WATM

Terms & Conditions

CONDITIONS OF SALE

The conditions apply to all dealing between WATM Crane Sales and Services WA (“The Company”) and the Customer unless the Company otherwise agrees in writing.

  1.     PRICE AND PAYMENT

(a)           The price quoted or invoiced is based on costs, taxes, duties, awards, statutes, rate of exchange and conditions taking place prior to delivery of the goods or performance of the services.  The price does not include the cost of delivery from the Company’s premises.

(b)           The Customer agrees to pay, without any deduction or set off in law or in equity whatsoever, the price stated on the invoice within 30 days of the date of the invoice rendered by the Company or within such other period of time as may be notified to the Customer from time to time by the Company.

(c)           The Company shall be entitled to charge interest on all outstanding monies due by the Customer at the rate of 14% per annum.

(d)           Until payment in full of all moneys owing to the Company:

(i)            The goods shall remain the Company’s property.

(ii)            If in the Customer’s possession, the goods will be held as bailee and returned immediately on demand unused and undamaged; and

(iii)           The Customer will indemnify the Company against any claim or liability for damage or injury to or by the goods.

(e)           For the purpose of this clause and other relevant clauses in this agreement “PPSA” means the Personal Property Securities Act 2009 and the expressions “accession”, “collateral”, “financing statement”, “financing change statement”, “security agreement”, “security interest”, “perfected security interest” and “verification statement” have the meanings given to them under, or in the context of the PPSA.

(i)  The retention of title arrangement in clause 1(d) constitutes the grant of a purchase money security interest by the Customer in favour of the Company in respect of all present and after acquired goods supplied to the Customer by the Company.

(ii) If requested by the Company the Customer must immediately sign any documents, provide all necessary information and do anything else required by the Company to ensure that the Company’s purchase money security interest or any other security interest created in favour of the Company is a perfected security interest.

(iii) The Customer must not enter into any security agreement that permits any other person to have or to register any security interest in respect of the goods supplied or any proceeds from the sale of the goods or grant any other security interest in favour of any party until the Company has perfected its purchase money security interest and other security interests created under this agreement.

(iv)    The Customer must not do or permit anything to be done that may result in the purchase money security interest or any other security interest granted to the Company ranking in priority behind any other security interest.

(v) To the fullest extent permitted by the PPSA the Customer agrees to contract out of the application of the provisions listed in sections 115(1) and 115(7) and the sections listed therein shall not apply.

(vi) The Customer hereby waives any rights the Customer may otherwise have to:

(a) receive any notices or statements the Customer would otherwise be entitled to receive under sections of the PPSA including for the avoidance of any doubt the sections referred to in sections 115(1) and 115(7) of the PPSA;

   (b) apply to a Court for an order concerning the removal of an accession under section 97 of the PPSA;

(c)  object to a proposal of the Company to dispose or retain any collateral under sections 130 and 135 of the PPSA; and

(d) receive a copy of a verification statement confirming registration of a financing statement, or a financing change statement, relating to any security  interest created under this document.

(f)                            The consideration for any supply has been calculated initially without regard to, and is exclusive of, the goods and services tax (GST).  If GST is payable in respect of any supply, the Company may increase the price for the supply (“original amount”) by an amount sufficient so that the total amount payable in respect of the supply, after discounting for the amount of any GST payable in respect of the supply, is equal to the original amount.

(g)           Items specifically ordered on your behalf are non-returnable.  All Items to be returned, must be in original packaging, and must be in a saleable condition.  Goods for return, must first be approved by Department Manager, in writing.  The customer agrees that goods supplied by WATM to, or at the request of, the customer shall be at the customer’s risk (including insurance responsibility) immediately on delivery to the customer or into the customer’s custody (whichever is the sooner).

  1.     DESCRIPTION

(a)           Any representation, promise, statement or description not given in writing by an authorised representative of the Company is expressly excluded.  The Customer acknowledges that it has relied solely upon its own inspection, skill and judgment and not on any other representation, promise, statement or description.

(b)           All photographs, weights, illustrations, dimensions and other particular given in or accompanying a quotations or order or continued in descriptive literature are approximate only and deviations there from shall not give rise to any claim against the Company.

(c)           These axle loadings are not guaranteed by WATM as they are only an initial guide.  If more precise axle loading is required then WATM will need to be provided with all the additional weights and positioning of trays, sub-frames, ROPS / FOPS, tool boxes, fuel tanks and any other added feature that will be fitted to the tray or chassis of the truck.  WATM will then provide a second set of drawings using all the information provided giving more accurate approximate axle loads.  These weights are still not guaranteed by WATM.

  1. ACCEPTANCE AND DELIVERY

(a)           All goods shall be at the Customer’s risk on leaving Company’s premises, even if the company has agreed to deliver the goods to a location nominated by the Customer.  The Customer, at its own cost will insure the goods from the time they leave the Company’s premises. The Customer will indemnify the Company against any claim or liability regarding damage or injury to or by the goods after dispatch from the Company’s premises.

(b)           The Customer agrees to use the goods in a skilful and proper manner and for the purpose for which the goods were designed and are reasonably and safely capable of fulfilling.  The Customer will observe and comply at his own expense with all notices, directions and legal requirements (including those of all authorities, statutes and regulations) in any way relating to the goods. 

(c)           The Customer shall inspect the goods immediately on their arrival and within seven (7) days from that inspection give notice to the Company of any claims that the goods are not in accordance with the contract.  If the Customer does not give such notice the goods shall be deemed to be in all respects in accordance with the contract and the Customer shall be bound to accept and pay for the goods.

(d)           The Company may resell any goods not taken by the Customer within seven (7) days from the date of attempted delivery and at its option, deem the contract repudiated or, by subsequently substituting other goods, treat the contract as subsisting.

 

 

(e)           Any quotations of delivery times by WATM are made in good faith but as estimates and not commitments.  WATM shall not be bound by any such estimate.  Clerical errors or omissions by WATM whether in computation or otherwise in any quotation, acknowledgment or invoice, shall be subject to correction.

(f)                             If the Customer purports to accept the quotation after 30 days from date of issue, WATM may proceed or decline at its discretion.

(g)           The Customer agrees that goods supplied by WATM to, or at the request of, the Customer shall be at the Customer’s risk (including insurance responsibility) immediately on delivery to the Customer or into the Customer’s custody (whichever is the sooner).

  1. DELAY IN DELIVERY AND FORCE MAJEURE

(a)           Delivery and availability dates are approximate only.  The Company will use its best endeavors to meet these estimates but is not liable for delay from any cause whatsoever.

(b)           If for any cause beyond the Company’s control, the Company is prevented from or delayed in making delivery or performance the Company may either extend the time for delivery or performance for a reasonable period or terminate the contract.  The Customer shall not have any claim for damages and shall pay for all deliveries made or services performed prior to the date of such termination and all expenses incurred and moneys paid by the Company in connection with the contract.  Causes beyond the Company’s control, shall include without limitation any act of God, war, strike, lockout, industrial dispute, governmental or semi-governmental award, enactment, priority or restriction, fire, flood, storm or tempest, delay in obtaining licenses, transport, labour or materials, accidents, damage to the Company’s works or business or those of its suppliers.

(c)           The time of delivery in any quotation or order represents the time at which the goods are to be ready for dispatch from the Company’s premises and if applicable the Company is to be allowed the further time necessary to cover transit from the Company’s premises.  The Company does not accepted the orders under penalty for late delivery.

  1. WARRANTIES

(a)           Where the Customer is a consumer as defined by any relevant law such as the Australian Consumer Law and similar state laws, certain conditions and warranties (“the Customer warranties”) cannot be excluded.  The Customer then has the benefit of both the customer warranties and another warranty that may be provided by the Company or by the manufacturer of the goods.  To the extent permitted by Law all implied Warranties and conditions are excluded.

(b)           Subject to Clause 5(a), if any of the goods are expressly warranted by a manufacturer or supplier other than the Company, that warranty is not a warranty of the Company and the Company shall have no liability in respect of any breach thereof.   The Company in its absolute diversion may prevent such claims to the manufacturer or supplier on behalf of the Customer.

(c)           Notwithstanding anything contained herein the Customer acknowledges that no warranty or condition, express or implied, is given by WATM as to the condition of the goods or as to the suitability or fitness of the goods.  Subject to the extent permitted by legislation any obligation of WATM under these terms and conditions shall be to use its endeavours to supply goods and/or services or to repair or replace (at WATM’s discretion) any goods which are found to be defective during any applicable warranty period (if any) and in no event shall WATM be liable for any other claims, losses or damages including but not limited to claims for faulty design, negligent or misleading advice, damages arising from the loss or use of the goods or howsoever arising and any indirect, special or consequential damage including but not limited to damages on account of prospective profits expenditures or other commitments relating to the business or goodwill of the Customer or on account of any consequential loss or damage incurred or suffered by the Customer or customers of the Customer, which arises from or is connected in any way whatsoever with the use of the goods or injury to any person, corporation or other entity.

(d)           Used Equipment/Components are sold “as is where is”, with no warranty implied.

(e)           All Warranty on the crane and its installation will be carried out at WATM Crane Sales and Service workshop at 165 Beechboro Road Bayswater, Subject to the manufacturer’s approval on faulty components and workmanship.  Warranty shall not be extended to any components mechanical or electrical if the crane is not fitted by WATM.

  1. LIMITATION OF LIABILITY

(a)           To the extent permitted by law, the liability of the Company for a breach of the consumer warranties and/or such warranty provided by the Company is limited, at the option of the Company to the repair or replacement of the goods or the cost of such repair or replacement of the performance of the services again.

(b)           Parts and labour for repair or replacement, under Clause 6(a), shall be provided by the Company during normal working hours at a place of business of the Company.  The Company shall have no liability for the cost of transportation of the goods to such place of business.

(c)           The Customer’s property under the Company’s custody or control will be entirely at the Customer’s risk as regards loss or damage from all causes to that property or caused by that property.

(d)           The Customer releases the Company from any claim action or liability for consequential loss or damage to person or property including, without limitation, loss of use, of the goods or of profits or loss on resale, arising by reason of delays, non-delivery defective materials or workmanship, negligence, or any act, matter, conduct or thing done, permitted or committed by the Company.

(e)           All rejected parts or defective parts shall be the property of the Company to dispose of as it sees fit.

(f)            The Company accepts no responsibility for loss of or damage to or maintenance of secrecy with respect to any plans, drawings, samples or other materials supplied by the Customer to the Company.

  1. TRADE IN

(a)           Any machine traded in by the Customer shall remain the Customer’s property and at the Customer’s risk until delivery at Customer’s expense to the Company’s nominated point of delivery.

(b)           Any machine traded in by the Customer shall be delivered to the Company in the same state and condition it was in at the time or appraisal by the Company and shall be free from all encumbrances and third party interests.  If it is not so delivered the Company may terminate any contract for the acquisition of those goods.

  1. GENERAL

(a)           All legal costs (on a full indemnity basis), charges, duties and other expenses incurred by the Company in respect of this agreement or the securities or other documentation required hereunder or in relation to registering, maintaining or releasing any security interest, charge or caveat (including the cost of registering any financing statement or financing change statement), or incurred as a result of the Customer failing to perform their covenants and obligations contained herein, shall be paid by the Customer to the Company.  The expenses include, but are not limited to, the commission payable to a mercantile agent or a debt collector to pursue or recover outstanding monies pursuant to this agreement and the liability to pay this commission arises at the time the recovery is placed in the hands of the debt collector.

(b)           These Conditions of Sale prevail over all inconsistent conditions in any specification, order, quotation or any other document.

(c)           The Company is only obliged to supply goods or perform services if the order by the Customer is accepted in writing by an authorised representative of the Company including without limitation, acceptance of the terms of payment.  This may be evidenced by the issue of authorised Purchase Order.  The Company at its absolute discretion may refuse any order and may refuse to proceed with any order should the Customer’s trade reference be unsatisfactory to the Company.

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