In these Terms unless the context requires otherwise:
- AASB 15 means the Australian Accounting Standard Revenue from Contracts with Customers.
- 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 (Cth).
- Completion Date means the date of which the Customer is advised the trailer is ready for pick up or delivery, which ever applies.
- Contract means a contract arising between the Customer and Barker for the provision of Goods.
- Customer means the Customer described in the Purchase Order or Trailer Contract of Sale.
- Deposit means the Deposit described in the Purchase Order or Trailer Contract of Sale.
- Goods means any trailer or any part of the trailer or any other goods supplied to the Customer by Barker.
- GST means the goods and services tax levied under the GST Act;
- GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time;
- 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 means the Performance-Based Standards Scheme: Standards and Vehicle Assessment Rules approved by the Australian Transport Council on 3rd October 2007 as amended from time to time.
- 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, which is the greater of the amount set out in the Trailer Contract of Sale, Purchase Order or Invoice.
- Purchase Order means a Customer generated Purchase Order submitted by the Customer to Barker for the purchase of Goods or a quote submitted by Barker to the Customer specifying the Price for the Goods.
- Terms means these Terms and Conditions of sale.
- Trailer Contract of Sale means the Barker provided document that can take the place of a Purchase Order.
- Warranty means the manufacturer’s warranty, a copy of which is available upon request.
The Customer agrees and acknowledges that:
- 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.
- Barker will not supply Goods to the Customer on any other terms or conditions.
- The Customer is deemed to have agreed to these Terms upon signing any trade contract (including a Trailer Contract of Sale or Purchase Order) or agreement with Barker or by taking delivery of the Goods supplied by Barker.
- Upon Barker receiving a Trailer Contract of Sale or Purchase Order, a contract arises for the manufacture and supply of Goods described in the Trailer Contract of Sale or Purchase Order for the Price and on these Terms.
- If the Customer requests an inspection of the trailer/s before delivery, inspection of the trailer/s MUST be carried out within 5 business days of the trailer/s Completion Date.
- If the Customer does not notify Barker of any default of the Goods within the 5 business days, the Customer is deemed to have accepted the Goods and must not make any claim in respect of the Goods or that the Goods do not comply with the Contract.
- The Customer must pay the Price in the manner and on the Completion Date or the date set out in the Purchase Order or Trailer Contract of Sale (as applicable).
- Barker may vary the Price at their discretion by giving written notice of the change in Price to the Customer. The customer may cancel the order in writing within seven (7) days receipt of the written notice of the change of price.
- Unless specifically stated on the Invoice, the Price excludes GST. GST is payable by the Customer in addition to the price.
- 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 the Reserve Bank of Australia Cash Target Rate plus 400 basis points 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.
- The Customer may not set off against the Price any amounts due from Barker.
- If inspection of trailer/s was undertaken, payment is required to be made within 48 hours of the inspection date, this is not negotiable.
- If after inspection, Barker is required to perform further work to the Goods, payment is due within 48 hours of Barker confirming the further work has been completed. If the work is required due to the Customer adding specifications which are not within the scope of the Purchase Order or Trailer Contract of Sale, Barker is entitled to charge the Customer for this additional work.
If the Purchase Order or Trailer Contract of Sale includes provision for payment of a Non-Refundable Deposit (10%), then:
- 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 the Purchase Order or Trailer Contract of Sale; and
- the Deposit is immediately released to Barker Trailers; and
- the Customer is not entitled to a refund of the Deposit unless the Customer makes a valid claim for its return under the Warranty or a claim under the Consumer Guarantees.
Delivery and Force Majeure
- Barker will deliver the Goods to the Customer's address as specified in the Purchase Order, 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.
- Unless specified otherwise in the, Purchaser Order, Trailer Contract of Sale or the Invoice, delivery and freight charges are not included in the Price, and are payable by the Customer at the same time as the Price is due to be paid.
- 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, 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.
- If for any reason beyond the control of Barker, including without limitation, strike, lockout, riot, industrial action, trade dispute, fire, flood, storm, accident, tempest, death, epidemic or pandemic (including the occurrence or subsistence of Covid-19 or related strain of that virus), war declared or undeclared, blockade, governmental or quasi-governmental restraint, unavailability of Goods, material shortage, loss or destruction of the Goods, delays in transport or an act of God (Force Majeure Event), 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, and no such failure will entitle the Customer to cancel an order or withhold payment.
- Barker will not accept the withholding of payment due to any delay(s) caused by a third party’s or a Customer’s acts or omissions however caused, including without limitation:
i. certification and permits required under PBS;
ii. availability of third party components or third party fitment services;
iii. Customer contractual obligations, including the commencement or delay of contract start dates;
iv. the completion of other plant, buildings or infrastructure; And
v. Customer or third party inspection.
- The Customer hereby agrees to make payment on the Completion Date regardless of any delays.
Bill and Hold
Where the Customer is notified that the Goods are ready for pick up or delivery, the Customer has paid for the Goods and there is a delay in the Customer either picking up the Goods or making the necessary arrangements for delivery, the Customer agrees and acknowledges that:
- the Goods are complete and available for immediate pickup or delivery;
- the Customer has no intent of cancelling the order or seeking a refund;
- the Customer requests that the Goods be held on their behalf until pick up or delivery takes place;
- Barker is holding (storing) the Goods on behalf of the Customer without charge to the Customer;
- risk in the Goods passes to the Customer upon the Goods being completed and made available for pickup or delivery;
- the Customer will schedule a pickup or delivery date with Barker as soon as possible; and
- for the purposes of AASB 15, Barker may recognise the revenue on a bill and hold basis when the Goods are completed, made available for pickup or delivery and have been paid for by the Customer without any need to adjust the revenue recognised for the relevant financial year the revenue has been recognised in.
Barker may in its absolute discretion (at any time and regardless of whether or not the Customer has complied with the Terms) terminate a Contract if there are significant increases in the price of materials required to supply the Goods or there is a Force Majeure Event which by the nature or longevity of the event prevents Barker from supplying the Goods.
- 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.
- Barker may reserve the right at any time to substitute any parts or components specified, of a similar standard or higher, due to reasons including availability/supply chain but not limited to and excluding axles and suspension at no additional cost to the Customer.
- The Customer acknowledges the Goods sold:
i. are of merchantable quality;
ii. are free from defects; and
iii. are fit for the specified purpose.
- The Customer must not make any claim and Barker will not be liable for any loss, damage, expense or claim arising directly or indirectly from any imperfections, damage, variations in colour or texture or other defects in respect of such Goods.
- Except as expressly set out, Barker makes no express warranties or other representations under these Terms.
Retention of Title
- 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.
- Barker and the Customer further agree that until property in and title to the Goods pass to the Customer:
i. the Customer must hold the Goods as the bailee of Barker; and
ii. the Goods must be kept separate and identifiable.
- If the Customer fails to make any payment in accordance with the Purchase Order, 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.
- The Customer may sell the Goods to a third party in the ordinary course of the Customer's business, provided that:
i. 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
ii. 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.
- 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 the Customer may not charge the Goods in any way nor grant or otherwise give any interest in the Goods.
Personal Properties Securities Act 2009 (Cth)
- In this clause, terms which are defined in the PPSA have the meaning given to them in the PPSA.
- The Customer acknowledges that the Contract:
i. constitutes a security agreement for the purposes of the PPSA; and
ii. creates a security interest in all Goods described in the Contract and their proceeds.
- 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.
- At the request of Barker, the Customer agrees to promptly execute any documentation necessary, or to do anything else required by Barker, to ensure that the security interest created under the Contract will constitute a first ranking, perfected security interest over the Goods and their proceeds. This includes providing any information necessary for Barker to complete a financing statement or financing change statement.
- The Customer waives the Customer's right to receive a copy of a verification statement under the PPSA.
- The Customer agrees to reimburse Barker for all costs and charges incurred, expended or payable by Barker in relation to the filing of a financing statement or financing change statement in accordance with the Contract.
- Risk in the Goods passes to the Customer upon the Goods being completed and made available for pickup or delivery. The Customer accepts all risk involved in the use and possession of the Goods.
- The Customer must insure the Goods against all loss or damage, and Barker’s interest must be noted on such insurance policy until the title to the Goods passes to the Customer.
Limitation of Liability
- 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.
- To the fullest extent permissible by law, Barker’s liability to the Customer is limited to the lesser amount of:
i. the cost of replacing the Goods; and
ii. 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 Contract.
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.
- 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.
- 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 equally.
- 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.
- 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.
- 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.
- 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.
Barker may sub-contract all or any part of its rights and obligations under any Contract without the Customer's consent.
Enforcement Expenses and Costs
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.
Time is of the essence of these Terms.
If any term, agreement or condition of these Terms or the application thereof to any person or any circumstance shall be or become illegal, invalid or unenforceable, the same shall be read down, if such reading down is possible, and if found to be impossible, shall be severed and the remaining terms, agreements and conditions shall not be affected.
These Terms are to be interpreted in accordance with the Acts of the State of Victoria, Australia, and the parties submit to the jurisdiction of the Courts of that State.
A provision of these Terms which can, and is intended to, operate after a certain date remain effective.
- The Customer acknowledges the confidential nature of its dealings with the Customer and Barker’s intellectual property rights in and to the Goods.
- The Customer must not, without Barker’s prior consent in writing, copy or disclose or cause to be copied or disclosed any details of its dealings with Barker to a third party except with the prior written consent of Barker.
- Barker and the Customer acknowledge that the Contract constitutes the entire agreement between them, and that the only additional 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.
- All representations, communications and prior agreements are superseded by these Terms.
- Any attempt by the Customer to impose any variation or additional terms inconsistent with these Terms will not bind Barker.