alltrack.com.au

Alltrack Solutions

Alltrack Engineering

Alltrack GSE

 

Contact:

Tel: +612 9605 9779

E-mail: sales@alltrack.com.au

 

 

General Terms and Conditions of Sale


1.         Terms apply to all Contracts

           These Conditions apply to and form part of any contract arising from the Customer’s acceptance of Alltrack’s offer and any contract arising from repeat or further orders for the same or similar goods, whether given orally or otherwise.  Unless agreed to in writing and executed by Alltrack, Alltrack does not recognise or accept any other terms applying to any sale.

2.         Definitions

             Unless the context otherwise requires, in these Conditions:-

             “Alltrack” means:

Alltrack AM Pty Limited,                          ABN 44 066 888 613,

             Alltrack GSE Pty Limited,                        ABN 80 077 274 189,

             Alltrack Engineering Pty Limited,          ABN 83 113 590 024,

             Alltrack Solutions Pty Limited,              ABN 88 113 289 606,

             or any member or subsidiary of it acting as a supplier of goods.

             “Customer” means the customer to whom Alltrack has contracted to supply Goods.

             “Goods” means the goods which Alltrack has contracted to supply to the Customer and “Good” has a similar meaning.

3.         Delivery

3.1      Unless otherwise provided in a Contract, INCOTERMS 2000 EXW (ex-works) will apply to every sale under these Conditions, regardless of whether the sale is an international transaction or wholly within any one country or jurisdiction.

3.2      Notwithstanding the provisions of Clause 4, the Customer must insure the Goods on and from the time of its assumption of risk in accordance with sub-clause 3.1 (in the amount of Alltrack’s invoice plus 15%), and shall indemnify and keep indemnified Alltrack in respect of any loss suffered by Alltrack in relation to any failure to so insure any Goods or any failure on the part of any insurer to make good loss or damage to the Goods pursuant to any insurance taken out by the Customer, until title to the Goods has passed to the Customer pursuant to Clause 4.

3.3      Where Goods are to be delivered by instalments, each instalment will be sold under a separate contract.  If Alltrack fails to deliver an instalment within the agreed time, the Customer is not entitled to repudiate the contract for any other instalment.

3.4      The Customer must, at its own expense, arrange collection of the Goods from Alltrack at its premises.  Alternatively, if Alltrack undertakes to transport the Goods then, unless otherwise expressly agreed to by Alltrack in writing, all costs of transportation are to be borne and paid by the Customer.  Unless a method of transportation has been agreed in writing between the Customer and Alltrack, Alltrack may choose the means by which the Goods will be transported.

 3.5.     In addition to its rights under clause 10 below, Alltrack reserves the right to delay or amend the delivery date for the Goods in any of the following cases:

(a)       if the Customer changes the specification for the goods; or

(b)       when deliveries of goods or labour which the Customer has provided or assigned to a third party to supply is delayed.

3.6      If after the date of delivery the Customer fails to take delivery of the Goods, Alltrack is entitled to arrange storage and insurance of the Goods on behalf of the customer, and the Customer must pay all charges for the storage, insurance and demurrage.

4.        Title to Goods

4.1      Title to the Goods shall not pass to the Customer, and shall remain with Alltrack, until the Customer has paid to Alltrack in clear funds all sums owing to Alltrack, whether under this or any other contract. 

4.2      Where Alltrack has not been paid in the manner specified in Clause 4.1, Alltrack has the right to call for and recover the Goods at its option, and the Customer is obliged to deliver up the Goods if directed to do so by Alltrack.

4.3      Where the Goods have not been paid for in the manner specified in Clause 4.1 and Alltrack delivers the Goods to the Customer, then until the Customer has paid Alltrack in the manner specified in that clause, the Customer must keep the Goods as fiduciary for Alltrack in a way which clearly identifies that the Goods are the property of Alltrack.

4.4      The Customer may resell the Goods, but only as the fiduciary agent of Alltrack.  Any right to bind Alltrack to any liability to any third party by contract or otherwise is, however, expressly negatived.  Any such resale is to be at arms length and on market terms.  The Customer will receive all proceeds of any such sale, whether tangible or intangible, direct or indirect, in trust for Alltrack until the Customer has paid Alltrack all sums owing to Alltrack.

4.5      If, notwithstanding the above, the Goods are mixed with other goods or used in some manufacturing or construction process of its own or some third party, then the Customer shall hold such part of the mixed goods or the proceeds of such manufacturing or construction process (“the New Goods”) as relates to the Goods, including the proceeds of sale of the New Goods (including book debts) in trust for Alltrack until the Customer has paid Alltrack all sums owing to Alltrack.  Such part shall be deemed to be equal in dollar terms to the amount owing by the Customer to Alltrack at the time of conducting that process, the sale of those New Goods or the receipt of such proceeds (whichever is the latest to have occurred).

4.6     The provisions of this clause apply notwithstanding any other agreement, whether subsequent to the contract or not, between the parties under which Alltrack gives the Customer credit.

4.7     The Customer hereby irrevocably grants to Alltrack, its agents and employees, an unrestricted right and licence to enter any premises occupied by the Customer, without notice, to identify and remove any of the Goods which are or which are deemed pursuant to the contract to be the property of Alltrack, without in any manner being liable to the Customer or any other party or person claiming through the Customer.  Alltrack shall have the right to sell or dispose of any Goods so removed as Alltrack may in its sole discretion decide. Alltrack shall not be responsible for any loss occasioned to the Customer or to any other person by that sale.

4.8      Alltrack may deduct the costs of its identifying, removing and selling or disposing of any of the Goods that are or are deemed to be its property from the proceeds of sale of any Goods before crediting the balance to the Customer’s account.

5.         No Representations

5.1      The Customer warrants, acknowledges and agrees that no officer, agent or employee of Alltrack has made or is authorised to make, give or agree to any condition, warranty or representation whatever, whether verbal or otherwise, on behalf of Alltrack in respect of the Goods.

5.2      The Customer in selecting the Goods warrants acknowledges and agrees that he has not relied on Alltrack’s skill or judgment or on that of any person by whom negotiations were conducted on Alltrack’s behalf with the Customer. 

6.         Patents, trade mark or copyright

6.1      Alltrack shall not be responsible for patent right, trade mark or copyright infringement in relation to any goods sold under these terms, whether in Alltrack’s country or any other country.

6.2      Each contract shall be made on the understanding that the Customer has obtained all necessary input licences or quotas.  Any loss sustained by Alltrack due to the failure by the Customer to obtain any such licence or quota must be reimbursed by the Customer.

6.3      The Customer acknowledges that all drawings, documents, descriptions and submissions and other intellectual property supplied by Alltrack, whether attached to or forming part of any quotation or otherwise, remain the property of Alltrack.  The Customer must not copy or reproduce any of the foregoing, and must not cause, permit or allow any of the foregoing to be passed to or come to the knowledge of any other person without the prior written consent of Alltrack.

7.         Payment and Default

7.1      All invoices shall be paid in full not later than thirty (30) days from the date of invoice. Unless otherwise agreed in writing and subject to paragraph 4, the Customer shall pay for the Goods in the manner and within the time stated in the Contract. The terms of payment shall be payment of the whole of the contract price on or before delivery, or as per the terms and conditions stated in the contract.

7.2      If the Customer fails to carry out its obligations under any contract, makes default in any payment due to Alltrack or a resolution is passed or proposed or an application is presented for the winding up of the Customer, or a receiver and/or manager is appointed for the property or any part of the property of the Customer, the Customer dies or becomes bankrupt, commits an act of bankruptcy or is presumed by law to be insolvent, or the Customer makes or proposes to make any arrangement with its creditors or execution upon the assets or any part of the assets of the Customer is levied, then Alltrack may, at its option, do any or all of the following without prejudice to any other rights it has and without notice to the Customer:

             (a)        withhold any deliveries of the Goods, whether or not in transit and whether or not agreed to be delivered under the Contract;

             (b)        immediately recover possession of any goods and/or resell any goods, title to which is retained pursuant to paragraph 4, and

             (c)        terminate performance of the Contract and any other Contracts that Alltrack has with the Customer.

7.3      The Customer shall, on demand by Alltrack, pay to Alltrack a default interest charge at the rate equivalent to the Westpac Banking Corporation Indicator rate, plus three per cent (3%) per annum, calculated on a daily basis and compounding at monthly rests on any money due but unpaid, such interest to be calculated from the due date for payment until the actual date of repayment of the funds.

7.4      If the Customer should fail to collect the Goods from Alltrack notwithstanding that written notice of the availability of the Goods for collection has been given to the Customer, then Alltrack may sell the Goods at the best price available to Alltrack on behalf of the Purchaser, and the Purchaser shall pay all of the costs incurred by Alltrack in connection with that sale.

8.         Price and Quotations

8.1      Subject to 8.2, the price of Goods is as stated in Alltrack’s quotation which is valid, until Alltrack’s acceptance of a Purchase order by the Customer.

8.2      Alltrack reserves the right to adjust the price for any Goods sold under any Contract to reflect any change in the price for materials used in fabricating those goods, including for changes in the price of copper, aluminium or other metals, rates of exchange, freight, insurance and customs charges.

8.3      Unless stated to the contrary in the contract, the price of the Goods is stated as being exclusive of Goods and Services Tax (GST) and any other taxes and duties in respect of the Goods.  The Customer must pay all of these taxes and duties in respect of the Goods at the same time and in the same manner as the price are due to be paid.  If any of those taxes or duties are, or become, payable by Alltrack, the prices of the Goods shall be increased by the amount necessary to ensure that the nett amount actually received by Alltrack after the payment of these taxes is as if those taxes and duties were not payable.  All other taxes and duties are the responsibility of the Customer.

8.4      Unless otherwise stated in writing, a quotation is valid for 30 days from the date of issuing. Once this period expires, the Customer must obtain in writing from Alltrack, a new quotation or revalidation of existing quotation.

 9.         Warranty

9.1      Some Federal and State laws imply conditions and warranties which cannot be excluded.  To the maximum extent permissible by law, every other condition and warranty whether implied by law or not, which is not expressly contained in these conditions, is excluded.

9.2      Alltrack warrants to the Customer that if at any time during the first 12 months following delivery any fault is detected in the construction, material or workmanship of any Good fabricated and designed by Alltrack, during the correct use of the Good, that Good may be returned to Alltrack free of charge.  As soon as reasonably practicable after receipt of the Good concerned, Alltrack will within normal working hours attempt to (at its option) repair, renew or replace the Good concerned.  Alltrack reserves the right to charge the Customer for:

             (a)        travel costs and accommodation associated with the repair of any Good supplied under the Contract conducted at Alltrack’s option away from Alltrack’s premises; and

             (b)        any costs (including labour costs, parts and expenses) incurred by it in examining any Good produced pursuant to this warranty for which Alltrack is satisfied that there is no fault or defect for which it is responsible pursuant to this clause 9.2.

9.3      The contract shall not be construed as a sale by sample even if any goods are exhibited or inspected by the Customer.

9.4      Except for a claim based on a conditional warranty implied by Federal or State law which cannot be excluded, or a claim made pursuant to clause 9.2, the Customer is not entitled to make any claim against Alltrack in connection with the Goods unless:

             (i)        the Customer has notified Alltrack of the claim within seven (7) days from the date of delivery of the Goods or fifteen (15) days from the date of vessel arrival (whichever is the earlier);

             (ii)      the Goods in respect of which the claim is made are preserved intact and are returned to Alltrack at the Customer’s expense; and

             (iii)     the claim is accompanied by an independent surveyor’s certificate issued by a qualified independent surveyor acceptable to Alltrack.

9.5       Alltrack’s liability to the Customer is limited to whichever of the following Alltrack chooses:

             (i)         the repair or resupply of the Goods; or

             (ii)        the cost of the Goods, or the cost of having the Goods repaired or resupplied.

9.6      The Customer indemnifies Alltrack against any liability, loss, costs (including legal costs on an indemnity basis) and expenses incurred by Alltrack as a result of any claim made or action brought in connection with the Goods or the use of them other than a claim or action brought by the Customer under these Conditions or a condition or warranty implied by law which is not excluded by these Conditions.

10.       Force Majeure

            Alltrack is not liable for any breach of its obligations to the Customer if that breach arises from any circumstances beyond the control of Alltrack, including lockouts, strikes, and other labour disturbances (settlement of which shall be at the discretion of Alltrack if it is a party), acts of God, piracy, war, riot, civil commotion, acts of government, earthquake, storm, tempest, flood, fire, lightning, unavailability of insurance at reasonable costs and non-delivery of materials from Alltrack’s usual sources of supply. If Alltrack is unable to perform or continue performance under the contract within a reasonable time because of any of these events, Alltrack shall have the right without prejudice to its other rights under the contract to terminate its obligations under the contract with respect to future performance by a written notice to the Customer.  The Customer shall have no claim against Alltrack arising out of termination in accordance with this clause, nor shall that termination affect Alltrack’s rights to recover all amounts owing by the Customer in respect of performance under any contract prior to termination.

11.       Waiver

            The failure, delay or omission by Alltrack to exercise a power or right against the Customer will not operate as a waiver of that power or right, and any single exercise of a power or right by Alltrack will not preclude another exercise of that power or the exercise of any other power or right.

12.       Applicable Law

           The law of the State of New South Wales will govern these Conditions and any contract between the Customer and Alltrack for the supply of Goods.  The Customer submits to the non-exclusive jurisdiction of the Courts of that State and all Courts competent to hear appeals from those Courts.

13.       Dispute Resolution

            Any dispute, controversy or claim arising out of or relating to these Conditions, the contract or the breach, termination or invalidity of these Conditions or the contract shall be first the subject of mediation administered by the Australian Commercial Disputes Centre Limited (“ACDC”) conducted and held in accordance with the rules of ACDC in force at the date of the contract.  In the event that the dispute, controversy or claim has not been resolved within twenty-eight (28) days (or such other period as is agreed to in writing between Alltrack and the Customer) after the appointment of a mediator by the parties, the dispute, controversy or claim shall be submitted to arbitration, administered by ACDC, conducted and held in accordance with and subject to the laws of New South Wales.  Any mediation or arbitration, meetings and proceedings shall be held in Sydney unless otherwise agreed to in writing between Alltrack and the Customer.

14.       Miscellaneous

14.1    Errors in the contract or in the invoice shall be corrected and requisite adjustments made between the parties. 

14.2    Should any provision of these Conditions become unenforceable or be held void in any jurisdiction, either in whole or in part, for any reason then that provision shall be deemed to be deleted in respect of that jurisdiction without in any way affecting the validity or enforceability of any other provision or the validity or enforceability of that provision in any other jurisdiction.

14.3    Where any obligation is imposed upon more than one person, that obligation shall bind all of those people severally and any two or more of them jointly. 

14.4    Without detracting from any other provision of these Conditions, Alltrack’s total liability to the Customer for any claim or demand of the Customer arising out of or in connection with any Goods shall not in any circumstances, including breach of contract, warranty, statute or in tort (including strict liability and negligence) exceed an amount equal to the aggregate purchase price of the Goods which gave rise to such claim or demand.

14.5    With the exception of death or personal injury found to be caused by negligence or wilful default of Alltrack, the Customer shall indemnify Alltrack against any costs, losses, expenses or liabilities suffered by Alltrack arising out of or in connection with:

             (a)       any and all claims brought against Alltrack by any third party in connection with the sale or supply of the Goods (including without limitation) the use, operation or maintenance of the Goods unless any such claim is solely attributable to the negligence of Alltrack or its employees or agents; or

             (b)        the Customer’s breach of these Conditions.

14.6     The Customer may not assign any contract to any other person.

15.       Cancellation, Default and Remedy

15.1    The Customer may not cancel or terminate any contracts for Goods which are fabricated by Alltrack according to the Customer’s specifications, or which have been specially purchased by Alltrack for sale to the Customer.  The Customer may only cancel or terminate any other contract if permitted by law to do so, or with the prior written consent of Alltrack.  If the Customer repudiates the Contract or terminates its performance other than pursuant to this clause or paragraph 15.3, or refuses to accept all or any of the Goods other than in circumstances permitted by the Contract pursuant to paragraph 7.2, the Customer shall be liable for any damage or loss thereby suffered by Alltrack, and the Customer shall pay to Alltrack as liquidated damages the greater of:

             (a)        the Contract price thereof in full and any costs incurred by Alltrack, less the resale value of the Goods as determined by Alltrack; and

             (b)        15% of the Contract price.

15.2    Any claim against Alltrack shall be deemed to have been waived unless made in accordance with Clause 9.2 or 9.5.

15.3    Subject to paragraph 3, if Alltrack does not deliver Goods by the agreed date, the Customer does not have the right to terminate its contract with Alltrack unless it has first written to Alltrack notifying Alltrack of its failure to deliver and Alltrack has not delivered the Goods to the Customer within a further thirty (30) days following the date of that notification.   If Alltrack fails to dispatch any Goods to the Customer for which the Customer has paid, Alltrack’s only obligation shall be to refund to the Customer the amount received in respect of the Goods not dispatched.  Alltrack shall not be liable for any damage or other losses incurred by the Customer or any third party arising directly or indirectly from Alltrack’s failure to deliver the Goods on time or at all.

15.4    Alltrack shall not be liable for any consequential special or contingent damages which may be claimed to have resulted from Alltrack’s failure to perform any obligation under the Contract or the use of the Goods.

15.5    Without limiting the application of paragraph 10 and notwithstanding anything contained in the Contract, Alltrack shall not be liable for any failure to perform any of its obligations under the Contract which failure arises from any cause not within its reasonable control.

15.6    Alltrack may rescind a Contract if any investigation into Alltrack or that Contract is announced or is commenced by any Government agency under any law relating to the dumping of goods.

16.       Packing

            Packing material requested by the Customer or considered by Alltrack to be reasonable or necessary for the safe arrival of the Goods will be charged to the Customer in addition to the price of the Goods.  The Customer is not entitled to any credit for packing material returned to Alltrack.
17.       Changes to Terms and Conditions of Sale

17.1     The General Terms and Conditions of Sale are subject to change without notice.