Terms and Conditions

Terms and Conditions

These Terms of Trade constitute an agreement between Access and Machinery Sales pty ltd (known herein as AMS) ABN 60 640 853 416 and the Customer, as identified in the signature block below. The agreement applies to all supplies to the Customer by AMS. These Terms of Trade may also be agreed to by a representative of the Customer signing an AMS Credit Application to which this document is attached or by the Customer placing an order with AMS after being given this document. AMS will not be bound by any conditions attached to the Customer’s order and unless those conditions are expressly agreed by AMS in writing, the Customer acknowledges that those conditions are expressly excluded and always displaced by the terms of this document.

 

  • Return of Goods
  1. AMS will accept goods returned to the machineries warehouse of origin at the cost of the Customer within ten (10) days of supply provided that AMS determines they have not been used and are in new condition.
  2. Such goods will only be accepted for return by AMS subject to a restocking fee (currently 10%) being charged to the Customer, to the extent that is permitted by law.
  • Warranty Claims

 

All warranty claims are to me made through the manufacturer or the machinery in question.

Warranty claims are in accordance with the manufacturers terms and conditions.

AMS will assist customers with lodging their warranty claims if required.

 

  • Interpretation of Warranty
  1. The standard manufacturer’s warranty shall apply to goods hereby sold and the conditions relating to that warranty are deemed to form part of this agreement. A copy of the applicable warranty will be forwarded on request.
  • Acceptance
  1. All goods must be finally inspected by the Customer within ten (10) days after arrival of goods at point of delivery and the Customer shall, within that period give notice to AMS of any matter or thing by which the Customer alleges that the goods is not in accordance with the Customer’s order. Failing such notice and, to the extent permitted by law, the goods shall be deemed to have been delivered and accepted by the Customer.
  2. CUSTOMER’S FAILURE TO SO INSPECT AND PROMPTLY SUBMIT A CLAIM SHALL SPECIFICALLY WAIVE THE CUSTOMER’S RIGHT TO MAKE ALL CLAIMS FOR DAMAGES OF OTHER RELIEF AGAINST THE MANUFACTURER, OTHER THAN UNDER THE TERMS OF MANUFACTURER’S WARRANTY.
  • Shipment, Risk of Loss and Title
  1. Until payment in full has been received by AMS for all money due to AMS for all goods supplied by AMS or otherwise due to AMS on any other account, and despite any credit arrangement between AMS and the Customer:
  2. title in the goods shall remain in AMS;
  3. the Customer shall not attempt to sell, hire out, charge or otherwise deal with the goods, or part with possession thereof, nor permit or suffer any execution or distress to be levied to use against the goods or permit or suffer the goods to be seized or affected by any distress, execution or other legal process;
  4. where the Customer is a retailer/reseller, the Customer may only sell the goods in its ordinary course of business by a bona fide sale, in its own name, and not as the agent of AMS;
  5. the Customer shall be responsible at all times for the goods while it is in Customer’s custody, and be liable to AMS for any loss or damage to the goods (except in so far as it can be shown that any such loss or damage is attributable to the negligent act or omission of AMS) and shall notify AMS immediately of any such loss or damage, or any other noticeable defects in the goods;
  6. the Customer must effect and maintain suitable insurance in respect of all relevant risks relating to the goods to cover any potential liability and otherwise in terms approved by AMS, and shall also ensure that AMS’s name is endorsed on the relevant policy or policies as an insured party and provide a certificate of currency to AMS upon request;
  7. the Customer shall not add to, modify, interfere with or cause any attachments to be fitted to the goods except as authorised in writing by AMS;
  8. the Customer shall keep the goods marked as the property of AMS;
  9. the Customer shall permit AMS or its authorised representative(s) to inspect the goods at all reasonable times;
  10. Without prejudice to the terms of this Clause, AMS shall be entitled to maintain an action for the price of the goods at any time after payment becomes due.
  11. This Clause shall survive termination of these Terms of Trade for any reason.
  • Delivery and Risk
  1. Any delivery dates agreed to by AMS are only approximate and are subject to reasonable variation.
  2. All goods are at the Customer’s risk immediately upon delivery to the Customer.
  3. For the purposes of these Terms of Trade delivery of the goods is deemed to occur at the earliest time when the goods are delivered to the Customer (including its nominees or agents) or are placed at the disposal of the Customer (including its nominees or agents) at AMS’s premises.
  4. In any event, AMS’s shall not be liable for any loss caused by its delays or failures in performance of an order, or default in delivery arising out of or resulting from causes beyond its control and without its fault or negligence, including a force majeure.
  • Price

Unless otherwise stated, the purchase price excludes packaging, freight and insurance. These additional costs are to be paid by the Customer.

  • Taxes and Other Government Levies

The Customer must pay to AMS on demand any tax (other than income tax) payable on this agreement, any matter or thing done under this agreement or any payment, receipt, or other transaction contemplated by this agreement, including without limitation any goods and services or value added tax, customs duty, sales tax, excise duties, stamp duty, other duty, government charge, fee levy, or impost (together with any fine, penalty or interest payable because of a default of the Customer). The Customer must pay any amount it is required to pay under this clause in full despite any right of set off that it has. The Customer must pay to AMS an amount that leaves in the hands of AMS following payment of any relevant tax or other amount the same amount whether the tax or other amount is payable or not.

 

  • Payment
  1. Payment must be cash on delivery unless otherwise agreed in writing.
  2. The Customer agrees that AMS may charge interest on any amount outstanding. Interest commences to accrue from the 31st day after delivery until payment is received by AMS in cleared funds. Interest is calculated daily on the basis of a 365 day year at the rate equal to the Reserve Bank of Australia’s cash target rate from time to time plus a margin of 5% per annum. Interest is payable on demand.
  3. The Customer agrees, in addition, to pay any other amount whether legal costs or expenses or other fees, that AMS may incur in collection of any amount due.
  • Personal Property Security
  1. In this clause PPS Act means the Personal Property Securities Act 2009 (Cth) as amended, repealed or replaced from time to time.
  2. The Customer agrees that this agreement is a security agreement under the PPS Act. The Customer acknowledges and agrees that the collateral is the goods supplied by AMS, including those described in any purchase order, invoice, receipt or any other document provided in connection with the supply of goods to the Customer. The collateral includes material handling, access and construction equipment including equipment such as telescopic material handlers, elevating work platforms, boom and other lifts, excavators, skid steers, track loaders, dozers, graders, rollers and hoists and all parts and accessories and tools for all such equipment.
  3. Despite any other term or condition of this agreement, AMS will be entitled to all rights and remedies of a secured party and an owner (including but not limited to a secured party and owner after default) under the PPS Act or any other applicable law. For the avoidance of doubt, such rights and remedies will not limit and will be in addition to all other rights provided to AMS under this agreement or by law (including in equity). They include the right to retain, deal or dispose of the goods in any way AMS sees fit.
  4. All goods supplied by AMS pursuant to this agreement will forever remain personal property, and will not become or be deemed a fixture or a part of any real estate on which it may be located.
  5. The Customer must do everything (including providing information, executing any security agreement or other document, and granting any other or substitute security interest) requested by AMS to perfect a security interest in:
    1. collateral supplied by it pursuant to this agreement; and
    2. the proceeds of such collateral, so as to maintain an effective and first priority security interest in favour of AMS.
  6. JLG Industries (Australia) may at its absolute discretion effect and maintain a registration on the register under the PPS Act (in any manner it considers appropriate, including as a purchase money security interest) in relation to any security interest arising or contemplated by this agreement. The Customer waives the right to receive notice of a verification statement in relation to any registration event. The Customer must not register a financing change statement in respect of a security interest contemplated by this agreement without the prior written consent of AMS. The Customer agrees that such consent may be given or withheld by AMS in its absolute discretion.
  7. If Chapter 4 of the PPS Act applies to the enforcement of a security interest under this agreement, the parties irrevocably agree to contract out of the following provisions of the PPS Act (and therefore such provisions will not apply and the Customer agrees it will forever have no rights under them): s.95; s.121(4); s.125; ss.129(2) and 129(3); s.130; s.132(3)(d); s.132(4); s.135; s.142; and s.143.
  8. To the fullest extent permitted by the PPS Act, and unless otherwise agreed in writing, AMS and the Customer agree not to disclose information of the kind referred to in section 275(1) of the PPS Act to an interested person, or any other person requested by an interested person. The Customer unconditionally agrees to waive any right it has or would have had but for this clause, under section 275(7)(c) of the PPS Act to authorise the disclosure of the above information.
  9. Despite any other term or condition of this agreement, AMS may unconditionally apply the whole or any part of any amounts received by it in connection with this agreement, to satisfy or partly satisfy any obligations secured by a security interest in any way it determines in its absolute discretion.
  10. The Customer must not dispose or purport to dispose of, or create or purport to create or permit to be created any ‘security interest’ (as defined in the PPS Act) in the collateral other than with the express written consent of AMS. The Customer must not lease, hire, bail or give possession (‘on-hire’) of the collateral to anyone else unless AMS (in its absolute discretion) first consents in writing. Any such on-hire must be in writing in a form acceptable to AMS and must be expressed to be subject to the rights of AMS under this agreement. The Customer may not vary an on-hire without the prior written consent of AMS (which may be withheld in its absolute discretion).
  11. The Customer must ensure that AMS is provided at all times with up-to-date information about the on-hire including the identity of the on-hirer, the terms of and state of accounts and payment under the on-hire and the location and condition of the collateral.
  12. The Customer must take all steps including registration under the PPS Act as may be required to:
    1. ensure that any security interest arising under or in respect of the on-hire is enforceable, perfected and otherwise effective under the PPS Act;
    2. enabling the Customer to gain (subject always to the rights of AMS first priority (or any other priority agreed to by AMS in writing) for the security interest; and
    3. enabling AMS and the Customer to exercise their respective rights in connection with the security interest.
  13. To assure performance of its obligations under this agreement, the Customer hereby gives AMS an irrevocable power of attorney to do anything AMS considers the customer should do under this document. AMS may recover from Customer the cost of doing anything under this clause (Personal Property Security), including registration fees.
  14. The Customer indemnifies AMS in respect of all loss, damage or expense (including legal and other professional fees and disbursements):
    1. incurred by AMS in enforcing or seeking to enforce its rights or alleged rights (whether or not such enforcement action is completed or successful); and
    2. resulting or arising from any breach or failure by the Customer to comply with its obligations under this clause (Personal Property Security), the PPS Act and any similar legislation.
  • Changes by Manufacturer
  1. It is acknowledged by the Customer that the manufacturers of goods reserve the right to make changes in design of additions to or improvements in their goods without liability and to install such change, addition or improvements in any goods previously manufactured.
  • Default and Termination
  1. Without prejudice to any rights that AMS may have under these Terms of Trade, AMS may terminate its agreement with the Customer upon seven (7) days notice, if the Customer is in breach of these Terms of Trade.
  2. If the Customer becomes subject to any form of insolvency administration, or any application is made to subject it to any form of insolvency administration and such proceedings are not dismissed within twenty one (21) days from filing of such proceedings, or a person is in a position to attempt to levy execution against the goods, or if any reason, in AMS’s reasonable opinion, the Customer is unlikely to be able to make payment for the goods on the due date, AMS may immediately, at its election, and without prejudice to its other legal rights and remedies;
    1. terminate any purchase order of the Customer;
    2. suspend further deliveries of goods;
    3. require payment in advance for all or any further deliveries of goods to the Customer;
    4. repossess any goods held by the Customer to which AMS has title and enter onto any premises on which the goods are stored, without notice, for this purpose.
  • Privacy and disclosure
  1. The Customer and each guarantor of the Customer’s obligations agree that AMS may, at any time when credit is or may be extended to the Customer:
  2. obtain a banker’s opinion about them;
  3. obtain and use a credit report and any related information about them for any purpose and in any way that is permitted by any law including the Privacy Act 1988, and the Customer and any guarantor each hereby provide their consent accordingly. The purposes include assessing whether credit can be provided or continued to the Customer and whether to accept or require any guarantee, and for purposes in connection with collecting any overdue payment; and
  4. disclose credit information including to a credit reporting agency in any way and for any purpose that is permitted by any law including the Privacy Act 1988, and the Customer and guarantor each hereby provide their consent accordingly. This includes reporting any default in payment and any purposes in connection with collecting any overdue payment.
  • Liability of Access and Machinery Sales Pty Ltd ( AMS )
  1. To the extent permitted by law, AMS will under no circumstances be held liable to the Customer for any loss, damage, injury or debt sustained or incurred by the Customer or any other party including any indirect, consequential, punitive, exemplary, incidental damages, loss of profits resulting directly or indirectly out of any negligence of AMS, the supply, performance or use of any goods or services of AMS or out of any breach of AMS under any contract incorporating these terms and conditions.
  • Trade Ins
  1. Any trade-in machines will only be accepted on terms agreed to by AMS and the Customer will be responsible to ensure that full unencumbered title in the trade-in passes to AMS at time of delivery of the trade-in to AMS.
  2. Should AMS suffer any loss or damage as a result of the Customer’s oversight (whether intentional or unintentional) to disclose any encumbrances, charge and/or lien, the Customer and/or the officers of the purchasing company will fully indemnify AMS of such loss or damage including any legal fees and expenses incurred.
  • Financing of Purchases
  1. If the Customer chooses to purchase goods from AMS through external funding whether by lease, hire purchase, rental or otherwise, the Customer must notify the financier of these terms and in particular of the fact that title in goods sold by AMS is retained on the terms of this document.
  • General
  1. These Terms of Trade shall be governed by the law of New South Wales and the parties to these terms submit to the jurisdiction of the Courts of that State.
  2. Any indulgence or extension of time which AMS may grant to the Customer in relation to these Terms of Trade or any other matter will not prejudice or interfere with AMS’s rights under these Terms of Trade and will not constitute a waiver of rights of AMS.
  3. If any provision of the Terms of Trade is held invalid, unenforceable or illegal for any reason, these Terms of Trade will remain otherwise in full force apart from such provision which will be deemed otherwise deleted.
  4. References to any statutory provision include references to a provision that amends or replaces it.
  5. The person signing below warrants and represents that s/he has the power and authority to sign this document on behalf of the Customer and to have these terms be legally binding on the Customer.

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