Privacy, Refunds, Returns, Workshop Maintenance, Rebuilds and Warranty policies.

Privacy, Refunds, Returns, Workshop Maintenance, Rebuilds and Warranty policies.
Privacy Policy
At Earthmoving Warehouse
1. We respect your privacy
1.1. Earthmoving Warehouse respects your right to privacy and is committed to safeguarding the privacy of our customers and website visitors. We adhere to the Australian Privacy Principles contained in the Privacy Act 1988 (Cth). This policy sets out how we collect and treat your personal information.
1.2. "Personal information" is information we hold which is identifiable as being about you.
2. Collection of personal information
2.1. Earthmoving Warehouse will, from time to time, receive and store personal information you enter onto our website, provided to us directly or given to us in other forms.
2.2. You may provide basic information such as your name, phone number, address and email address to enable us to send information, provide updates and process your product or service order. We may collect additional information at other times, including but not limited to, when you provide feedback, when you provide information about your personal or business affairs, change your content or email preference, respond to surveys and/or promotions, provide financial or credit card information, or communicate with our customer support.
2.3. Additionally, we may also collect any other information you provide while interacting with us.
3. How we collect your personal information
3.1. Earthmoving Warehouse collects personal information from you in a variety of ways, including when you interact with us electronically or in person, when you access our website and when we provide our services to you. We may receive personal information from third parties. If we do, we will protect it as set out in this Privacy Policy.
4. Use of your personal information
4.1. Earthmoving Warehouse may use personal information collected from you to provide you with information, updates and our services. We may also make you aware of new and additional products, services and opportunities available to you. We may use your personal information to improve our products and services and better understand your needs.
4.2. Earthmoving Warehouse may contact you by a variety of measures including, but not limited to telephone, email, sms or mail.
5. Disclosure of your personal information
5.1. We may disclose your personal information to any of our employees, officers, insurers, professional advisers, agents, suppliers or subcontractors insofar as reasonably necessary for the purposes set out in this Policy. Personal information is only supplied to a third party when it is required for the delivery of our services.
5.2. We may from time to time need to disclose personal information to comply with a legal requirement, such as a law, regulation, court order, subpoena, warrant, in the course of a legal proceeding or in response to a law enforcement agency request.
5.3. We may also use your personal information to protect the copyright, trademarks, legal rights, property or safety of Earthmoving Warehouse, www.earthmovingwarehouse.com.au, its customers or third parties.
5.4. Information that we collect may from time to time be stored, processed in or transferred between parties located in countries outside of Australia.
5.5. If there is a change of control in our business or a sale or transfer of business assets, we reserve the right to transfer to the extent permissible at law our user databases, together with any personal information and non-personal information contained in those databases. This information may be disclosed to a potential purchaser under an agreement to maintain confidentiality. We would seek to only disclose information in good faith and where required by any of the above circumstances.
5.6. By providing us with personal information, you consent to the terms of this Privacy Policy and the types of disclosure covered by this Policy. Where we disclose your personal information to third parties, we will request that the third party follow this Policy regarding handling your personal information.
6. Security of your personal information
6.1. Earthmoving Warehouse is committed to ensuring that the information you provide to us is secure. In order to prevent unauthorised access or disclosure, we have put in place suitable physical, electronic and managerial procedures to safeguard and secure information and protect it from misuse, interference, loss and unauthorised access, modification and disclosure.
6.2. The transmission and exchange of information is carried out at your own risk. We cannot guarantee the security of any information that you transmit to us, or receive from us. Although we take measures to safeguard against unauthorised disclosures of information, we cannot assure you that personal information that we collect will not be disclosed in a manner that is inconsistent with this Privacy Policy.
7. Access to your personal information
7.1. You may request details of personal information that we hold about you in accordance with the provisions of the Privacy Act 1988 (Cth). A small administrative fee may be payable for the provision of information. If you would like a copy of the information, which we hold about you or believe that any information we hold on you is inaccurate, out of date, incomplete, irrelevant or misleading, please email us at contactus@earthquakeptyltd.com.au.
7.2. We reserve the right to refuse to provide you with information that we hold about you, in certain circumstances set out in the Privacy Act.
8. Complaints about privacy
8.1. If you have any complaints about our privacy practices, please feel free to send in details of your complaints to PO Box 2420, New Farm, Queensland, 4005. We take complaints very seriously and will respond shortly after receiving written notice of your complaint.
9. Changes to Privacy Policy
9.1. Please be aware that we may change this Privacy Policy in the future. We may modify this Policy at any time, in our sole discretion and all modifications will be effective immediately upon our posting of the modifications on our website or notice board. Please check back from time to time to review our Privacy Policy.
10. Website
10.1. When you visit our website
When you come to our website/s (www.earthmovingwarehouse.com.au) we may collect certain information such as browser type, operating system, website visited immediately before coming to our site, etc. This information is used in an aggregated manner to analyse how people use our site, such that we can improve our service.
10.2. Cookies
We may from time to time use cookies on our website. Cookies are very small files which a website uses to identify you when you come back to the site and to store details about your use of the site. Cookies are not malicious programs that access or damage your computer. Most web browsers automatically accept cookies but you can choose to reject cookies by changing your browser settings. However, this may prevent you from taking full advantage of our website. Our website may from time to time use cookies to analyses website traffic and help us provide a better website visitor experience. In addition, cookies may be used to serve relevant ads to website visitors through third party services such as Google Adwords. These ads may appear on this website or other websites you visit.
10.3. Third party sites
Our site may from time to time have links to other websites not owned or controlled by us. These links are meant for your convenience only. Links to third party websites do not constitute sponsorship or endorsement or approval of these websites. Please be aware that Earthmoving Warehouse is not responsible for the privacy practises of other such websites. We encourage our users to be aware, when they leave our website, to read the privacy statements of each and every website that collects personal identifiable information.

Payment, Refunds, Returns and Warranty

1.ACCEPTANCE. Buyer’s purchase order, quote acceptance or invoice payment will be accepted subject to the following terms and conditions and shall be the only terms and conditions applicable, regardless of any conditions which may appear on the Buyers Purchase Order, unless amended in writing by Earthquake Pty Ltd, Earthmoving Warehouse (seller) and its divisions.
2. PRICES AND PAYMENT. All prices are ex works sellers’ facility, and unless otherwise stated, may not include freight, insurance, taxes, imposts, customs and/or statutory duties, or any other similar charges. All payments shall be made in accordance with the terms set forth in our quotation or invoice. The Seller shall have the rights to revise the unit and total pricing of this quotation if the quantities set out in the Buyers Purchase Order are varied. All approved account customer invoices are due payable within 30 (thirty) days of the end of the month of the invoice. A service fee of 2% per month may be charged for overdue accounts. All non-account customers must pay in full prior to the pick up or delivery of the goods. All goods remain the property of Earthmoving Warehouse until the invoice is paid in full.
3. DELIVERIES. The seller shall use its best endeavours to affect deliveries upon quotation, however, the seller shall be under no liability for any loss of income or profits of the Buyer, its successors, assigns or customers as a result of any delay in delivery or non-delivery.
4. EXCUSABLE DELAY. Seller shall not be liable for delays in delivery, performance or failure to perform, manufacture or deliver due to causes beyond its reasonable control, acts of God, acts of the buyer, acts of civil or military authority, fires, flood, war, riot, epidemics, delays in transportation or inability due to causes beyond it reasonable control or to obtain the necessary labour, materials, components, utilities or manufacturing facilities. In the event of any such delay, the date of performance/delivery shall be extended by a period of time as may be reasonable to compensate for such delay.
5. WARRANTY. Except so far as such warranties and conditions are validly implied by the Trade Practices Act (1974 as amended) and Consumer Guarantees (QLD) all warranties and conditions express or implied (other than statutory warranties and conditions) and all other remedies against the seller for consequential or other damage are expressly excluded. Buyer agrees that should any defects in the goods become apparent then the buyer will notify the seller within 30 (thirty) days of discovery of such defect and will follow the seller’s instructions in respect of the disposition and return of the defective article/s. The buyer agrees that should they fail to follow such procedures then any claim for breach of any such warranties implied as aforesaid shall be limited to the amount of damage which the customer should have incurred if he had followed such procedure as aforesaid.
6. EQUIPMENT, MATERIALS, MEASUREMENTS AND PARTS SUPPLIED BY BUYER. All equipment, materials, measurements and parts supplied by or on behalf of the buyer for the purpose of manufacture or test of the articles being or to be produced by seller shall be of suitable specification for their intended performance. The seller shall take all reasonable steps to protect and safeguard such equipment, materials and parts supplied whilst on the sellers premises, however, all risk of loss, damage to, or destruction of the aforesaid, howsoever caused, shall be the responsibility of and be borne by the buyer. Where material is supplied by the buyer, the seller will not replace such material damaged or in any way rendered unsuitable due to faulty workmanship. The seller will however perform the contracted work from replacement material with no variation to the original contract price. Flaws, hard spots or other defects in materials supplied by the buyer shall be brought to the attention of the buyer and any additional costs incurred by the seller as a result of such defects shall be added to the buyers account.
7. EXPORT. If any article sold hereunder is for export, then the buyer shall be responsible for arranging transportation, insurance, export clearances and payment of associated costs.
8. DRAWINGS, SPECIFICATIONS AND SAMPLES. Unless otherwise specified in writing beforehand, should any conflict exist or arise between the requirements of (a) any drawings, (b) any specification/s and sample/s furnished by the buyer in respect of the articles to be manufactured by seller, the requirements of the drawing/s shall prevail, however, in the case of supplied electronic C.A.D. data, then this will prevail over hard copy drawings.
9. PASSAGE OF RISK AND TITLE. Buyer shall be responsible for all risks in respect of the manufactured article/s following delivery ex works, Geebung, Yatala, Loganholme, Wetherill Park or Dandenong South. Title shall pass to the buyer on payment of all monies due and payable in respect of the manufactured article/s.
10. SHIPMENT. All costs of shipment, cartage, freight and insurance of articles sold hereunder shall be for the account and be payable to the buyer and shall be in addition to the price specified, unless agreed otherwise in writing by the seller.
11. TERMINATION OF ORDER. In the event of cancellation by the buyer of any order or part thereof resulting from this quotation/sales invoice, then the seller shall be entitled to reimbursement of all reasonable production and cancellation costs incurred up to the time of such cancellation. In addition to any damages sustained as a result of such cancellation. Re-stocking fees of 25% of the full value of the product/s non-custom made and 100% for custom made.
12. RETURNS AND REFUNDS. In the event that a buyer wishes to return the goods purchased for reasons such as mis-purchase, incorrect measurements or incorrect specifications supplied by the buyer they must be returned, at the buyers cost, to the original place of purchase or where the products were originally shipped from. Goods returned must be in their original packaging and be in new and unused condition. Re-stocking fees of 25% of the full value of the product/s non-custom made and 100% for custom made.
13. INDEMNITY. The buyer shall indemnify the seller against all claims, damages, demands, penalties, costs, charges and expenses which the seller may become liable for in relation to any infringement or alleged infringement of any intellectual property, including patents, rights relating to trademarks, or copyrights, which result from data, information or instructions supplied by the buyer.
14. APPLICABLE LAW. This agreement shall be interpreted in accordance with the laws of the State of Queensland, Australia.
15. VARIATIONS OF TERMS AND CONDITIONS. Unless otherwise amended in writing by seller, no alteration of or addition to these Terms and Conditions, or any representation, statement or promise inconsistent therewith shall be valid.
16. ENTIRE AGREEMENT. Upon receipt of the buyers Purchase Order or buyers Acceptance of Quote or buyers Payment of Invoice by the seller, as acceptance of these Terms and Conditions, the provisions hereof (including any pertinent documents, drawings and specifications applicable hereto) shall constitute the entire agreement between the parties and supersede all prior offers, negotiations and agreements relating to the subject matter hereof. The agreed deletion of any clause or of any part of these Terms and Conditions by the seller shall not affect the validity of the remaining terms and conditions of sale. Terms and Conditions – Workshop Maintenance and Rebuild Services
1. Definitions
“Company” means Earthquake Pty Ltd, its trading entities, successors and assigns or any person acting on behalf of and with the authority of Earthquake Pty Ltd.
“Customer” means the person/s purchasing the Works as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
“Works” means all Works provided by the Company to the Customer at the Customer’s request from time to time (and where the context so permits shall include any supply of Parts as hereinafter defined).
“Parts” shall mean Parts supplied by the Company to the Customer either separately, or as part of the Works (and where the context so permits shall include the provision of Works as defined above).
“Price” means the Price payable for the Works as agreed between the Company and the Customer in accordance with clause 4
2. Acceptance
The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts provision of the Works.
The Company (at their sole discretion) shall only provide the Works after receipt of a duly authorised purchase order or payment of a deposit from the Customer confirming their request thereof.
These terms and conditions may only be amended with the Company’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Company.
3. Change in Control
The Customer shall give the Company not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by the Company as a result of the Customer’s failure to comply with this clause.
4. Price and Payment
At the Company’s sole discretion the Price shall be either:
as indicated on any invoice provided by the Company to the Customer; or
the Company’s estimated Price (subject to clause 5) which shall not be deemed binding upon the Company as the actual Price can only be determined upon completion of the Works. The Company undertakes to keep the Customer informed should the actual Price look likely to exceed the original estimate; or
the Company’s quoted Price (subject to clause 5) which shall be binding upon the Company provided that the Customer shall accept the Company’s quotation in writing within thirty (30) days of issue; and
unless specifically stated otherwise in writing by the Company, any freight charges or other costs to suppliers for Parts shall not be included in the Price.
Time for payment for the Works being of the essence, the Price will be payable by the Customer on the date/s determined by the Company, which may be:
on collection of the Parts or vehicle; or
for approved Customer’s, due thirty (30) days following the date of any invoice given to the Customer by the Company;
the date specified on any invoice or other form as being the date for payment; or
failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Company.
Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to three percent (3%) of the Price for any Amex transaction), or by any other method as agreed to between the Customer and the Company.
Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to the Company an amount equal to any GST the Company must pay for any provision of Works by the Company under this or any other agreement. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer 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. Additional Charges
The Company reserves the right to change the Price:
if a variation to the Works which are to be provided is requested; or
where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, further faults which are found upon disassembly and/or further inspection) which are only discovered upon commencement of the Works; or
in the event of increases to the Company in the cost of labour or Parts which are beyond the Company’s control.
Where the Company is requested to store the Customer’s Parts or vehicle, or where Parts or vehicles are not collected within twenty-four (24) hours of advice to the Customer that they are ready for collection, then the Company (at its sole discretion) may charge the Customer a reasonable fee for storage.
For mobile Works, a minimum call-out fee (equal to one (1) hour labour, plus travel costs) shall be applicable, which shall be increased (to two (2) hours labour, plus travel costs) for any after-hours call-outs.
All tow and/or salvage fees will be charged to the Customer, and will be added to the Price.
If the Company has been requested by the Customer to diagnose a fault that requires disassembly and/or testing, all costs involved will be charged to the Customer irrespective of whether or not the repair goes ahead.
The Customer acknowledges and agrees that the Company shall be entitled to:
retain any components replaced during the provision of the Works; and
the right to retain all proceeds obtained from the sale of such components to any auto recycler or salvage yard.
Where it has been agreed to between the parties that the Customer will pay the Price by instalments, the Customer acknowledges and agrees that a handling fee and reasonable interest charges shall be applicable.
6. Provision of the Works
Where the Company is to provide any Works at the Customer’s nominated address, then the Customer shall be liable for all costs incurred by the Company from the time they depart from, and until they return to, their normal place of work (including, but not limited to, mileage and time calculated at the Company’s standard rates and any Parts purchased for the Works).
The Company may provide the Works in separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
Any time or date given by the Company to the Customer is an estimate only. The Customer must still accept provision of the Works even if late, and the Company will not be liable for any loss or damage incurred by the Customer as a result of this.
7. Risk
The Customer acknowledges that the Company is only responsible for Parts that are replaced by the Company and that in the event that other components subsequently fail, the Customer agrees to indemnify the Company against any loss or damage to the machine, Parts, or caused by the components, or any part thereof howsoever arising.
The Company shall not be liable for the loss of or damage to the machine, its accessories or contents while being serviced or being driven in connection with the authorised Works (including in the event of a call-out: it shall be the Customer’s responsibility to remain with the machine to ensure security of the same), unless caused by the negligence of the Company or the Company’s employees.
It is the Customer’s responsibility to ensure that the machine is insured against all possible damage (including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks) whilst stored at the Company’s premises. The machine is at all times stored and repaired at the Customer’s sole risk.
8. Title
The Customer acknowledges and agrees that the Customer’s obligations to the Company for the provision of Works shall not cease, and subsequent ownership of the Parts shall not pass, until:
the Customer has paid the Company all amounts owing for the Works; and
the Customer has met all other obligations due by the Customer to the Company in respect of all contracts between the Company and the Customer.
Receipt by the Company 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 and until then the Company’s ownership or rights in respect of this agreement (and the Works) shall continue.
It is further agreed that:
until ownership of the Works passes to the Customer in accordance with clause 1, the Customer is only a bailee of the Parts and must return the Parts to the Company on request.
the Customer holds the benefit of the Customer’s insurance of the Parts on trust for the Company and must pay to the Company the proceeds of any insurance in the event of the Parts being lost, damaged or destroyed.
the Customer must not sell, dispose, or otherwise part with possession of the Parts other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Parts then the Customer must hold the proceeds of any such act on trust for the Company and must pay or deliver the proceeds to the Company on demand.
the Customer should not convert or process the Parts or intermix them with other Parts but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Company and must sell, dispose of or return the resulting product to the Company as it so directs.
the Customer irrevocably authorises the Company to enter any premises where the Company believes the Parts are kept and recover possession thereof.
the Customer shall not charge or grant an encumbrance over the Parts nor grant nor otherwise give away any interest in the Parts while they remain the property of the Company.
the Company may commence proceedings to recover the Price of the Works notwithstanding that ownership of the Parts has not passed to the Customer.
Personal Property Securities Act 2009 (“PPSA”)
In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
Upon assenting to these terms and conditions in writing the Customer 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 Parts and collateral (accounts) – being a monetary obligation of the Customer to the Company for Works – previously provided, and that will be provided in the future, by the Company to the Customer.
The Customer undertakes to:
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 Company may reasonably require to;
register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
register any other document required to be registered by the PPSA; or
correct a defect in a statement referred to in clause 3(a)(i) or 9.3(a)(ii);
indemnify, and upon demand reimburse, the Company 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 registration made thereby;
not register a financing change statement in respect of a security interest without the prior written consent of the Company;
not register, or permit to be registered, a financing statement or a financing change statement in relation to the Parts and collateral (accounts) in favour of a third party without the prior written consent of the Company.
The Company and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
Unless otherwise agreed to in writing by the Company, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
The Customer must unconditionally ratify any actions taken by the Company under clauses 3 to 9.5.
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.
8. Security and Charge
In consideration of the Company agreeing to provide the Works, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
The Customer indemnifies the Company from and against all the Company’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Company’s rights under this clause.
The Customer irrevocably appoints the Company and each director of the Company as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Customer’s behalf.
Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
The Customer must inspect the Works on provision and shall within twenty-four (24) hours of such time (being of the essence) notify the Company in writing of any evident defect/damage, error or omission, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow the Company to inspect/review the Works.
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). The Company acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Company makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Works. The Company’s liability in respect of these warranties is limited to the fullest extent permitted by law. If the Customer is a consumer within the meaning of the CCA, the Company’s liability is limited to the extent permitted by section 64A of Schedule 2. If the Company is required to rectify, re-provide, or pay the cost of re-providing the Works under this clause or the CCA, but is unable to do so, then the Company may refund any money the Customer has paid for the Works but only to the extent that such refund shall take into account the value of Works and/or Parts which have been provided to the Customer which were not defective.
If the Customer is not a consumer within the meaning of the CCA, the Company’s liability for any defect or damage in the Works is:
limited to the value of any express warranty or warranty card provided to the Customer by the Company at the Company’s sole discretion;
limited to any warranty to which the Company is entitled, if the Company did not manufacture the Parts;
otherwise negated absolutely.
Notwithstanding clauses 1 to 11.3 but subject to the CCA, the Company shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
the Customer failing to properly maintain or store the vehicle;
the Customer using the vehicle for any purpose other than that for which they were designed;
the Customer continuing the use of the vehicle after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
the Customer failing to follow any instructions or guidelines provided by the Company;
fair wear and tear, any accident, or act of God.
Notwithstanding anything contained in this clause if the Company is required by a law to accept a return then the Company will only accept a return on the conditions imposed by that law.
The Customer acknowledges and agrees that:
warranty repairs exclude fluids, belts, gaskets, or other consumables unless expressly covered by warranty.
if a vehicle or component is submitted for repair under a warranty or insurance claim, and the claim is declined or payment delayed, the Customer is liable for payment and agrees to pay for any such repair.
Default and Consequences of Default
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 Company’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Customer owes the Company any money the Customer shall indemnify the Company from and against all costs and disbursements incurred by the Company in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Company’s contract default fee, and bank dishonour fees).
Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Company may suspend or terminate the provision of Works to the Customer. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company has exercised its rights under this clause.
Without prejudice to the Company’s other remedies at law the Company shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Company shall, whether or not due for payment, become immediately payable if:
any money payable to the Company becomes overdue, or in the Company’s opinion the Customer will be unable to make a payment when it falls due;
the Customer 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
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
9. Cancellation
The Company may cancel any contract to which these terms and conditions apply or cancel provision of the Works at any time before the Works have commenced (or Parts delivered) by giving written notice to the Customer. On giving such notice the Company shall repay to the Customer any money paid by the Customer for the Works. The Company shall not be liable for any loss or damage whatsoever arising from such cancellation.
In the event that the Customer cancels provision of the Works, the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Company as a direct result of the cancellation (including, but not limited to, any loss of profits).
Cancellation of orders for Parts made, modified or sourced by the Company to the Customer’s specifications, or for non-stock list items, will definitely not be accepted once an order has been placed.
10. Privacy Act 1988
The Customer agrees for the Company to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by the Company.
The Customer agrees that the Company may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
to assess an application by the Customer; and/or
to notify other credit providers of a default by the Customer; and/or
to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two years.
The Customer consents to the Company being given a consumer credit report to collect overdue payment on commercial
The Customer agrees that personal credit information provided may be used and retained by the Company for the following purposes (and for other agreed purposes or required by):
the provision of Works; and/or
analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Works; and/or
processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
enabling the collection of amounts outstanding in relation to the Works.
The Company may give information about the Customer to a CRB for the following purposes:
to obtain a consumer credit report;
allow the CRB to create or maintain a credit information file about the Customer including credit history.
The information given to the CRB may include:
personal information as outlined in 1 above;
name of the credit provider and that the Company is a current credit provider to the Customer;
whether the credit provider is a licensee;
type of consumer credit;
details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and the Company has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
information that, in the opinion of the Company, the Customer has committed a serious credit infringement;
advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
The Customer shall have the right to request (by e-mail) from the Company:
a copy of the information about the Customer retained by the Company and the right to request that the Company correct any incorrect information; and
that the Company does not disclose any personal information about the Customer for the purpose of direct marketing.
The Company will destroy personal information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
The Customer can make a privacy complaint by contacting the Company via e-mail. The Company will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
11. Unpaid Seller’s Rights
Where the Customer has left any item with the Company for repair, modification, exchange or for the Company to perform any other service in relation to the item and the Company has not received or been tendered the whole of any moneys owing to it by the Customer, the Company shall have, until all moneys owing to the Company are paid:
a lien on the item; and
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.
The lien of the Company shall continue despite the commencement of proceedings, or judgment for any moneys owing to the Company having been obtained against the Customer.
12. General
The failure by the Company to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Company’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.
These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland, the state in which the Company has its principal place of business, and are subject to the jurisdiction of the Brisbane Court in that state.
Subject to clause 11, the Company shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Company of these terms and conditions (alternatively the Company’s liability shall be limited to damages which under no circumstances shall exceed the Price).
The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Company nor to withhold payment of any invoice because part of that invoice is in dispute.
The Company may license or sub-contract all or any part of its rights and obligations without the Customer’s consent, and:
the Company does not warrant the accuracy or quality of the sub-contractor’s work or warrant that any recommendations of the sub-contractor are appropriate or adequate or are fit for their purpose or that they are not given negligently; and
the Customer shall not make any demand on the Company or commence any legal proceedings against the Company, and the Company shall have no liability, whether in negligence or otherwise, to the Customer in relation to any work performed by the sub-contractor.
The Customer agrees that the Company may amend these terms and conditions at any time. If the Company makes a change to these terms and conditions, then that change will take effect from the date on which the Company notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for the Company to provide Works to the Customer.
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.
The Customer 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. Approved by
Earthquake Pty Ltd T/as Earthmoving Warehouse
Date: 1st April 2020 Earthquake Pty Ltd T/as Earthmoving Warehouse ABN: 80 634 642 863 sales@earthmovingwarehouse.com.au PO Box 2420, New Farm, Queensland, 4005