Terms of Trade

Unless otherwise inconsistent with the context the word ‘person’ shall include a corporation.

‘Goods’ shall include services.

Words importing the singular number shall be deemed to include the plural and vice versa. Words importing the male gender shall be deemed to include the female and neuter gender and vice versa.

‘Company’ shall mean EarthTech Drilling Products Pty Ltd (ACN 165 674 493) its successors and assigns.

‘Customer’ shall mean the person receiving the Goods.

‘GST’ means any goods and service tax.

‘Machine Sales’ shall include machine models 8140LC, 8140LS, 8040DT, 7822DT, 7800, 6712DT, 6622CPT, 54TR, 54LT, 540MT, 420M and all tools, parts and other accessories that form part of the order for the purchase of the machine and other models as specified by the Company in writing from time to time.

‘Manufacturer’ shall mean Kejr Inc, a Kansas Corporation doing business as Geoprobe®Systems 

‘Special Order Items’ shall include those items that are custom made to order, items that are not ordinarily stocked and specially ordered at the request of the Customer and Machine Sales.

Any quotation made by the Company is not an offer to sell or to provide goods. The Company shall not be bound by any order given in pursuance of any quotation until it is accepted in writing. All orders are subject to acceptance by the Company within thirty (30) days of receipt by the Company of the order. These terms and conditions shall be deemed to be incorporated into any agreement between the Company and the Customer. Any terms and conditions contained in any order, offer, acceptance or other document of the Customer and all representations, statements, terms and conditions and warranties (whether implied by statute or otherwise not embodied herein are expressly excluded to the fullest extent permitted by law).

Insofar as goods or services supplied by the Company are not of a kind ordinarily acquired for personal, domestic or household consumption, the liability for breach of a condition or warranty, implied into this contract by the Sale Of Goods Act or the  Competition and Consumer Act 2010 Act is limited to the extent permitted by law:

1. in the case of goods to any one of the following as determined by the Company
   1. the refund of the price paid by the Customer for the goods or the issue of a credit note for such amount; or
   2. the replacement of the goods or the supply of equivalent goods; or
   3. the repair of the goods; or
   4. the payment of the cost of replacing the goods or at acquiring equivalent goods; or
   5. the payment of the costs of having the goods repaired;
2. in the case of services to any one of the following as determined by the Company;
   1. the supplying of the services again; or
   2. the payment of the cost of having the services supplied again.

Any date quoted for delivery (‘the quoted date’) is an estimate only and unless a guarantee shall be given by the Company in writing providing for liquidated damages for failure to deliver by the quoted date, the Company shall not be liable to the Customer for any loss or damage howsoever arising even if arising out of the negligence or for failure to deliver on or before the quoted date. The Customer shall accept and pay for goods ‘and any GST’ if and when tendered notwithstanding any failure by the Company to deliver by the quoted date. Written advice to the Customer that goods are ready for delivery whether in whole or in part shall constitute tendering and the terms of payment shall apply.

The Company shall not be liable to any Customer or any other party for direct or indirect or consequential injury, loss or damage whatsoever by reason of any delay in delivery whether the same is due to the negligence of the Company or any other party, strike or any other industrial action be it of the Company or other party or any other cause whatsoever.

It is agreed that the Company shall not be responsible for the delay in delivery caused by or in any way incidental to a force majeure event, including but not limited to, an act of God, war, fire, breakages of machinery, strikes or arising out of any other unexpected exceptional cause, or any cause beyond reasonable control of the Company.

Any quotation containing a provision to supply goods ‘ex stock’ is subject to fulfillment of prior orders at the date or receipt of the Customer’s order.

It is agreed that the Company may in its sole and absolute discretion delay delivery to the Customer as reasonably required by it in order to effect registration of any security interest in the goods, arising under either clause 5 or 11 of this agreement, on the Personal Property Securities Register and pursuant to the Personal Property Securities Act 2009.

Unless otherwise agreed in writing, payment terms are payment with order.

This term as to the payment shall be of the essence of the contract.

‘The Customer shall pay the price of any goods supplied by the Company and any GST in addition to the price if applicable’.

The Customer will pay all invoices for tools, parts, and other accessories within 30 days of the invoice date. The Customer agrees Machine Sales will be paid for in full before shipment from the Manufacturer unless otherwise agreed in writing prior to shipment.

The Company will be entitled to charge interest on overdue payments at the rate of 2% per annum more than the rate from time to time fixed by the Penalty Interest Rates Act 1983 (Vic). Interest is to be calculated daily from the due date, continues until the overdue money is paid and is capitalized monthly. 

Notwithstanding the delivery of the goods or part thereof, the goods remain the sole and absolute property of the Company as full legal and equitable owner until such time as the Customer shall have paid the Company the full price for the goods delivered together with the full price of any goods then the subject of any other contract with the Company.

The Customer acknowledges that it receives possession of and holds any and all goods delivered by the Company solely as bailee for the Company until such time as the full price of the goods ‘including any GST’ thereof is paid to the Company together with the full price ‘including any GST’ of any goods then the subject of any other contract with the Company.

Until such time as the Customer becomes the owner of the goods, he will;

1. store them on the premises separately;
2. ensure that the goods are kept in good and serviceable condition;
3. secure the goods from risk, damage, and theft; and
4. keep the goods fully insured against such risks that are usual or common to insure against in a business of a similar nature to that of the Customer.

Should the Customer die, stop payment or call a meeting of its creditors or  become insolvent or subject to the bankruptcy laws, or being a company, appoints an administrator or calls a meeting for the purpose of or to go into liquidation or has a winding-up application presented against it or has a receiver appointed, the Company may at its option notwithstanding its waiver of such default or failure and without prejudice to its other rights under this contract, suspend or cancel this contract or require payment in cash before or on delivery or tender of goods notwithstanding the terms of payment previously specified, or may repossess and take over the goods and dispose of the same in its own interest without prejudice to any claim it may have for damages for any loss resulting from such resale.

If the Customer does not pay for any goods on the due date for payment then the Company is hereby irrevocably authorised by the Customer to enter the Customer’s premises (or any premises under the control of the Customer or an agent of the Customer in which the goods are stored) and use reasonable force to take possession of the goods without liability for the tort of trespass, negligence, assault and battery or payment of any compensation to the Customer whatsoever.

On retaking possession of the goods the Company may in its sole and absolute discretion elect to refund to the Customer any part payment that may have been made and to credit the Customer’s account with the value of the goods less any charge for recovery of the goods, or to resell the goods.

Unless otherwise agreed in writing, risk in the goods shall pass to the Customer at the time when the goods have been placed on the vehicle which is to effect delivery from the Company store or warehouse. The goods shall remain at the Customer’s risk at all times unless and until the Company retakes possession of the goods pursuant to these terms and conditions.

Subject to clause 2.2 herein, the Company shall not be liable for any loss or damage whatsoever and however arising whether direct or indirect or consequential or in respect of any claim whenever and however made for any loss or damage, deterioration, deficiency or other fault or harm in the goods, provided by or on behalf of or in any arrangement with the Company or occasioned to the Customer or any third party or to his or their property or interest and whether or not due to the negligence of the Company, its servants or agents.

As soon as any of the facts or matters which form any part of any claim or complaint whatsoever become known to the Customer, the Customer shall within fourteen (14) days notify the Company in writing of the same.

No goods may be returned by the Customer for credit without the Company having first consented in writing. Applications for return of goods must be received within fourteen (14) days from date of invoice where approval is granted for return of goods, a re-stocking fee of 20% of the net invoiced value or minimum of $50.00 will be applied or as specified by the Company in writing in the Company’s absolute discretion from time to time. Special Order Items are not eligible for return. 

The Company shall not be liable in any circumstances for any:

1. defects or damages caused in whole or in part by misuse, abuse, neglect, improper application, repair or alteration (other than by the Company) or accident;
2. transport, installation, removal, labour or other costs;
3. defects in goods not manufactured by it however the Company may endeavour to pass on to the Customer the benefit of any claim made by the Company and accepted by the Manufacturer of such goods under a warranty given by the Manufacturer of such goods.  Nothing contained in this subparagraph shall limit the rights of the Customer pursuant to the Competition and Consumer Act 2010; and
4. technical advice or assistance given or rendered by it to the Customer or not in connection with the manufacture, construction or supply of goods for or to the Customer.

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

Upon the occurrence of default by the Customer in compliance with the terms herein:

The Company may at its sole and absolute discretion withhold further supplies of goods to the Customer, cancel or terminate this agreement, or vary the terms of this agreement without prejudice to its rights hereunder PROVIDED HOWEVER that the Company may at any time and from time to time upon such terms as it may determine waive any of its rights under this clause, without prejudice to its rights thereafter of any of the events referred to herein or upon the continuation after any such waiver of any of the conduct the subject of such waiver.

The Customer hereby authorises the Company or its nominated agent to review the Customer’s books and records, including all bank statements and other bank records, in order to determine whether the Customer is able to pay its debts as and when they fall due and the Customer further irrevocably grants to the Company a licence to enter upon the Customer’s premises for such purpose should the Company believe in its sole discretion that such a review is reasonably required.

Without prejudice to any other right or remedy the Customer shall indemnify the Company against any costs, fees, charges and disbursements ‘(inclusive of any GST)’ charged by any legal advisors engaged for the purpose of the collection or recovery of monies due and payable by the Customer to the Company on a full indemnity basis and all such costs shall be recoverable by the Company as a liquidated debt.

The Customer agrees to notify the Company in writing of any change of ownership of the Customer or its business, or of directorships in the case of a corporate customer, or of any other change whatsoever affecting this agreement within seven (7) days from the date of such change and indemnifies the Company against any loss or damage incurred by it as a result of the Customer’s failure to notify the Company of any such change.

The Customer hereby acknowledges and agrees that the Company has a lien over all goods in its possession belonging to the Customer to secure payment of any or all amounts outstanding from time to time.

The Customer hereby charges all property, both equitable and legal, of the Customer in respect of any monies that may hereinafter be owing to the Company under this agreement by the Customer or otherwise and hereby authorises the Company or its legal advisors to execute any consent form as its attorney for the purpose of registering a caveat over any real property owned by the Customer at any time, or to register this charge over assets of the Customer.

This agreement for the supply of the goods is deemed to have been entered into in the State of Victoria. Any legal action arising out of or in respect of this agreement and/or the interpretation thereof shall be brought only in the State of Victoria, Australia and the Customer irrevocably submits itself to the jurisdiction of the State of Victoria, Australia.

All Products supplied by the Manufacturer are warranted to be free from defects in materials and workmanship under conditions of normal use and service for a period of 12 months from the date of delivery to the Customer. Normal wear and tear is excluded from the warranty cover.

The Manufacturer will repair or replace any product returned to the Manufacturer which appears upon inspection by the Manufacturer to be defective in materials or workmanship. The Manufacturer shall have no obligation for the cost of labor, down-time, transportation charges, or for repair or replacement of any product that has been misused, carelessly handled, or modified or altered.

The Customer shall be responsible for all shipping, labor, and travel as needed to satisfy the intent of the Manufacturer’s warranty.

This warranty is in lieu of all other warranties and conditions statutory or otherwise expressed or implied and of all other obligations or liabilities on the Manufacturer’s part. To the extent permitted by law, the Manufacturer’s maximum liability is limited to the purchase price of the product and the Manufacturer will not be liable for any consequential damage, loss or expense.