Sales Contract Conditions

1                   SALES CONTRACT

1.1             These General Conditions will be read and deemed Part B of the Sale Contract between GLT and the Customer (“the Contract”).

1.2              For interpretation of the Contract, the Parts shall have the following priority:

(A)     Part D;

(B)     Part A; and

(C)     Part B and Part C.

1.3             Entire Contract. The Contract constitutes the entire Contract between GLT and the Customer and supersedes all prior contracts, arrangements and understandings in respect of the Appointment but does not negate the intended operation of:-

(A)     any third-party warranties given by other manufacturers or their distributors whose goods are Supplier Components used in the manufacture (which includes the production or assembly) of the Trailers;

(B)     those non-excludable rights under the ACL.

2                   SPECIFICATION

2.1              The Trailer will comply with the relevant ADR.

2.2              The Customer warrants to GLT as follows:-

(A)     the Trailer is not principally for personal, domestic or household use;

(B)     that the Trailer is being purchased for the Specified Use;

(C)    that the Specification is suitable, reflects the functionality required and is acceptable to the extent of the Customer’s knowledge and expertise, for the Specified Use required by the Customer;

(D)     where applicable, the Customer has Specified the application of PBS.

3                   APPOINTMENT

3.1              Upon the Customer signing Part D, the Customer Appoints GLT and GLT accepts the Appointment to:-

(A)     design and manufacture the Trailer; and

(B)     Deliver and sell the Trailer to;

the Customer, and the Customer agrees to purchase the Trailer, in accordance with the Contract.

3.2              GLT shall:

(A)     Commence and complete the fit up of the Trailer as soon as practicable, subject to clause 4 below;

(B)     advise the Customer as soon as practicable when the Trailer is ready for Inspection by the Customer; and

(C)     send any PBS application to the Engineer for certification.

4                   DEPOSIT, ADVANCE PAYMENTS AND CREDIT STANDING

4.1              GLT may, in its absolute discretion, require the Customer to pay to GLT a deposit equal to an amount up to 20% of the total of the Contract price (“the Deposit”).

4.2             The Customer agrees to pay the Deposit within seven (7) days of receipt of a request for the Deposit from GLT, which request will be made by GLT within seven (7) days of the Appointment in accordance with clause 3.

4.3              The Customer may elect to provide the Deposit by way of:

(A)  Payment of the Deposit sum into the nominated bank account of GLT; or

(B)  By providing to GLT a bank guarantee in the amount of the Deposit Sum.

4.4              In the event that the Deposit is:

(A)  Paid by way of cash deposit, GLT will apply the Deposit amount to the final invoice issued under this Contract;

(B)  Provided by way of bank guarantee, GLT may retain the bank guarantee until such time as the final invoice issued under the Contract and Collection has occurred, at which time GLT will return the bank guarantee within 14 days of Collection and payment of the final invoice.

4.5              In lieu of the payment of a Deposit, in accordance with this clause, the Customer may elect to, within the time provided in clause 4.2 above, request GLT to provide an invoice for Components or single unit Trailer up to the value of the Deposit Sum, which the Customer agrees to pay in advance of GLT commencing works under this Contract (“Advance Payment”).

4.6              In the event the Customer elects to make the Advance Payment, the Customer hereby acknowledges and accepts that:

(A)  If the Advance Payment is in relation to a Trailer Combination Set, the Customer will not be entitled to Collection of the Trailer Combination Set until payment of the total amount of the invoices issued in respect of that Trailer Combination Set is paid in full; and

(B)  If the Contract is in relation to multiple Trailer Combination Sets, GLT may require the Customer to pay for and Collect each Trailer Combination Set as and when such Trailer Combination Set is completed in accordance with clause 8 below and must on request by GLT make further Advance Payments for each subsequent Trailer Combination Set.

4.7             GLT is not required to commence any works under the Contract until the Customer has provided the Deposit or Advance Payment to GLT in accordance with this clause.

4.8            The Customer acknowledges and accepts that if the total of the Contract price is over $2,500,000, this Contract is subject to GLT being satisfied in its absolute discretion with any  credit checks GLT may wish to make of the Customer and the Customer hereby agrees to provide any reasonable information requested by GLT, about the Customer’s credit worthiness, credit standing, credit history or credit capacity that the Customer is allowed to give or receive under any privacy legislation as enacted from time to time and that this information may be used for the following purposes:

(A)  To assess an order or application made by the Customer to GLT;

(B)  to notify other credit providers of default by the Customer;

(C)  to exchange information with other credit providers as to the status of the Customer’s account with GLT where the Customer may be in default with any other credit provider;

(D)  to assess the Customers credit worthiness.

5                   VARIATION

5.1              GLT must not undertake any increase in, decrease in, omission to, change, modification or variation to the Specification other than in accordance with a Variation directed by or consented to, in writing, by the Customer in accordance with clause 5 and in no other circumstances whatsoever does either party intend or agree to any increase, decrease, omission, change modification or variation, no matter how immaterial or material it may be considered.

5.2              A Variation may be proposed by:-

(A)       the Customer by contacting GLT and setting out the details of the proposed Customer Variation, within seven (7) days of GLT providing the Customer with the proposed designs pursuant to this Contract;

(B)       the Customer by contacting GLT and requesting a proposed Customer Variation, after seven (7) days of GLT providing the Customer with the proposed designs pursuant to this Contract and GLT in its absolute discretion accepting a proposed Customer Variation outside of the initial seven (7) day period for variations in clause 5.2(A) above. The Customer acknowledges and accepts that GLT will not accept and is not obliged to accept any Customer Variations proposed within twelve (12) weeks of the Inspection Period or any Varied Inspection Period;

(B)     GLT by contacting the Customer and proposing a GLT Variation;

5.3              GLT will only act upon a Variation once the Customer has provided a Variation Approval.

5.4              Varied Price & Inspection Period. If the Customer provides a Variation Approval, the Customer:

(A)     accepts that the Varied Specification is suitable, reflects the functionality required and is acceptable and has made all reasonable enquiries to satisfy itself that the variations are appropriate for the Specified Use required by the Customer;

(B)     agrees to pay the Varied Price instead of the Price; and

(C)    accepts the Inspection Period will be adjusted in accordance with the proposed Varied Inspection Period.

6                   ACCEPTANCE

6.1              Upon Delivery Date, GLT will Notify:

(A)     the Customer of the availability of an Inspection Period and time. The Customer has the option to Inspect or not to Inspect the Trailer;

(B)     the Engineer for the purposes of certifying compliance with PBS;

(C)     supervise the Inspection by the Engineer.

6.2              Upon expiration of the Inspection Period, or specific Notice of Acceptance from the Customer, the Trailer will be deemed to have been Accepted unless the Customer has given to GLT a Defect Notice.

6.3              If GLT accepts the Defect Notice, GLT may at its election repair or replace the Defective Component to ensure compliance with the Specification.

6.4              If GLT is unable to comply with the Inspection Period, GLT must Notify the Customer and propose an alternative Inspection Period being within four (4) weeks after the start of the original Inspection Period.

6.5              GLT is not liable to the Customer for any changes to any Inspection Period or Varied Inspection Period, previously notified to or accepted by the Customer in accordance with Clause 5 above.

7                   PAYMENT, TITLE, SECURITY & RISK

7.1              After Commencement, GLT may issue the Invoice.

7.2              The issue of an Invoice, in accordance with the Contract, establishes a debt, due and payable by the Customer to GLT before Collection.

7.3              GLT retains the property, legal and equitable title and full beneficial ownership in the Trailer, and possession of the Trailer, free from any and all encumbrances, liens, charges or other securities of any nature or kind whatsoever, until GLT has received Payment.

7.4              Upon Payment and Acceptance in accordance with Clause 6 above, all risk of damage thereto or loss or destruction thereof shall pass from GLT to the Customer.

7.5              To avoid any doubt, for the purposes of the PPSA, it is the intention of GLT and the Customer by this clause 7 that there is created for the benefit of GLT a Purchase Monies Security Interest in the Goods.

7.6              The Customer agrees that GLT may register any personal property security interest created by these Terms and Conditions on the Personal Property Securities Register and the Customer waives its rights to receive a verification statement (as that term is defined in the PPSA) in respect of any financing statement or financing change statement (as those terms are defined in the PPSA) registered by GLT in respect of any personal property of the Customer. The parties agree that, insofar as the provisions of Chapter 4 of the PPSA are for the benefit of the Customer or place an obligation on GLT, those provisions will apply only to the extent that they cannot be contracted out of or to the extent that GLT otherwise agrees in writing.

7.7              If any of the Goods (which have not been paid for by the Customer) are damaged or destroyed following delivery but prior to ownership passing to the Customer, GLT is entitled to receive all insurance proceeds payable for the Goods up to the value of any unpaid invoices issued under this Contract. The production of these Terms and Conditions by GLT is sufficient evidence of GLT’s right to receive the insurance proceeds without the need for any person dealing with GLT to make further enquiries.

7.8              To secure payment of all Monies, the Customer hereby charges as legal and/or beneficial owner and as trustee of any trust in favour of the Manufacturer the Customer’s Land with the due payment of all of those Monies.

7.9              The Customer acknowledges that GLT may register a caveat or caveats over the Customer’s Land in respect of this charge.  The Customer further agrees that, immediately upon request by GLT, the Customer will execute and give to GLT a mortgage in registrable form in favour of GLT over the Customer’s Land and by reason of this agreement to give a mortgage the Customer acknowledges that GLT is an equitable mortgagee in respect of the Customer’s Land.

8                   COLLECTION & NON-COLLECTION

8.1              Collection. The Customer must Collect the Trailer within five (5) Business Days after the Acceptance and Payment.

8.2              GLT will provide:

the Maintenance Schedule;

(A)     where applicable, the certificate of compliance from the Engineer.

(B)     with the Trailer on the Collection Date.

8.3              Non-Collection. In the event that the Customer does not Accept, Collect or make Payment within ten (10) days after the Delivery Date has expired, the Customer hereby allows GLT, in its absolute discretion to take the following options, upon 14 days’ Notice to the Customer:-

(A)       If the Customer fails to make the Payment:

                                          i.         To withhold Collection;

                                         ii.         offer the Trailer for sale to a third party, and to complete such sale, retain the proceeds of that resale; and

                                        iii.         recovery from the Customer as a debt, the difference between the balance Contract Price owing plus any additional costs incurred in the sale process and additional storage and the amount realised upon sale to a third party under this clause 8.3(A); or

(B)     If Payment is made. At the Customer’s cost:

                            i.         transport and store the Trailer at any place and such manner determined by GLT in its absolute discretion. Prior to delivery under this clause GLT will provide the Customer with 14 days’ notice of the address of the intended storage location and the Customer may within that notice period inform GLT of an alternate address for delivery and storage, which address GLT will deliver the Trailer to; or

                           ii.         deliver the Trailer to the Customer’s address noted in the Contract documents and upon delivery at that address the Trailer will be at the Customer’s own risk;

and the Customer must pay any and all costs associated with such transport and storage immediately on demand by GLT and upon the Trailer leaving the Premises, the Trailer will be at the Customer’s own risk and the Customer will indemnify GLT for any loss or damage caused to the Trailer once it has left the Premises.

8.4              The remedies specified in clause 8.3 are without prejudice to any other remedies otherwise available to GLT, including but not limited to claims for specific performance.

9                   GLT EXCLUSION FROM LIABILITY

9.1              GLT warrants to the Customer that this Clause 9 does not exclude or modify the application of the statutory guarantees in Section 64 or Section 259 of the ACL. GLT does not exclude or modify its obligation as a manufacturer of the Trailer from damages caused by a Safety Defect insofar as it appears relevant to section 150 of the ACL.

9.2              Notwithstanding any other provision of this Contract, GLT will not be liable to the Customer for any:

(A)     indirect loss, loss of revenue, loss of profit, loss of goodwill, lost opportunity, financial penalties imposed by any governmental agency or any other indirect or consequential loss arising from or in relation to this Appointment and notwithstanding Termination of this Appointment by either party; or

(B)     liability in negligence for acts or omissions of any third party outside of the control of GLT arising out of or in connection with this Contract; or

(C)    Claim suffered or incurred by the Customer in connection with the Customer’s use or modification of the Trailer;

– and the Customer releases GLT from such Liability.

9.3              In the sale or supply of the Trailer by the Customer to a third party, the Customer accepts that GLT, as the manufacturer, will not be liable for any economic loss, liability or tort for negligence arising out of the actions or omissions of the Customer.

9.4              Without prejudice to the operation of the GLT or the Supplier, GLT will not be liable for any failure to or delay in performing any of GLT’s obligations under this Contract if the failure or delay arose from a cause beyond its reasonable control.  GLT must give the Customer Notice of the cause as soon as possible after becoming aware of it and must take all reasonable steps to mitigate the consequences of the failure or the duration of the delay.

9.5              For the purposes of Clause 9.4, a cause beyond the reasonable control of GLT includes an act of God, war, act of public enemy, blockade, revolution, riot, insurrection, civil commotion, lightning, storm, flood, pandemic, fire, earthquake, explosion, embargo, strike, trade dispute, industrial action, delay in transportation, accident of any kind, default or delay by any supplier to GLT, damage to stoppage or breakdown of plant or machinery or shortage of any labour or material because of a cause related to a GLT Component unless the failure to comply with the relevant statutory guarantee was because of a clause independent of human control that occurred after the components left the control of the Supplier or GLT.

10                IPR

10.1           The Customer acknowledges with GLT as follows:

(A)     GLT retains the unencumbered title to the IPR in the GLT Material;

(B)     the Customer is granted a non-exclusive warranty-free licence of the IPR in the Customer’s Material for the purposes of the Appointment;

(C)     the Customer’s Material will not infringe the IPR of any third party.

11                DISPUTES

11.1           A party will not start any alternate dispute resolution or court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute arising out of the Appointment (”Dispute”) unless that party has complied with this Clause 11.

11.2           The Parties agree that:

(A)     a Party claiming that a Dispute has arisen must Notify in writing to the other Party, giving details of the Dispute and requiring its resolution under this Clause 11;

(B)     during the twenty‐one (21) day period after a Notice is given under sub‐clause (a) or such longer period as is agreed in writing by the parties to the Dispute (Initial Period) each Disputant must use its best efforts to resolve the Dispute;

(C)    if the Disputants are unable to resolve the Dispute within the Initial Period, each Disputant agrees that the Dispute must be referred for arbitration in accordance with the following conditions:

(i)      the arbitration is to be conducted in accordance with The Institute of Arbitrators & Mediators’ Australia Fast Track Arbitration Rules;

(ii)     the arbitration is to be conducted by an arbitrator accredited under the National Arbitrator Accreditation System:

(1)     as agreed by the Disputants;

(2)     if the Disputants are unable to agree upon the arbitrator within seven (7) days after the end of the Initial Period, by an arbitrator nominated by the president of the Heavy Vehicle Industry Association; and

(3)     the decision of the sole arbitrator shall be final and binding and shall be enforceable in any court of competent jurisdiction;

(D)    any information or documents disclosed by a Disputant under this Clause 11;

(i)      must remain confidential; and

(ii)     may not be used for any other purpose except to attempt to resolve the Dispute in accordance with Clause 11;

(E)     each Disputant must bear its own costs of complying with this Clause 11 and the Disputants must bear equally the costs of any arbitrator engaged;

(F)     after the conclusion of the Initial Period, a Disputant that has complied with sub‐clauses (a), (b) and (c) may terminate the dispute resolution process by giving Notice to each other Disputant;

(G)    if a Disputant breaches any provision of this Clause 11, each other Disputant need not comply with Clause 11 in relation to that Dispute, but rather may treat such as a breach for the purposes of Termination of this Contract.

12                TERMINATION

12.1           Subject to compliance with Clause 11, GLT may Terminate the Appointment immediately by written Notice to the Customer if any of the following occurs:

(A)     the Customer is in breach of its obligations under this Appointment which breach undermines the benefit of the Appointment to GLT and the Customer does not remedy the breach (to the extent that it can be remedied) for 14 days after receiving a written Notice from GLT specifying the breach and requiring it to be remedied; or

(B)     the Customer is the subject of an Insolvency Event.

                                                                                                          (“Termination Notice”)

12.2           Upon Termination by GLT in accordance with this clause 12:

(A)       the Customer must pay GLT the Price for the Trailer as constructed to the point of the Termination Notice;

(B)       GLT will be entitled to retain any cash Deposit Paid or call on any bank guarantee provided to GLT in accordance with clause 4 herein; and

(C)       each party retains its rights under this Contract and at law in respect of any breach of this Contract by the other party.

12.3     In the event GLT is required to commence proceedings against the Customer in relation to any breach of this Contract, the Customer will be liable to pay any and all of GLT’s legal costs on a solicitor and own client basis.

13                SURVIVAL

13.1           Clauses survive end of the Appointment. The provisions of this Contract which by their nature survive the cessation of the Appointment continue in force after the expiration or Termination of this Contract including without limitation Clause 14 (Indemnity) and this Clause 13 (Survival).

14                INDEMNITY

14.1           The Customer. The Customer agrees to indemnify GLT against all:-

(A)     Liabilities which GLT suffers as a result of an act omission or breach of this Contract by the Customer; and

(B)     Claims made by any third party against GLT in relation to, by reason of, or in connection with:-

(i)      in circumstances that constitute, a breach of any of the Customer’s warranties or undertakings of the Customer;

(ii)     any failure by the Customer to fulfil its obligations; or

(iii)    any other act or omission by the Customer resulting in said loss or damage,

in this Contract, provided that GLT has not contributed to the circumstances under which the Claim or Liability has arisen against GLT.

15                GENERAL PROVISIONS

15.1           Assignment

Unless otherwise expressly provided in this Agreement, a party must not assign, create an interest in, or in any other way deal with, any of its rights or obligations under this Agreement without the prior written consent of the other parties.  For the avoidance of doubt, a change in Control of a party will not be deemed to constitute an assignment of any of that party’s rights under this Agreement.

15.2           Invalid or unenforceable

If a provision of this Agreement is invalid or unenforceable in a jurisdiction:

(A)       it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and

(B)       it does not affect the validity or enforceability of:

                                     i.           that provision in another jurisdiction; or

                                   ii.           the remaining provisions of this Agreement.

15.3           Waiver and exercise of rights

(A)       A waiver of a provision or of a right arising under this Agreement may only be given in writing by the party granting the waiver;

(B)       A waiver is effective only in the specific instance and for the specific purpose for which it is given;

(C)       A single or partial exercise of a right by a party does not preclude another or further exercise or attempted exercise of that right or the exercise of another right;

(D)       Failure by a party to exercise or delay in exercising a right does not prevent its exercise or operate as a waiver.

15.4           Time is of the essence of this Contract.

15.5           This Contract is governed by the laws of Queensland, Australia and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of that State.

16                INTERPRETATION

16.1           In this Contract, unless the context otherwise requires, the following expressions will have the meanings as ascribed to them below:-