1.1 “Acceptance” has the meaning given in clause 2.3.
1.2 “Approval” means any consent, approval, order, certificate of authorisation of, or registration, declaration or filing with, or permit from, or notice to, any Authority required by applicable law.
1.3 “Australian Standards” refers to published documents setting out specifications and procedures designed to ensure products, services and systems are safe, reliable and consistently perform the way they are intended to.
1.4 “Authority” means any relevant administrative, judicial, executive, legislative or other governmental entity, department, agency, commission, board, bureau or court, and any other regulatory or self-regulatory organisations, in any country or jurisdiction.
1.5 “Buyer” means any purchaser of Goods and/or Services from Fanquip Operations Pty Ltd or any person acting on behalf of and with the authority of the Buyer.
1.6 “Consequential Loss” means any consequential, indirect, remote or unforeseeable loss, including without limitation; loss of profits or revenue, loss of use, economic or financial loss, loss of production or loss by reason of shutdown or non-operation, loss of business, loss of opportunity, business interruption, loss of goodwill or business reputation, loss of anticipated savings, increased financing or operating costs and/or exemplary or punitive damage, suffered or incurred by the Buyer or any third party.
1.7 “Contract” has the meaning given in clause 2.4.
1.8 “Dispatch” means when the Goods leave Fanquip Operations Pty Ltd premises for Delivery to the Buyer.
1.9 “Deliver”/“Delivery” means: if the Goods are to be collected by the Buyer or its carrier from Fanquip Operations Pty Ltd, when loading of the Goods commences by the Buyer or its carrier; and if the Goods are to be delivered to the Buyer or its carrier by Fanquip Operations Pty Ltd or its carrier, when the Goods are unloaded at the delivery place.
1.10 “Force Majeure” means an act of God, war, pandemic, fire, strike, lockout, trade or industrial dispute, government interference, transport delays, accidents, breakdown of plant or machinery, or any other cause beyond Fanquip Operations Pty Ltds control.
1.11 “Goods” means the Goods and/or Equipment referred to in the Order and supplied by Fanquip Operations Pty Ltd to the Buyer under the Contract.
1.12 “GST” has the same meaning as in the A New Tax System Goods & Services Tax Act 1999 (Cth) (as amended).
1.13 “Intellectual Property” means all industrial and intellectual property rights whether protectable by statute, common law or equity including without limitation, all copyright in the Goods and all materials provided in connection with the Goods, rights in relation to inventions (including all patents and patent applications), trade secrets and know-how, design rights (registrable or not), trade mark rights (registered or not), circuit layout design rights and excluding non-assignable moral rights.
1.14 “Fanquip Operations Pty Ltd” means Fanquip Operations Pty Ltd ABN 33 676 833 533 with the registered address 1 Civic Avenue, Singleton NSW 2330 Australia.
1.15 “Order” means a request or purchase order for Goods and/or Services made by a Buyer pursuant to a Quote.
1.16 “Price” means the price of the Goods and/or Services specified in the Quote and subject to the Terms.
1.17 “Quote” means the quotation provided by Fanquip Operations Pty Ltd to the Buyer for the Price, specification and scope of the Goods and/or Services, including any special terms and conditions set out in the Quote, and includes any revised Quote.
1.18 “Services” means any services specified in the Order and any incidental work that can be reasonably inferred as necessary or appropriate to perform those services.
1.19 “SOPA” means the Building and Construction Industry Security of Payment Act 1999 (NSW).
1.20 “Terms” means these Terms and Conditions for the sale of Goods and Services by Fanquip Operations Pty Ltd.
2. The Contract.
2.1 By making an Order, the Buyer offers to contract with Fanquip Operations Pty Ltd on the basis of the Order, the Quote and the Terms.
2.2 Along with the Order, the Buyer must return a signed copy of the Terms. These Terms will still apply to any Order regardless of whether the Buyer returns a signed copy.
2.3 Fanquip Operations Pty Ltd accepts an Order made by the Buyer when notification of Acceptance of the Order is provided by Fanquip Operations Pty Ltd to the Buyer.
2.4 Upon Acceptance, a binding Contract comes into existence between Fanquip Operations Pty Ltd and the Buyer incorporating the following documents:
a) the Quote or any revised Quote;
b) the Terms;
c) the Order; and
d) the notice of Acceptance of the Order.
2.5 These Terms apply to all Quotes and Orders and will prevail over any terms and conditions proposed or asserted by the Buyer.
2.6 In the event of any inconsistency, ambiguity or discrepancy, the order of precedence in clause 2.4 applies with the first listed document taking the highest priority and so on.
3.1 “Acceptance” has the meaning given in clause 2.3.
3.2 Should there be any variation in the Goods and/or Services, Delivery instructions or any other item or matter on which the Quote is based, Fanquip Operations Pty Ltd reserves the right to revise and amend the Price accordingly. The Price may be adjusted by Fanquip Operations Pty Ltd to take into account variations in the cost to Fanquip Operations Pty Ltd arising from alteration or adjustment to the Goods and/or Services requested by the Buyer, delays in manufacture or Delivery, variation in government charges and statutory fees, labour difficulties, and any variation to exchange rates relevant to the calculation of the Price and which occur after the date of the Quote.
3.3 The Buyer must pay GST or any other tax duty, levy, tariff or charge applicable to the supply of the Goods and/or Services in addition to, and at the same time as, payment of the Price. Fanquip Operations Pty Ltd will provide the Buyer with a tax invoice as required by law.
3.4 Unless the Quote states otherwise, the Buyer must pay the Price for Goods and/or Services supplied to it within 30 days of the date of the invoice for such Goods and/or Services. Interest shall be payable by the Buyer on all amounts overdue to seller at the rate of 12% per annum accruing, calculated from the due date for payment of the outstanding amount until the date of payment by the Buyer. Any payment made by the Buyer will be credited first against any interest that has accrued.
3.5 The Buyer must not withhold payment or make any deduction from the invoiced Price or any other amount owing to Fanquip Operations Pty Ltd without Fanquip Operations Pty Ltd prior written consent.
3.6 Receipt of any amount will not constitute payment until such time as the amount is paid or honoured in full.
3.7 If the Buyer fails to pay Fanquip Operations Pty Ltd in accordance with the Terms, Fanquip Operations Pty Ltd can do any or all of the following; suspend further deliveries of any Goods and/or Services to the Buyer; exercise a general possessory lien over, and power of sale of, any of the Buyer’s goods in Fanquip Operations Pty Ltd possession; exercise its right to terminate the Contract; or terminate any other agreement with the Buyer. If Fanquip Operations Pty Ltd takes any or all of these actions, the Buyer agrees that it will have no claim whatsoever against Fanquip Operations Pty Ltd.
3.8 Fanquip Operations Pty Ltd will be entitled to recover from the Buyer all legal and other costs incurred by Fanquip Operations Pty Ltd arising from the Buyer’s default in payment and the collection of any overdue monies.
4.1 At Fanquip Operations Pty Ltd sole discretion, if there are any disputes or claims for unpaid Goods and/or Services:
(a) Fanquip Operations Pty Ltd may serve payment claims in accordance with the SOPA on the Buyer for Goods and/or Services supplied in New South Wales; and
(b) Fanquip Operations Pty Ltd may serve payment claims on the Buyer for Goods and/or Services supplied outside of New South Wales, in accordance with the relevant building and construction industry payment legislation of the state or territory in which they were supplied.
4.2 The Buyer acknowledges and agrees that each invoice issued by Fanquip Operations Pty Ltd to the Buyer is intended to be a payment claim under the relevant building and construction industry payment legislation of the state or territory in which the Goods and/or Services were supplied.
4.3 If adjudication of a payment claim is required, Adjudicate Today will be chosen to manage the adjudication process.
5.1 Delivery of the Goods shall be made to the Buyer’s address specified in the Order, or if not specified, delivery will be made as determined by Fanquip Operations Pty Ltd.
5.2 The Buyer shall make all arrangements necessary to take Delivery of the Goods whenever they are tendered for Delivery, including by ensuring the Buyer has the necessary lifting equipment available at the time of Delivery.
5.3 Fanquip Operations Pty Ltd may deliver the Goods by separate instalments (in accordance with any agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the Terms.
5.4 The failure of Fanquip Operations Pty Ltd to Deliver Goods on time shall not entitle the Buyer to; claim for any loss or damage, cancel, rescind, terminate or treat the Contract as repudiated.
5.5 Fanquip Operations Pty Ltd shall not be liable for any loss or damage whatsoever due to failure or delay by Fanquip Operations Pty Ltd to Deliver the Goods (or any of them) promptly or at all, and the Buyer is not entitled to retain part of, deduct from or set-off against Fanquip Operations Pty Ltd invoice in respect of any such failure or delay.
5.6 Fanquip Operations Pty Ltd may suspend or cancel delivery of the Goods if Fanquip Operations Pty Ltd reasonably believes that the Goods may cause injury or damage (including for technical, scientific, medical or efficacy reasons) or may infringe the intellectual property rights of any person, or if payments owing from the Buyer to Fanquip Operations Pty Ltd remain outstanding. No such suspension or cancellation will in any way constitute admission of liability or fault on Fanquip Operations Pty Ltd part.
6.1 To the extent permitted by law, Fanquip Operations Pty Ltd excludes all warranties except as provided in the Terms or in a manufacturer’s warranty certificate provided with the Goods.
6.2 Fanquip Operations Pty Ltd warrants that if any defect in any Goods manufactured by Fanquip Operations Pty Ltd it exists and is reported by the Buyer to Fanquip Operations Pty Ltd within 12 months of Delivery, then Fanquip Operations Pty Ltd will, at its sole discretion, either repair the defect, or replace the Goods (after first examining the Goods) provided that:
a) the warranty shall not cover any defect or damage caused or contributed to by:
(i) the Buyer’s failure to properly and routinely maintain the Goods;
(ii) the Buyer’s failure to follow any verbal or written instructions or guidelines provided by Fanquip Operations Pty Ltd for use, maintenance or operation of the Goods;
(iii) the Buyer’s failure to follow any applicable legal or regulatory requirement or Australian Standards with respect to the installation, operation or maintenance of the Goods;
(iv) any use of the Goods otherwise than for any application specified in the Order;
(v) the continued use of the Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user;
(vi) the use of the Goods prior to Fanquip Operations Pty Ltd completing the installation and/or commissioning of the Goods;
(vii) consumable items subject to deterioration or consumption in normal service or operation; or
(viii) fair wear and tear, any accident or Force Majeure.
b) the warranty shall not cover the costs of testing, administration, freight and packaging or any off-site expenses incurred by Fanquip Operations Pty Ltd including travel, vehicle expenses, freight, transport and accommodation, which will be at the cost of the Buyer.
c) the warranty shall be voided if the Goods are repaired, altered or overhauled by the Buyer or any third party without Fanquip Operations Pty Ltd written consent being first obtained.
d) in respect of all warranty claims, Fanquip Operations Pty Ltd shall not be liable to compensate the Buyer for any delay in either replacing or repairing the Goods or in properly assessing the Buyer’s warranty claim.
the warranty shall be voided if the Buyer defaults in any payment of the Price.
6.3 If no defect claims are reported to Fanquip Operations Pty Ltd within 12 months, the Buyer assumes all responsibilities with the Goods and/or Services and Fanquip Operations Pty Ltd shall have no liability whatsoever.
6.4 For Goods not manufactured by Fanquip Operations Pty Ltd, the warranty shall be the current warranty provided by the manufacturer of the Goods. Fanquip Operations Pty Ltd shall have no liability whatsoever in addition to the terms of the manufacturer’s warranty.
6.5 The following statement applies if the supply of the Goods and/or Services to the Buyer is a consumer sale as defined in the Australian Consumer Law. In this statement, ‘Our’ means ‘Fanquip Operations Pty Ltd’, ‘You’ means the ‘Buyer’:
Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
• to cancel your service contract with us; and
• to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
7.1 All risk for the Goods passes to the Buyer on Delivery. This shall also apply to any partial Delivery of the Goods or attempted Delivery of the Goods. Thereafter risk of damage to, or loss or deterioration of, the Goods from any cause whatsoever passes to the Buyer.
7.2 Title and property in the Goods shall not pass to the Buyer until Fanquip Operations Pty Ltd receives payment in full for the Goods in cleared funds in its bank account.
7.3 Until such time as title in the Goods passes from Fanquip Operations Pty Ltd to the Buyer, Fanquip Operations Pty Ltd may give notice in writing to the Buyer to return the Goods or any of them to Fanquip Operations Pty Ltd or, alternatively, the Buyer grants Fanquip Operations Pty Ltd authority to enter the Buyer’s premises to retake possession of the Goods. Upon such notice (or upon repossession) the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease.
7.4 Until such time as Fanquip Operations Pty Ltd has received payment in full for the Goods then the Buyer shall hold any proceeds from the sale or disposal of the Goods on trust for Fanquip Operations Pty Ltd.
7.5 Prior to title passing, the Buyer acknowledges and agrees that it will grant to Fanquip Operations Pty Ltd a security interest in the Goods and their proceeds. Fanquip Operations Pty Ltd may register a security interest under the Personal Property Securities Act 2009 (Cth) (PPSA) in relation to the Goods and any proceeds arising in respect of any dealing in the Goods. The Buyer acknowledges that any purchase by it on credit terms from Fanquip Operations Pty Ltd, or any retention of title supply pursuant to these Terms, attaches on delivery of the relevant Goods and constitutes a purchase money security interest under the PPSA.
7.6 If the Quote expressly permits the Buyer to on-sell any Goods prior to title passing, the Buyer may do so in the ordinary course of its business provided that the Buyer pays the proceeds into a separate bank account and holds them as trustee for Fanquip Operations Pty Ltd.
7.7 To the extent permitted by law, the Buyer waives its rights or entitlements to any verification statements or other notices or communications that may be necessary, required or desirable under the PPSA.
7.8 Fanquip Operations Pty Ltd shall have a lien over any of the Buyer’s other goods in Fanquip Operations Pty Ltd possession or under Fanquip Operations Pty Ltd control for all amounts claimed due and payable to Fanquip Operations Pty Ltd until payment is received in full, cleared funds without deduction or set-off.
7.9 Neither party may register, sell, dispose of or otherwise deal in any security interest in the Goods or proceeds from any dealing in the Goods other than as permitted by this clause.
8.1 The Buyer indemnifies Fanquip Operations Pty Ltd against all claims, actions, proceedings, liabilities, expenses, losses or damages including, with limitation, claims by way or subrogation by any insurer, any personal injury, death or property damage that arises from the Buyer’s use of the Goods. The Buyer indemnifies Fanquip Operations Pty Ltd against any claims made by a third party in respect of negligence, personal injury or death arising in relation to the Goods and/or Services.
8.2 From the time that risk in the Goods transfers to the Buyer and continuing until title also transfers in accordance with the Terms, the Buyer must insure the Goods with an insurance company with an S&P Financial rating of not less than “A” for their full replacement value against loss or damage including but not limited to fire, malicious damage, theft and transit risks.
8.3 The insurance required under clause 8.2 must cover the respective rights and interests of the Buyer and Fanquip Operations Pty Ltd (as owner), note the interests of Fanquip Operations Pty Ltd as owner if required by Fanquip Operations Pty Ltd, and include
(a) a cross-liability clause, to the intent that each insured party shall be deemed to be separate insureds under the policy;
(b) an express provision requiring the insurer to notify Fanquip Operations Pty Ltd if the policy of insurance is not renewed, lapses or is cancelled midterm; and
(c) an acknowledgement from the insurer that in the event of loss or damage to the Goods, all monies derived from any insurance settlement will be used to either repair or replace the Goods. Such determination will be at the sole discretion of Fanquip Operations Pty Ltd.
8.4 The Buyer must not do or permit or allow to be done anything which might or could prejudice any insurance of the Goods.
8.5 Whenever requested by Fanquip Operations Pty Ltd, the Buyer will promptly provide the first party with copies of the certificates of currency for insurances required under this Contract.
8.6 The Buyer is responsible for and must pay any excess or deductible under insurance policies required by the Terms to the extent of its contribution to the loss or damage.
8.7 If the Buyer fails to insure the Goods in accordance with clause 8.2 and 8.3, Fanquip Operations Pty Ltd may, but is not obliged to, procure and maintain such insurance and the cost of doing so will be a debt due and immediately payable from the Buyer to Fanquip Operations Pty Ltd.
8.8 The Buyer must promptly inform Fanquip Operations Pty Ltd in writing of any event or circumstance that may give rise to a claim under insurance required by clause 8.3 and keep Fanquip Operations Pty Ltd informed of subsequent developments and take all reasonable steps to ensure a prompt and favourable settlement of the claim.
9.1 Fanquip Operations Pty Ltd may terminate the Contract, or any part of it, immediately by giving written notice to the Buyer if the Buyer:
(a) commits a material breach of the Contract which is not remedied to Fanquip Operations Pty Ltd satisfaction within seven (7) days of written notice from Fanquip Operations Pty Ltd; or
(b) fails to take Delivery pursuant to clause 5, which is not remedied within twenty-four (24) hours after receipt of written notice from Fanquip Operations Pty Ltd.
9.2 Fanquip Operations Pty Ltd may also terminate the Contract, or any part of it, effective immediately, if the Buyer:
a) commits a material breach which is not remedied within fourteen (14) days after written notice from the other party;
(b) is the subject of an insolvency event meaning:
(i) the Buyer becomes insolvent or is otherwise unable to pay its debts as and when they fall due;
(ii) proceedings are commenced to appoint an external administrator or liquidator to the Buyer;
(iii) the Buyer is placed under official management or administration;
(iv) the Buyer is presumed to be insolvent under the Corporations Act following a statutory demand; or
(v) circumstances occur which, in Fanquip Operations Pty Ltd sole discretion, indicate the Buyer’s inability to pay.
9.3 If the Contract is terminated under clauses 9.1 or 9.2, the Buyer must, in addition to any other damages recoverable at law, pay to Fanquip Operations Pty Ltd as compensation for termination:
(a) the actual costs of termination, including:
(i) the cost of any equipment, parts, components and materials ordered by Fanquip Operations Pty Ltd which it is liable to accept and cannot reasonably avoid or cancel;
(ii) any costs of losses arising due to the cancellation or termination of third party contracts including contract break-costs and cancellation fees;
(iii) reasonable demobilisation costs and any additional transport, freight, handling, packaging, consumables, insurance or maintenance costs; and
(iv) any other costs incurred by Fanquip Operations Pty Ltd up to the time of termination.
9.4If:
(a) any money payable to Fanquip Operations Pty Ltd becomes overdue, or in Fanquip Operations Pty Ltd opinion the Buyer will be unable to meet its payments as they fall due; or
(b) the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer: then without prejudice to Fanquip Operations Pty Ltd other remedies at law,
Fanquip Operations Pty Ltd shall be entitled to suspend all or any part of its performance of the Contract without prejudice to any other remedies it may have, and all amounts owing to Fanquip Operations Pty Ltd shall, whether or not due for payment, immediately become payable.
10.1 Fanquip Operations Pty Ltd can terminate the Contract for its convenience by giving 14 days’ prior written notice to the Buyer. Fanquip Operations Pty Ltd shall not be liable to the Buyer for any loss or damage whatsoever arising from such termination.
10.2 Fanquip Operations Pty Ltd can terminate the Contract for its convenience by giving 14 days’ prior written notice to the Buyer. Fanquip Operations Pty Ltd shall not be liable to the Buyer for any loss or damage whatsoever arising from such termination.
10.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
11.1 Each party licenses to the other party its pre-existing Intellectual Property that is not created predominantly for the purpose of the Order, whether coming into existence before or after the date of the Order, to the extent necessary to enable the other party to supply, operate or use the Goods or the Services as the case may be.
11.2 Ownership of all Intellectual Property discovered or coming into existence as a result of, for the purposes of or in connection with, the supply of the Goods and/or Services in accordance with the Contract vests in and will be the property of Fanquip Operations Pty Ltd (“Contract IP”).
11.3 Fanquip Operations Pty Ltd grants to the Buyer a world-wide, non-exclusive, irrevocable, royalty-free licence to use the Contract IP for the purposes of operating or using the Goods and/or Services. The licence is sub-licensable by the Buyer to the Buyer’s contractors only to the extent required for the operation, maintenance and use of the Goods.
11.4 Each party warrants to the other that it indemnifies the other against any costs or losses in connection with any breach of third party Intellectual Property save to the extent caused by the other party.
12.1 The Terms and the provisions of all Contracts are confidential and must not be disclosed by Buyer to any third party without Fanquip Operations Pty Ltd prior written consent unless such disclosure is required by law (other than section 275(1) of the PPSA).
12.2 The parties agree that the provisions of this clause 13 amount to a “confidentiality agreement” referred to in section 275 (6) of the PPSA.
12.3 The restrictions contained within this clause 13 do not apply to any of the Terms or provisions of Contracts that Fanquip Operations Pty Ltd has itself placed in the public domain.
13.1 It is the sole responsibility of the Buyer to;
(a) obtain any Approvals; and/or
(b) comply with any relevant Australian Standards (or if the Goods are to be used in a country other than Australia, that country’s applicable legal and regulatory standards) that are required for the installation or use of the Goods.
13.2 Any fees applicable will be the sole responsibility of the Buyer.
14.1 If either party wishes to raise a dispute or difference in connection with the Contract, it must promptly give the other notice in writing and thereafter, as a condition precedent to commencement of legal proceedings:
(a) within 14 days of a party giving notice of a dispute, the other party must provide to the first party a written response stating its position; and
(b) within seven (7) days of that response, the respective involved managers must meet in person at least once to try to resolve the dispute in good faith.
15.1 The Contract is governed by and will be construed in accordance with the laws of the state of New South Wales and the Commonwealth of Australia and Fanquip Operations Pty Ltd takes no responsibility for changes in the law which affect the Goods supplied.
15.2 The United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) does not apply to the Contract.
16.1 Any amendments to the Terms shall be in writing and if otherwise shall not be binding upon Fanquip Operations Pty Ltd. If any of the provisions of this Contract are unlawful or invalid by reason of any applicable statute or rule of law, then such provision shall be severed from the rest of this Contract which shall remain valid and binding on both parties.
17.1 The Buyer cannot assign, novate or transfer, the Contract or any payment, obligation, right, benefit or interest it has under the Contract without the prior written consent of Fanquip Operations Pty Ltd.
17.2 Fanquip Operations Pty Ltd may assign this Contract to any of its related entities and subcontract any part of its obligations under this Contract without the consent of the Buyer.
18.1 The Contact constitutes the entire agreement between the parties relating in any way to its subject matter. All prior negotiations, agreements, communications, understandings and representations about the subject matter of the Contract are of no effect. The Buyer warrants and acknowledges that it relies solely upon its own skill and judgement in entering into the Contract.
19.1 If Fanquip Operations Pty Ltd is prevented either directly or indirectly from performing any of its obligations under the Contract by reason of Force Majeure, it may by notice to the Buyer either extend the time for Delivery, or terminate the Contract, and the Buyer will have no claim against Fanquip Operations Pty Ltd for damages or any other remedy.
20.1 If the Buyer is more than one person or entity, each person or entity (as applicable) shall be jointly and severally liable to Fanquip Operations Pty Ltd under the Contract.
20.2 Each party must bear its own legal, accounting and other costs of and incidental to the preparation and entering into the Contract.
20.3 Nothing constitutes a joint venture, agency, partnership or other fiduciary relationship between Fanquip Operations Pty Ltd and Buyer.
20.4 Fanquip Operations Pty Ltd may only waive a requirement or breach of the Contract in writing signed by it, and any such waiver is limited to the instance referred to.
