TERMS & CONDITIONS
USE OF WEBSITE
1. Your viewing and use of the Website (which means this website, located at any of the following uniform resource locators www.gear-up.com.au and www.gear-up.ihub.com.au includes any part of these websites) as well as any contemplated or actual purchase by You of any vehicle, plant, equipment, machinery or other item of moveable property (“Chattel”) from Gear Up Wholesale Machinery Pty Ltd A.C.N. 137 730 584 trading as Gear Up Wholesale Machinery (which includes its officers, employees, agents and permitted assigns) including all Advertisements and Publications for the Sale of Chattels offered in Magazines, Electronic Brochures such as Emails or E Brochures, Online Advertising or the Gear Up Wholesale Machinery On line Shop is governed by and permitted on the condition that You irrevocably agree to the terms and conditions set out herein (“these Terms”). Further, any reference in these Terms to “You/ you” and/ or “You/ your” includes, but is not limited to, all Your officer(s), employee(s), agent(s), assign(s), successor(s), executor(s) or legal personal representative(s). Any reference to a singular includes the plural and vice versa.
2. You acknowledge and agree that Gear Up Wholesale Machinery provides you with access to the Website and Advertising Medians and, in the event that you enter into any (actual or contemplated) purchase of a Chattel from Gear Up Wholesale Machinery, such access and/ entry into a transaction (whichever applicable) is provided in consideration for, and in reliance upon, your irrevocable consent to be bound by these Terms in any dealing that you have with Gear Up Wholesale Machinery. This includes items viewed or inspected at any facility owned or operated by Gear Up Wholesale Machinery both in Australia and Overseas.
3. Gear Up Wholesale Machinery may in its absolute discretion and without any notification to you, indefinitely or for any other period of time, suspend the provision of the Website. Further, and without limitation, Gear Up Wholesale Machinery expressly makes no representation or warranty that the Website will be available for use by you at all times or at any particular time.
GOVERNING LAW
4. These Terms shall be construed in accordance with the laws of Victoria, Australia, irrespective of the physical location of any Chattel or event, and same shall be the proper law of these Terms. You hereby irrevocably agree to submit to the exclusive jurisdiction of the courts of Victoria, Australia and any courts which may hear appeals there from and agree that any proceedings commenced by you in any other Court may be permanently stayed upon application by Gear Up Wholesale Machinery and that you shall indemnify Gear Up Wholesale Machinery for any costs (including but limited to legal representation and all preparatory work in relation thereto) so incurred by Gear Up Wholesale Machinery concerning such application to stay proceedings.
TRUCKS PLANT AND EQUIPMENT HELD IN AUSTRALIA
5. The person(s) who pay the deposit and/ or the full purchase price of the Chattel may, in the absolute discretion of Gear Up Wholesale Machinery, be considered the purchaser of the Chattel at the price specified by Gear Up Wholesale Machinery.
6. Any purchase of a Chattel held in stock in Australia will require the payment of a deposit in cash, bank cheque, direct debit or by way of Credit Card or Debit Card. The balance in cash, bank cheque, or direct debit will be required prior to delivery or collection. You agree to make good and honour all payments made through the provision of Credit Card Information when provided over the phone and signing of the coupons for Credit Card Payments is not possible and or has not been completed. You forfeit any claim to challenge or dispute any charged amount when you pay over the phone with a credit card for goods purchased and delivered. This would not apply if your credit card has been used if stolen or by an unauthorised person or company.
7. No Chattel will be serviced, repaired, modified or prepared for transport until the deposit or payment in full is received (as determined by Gear Up Wholesale Machinery).
8. In the absolute discretion of Gear Up Wholesale Machinery, a deposit may secure the purchase of a Chattel for seven (7) days. After that time, if the balance owing has not been paid, Gear Up Wholesale Machinery may without any further notice to you, sell the Chattel to another purchaser and any deposit or other monies already paid by you shall be forfeited forthwith.
9. In the case of non-payment of a deposit, Gear Up Wholesale Machinery may without further notice offer the Chattel(s) for sale again and you shall indemnify Gear Up Wholesale Machinery for all costs incurred by Gear Up Wholesale Machinery to effect such a sale.
10. Deposits paid for any Chattel including placed orders for modified or fabricated items will be immediately forfeited to Gear Up Wholesale Machinery upon the cancellation or withdrawal of any order placed by You. Without limiting the foregoing, Gear Up Wholesale Machinery may use the forfeited deposit, in any manner which it determines in its absolute discretion including (but not limited to) the re-advertising and remarketing of the Chattel(s) which was/ were the subject of the cancelled/withdrawn order and any other administration, transport or other costs incurred.
TRUCKS PLANT AND EQUIPMENT TO BE IMPORTED
11. Upon placing an order for the purchase of any Chattel from Gear Up Wholesale Machinery, you agree to immediately pay a 30% deposit in cash, bank cheque or direct debit and, failing receipt of such deposit by Gear Up Wholesale Machinery, no washing, packing or transport to the Port of Origin will be initiated.
12. You agree to pay the balance of any purchase owing by cash, bank cheque, or direct debit within 48 hours of the provision of a Bill of Lading for the Chattel(s) confirming the vessel departure date and estimated arrival date at the final Port of Destination.
13. Failure to pay the balance by the required date will result in you irrevocably assuming liability for any Port Holding Fees, Shipping and Transport or other charges that may accrue plus interest on these charges of 12.5% per annum calculated daily.
14. You forever release Gear Up Wholesale Machinery for any loss, damage or delays in shipping due to transshipping through various ports and carriers, freight embargoes, severe weather, quarantine inspection, port clearance, customs clearance or any other factor not under the direct control of Gear Up Wholesale Machinery.
OTHER TERMS AND CONDITIONS
15. All prices are listed as GST exclusive unless stated otherwise by Gear Up Wholesale Machinery in its sole and absolute discretion. Prices do not include stamp duty, transfer fees or other statutory charges that may apply. Subject to all applicable laws, certain items which are exported by Gear Up Wholesale Machinery from Australia may not attract GST liability, however, such must be expressly agreed to in writing by Gear Up Wholesale Machinery and You.
16. If you pay a deposit and then a financing company finances the entire invoice amount, Gear Up Wholesale Machinery shall use its best endeavors to return the deposit to you within 14 days.
17. You shall pay any stamp duty and any other statutory charges where and when applicable under the relevant law as well as all delivery charges unless same is excluded in writing by Gear Up Wholesale Machinery (in the absolute discretion of Gear Up Wholesale Machinery) on an invoice that Gear Up Wholesale Machinery provides to you.
18. You consent that ownership of the Chattel shall remain with Gear Up Wholesale Machinery until Gear Up Wholesale Machinery has clear title to all monies owing to it by you and that you shall not collect the Chattel from its location until Gear Up Wholesale Machinery has clear title to all monies owing to it by you.
19. If you do not comply with any obligation imposed by these Terms, you shall immediately forfeit all monies paid by you concerning the Chattel and shall indemnify Gear Up Wholesale Machinery for any deficiency on the resale of such Chattel, together with all costs and charges consequent upon such resale as well as any legal and other enforcement expenses determined appropriate by Gear Up Wholesale Machinery to secure full payment from you of all monies owing by you to Gear Up Wholesale Machinery.
20A. Gear Up Wholesale Machinery shall only service and prepare any Chattel sold by it serviced by an independent and suitably qualified technician to the extent specified in the invoice.
20B. To secure payment of any monies owing by You to Gear Up Wholesale Machinery which may become due, You hereby charge all your interest in real property and personal property, both present and future, and (for the purpose of real property) consent to Gear Up Wholesale Machinery lodging a caveat or caveats which note the interest of Gear Up Wholesale Machinery thereunder and, if you are a company registered in Australia, you consent to Gear Up Wholesale Machinery registering a fixed and floating charge over your assets to secure the payment of such monies owing by You to Gear Up Wholesale Machinery. For the purposes of this term, and as otherwise set out in these Terms, you shall indemnify Gear Up Wholesale Machinery for all costs incurred by Gear Up Wholesale Machinery to claim any monies owing by You to Gear Up Wholesale Machinery.
LIABILITY AND INDEMNITY
21. You acknowledge and warrant to Gear Up Wholesale Machinery that:
a. You have the full authority to engage in any transactions you undertake with Gear Up Wholesale Machinery.
b. You will be liable for all costs, fees, charges and other amounts that may become payable to Gear Up Wholesale Machinery or any other person as a result of any breach set out in sub-paragraph (a) hereof.
c. You are properly authorized to provide Gear Up Wholesale Machinery with any information that you provide.
d. You are not breaching any obligation of confidence or any requirement of any applicable law relating to the privacy of personal information by providing the information to Gear Up Wholesale Machinery.
e. All information you provide to Gear Up Wholesale Machinery is true and complete in every particular.
APPLICATION OF LEGISLATION
22. Nothing in these Terms, whether express or implied, shall exclude restrict or modify any non-excludable condition, non-excludable warranty or non-excludable right set out in any applicable legislation.
LIMITATION OF LIABILITY
23. Notwithstanding anything otherwise contained in these Terms and to the fullest extent permitted by law, You irrevocably release and indemnify Gear Up Wholesale Machinery arising from any indirect or consequential loss, damage or expense of any kind or nature and you release and forever discharge Gear Up Wholesale Machinery from any such liabilities and any claims, demands or causes of action in respect thereof (“the Release”). The Release includes, but is not limited to, any obligation(s) which would be imposed on Gear Up Wholesale Machinery by operation of law (such as by the Trade Practices Act 1974 (Cth) and the Fair Trading Act [or similar legislation] in all States and Territories in Australia) and any mis-description by Gear Up Wholesale Machinery to You of any (Chattel(s) or component part(s) thereof).
EXCLUSION OF WARRANTIES AND LIABILITY
24. You accept that any Chattel which is offered for sale by Gear Up Wholesale Machinery is in its current state of repair and condition at the time of the sale with all defects and faults latent, patent or otherwise (if any).
25. You accept that the information provided describing any Chattel included on the Website, Magazine, Electronic Brochures such as Emails or E Brochures, Online Advertising or the Gear Up Wholesale Machinery On Line Shop or otherwise may not always be reliable, accurate or complete and you are solely responsible to independently verify any such information prior to completing a purchase of a Chattel. Any item not inspected is sold as is and is where and the responsibility and onus will be on You to ensure that it complies with any agreement for its purchase from Gear Up Wholesale Machinery.
26. To the full extent permitted by law, Gear Up Wholesale Machinery will not be liable for any loss, damage, cost or expense suffered or incurred by you arising, or in any way related to, the sale of any Chattel and/ or use of the Website.
27. Gear Up Wholesale Machinery is a licensed second hand dealer and as such, shall comply with all relevant legislation.
28. You acknowledge that Gear Up Wholesale Machinery will make all reasonable endeavors to establish the year of manufacture of any imported Chattel. However, if the year of manufacture is not affixed and cannot be determined from a manufacturer's serial number, compliance plate, manuals or other documentation, Gear Up Wholesale Machinery shall refer to Online Safety Systems for data specifying previous or subsequent model details to best establish the year of manufacture. Further, it remains your sole responsibility to determine the exact year of manufacture. Gear Up Wholesale Machinery may refer to the year of manufacture as the year of when the Chattel was first delivered new which may be different to the actual year of manufacture.
29. Any deficiency in a Chattel shall not vitiate the sale of that Chattel by Gear Up Wholesale Machinery to you, but Gear Up Wholesale Machinery shall not be bound to deliver to you more than is in its possession.
30. You accept that despite all reasonable precautions being taken by Gear Up Wholesale Machinery, a Chattel may be listed in various media at an incorrect price or with incorrect information due to typographical or other errors, and you solely rely on the price stated on the official invoice (or any written amendment by Gear Up Wholesale Machinery thereto).
OCCUPATIONAL HEALTH AND SAFETY
31. You acknowledge that:
a. The law imposes obligations in respect of safety for workers arising out of the import, design, manufacture and supply of certain types of Chattel for use in a workplace.
b. Gear Up Wholesale Machinery have notified you that no Chattel offered for sale is fit for use in any workplace and it is your responsibility to ensure that the Chattel is brought to a standard necessary to comply with the law before using it and to carry out testing and examination to ensure it is safe and fit for use in the workplace or any other location.
c. In so far as they are easily accessible to Gear Up Wholesale Machinery, the relevant health and safety information prepared by the importer, designer or manufacturer of the Chattel and any records kept by previous owners of the Chattel under the law ("the information and/or records") and a copy of the relevant laws were, at your request, made available for inspection.
d. Where no such information and/or records are easily available to Gear Up Wholesale Machinery, you forever release and discharge Gear Up Wholesale Machinery from any loss, injury and/ or damage which in any way results from the non-provision of such information and/ or records by Gear Up Wholesale Machinery to you.
e. It is your responsibility to ensure that you seek to ascertain the information and/or records and the accuracy thereof.
f. Breaches of the law carry very heavy penalties in the interest of health and safety for workers; safety inspections of all Chattel(s) purchased must be performed by you.
g. Where a Chattel is to be used in areas not covered by the law, you should regard that Chattel as unfit for use.
32. MANUFACTURER WARRANTY FOR OEM PRODUCTS
a. When Gear Up Wholesale Machinery resell a Chattel from an Original Equipment Manufacturer (“OEM”), Gear Up Wholesale Machinery will pass on any warranties offered with the equipment or parts by the manufacturer on the same terms and conditions as specified and offered by the manufacturer.
b. Where the OEM warrants to the original purchaser that Chattels are supplied free from defects in material and workmanship and if a defect covered by this warranty occurs, they will replace or repair the product at its option, free of charge excepting freight from purchaser to manufacturer.
c. This undertaking to replace or repair any Chattel will not apply if products have been damaged, after sale to the original purchaser, by negligence, by accident, by unreasonable use, modification, unauthorized repair, tampering or by any other causes unrelated to the defective materials or workmanship.
d. Gear Up Wholesale Machinery will always use its best endeavors to secure replacement or repair on behalf of customers who experience difficulty with any Chattel purchased through Gear Up Wholesale Machinery.
e. No warranties apply to used Chattel(s).
f. In the event that a Third Party Warranty is purchased and supplied with the Chattel the responsibility for Warranty then passes to the Provider of such Warranty and therefore Gear Up Wholesale Machinery is released from any ongoing obligation.
33. Gear Up Wholesale Machinery may give you notice of any matter or thing required or permitted to be notified to you under these Terms by sending you an electronic mail message to an electronic mail address nominated by you. Such notice takes effect and is deemed served from the time the electronic mail message leaves the Gear Up Wholesale Machinery system.
34. These Terms (together with, if applicable, any purchase order from you to Gear Up Wholesale Machinery and/ or any invoice rendered by Gear Up Wholesale Machinery to you and/ or any confirmation of order or other document from Gear Up Wholesale Machinery to You) represent the entire understanding between you and Gear Up Wholesale Machinery, and Gear Up Wholesale Machinery may vary these Terms from time to time by making an updated set of terms and conditions available on the Website. Any new Terms take effect from the date stated or, where no date is stated, from the beginning of the next day after they become available on the Website.
35. A single or partial exercise or waiver of a right relating to these Terms does not prevent any other exercise of that right or the exercise of any other right.
36. Gear Up Wholesale Machinery shall not be liable for any loss or expenses incurred by you caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a right by Gear Up Wholesale Machinery.
37. Nothing in these Terms will be construed or deemed to constitute a partnership, joint venture or employment or representative relationship between Gear Up Wholesale and you.
38. Each obligation hereunder is a continuing obligation, separate and independent from the other obligations of the parties and survives completion of any transaction between Gear Up Wholesale Machinery and you.
39. If any provision (or part thereof) of these Terms is invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remainder of that provision and the remaining provisions of these Terms shall not be affected and such invalid, illegal or unenforceable provision (or part thereof) is to be severed from these Terms.
40. Gear Up Wholesale Machinery need not incur expense or make payment before enforcing a right of indemnity conferred by these Terms.
41. The warranties, undertakings, agreements and continuing obligations in these Terms do not merge on completion.
42. In the interpretation of these Terms, no rule of construction applies to the disadvantage of Gear Up Wholesale Machinery on the basis that Gear Up Wholesale Machinery put forward these Terms or any part thereof.
43. If documents, performance specifications, technical product descriptions or other similar descriptive materials submitted by you in connection with a Purchase Order from you to Gear Up Wholesale Machinery (“Order”) have been incorporated by reference or attachment, these shall constitute a part of this Order.
44. Any expression of acceptance of an Order by the seller of the Chattel to Gear Up Wholesale Machinery, or by Gear Up Wholesale Machinery to you, including (a) your commencement of work on the Chattel(s) subject to the Order or shipment of same, whichever occurs first, or (b) performance of all or any portion of the services subject to the Order, shall constitute an acceptance by Gear Up Machinery of such Order which shall be bound by these Terms.
45. Any subsequent amendments to specifications or quantities shall only become part of the Order when authorized in writing by Gear Up Wholesale Machinery.
46. Gear Up Wholesale Machinery shall not be required to make payment for a Chattel delivered to Gear Up Wholesale Machinery that is in excess of the quantities specified in this Order.
47. Gear Up Wholesale Machinery shall not be liable for any Chattel provided to it not expressly contained in the Order.
48. Payments made in connection with the Order shall not exceed the aggregate price for the Chattel that would be manufactured or provided by you under the Order.
49. You shall be solely liable to compensate Gear Up Wholesale Machinery, any related entity of Gear Up Wholesale Machinery, any customer of Gear Up Wholesale Machinery and any related entity of any customer of Gear Up Wholesale Machinery if any Chattel (or component part thereof) does not comply with the description (written and/or oral) of that Chattel (or component part thereof) which you provide to Gear Up Wholesale Machinery, any related entity of Gear Up Wholesale Machinery or any customer of Gear Up Wholesale Machinery. Such compensation will include, but is expressly not limited to, all of the following costs which may be incurred by Gear Up Wholesale Machinery, any related entity of Gear Up Wholesale Machinery and any customer of Gear Up Wholesale Machinery: Repair costs, administration costs, losses of profit as well as legal fees and discretionary enforcement expenses.
50. You warrant that the prices in the Order shall be complete, and no surcharges, premiums or other additional charges of any type shall be added, without the prior written consent of Gear Up Wholesale Machinery. You expressly assume the risk of any event or cause (whether or not foreseen) affecting such prices, including any foreign exchange rate changes, increases in raw materials costs, inflation, increases in labor and other manufacturing costs.
51. If you request that a Chattel be registered with Vic Roads or any similar government instrumentality, You must first pay to Gear Up Wholesale Machinery the standard fee of Gear Up Wholesale Machinery to arrange such registration in the sum of $250 plus GST. This fee includes Vic Roads booking fees, use of trade plates and transport of the Chattel to and from Vic Roads. This fee does not include, and such costs will be additionally borne by You, applicable registration fees, stamp duty and other expenses. In the event that such payment of $250 plus GST is not paid by you to ATG, you shall do all things necessary to confer full ownership and possession of the Chattel to Gear Up Wholesale Machinery.
52. With the exception of the payment of a deposit by You to Gear Up Wholesale Machinery for the purchase of a Chattel, any credit card payment made by You to Gear Up Wholesale Machinery shall incur an additional fee of 1.5% on the total purchase price of the transaction entered into by You and Gear Up Wholesale Machinery.
REMARKETING PROGRAM
53. Gear Up Wholesale Machinery may (in its absolute discretion) provide to you a facility to remarket a Chattel belonging to you. (Remarketing Program) if such Chattel is used for agricultural and/ or non-highway purposes (which include earth-moving, road construction and mining activities). If You wish to take advantage of this facility provided by Gear Up Wholesale Machinery, Gear Up Wholesale Machinery shall provide to you various services which include advertising, transport, vehicle maintenance and modification advantages (with the full details of such advantages available to You, by request, from Gear Up Wholesale Machinery).
54. If you request the services set out in term 53 hereof, and Gear Up Wholesale Machinery agrees to provide same to you, You shall remunerate as follows: -
(a) For the sale of any Chattel(s) up to and including $49,999.99 (incl. GST), Gear Up Machinery shall receive as a first priority payment 6.6% (incl. GST) of the total sale price.
(b) For the sale of Chattel(s) of $50,000.00 (incl. GST) or more, Gear Up Wholesale Machinery shall receive as a first priority payment 5.5% (incl. GST) of the total sale price.
PRIVACY
54. You consent to Gear Up Wholesale Machinery providing your personal information to others when the provision relates in any way to your use of the Website or the purchase of a Chattel from Gear Up Wholesale Machinery.
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