DEFINITIONS
“Agreement” means the agreement between Arena Hydraulic and Machinery and the Purchaser for the supply of goods and services, comprising the relevant order and these conditions.
“Claim” means any claim made (whether in the form of an allegation, demand, suit, action, or other proceeding of any kind) under or in connection with this contract or its subject matter, whether arising under contract (including under any warranty or indemnity or any other breach, actual or anticipatory), in equity, in restitution, negligence or any other tort, strict liability, under statute or otherwise at all.
“Conditions” means these terms and conditions, as amended from time to time.
“Consequential Loss” means all loss of actual or anticipated profit, loss of use, loss of productivity, loss of revenue, business interruption of any nature, loss of contracts, loss of opportunity, increased costs and expenses, wasted expenditure, loss arising from delay, loss by reason of shutdown or non-operation or increased cost of borrowing capital or financing, loss of business reputation or goodwill and all special, indirect and consequential losses whether caused by or contributed to by a breach of contract or statute, breach of warranty (express or implied), tort, strict liability or any other cause whatsoever.
“Delivery” means when the goods are picked up by a carrier or otherwise leave Arena Hydraulic and Machinery premises or as agreed in writing.
“Exchange” means the exchange of the purchaser’s own used part for a new, remanufactured or used part supplied by Arena Hydraulic and Machinery. “Goods” or “Services” (or both) collectively and severally means the parts, components, fluids, oils or other parts or services described in the attached quotation or invoice for purposes of supply by Arena Hydraulic and Machinery Pty Ltd to Purchaser.
“IP” 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), trademark rights (registered or not), circuit layout design rights and excluding non-assignable moral rights.
“Arena Hydraulic and Machinery” means Arena Hydraulic and Machinery Pty Ltd ABN: 97656186515.
“Price” means the total monetary amount for the sale of the Goods or Services (excluding GST unless stated otherwise).
“Purchaser” means the entity placing an order for Goods or Services.
“Services” means any service or repair of specified equipment supplied under an Arena Hydraulic and Machinery service quotation or invoice.APPLICATION OF CONDITIONS
2.1 Goods and Services are supplied or exchanged solely on the basis of these Conditions, and any terms put forward by the buyer are rejected.
2.2 Terms of contract, conditions, or offer in any specification, purchase order, or other document submitted by the Purchaser are excluded.
2.3 Variations or additions to these Conditions are effective only if agreed in writing by Arena Hydraulic and Machinery.
2.4 The Purchaser’s request to buy Goods or Services or submission by the Purchaser of a purchase order for the Goods or Services is deemed to be an offer to purchase the Goods or Services (order) subject to these Conditions. Arena Hydraulic and Machinery may accept or reject an order in its sole discretion.
2.5 An order to purchase Goods or Services is only accepted when it is acknowledged by Arena Hydraulic and Machinery either orally or in writing or by Delivery.
2.6 Arena Hydraulic and Machinery may vary these Conditions from time to time and will provide the Purchaser with replacement Conditions. The subsequent placing of an order by the Purchaser is deemed as acceptance of these Conditions.
2.7 Unless stated otherwise by Arena Hydraulic and Machinery, the Price for the Goods and Services is firm for 30 days from the original date of the quote, unless stated otherwise on the quote, or unless sooner withdrawn by Arena Hydraulic and Machinery.PRICE
3.1 Unless otherwise stated by Arena Hydraulic and Machinery:
(a) Prices exclude GST, customs duty, levies, tariffs, delivery costs, and any export packing or special packing requirements, taxes whether present or future, direct or indirect (except for taxes levied on Arena Hydraulic and Machinery’s income); and
(b) Goods pricing will be invoiced and payable in accordance with Arena Hydraulic and Machinery’s standard price list applying at the date of the order of the Goods.DELIVERY
4.1 Delivery and availability dates are indicative only. Arena Hydraulic and Machinery will use reasonable efforts to deliver the Goods and/or Services by the delivery date specified by it.
4.2 Arena Hydraulic and Machinery is not liable for any damage or loss, including Consequential Loss, to the Purchaser resulting from any delay in delivery of Goods or Services.PAYMENT
5.1 The Purchaser must pay the Price stated on the invoice without deduction or set-off either by the due date on the invoice or before any order is placed by Arena Hydraulic and Machinery for the external supply of Goods or Services. Failure to pay an invoice in full may result in a delay in the ordering process, or Arena Hydraulic and Machinery may delay placing an order for the external supply of Goods or Services until the invoice is paid in full. Alternatively, Arena Hydraulic and Machinery may, at its sole discretion, delay, postpone or cancel delivery to the Purchaser of Goods or Services if the invoice has not been paid in full. If the delivery of Goods or Services is delayed, postponed or cancelled by Arena Hydraulic and Machinery, the Purchaser may be required to pay a re-stocking fee and future orders by the Purchaser may be conditional on payment of the re-stocking fee, or other penalty at the sole discretion of Arena Hydraulic and Machinery.
5.2 Where the Purchaser is approved by Arena Hydraulic and Machinery for trading on credit terms, payment is due for all Goods and Services provided, as per the due date on the invoice, or as per credit terms agreed to by Arena Hydraulic and Machinery and the Purchaser on a separate, conditional contract. All other sales are on a cash-on-delivery/collection basis.
5.3 The Purchaser indemnifies Arena Hydraulic and Machinery for any losses, costs, or fees incurred or arising in connection with the recovery of any overdue payment.
5.4 On dispatch of Goods from Arena Hydraulic and Machinery, the Purchaser is responsible for insurance, including while the Goods are in transit or in the care of a freight company. For all other legal intents and purposes, ownership of the Goods passes to the Purchaser on payment of the invoice in full. The Purchaser must:
(a) keep the Goods in its possession and control;
(b) keep the Goods in good repair and condition, excluding fair wear and tear;
(c) keep the Goods stored separately and marked so that the Goods are clearly and easily identifiable as Arena Hydraulic and Machinery’s property and if requested, promptly inform Arena Hydraulic and Machinery of the location of the Goods; and
(d) not sell, assign or lease the Goods or any interest in them, or permit any Security Interest charge, pledge, lien, or other encumbrance to be created in relation to them.
5.5 If the Purchaser fails to pay Arena Hydraulic and Machinery all monies due under this Agreement by the due date, Arena Hydraulic and Machinery has the right and irrevocable license from the Purchaser, to, at any time and without notice, via its representatives, enter the Purchaser’s premises and to repossess the Goods or any part of them.PERSONAL PROPERTY SECURITIES ACT 2009 (CTH) (“PPSA”)
6.1 The retention of title in clause 5.4 gives rise to a Purchase Money Security Interest under the PPSA in favor of Arena Hydraulic and Machinery in respect of the Goods and their proceeds.
6.2 If the Purchaser defaults on any monies due under this Agreement, Arena Hydraulic and Machinery has the irrevocable right to seize the Goods without notice and deal with the Goods as Arena Hydraulic and Machinery sees fit.
6.3 To the maximum extent permitted by law, the following provisions of the PPSA do not apply to the enforcement by Arena Hydraulic and Machinery of its security interest in the Goods: sections 95, 118, 141(4), 125, 130, 132(3)(d), 132(4), 135, 142, and 143. The Purchaser waives its rights to receive any verification statements under Section 157 of the PPSA.
6.4 In clauses 5 and 6 “proceeds,” “Purchase Money Security Interest,” and “Security Interest” have the meanings given in the PPSA.RISK AND INSURANCE
7.1 Risk in the Goods passes to the Purchaser upon Delivery. The Purchaser must fully insure the Goods and hold the benefit of any claim on trust for Arena Hydraulic and Machinery, from the time risk in the Goods passes to the Purchaser until title in the Goods passes from Arena Hydraulic to the Purchaser.WARRANTIES AND EXCLUSIONS
8.1 Unless Arena Hydraulic and Machinery states otherwise, Goods or Services are warranted in accordance with these terms and Conditions.
8.2 All other conditions and warranties of any type in relation to the Goods or Services are excluded to the maximum extent allowed by the law. Nothing in these Conditions limits those provisions of the Competition and Consumer Act 2010 (Cth) nor any other statutes, rules, or regulations from time to time in force in Australia which imply or guarantee certain conditions or warranties or impose obligations on Arena Hydraulic and Machinery which conditions, warranties and obligations cannot, or cannot except to a limited extent be excluded, restricted or modified.
8.3 Arena Hydraulic and Machinery’s liability for breach of any condition or warranty implied by law, and which cannot be excluded, is limited to:
(a) in the case of Goods, any one or more of the following (as Arena Hydraulic and Machinery may determine):
(i) the replacement of the Goods or the supply of equivalent goods;
(ii) the repair of the Goods;
(iii) the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the Goods repaired; or
(b) in the case of Services, any one or more of the following (as Arena Hydraulic and Machinery may determine):
(i) the supplying of the Services again; or
(ii) the payment of the cost of having the Services supplied again.
8.4 To the maximum extent permitted by law, Arena Hydraulic and Machinery’s total liability for loss, damage, or injury arising directly or indirectly from any defect in, or non-compliance of, any Goods or Services supplied or from any other breach of Arena Hydraulic and Machinery’s obligations is limited to the Price of the Goods or Services.
8.5 To the maximum extent permitted by law, Arena Hydraulic and Machinery is not liable to the Purchaser or any other person for:
(a) any Consequential Loss; or
(b) any loss or damage caused by the Purchaser’s misuse or negligence in respect of the Goods or Services, including a failure to store, maintain, use or handle the Goods in accordance with instructions or industry standards; or
(c) any Claim in respect of any Goods which have been altered, modified or repaired by the Purchaser or any other person after Delivery; or
(d) any loss or damage arising from a breach of the Purchaser’s obligations under this Agreement.
FORCE MAJEURE
9.1 Arena Hydraulic and Machinery is not liable for any delay or failure to perform its obligations under these Conditions to the extent that such delay or failure is due to a Force Majeure Event.
9.2 If a Force Majeure Event occurs, Arena Hydraulic and Machinery’s obligations under these Conditions are suspended for the duration of the event. Arena Hydraulic and Machinery will notify the Purchaser of the Force Majeure Event and its expected duration.INTELLECTUAL PROPERTY
10.1 Arena Hydraulic and Machinery retains ownership of all IP in the Goods and all materials provided in connection with the Goods and Services.
10.2 The Purchaser must not use any of Arena Hydraulic and Machinery’s IP without the prior written consent of Arena Hydraulic and Machinery.CONFIDENTIALITY
11.1 The Purchaser must keep confidential all information disclosed by Arena Hydraulic and Machinery that is identified as confidential or would reasonably be considered to be confidential, including but not limited to these Conditions, the Price, and any IP or business information of Arena Hydraulic and Machinery.
11.2 The Purchaser may only use Arena Hydraulic and Machinery’s confidential information for the purposes of performing its obligations under this Agreement.
11.3 The obligations of confidentiality in this clause do not apply to information which is:
(a) in the public domain, except as a result of a breach of these Conditions;
(b) required to be disclosed by law; or
(c) disclosed with the prior written consent of Arena Hydraulic and Machinery.TERMINATION
12.1 Arena Hydraulic and Machinery may terminate this Agreement immediately by notice in writing to the Purchaser if:
(a) the Purchaser fails to pay any amount due under this Agreement by the due date;
(b) the Purchaser breaches any other term of this Agreement and fails to remedy the breach within 14 days of notice from Arena Hydraulic and Machinery;
(c) the Purchaser becomes insolvent, bankrupt, or enters into a scheme or arrangement with creditors.
12.2 Upon termination of this Agreement for any reason:
(a) the Purchaser must immediately pay to Arena Hydraulic and Machinery all amounts owed under this Agreement;
(b) Arena Hydraulic and Machinery may repossess any Goods for which payment has not been received in full;
(c) the Purchaser must return to Arena Hydraulic and Machinery any confidential information and IP in the Purchaser’s possession or control.GOVERNING LAW
13.1 This Agreement is governed by the laws of the laws of Victoria.
13.2 The Purchaser submits to the non-exclusive jurisdiction of the courts of Victoria, Australia.GENERAL
14.1 Any waiver by Arena Hydraulic and Machinery of any rights under this Agreement must be in writing and signed by an authorised representative of Arena Hydraulic and Machinery.
14.2 If any provision of these Conditions is found to be invalid or unenforceable, that provision must be read down, if possible, so as to be valid and enforceable, and if that is not possible, the provision must be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions.
14.3 The Purchaser must not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of Arena Hydraulic and Machinery.
14.4 These Conditions constitute the entire agreement between the parties and supersede all previous negotiations, understandings, representations, and agreements in relation to the subject matter of this Agreement.
14.5 A notice required or permitted to be given by either party to the other under these Conditions must be in writing and delivered to the address set out in the order or to such other address as notified by the relevant party from time to time.
