Standard Trading Terms & Conditions
Any reference to terms, conditions or standard trading terms in any document or website of Stockyard Industries’ refers to the Terms and conditions contained herein.
Unless a contrary intention is expressed within this document the terms contained herein shall have the following meanings:
“Supplier” means Stockyard Industries, their subsidiary’s and other related entities.
“Customer” means any person contracting with Stockyard Industries for the supply of goods, parts or services. If the customer consists of more than one person, the Terms bind them severally and jointly.
“Guarantor” means the person who signs the Guarantee contained in Clause 25.
“GST” means the goods and services tax under the A New Tax System (Goods and Services Tax) Act 1999 (as amended) and includes all other GST related legislation
“Goods” means any goods, equipment, or other material or product ordered from Stockyard Industries or it’s related entities or supplied by Stockyard Industries or it’s related entities to the customer.
“Services” means any services supplied or performed by Stockyard Industries, it’s related entities or employees to the consumer.
“Terms” means the terms and conditions contained herein.
“Works” means all actions reasonably necessary to supply services and or Goods and anything reasonably incidental thereto.
1.1. All goods and services supplied by Stockyard Industries are supplied subject to these terms and conditions.
1.2. These terms may be varied only subject to any written agreement by the Supplier to modify the same, signed by the Supplier.
1.3. The terms are to be read in conjunction with any Special Conditions stated on the Supplier’s Order Form.
1.4. These terms shall apply notwithstanding the receipt, acknowledgment or acceptance by the Supplier of any Purchase Order issued by the Customer purporting to modify these terms.
2.1. The invoiced amount is due and payable by the Customer on the date or dates specified on the Order Form or if no date is or dates are specified then on the supply of the Services and/or Goods to the Customer.
2.2. If for any reason the Supplier is unable to provide all Services and/or Goods, the Supplier shall be entitled to a pro-rata payment of the amount invoiced for Services supplied and for the full amount for any Goods supplied.2.3. If payment of the invoiced amount is not received in full when they become due and payable an additional accounting charge of 3% on fortnightly outstanding balances will be added for every 14 day period or part thereof that the balance remains outstanding. If this accounting charge is found to be an excessive or a penalty by the Queensland Courts the amount will be reduced in accordance with any decision of the Court.
2.4. Unless otherwise specified, sales tax, GST and any other applicable duties or charges imposed by any government or statutory authorities are additional to the price quoted and invoiced.
2.5. Where sales tax or GST is included in a quotation it is based on the rate ruling at the time of the quotation and any subsequent variation is to the Customer’s account. Where sales tax or GST is not included in a quotation the Customer is liable to pay the sales tax and or GST.
2.6. Any payment due by the customer for goods and services provided by is payable without set-off, counterclaim or demand.
3. Delivery of Goods
3.1. Unless otherwise specified, the Supplier may charge the Customer a delivery fee for all or any costs and expenses incidental to and arising out of:
3.1.1. the delivery of any Goods to the Supplier from any manufacturer or other supplier.
3.1.2. the delivery of Goods and Services to the Customer where delivery is to a place other than the Supplier’s premises.
3.2. Where the Goods are to be collected by the Customer from the Supplier’s premises then the Goods must be collected within 5 days from the date of notification from the Supplier to the Customer that the Goods are ready for collection. If the Goods are not so collected then the Supplier may charge the Customer a holding fee for non-collection of the Goods at the rate of 1% of invoice value per day for each day the Goods remain uncollected.
3.3. Delivery dates are approximate only. The Supplier is not liable for delay in delivery however so caused. Time for delivery is not of the essence. The Supplier may deliver in advance of the quoted delivery date (if any).
4.1. Risk in the Goods passes to the Customer either:-
4.1.1. on collection of the Goods by the Customer; or
4.1.2. at the time the Supplier notifies the Customer that the Goods are available for collection; or
4.1.3. where the Goods are to be delivered to the Customer on leaving the Supplier’s premises.
5.1. Ownership of any of the Goods only passes to the Customer when the Customer pays all sums owing to the Supplier under any Contracts.
5.2. Where the Supplier delivers the Goods to the Customer and moneys are still outstanding, then, until the Goods are disposed of by the Customer in accordance with the provisions of this clause, the Customer agrees with the Supplier to keep the Goods on trust for the Supplier and, if required, store the Goods in a manner that clearly shows the ownership of the Supplier.
5.3. The Customer may sell the Goods to a third party in the normal course of business and deliver them to that third party whereupon:
5.3.1. If the Customer is paid by that party, the Customer holds the whole of the proceeds of sale of those Goods on trust for the Supplier; and
5.3.2. If the Customer is not paid by that party, the Customer agrees, at the option of the Supplier, to assign his claim against that party to the Supplier upon the Supplier giving the Customer notice in writing to that effect.
5.4. For the purpose of giving effect to the agreement specified in paragraph 5.3.2 the Customer irrevocably appoints the Supplier as his attorney for this clause.
5.5. The provisions of this clause apply notwithstanding any agreement, whether subsequent to this Contract or not, between the parties under which the Supplier gives the Customer credit.
5.6.1. the Customer or the Supplier repairs an object or makes a new object from the Goods;
5.6.2 the Customer or the Supplier mixes the Goods with other objects; or
5.6.3. the Goods become part of other objects; then the ownership of the new object or the other objects immediately passes to the Supplier and the Customer is to hold the new object or other objects as on trust for the Supplier.
5.7. The ownership of the new object or other objects passes to the Supplier at the beginning of the single operation or event by which the Goods are converted into a new object, is mixed or becomes part of another object (called the “New Object”).
5.8. Until the Supplier has been paid all monies owing under this or any other Contract, the Buyer agrees with the Supplier to keep the New Object on trust for the Supplier and, if required by the Supplier to store the New Object in a manner that clearly shows the ownership of the Supplier.
6. Delivery and Completion of Services
6.1. The Customer acknowledges and agrees that the Supply of any Services by the Supplier to the Customer for the installation, repair or maintenance of any object owned or in the possession of the Customer shall be in accordance with the design and specifications of the original manufacturer of the object wherever possible unless the Supplier is otherwise directed by the Customer.
6.2. Where the Customer requires the Supplier to design any object for installation, repair or maintenance purposes the Supplier shall have the right to require the Customer (at the Customer’s cost) to obtain such expert services as is necessary including engineer’s specifications or drawings in order to ensure that the design and specifications meet relevant safety standards. The Supplier does not hold itself out as having the necessary expertise and to the fullest extent permissible by the law accepts no responsibility for the design and specifications.
6.3. It shall be the responsibility of the Customer to provide wherever possible the specifications of the original manufacturer of the object and any manuals and other documents which relate to the object. These are to be provided to the Supplier prior to the provision of the Supply of the Services in relation to the object.
6.4. Where the Customer requires the object to be installed, repaired or maintained in any way which results in a modification of the manufacturer’s specifications for the object it shall be the responsibility of the Customer to ensure that such modification is legal and safe. The Supplier accepts no responsibility for modification to an object outside the manufacturer’s specifications unless the manufacturer has provided in writing approval for such modifications.
6.5. The Customer acknowledges that where the object is to be modified by the Supplier, the Supplier shall be indemnified by the Customer for any loss or damage which the Customer suffers as a result of the modification.
6.6. The Supplier shall use its best endeavours to supply the Services and Goods on the times and dates specified but shall not be liable for any delays whatsoever.
7. Liability of Supplier of Part
7.1. Subject to Clause 8 the Supplier is not responsible or liable for:-
7.1.1. The workmanship of Goods supplied. However the Supplier shall use its best endeavours to ensure that the manufacturer of the Goods provides or assigns warranties in relation to the Goods to the Customer.
7.1.2. Any faults or defects in the Goods;
7.1.3. The quality and/or performance of the Goods which were purchased by the Supplier from the Manufacturer; or
7.1.4. Delay in performance or non-performance of this Contract directly or indirectly caused by fire, explosion, accident, flood, labour trouble, stoppage or strikes, shortages, acts of war of or hostilities by any Government or Government Agencies, inability to obtain suitable materials, equipment, fuel, power or transportation at current prices, or act of God or arising from contingencies happening or causes beyond the control of the Supplier.
7.2. Subject to Clause 8 any Goods or Services affected by any matters outlined in the preceding clause may be eliminated by the Supplier from this Contract without liability for breach thereof but this Contract shall otherwise remain unaffected.
8. Limitations and Exclusions
8.1. If the Customer is a “consumer” pursuant to The Australian Consumer Law (and/or any equivalent state Fair Trading legislation) (“The Act”) then:-
8.1.1. The Customer’s rights under that Act are not excluded, restricted or modified by anything herein;
8.1.2. The Supplier’s liability for the supply of Goods and/or Services is limited to one or more of the following at the election of the Supplier:-
184.108.40.206. The replacement of the Goods or the supply of equivalent Goods and/or repair of the Goods;
220.127.116.11. The payment of the cost of replacing the Goods or acquiring equivalent Goods or the payment of the cost of having the Goods repaired;
18.104.22.168. The supply of the Services again; or
22.214.171.124. The payment of the cost of having Services supplied again.
8.2. Goods not manufactured by the Supplier are supplied on the basis that the Supplier will assign to the Customer any rights under any warranty applicable to such Goods from the manufacturer and/or others and the Supplier is not liable for any loss or damage arising from any deficiencies or defect in such Goods except to the extent that the warranties are honoured by the original manufacturer.
8.3 Subject to this clause 8, the Supplier is not liable to the Customer for any loss or damages (including consequential loss) to the Goods, any object or other thing including any goods left by the Customer in the Supplier’s care and/or control or for the death or personal injury howsoever arising which is suffered or incurred by the Customer arising out of:-
8.3.1. Any act or omission (whether negligent or otherwise) by the Supplier while undertaking the supply of the Goods and or Services;
8.3.2. Any breach of any contract or any bailment or other obligation imposed on the Supplier in respect of the supply of the Goods and/or Services;
8.3.3. Any misuse, abuse or incorrect use or lack of or defective maintenance of any property of the Customer after delivery of the Goods and or Services; or
8.3.4. Faulty installation of any Goods by any third person engaged by the Customer; or
8.3.5. Any representation as to the performance, the suitable application or use of the Goods or otherwise in respect of the Goods made by any employer or agent of the Supplier unless in writing signed by an authorised person for the Supplier.
8.4. Subject to this clause 8, any implied conditions, warranties and liabilities including liability for consequential loss and/or losses arising from negligence are hereby excluded.
9.1. The Customer will indemnify and save harmless the Supplier from and against any expense, claim, loss or damage arising from any loss or damage incurred by the Supplier because of any breach by the Customer of any of these Terms and Conditions or to the Supplier’s equipment or to property to person which occurs due to any act or omission by the Customer.
9.2. For the purposes of clause 9.1 “loss” includes consequential loss and any fine, levy, charge or any monetary imposition to which the Supplier becomes liable as an incident to the supply of Goods or Services and/or resulting by any breach by the Customer of this agreement.
10.1. Any agreement between the parties is subject to non-exclusive jurisdiction of the Courts of Queensland and the Commonwealth of Australia.
11. Persons and Property
11.1. The parties acknowledge that for the provision of the Goods and/or Services one or more of the following may be necessary:
11.1.1. The operation of the object and any machinery part or device whatsoever connected to or in relation to the object.
11.1.2. The movement of the object by whatever means necessary whether on land and or on water and in whatever circumstances considered necessary and appropriate by the Supplier.
11.1.3. The carrying out of any rectification, alteration, adjustment, repair or installation as is in the Supplier’s opinion necessary to give effect to the Customer’s instruction.
11.1.4. Hiring, renting or leasing of suitable apparatus and or premises including hard stand from third party.
11.1.5. The obtaining of government statutory licences or approvals and/or compliance with a number of statutory and regulatory requirements.
11.2. The Customer agrees to and authorises the Supplier to:-
11.2.1. Take all action reasonably necessary to provide the Services and or supply the Goods;
11.2.2. Operate its machinery, parts, Goods, devices and/or the object whatsoever;
11.2.3. Move any object by whatever means necessary whether on land or on water and in whatever circumstances as the Supplier considers necessary and appropriate; and
11.2.4. Carry out any rectification, alteration, adjustment, repair or installation as is in the Supplier’s opinion necessary to give effect to the Customer’s instructions.
12.1. Risk of damage to or loss of the Works rest with the Customer from the date of this agreement.
12.2. Subject to the other terms of this Contract, the Supplier is not liable to the Customer for any loss or damage (including consequential loss) to the Works or the property of the Customer while in the care or control of the Supplier or for the death or personal injury howsoever arising which is suffered or incurred by the Customer arising out of:-
12.2.1. Any act or omission (whether negligent or otherwise) by the Supplier while undertaking the Works; or
12.2.2. Any breach of any contract or other obligation imposed upon the Supplier in respect by the Works undertaken by the Supplier.
13.1. The Customer shall maintain in effect during the period whilst the property of the customer is in the care or custody of the Supplier all insurances appropriate to the property including its operation, including public liability insurance and worker’s compensation insurance.
14. Workplace Health and Safety
14.1. The Customer shall comply with and ensure that it and its employees, servants or agents comply with the Workplace Health and Safety Act or equivalent legislation whilst the Supplier is performing the Works and indemnifies the Supplier against any liability or responsibility in respect of any failure by the Customer or its employees, servants or agents to comply.
15. Hire, Lease or Licence
15.1. Unless otherwise agreed in writing, the Customer shall arrange for the necessary hire, lease or licensing of equipment and/or premises to enable the Supplier to provide the Services or Goods.
15.2. The Customer shall arrange for the Supplier to have all necessary access during working hours in order to carry out the Works.
16. Environmental Issues
16.1. The Customer shall ensure that it and or any other relevant person shall apply for and obtain and maintain all approvals, permits, licences and authorisations which may be necessary under the Environmental Protection Act Queensland 1994 and/or any other Environmental Legislation (“The Act”) for and in relation to the exercise of its rights and obligations under this agreement and to comply with all duties under the Act.
DESIGNS AND MODIFICATIONS
17. Intellectual Property
17.1. Where the Supplier designs an object or part of any object for construction, installation, repair or maintenance the intellectual property in the designs including drawings, tracings, reproductions and specifications shall remain the property of the Supplier unless otherwise agreed in writing. The Customer shall treat and maintain confidential and secret all designs.
18. Approval of Designs
18.1. It shall be the responsibility of the Customer to ensure that the designs meet the Customer’s specifications and requirements. For this purpose the Customer shall have the right to access the designs and to take copies.
19. Loss of Warranty
19.1. The Customer acknowledges that any modification to the Works and/or Goods may result in the voiding of the warranties from manufacturers and/or others.
19.2. The Customer shall indemnify the Supplier for any loss or damage suffered by the Supplier arising from the voiding and or loss of such a warranty.
20.1. Any storage of Goods, or other objects for the Customer shall be as agent of the Customer and solely at the Customer’s risk and expense.
20.2. At the Supplier’s discretion the, goods or other object may be stored at any place and at any time and be removed from any place at which they may be stored or otherwise held to any other place to be stored.
20.3. Dangerous Goods, other objects held by the Supplier for storage will be subject to an indemnity from the Customer whereby the Customer indemnifies the Supplier against all loss (including consequential loss), damage or injury howsoever so caused arising out of the storage of the goods and or other objects.
20.4. Where the Customer requires the Supplier to store goods and or objects the Customer shall provide an inventory of such things to the Supplier prior to the storage. The Supplier shall be entitled to check the inventory and provide its own inventory received at the time of receipt (but the Supplier shall be under no obligation to do the same). Where the Supplier provides the Customer with a copy of the inventory the Customer shall sign the inventory and such inventory shall be conclusive evidence of the things received by the Supplier. Such inventory shall disclose any visible items but not contents unless the Customer requires in which case the Supplier shall be entitled to make a reasonable charge for preparation of further inventory. Inspection of the things shall be at the Customer’s risk.
21. Dispute Resolution
21.1. If any dispute, controversy or claim shall arise out of or in respect of this Contract or the performance breach or validity thereof the parties shall refer the same to mediation administered by a person as the parties may determine by agreement on failing agreement a person nominated by the president of the Queensland Law Society.
22.1. The customer may not assign it’s rights or obligations under any contract with Supplier without the prior written consent of the Supplier, and such consent shall not be unreasonably withheld.
22.2. The Supplier may assign all or part of it’s rights under any contract without requiring the consent of the customer.
23.1. A notice or other communication required or permitted to be given by a party to another shall be in writing and delivered by post to that Party’s address as notified to each party.
23.2. A notice or other communication is deemed given if delivered, upon delivery, or if mailed on the expiration of two business days after posting.
24.1. The Supplier shall be entitled to subcontract on any terms the whole or any part of the order for the supply of Goods and/or Services.
- The Guarantor shall be answerable and responsible to the Supplier for the due and punctual payment by the Customer for all goods and/or services which may from time to time be supplied by the Supplier to the Customer, for any interest which may become payable in respect thereof and for all monies presently owing by the Customer to the Supplier notwithstanding that the Customer shall not have notice of any neglect or omission on its part to pay for such goods and services according to the terms agreed upon between the Customer and the Supplier.
- This Guarantee shall constitute a continuing guarantee by the Guarantor to the Supplier for the whole debt which shall be contracted by the Customer with the Supplier in respect of goods or services to be supplied by the Supplier to the Customer in the future together with any interest which may become payable thereon and including such amount of money as shall be presently owing by the Customer to the Supplier.
- All dividends, compositions and payments received by the Supplier from the Customer whether as a result of the Customer being in liquidation or otherwise shall be taken and applied by the Supplier as payments in gross and the right of the Guarantor to be subrogated to the Supplier in respect thereof shall not arise until the Supplier shall have received in full the amount of all its claims against the Customer and this Guarantee shall be a security to the Supplier for the payment of any ultimate balance that may remain due to the Supplier by the Customer.
- The Supplier may at any time or times at its absolute discretion and without giving any notice whatsoever to the Guarantor demand and receive from the Guarantor payments of any amount then owing to it by the Customer and/or refuse further credit for supplies of goods or services to the Customer and may grant to the Customer any time or other indulgence and may compound with the Customer without discharging or impairing the liability of the Guarantor under this Guarantee.
- The liability of the Guarantor hereunder shall not be abrogated or affected by reasons of the fact that any contract for the supply of goods or services by the Supplier to the Customer shall be void, voidable or unenforceable for any reason whatsoever.
- If the Customer goes into liquidation or becomes bankrupt, the Guarantor will not prove in the liquidation or bankruptcy in competition with the Supplier and the Guarantor hereby authorises the Supplier to prove for all monies which the Guarantor has paid hereunder until the Supplier has with the aid thereof been paid 100 cents in the dollar with respect to all sums of money and interest the payment of which is intended to be guaranteed hereby. Nor shall the Guarantor be entitled, in the liquidation or bankruptcy of the Customer, to exercise any right to set off any amounts which it owes to the Customer against any amounts which the Customer owes to it.
- This Guarantee shall not be prejudiced or affected in any way by the compromise, release or variation of any rights of the Supplier against the Customer or any other guarantor (whether hereunder or otherwise) or any neglect or omission to exercise any of those rights, by the insolvency or supervening contractual incapacity of the Customer or a Guarantor or by any neglect, omission or default by the Supplier whereby the whole or any part of the liability of the Guarantor to the Supplier as surety would but for this provision have been affected or discharged or by the release, discharge, abandonment or transfer either in whole or in part and either with or without consideration of any security now or hereafter held by the Supplier from the Customer or from any other person.
- This Guarantee shall be enforceable against the Guarantor notwithstanding that any negotiable or other securities referred to herein or to which these presents shall extend or be applicable shall at the time of proceedings being taken against the Guarantor on this Guarantee shall be outstanding or in circulation.
- It is expressly declared and agreed that notwithstanding the fact that this Guarantee may be intended or expressed to be executed and given by more than one person, the same shall in fact be a valid and effectual instrument of guarantee binding against such person or persons as shall execute the same forthwith upon their execution hereof and shall continue to be binding as against such person or persons notwithstanding the fact that any proposed or contemplated party shall not in fact subsequently execute the same.
- In order to give effect to the Guarantee, the Guarantor hereby declares that the Supplier shall be at Liberty to act as though the Guarantor was the principal debtor and the Guarantor hereby waives all and any of its rights as surety which may at any time be inconsistent with any of the above provisions.
- The Guarantee given by any Guarantor hereunder shall be revocable by that Guarantor at any time as to future transactions by one (1) month’s notice in writing given by that Guarantor to the Supplier or in the Case of the winding up of that Guarantor by its liquidator provided that the revocation by any such Guarantor of its guarantee hereunder shall not in any way constitute a revocation or release of any guarantee given by any other Guarantor hereunder.
- In the event that there is more than one Guarantor hereunder the liability of the Guarantors and each covenant, agreement and waiver given by the Guarantors hereunder shall be joint and several.