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MWT - Terms & Conditions of Trade

1. Definitions

1.1 “Wholesaler” shall mean Master Woodturning Pty Ltd T/A Master Woodturning its successors and assigns or any person acting on behalf of and with the authority of Master Woodturning Pty Ltd T/A Master Woodturning.
1.2 “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by the Wholesaler to the Customer.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by the Wholesaler to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Wholesaler to the Customer.
1.5 “Services” shall mean all Services supplied by the Wholesaler to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the price payable for the Goods as agreed between the Wholesaler and the Customer in accordance with clause 5 of this contract.

2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)

2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.

3. Application of these terms and conditions to consumers

3.1 Clause 9 (Defects), clause 10 (Returns) and clause 11 (Warranty) may NOT apply to the Customer where the Customer is purchasing Goods or Services not for resale or hire where the Price of the Goods or Services does not exceed $40,000, or where the Price of the Goods or Services does exceed $40,000 and are of a kind ordinarily acquired for personal, domestic or household use or consumption, or where the Customer is in any other way a consumer within the meaning of the TPA or the FTA of the relevant state or territories of Australia.

4. Acceptance

4.1 Any instructions received by the Wholesaler from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by the Wholesaler shall constitute acceptance of the terms and conditions contained herein.
4.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
4.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of the Wholesaler.
4.4 The Customer shall give the Wholesaler not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by the Wholesaler as a result of the Customer’s failure to comply with this clause.

5. Price And Payment

5.1 At the Wholesaler’s sole discretion the Price shall be either:

 

(a) as indicated on invoices provided by the Wholesaler to the Customer in respect of Goods supplied; or
(b) the Wholesaler’s quoted Price (subject to clause 5.2) which shall be binding upon the Wholesaler provided that the Customer shall accept the Wholesaler’s quotation in writing within thirty (30) days.
5.2 The Wholesaler reserves the right to change the Price in the event of a variation to the Wholesaler’s quotation.
5.3 At the Wholesaler’s sole discretion a deposit may be required.
5.4 At the Wholesaler’s sole discretion:

 

(a) payment shall be due on delivery of the Goods; or
(b) payment shall be due before delivery of the Goods; or
(c) payment for approved Customers shall be made by instalments in accordance with the Wholesaler’s payment schedule; or
(d) payment for approved Customer’s shall be due thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices.
5.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
5.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to two and one half percent (2.5%) of the Price), or by direct credit, or by any other method as agreed to between the Customer and the Wholesaler.
5.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

6. Delivery Of Goods

6.1 At the Wholesaler’s sole discretion delivery of the Goods shall take place when:

 

(a) the Customer takes possession of the Goods at the Wholesaler’s address; or
(b) the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by the Wholesaler or the Wholesaler’s nominated carrier); or
6.2 At the Wholesaler’s sole discretion the costs of delivery are included in the Price.
6.3 The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then the Wholesaler shall be entitled to charge a reasonable fee for redelivery.
6.4 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
6.5 The failure of the Wholesaler to deliver shall not entitle either party to treat this contract as repudiated.
6.6 The Wholesaler shall not be liable for any loss or damage whatever due to failure by the Wholesaler to deliver the Goods (or any of them) promptly or at all due to circumstances beyond the control of the Wholesaler.

7. Risk

7.1 If the Wholesaler retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Wholesaler is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Wholesaler is sufficient evidence of the Wholesaler’s rights to receive the insurance proceeds without the need for any person dealing with the Wholesaler to make further enquiries.
7.3 The Customer acknowledges that Goods supplied may:

 

(a) exhibit variations in shade, colour, texture, surface, finish, markings and may contain natural fissures, occlusions, lines, indentations and may fade or change colour over time; and
(b) expand, contract or distort as a result of exposure to heat, cold, weather; and
(c) mark or stain if exposed to certain substances; and
(d) be damaged or disfigured by impact or scratching.

8. Title

8.1 The Wholesaler and Customer agree that ownership of the Goods shall not pass until:

 

(a) the Customer has paid the Wholesaler all amounts owing for the particular Goods; and
(b) the Customer has met all other obligations due by the Customer to the Wholesaler in respect of all contracts between the Wholesaler and the Customer.
8.2 Receipt by the Wholesaler of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Wholesaler’s ownership or rights in respect of the Goods shall continue.
8.3 It is further agreed that:

 

(a) where practicable the Goods shall be kept separate and identifiable until the Wholesaler shall have received payment and all other obligations of the Customer are met; and
(b) until such time as ownership of the Goods shall pass from the Wholesaler to the Customer the Wholesaler may give notice in writing to the Customer to return the Goods or any of them to the Wholesaler. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
(c) the Wholesaler shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Customer fails to return the Goods to the Wholesaler then the Wholesaler or the Wholesaler’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods; and
(e) the Customer is only a bailee of the Goods and until such time as the Wholesaler has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to the Wholesaler for the Goods, on trust for the Wholesaler; and
(f) the Customer shall not deal with the money of the Wholesaler in any way which may be adverse to the Wholesaler; and
(g) the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Wholesaler; and
(h) the Wholesaler can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
(i) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that the Wholesaler will be the owner of the end products and that the Customer shall not be entitled to remove the end products from the Customer’s premises.

9. Defects

9.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Wholesaler of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Wholesaler an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Wholesaler has agreed in writing that the Customer is entitled to reject, the Wholesaler’s liability is limited to either (at the Wholesaler’s discretion) replacing the Goods or repairing the Goods except where the Customer has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.

10. Returns

10.1 Returns will only be accepted provided that:

 

(a) the Customer has complied with the provisions of clause 9.1; and
(b) the Wholesaler has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Customer’s cost within seven (7) days of the delivery date; and
(d) the Wholesaler will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
10.2 The Wholesaler may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of thirty percent (30%) of the value of the returned Goods plus any freight.

11. Warranty

11.1 For Goods not manufactured by the Wholesaler, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Wholesaler shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.

12. Intellectual Property

12.1 Where the Wholesaler has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in the Wholesaler, and shall only be used by the Customer at the Wholesaler’s discretion.
12.2 The Customer warrants that all designs or instructions to the Wholesaler will not cause the Wholesaler to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Wholesaler against any action taken by a third party against the Wholesaler in respect of any such infringement.

13. Default & Consequences of Default

13.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
13.2 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Wholesaler from and against all costs and disbursements incurred by the Wholesaler in pursuing the debt including legal costs on a solicitor and own client basis and the Wholesaler’s collection agency costs.
13.3 Without prejudice to any other remedies the Wholesaler may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Wholesaler may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. The Wholesaler will not be liable to the Customer for any loss or damage the Customer suffers because the Wholesaler has exercised its rights under this clause.
13.4 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
13.5 Without prejudice to the Wholesaler’s other remedies at law the Wholesaler shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Wholesaler shall, whether or not due for payment, become immediately payable in the event that:

 

(a) any money payable to the Wholesaler becomes overdue, or in the Wholesaler’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, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

14. Security And Charge

14.1 Despite anything to the contrary contained herein or any other rights which the Wholesaler may have howsoever:

 

(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Wholesaler or the Wholesaler’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Wholesaler (or the Wholesaler’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should the Wholesaler elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Wholesaler from and against all the Wholesaler’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Wholesaler or the Wholesaler’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 14.1.

15. Cancellation

15.1 The Wholesaler may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice the Wholesaler shall repay to the Customer any sums paid in respect of the Price. The Wholesaler shall not be liable for any loss or damage whatever arising from such cancellation.
15.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by the Wholesaler (including, but not limited to, any loss of profits) up to the time of cancellation.

16. Privacy Act 1988

16.1 The Customer and/or the Guarantor/s agree for the Wholesaler to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by the Wholesaler.
16.2 The Customer and/or the Guarantor/s agree that the Wholesaler may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:

 

(a) to assess an application by Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the credit worthiness of Customer and/or Guarantor/s.
16.3 The Customer consents to the Wholesaler being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Customer agrees that personal credit information provided may be used and retained by the Wholesaler for the following purposes and for other purposes as shall be agreed between the Customer and Wholesaler or required by law from time to time:

 

(a) provision of Goods; and/or
(b) marketing of Goods by the Wholesaler, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and/or
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
16.5 The Wholesaler may give information about the Customer to a credit reporting agency for the following purposes:

 

(a) to obtain a consumer credit report about the Customer; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.

17. Unpaid Wholesaler’s Rights

17.1 Where the Customer has left any item with the Wholesaler for repair, modification, exchange or for the Wholesaler to perform any other Service in relation to the item and the Wholesaler has not received or been tendered the whole of the Price, or the payment has been dishonoured, the Wholesaler shall have:

 

(a) a lien on the item;
(b) the right to retain the item for the Price while the Wholesaler is in possession of the item;
(c) a right to sell the item.
17.2 The lien of the Wholesaler shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.

18. General

18.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
18.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
18.3 The Wholesaler shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Wholesaler of these terms and conditions.
18.4 In the event of any breach of this contract by the Wholesaler the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
18.5 The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by the Wholesaler.
18.6 The Wholesaler may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
18.7 The Customer agrees that the Wholesaler may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Wholesaler notifies the Customer of such change.
18.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
18.9 The failure by the Wholesaler to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Wholesaler’s right to subsequently enforce that provision.