1. Applicability
These terms and conditions of sale (“Terms”) are the only terms that govern the sale of the goods (“Goods”) by EPE Oceania Pty Ltd (ABN 46 003 083 609) and subsidiary companies – EPE International Pty Ltd (ABN 25 668 700 212 ), EPE Innovation Pty Ltd (ABN 31 626 048 548), EPE New Zealand Limited (NZBN 9429 0468 57416) EPE Trusted to Protect (UK) Limited (Coy # 17043589), EPE Trusted to Protect (Europe) B.V (KVK # 99642352) or any of its Related Companies (as defined by the Corporations Act (Cth) 2001) (each and collectively, “EPE”) to the buyer named on the quotation (“Customer”). The accompanying quotation and these Terms (collectively, this “Agreement“) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
2. Order
Unless otherwise agreed, orders placed under this quotation will not be filled until a purchase order is provided by the Customer and accepted by EPE.
Subject to clause 15, orders placed under this quotation cannot be cancelled or returned without the prior written approval of EPE, such approval to be given or denied at EPE’s sole discretion. Where EPE agrees to accept a cancellation or return of an order under this clause, EPE may apply any conditions to such cancellation or return as EPE in its sole discretion considers reasonable. Such conditions may include a restocking fee, a buy-back mechanism or otherwise.
3. Equipment for Hire
Where EPE provides the Customer with loan equipment, such loan equipment shall be governed by a separate Loan Agreement provided by EPE to the Customer. Such loan equipment will be subject to a standard industry hire charges which may be waived by EPE subject to completion of an order. Where Customer terminates this Agreement or cancels an order for any reason, EPE will invoice Customer for the loan equipment hire charges.
Where Customer has received loan equipment from EPE, Customer is required to return the loan equipment at the end of the loan period agreed with EPE in the same condition as provided to the Customer at the start of the loan period, excluding expected wear and tear. Customer is responsible for the cost of returning the loan equipment and of repairing any damage to the loan equipment incurred prior to the loan equipment being returned to EPE. EPE will invoice Customer for any damage not repaired upon return of the loan equipment.
Any invoices issued by EPE under this clause will be on 30-day payment terms from the date of the invoice.
4. Payment Terms
By acceptance of this quotation, the Customer agrees to make payment in full prior to delivery, unless otherwise agreed in writing by EPE. Government and credit approved Customers may be offered payment terms of 30 days from the date of invoice. A 10% surcharge may apply if payment is not received within this period.
5. Credit
On occasion, EPE may agree to supply Goods to the Customer on credit. The Customer understands credit is granted in EPE’s sole discretion and may be withdrawn at any time. The Customer agrees to EPE using any personal information provided by the Customer, including contacting trade references and/or exchanging information with credit reporting agencies, for the purposes of assessing the Customer’s creditworthiness. The EPE Privacy Policy applies to any personal information provided by the Customer to EPE.
6. Goods and Services Tax
Unless agreed otherwise, the quoted price is excluding Goods and Services Tax (“GST”). Where applicable, GST will be added to the quoted price and is payable by the Customer unless the Customer provides documentation to EPE evidencing that GST does not apply to that Customer.
7. Payment Methods
Payments can be made by EFT directly into EPE’s bank, by bank cheque, or by credit card. Payments made by credit card will incur a 1.4% credit card fee.
8. Title and Risk
All Goods purchased from EPE remain the property of EPE until payment is received in full. Risk of loss passed to Customer upon delivery of the Goods.
9. Delay
Delivery times are estimates only and time for delivery is not of the essence in this Agreement. Should delivery of all or any part of the Order be delayed by circumstances outside of the control of EPE, the Customer shall allow a reasonable extension time for delivery.
10. Inspection
The Customer agrees to inspect Goods delivered upon receipt. Customers are deemed to have accepted Goods delivered unless written notice of rejection specifying the reasons for rejection is received by EPE within seven calendar days after delivery of the Goods.
11. Warranty
Unless otherwise stated, EPE warrants that upon delivery and for a period of twelve months from the date of delivery for all goods except for unmanned aerial vehicles which have a reduced warranty period of three months, goods purchased will conform in all material respects to the applicable manufacturer’s specifications for such Goods and will be free from material defects in workmanship, material and design under normal use. The warranty does not cover damage resulting from misuse, negligent handling, lack of reasonable maintenance and care, accident or abuse by anyone other than EPE. Any Goods being returned under warranty to EPE are the financial responsibility of the Customer.
The Customer agrees that EPE provides no guarantee that the Goods will be fit for any particular purpose regardless of whether the Customer has notified EPE of any such purpose.
12. Indemnification
Customer shall indemnify, defend, and hold EPE and EPE’s officers, agents, other representatives and licensors harmless from all demands, claims, actions, causes of actions, proceedings, suits, assessments, losses, damages, liabilities, settlements, judgments, fines, penalties, interest, costs and expenses incurred (including fees and disbursements of legal counsel) of every kind (i) based upon personal injury or death or injury to property to the extent any of the foregoing is proximately caused by Customer’s misuse of the Goods or by the negligent or willful acts or omissions by the Customer, or (ii) based on any breach of this Agreement by Customer.
13. Export License/Import Permit Requirements/Legislation Requirements
If the Goods ordered require export or import permits, it is the responsibility of the Customer to ensure that the required documentation, as provided by EPE, is completed and returned to EPE in good time to enable EPE to facilitate or obtain the necessary approvals. Delay in providing the correct documentation may delay delivery.
If the Goods ordered require permits or authorisation to possess or operate at the customers delivery location to meet State or Country legislative requirements, it is the responsibility of the customer to obtain such permits or authorisation required prior to the delivery of the Goods.
14. Personal Property Securities Register (Applies to Australian Customers only)
(a). For the purposes of this clause, all capitalised terms used but not defined within this Agreement or this clause 14 shall have the respective meanings given to them in the Personal Property Securities Act 2009 (“PPSA”)
(b). The Customer acknowledges and agrees that these Terms are an accepted and adopted Security Agreement between EPE and the Customer for the purposes of the PPSA which creates a Security Interest in favour of EPE in all Goods (and their proceeds) supplied (including Goods supplied in the future) to the Customer by EPE and any proceeds that relate to Goods purchased on credit by the Customer. The Security Interest will be a Purchase Money Security Interest as and where applicable. The Security Interest is a continuing and subsisting interest in the Goods with priority over any registered or unregistered general (or other) Security Interest and any unsecured creditor.
(c). The Customer undertakes to:
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- do everything reasonably required of it by EPE to enable EPE to register its Security Interests with the priority it requires and to maintain those registrations, including to correct a defect in a financing statement; and
- notify EPE immediately in writing if the Customer changes its name or address for service, contact details or if there are any changes required under the PPSA in respect of these terms;
(d). The Security Interests arising under this clause 14 will be perfected by EPE prior to the Customer obtaining possession of the Goods and the parties confirm they have not agreed that any Security Interest arising under this clause attaches at any later time.
(e). EPE does not need to give the Customer any notice under the PPSA (including notice of the financing statement or verification statement) unless required by the PPSA.
(f). The Customer acknowledges that EPE may apply any payment made by the Customer at its sole discretion to satisfy any obligations, in any priority, of the owed by the Customer to EPE.
(g). The Customer agrees that sections 95, 120, 121(4), 125, 128, 129, 130, 132, 134, 135, 142, 143, 157 and 275 of the PPSA will not apply.
(h). The Customer agrees that EPE is entitled to exercise the rights contained in section 123 of the PPSA and enter any premises where the Goods supplied by EPE are still unpaid for, to repossess such Goods. The Customer agrees to indemnify and keep EPE indemnified in respect of any claims, actions and costs that may arise against EPE in relation to the removal, repossession and sale of the Goods pursuant to these Terms including any claims brought by third parties.
(i). The Customer agrees that repossession and retention of the Goods pursuant to the PPSA will only satisfy so much of the monies which may become payable to EPE by the Customer, as is equivalent to EPE’s estimation of the market value of the Goods as it is at the date of repossession and the repossession and retention will immediately extinguish any rights for interest the Customer has in relation to the Goods.
(j). Until any obligations owed to EPE by the Customer are discharged in full, the Customer must not give EPE a written demand or allow any other person to give EPE a written demand requiring EPE to register a financing change statement under the PPSA or enter into or allow any other person to enter into the PPSR, a financing change statement.
15. Termination
This Agreement may only be varied or terminated without cause by agreement in writing signed by each of the parties.
A party may terminate this Agreement immediately if the other party:
(a). Materially breaches its obligations under this Agreement and fails to remedy the breach within 30 days of written notice to do so;
(b). Becomes an externally administered body corporate; or
(c). Is unable to pay its debts as and when they fall due.
16. Termination by EPE
Notwithstanding clause 15, EPE may terminate this Agreement for any reason. Upon termination by EPE under this clause, EPE will refund any payments made by the Customer up to the date of payment for Goods not delivered.
17. Effect of Termination
Upon termination of this Agreement for any reason:
(a). all orders shall immediately terminate;
(b). EPE will have no further obligation to provide Goods;
(c). Customer will promptly pay any outstanding fees for Goods that were delivered before termination of the Agreement; and
(d). if EPE terminates the Agreement for cause, then EPE may at its election either (A) require Customer to take delivery of and pay for unfilled quantities of Goods; or (B) require Customer to pay any costs incurred by EPE up to the date of termination, including applicable restocking fees.
18. Limitation of Liability
Neither EPE nor Customer will be entitled to, and neither shall be liable for, indirect, special, incidental, consequential or punitive damages of any nature, including, but not limited to, business interruption costs, loss of profit, removal and/or reinstallation costs, re-procurement costs, loss of data, injury to reputation or loss of customers. The total liability of EPE for any claims by the Customer in relation to this quotation shall not exceed the purchase price for the Goods giving rise to such claim irrespective of the nature of the claim, whether in contract, tort, warranty or otherwise.
Except as provided in this clause, and to the greatest extent permitted by applicable law, any condition or warranty which would otherwise be implied in this Agreement is excluded. Where legislation implies in this Agreement any condition or warranty that cannot be excluded or modified, the liability of EPE for a breach of such is limited to replacement or repair of the Good(s) or refund of the price paid by the Customer. Where applicable legislation allows, EPE may at its discretion choose which of the previous options shall apply provided that:
(a). EPE is promptly notified of the defect;
(b). Customer assumes payment or transportation charges to EPE’s facility; and
(c). The defect was not caused by misuse, in which case all costs shall be borne by the Customer.
19. Australian Consumer Law Additional Wording (Applies to Australian customers only)
Only where the Schedule 2 of the Competition and Consumer Act 2010 (Cth) (“Australian Consumer Law” or “ACL”) applies to this Agreement and the limited warranty under clause 11 is considered a “warranty against defects”, under the meaning given in section 102 of the ACL, the following is an additional term of this Agreement:
“Our Goods come with guarantees that cannot be excluded under the Australian Consumer Law.
You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.”
20. Intellectual Property and Confidentiality
(a). “Intellectual Property” means all industrial and intellectual property rights whether created now or in the future, whether recognised in Australia or overseas, whether or not they are registered or capable of being registered and includes (without limitation) the rights in patents, knowhow, copyright, designs, trademarks, trade secrets, business or company names or other proprietary rights.
(b). Other than expressly provided for, nothing in this Agreement transfers or grants any right, title or interest in the Intellectual Property of either party.
(c). As between the Customer and EPE, any Intellectual Property rights in the Goods belongs to EPE.
(d). EPE grants the Customer a permanent, non-exclusive, irrevocable, royalty-free license (including a right to sub-license) to use any Intellectual Property rights in the Goods to the extent necessary for the Customer to obtain full use of the Goods in accordance with this Agreement.
(e). Confidential Information means information that is by nature confidential but does not include:
- Information already known to the receiving party at the time of disclosure by the other party; or
- Information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this Agreement.
(f). A party will not, without prior written approval of the other party, disclose the other party’s Confidential Information. This excludes circumstances where a party is legally compelled to disclose the other party’s Confidential Information.
(g).The Parties will take all reasonable steps to ensure their employees, agents and any sub-contractors do not disclose the other party’s Confidential Information.
21. Force Majeure
Either party shall be excused from any delay or failure in performance if caused by reason of any occurrence or contingency beyond its reasonable control, including, but not limited to, acts of God, acts of war, fire, insurrection, strikes, lock-outs or other serious labor disputes, riots, earthquakes, floods, epidemics, pandemics, explosions or other acts of nature.
22. Governing Law and Jurisdiction
EPE Oceania, EPE International and EPE Innovation operate under the laws and regulations of the State of Queensland, Australia. Any legal disputes will be conducted in courts or tribunals situated in Queensland and under the laws and regulations of Queensland.
EPE New Zealand operates under the laws and regulations of New Zealand. Any legal disputes will be conducted in courts or tribunals situated in New Zealand.
23. Severability
Any provision of, or the application of any provision of, this Agreement which is void, illegal, or unenforceable in any jurisdiction, does not affect the validity, legality or enforceability of that provision in any other jurisdiction, or of the remaining provisions in that or any other jurisdiction.
24. Survival
Any provision of this Agreement which by its nature should survive termination or expiry of this Agreement will remain in force after any termination or expiration of this Agreement, including clauses 3, 4, 7, 8, 11, 12, 14, 17, 18, 20, 22, and 23.
25. Authority to Bind Company
Any individual who enters into an order for Goods with EPE on behalf of the Customer warrants that they are duly authorised to sign and bind the Customer to these Terms.