TERMS AND CONDITIONS OF SALE AND HIRE
These terms and conditions together with any credit application, quotation or proposal (including an online quotations and proposals) to which these terms are attached or in which these terms are referred or can be accessed, together make up a legally binding agreement (“Terms”) with the person(s) or company named in the attached or previously signed or submitted credit application, quotation or proposal (”you”, “your”) in respect of all present and future supply or hire of goods by Sea Containers Pty Ltd ABN (“we”, “our” or “us”) to you, as purchaser. We may decline to supply or hire goods to you in our discretion.
These Terms may be accepted by you by doing either one or more of the following:
(a) Signing these Terms; or
(b) Signing or accepting the credit application, proposal, quotation, or order confirmation issued by us in which these terms were attached or referred to by return email, verbally over the phone or completing payment;
(c) Checking the “I agree to the Terms & Conditions” box on any online quotation or proposal; or
(d) Issuing a purchase order or similar request for goods or services in response to the quotation or proposal referred to at (b) above.
THE PARTIES AGREE as follows:
1. PAYMENT and ORDER CONFIRMATION
1.1. You agree to pay to us the specified price and related charges (“Charges”) of the goods referred to in the quotation, proposal, order confirmation, invoice or other document we present to you (“Goods”) (collectively called “Order Confirmation”) before delivery or by the due date, as we determine. All Charges are exclusive of any goods and services tax. Where such tax is payable on a supply under these Terms, it will be payable by the recipient to the supplier at the same time and in the same manner as the Charge itself.
1.2. We will issue the Order Confirmation to your nominated email address and payment of the Charges can be completed online or over the phone.
2. CANCELLATION AND CHANGES TO THE CHARGES
2.1. The Charges are only valid for 30 days from the date on the Order Confirmation.
2.2. Any price increases within this time will be reflected on your Order Confirmation when you proceed with the final balance.
2.3. A 10% deposit may be required to be paid on acceptance of the Order Confirmation and any deposit paid is non-refundable. We reserve the right to refuse any request by you to alter, vary or cancel your Order Confirmation.
2.4. The Charges are not refundable for Goods which we have agreed to modify or alter to your specifications as set out in the Order Confirmation.
3. LATE PAYMENTS
3.1. You agree to pay interest at the rate of 10% per annum on the unpaid balance of any tax invoice which is not paid strictly in accordance with these Terms (calculated at daily rests from the due date until the outstanding amounts are paid). We may also charge you (and you will be liable to pay) for any administration and legal costs associated with recovery of any outstanding tax invoices.
4.1. Where we or our subcontractors provide carriage for you, we and our subcontractor are not common carriers and accept no liability as such.
4.2. You are required to ensure that the delivery address provided on the Order Confirmation complies with our Transport Guide (which is available to view online at www.seacontainers.com.au/container-delivery)
4.3. We and our subcontractors are not responsible for failed delivery or delay in delivery as a result of your failure to provide a suitable delivery address. We deliver the goods without seeing your property. You are required to ensure you have sufficient access for the truck type delivering the goods.
4.4. Any failed delivery caused by you failing to comply with the Transport Guide will incur a fee calculated as follows:
(a) $120.00 per hour (plus GST) for use of a tilt tray truck; and
(b) $200.00 per hour (plus GST) for a side loader truck,
(referred to as the “Failed Delivery Fee”), for each hour, or part thereof, for our or our subcontractors time travelling to and from our depot and any waiting time at your site. The Failed Delivery Fee is based on our reasonable costs for our or our subcontractor’s lost time in attempting to deliver the Goods.
4.5. We will provide you with a delivery date and will use all reasonable endeavours to deliver the Goods on that date. However, we are unable to guarantee a delivery date and cannot provide a scheduled time for delivery as there are many matters outside of our control which may affect delivery.
4.6. In the event that we or our subcontractors are unable to deliver the goods on the scheduled day, we will provide you with notice as soon as reasonably practicable. We and our subcontractors accept no liability for loss as a result of delayed delivery. We do not provide any crane services. If you arrange a crane on site to position the goods – any waiting times or charges are at your responsibility.
4.7. Sea Containers require written notification 24 hours prior to your delivery date (which is confirmed on email, or via phone call prior) to advise of your inability to accept delivery. Should this not be provided, a Failed Delivery Fee will be incurred
4.8. Any delays caused by you, or outside our control, will be charged to you. This includes but is not limited to no person being on site to accept delivery, site being blocked or inaccessible, trucks becoming stuck on site due to unsuitable conditions.
4.9. Once the goods have left the depot/port and you are unable to accept delivery you will be charged the Failed Delivery Fee as calculated above.
4.10. It is very important when our sales team ask you what way you would like your doors facing on the truck, that you consider all aspects of delivery to ensure the orientation is correct. Any changes to the doors on site, may incur additional costs.
5. POSSESSION AND RISK
5.1. By taking possession of the Goods, you acknowledge delivery and acceptance of the Goods in good condition. Risk in the Goods passes to you on delivery to you, your agent or carrier, regardless of whether by purchase or on hire.
6. RETENTION OF TITLE
6.1. In respect of a purchase of Goods, you acknowledge and agree that title to the Goods will only pass or be transferred to you when we receive payment in full of all money owing to us in relation to the Goods. Until we receive payment of such money we will hold the Goods, at our sole discretion, as bailee only. Prior to receipt by us of the full Charges you must:
(a) not intermingle the Goods with any other property;
(b) not change the Goods in any way;
(c) not change or obscure in any way any identification marking that we have placed on the Goods by lettering and numbering;
(d) not sell the Goods except to a bona fide purchaser for full value;
(e) keep all proceeds from the sale of the Goods in trust for and on our behalf in a separate trust account; and
(f) promptly pay the proceeds of any sale of the Goods to us.
6.2. The payment of the proceeds from the sale of the Goods by you does not relieve you of your obligation to pay to us the full Purchase Price.
6.3. Where these Terms relate to the hire of Goods (rather than sale), then such Goods will at all times remain our property, regardless of payment received from you.
7. PERSONAL PROPERTY SECURITIES ACT
7.1. For the purposes of this clause, “PPSA” means the Personal Property Securities Act 2009 (Cth) as amended from time to time. Where a particular section or term from the PPSA is used in this Agreement, it is deemed to be that section or term as defined, amended, renumbered or replaced from time to time
7.2. You acknowledge and agree that these Terms constitute a security agreement between us creating a security interest in all present and future supplies of Goods. This security interest in the Goods extends to the proceeds of any sale or insurance claim in respect of the Goods and monies held in a separate account arising from the sale of the Goods. For the purposes of section 20(2) of the PPSA, the collateral is equipment either hired or sold to you by us pursuant to these Terms, including without limitation, equipment described in any purchase or hire orders, quotations, Order Confirmations or similar documents.
7.3. You agree that any purchase by you on credit terms from us, retention of title supply or hire of Goods pursuant to these Terms will constitute a purchase money security interest (PMSI) as defined under the PPSA. The PMSI granted herein will continue to apply to any goods hereafter acquired or proceeds of sale arising from the sale of any of the goods supplied by the us under these Terms.
7.4. For the purposes of the PPSA the collateral is described as shipping containers and related goods and the collateral may be further described in an Order Confirmation.
7.5. You acknowledge and warrant that any Goods or materials purchased or hired from us are not purchased predominantly for personal, domestic or household purposes and you agree to indemnify us against any loss or damage arising from a breach of such warranty.
7.6. You acknowledge that we may do anything reasonably necessary, including but not limited to registering any security interest which we have over the Goods on the Personal Property Securities Register in order to perfect the security interest and comply with the requirement of the PPSA. You agree without charge to provide all information and do all things reasonably necessary to assist us to undertake the matters set out above. You waive pursuant to s.157(3)(b) of the PPSA the right to receive notice of a verification statement in relation to any registration event.
7.7. You and we agree that, pursuant to section 115 of the PPSA, the following provisions do not apply in relation to a security interest in the Goods to the extent, if any, mentioned:
(a) section 95 (notice of removal of accession)
(b) section 125 (obligation to dispose of or retain collateral) in that we may extend the time for delay as we consider appropriate
(c) section 129 (disposal by purchase)
(d) section 130 (notice of disposal), to the extent that it requires the secured party to give a notice to the grantor before disposal
(e) paragraph 132(3)(d) (contents of statement of account after disposal)
(f) subsection 132(4) (statement of account if no disposal)
(g) section 135 (notice of retention)
(h) section 142 (redemption of collateral)
(i) section 143 (reinstatement of security agreement).
8. RETURN OF HIRE GOODS
8.1. Unless agreed with us, the length of the period of hire (“Hire Term”) cannot be varied once an order is accepted by us. Whilst you may return the Goods early, you will be liable for all Charges as if hiring for the full Hire Term.
8.2. At the end of the Hire Term, you must return the Goods by allowing us to collect the Goods at their original delivery location at a time convenient to us . The Goods will be considered returned to us only if, and on the day that, we issue to you a written receipt for the return of the Goods, all Charges are paid in full, and either the Goods are returned in the same condition as at the commencement of the hire period or you pay to us the full costs of repair, maintenance and/or cleaning in order to bring the Goods back to the same condition as assessed by us.
9. REPAIRS AND MAINTENANCE – FOR HIRE ONLY
9.1. You must at your cost keep the Goods in good order and repair, safe operating condition and at least in the same condition as at the commencement of hire. In addition you agree to:
(a) return the Goods in clean and good condition and free of labels and graffiti; and
(b) pay us on request for any costs necessary to clean, repair and ready the Goods for hire by our customers.
9.2. We will assess if there is any damage to the Goods and will notify you in writing of the costs of any repair or cleaning costs for the Goods returned.
9.3. You must use and operate the Goods safely, in compliance with all applicable laws, regulations and standards and only for their intended use. We may inspect the Goods at any time to check compliance.
10. LOSS OR TOTAL DAMAGE – FOR HIRE ONLY
10.1. If during the Hire Term the Goods are lost, stolen, destroyed or damaged beyond reasonable repair, you must:
(a) immediately notify us in writing of such occurrence;
(b) continue to pay us all charges owed until the end of the Hire Term; and
(c) pay us the replacement value for the Goods as specified by us and available on request. Payments for hiring charges will not be applied to charges for the replacement value.
10.2. You must maintain during the Hire Term an insurance policy with a reputable insurer covering loss or damage to the Goods for the full replacement value and note us as an interested party on the policy. You agree to provide us with certificates of currency on request.
11. SUB-HIRING OF HIRE GOODS
11.1. You may only on-hire the Goods to a third party with our prior written consent and provided the hire agreement (“sub-hire”) includes express acknowledgement from the third party that:
(a) a person other than you is the legal owner of the Goods and that you have entered into an agreement to hire the Goods from us;
(b) the third party is aware the sub-hire will breach our security interest in the Goods unless we consent to the sub-hire and they are bound by the terms of our consent;
(c) the third party’s rights in respect of the Goods are expressly subject and subordinated to our rights; and
(d) if these terms with you terminate:
(i) we may by notice to the third party terminate the sub-hire and the third party must return the Goods to us, even if the third party may not be in breach or default of its obligations under the sub-hire; and
(ii) we may enter any premises where any Goods are located to exercise our rights or your rights under the sub-hire including, if the need arises, the right to remove the Goods; and
(iii) the third party will obtain all necessary consents from the owner, occupier and other interested persons (such as any mortgagee) of the relevant premises where the Goods are located to enable us to inspect or take possession of the Goods.
12. WHAT ARE OUR RIGHTS IF YOU COMMIT A BREACH?
12.1. If you fail to pay by the due date any amount payable by you to us, or otherwise breach any clause under these Terms or you cease doing business, have a liquidator, administrator, receiver and manager, controller or other like officer appointed over any or all of your assets, become insolvent, commit an act of bankruptcy or become the subject of a proceeding under any bankruptcy act, or its counterpart under the law of any territory outside of the jurisdiction of Australia, then without limiting our rights or remedies in any way we may (but are not obliged to) immediately and without releasing you from any accrued obligations do one or more of the following:
(a) terminate these terms for the sale of the Goods to you;
(b) declare the balance of the Charges due and payable by you;
(c) retake possession of the Goods; and
(d) remedy any default that you commit under these Terms and conditions (at your cost).
13.1. You indemnify and hold us harmless from all loss, liability, damage, cost or expense (“Loss”) arising out of any:
(a) failure by you to comply with your obligations under these Terms;
(b) any claim for personal injury or death, and for loss of or damage to person or property, arising out of or incidental to the possession, hire, operation, control, use, storage, contents (including dangerous goods), delivery or return of the Goods;
(c) any forfeiture, seizure, or impounding of, or claim of charge, lien or encumbrance on the Goods, but only to the extent that we did not cause or contribute to the Loss.
13.2. This indemnity survives the termination of these Terms.
14. YOUR RIGHTS TO POSSESSION OF THE GOODS CEASE
14.1. Despite any provision in these Terms to the contrary, in the event that we terminate these Terms, you will no longer be entitled to possession of the Goods and you must immediately return the Goods to us (at your cost) in accordance with these Terms. After we terminate these Terms, nothing in these Terms gives you any express or implied right or entitlement to, and you must not attempt or purport to, sell, hire, lease, encumber, grant any right or interest (of any nature) in or over the Goods.
15. RIGHT TO RECOVER GOODS
15.1. If you commit a breach of these Terms and we elect to retake possession of the Goods, you hereby irrevocably authorise us to enter upon any premises where the Goods are located, and to use such reasonable force as may be necessary, for the purpose of removal of any Goods sold to you and to do so at your cost.
16. WHAT HAPPENS TO PROPERTY ATTACHED TO THE GOODS?
16.1. In the event that we retake possession of all or any part of the Goods, you hereby irrevocably authorise us to take possession of any property in, on or attached to the Goods which is not our property, and you acknowledge and agree that we are not liable for its care or safekeeping.
17. EXCLUSION OF WARRANTIES – NON-CONSUMER GOODS
17.1. This clause 17 applies only where the amount payable for the Goods exceeds $40,000 or the Goods are not ordinarily acquired for personal, domestic or household use.
17.2. State of the Goods – You acknowledge and agree that: (a)our second-hand goods may have dents and surface rust and this is not considered a default; (b) new goods can also have dents and minor scuff and scratches present as a result of the shipping process and this is not considered a defect; (c) you have read our Container Grading information (which is available to view online at www.seacontainers.com.au/container-conditon-grading-information specifying the quality of the goods, which is found on our website, prior to their delivery to you; and (d) you accept them in their current state.
17.3. Without limiting paragraph 17.2(b), we make no express or implied warranty in relation to:
(a) the fitness of the Goods for any particular purpose;
(b) the merchantability of the Goods; or
(c) the description, state, quality or condition of the Goods.
17.4. We hereby exclude and are not liable for any condition or warranty (of any kind) which is not expressly set out in these Terms.
18. CONSUMER GUARANTEES
18.1. The terms and conditions in this section 18 apply only where the amount payable for the Goods is $40,000 or less or the Goods are ordinarily acquired for personal, domestic or household use.
18.2. Our Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and to compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.
18.3. Goods presented for repair may be replaced by refurbished goods of the same type rather than being repaired. Refurbished parts may be used to repair the Goods.
19.1. You agree that if you suffer any loss (including economic loss), damage, cost, expense or claim howsoever arising as a result of the use or purchase of the Goods including without limitation any defect in the Goods, our liability to you is limited to the repair or replacement of the Goods (at our election).
19.2. To the full extent permitted by law, we are not liable for any indirect, economic, special or consequential loss or damage of any nature, including, without limitation, any loss of business or revenue, loss of profits, loss of opportunity, loss of goodwill, anticipated savings or expenses, in connection with or arising out of these Terms or an Order Confirmation or the supply of the Goods. Nothing in this clause does, or is intended to exclude or limit any rights you may have under the Australian Consumer Law
19.3. All notices under these Terms must be in writing and be given to the address shown in the Order Confirmation, or to such other address as may be designated in writing by either party to the other.
19.4. These Terms are binding upon you and us, your and our successors and assigns and are governed by the laws of New South Wales. The parties consent to the non-exclusive jurisdiction of the Courts of New South Wales. If you take possession of or retain any Goods, these Terms are valid and binding on you whether or not you have signed them.
19.5. These Terms override and exclude any terms and conditions provided by you. These Terms may only be modified or varied if agreed in writing and signed by our duly authorised officer. These Terms may only be modified or varied by you if agreed in writing by our duly authorised officer. We reserve the right to vary or amend these Terms by notifying you in writing of the variation or amendment. You will deemed to have accepted any variation or amendment upon placement of your next order or acceptance of the next Order Confirmation issued after the variation or amendment has been circulated.
19.6. You consent to us from time to time, seeking, advising, exchanging and verifying any personal or commercial information of yours with any third party and to carrying out any further pertinent investigation about your contact/address details, credit arrangements, trading terms, credit worthiness, credit standing, credit history or credit capacity, financial status etc.
20. WAIVER OF RIGHTS
20.1. A failure to exercise or delay in exercising any right, power or remedy by us does not operate as a waiver.
21. CUMULATIVE RIGHTS
21.1. Our rights under these Terms are in addition to, and do not exclude, any rights at common law, equity or any other agreement between you and us.
21.2. Further Assurances you agree to:
(a) execute and deliver any instruments; and
(b) do such other things; and
(c) as we may at any time request in connection with the enforcement of our rights under these Terms.