Terms & Conditions of Sale of Colron Industries Pty Ltd
Operative Provisions:
1. Definitions
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Queensland;
Colron means Colron Industries Pty Ltd ACN 122 054 899;
Default Event means any of the following:
(a) when an amount payable by the Customer to Colron is overdue, or the Customer fails to meet any obligation to Colron (whether in relation to the Equipment or otherwise), or in Colron’s reasonable opinion the Customer is likely to be unable to meet its payment or other obligations to Colron;
(b) the Customer is unable to pay its debts as they fall due;
(c) the Customer ceases or suspends conduct of its business or a material part of it, or threatens to;
(d) a resolution is passed or proposed or a summons is presented to wind up the Customer;
(e) a receiver and/or manager or other form of insolvency administrator is appointed over all or part of the Customer’s assets;
(f) the Customer makes or proposes to make any arrangement with it creditors;
(g) the Customer commits an act of bankruptcy;
(h) execution is levied on any of the Customer’s assets; or
(i) the Customer breaches any of the Terms and Conditions and fails to rectify the breach within 14 days of written notice from Colron;
Delivery means delivery of the Equipment as set out in paragraph 6;
Deposit means the sum of 15% of the equipment price;
Encumbrance means
(a) an interest or power reserved in or over an interest in an asset, including any retention of title;
(b) an interest or power created or arising in or over an interest in an asset under a bill of sale, mortgage, charge, lien, pledge, trust or other similar instrument, device or power; or
(c) any other adverse right, title or interest of any nature, by way of security for the payment of a debt or the performance of any other obligation, and includes any agreement or arrangement (whether legally binding or not) to grant or create any of the above.
Equipment means the equipment or goods sold or agreed to be sold by Colron to the Customer and described in the Quotation;
Finance Approval means written approval from a finance provider to the customer for the equipment price.
Force Majeure means any act or occurrence beyond the reasonable control of the party liable to perform an obligation under these Terms and Conditions which has arisen through no fault or negligence of that party and includes strikes, embargoes, lock-outs, industrial disputes, floods, war, riots, acts of God, sabotage and machinery breakdowns;
Invoice means any invoice or other document setting out the Price;
Order has the meaning given to it in paragraph 2.2;
Price means the price to be paid by the Customer to Colron for the Equipment in accordance with paragraphs 3 and 4;
Quotation means any written quotation of price and description of Equipment given by Colron to the Customer;
Site means the place where the Customer requires the Equipment to be delivered as set out in the Quotation;
Specification means the specification of the Equipment set out in the Quotation;
Terms and Conditions means these terms and conditions for sale of Equipment by Colron as amended by Colron in writing from time to time.
2. Quotation
2.1 Colron Submits Quotation
Unless otherwise specified in the Quotation, where Colron submits a Quotation to the Customer, the Quotation is not an offer to sell but an invitation to the Customer to make an offer subject to the terms of the Quotation and these Terms and Conditions.
2.2 Customer can make Offer
Unless otherwise specified in the Quotation, the Customer may make an offer by placing an Order in accordance with the Quotation not later than 30 days from the date of the Quotation. In the event an Order in respect of a Quotation is not placed within 30 days, Colron reserves the right to vary the Price or any other term of the Quotation.
2.3 Technical Information
Where the Quotation provides technical information including, but not limited to, details regarding weight, dimensions, physical properties, operating cost or performance, this information is an estimate only unless expressed to be final and binding.
2.4 Deposit
Upon placing the Order with Colron, the Customer must pay the Deposit to Colron in accordance with paragraph 4.2. Independent finance approval may be provided as proof of deposit.
2.5 Orders
(a) Colron may accept or refuse any Order for the Equipment in its absolute discretion and may make its acceptance of an Order conditional (eg. upon a satisfactory credit assessment of the Customer). The Deposit will be returned to the Customer if Colron decides not to accept the Order.
(b) Unless otherwise agreed, Orders must be in writing, signed by the Customer and either mailed, couriered or faxed to Colron. Orders may be made by phone or email if agreed to in writing by Colron.
(c) Colron is under no obligation to enquire as to the authority of any person placing an Order on behalf of the Customer. The Customer will bear sole responsibility for ensuring that only authorised persons place Orders to Colron in the Customer’s name. The Customer indemnifies Colron for any loss or claims suffered by Colron by accepting an unauthorised Order.
(d) The Customer warrants that it will provide accurate details on every Order. Colron is under no obligation to enquire as to whether details contained within the Order are accurate or whether the Equipment will be fit for the purpose required by the Customer.
(e) When an Order is accepted by Colron, it will become the agreement between the parties and any such agreement will be subject to these Terms and Conditions. No variations of these Terms and Conditions will apply unless agreed to in writing by Colron.
(f) Colron will use its reasonable endeavours to fulfil accepted Orders.
(g) Cancellation of Orders by the Customer is not permitted without the written consent of Colron. The Customer indemnifies Colron for all loss or damage suffered by Colron from the cancellation of an accepted Order.
2.6 Minor Variations
Colron reserves the right to change the design, shape, colour or other features of the Equipment provided that such changes do not materially adversely alter the Equipment and are not unreasonable for the Customer.
3. Price
3.1 Price set out in Quotation
The Price (including the Deposit) is set out in the Quotation. If there is any variation to the Price (as agreed in writing between the parties), the Price will be the price set out in the Invoice. The Price will include GST and any other taxes, duties and levies payable in respect of the supply of Equipment as at the date of the Invoice.
3.2 Price on Ex-works Basis
Unless Colron otherwise specifies in writing, all prices are given by Colron on an ex-works basis and where Colron agrees to deliver the Equipment otherwise than at Colron’s premises, the Customer will be liable to pay Colron the charges for transport and insurance.
4. Payment
4.1 Time for Payment
The Customer will pay the balance of the Price in full without any deductions, within 14 days of receipt of an Invoice or upon Delivery, but no later than the date of Delivery.
4.2 Method of Payment
Payment for Equipment must be made by the Customer to Colron by transfer of the relevant amount to such bank account as Colron may from time to time notify the Customer in writing or in such other manner as may be agreed in writing by Colron.
4.3 Interest
If any amount due by the Customer is in arrears, the Customer will pay interest on the amount in arrears calculated from the due date at such rate as would be charged to Colron by its then current banker on an overdraft amount equal to the amount in arrears plus four per cent per annum. Any payment by the Customer will be credited first against any interest so accrued.
4.4 Costs of collecting Amounts due to Colron
The Customer will be liable to Colron to pay all expenses and legal costs of Colron as between solicitor and client in relation to collecting any amounts due to Colron by the Customer.
5. Specification of the Equipment
The Equipment sold by Colron to the Customer will conform to the Specification.
6. Delivery
6.1 Transfer of Risk
Risk in the Equipment passes to the Customer on Delivery or on deemed Delivery as provided in this paragraph 6.
6.2 Delivery ex works at Colron’s Premises
If it is agreed that the Equipment is supplied ex works at Colron’s premises:
(a) The Equipment is deemed to be delivered when collected by the Customer at Colron’s premises;
(b) The Customer will at its cost and risk collect the Equipment within the time agreed (or if no time is agreed, within a reasonable time); and
(c) Colron’s only obligation as to delivery is to have the Equipment ready for despatch within the time agreed or a reasonable time (as the case may be).
6.3 Delivery at Customer’s Site
If it is agreed that Colron will deliver the Equipment to the Site:
(a) The Equipment is deemed to be delivered when unloaded from the delivery vehicle at the Site, or when deemed to be delivered according to paragraphs 6.3(d)(ii) or 6.3(e);
(b) The Equipment will be loaded, unloaded and delivered at the cost and risk of the Customer unless otherwise specified;
(c) The Customer will arrange for a representative or agent to be present at the Site at the time of delivery to sign the delivery advice presented by the driver of the delivery vehicle;
(d) If such a representative or agent is not present, Colron may:
(i) deliver the Equipment at the Site and any notice in writing to the Customer advising the date and place of delivery is deemed proof of delivery (unless disputed by the Customer in writing within 3 days of receipt of such notice); or
(ii) store the Equipment at the Customer’s expense and the Equipment is deemed to be delivered when Colron either attempts to deliver the Equipment or advises the Customer of its inability to deliver (whichever is earlier);
(e) If, through no fault of Colron, it is impossible to deliver the Equipment to the Site, the Equipment is deemed to be delivered when Colron either attempts to deliver the Equipment or advises the Customer of its inability to deliver (whichever is earlier), and the Equipment will be stored at the Customer’s expense.
6.4 Time of Delivery
All delivery times made known to the Customer are estimates only and under no circumstances is Colron liable for any loss, damage or delay arising from late delivery or non-delivery of the Equipment. Colron may deliver in advance of any agreed date unless otherwise stipulated. Colron reserves the right to extend the date for delivery.
6.5 Deferment of Delivery
If the Customer requests a deferment of Delivery, and Colron agrees to such deferment, the date for which delivery is deferred is deemed to be the date of delivery for the purposes of paragraph 5, and from that date until the date of actual delivery the Customer will pay the costs of storing the Equipment and any other costs resulting from the deferral.
7. Manuals
Colron will make available to the Customer free of charge one copy per trailer all necessary instructions for use, manuals, material data safety sheets and any other information and documents customarily made available to customers requiring the Equipment for the purposes for which they are generally used or intended.
8. Insurance
(a) After the Price is paid in full, the Customer must at the Customer’s sole cost keep the Equipment insured against all usual risks including without limitation, public liability (for an amount not less than $1,000,000), loss or damage by fire, theft and destruction to its full replacement value.
(b) The Customer must on request by Colron produce a copy of the policy referred to in paragraph 8(a) above and a certificate of currency to Colron.
9. Retention of Title
9.1 Title Remains with Colron
Title to the Equipment remains with Colron and does not pass to the Customer until the Customer pays Colron all amounts owed by the Customer to Colron on any account.
9.2 The Customer’s Obligations
Until the Customer pays all amounts it owes to Colron, the Customer:
(a) May not sell or part with possession of the Equipment;
(b) Must store the Equipment in a way that identifies it as Colron’s Equipment and so it can be distinguished from all other goods in the Customer’s possession;
(c) Must keep the Equipment insured in accordance with paragraph 8;
(d) Must keep the Equipment in good condition and have all servicing and repairs carried out by persons authorised by Colron;
(e) Must not sell or grant any Encumbrance over the Equipment or create an interest in favour of a third party in respect of the Equipment whether for repair or otherwise except with the prior written consent of Colron and only then as fiduciary agent and bailee of Colron;
(f) Must allow Colron, on reasonable notice, to enter the premises where the Equipment is located to inspect the Equipment;
(g) Must solely use the Equipment for the purpose for which it is intended;
(h) Acknowledges that it holds the Equipment as Colron’s bailee and that a fiduciary relationship exists with Colron; and
(i) Must hold the proceeds from any sale of the Equipment on trust for Colron in a separate account or otherwise clearly identify these amounts in its accounts.
9.3 Default Event
If a Default Event occurs:
(a) Colron will be entitled to cancel all or any part of an Order or Orders with the Customer which remains unperformed, in addition to and without prejudice to its other remedies;
(b) All amounts outstanding under any Order with Colron will, whether or not due for payment immediately become due and payable;
(c) The Customer’s right to possess the Equipment immediately terminates; and
(d) Colron will be entitled to reclaim the Equipment in the Customer’s possession or control and to dispose of it for its own benefit, and Colron will be entitled, without notice, to enter directly or by its agents on any premises where it believes Equipment which it has supplied may be stored, without in any way being liable to any person, and the Customer will fully indemnify Colron against any action taken by Colron under this paragraph.
10. Warranty
10.1 Warranty Period
Colron warrants that the Equipment is free from defects arising from faulty material or faulty design or poor workmanship, as follows:
(a) semi-trailer frame for 12 months after delivery;
(b) in relation to other components of the Equipment, the benefit of any warranty or guarantee given to Colron by the manufacturer or importer of these components of the Equipment will be transferred to the Customer; and
(c) [for repaired or replaced Equipment, the same period as the period given for the Equipment originally delivered.]
10.2 Remedy for Breach of Warranty
Subject to paragraph 11, the Customer’s sole remedy for Equipment which is defective due to faulty material or faulty design or poor workmanship is limited, at Colron’s option, to the repair or replacement of the Equipment, or the repayment of the price of the Equipment, provided that:
(a) Within the relevant period in paragraph 10.1, the Customer notifies Colron in writing of any alleged defect in the Equipment.
(b) In Colron’s sole judgment, the Equipment is defective due to faulty material or faulty design or poor workmanship; and
(c) The Customer, at Colron’s request, returns the Equipment to Colron’s premises or to such other place elected by Colron.
10.3 Exclusions
Notwithstanding paragraph 10.1, Colron’s warranty does not cover and Colron accepts no responsibility for damage or loss of any kind due to:
(a) Fair wear and tear;
(b) Parts which, due to the material of which they are made or the use to which they are put, are subject to premature deterioration;
(c) Incorrect or improper storage, handling, use, or installation of the Equipment or abnormal conditions of temperature, dirt or corrosive matter;
(d) Excessive stress or strain, operation of the Equipment above rated capacities or in an improper manner, or the use of unsuitable lubricants, fuels etc;
(e) The Equipment being tampered with or altered in any way or serviced or repaired by anyone other than a person authorised by Colron;
(f) Parts unauthorised by Colron being used in relation to the repair or servicing of the Equipment;
(g) The Customer’s failure to comply with handling, maintenance and servicing instructions for the Equipment (eg operating instructions);
(h) The Equipment being damaged in shipment or otherwise without fault of Colron;
(i) The Customer’s failure to report a defect to Colron in writing immediately on discovery of the defect and within the warranty period set out in paragraph by a Warranty Claim Approval Request Form; or
(j) Other causes beyond the control of Colron.
10.4 Replaced Equipment
Replaced parts become the property of Colron.
11. Colron’s Liability
11.1 Except as set out in these Terms and Conditions, Colron:
(a) Excludes all conditions and warranties in relation to the Equipment (whether imposed or implied by statute or otherwise) including conditions and warranties as to merchantability, description, quality, suitability or fitness of the goods for any purpose or as to design, assembly, installation, material or workmanship; and
(b) Excludes liability for any personal or economic injury, loss or damage (including special, consequential or indirect losses such as loss of profit, business interruption or indirect costs) arising from the condition, installation, supply or use of the Equipment or in connection with Colron’s performance of its obligations under these Terms and Conditions, whether or not caused by Colron’s negligence.
11.2 Notwithstanding paragraph 11.1, these Terms and Conditions include the terms implied by any statute which cannot be lawfully excluded including those terms implied by Divisions 2 and 2A of Part V of the Trade Practices Act 1974 (Cth) and, if applicable, the Sale of Goods Act 1896 (QLD) and the Fair Trading Act 1989 (QLD).
11.3 Where Colron supplies goods or services which are not of a kind ordinarily acquired for personal, domestic or household use or consumption Colron’s liability for breach of a term implied by Division 2 of Part V of the Trade Practices Act 1974 (Cth) (other than section 69) is limited, at its option, to:
(a) In the case of Equipment, any one or more of the following:
(i) the replacement of the Equipment or the supply of equivalent Equipment;
(ii) the repair of the Equipment;
(iii) the payment of the cost of replacing the Equipment or of acquiring equivalent Equipment; or
(iv) the payment of the cost of having the Equipment repaired.
11.4 Colron’s liability under s74H of the Trade Practices Act 1974 (Cth) is limited to a liability to pay to the Customer an amount equal to:
(a) the cost of replacing the Equipment;
(b) the cost of obtaining, equivalent Equipment; or
(c) the cost of having the Equipment repaired;
whichever is the lowest amount.
11.5 The Customer acknowledges that it has exercised its independent skill and judgment in acquiring the Equipment and has not relied on any advice or representation by Colron or on any descriptions, illustrations or specifications contained in any document produced by Colron, which are not stated expressly in these Terms and Conditions.
11.6 The Customer will be taken to have waived any claim (other than a warranty claim under paragraph 10) which it may have against Colron unless:
(a) The Customer gives Colron written notice of the claim within 14 days after delivery of the Equipment; and
(b) Colron is given a reasonable opportunity to investigate the claim.
11.7 Total liability for any claim, damage, loss or liability arising out of or relating to these Terms and Conditions cannot exceed the Price.
11.8 The Customer agrees that Colron is not liable to the Customer or to any other person for:
(a) any loss or damage of any kind that is directly or indirectly caused by or results from any wrongful, wilful or negligent act or omission of the Customer or any of its officers, employees, agents or contractors; or
(b) any indirect, incidental, special or consequential loss or damage, loss of profits or anticipated profits, economic loss, loss of business opportunity, loss of data or loss or damage resulting from wasted management time irrespective of whether:
i. the loss or damage is caused by or relates to breach of contract, statute, tort (including negligence) or otherwise; or
ii. the Customer or any other person was previously notified of the possibility of the loss or damage.
12. Indemnity
The Customer indemnifies and must keep indemnified Colron against all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be brought against Colron or which Colron may pay, sustain or incur as a direct or indirect result of any one or more of the following:
(a) any breach or non performance of the Terms and Conditions by the Customer; or
(b) any wrongful, wilful or negligent act or omission of the Customer or any of its employees, agents or contractors.
13. Default
If:
(a) the Customer breaches any term of these Terms and Conditions; or
(b) A Default Event occurs;
then without prejudice to any other rights Colron may have under these Terms and Conditions, Colron may:
(i) refuse to perform its obligations under these Terms and Conditions, including suspending delivery of the Equipment;
(ii) retain as security any monies paid by the Customer and apply those monies against the assessed loss and damages incurred by Colron in the performance or partial performance up to that time;
(iii) immediately cancel the Order and claim damages on account of non-performance by the Customer; or
(iv) exercise its rights under paragraph 9.3.
14. Termination at Will
Colron will be entitled to cancel all or any part of any accepted Order or Orders from the Customer at any time with or without prior notice. Any such cancellation will be without prejudice to Colron’s other rights and remedies including, but not limited to, those which may arise from any breach or non-compliance by the Customer.
15. Rights of Set Off
(a) Colron may apply (without prior notice) all or part of any credit balance with Colron towards satisfaction of any amount owing (whether or not due to payment) by the Customer to Colron.
(b) If at any time any amount is contingently due or is not quantified, Colron may retain and withhold repayment of any credit balance the Customer may have with Colron pending such amount becoming due or being quantified.
(c) Colron will not be obliged to exercise any of its rights conferred by this paragraph 15. The exercise or non-exercise of those rights will not affect, impair, or otherwise detract from:
(i) any securities or other documents held now or in the future by Colron to secure any indebtedness which may be the subject of a set off hereunder; or
(ii) any rights, privileges, or directions available to Colron, under general law, under any security or other documents, or otherwise howsoever, and will be without prejudice and in addition to such rights, privileges, and directions.
(d) The Customer may not assign any credit balance which it may have with Colron and agrees not to attempt any such assignment.
16. GST
Price will be inclusive of GST.
17. Assignment
The Customer will not assign or transfer its rights under the Terms and Conditions without the prior written consent of Colron, which consent will not be unreasonably withheld.
18. Confidentiality and Intellectual Property
(a) The Customer will keep all information communicated to it in the course of dealing with Colron strictly confidential and will not divulge such information to any unauthorised person without the prior written consent of Colron.
(b) The sale to and purchase by the Customer of the Equipment does not confer on the Customer any licence or right under any copyright, patent, registered design, trade mark or similar intellectual property right which is the property of Colron and the Customer will conform to all reasonable requirements imposed by Colron with respect to trade marks, or identification marks in respect of the Equipment.
(c) All specifications, trade secrets and other information relating to the Equipment or the business of Colron which are divulged to the Customer by Colron are to be regarded as confidential and will not be disclosed by the Customer to any third party except to the extent such disclosure is necessary for the purposes of these Terms and Conditions or with the prior written consent of Colron.
19. Dispute resolution
19.1 Delivering a dispute notice
If any dispute arises between the parties relating to or arising out of these Terms and Conditions or any other document referred to in these Terms and Conditions, including its construction, effect, the rights and obligations of the parties, the performance, breach, rescission or cancellation of the Order, the entitlement of any party to damages or compensation (whether for breach of contract, tort or any other cause of action) or the amount of that entitlement (Dispute), the party claiming that a Dispute has arisen must deliver to the other parties a notice containing particulars of the Dispute (Dispute Notice).
19.2 Parties must negotiate
During the period of 10 Business Days after delivery of the Dispute Notice, or any longer period agreed in writing by the parties to the Dispute (Initial Period), each of the parties must use its reasonable endeavours and act in good faith to resolve the Dispute by discussion and negotiation.
19.3 Referral to third party
If the parties have been unable to resolve the Dispute within the period stated in paragraph 19.2, then the parties must submit the Dispute to a mediator for consideration in accordance with the Mediation and Conciliation Rules of the Institute of Arbitrators and Mediators Australia, which Rules are taken to be incorporated into these Terms and Conditions.
19.4 Other proceedings
A party may not commence court proceedings in respect of a Dispute unless it has complied with this paragraph 19 and until the procedures in this paragraph 19 have been followed in full, except where:
(a) the party seeks injunctive relief in relation to a Dispute from an appropriate court where failure to obtain such relief would cause irreparable damage to the party concerned; or
(b) following those procedures would mean that a limitation period for a cause of action relevant to the issues in dispute will expire.
20. General
20.1 Amendment
These Terms and Conditions can only be varied or amended by Colron in writing.
20.2 Severability
If any term or condition of these Terms and Conditions is found to be illegal, invalid or unenforceable, then such provision must be severed from these Terms and Conditions and the remaining previsions will continue in full force and effect and operate as if the severed provision had not been included.
20.3 Entire Agreement
No other terms and conditions (including any submitted by the Customer) except those confirmed in writing by Colron will be incorporated into these Terms and Conditions.
20.4 Force Majeure
(a) If either party is delayed or prevented from performing any of its obligations under these Terms and Conditions (other than an obligation to pay money) by Force Majeure, the affected obligations are suspended until the Force Majeure has ceased. Any party affected by Force Majeure must promptly notify the other party of the circumstances and the likely duration of the Force Majeure.
(b) The party giving notice of Force Majeure must take all reasonable steps:
(i) to mitigate the effect of and remove the Force Majeure; and
(ii) to resume its obligations under these Terms and Conditions,
except if it is contrary to its judgement to settle a strike or industrial dispute or otherwise submit unreasonably to the demands of third parties.
20.5 Conflict
(a) If there is any conflict between these Terms and Conditions, the Quotation, Invoice or other document issued by Colron, the following order of precedence will apply and each document will be subject to the document taking precedence over it to the extent of the conflict:
(i) the Terms and Conditions;
(ii) the Invoice;
(iii) the Quotation;
(iv) any other document issued by Colron;
unless otherwise stated by Colron in writing.
(b) If any term of a Customer’s order purports to vary Colron’s Terms and Conditions, the Customer’s term will not bind Colron unless Colron agrees in writing.
20.6 Clerical Errors
Clerical errors whether in computations or otherwise, in any relevant document (including the Invoice) will be corrected and requisite adjustments made between the parties.
20.7 Notices
(a) Notices under these Terms and Conditions may be delivered by hand, registered mail or facsimile to the address of Colron specified in the Quotation or Invoice or as the case may be, to the address of the Customer at its address specified in the Order.
(b) Notice will be deemed to be given:
(i) in the case of hand delivery receipt;
(ii) in the case of delivery by registered mail, three days after the date of posting; and
(iii) in the case of delivery by facsimile, upon proof of completion of transmission.
20.8 Waiver
The waiver by Colron of any provision of these Terms and Conditions is not a waiver of any other provision of these Terms and Conditions.
20.9 Taxes and Duties
(a) The Customer will pay all sales tax, stamp duty, import duty and any other taxes or duties of any kind in relation to the Equipment (including any fines or penalties), unless the Invoice specifies otherwise or the Customer claims and is entitled to any exemption in respect of such taxes or duties.
(b) The Customer will indemnify Colron against all claims, costs and liabilities for such taxes or duties,
20.10 Governing Law
These Terms and Conditions are governed by and construed in accordance with the laws of Queensland, Colron and the Customer submit to the non-exclusive jurisdiction of the Courts of that State and the Commonwealth of Australia in respect of all matters arising out of these Terms and Conditions.
Colron Industries Pty Ltd
ACN 122 054 899
Unit 2/38 Westgate Street Wacol 4076
Building 3/636 Progress Rd Wacol 4076
P.O. Box 307 Carole Park QLD 4300
