Terms & Conditions
“Swayn & McCabe” means Swayn & McCabe Pty Ltd ACN 126 013 867 and its related businesses trading under the ABN 84 126 013 867.
“Customer” means the entity that has contracted with Swayn & McCabe to buy Goods and/or Services.
“Goods” means any goods supplied by Swayn & McCabe to the Customer (or ordered by the Customer but not yet supplied) including and in no way limited to tractors and farm machinery.
“Services” means any services provided by Swayn & McCabe to the Customer.
“Price” means the cost of the Goods as agreed between Swayn & McCabe and the Customer and includes all out of pocket expenses Swayn & McCabe incurs on the Customer's behalf subject to clause 5 of this contract.
Any instructions received by Swayn & McCabe from the Customer for the supply of Goods and Services shall constitute a binding contract and acceptance of the terms and conditions contained herein.
The Customer acknowledges that these Terms and Conditions take precedence over any terms and conditions contained in any document provided by the Customer.
The Customer acknowledges that previous dealings between Swayn & McCabe and the Customer shall not have any effect on these Terms and Conditions.
PRIVACY ACT 1988 (AS AMENDED)
The Price shall, at Swayn & McCabe’s sole discretion, be:
as stated on any invoice provided by Swayn & McCabe to the Customer; or
Swayn & McCabe’s quoted price (subject to clause 7).
Unless otherwise agreed in writing, all accounts must be paid in full within thirty (30) days from the date in which Swayn & McCabe invoices the Goods and Services to the Customer.
Payment for any amount outstanding shall be deemed immediately due and payable in any of the following circumstances:
there is non-payment of any sum by the due date;
Swayn & McCabe forms the view that the Customer will not pay any sum by its due date;
the Customer is bankrupted or enters administration, liquidation or receivership;
a Court judgment is entered against the Customer and remains unsatisfied for seven (7) days;
any material adverse change in the financial position of the Customer.
Where discounts for early payment have been offered, they are only valid insofar the payment is made within the specified trading terms.
An account keeping fee of $10.00 will be charged on any overdue accounts or invoices.
Interest accrues on any amount owing after the due date at the rate of 1.5% per month, calculated daily from the first day overdue until payment.
All payments to be made by the Customer will be made without set-off (whether arising at law or in equity) or counterclaim (whether arising at law or in equity) and free and clear of any withholding or deduction whatsoever, unless prohibited by law.
The Customer shall pay (on a full indemnity basis) any and all expenses, disbursements, collection costs and legal costs which Swayn & McCabe has incurred or is liable to pay, in connection with the enforcement of any rights and/or preservation of any rights contained in this contract.
For the purposes of clause 6.7, the Customer acknowledges that collection costs may be calculated on a commission basis at a percentage rate of up to 20% of the amount due and expressly agrees to pay for those expenses as liquidated damages on demand, irrespective of whether (a) Swayn & McCabe is not liable to pay the collection agent the commission, until the Customer has made payment of the Customer’s overdue debt (or any portion thereof) and/or (b) the amount of work actually performed by the collection agent before the Customer makes a payment for an overdue debt.
Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until it results in Swayn & McCabe receiving cleared funds for the entire amount of the negotiable instrument.
Where a quotation is given by Swayn & McCabe for Goods and Services:
unless otherwise agreed, is not an offer to sell or provide Goods and Services;
unless otherwise agreed the quotation shall be valid for 60 days from date of issue;
Swayn & McCabe will not be bound by any order given until accepted in writing;
Swayn & McCabe reserves the right to alter the quotation because of circumstances beyond its control including and, in no way limited to, increases in the price charged by its suppliers for products and/or services.
Where Goods and Services are required in addition to the quotation, the Customer agrees to pay for the additional cost of such Goods and Services.
Any quotation containing a provision to supply Goods “ex-stock” is subject to fulfilment of prior orders at the date of receipt of the Customer’s order.
RISK TO GOODS AND DELIVERY
Risk in any Goods shall pass to the Customer at the time when the Goods have been delivered to the Customer;
Delivery is deemed to have taken place at the time the Goods are:
Taken physically into the Customer’s possession;
Taken physically into the possession of a carrier engaged by the Customer; or
Where agreed to be delivered “on-site”, when made available for unloading by the Customer.
The Customer shall ensure that any property where Goods are to be delivered will be accessible and free from hazards that may damage vehicles or pose a health and/or safety risk to Swayn & McCabe representatives.
Any date quoted for delivery by Swayn & McCabe is an estimate only;
Unless a guarantee is given by Swayn & McCabe in writing, providing for liquidated damages for failure to deliver by the date quoted for delivery, Swayn & McCabe will not be liable to the Customer for any loss or damage howsoever arising even if arising out of the negligence of Swayn & McCabe for failure to deliver on or before the date quoted for delivery;
Swayn & McCabe reserves the right to make deliveries to the Customer by instalments. If delivery is made by instalments the Customer is not entitled to:
terminate or cancel the order following its acceptance by Swayn & McCabe;
terminate these Terms and Conditions;
any claim, loss or damage howsoever arising from the failure of Swayn & McCabe to deliver any instalments on or before the date quoted for delivery.
TITLE AND PERSONAL PROPERTY SECURITIES ACT 2009 (CTH) (PPSA)
Whilst risk in the Goods passes on delivery, legal and beneficial title in the Goods shall remain with Swayn & McCabe until it has received payment in full for all monies owed by the Customer.
Until Swayn & McCabe has received payment in full for all monies owed by the Customer, Swayn & McCabe reserves the following rights:
legal and beneficial ownership of the Goods;
the right to enter the Customer’s premises and retake possession of the Goods;
the right to keep or resell any Goods repossessed under sub-clause 9.2.2; and
any other rights it may have at law or under the PPSA.
Where, pursuant to sub-clause 9.2.3:
Swayn & McCabe resells the Goods repossessed, it is agreed that Swayn & McCabe may credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs); or
Swayn & McCabe retains possession of the repossessed Goods, it is agreed that Swayn & McCabe may credit the Customer’s account with the invoice value less such sum as Swayn & McCabe reasonably determines on account of wear and tear, depreciation, obsolescence, loss of profit and costs.
Swayn & McCabe shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of any action taken to repossess the Goods.
If the Goods are attached, fixed, or incorporated into any property of the Customer, title in the Goods shall remain with Swayn & McCabe until the Customer has made payment for all monies owed to Swayn & McCabe and where those Goods are mixed with other property so as to be part of or a constituent of any new product, title to these products shall be deemed to be assigned to Swayn & McCabe as security for the full satisfaction by the Customer of the full amount owing between Swayn & McCabe and the Customer.
Until Swayn & McCabe receives payment for Goods in full, the Customer acknowledges that Swayn & McCabe has a Purchase Money Security Interest (“PMSI”) which attaches over the Goods and their proceeds and a Security Interest in relation to other amounts owed by the Customer to Swayn & McCabe.
Upon assenting to these Terms and Conditions, the Customer acknowledges and agrees that these Terms and Conditions constitute a Security Agreement for the purposes of the PPSA.
The Customer undertakes to do anything (such as obtaining consents, producing documents, producing receipts and getting documents completed and signed) which Swayn & McCabe asks and considers reasonably necessary for the purposes of:
ensuring that a PMSI and/or Security Interest is enforceable, perfected and effective;
enabling Swayn & McCabe to apply for any registration, or give any notification, in connection with the Security Interest created under this Agreement so that the PMSI and/or Security Interest has the priority required by Swayn & McCabe.
To the extent permitted by law, the Customer irrevocably waives its right to:
receive notices or statements under sections 95, 121(4), 125, 130, 132(3)(d), 132(4) and 135 of the PPSA;
redeem the Goods under section 142 of the PPSA;
reinstate the Agreement under section 143 of the PPSA;
receive a Verification Statement.
Nothing in clause 9 prevents Swayn & McCabe from taking collection or legal action against the Customer to recover any monies owed from time to time.
All implied conditions, warranties and undertakings other are expressly excluded to the extent permitted by law.
Where the Goods are of a kind other than goods ordinarily acquired for personal, domestic or household use, then Swayn & McCabe’s liability is limited, at its option, to anyone or more of the following:
the replacement or supply of the equivalent of the Goods;
the repair of the Goods;
the payment of the costs of replacing the Goods or acquiring their equivalent; or
the payment of the costs of having the Goods repaired.
Where the Services are of a kind other than services ordinarily provided for personal, domestic or household use, then Swayn & McCabe’s liability is limited, at its option, to any one or more of the following:
the provision of the equivalent services;
the provision of the services;
the payment of the costs of providing the Services or providing their equivalent; or
the payment of the costs of having the Services provided.
Subject to the Customer’s rights under Schedule 2 of the Competition and Consumer Act 2010 (“CCA”), Swayn & McCabe shall not be liable for:
any loss or damage of any kind whatsoever, arising from the Goods, including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from the Goods; and
the Customer shall indemnify Swayn & McCabe against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Swayn & McCabe or otherwise, brought by any person in connection with any matter, act, omission, or error by Swayn & McCabe, its agents or employees in connection with the Goods.
Manufacturer’s warranty applies to the Goods where applicable.
Swayn & McCabe warrants that the Goods supplied are of merchantable quality.
If the Customer does not notify Swayn & McCabe of any defects in Goods within 24 hours of delivery in writing, the Customer is deemed to have accepted the goods are of merchantable quality, free of defects and agrees they are prevented from subsequently pleading otherwise.
Orders placed with Swayn & McCabe cannot be cancelled without the written approval of Swayn & McCabe. In the event that Swayn & McCabe accepts the cancellation of any order placed, it shall be entitled to charge a reasonable fee for any work done to the date of the cancellation including a fee for the processing and acceptance of the Customer’s order and request for cancellation.
Swayn & McCabe may grant credit upon these Terms and Conditions to the Customer at its own discretion.
Swayn & McCabe reserves the right to withdraw or suspend credit at any time, regardless of whether the Customer is in default under the Terms and Conditions or not.
Until Swayn & McCabe grants the Customer credit by notice in writing, Swayn & McCabe will only supply Goods and/or Services to the Customer on the basis of cash in advance or payment by agreement.
LIMITED CREDIT ACCOUNT
Only single purchases to the value specified from time to time by Swayn & McCabe may be charged to a credit account.
Any purchases by the Customer which are above the specified amount are strictly;
Payment before delivery,
Payment on delivery; or
By approval of Swayn & McCabe.
The specified value for the purposes of this section is $5,000.00.
The Customer hereby charges in favour of Swayn & McCabe all of the Customer’s estate and interest in any land, freehold or leasehold, in which the Customer now has or which it may later acquire any such interest in, with payment of all monies owing by the Customer to Swayn & McCabe from time to time and hereby consents to Swayn & McCabe lodging a caveat or caveats which note Swayn & McCabe’s interest.
These terms and conditions and all matters concerning the business relationship between Swayn & McCabe and the Customer shall be governed by the law of the State of Victoria and the parties submit to the non-exclusive jurisdiction of the Courts of Victoria for the conduct of any litigation.
The Customer cannot assign these terms and conditions without the prior written consent of Swayn & McCabe.
Swayn & McCabe can assign these terms and conditions to a third party without the consent of the Customer.
The Customer acknowledges that the relationship between it and Swayn & McCabe is a commercial one and that any agreement for the provision of Goods and/or Services does not involve any Goods or Services of the kind ordinarily acquired for personal, domestic or household use or consumption.
These Terms and Conditions bind the Customer personally and as a trustee or any trusts of which the Customer is a trustee.
Machinery and Motor Vehicle sales are considered to be outside of this agreement and are strictly cash sales only, or by agreement.
If by reason of any fact, circumstance, matter or thing beyond the reasonable control of Swayn & McCabe, Swayn & McCabe is unable to perform in whole or in part any obligation under these terms and conditions, including delay in delivery, Swayn & McCabe shall be relived of that obligation under these terms and conditions to the extent and for that period that it is so unable to perform and shall not be liable to the Customer in respect of such inability.
Failure by Swayn & McCabe to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of its rights or obligations under this contract.
If any provision of this contract shall be invalid, void or illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected.
The Customer will notify Swayn & McCabe in writing of any change of ownership of the Customer or its business, or of directorships in the case of a corporate Customer, or of any other change whatsoever affecting these terms and conditions within seven (7) days from the date of such a change.
The Customer indemnifies Swayn & McCabe from and against any loss or damage incurred by it as a result of the Customer’s failure to notify Swayn & McCabe of any change in ownership.
Any variation of the terms and conditions contained in this contract must be agreed to in writing by Swayn & McCabe for it to have any legal effect.