1. Definitions
Agreement means the terms and conditions contained herein this agreement, the Application Form and the Quote;
Application Form means the application form provided by the Supplier;
Authorised Representative means the person nominated on the Application Form and any other person as nominated by the Customer from time to time;
Customer means the applicant named on the Application Form;
Goods means any and all goods supplied by the Supplier to the Customer from time to time pursuant to the Purchase Order Form, Quote, Tax Invoice or any variation thereof;
Purchase Order Form means the purchase order request provided by Customer to the Supplier from time to time by means acceptable to the Supplier;
Personal Guarantee Deed means the personal guarantee deed annexed to this Agreement;
Privacy Notice means the privacy notice annexed to this Agreement;
Purchase Price means the costs of the Goods as at the date of this Agreement and stated on the Quote as varied from time to time by the Supplier;
Quote means the Supplier’s quote provided to the Customer for the Goods related to the supply noted on the Purchase Order Form;
Supplier means Moddex Group Pty Ltd;
Substantial Change means any variation to Quote that may in any way effect the Goods to be provided as determined by the Supplier; and
Tax Invoice means the tax invoice supplied by the Supplier to the Customer.
2. General
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.
3. Ownership of Goods
3.1. 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.
4. Acceptance
4.1. 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.
4.2. 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.
4.3. 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.
5. Claims, Cancellations and Returns
5.1. 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.
5.2. 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.
5.3. 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.
5.4. 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.
5.5. 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:
a. 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
b. 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
c. a receiver, manager, administrator, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
6. Price
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.
7. Terms of Payment
7.1. All payments to the Supplier:
a. must be made by either direct deposit or a cleared cheque into the Supplier’s nominated bank account, or via credit card for which a surcharge will apply.;
b. must be made within 7 days of the date as noted on the Tax Invoice or as otherwise directed by the Supplier; and
c. must be made in the manner as stated on the Tax Invoice.
7.2. The Supplier reserves the right at any time to withhold or cancel the supply of the Goods any time, without notice, if the Customer fails to comply with the terms of this Agreement.
7.3. The Supplier may withhold access to and delivery of any Goods until clear payment is received.
7.4. 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
8. Default
8.1. If the Customer:
a. makes default in any payment;
b. breaches any terms contained herein this Agreement;
c. commits any act of bankruptcy or goes into bankruptcy;
d. is insolvent, or is likely to become insolvent, within the meaning of the Corporations Act 2001 (Cth);
e. has an administrator, liquidator or provisional liquidator, receiver and manager, or controller appointed over the Customer;
f. is subject to a winding up application under the Corporations Act 2001 (Cth);or
g. has a judgment awarded against it by any court or tribunal;
Then Supplier may terminate this Agreement and all Tax Invoices and other monies owing to the Supplier become immediately due and payable.
8.2. In the event of default under this clause, the Supplier may, at its discretion:
a. elect to apply an interest charge 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%;
b. charge an administration fee each month, or portion thereof, that an amount owing by the Customer is overdue;
c. commence proceedings against the Customer or enforce any personal guarantee;
d. call and act upon any security interest that the Supplier is entitled to enforce;
e. recover against the Customer all moneys that are owed to the Supplier including incidental costs that are incurred in relation to the Customer’s default;
f. list the default in payment with the appropriate credit reporting agency; and
g. perform any other action that the Supplier deems appropriate to enforce this Agreement and recovery monies owed.
9. Changes in Ownership
9.1. 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.
10. Limitation of Liability
10.1. 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
10.2. 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.
10.3 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.
10.4. 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.
11. 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.
12. 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.
13. 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.
14. Severability
14.1. 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
14.2. Conditions of Sale and all other provisions hereof shall remain in force to the fullest extent permitted by law.
15. Warranties and Indemnities
15.1. The Customer warrants:
a. that all information provided to the Supplier is accurate and acknowledges that the Supplier has placed reliance on the information provided and is not required to make any enquires to determine the validity of the information provided;
b. the Authorised Person has the authority to perform and authorise any action that the Customer may undertake; and
c. that all times throughout the term of this Agreement the Customer will notify the Supplier if there is a changed to the Customers Authorised Person.
15.2. The Customer authorises the Supplier to:
a. the extent permitted by law, to collect, retain and use any information about the Customer; and
b. disclose any information obtained by any person for the purposes of delivering the Goods.
15.3. The Customer indemnifies the Supplier against:
a. any penalty or liability incurred by the Supplier for any breach by the Customer of this Agreement; and
b. all actions, claims, demands, losses, damages, costs and expenses which the Supplier may sustain or incur or for which the Supplier may become liable whether during or after the term of this Agreement, by reason of any act or omission or negligence by the Supplier and its respective employees or any other authorised person.
15.4. The Supplier is not liable for any defect or damage caused by the Supplier providing or supplying the Goods.
15.5. The Supplier is not liable to compensate the Customer for any losses incurred for failure or delay if such is due to fire, cyclone, earthquake, flood, tsunami, inclement weather, strike, labour dispute, war, government order, riot, revolution, pandemic, civil commotion or any other cause beyond its reasonable control.
16. Privacy
16.1. The Customer hereby authorises the Supplier to collect, retain, record, use and disclose personal information about the Customer, in accordance with the Privacy Act 1988, to persons and/or legal entities who are a Solicitor or any other professional consultant engaged by the Supplier, a debt collector, credit reference organisation and/or any other individual or organisation which maintains credit references and/or default listings.
16.2. The Customer also authorises the Supplier to make enquiries with respect to the Customer’s credit worthiness; to exchange information with other credit providers in respect to previous defaults of the Customer and to notify other credit providers of a default by the Customer.
17. GST
17.1. All prices contemplated by this Agreement, Quote and any other document provided by the Supplier are exclusive of and subject to GST.
17.2. A reference in this clause to a term defined or used in A New Tax System (Goods and Services Tax) Act 1999 (Cth) is, unless the context indicates otherwise, a reference to that term as defined or used in that Act.
17.3. The parties acknowledge that GST is imposed on a supply made under or in connection with this Agreement and that the consideration provided for that supply will be increased by the rate at which the GST is imposed and the additional consideration will be payable by the Customer to the Supplier at the same time as the consideration to which the additional consideration relates.
17.4. The Supplier will issue a Tax Invoice to the Customer for the supply of the
17.5. Goods at the time of payment of the GST inclusive consideration or at another time agreed by the parties.
17.6. If one of the parties is entitled to be reimbursed for an expense or outgoing incurred in connection with this Agreement, the amount of the reimbursement will be net of any input tax credit which may be claimed by the party being reimbursed in relation to that expense or outgoing.
17.7. The Customer must pay any taxes in relation to the receipt of the Goods.
18. Intellectual Property
18.1. All intellectual property rights and copyright in:
a. the Goods (including but not limited all calculations and documents associated with the Goods); and
b. all designs, drawings, technical information and documents created, owned or held by the Supplier,
remain the property of the Supplier.
19. Personal Property Securities Act
19.1. In this clause all terms have the meaning given to them in the Personal Properties Security Act 2009.
19.2. In this clause Property includes all Goods supply by the Supplier to the quotation; work authorisation; Application Form; Purchase Order Form; or other form as approved by the Supplier and includes Services relating thereto.
19.3. This clause considers Property to be Personal Properties Security Act 2009 Retention of Title Property in accordance with s51F of the Corporations Act 2001 (Cth);
19.4. If the Supplier grants credit terms to the Customer, then to secure the punctual payment of all amounts owed by the Customer to the Supplier, the Customer grants to the Supplier a security interests over all:
a. present and after-acquired property of the Customer in relation to which the Customer can be grantor of a security interest under the Personal Properties Security Act 2009; and
b. property (including any proceeds of that Property) supplied on retention of title terms to the Customer by the Supplier pursuant to the terms of this Agreement.
19.5. The Customer acknowledges that this Agreement:
a. constitutes a security agreement;
b. creates a security interest in all Goods previously supplied by the Supplier to the Customer; and
c. creates a security interest in all Goods that will be supplied in the future by the Supplier to the Customer.
19.6. The Customer agrees to promptly sign any further documents and/ or provide any further information which the Supplier may reasonable require to:
a. register a financing statement or financing change statement in relation to a security interest on the Personal Properties Security Register;
b. register any other document required to be registered by the Personal Properties Security Act 2009; or
c. correct a defect in a statement referred to in this clause.
19.7. The Customer agrees to indemnify, and upon demand reimburse the Supplier for all expenses incurred in registering a statement referred to in clause 19.6 of this Agreement on the Personal Properties Security Register or releasing any Goods charged thereby;
19.8. The Customer agrees not to register a financing change statement in respect of a security interest without the prior written consent of the Supplier.
19.9. The Customer agrees not to register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of the Supplier.
19.10. The Customer agrees to immediately advise the Supplier of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
19.11. The Supplier and the Customer agree to expressly exclude the operation of the following provisions of the Personal Properties Security Act 2009 from this Agreement:
a. Section 96;
b. Section 115; and
c. Section 125 of the Personal Properties Security Act 2009.
19.12. The Customer waives its rights to receive notices under:
a. Section 95;
b. Section 118:
c. Section 121(4);
d. Section 130;
e. Section 132(3)(d); and
f. Section 132(4) of the Personal Properties Security Act 2009.
19.13. The Customer waives its right to receive a verification statement under section 157 of the Personal Properties Security Act 2009.
19.14. The Customer waives its rights as a grantor/ debtor under:
a. Section 142; and
b. Section 143 of the Personal Properties Security Act 2009.
19.15. The Customer agrees to unconditionally ratify an action taken by the Supplier under this section.