1. Interpretation

In these Terms and Conditions unless the contrary intention appears:

“eForklift” means eForklift Pty Ltd ABN 29 626 322 692 .

“Additional Charges” includes all delivery, handling and storage charges,  interest, legal and other costs of recovery of unpaid money and all other government imposts and all money, other than the Purchase Price, payable by the Customer to eForklift arising out of the sale of the Goods.

“Customer” means the person or entity to or for whom the Goods are to be supplied by eForklift.

“Goods” means the goods sold to the Customer by eForklift.

“Purchase Price” means the Quotation provided by eForklift or such other price as may be agreed by eForklift and the Customer prior to delivery of the Goods, such price to be inclusive of GST.

“Quotation” means the GST inclusive price(s) quoted based upon the costs and conditions at the time of quoting and which is valid only for the period specified in that quotation after which it is subject to change without notice.

  1. Order for Goods

2.1 An order given to eForklift is binding on eForklift and the Customer, if:

(a) a written acceptance is signed for or on behalf of eForklift; or

(b) the Goods are supplied by eForklift in accordance with the order.

2.2 An acceptance of the order by eForklift is then to be an acceptance of these Terms and Conditions by eForklift and the Customer and these Terms and Conditions will override any conditions contained in the Customer’s order. eForklift reserves the right to accept a part only of any order by notifying the Customer in writing or by delivering the Goods to the Customer.  No order is binding on eForklift until accepted by it.

2.3 An order which has been accepted in whole or in part by eForklift cannot be cancelled by the Customer without obtaining the prior written approval of eForklift, which  may refuse in its absolute discretion.

2.4 Order cancellation fees may be charged at the discretion of eForklift.

  1. Limitation of Liability

3.1 The liability of eForklift in respect of a breach of a consumer guarantee or any warranty made under these Terms and Conditions for any Goods not of a kind ordinarily acquired for personal, domestic or household use is limited, to the extent permitted by law and at the option of eForklift to:

(a)   replacing the Goods or the supply of equivalent Goods;

(b) the repair of the Goods;

(c) the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or

(d) the payment of the cost of having the Goods repaired.

3.2 To the extent permitted by law, all other warranties whether implied or otherwise, not set out in these Terms and Conditions are excluded and eForklift is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Customer for:

(a) any increased costs or expenses;

(b) any loss of profit, revenue, business, contracts or anticipated savings;

(c) any loss or expense resulting from a claim by a third party; or

(d) any special, indirect or consequential loss or damage of any nature whatsoever caused by eForklift’s failure to complete or delay in completing the order to deliver the Goods.

3.3 Any claims to be made against eForklift for short delivery of Goods must be lodged with eForklift in writing within 7 days of the delivery date.

  1. Delivery

4.1 The times quoted for delivery are estimates only and eForklift accepts no liability for failure or delay in delivery of Goods.  The Customer is not relieved of any obligation to accept or pay for Goods by reason of any delay in delivery.  Goods may be delivered by instalments at the discretion of eForklift.

4.2 Delivery occurs:

(a) at the premises of eForklift if the Goods are to be collected by the Customer or the Customer has made its own arrangements for a carrier or agent organised by the Customer to collect the Goods; or

(b) at the address nominated at the time of the order if eForklift agreed to deliver the Goods at the time of the order and at the Customer’s costs.

4.3. Risk in the Goods passes on delivery to the Customer.

4.4 All Additional Charges are payable by the Customer in addition to the Purchase Price of the Goods.

4.5 Except as required by law, return of Goods will not be accepted by eForklift except by prior agreement in writing with eForklift.  Any Goods returned may, at the discretion of eForklift, be subject to a restocking charge of 10% of the Purchase Price of those Goods.

  1. Price and Payment

5.1 eForklift will endeavour to supply the Goods in accordance with the Quotation, however prices quoted are subject to currency variations up to the time of delivery.

5.2 Except where credit terms have been extended pursuant to clause 5.3, the Customer must pay the Purchase Price in cash prior to delivery.

5.3 Where an application for credit has been approved by eForklift, payment is due within 30 days from the date of the invoice. Interest is charged at the rate of 10% per annum, calculated on a daily basis, from the expiry of that period until the date payment is received by eForklift.

5.4 If the Customer is in default, the Customer agrees to pay eForklift all costs and disbursements including legal costs on a solicitor and own client basis incurred by eForklift in collecting or attempting to recover money outstanding.

5.5 If the Customer is in default, eForklift may report such default to credit agencies and the Customer acknowledges this may affect any future credit application.

  1. Retention of Title

6.1 Ownership, title and property of the Goods remains with eForklift until payment in full for the Goods and all sums due and owing by the Customer to eForklift on any account has been made.  Until the date of payment:

(a) eForklift has the right to re-sell the Goods in the ordinary course of business;

(b) the Goods are always at the risk of the Customer.

6.2 The Customer is deemed to be in default immediately upon the happening of any of the following events:

(a) if any payment to eForklift is not made promptly before the due date for payment;

(b) if the Customer ceases to carry on business or stops or suspends payment or states its intention of so doing or is unable to pay its debts as they fall due or if any cheque or bill of exchange drawn by the Customer payable to eForklift is dishonoured;

6.3 In the event of a default by the Customer or if eForklift has reasonable grounds to believe that the Goods have been or will be destroyed, damaged, endangered or removed from the “place of delivery” whilst any amount of money is payable to eForklift, then without prejudice to any other rights which eForklift may have at law or under this contract:

(a) eForklift or its agents may without notice to the Customer enter the Customer’s premises or other premises where the Customer has located the Goods and the Customer agrees to indemnify and keep indemnified eForklift from any claim whatsoever by any third party person or company in possession arising out of any action required by eForklift to recover such Goods;

(b) eForklift may recover and resell the Goods;

(c) if the Goods cannot be distinguished from similar Goods which the Customer has or claims to have paid for in full, eForklift may in its absolute discretion seize all goods matching the description of the Goods and hold same for a reasonable period so that the respective claims of eForklift and the Customer may be ascertained.  eForklift must promptly return to the Customer any goods the property of the Customer and eForklift is in no way liable or responsible for any loss or damage to the Goods or for any loss, damage or destruction to the Customer’s business howsoever arising from the seizure of the Goods.

(d) In the event that the Customer uses the Goods in some manufacturing or construction process of its own or some third party, then the Customer must hold such part of the proceeds of sale of such manufacturing or construction process as relates to the Goods in trust for eForklift.  Such part will be an amount equal in dollar terms to the amount owing by the Customer to the eForklift at the time of the receipt of such proceeds. The Customer will pay eForklift such funds held in trust upon the demand of eForklift.

  1. Personal Properties Securities Act (“PPSA”)

7.1 Defined terms in this clause have the same meaning as given to them in the PPSA.

7.2 eForklift and the Customer acknowledge that these Terms and Conditions constitute a Security Agreement and gives rise to a Purchase Money Security Interest (“PMSI”) in favour of eForklift over the Goods supplied or to be supplied to the Customer as Grantor pursuant to the Terms and Conditions.

7.3 The Goods quoted under these Terms and Conditions fall within the PPSA classifications of ”Other Goods” or “Motor Vehicles” acquired by the Customer pursuant to these Terms and Conditions.

7.4 eForklift and the Customer acknowledge that eForklift, as Secured Party, is entitled to register its interest in the Goods supplied or to be supplied to the Customer as Grantor under the Terms and Conditions on the PPSA Register as Collateral.

7.5 To the extent permissible at law, the Customer:

(a) waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer, as Grantor, to eForklift.

(b) agrees to indemnify eForklift on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the;

(i) registration or amendment or discharge of any Financing Statement registered by or on behalf of eForklift; and

(ii) enforcement or attempted enforcement of any Security Interest granted to eForklift by the Customer.

(c) agrees that nothing in sections 130 to 143 of the PPSA will apply to the Terms and Conditions or the Security under the Terms and Conditions;

(d) agrees to waive its right to do any of the following under the PPSA:

(i) receive notice of removal of an Accession under section 95;

(ii) receive notice of an intention to seize Collateral under section 123;

(iii) object to the purchase of the Collateral by the Secured Party under section 129;

(iv) receive notice of disposal of Collateral under section 130;

(v) receive a Statement of Account if there is no disposal under section 130(4);

(vi) receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.

(vii) receive notice of retention of Collateral under section 135;

(viii) redeem the Collateral under section 142; and

(ix) reinstate the Security Agreement under section 143.

  1. General

8.1 These Terms and Conditions are to be construed in accordance with the laws from time to time in the State of New South Wales and the Commonwealth of Australia.

8.2 These Terms and Conditions contain all of the terms and conditions of the contract between the parties and may only be varied by agreement in writing between the parties.

8.3 Any conditions found to be void, unenforceable or illegal may, to that extent be severed from the Agreement.

8.4 No waiver of any of these Terms and Conditions or failure to exercise a right or remedy by eForklift will be considered to imply or constitute a further waiver by eForklift of the same or any other term, condition, right or remedy.