1. INTRODUCTION
For the purpose of this agreement:
(a) “UTE” is Unicorn Group Australia Pty Ltd (ABN 43 600 196 183) trading as Unicorn Transport Equipment, and its successors and assigns or any person acting on behalf of and with the authority of UTE;
(b) “the Client” is the business entity or individual identified in UTE’s quote and/or contract as the client requesting goods and/or services;
(c) “Contract” means the agreement entered into and between UTE and the Client pursuant to these terms and conditions;
(d) “Goods” mean alloy and/or steel ute trays and truck bodies, tippers, hoists, gates, tarps, and associated parts and accessories, as more particularly described in UTE’s quotes, tax invoices and other paperwork;
(e) “Purchase Order” means the document issued by the Client to UTE for the order of Goods and includes any specifications and other supporting documents; and
(f) ”Services” means the work required to be done to fulfil the Client’s instructions as detailed in the quote and/or contract.
2. QUOTES
2.1 A quote shall remain in force as a basis for placing orders with UTE for thirty (30) days from the date of the quote unless otherwise stated on the quote.
2.2 The Client acknowledges that information and specifications contained in the quote are only to be used within the Client’s business to determine acceptance and are to be keep confidential indefinitely.
3. CONTRACT
3.1 Acceptance – UTE will not be obligated to proceed until an official Purchase Order (if applicable) is issued by the Client and all details pertaining to the Contract have been received by UTE.
3.2 Price – Price/s quoted will be subject to Goods and Services Tax (GST)
4. DESCRIPTIVE DATA & PRICE LIST
4.1 All illustrations, drawings, catalogues, advertisements and other such descriptive data accompanying UTE’s quote must be regarded as informative only and not part of the Contract unless otherwise stipulated in the quote. All measurement and other particulars specified in descriptive data are stated in good faith but inaccuracies shall not vitiate the Contract or be made the basis of any claim against UTE nor justify rejection.
4.2 UTE’s current price list is to be used as a guide only and is subject to price increases at any time.
5. COPYRIGHT AND PATENT
The proprietary products sold by UTE are covered by various patents, design copyright and registered trademarks in order to protect UTE’s intellectual property. Ownership of copyright will at all times remain exclusively with UTE.
6. PAYMENT & DEFAULT
6.1 Time for Payment – Payment terms for account clients are thirty (30) days from end of month without deduction. Payment terms for all other clients are strictly C.O.D (cash on delivery).
6.2 Deposit – UTE may require a deposit from the Client and the Client acknowledges UTE is under no obligation to start any work as requested by the Client until the deposit is received by UTE in full and when all details pertaining to contract are finalised. In the event of default as to payment owing to UTE on the part of the Client, UTE shall be entitled to forfeit the deposit and claim any profit or margin contemplated by or allowed for in the Contract in addition to any remedy available to UTE at law or in equity.
6.3 Interest – UTE may charge interest at the rate of two percent (2%) above the commercial lending rate of the National Australia Bank (NAB) calculated on a daily basis on amounts not paid within the time specified in UTE’s tax invoice.
6.4 C.O.D – UTE reserves the right to place the account on restrictive trading (C.O.D) terms should the account exceed payment terms specified in 6.1.
6.5 Damages – The Client must pay to UTE any costs, expenses or losses incurred by UTE as a result of the Client’s failure to pay to UTE all sums outstanding as owed by the Client to UTE including without limiting the generality of the forgoing any debt collection and legal costs incurred in enforcing payment on a solicitor and own client basis.
6.6 Cancellation – The Client shall reimburse UTE for any costs, expenses or losses incurred by UTE should the Client cancel an accepted quote or contract. The time for payment for such cancellation shall be seven (7) days from UTE’s tax invoice.
7. PROLONGATION
7.1 In the event that UTE is prevented from performing its obligations under the Contract within the terms and conditions herein due to any act or omission by any person, body or thing whatsoever, including strike action or act of God, then UTE has the right to extend the time to perform its obligations for a similar period to that for which it was unable to work.
7.2 If the prolongation is due to the Client or its agents failing to supply necessary details or do anything whatsoever that the Client or its agents should have done under its contractual obligations then the Client must pay prolongation costs as determined by UTE.
8. DELIVERY
8.1 If delivery of the Goods is to be made to the Client’s nominated address, the Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. Failure to do so may incur additional costs to the Client.
8.2 Delivery of the Goods made to the Client at UTE’s address will be on an agreed date and failure by the Client to uplift completed Goods from UTE’s address on this agreed date will entitle UTE to raise an invoice subject to UTE’s payment terms (as if the Client had taken possession of the Goods). In addition the Client may incur storage charges estimated on a daily basis.
8.3 Delivery of Goods to a third party and/or site nominated by the Client is deemed to be delivery to the Client for the purpose of this agreement.
8.4 The failure of UTE to deliver shall not entitle either party to treat this agreement as repudiated. UTE shall not be liable for any loss or damage whatsoever due to the failure by UTE to deliver the Goods, or any part of them, promptly or at all.
9. INSTALLATION
The Client shall indemnify UTE from any costs, losses or expenses incurred by UTE if the scheduled installation of a tray body is delayed because the Client’s vehicle is not available at the agreed installation site at the agreed time.
10. RISK
The risk in the Goods shall pass to the Client upon delivery of the Goods to the Client or its agent or to a third party nominated by the Client.
11. FORCE MAJEURE
UTE will have no liability to the Client in relation to any loss, damage or expense caused by UTE’s failure to deliver the Goods or delay in delivering the Goods as a result of fire, flood, strike, accident, lock-out, hindrance, riot, civil commotion, war, inability to produce or obtain raw materials or component parts or any other occurrence beyond UTE’s control but any such delay shall not exempt the Client from the obligation to accept or take delivery of and pay for the said Goods.
12. WARRANTY
12.1 Goods are hereby sold and warranted against any defect in workmanship appearing under proper usage within three (3) years from date of supply. In the case of Goods such as lighting and other accessories, the appropriate manufacturer’s warranty applies. Full warranty information is available from UTE’s office during normal business hours 8.00am – 5pm Monday – Thursday or 8.00am – 4pm Friday.
12.2 No express warranty is given as to fitness or suitability of the Goods for any specific application or use unless expressly endorsed by UTE. To the extent permitted by the Australian Consumer Law the liability of UTE shall in any case be limited to the repair or replacement at the option of UTE of the defective material at the workshops of UTE.
12.3 The Client acknowledges that no person representing or purporting to represent UTE has authority to make any representations or warranties on behalf of UTE other than those set out expressly in the Contract and to the extent permitted by the Australian Consumer Law, and any further express or implied representations and warranties are expressly void.
12.4 UTE reserves the right to make null and void the warranty should the Goods be modified, altered, damaged or put to any undue stress other than in the way the Goods were designed to perform. Work and/or service carried out on the Goods by anyone other than UTE and/or its nominated agents shall make the warranty null and void unless the Client obtains written approval from UTE before any remedial work is carried out.
12.5 For full details of UTE warranty conditions, please visit our websites warranty page or contact UTE.
13. CLAIMS
The Client must within seven (7) days of the date of supply of the Goods notify UTE in writing of any matter or thing by reason whereof the Client alleges that the Goods are not in accordance with Contract. Otherwise the Goods shall be deemed to be in all respects in accordance with the Contract and the Client shall be bound to accept and pay for the same accordingly.
14. LIABILITY
14.1 Non-excludable Rights
The parties acknowledge that, under the Australian Consumer Law, certain conditions and warranties may be implied in these terms and conditions and there are rights and remedies conferred on the Client in relation to the provision of the goods and services which cannot be excluded, restricted or modified by the Agreement (“Non-excludable Rights”).
14.2 Disclaimer of Liability
UTE disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Client, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non- excludable Rights. To the extent permitted by law, the liability of UTE for a breach Non-Excludable Right is limited, at UTE’s option, to the supplying of the Goods and/or Work again or payment of the cost of having the Goods and/or Work supplied again.
14.3 Indirect Losses
Notwithstanding any other provision of these terms and conditions, UTE is in no circumstances (whatever the cause) liable in contract, tort including without limitation, negligence or breach of statutory duty or otherwise to compensate the Client for:
(a) any increased costs or expenses:
(b) any loss of profit, revenue, business contracts or anticipated savings:
(c) any loss or expense resulting from a claim by a third party; or
(d) any special, indirect or consequential loss or damage of any nature whatsoever caused by UTE’s failure to deliver the Goods or complete its Services
15. RETENTION OF TITLE
15.1 Title
Notwithstanding the delivery or installation of the Goods, title in any particular Goods shall remain with UTE regardless of whether the Goods are on-sold by the Client until the Client has paid and discharged any and all monies owing pursuant to any invoice issued by UTE for the Goods, including all applicable GST and other taxes, levies and duties. Should the Goods be comingled with other vehicle parts, the Client shall ensure that the Goods remain distinct and identifiable from the other vehicle parts and the vehicle into which it is installed. Goods belonging to UTE whether they are installed or in storage shall be marked permanently so they are identifiable as such.
Any payment made by or on behalf of the Client which is later avoided by the application of any Statutory Provisions shall be deemed not to discharge UTE’s title in the Goods nor the Client’s indebtedness to UTE and, in such an event, the parties are to be restored to the rights which each respectively would have had if the payment had not been made.
15.2 Bailment
The Client acknowledges that it is in possession of the Goods solely as Bailee until payment of all invoices for the Goods is made pursuant to clause 14.1 and until that time the Client is not entitled to sell the Goods but only in the ordinary course of business and the Client shall be fully responsible for any loss or damage to the Goods whatsoever and howsoever caused following delivery or installation of the Goods to the Client.
15.3 Repossession
The Client hereby irrevocably grants to UTE the right, at its sole discretion, to remove or repossess any Goods from the Client and sell or dispose of them, and UTE shall not be liable to the Client or any person claiming through the Client and UTE shall be entitled to retain the proceeds of any Goods sold and apply same towards the Client’s indebtedness to UTE.
If the Client commits an act of bankruptcy, enters into any form of administration or liquidation, makes any composition or arrangement with its creditors, ceases to carry on business or breaches any fundamental clause of this agreement, then UTE may, without prejudice to any other remedies it may have, repossess any Goods delivered to the Client on any account which has not been paid in accordance with the terms and conditions herein and commence proceedings to recover the balance of any monies owing UTE by the Client.
16. PERSONAL PROPERTY SECURITIES ACT (PPSA)
16.1 In this clause, the following words have the respective meanings given to them in the PPSA: Financing Statement, Financing Change Statement, Proceeds, Register, Security Agreement, Security Interest and Verification Statement.
16.2 The Client acknowledges and agrees:
(a) that these Terms & Conditions constitute a Security Agreement that creates a Security Interest in all Goods (and Proceeds)
(i) previously supplied by UTE to the Client:
(ii) to be supplied in the future by UTE to the Client:
(b) that the Security Interest created by these Terms & Conditions is a continuing Security Interest in all Goods (supplied now or in the future by UTE to the Client) and Proceeds, which will operate (despite any intervening payment or settlement of account) until UTE has signed a release:
(b) to waive its rights under section 157 of the PPSA and the following subsections of section 115 of the PPSA which will not apply to the Security Agreement created by these Terms & Conditions: 95, 117, 118, 121(4), 130, 132(4), 135, 143.
16.3 The Client undertakes to:
(a) keep all Goods free of any charge, lien or Security Interest except as created under these Terms & Conditions and not otherwise deal with the Goods in a way that may prejudice any rights of UTE under these Terms & Conditions or the PPSA:
(b) sign any further documents and provide any further information (which must be complete, accurate and up-to-date in all respects) that UTE may require to:
(i) register a Financing Statement or Financing Change Statement in relation to a Security Interest on the Register:
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 16.3(b) (i) or 16.3(b)
(c) indemnify, and upon demand reimburse, UTE for all fees (including actual legal fees on a solicitor/own client basis), costs, disbursements and expenses in:
(i) registering and maintaining a Financing Statement or Financing Change Statement on the Register or releasing any Goods charged thereby; and
(ii) enforcing or attempting to enforce the Security Interest created by these Terms & Conditions.
(d) not register, or allow to be registered, a Financing Statement or a Financing Change Statement in respect of the Goods or Proceeds in favour of a third party, without the prior written consent of UTE; and
(e) immediately advise UTE of any material change in its business details (including, but not limited to, it’s trading name, address, facsimile number) or business practices.
17. SECURITY AND CHARGE
The Client hereby charges all property, both equitable and legal present or future of the Client in respect of any monies that may be owing by the Client to UTE under the terms and conditions or otherwise and hereby authorises UTE or its solicitors to execute any consent form as its attorney for the purpose of registering a caveat over any real property owned by the Client at any time.
18. PRIVACY
18.1 The Client hereby authorises UTE to collect, retain, record, use and disclose commercial and consumer information about the Client, in accordance with the Privacy Act 1988 and subsequent amendments, to persons and/or legal entities who are a solicitor or any other professional consultant engaged by UTE, a debt collector, credit reporting agency and/or any other individual or organisation which maintains credit references and/or default listings.
18.2 UTE may give information about the Client to a credit reporting agency for the purposes of obtaining consumer and commercial credit reports and/or lodging consumer and commercial defaults on the Client’s credit file. This information may be given before, during or after the provision of credit to the Client and will be in accordance with the Privacy Act 1988 and subsequent amendments.
19. NON-WAIVER
Failure by UTE to enforce or delay in enforcing any right or provision of these terms and conditions will not constitute a waiver of such right or provision unless acknowledged and agreed by UTE in writing.
20. SEVERABILITY
Any provision in these terms and conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these terms and conditions or affecting the validity or enforceability of that provision in any other jurisdiction.
21. GOVERNING LAW AND JURISDICTION
These terms and conditions are governed by the laws of the State of Western Australia and all disputes arising between the Client and UTE will be submitted to the Perth Registry of any Court as is competent to hear the matter.