SALE AGREEMENT- TERMS AND CONDITIONS

1. Interpretation

“ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) as amended.

“Agreement” means this agreement, including these Terms and Conditions and any other attachments or annexures referred to in the Schedule.

“Business Day” means for the purpose of sending or receiving a notice, a day which is not a Saturday, Sunday, bank holiday or public holiday in the city where the notice is received; and for all other purposes, a day which is not a Saturday, Sunday, bank holiday or public holiday in Victoria.

“Customer” means the party to whom Conquest provides this Agreement.

“Delivery” means the delivery of Products at or to a Site.

“GST” means the Goods and Services Tax as defined in A New Tax System (Goods and Services Act) 1999 (Cth) as amended.

“Hire Equipment” means any Products supplied by the Company to the Customer on a hire, rental or lease basis.

“Laws” includes legislation (whether federal or state), regulations, bylaws, codes of practice or any other requirement of any government or regulatory authority which is enforceable by law.

“Order” means a request by the Customer to Conquest for the purchase of Products or Services.

“Party” means a party to this Agreement.

“PPSA” means the Personal Property Securities Act 2009 (Cth) as amended.

“Products” means any products or equipment which Conquest sells to the Customer from time to time.

“Price List” means the list prices for Products and Services kept and updated from time to time by Conquest, including any prices displayed on Conquest’s website from time to time.

“Schedule” means the schedule on the front page of or attached to this Agreement.

“Service” means the provision of any service supplied by the Company to the Customer, including labour, installation, maintenance or other works.

“Site” means any location that Conquest agrees to deliver the Products to or at which it supplies the service.

“The Company” means Conquest Equipment Pty Ltd (ACN 151 697 862) trading as Conquest Equipment Technologies.

“Third Party Products” means any chattel, service, good or other thing provided to the Customer by anyone other than Conquest.

2. Acceptance of Agreement

a) The Customer may enter into this Agreement with the Company by either-

  • a) signing a copy of the Agreement; or
  • b) requesting Products or a Service from the Company after having received a copy of this Agreement at some prior time (including without limitation by accepting a quotation by paying a deposit or providing a purchase order to Conquest).
  • c) Acceptance under this clause applies only where the Customer has been provided with the then-current version of this Agreement prior to placing the relevant Order.

3. Entire Agreement

a) This Agreement will constitute a full and complete statement of the Agreement between the Company and the Customer and no variations or modifications of any term of the Agreement will be binding unless agreed to in writing by the Company. For the sake of certainty, this Agreement will not be modified or varied by the acknowledgement, receipt or acceptance by the Company of a request for Products or Services set out in a document containing terms and conditions put forward by the Customer.

b) The Company may vary or amend this Agreement by written notice to the Customer at any time. Any variations so made will only apply to Orders placed by the Customer after the time that the variation has been brought to the Customer’s attention.

c) Nothing contained in this Agreement will be read as excluding, restricting or modifying any conditions or warranties which are implied by legislation which cannot be lawfully excluded, restricted or modified by agreement.

4. Term of agreement

This Agreement will apply to all dealings between the Parties relating to the sale of Products and the supply of Services to the Customer by the Company until it is terminated.

5. Supply of the Products and Services

a) The Company agrees to sell Products and supply Services to the Customer from time to time in accordance with this Agreement.

b) Any Order made by the Customer for Products or Services will at all times be subject to this Agreement.

c) Whilst the Company will use its best endeavours to ensure that it is able to provide Products and Services to the Customer when required, it does not warrant or guarantee that it will be able to do so and will not be responsible for any loss suffered by the Customer as a result of failure to supply or delay in supplying Products or Services except to the extent caused by the Company’s negligence or breach of this Agreement, or to the extent such liability cannot be excluded by law.

d) The Company retains the absolute discretion at all times to refuse to accept any Order made by the Customer.

e) Any period or date for Delivery stated by or on behalf of the Company will be regarded by the Customer as an estimate only and not a contractual commitment or representation which may be relied upon. The Customer acknowledges that the nature of delivery and transit of goods is such that unforeseen circumstances may impact on the timely Delivery of Products and or Services. In the event of any unforeseen delay the Company will report the nature and extent of such delay as soon as is reasonably practicable to the Customer.

f) The Company will be entitled to deliver Products and Services in instalments and the Customer will not be entitled to terminate or cancel the Order or be entitled to any claim, loss or damage howsoever arising from any failure by the Company to deliver any instalments on or before the estimated date of Delivery.

g) The Customer acknowledges that the Company may at its discretion engage agents or subcontractors in the provision of Products to the Customer.

h) Any errors made by the Company in computations, typing or otherwise of any part of a quotation, offer, invoice, delivery docket, or any other form of communication with the Customer will be subject to correction by the Company and the Customer agrees to be bound by any such correction.

i) The Customer acknowledges that the Company does not take or accept responsibility in any way for the purchase, delivery, installation, maintenance or otherwise of Third Party Products and the Company bears no liability whatsoever in relation to Third Party Products.

j) The Company does not take or accept responsibility or liability in any way where the Company is unable to provide the Products or the Services to the Customer as a result of the actions of any party providing Third Party Products.

k) In the event that the Customer receives the Product damaged or there are any discrepancies including missing or wrong items, the Customer must report such damage or discrepancy to the Company in writing within 48 hours of Delivery.

6. Site Requirements

a) The Customer shall provide suitable and practical means of access to the Site and ensure that the Site is suitable to allow the efficient and safe Delivery of Products and Services. In the event that the Site is unsafe for Delivery, the Company reserves the right to refuse to deliver the Products and Services. The Customer will be charged for all expenses (if any) incurred as a result of any unsafe Site, including but not limited to the cost of the Company delivering to another Site or re-delivering the Product. The Customer shall advise the Company in advance of Delivery of any potential hazards, risks or difficulties which may be encountered either at, or close to, the Site, including but not limited to narrow roads, low-hanging electrical wires, traffic islands and a lack of parking. The Company reserves the right to refuse Delivery to the Customer at a Site designated by the Customer in the event that it is unsuitable and it will be the Customer’s responsibility to provide an alternative suitable location for Delivery and the Customer will be charged for all costs incurred by the Company as a result of such a change.

b) The Customer must provide and operate any machinery required to unload any Products at the Site and in the event the Customer authorise the Company to operate any machinery at the Site, the Company does not take or accept any responsibility for the machinery and all risk and liability in and relating to the machinery remains with the Customer at all times.

c) For the sake of certainty, the Customer shall not be entitled to cancel its Order in the event that the Delivery is not made pursuant to this clause 6.

d) For the sake of certainty and without limiting any other clause in this Agreement, the Customer acknowledges that any amount charged by the Company for Delivery to the Site originally nominated by the Customer will still be charged where the Company is unable to access the Site and that the Company will be entitled to charge reasonable additional amounts where the Site is changed due to the Company refusing to deliver to the Site nominated at the time of the Order in accordance with this Agreement or if through no fault of the Company time delays in dropping off the Products occur at the Site.

e) Delivery shall be kerbside to the address of the Site unless otherwise agreed between the Parties. In the event that Delivery is within the Site, (that is, beyond the kerbside), the Customer accepts all responsibility and liability for any damage, loss, injury or claim of any sort which results from the Company being instructed to deliver the Products within the Site including where such damage, loss, injury or claim is made/suffered by the Company. the Company will be entitled to charge additional reasonable amounts in respect to delays caused in accessing the Site including but not limited to by reason of induction requirements and the Customer accepts that these amounts will be in addition to any amounts the Customer is required to pay for any Products, and these additional amounts relating to delay may be invoiced after such time as the Products have been provided.

f) The Customer warrants that it is the owner of the Site, or, if it is not, that it is authorised by the owner to allow for Products to be delivered to the Site.

g) The Customer will ensure that either the Customer or the Customer’s agent are present at the time of Delivery to receive the Products. In the event that the Customer or the Customer’s agent are not present but have consented to the Company delivering the Products in their absence, the Customer acknowledges that without limiting the application of any other terms of this Agreement, clause 15(a) of this Agreement applies to such deliveries.

h) The Company will not be obliged to obtain a signed receipt or other acknowledgement at the place of Delivery. However, if a signed receipt or other acknowledgement of Delivery is obtained by a person at the place of Delivery who appears to be authorised by the Customer to sign or otherwise take delivery, then, to the extent permitted by law, such signed receipt or other acknowledgement will be conclusive evidence of Delivery, the quantity of Products delivered and otherwise compliance with the Order.

i) The Customer will ensure that any other parties performing works at the Site do not interfere with or otherwise hinder the Company’s provision of Products or Services. In this regard the Customer will provide to the Company any information reasonably required by it in respect to the activities or proposed activities of any other party performing works at the Site.

j) At no time does the Company take or accept any responsibility for the Site and all risk and liability in and relating to the Site remains with the Customer at all times.

7. Warranty of the Products

a) The Company at its sole discretion may within 60 days of Delivery, repair or replace any Product that is deemed to be defective save for any of the following:

  • a) conditions resulting from the Customer mishandling the Product including improper maintenance, misuse, abuse, accident or alteration of the Product;
  • b) Products with serial numbers removed; and/or
  • c) Products rented or leased to other parties by the Customer.

b) The Company does not take or accept any responsibility or liability of Products after 60 days of Delivery unless agreed to in writing by the Company.

8. Returns

In the event that the Company agrees to accept a return of Products by the Customer:

a) The Customer must obtain written pre-authorisation from the Company prior to returning the Products and the Products must be returned in original packaging, accessories and documentation including manuals, warranties and original purchase invoice.

b) The Company will not be responsible or liable for any costs associated with the return of any Products.

c) The Company may in its sole discretion provide or arrange Delivery for provide for delivery costs for the Products to be returned to the Customer’s Site.

9. Intellectual property

All brands and product names mentioned are trademarks and/or registered trademarks of their respective holders.

10. Pricing and payment

a) Where the Company provides Products or Services to the Customer subject to a quotation, the Customer shall be charged in accordance with the quotation.

b) Where the Company provides Products or Services to the Customer that are not subject to a quotation, and without limiting subclause 10(a), the Customer shall be charged for the Products or Services as set out in the Price List as it applies at the time of the Customer placing an Order. If a Product or Service does not appear on the Price List, or if the Price List does not or ceases to exist, then the Company shall be entitled to charge a reasonable amount for that Product or Service.

c) The Customer acknowledges that the Price List for Products or Services may be modified by the Company from time to time without notice throughout the currency of this Agreement and it shall be the responsibility of the Customer to check with the Company as to the availability and price of any particular Product or Service immediately prior to placing any Order. For the sake of certainty, any changes to the prices in the Price List will only apply to Orders made by the Customer after the change is made.

d) The terms of payment shall be as set out in an invoice provided to the Customer, save that the Company shall be free at any time, at its sole discretion, to revoke payment terms in regard to any future Orders and require payment in advance of supply of further Products or services.

e) Should the parties be silent as to terms of payment then payment shall be made in advance of any Products or Services being supplied.

f) Unless otherwise stated, quotes for Products, Services or Delivery are exclusive of GST and any other applicable taxes or duties. In addition to the price for the Products, Service and Delivery the Customer shall also pay any applicable GST, taxes or duties.

g) Any quotation provided by the Company to the Customer shall, unless otherwise stated in the quotation, be valid only for 14 days from the time it was made and may be withdrawn at any time by the Company within that period.

h) Any quotation provided to the Customer by the Company is at all times subject to this Agreement.

i) In respect of payments required to be made by the Customer under this Agreement time shall be of the essence.

11. Breach By Customer

a) Interest shall be payable on any amounts outstanding outside payment terms by the Customer to the Company at the rate of 2% over and above the rate applicable from time to time under the Penalty Interest Rates Act 1983 (Vic).

b) The Company shall be free to suspend or cancel any Order in circumstances where the Customer has failed to make any payment within the payment terms.

c) The Company shall be free to refuse any Order made by the Customer where any money is overdue to the Company pursuant to this Agreement.

d) The Customer hereby indemnifies the Company in respect of any costs incurred by the Company (including legal costs on a solicitor/client basis) as a result of any breach of this Agreement by the Customer, including any breach of terms of payment for Products. Such costs include but are not limited to the costs of any demands made of the Customer to remedy any breach, and any legal proceedings to recover unpaid money.

12. Director’s Guarantee

In the event that the Customer is an incorporated entity-

a) The person signing this Agreement on behalf of the Customer hereby guarantees to the Company the Customer’s obligations under this Agreement, including the due and punctual payment of any money payable by the Customer to the Company, for any reason, at any time. The guarantee provided is a continuing guarantee. The obligations under the guarantee are principal obligations and may be enforced against the guarantor without the Company being first required to exhaust any remedy it may have against the Customer.

b) The Customer agrees that it will, if called upon at any time by the Company to do so, procure from any one or more of its directors (as directed by the Company) a personal guarantee of the Customer’s obligations pursuant to this Agreement in a form acceptable to the Company, with such guarantee to cover both future liabilities and any liabilities of the customer to the Company which predate the signing of the guarantee.

13. Retention of Title to Products

Until the Company receives full payment (in the form of clear funds) for any Products supplied by it to the Customer together with any other amounts owing by the Customer to the Company-

a) title and property in all of the Products remains vested in the Company and does not pass to the Customer;

b) the Customer must hold the Products as bailee for The Company;

c) the Customer must hold the proceeds of any sale of the Products on trust for the Company; and

d) in addition to its rights under the PPSA, the Company may without notice, enter any premises where it suspects that the Products are and remove them, and for this purpose the Customer irrevocably licenses the Company or its agents to enter onto such premises and also indemnifies the Company from and against all costs, claims, demands or actions by any party arising from such action.

14. Personal Property Security Act

a) Terms used in this clause have the corresponding meaning to their use in the PPSA.

b) For the purposes of the PPSA –

  • a) this Agreement constitutes a Security Agreement between the Company and the Customer and the Company has a Purchase Money Security Interest in all present and future Products supplied by the Company to the Customer and the proceeds of those Products;
  • b) by executing this Agreement the Customer grants to the Company a Security Interest in the Products and the Company shall be entitled to register the Security Interest on the relevant Security Register;
  • c) The Security Interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer to the Company at any particular point in time.

c) The Customer must do whatever shall be necessary in order to give a valid Security Interest over the Products and their proceeds which is able to be registered by the Company on the Personal Property Securities Register. Without limiting the Customer’s obligations under this clause, the Customer must immediately upon the Company’s request –

  • a) execute all documents and do any other things necessary to give effect to the Security Interest created under this Agreement; and
  • b) procure from any person considered by the Company to be relevant to its security position such agreements and waivers as the Company may require at any time.

d) The Security Interest arising under this Agreement attaches to the Products when the Products are collected from or dispatched from the Company’ premises and not at any later time.

e) The Company shall be free to allocate sums received from the Customer in any manner the Company determines, including in any manner required to preserve any Purchase Money Security Interest or any other Security Interest it has arising by virtue of supply of Products to the Customer.

f) The Customer:

    • a) waives its right under section 157 of the PPSA to receive a copy of the verification statement verifying registration of a financing statement or a financing change statement relating to a Security Interest created under this Agreement; and
    • b) waives its right to receive any other notice or statement under any other provision of the PPSA (including for the avoidance of doubt, any of the provisions specified in paragraph (g)).

g) To the fullest extent permitted by the PPSA, the parties agree to the contract out of sections 95, 117, 118, 120, 121(4), 125, the second sentence of section 126(2), sections 129(2), 129(3), 130, 132(3)(d), 132(4), 135, 142 and 143, which sections (or parts of sections) shall not apply.

15. Risk and Liability

a) The risk in the Products and all insurance responsibility for theft, fire or damage of any other kind shall pass to the Customer immediately upon Delivery or upon collection by the Customer from the point of sale (whichever is applicable).

b) If the Customer has to return the Products to the Company the risk of the Products and all insurance responsibility for theft, fire or damage of any other kind shall pass to the Company immediately upon delivery of the Products to the Company or upon collection by the Company and so forth.

c) The Customer warrants that it has and will have at the time of making any particular order for Products all necessary licenses or permits under all Laws to possess and use the Products.

d) The Customer agrees that they will not rely on any statements made by the Company as to the suitability of the Products for a particular purpose unless such statement is in writing.

e) Unless in writing, the Company makes no express or implied statement, nor implied or express condition (other than those imposed by law) that the Products will be suitable for a particular purpose or end use by the Customer or otherwise.

f) If the Company is liable for a breach of a guarantee implied by the ACL in respect to the provision of the Products and those Products are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then, to the extent permitted by the ACL, its liability to the Customer will be limited to –

      • a) the replacement of the Products or the supply of equivalent Products; or
      • b) the payment of the costs of replacing the Products or acquiring equivalent Products.

g) Clauses 15(a) and 15(b) apply only to Products sold and do not apply to Hire Equipment, which remains at the Customer’s risk during the hire period subject to fair wear and tear.

16. Hire of Equipment

a) Hire Equipment remains the property of the Company at all times.

b) The Customer must return Hire Equipment at the end of the hire period in the same condition as delivered, fair wear and tear excepted.

c) The Customer bears the risk of loss or damage during the hire period and must maintain adequate insurance.

d) The Customer must not sub-hire, sell or encumber Hire Equipment.

e) These terms are subject to any Hire Agreement entered into by the parties.

17. Services

The Company will provide Services with due care and skill. Unless expressly agreed to in writing, time for performance is not of the essence.

18. Cancellation of Orders

If the Customer wishes to request an Order be cancelled varied or suspended, they must immediately contact the Company by telephone. No purported cancellation, variation or suspension of an Order (or any part of an Order) shall be binding upon the Company once the Order has been placed with the Company unless the Company in writing and at its sole discretion accepts such cancellation, variation or suspension of an Order and only to the extent accepted by the Company in writing.

19. Privacy Act 1988 (Cth)

The Company collects and uses personal information in accordance with its Privacy Policy, available on request or on its website.

20. Force Majeure

The Company shall not be liable in any manner whatsoever to the extent that it has been prevented from performing any obligation under this Agreement by reason of matters beyond its control, including without limitation-

      • a) inability to source Products;
      • b) any mechanical failure of or damage to machinery, equipment or otherwise causing it to cease to operate in its intended manner or at all;
      • c) delays in shipping, freight or postal delivery;
      • d) lack of availability for whatever reason of staff or contractors;
      • e) acts of God, accidents or machinery breakdown;
      • f) acts or threats of terrorism or war;
      • g) a pandemic or epidemic including Government-imposed lockdowns;
      • h) government restrictions or regulations; and/or
      • i) industrial disputes or strikes.

21. Relationship of parties

Nothing in this Agreement shall give rise to a partnership or relationship of employment between the Parties.

22. Waiver

Any failure or delay by the Company to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude either its exercise in the future of the exercise of any other power or right. A waiver is not effective unless it is in writing.

23. Reading down of Agreement

If a clause in this Agreement is unenforceable it must be read down so as to be unenforceable or, if it cannot be so read down, it must be severed from this Agreement without affecting the enforceability of the remaining terms of the Agreement.

24. Jurisdiction

This Agreement shall be governed by the laws of Victoria.