Terms and Conditions
These Terms and Conditions (Terms), as amended or replaced from time to time, apply to any goods or services supplied or to be supplied to the Customer, or any third person on the Customer’s behalf. A reference to the Customer also includes its respective successors or permitted assigns. The singular includes the plural and the converse. If the Customer constitutes more than one person or entity, the Terms bind each of them jointly and severally. A reference to the Supplier refers to any Bulbeck Group business entity. Please read the undermentioned Terms carefully. If you do not understand these Terms you should seek legal advice.
1. PAYMENT.
a. The Customer must pay the invoiced amount within 30 days from the end of the month of the Invoice date. Credit Card payments will attract a fee.
b. These Payment Terms DO NOT apply for special orders for which upfront deposit payments are required (see Clause 21) or for large value orders that exceed the approved credit limit.
c. The Customer hereby agrees & acknowledges that at the absolute discretion of the Supplier, an account keeping fee of 2% per month will be levied on any or all amounts in default of the agreed trading Terms.
2. COLLECTION COSTS. The Customer agrees to indemnify the Supplier for any costs incurred in the event that the Customer’s account is in default of the agreed trading Terms including its collection fees & legal costs.
3. WITHDRAWAL OF CREDIT FACILITIES. The Supplier may withdraw credit facilities to the Customer at any time without notice. Without limiting the Suppliers rights to withdraw credit, the Supplier reserves the right to stop supply & place the account on hold until the account is returned to the agreed trading Terms, and the Supplier agrees to recommence supply.
4. CHANGE OF CUSTOMER DETAILS. The Customer will advise the Supplier in writing if it changes its name, its structure, its officers or management, its registered office, becomes a trustee of any trust or if the constitution of any partnership of which it is a member changes. For credit accounts, until a new credit application form is signed and approved in writing by the Supplier, then the original application and those person(s) who signed as guarantor(s) shall remain liable to the Supplier as though all goods and services were supplied to the original Customer.
5. INCONSISTENCIES. These Terms apply to all transactions from which the Customer is supplied goods & or services. If any future contract between the Supplier & the Customer is inconsistent with these Terms, then these Terms will apply unless the subsequent contract refers to and specifically alters these Terms in writing.
6. AMENDMENT OF TERMS AND CONDITIONS. The Supplier reserves the right to amend these trading Terms from time to time. Such amendments will be updated on our Website www.. Unless agreed in writing by the Supplier, the Customers terms and conditions do not apply to any goods or services provided by the Supplier. The Customer acknowledges that there is a cost associated with such amendments and unless negotiated that the price quoted does not include these costs. A separate quote can be provided upon request for additional terms and conditions requested by the Customer only for those terms and conditions that the Supplier is prepared to accept at the Suppliers sole discretion.
7. NOTICES. Any notice required under these Terms may be given by any party, including any director or authorised person of that party. Any notice may be given at that party’s registered address or other address in any application in connection with these Terms or as notified in writing for the purposes of this clause. Without limitation, this includes any electronic address notified to the other party.
8. ELECTRONIC COMMUNICATION. The Customer agrees that if a Customer’s signature or execution is required, the requirement is taken to have been met by an electronic communication and if the Supplier is required to produce a document that is in the form of paper, the requirement is taken to have been met by an electronic communication.
9. ASSIGNMENT. The Supplier shall be entitled at any time to assign its rights under the credit application to its successors, nominated transferees or assigns, (including but not limited to, where applicable personal guarantees), and that these Terms of Trade shall not be in any way affected or discharged pursuant to such assignment.
10. RISK AND TITLE. Risk in any goods passes to the Customer on delivery. Title remains with the Supplier until the Customer has paid the Supplier for all goods supplied in full and in cleared funds. Until title passes to the Customer, the Customer will hold them on trust and as bailee for the Supplier. Should the goods be onsold to a third party before payment, or in the event of the Appointment of an Administrator, Controller, Managing Controller, Receiver or Receiver Manager, or entry into an Informal/Formal Deed of Arrangement under the Bankruptcy Act of 1966 by the Customer, then the Customer hereby assigns to the Supplier its right of recovery of payment from the third party. Any money(ies) resulting from the sale of the goods are to be specifically earmarked and placed in a separate account on trust for the Supplier, until payment in full is made to the Supplier for the cost of the goods only, to guarantee clear passage of ownership to the third party innocent purchaser. In the event the Customer is in default of the agreed trading Terms, then the Customer without reservation grants right of entry waiver to any or all properties under the customers control, where the goods are reasonably expected to be stored. The Customer indemnifies and save harmless the Supplier, its servants or agents in relation to loss or damage as a result of the retaking of possession of the said goods. Further in the event the Supplier exercises its right of retaking possession of the said goods, the Customer grants power of sale to the Supplier to resell the said goods and the Customer acknowledges that any shortfall owing after the said goods are resold will be the responsibility of the Customer. Notwithstanding any other provision of this Agreement, it is expressly agreed by the Customer that the Supplier may sue for the price of all goods delivered to the Customer or for damages in Breach of Contract, notwithstanding that ownership in those goods has not been passed to the Customer.
11. DELIVERY. Deliveries shall be made during normal working hours. Deliveries required outside normal working hours will be delivered upon the request of the Customer, and all charges will be the sole responsibility of the Customer. In the event the Customer or the customer’s Agent is not on site to accept the delivery, then the Suppliers delivery records shall be prima facie proof of delivery of the goods to the Customer in good order and condition, in the quantities ordered and receipt thereof, at time of delivery.
12. FORCE MAJEURE. The date of delivery set forth in the order form is made in good faith, but the performance of the Supplier’s engagement is subject to industrial disturbances, delay in transit, damage to goods in transit, shortage of goods and any other cause beyond the reasonable control of the Supplier. The Supplier shall be excused from any failure to deliver or complete which is contributed to by any such cause and the time specified for completion of delivery shall be extended commensurately. Delay in delivery or completion shall not constitute a breach of contract, nor shall it affect any other provisions of the contract to the Supplier’s disadvantage.
13. PPSR. The Supplier reserves the right to register any security interest provided by the Customer (“the grantor”) which creates a performance obligation to secure payment owed by the Customer to the Supplier pursuant to the Personal Property and Securities Act 2009.
14. STATEMENTS. Statements as to suitability, quality, fitness for purpose, capacity or otherwise contained in any drawing, catalogue or specification or other documents issued by the Supplier shall not be regarded as forming part of the agreement resulting from acceptance of any orders unless specifically stated in writing by the Supplier. The Customer warrants that prior to the constitution of this agreement the Customer was satisfied by means other than information given by or received from the Supplier, as to the quality and fitness of the goods ordered.
15. TIME. For the purposes of any payment obligation under these Terms, time is of the essence.
16. ACCESS TO SITE. The Customer at all times is responsible to ensure suitable access to site. The Customer further indemnifies and saves harmless the Supplier, and or it’s servants or agents against any loss or damage, in the event the Customer fails to provide suitable access to site for delivery, and or whilst on site delivering.
17. PRICE. All goods and services are sold at the price current at the time of delivery. The price of the goods are at the Suppliers works. Costs and charges for freight and handling at the point of delivery to the Customer or the Customer’s agent are payable by the Customer unless otherwise stated on the quote/order form. All quotes remain current for 14 days only from date of quote or as otherwise stated on the quotation. NOTE: Pricing may vary from time to time subject to exchange rate variations and/or material increases outside the control of the Supplier.
18. FINANCIAL INFORMATION. The Customer agrees to provide financial information as is reasonably required by the Supplier from time to time, for the assessment of current and future credit limits only for trading accounts. The Supplier and the Customer further agree that such information shall be treated as strictly confidential and will not be disclosed to any third party(ies) without the express written permission of the Customer.
19. CREDIT CLAIMS. It is the responsibility of the Customer to carefully inspect the goods immediately when they are delivered. Credit Claims will only be recognised if made in the first instance by phone within 72 hours of receipt, and also in writing within 7 days of delivery. Claims outside this period will be at the absolute discretion of the Supplier, and its decision final and binding on the Customer. All goods returned must be in original condition and packaging and complete in every detail. Returned goods will only be accepted if the freight is prepaid by the Customer.
20. RETURN OF, OR CANCELLATION OF GOODS ORDERED. Subject to clause 21, in the event the Customer elects to return goods or cancel goods on order, the Supplier at its absolute discretion reserves the right to charge a 10% handling fee on the amount involved. Further no return of goods will be accepted, without prior approval of the Supplier in writing.
21. SPECIAL ORDERS. Special orders attract a minimum 50% deposit, up to 100% depending on the order type and value (the deposit value will be confirmed at time of quotation) which will be debited to the Customer’s account upon receipt of a written order for goods outside our normal stock line, or for goods specifically modified to the Customer’s requirements. NOTE: No return of or cancellation of special orders will be accepted.
22. WARRANTIES. All goods sold carry only such warranty, if any as is furnished by the manufacturer thereof, or as implied by law as covered under The Trade Practices Act 1974 (Cth). NOTE: No warranty work will be completed whilst ever the Customer’s account is in default of the agreed trading Terms.
23. DAMAGES. To the extent permitted by law, the Supplier shall not be liable for any amount greater than the sale price of the product or service originally supplied. Without limiting the meaning of this clause, the Supplier shall not be liable for any claims, loss, expense whatsoever, howsoever arising, or in any event in any way whatsoever for any contingent, consequential direct/indirect special, or punitive damages arising in relation thereto, and the Customer acknowledges this express limit of liability and agrees to limit any claim accordingly. Further the Supplier shall not be responsible directly or indirectly for any consequential loss or damage, or for the maintenance, use or operation of the product by the Customer, or to any third party, or from any failure of the product whether defective or not.
24. GST. GST will be charged where appropriate, unless a signed exemption form is received by the Supplier in the approved prescribed manner as set down by the Australian Tax Office.
25. ENVIRONMENTAL REQUIREMENTS. The Customer confirms and acknowledges it has made all enquiries in relation to all responsibilities conferred upon the Customer, by all relevant legislation, relating to storage of and disposal of any or all products supplied by the Supplier.
26. INSURANCE. Unless otherwise stated in the quotation or agreed in writing, NO INSURANCE IS PROVIDED BY THE SUPPLIER. The Customer expressly acknowledges that insurance of all goods is the responsibility of the customer upon dispatch from the Supplier’s premises.
27. JURISDICTION. The Customer acknowledges that this contract shall be governed by the Laws of New South Wales. The Customer hereby agrees to submit to the non-exclusive jurisdiction of any New South Wales court and waives any rights to claim that courts there are an inconvenient forum.
28. BULBECK GROUP. The Bulbeck Group means P.D. Bulbeck Pty Ltd ACN 000 081 327, Bulbeck Enviro Pty Ltd ACN 052 850 218 and Ovesco Holdings Pty Ltd ACN 624 736 223 individually and collectively and jointly and severally.
29. GENERAL.
a. These Terms and any special conditions included in the quotation contain the entire agreement in respect of the supply of goods or services to the Customer unless otherwise agreed in writing and no other terms or conditions shall have any operation or be given any effect whatsoever whether included upon the Customer’s order or otherwise.
b. If any provision of these Terms is unenforceable for any reason, it will not invalidate any other provision which will remain in full force and effect despite that invalidity. Headings are for reference only and are not to limit any term.
c. The Supplier may at any time set off any amount the Supplier owes the Customer against any amount payable by the Customer to the Supplier.
ANNEXURE A – EQUIPMENT HIRE TERMS AND CONDITIONS
1. DEFINITIONS.
Act means for the state in which Equipment is hired, the applicable Occupational Health and Safety legislation including regulations and Codes of Practice as they are amended or substituted from time to time amended and any applicable Australian Standards.
Equipment means the equipment described in the invoice and includes any substituted equipment, spare parts, accessories and components supplied by the Supplier.
Operator means the Customer and its servants, agents or employees who use any Equipment.
Premises means the address of the Customer.
Purpose means the purpose for which the Equipment is designed and/or as specified in the agreement.
Supplier means The Bulbeck Group including P.D. Bulbeck Pty Ltd ACN 000 081 327, Bulbeck Enviro Pty Ltd ACN 052 850 218 and Ovesco Holdings Pty Ltd ACN 624 736 223.
Term means the term no longer than 12 months after the Equipment is hired or as otherwise stated in the agreement.
2. HIRE PAYMENTS. The Customer must pay the Supplier the agreed hire charges for the Term of the agreement.
3. HIRE PAYMENTS AFTER TERM
a. If the Customer keeps the Equipment after the agreed Term, the Customer will pay the agreed hire charges as amended.
b. Neither the Customer, including any of its Operators are authorised to use the Equipment after the term without the prior written consent of the Supplier. Any such unauthorized use will be at the total risk and liability of the Customer.
c. These conditions continue to apply during any future term.
4. OWNERSHIP AND USE OF EQUIPMENT
a. The Equipment is and at all times remains the property of the Supplier
b. The only right which the Customer has under these Conditions is the right for the Customer and its Operators to use the Equipment for the Purpose and for the Term or any agreed extension thereof.
c. The Customer may not assign any of its rights under these Conditions to anyone without the written consent of the Supplier.
d. The Customer must use and ensure that each Operator uses the Equipment at all times in accordance with any instructions or directions given by the Supplier and all applicable laws including the Act.
e. The Customer will use and ensure that each Operator uses the Equipment at the Customers risk and agrees that the Supplier will not be liable for any loss or damage whatsoever, including any personal injury or property damage. The Customer indemnifies the Supplier against any claim or demand for any such loss or damage.
5. MAINTENANCE OF EQUIPMENT
a. The Customer must maintain the Equipment at all times is a good, clean, safe condition including taking such action with regard to its proper care, safe use, and routine maintenance.
b. The Customer must keep the Equipment in a clean and safe condition and take all reasonable precautions to avoid loss or damage to the Equipment.
6. NO ALTERATION OF EQUIPMENT. The Customer must not alter or allow anyone to alter the Equipment in any way.
7. RIGHT TO INSPECT
a. The Customer will allow the Supplier or its authorised representative to enter the Premises or any site at which the Equipment is in use to inspect and/or test the Equipment and to recommend any service, repair or maintenance.
b. The Customer will not use or permit to be used any Equipment until any recommendation of the Supplier has been fully complied with.
8. LOSS OR DAMAGE
a. The Customer is liable for any loss of or damage to the Equipment, reasonable wear and tear accepted. The cost of any such loss or damage will be determined by the Supplier and the Customer will accept a certificate from the Supplier as conclusive evidence of that amount as an amount immediately due and owing.
b. The Customer is responsible for returning the Equipment in a clean state and good working condition as determined by the Supplier. The Supplier will be entitled to charge the Customer for the cleaning or repair of the Equipment.
c. Hire charges will continue to apply until the Equipment is returned to the Supplier and available for hire.
9. PREMISES. The Customer may take the Equipment to sites at which it is to be used, but the Equipment must be kept at the Premises when not in use.
10. RETURN OF EQUIPMENT
a. The Customer must upon written request made at any time, immediately return the Equipment in good condition to the address nominated by the Supplier.
b. Subject to these conditions, the Supplier will credit the Customer with any amount paid by the Customer in respect of the unexpired portion of the Term.
c. If the Customer fails to return the Equipment within 7 days of request or the end of the Term, the Customer authorises the Supplier, acting in the name of the Customer, to enter the Premises or any site where the Equipment is, to take possession of the Equipment.
d. If the Equipment is not returned to the Supplier within 14 days of a written request, the Customer will upon demand, pay to the Supplier the full replacement value of the Equipment in addition to any other claim or right that the Supplier has against the Customer under these Conditions or otherwise.
11. EXCLUSIONS AND LIMITATION OF LIABILITY
a. To the extent permitted by law, the Supplier’s liability is limited in its discretion to replacing the goods or supplying equivalent goods, or in the case of services, by supplying the services again. The Customer relies entirely on its own knowledge, skill and judgement in selecting goods which are hired from the Supplier.
b. The Suppliers’ Terms and Conditions (included above) are imported into and form part of these Conditions except where they conflict. If any conflict arises, these Hire Terms and Conditions will prevail to the extent necessary to resolve any conflict.
12. OCCUPATIONAL HEALTH AND SAFETY ACT LEGISLATION
a. The Customer will check all Equipment for compliance with the Act and the Customer has ascertained that the Equipment is suitable for the purpose for which the Equipment is to be used and the Customer has not relied upon any representation or assurance from any personnel of the Supplier as to the use of the Equipment.
b. The Customer warrants that it has taken all necessary steps (including tests and examination) on its own behalf to confirm that the equipment is designed and constructed to be safe and without risk to health when properly used and that it has adequate information about the safe and proper use for which the equipment is designed and tested.
c. The Customer hereby indemnifies the Supplier from and against any loss or damage arising from any failure of the Customer to observe the obligations arising under clause 12a or 12b of these Conditions or the Act, including any prosecution or liability, loss or damage under the Act.
13. INDEMNITY. In addition to any specific indemnity given in these terms and conditions, the Customer indemnifies the Supplier against any claim whether for loss, damage or otherwise which arises in any way from these terms and conditions, any breach of these terms and conditions, the Equipment or any use to which the Equipment is put until the Equipment is returned to the Supplier in accordance with these terms and conditions.
14. DUTY TO INFORM. The Customer will inform the Supplier in writing of any fault, malfunction, damage or loss of any Equipment immediately any such fault, malfunction, damage or loss occurs and before returning the Equipment to the Supplier.
15. CONDITIONS BINDING IN SUBSEQUENT HIRE TRANSACTIONS. These Conditions apply to all hire equipment obtained from the Supplier by the Customer.
16. INSURANCE. The Customer will keep the Equipment insured with a reputable and solvent insurer for its full replacement value until it is returned to the Supplier in accordance with these Terms and Conditions.