1. Interpretation and Construction

Definitions

In these Terms of Trade, unless the context requires otherwise, the following words have the following meanings:

Customer means any person, organisation, or other entity that has requested the supply of Services from PTH as stated on any order, invoice or document;

Order means any order made by the Customer from PTH for the supply of Services;

Quotation means any quotation issued by PTH to the Customer for the supply of Services;

PTH means Tenista Pty Ltd trading as Peter Tippett Haulage (ABN 58 010 574 106)

Price means the price payable for the supply of Services in accordance with clause 4;

Services means any services to be rendered by PTH to the Customer, at the Customer’s request;

Sub-Contractor means any party engaged by PTH to perform the Services and includes the railways (operated by the Commonwealth or any State); and

Terms means these terms of trade which apply to any supply of Services by PTH to the Customer.

  • Construction

(a)    a reference to these terms or another agreement between the parties includes any variation or replacement;

(b)    a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

(c)    the singular includes the plural and vice versa;

(d)    the masculine includes the feminine and neuter and vice versa;

(e)    a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes, employees, agents and permitted assigns;

(f)     an obligation, agreement, representation or warranty on the part of or in favour of two or more persons binds, and/or is for the benefit of them jointly and severally;

(g)    a reference to anything is a reference to the whole or any part of it; and

(h)    references to parties or clauses are, unless otherwise stated, references to the parties and clauses contained in these Terms.

  1. Supply of Services
    • PTH may issue a Quotation upon the Customer’s request or otherwise accept an Order for the supply of Services from the Customer.
    • Any Quotation issued by PTH remains open for acceptance from the time stated on the Quotation or otherwise for seven (7) days unless withdrawn earlier. All Quotations are estimates only and are subject to withdrawal, correction or alteration at any time prior to PTH’s acceptance of the Customer’s request. All amounts and prices stated on the Quotation are as at the date of the Quotation.
    • An Order shall identify the Services to be provided and refer to any Quotation pursuant to which the Order is made.
    • PTH may provide and the Customer must accept the services which vary from the Services ordered by the Customer so long as such variations are not material. Any variation of an Order requested by the Customer is only accepted if PTH agrees in writing.
    • PTH may cancel or terminate any Order at any time without cause, in PTH’s absolute discretion and in that event, PTH shall repay the Customer any money paid by the Customer and PTH is not liable for any loss or damages in any respect arising from any cancellation.
    • PTH reserves the right, whether or not an Order has been accepted and without notice to the Customer to withhold supply to the Customer and will not be liable for loss or damage resulting directly or indirectly from such action, including if the services cannot be rendered for any reason whatsoever, if the Customer is in default of these Terms or if PTH has determined in its absolute discretion that credit should no longer be extended to the Customer.
    • The Customer shall not tender for Services of any explosive, inflammable, or otherwise dangerous or damaging goods.
    • If the Customer cancels and Order, the Customer remains liable and shall indemnify and keep indemnified PTH for any and all loss is suffered (whether direct or indirect) by PTH as a direct result of the cancellation (including but not limited to loss of profits).
    • The Customer authorises PTH to arrange with a Sub-Contractor for the provision of the Services. Any such arrangement shall be deemed ratified by the Customer upon delivery of the goods to the Sub-Contractor who shall thereupon be entitled to the benefit of these Terms to the same extent as PTH.
    • If the Customer instructs PTH to use a particular method of carriage (by way of example only, road, rail, sea, or air), PTH will give priority to that method, however, if that method is deemed impractical at the sole discretion of PTH, PTH shall be authorised to use the method any method it deems fit.
  2. Acceptance
    • The Customer warrants that it has the power to enter into this agreement, is solvent and able to pay its debts as and when they fall due, and this agreement creates a binding and legal obligation and all information provided to PTH by the Customer is true and correct in all material respects.
    • The Customer acknowledges these Terms apply to any Quotation or Order or other supply of Services and the Customer accepts the Terms without amendment and agrees to be bound by them.
    • The Customer agrees that the Terms apply over any other document or agreement to the extent of any inconsistency.
    • If the Customer is the trustee of a trust, then in addition to that entity the trustee agrees to bind all trusts of which the entity is a trustee from time to time.
  3. Payment, Credit and Price
    • The Price is the price determined by PTH, in its absolute discretion, the price in accordance with the Quotation, the price on any invoices rendered by PTH or the Price as at the date of supply in accordance with PTH’s current price list. The Customer agrees if there is any change to cost or rates for insurance, duties, exchange rates, labour or any other amounts used to calculate the Price or amounts stated on the Quotation or if those inputs increase in cost then the Customer shall be liable for the increase and such increase forms part of the Price.
    • PTH may require the Customer to pay a non-refundable deposit.
    • Unless stated otherwise, the Price is exclusive of goods and services tax (GST).
    • The Customer agrees that GST at the prevailing rate at the date of invoice will be included in the amount due and payable on the Price and is payable by the Customer in full at the same time as payment of the Price. The Customer must also pay any other taxes, charges, duties or imports that may be applicable in addition to the Price, unless expressly included in the Price.
    • Unless stated otherwise, time for payment is of the essence and will be payable as nominated by PTH, and may be altered or revoked at any time without notice to the Customer, either on or before the delivery of the Services, thirty (30) days following the date of any invoice provided by PTH to the Customer or otherwise as stated on the invoice.
    • Payment must be made by cash, cheque, electronic payment, credit card or by any other payment method nominated by PTH.
    • PTH may charge to the Customer a fee for overdue payments or Customer bank fees imposed on payments including credit card payments.
    • The Customer acknowledges that if PTH supplies the goods and/or service on credit, then any credit provided is to be applied wholly or predominately for business purposes.
    • The grant of any credit facility or nomination of any credit limit is in the absolute discretion of PTH. PTH may vary, withdraw or suspend any credit facility at any time and without any liability to the Customer or any other party.  The Customer agrees that if payment is outstanding to beyond PTH’s payment terms, the amount is immediately due and payable by the Customer and the Customer shall pay cash on delivery on all future Orders until any amount outstanding is paid to PTH.
    • The Customer will be and remain responsible to PTH for any additional charges that may be incurred including, but not limited to, labour to load and unload the vehicle. Unless stated otherwise, cranes to load and unload the goods are not included in the Price.
  • Unpaid Invoices, Interest and Costs
    • If invoices or monies outstanding are not paid in full by the due date for payment, PTH may charge the Customer interest on the unpaid amount to be accrued daily from the date when payment becomes due until the date of payment at the rate of 12 per cent per annum.
    • The Customer is not entitled to set off, deduct or otherwise withhold payment of any amount due and owing to PTH including where the Customer has disputed the invoice or alleged amounts are owed or will become owing by PTH to the Customer.
    • The Customer is liable for all costs and disbursements incurred by PTH or its appointed agents in recovering payment of any outstanding invoice or in enforcing its rights under these Terms, including, but not limited to, legal costs determined on a solicitor/own client basis, mercantile agents’ costs or commission and bank dishonour fees.
  • Risk and Insurance
    • PTH is not a common carrier and will accept no liability as such.
    • All articles are carried or transported and all storage and other services are performed by PTH subject only to these Terms.
    • On or before delivery, the Customer shall insure the Services against loss or damage. The Customer is liable for the insurance and must maintain at its own cost an insurance policy of insurance with a reputable Australian insurer to cover all risks which may reasonably arise.
    • Where the Customer has declared the weight of the goods and PTH has relied upon that declared weight then the Customer shall be responsible for all extra costs and risk incurred by PTH and shall be liable for any loss, damage, or fines incurred by PTH or its Sub-Contractors either directly or indirectly to the provision of the Services.

7       Warranties

7.1    To the extent permitted by law, PTH does not provide any warranty in the goods. The only warranties in relation to the goods are warranties provided by the manufacturer and not PTH and to the extent that the rights in any manufacturer’s warranties are required to be assigned to the Customer, the manufacturer’s warranties are assigned and title of those warranties passes with the goods. PTH is not liable to the extent that any manufacturer is liable under a manufacturer’s warranty, unless required by law.

7.2    PTH expressly denies and excludes any warranties or conditions which would otherwise be implied to the maximum extent possible by law including but not limited to merchantable quality, suitability, fitness of purpose, quality, suitability, or otherwise. PTH acknowledges that these Terms do not exclude any statutory warranties which may be implied pursuant to the Competition and Consumer Act 2010 (Cth).

7.3    The Customer expressly warrants that it is the owner or authorised agent of the owner of any goods subject to the Services provided by PTH.

7.4     The Customer acknowledges and agrees that:

  • the Customer shall rely on its own knowledge and expertise with respect of the purpose of the goods and any advice or assistance given by or on behalf of PTH shall be accepted at the Customer’s risk and shall not be deemed to have been given as an expert or adviser or be otherwise relied on by the Customer; and
  • PTH shall not be liable nor responsible for any failure to comply with any requirements of the Customer or any other person (whether relating to manufacture, design, fabrication, installation and/or any other particulars provided with respect to the intended use of any goods or otherwise) which are not precisely and accurately communicated in writing to PTH prior to agreement for supply of Services.
  1. Release and Indemnity

8.1    The Customer hereby releases and indemnifies and agrees to keep PTH indemnified from any and all costs, damages, liabilities, expenses or losses including indirect, consequential losses (including but not limited to loss of profit), that PTH may incur in relation to the Customer or any third party, where the cost, damage, liability, expense or loss is caused by or contributed to by the goods supplied or services performed, any defect or fault in workmanship or design or their use, a breach of these Terms or for any other reason whatsoever.

  1. Limitation of Liability
    • The Customer agrees, to the fullest extent possible by law, in relation to any cost, damage, liability, expense or loss (including those contributed or cause by PTH’s negligence or breach of any condition or warranty), if the Customer is not a consumer pursuant to the Competition and Consumer Act 2010 (Cth), to limit any claim made to PTH, in PTH’s absolute discretion to: the value of any express warranty provided by PTH to the Customer or any warranty to which the Customer is entitled; replacement of the goods or services and/or the supply of equivalent goods;  repair of the goods; repay the purchase price in the event that then payment has been received from the Customer; or payment of the cost of replacing, repairing or acquiring equivalent goods. In no circumstances shall PTH be liable for any amount in excess of the Price.
    • If PTH is required to replace the goods or remedy the services pursuant to the Competition and Consumer Act 2010 (Cth) but cannot do so for any reason whatsoever, PTH may refund the Price, if the Price has been paid by the Customer.
    • The Customer specifically agrees that PTH is not responsible for any damages caused either to the goods supplied or as a result of the malfunction of the goods in the event that such goods are in any way adapted to a use to which are they are not specifically intended or the goods have added to or have been added to components or placed in a container which is not recommended or approved by the manufacturer or supplier of the goods.
    • PTH shall not be liable for any damages for personal injury or death, any damage to property and/or any contingent, consequential, direct, indirect, special or punitive damages whether due to negligent act or omission of PTH or its employees or agents or otherwise and the Customer acknowledges this limitation of liability and agrees to limit any claim accordingly.
    • No other term, condition, agreement, warranty, representation and/or understanding whether express or implied, in any extending to, otherwise relating to or binding upon PTH other than these Terms is made or given by or on behalf of PTH.

9.6    Notwithstanding anything in this clause 9, a Customer shall not be entitled to make any claim upon PTH whatsoever if any amounts are outstanding from the Customer to PTH.

  1. Security

10.1  In order to secure the performance by the Customer of its obligations, the Customer, and where the Customer is unincorporated each proprietor of the Customer, hereby charges with payment of the moneys and compliance with all obligations owed by the Customer to PTH all beneficial interests (freehold and leasehold) in real and personal property held now or in the future by the Customer or proprietor.

10.2  The Customer, and where applicable, each proprietor agrees that if demand is made upon it, him or her by PTH, the Customer or, if applicable, that proprietor will immediately execute a consent to caveat, or a caveat or mortgage, as required by PTH to secure the obligations pursuant to this clause 10.  The Customer or, if applicable, each proprietor, irrevocably and by way of security appoints PTH and any director, credit manager or solicitor engaged by PTH to be its, his or her true and lawful attorney to give effect to this clause 10 including but not limited to execute and register all documents.

10.3  The Customer indemnifies PTH in relation to all of its costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising PTH’s right pursuant to this clause 10.

  1. PPSA

11.1  Defined terms in this clause 11 have the same meaning as given to them in the Personal Property Securities Act 2009 (Cth) (“PPSR”).

11.2  PTH and the Customer acknowledge that this agreement constitutes a Security Agreement and constitutes a Purchase Money Security Interest (PMSI) in favour of PTH over the goods supplied or to be supplied to the Customer, as Grantor, pursuant to these Terms.

11.3  PTH and the Customer acknowledge that PTH, as Secured Party, is entitled to register its interest in the goods supplied or to be supplied to Customer, as Grantor, under this agreement on the Personal Properties Securities Register as collateral by registering a financing statement or financing change statement.

11.4  The Customer expressly waives its right to receive notification of or a copy of any verification statement with respect to the registration of a financing statement or a financing change statement relating to a security interest granted by the Customer to PTH.

11.5  The Customer agrees to indemnify PTH on demand for all costs and expenses, including legal costs and expenses on a solicitor and client basis, associated with the registration, amendment or discharge of any financing statement registered by or on behalf of PTH or the enforcement or attempted enforcement of any security interest granted to PTH by the Customer.

11.6  If the Customer is in default of its obligations and PTH takes possession of any goods pursuant to its security interest, the Customer remains liable for the difference between the market value of the goods at the time they are sold by PTH and the among of the Customer’s obligations for which it is in default.

11.7  The Customer agrees and undertakes to immediately notify PTH of any change to its name, address or personal details and authorises PTH to register a financing change statement without prior consent of the Customer.

11.8  The Customer agrees and undertakes not to agree, encourage or in any way allow another person or entity to register a financing statement without the prior written consent of PTH and the Customer shall provide written notice to PTH upon becoming aware that of any other person or entity are taking steps to register a security interest with respect to the Customer.

11.9  The Customer agrees that to the maximum extent permitted by law, sections 130, 142 and 143 of the PPSA will not apply.

11.10 The Customer agrees, to the extent possible under law permitted by law to waive the following rights under the PPSA: receipt of a verification statement pursuant to section 157 and a statement of account where there is no disposal pursuant to section 130(4) or pursuant to section 132 where there is a disposal;  to recover any proceeds pursuant to section 140; to object to the purchase of the collateral by the secured party pursuant to section 129; to receive notice of an intention to seize collateral pursuant to section 123;  to receive notice of disposal of collateral pursuant to section 130;  to receive notice of retention of Collateral pursuant to section 134 or to object to that notice pursuant to section 137;  to redeem Collateral pursuant to section 142;  to reinstate a security agreement pursuant to section 143;  to receive a notice of removal of accession under section 95; and any other right in favour of the Customer that can be lawfully contracted out of pursuant to section 115 of the PPSA which shall not apply to these Terms or any security.

  1. Statement of Debt

12.1  A certificate signed by a director, secretary, financial controller, credit manager or any other authorised person of PTH shall be prima facie evidence of the indebtedness of the Customer to PTH.

  1. Privacy and Credit Information

13.1 The Customer irrevocably authorises PTH to make enquiries, exchange, collect and use a Customer’s personal information including credit information and information relating to property, business or other solvency matter from time to time as PTH may deem necessary which may include enquiries with persons nominated as trade references, financiers , any other credit provider, credit reporting bodies, any government department and/or any similar or other organisation (Information Provider) for the following purposes:

(a)  obtaining information on the credit position of the Customer;

(b)  investigating the credit worthiness of the Customer in relation to the credit to be provided by PTH; marketing purposes (unless the Customer has notified PTH it wishes to opt out of direct marketing);

(c)   to allow PTH to provide a credit facility for the supply of Services to the Customer; to notify the credit provider of a default by the Customer;

(d)  and to a credit reporting body to obtain a credit report or to permit a credit reporting body to maintain or update the Customer’s credit file.

13.2  The Customer acknowledges that the information exchanged under clause 13.1 may include any information in relation to the Customer’s creditworthiness or credit history.

13.3  The Customer consent and irrevocably authorises the Information Provider to disclose any information about the Customer in their possession to PTH; PTH may use any information which it holds for the purposes listed in clause 13.1; and may disclose any of the Customers’ personal information to any interested person (including overseas third parties) for any purpose listed in clause 13.1, to the extent permitted by the Privacy Act 1988 (Cth) and the Australian National Privacy Principles (if applicable).

13.4  To the maximum extent permitted by law, the Customer agrees (unless the Customer otherwise withdraws consent), to waive all rights under the Privacy Act 1988 (Cth).

  1. Default

14.1  Without prejudice to any other remedies available to PTH, if the Customer becomes insolvent or appoints an administrator, receiver, receiver and manager, liquidator or trustee in bankruptcy or is in breach of any these Terms (including any term for payment), all monies become immediately due and owing to PTH and PTH may immediately:

(a) terminate or suspend supply of Services;

(b) retain all monies paid and/or take immediate possession of goods which have not been paid for;

(c) cease all future deliveries;

(d) cancel all or any part of any order unfilled; and/or

(e) recover from the Customer any loss of profits arising from the Customer’s default.

14.2  If PTH exercises its rights pursuant to clause 14.1, it is not liable to the Customer for any consequential loss or damages suffered by the Customer.

14.3  If the Customer fails to pay the Price, PTH may detain and sell any goods of the Customer which are in its possession.  Moneys from the sale will be applied to the costs of the sale, payment of the Price, and any surplus shall be returned to the Customer.

  1. Customer Restructure

15.1  The Customer shall provide written notice to PTH of any change to its structure or management including change of director, shareholder, partnership, trusteeship or management or its details (including changes to its name or address). If the Customer fails to comply then the Customer agrees to indemnity PTH from any resulting loss.

  1. Miscellaneous

16.1  Force Majeure. PTH shall not be or be deemed to be in default or breach of any agreement as a result of force majeure. Force Majeure shall include national emergency, war, prohibitive government regulations or any cause beyond the reasonable control of PTH including trade disputes which means that the Services cannot or are delayed in being provided by PTH to the Customer.

16.2  Notices.  A notice, demand, waiver, approval or other document given pursuant to these Terms must be in writing and may be given to the recipient by way of personal service, prepaid post, facsimile transmission or email transmission at the address of the party as provided from time to time.

16.3  Severance.  If any provision or part of a provision of these Terms cannot be given effect or is declared void for any reason, the provision or part which cannot be given effect shall be severed and the remaining provisions shall remain valid, binding and enforceable on the parties.

16.4  Waiver. No rights under these Terms will be waived unless agreed in writing and signed by PTH.  PTH does not waive a right if an extension or other forbearance is given to the Customer. No waiver of a provision of these Terms shall be construed as a continuing waiver of the provision.  A waiver by PTH of any matter does not prejudice its rights in respect of any matter.  Any non-exercise or partial exercise of or any delay in exercising any right or remedy does not constitute a waiver of that right or remedy.

16.5  Variation.  All Services sold by PTH are sold and supplied on these Terms, as amended from time to time by PTH in its absolute discretion or otherwise agreed by PTH in writing.  The Customer agrees it is deemed to have notice of change to these terms and be bound by such variations as they appear on PTH’s website from time to time, whether or not the Customer has actual notice of any such variation.

16.6  Assignment.  The Customer is not entitled to assign the benefits or obligations under this agreement to any entity without PTH’s prior written consent, which may be given in PTH’s absolute discretion. PTH may assign all or any part of the benefits and obligations under this agreement without the requirement for the Customer’s consent.

16.7  Jurisdiction.  The provisions of these Terms and any agreement for supply of goods and service between PTH and the Customer shall be governed by the laws of the state of Queensland each party irrevocably submits to the non-exclusive jurisdiction of the courts of the said state.

16.8  Entire Agreement.  These Terms supersede all previous agreements, discussions and representations between PTH and the Customer and constitute the entire agreement in relation to the agreement for provision of Services between PTH and the Customer.  All prior correspondence, negotiations or representations do not bind either party and either party is not entitled to rely upon them.

16.9  Counterparts.  This agreement may be signed in any number of counterparts and each counterpart shall together constitute one agreement. This agreement may be executed and delivered by facsimile, electronically or by way of electronic signature and the receiving party may rely upon same as if it was an original document or signature.

  1. Interpretation and Construction

Definitions

In these Terms of Trade, unless the context requires otherwise, the following words have the following meanings:

Customer means any person, organisation, or other entity that has requested the supply of Services from PTH as stated on any order, invoice or document;

Order means any order made by the Customer from PTH for the supply of Services;

Quotation means any quotation issued by PTH to the Customer for the supply of Services;

PTH means Tenista Pty Ltd trading as Peter Tippett Haulage (ABN 58 010 574 106)

Price means the price payable for the supply of Services in accordance with clause 4;

Services means any services to be rendered by PTH to the Customer, at the Customer’s request;

Sub-Contractor means any party engaged by PTH to perform the Services and includes the railways (operated by the Commonwealth or any State); and

Terms means these terms of trade which apply to any supply of Services by PTH to the Customer.

  • Construction

(a)    a reference to these terms or another agreement between the parties includes any variation or replacement;

(b)    a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

(c)    the singular includes the plural and vice versa;

(d)    the masculine includes the feminine and neuter and vice versa;

(e)    a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes, employees, agents and permitted assigns;

(f)     an obligation, agreement, representation or warranty on the part of or in favour of two or more persons binds, and/or is for the benefit of them jointly and severally;

(g)    a reference to anything is a reference to the whole or any part of it; and

(h)    references to parties or clauses are, unless otherwise stated, references to the parties and clauses contained in these Terms.

  1. Supply of Services
    • PTH may issue a Quotation upon the Customer’s request or otherwise accept an Order for the supply of Services from the Customer.
    • Any Quotation issued by PTH remains open for acceptance from the time stated on the Quotation or otherwise for seven (7) days unless withdrawn earlier. All Quotations are estimates only and are subject to withdrawal, correction or alteration at any time prior to PTH’s acceptance of the Customer’s request. All amounts and prices stated on the Quotation are as at the date of the Quotation.
    • An Order shall identify the Services to be provided and refer to any Quotation pursuant to which the Order is made.
    • PTH may provide and the Customer must accept the services which vary from the Services ordered by the Customer so long as such variations are not material. Any variation of an Order requested by the Customer is only accepted if PTH agrees in writing.
    • PTH may cancel or terminate any Order at any time without cause, in PTH’s absolute discretion and in that event, PTH shall repay the Customer any money paid by the Customer and PTH is not liable for any loss or damages in any respect arising from any cancellation.
    • PTH reserves the right, whether or not an Order has been accepted and without notice to the Customer to withhold supply to the Customer and will not be liable for loss or damage resulting directly or indirectly from such action, including if the services cannot be rendered for any reason whatsoever, if the Customer is in default of these Terms or if PTH has determined in its absolute discretion that credit should no longer be extended to the Customer.
    • The Customer shall not tender for Services of any explosive, inflammable, or otherwise dangerous or damaging goods.
    • If the Customer cancels and Order, the Customer remains liable and shall indemnify and keep indemnified PTH for any and all loss is suffered (whether direct or indirect) by PTH as a direct result of the cancellation (including but not limited to loss of profits).
    • The Customer authorises PTH to arrange with a Sub-Contractor for the provision of the Services. Any such arrangement shall be deemed ratified by the Customer upon delivery of the goods to the Sub-Contractor who shall thereupon be entitled to the benefit of these Terms to the same extent as PTH.
    • If the Customer instructs PTH to use a particular method of carriage (by way of example only, road, rail, sea, or air), PTH will give priority to that method, however, if that method is deemed impractical at the sole discretion of PTH, PTH shall be authorised to use the method any method it deems fit.
  2. Acceptance
    • The Customer warrants that it has the power to enter into this agreement, is solvent and able to pay its debts as and when they fall due, and this agreement creates a binding and legal obligation and all information provided to PTH by the Customer is true and correct in all material respects.
    • The Customer acknowledges these Terms apply to any Quotation or Order or other supply of Services and the Customer accepts the Terms without amendment and agrees to be bound by them.
    • The Customer agrees that the Terms apply over any other document or agreement to the extent of any inconsistency.
    • If the Customer is the trustee of a trust, then in addition to that entity the trustee agrees to bind all trusts of which the entity is a trustee from time to time.
  3. Payment, Credit and Price
    • The Price is the price determined by PTH, in its absolute discretion, the price in accordance with the Quotation, the price on any invoices rendered by PTH or the Price as at the date of supply in accordance with PTH’s current price list. The Customer agrees if there is any change to cost or rates for insurance, duties, exchange rates, labour or any other amounts used to calculate the Price or amounts stated on the Quotation or if those inputs increase in cost then the Customer shall be liable for the increase and such increase forms part of the Price.
    • PTH may require the Customer to pay a non-refundable deposit.
    • Unless stated otherwise, the Price is exclusive of goods and services tax (GST).
    • The Customer agrees that GST at the prevailing rate at the date of invoice will be included in the amount due and payable on the Price and is payable by the Customer in full at the same time as payment of the Price. The Customer must also pay any other taxes, charges, duties or imports that may be applicable in addition to the Price, unless expressly included in the Price.
    • Unless stated otherwise, time for payment is of the essence and will be payable as nominated by PTH, and may be altered or revoked at any time without notice to the Customer, either on or before the delivery of the Services, thirty (30) days following the date of any invoice provided by PTH to the Customer or otherwise as stated on the invoice.
    • Payment must be made by cash, cheque, electronic payment, credit card or by any other payment method nominated by PTH.
    • PTH may charge to the Customer a fee for overdue payments or Customer bank fees imposed on payments including credit card payments.
    • The Customer acknowledges that if PTH supplies the goods and/or service on credit, then any credit provided is to be applied wholly or predominately for business purposes.
    • The grant of any credit facility or nomination of any credit limit is in the absolute discretion of PTH. PTH may vary, withdraw or suspend any credit facility at any time and without any liability to the Customer or any other party.  The Customer agrees that if payment is outstanding to beyond PTH’s payment terms, the amount is immediately due and payable by the Customer and the Customer shall pay cash on delivery on all future Orders until any amount outstanding is paid to PTH.
    • The Customer will be and remain responsible to PTH for any additional charges that may be incurred including, but not limited to, labour to load and unload the vehicle. Unless stated otherwise, cranes to load and unload the goods are not included in the Price.
  • Unpaid Invoices, Interest and Costs
    • If invoices or monies outstanding are not paid in full by the due date for payment, PTH may charge the Customer interest on the unpaid amount to be accrued daily from the date when payment becomes due until the date of payment at the rate of 12 per cent per annum.
    • The Customer is not entitled to set off, deduct or otherwise withhold payment of any amount due and owing to PTH including where the Customer has disputed the invoice or alleged amounts are owed or will become owing by PTH to the Customer.
    • The Customer is liable for all costs and disbursements incurred by PTH or its appointed agents in recovering payment of any outstanding invoice or in enforcing its rights under these Terms, including, but not limited to, legal costs determined on a solicitor/own client basis, mercantile agents’ costs or commission and bank dishonour fees.
  • Risk and Insurance
    • PTH is not a common carrier and will accept no liability as such.
    • All articles are carried or transported and all storage and other services are performed by PTH subject only to these Terms.
    • On or before delivery, the Customer shall insure the Services against loss or damage. The Customer is liable for the insurance and must maintain at its own cost an insurance policy of insurance with a reputable Australian insurer to cover all risks which may reasonably arise.
    • Where the Customer has declared the weight of the goods and PTH has relied upon that declared weight then the Customer shall be responsible for all extra costs and risk incurred by PTH and shall be liable for any loss, damage, or fines incurred by PTH or its Sub-Contractors either directly or indirectly to the provision of the Services.

7       Warranties

7.1    To the extent permitted by law, PTH does not provide any warranty in the goods. The only warranties in relation to the goods are warranties provided by the manufacturer and not PTH and to the extent that the rights in any manufacturer’s warranties are required to be assigned to the Customer, the manufacturer’s warranties are assigned and title of those warranties passes with the goods. PTH is not liable to the extent that any manufacturer is liable under a manufacturer’s warranty, unless required by law.

7.2    PTH expressly denies and excludes any warranties or conditions which would otherwise be implied to the maximum extent possible by law including but not limited to merchantable quality, suitability, fitness of purpose, quality, suitability, or otherwise. PTH acknowledges that these Terms do not exclude any statutory warranties which may be implied pursuant to the Competition and Consumer Act 2010 (Cth).

7.3    The Customer expressly warrants that it is the owner or authorised agent of the owner of any goods subject to the Services provided by PTH.

7.4     The Customer acknowledges and agrees that:

  • the Customer shall rely on its own knowledge and expertise with respect of the purpose of the goods and any advice or assistance given by or on behalf of PTH shall be accepted at the Customer’s risk and shall not be deemed to have been given as an expert or adviser or be otherwise relied on by the Customer; and
  • PTH shall not be liable nor responsible for any failure to comply with any requirements of the Customer or any other person (whether relating to manufacture, design, fabrication, installation and/or any other particulars provided with respect to the intended use of any goods or otherwise) which are not precisely and accurately communicated in writing to PTH prior to agreement for supply of Services.
  1. Release and Indemnity

8.1    The Customer hereby releases and indemnifies and agrees to keep PTH indemnified from any and all costs, damages, liabilities, expenses or losses including indirect, consequential losses (including but not limited to loss of profit), that PTH may incur in relation to the Customer or any third party, where the cost, damage, liability, expense or loss is caused by or contributed to by the goods supplied or services performed, any defect or fault in workmanship or design or their use, a breach of these Terms or for any other reason whatsoever.

  1. Limitation of Liability
    • The Customer agrees, to the fullest extent possible by law, in relation to any cost, damage, liability, expense or loss (including those contributed or cause by PTH’s negligence or breach of any condition or warranty), if the Customer is not a consumer pursuant to the Competition and Consumer Act 2010 (Cth), to limit any claim made to PTH, in PTH’s absolute discretion to: the value of any express warranty provided by PTH to the Customer or any warranty to which the Customer is entitled; replacement of the goods or services and/or the supply of equivalent goods;  repair of the goods; repay the purchase price in the event that then payment has been received from the Customer; or payment of the cost of replacing, repairing or acquiring equivalent goods. In no circumstances shall PTH be liable for any amount in excess of the Price.
    • If PTH is required to replace the goods or remedy the services pursuant to the Competition and Consumer Act 2010 (Cth) but cannot do so for any reason whatsoever, PTH may refund the Price, if the Price has been paid by the Customer.
    • The Customer specifically agrees that PTH is not responsible for any damages caused either to the goods supplied or as a result of the malfunction of the goods in the event that such goods are in any way adapted to a use to which are they are not specifically intended or the goods have added to or have been added to components or placed in a container which is not recommended or approved by the manufacturer or supplier of the goods.
    • PTH shall not be liable for any damages for personal injury or death, any damage to property and/or any contingent, consequential, direct, indirect, special or punitive damages whether due to negligent act or omission of PTH or its employees or agents or otherwise and the Customer acknowledges this limitation of liability and agrees to limit any claim accordingly.
    • No other term, condition, agreement, warranty, representation and/or understanding whether express or implied, in any extending to, otherwise relating to or binding upon PTH other than these Terms is made or given by or on behalf of PTH.

9.6    Notwithstanding anything in this clause 9, a Customer shall not be entitled to make any claim upon PTH whatsoever if any amounts are outstanding from the Customer to PTH.

  1. Security

10.1  In order to secure the performance by the Customer of its obligations, the Customer, and where the Customer is unincorporated each proprietor of the Customer, hereby charges with payment of the moneys and compliance with all obligations owed by the Customer to PTH all beneficial interests (freehold and leasehold) in real and personal property held now or in the future by the Customer or proprietor.

10.2  The Customer, and where applicable, each proprietor agrees that if demand is made upon it, him or her by PTH, the Customer or, if applicable, that proprietor will immediately execute a consent to caveat, or a caveat or mortgage, as required by PTH to secure the obligations pursuant to this clause 10.  The Customer or, if applicable, each proprietor, irrevocably and by way of security appoints PTH and any director, credit manager or solicitor engaged by PTH to be its, his or her true and lawful attorney to give effect to this clause 10 including but not limited to execute and register all documents.

10.3  The Customer indemnifies PTH in relation to all of its costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising PTH’s right pursuant to this clause 10.

  1. PPSA

11.1  Defined terms in this clause 11 have the same meaning as given to them in the Personal Property Securities Act 2009 (Cth) (“PPSR”).

11.2  PTH and the Customer acknowledge that this agreement constitutes a Security Agreement and constitutes a Purchase Money Security Interest (PMSI) in favour of PTH over the goods supplied or to be supplied to the Customer, as Grantor, pursuant to these Terms.

11.3  PTH and the Customer acknowledge that PTH, as Secured Party, is entitled to register its interest in the goods supplied or to be supplied to Customer, as Grantor, under this agreement on the Personal Properties Securities Register as collateral by registering a financing statement or financing change statement.

11.4  The Customer expressly waives its right to receive notification of or a copy of any verification statement with respect to the registration of a financing statement or a financing change statement relating to a security interest granted by the Customer to PTH.

11.5  The Customer agrees to indemnify PTH on demand for all costs and expenses, including legal costs and expenses on a solicitor and client basis, associated with the registration, amendment or discharge of any financing statement registered by or on behalf of PTH or the enforcement or attempted enforcement of any security interest granted to PTH by the Customer.

11.6  If the Customer is in default of its obligations and PTH takes possession of any goods pursuant to its security interest, the Customer remains liable for the difference between the market value of the goods at the time they are sold by PTH and the among of the Customer’s obligations for which it is in default.

11.7  The Customer agrees and undertakes to immediately notify PTH of any change to its name, address or personal details and authorises PTH to register a financing change statement without prior consent of the Customer.

11.8  The Customer agrees and undertakes not to agree, encourage or in any way allow another person or entity to register a financing statement without the prior written consent of PTH and the Customer shall provide written notice to PTH upon becoming aware that of any other person or entity are taking steps to register a security interest with respect to the Customer.

11.9  The Customer agrees that to the maximum extent permitted by law, sections 130, 142 and 143 of the PPSA will not apply.

11.10 The Customer agrees, to the extent possible under law permitted by law to waive the following rights under the PPSA: receipt of a verification statement pursuant to section 157 and a statement of account where there is no disposal pursuant to section 130(4) or pursuant to section 132 where there is a disposal;  to recover any proceeds pursuant to section 140; to object to the purchase of the collateral by the secured party pursuant to section 129; to receive notice of an intention to seize collateral pursuant to section 123;  to receive notice of disposal of collateral pursuant to section 130;  to receive notice of retention of Collateral pursuant to section 134 or to object to that notice pursuant to section 137;  to redeem Collateral pursuant to section 142;  to reinstate a security agreement pursuant to section 143;  to receive a notice of removal of accession under section 95; and any other right in favour of the Customer that can be lawfully contracted out of pursuant to section 115 of the PPSA which shall not apply to these Terms or any security.

  1. Statement of Debt

12.1  A certificate signed by a director, secretary, financial controller, credit manager or any other authorised person of PTH shall be prima facie evidence of the indebtedness of the Customer to PTH.

  1. Privacy and Credit Information

13.1 The Customer irrevocably authorises PTH to make enquiries, exchange, collect and use a Customer’s personal information including credit information and information relating to property, business or other solvency matter from time to time as PTH may deem necessary which may include enquiries with persons nominated as trade references, financiers , any other credit provider, credit reporting bodies, any government department and/or any similar or other organisation (Information Provider) for the following purposes:

(a)  obtaining information on the credit position of the Customer;

(b)  investigating the credit worthiness of the Customer in relation to the credit to be provided by PTH; marketing purposes (unless the Customer has notified PTH it wishes to opt out of direct marketing);

(c)   to allow PTH to provide a credit facility for the supply of Services to the Customer; to notify the credit provider of a default by the Customer;

(d)  and to a credit reporting body to obtain a credit report or to permit a credit reporting body to maintain or update the Customer’s credit file.

13.2  The Customer acknowledges that the information exchanged under clause 13.1 may include any information in relation to the Customer’s creditworthiness or credit history.

13.3  The Customer consent and irrevocably authorises the Information Provider to disclose any information about the Customer in their possession to PTH; PTH may use any information which it holds for the purposes listed in clause 13.1; and may disclose any of the Customers’ personal information to any interested person (including overseas third parties) for any purpose listed in clause 13.1, to the extent permitted by the Privacy Act 1988 (Cth) and the Australian National Privacy Principles (if applicable).

13.4  To the maximum extent permitted by law, the Customer agrees (unless the Customer otherwise withdraws consent), to waive all rights under the Privacy Act 1988 (Cth).

  1. Default

14.1  Without prejudice to any other remedies available to PTH, if the Customer becomes insolvent or appoints an administrator, receiver, receiver and manager, liquidator or trustee in bankruptcy or is in breach of any these Terms (including any term for payment), all monies become immediately due and owing to PTH and PTH may immediately:

(a) terminate or suspend supply of Services;

(b) retain all monies paid and/or take immediate possession of goods which have not been paid for;

(c) cease all future deliveries;

(d) cancel all or any part of any order unfilled; and/or

(e) recover from the Customer any loss of profits arising from the Customer’s default.

14.2  If PTH exercises its rights pursuant to clause 14.1, it is not liable to the Customer for any consequential loss or damages suffered by the Customer.

14.3  If the Customer fails to pay the Price, PTH may detain and sell any goods of the Customer which are in its possession.  Moneys from the sale will be applied to the costs of the sale, payment of the Price, and any surplus shall be returned to the Customer.

  1. Customer Restructure

15.1  The Customer shall provide written notice to PTH of any change to its structure or management including change of director, shareholder, partnership, trusteeship or management or its details (including changes to its name or address). If the Customer fails to comply then the Customer agrees to indemnity PTH from any resulting loss.

  1. Miscellaneous

16.1  Force Majeure. PTH shall not be or be deemed to be in default or breach of any agreement as a result of force majeure. Force Majeure shall include national emergency, war, prohibitive government regulations or any cause beyond the reasonable control of PTH including trade disputes which means that the Services cannot or are delayed in being provided by PTH to the Customer.

16.2  Notices.  A notice, demand, waiver, approval or other document given pursuant to these Terms must be in writing and may be given to the recipient by way of personal service, prepaid post, facsimile transmission or email transmission at the address of the party as provided from time to time.

16.3  Severance.  If any provision or part of a provision of these Terms cannot be given effect or is declared void for any reason, the provision or part which cannot be given effect shall be severed and the remaining provisions shall remain valid, binding and enforceable on the parties.

16.4  Waiver. No rights under these Terms will be waived unless agreed in writing and signed by PTH.  PTH does not waive a right if an extension or other forbearance is given to the Customer. No waiver of a provision of these Terms shall be construed as a continuing waiver of the provision.  A waiver by PTH of any matter does not prejudice its rights in respect of any matter.  Any non-exercise or partial exercise of or any delay in exercising any right or remedy does not constitute a waiver of that right or remedy.

16.5  Variation.  All Services sold by PTH are sold and supplied on these Terms, as amended from time to time by PTH in its absolute discretion or otherwise agreed by PTH in writing.  The Customer agrees it is deemed to have notice of change to these terms and be bound by such variations as they appear on PTH’s website from time to time, whether or not the Customer has actual notice of any such variation.

16.6  Assignment.  The Customer is not entitled to assign the benefits or obligations under this agreement to any entity without PTH’s prior written consent, which may be given in PTH’s absolute discretion. PTH may assign all or any part of the benefits and obligations under this agreement without the requirement for the Customer’s consent.

16.7  Jurisdiction.  The provisions of these Terms and any agreement for supply of goods and service between PTH and the Customer shall be governed by the laws of the state of Queensland each party irrevocably submits to the non-exclusive jurisdiction of the courts of the said state.

16.8  Entire Agreement.  These Terms supersede all previous agreements, discussions and representations between PTH and the Customer and constitute the entire agreement in relation to the agreement for provision of Services between PTH and the Customer.  All prior correspondence, negotiations or representations do not bind either party and either party is not entitled to rely upon them.

16.9  Counterparts.  This agreement may be signed in any number of counterparts and each counterpart shall together constitute one agreement. This agreement may be executed and delivered by facsimile, electronically or by way of electronic signature and the receiving party may rely upon same as if it was an original document or signature.