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GW Equip Pty Ltd – Terms & Conditions of Trade
  1. Definitions
    • “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting GW Equip to provide the Services as specified in any proposal, quotation, order, invoice, or other documentation, and:
      • if there is more than one Client, is a reference to each Client jointly and severally; and
      • if the Client is a partnership, it shall bind each partner jointly and severally; and
      • if the Client is on behalf of or part of, a Trust, shall be bound in its own capacity as a trustee; and
      • includes the Client’s executors, administrators, successors, and permitted assigns.
    • “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, Contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
    • “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
    • “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using GW Equip’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
    • “Goods” means all Goods or Services supplied by GW Equip to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
    • “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
    • “GW Equip” means GW Equip Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of GW Equip Pty Ltd.
    • “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between GW Equip and the Client in accordance with clause 8
 
  1. Acceptance
    • The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
    • In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
    • Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
    • The Client acknowledges that the supply of Goods on credit shall not take effect until the Client has completed a credit application with GW Equip and it has been approved with a credit limit established for the account.
    • In the event that the supply of Goods requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, GW Equip reserves the right to refuse delivery.
    • Any advice, recommendation, information, assistance, or service provided by GW Equip in relation to the Goods or Services supplied is given in good faith to the Client, or the Client’s agent and is based on GW Equip’s own knowledge and experience and shall be accepted without liability on the part of GW Equip. Where such advice or recommendations are not acted upon then GW Equip shall require the Client or their agent to authorise commencement of the Services in writing. GW Equip shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.
    • Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
  1. Authorised Representatives
    • Unless otherwise limited as per clause 2 the Client agrees that should the Client introduce any third party to GW Equip as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Goods or Services on the Client’s behalf and/or to request any variation to the Goods or Services on the Client’s behalf (such authority to continue until all requested Services have been completed or the Client otherwise notifies GW Equip in writing that said person is no longer the Client’s duly authorised representative).
    • In the event that the Client’s duly authorised representative as per clause 1 is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise GW Equip in writing of the parameters of the limited authority granted to their representative.
    • The Client specifically acknowledges and accepts that they will be solely liable to GW Equip for all additional costs incurred by GW Equip (including GW Equip’s profit margin) in providing any Goods, Services or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 2 (if any)).
  1. Errors and Omissions
    • The Client acknowledges and accepts that GW Equip shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
      • resulting from an inadvertent mistake made by GW Equip in the formation and/or administration of this Contract; and/or
      • contained in/omitted from any literature (hard copy and/or electronic) supplied by GW Equip in respect of the Services.
    • In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of GW Equip; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
    • In circumstances where the Client is required to place an order for Goods, in writing, or otherwise as permitted by these terms and conditions, the Client is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order for Goods (whether they are made to order Goods or not) (“Client Error“). The Client must pay for all Goods it orders from GW Equip notwithstanding that such Goods suffer from a Client Error and notwithstanding that the Client has not taken or refuses to take Delivery of such Goods. GW Equip is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Client Errors.
  1. Change in Control
    • The Client shall give GW Equip not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by GW Equip as a result of the Client’s failure to comply with this clause.
  1. On-Line Ordering
    • The Client acknowledges and agrees that:
      • GW Equip does not guarantee the website’s performance;
      • display on the website does not guarantee the availability of any particular Goods; therefore, all orders placed through the website shall be subject to confirmation of acceptance by GW Equip
      • on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades;
      • there are inherent hazards in electronic distribution, and as such GW Equip cannot warrant against delays or errors in transmitting data between the Client and GW Equip including orders, and you agree that to the maximum extent permitted by law, GW Equip will not be liable for any losses which the Client suffers as a result of online-ordering not being available or for delays or errors in transmitting orders;
      • when making a transaction through the website, the Client’s information will pass through a secure server using SSL (secure sockets layer) encryption technology or any other similar technology as disclosed by GW Equip and/or displayed on the website. The encryption process ensures that the Client’s information cannot be read by or altered by outside influences;
      • if the Client is not the cardholder for any credit card being used to pay for the Goods, GW Equip shall be entitled to reasonably assume that the Client has received permission from the cardholder for use of the credit card for the transaction.
    • GW Equip reserves the right to terminate the Client’s order if it learns that the Client has provided false or misleading information, interfered with other users or the administration of GW Equip’s business, or violated these terms and conditions.
  1. Credit Card Information
    • GW Equip will:
      • keep the Client’s personal details, including credit card details for only as long as is deemed necessary by GW Equip;
      • not disclose the Client’s credit card details to any third party;
      • not unnecessarily disclose any of the Client’s personal information, except is accordance with the Privacy Policy (clause 21) or where required by law.
    • The Client expressly agrees that, if pursuant to this Contract, there are:
      • any unpaid charges;
      • other amounts due and outstanding by the Client;
      • any equipment (or any part of them) supplied on loan that are lost or damaged.
    • GW Equip is entitled to immediately charge the Client’s nominated credit card for these amounts and is irrevocably authorised to complete any documentation and take any action to recover from the credit card issuer any and all amounts which may be due by the Client pursuant to the terms of this Contract.
 
  1. Price and Payment
    • At GW Equip’s sole discretion, the Price shall be either:
      • as indicated on any invoice provided by GW Equip to the Client; or
      • GW Equip’s quoted Price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of seven (7) days.
    • GW Equip reserves the right to change the Price;
      • if a variation to GW Equips’ order confirmation is requested or required (including as to the quantity of the Goods and location of the delivery address, distance to the delivery address, facilities available for loading or unloading, weather conditions or delays beyond the control of GW Equip, delivery times or dates, detention and/or demurrage charges or otherwise, etc.); or
      • to reflect any increases to GW Equip in the cost of the Goods, which are beyond the reasonable control of GW Equip (including, without limitation, increases in the cost of labour, foreign exchange fluctuations, increases in taxes, customs duties, insurance premiums, warehousing costs, or packaging, etc.); or
      • if during the course of the Services, the Goods cease to be available from GW Equip’s third party suppliers, then GW Equip reserves the right to provide alternative Goods, subject to prior confirmation and agreement of both parties.
    • Variations will be charged for on the basis of GW Equip’s quotation, and will be detailed in writing, and shown as variations on GW Equip’s invoice. The Client shall be required to respond to any variation submitted by GW Equip within ten (10) working days. Failure to do so will entitle GW Equip to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
    • At GW Equip’s sole discretion, a non-refundable deposit may be required.
    • Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by GW Equip, which may be:
      • thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
      • the date specified on any invoice or other form as being the date for payment; or
      • failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by GW Equip.
    • Payment may be made by cash, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and GW Equip.
    • GW Equip may in its discretion allocate any payment received from the Client towards any invoice that GW Equip determines and may do so at the time of receipt or at any time afterwards. On any default by the Client GW Equip may re-allocate any payments previously received and allocated. In the absence of any payment allocation by GW Equip, payment will be deemed to be allocated in such manner as preserves the maximum value of GW Equip’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
    • The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by GW Equip nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Client must notify GW Equip in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as GW Equip investigates the dispute claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in GW Equip placing the Client’s account into default and subject to default interest in accordance with clause 1.
    • Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to GW Equip an amount equal to any GST GW Equip must pay for any supply by GW Equip under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set-off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
  1. Delivery of Goods
    • Delivery (“Delivery”) of the Goods is taken to occur at the time that:
      • the Client or the Client’s nominated carrier takes possession of the Goods at GW Equip’s address; or
      • GW Equip (or GW Equip’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
    • At GW Equip’s sole discretion, the cost of Delivery is in addition to the Price.
    • GW Equip may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
    • The Client must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery.
    • Any time specified by GW Equip for Delivery of the Goods is an estimate only and GW Equip will not be liable for any loss or damage incurred by the Client because of Delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. If GW Equip is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then GW Equip shall be entitled to charge a reasonable fee for redelivery and/or storage.
  1. Risk
    • Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
    • If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, GW Equip is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by GW Equip is sufficient evidence of GW Equip’s rights to receive the insurance proceeds without the need for any person dealing with GW Equip to make further enquiries.
    • If the Client requests GW Equip to leave Goods outside GW Equip’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.
    • The plans, specifications (including CAD plans) and other information provided by the Client to GW Equip are accurate. The Client acknowledges and agrees that in the event that any plans, specifications (including CAD plans) or information provided by the Client is inaccurate:
      • GW Equip accepts no responsibility or liability for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information;
      • GW Equip is entitled to suspend or terminate the supply of Goods or Services to the Client if there is a material change to the scope of Services as a result of inaccurate plans, specifications or other information;
      • the Client shall be liable for GW Equip’s costs of de-mobilisation or re-mobilisation of any plant, equipment or staff to or from the site, upon the re-commencement of the Services at the site, if applicable; and
      • GW Equip will not be liable to the Client for any loss or damage the Client suffers because GW Equip has exercised its rights under this clause.
 
  1. Access
    • The Client shall ensure that GW Equip has clear and free access to the delivery site at all times to enable them to provide Goods and/or Services. GW Equip shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of GW Equip.
  1. Compliance with Laws
    • The Client and GW Equip shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services and Goods.
    • The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Goods and/or Services.
      • Modern Slavery
    • For the purposes of clauses 3 to 12.8:
      • “Act” means the Modern Slavery Act 2018 (cth)
      • “Modern Slavery”, “Modern Slavery Statement” and “Reporting Entity” have the meanings given by the Act.
    • If the Client is a Reporting Entity, it shall comply with all of its obligations under the Act.
    • Whether the Client is a Reporting Entity or not, the Client shall:
      • use reasonable endeavours to identify, assess and address risks of Modern Slavery practices in its operations and supply chains;
      • use its reasonable endeavours to ensure that the personnel responsible for managing the operations and supply chains used for the purposes of the Contract have undertaken suitable training to identify and report Modern Slavery;
      • use its reasonable endeavours to ensure that if at any time the Client becomes aware of Modern Slavery practices in its operations and supply chains, the Client must as soon as reasonably practicable take all reasonable steps to address or remove these practices;
      • provide to GW Equip a copy of any Modern Slavery Statement that it submits under the Act within seven (7) days of so doing; and
      • within seven (7) days of GW Equip’s request (or such longer period as GW Equip agrees), provide to GW Equip any information or assistance reasonable requested by GW Equip;
        • concerning the Client’s compliance with the Act;
        • concerning the Client’s operations and supply chains;
        • to enable GW Equip to prepare a Modern Slavery Statement or otherwise comply with the Act; or
        • to enable GW Equip to assess and address risks of Modern Slavery practices in its operations and supply chains.
      • The parties agree that in the circumstances a breach arises pursuant to this clause or the terms of the Act, the parties will try and resolve the breach by way of remediation and GW Equip will be able to terminate the Contract for any breach by the Client.
      • The Client warrants that any information supplied to GW Equip is true and accurate and may be relied upon for the purposes of the Act.
      • The Client shall indemnify GW Equip against any loss or liability suffered by GW Equip as a result of the Client’s breach of this clause 12.
  1. Title
    • GW Equip and the Client agree that ownership of the Goods shall not pass until:
      • the Client has paid GW Equip all amounts owing to GW Equip; and
      • the Client has met all of its other obligations to GW Equip.
    • Receipt by GW Equip 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.
    • It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 1:
      • the Client is only a bailee of the Goods and must return the Goods to GW Equip on request;
      • the Client holds the benefit of the Client’s insurance of the Goods on trust for GW Equip and must pay to GW Equip the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
      • the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for GW Equip and must pay or deliver the proceeds to GW Equip on demand;
      • the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of GW Equip and must sell, dispose of or return the resulting product to GW Equip as it so directs;
      • the Client irrevocably authorises GW Equip to enter any premises where GW Equip believes the Goods are kept and recover possession of the Goods;
      • GW Equip may recover possession of any Goods in transit whether or not Delivery has occurred;
      • the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of GW Equip;
      • GW Equip may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
  1. Personal Property Securities Act 2009 (“PPSA”)
    • In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
    • Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by GW Equip to the Client, and the proceeds from such Goods.
    • The Client undertakes to:
      • promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which GW Equip may reasonably require to;
        • register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
        • register any other document required to be registered by the PPSA; or
        • correct a defect in a statement referred to in clause 3(a)(i) or 14.3(a)(ii);
      • indemnify, and upon demand reimburse, GW Equip for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
      • not register a financing change statement in respect of a security interest without the prior written consent of GW Equip;
      • not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods or the proceeds of such Goods in favour of a third party without the prior written consent of GW Equip;
      • immediately advise GW Equip of any material change in its business practices of selling the Goods which would result in a change in proceeds derived from such sales.
    • GW Equip and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
    • The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
    • The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
    • Unless otherwise agreed to in writing by GW Equip, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
    • The Client must unconditionally ratify any actions taken by GW Equip under clauses 3 to 14.5.
    • Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
 
  1. Security and Charge
    • In consideration of GW Equip agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, and the Client grants a security interest in all of its present and after-acquired property for the purposes of, including but not limited to registering GW Equip’s security interest over the Client on the PPSA, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
    • The Client indemnifies GW Equip from and against all GW Equip’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising GW Equip’s rights under this clause.
    • The Client irrevocably appoints GW Equip and each director of GW Equip as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Client’s behalf.
 
  1. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
    • The Client must inspect the Goods on Delivery and must within three (3) days of Delivery notify GW Equip in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow GW Equip to inspect the Goods.
    • 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 and conditions (Non-Excluded Guarantees).
    • GW Equip acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
    • Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, GW Equip makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. GW Equip’s liability in respect of these warranties is limited to the fullest extent permitted by law.
    • If the Client is a consumer within the meaning of the CCA, GW Equip’s liability is limited to the extent permitted by section 64A of Schedule 2.
    • If GW Equip is required to replace the Goods under this clause or the CCA, but is unable to do so, GW Equip may refund any money the Client has paid for the Goods.
    • If the Client is not a consumer within the meaning of the CCA, GW Equip’s liability for any defect or damage in the Goods is:
      • limited to the value of any express warranty or warranty card provided to the Client by GW Equip at GW Equip’s sole discretion;
      • limited to any warranty to which GW Equip is entitled, if GW Equip did not manufacture the Goods;
      • otherwise negated absolutely.
    • Subject to this clause 16, returns will only be accepted provided that:
      • the Client has complied with the provisions of clause 1; and
      • GW Equip has agreed that the Goods are defective; and
      • the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
      • the Goods are returned in as close a condition to that in which they were delivered as is possible.
    • Notwithstanding clauses 1 to 16.8 but subject to the CCA, GW Equip shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
      • the Client failing to properly maintain or store any Goods;
      • the Client using the Goods for any purpose other than that for which they were designed;
      • 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;
      • the Client failing to follow any instructions or guidelines provided by GW Equip;
      • fair wear and tear, any accident, or act of God.
    • GW Equip may in its absolute discretion accept non-defective Goods for return in which case GW Equip may require the Client to pay handling fees of up to fifteen percent (15%) of the value of the returned Goods plus any freight costs.
    • Notwithstanding anything contained in this clause if GW Equip is required by a law to accept a return, then GW Equip will only accept a return on the conditions imposed by that law.
 
  1. Intellectual Property
    • Where GW Equip has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of GW Equip. Under no circumstances may such designs, drawings and documents be used without the express written approval of GW Equip.
    • The Client warrants that all designs, specifications, or instructions given to GW Equip will not cause GW Equip to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify GW Equip against any action taken by a third party against GW Equip in respect of any such infringement.
    • The Client agrees that GW Equip may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which GW Equip has created for the Client.
  1. Default and Consequences of Default
    • Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at GW Equip’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    • If the Client owes GW Equip any money, the Client shall indemnify GW Equip from and against all costs and disbursements:
      • incurred; and/or
      • which would be incurred and/or
      • for which by the Client would be liable;
        • in regard to legal costs on a solicitor and own client basis, internal administration fees, GW Equip’s Contract fees owing for breach of these terms and conditions’, including, but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.
    • Further to any other rights or remedies GW Equip may have under this Contract, if a Client has made payment to GW Equip, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by GW Equip under this clause 18 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
    • Without prejudice to GW Equip’s other remedies at law GW Equip shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to GW Equip shall, whether or not due for payment, become immediately payable if:
      • any money payable to GW Equip becomes overdue, or in GW Equip’s opinion the Client will be unable to make a payment when it falls due;
      • the Client has exceeded any applicable credit limit provided by GW Equip;
      • the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
      • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
  1. Cancellation
    • Without prejudice to any other remedies GW Equip may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions GW Equip may suspend or terminate the supply of Goods to the Client. GW Equip will not be liable to the Client for any loss or damage the Client suffers because GW Equip has exercised its rights under this clause.
    • GW Equip may cancel any Contract to which these terms and conditions apply or cancel Delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice GW Equip shall repay to the Client any money paid by the Client for the Goods. GW Equip shall not be liable for any loss or damage whatsoever arising from such cancellation.
    • If the Client cancels Delivery of Goods, the Client shall be liable for all losses incurred (whether direct or indirect) by GW Equip as a direct result of the cancellation (including, but not limited to, any loss of profits).
    • Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will not be accepted once production has commenced, or an order has been placed.
  1. Dispute Resolution
    • If a dispute arises between the parties to this Contract, then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
      • referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
      • conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
  1. Privacy Policy
    • All emails, documents, images, or other recorded information held or used by GW Equip is Personal Information, as defined and referred to in clause 3, and therefore considered Confidential Information. GW Equip acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). GW Equip acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by GW Equip that may result in serious harm to the Client, GW Equip will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
    • Notwithstanding clause 1, privacy limitations will extend to GW Equip in respect of Cookies where the Client utilises GW Equip’s website to make enquiries. GW Equip agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
      • IP address, browser, email client type and other similar details;
      • tracking website usage and traffic; and
      • reports are available to GW Equip when GW Equip sends an email to the Client, so GW Equip may collect and review that information (“collectively Personal Information”)
      If the Client consents to GW Equip’s use of Cookies on GW Equip’s website and later wishes to withdraw that consent, the Client may manage and control GW Equip’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
    • The Client agrees that GW Equip may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
      • to assess an application by the Client; and/or
      • to notify other credit providers of a default by the Client; and/or
      • to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
      • to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
    • The Client consents to GW Equip being given a consumer credit report to collect personal credit information relating to any overdue payment on commercial credit.
    • The Client agrees that personal credit information provided may be used and retained by GW Equip for the following purposes (and for other agreed purposes or required by):
      • the provision of Goods; and/or
      • analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
      • processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
      • enabling the collection of amounts outstanding in relation to the Goods.
    • GW Equip may give information about the Client to a CRB for the following purposes:
      • to obtain a consumer credit report;
      • allow the CRB to create or maintain a credit information file about the Client including credit history.
    • The information given to the CRB may include:
      • Personal Information as outlined in 3 above;
      • name of the credit provider and that GW Equip is a current credit provider to the Client;
      • whether the credit provider is a licensee;
      • type of consumer credit;
      • details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
      • advice of consumer credit defaults (provided GW Equip is a member of an approved OAIC External Disputes Resolution Scheme), overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and GW Equip has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
      • information that, in the opinion of GW Equip, the Client has committed a serious credit infringement;
      • advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
    • The Client shall have the right to request (by e-mail) from GW Equip:
      • a copy of the Personal Information about the Client retained by GW Equip and the right to request that GW Equip correct any incorrect Personal Information; and
      • that GW Equip does not disclose any Personal Information about the Client for the purpose of direct marketing.
    • GW Equip will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
    • The Client can make a privacy complaint by contacting GW Equip via e-mail. GW Equip will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to reach a decision on the complaint within thirty (30) days of receipt of the complaint. If the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at oaic.gov.au.
 
  1. Service of Notices
    • Any written notice given under this Contract shall be deemed to have been given and received:
      • by handing the notice to the other party, in person;
      • by leaving it at the address of the other party as stated in this Contract;
      • by sending it by registered post to the address of the other party as stated in this Contract;
      • if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
      • if sent by email to the other party’s last known email address.
    • Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
  1. Trusts
    • If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not GW Equip may have notice of the Trust, the Client covenants with GW Equip as follows:
      • the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
      • the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
      • the Client will not without consent in writing of GW Equip (GW Equip will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
        • the removal, replacement or retirement of the Client as trustee of the Trust;
        • any alteration to or variation of the terms of the Trust;
        • any advancement or distribution of capital of the Trust; or
        • any resettlement of the trust property.
  1. Building and Construction Industry Security of Payment Act 2002
    • At GW Equip’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payment Act 2002 may apply.
    • Nothing in this Contract is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 of Victoria, except to the extent permitted by the Act where applicable.
       
  1. General
    • The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. 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.
    • These terms and conditions and any Contract to which they apply shall be governed by the laws of Victoria and are subject to the jurisdiction of the courts in that state. These terms prevail over all terms and conditions of the Client (even if they form part of the Client’s purchase order).
    • Subject to clause 16, GW Equip shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by GW Equip of these terms and conditions (alternatively GW Equip’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
    • GW Equip may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
    • The Client cannot licence or assign without the written approval of GW Equip.
    • GW Equip may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of GW Equip’s sub-contractors without the authority of GW Equip.
    • The Client agrees that GW Equip may amend their general terms and conditions for subsequent future Contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for GW Equip to provide Goods to the Client.
    • Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party.
    • Both parties warrant that they have the power to enter this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
    • The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution and Delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.