Terms & Conditions

TERMS AND CONDITIONS OF ESAFE GROUP TRADING AS CRANESAFE SERVICES

1. Definitions

1.1 “Seller” shall mean eSafe Group Pty Ltd (ABN: 205 167 559 12) and its successors and assigns.

1.2 “Customer” shall mean the Customer or any person acting on behalf of and

with the authority of the Customer.

1.3 “Guarantor” means that person (or persons), or entity who agrees herein to

be liable for the debts of the Customer if a Limited Liability Customer on a

principal debtor basis.

1.4 “Goods” shall mean Goods supplied by the Seller to the Customer (and

where the context so permits shall include any supply of Services as

hereinafter defined).

1.5 “Services” shall mean all services supplied by the Seller to the Customer and

includes any advice or recommendations.

1.6 “Price” shall mean the cost of the Goods as agreed between the Seller and

the Customer subject to clause 4 of this contract.

2. Acceptance

2.1 Any instructions received by the Seller from the Customer for the supply of

Goods and/or the Customer’s acceptance of Services and/or Goods supplied

by the Seller shall constitute acceptance of the terms and conditions

contained herein.

2.2 Where more than one Customer has entered into this agreement, the

Customers shall be jointly and severally liable for all payments of the Price.

2.3 Upon acceptance of these terms and conditions by the Customer the terms

and conditions are irrevocable and can only be rescinded in accordance with

these terms and conditions or with the written consent of the manager of the

Seller.

2.4 None of the Seller’s agents or representatives are authorised to make any

representations, statements, conditions or agreements not expressed by the

manager of the Seller in writing nor is the Seller bound by any such

unauthorised statements.

3. Goods/Services

3.1 The Goods and or Services shall be as described on the invoices, quotation,

work authorisation, sales order or any other work commencement forms as

provided by the Seller to the Customer.

4. Price And Payment

4.1 At the Seller’s sole discretion;

(a) The Price shall be as indicated on invoices provided by the Seller to the

Customer in respect of Goods supplied; or

(b) The Price of the Goods shall be the Sellers quoted Price, which shall be

binding upon the Seller provided that the Customer shall accept in writing the

Sellers quotation within thirty (30) days; or

(c) The Price of the Goods, subject to clause 4.2 & 4.3, shall be the Sellers

contracted Price, which shall be binding upon the Seller provided that the

Customer shall accept in writing the Sellers contract within thirty (30) days.

4.2 Any variation from the plan of scheduled works or specifications will be

charged for on the basis of the Seller’s variation and will be shown as extras

on the invoice. Payment for all extras must be made in full at their time of

completion.

4.3 In the event that the Sellers service employee has worked a full eight hour

day, at the Sellers sole discretion the Buyer may be charged overtime time

rates after the eight hour period regardless of whether or not the full eight

hours are worked at the Buyers site. Any callouts outside the Sellers normal

business hours are subject to a minimum four (4) hour call out fee.

4.4 Time for payment for the Goods/Services shall be of the essence and will be

stated on the invoice, quotation or any other order forms. If no time is stated

then payment shall be on delivery of the Goods/Service.

4.5 At the Seller’s sole discretion, payment for approved Customers shall be due

thirty (30) days following the end of the month in which a statement is posted

to the Customer’s address or address for notices.

4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by direct

credit, or by any other method as agreed to between the Customer and the

Seller.

4.7 The Price shall be increased by the amount of any GST and other taxes and

duties which may be applicable, except to the extent that such taxes are

expressly included in any quotation given by the Seller.

5. Delivery Of Goods / Services

5.1 Delivery of the Goods shall be made to the Customer’s address. The

Customer shall make all arrangements necessary to take delivery of the

Goods whenever they are tendered for delivery, or delivery of the Goods

shall be made to the Customer at the Sellers address.

5.2 Delivery of the Goods to a carrier, either named by the Customer or failing

such naming to a carrier at the discretion of the Seller for the purpose of

transmission to the Customer, is deemed to be a delivery of the Goods to the

Customer.

5.3 The costs of carriage and any insurance which the Customer reasonably

directs the Seller to incur shall be reimbursed by the Customer (without any

set-off or other withholding whatever) and shall be due on the date for

payment of the Price. The carrier shall be deemed to be the Customer’s

agent.

5.4 Where there is no agreement that the Seller shall send the Goods to the

Customer, delivery to a carrier at limited carrier’s risk at the expense of the

Customer is deemed to be delivery to the Customer.

5.5 The Seller may deliver the Goods by separate instalments (in accordance

with the agreed delivery schedule). Each separate instalment shall be

invoiced and paid for in accordance with the provisions in this contract of

sale.

5.6 Delivery of the Goods to a third party nominated by the Customer is deemed

to be delivery to the Customer for the purposes of this agreement.

5.7 The failure of the Seller to deliver shall not entitle either party to treat this

contract as repudiated.

5.8 The Seller shall not be liable for any loss or damage whatever due to failure

by the Seller to deliver the Goods (or any of them) promptly or at all.

6. Risk

6.1 If the Seller retains property in the Goods nonetheless, all risk for the Goods

passes to the Customer on delivery.

6.2 If any of the Goods are damaged or destroyed prior to property in them

passing to the Customer, the Seller is entitled, without prejudice to any of its

other rights or remedies under these Terms and Conditions of Trade

(including the right to receive payment of the balance of the Price for the

Goods), to receive all insurance proceeds payable for the Goods. This

applies whether or not the Price has become payable under the Contract.

The production of these terms and conditions by the Seller is sufficient

evidence of the Seller’s rights to receive the insurance proceeds without the

need for any person dealing with the Seller to make further enquiries.

7. Customers Disclaimer

7.1 The Customer hereby disclaims any right to rescind, or cancel the contract or

to sue for damages or to claim restitution arising out of any

misrepresentation made to him by any servant or agent of the Seller and the

Customer acknowledges that he buys the Goods relying solely upon his own

skill and judgement and that the Seller shall not be bound by nor responsible

for any term, condition, representation or warranty other than the warranty

given by the Manufacturer which warranty shall be personal to the Customer

and shall not be transferable to any subsequent Customer.

8. Defects/Return Of Goods

8.1 The Customer shall inspect the Goods on delivery and shall within seven (7)

days of delivery notify the Seller in writing of any alleged defect, shortage in

quantity, damage or failure to comply with the description or quote. The

Customer shall afford the Seller an opportunity to inspect the Goods within a

reasonable time following delivery. If the Customer shall fail to comply with

these provisions the Goods shall be conclusively presumed to be in

accordance with the terms and conditions and free from any defect or

damage.

8.2 For defective Goods which the Seller has agreed in writing that the Customer

is entitled to reject, the Seller’s liability is limited to either (at the Seller’s

discretion) replacing the Goods or repairing the Goods provided that:

(a) the Customer has complied with the provisions of clause 8.1;

 

(b) the Seller will not be liable for Goods which have not been stored or used in

a proper manner.

9. Warranty

9.1 Subject to the conditions of warranty set out in Clause 9.2 the Seller warrants

that if any defect in any Goods manufactured by the Seller becomes

apparent and is reported to the Seller within thirty (30) days of the date of

delivery (time being of the essence) then the Seller will (at the Sellers sole

discretion) repair or replace the Goods.

9.2 The conditions applicable to the warranty given by Clause 9.1 are:

(a) The warranty shall not cover any defect or damage which may be caused or

partly caused by or arise through:

i) Failure on the part of the Customer to properly maintain any Goods; or

ii) Failure on the part of the Customer to follow any instructions or guidelines

provided by the Seller; or

iii) Any use of any Goods otherwise than for any application specified on a

quote or order form; or

iv) The continued use of any Goods after any defect becomes apparent or

would have become apparent to a reasonably prudent operator or user; or

v) Fair wear and tear, any accident or act of God.

(b) The warranty shall cease and the Seller shall thereafter in no circumstances

be liable under the terms of the warranty if the workmanship is repaired,

altered or overhauled without the Seller’s consent.

(c) In respect of all claims the Seller shall not be liable to compensate the

Customer for:

(i) any delay in either replacing or repairing the workmanship/Goods or in

properly assessing the Customers claim; or

(ii) any damages caused to the Customers equipment or otherwise, in the event

of failure of the Goods supplied by the Seller.

9.3 For Goods not manufactured by the Seller the warranty shall be the current

warranty provided by the manufacturer of the Goods. The Seller shall be

under no liability whatsoever (including, but not limited to, any expenses

incurred by the Seller in returning Goods to the manufacturer of the Goods.

At the Sellers sole discretion such expenses will be charged to the

manufacturer of the Goods or to the Customer) except for the express

conditions as detailed and stipulated in the manufacturer’s warranty.

9.4 In the case of second hand Goods the Customer acknowledges that he has

had full opportunity to inspect the same and that he accepts the same with all

faults and that no warranty is given by the Seller as to the quality or suitability

for any purpose and any implied warranty, statutory or otherwise, is

expressly excluded. The Seller shall not be responsible for any loss or

damage to the Goods, or caused by the Goods, or any part thereof however

arising.

10. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts

10.1 Nothing in this agreement is intended to have the affect of contracting out of

any applicable provisions of the Commonwealth Trade Practices Act 1974 or

the Fair Trading Acts in each of the States and Territories of Australia,

except to the extent permitted by those Acts where applicable.

11. Intellectual Property

11.1 Where the Seller has designed or drawn Goods for the Customer, then the

copyright in those designs and drawings shall remain vested in the Seller,

and shall only be used by the Customer at the Seller’s discretion.

11.2 Conversely, in such a situation, where the Customer has supplied drawings,

the Seller in its sale conditions may look for an indemnity (the specifications

and design of the Goods (including the copyright, design right or other

intellectual property in them) shall as between the parties be the property of

the Seller). Where any designs or specifications have been supplied by the

Customer for manufacture by or to the order of the Seller then the Customer

warrants that the use of those designs or specifications for the manufacture,

processing, assembly or supply of the Goods shall not infringe the rights of

any third party.

11.3 The Customer warrants that all designs or instructions to the Seller will not

cause the Seller to infringe any patent, registered design or trademark in the

execution of the Customers order.

12. Default & Consequences Of Default

12.1 Interest on overdue invoices shall accrue from the date when payment

becomes due daily until the date of payment at a rate of 2.5% per calendar

month and shall accrue at such a rate after as well as before any judgement.

12.2 If the Customer defaults in payment of any invoice when due, the Customer

shall indemnify the Seller from and against all the Seller’s costs and

disbursements including on a solicitor and own Customer basis and in

addition all of costs of collection.

12.3 Without prejudice to any other remedies the Seller may have, if at any time

the Customer is in breach of any obligation (including those relating to

payment), the Seller may suspend or terminate the supply of Goods to the

Customer and any of its other obligations under the terms and conditions.

The Seller will not be liable to the Customer for any loss or damage the

Customer suffers because the Seller exercised its rights under this clause

12.4 If any account remains unpaid at the end of the second month after supply of

the goods or services the following shall apply: An immediate amount of the

greater of $50.00 or 10% of the amount overdue shall be levied for

administration fees which sum shall become immediately due and payable.

12.5 In the event that:

(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion

the Customer will be unable to meet its payments as they fall due; or

(b) the Customer becomes insolvent, convenes a meeting with its creditors or

proposes or enters into an arrangement with creditors, or makes an

assignment for the benefit of its creditors; or

(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is

appointed in respect of the Customer or any asset of the Customer;

then without prejudice to the Seller’s other remedies at law

(i) the Seller shall be entitled to cancel all or any part of any order of the

Customer which remains unperformed in addition to and without prejudice to

any other remedies; and

(ii) all amounts owing to the Seller shall, whether or not due for payment,

immediately become payable.

13. Title

13.1 It is the intention of the Seller and agreed by the Customer that property in

the goods shall not pass until

(a) The Customer has paid all amounts owing for the particular Goods, and

(b) The Customer has met all other obligations due by the Customer to the

Seller in respect of all contracts between the Seller and the Customer, and

that the Goods, or proceeds of the sale of the Goods, shall be kept separate

until the Seller shall have received payment and all other obligations of the

Customer are met.

13.2 It is further agreed that:

(a) The Customer shall not deal with the money of the Seller in any way which

may be adverse to the Seller.

(b) Until such time as ownership of the Goods shall pass from the Seller to the

Customer the Seller may give notice in writing to the Customer to return the

Goods or any of them to the Seller. Upon such notice the rights of the

Customer to obtain ownership or any other interest in the Goods shall cease.

(c) If the Customer fails to return the Goods to the Seller then the Seller or the

Seller’s agent may enter upon and into land and premises owned, occupied

or used by the Customer, or any premises as the invitee of the Customer,

where the Goods are situated and take possession of the Goods, without

being responsible for any damage thereby caused.

(d) Receipt by the Seller of any form of payment other than cash shall not be

deemed to be payment until that form of payment has been honoured,

cleared or recognised and until then the Seller’s ownership of rights in

respect of the Goods shall continue.

(e) The Customer shall not charge the Goods in any way nor grant nor otherwise

give any interest in the Goods while they remain the property of the Seller.

(f) The Seller may require payment of the Price or the balance of the Price due

together with any other amounts due from the Customer to the Seller arising

out of these terms and conditions, and the Seller may take any lawful steps

to require payment of the amounts due and the Price.

(g) The Seller can issue proceedings to recover the Price of the Goods sold

notwithstanding that ownership of the Goods may not have passed to the

Customer.

14. Security And Charge

14.1 Notwithstanding anything to the contrary contained herein or any other rights

which the Seller may have howsoever:

(a) Where the Customer and/or the Guarantor (if any) is the owner of land, realty

or any other asset capable of being charged, both the Customer and/or the

Guarantor agree to mortgage and/or charge all of their joint and/or several

interest in the said land, realty or any other asset to the Seller or the Seller’s

nominee to secure all amounts and other monetary obligations payable

under the terms and conditions. The Customer and/or the Guarantor

acknowledge and agree that the Seller (or the Seller’s nominee) shall be

entitled to lodge where appropriate a caveat, which caveat shall be released

once all payments and other monetary obligations payable hereunder have

been met.

(b) Should the Seller elect to proceed in any manner in accordance with this

clause and/or its sub-clauses, the Customer and/or Guarantor shall

indemnify the Seller from and against all the Seller’s costs and

disbursements including legal costs on a solicitor and own Customer basis.

(c) To give effect to the provisions of clause [14.1 (a) and (b)] inclusive hereof

the Customer and/or the Guarantor (if any) do hereby irrevocably nominate

constitute and appoint the Seller or the Seller’s nominee, namely EC Credit

Control Pty Limited as the Customer’s and/or Guarantor’s true and lawful

attorney to execute mortgages and charges (whether registrable or not)

including such other terms and conditions as the Seller and/or EC Credit

Control Pty Limited shall think fit in his/her/its/their absolute discretion

against the joint and/or several interest of the Customer and/or the Guarantor

in any land, realty or asset in favour of the Seller and in the Customer’s

and/or Guarantor’s name as may be necessary to secure the said

Customer’s and/or Guarantor’s obligations and indebtedness to the Seller

and further to do and perform all necessary and other acts including

instituting any necessary legal proceedings, and further to execute all or any

documents in the Seller’s absolute discretion which may be necessary or

advantageous to give effect to the provisions of this clause.

15. Cancellation

The Seller may cancel these terms and conditions or cancel delivery of

Goods at any time before the Goods are delivered by giving written notice.

The Seller shall not be liable for any loss or damage whatever arising from

such cancellation.

16. Privacy Act 1988

16.1 The Customer and/or the Guarantor/s agree for the Seller to obtain from a

credit-reporting agency a credit report containing personal credit information

about the Customer and Guarantor/s in relation to credit provided by the

Seller.

16.2 The Customer and/or the Guarantor/s agree that the Seller may exchange

information about Customer and Guarantor/s with those credit providers

named in the Application for Credit account or named in a consumer credit

report issued by a reporting agency for the following purposes:

(a) To assess an application by Customer;

(b) To notify other credit providers of a default by the Customer;

(c) To exchange information with other credit providers as to the status of this

credit account, where the Customer is in default with other credit providers;

and

(d) To assess the credit worthiness of Customer and/or Guarantor/s.

16.3 The Customer consents to the Seller being given a consumer credit report to

collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act

1988).

16.4 The Customer agrees that Personal Data provided may be used and

retained by the Seller for the following purposes and for other purposes as

shall be agreed between the Customer and Seller or required by law from

time to time:

(a) provision of Services & Goods;

(b) marketing of Services and or Goods by the Seller, its agents or distributors in

relation to the Services and Goods;

(c) analysing, verifying and/or checking the Customer’s credit, payment and/or

status in relation to provision of Services/Goods;

(d) processing of any payment instructions, direct debit facilities and/or credit

facilities requested by Customer; and

(e) enabling the daily operation of Customer’s account and/or the collection of

amounts outstanding in the Customer’s account in relation to the Services

and Goods.

16.5 The Seller may give, information about the Customer to a credit reporting

agency for the following purposes:

(a) to obtain a consumer credit report about the Customer; and or

(b) allow the credit reporting agency to create or maintain a credit information file

containing information about the Customer.

17. Unpaid Seller’s Rights To Dispose Of Goods

17.1 In the event that:

(a) the Seller retains possession or control of the Goods; and

(b) payment of the Price is due to the Seller; and

(c) the Seller has made demand in writing of the Customer for payment of the

Price in terms of this contract; and

(d) the Seller has not received the Price of the Goods,

then, whether the property in the Goods has passed to the Customer or has

remained with the Seller, the Seller may dispose of the Goods and may claim

from the Customer the loss to the Seller on such disposal.

18. Lien & Stoppage in Transit

18.1 Where the Seller has not received or been tendered the whole of the price, or

the payment has been dishonoured, the Seller shall have:

(a) a lien on the goods;

(b) the right to retain them for the price while the Seller is in possession of them;

(c) a right of stopping the goods in transit whether or not delivery has been

made or ownership has passed; and

(d) a right of resale,

(e) the foregoing right of disposal,

provided that the lien of the Seller shall continue despite the commencement

of proceedings or judgement for the price having been obtained.

19. General

19.1 If any provision of these terms and conditions shall be invalid, void or illegal

or unenforceable the validity existence, legality and enforceability of the

remaining provisions shall not be affected, prejudiced or impaired.

19.2 All Services/Goods supplied by the Seller are subject to the laws of

Victoria and the Seller takes no responsibility for changes in the law

which affect the Services/Goods supplied.

19.3 The Seller shall be under no liability whatever to the Customer for any

indirect loss and/or expense (including loss of profit) suffered by the

Customer arising out of a breach by the Seller of these terms and conditions.

19.4 In the event of any breach of this contract by the Seller the remedies of the

Customer shall be limited to damages. Under no circumstances shall the

liability of the Seller exceed the Price of the Goods.

19.5 The Customer shall not set off against the Price amounts due from the

Seller.

19.6 The Seller may license or sub-contract all or any part of its rights and

obligations without the Customer’s consent.

19.7 The Seller reserves the right to review these terms and conditions at any

time and from time to time. If, following any such review, there is to be any

change in such terms and conditions, that change will take effect from the

date on which the Seller notifies the Customer of such change.

19.8 Neither party shall be liable for any default due to any act of God, terrorism,

war, strike, lock out, industrial action, fire, flood, drought, storm or other

event beyond the reasonable control of either party.

19.9 In the event that the Customer requests a further breakdown of invoice

components than is usually provided by the Seller then the Seller reserves

the right to charge an invoice production fee. Any such fee is to become

immediately due and payable.