In consideration of Moddex Group Pty. Limited ACN 146 767 866 (the supplier) agreeing to supply goods and/or services (goods) to the Customer, the Customer agrees and accepts that these terms and conditions apply to all sale of goods by the supplier to the Customer, to the exclusion of any conditions of sale appearing on any document of the Customer. The Customer further acknowledges that these Terms and Conditions of Sale constitute the entire agreement of the parties as to the supply of goods by the supplier, and may not be varied without the prior written agreement of the supplier. The Customer and/or Guarantor/s acknowledge that the supplier may lodge a caveat over any land that they own or may own to secure payment of any monies now or in the future payable or which are owing to the supplier.
2. Ownership of Goods
Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
(a) The Customer creates a security interest in favour of The supplier by way of charging all of the Customer’s rights, property and undertaking of whatever kind and wherever situated and whether present or future for the purpose of securing payment of all amounts that, at any time and for any reason or circumstance and whether at law or otherwise and whether or not of a type within the contemplation of the parties at the date of this Agreement, are payable, are owing but not currently payable, are contingently owing, or remain unpaid by the Customer to The supplier. If the Customer fails to pay any amount owing to The supplier by the due date, The supplier may appoint one or more receivers to the Customer’s property and undertaking, and any such receiver may do anything that a receiver could do under law. The Customer agrees that if demand is made by The supplier, the Customer receiving such a demand will immediately execute a real property mortgage or other instrument of security, or consent to caveat, as required, and against the event that the Customer fails to do so within a reasonable time of being so requested, the Customer irrevocably and by way of security, appoints any credit manager or solicitor engaged by The supplier to be its true and lawful attorney to execute and register such instruments.
(b) Goods supplied by the supplier to the Customer are at the Customer’s risk immediately on the earlier of delivery to the Customer or into the Customer’s custody, including its carrier or forwarder. The Customer must insure the goods at its cost from delivery of the goods until they are paid for in full against such risks as are usual or common to insure against in a business of a similar nature to the Customer.
(c) Property in the goods supplied by the supplier to the Customer does not pass to the Customer until those goods have been paid for in full. The supplier may take repossession of, and the customer will return to the supplier, any goods for which it has not been paid for in full in accordance with these terms and conditions. In the meantime, the Customer takes custody of the goods and retains them only as fiduciary agent and bailee of the supplier. Until goods have been paid for in full;
a. to the extent possible, the Customer must store the goods in a manner that shows clearly they are the property of The supplier, maintain records relating to the goods, secure the goods from risk, damage and theft and ensure that the goods are kept in good and serviceable condition;
b. the Customer may sell the goods, in the ordinary course of its business, but only as fiduciary agent of The supplier. The Customer must not represent to any third party that the Customer is acting in any capacity for or on behalf of The supplier and the Customer has no authority to bind The supplier to any contract or otherwise assume any liability for or on behalf of The supplier. The supplier also has a security interest in all proceeds of the goods, and the Customer receives all proceeds in trust for The supplier and must keep the proceeds in a separate bank account (which is not subject to any security interest in favour of another person) until all liability to The supplier is discharged;
c. if the Customer uses the goods in some manufacturing or construction process of its own or of a third party, The supplier also has a security interest in all proceeds of the goods, and the Customer must hold in trust for The supplier that part of the proceeds of the manufacturing or construction process as is equal to the amount owing by the Customer to The supplier at the time of receipt of the proceeds.
(d) The supplier may register any security interest created under any provisions of these terms and conditions, and may give any notification in connection with a security interest. The Customer must do anything The supplier asks and considers necessary for the purposes of ensuring that a security interest created under these terms and conditions is registrable, enforceable, perfected and otherwise effective (such as providing information, obtaining consents, signing and producing documents, producing receipts and getting documents completed and signed).
(e) The supplier need not give any notice under the Personal Property Securities Act (Commonwealth) (“PPSA”) (including a notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded. The supplier need not comply with any of the provisions of the PPSA that would otherwise apply to the extent the law permits them to be excluded. The Customer may not exercise rights under the provisions relating to reinstatement of security interest of the PPSA to the extent the law permits them to be excluded.
3. Claims, Cancellations and Returns
(a) The Customer shall notify the supplier in writing of any defects in the goods within ten (10) days from supply. The supplier shall only be liable for correction of such claims as are notified and agreed within the stipulated time. The Customer will raise no claim where goods have been manufactured/procured to verbal specifications and such details have not been confirmed by the Customer in writing.
(b) Cancellations are accepted only if payment of the cost of goods, labour and material expended to date of cancellation plus an administration charge of 10% are paid on that date.
(c) Custom manufactured and special procured items are not returnable. Stock line items may be returned within fourteen (14) days of delivery for credit. A request for return must be made in writing and returns will not be accepted without prior approval from the supplier. All freight costs for returns are the Customers responsibility, and the supplier reserves the right to charge a restocking fee of 10% on any returns.
(d) Without prejudice to any other remedies the Supplier may have, if at any time the Customer is in breach of any obligation (including those relating to payment) the Supplier may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. The Supplier will not be liable to the Customer for any loss or damage the Customer suffers because the Supplier has exercised its rights under this clause.
(e) Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable in the event that:
1. any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Customer will be unable to meet its payments as they fall due; or
2. the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
3. a receiver, manager, administrator, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
All prices quoted are exclusive of GST, unless GST is clearly defined immediately prior to the quotation total. Quotations are valid for a period of one (1) month from date of quotation, and subject to availability of quoted materials at time of order, unless otherwise specified in writing.
5. Terms of Payment
(a) Payment for material, goods and services pursuant to this agreement including GST is due seven (7) days from the date of Invoice unless otherwise stated in writing by the supplier.
(b) After the due date of payment, the supplier may charge interest on outstanding amounts payable, calculated on a daily balance, at the rate of the then current Cash Rate Target published by the Reserve Bank of Australia increased by 4%
(c) The supplier may, at its discretion, charge an administration fee on any overdue account at the rate of 10% of the outstanding amount, which will be immediately due and payable.
(d) The Customer agrees to pay and reimburse the supplier on demand for all legal costs, stamp duty or other costs or expenses suffered or incurred by the supplier in respect of the preparation of any agreements, personal guarantees, securities or other documentation required by the supplier to document or secure the provision of credit to the customer together with all collection and enforcement costs and expenses which the supplier may suffer or incur in connection with the sale of goods or supply of services or provisions of credit to the Customer (without limitation) legal costs on a full Indemnity basis.
6. Changes in Ownership
In the event of the Customer, being an individual or partnership, incorporates his/her business and the Company continues to use the existing account, or the account is used by a Company of which he/she is a director, he/she hereby agrees to personally guarantee all due debts. If ownership of the Customer’s business changes, the Customer will remain liable for all debt incurred on this account until such time as the supplier is notified in writing of such change.
7. Limitation of Liability
The Customer acknowledges that no warranty; condition, description or representation in relation to goods supplied is given by the supplier, expressly or implied. All warranties, terms and conditions in relation to the state, quality of fitness of the goods and of every other kind whether implied by use, statute or otherwise are hereby excluded. The supplier shall not be liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply of the goods arising out of the supplier’s negligence or in any way whatsoever. The supplier’s liability for a breach of a condition or warranty implied by the provisions of the Competition and Consumer act 2010 (other than those which cannot be excluded or limited) is hereby limited to: -
(a) In the case of goods, any one or more of the following:-
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods;
(iv) the payment of the cost of having the goods repaired; or
(b) In the case of services:-
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again
The supplier’s liability under s. 274 of the Competition and Consumer Act 2010 is expressly limited to a liability to pay the customer an amount equal to: -
(a) The cost of replacing the goods; or the cost of obtaining equivalent goods; or
(b) The cost of having the goods repaired, whichever is the lowest amount.
For goods not manufactured by the supplier, the warranty shall be the current warranty supplied by the manufacturer of the goods. The supplier shall not be bound by nor be responsible for any term, condition, warranty, description or representation other than that which is given by the manufacturer of the goods.
Notwithstanding the provisions of this clause, and subject to the provisions of any applicable legislation, it is the responsibility of the persons specifying and/or installing any of the supplier’s products to ensure that both the product and the finished installation meet the specifications and requirements of the relevant Australian Standards and/or Building Codes. In particular, all product specifications and technical descriptions, recommendations and other information provided by the supplier are given as general guidance and advice, and are to be read in conjunction with the supplier installation instructions, and any other data available and applicable to each particular standard product or system. Use of such data is however the Customer’s sole responsibility, taking into account the intended application and actual conditions existing on the particular worksite. Consequent selection of the right product for any particular use remains the Customer’s ultimate responsibility. The supplier is therefore not obligated or liable for any direct or indirect, incidental or consequential damages, losses or expenses in connection with, or by reason of the suitability and use of or otherwise, any product or system for any purpose. Implied warranties of merchantability or fitness for any particular purpose, are specifically excluded. The supplier maintains a policy of continuous improvement and development, and therefore reserves the right to modify, amend or otherwise alter product and system designs and specifications, models and part numbers, colours and pricing etc, without prior notice. Errors and omissions are excepted, and the supplier accepts no liability whatever for incorrect information, errors or omissions.
8. Exercise of Legal Rights
The failure, delay, relaxation or indulgence on the part of the supplier in exercising any power or right conferred upon the supplier by these Terms and Conditions of Sale does not operate as a waiver of that power or right, nor does any single exercise of any power or right preclude any other or further exercise of it or the exercise of any other power or right under these Terms and Conditions of Sale.
9. Force Majeure
The supplier shall not be liable for failure or delay if such is due to fire, typhoon, cyclone, earthquake, flood, tsunami, strike, labour dispute, war, government order, riot, revolution, pandemic or any other cause beyond its reasonable control.
10. Governing Law
These Terms and Conditions of Sale shall be construed in accordance with the law in force in Queensland, Australia and the parties agree to submit to the non-exclusive jurisdiction of the Courts of that state. It shall be competent for the supplier to issue proceedings in Brisbane, Queensland in a Court of competent jurisdiction.
Where these Terms and Conditions of Sale are qualified by any provision of law which applies and which cannot be excluded, where any such provision in these Terms and Conditions of Sale is deemed to be unlawful or unenforceable, such provision shall be severed from these Terms and Conditions of Sale and all other provisions hereof shall remain in force to the fullest extent permitted by law.