Cavpower’s Sales Terms and Conditions
Unless qualified by or inconsistent with the context:-
“Company” means Cavill Power Products Pty. Ltd. ABN 22 007 735 300;
“Customer” means the person or company named and described as such overleaf and includes the Customer’s respective heirs, successors and legal person or representative;
“Goods” means the goods and the extras (if any) specified overleaf;
“GST” means goods and services tax imposed by A New Tax System (Goods and Services Tax) Act 1999;
A reference to one gender includes the others;
A reference to a person includes an incorporated body or other association of person or a governmental agency and vice versa;
The single includes the plural and vice versa; and
Any amounts to be paid by the Customer under this Agreement that a-re payments for “taxable supplies” as defined for GST purposes will, to the extent permitted by law, be increased so that the GST payable on the taxable supply is passed on to the recipient of that taxable supply.
1. IT IS AGREED BETWEEN THE COMPANY AND CUSTOMER THAT:-
1.1 Any notice to be given by the Company to the Customer pursuant to this Agreement must be signed by the Company or by one of its officers or duly authorised solicitor or agent and must be hand delivered or sent by prepaid post or sent by facsimile to the address or facsimile number (as the case may be) shown overleaf (or any other address or facsimile number that the Customer may notify to the Company) and will be deemed sufficiently given:
1.1.1 in the case of hand delivery, on the date of delivery; or
1.1.1 in the case of prepaid post, two business days after being sent by prepaid post; or
1.1.1 in the case of facsimile, on receipt by the sender of a successful transmission answerback.
1.2 The Goods will be deemed ready for delivery to the Customer by the Company upon the Company notifying the Customer of the same.
1.3 Unless otherwise agreed between the Company and the Customer, , the Customer must pay the balance of the total amount payable inclusive of GST to the Company without deduction within 7 days of being notified that the Goods are ready for delivery.
1.4 Title in the Goods will not pass to the Customer until the total amount payable inclusive of GST is paid in full. Risk in the Goods will pass to the Customer immediately upon notification by the Company to the Customer pursuant to clause 1.2.
1.5 The Customer will be deemed to have accepted the Goods immediately upon the Company notifying the Customer that the Goods are ready for delivery pursuant to clause 1.2.
1.6 The Company will use its reasonable endeavours to ensure that the Goods are ready for delivery to the Customer as soon after the date of acceptance of this order as circumstances permit.
1.7 The Company will be at liberty to supply goods answering the description of the Goods notwithstanding the fact that this Agreement will be deemed to be an agreement for the specific supply of the Goods. Without limiting the generality of the foregoing, Goods sold in accordance with this Agreement may incorporate such structural design and mechanical alterations and modifications as are from time to time made by Caterpillar of Australia Ltd ABN 97 004 332 469 or any of its associated companies in accordance with their practice of altering, modifying and updating goods supplied by them.
1.8 In the event that Goods are financed, (subject to the Company being paid in full for the Goods) the Company is hereby authorised by the Customer to transfer the Goods to the financier if such transfer is necessary to give effect to the Customer’s financial arrangements. Upon the Goods being so transferred, this Agreement will terminate.
1.9 Notwithstanding anything to the contrary, the whole of the moneys due to be paid under this Agreement by the Customer including the cost of repossession and resale of the Goods or as much as may be outstanding will immediately become due and payable to the Company upon the happening of any event or the issue against or service on the Customer of any notice or proceedings in any way concerning the Customer’s solvency or payment of its debts. The provisions of this clause 1.9 will survive the termination of this Agreement.
1.10 The Company will not be deemed to have waived any of its rights under this Agreement unless such waiver is in writing
2. Where Goods have been delivered to the Customer but where title in the Goods has not yet passed to the Customer in accordance with clause 1.4, the Customer acknowledges and agrees that:
2.1.1 the Customer grants the Company a security interest (“Security Interest”) in the Goods and their proceeds to secure all amounts owed by the Customer to the Company pursuant to the Personal Property Securities Act 2009 (Cth)(“PPSA”);
2.1.2 the Company may register the Security Interest on the Personal Property Securities Register (“PPSR”);
2.1.3 it will do all things necessary and provide the Company on request all information the Company requires to register a financing statement or financing charge on the PPSR;
2.1.4 it will not to change its name in any form or other details on the PPSR without first notifying the Company; and
2.1.5 it will, if requested by the Company, pay to the Company the cost of registering and maintaining registration of the Company’s security interest on the PPSR, within 14 days of the request.
2.2 Without affecting any other indemnity or rights under the Agreement, if the Customer is in breach of any of its obligations under clause 2, the Customer must indemnify the Company against all loss or expense suffered by the Company as a consequence of that breach.
2.3 The Company need not give any notice under the PPSA (including a verification statement or a financing change statement) unless the notice is required by the PPSA and cannot be excluded.
2.4 No party may disclose information of the kind referred to in section 275(1) of the PPSA (except where the parties may do so where required due to the operation of section 275(7) of the PPSA) and the Customer must not authorise the disclosure of such information.
2.5 The Customer appoints the Company as its attorney to sign in the Customer’s name all documents which the Company considers necessary to enforce or protect its rights and powers under the Agreement and to perfect, preserve, maintain, protect or otherwise give full effect, under the PPSA and related regulations, to the Agreement and the security interest created by the Agreement.
2.6 If Chapter 4 of the PPSA would otherwise apply to the enforcement of the security interest under this Agreement, the parties agree that the following provisions of the PPSA will not apply, or are waived, as the context requires:
2.6.1 section 95 (notice of removal of accession);
2.6.2 section 118 (enforcement of security interest in accordance with land law decisions);
2.6.3 section 123 (secured party may seize collateral);
2.6.4 section 125 (obligation to dispose or retain collateral);
2.6.5 section 128 (secured party may dispose of collateral);
2.6.6 section 129 (notice of purchase);
2.6.7 section 130 (notice of disposal);
2.6.8 sections 132(1) and (4) (right to receive a statement of account);
2.6.9 section 135 (notice of retention);
2.6.10 section 142 (redemption of collateral); and
2.6.11 section 143 (reinstatement of security agreement).
2.7 Unless otherwise defined in this Agreement, the terms and expressions used in this clause 2 have the meanings given to them, or by virtue of, the PPSA
3. Notwithstanding anything herein contained, the price of the Goods is subject to change by the Company without notice. In the event that the price of the Goods has changed from the time the Agreement was entered into the Company will notify the Customer of the total price payable inclusive of GST at the time at which the Company notifies the Customer that the Goods are ready for delivery pursuant to clause 1.2. Furthermore the Customer bears all foreign exchange risk.
4. This Agreement may be unilaterally rescinded by the Company without any liability whatsoever in the event of any increase in the GST rate or in the event of the imposition of any future created imposts or in the event of any strike, stoppage or other industrial action directly or indirectly effecting the supply or availability of the Goods.
5. If the Customer defaults in performing or observing any of the terms of this Agreement then without prejudice to any other rights of the Company, the Company may:-
5.1 cease further deliveries;
5.2 recover from the Customer any loss of profits suffered by it;
5.3 retain for its own use any monies or other consideration paid or given by the Customer by way of deposit or part payment of the purchase price; and/or
5.4 until payment has been received in full by the Company, recover, remove and/or resell the Goods and for that purpose may by its agents or employees without notice enter upon any premises in or upon which the Goods are situated or reasonably supposed by the Company to be situated without committing a trespass and with no obligation to make good any damage caused by such recovery and removal and the Company will not be liable for and the Customer will indemnify the Company against any costs, losses, damages, expenses or any other monies expended or losses suffered by the Customer or a third party as a result of the Company retaking possession of the Goods.
6. The Customer agrees that:-
6.1 the Customer has read this Agreement and understands the same;
6.2 having signed this agreement, it is ‘deemed’ to have inspected and accepted the Goods and the Customer acknowledges that the Customer has entered into this Agreement on the basis of and solely in reliance upon its own investigations and judgement and the Customer hereby releases the Company from any potential claim in relation to or in connection with any representations, statements or information which have or may have been made or provided by the Company to the Customer. To the maximum extent permitted by law the Company does not warrant that the Goods are of merchantable quality or fit for the purpose for which they may be required;
6.3 no error or misdescription will invalidate or vitiate this Agreement;
6.4 except as provided pursuant to clause 3 the Customer acknowledges and agrees that it is bound by this Agreement and may not terminate this Agreement;
6.5 except to the extent required by law, the Company will not be liable to the Customer for any damage, loss, injury, expense or prejudice whatever resulting directly or indirectly from any defect, fault, vice or weakness in or to the Goods whether of an inherent nature or otherwise;
6.6 the Company will not in any circumstance whatever or however be liable for any consequential damage, loss injury or prejudice resulting directly or indirectly from any non-delivery, delay in delivery or any strike, stoppage or industrial action directly or indirectly affecting the availability of the Goods;
6.7 the Customer agrees that by completing, signing and delivering this Agreement to the Company or accepting delivery of the Goods, the Customer has accepted the Company’s offer to supply the Goods described overleaf on the terms and conditions of this Agreement. The Customer further acknowledges and agrees that the Company may unilaterally rescind this Agreement for any reason whatsoever as long as the Company provides notification to the Customer of such rescission within 30 days of the date of execution of this contract;
6.8 the Customer agrees to indemnify and continue to indemnify the Company for all losses, damages, claims and costs howsoever arising from a breach of this Agreement by the Customer.
7. The Customer agrees that this Agreement contains the entire agreement between the parties in respect of the subject matter of this Agreement and all other express or implied conditions, warranties, statements, assurances or representations whether verbal or in writing and whether the same are imposed by statute, common law or otherwise are to the extent permitted by law hereby expressly negatived and excluded. This Agreement overrides any terms and conditions of the Customer.
8. Any Goods traded will be delivered by the Customer to the Company or as the Company may direct and title in such Goods will pass to the Company free from any encumbrance (including any security interests as defined in the PPSA) on delivery. Any defects in the Goods traded of which the Company does not have notice on the date of the Company’s acceptance of the Customer’s offer will entitle the Company to decrease the allowance made for the trade-in or return of such Goods traded without further liability to the Customer and to vary the balance payable under this Agreement accordingly.
Terms and Conditions specific to the purchase of new machine online
- Advertised prices are in Australian Dollars ($AUD), include GST and are subject to international currency market fluctuations.
- Prices exclude delivery costs and are to be collected from Cavpower’s Head Office 315 Main North Rd, Enfield. Cavpower can work with you to arrange delivery which will be at your own cost.
- Cavpower will confirm lead time with you.
- Cavpower’s sales terms and conditions apply.
Terms and conditions specific to the purchase of used equipment
- Advertised prices are in Australian Dollars $AUD) and include GST
- Prices exclude delivery costs. Cavpower can work with you to arrange delivery which will be at your own cost.
- Purchase of used equipment is subject to availability.
- Warranty is not included as standard with the purchase of used equipment.