Terms and conditions upon which Whites Diesels Australia, ABN 12 102 504 487, more particularly hereinafter referred to as “Whites Diesels” may supply goods or render services on credit to any person or corporate body or organisation or institution hereinafter more particularly referred to and included in the term “The Customer”.
1. All goods supplied by Whites Diesels to the Customer on credit during any calendar month will be paid for in full by the Customer on or before the last trading day in the calendar month following the date of the invoice (the credit period).
2. Whites Diesels may vary their terms and conditions of the credit application by notice in writing to the Customer. The Customer agrees that the ordering of any goods and services after the notice of variation will be an acceptance of the varied terms and conditions.
3. Whites Diesels may decline any order for goods and services (wholly or partially) at any time prior to the delivery of goods and services, in which case Whites Diesels shall be under no obligation in respect of the order for the goods or services.
4. A certificate signed by Whites Diesels or any of its directors, secretary, the credit manager or any other authorised officer for the time being of Whites Diesels and stating the balance of the monies due by the Customer shall be conclusive evidence of the indebtedness of the Customer as at the date of the Certificate.
5. If the Customer fails to pay Whites Diesels for goods and services within the credit period Whites Diesels may:
(a) Suspend credit extended to the Customer and the balance of the account shall immediately become due and payable without further demand.
(b) Withhold the delivery of goods and services already ordered.
(c) Charge interest on the overdue amount at the overdraft rate payable by Whites Diesels plus 2% calculated on daily balances on the amount overdue until payment in full.
(d) Charge costs (on a Solicitor and own client basis) of any attempt made by or on behalf of Whites Diesels to recover monies for goods and services from the Customer or to secure any indebtedness or liability to the Customer.
6. Whites Diesels reserves the right at all times to suspend the supply of other goods and services to the Customer without having to give reasons for its actions to the Customer or the Customers agent.
7. Credit facilities granted on the basis of information provided in this application are not transferable without the consent in writing of Whites Diesels.
8. Whites Diesels is to be notified in writing forthwith by the Customer if any of the following events occur:
(a) Change of the Customer’s address.
(b) Change of the proprietors of the Customer.
(c) Listing of the Customer’s business for sale.
(d) Any Court or other proceeding being issued against business, company proprietors or directors of the Customer or the Guarantors.
(e) Any judgement or other order obtained against the business, company, proprietors or directors of the Customer or the Guarantors.
(f) Any change in the Customer’s company’s structure of shareholding.
9. If the Customer of any one of the Customers is a company, that fact is to be disclosed forthwith and the guarantee on the credit application form must be executed by the directors of the Customer’s company.
10. Whites Diesels will endeavour to comply with the time of delivery of goods and services requested by the Customer (or specified by Whites Diesels on invoice) but delivery on time is not guaranteed nor is it of the essence of the Contract of Sale of the goods or services. Time of delivery is subject to extension to cover delays caused by strikes, lockouts, war, breakdowns, accidents, delays in transport, fire, default of subcontractors and any other cause beyond the responsible control of Whites Diesels.
11. Whites Diesels will not be liable for any loss or damage (whether in Contract, tort or otherwise and whether direct or indirect) arising out of delay in delivery of goods or services.
12. All goods shall be at the risk of the Customer from the time of despatch of the goods by the supplier for delivery to the Customer and responsibility for insurance during transit rests with the Customer solely. The supplier will arrange insurance on behalf of the Customer only being expressly requested to do so by the Customer in writing. Costs for such insurance shall be debited to the Customers account with the supplier.
13. If any charges appearing on an invoice are disputed by the Customer, written notice of such dispute must be given to Whites Diesels within seven (7) days of receipt of the invoice.
14. If any charge is alleged to be in dispute, the Customer will pay for all the other charges appearing on the invoice pending an investigation of the charge or charges so disputed.
15. The Customer has seven (7) days from the date of delivery of goods within which to provide to the supplier written notice of any alleged claim for failure to comply with the order whether due to shortfall, defect, incorrect delivery or otherwise. Should the Customer fail to provide such notice within the stipulated time period the supplier shall be deemed to have complied with the Customer’s order in all respects including delivery, quantity and quality.
16. Pending payment for goods, the Customer must store the goods in good condition and in a way which clearly indicates Whites Diesels title to them.
17. If the Customer resells the goods before they are paid for in full, the Customer must account to Whites Diesels for the proceeds of that sale And, in the interim will hold those proceeds as a trustee for Whites Diesels.
18. Whites Diesels shall have the right to deliver instalments of any goods ordered by the Customer. All Instalments shall be separately invoiced and must be paid for as billed without regard to subsequent delivery. Failure to pay for an instalment when due shall excuse Whites Diesels from making further delivery.
19. SPECIAL CONDITIONS
(a) Retention of Title Notwithstanding that delivery of goods shall have been made to the Customer at the date of delivery and / or other like matters, title of and ownership rights to goods shall not pass from Whites Diesels as the vendor to the Customer as purchaser until the date of payment therefore and pending payment the legal title to goods shall remain vested in Whites Diesels by way of security for payment accordingly as regards goods delivered but not paid for as aforesaid, the relationship between Whites Diesels and the Customer id that of bailor and bailee respectively. The Customer agrees that any officer of Whites Diesels shall be entitled to enter upon any premises leased or owned by the Customer at any time for any purpose connected with or in relation to the protection or enforcement of these terms and conditions. The Customer expressly agrees that in the event that the Customer fails to pay to Whites Diesels the invoiced price of any goods and services at the expiry of the credit period, Whites Diesels, at the expiry of the credit period, shall have the right to bring an action against the Customer for the payment of the invoiced price of the said goods not withstanding that ownership of the said goods delivered to the Customer has not passed or been transferred to the Customer.
(b) Charge Should it be held that legal title to goods shall as at the date of use or some other date pass to the Customer, nevertheless equitable and beneficial ownership in and to used goods shall remain with Whites Diesels all the right title and interest of the Customer in and to goods after usage irrespective of where such goods are mixed with other goods and / or materials to manufacture goods (mixed goods) and as well the proceeds of sale received of receivable (book debts) by the Customer for used goods and / or mixed goods for payment of the monies owing.
(c) Lien The Customer hereby grants to Whites Diesels a lien over any property whatsoever of any description or nature being lawfully in The custody, possession or control of Whites Diesels and notwithstanding their terms and conditions, if any, upon which Whites Diesels Obtained custody, possession and control or the terms of any bailment and charges the property by way of security to Whites Diesels with the payment or repayment of all and any monies due, owing and payable to or otherwise outstanding in favour of Whites Diesels from the Customer.
20. To better secure payment of all monies which the Customer may become liable to pay pursuant to these terms and conditions, the customer’s charges as beneficial owner thereof all the Customer’s freehold and leasehold interest in the land both of which the Customer is now possessed and which may hereafter be acquired along with the Customer’s personal property both presently owned by the Customer and that which the Customer may hereafter acquire. The Customer further agrees that immediately upon demand being made upon the Customer by Whites Diesels, the Customer will deliver to Whites Diesels, Bill of Mortgage of Encumbrance or other instrument of security or consent to such Caveat as Whites Diesels may require duly executed and consented to by the Customer and if the Customer should neglect or fail to do so, hereby appoints Whites Diesels to be their lawful attorney for all such purposes of executing and registering such instrument.
21. All expressed and implied terms, conditions and warranties on the part of Whites Diesels which might apply to or arise out of the sale of goods or services by Whites Diesels to the Customer are excluded, except to the extent that any law (including Part B of the Trade Purchases Act 1974) does not permit them to be excluded.
22. Whites Diesels shall in no circumstances be liable in Contract, tort (including Negligence or otherwise for any loss of protective profits or production, wasted overheads or expenses or special, indirect or consequential damages arising out of the supply of goods to the Customer.
23. Any liability of Whites Diesels for a breach of any conditional warranty express or implied in the supply of goods by Whites Diesels to the Customer shall be limited to the replacement of the goods or the supply of equivalent goods or the payment of the cost of replacing the goods (which ever Whites Diesels determines to be appropriate in the circumstance) provided that Whites Diesels may not relay on the cause if it is not fair or reasonable to Section 68A (2) and (3) of the Trade Practices Act 1974 or any similar applicable State Legislation.
24. These terms and conditions and any transaction contemplated by them shall be governed by the Law of Queensland and the Customer shall submit to the jurisdiction of courts in Queensland.
1. Whites Diesels warrants new parts to be free from defects in material and workmanship for a period of twelve (12) months from date of supply unless the manufacturers warranty is equivalent to or greater in which case that warranty will apply to the exclusion of this warranty.
2. Whites Diesels liability in respect of any defaults in material or workmanship is limited to the replacement or the repair (at Whites Diesels option) of any part supplied by Whites Diesels.
3. This warranty only applies if Whites Diesels is satisfied upon examination that the product has been correctly installed and used and properly and regularly maintained only by qualified personnel.
4. Normal wear and tear is not covered by this warranty.
5. Whites Diesels shall in no circumstances be liable to the purchaser, its successors, assigns, employees, agents or customers for any loss or consequential damage of any nature arising by reason of any defects in goods supplied.
6. Used parts carry no warranty.
7. Reconditioned units are subject to six (6) months warranty from date of supply.
8. Rebuilt units are subject to three (3) months warranty from date of supply.
9. All warranty parts must be returned freight prepaid to Whites Diesels premises.
10. Whites Diesels reserves the right to limit the terms of this warranty in respect of goods pursuant to a particular invoice by stating on the invoice the terms of the warranty.
11. Nothing in these conditions shall exclude, restrict or modify any condition, warranty or liability which may at any time be implied by the Trade Practice Act 1974, Sales of Goods Legislation or any other law where to do so is illegal or would render any provisions of these conditions void.
12. To the maximum extent permitted by law, all other warranties, terms and conditions, in relation to the state, quality or fitness of the parts and of every other kind, whether implied by use, statute or otherwise, are hereby excluded.
13. This warranty shall not be transferable and shall ensure for the benefit of the purchaser only.
Any service or advice which may be offered by Whites Diesels, its servants or agents to users of its products is rendered in all good faith and Whites Diesels, its servants or agents shall not be liable for any loss or damage arising there from.
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