Terms and Conditions
Background
A. The Customer wishes to place an order to purchase Products.
B. If MTPL accepts an order to purchase Products, MTPL agrees to supply these Products to the Customer on these terms and conditions.
Operative provisions
Ordering
1.1 The customer may place an order for one or more of the Products.
1.2 If MTPL accepts an order made in accordance with clause 1.1, then:
1.2.1 Subject to payment of the Purchase Price, MTPL sells to the Customer the Products contemplated by that order; and
1.2.2 The Customer buys the Products contemplated by that order for the Purchase Price.
1.3 for clarity, MTPL may elect not to accept an order made under clause 1.1.
2. Payment Terms & Payment-
2.1 Cash on deliveryThe
customer must pay the purchase price for the goods in advance or cash on delivery.
2.2 Credit If the customer has made an application to MTPL for a credit account; MTPL reserves the right to refuse or accept applicants. If MTPL has agreed in writing to supply goods to the
customer on credit terms, the following terms are to be accepted by the customer:
2.2.1 The customer Bears onus to pay any incumbent bank charges relating to the dishonor of cheques.
2.2.2 If Customer does not pay money by the due date for payment, or a payment made by Customer fails to be honored, without affecting any other rights which it may
have against Customer, MTPL may require Customer to pay on demand interest at the National Australia Bank Limited prime lending rate effective from time to time
plus 4% per annum calculated from the due date on daily balances of amounts unpaid.
2.2.3 Payment made by credit cards will incur a 2%-3.5% depending on the credit card provider’s current rate.
2.2.4 Customer must not set off any money owing or alleged to be owing by MTPL against money due by the customer to MTPL.
Product
The customer must only use the products in accordance with the applicable Specifications.
3. Return of Goods-
3.1 Customer is deemed to have accepted the Goods unless it makes a claim in accordance with this clause.
3.2 Customer may reject any Goods that are wrongly supplied or oversupplied by notifying MTPL of the claim and providing full particulars of the claim in writing within 2 days of receipt
of those goods. MTPL may dispute any such claim.
3.3 Goods referred to in clause 3.2 may be returned to MTPL for credit if all of the followings is complied with:
3.3.1 the Goods are returned to MTPL’s premises by prior arrangement and with MTPL’s written approval within 10 days of delivery, at no cost to MTPL (unless delivered
as the result of an administrative error by MTPL, in which case MTPL will bear the cost of return);
3.3.2 the Goods are accompanied by a dispatch note stating MTPL’s original Invoice number and reason for return; and
3.3.3 the Goods are returned in an unsoiled, undamaged and resaleable condition in their original packing.
3.4 Customer must not return any Goods to MTPL unless it has complied with clause 3.3 and has done all things necessary to permit MTPL to examine the Goods to MTPL’s satisfaction
within that period.
4. Price ChangesNotification
of price changes will be given where duly possible, however, MTPL reserves the right to change the price without notice.
5. Taxes-
5.1 The Customer must pay all taxes, duties, government charges or other taxes of a similar nature (including but not limited to fines, penalties and interest) imposed, levied, assessed
or payable in Australia or overseas in connection with these terms and conditions.
5.2 All other Payments have been calculated without regard to GST;
5.3 Each party will comply with its obligations under the Competition and Consumer Act 2010 (Cth) when calculating the amount of any Payment and the amount of any relevant
Payments will be adjusted accordingly;
5.4 If the whole or any part of any Payment is the consideration for a Taxable Supply (other than for payment of the Purchase Price) for which the payee is liable to GST, the payer
must pay to the payee an additional amount equal to the GST Amount, either concurrently with that Payment.
5.5 Any reference to a cost or expense in this Agreement excludes any amount in respect of GST forming part of the relevant cost or expense when incurred by the relevant party for
which that party can claim an Input Tax Credit; and the payee will provide to the payer a Tax Invoice.
6. Title and Risk
6.1 All Products delivered by MTPL to the Customer under these terms and conditions remain the property of MTPL until the Customer has paid the Purchase Prices for the relevant
Products and all money due to MTPL by the Customer in full.
6.2 The Customer bears the risk relating to the Products from the time those Products are dispatched by MTPL
6.3 Upon taking possession all the Products, the Customer must store the Products:
6.3.1 Separately from other goods of the Customer, so that the Products are not mixed with those other goods; and
6.3.2 In such a way that the Products are recognizable as the property of MTPL.
6.4 The Customer acknowledges that these terms and conditions create a security interest under the PPSA in the Products and any other products to be supplied in the future and
consents to MTPL effecting a registration on the PPSA register in relation to any security interest contemplated by these terms and conditions. The Customer agrees to pay all costs,
expenses and other charges incurred, expended or payable by MTPL in relation to the filing of a Financing statement or financing change statement in connection with these terms
and conditions.
6.5 The Customer must not charge the Products in any way or grant or otherwise give any interest in the Products while it remains the properly of MTPL nor allow any third party to
acquire a security interest in the Products.
6.6 Any time the Customer makes a payment to MTPL, irrespective of whether the payment is made under or in connection with these terms and conditions, MTPL may apply for that
payment:
6.6.1 first, to satisfy an obligation that is not secured;
6.6.2 second, to satisfy an obligation that is secured, but not by a purchase money security interest;
6.6.3 third, to satisfy an obligation that is secured by a purchase money security interest for that obligation and using proceeds from the sale of the collateral subject to that
purchase money security interest; and
6.6.4 fourth, to satisfy an obligation that is secured by a purchase money security interest using funds or proceeds from any source,
6.6.5 or, despite the foregoing, any manner MTPL sees fit.
6.7 If the Customer fails to comply with any obligation under these terms and conditions then without limiting the remedies available to MTPL:
6.7.1 upon request by MTPL, the Customer must return the Products and any other products on which there are outstanding amounts owing;
6.7.2 the Customer authorizes MTPL and any person authorized by MTPL to enter premises where the Products or other products may be located to take possession of the
Products; and
6.7.3 MTPL may retain, sell or otherwise dispose of the Products or other products.
6.8 The Customer agrees to the extent permitted under the PPSA, the Customer has no right:
6.8.1 to receive notice of removal of an accession under the PPSA;
6.8.2 under Chapter 4 of the PPSA; or
6.8.3 under the PPSA to receive a copy of any verification statement or financing change statement under the PPSA.
6.9 The Customer must unconditionally ratify any actions taken by MTPL under this clause 6.
6.10 In this clause 6 the following words have the respective meanings given to them in the PPSA account, proceeds, purchase money security interest register, registration, security
interest, and verification statement.
6.11 Each party agrees to keep PPSA information in strict confidence and not disclose that information, except in circumstances required by sections 275(7)(b) or (e) PPSA, provided that
where sections 275(7)(b) or (e) require such disclosure, the party that is required to disclose the information gives all available notice to the other party to allow that party to legally
challenge the required disclosure and takes an available steps (whether required by the other party or not) to maintain such PPSA Information in confidence.
6.12 Each party agrees not to authorize the disclosure of any PPSA Information to any third party pursuant to section 275(7)(c) PPSA or request information under section 275(7)(d)
PPSA unless the other party to these terms and conditions explicitly agrees.
6.13 Pallets remain the property of MTPL or its nominee at all times and the customer mist promptly returns all pallets. The customer also indemnifies MTPL for the cost of hire and /or
replacement of any pallets not returned within 7days upon deliveries.
7. Limitation of Liability for Goods-
7.1 To the maximum extent permitted by law, all conditions and warranties expressed or implied by statute, common law, equity, trade, custom, usage or otherwise in respect of the
Goods are expressly excluded.
7.2 In respect of Goods that are not ordinarily acquired for personal, domestic or household use or consumption, the liability of MTPL for a breach of any condition or warranty implied
by law is limited at MTPL’s option to the repair of the Goods or to supply replacement Goods.
7.3 Customer acknowledges and agrees that, to the extent permitted by law, MTPL has no liability in contract, tort (including negligence or breach of statutory duty), by statute or
otherwise for loss or damage (whether direct or indirect) of profits, opportunity, revenue, goodwill, bargain, production, contracts, business or anticipated savings, corruption or
destruction of data or for any indirect, special or consequential loss or damage whatsoever.
7.4 MTPL’s total liability under any contract and the terms and conditions shall not exceed the total dollar amount of the Goods purchased by Customer under each invoice.
8. Indemnity-
The Customer is liable for and indemnifies MTPL from and against; all loss or damage (including legal cost) incurred or suffered by MTPL however caused in connection with:
8.1 any use of the product other than in accordance with the specification;
8.2 personal injury or death of any person (including any employee of the Customer) in connection with the use of the Products;
8.3 damage to Property in connection with the use of the Products;
8.4 MTPL exercising its right under clause 6 or attempting to do so; or
8.5 Any act or omission of the Customer, its officers, employees or agents.
9. Intellectual Property Rights and Rebranding.
The Customer acknowledges and agrees that nothing in these terms and conditions grants the Customer of any intellectual property rights (including copyright, trademarks, patents, and
designs) of MTPL.
10. Force Majeure
10.1 Force Majeure Events
MTPL may suspend delivery or reduce the amount to be delivered if the supplier is unable to deliver the Goods by reason of circumstances beyond its reasonable control, including
(without limitation) strikes, lockouts, accidents, war, fire, flood, explosion, shortage of power, breakdown, of plant machinery, shortage of raw materials from normal source of supply,
act of God or any order or direction of any government, government authority or instrumentality.
10.2 Right of Termination
If the effects of the force majeure event continue for more than one calendar month, MTPL at their discretion may terminate the agreement for the supply of Goods to which these
terms and conditions apply.
10.3 No claim
The Customer will have no claim against MTPL, and MTPL will not be liable for any loss airing from any suspension, reduction or failure to deliver arising from the circumstances
referred to in condition 10.1
11. Debt Recovery Cost-
The customer must pay MTPL within agreed trading terms of invoice or other demand, all costs, charges, or other levies associated with the Service and must reimburse MTPL all costs, charges and expenses (including all mercantile agent’s fees and legal costs, interest calculated on an indemnity basis) MTPL incur by reason of customer’s failure to pay moneys payable to MTPL.
12. Alteration to Range
MTPL reserves the right, at its absolute discretion, to add or to remove from the range of products, including the Goods, supplied by MTPL, and may do so at any time without notice to the
customer.
13. Change of Ownership and Address-
13.1 MTPL must be notified immediately in writing of any ownership changes or changes his/her corporate structure otherwise, MTPL will not be liable for any loss incurred as a result of
failure to notify.
13.2 MTPL must be notified immediately in writing of any changes of address of business or changes of location of warehouse otherwise MTPL will not be liable for any delivery to the
wrong place and customer has to carry the additional transport cost incurred by Transport Company.
14. Governing Law
The Terms and Conditions are governed by and must be interpreted in accordance with the law of New South Wales. Customer unconditionally submits to the non-exclusive jurisdiction of
the courts of New South Wales determined in accordance with this clause.
15. Miscellaneous
15.1 Upon signing this credit application, MTPL shall be entitled to carry out credit checks and obtain an accredit report in respect of the creditworthiness of the applicant.
15.2 These Terms and Conditions represents the parties’ entire Agreement, and supersedes all prior representations, communications, agreements, statements, conduct and
understandings, whether oral or in writing, relating to its subject matter.
15.3 It is agreed and understood that the account may be closed at any time by either party, upon which the total value of goods supplied to the date of closure will be immediately
payable. I/we undertake to settle all accounts by the due date indicated on each statement.
15.4 MTPL may collect information relating to the Customer (including personal information) and retain that information in its database.
16. Definitions and Interpretation
16.1 In these terms and conditions:
Customer means the party named in the order or you, to whom MTPL has agreed to supply Goods.
Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a
material form or not, about an individual whose identity is happened, or can reasonably be ascertained, from the information or opinion.
PPSA means Personal Property Securities Act 2009 (Cth).
PPSA Information means any information or documents (including copies of such documents), which are in existence or may be entered into in the future, of the kind
mentioned in section 275(1) PPSA
Product means the products ordered by the Customer under clause 1(a) and which MTPL accepts an order in relation to sender clause 1(b).
Purchase Price in respect of a product means the purchase price and cost of delivery for that Product specified on the Website
MTPL means Milton Tradings Pty Ltd ACN 002 757 888
Specification means the specification provided to the Customer by MTPL in respect of each Product of any), as amended by MTPL from time to time.
Website means www.miltontradings.com
In these terms and conditions:
(i) the meaning of any general language is not restricted by any accompanying example, and the words ‘includes’, Including ‘such as’ or ‘for example (or similar phrases) do not limit
what else might be included;
(ii) no rule of construction applies in the Interpretation of these terms and conditions to the disadvantage of the party preparing the document on the basis that it put forward this
document or any part of it and
(iii) a reference to a party is a reference to MTPL or the Customer, and a reference to the parties is a reference to both MTPL and the Customer.