GOLDACRES/PATHWAY
RESELLER TERMS AND CONDITIONS OF SALE

 

Goldacres/Pathway Goods are only available for purchase upon the terms and conditions set out below.

 

Interpretation

1.In these warranty terms and conditions:

2.“Goldacres” or “Pathway” means Goldacres Trading Pty. Ltd. A.C.N. 061 306 732 trading as Goldacres Agricultural Equipment (its successors and assigns) which is the seller of the Goods;

3.“Purchaser” means the purchaser of the Goods;

4.“Goods” means the product and, if any, the services sold or provided;

5.Nothing in these warranty terms and conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying, any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010) and which by law cannot be excluded, restricted or modified.

6.GST Act and GST are given the meanings referred to in a New Tax System (Goods and Services Tax) Act 1999.

General

7.(1) These warranty terms and conditions and the terms and conditions incorporated herein by virtue of clause 3 hereto (which shall only be waived in writing signed by Goldacres/Pathway) shall prevail over all other terms and conditions of the purchaser or otherwise to the extent of any inconsistency.

8.This warranty may not be modified or added to without the expressed written consent endorsed hereon of the Managing Director of Goldacres Trading P/L.

Terms and conditions of sale and warranty.

9.The Goods and all other products sold and, if any, services sold or provided by Goldacres/Pathway are contained in these terms and conditions, and additional terms and conditions as described by the documents “Pathway Forklifts warranty terms and conditions” or “Pathway Pumps warranty terms and conditions.” To the extent of any inconsistency between these terms and conditions and the additional terms and conditions described in the said documents, these terms and conditions shall prevail.

Goldacres quotations.

10.Unless previously withdrawn, Goldacres’ quotations are open for acceptance within the period stated therein or, when no period is stated, with 14 days only of the quotation date. Goldacres reserves the right to refuse any order based on any quotation within 7 days of receipt of the order.

Packing

11.The cost of any special packing and packing materials used in relation to the Goods shall be at the purchaser’s expense notwithstanding that such cost may have been omitted from any quotation.

Shortage

12.The purchaser waives any claim for shortage of any Goods delivered if a claim in respect thereof has not been lodged with Goldacres within (7) seven days from the date of receipt of the Goods by the purchaser.

Specifications, etc: Catalogues, etc: Quantities

13.All specifications, (without limiting the generality of same – including: drawings, particulars of weights, volumes, capacities, dimensions, load factors) are approximate only and any deviation shall not be taken to vitiate any contract with Goldacres/Pathway or form any claim against Goldacres/Pathway. The descriptions, illustrations, and performances contained in catalogues, price lists and other advertising matter do not form part of the contract of sale of the Goods. Where specifications, drawings or other particulars are supplied by Purchaser, Goldacres/Pathway’ price is made on estimates of quantities required. Should there be any adjustments in quantities above or below the quantities estimated by Goldacres/Pathway and set out in a quotation, then any such increase or decrease shall be adjusted on a unit rate basis according to unit prices set out herein.

 

Performance, Capacities, Chemicals, Liquids, Application Methods, Environmental Effects

14.Any performance, volumes, and/or capacity figures given by Goldacres/Pathway are estimates only. Goldacres/Pathway shall be under no liability for damages for failure to obtain such figures unless specifically guaranteed in writing and any such written guarantee shall be subject to the recognised tolerances applicable to such figures. The suitability of chemicals and other liquids for any application and the application methods and the environmental effects shall be sole decision and responsibility of the purchaser and the user of the Goods. Goldacres/Pathway gives no warranty as to the suitability of any chemicals or other liquids for any application, nor the application methods nor the environmental effects, which may result from the use of the Goods. Goldacres/Pathway shall be under no liability for damages arising out of the use of any chemicals, liquids, or mixtures in the Goods nor for any application, nor for the application methods nor for the environmental effects, which may result from the use of the Goods.

Delivery/Service Times

15.The delivery times and service times made known to the purchaser are estimates only and Goldacres shall not be liable for late delivery, non-delivery or delay and under no circumstances shall Goldacres be liable for any loss, damage or delay occasioned by the purchaser or its customers arising from the late or non-delivery or late installation of the Goods.

Loss or damage in transit

16.Goldacres is not responsible for any loss or damage to Goods in transit. Goldacres shall render the purchaser such assistance as may be necessary to press claims on carriers provided that the purchaser shall have notified Goldacres and the carriers immediately the loss or damage is discovered on receipt of Goods and shall lodge a claim on the carrier within three days of the date of receipt of the Goods. Insurance of Goods in transit is the responsibility of the purchaser.

Limit of Liability

17.(1) Goldacres/Pathway liability for Goods manufactured by it is limited to:

1.where the law implies consumer guarantees into these terms and conditions pursuant to Part 3.2 Division 1 of Schedule 2 to the Competition and Consumer Act 2010 (C’th”) (“consumer guarantees”) which cannot be excluded and Goldacres/Pathway breaches a consumer guarantee, the loss and damage the purchaser is entitled to at law which cannot be excluded by these terms and conditions;

 

and, in all other cases

2. making good any defects by repairing the same or at Goldacres/Pathway option by replacement within a period not exceeding either 1000 hours or twelve calendar months, whichever comes first, after the Goods have been dispatched provided that:

18.the defects have arisen solely from faulty materials or workmanship;

19.the Goods have not received maltreatment inattention or interference;

20.accessories of any kind used by the purchaser are manufactured or approved by Goldacres/Pathway;

21.where applicable, the seals on the Goods remain unbroken;

22.there has been no improper adjustment, calibration or operation;

23.the use of accessories including consumables, hardware or software (not manufactured by Goldacres/Pathway) has been approved in writing by Goldacres/Pathway;

24.no contamination or leakage has been caused or induced;

25.any modification to the Goods have been authorised in writing by Goldacres/Pathway;

26.there has been no inadequate or incorrect use, storage, handling or application of the Goods;

27.there has been no use or operation of the Goods outside of the physical, electrical or environmental specifications of the Goods;

28.there has been no inadequate or incorrect site preparations;

29.there has been no inadequate or improper maintenance of the Goods;

30.it has not been caused by fair wear and tear; and

31.firstly the Goods have been thoroughly inspected and any damage (from whatever cause) to the Goods (and in particular – the structure, welding, seams, bolts, booms) has been repaired prior to the Goods being operated, used driven or moved and on each occasion the tanks are filled; and

32.there has been no failure to comply with the requirements of all present or future laws or regulations relating to the Goods and/or the use and/or the operation of the Goods; and

33.there has been no failure to maintain a record of hours of operation (which record shall contain full details of all inspections, repairs and maintenance) and produce same to Goldacres/Pathway at the time of the warranty claim;

34.the defective Goods or any damaged part of the Goods are promptly returned free of cost to Goldacres/Pathway or a representative of Goldacres/Pathway;

35.all warranty related repairs have been carried out with the prior authorisation of Goldacres/Pathway;

36.If Goods or any part thereof are not manufactured by Goldacres/Pathway, in particular engines, engine accessories, transmissions, transfer cases, differentials, tyres, tubes, batteries, radios and UHFs, the guarantee of the manufacturer thereof shall be accepted by the purchaser and is the only guarantee given to the purchaser in respect of the Goods or that part provided always that this clause does not seek to exclude the consumer guarantees;

37.in the case of hydraulic systems, Goldacres/Pathway shall replace defective parts in accordance with clause 11(1) of these conditions, provided that the failure of the part was not related to contamination within the system, Goldacres/Pathway shall not be liable for labour in the case of repairing hydraulic system defects;

38.this warranty does not extend to components considered as normal wear items including, but not limited to nozzles, chains, belts, filters, brake pads, polyethylene bushes and liquid pump valves, valve O-rings, diaphragms and seals;

39.Goldacres/Pathway shall not be liable for and the purchaser releases Goldacres/Pathway from any claims in respect of faulty or defective design of any Goods supplied unless such a design has been wholly prepared by Goldacres/Pathway and the responsibility for any claim has been specifically accepted by Goldacres/Pathway in writing and in any event Goldacres/Pathway liability hereunder shall be strictly limited to the replacement of defective parts in accordance with paragraph 11 (1) of these conditions provided always that this clause does not seek to exclude the consumer guarantees;

(6) except as provided herein, all express and implied warranties, guarantees and conditions under statute or general law as to the merchantability, description, quality, suitability or fitness of the Goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are hereby expressly excluded and Goldacres/Pathway shall not be liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the Goods or arising out of Goldacres/Pathway negligence or in any other way whatsoever;

40.Warranty shall only be available to the Purchaser and shall not be transferable by the Purchaser;

41.Warranty in no way extends to any used Goods.

42.Goldacres/Pathway liability for breach of a consumer guarantee  is hereby limited (in the case of goods and services not used for personal, domestic or household purposes) to:

43.in the case of Goods, any one or more of the following:

44.the replacement of the Goods or the supply of equivalent Goods;

45.the repair of the Goods;

46.the payment of the cost of replacing the Goods or acquiring the equivalent Goods;

47.the payment of having the Goods repaired; or

48.in the case of services;

49.the supplying of the services again; or

50.the payment of the cost of having the services supplied again.

Prices

51.Already stated

52.Unless otherwise stated in writing by Goldacres/Pathway, all prices quoted by Goldacres/Pathway are inclusive of GST for supplies within Australia and exclusive of GST for exports outside of Australia. Prices quoted are those ruling at the time of quotation or the date the price is given and are based on rates of freight, insurance, customs, duties, taxes, exchange, shipping expenses, sorting and stacking charges, cartage, cost of materials and other charges affecting the cost of production ruling on that date and any alterations thereto either before acceptance of or during currency of the contract shall be to the purchaser’s account.

53.For the purpose of 38-185 of the GST Act, the day upon which the seller gives the invoice for the supply shall be the date of the invoice.

Payment

54.Already stated

55.The purchase price in relation to the Goods and the cost of the service shall be payable without deduction and or set off and payment thereof shall be made on or before the thirteenth day of the month following the delivery of the Goods or performance of the services unless other terms of payment are expressly stated in writing.

56.A decreasing or increasing adjustment and or the issuing of an adjustment note, pursuant to Division 21 and Division 29-C of the GST Act, shall not, in any way, constitute a release, waiver, and or forgiveness of the debt incurred by the purchaser.

Interest on overdue payments

57.If Goldacres is not paid for any goods or services on the due date specified in this agreement without prejudice to any other right or remedy, all outstanding money shall bear interest at the rate set, pursuant to the Penalty Interest Rates Act, Victoria, 1986, as such money, together with interest shall be recoverable forthwith from the purchaser.

Rights in relation to Goods.

58.Goldacres/Pathway reserves the following rights in relation to the Goods until all accounts owed by the purchaser to Goldacres are fully paid.

59.Legal ownership of the Goods

60.To enter the purchasers premises (or the premises of any associated company or agent where the Goods are located) without liability for trespass or any resulting damage and retake possession of the Goods; and

61.To keep or resell any Goods pursuant to (2) above;

If the Goods are resold, or products manufactured using the Goods are sold, by the purchaser, the purchaser shall hold such part of the proceeds of any such sale as represents the invoice price of the Goods sold or used in the manufacture of the Goods sold on a separate and identifiable account as the beneficial property of Goldacres and shall pay such amount to Goldacres on request. Notwithstanding the provisions above Goldacres shall be entitled to maintain an action against the purchaser for the purchase price and the risk of the Goods shall pass to the purchaser upon delivery.

Purchasers property

62.Any property of the purchaser under Goldacres’ custody or control shall be entirely at the purchaser’s risk as regards loss or damage caused to the property or by it.

Storage

63.Goldacres reserves the right to make a reasonable charge for storage if delivery instructions are not provided by the purchaser within (14) fourteen days of a request by Goldacres for such information.

Returned Goods

64.Goldacres shall not be under any obligation to accept Goods returned by the purchaser and will do so only on terms to be agreed in writing in each individual case.

Goods sold

65.All Goods to be supplied by Goldacres shall be described on the purchase order agreed by Goldacres and purchaser and the description on such purchase order modified as so agreed shall prevail over other descriptions including any purchaser’s specification or enquiry.

Cancellation

66.No order may be cancelled except with the consent in writing and on terms, which will indemnify Goldacres against all losses.

No waiver

67.The failure of any party to enforce the provisions of this agreement or to exercise any rights expressed in this agreement shall not be a waiver of such provisions or rights and shall not affect the enforcement of this agreement. The exercise by any party of any of its rights expressed in this agreement shall not preclude or prejudice such party from exercising the same or any other rights it may have irrespective of any previous action taken by that party.

Force Majeure

68.If by reason of any fact, circumstance, matter or thing beyond the reasonable control of Goldacres is unable to perform in whole or in part any obligation under this agreement then Goldacres shall be relieved of that obligation under this agreement to the extent and for the period that it is so unable to perform and shall not be liable to the purchaser in respect of such inability.

Passing of risk

69.Risk in the Goods shall pass to the purchaser upon delivery of the Goods to the purchaser or collection of the goods by the purchaser’s agent or carrier as the case may be.

Exclusion of liability

70.To the extent permitted by law Goldacres/Pathway shall not be liable to the purchaser in contract or in tort arising out of, or in connection with, or relating to, the performance of the Goods or any breach of these conditions or any fact, matter or thing relating to the Goods or error (whether or not it is negligent or a breach of contract) in information supplied to the purchaser or a user before or after the date of the purchaser’s or user’s use of the Goods and Goldacres/Pathway shall be under no liability for damages arising out of the use of any chemicals, liquids, or mixtures in the Goods, nor for any application, not for the application methods nor for the environmental effects, which may result therefrom or from the use of the Goods.

Exclusion of representations and arrangements

71.To the extent permitted by law the terms and conditions supersede and exclude all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of the Goods or any part thereof including, but without limiting the generality of the foregoing, those relating to the performance of the Goods or any part thereof or the results that ought to be expected from using the Goods.

Place of contract

72.The contract for sale of the Goods and the provision of the services is made in the State of Victoria and the purchaser agrees to submit all disputes arising with Goldacres to the courts of such State and any court competent to hear appeals therefrom.