Terms of Trade
Mighty Equipment Pty Ltd A.C.N 668 998 150
Trading as “Mighty Equipment”
Definitions
“Mighty Equipment” shall mean Mighty Equipment Pty Ltd, its successors, assigns, or any person genuinely acting as its authorised representative.
“CLIENT” shall mean the Client (or any person acting ostensibly on behalf of the Client as its authorised representative).
“GOODS” shall mean all Goods or other Items supplied by Mighty Equipment to the Client.
“PRICE” shall mean the price payable for the Goods agreed between Mighty Equipment and the Client in accordance with Clause 3 of these terms.
Acceptance
2.1 The Client’s/Clients’ acceptance of Mighty Equipment’s sale price for the Goods constitutes acceptance of the contractual terms and conditions contained herein.
2.2 In the case of more than one Client having accepted a quote, the Clients shall be jointly and severally liable for all payments.
2.3 Upon the Client’s acceptance of these Terms, they may only be amended by Mighty Equipment in writing.
Price And Payment
3.1 At Mighty Equipment’s sole discretion:
3.1.1 the Client may be liable to pay an administration fee.
3.1.2 the Client may be liable to for a full or part payment of the Price on or before delivery of the Goods.
3.2 Time for payment of the Price shall be of the essence, and shall be on the date of invoice except as otherwise stated by Mighty Equipment at its absolute discretion.
3.3 Mighty Equipment will use its reasonable endeavours to source all Goods ordered by the Client or quoted by Mighty Equipment.
3.5 The Client acknowledges that Mighty Equipment cannot, and does not, guarantee its ability to supply the Goods.
3.6 Mighty Equipment will promptly communicate to the Client any inability to provide the agreed quantity of Goods.
3.7 Mighty Equipment shall not be liable for any such shortfall.
Delivery Of Goods
4.1 Delivery costs are payable in addition to the Price.
4.2 At Mighty Equipment’s sole absolute discretion, delivery of the Goods shall occur when:
4.2.1 the Client takes possession of the Goods at Mighty Equipment’s address, or
4.2.2 the Client takes possession (by accepting delivery) of the Goods at its nominated address.
4.3 The Client shall make all arrangements necessary to accept delivery of the Goods whenever they are tendered for delivery. If the Client cannot take delivery of the Goods as arranged then Mighty Equipment may charge a reasonable redelivery fee.
4.4 Delivery of the Goods and Items to a third party nominated by the Client is deemed to be delivery to the Client.
4.5 A failure by Mighty Equipment to deliver does not constitute, nor entitle a party to, repudiation of the Contract.
4.6 Mighty Equipment shall not be liable for any loss or damage whatever due to failure by Mighty Equipment to deliver the Goods promptly or at all.
4.6 Client must allow Mighty Equipment into its property at reasonable times, with unrestricted access to the property in order to provide Delivery of Goods Monday to Sunday between 7:00am – 5:30pm.
Risk
5.1 If Mighty Equipment retains ownership of the Goods, all risk passes to the Client on delivery.
Title
6.1 Mighty Equipment and the Client agree that ownership of the Goods and Items shall not pass until the Client has paid Mighty Equipment all amounts owing for the particular Goods.
6.2 Receipt by Mighty Equipment of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
6.3 It is further agreed that:
(a) until ownership of the Goods and Items passes from Mighty Equipment to the Client, Mighty Equipment may give the Client written notice to return the Goods and Items or any of them to Mighty Equipment. Upon such notice, the Client’s rights to obtain ownership or any other interest in the Goods and Items shall cease.
(b) if the Client fails to return the Goods and Items to Mighty Equipment then Mighty Equipment or Mighty Equipment’s agent may enter upon the land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods and Items are situated and take possession of the Goods.
Client’s Disclaimer
7.1 The Client hereby disclaims any right to rescind, or cancel the contract with Mighty Equipment or to sue for damages or to claim restitution arising out of any misrepresentation made to the Client by Mighty Equipment and the Client acknowledges that the Goods and Items are bought relying solely upon the Client’s skill and judgment.
Statutory Provisions
8.1 Nothing in these terms shall have the effect of contracting out of any applicable provisions of the Australian Consumer Law or other relevant Commonwealth or State legislation.
Default & Consequences of Default
9.1 In the event of the Client being in default of payment, Mighty Equipment may claim from the Client, as a liquidated debt, its costs of recovery on an indemnity basis.
9.2 Without prejudice to any other remedies Mighty Equipment may have, if the Client is in breach of its obligations, Mighty Equipment may suspend or terminate the supply of Goods to the Client.
9.3 Mighty Equipment will not be liable to the Client for any loss or damage the Client suffers because Mighty Equipment has exercised its rights under this clause.
9.4 If any account remains overdue after thirty (30) days then Mighty Equipment may charge a late fee of five percent (5.00%) of the overdue amount for each 7 days that the debt remains outstanding, subject to the provisions of Clause 11.1.3.
9.5 Without prejudice to Mighty Equipment’s other remedies, Mighty Equipment may terminate the parties’ contract with all amounts payable under the Contract to be payable immediately in the event that:
9.5.1 in Mighty Equipment’s opinion the Client will be unable to meet its payments as they fall due, or
9.5.2 the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with its creditors, or makes an assignment for the benefit of its creditors, or
9.5.3 a director of either party loses capacity,
9.5.4 a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or its asset(s).
Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
10.1 The Client must inspect the Goods on delivery.
10.2 Any written notice by the Client to Mighty Equipment of any evident damage, shortage in quantity, or failure to comply with the description or quote must be provided within 5 business days of delivery.
10.3 A failure by the Client to give notice within that timeframe shall constitute acceptance of the Goods as being without defect.
10.4 The Client must notify Mighty Equipment of any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident.
10.5 Upon such notification the Client must allow Mighty Equipment to inspect the defect.
10.6 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms (“Non-Excluded Guarantees”).
10.7 Mighty Equipment acknowledges that these terms do not purport to modify or exclude the Non-Excluded Guarantees.
10.8 Except as expressly set out in these terms, Mighty Equipment makes no warranties or other representations herein, including but not limited to, the quality or suitability of the Goods.
10.9 Mighty Equipment’s liability in respect of these warranties is limited to the fullest extent permitted by law.
10.10 If the Client is a “Consumer” within the meaning of the CCA, Mighty Equipment’s liability is limited to the extent permitted by section 64A of Schedule 2.
10.11 If Mighty Equipment is required to replace the Goods under this clause or the CCA, but is unable to do so, Mighty Equipment may refund any money the Client has paid for them.
10.12 If the Client is not a “Consumer” within the meaning of the CCA, Mighty Equipment’s liability for any defect or damage in the Goods is:
10.12.1 limited to the value of any express warranty or warranty card provided to the Client by Mighty Equipment at Mighty Equipment’s sole discretion,
10.12.2 limited to any warranty to which Mighty Equipment is entitled, if Mighty Equipment did not manufacture the Goods,
10.12.3 otherwise negated absolutely.
10.13 Subject to this Clause 10, returns will only be accepted provided that:
10.13.1 the Client has complied with the provisions of Clauses 10.1 and 10.2; and
10.13.2 Mighty Equipment has agreed that the Goods are defective, and
10.13.3 the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
10.13.4 the Goods are returned in as close a condition as possible to that in which they were delivered.
10.14 Notwithstanding Clauses 10.1 to 10.13, but subject to the CCA, Mighty Equipment shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
10.14.1 the Client failing to properly maintain or store any Goods,
10.14.2 the Client using the Goods for any purpose other than for which they were designed;
10.14.3 the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user,
10.14.4 the Client failing to follow any instructions or guidelines provided by Mighty Equipment,
10.14.5 fair wear and tear, any accident, or act of God.
Intellectual Property
11.1 Where Mighty Equipment has designed, drawn, written, or created Goods for the Client, then the copyright in any designs, drawings, specifications, documents, or other items produced shall remain vested in Mighty Equipment, and shall only be used by the Client at Mighty Equipment’s discretion.
11.2 The Client warrants that all designs or instructions to Mighty Equipment will not cause Mighty Equipment to infringe any patent, registered design, or trademark in the execution of the Client’s order, and the Client agrees to indemnify Mighty Equipment against any action taken by a third party against Mighty Equipment in respect of any such infringement.
General
12.1 The failure by Mighty Equipment to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Mighty Equipment’s right to subsequently enforce that provision.
12.2 If any provision of these terms and conditions shall be invalid, void, illegal, or unenforceable, the validity, existence, legality, and enforceability of the remaining provisions shall not be affected, prejudiced, or impaired.