Terms and Conditions

1. Application of Terms

(a) The terms set out in this appendix (Terms) apply in every case where The R & T Pigdon Family Trust ACN 657 206 945 trading as Rivlow Portables Pty Ltd provides goods or services of any kind (Goods) to the Customer placing the order or on whose behalf the order is placed (Customer), unless otherwise agreed in writing between Rivlow Portables and the Customer. Acceptance of Goods by the Customer is conclusive evidence before any court that these Terms (as varied under clause 11.15) apply and are binding on it.

(b) If there is any inconsistency between these Terms and any written quote for the provision of Goods (Quote), the terms of the Quote will prevail. 

2. Payments by the Customer

(a) A 50% non-refundable deposit is due upon acceptance of Quote. 

(b) All prices quoted are ex Rivlow Portables Hopeland Yard, unless otherwise stated. 

(c) The Customer must pay the whole amount of any balance due shown on an invoice or statement issued by Rivlow Portables (Amount Payable) on or before the due date for payment shown on the invoice or statement (Due Date), which is within 7 days from the date of the invoice or statement (irrespective of the Delivery Date), unless otherwise stated. 

(d) An Amount Payable by the Customer under these Terms must be paid without deduction, retention or set-off of any kind and for any reason. 

(3) If the Estimated Delivery Date is delayed at the Customer’s request for more than 7 days, then payment of the Amount Payable less the Deposit paid, if any, will become immediately due and payable to Rivlow Portables, together with any applicable storage costs. 

(f) Where the Customer seeks to vary the Estimated Completion Date or Estimated Delivery Date, Rivlow Portables will advise the Customer of any additional cost involved in such variation, including any storages costs, and the Customer will immediately pay such variation cost, in addition to the Amount Payable. 

(g) Rivlow Portables may appropriate any money paid to it by the Customer in such manner and at such times as Rivlow Portables, in its absolute discretion, determines. 

(h) The amount stated in a certificate signed by Rivlow Portables duly authorised representative or solicitor as being due and payable by the Customer to Rivlow Portables under these Terms is prima facie evidence that such amount is owing. 

(i) Rivlow Portables may, at its discretion, apply a credit balance in any of the Customer’s trading accounts with Rivlow Portables towards satisfaction of a debit balance in any of the Customer’s other trading accounts. 

(j) Payment by cheque or other negotiable instrument is not deemed to be payment of any money payable until the cheque or other negotiable instrument is met on first presentation for payment. 

3. Installation

(a) Where a Customer requires installation of the Goods, Rivlow Portables will use its best endeavours to install the Goods at the Customer’s nominated location at such time and on such terms as agreed between the client and Rivlow Portables. 

4. Retention of Title

(a) Title to all Goods purchased by the Customer that have not been paid for (Bailed Goods) remains with Rivlow Portables until payment is received full. 

(b) The Customer must hold all Bailed Goods in the possession of the

(i)Customer: as fiduciary, bailee and agent for Rivlow Portables; and 

(ii)in such a manner that the Bailed Goods remain clearly identifiable and are able to be matched to specific invoices. 

(c) If the Customer or any person who has guaranteed the due payment of the Customer’s debts to Rivlow Portables:

(i) becomes an ‘externally-administered body corporate’ within the meaning of the Corporations Act 2001;

(ii) has any step taken for its winding up or dissolution; 

(iii) holds a meeting of directors which considers a resolution that an administrator should be appointed; 

(iv) is insolvent within the meaning of the Corporations Act 2001, or is taken or presumed to be insolvent; 

(v) commits an ‘act of bankruptcy’ within the meaning of section 40 of the Bankruptcy Act 1966, as amended from time to time; 

(vi) has distress, attachment or other execution levied or enforced over any of its property; 

(vii) fails to pay the entire Amount Payable in accordance with these Terms; 

(viii) breaches any other provision of these Terms or any other agreement with Rivlow Portables; or 

(ix)if, without the prior consent of Rivlow Portables, there is a change in control of the Customer (as defined in the Corporations Act 2001) or the Customer’s business is sold to another person, 

(d) Rivlow Portables may sell or otherwise dispose of any Bailed Goods recovered by Rivlow Portables under this clause 4 in its absolute discretion and on its own account, without limitation to any other rights which Rivlow Portable may have. 

(e) the Customer must immediately notify Rivlow Portables and Rivlow Portables may, at its election and without prejudice to other rights which Rivlow Portables may have: 

(f) This clause 4 is for the benefit of Rivlow Portables, and Rivlow Portables may waive the benefit of this clause by giving notice in writing to the Customer at any time.

(g) Despite the other provisions of this clause 4, and without limiting its rights in any way, Rivlow Portables may take any action it deems necessary, including legal proceedings, to recover any Amount Payable as a liquidated debt.

(h) The Customer acknowledges and agrees:

(i) that Rivlow Portables owns the Bailed Goods and has a security interest in the Bailed Goods which extends to the proceeds (including any account) and any accession; 

(ii) that to the extent to which the money owing by the Customer to Rivlow Portables under these Terms represents all or part of the purchase price owing to Rivlow Portables in respect of the Bailed Goods, that security interest will be a purchase money security interest; 

(iii) that the Customer must not sell, transfer, encumber or otherwise deal with any Bailed Goods without the prior written consent of Rivlow Portables, which consent Rivlow Portables may withhold in its absolute discretion; 

(iv) to execute any documents and provide all relevant information and full cooperation to Rivlow Portables to ensure Rivlow Portables has a first ranking perfected security interest in the Bailed Goods under the Personal Property Securities Act 2009 (Cth) (PPSA); 

(v)not to change the Customer’s name or contact details (including address) without Rivlow Portable’s prior written consent; and 

(vi) that Rivlow Portables may register any financing statement, financing change statement or other documents and do all other things which are necessary or desirable to perfect and maintain Rivlow Portable’s security interest under these Terms, to preserve its interest in the Bailed Goods and to realise Rivlow Portable’s security interest with the agreed priority, at the Customer’s expense. 

(i) Clauses 8(d) to 8(g) inclusive of these Terms apply to the security interest referred to in this clause 4.

5. Risk in Goods and Customer Obligations

(a) All Goods purchased by the Customer are at the risk of the Customer from the time the Goods are delivered to the Customer or its nominated agent. Delivery is deemed to occur when the Goods are delivered to the Customer or its nominated agent, whether Rivlow Portables arranges, procures or effects the transport of the Goods at the request of the Customer or otherwise. 

(b) The Customer must inspect all Goods delivered to the Customer or its nominated agent within 24 hours of delivery to the applicable Premises (Inspection Period) in order to ensure that the Goods delivered are as ordered by the Customer and are not delivered in a damaged state. The Customer must notify Rivlow Portables within the Inspection Period if the Goods are found to be other than as ordered by the Customer, or have been delivered in a damaged state. 

(c) Subject to clause 6(a)(v), if the Customer has not notified Rivlow Portables within the Inspection Period that the Goods delivered were not as ordered by the Customer, or that Goods were delivered in a damaged state, then the Goods will be deemed to have been delivered in good condition and as ordered by the Customer.

(d) To the extent permitted by law, if the Customer is in breach of these Terms, Rivlow Portables may (without prejudice to any other rights) repossess the Bailed Goods and the Customer licences Rivlow Portables and its employees and agents to enter its Premises at any time without notice for such purpose, with all related costs of Rivlow Portables to be paid by the Customer on demand.

6. Liability

(a) Goods supplied by Rivlow Portables are deemed to be defective if the Goods:

(i) are not of merchantable quality; 

(ii)are not fit for any purpose for which they are acquired by Customer; 

(iii) do not conform to any sample, specification or other description given to Rivlow Portables by the Customer in relation to the Goods; 

(iv) being in the nature of services, are not of a reasonable standard, quality, value or grade; or 

(v)do not comply with any consumer guarantee or implied warranty applicable to the supply of the Goods which cannot be excluded (including under the Competition and Consumer Act 2010 (CCA)). 

(b) When Goods are defective (as defined in clause 6(a)) Rivlow Portables may, at its option, elect to:

(i) replace the Goods; or 

(ii) repair the Goods or reimburse the Customer for the cost of repairing the Goods; or 

(iii) in the case of Goods being in the nature of services, re-supply the service; or 

(iv) if payment of the purchase price for the Goods has not been made by the Customer – release the Customer from any obligation to pay the purchase price; or 

(v) if payment of the purchase price for the Goods has been made by the Customer – refund the purchase price to the Customer, subject to the Customer, where applicable, first restoring the unencumbered ownership of the Goods to Rivlow Portables; and 

(vi) in any case, reimburse to the Customer any cost incurred by the Customer in transporting back to Rivlow Portables. 

(c) To the extent permitted by law and other than any remedies the Customer may have under the CCA, the sole remedies of the Customer under or in relation to these Terms or the supply of Goods under them, whether in contract, in tort (including the law of negligence), under statute or otherwise, are only as specified in these Terms and are subject to the limitations set out in clause 6(d) and the following limitations: 

(i) Rivlow Portables, and Rivlow Portable’s officers, employees and agents, will not have any liability or other obligation to any person or other entity, including the Customer, arising out of, or in any way directly or indirectly connected with, the matters referred to in clause 6(a) except to comply with its obligations (subject to the other provisions and limitations in this clause 6) under clause 6(b); 

(ii) all conditions, warranties and other terms pertaining to the condition or quality of Goods are excluded to the extent permitted by law (including the CCA); and 

(iii) the Customer must not make any claim or demand, or take any action or other proceeding against Rivlow Portables, or any of Rivlow Portable’s officers, employees or agents, for any loss of profits, loss of revenue, loss of anticipated savings, loss or corruption of data, loss of contract of opportunity, loss of goodwill or any indirect, special or consequential loss or damage of any nature arising out of, or in any way directly or indirectly to these Terms and/or the supply of Goods under them including in relation to any of the matter referred to in clause 6(a). 

(d) Clauses 6(a) to 6(c) inclusive do not apply where the goods are ‘Used Goods’. The Customer agrees to accept the condition of the Used Goods on an ‘as is’ basis and, to the extent permissible by law, releases Rivlow Portables from liability in relation to Used Goods. 

(e) To the extent permitted by law, Rivlow Portable’s total liability for any claim under or in relation to these Terms and/or the supply of Goods or Used Goods under them is limited to the price paid by the Customer for the Goods or Used Goods the subject of the claim. 

7. Interest and Enforcement Costs

(a) If any Amount Payable is not paid by the Due Date in accordance with these Terms, Rivlow Portables may charge and recover interest on the outstanding amount at a rate equivalent to 3% per annum above the annual business overdraft interest rate of its principal banker, as determined and calculated by Rivlow Portables, in its discretion. 

(b) If the Customer breaches its obligations under these Terms, the Customer must immediately pay to Rivlow Portables on demand, all costs and expenses incurred by Rivlow Portables in the enforcement of these Terms including, without limitation, costs and expenses including legal costs (on a full indemnity basis) freight costs, storage costs, electricity and telephone charges (except to the extent such costs and expenses directly result from Rivlow Portable’s breach of these Terms). The Customer authorises Rivlow Portables to debit any trading account held by the Customer (Trading Account) with such costs and expenses. 

8. Security Interest 

(a) The Customer must: 

(i) grant a security interest in all of its present and after-acquired personal property (as defined in the PPSA) (Personal Property) and in all of its present and future rights in relation to any Personal Property to Rivlow Portables; 

(ii) charge as a fixed charge all of its other rights, property and undertaking of any kind and wherever situated, whether present of future including, without limitation, any interest in any real property (both legal and beneficial) (other than any Personal Property to which the PPSA applies) to Rivlow Portables; and 

(iii) agree to mortgage all of its present and future interests in any real property to Rivlow Portables, on request from Rivlow Portables, as security for the performance of its obligations under these Terms including payment of any Amount Payable. 

(b) The Customer must: 

(i) within 10 days of request from Rivlow Portables, execute such documents as Rivlow Portables requires to perfect the security interest, charge and mortgage; and 

(ii) pay on demand any duty (including any fines and penalties) assessed on the charge or mortgage. 

Unless Rivlow Portables otherwise agrees, the costs of registering a financing statement must be paid by the Customer and may be debited against the Customer’s Trading Account.

(c) The Customer acknowledges that Rivlow Portables, by virtue of the charge and mortgage, has a caveatable interest in any real property of the Customer which is or becomes subject to the charge and/or mortgage and may lodge a caveat over that property. 

(d) The Customer must appoint Rivlow Portables (and if Rivlow Portables is a corporation, each officer of Rivlow Portables for the time being) as its agent and authorised representative for the purpose of requesting information from other secured parties under section 275 of the PSSA. 

(e) Without limiting any other provision of these Terms, the Customer waives its rights to receive any notice under the PPSA (including a copy of any verification statement) unless the notice is required by the PPSA and that requirement cannot be excluded. 

(f) If Chapter 4 of the PPSA would otherwise apply to the enforcement of the security interest created under these Terms, the Customer agrees with Rivlow Portables that: 

(i) nothing in section 125, Division 6 of Part 4.3 and section 143 of the PPSA will apply to these Terms or the security interest under it; and 

(ii) it waives its rights to do any of the following: 

(a) object to the purchase of the collateral by Rivlow Portables under section 129; 

(b) 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; 

(c) receive a statement of account under section 132(4) if there is no disposal; and 

(d) redeem the collateral under section 142. 

(g) The Customer and Rivlow Portables will not disclose information of the kind mentioned in section 275(1) of the PPSA unless required by law. 

9. Attorney 

(a) The Customer irrevocably appoints Rivlow Portables and each of Rivlow Portable’s authorised officers, jointly and severally, to be its attorney to do any act or thing which it is required to do under these Terms. 

(b) Rivlow Portables may only exercise the power set out in clause 9(a) where the Customer (as applicable) is in breach of these Terms. Rivlow Portables may exercise its powers even if this involves a conflict of duty and even if it has a personal interest in doing so. 

(c) A third party may rely on a copy of these Terms certified by a solicitor as evidence of the appointment of Rivlow Portables as the attorney of the Customer. 

(d) The Customer must ratify all acts and things done by Rivlow Portables and its authorised officers in the exercise of the power of attorney granted in accordance with this clause. 

10. Insurance 

(a) If the Contract is for the supply of the Goods only, then the Customer at its own cost in all things will be responsible for arranging its own insurance for the Goods ex Rivlow Portables manufacturing works. 

(b) If delivery is arranged by Rivlow Portables at the Customer’s cost, then Rivlow Portables will take out an insurance policy to cover the Goods in transit. Rivlow Portables’ liability to insure will cease immediately upon delivery of the Goods to the Premises of the Customer or its authorised agent. 

(c) The Customer will ensure that it has its own Public Liability Insurance for legal liabilities to third parties for bodily injury and/or property damage, in connection with any work carried out by the Customer, its employees, agents and contractors in relation to the Contract. 

(d) The Customer will, to the extent of its negligence, indemnify Rivlow Portables, its agents, employees, successors and its permitted assigned and will keep them indemnified and forever held harmless against all losses, damages, claims and awards of any kind which may be imposed upon or awarded against either Rivlow Portables, its agents, employees, successors and/or its permitted assigns arising either directly or indirectly out of the Goods or Services. 

11. General 

11.1 Definitions

(a) Deposit means the amount of the deposit stated in the Quote; 

(b) Estimated Completion Date means the date stated in the Quote, which date may be varied by Rivlow Portables by written notice to Customer where delay is caused for reasons beyond Rivlow Portables’ control; 

(c) Estimated Delivery Date means the date stated in the Quote as the date the Goods are to be delivered to Customer, which date may be varied by Rivlow Portables by written notice to Customer where delay is caused for reasons beyond Rivlow Portables’ control; 

(d) PPSA means the Personal Property Securities Act 2009 (CTH) as amended from time to time; 

(e) Practical Completion means the date of practical completion of the works as may be advised by Pigdon Portables from time to time 

(f) Quote means the document attached to these Terms prepared by Rivlow Portables; 

(g) Order means the Customer’s acceptance of the Quote as indicated by the signing and returning of the Quote to Rivlow Portables by a person who, without more, will be deemed to be the duly authorised representative of the Customer; 

(h) Used Goods means goods owned by Rivlow Portables which have been used and may have been modified by Rivlow Portables for the purpose of the Contract or general re-use or re-sale. 

11.2 Interpretation

In these Terms, unless the context otherwise requires:

(a) a reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it; 

(b) a reference to a party to these Terms includes the party’s successors, permitted substitutes and permitted assigns and, where applicable, the party’s legal personal representatives; and 

(c) a right or obligation of any two or more persons confers that right or imposes that obligation, as the case may be, on each of them severally and on any two or more of them jointly. 

11.3 PPSA defined terms 

In these Terms, the terms: accession, account, collateral, financing statement, financing change statement, inventory, proceeds, purchase money security interest, secured party and security interest have the same meanings as in the PPSA 

11.4 Nature of Goods 

The Customer acknowledges that all Goods will be purchased for the purpose of re-supply or in connection with a business carried on by the Customer with or without other persons, and not for personal, domestic or household use. 

11.5 Intellectual property 

Rivlow Portables retains all copyright and intellectual property rights whatsoever in all materials it uses or provides to the Customer relating to the performance of the Contract. If the Customer provides Rivlow Portables with any drawings or other materials or documents then the Customer warrants that it is entitled use those documents and indemnifies and holds harmless Rivlow Portables from any claims that may be brought against Rivlow Portables in relation thereto. 

11.6 Time of essence 

Time is to be of the essence insofar as it relates to the Customer’s obligations to Rivlow Portables under these Terms. 

11.7 Delays – force majeure 

Rivlow Portables is not responsible for any delay or failure of performance occasioned or caused by strikes, riots, fire, insurrection, embargoes, failure of carriers or suppliers, inability to obtain materials or transportation facilities, acts of God or of the public enemy, governmental tariffs and quotas, compliance with any law, regulation or other governmental or court order (whether or not valid), or other causes beyond the control of Rivlow Portables, even if the cause could be alleviated by the payment of money, or the performance is prevented or delayed because of the failure by Rivlow Portables. 

11.8 No waiver

(a) A failure to exercise or a delay in exercising any right, power or remedy under these Terms does not operate as a waiver. 

(b) A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. 

(c) A waiver is not valid or binding on the party granting that waiver unless made in writing. 

11.9 Assignment 

Rivlow Portables may at any time assign its rights and interests or novate its rights and obligations (in whole or in part) under these Terms. The Customer must not assign its rights or obligations under these Terms without Rivlow Portable’s prior written consent, which consent may be refused or given subject to such terms and conditions as Rivlow Portables may determine in its absolute discretion. 

11.10 Severance 

If any provision of these Terms or their application to any person or circumstance is or becomes invalid or unenforceable, that provision will be taken to be omitted without invalidating or modifying the remaining provisions of these Terms, which will continue in full force and effect as if the invalid or unenforceable provision had not been included in them. 

11.11 Indemnities 

Each indemnity in these Terms is a continuing obligation, independent of the other obligations of the party giving it, and survives the end of these Terms or the supply arrangement between the Customer and Rivlow Portables. 

11.12 Further co-operation 

The Customer must do anything (including executing a document) Rivlow Portables reasonably requires in writing to give full effect to these Terms. 

11.13 Terms binding 

These Terms bind the Customer must personally and as trustee of any trust of which it is trustee. 

11.14 Notices

Notices in respect of these Terms may be provided to the Customer by mail or facsimile to the recipient’s address provided by it to Rivlow Portables. 

11.5 Variation of Terms 

Rivlow Portables reserves the right to vary these Terms from time to time. It may give notice of any variation of these Terms by publishing the revised Terms on its website and may (but is not obliged to) notify the Customer that it has done so on an invoice, statement or other written communication. If the Customer continues to deal with and place orders for the supply of Goods with Rivlow Portables after any such variation of these Terms, the Customer has agreed to those Terms as varied and to have taken the supply of Goods on those varied Terms. 

11.6 Governing law 

These Terms will be construed in accordance with and governed by the laws of Western Australia.