TERMS & CONDITIONS OF TRADING AGREEMENT
MG shall mean Milford Global Pty Ltd ACN 001 386 689 or any agent or employees thereof. Customer shall mean any person acting on or on behalf of and with the authority of the Customer or a person purchasing products or services from MG. Goods shall mean all Goods and/or inventory supplied by MG. Goods and Services shall mean all Goods, products, services and advice provided by MG to the Customer and shall include, without limitation, the creation, manufacture and supply of all products and all charges for labour, hire charges, insurance charges, or any fee or charge associated with the supply of Goods and Services by MG to the Customer. PPSA Proceeds means all proceeds from any sale of, disposal of or other dealing of any nature with the Goods, including cash, cash equivalent and all present and after-acquired property.
This agreement applies to all MG Sale of Goods contracts. Any order placed with MG constitutes the Customer’s agreement to be bound by this agreement. Any additional or different terms stipulated by the Customer or stated in any communication with MG (including an order) are hereby objected to and will not bind MG unless agreed in writing.
No salesperson, representative or agent is authorised by MG to give any guarantee, warranty or representation in addition to, or contrary to this agreement. In any event, receipt of Goods by the Customer (or another as directed by the Customer) upon delivery constitutes the Customer’s agreement to be bound by this agreement.
1 PRICE AND PRICE VARIATION
1.1 Unless otherwise agreed in writing between the parties, the price for the Goods will be as stated in our price list(s) current on the day of delivery of the Goods.
1.2 Milford Global Pty Ltd (MG) shall be entitled to adjust any price quoted on reasonable notice to the Customer. If the Customer does not want to accept any increase the price, the Customer can elect to immediately cancel the order for the Goods.
1.3 Without clause 1.2 applying and the order continuing to be binding, MG may seek an adjustment to the price arising from any of the following:
- (a)delays in delivery or installation of the Goods or any of them as a result of instructions or lack of instructions from the Customer or other circumstances beyond MG’s control;
- (b)variation in the cost of MG acquiring the Goods, directly or indirectly, on account of changes in rates of freight and transport costs, insurance, customs, duties, taxes, existing tariff classifications or any variation in currency exchange rates; or
- (c)variations in the cost of rates of all statutory, government or local government or governmental authority charges and obligations.
1.4 The Customer agrees to notify MG of any claims for credit within 14 days of the date of the invoice.
1.5 MG reserves the right to levy a service charge for all orders by giving reasonable notice to the Customer.
2 ORDER NUMBER
2.1 MG will endeavour to include on invoices, all order numbers and names advised to MG at the time of the order by the Customer as proof of order. However, if false or incorrect order numbers are advised to MG by the Customer’s staff members, the Customer will remain responsible for the payment of those orders.
3.1 Terms defined or used in A New Tax System (Goods and Services Tax) Act 1999 (Cth) used in this clause 3 have the same meaning as in that Act.
3.2 Unless indicated otherwise, the price for any taxable supply made by a MG under or in connection with this agreement does not include GST and may be increased by MG by an amount equal to the GST payable on that taxable supply.
4.1 Unless otherwise agreed in writing, the purchase price shall be paid to MG at its address by the 20th of the month following the month in which the invoice was dated.
4.2 If any account is in dispute, the undisputed portion of the account shall be payable in accordance with the normal terms of payment as provided in clause 4.1. Payment of the disputed portion may be withheld, provided the matter is brought to MG’s attention immediately after it is discovered and a letter of explanation setting out the particulars of the dispute is sent to MG within seven days of the dispute arising.
4.3 MG reserves the right to suspend delivery of further Goods if the terms of payment are not strictly adhered to by the Customer.
4.4 Interest may be charged on overdue accounts at a rate of the Reserve Bank of Australia cash rate as at 5pm on the date of delivery, plus 2%.
4.5 Any expenses, costs or disbursements incurred by MG in recovering any outstanding monies, including debt collection agency fees or solicitors costs, shall be paid by the Customer.
5.1 MG shall deliver the Goods to the address stated on the Order or as agreed by MG in writing.
5.2 Subject to clause 5.3, MG shall deliver the Goods by such carrier and such form of transport as MG considers to be appropriate.
5.3 Where the Customer specifies the carrier and the means of carriage, MG shall deliver the Goods in the way specified, the cost of such carriage being an additional charge to the invoiced price of the Goods.
5.4 MG will not be responsible for any part delivery or delay in delivery of the Goods as a result of events occurring beyond MG’s control. MG shall not be in any way responsible for any consequences (direct or indirect) arising from such delay or non-delivery.
5.5 The Customer agrees to inform MG within 14 days of the date of invoice when proof of delivery is required. After this period, MG is under no obligation to provide a proof of delivery.
5.6 The Customer agrees to inform MG within 14 days of any failure to deliver, short supplies or mis-shipments. After this period, MG will be under no obligation to investigate the claim.
6 PRIVACY ACT 1998 (CTH)
6.1 The Customer authorises MG to collect, retain, and use personal information about the Customer (including the information collected in this document) for the following purposes only:
- (a)assessing the Customer’s creditworthiness;
- (b)disclosing to a third party details of this application and any subsequent dealings it may have with MG for the purpose of recovering amounts payable by the Customer and providing credit references; and
- (c) marketing for goods and services provided by MG.
6.2 Subject to provisions of the Privacy Act 1998 (Cth), the Customer, if an individual, has a right of access to information about the Customer held by MG. The Customer may request correction of that information and may require that the request be stored with that information.
7 INTELLECTUAL PROPERTY
7.1 Where MG has followed a design, drawing, plan or instruction furnished by or given by the Customer, the Customer shall indemnify MG against all losses, damages, penalties, costs and expenses incurred by MG or in respect of which MG may become liable, due to any work done or services performed by MG in accordance with the Customer’s instructions, which results in a claim by a third party that the Goods and Services infringes a patent, trademark, registered design, common law right or any other analogous intellectual property right, of any person or otherwise breaches any applicable law, statute, regulation, code or rule.
7.2 Should MG be required to match any shade or colour a light and dark tolerance shall be allowed to such an extent as shall be agreed by MG and the Customer at the time the standard colour is specified and in the absence of any agreement a reasonable tolerance shall be allowed.
7.3 Where the Customer supplies a mould, die, tool, printing plate or any other item used in the manufacturing process the Customer shall reimburse MG for all maintenance expenses. MG shall not be liable for any loss or damage to moulds, dies, tools or materials supplied by the Customer to MG for the purposes of fulfilling any contract.
7.4 Printing plates, stereos, film, artwork and all other equipment for specific use in the manufacture of the Goods (other than those supplied by the Customer) remain the property of MG unless the cost thereof (including all development and costs relating thereto) shall have been fully recovered by MG from the Customer in the costing of the Goods already paid for by the Customer.
7.5 All information prepared by MG including, without limitation, customised pricing, proposals, electronic catalogues, details of improvements and cost reductions, is the intellectual property of MG and cannot be copied, altered or distributed without MG’s prior written consent. MG will not be liable for any alterations made by the Customer.
8 RETURN OF GOODS
8.1 If the Customer wishes to return any Goods, it must first request a Return Authorisation Number (RA No.). from MG. Except where the Competition and Consumer Act 2010 (Cth) permits you to reject the Goods, MG will not accept the return of Goods for credit or any other purpose unless accompanied by a MG RA No.. An RA No. only authorises the return of Goods and does not constitute an agreement to credit. Return of Goods will only be accepted for credit within 14 days of delivery, unless due to MG’s fault. Return freight will only be at MG’s cost when error is on the part of MG.
8.2 No returned Goods shall be accepted by MG (even if MG agrees to do so) if:
- (a)they have been tampered with by the Customer or any other person and are not as new;
- (b)if they are not accompanied by the RA No. referred to in clause 8.1.
8.3 Where Goods are returned to MG as above, they shall be returned to the Customer at the Customer’s expense.
8.4 Receipt by MG or by any of MG’s agents or representatives of any Goods returned other than in accordance with clauses 8.1 and 8.2 shall not constitute, nor be deemed to constitute, our acceptance of the return of the Goods for credit or any other purpose.
9 RISK AND CONSEQUENTIAL LOSS
9.1 Risk in the Goods shall pass to the Customer at the time of delivery.
9.2 MG will not be liable for any special, indirect or consequential loss or damage arising under or in connection with this agreement, including (without limitation) from the use of the Goods by the Customer.
10 TITLE AND SECURITY (PERSONAL PROPERTY AND SECURITIES ACT 2009 (CTH))
Terms used or defined in the Personal Property and Securities Act 2009 (Cth) (PPSA) used in this clause 10 have the same meaning as in that Act.
10.1 Title in any Goods supplied by MG to the Customer passes to the Customer only when the Customer has made payment in full for all Goods and Services provided by MG.
10.2 To the extent permitted by law, the parties agree that the provisions of this clause 10 create a Security Interest in the Goods granted by the Customer in favour of MG, for the purposes of the PPSA.
10.3 The Customer consents to MG effecting a registration on the PPSR (in any manner MG considers appropriate) in relation to the Security Interest arising under or in connection with this agreement and the Customer agrees to provide all reasonable assistance required by MG to facilitate this.
10.4 The Customer must do anything reasonably required by MG (including amending this agreement, executing any new document or agreement, obtaining consents and supplying information) that MG requires to:
- (a) ensure that any Security Interest is enforceable, perfected and otherwise effective;
- (b) register, or give any notification in connection with, any Security Interest in order to confer the priority MG requires; or
- (c)exercise its rights in connection with the Security Interest.
10.5 In the event that the Customer sells or otherwise deals with or disposes of the Goods in any way in breach of this agreement (Sale):
- (a) if the Customer receives PPSA Proceeds in the form of cash from such Sale:
- (i)the whole of the proceeds of such sale (MG’s Entitlement) must be held by the Customer in a separate identifiable account on trust for MG; and
- (ii)the Customer, on demand by MG, must account to MG for MG’s Entitlement; and
- (b)if the Customer receives PPSA Proceeds in a form other than cash from such Sale, all such proceeds must be held by the Customer on trust for MG and the Customer must comply with clause 10.8(a) in respect of such proceeds, and references to “Goods” in such clause must be read as “PPSA Proceeds”, and the Customer must continue to do so until all of its liabilities to MG have been satisfactorily discharged.
10.6 The Customer shall not change its name without first notifying MG of the new name not less than 7 days before the name change takes effect.
10.7 To the extent the law permits, the Customer waives:
- (a)its right to receive any notice that is required by:
- (i)any provision of the PPSA (including a notice of a verification statement); or
- (ii)any other law, before MG exercises a right, power or remedy; and
- (b)any time period that must otherwise lapse under any law before MG exercises a right, power or remedy, however, nothing in this clause prohibits MG from giving a notice under the PPSA or any other law.
10.8 Until the Customer has paid all amounts owing to MG the Customer shall ensure at all times that:
- (a)the Goods supplied by MG, while in the Customer’s possession, can be readily identified and distinguished; and / or
- (b)all proceeds (in whatever form) that the Customer receives from the sale of any of the Goods, are readily identifiable and traceable.
10.9 Where the Goods are purchased by the Customer as stock in trade for sale or lease in the ordinary course of the Customer’s business, nothing in this clause 10 shall prevent the Customer from selling or leasing and delivering the Goods in the ordinary course of the Customer’s business. Otherwise, until the Customer has paid all amounts owing to MG, the Customer shall not sell or grant a Security Interest in the Goods without MG’s prior written consent.
10.10 If the Goods are attached, fixed or incorporated into any property of the Customer, by way of any manufacturing or assembly process by the Customer or any third party, title in the Goods shall remain with MG until the Customer has made payment for all Goods and Services, and where those Goods are mixed with other property so as to be part of or a constituent of any new Goods, title to these new Goods shall be deemed to be assigned to MG as security for the full satisfaction by the Customer of the full amount owing between MG and the Customer.
10.11 The Customer gives irrevocable authority to MG to enter any premises occupied by the Customer or on which Goods are situated at any reasonable time after default by the Customer or before default if MG reasonably believes a default is likely and to remove and repossess any Goods and any other property to which Goods are attached or in which Goods are incorporated. MG shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of this action, nor in contract nor in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded. MG may either resell any repossessed Goods and credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain any repossessed Goods and credit the Customer’s account with the invoice value thereof less such sum as MG reasonably determines on account of wear and tear, depreciation, obsolescence, loss of profit and costs.
10.12 If the Customer:
- (a)fails to make payment of any sum due and owing by the due date (subject to clause 4.2);
- (b)enters into bankruptcy or any other form of insolvency, administration or receivership (or any analogous state);
- (c) is unable to pay its debts as and when they fall due;
- (d)is in material breach of this agreement; or
- (e)a Court judgment is entered against the Customer and remains unsatisfied for 7 (seven) days, then MG will be entitled to terminate the supply of Goods immediately by notice to the Customer (without liability to the Customer) and withhold or suspend any deliveries of the Goods or performance of any Goods and Services.
10.13 The Customer is entitled to terminate its order for Goods by notice to MG if MG is in material breach of this agreement, enters into bankruptcy any other form of insolvency, administration or receivership (or any analogous state) or is unable to pay its debts as and when they fall due.
11 PAYMENT ALLOCATION
11.1 MG may in its discretion, allocate any payment received from the Customer towards any invoice that MG determines and may do so at the time of receipt or at any time afterwards and on default by the Customer may reallocate any payments previously received and allocated. In the absence of any payment allocation by MG, payment shall be deemed to be allocated in such manner as preserves the maximum value of MG’s Security Interest in the Goods.
12 COMPETITION AND CONSUMER ACT 2010 (CTH)
12.1 Where the Goods are of a kind ordinarily acquired for personal, domestic or household use or consumption in accordance with the Competition and Consumer Act 2010 (Cth) (CCA), the CCA applies to this contract.
12.2 To the extent permitted by law:
- (a) all guarantees, conditions and warranties, express or implied, by law, custom or otherwise are excluded; and
(b) MG’s liability for any loss arising from a breach of such guarantees, conditions and warranties, or this agreement, is limited to:
- (i)in the case of Goods, either replacement of the Goods, the supply of products equivalent to the Goods, the repair of the Goods, the cost of replacing the Goods or acquiring products equivalent to the Goods, or the payment of the cost of having the Goods repaired; and
- (ii) in the case of any services forming part of the supply of the Goods, the supply of the Services again or the payment of the cost of having the Services supplied again.
12.3 The Goods come with any applicable guarantees under the CCA. Nothing in this agreement operates in any way to exclude, restrict or modify the application of the CCA.
13 NEW ACCOUNT
13.1 Use of this account shall constitute acceptance of this agreement.
13.2 The Customer shall be responsible for any liability arising from any fraudulent use of its customer account, except in circumstances where the fraudulent use was caused by the direct act or omission of MG. The Customer must promptly notify MG if it suspects or becomes aware of any fraud or any unauthorised access or use of its account.
13.3 The Customer shall endeavour to return all Goods acquired by fraudulent use.
14 VARIATIONS TO TERMS AND CONDITIONS OF TRADE
14.1 MG may from time to time and in its sole discretion amend, add to or delete any of the terms of these terms and conditions of trade with immediate effect by giving notice to the Customer provided that MG shall not make any variation to the nature or extent of the Security Interest granted by the Customer in clause 10.1 without the written agreement of the Customer. MG may notify the Customer by delivering to the Customer an invoice with a notice of amendment and receipt of the invoice by the Customer will be deemed to be acceptance by the Customer of the terms and conditions of trade.
15 ONLINE ACCOUNT
15.1 Upon activation of the online account:
- (a) MG agrees to notify the Customer Online Account Administrator (via email) of login details.
- (b) the Customer’s Online Account Administrator is responsible for ensuring that all user details are kept up to date and the customer’s account is kept confidential, secure and protected from all unauthorised use or access (including by protecting any passwords).
- (c) the Customer agrees to abide by site terms and conditions as described on the website. Site terms and conditions are subject to change without notice.
16 GOVERNING LAW
16.1 This agreement is governed by the laws of Victoria, Australia.
16.2 MG and the Customer shall submit to the exclusive jurisdiction of the courts of Victoria, Australia in respect of any dispute or proceeding arising out of this agreement.
17.1 For the avoidance of doubt, this agreement, if emailed or faxed, will be effective as delivery of a manually signed agreement and is acknowledged as a legal document.