1. Definitions
    • “DWS” means Forditude Operations Pty Ltd T/A Direct Wholesale Services, its successors and assigns or any person acting on behalf of and with the authority of Forditude Operations Pty Ltd T/A Direct Wholesale Services.
    • “Customer” means the person/s buying the Goods (and/or hiring Equipment) as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
    • “Goods” means all Goods or Services supplied by DWS to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
    • “Equipment” means all Equipment including any accessories supplied on hire by DWS to the Customer (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by DWS to the Customer.
    • “Price” means the Price payable for the Goods and/or Equipment hire as agreed between DWS and the Customer in accordance with clause 6

 

  1. Acceptance
    • The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods/Equipment.
    • These terms and conditions may only be amended with DWS’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and DWS.
    • The Customer acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, DWS reserves the right to vary the Price with alternative Goods as per clause 2.  DWS also reserves the right to halt all Services until such time as DWS and the Customer agree to such changes.

 

  1. Electronic Transactions Act 2000
    • Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.

 

  1. Online Ordering
    • The Customer acknowledges and agrees that:
      • DWS does not guarantee the website’s performance or availability of any of its Goods; and
      • on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades; and
      • there are inherent hazards in electronic distribution and as such DWS cannot warrant against delays or errors in transmitting data between the customer and DWS including orders. The Customer agrees that to the maximum extent permitted by law, DWS will not be liable for any losses which the Customer suffers as a result of online-ordering not being available or for delays or errors in transmitting orders.
    • DWS reserves the right to terminate the Customer’s order in the event that DWS learns that the Customer has provided false or misleading information, interfered with other users or the administration of DWS’s Services, or violated these terms and conditions.
    • Although DWS endeavours to ensure that the Price displayed online is up to date, the Customer acknowledges that this may not always be possible, and that the Price may vary from time to time. It is the Customer’s responsibility to confirm the Price at the time of ordering.

 

  1. Change in Control
    • The Customer shall give DWS not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by DWS as a result of the Customer’s failure to comply with this clause.

 

  1. Price and Payment
    • At DWS’s sole discretion the Price shall be either:
      • as indicated on any invoice provided by DWS to the Customer; or
      • the Price as at the date of delivery of the Goods/Equipment according to DWS’s current price list; or
      • DWS’s quoted price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
    • DWS reserves the right to change the Price if a variation to DWS’s quotation is requested. Any variation from the plan of scheduled Services or specifications of the Goods beyond DWS’s control (including, but not limited to, any variation as a result of increases to DWS in the cost of materials and labour, taxes, levies, international freight and insurance changes, or fluctuations in currency exchange rates, or where the Goods are detained for any quarantine and/or inspection) will be charged for on the basis of DWS’s quotation and will be shown as variations on the invoice.
    • At DWS’s sole discretion a deposit may be required.
    • Time for payment for the Goods/Equipment being of the essence, the Price will be payable by the Customer on the date/s determined by DWS, which may be:
      • on delivery of the Goods/Equipment;
      • the date specified on any invoice or other form as being the date for payment; or
      • failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by DWS.
    • Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by any other method as agreed to between the Customer and DWS.
    • Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to DWS an amount equal to any GST DWS must pay for any supply by DWS under this or any other agreement for the sale of the Goods/hire of the Equipment. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

 

  1. Delivery of Goods/Equipment
    • Delivery (“Delivery”) of the Goods/Equipment is taken to occur at the time that:
      • the Customer or the Customer’s nominated carrier takes possession of the Goods/Equipment at DWS’s address; or
      • DWS (or DWS’s nominated carrier) delivers the Goods/Equipment to the Customer’s nominated address even if the Customer is not present at the address.
    • At DWS’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
    • DWS may deliver the Goods/Equipment in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
    • Any time or date given by DWS to the Customer is an estimate only. The Customer must still accept delivery of the Goods/Equipment even if late and DWS will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.

 

  1. Risk
    • Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
    • If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, DWS is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by DWS is sufficient evidence of DWS’s rights to receive the insurance proceeds without the need for any person dealing with DWS to make further enquiries.
    • If the Customer requests DWS to leave Goods outside DWS’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Customer’s sole risk.
    • If DWS has been requested by the Customer to diagnose a fault that requires disassembly and/or testing, all costs involved will be charged to the Customer irrespective of whether or not the repair goes ahead.
    • The Customer acknowledges that DWS is only responsible for parts that are replaced by DWS and that in the event that other parts/Goods, subsequently fail, the Customer agrees to indemnify DWS against any loss or damage to the parts/Goods, or caused by the Goods, or any part thereof howsoever arising.

 

  1. Access
    • Where applicable, the Customer shall ensure that DWS has clear and free access to the Customer’s site at all times to enable them to undertake the Services and/or to deliver the Goods. The Seller shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of DWS.

 

  1. Title To Goods
    • DWS and the Customer agree that ownership of the Goods shall not pass until:
      • the Customer has paid DWS all amounts owing to DWS; and
      • the Customer has met all of its other obligations to DWS.
    • Receipt by DWS 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.
    • It is further agreed that:
      • until ownership of the Goods passes to the Customer in accordance with clause 1 that the Customer is only a bailee of the Goods and must return the Goods to DWS on request.
      • the Customer holds the benefit of the Customer’s insurance of the Goods on trust for DWS and must pay to DWS the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
      • the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for DWS and must pay or deliver the proceeds to DWS on demand.
      • the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of DWS and must sell, dispose of or return the resulting product to DWS as it so directs.
      • the Customer irrevocably authorises DWS to enter any premises where DWS believes the Goods are kept and recover possession of the Goods.
      • DWS may recover possession of any Goods in transit whether or not delivery has occurred.
      • the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of DWS.
      • DWS may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.

 

  1. Personal Property Securities Act 2009 (“PPSA”)
    • In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
    • Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods/Equipment and/or collateral (account) – being a monetary obligation of the Customer to DWS for Services – that have previously been supplied and that will be supplied in the future by DWS to the Customer.
    • The Customer undertakes to:
      • promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which DWS may reasonably require to;
        • register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
        • register any other document required to be registered by the PPSA; or
        • correct a defect in a statement referred to in clause 2(a)(i) or 11.2(a)(ii);
      • indemnify, and upon demand reimburse, DWS for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods/Equipment charged thereby;
      • not register a financing change statement in respect of a security interest without the prior written consent of DWS;
      • not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods/Equipment and/or collateral (account) in favour of a third party without the prior written consent of DWS;
      • immediately advise DWS of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
    • DWS and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
    • The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
    • The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
    • Unless otherwise agreed to in writing by DWS, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
    • The Customer must unconditionally ratify any actions taken by DWS under clauses 2 to 11.5.
    • Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

 

  1. Security and Charge
    • In consideration of DWS agreeing to supply the Goods/Equipment, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
    • The Customer indemnifies DWS from and against all DWS’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising DWS’s rights under this clause.
    • The Customer irrevocably appoints DWS and each director of DWS as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Customer’s behalf.

 

  1. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
    • The Customer must inspect the Goods/Equipment on delivery and must within seven (7) days of delivery notify DWS in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods/Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow DWS to inspect the Goods/Equipment.
    • Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
    • DWS acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
    • Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, DWS makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods/Equipment. DWS’s liability in respect of these warranties is limited to the fullest extent permitted by law.
    • If the Customer is a consumer within the meaning of the CCA, DWS’s liability is limited to the extent permitted by section 64A of Schedule 2.
    • If DWS is required to replace the Goods under this clause or the CCA, but is unable to do so, DWS may refund any money the Customer has paid for the Goods.
    • If the Customer is not a consumer within the meaning of the CCA, DWS’s liability for any defect or damage in the Goods is:
      • limited to the value of any express warranty or warranty card provided to the Customer by DWS at DWS’s sole discretion;
      • limited to any warranty to which DWS is entitled, if DWS did not manufacture the Goods;
      • otherwise negated absolutely.
    • Subject to this clause 13, returns will only be accepted provided that:
      • the Customer has complied with the provisions of clause 1; and
      • DWS has agreed that the Goods are defective; and
      • the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
      • the Goods are returned in as close a condition to that in which they were delivered as is possible.
    • Notwithstanding clauses 1 to 13.8 but subject to the CCA, DWS shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
      • the Customer failing to properly maintain or store any Goods/Equipment;
      • the Customer using the Goods/Equipment for any purpose other than that for which they were designed;
      • the Customer continuing the use of the Goods/Equipment after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
      • the Customer failing to follow any instructions or guidelines provided by DWS;
      • fair wear and tear, any accident, or act of God.
    • In the case of second hand Goods, unless the Customer is a consumer under the CCA, the Customer acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by DWS as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Customer acknowledges and agrees that DWS has agreed to provide the Customer with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 10.
    • DWS may in its absolute discretion accept non-defective Goods for return in which case DWS may require the Customer to pay handling fees of up to twenty percent (20%) of the value of the returned Goods plus any freight costs.
    • Notwithstanding anything contained in this clause if DWS is required by a law to accept a return then DWS will only accept a return on the conditions imposed by that law.

 

  1. Default and Consequences of Default
    • Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at DWS’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    • If the Customer owes DWS any money the Customer shall indemnify DWS from and against all costs and disbursements incurred by DWS in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, DWS’s contract default fee, and bank dishonour fees).
    • Further to any other rights or remedies DWS may have under this contract, if a Customer has made payment to DWS by credit card, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by DWS under this clause 14 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this agreement.
    • Without prejudice to any other remedies DWS may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions DWS may suspend or terminate the supply of Goods/Equipment to the Customer. DWS will not be liable to the Customer for any loss or damage the Customer suffers because DWS has exercised its rights under this clause.
    • Without prejudice to DWS’s other remedies at law DWS shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to DWS shall, whether or not due for payment, become immediately payable if:
      • any money payable to DWS becomes overdue, or in DWS’s opinion the Customer will be unable to make a payment when it falls due;
      • 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
      • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

 

  1. Cancellation
    • DWS may cancel any contract to which these terms and conditions apply or cancel delivery of Goods/Equipment at any time before the Goods/Equipment are due to be delivered by giving written notice to the Customer. On giving such notice DWS shall repay to the Customer any money paid by the Customer for the Goods/Equipment. DWS shall not be liable for any loss or damage whatsoever arising from such cancellation.
    • In the event that the Customer cancels delivery of the Goods/Equipment the Customer shall be liable for any and all loss incurred (whether direct or indirect) by DWS as a direct result of the cancellation (including, but not limited to, any loss of profits).
    • Cancellation of orders for Goods/Equipment made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

 

  1. Dispute Resolution
    • If a dispute arises between the parties to this contract, then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
      • referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
      • conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.

 

  1. Privacy Act 1988
    • The Customer agrees for DWS to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by DWS.
    • The Customer agrees that DWS may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
      • to assess an application by the Customer; and/or
      • to notify other credit providers of a default by the Customer; and/or
      • 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/or
      • to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two years.
    • The Customer consents to DWS being given a consumer credit report to collect overdue payment on commercial credit.
    • The Customer agrees that personal credit information provided may be used and retained by DWS for the following purposes (and for other agreed purposes or required by):
      • the provision of Goods/Equipment; and/or
      • analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods/Equipment; and/or
      • processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
      • enabling the collection of amounts outstanding in relation to the Goods/Equipment.
    • DWS may give information about the Customer to a CRB for the following purposes:
      • to obtain a consumer credit report;
      • allow the CRB to create or maintain a credit information file about the Customer including credit history.
    • The information given to the CRB may include:
      • personal information as outlined in 1 above;
      • name of the credit provider and that DWS is a current credit provider to the Customer;
      • whether the credit provider is a licensee;
      • type of consumer credit;
      • details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
      • advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and DWS has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
      • information that, in the opinion of DWS, the Customer has committed a serious credit infringement;
      • advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
    • The Customer shall have the right to request (by e-mail) from DWS:
      • a copy of the information about the Customer retained by DWS and the right to request that DWS correct any incorrect information; and
      • that DWS does not disclose any personal information about the Customer for the purpose of direct marketing.
    • DWS will destroy personal information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
    • The Customer can make a privacy complaint by contacting DWS via e-mail. DWS will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.

 

  1. Unpaid Seller’s Rights
    • Where the Customer has left any item with DWS for repair, modification, exchange or for DWS to perform any other service in relation to the item and DWS has not received or been tendered the whole of any moneys owing to it by the Customer, DWS shall have, until all moneys owing to DWS are paid:
      • a lien on the item; and
      • the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
    • The lien of DWS shall continue despite the commencement of proceedings, or judgment for any moneys owing to DWS having been obtained against the Customer.

 

  1. Equipment Hire
    • Equipment shall at all times remain the property of DWS and is returnable on demand by DWS. In the event that Equipment is not returned to DWS in the condition in which it was delivered DWS retains the right to charge the Customer the full cost of repairing the Equipment. In the event that Equipment is not returned at all DWS shall have right to charge the Customer the full cost of replacing the Equipment.
    • The Customer shall;
      • keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to a lien over the Equipment.
      • not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment.
      • keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by DWS to the Customer.
    • The Customer accepts full responsibility for the safekeeping of the Equipment and the Customer agrees to insure, or self-insure, DWS’s interest in the Equipment and agrees to indemnify DWS against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Customer will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.

 

  1. General
    • The failure by DWS to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect DWS’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    • These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in which DWS has its principal place of business, and are subject to the jurisdiction of the courts in that state.
    • Subject to clause 13 DWS shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by DWS of these terms and conditions (alternatively DWS’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods/Equipment hire).
    • The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by DWS nor to withhold payment of any invoice because part of that invoice is in dispute.
    • DWS may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
    • The Customer agrees that DWS may amend these terms and conditions at any time. If DWS makes a change to these terms and conditions, then that change will take effect from the date on which DWS notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for DWS to provide Goods/Equipment to the Customer.
    • Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
    • The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
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