- Definitions Unless the context otherwise requires:-
- “Buyer” means the Buyer named in the Order Form
- “Contract” means the Contract incorporating these Terms and Conditions and the Order Form
- “Deposit” means the deposit specified in the Order Form
- “Goods” means the goods described in the Order Form and includes any associated equipment/accessories, _parts, attached to, or tools supplied with, the Goods.
- “GST” means the tax that is payable under A New Tax System (Goods and Services Tax) Act 1999, as amended.
- “Person” includes a corporation
- “Purchase Price” means the price payable for the Goods, including GST, as indicated in the Order Form
- “Terms Contract” means a contract whereby possession of the Goods is given by Vermeer to the Buyer prior _to the payment of the whole Purchase Price
- “Trade-in” means the item of machinery or equipment identified as such in the Order Form
- “Vermeer” means Vermeer Equipment Holdings Pty Ltd, ABN 82 169 836 533.
2. Offer and Acceptance
2.1 Any quotation made by Vermeer is not an offer to sell and no order given in pursuance of any quotation shall be binding until accepted by Vermeer in writing.
2.2 These Terms and Conditions of Sale represent the only terms and conditions authorised and accepted by Vermeer and shall apply to and form part of any contract arising from acceptance in writing by Vermeer or any order placed by the Buyer.
2.3 Any order placed by the Buyer for goods embodying terms inconsistent with these Terms and Conditions shall be deemed to be excluded from this Contract.
2.4 Any variation to these Terms and Conditions shall be inapplicable unless agreed to in writing by Vermeer
3.1 The Buyer is not entitled to a refund of the Deposit if:
3.1.1 it has been paid under a contract where Vermeer is requested by the Buyer, or is required, to import Goods of specifications nominated by the Buyer and the Buyer fails to complete the contract other than through the fault of Vermeer; or
3.1.2 It is paid under a Terms Contract and the Buyer defaults under that contract and does not remedy that default; or
3.1.3 It is paid under a Contract which does not proceed for any reason, other than through the default of Vermeer, and Vermeer incurs expenditure under the Contract.
3.2 If Vermeer is entitled to the Deposit pursuant to clause 3.1 and the Contract did not proceed by reason of the Buyer not having obtained finance and the Buyer notified Vermeer that it was unable to do so as required by clause 6.2, then Vermeer will refund to the Buyer any balance Deposit remaining after Vermeer has reimbursed itself for all expenditure incurred under the Contract.
4.1 The Buyer must pay the balance Purchase Price for the Goods to Vermeer when notified that the Goods are available for Delivery to the Buyer.
4.2 Any payment to be made by the Buyer shall be deemed not to have been made until received by Vermeer in cleared funds.
5.1 Delivery of the Goods shall be made by Vermeer notifying the Buyer that the Goods are available for collection at Vermeer’s premises or for Delivery to such place and on such terms as agreed between Vermeer and the Buyer at the time the order is placed.
5.2 Vermeer will use its best endeavours to deliver the Goods on or before the Delivery Date but will not be held responsible for any delay or failure to so deliver on the Delivery Date. Time is not of the essence of this contract in relation to Delivery.
5.3 Vermeer will not be responsible for any undue delay or failure to deliver or perform by reason beyond Vermeer’s control or for any contingent or consequential loss or damage arising from such delay or failure.
6.1 Where this Contract is subject to finance, the Buyer must immediately make application for such finance and do all things reasonable and necessary to obtain finance approval. The Buyer must notify Vermeer on or before the Approval Date whether it has been able to obtain finance.
6.2 If the Buyer has notified Vermeer by the Approval Date that it has been unable to obtain approval for finance, then subject to the provision of clause 3, this Contract shall be at an end and the deposit refunded to the Buyer provided however that the Buyer shall be bound to complete the purchase unless it notifies Vermeer in writing on or prior to the Approval Date that finance has not been approved.
7. Buyer’s Risk
Risk of loss or damage to the Goods shall pass to the Buyer on delivery to or collection by the Buyer of the Goods.
8. Retention of Title
8.1 Until the Goods are paid for in full;
8.1.1 Ownership of the Goods shall remain with Vermeer but the risk shall pass to the Buyer as provided for in clause 7;
8.1.2 The Goods are held by the Buyer as fiduciary as bailee for Vermeer.
9. Default by Buyer
9.1 The Buyer will be in default under this Contract if, within 2 working days from Vermeer notifying the Buyer that the Goods are ready for delivery, the Buyer refuses or fails to pay for or take delivery of the Goods, refuses or fails to pay all monies owing to Vermeer on delivery or defaults in any way in respect of the trade-in.
9.2 If the Buyer is in default under this Contract, Vermeer may at its option and notwithstanding that property in the Goods has not passed to the Buyer, sue for and recover the balance of the Purchase Price outstanding and any expenses and costs and interest incurred as a consequence of the Buyer’s default as aforesaid and any monies paid by the Buyer shall be forfeited to Vermeer.
9.3 The Buyer will also be in default of it if:
9.3.1 ceases to carry on its business or threatens to do so;
9.3.2 becomes insolvent;
9.3.3 commits an act of bankruptcy;
9.3.4 in the case where the Buyer is a company, an Administrator is appointed or a receiver or receiver and manager are appointed to any of its assets;
9.3.5 A petition is presented for its winding up;
9.3.6 it enters into any arrangement with its creditors.
9.4 Where the Buyer has made default under this Contract;
9.4.1 The whole of the balance of the Purchase monies remaining unpaid shall immediately become due and payable and recoverable by Vermeer;
9.4.2 Vermeer shall have the right to repossess the goods at any time and to enter the premises of the Buyer for such purpose without liability and without prejudice pursue any other legal remedy available to Vermeer.
10.1 In the case of new Goods, the only warranties which apply are the warranties provided by the manufacturer of the Goods, Vermeer Corporation of the USA.
10.2 The Buyer acknowledges that it has read and is aware of such Manufacturer’s Warranties which are set out in the Vermeer Corporation Industrial Registration form which the Buyer has signed contemporaneously with this Contract.
10.3 In the case of used Goods, Vermeer warrants that the Goods shall be in good working order for…………working days/hours commencing from the date upon which the Goods are available for delivery providing however, that where this warranty applies:
10.3.1 The cost of all necessary parts shall be borne by Vermeer as to ………..per cent and the balance by the Buyer.
10.3.2 The cost of labour necessary shall be borne by Vermeer as to ………..per cent and the balance by the Buyer.
10.3.3 The cost of transportation of the Goods to Vermeer shall be borne by the Buyer and the cost of Vermeer’s attendance on site where the Goods are not on Vermeer’s premises shall be borne by the Buyer.
10.4 This warranty shall apply only if subclause 10.3 has been fully completed and only in respect of claims made buy the Buyer within 7 days of the date upon which the clause of the claim arises. If this clause is not completed then the Buyer shall be deemed to have accepted the Goods in an “as is where is” condition.
10.6 Any work necessary under the terms of this warranty shall be performed by Vermeer or a person authorised by Vermeer and the benefit of any warranty hereunder shall not be transferable.
11. Limitation of Liability
11.1 At the time of Delivery of the Goods, the Buyer must satisfy itself that the Goods are in accordance with the description contained in this Contract.
11.2 To the extent permissible by law all conditions, warranties and liabilities, whether expressed or implied, which are not expressly set out herein, are excluded. Without limiting the generality of the preceding sentence and to the extent permissible by law, Vermeer shall not be liable for any loss or damage (including special or consequential loss or damage) arising out of or in connection with this Contract or the supply of goods pursuant thereto whether caused by negligence on the part of Vermeer or any person acting with or without the authority of Vermeer or by breach of any terms, conditions or warranty whether expressed or implied.
12. Proper Law
12.1 This Contract shall be governed by and interpreted in accordance with the laws of the State in which Vermeer has its place of business.
13.1 Any notice given by one party to the other relating to any matter arising under this Contract must be given by post, facsimile or hand to or at the address set out in the Order Form or to such other address or facsimile number as is notified in writing by one party to another.
14. Time is of Essence
14.1 Time is of the essence in relation to all matters arising under this Contract save for clause 5.2.