Lawton Investments (QLD) Pty Ltd T/A Lister Irrigation – Terms & Conditions of Trade

1. Definitions

1.1 “Supplier” means Lawton Investments (QLD) Pty Ltd T/A Lister Irrigation, its successors and assigns or any person

acting on behalf of and with the authority of Lawton Investments (QLD) Pty Ltd T/A Lister Irrigation.

1.2 “Client” means the person/s buying the Goods (and/or hiring Equipment) as specified in any invoice, document or

order, and if there is more than one Client is a reference to each Client jointly and severally.

1.3 “Goods” means all Goods or Services supplied by the Supplier to the Client at the Client’s request from time to time

(where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).

1.4 “Equipment” means all Equipment including any accessories supplied on hire by the Supplier to the Client (and

where the context so permits shall include any supply of Services). The Equipment shall be as described on the

invoices, quotation, authority to hire, or any other work authorisation form provided by the Supplier to the Client.

1.5 “Price” means the Price payable for the Goods as agreed between the Supplier and the Client in accordance with

clause 4 below.

2. Acceptance

2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms

and conditions if the Client places an order for or accepts delivery of the Goods/Equipment.

2.2 These terms and conditions may only be amended with the Supplier’s consent in writing and shall prevail to the

extent of any inconsistency with any other document or agreement between the Client and the Supplier.

3. Change in Control

3.1 The Client shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of

ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the

Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss

incurred by the Supplier as a result of the Client’s failure to comply with this clause.

4. Price and Payment

4.1 At the Supplier’s sole discretion the Price shall be either:

(a) as indicated on any invoice provided by the Supplier to the Client; or

(b) the Supplier’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or

otherwise for a period of thirty (30) days.

4.2 The Supplier reserves the right to change the Price if a variation to the Supplier’s quotation is requested. Any

variation from the plan of scheduled works or specifications (including, but not limited to, any variation due to

unforeseen circumstances, or due to fluctuations in the currency exchange rate, or as a result of increases to the

Supplier in the cost of materials and labour) will be charged for on the basis of the Supplier’s quotation and will be

shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.

4.3 At the Supplier’s sole discretion a non-refundable deposit may be required.

4.4 Time for payment for the Goods/Equipment being of the essence, the Price will be payable by the Client on the

date/s determined by the Supplier, which may be:

(a) on delivery of the Goods/Equipment;

(b) before delivery of the Goods/Equipment;

(c) by way of instalments/progress payments in accordance with the Supplier’s payment schedule;

(d) twenty (20) days following the end of the month in which a statement is posted to the Client’s address or

address for notices;

(e) the date specified on any invoice or other form as being the date for payment; or

(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the

Client by the Supplier.

4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of

up to four percent (4%) of the Price), or by any other method as agreed to between the Client and the Supplier.

4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Supplier

an amount equal to any GST the Supplier must pay for any supply by the Supplier under this or any other

agreement for the sale of the Goods/hire of the Equipment. The Client must pay GST, without deduction or set off

of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client

must pay any other taxes and duties that may be applicable in addition to the Price except where they are

expressly included in the Price.

5. Delivery of Goods/Equipment

5.1 Delivery (“Delivery”) of the Goods/Equipment is taken to occur at the time that:

(a) the Client or the Client’s nominated carrier takes possession of the Goods/Equipment at the Supplier’s address;


(b) the Supplier (or the Supplier’s nominated carrier) delivers the Goods/Equipment to the Client’s nominated

address even if the Client is not present at the address.

5.2 At the Supplier’s sole discretion the cost of delivery is in addition to the Price.

5.3 The Client must take delivery by receipt or collection of the Goods/Equipment whenever either is tendered for

delivery. In the event that the Client is unable to take delivery of the Goods as arranged then the Supplier shall be

entitled to charge a reasonable fee for redelivery and/or storage.

5.4 The Supplier may deliver the Goods/Equipment in separate instalments. Each separate instalment shall be

invoiced and paid in accordance with the provisions in these terms and conditions.

5.5 Any time or date given by the Supplier to the Client is an estimate only. The Client must still accept delivery of the

Goods/Equipment even if late and the Supplier will not be liable for any loss or damage incurred by the Client as a

result of the delivery being late.

6. Risk

6.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or

before Delivery.

6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the

Supplier is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and

conditions by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without

the need for any person dealing with the Supplier to make further enquiries.

6.3 If the Client requests the Supplier to leave Goods outside the Supplier’s premises for collection or to deliver the

Goods to an unattended location then such Goods shall be left at the Client’s sole risk.

7. Access

7.1 The Client shall ensure that the Supplier has clear and free access to the work site at all times to enable them to

undertake the works. The Supplier shall not be liable for any loss or damage to the site (including, without

limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence

of the Supplier.

8. Underground Locations

8.1 Prior to the Supplier commencing any work the Client must advise the Supplier of the precise location of all

underground services on the site and clearly mark the same. The underground mains & services the Client must

identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer

connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping

mains, and any other services that may be on site.

8.2 Whilst the Supplier will take all care to avoid damage to any underground services the Client agrees to indemnify

the Supplier in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to

services not precisely located and notified as per clause 8.1.

9. Title To Goods

9.1 The Supplier and the Client agree that ownership of the Goods shall not pass until:

(a) the Client has paid the Supplier all amounts owing to the Supplier; and

(b) the Client has met all of its other obligations to the Supplier.

9.2 Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form

of payment has been honoured, cleared or recognised.

9.3 It is further agreed that:

(a) until ownership of the Goods passes to the Client in accordance with clause 9.1 that the Client is only a bailee of

the Goods and must return the Goods to the Supplier on request.

(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for the Supplier and must pay to the

Supplier the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.

(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary

course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then

the Client must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds

to the Supplier on demand.

(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so

then the Client holds the resulting product on trust for the benefit of the Supplier and must sell, dispose of or

return the resulting product to the Supplier as it so directs.

(e) the Client irrevocably authorises the Supplier to enter any premises where the Supplier believes the Goods are

kept and recover possession of the Goods.

(f) the Supplier may recover possession of any Goods in transit whether or not delivery has occurred.

(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any

interest in the Goods while they remain the property of the Supplier.

(h) the Supplier may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership

of the Goods has not passed to the Client.

10. Personal Property Securities Act 2009 (“PPSA”)

10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the

meaning given to it by the PPSA.

10.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and

conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all

Goods/Equipment that has previously been supplied and that will be supplied in the future by the Supplier to the


10.3 The Client undertakes to:

(a) promptly sign any further documents and/or provide any further information (such information to be complete,

accurate and up-to-date in all respects) which the Supplier may reasonably require to;

(i) register a financing statement or financing change statement in relation to a security interest on the Personal

Property Securities Register;

(ii) register any other document required to be registered by the PPSA; or

(iii)correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii);

(b) indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financing

statement or financing change statement on the Personal Property Securities Register established by the PPSA

or releasing any Goods/Equipment charged thereby;

(c) not register a financing change statement in respect of a security interest without the prior written consent of the


(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the

Goods/Equipment in favour of a third party without the prior written consent of the Supplier;

(e) immediately advise the Supplier of any material change in its business practices of selling Goods which would

result in a change in the nature of proceeds derived from such sales.

10.4 The Supplier and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security

agreement created by these terms and conditions.

10.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the


10.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

10.7 Unless otherwise agreed to in writing by the Supplier, the Client waives their right to receive a verification statement

in accordance with section 157 of the PPSA.

10.8 The Client must unconditionally ratify any actions taken by the Supplier under clauses 10.3 to 10.5.

10.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the

effect of contracting out of any of the provisions of the PPSA.

11. Security and Charge

11.1 In consideration of the Supplier agreeing to supply the Goods/Equipment, the Client charges all of its rights, title

and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the

Client either now or in the future, to secure the performance by the Client of its obligations under these terms and

conditions (including, but not limited to, the payment of any money).

11.2 The Client indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal

costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under this clause.

11.3 The Client irrevocably appoints the Supplier and each director of the Supplier as the Client’s true and lawful

attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to,

signing any document on the Client’s behalf.

12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

12.1 The Client must inspect the Goods/Equipment on delivery and must within seven (7) days of delivery notify the

Supplier in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or

quote. The Client must notify any other alleged defect in the Goods/Equipment as soon as reasonably possible

after any such defect becomes evident. Upon such notification the Client must allow the Supplier to inspect the


12.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory

implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be

implied into these terms and conditions (Non-Excluded Guarantees).

12.3 The Supplier acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-

Excluded Guarantees.

12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the

Supplier makes no warranties or other representations under these terms and conditions including but not limited to

the quality or suitability of the Goods/Equipment. The Supplier’s liability in respect of these warranties is limited to

the fullest extent permitted by law.

12.5 If the Client is a consumer within the meaning of the CCA, the Supplier’s liability is limited to the extent permitted by

section 64A of Schedule 2.

12.6 If the Supplier is required to replace the Goods under this clause or the CCA, but is unable to do so, the Supplier

may refund any money the Client has paid for the Goods.

12.7 If the Client is not a consumer within the meaning of the CCA, the Supplier’s liability for any defect or damage in the

Goods is:

(a) limited to the value of any express warranty or warranty card provided to the Client by the Supplier at the

Supplier’s sole discretion;

(b) limited to any warranty to which the Supplier is entitled, if the Supplier did not manufacture the Goods;

(c) otherwise negated absolutely.

12.8 Subject to this clause 12, returns will only be accepted provided that:

(a) the Client has complied with the provisions of clause 12.1; and

(b) the Supplier has agreed that the Goods are defective; and

(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and

(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.

12.9 Notwithstanding clauses 12.1 to 12.8 but subject to the CCA, the Supplier shall not be liable for any defect or

damage which may be caused or partly caused by or arise as a result of:

(a) the Client failing to properly maintain or store any Goods/Equipment;

(b) the Client using the Goods/Equipment for any purpose other than that for which they were designed;

(c) the Client continuing the use of the Goods/Equipment after any defect became apparent or should have become

apparent to a reasonably prudent operator or user;

(d) the Client failing to follow any instructions or guidelines provided by the Supplier;

(e) fair wear and tear, any accident, or act of God.

12.10 In the case of second hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that it

has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that

to the extent permitted by law no warranty is given by the Supplier as to the quality or suitability for any purpose

and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that

the Supplier has agreed to provide the Client with the second hand Goods and calculated the Price of the second

hand Goods in reliance of this clause 12.10.

12.11 The Supplier may in its absolute discretion accept non-defective Goods for return in which case the Supplier may

require the Client to pay handling fees of up to fifteen percent (15%) of the value of the returned Goods plus any

freight costs.

12.12 Notwithstanding anything contained in this clause if the Supplier is required by a law to accept a return then the

Supplier will only accept a return on the conditions imposed by that law.

13. Intellectual Property

13.1 Where the Supplier has designed, drawn or developed Goods/Equipment for the Client, then the copyright in any

designs and drawings and documents shall remain the property of the Supplier.

13.2 The Client warrants that all designs, specifications or instructions given to the Supplier will not cause the Supplier

to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to

indemnify the Supplier against any action taken by a third party against the Supplier in respect of any such


13.3 The Client agrees that the Supplier may (at no cost) use for the purposes of marketing or entry into any

competition, any documents, designs, drawings or Goods which the Supplier has created for the Client.

14. Default and Consequences of Default

14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of

payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Supplier’s sole discretion such

interest shall compound monthly at such a rate) after as well as before any judgment.

14.2 If the Client owes the Supplier any money the Client shall indemnify the Supplier from and against all costs and

disbursements incurred by the Supplier in recovering the debt (including but not limited to internal administration

fees, legal costs on a solicitor and own client basis, the Supplier’s collection agency costs, and bank dishonour


14.3 Without prejudice to any other remedies the Supplier may have, if at any time the Client is in breach of any

obligation (including those relating to payment) under these terms and conditions the Supplier may suspend or

terminate the supply of Goods/Equipment to the Client. The Supplier will not be liable to the Client for any loss or

damage the Client suffers because the Supplier has exercised its rights under this clause.

14.4 Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of

any order of the Client which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for

payment, become immediately payable if:

(a) any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Client will be unable to

make a payment when it falls due;

(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement

with creditors, or makes an assignment for the benefit of its creditors; or

(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client

or any asset of the Client.

15. Cancellation

15.1 The Supplier may cancel any contract to which these terms and conditions apply or cancel delivery of

Goods/Equipment at any time before the Goods/Equipment are due to be delivered by giving written notice to the

Client. On giving such notice the Supplier shall repay to the Client any money paid by the Client for either the

Goods or Equipment hire. The Supplier shall not be liable for any loss or damage whatsoever arising from such


15.2 In the event that the Client cancels delivery of the Goods/Equipment the Client shall be liable for any and all loss

incurred (whether direct or indirect) by the Supplier as a direct result of the cancellation (including, but not limited

to, any loss of profits).

15.3 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be

accepted once production has commenced, or an order has been placed.

16. Privacy Act 1988

16.1 The Client agrees for the Supplier to obtain from a credit reporting agency a credit report containing personal credit

information about the Client in relation to credit provided by the Supplier.

16.2 The Client agrees that the Supplier may exchange information about the Client with those credit providers either

named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for

the following purposes:

(a) to assess an application by the Client; and/or

(b) to notify other credit providers of a default by the Client; and/or

(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in

default with other credit providers; and/or

(d) to assess the creditworthiness of the Client.

The Client understands that the information exchanged can include anything about the Client’s creditworthiness,

credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act


16.3 The Client consents to the Supplier being given a consumer credit report to collect overdue payment on

commercial credit (Section 18K(1)(h) Privacy Act 1988).

16.4 The Client agrees that personal credit information provided may be used and retained by the Supplier for the

following purposes (and for other purposes as shall be agreed between the Client and Supplier or required by law

from time to time):

(a) the provision of Goods/Equipment; and/or

(b) the marketing of Goods/Equipment by the Supplier, its agents or distributors; and/or

(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of

Goods/Equipment; and/or

(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client;


(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s

account in relation to the Goods/Equipment.

16.5 The Supplier may give information about the Client to a credit reporting agency for the following purposes:

(a) to obtain a consumer credit report about the Client;

(b) allow the credit reporting agency to create or maintain a credit information file containing information about the


16.6 The information given to the credit reporting agency may include:

(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and

driver’s licence number);

(b) details concerning the Client’s application for credit or commercial credit and the amount requested;

(c) advice that the Supplier is a current credit provider to the Client;

(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by

more than sixty (60) days, and for which debt collection action has been started;

(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in

respect of any default that has been listed;

(f) information that, in the opinion of the Supplier, the Client has committed a serious credit infringement (that is,

fraudulently or shown an intention not to comply with the Client’s credit obligations);

(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more

than once;

(h) that credit provided to the Client by the Supplier has been paid or otherwise discharged.

17. Unpaid Supplier’s Rights

17.1 Where the Client has left any item with the Supplier for repair, modification, exchange or for the Supplier to perform

any other service in relation to the item and the Supplier has not received or been tendered the whole of any

moneys owing to it by the Client, the Supplier shall have, until all moneys owing to the Supplier are paid:

(a) a lien on the item; and

(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the

sale or disposal of uncollected goods.

17.2 The lien of the Supplier shall continue despite the commencement of proceedings, or judgment for any moneys

owing to the Supplier having been obtained against the Client.

18. Equipment Hire

18.1 Equipment shall at all times remain the property of the Supplier and is returnable on demand by the Supplier. In the

event that Equipment is not returned to the Supplier in the condition in which it was delivered the Supplier retains

the right to charge the Client the full cost of repairing the Equipment. In the event that Equipment is not returned at

all the Supplier shall have right to charge the Client the full cost of replacing the Equipment.

18.2 The Client shall;

(a) keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor

be entitled to a lien over the Equipment.

(b) not alter or make any additions to the Equipment including but without limitation altering, make any additions to,

defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner

interfere with the Equipment.

(c) keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall

comply with any maintenance schedule as advised by the Supplier to the Client.

18.3 The Client accepts full responsibility for the safekeeping of the Equipment and the Client agrees to insure, or self

insure, the Supplier’s interest in the Equipment and agrees to indemnify the Supplier against physical loss or

damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of

the use of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner

as would permit an insurer to decline any claim.

19. General

19.1 The failure by the Supplier to enforce any provision of these terms and conditions shall not be treated as a waiver

of that provision, nor shall it affect the Supplier’s right to subsequently enforce that provision. If any provision of

these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and

enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

19.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in

which the Supplier has its principal place of business, and are subject to the jurisdiction of the courts in that state.

19.3 Subject to clause 12 the Supplier shall be under no liability whatsoever to the Client for any indirect and/or

consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the

Supplier of these terms and conditions (alternatively the Supplier’s liability shall be limited to damages which under

no circumstances shall exceed the Price of the Goods/Equipment hire).

19.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to

the Client by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute.

19.5 The Supplier may license or sub-contract all or any part of its rights and obligations without the Client’s consent.

19.6 The Client agrees that the Supplier may amend these terms and conditions at any time. If the Supplier makes a

change to these terms and conditions, then that change will take effect from the date on which the Supplier notifies

the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further

request for the Supplier to provide Goods/Equipment to the Client.

19.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action,

fire, flood, storm or other event beyond the reasonable control of either party.

19.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations

to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.