PURCHASE TERMS & CONDITIONS

Definitions

In these Terms unless the context requires otherwise:

Annexure means an annexure to the Trailer Contract of Sale or these Terms (if any)
Barker means Barker Trailers Pty Ltd ACN 005 573 660
Consumer Guarantees means the consumer guarantees contained in the Australian Consumer Law, which is contained in Schedule 2 of the Competition and Consumer Act 2010
Completion Date means either:
-  the date of which the Customer is advised the trailer is ready for pick up or delivery      (whichever applies); or
- any other date as varied by a Special Condition
Contract means a contract arising in accordance with clause 2
Customer means the Customer described in the Purchase Order
Deposit means the Deposit described in the Purchase Order
Goods means any trailer or any part of the trailer or any other goods supplied to the Customer by Barker
Invoice means a tax invoice issued by Barker to the Customer specifying the Price and any ancillary costs payable by the Customer to Barker for the Goods
PBS Performance Based Standards
PPSA means the Personal Property Securities Act 2009 (Cth)
PPSR means the Personal Property Securities Register
Price means the price payable in respect of the Goods, as specified in the Purchase Order or Invoice or both
Proposal (Quotation) means a quote submitted by Barker to the Customer specifying the Price
Purchase Order (PO) means a Customer Generated Purchase Order submitted by the Customer to Barker for the purchase of Goods
Special Condition means any additional condition or term which is included in the Trailer Contract of Sale via an Annexure which is to be interpreted in accordance with clause 2.2
Terms means these Terms and Conditions of Sale
Trailer Contract of Sale means the Barker provided document that can take the place of a Customer Generated PO.
Warranty means the manufacturer’s warranty, a copy of which is available upon request.

2. General
2.1 The Customer agrees and acknowledges that:

  1. These Terms apply to the sale of Goods from Barker to the Customer to the exclusion of all other terms and conditions of the Customer.
  2. Barker will not supply Goods to the Customer on any other terms or conditions.
  3. The Customer is deemed to have agreed to these Terms upon signing any trade contract (including a Trailer Contract of Sale or Customer generated Purchase Order) or agreement with Barker or by taking delivery of the Goods supplied by Barker (together forming all parts of the Contract)
  4. Upon Barker receiving a Trailer Contract of Sale or Customer generated Purchase Order, a contract arises for the manufacture and supply of Goods described in the Purchase Order for the Price and on these Terms.
  5. If inspection of trailer/s is applicable before delivery, inspection of trailer/s MUST be carried out within 5 business days of trailer/s Completion Date.
2.2 Special Conditions

Barker and the Customer agree that any Special Conditions set out in any Annexure:

  1. form part of these Terms and bind Barker and the Customer; and
  2. if inconsistent with any other provision of these Terms, override them. 

3. Price
3.1 The Customer must pay the Price in the manner and on the Completion Date set out in the Trailer Contract of Sale.
3.2 If the Customer fails to make payment of any amount of the Price on the due date, the Customer must pay to Barker, interest on the full amount outstanding at the rate equal to 4% per annum higher than the prime lending rate of Westpac Banking Corporation as at the date on which the relevant payment is due to be paid, calculated monthly for the period from the due date until payment is received.
3.3 The Customer may not set off against the Price any amounts due from Barker.
3.4 If inspection of trailer/s was undertaken, payment is required to be made within 48 hours of inspection date, this is not negotiable.
3.5 If rework is required, payment is due within 48 hours of confirmed completion of rework.
3.6 If the Customer requests any variation to the agreement, Barker may increase the Price to account for the variation.

4. Deposit
4.1 If the Proposal and / or Trailer Contract of Sale includes provision for payment of a Non-Refundable Deposit (10%), then:
      1. Barker Trailers is not required to commence work or supply any Goods until the Deposit has been paid in full within 10 business days of submission of Contract of Sale; and
      2. The Deposit is immediately released to Barker Trailers; and the Customer is not entitled to refund of the Deposit unless he or she or it makes a valid claim for its return under the Warranty or claim under the Consumer Guarantees.
5. Delivery and Force Majeure
5.1 Barker Trailers will only deliver the Goods to the Customer's address as specified in the Trailer Contract of Sale or the Invoice if the Customer has requested delivery and delivery and freight charges are specified in the Trailer Contract of Sale or the Invoice. The Customer must make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. Barker is not responsible for any damage to the Goods during delivery.
5.2 Unless specified otherwise in the Trailer Contract of Sale or the Invoice, delivery and freight charges are payable by the Customer at the same time as the Price is due to be paid.
5.3 Barker will use all reasonable endeavours to comply with the Customer’s particular delivery requirements. Where changes are made to the manufacturing processes or specifications of any Goods, however, the Customer may not cancel the whole or part of an order or claim compensation due to Barker's failure to comply with its delivery requirements or minor variations to the Goods.
5.4 If for any reason beyond the control of Barker, including without limitation, strike, trade dispute, fire, flood, accident, tempest, death, war declared or undeclared, blockade, governmental or quasi-governmental restraint, unavailability of Goods, loss or destruction of the Goods, delays in transport or an act of God, an order cannot be filled at the time required by the Customer or at all, Barker is not required to supply the Goods to the extent and for the period that it is so unable to supply the Goods, and Barker is not liable to the Customer in respect of any inability on its part to perform its obligations.
5.5 “Barker" will not accept the withholding of payment due to any delay(s) caused by the Customer’s acts or omissions however caused, including without limitation:
  1. Certification and permits required under Performance Based Standards (PBS);
  2. Availability of third party components or third party fitment services;
  3. Customer contractual obligations, including the commencement or delay of contract start dates and;
  4. The completion of other plant, buildings or infrastructure.
The Customer hereby agrees to make payment on the Completion Date as without reference to said delay(s).

6. Claims
6.1 The Customer is bound by the Warranty and must promptly notify Barker of any defects in the Goods, and must return the defective Goods to Barker in the event of a warranty claim or claim under the Consumer Guarantees.
6.2 Barker Trailers warranty document can be found on the Barker Trailers website (barkertrailers.com.au)

7. Retention of Title
7.1 The Customer acknowledges and agrees that property in and title to any Goods remains with Barker and does not pass to the Customer until Barker receives payment in full on any account of all money owing by the Customer to Barker.
7.2 Barker and the Customer further agree that until property in and title to the Goods pass to the Customer:
      1. The Customer must hold the Goods as the bailee of Barker; and
      2. The Goods must be kept separate and identifiable.
      3. If the Customer fails to make any payment in accordance with the Trailer Contract of Sale or Invoice, Barker may give notice in writing to the Customer to return the Goods to Barker and, if the Customer fails to return the Goods, Barker is hereby authorised to enter the Customer's premises or the premises of any agent at which the relevant Goods are located, without liability for trespass or any resulting damage, and retake possession of the Goods, and either keep or resell the Goods.
      4. The Customer may sell the Goods to a third party in the ordinary course of the Customer's business, provided that:
        1. The Customer must hold all proceeds from the sale or disposal of the Goods on trust for Barker in a separate account from the Customer's own money; and
        2. The Customer must account to Barker for the proceeds of the sale or disposal of the Goods until the Customer's total indebtedness to Barker is discharged.
      5. In the event that the Goods are converted into or intermingled with other Goods, property in and title to the end Goods vests in Barker; and
      6. The Customer may not charge the Goods in any way nor grant or otherwise give any interest in the Goods.
8. Personal Properties Securities Act 2009 (Cth)
8.1 The Customer acknowledges that the Contract:
      1. Constitutes a security agreement for the purposes of the PPSA; and
      2. Creates a Security Interest in all Goods described in the Contract.
      3. The Customer acknowledges and agrees that Barker may effect a registration on the PPSR in relation to any Security Interest arising under or in connection with the Contract.
8.2 The Customer agrees that it must:
      1. Promptly sign any further documents and provide any further information which Barker may reasonably require to:
        1. Register a Financing Statement or Financing Change Statement in relation to a Security Interest on the PPSR; and
        2. Register any other document required to be registered by the PPSA; and
        3. Correct a defect in a statement referred to in clause 2(a)(i) or 8.2(a)(ii).
      2. Indemnify, and upon demand reimburse, Barker for all expenses incurred in registering a Financing Statement or Financing Change Statement on the PPSR or releasing any Goods charged thereby; and
      3. Not register a Financing Change Statement in respect of any Security Interest without Barker's prior written consent; and
      4. Not register, or permit to be registered, a Financing Statement or a Financing Change Statement in relation to the Goods in favour of a third party without Barker's prior written consent.
8.3 The Customer hereby waives its right to receive any notice under the PPSA (including notice of a verification statement) unless such notice is required by the PPSA and cannot be excluded.
8.4 If chapter 4 of the PPSA applies to the enforcement of a Security Interest arising under or in connection with this Agreement, the Customer agrees that the following provisions of the PPSA will not apply to the enforcement of that Security Interest and the Customer hereby waives any rights associated with the following provisions:
      1. section 95 (notice of removal of accession), to the extent that it requires Barker to give the Customer a notice; and
      2. section 96 (when a person with an interest in the whole may retain an accession); and
      3. section 121(4) (enforcement of liquid assets - notice to grantor); and
      4. section 125 (obligation to dispose of or retain collateral); and
      5. section 130 (notice of disposal), to the extent that it requires Barker to give the Customer a notice; and
      6. section 132(3)(d)(contents of statement of account after disposal); and
      7. section 132(4)(statement of account if no disposal); and
      8. section 142 (redemption of collateral); and
      9. section 143 (reinstatement of security agreement); and
      10. section 157 (notification of verification statement).
8.5 Expressions used in this clause 8 and in the PPSA have the same meanings as when used in the PPSA.

Risk
9.1 Risk in the Goods passes to the Customer upon the Goods being dispatched for delivery. The Customer accepts all risk involved in the use and possession of the Goods.
9.2 The Customer must insure the Goods against all loss or damage, and Barker's interest must be noted on such insurance policy.

10. Limitation of Liability
10.1 Barker accepts no responsibility and is not liable for any direct or indirect, special or consequential loss or damage or injury to any person, corporation or other entity in connection with a Contract or the Goods, unless that loss or damage or injury resulted from Barker’s breach of the Consumer Guarantees.
10.2 Except as the Terms specifically state, or as contained in any express warranty provided in relation to the goods or services, the agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services or any contractual remedy for their failure.
10.3 To the fullest extent permissible by law, Barker's liability to the Customer is limited to the lesser amount of:
      1. the cost of replacing the Goods; and
      2. the cost of repairing the Goods,

provided always that Barker's liability will not exceed the amount paid or payable by the Customer under the relevant Contract.
10.4 Nothing in the Terms is to be interpreted as excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be so excluded, restricted or modified.
11. Cancellation
11.1 If Barker is unable to deliver or provide the goods or services, then it may cancel the Customer’s order (even if it has been accepted) by written notice to the Customer and all funds paid to date will be refunded.
11.2 No purported cancellation or suspension of an order or any part of it by the Customer is binding on Barker once the order has been accepted.
11.3 Barker will not be liable for any loss and damage to the Customer arising from the cancellation.

Indemnity
12.1 The Customer agrees to indemnify Barker against any liability, loss, claim or expense arising from the Customer’s breach of the Contract or from its use of the Goods including, without limitation, any damages resulting from negligence, mistake, omission or failure of performance, whether or not resulting from any act of Barker or its agents.

13. Dispute Resolution
13.1 If a dispute arises out of or relating to a Contract (a Dispute), either party may notify the other party of the nature and particulars of the Dispute, and the parties must, within 7 days of the delivery of such notice, commence discussions to attempt to resolve the Dispute in good faith, without the necessity of resorting to any formal proceedings.
13.2 If the Dispute is not resolved within the next 10 days, either party may refer the Dispute to mediation in accordance with, and subject to, the mediation rules of the Australian Commercial Disputes Centre (ACDC). The parties agree that they must bear the costs of mediation under this clause 14
13.3 If neither party refers the dispute to mediation within 24 days of delivery of the initial notice of the Dispute, either party may commence court proceedings in respect of the Dispute.

14. Intellectual Property
14.1 The Customer acknowledges that no rights to any intellectual property in the Goods (including, without limitation, patent, trademark, design, copyright or plant breeder’s rights) are transferred to the Customer.
14.2 The Customer must notify Barker immediately if the Customer’s use of the Goods results in an actual or alleged infringement of a third party's intellectual property rights.
14.3 The Customer is solely responsible for any infringement of the intellectual property rights of any third party resulting from the Customer’s use of the Goods, and the Customer must indemnify Barker for any costs, expenses, damages or liability incurred by Barker arising from any such infringement.

15. Subcontracting
15.1 Barker may sub-contract all or any part of its rights and obligations under any Contract without the Customer's consent.

16. Enforcement Expenses and Costs
16.1 The Customer agrees that it must pay to Barker on demand any expenses, fees and disbursements incurred by Barker in recovering any amount owing to it by the Customer, including any reasonable debt collection agency fees and legal expenses and any costs incurred by Barker in respect of any order cancelled by the Customer.

17. Jurisdiction
17.1 The Contract between Barker and the Customer is made in the State of Victoria, and the parties agree to submit all disputes arising between them to the courts of such State.

18. Notices
18.1 A notice must be in writing and handed personally or sent by email or prepaid mail to the last known address of the addressee.
18.2 Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by email are deemed received upon confirmation of successful transmission.

19. Entire Agreement
19.1 Barker and the Customer acknowledge that the Contract constitutes the entire agreement between them, and that the only enforceable obligations and liabilities of Barker and the Customer in relation to the subject matter of the Contract are contained herein and in the Consumer Guarantees.
19.2 All representations, communications and prior agreements are superseded by these Terms.

20. Variation
20.1 Barker may change these Terms at any time if it has given to the Customer at least 30 days’ notice in writing of the proposed change.