Conditions of Sale
a. Any order for the purchase of goods placed by the Purchaser (order) will incorporate these Conditions of Sale (Conditions) and any conditions contained in a Purchaser’s order are excluded, unless expressly agreed to in writing by MCH Altone. (ABN 52 605 800 182) (Company)
b. The Company reserves the right to vary these Conditions at any time by written notice.
c. In these Conditions, Contract means a Purchaser’s order when accepted by the Company, these Conditions, any other part of this document and any other terms and conditions agreed in writing by the Company and Purchaser, goods means the goods that the Company proposes to sell, or has sold to a Purchaser, being (where relevant) the goods described on the other part of this document, and a reference to goods includes services; GST means goods and services tax; Purchaser means the person buying goods from the Company: PPSA means the Personal Property Securities Act 2009 (Cth).
d. The Contract constitutes the entire agreement between the parties as to its subject matter and may only be amended in writing and signed by both parties. If there are any inconsistency between any of the terms of a contact, the order of priority is:
i. Any other terms and conditions agreed in writing by the Company;
ii. these Conditions any other part of this document
iii. the Purchaser’s order
f. The Purchaser acknowledges that it has read and accepts these Conditions are fair and reasonable, except to the extent otherwise agreed in writing by the parties.
2. Prices and Quotations
Unless the Company otherwise agrees in writing:
a. Prices quoted are based on the Company’s estimated cost of production, manufacture or supply at the time of quotation and may be altered without notice to the Purchaser if there is any increase in the Company’s costs between the date of the quotation and the date of acceptance of the order.
b. All goods will be charged in accordance with the Company’s prices at the date of acceptance of the order (plus any applicable GST) that are applicable for the relevant delivery date, which must be paid to the Company by the Purchaser when payment for the goods is due.
c. Prices will be rounded to the nearest whole cent in the company’s invoices.
a. Payment must be made without deduction by the last working day of the month after the month of invoice, unless otherwise noted on the other part of this document or agreed in writing by the Company.
b. The Company reserves the right to vary the terms of payment and to require payment in full prior to delivery if, at any time, the credit worthiness of the Purchaser is, in the Company’s opinion, unsatisfactory. If the Purchaser has not paid the Company in full by the due date, the Company may, at its option, rescind the contract and resell or dispose of the goods without prejudice to any claims for damages against the Purchaser.
a. Unless otherwise agreed in writing by the Company, all costs of delivery will be for the Purchaser’s account.
b. Any date for delivery of the goods or completion of the services shown on the other part of this document or otherwise indicated by the Company whether before or after or at the same time as the contract is made, is an estimated date for delivery only. The Company will not be liable for any loss or damage, however it arises, if the goods are not delivered or the services are not completed by that date.
c. Without limiting clause 4(b), the Company is not liable for any delay in delivery for any reason including without limitation:
i. Acts of god, war, riots, strikes, lock out, trade disputes, fires,
ii. break downs, mechanical failures, interruptions of transport,
iii. Government action or any other cause whatsoever, whether or not of a like nature to those specified above, outside the reasonable control of the Company.
5. Risk and Property
a. Except as otherwise provided herein, the goods supplied by the Company to the Purchaser shall be at the Purchaser’s sole risk immediately on their delivery to the Purchaser.
b. Property and title in the goods supplied by the Company to the Purchaser will not pass to the Purchaser until such time as the goods the subject of the Contract and all other goods supplied by the Company have been paid for in full. Until that time, the Purchaser shall store the goods, including goods into which the supplied goods have been mixed, in such a manner as to show clearly that they are the property of the Company and shall upon the Company’s demand deliver up such goods to the Company. In default of such delivery the Company may by its servants and agents enter the Purchaser’s premises at any time and without notice to repossess the goods.
a. Unless otherwise stated on the other part of this document or agreed in writing by the Company, the specification of the goods is in respect of tolerances, weight, quantity, size, dimension, finishes, chemical composition and physical properties as stated in the Company’s most recent published product data and/or in any recent applicable drawings issued by the Company, or, if not specified, subject to tolerances normally regarded as being commercially acceptable.
b. All illustrations, drawings and specifications remain the property of the Company and must be treated as confidential by the Purchaser (who may not copy, sell, lend or otherwise dispose of or use them without prior written consent of the Company)
7. Implied Terms
Except as detailed in these Conditions, all conditions and warranties expressed or implied by statute, the common law, equity, trade, custom or usage or otherwise are expressly excluded to the maximum extent permitted by law.
a. The Company warrants that all goods (and their components) manufactured by it will be free from defects in material or workmanship under use and service.
b. In relation to the goods the subject of an order for less than $40,000; the Company acknowledges that the 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 for 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.
c. The Company will investigate and determine, in its discretion, whether the goods and their components are defective.
d. The liability of the Company under this Condition is limited as detailed in clause 9 below. All other costs, including cartage and installation, must be paid by the Purchaser.
e. While the goods are in the custody of the Company for investigation or repair they will be at the risk of the Purchaser and the Company will not be liable for any damage to the goods.
f. The Company will use its reasonable endeavours to obtain for the Purchaser the benefit of any applicable manufacturer’s warranty in respect of goods not manufactured by the Company.
9. Liability and Indemnity
To the maximum extent permitted by law, the liability of the Company however arising under a contract is limited, at the Company’s option to:
a. the replacement or repair of the goods;
b. the supply of equivalent goods:
c. or the cost of replacing or repairing the goods or of acquiring equivalent goods.
The Purchaser agrees to release, hold harmless and indemnify the Company from and against any liability whatsoever and however arising in connection with the use of the goods by the Purchaser.
10. Indirect Loss
To the maximum extent permitted by law, the Company is not liable in any way for any indirect or consequential loss including loss of profit, revenue, reputation or opportunity, in contract, tort (including negligence) or otherwise arising in connection with a contract.
11. No Limitation on statutory rights
Nothing in the clauses 7, 8, 9 or 10 purports to have or has the effect on excluding, limiting or modifying any rights, entitlements or remedies that may be conferred on a Purchaser under the Competition and Consumer Act 2011 (Cth) or the Sale of Goods Act 1923 (NSW) to the extent that those rights, entitlements or remedies cannot be excluded or modified by agreement.
If the Purchaser cancels an order or refuses to accept all or any of the goods in an order other in circumstances permitted in a contract, the Purchaser will be liable for any resulting damage or loss suffered by the Company. If the goods have been or are in the process of being manufactured or produced specifically for the Purchaser, the Purchaser will pay the Company as liquidated damages the full contract price of the goods and any other additional costs incurred by the Company (including any GST) less the scrap value of the goods as determined by the Company.
Failure by the Company to insist on strict performance of any term, warranty or condition of the contract will not be taken as a waiver of it or any rights the Company may have and no waiver will be taken as a waiver of any subsequent breach of any term, warranty or condition.
Without prejudice to any other rights or remedies of the Company, if any payment is not made by the due date, the Purchaser will pay on demand without limiting any other rights of the company, interest rate of 2% per year above the standard overdraft rate (for overdrafts under $100,000) applied by the Company’s primary bank at the time, on outstanding amount, calculated from the due date for payment until payment is made in full.
15. Notice of Defects
The Purchaser must notify the Company immediately of any defect in the goods of which it becomes aware after delivery and will take all reasonable steps to mitigate loss (if any) arising as a consequence of the defect. If the Purchaser transforms the goods and sells the transformed goods, the Purchaser undertakes to the Company that it will impose on the acquirer of the transformed goods an obligation to notify immediately the Purchaser and the Company of any defect in the transformed goods of which it becomes aware after delivery and to take all reasonable steps to mitigate loss (if any) arising as a consequence of the defect. The Company will not be required to incur additional expense in the repairing goods caused by the transformation of goods or the integration of goods with other goods.
a. Defined terms used in this clause 16 have the same meaning as given them in the PPSA.
b. The Company and Purchaser acknowledge that a contract constitutes a Security Agreement and gives rise to a Purchase Money Security Interest (PMSI) in favour of the Company over the goods supplied to the Purchaser, as Grantor, pursuant to a contract, and over the Proceeds (including any sale monies or an account for such monies and insurance monies).
c. The goods supplied or to be supplied under a contract fall within the PPSA classification of “other Goods” acquired by the Purchaser pursuant to these Conditions.
d. The Purchaser acknowledges that the Seller, as Secured Party, is entitled to register its interest in the goods supplied or to be supplied to the Purchaser, as Grantor, under contract on the PPSA Register as Collateral.
e. The Purchaser waives the right to any of the following under the PPSA:
i. Receive notification of a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Purchaser, as Grantor, to the Company;
ii. receive notice of removal of an Accession under section 95
iii. receive notice of an intention to seize Collateral under section 123
iv. receive notice of disposal of Collateral under section 130
v. receive a Statement of Account if there is no disposal under section 130(4);
vi. receive notice of retention of Collateral under section 135;
vii. redeem the Collateral under section 142;
viii. reinstate the Security Agreement under section 143;
ix. object to the purchase of the Collateral by the Secured Party under section 129;
x. receive a Statement of Account under section 123(3)(d) following a disposal showing the amounts paid to the other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.
xi. The Purchaser agrees that, to the extent permitted by law, nothing in sections 130 to 143 of the PPSA will apply to, or the Security under, these Conditions
Any notice to be given to the Purchaser shall be deemed to be given upon its being posted or sent by facsimile to the address or facsimile number of the Purchaser set out in the contract or the Purchaser’s registered office or to the Purchaser’s last known address.