Terms and Conditions

Complete Crane Solutions

Terms and Conditions

1 DEFINITIONS 

In this document: 

1.1 “Agreement” means any contract or agreement, whether  formal or informal, written, oral or partly written and partly oral,  formed between the Client and CCS, including but not limited  to by way of the Client’s acceptance of a Quote issued by  CCS. 

1.2 “Client” means the individual, business, partnership or company  entering into an Agreement with CCS and includes the Client’s  successors and assigns. 

1.3 “Date for Payment” means the date for payment of the Price specified in CCS’s Invoice and, if no date for payment is  specified in CCS’s Invoice, the date for payment shall be 30 days after the date that CCS renders an Invoice to the Client. 

1.4 “Goods” means the provision of goods by CCS to the Client  pursuant to an Agreement, including the plant, equipment or  machinery specified in the Quote, and any tools, accessories,  manuals, logbooks or equipment in or attached to the plant,  equipment or machinery. 

1.5 “Invoice” means an invoice issued to the Client by CCS. 

1.6 “Law” means an Act of Parliament, statute, regulation,  proclamation, ordinance or by-law, including all statutes,  regulations, proclamations, ordinances or by-laws amending,  consolidating or replacing one or more of them 

1.7 “Notice” means a notice in accordance with clause 18. 

1.8 “Party” means each party to an Agreement, including CCS and  the Client, and “Parties” has a corresponding meaning. 

1.9 “Price” has the meaning stated in clause 5 and is subject to  clause 15.  

1.10 “Quote” means a quote issued to the Client by CCS. 

1.11 “CCS” means Complete Crane Solutions (ACN 646 166 994) and  each related entity as defined in the Corporations Act 2001 (Cth) of Complete Crane Solutions (ACN 646 166 994) now or at  any time Goods or Services are supplied to the Client in the  future. 

1.12 “Service” means the provision of services by CCS to the Client  pursuant to an Agreement including the transportation of the  Goods to and from the Site. 

1.13 “Site” means any site where the Client intends to store or use  the Goods. 

1.14 “Terms and Conditions” means the terms and conditions set out  herein subject to any amendments expressly made by CCS pursuant to clause 2.4. 

1.15 “Works” means CCS’s provision of Goods and/or Services  pursuant to the Agreement. 

1.16 “EXTRA” means extra defects, repairs, labour, costs in addition  to original quote. 

1.17 Unless context requires otherwise: 

1.17.1 the singular includes the plural and vice versa;  1.17.2 a reference to an individual or person includes a  corporation, partnership, joint venture, association,  authority, trust, state or government and vice versa; 

1.17.3 a reference to any gender includes all genders;  1.17.4 a reference to a recital, clause or schedule is to a recital,  clause or schedule of or to these Terms and Conditions;  1.17.5 a reference to any agreement or document is to that  agreement or document (and, where applicable, any of  its provisions) as amended, novated, restated or  replaced from time to time;  

1.17.6 a reference to a statute, regulation, proclamation,  ordinance or by-law includes all statutes, regulations,  

proclamations, ordinances or by-laws amending,  consolidating or replacing it, and a reference to a statute  includes all regulations, proclamations, ordinances and  by-laws issued under that statute;  

1.17.7 a reference to a body, other than a Party to the  Agreement (including, without limitation, an institute,  association or authority), whether statutory or not: 

(a) which ceases to exist; or  

(b) whose powers or functions are transferred to  another body,  

is a reference to the body which replaces it or which  substantially succeeds to its powers or functions; 

1.17.8 If a party comprises two or more persons, the covenants  and Agreements on their part bind and shall be observed  and performed by them jointly and each of them  severally and may be enforced against any one or any  two or more of them; 

1.17.9 A reference to a party includes its executors,  administrators, successors and permitted assigns; 

1.17.10 No provision of these Terms and Conditions will be  construed adversely to a Party solely on the ground that  the Party was responsible for the preparation of these  Terms and Conditions or that provision;  

1.17.11 Where an expression is defined, another part of speech  or grammatical form of that expression has a  corresponding meaning;  

1.17.12 All references to A$, $, dollar, or to currency are  references to Australian dollars; 

1.17.13 "Including" and similar expressions are not and must not  be treated as words of limitation; and 

1.17.14 Headings are for ease of reference only and do not  affect the meaning of these Terms and Conditions. 

2 OPERATION AND APPLICATION 

2.1 CCS agrees to provide the Client with the Works subject to  these Terms and Conditions. These Terms and Conditions apply  in respect of all Agreements, offers to sell, Quotes, and other  commercial transactions for the supply of the Works by CCS to  the Client. 

2.2 The Agreement between the Client and CCS shall be upon  these Terms and Conditions and shall be read in conjunction  with these Terms and Conditions. 

2.3 These Terms and Conditions shall operate to the exclusion of  any terms and conditions to the contrary effect expressed in  any of CCS’s quotations or other communication or  documentation and shall supersede all prior Agreements. 

2.4 From time to time, CCS may review and amend these Terms  and Conditions of the Agreement and the Client shall be  bound by any variation which shall apply to the supply of any  of the Works following the effective date of the variation.  

3 FORMATION OF AGREEMENT  

3.1 Unless stated otherwise on the Quote, CCS’s written Quotes are  valid for 30 days from the date of issue of the Quote, and  thereafter are subject to confirmation in writing by CCS before  acceptance. 

4 PRICE AND PAYMENT 

4.1 The Client shall pay to CCS the price specified for the Works as  stated on the Quote, and all taxes, credit card fees, delivery  fees, handling fees, and other charges in respect of the Works (“Price”).  

4.2 The Client agrees to pay the Price for the Works in accordance  with these Terms and Conditions. 

4.3 CCS will render Invoices to the Client for the Price and the  Client agrees to pay the Price on or before the Date for  Payment. 

4.4 The Client warrants that its nominated payment method has  sufficient clear funds available to pay the Price. 

4.5 Time of payment is of the essence of the Agreement.

4.6 Where the Client has provided details of a debit or credit card  for payment to CCS in the Agreement, the Client agrees and  authorises CCS to charge or make deductions from the debit  or credit card to satisfy the Price or any part of the Price at any  time without notice to the Client. 

4.7 CCS may charge an additional 1.2% to the Client where the  Client has provided details of a debit or credit card for  payment to CCS. 

4.8 CCS shall be entitled to charge the Client interest calculated  at 12% per annum, on the balance of all overdue accounts  and invoices from the due date for payment until the date of  actual payment.  

4.9 CCS has the right withhold the clients goods being repaired in  CCS’s possession until full and final payment has been  received. 

4.10 CCS requires prepayment for quoted costs of all parts and 3rd party inspections and repairs before CCS commences major  works such as 10 yearly major inspections. Additionally, CCS requires a Purchase Order from the client for the remainder of  Works on the Quote before CCS will commence the works on  the Goods quoted. 

5 COSTS RECOVERABLE 

5.1 Should the Client default in the payment of any monies due  under any Agreement, then all monies due to CCS shall  immediately become due and payable and shall be paid by  the Client within 7 days of the date of demand.  

5.2 The Client shall pay on an indemnity basis all expenses, costs  and disbursements, including debt collection agency fees,  commission and any fees paid to CCS’s solicitors (on an  indemnity basis) incurred by CCS or its appointed agents in  recovering payment of any outstanding monies, enforcing its  rights under the Agreement, or in investigating or defending  any action or threatened actions. 

6 SECURITY 

6.1 The Client hereby charges and mortgages in favour of CCS to  secure the repayment of any debt and any monies which may  become owed by the Client to CCS hereunder and under any  Agreement all of the Client’s present and future estate and  interest in all real property and personal property.  

6.2 CCS and the Client acknowledge and agree that the  Agreement, including these Terms and Conditions, constitutes  a Security Agreement and entitles CCS to claim: 

6.2.1 a security interest in favour of CCS over the Goods supplied or to be supplied to the Client as Grantor  pursuant to the Agreement (“Collateral”); 

6.2.2 a security interest over the proceeds of disposal of or the  granting of a right in the Collateral referred to in clause  6.3.1 as original collateral (“Proceeds”); and 

6.2.3 a security interest over all of the personal property of the  Client pursuant to clause 6.6.2. 

6.3 The Goods supplied or to be supplied under the Agreement fall  within the PPSA classification of “Motor Vehicle” or “Other  Goods” acquired by the Client pursuant to the Agreement. 

6.4 The Proceeds of the Collateral referred to in clause 6.3.2 falls within the PPSA classification of “Account”. 

6.5 CCS and the Client acknowledge that CCS, as Secured Party,  is entitled to register its Security Interest in: 

6.5.1 the Collateral supplied or to be supplied to the Client  pursuant to this Agreement and in the relevant  Proceeds; and 

6.5.2 All Present and After Acquired Property of the Client. 6.6 To the extent permissible at law: 

6.6.1 the Client waives its rights to receive any notice required  by: 

(a) any provision of the PPSA (including a notice of a  verification statement); or  

(b) any other Law before CCS exercises a right, power  or remedy;  

6.6.2 the Client agrees to indemnify CCS on demand for all  costs and expenses, including legal costs and expenses  on a solicitor/client basis, associated with the registration  or amendment or discharge of any Financing Statement  registered by or on behalf of CCS and enforcement or  attempted enforcement of any Security Interest granted  to CCS by the Client; 

7 FORCE MAJEURE 

7.1 CCS will not be liable for any breach of the Agreement due to  any matter or thing beyond CCS’s control. Furthermore, CCS is  excused from performing any term, covenant or condition  required by the Agreement during the time and to the extent  that performance is prevented when such performance is  prevented wholly or in part by circumstances beyond CCS’s control.  

8 DEFECTS 

8.1 If the Client believes that the Works are not in accordance with  the Agreement the Client must give notice of the alleged  defective Works to CCS within 7 days of delivery of the Works. 

8.2 CCS shall not be responsible or liable for any alleged defect in the Works unless it is reported in accordance with clause 10.1. 

9 NO WARRANTY  

9.1 CCS makes no express warranties to the Client including as to  the condition, quality or suitability of the Goods or the fitness of  the Goods for the Client’s purpose or use, except those  expressly set out in the Agreement and these Terms and  Conditions.  

9.2 Any time or date named and accepted by CCS, including on  the Quote, for completion, delivery, dispatch, or arrival of the  Works is an estimate only and does not constitute a condition  of the Agreement or part of the description of the Works and is  not of the essence of the Agreement. CCS will not be liable for  any damages, loss, costs or charges incurred by the Client due  to late delivery ensuing from any circumstances whatsoever,  either within or beyond the control of CCS. 

9.3 CCS will not be liable in any circumstances for any loss or  damage whatsoever allegedly incurred and arising out of any: 

9.3.1 Conditions, warranties and terms implied by statute or  general law or custom except any implied condition  or warranty the exclusion of which would contravene  any statute or cause this clause to be void; 

9.3.2 Alleged liability to the Client in contract for  consequential or indirect damages arising out of or in  connection with the provision of the Works or the  Agreement, even if CCS knew they were possible or  they were otherwise unforeseeable; and 

9.3.3 Claims by the Client in negligence for acts or omissions  of CCS or its employees, agents, or contractors arising  out of or in connection with the Agreement. 

9.4 The Parties acknowledge and agree that: 

9.4.1 any prior representations, agreements and  arrangements, including representations as to the  suitability of the Works; 

9.4.2 any descriptions, illustrations and material contained  in any advertisement, website, catalogue, price list or  brochure; and 

9.4.3 all express and implied warranties, guarantees and  conditions under statute or general law as to  merchantability, description, quality, suitability or  fitness of the Works for any purpose or as to design,  assembly, installation, material or workmanship or  otherwise, except any implied condition or warranty  the exclusion of which would contravene any statute  or cause this clause to be void; are expressly excluded from, and do not form part of, the  Agreement unless specifically stated in the Agreement to the  contrary. 

9.5 If clause 9.3, 9.4 and/or 12.1 herein is held by a court to be  unlawful, invalid or unenforceable for any reason, the Client  agrees that CCS’s total liability to the Client for any loss or  damage suffered by the Client in relation to the Works or the  Agreement is limited, in CCS’s sole discretion, to a refund of the  relevant Price of the Works. 

9.6 If clause 9.5 herein is held by a court to be unlawful, invalid or  unenforceable for any reason, the Client agrees that CCS’s total liability to the Client for any loss or damage suffered by  the Client in relation to the Works or the Agreement shall not  exceed the amount that is the lower of: 

9.6.1 The amount covered by CCS’s insurer specifically for  that loss or damage; and 

9.6.2 The actual amount received by CCS from its insurer  specifically for that loss or damage. 

10 THE CLIENT’S WARRANTIES 

10.1 The Client warrants that it has not relied upon any statement,  representation, warranty, guarantee, condition, advice,  recommendation, information, assistance or service provided  or given by CCS or anyone on its behalf in respect of the Works,  other than those that are expressly contained in the  Agreement. 

10.2 The Client warrants that for the first 7 days post delivery of the  Works: 

10.2.1 Prior to using or operating the Goods on each  occasion, the Client shall fully inspect the Goods and  determine, in the Client’s sole discretion, if the Goods  are safe and/or suitable for the Client’s use (“Pre-Start  Inspection”); 

10.2.2 If, after conducting the Pre-Start Inspection, the Client  reasonably believes that the Goods are defective,  damaged, unsafe or malfunctioning, the Client will not  use or operate the Goods and will immediately notify  CCS. 

10.3 The Client acknowledges that, if the Goods are fitted with a  load measuring device (“LM Device”): 

10.3.1 CCS makes no warranties or representations in respect  of the LM Device; and 

10.3.2 The Client must not rely on the LM Device; and  10.3.3 If the Client intends to use the Goods to lift a load, the  Client must determine, in the Client’s sole discretion and with reference to any applicable operating  manual, manufacturer’s specifications or other  instructions supplied with the Goods, whether the  Goods are able to lift the weight of the load. 

10.4 The Client agrees that it will be liable for, and indemnifies and  agrees to keep CCS indemnified from, any and all costs  incurred as a result of the Client’s breach of clause 10.4. 

11 NO LIABILITY FOR THIRD PARTIES 

11.1 The Client acknowledges and agrees that CCS is not liable for: 

11.1.1 any damage or defects attributable to the provision  of services by a third party, including a third party  engaged by CCS; or 

11.1.2 any defects attributable to the manufacture of any  goods that are manufactured by third parties. 

12 LIABILITY AND INDEMNITY  

12.1 CCS shall not be liable to the Client or any other party in  contract, tort, warranty, strict liability, or any other legal theory  for any indirect, consequential, incidental, punitive or  exemplary damages, or for any claim for loss of profits, and the  Client agrees that CCS may plead these Terms and Conditions  as a bar to any such claims whether they arise at law, in equity,  under any statute, regulation, or other legislative instrument, or  under any contract, deed, or any other instrument made or  approved under any law.  

12.2 The Client hereby releases and indemnifies and agrees to keep CCS indemnified from any and all costs (including all legal fees  and costs) and any other legal or other expenses incurred by it  in investigating or defending any action or threatened actions  (on an indemnity basis), damages, liabilities, penalties, fines,  expenses or losses including indirect, incidental, consequential,  punitive or exemplary loss or damage (including but not limited  to loss of profit), whether resulting from breach of contract, tort,  warranty, strict liability, statute or any other legal theory or  otherwise that CCS may incur in relation to the Client or any  third party, including where the cost, damage, liability,  penalty, fine, expense or loss is caused by or contributed to by 

CCS in any way or for any reason whatsoever.  

12.3 The Client will be liable for any damage, death or injury caused or contributed to by the Client’s use or operation of the Goods,  and the Client will indemnify CCS from any and all costs  (including all legal fees and costs) on an indemnity basis that  CCS may incur in relation to damage, death or injury caused  or contributed to by the Client’s use or operation of the Goods. 

13 VARIATIONS 

13.1 Any variation to the Works or the Agreement must be agreed  to in writing between a representative of CCS and of the Client,  confirming the: 

13.1.1 precise scope of the variation; and  

13.1.2 any change to the Price as a result of the variation.  

13.2 The Client agrees that CCS may revise and amend the Price  of the Works if there are any such variations. 

14 TERMINATION 

14.1 If the Client defaults in the due and punctual observe of all or  any of its obligations, warranties or covenants under the  Agreement or these Terms and Conditions, dies, commits an  act of bankruptcy, takes or shall have taken against it any  action for its winding up, is placed under official management,  administration or receivership, then CCS may without prejudice  to any other right or remedies it has: 

14.1.1 treat as discharged all or any obligation arising from  any Agreement; 

14.1.2 retain any security given or monies paid by the Client and apply this in reduction of any sum of money owed  or owing by the Client to CCS; and 

14.1.3 take such steps as CCS may deem necessary in its sole  discretion to mitigate its damages suffered including  the putting to use, sale, hire, or disposal of any goods under the Agreement. 

14.2 In addition to any other rights under the Agreement, CCS may  terminate the Agreement by notice in writing to the Client  immediately upon any one of the following events: 

14.2.1 Any deliberate and substantial prevention of or  interference with the provision of the Works or progress  thereof caused by the Client whether directly or  indirectly; 

14.2.2 Substantial interference with the Works by any cause  beyond the control of CCS including (but without  limiting in any way the generality thereof) inclement  weather conditions, mechanical issues, water, flood,  fire, rioting, pandemic, civil commotion or industrial  action; 

14.2.3 Any substantial breach of the Agreement or these  Terms and Conditions by the Client; 

14.2.4 If the Client shall make any assignment for the benefit  of or enter into any arrangement or composition with  its creditors or go into liquidation (whether voluntary or  compulsory except for the purpose of reconstruction  or amalgamation) or have a receiver appointed or  commit an act of bankruptcy or if a sequestration  order is made against the Client’s estate; 

14.2.5 Any failure by the Client to pay any part of the Price in  accordance with clause 5 herein. 

14.3 If the Agreement is terminated:

14.3.1 the Client shall pay CCS for all Goods and/or  Services provided by CCS, all work done by CCS, and all goods or materials used or procured by CCS 

and properly chargeable to the date of termination;  and 

14.3.2 CCS may retain any security given or monies paid  by the Client and apply this in reduction of any sum  of money owed or owing by the Client to CCS. 

15 REPOSSESSION 

15.1 If the Client fails to pay the whole or any part of the Price when  due in accordance with the Agreement, defaults in the due  and punctual observance of all or any of its obligations,  warranties or covenants under an Agreement or these Terms  and Conditions, dies, commits an act of bankruptcy, takes or  shall have taken against it any action for its winding up, is  placed under official management, administration or  receivership, then CCS may without notice enter the Site and  retake possession of the Goods held by the Client and the  Client hereby authorises and allows CCS and/or its  representatives, servants, agents or employees to enter the  premises upon which the Goods are situated for the purpose of retaking possession of Goods. 

16 NOTICES 

16.1 A party must give any notice required under these Terms and  Conditions or the Agreement in accordance with this clause.

16.2 A notice must be served at the address or electronic mail  address of the party set out in the Agreement. 

16.3 A party may deliver a notice by hand, post, or by electronic  mail.  

16.4 If before 4.00pm local time in the place of delivery, a party  delivers a notice by hand or by electronic mail and the sending  party completes the transmission the notice will be taken to be  given on the day of delivery or transmission, and in any other  case on the next day. If the party gives notice by post the  notice will be taken as given on the 7th day in the place of  delivery after the notice is posted.  

16.5 A party may give notice of another address (within Australia)  or an electronic mail address for service to the other party, and  the new address or the electronic mail address shall be the  address for service of the party for the purposes of this clause. 

17 MISCELLANEOUS  

17.1 CCS may assign, sub-contract or sub-let the whole or any part  of the Works or CCS’s obligations under an Agreement, without  seeking the consent of the Client.  

17.2 The Client may not assign, sub-contract or sub-let any part of  the Works, or any of its rights, liabilities, or obligations under any  Agreement, without the prior written consent of CCS. 

17.3 The covenants, agreements and obligations contained in any  Agreement and these Terms and Conditions will not merge or  terminate upon the repudiation or termination of the  Agreement and to the extent that they have not been fulfilled  or satisfied or are continuing obligations they will remain in  force and effect.  

17.4 Any waiver by CCS must be in writing signed by CCS. Failure by CCS to enforce any right or remedy is not a waiver of any right  or remedy, or a waiver in respect of a continuing breach.  

17.5 If any provision contained in these Terms and Conditions is held  by a court to be unlawful, invalid or unenforceable, the validity  and enforceability of the remaining provisions in these Terms  and Conditions are not affected.  

17.6 These Terms and Conditions and the Agreement are governed  and are to be construed in accordance with the laws in force  in the State of Western Australia. 

17.7 These Terms and Conditions and the Agreement are subject to  the exclusive jurisdiction of the Courts of Western Australia.  

18 RECEIPT AND ADVICE  

18.1 The Client hereby acknowledges receipt of these Terms and  Conditions and agrees to be bound by them. The Client  accepts these Terms and Conditions in acknowledgement  that they are legally binding and presently enforceable. The  Client further acknowledges that it has had the opportunity of  obtaining independent legal advice and that the Client  understands the Terms and Conditions outlined above. 

19 10 Yearly Major Inspections 

19.1 CCS major inspection quotes are based on Terex pick and  carry major inspection criteria # QF230.9, in accordance with  AS2550.5. 

19.2 CCS quotes are based on the minimum requirements to get  the crane passed with a 10 year major inspection certification. 19.3 CCS quotes are based on standard repair times and parts  required for each repair. If a repair is beyond a standard repair,  CCS will invoice the EXTRA costs to perform these repairs. In  which case the client is responsible to pay all costs. In this case  

CCS will present a report detailing why the repair costs exceeded the original quoted costs. 

19.4 If the client has additional repairs required to be carried out  above the base major inspection criteria, the client shall request for these repairs to be added as EXTRA repairs and CCS will quote for the repairs as EXTRA’s prior to accepting the  quote. 

19.5 Complete Crane Solutions will perform a preliminary inspection  on the crane prior to commencing the quoted works and  compile a list of EXTRA repairs CCS recommends the client . 

19.6 CCS will present a quote for the EXTRA’s found on the  preliminary report in clause 19.4. The client has the choice to  accept or decline the quote for EXTRAS. The client has a  maximum of 7 days to accept the quote, otherwise deemed  voided. 

19.7 Payment is to be followed in line with clause 4.10.