Terms and Conditions of Sale
These Terms and Conditions of Sale (“Terms”), and any amendments published from time to time on the Company’s website at www.middys.com.au (“Terms”) apply whenever the Company supplies any products (“Goods”) to any person (the “Customer”), unless expressly agreed otherwise by the Company in writing. By requesting, ordering, purchasing or receiving delivery of any Goods, the Customer is deemed to have accepted these Terms and to have agreed that they apply to the exclusion of all others.
1.1 A quotation made by the Company shall not be construed as an offer or obligation to supply in accordance with the quotation. The Company reserves the right to accept or reject, at its discretion, any order for Goods.
2. Conditions of Supply
2.1 Where the Customer is a Limited Company, the Company reserves the right to request an indemnity from the Directors of that company. Where the Customer is a Proprietary Limited Company, the Company reserves the right to request a personal guarantee from the Directors of that Company. The Customer agrees to pay the account in accordance with the Company’s Terms.
3. Change of Ownership
3.1 In the event the ownership or legal entity of the Customer changes, the Company must be immediately notified in writing. Until such notification is received and acknowledged by the Company, liability for any unpaid account will remain with the Customer as disclosed in the Company’s records.
4.1 Prices for Goods are set out in accordance with the Company’s price list, which is subject to change from time to time.
4.2 The price payable by the Customer is the price quoted at the date of raising an invoice in respect of the Goods.
4.3 The Company may from time to time, charge reasonable storage fees.
4.4 Where the Company has provided the Customer with a quotation in relation to the supply of Goods, the Company’s standard terms of quotation will apply in conjunction with these Terms and to the extent of any inconsistency, the quotation terms will prevail.
5.1 Payment is to be by cash unless the Company has granted the Customer a credit facility.
5.2 If Goods are sold to the Customer on credit then all invoiced amounts are payable within 30 days of the date of the invoice, unless agreed otherwise by the “Company” in writing.
5.3 The Customer hereby agrees to indemnify and / or reimburse the “Company” in relation to any costs incurred by the “Company” in attempting to recover amounts owed by the Customer to the “Company” pursuant to these Terms.
6.1 Unless otherwise agreed the Company will arrange for delivery of the Goods.
6.2 Risk of loss to Goods will pass to the Customer on the earlier collection of Goods by the Customer, delivery of Goods to the Customer by the Company and delivery of Goods by the Company to a carrier for the purposes of delivering Goods to the Customer.
6.3 The Company will not be liable for any delay in delivery of Goods.
6.4 The Customer may only request proof of delivery within 30 days of the delivery date.
7.1 The Customer will have no claim for shortages or defects in respect of any Goods that are apparent on inspection unless a written complaint is delivered to the Company within 7 days of receipt of the Goods that specifies the shortage or defect.
7.2 The Company will only, at its option, accept the return of or give a credit for Goods where:
(a) a Customer has complied with Clause 6 under these Terms; and
(b) the Company is satisfied as to the claim by the Customer.
7.3 In the case of Goods that at the request of the Customer have been specifically sourced, the Company will only accept return of the Goods for credit. In the case of buy-ins against a Customer’s order, a credit will only be allowed if the original manufacturer/supplier also accepts return of the Goods.
7.4 In the event that the Company elects to have the Goods returned, the Goods must be returned to the Company in the same condition as when they were first delivered to the Customer with the relevant invoice number and date of order. The Company will not accept the return or give a credit for any Goods that are supplied in cut lengths.
7.5 All Goods returned will be subject to a minimum handling charge of 20% of the invoiced price except in the case of defective Goods or Goods that have been incorrectly supplied.
8.1 The Company warrants that all Goods supplied by it to the Customer:
(a) are free from any encumbrance, other than any encumbrance created under these Terms; and
(b) are of merchantable quality and are fit for their intended purpose.
8.2 If any of the Goods delivered to the Customer do not meet the standards set out in clause 8.1, the Customer must notify the Company in writing within seven days of delivery and the Company’s responsibility for any non-compliant Goods will be determined in accordance with clause 7.1. Any claims not made within this timeframe will be invalid and the Company will have no liability whatsoever in respect of such claims. The customer has the opportunity to negotiate this provision prior to ordering any Goods and confirms that it has agreed to this provision.
8.3 Except for the warranties provided in clause 8.1 and subject to any warranties which may be provided by the manufacturer of specific Goods, to the extent permitted by law the Company excludes all warranties of whatsoever kind or nature, either express or implied in connection with the supply of Goods by the Company to the Customer.
9. Limitation of Liability
9.1 In respect of the warranties in clause 8.1 and any non-excludable warranties, the Company’s liability for breach of such conditions or warranties and the Customer’s remedy in relation to such breaches shall be either:
(a) replacing the Goods;
(b) repairing the Goods; or
(c) refunding the Price paid for the relevant Good.
9.2 The warranties provided by the Company and a manufacturer of Goods are void on all Goods sold where those Goods have been installed by persons other than Registered Electrical Contractors, and/or where the Goods have been installed other than in accordance with the instruction manual for the Goods.
9.3 To the extent permitted under the Australian Consumer Law, notwithstanding any provision in these Terms, the Customer must not make a claim or demand against the Company or its agents for consequential, indirect, special, incidental, exemplary or economic damage or loss (including loss of use, loss of revenue, loss of profit, business interruption, costs of procurement or substitution of goods, technology or services or loss of information) arising in connection with the supply of Goods pursuant to these Terms (including any claim in negligence, equity or otherwise). The Customer agrees that this provision is necessary to protect the Company’s business.
9.4 To the extent permitted under the Australian Consumer Law, the Customer indemnifies the Company from and against any damages that it or its related bodies corporate suffer, incur or are liable for as a direct or indirect result of any breach of these Terms, or in connection with the use of the Company’s website or any conduct which may be considered misleading or deceptive, by the Customer or its agents.
10. Risk and Title
10.1 Risk in the Goods passes to the Customer on delivery.
10.2 Ownership of and title to the Goods is retained by the Company and shall not pass to the Customer until the Company receives payment in full for the Goods.
10.3 Until title in the Goods passes to the Customer:
(a) the Customer must: (i) hold the Goods as bailee of the Company; and (ii) insure the Goods against all risks for their full price from the date of delivery.
(b) the Company authorises the Customer, in the ordinary course of the Customer’s business, to use the Goods or sell them for full consideration, provided that the proceeds of such sale or use (in whatever form) shall be the property of the Company and the Customer must hold such proceeds on trust for the Company and deal with them as the Company directs. This authority to use and sell the Goods automatically terminates if the Customer breaches these Terms, the Customer trades outside the terms of the Customer’s credit facilities (if any), the Customer becomes insolvent, the Customer enters into bankruptcy, an Administrator or Receiver is appointed over all or any of the business undertaking of the Customer or the Customer is served with a Statutory Demand pursuant to the Corporations Law or any Guarantor of the Customer’s indebtedness to the Company revokes its Guarantee or the Company decides, in its absolute discretion, to revoke such authority;
(c) upon termination of the authority granted under sub-clause (b) above, the Company may take possession of any Goods for which it has not yet received payment and enter any premises where such Goods may be located and all amounts owing by the Customer in respect of the Goods together with all other debts owing by the Customer to the Company will become due and payable and must be paid by the Customer on demand by the Company;
(d) The Company will be entitled (without prejudice to any other rights or remedies provided under these Terms or otherwise) to:
(i) suspend indefinitely all further deliveries or Goods in respect of any order or any other orders being processed for delivery and cancel any order or refuse to accept any further orders with respect to the Customer;
(ii) cancel any credit facility provided to the Customer;
(iii) require the return of all Goods to the Company for Goods to which ownership has not passed in accordance with these Terms;
(iv) terminate any Contract by written notice to the Customer
(e) The Company will not be liable for any loss (including any loss resulting from negligence) that may be suffered by the Customer as a result of the Company taking any action under this Clause 10.
(f) the Goods are inventory for the purposes of the PPSA; and
(g) the Company retains a security interest in all Goods supplied by the Company to the Customer.
11. Personal Property Securities Act 2009 (“PPSA”)
11.1 The Customer acknowledges that these Terms constitute a security agreement for the purposes of the PPSA and creates a security interest in all of the Customer’s present and after-acquired Goods supplied by the Company.
11.2 The Company and the Customer agree that nothing in sections 130(1)(a) and 143 of the PPSA will apply to these Terms.
11.3 The Customer waives its rights as a debtor under sections 92, 93, 94, 95, 97, 118, 121, 132, 135, 137, 140 and 142 of the PPSA.
11.4 The Customer further agrees that where the Company has rights in addition to those under Chapter 4 of the PPSA, those rights will continue to apply.
11.5 In this clause:
(a) “security agreement” means the security agreement under the PPSA created between the Customer and the Company; and
(b) “security interest” has the meaning given to it by the PPSA.
12. Charging Clause
12.1 The Customer charges as beneficial owner and as trustee of every trust all the Customers land (including land acquired in the future) in favour of the Company to secure the payment of any amounts owed by the Customer to the Company and the performance and observance of the Customers covenants under these Terms. In this clause ‘trust’ means each trust for which the Customer holds land as trustee.
13. Force Majeure
13.1 The Company shall not be liable for any delay or failure to perform its obligations pursuant to these Terms if such delay is directly or indirectly caused by any event or circumstance beyond the Company’s reasonable control, including fire, flood, crime, war, blockade, civil commotion, strike, lockout or labour dispute, inability to procure stock or transport, or acts or omissions by regulatory authorities (“Force Majeure Event”).
13.2 If a delay or failure by the “Company” to perform its obligations due to Force Majeure Event exceeds 60 days, either party may terminate these Terms by providing written notice to the other party.
14.1 These Terms are a payment claim under the Building and Construction Industry Security of Payment Act 2002 (Vic).
14.2 Unless specified otherwise, if GST is payable by a supplier (or by the representative member for a GST group of which the supplier is a member) on any supply made under or in relation to these Terms, the recipient must pay to the supplier an amount (GST Amount) equal to the GST payable on the supply. The GST Amount is payable by the recipient in addition to and at the same time as the consideration payable for the supply excluding GST.
14.3 If at any time any monies payable by the Customer under these Terms are not paid on the due date, the Customer shall pay interest at the rate prescribed from time to time under the Penalty Interest Rates Act (Vic) plus 2% on any amount overdue from the due date for payment until the date payment is made.
14.4 The Company may transfer any right or liability under these Terms at its absolute discretion. The Customer may not transfer any right or liability under these Terms without the prior written consent of the Company which consent will not be unreasonably withheld.
14.5 These Terms are governed by and construed under the law in the State of Victoria. Any legal action in relation to these Terms against any party or its property may be brought in any court of competent jurisdiction in the State of Victoria.
14.6 The Company may vary these Terms from time to time. Any such variation will be effective from the date specified by the Company in any written notice provided to the Customer or published on the Company’s website. By requesting, or continuing to request, any Goods after such effective date, the Customer accepts and agrees to be bound by such variation.
14.7 Any amendment to these Terms has no force or effect, unless effected by a document executed by the Company.
14.8 Any failure by any party to exercise any right under these Terms does not operate as a waiver and the single or partial exercise of any right by that party does not preclude any other or further exercise of that or any other right by that party.
14.9 If a party enters into these Terms as trustee of a trust, that party and its successors as trustee of the trust will be liable under these Terms in its own right and as trustee of the trust. Nothing releases the party from any liability in its own capacity.
14.10 The Company’s website may contain links to other websites and materials obtained through third parties. The Customer should make their own enquiries before relying on the content of any third party website. The Company will not be liable for any content appearing on the websites that are operated by third parties. The Company’s website may contain product information provided by or obtained directly (or indirectly) through third parties and the Company does not verify its accuracy. To the extent that is permissible by law, any material that is provided on the Company’s website is provided on an as is and without warranty basis and the Customer acknowledges that it may contain inaccuracies or errors and may be incomplete or out of date. To the extent permitted by law, the Customer’s access to the use of the Company’s website is subject to these Terms and all applicable laws and is conducted at the Customer’s own risk. The Company disclaims all liability for loss or damage (being direct or indirect) that may arise out of the use of the Company’s website or reliance on the content therein.
15.1 All Notices to be given by party under these Terms must be in writing and may be given to the other party by hand delivery, prepaid post or facsimile addressed to the other party at its last known address or facsimile number or as specified by the other party.
15.2 Any Notice given under these Terms will be deemed as being received by the person to whom it was sent in the case of hand delivery, upon delivery; in the case of prepaid post, 3 days after despatched; and in the case of facsimile, upon completion of the transmission.
16. Competition and Consumer Act 2010
16.1 Where these Terms would otherwise be subject to the Competition and Consumer Act 2010 (“Act”), the Customer agrees that the Customer is acquiring the Goods for business purposes and that the Act does not apply to the supply of the Goods to the Customer.
16.2 If the Customer is a consumer as defined in section 4B of the Act, and the Customer has not contracted out of the Act under clause 16.1 of these Terms, nothing in these Terms will limit any rights the Customer may have under this Act.
17.1 The Company will adhere to its Privacy Collection Statement and the Customer agrees to the collection of personal information by the Company for the purposes set out in the Privacy Collection Statement and in accordance with the Privacy Act 1988 (Cth).
18.1 Should any part of these Terms be held to be void or unlawful, these Terms will be read and enforced as if the void or unlawful provisions have been deleted.