AUSTRALIAN INTERNATIONAL EQUIPMENT GROUP PTY LTD
ABN: 31 612 359 985
TERMS AND CONDITIONS FOR THE SALE AND PURCHASE OF GOODS
AGREEMENT TO BUY AND SELL
1.1 Application
These Terms apply to the:
(a) sale of any Goods from AIE to the Customer; and
(b) the purchase of any Goods by AIE from the Customer.
1.2 Acceptance
The Customer is taken to accept these Terms and is immediately bound (jointly and severally) by these Terms if the Customer does any of the following:
(a) signs these Terms;
(b) places an Order for the purchase of Goods from AIE; or
(c) accepts an Order for the Sale of Goods to AIE.
1.3 Purchase
In return for payment of the specified Price in relation to each of the Goods by the Buyer to the Seller, the Seller sells, and the Buyer buys the Goods on the terms of these Terms.
2 SALE AND PURCHASE
2.1 Placement of Order
The Buyer may Order Goods from the Seller from time to time.
2.2 Acceptance of Order
The Seller may accept or decline any Order received from the Buyer for any reason whatsoever.
2.3 Cancellation of Order
(a) AIE may cancel any Order (including any Order in AIE’s capacity as Buyer or Seller) for any reason whatsoever at any time prior to the delivery of the Goods by giving notice to the Customer.
(b) If an Order is cancelled in accordance subclause (a):
(i) the Seller must repay to the Buyer any money paid by the Buyer for the Goods; and
(ii) the Seller shall not be liable for any loss or damage whatsoever arising from the cancellation.
(c) The Customer must not (without AIE’s consent) cancel:
(i) any Order that is makes in its capacity as Buyer; or
(ii) any Order that is accepts in its capacity as Seller.
2.4 Delivery
The Seller must use its best endeavours to arrange for the delivery of each Order of Goods to the location specified in the Order by the date specified in the Order.
3 PAYMENT
3.1 Price
The Price for any Goods shall be the Price specified on any tax invoice provided by the Seller to the Buyer in respect of the Goods supplied.
3.2 Excluded Costs
(a) The Price excludes delivery, freight, taxes and duties (including, without limitation import and customs duties) and any other necessary or incidental items, work or services (except to the extent expressly identified in a tax invoice provided by the Seller to the Buyer for the Goods).
(b) The Buyer must pay to the Seller (without deduction or set off of any other amounts, at the same time and on the same basis as the Seller pays the Price for the Goods) an amount equal to the Excluded Costs in connection with the supply of the Goods.
3.3 Deposit
The Seller may (at its sole direction) require payment of a deposit by the Buyer prior to processing any Order of any Goods.
3.4 Payment
The Price for each Good as well as any Excluded Costs will be payable by the Buyer on or before the Delivery of the Good.
3.5 GST
(a) Unless otherwise stated the Price does not include GST.
(b) The Buyer must pay to the Seller (without deduction or set off of any other amounts, at the same time and on the same basis as the Seller pays the Price for the Goods) an amount equal to the GST payable in connection with the supply of the Goods.
4 PASSING OF TITLE
The Seller and the Buyer agree that ownership of the Goods shall not pass until:
(a) the Buyer has paid the Seller the Price payable for the Goods; and
(b) the Buyer has paid the Seller the Excluded Costs for the Goods.
5 RISK
5.1 Passing of Risk
Notwithstanding clause 4 herein, risk in the Goods shall pass to the Buyer and any loss, damage or deterioration to the Goods shall be borne by the Buyer upon Delivery of the Goods to the Buyer or the Buyer’s Associate. The Buyer shall remain liable to pay for the Goods notwithstanding any loss, damage or deterioration to the Goods.
5.2 Insurance
6 RIGHTS IN RELATION TO GOODS
6.1 Seller’s Rights
AIE reserves the rights in relation to the Goods until all Orders made by the Customer to AIE are fully paid. These are rights:
(a) to ownership of the Goods;
(b) to enter the Customer's premises (or the premises of any associated company or agent where the Goods are located) without liability for trespass or any resulting damage and retake possession of the Goods; and
(c) subject to, and in accordance with, the PPSA, to keep or resell any Goods repossessed pursuant to subparagraph (b) above.
6.2 Customer’s Rights
Prior to title in the Goods passing to the Customer under the Terms, the Customer agrees that:
(a) the Customer has no right or claim to any interest in the Goods to secure any liquidated or unliquidated debt or obligation AIE owes to the Customer;
(b) the Customer cannot claim any lien over the Goods;
(c) the Customer will not create any absolute or defeasible interest in the Goods in relation to any third party except as may be authorised by AIE; and
(d) where the Customer is in actual or constructive possession of the Goods:
(i) the Customer is a bailee of the Goods until property in them passes to the Customer and this bailment continues in relation to each of the Goods until the price of the Goods has been paid in full; and
(ii) the Customer must not supply any of the Goods to any person outside of its ordinary or usual course of business; and
(iii) If the Customer supplies any of the Goods to any person before all moneys payable by the Customer have been paid to AIE, the Customer agrees that it holds the proceeds of re-supply of the Goods on trust for and as agent for AIE immediately when they are receivable or are received.
7 SECURITY
7.1 Charge
In consideration of AIE entering into these Terms, the Customer charges all of its right title and interest in both their personal property and real property whether existing now or in the future to secure the performance of the Customer of its obligations under these Terms (including, without limitation, the payment of the Price).
7.2 Land Titles Registry
The Customer consents to AIE lodging a caveat on the land titles registry noting its interest hereunder.
7.3 PPSA
(a) These Terms constitute a security agreement.
(b) The interest of AIE in the Goods and all proceeds from the sale of the Goods by the Customer to a third party is a security interest.
(c) The Customer consents to AIE registering its security interest on the Personal Property Securities Register and agrees to provide all assistance reasonably required by AIE to facilitate registration.
(d) Until such time as title in the Goods has passed to the Customer as contemplated by these Terms, the Customer agrees not to in any way assign, charge, lease or otherwise deal with the Goods in such a manner as to create, a security interest over, the Goods in favour of the Customer or any third party. The parties agree that this clause will not prohibit the Customer from selling the items in the ordinary course of business.
(e) The Customer waives its rights to receive any notice under the PPSA (including a notice of verification statement) unless the notice is required by the PPSA and cannot be excluded.
(f) Unless the Goods are used predominantly for personal, domestic or household purposes, AIE and the Customer agree each of the following requirements or rights under the PPSA do not apply to the enforcement of the AIE’s security interest in the Goods or of these Terms:
(i) any requirement for AIE to give the Customer a notice of removal of accession;
(ii) any requirement for AIE to give the Customer a notice of the AIE’s proposed disposal of the Goods;
(iii) any requirement for AIE to include in a statement of account, after disposal of the Goods, the details of any amounts paid to other secured parties;
(iv) any requirement for AIE to give the Customer a statement of account if AIE does not dispose of the Goods;
(v) any right the Customer has to redeem the Goods before AIE exercises a right of disposal; and
(vi) any right the Customer has to reinstate these Terms before AIE exercises a right of disposal of the Goods.
(g) Expressions defined in the PPSA have the same meaning when used in these Terms.
7.4 Attorney
The Customer irrevocably appoints AIE and each director of AIE as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 7 including (without limitation) signing any document on the Customer’s behalf.
8 WARRANTIES
8.1 Customer’s Warranties
The Customer warrants and represents that:
(a) the Customer has the legal right and is authorised to enter into and perform its obligations under these Terms;
The Customer must insure the Goods from when risk in the Goods passes to the Customer. If any Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, AIE is entitled to receive any insurance proceeds payable for the Goods. The production of these Terms by AIE shall be sufficient evidence of AIE’s rights to receive the insurance proceeds without the need for any person dealing with AIE to make further enquiries.
(b) these Terms constitute a legal, valid and binding obligation upon the Customer enforceable in accordance with its terms;
(c) if the Customer is a corporation, the Customer is duly incorporated and validly exists under the law of its place of incorporation;
(d) the Customer has good a marketable title to any Goods it sells to AIE in connection with these Terms and there is no option, right to acquire, or encumbrance on, over or affecting such Goods and there is no agreement of commitment to give or create any Encumbrance on, over or affecting such Goods;
(e) the Goods will be in the same standard and condition as it was at the date of this the relevant Order was made by AIE;
(f) the Customer is not affected by an Insolvency Event; and
(g) any representation made by the Customer to AIE in respect of any Goods is true, correct, complete and not misleading.
8.2 Independent Warranties
Each warranty given be the Customer in clause 8.1 is separate and independent and not limited or restricted by any other warranty.
8.3 Reliance
The Customer acknowledges and agrees that AIE has entered into these Terms in reliance upon the warranties given in clause 8.2.
9 TERMINATION
9.1 Termination
Either party (the “Terminating Party”) may terminate these Terms at any time provided that:
(a) the Terminating Party provides written notice to the other party;
(b) the Terminating Party is not in breach of these Terms at the time notice is given under subclause (a);
(c) there are no outstanding Orders; and
(d) the Terminating Party has paid all amounts incurred by the Terminating Party in connection with these Terms (whether payment is due now or in the future).
9.2 Rights and obligations following termination
(a) The following clauses survive termination of these Terms: 5, 6, 7, 8, 10, 11 and 12 together with any other clauses which expressly, or by their nature, are intended to survive termination of these Terms.
(b) The termination of these Terms is without prejudice to any rights which have accrued to a party before the date of termination.
10 LIABILITY
10.1 Indemnity and Release
To the extent permitted by Law, the Customer indemnifies, releases and holds harmless AIE from and against any damage, loss (including legal costs and expenses) or liability suffered or incurred by or arising from or in connection with any breach of these Terms by the Customer.
10.2 Disclaimer
(a) AIE provides the Goods on an “as is” and “as available” basis and does not represent or warrant that the Goods will:
(i) be free from any defects; or
(ii) meet the Customer’s requirements.
(b) AIE makes no representations or warranties other than those made expressly in these Terms and, to the extent permitted by law, hereby expressly disclaims any and all warranties, including (without limitation) warranties of fitness or suitability for a particular purpose.
10.3 Scope of Liability
(a) To the extent permitted by law, AIE’s liability in connection with these Terms is limited at its option to either:
(i) replacing or repairing the Good or supplying an equivalent Good, or paying for the cost of replacing or repairing the Good or of acquiring an equivalent Good; or
(ii) the Price paid for the Good.
(b) AIE will not be liable to the Customer or any third party for any consequential, incidental, indirect, punitive or special damages (including damages relating to lost profits, lost data or loss of goodwill arising out of, relating to or connected with the Goods or these Terms
10.4 Warranties
The Customer warrants that any representation made by the Customer to AIE in respect of any Goods is true and correct.
10.5 Overdue amounts
Any amount not paid by the Customer by the due date will incur interest payable immediately to AIE at a rate of 8% above the Reserve Bank of Australia Cash Rate Target calculated daily and compounded daily.
11 GENERAL PROVISIONS
11.1 Further Assurance
Each party must execute any document and perform any action necessary to give full effect to these Terms, whether before or after the performance of these Terms.
11.2 Non-circumvention
The parties agree not to circumvent, avoid, bypass, or obviate, directly or indirectly, the intent of these Terms through any action, transaction or otherwise.
11.3 Waivers
Any failure or delay by any party to exercise any right under these Terms does not operate as a waiver and the single or partial exercise of any right by that party does not preclude any other or further exercise of that or any other right by that party.
11.4 Remedies
The rights of a party under these Terms are cumulative and not exclusive of any rights provided by law.
11.5 Severability
Any provision of these Terms which is invalid in any jurisdiction is invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of these Terms or the validity of that provision in any other jurisdiction.
11.6 Time
Time is of the essence of these Terms.
11.7 Duties
(a) The Customer must promptly within the initial applicable period prescribed by law pay any stamp or other duty or similar tax payable in relation to the execution and performance of these Terms, or any supply of Goods in accordance with these Terms.
(b) The Customer must indemnify AIE upon written demand against any loss incurred by AIE in relation to any duty or tax specified in this provision, whether through default under this provision by the Customer or otherwise.
11.8 Governing Law
These Terms are governed by and construed under the law in the State of Queensland.
12 DEFINITIONS
The following definitions apply in these Terms unless the context otherwise requires:
AIE means Australian International Equipment Group Pty Ltd ACN 612 359 985.
Buyer:
(a) If AIE is selling goods to the Customer, the Buyer means the Customer; and
(b) if AIE is purchasing goods from the Customer, then Buyer means AIE.
Buyer’s Associates means each and every one of the Buyer’s employees, agents, contractors, couriers, customers, Customers or other personnel associated with the Buyer.
Customer means any person or entity that:
(c) buys Goods from AIE; and/or
(d) sells Goods to AIE
Encumbrance includes any mortgage, charge, lien, restriction against transfer, pledge, trust, power, profit a prendre, easement, deposit, hypothecation, arrangement for retention of title, encumbrance and any other security interest, whether registered on the PPSR or not, including a right, interest, power or arrangement in relation to an asset which provides security for the payment or satisfaction of a debt, obligation or Liability.
Excluded Costs means the costs excluded from the Price as set out in clause 3.2 of these Terms.
Goods means and goods, equipment, machinery, plant and equipment, materials, consumables, hardware, software, components, parts, stock or other items whatsoever supplied by the Seller to the Buyer at any time.
Order means the order of the Buyer to the Seller to supply Goods.
PPSA means the Personal Property and Securities Act 2009 (Cth) and includes any regulations made under the Act.
Price has the meaning given in clause 3.1 of these Terms.
Seller:
(a) If AIE is selling goods to the Customer, the Seller means AIE; and
(b) if AIE is purchasing goods from the Customer, then Seller means the Customer.
Terms means these terms and conditions.
Insolvency Event means any of the following events concerning a party:
(a) if an administrator, liquidator, receiver, receiver and manager or other controller (as defined in the Corporations Act) is appointed to, or over, any of the property or undertaking of the party;
(b) if the party becomes bankrupt;
(c) if a controlling trustee is appointed to, or over, any of the property or undertaking of the party;
(d) the party or the party's property or undertaking becomes subject to a personal insolvency arrangement under Part X of the Bankruptcy Act 1966 (Cth) or a debt agreement under Part IX of the Bankruptcy Act 1966 (Cth);
(e) if the party is unable (or taken under applicable law to be unable) to pay its debts when they become due and payable;
(f) if the party ceases to carry on business;
(g) a party stops or suspends, or threatens to stop or suspend, payment of all or a class of its debts;
(h) if any event happens in Australia or any other country or territory in respect of a party that is similar to any of the events or circumstances referred to in this definition;
(i) any mortgagee, chargee or secured party taking or indicating its intention to take any action or to exercise any rights under any security of which a party is the grantor, mortgagor, charger or guarantor; or
(j) any step is taken (including an application or order made, petition presented, proceedings commenced, or a resolution passed or proposed in a notice of meeting for any of the actions described in paragraphs (a) to (i) of this definition.
