(c) immediately notify the Supplier in writing of any change to their details including name, address, or ABN/ACN,
(d) not allow any of the secured property to become an accession to other property without the Supplier’s prior written consent, and
(e) obtain the Supplier’s written consent before selling, disposing of, or otherwise dealing with any of the secured property except in the ordinary course of business.
17.5 Upon the occurrence of any default by the Customer, the Supplier shall have all rights and remedies of a secured party under the PPSA and at law, including the right to appoint a receiver over, take possession of, sell, lease, license or otherwise deal with the secured property.
18 Charge over Real Property
18.1 To further secure payment of all Guaranteed Money and the performance of all Guaranteed Obligations, the Customer and each Guarantor charges in favour of the Supplier all of their respective legal and equitable interests (whether current or future) in any real property (including land, buildings, and fixtures).
18.2 The Customer and each Guarantor agrees to execute a mortgage over any real property owned by them in favour of the Supplier in such form as the Supplier may reasonably require, if requested by the Supplier.
18.3 The charge created under this clause 18 is in addition to and not in substitution for any other security interest or charge granted under this agreement.
18.4 The Customer and each Guarantor agrees to provide the Supplier with details of all real property in which they hold an interest within seven (7) days of written request by the Supplier.
18.5 The Customer and each Guarantor irrevocably consents to the Supplier lodging a caveat over any real property in which the Guarantor has an interest to protect the Supplier’s charge and security interest under this agreement and agrees to do all things necessary to facilitate the lodgement and maintenance of any such caveat.
18.6 The Customer and each Guarantor must not sell, transfer, encumber, or otherwise deal with any real property subject to the charge without the Supplier’s prior written consent.
18.7 Upon the occurrence of any default by the Customer or any Guarantor, or when enforcing its rights under this agreement, the Supplier may appoint a receiver, receiver and manager, or agent over any real property subject to the charge created under this clause 18. Any receiver or agent so appointed shall have all powers conferred by law and under this agreement, including the power to take possession of, manage, lease, sell, or otherwise deal with the real property for the purpose of satisfying the Guaranteed Money and Guaranteed Obligations.
19 Agency and assignment
19.1 The Customer agrees that the Supplier may at any time appoint or engage an agent to perform an obligation of the Supplier arising out of or pursuant to these terms of trade.
19.2 The Supplier has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these terms of trade provided that the assignee agrees to assume any duties and obligations of the Supplier owed to the Customer under these terms of trade.
19.3 The Customer is not to assign, or purport to assign, any of its obligations or rights under these terms of trade without the prior written consent of the Supplier.
20 Default by Customer
20.1 Each of the following occurrences constitutes an event of default:
(a) the Customer breaches these terms of trade or any supply arrangement for any reason (including, but not limited to, defaulting on any payment due under these terms of trade or any supply arrangement) and fails to remedy that breach within 14 days of being given notice by the Supplier to do so,
(b) the Customer, being a natural person, commits an act of bankruptcy,
(c) the Customer, being a corporation, is subject to:
(i) a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved,
(ii) a receiver, receiver and manager or an administrator under part 5.3A of the Corporations Act 2001 (Cth) being appointed to all or any part of the Customer’s property and undertaking,
(iii) the entering of a scheme of arrangement (other than for the purpose of restructuring), and
(iv) any assignment for the benefit of creditors, or
(d) the Customer purports to assign its rights under these terms of trade without the Supplier’s prior written consent.
20.2 Where an event of default occurs, except where payment in full has been received by the Supplier, the Supplier may:
(a) terminate any or all orders, supply arrangements and credit arrangements (if any) with the Customer,
(b) refuse to deliver Goods or provide further Services,
(c) pursuant to paragraph 12.3, repossess and re-sell any Goods delivered to the Customer, the payment for which has not been received, or
(d) retain (where applicable) all money paid by the Customer on account of Goods or Services or otherwise.
20.3 In addition to any action permitted to be taken by the Supplier under paragraph 20.2, on the occurrence of an event of default all invoices will become immediately due and payable.
21 Termination at will
21.1 In addition to the express rights of termination provided in these terms of trade, the Supplier may terminate any order or supply arrangement by giving written notice to the Customer if the Supplier reasonably determines that there is a material change in the profitability of the arrangement or where there has been a material increase in the cost of materials, labour, or other inputs required to complete the supply, or where circumstances have changed such that completion of the supply would cause the Supplier to suffer a loss, provided that the Supplier refunds any deposit or part payment taken in relation to that order.
22 Exclusions and limitation of liability
22.1 The Customer expressly agrees and acknowledges that the selection, acquisition, possession, and use of the Goods and Services, and any reliance upon them, is at the Customer’s sole risk and responsibility. The Customer is solely responsible for:
(a) determining the suitability, fitness, and appropriateness of the Goods or Services for the Customer’s intended purposes and requirements,
(b) evaluating and assessing all risks associated with the use, application, storage, handling, and disposal of the Goods or Services,
(c) ensuring that the Goods or Services are used in accordance with all applicable laws, regulations, industry standards, and any instructions or specifications provided by the Supplier,
(d) implementing appropriate safeguards, safety measures, and risk mitigation strategies in connection with the use of the Goods or Services,
(e) obtaining independent professional advice where necessary to assess the suitability and risks associated with the Goods or Services.
22.2 The Customer warrants that it has made its own independent assessment and has not relied solely on any information provided by the Supplier in determining whether to proceed with any supply arrangement or accept any Goods or Services.
22.3 To the extent permitted by law (but subject to any consumer guarantees under the ACL that cannot be excluded), the Supplier’s liability for breach of any term implied into these terms of trade is limited in accordance with section 64A of the ACL.
22.4 All information, specifications and samples provided by the Supplier in relation to the Goods or Services are approximations only and, subject to any consumer guarantees under the ACL, small deviations or slight variations from them which do not substantially affect the Customer’s use of the Goods or Services will not entitle the Customer to reject the Goods upon delivery or to make any claim in respect of them.
22.5 Subject to any consumer guarantees under the ACL and to the extent permitted by law, the Supplier limits its liability for breach of any non-excludable guarantee relating to Services in accordance with section 64A of the ACL to, at the Supplier’s option:
(a) the re-supply of the Services, or
(b) payment of the cost of having the Services re-supplied.
22.6 To the extent permitted by law, the Supplier’s liability for consequential damages and loss of profits or loss of revenues is excluded. The Supplier is not liable for any loss, damages, costs, expenses or other claims as a result, direct or indirect of any defect, deficiency or discrepancy in the Goods or Services, including their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:
(a) any Goods or Services supplied to the Customer,
(b) any delay in supply of the Goods or Services, or
(c) any failure to supply the Goods or Services.
22.7 Any advice, recommendation, information, assistance or service given by the Supplier in relation to Goods or Services is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. To the extent permitted by law, and subject to any consumer guarantees under the ACL, the Supplier limits its liability for any loss suffered as a result of the Customer’s reliance on such advice, recommendation, information, assistance or service to the remedies available under section 64A of the ACL (where applicable).
22.8 To the extent permitted by law and subject to any consumer guarantees under the ACL, the Supplier excludes liability for any indirect, punitive, incidental, special, or consequential damages including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Goods or Services, except where such damages arise from the Supplier’s fraud, wilful misconduct, or gross negligence. This exclusion does not apply to liability that cannot be excluded under the ACL or other applicable law.
22.9 The Customer warrants and acknowledges that the Customer is acquiring the Goods or Services for business purposes, the Goods or Services are not acquired wholly or predominantly for personal, domestic or household use or consumption.
22.10 The ACL may give to the Customer certain consumer guarantees (if the Customer is defined as a ‘consumer’ in section 3 of the ACL), which cannot be restricted, limited or varied.
23 Indemnity
23.1 The Customer indemnifies and keeps indemnified the Supplier, its servants and agents in respect of any claim or demand made or action commenced by any third party against the Supplier in connection with any loss arising from or incidental to the provision of Goods or Services the subject matter of these terms of trade, to the extent such Loss was caused by the Customer’s breach of these terms of trade, negligence, or wilful misconduct.
23.2 This indemnity includes, without limitation, any Loss arising from or in connection with:
(a) any breach of warranty by the Customer under these terms of trade, and
(b) any third-party claims against the Supplier in relation to the Goods or Services where the Loss arose because of the Customer’s negligence, wilful misconduct, or breach of these terms of trade.
23.3 This includes, but is not limited to, any legal costs incurred by the Supplier in relation to meeting any claim or demand or any party or party legal costs for which the Supplier is liable in connection with any such claim or demand.
23.4 This provision remains in force after the termination of these terms of trade.
24 General Terms
24.1 Currency
All amounts payable shall be paid in Australian dollars.
24.2 No Set-off
(a) All payments shall be made in full without any set-off, counterclaim, deduction, withholding, or other abatement of any kind. Without limiting the foregoing, the Customer shall not be entitled to:
(i) withhold payment of any amount due to the Supplier by reason of any dispute, claim, or counterclaim which the Customer may have or allege to have against the Supplier (whether related or unrelated to the transaction giving rise to the payment obligation),
(ii) set off any amount allegedly owed by the Supplier to the Customer against amounts payable by the Customer to the Supplier,
(iii) deduct any amount from payments due on account of defects, shortages, damages, or any other alleged breach by the Supplier, or
(iv) withhold payment pending resolution of any dispute or claim.
(b) The Customer expressly waives any right of set-off, counterclaim, or deduction it may have at law or in equity.
(c) If any law requires the Customer to make any deduction or withholding from any payment (including any tax withholding), the Customer must pay such additional amount as will ensure that the Supplier receives the full amount it would have received had no such deduction or withholding been required, and the Customer must provide evidence of such deduction or withholding to the Supplier within seven (7) days.
(d) Any payment made in breach of this clause shall be deemed not to discharge the Customer’s payment obligation to the extent of the set-off, deduction, or withholding.
24.3 Electronic Signatures
Each party agrees that this document may be executed using electronic signatures, which shall have the same force and effect as original signatures.
24.4 Counterparts
This document may be executed in any number of counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. A counterpart may be in electronic form and may be delivered by email or other electronic transmission.
24.5 Severability
It is the intention of the parties that if any provision of this agreement is unenforceable, illegal or void, the offending provision is severed and the remaining provisions of this agreement remain in force.
24.6 Amendments in writing
Any change to this deed must be in writing and signed by the parties.
24.7 No Waiver
A party’s failure or delay in exercising any power or right does not constitute a waiver of that power or right. Exercising a power or right does not prevent its future exercise or the exercise of any other power or right. Waivers are only valid if documented in writing. A waiver is effective solely for the specific instance and purpose for which it is granted. A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
24.8 Deed
This document is signed as a deed and is to take effect as a deed.
24.9 Joint and Several Liability
An obligation incurred by two or more persons is to be construed as an obligation incurred jointly and severally by each of those persons.
24.10 Notices
(a) Any notice, demand, or communication required or permitted to be given under this agreement must be in writing and may be:
(i) delivered personally,
(ii) sent by email to the email address last notified by the recipient,
(iii) sent by prepaid post to the address last notified by the recipient, or
(iv) sent by any other method agreed between the parties.
(b) A notice is deemed to be received:
(i) if delivered personally, on delivery,
(ii) if sent by email, on the earlier of acknowledgement of receipt by the recipient or four (4) hours after sending (provided the sender does not receive a delivery failure notification),
(iii) if sent by prepaid post within Australia, three (3) business days after posting, and
(iv) if sent by any other method, when actually received by the recipient.
(c) The Customer must as soon as possible notify the Supplier in writing of any change to its contact details, including address, email, phone number, and ABN/ACN.
24.11 Governing Law and Jurisdiction
(a) This agreement is governed by the laws of Queensland, Australia.
(b) Each party irrevocably submits to the exclusive jurisdiction of the courts of Queensland and any courts hearing appeals from those courts.
(c) The Customer irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
25 Definitions
25.1 “Additional Charges” means any costs, charges, fees, or expenses incurred by the Supplier beyond the quoted price or agreed pricing for the Goods or Services, including but not limited to costs arising from the matters described in paragraph 9 of these terms of trade.
25.2 “Customer” means the person, corporation, association or other entity identified in any account or credit application, quote, purchase order, invoice, or other documentation as the purchaser of Goods or Services from the Supplier and includes any party who accepts delivery of Goods or Services from the Supplier or otherwise deals with the Supplier for the supply of Goods or Services.
25.3 “Goods” means any products, materials, parts, components, equipment, vehicles, or other tangible items supplied, sold, hired, repaired, serviced, or otherwise provided by the Supplier to the Customer, including any items manufactured, modified, assembled, or procured by the Supplier for the Customer.
25.4 “Services” means any work, labour, repair, maintenance, servicing, installation, testing, commissioning, consulting, technical advice, diagnostic services, or other services of any nature provided or performed by the Supplier for the Customer, including any services ancillary or incidental to the supply of Goods.
25.5 “Supplier” means “Hydraulic & Diesel Services Brisbane”, being Ilton Industries Pty Ltd ACN 618 979 230 (as trustee) trading as Hydraulic & Diesel Services Brisbane (ABN 96 822 557 783).