USE OF WEBSITE
 
1. Your viewing and use of the Website (which means this website, located at any of the following uniform resource locators http://www.machinerywholesalers.com.au, http://www.bestrucks.com.au, http://www.truckworld.com.au and http://awb.ihub.com.au and  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 ATG Australasian Trading Group Pty Ltd A.C.N. 110 726 540 trading as Australian Machinery Wholesalers, Lusty Heavy Haulage Equipment and AMW Transport and Machinery Sales LMCT 10552 (which includes its officers, employees, agents and permitted assigns) (“ATG”) 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 AMW 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 ATG 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 ATG, 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 ATG. This includes items viewed or inspected at any facility owned or operated by ATG both in Australia and Overseas.
 
3. ATG 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, ATG 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 therefrom and agree that any proceedings commenced by you in any other Court may be permanently stayed upon application by ATG and that you shall indemnify ATG for any costs (including but limited to legal representation and all preparatory work in relation thereto) so incurred by ATG 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 ATG, be considered the purchaser of the Chattel at the price specified by ATG.
 
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 ATG).
 
8. In the absolute discretion of ATG, a deposit may secure the purchase of a Chattel for seven (7) days. After that time, if the balance owing has not been paid, ATG 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, ATG may without further notice offer the Chattel(s) for sale again and you shall indemnify ATG for all costs incurred by ATG to effect such a sale.
 
10. Deposits paid for any Chattel including placed orders for modified or fabricated items will be immediately forfeited to ATG upon the cancellation or withdrawal of any order placed by You.  Without limiting the foregoing, ATG 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 ATG, you agree to immediately pay a 30% deposit in cash, bank cheque or direct debit and, failing receipt of such deposit by ATG, 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 ATG 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 ATG.
 
OTHER TERMS AND CONDITIONS
 
15. All prices are listed as GST and Government Charges exclusive unless stated otherwise by ATG in its sole and absolute discretion. Prices do not include stamp duty, transfer fees or other statutory charges or government charges that may apply. Subject to all applicable laws, certain items which are exported by ATG from Australia may not attract GST liability, however, such must be expressly agreed to in writing by ATG and You.
 
16. If you pay a deposit and then a financing company finances the entire invoice amount, ATG 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 including transfer fees where and when applicable under the relevant law as well as all delivery charges unless same is excluded in writing by ATG (in the absolute discretion of ATG) on an invoice that ATG provides to you. In the event that an item purchased by you is to be delivered by ATG from a third party Supplier or imported from Overseas for and on behalf of the customer and the item is not paid for upon completion or arrival and on time you agree to pay any and all charges and costs for any storage or transport as a result of ATG having to store and transport the item being purchased by you. Any costs from the place of storage to the customer will then be the full responsibility of the purchaser / customer and you hereby agree to make no claim for such monies to be compensated to you as a result of your failure to complete payment and or settlement of a particular chattel on time.
 
18. You consent that ownership of the Chattel shall remain with ATG until ATG has clear title to all monies owing to it by you and that you shall not collect the Chattel from its location until ATG 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 ATG 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 ATG to secure full payment from you of all monies owing by you to ATG.
 
20A. ATG 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 ATG 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 ATG lodging a caveat or caveats which note the interest of ATG thereunder and, if you are a company registered in Australia, you consent to ATG registering a fixed and floating charge over your assets to secure the payment of such monies owing by You to ATG. For the purposes of this term, and as otherwise set out in these Terms, you shall indemnify ATG for all costs incurred by ATG to claim any monies owing by You to ATG.
 
LIABILITY AND INDEMNITY
 
21. You acknowledge and warrant to ATG that:
 
a. You have the full authority to engage in any transactions you undertake with ATG.
 
b. You will be liable for all costs, fees, charges and other amounts that may become payable to ATG or any other person as a result of any breach set out in sub-paragraph (a) hereof.
 
c. You are properly authorized to provide ATG 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 ATG.
 
e. All information you provide to ATG 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 ATG arising from any indirect or consequential loss, damage or expense of any kind or nature and you release and forever discharge ATG 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 ATG 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 ATG 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 ATG 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 AMW 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 ATG.
 
26. To the full extent permitted by law, ATG 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. ATG is a licensed motor car trader as defined in the Motor Car Traders Act 1986 (Vic) being the holder of Licence No. LMCT 10552 and, as such, shall comply with all relevant legislation.
 
28. You acknowledge that ATG 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, ATG 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. ATG 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 ATG to you, but ATG 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 ATG, 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 ATG 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. ATG 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 ATG, 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 ATG, you forever release and discharge ATG from any loss, injury and/ or damage which in any way results from the non-provision of such information and/ or records by ATG 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 WORKMATE BRANDED PRODUCTS
 
a. When ATG resell a Chattel from an Original Equipment Manufacturer (“OEM”), ATG 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. ATG will always use its best endeavors to secure replacement or repair on behalf of customers who experience difficulty with any Chattel purchased through ATG.
 
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 ATG is released from any ongoing obligation.
 
33. ATG 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 ATG system.
 
34. These Terms (together with, if applicable, any purchase order from you to ATG and/ or any invoice rendered by ATG to you and/ or any confirmation of order or other document from ATG to You) represent the entire understanding between you and ATG, and ATG 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. ATG 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 ATG.
 
37. Nothing in these Terms will be construed or deemed to constitute a partnership, joint venture or employment or representative relationship between ATG 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 ATG 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. ATG 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 ATG on the basis that ATG 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 ATG (“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 ATG, or by ATG 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 ATG 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 ATG.
 
46. ATG shall not be required to make payment for a Chattel delivered to ATG that is in excess of the quantities specified in this Order.
 
47. ATG 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 ATG, any related entity of ATG, any customer of ATG and any related entity of any customer of ATG 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 ATG, any related entity of ATG or any customer of ATG. Such compensation will include, but is expressly not limited to, all of the following costs which may be incurred by ATG, any related entity of ATG and any customer of ATG: 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 ATG. 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 ATG the standard fee of ATG 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 ATG.
 
52. With the exception of the payment of a deposit by You to ATG for the purchase of a Chattel, any credit card payment made by You to ATG shall incur an additional fee of 1.5% on the total purchase price of the transaction entered into by You and ATG.
 
REMARKETING PROGRAM
 
53. ATG 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 ATG, ATG 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 ATG).
 
54. If you request the services set out in term 53 hereof, and ATG 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), ATG 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, ATG shall receive as a first priority payment 5.5% (incl. GST) of the total sale price.
 
Other services as per the schedule of fees set out in the Remarketing Program section of the Web Site www.machinerywholesalers.com.au
 
PRIVACY
 
54. You consent to ATG 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 ATG.