Terms & Conditions
Applicant means the person named in the Credit Account Application who may from time to time be a Customer.
Customer means the person/s ordering Goods from a Supplier as set out in any invoice, document or purchase order, and if there is more than one Customer, is a reference to each Customer jointly and severally.
Goods means all goods or services supplied by the Supplier to the Customer at the Customer's request from time to time (where the context so permits the terms 'Goods' or 'Services' shall be interchangeable for the other).
Modinex Group means the Modinex group of companies comprising Austratus (Aust) Pty Ltd (ACN 623 555 402), Modinex Timber Pty Ltd (ACN 623 549 155), Modinex Finishes Pty Ltd (ACN 623 549 146), Cedar Sales (Aust) Pty Ltd (ACN 623 553 293) and Urbanline (Aust) Pty Ltd (ACN 625 696 120).
Price means the price payable for the Goods as agreed between the Supplier and the Customer in accordance with clause 4 below.
Supplier means the relevant member of the Modinex Group which is responsible for the supply of the relevant Goods to the Customer in accordance with a purchase order, invoice or similar request for Goods and for the avoidance of doubt except where specifically stated otherwise, means:
- Austratus (Aust) Pty Ltd (ACN 523 555 402) in relation to the supply of suspended and direct fix timber lining systems;
- Modinex Timber Pty Ltd (ACN 623 549 155) in relation to the supply of various timber species;
- Modinex Finishes Pty Ltd (ACN 623 549 146) in relation to the supply of coating finishes to timber and sheet product;
- Urbanline (Aust) Pty Ltd (ACN 625 696 120) in relation to the supply of composite and hardwood building products; and
- Cedar Sales (Aust) Pty Ltd (ACN 623 553 293) in relation to the supply of cedar building products and componentry.
Trade Terms means the terms and conditions set out in this document, as may be amended or varied from time to time by the Modinex Group in accordance with 16.6, upon acceptance by the Customer in accordance with the terms of this document, form a binding agreement between the Supplier and Customer.
2. Acceptance of Trade Terms
2.1 The customer acknowledges and agrees that it is taken to have accepted and be immediately bound, jointly and severally, by these Trade Terms if the Customer places an order for Goods, or accepts Delivery.
2.2 These Trade Terms (and any terms and conditions stipulated by a member of the Modinex Group in any further or other separate written agreement, including but not limited to, quotations, delivery dockets, statements, invoices, or similar documents issued by the Supplier from time to time) together form the entire agreement between the relevant Supplier and the Customer, and may only be varied, amended, altered or added to, with the Supplier's consent in writing. The Company will not be deemed to have waived any of its rights under the Trade Terms unless such waiver is in writing and signed by an officer of the Supplier.
2.3 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions (Queensland) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.
2.4 The Customer agrees to advise the Supplier of the specific intended use of the Goods (including, but not limited to, the associated weather conditions) in order for the Supplier to supply the appropriate Goods. In the event that the Customer fails to comply with this clause 2.4, the Supplier shall not be liable for any defect or damage to the Goods as a result of the Customer's failure to supply the Supplier with full information (subject to the provisions clause 10).
3. Supply of Goods and limitation of liability
3.1 The Customer acknowledges and agrees that each member of the Modinex Group is responsible for supplying different types of Goods and that one or more member of the Modinex Group may be a 'Supplier' for the purposes of fulfilling a Customer's purchase order.
3.2 Notwithstanding any other clause in these Trade Terms and to the greatest extent permitted by law, the liability of each member of the Modinex Group as a 'Supplier' in the supply of the Goods supplied by it to the Customer.
3.3 Each Supplier nominates Modinex Group Pty Ltd (ACN 623 442 848) to act on the Supplier's behalf to set appointments with Customers, issue invoices to Customers for the supply of Goods, to collect payment of invoices and to perform such other administrative tasks as each member of the Modinex Group may require from time to time.
3.4 The Customer acknowledges and agrees that only the members of the Modinex Group are 'Suppliers' for the purposes of these Trade Terms and that this clause may be relied upon as complete bar to any action brought by a Customer against any other related entity of any member of the Modinex Group.
3.5 Change in Control
The Customer shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer's details (including but not limited to, changes in the Customer's name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by the Supplier or any other member of the Modinex Group as a result if the Customer's failure to comply with this clause.
4. Price and Payment
4.1 At the Supplier's sole discretion the Price shall be either:
- as indicated on any invoice provided by the Supplier to the Customer; or
- the Supplier's quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days. The Supplier reserves the right to vary or withdraw (whether before or after the Supplier's acceptance of the Customer's order) any quotation furnished to the Customer in order to correct any error or omission affecting the Price quoted therein, or its calculation, or generally. The Customer shall be responsible for ensuring that the quantity, type and description of the Goods specified in any quotation corresponds with the Goods required by the Customer. The Supplier shall be under no obligation whatsoever to the Customer for any discrepancies not drawn to the Supplier's attention prior to the acceptance by the Supplier of any order placed on the basis of a quotation.
4.2 The supplier reserves the right to change the Price:
- if a variation to the Goods which are to be supplied is requested (including due to inaccuracies in quantities or dimensions or other information supplied to the Supplier for quotation purposes); or
- as a result of an increase in the Supplier's costs of labour and/or materials (including due to the unavailability of materials from third party suppliers), or due to fluctuations in currency exchange rates, which are outside the control of the Supplier.
4.3 At the Supplier's sole discretion, a non-refundable deposit may be required.
4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer to the Supplier on the date/s determined by the Supplier, which may be:
- before Delivery; or
- the date specified on any invoice being 30 days from invoice date or other form as being the date for payment; or
- failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice/s furnished to the Customer in respect of Goods supplied by the Supplier.
4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by any other method as agreed to between the Customer and Supplier.
4.6 Unless otherwise stated, the Price does not include GST. In addition to the Price the Customer must pay to the Supplier an amount equal to any GST the Supplier must pay for any supply by the Supplier under these Trade Terms or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5. Quoting & Estimation Terms & Conditions:
5.1 All prices, unless specifically stated on the quote or correspondence, are in Australian Dollars ($AUD) and exclusive of GST (Goods and Services Tax) and freight charges. Unless specifically stated, all prices are per lineal meter.
5.2 Prices are subject to change without notice if deemed necessary by Modinex Group Directors
5.3 The client is responsible to ensure the product on the quote or correspondence, is the item that was requested and meets the specifications and compliance of the application. Modinex Group reserves the right to quote an alternative product if the product requested is not available.
5.4 Payment is required before despatch unless an account has been authorised and Modinex Group Trading Terms have been accepted, signed and returned
5.5 All Modinex Group estimations are to be used as a guide for the client. This quote contains estimated and recommended quantities of materials. It is the final responsibility of the client/end user/installer to finalise all material quantities in accordance with onsite measurements, so that sufficient material is ordered in view of the successful completion of the project.
5.6 It is the responsibly of the client to check the areas quoted as per the marked plans, and to further ensure that all areas, including any hidden and section views have been included in the estimation.
5.7 Any samples, drawings, images, descriptive matter, or advertising produced by Modinex Group and any descriptions or illustrations contained in our catalogues, websites or brochures are produced for the sole purpose of giving an approximate idea of the products described in them. They shall not form part of the contract or have any contractual force. The images of the products are for illustrative purposes only. Although every effort has been made to display the colours accurately, Modinex Group cannot guarantee that your computer’s display of the colours will accurately reflect the colour of the products. Your products may vary slightly from those images.
6.1 Delivery of the Goods (Delivery) is taken to occur at the time that:
- the Customer (or the Customer's nominated carrier) takes possession of the Goods at the Supplier's premises; or
- the Supplier's (or the Supplier's nominated carrier) delivers the Goods to the road way adjacent to the Customer's nominated site, even if the Customer is not present at the address. The Customer acknowledges that the Supplier's records of Delivery shall be prima facie evidence of Delivery to the Customer.
6.2 At the Supplier's sole discretion, the cost of Delivery is either included in the Price or is in addition to the Price.
6.3 The Customer must take Delivery, by receipt or collection of the Goods, whenever they are tendered for Delivery. In the event that the Customer is unable to take Delivery, as arranged, then the Supplier shall be entitled to charge a reasonable fee for redelivery and/or storage.
6.4 The Supplier shall be entitled to:
- determine the manner of Delivery; and
- deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these Trade Terms.
6.5 Any time or date given by the Supplier to the Customer is an estimate only. The Customer must still accept Delivery, even if late, and the Supplier will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late.
7.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery, and the Customer must insure the Goods (at their full value and ensure that the Supplier's interest is noted on the policy) on, or before, Delivery. The Supplier may require the Customer to demonstrate compliance with this clause, including by producing a copy of the insurance policy.
7.2 If any of the Goods are damaged or destroyed following Delivery, but prior to ownership passing to the Customer, the Supplier or is nominee is entitled to receive all insurance proceeds payable for the Goods. The production of these Trade Terms by the Supplier is sufficient evidence of the Supplier's or its nominee's rights to receive the insurance proceeds without the need for any person dealing with the Customer or the Supplier to make further enquiries.
7.3 If the Customer requests the Supplier to leave Goods outside the Supplier's premises for collection, or to deliver the Goods to an unattended location, then such goods shall be left at the Customer's sole discretion.
7.4 The Customer acknowledges that variations in colour and sheen levels can occur between batches, and the Supplier shall take no responsibility for any loss, damages or costs howsoever arising resulting from any variation of the colour and/or sheen level between different batches, or the inability to supply subsequent batches at all.
7.5 Where coatings are supplied in canned liquid form, it is recommended by the Supplier that the coated surface be clean and dry and should not be used where it is likely to rain within the following twenty-four (24) hours.
7.6 It shall be the Customer's responsibility to determine the suitability of the Goods supplied for their intended purpose prior to the use of the Goods. Once Goods are cut, machined, coated or affixed to a structure, the Supplier may, subject to clause 10, refuse to accept the return of the Goods or offer any refund.
8.1 The Customer agrees that the Supplier remains the legal and beneficial owner of all Goods sold by the supplier to the Customer until:
- the Customer has paid the Supplier (in cleared funds) all amounts owing to the Supplier in respect of all Goods; and
- the Customer has met all of its other obligations to the Supplier.
8.2 Receipt by the Supplier 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 Supplier's rights and ownership in relation to the Goods, arising under the Trade Terms, shall continue.
8.3 It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 7.1:
- and except to the extent agreed to in writing between parties, the Customer holds the Goods as the Supplier's fiduciary bailee only, and must:
- return the Goods to the Supplier on request; and
- keep the Goods physically separate from all other goods purchased by the Customer from other suppliers;
- the Customer holds the benefit of the Customer's insurance of the Goods on trust for the Supplier and must:
- notify the Supplier of all insurance claims made by it in respect of any loss or damage to, or destruction of, the Goods; and
- pay to the Supplier all the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed
- the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for the Supplier, and must pay or deliver the proceeds to the Supplier on demand; and
- the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Supplier and must sell, dispose of or return with resulting product to the Supplier as it so directs; and
- the Customer must notify the Supplier of all premises at which it holds any Goods supplied under the Trade Terms, and irrevocably authorises and allows the supplier to enter (at any reasonable time) any premises where the Goods are located (or where the Supplier believes the Goods are located) and:
- inspect the Goods, upon reasonable notice from time to time: or
- recover possession of those Goods not paid for (and any other Goods to the value of the amount owing), without being liable to the Customer (or any third party) in contract, tort or otherwise, for any costs, damages, expenses or losses incurred by the Customer (or any third party) as a result of any action taken by the Company under this sub-clause; and
- the Supplier may recover possession of any goods in transit, whether or not Delivery has occurred; and
- the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Company; and
- the Supplier may commence proceedings to recover the Price, notwithstanding that ownership of the Goods has not passes to the Customer.
8.4 The Customer must reimburse the Supplier all costs incurred by the Supplier in exercising its rights under clause 7.3.
9. Personal Property Securities Act 2009 (PPSA)
9.1 In this clause 'financing statement', 'financing change statement', 'security agreement', 'personal property', 'purchase money security interest', 'attached', 'attachment', 'perfected', 'accession', 'commingled', and 'security interest' has the meaning given to it by the PPSA.
9.2 The Customer:
- acknowledges and agrees that these Trade Terms constitute a security agreement for the purposes of the PPSA and creates a security interest (SI) in all Goods that have previously been supplied and that will be supplied in the future by the Supplier to the Customer, and if required by the Supplier in all of the Customer's personal property as security payment of any other amount owed by the Customer to the Supplier and as security for performance by the Customer of the obligations set out in these Trade Terms;
- grants to the Supplier a purchase money security interest (PMSI) in all Goods supplied by the Supplier to the Customer from time to time as security for payment of the Price of the Goods;
- agrees that any Goods, or proceeds of sale of the Goods coming into existence after the date of the agreement between the parties, will come into existence subject to a PMSI and if required by the Supplier the SI granted herein, and the Trade Terms, without the need for any further action or agreement by any party;
- acknowledges that the Customer has received valuable consideration from the Supplier and agrees that it is sufficient; and
- agrees that the PMSI and the SI has attached to all the Goods supplied now or in the future by the Supplier to the Customer and that the attachment of the PMSI has in no way been deferred or postponed.
9.3 The Supplier reserves the right to register a financing statement in the PPSR to perfect the PMSI and/or SI created under the Trade Terms. The Customer undertakes to:
- promptly, on request by the Supplier, execute all documents and so anything else reasonably required by the Supplier (including sign any further documents and/or provide any further information, which shall be complete, accurate and up-to-date in all respects) to ensure that any PMSI and/or SI created under the Trade Terms constitutes a perfected security interest, and further that the Supplier can:
- register financing change statement in relation to the PMSI and/or SI on the Personal Property Securities Register;
- register any other document required to be registered by the PPSA; or
- correct a defect in a statement referred to in clause 8.3(a)(i) or 8.3 (a)(ii);
- not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in flavour of a third party without the prior written consent of the Supplier, and will immediately notify the Supplier if the Customer becomes aware of any third party taking steps to do so;
- ensure that the Goods do not become accessions or commingled with other goods, unless the Supplier has first perfected any PMSI and/or SI that the Supplier has in relation to the Goods. If the Supplier perfects any PMSI or SI that the Supplier has in relation to the Goods, the Customer must not do anything that results in the Supplier having less security or priority granted by the PPSA that the Supplier assumed at the time of perfection, subject only to the rights of a mortgagee pursuant to a registered mortgage. The Supplier may enforce its rights under sub-clause 7.3(d) if the Supplier has no cause to exercise any of its rights under Chapter 4 of the PPSA;
- immediately advise the Supplier in writing 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.
9.4 The Supplier and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
9.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
9.6 The Customer waives their rights as a grantor and/or debtor under sections 135, 142 and 143 of the PPSA.
9.7 The following provisions of the PPSA (sections 123, 126, 128, 129 and 134(1)) confer rights of the Supplier. The Customer agrees that in addition to those rights, the Supplier shall, if there is a failure to make payments as required by these Terms of Trade by the Customer the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any Goods, not only under those sections, but also as additional and independent rights, under the Trade Terms and the Customer agrees that the Supplier may do so in any manner it sees fit including (in respect of dealing and disposal) by private or public sale, lease or licence.
9.8 Unless otherwise agreed to in writing by the Supplier, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
9.9 The Customer must unconditionally ratify any actions taken by the Supplier under clause 8.3 to 8.5.
9.10 The parties agree not to disclose information of the kind that can be requested under section 275(1) of the PPSA. The Customer must do everything necessary on its part to ensure that section 275(6) of the PPSA continues to apply.
10. Security and Charge
10.1 In consideration of the Supplier agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these Trade Terms (including, but not limited to, the payment of any money).
10.2 The Customer indemnifies the Supplier from and against all the Supplier's costs and disbursements including legal costs on a solicitor and own client basis incurred exercising the Supplier's rights under this clause.
10.3 The Customer irrevocably appoints the Supplier and each director of the Supplier as the Customer's true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 9 including, but not limited to, signing any document on the Customer's behalf.
11. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
11.1 The Customer must inspect the Goods on Delivery and must within seven (7) days of such time notify the Supplier in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quotation. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow the Supplier to inspect the Goods.
11.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these Trade Terms (Non-Excluded Guarantees).
11.3 The Supplier acknowledges that nothing in these Trade Terms purports to modify or exclude the Non-Excluded Guarantees. However, the customer acknowledges that the Supplier is under no liability for any defects in the Goods resulting from, or arising out of, the production of the same in accordance with information, designs and drawings provided, or approved, by the Customer.
11.4 Except as expressly set out in these Trade Terms or in respect of the Non-Excluded Guarantees, the Supplier makes no conditions, warranties or other representations under these terms and conditions, including, but not limited to, the quality or suitability of the Goods. The Supplier's liability in respect of these warranties is limited to the fullest extent permitted by law. Due to the wide variation in possible applications of the Goods (including, but not limited to, the age and porosity of the timber, species, situation, design, structure, aspect, differing exposure to weather and adequacy of preparation, etc.), the Supplier does not offer any specific performance warranties.
11.5 If the Customer is a consumer within the meaning of the CCA, the Supplier's liability is limited to the extent permitted by section 64A of schedule 2.
11.6 If the Supplier is required to replace the Goods under this clause or the CCA, but is unable to do so, the Supplier may refund any money the Customer has paid for the Goods.
11.7 If the Customer is not a consumer within the meaning of the CCA, the Supplier's liability for any defect or damage in the Goods is:
- limited to the value of any express warranty provided to the Customer by the Supplier at the Supplier's sole discretion;
- limited to any warranty to which the Supplier is entitled, if the supplier did not manufacture the Goods, as set out on instructions supplied with the Goods and/or on the manufacturer's website;
- otherwise negated absolutely.
11.8 Subject to this clause 10, returns will only be accepted provided that:
- the Customer has complied with the provisions of clause 10.1; and
- the Supplier has agreed that the Goods are defective; and
- the Goods are returned within a reasonable time at the Consumer's cost (if that cost is not significant); and
- the Goods are returned in as close condition to that in which they were delivered as is possible.
11.9 Notwithstanding clauses 10.1 to 10.8 but subject to the CCA, the Supplier shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
- the Customer failing to properly maintain or store the Goods;
- the Customer using the Goods for any purpose other than that for which they were designed;
- the Customer continuing the use of the Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
- the Customer failing to follow any instructions or guidelines provided by the Supplier;
- fair wear and tear, any accident, or act of God.
11.10 Notwithstanding anything contained in this clause if the Supplier is required by law to accept a return then the Supplier will only accept a return on the condition imposed by that law.
11.11 Timber colour, coatings, stains, treatments and weathering: Please note that the natural colour of timbers and its grain patterns can vary significantly. Timber products when coated can show a great variety in colouration and can fade and weather at different rates when exposed to weather. The Supplier can offer no specific performance warranties in relation to colour variation or colour retention because of the wide number of variables related to the weathering process. These variables include but are not limited to the natural colour and grain patterns of the timber, the age and porosity of the timber, species, situation, design and structure, aspect, differing exposure to weather, method of application of coatings and adequacy of preparation. The Supplier also takes no responsibility for any loss, damages or cost howsoever arising resulting from any variation of the colour and/sheen levels between different coating batches or the inability to supply subsequent batches at all.11.
12. Intellectual Property
12.1 Where the Supplier has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of the Supplier.
12.2 The Customer warrants that all designs, specifications or instructions given to the Company will not cause the Supplier to infringe any patent, registered design or trademark in the execution of the Customer's order and the Customer agrees to indemnify the Supplier against any action taken by a third party against the Supplier in respect of any such infringement.
12.3 The Customer agrees that the Supplier may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Supplier has created for the Customer.
13. Default and Consequences of Default
13.1 Interest on overdue invoices shall accrue daily from date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Supplier's sole discretion such interest shall compound monthly at such a rate) after as well as before any judgement.
13.2 If the Customer owes the Supplier any money the Customer shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Supplier's contract default fee, and bank dishonour fees).
13.3 Further to any other rights or remedies the Supplier may have under the Trade Terms, if the Customer has made payment to the Supplier by credit card, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Supplier under this clause 12 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer's obligations under these Trade Terms.
13.4 Without prejudice to any other remedies the Supplier may have:
- the Company shall be entitled to (without being liable in any way for any claim, damage, expense or cost arising therefrom) suspend or terminate the supply of Goods to the Customer (including cancelling all or any part of any order of the Customer which remains unfulfilled) and all amounts owing to the Company shall, whether or not due for payment, become immediately payable if:
- at any time the Customer is in breach of any obligation under these Trade Terms;
- any money payable to the Company becomes overdue, or in the Company's opinion the Customer will be unable to make a payment when it falls due;
- the Customer becomes insolvent, convenes a meeting with its creditors or purposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
- a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
- If the Customer is in breach through any action under sub-clause (a):
- the right of the Customer to sell the Goods in the ordinary course of business, or otherwise, immediately terminates with the need for the Company to provide written notification; and
- the Company may forthwith withdraw any credit facilities which may have been extended to the Customer, withhold any further deliveries of Goods (or performance of Services) under the Trade Terms or, in respect of Goods already delivered, repossess the Goods in accordance with sub-clause 7.3(e).
14.1 The Supplier may cancel any Contract to which these Trade Terms apply, or cancel Delivery at any time before the Goods are delivered, by giving written notice to the Customer. On giving such notice the Supplier shall repay to the Customer any money paid by the Customer for the Goods. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2 In addition to any other rights the Supplier may have against the Customer, and to the extent permitted by law, the Customer shall indemnify the Supplier for, and save it harmless from, any loss, damage or expense (whether direct or indirect, and including but not limited to any loss of profits) incurred by the Supplier should the Customer cancel any order (or part thereof) for the Goods, or breach these Trade Terms or any Contract.
14.3 Cancellation of orders for Goods made to the Customer's specifications, or for non-stocklist items, will definitely not be accepted once production has commenced.
15. Privacy Act 1988
15.1 The Customer agrees for the Supplier to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, DOB, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by the Supplier.
15.2 The Customer agrees that the Supplier may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
- to assess an application by the Customer; and/or
- to notify other credit providers of a default by the Customer; and/or;
- 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
- to assess the creditworthiness of the Customer including the Customer's repayment history in the preceding two (2) years.
15.3 The Customer consents to the Supplier being given a consumer credit report to collect overdue payment on commercial credit.
15.4 The Customer agrees that personal credit information provided may be used and retained by the Company for the following purposes (and for other agreed purposes or required by):
- the provision of Goods; and/or
- analysing, verifying and/or checking the Customer's credit, payment and/or status in relation to the provision of Goods; and/or
- processing of any payment instructions, direct debit facilities and/or credit facilities as requested by the Customer; and/or
- enabling the collection of amounts outstanding in relation to the Goods.
15.5 The Supplier may give information about the Customer to a CRB for the following purposes:
- to obtain a consumer credit report;
- allow the CRM to create or maintain a credit information file about the Customer including credit history.
15.6 The information given to the CRM may include:
- personal information as outlined in 14.1 above;
- name of the credit provider and that the Supplier is a current credit provider to the Customer;
- whether the credit provider is a licensee;
- type of consumer credit;
- details concerning the Customer's application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
- advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and the Supplier has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
- information that, in the opinion of the Supplier, the Customer has committed a serious credit infringement;
- advice that the amount of the Customer's overdue payment is equal to or more than one hundred and fifty dollars ($150).
15.7 The Customer shall have the right to request (by e-mail) from the Supplier:
- a copy of the information about the Customer retained by the Supplier and the right to request that the Supplier correct any incorrect information; and
- that the Supplier does not disclose any personal information about the Customer for the purpose of direct marketing.
15.8 The Supplier will destroy the personal information upon the Customer's request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
15.9 The Customer can make a privacy complaint by contacting the Supplier via e-mail. The Supplier will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
16. Unpaid Seller's Rights
16.1 Where the Customer has left any item/s with the Supplier for repaid, modification, exchange or for the Company to perform any other service in relation to the item/s and the Supplied has not received or been tendered the whole of any moneys owing to it by the Customer, the Supplier shall have, until all moneys owing to the Supplier are paid:
- a lien on the item/s; and
- the right to retain or sell the item, such sale to be undertaken in accordance with legislation applicable to the sale or disposal of uncollected goods.
16.2 The lien of the Supplier shall continue despite the commencement of proceedings, or judgment for any moneys owing to the Supplier having been obtained against the Customer.
17.1 The failure by the Supplier to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Supplier's right to subsequently enforce that provision. 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.
17.2 These Trade Terms and any Contract to which they apply shall be governed by the laws of Queensland, the state in which the Supplier has its principal place of business, and are subject to the jurisdiction of the Ipswich Court in that state.
17.3 Subject to clause 10, the Supplier shall be under no liability whatsoever to the Customer for any loss, injury or damage (including indirect and/or consequential loss and/or expense) suffered or caused as a result of, or arising out of, any breach of this agreement, or any act or omission, whether negligent or otherwise, by the Supplier, its servants or agents. Alternatively, the Supplier's liability shall be limited to damages which under no circumstances shall exceed the Price. The Customer agrees to mnfy the Supplier against any claims made against the Supplier by any third party in respect of any such loss, injury or damage.
17.4 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 Supplier nor to withhold payment of any invoice because part of that invoice is in dispute. However, if (for any reason) the Customer is owed any money by the Supplier, the Supplier may set off, and deduct from the money owed, any amounts payable by the Customer to the Supplier.
17.5 The Supplier may license or sub-contract all or any part of its rights and obligations without the Customer's consent.
17.6 The Customer agrees that any member of the Modinex Group may amend these Trade Terms at any time. If any member of the Modinex Group makes a change to these Trade Terms, then that change will take effect from the date on which the Modinex Group notifies the Customer of such change. The Customer will be taken to have accepted such changes in respect of all members of the Modinex Group if the Customer makes a further request for any member of the Modinex Group to provide Goods to the Customer.
17.7 Neither party shall be liable for an default due to any act of God, war, terrorism, strike, lock-out, industrial action/riot/civil commotion, robbery, fire, flood, storm, or other event beyond the reasonable control of either party and the Supplier:
- shall not be liable for any claims for non-fulfilment or late Delivery should actual Delivery (or any parts) be delayed in consequence of unseen events under this clause 16.7 and unforeseen breakdown of machinery (save where caused by improper maintenance of operation by untrained personnel), suspension of electricity or other relevant power supply adverse non-foreseeable weather conditions, action of government or port authority, delay of vessel, railroad embargoes, in ability to obtain transportation facilities or due to failure of an original equipment manufacturer to supply components by the due date; and
17.8 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
17.9 A certificate signed by an officer of the Supplier stating to the amount due and payable by the Customer under this (or any other) Contract shall be prima facie evidence thereof.