TERMS & CONDITIONS OF TRADE (11/2007)
To the fullest extent legally possible, all dealings between Alan Myerson trading as Makers & Providers ABN: 30 068 114 032 (& any of his successors & assigns) (“M&P”) & any Customer (" Customer") relating to any goods or services are subject to the following Terms & Conditions of Trade (“these Terms”) unless otherwise agreed in writing.
1. Payments: a) Payments to be within 30 days of invoice date without deduction or set-off of any kind. b) M&P may apply a payment received from the Customer to any amounts owed by the Customer (including interest, part payment of an invoice, administration, collection & other costs) in any order. c) M&P is entitled to set-off or deduct any amount payable by M&P to the Customer.
2. Interest is payable on overdue accounts at the rate prescribed under the Penalty Interest Rates Act 1983 (Vic) plus an additional 3% & a monthly admin fee of $25 will apply.
3. Property: a) Property in goods shall not pass until payment in full of all monies owed to M&P on any basis ("Full Payment") b) M&P reserves the right to take possession & dispose of goods as it sees fit at any time until Full Payment & the Customer grants permission to M&P to enter any property where any goods are, in order to do so & with such force as necessary c) Immediately upon delivery the Customer accepts liability for the goods d) A certificate signed by an officer of M&P identifying goods & certifying that monies are owing to M&P shall be conclusive evidence of M&P’s title thereto e) Upon sale or disposition of goods prior to Full Payment the Customer agrees to hold all proceeds Upon Trust for M&P in a separate bank account, agrees not to mix proceeds with any other monies & will immediately account to M&P therefore even if M&P may have granted any credit facility &/or time to pay f) Until Full Payment the Customer agrees (i) to keep all goods as fiduciary for AMJ & store them in a manner which shows AMJ as owner (ii) only to sell goods in the usual course of business (iii) sale on terms, at cost or less than cost shall not be “in the usual course” g) Clause 3 is not intended to create a charge & shall be read down to the extent necessary to avoid being a charge h) if the Customer uses or incorporates any goods in any production, process or manufacture or combines them with anything to create a finished or combined new thing for disposition then upon such disposition prior to Full Payment, the Customer agrees to hold such part of the proceeds thereof (& until payment is received by the Customer, that part of any applicable book debt ) as equals the costs of the goods used &/or incorporated therein (at the prices invoiced by M&P to the Customer) Upon Trust for M&P until Full Payment.
4. Limitation Of Liability: a) The Customer will limit any claim upon M&P relating to goods, to the cost of replacement of goods or the supply of equivalent goods & relating to services, to the cost of having services supplied again b) M&P shall not be liable for any claim arising after 7 days from delivery of goods or performance of services (or at all once goods have been unpacked, modified, on-sold or otherwise used or applied) after which there shall be deemed to be unqualified acceptance c) M&P will not be liable in any way for any contingent consequential direct indirect special or punitive damage arising whether due to M&P's negligence or otherwise & the Customer acknowledges this limit of liability & agrees to limit any claim accordingly d) No other term condition agreement warranty representation or understanding whether express or implied in any way extending to or otherwise relating to or binding upon M&P is made or given e) M&P will not be liable for any claim relating to or arising from any alleged fault or defect, whether caused or contributed to by M&P, the Customer or any 3rd party or otherwise.
5.Returns: a) If M&P elects to take back product it must be in as new & saleable condition & upon terms agreed & a re-stocking fee of not less than 15% of invoice value will apply b) Custom made or custom processed goods or goods acquired by M&P specifically for the Customer will not be returnable c) Any goods which are accepted by M&P as defective may be returned & will be replaced free of charge or be the subject of a credit for the invoiced value. "Free of charge" does not include labour, transport or material costs.
6. Specific Orders. Customer specific orders may be rejected by M&P at its election, unless accompanied by a non-refundable deposit of at least 50% of the total order price.
7. Placement Of Orders: a) if any dispute arises concerning any order (& including any measurement quality quantity identity or authority or any telephone facsimile e-mail or computer generated order) the internal records of M&P will be conclusive evidence of what was ordered b) each order placed shall be & be deemed to be a representation made by the Customer at the time that it is solvent & able to pay all of its debts as & when they fall due c) failure to pay in accordance with these Terms shall be & be deemed to be conclusive evidence that the Customer had no reasonable grounds for making the representation referred to in 7.b) & that the representations were unconscionable, misleading & deceptive d) when any order is placed, the Customer shall inform M&P of any material facts which would or might reasonably affect the commercial decision by M&P to accept the order &/or grant credit in relation thereto. Any failure to do so shall create & be deemed to create an inequality of bargaining position shall constitute & be deemed to constitute the taking of an unfair advantage of M&P & to be unconscionable, misleading & deceptive.
8. Delivery: a) M&P accepts no responsibility for delivery but may elect to arrange delivery at its discretion & without any liability & at the Customer's costs & responsibility in all things b) M&P reserves the right to charge for any delivery c) the Customer shall be deemed to have accepted delivery & liability for the goods immediately M&P notifies that they are ready for collection or when they are delivered to a carrier or to the Customer's business premises or site whether attended or not d) a certificate purporting to be signed by an officer of M&P confirming delivery shall be conclusive evidence of delivery as shall any signed delivery docket e) M&P will not be liable for delay, failure or inability to deliver any goods f) once the Customer has been notified that goods are ready for collection, the Customer agrees to pay all costs of holding or handling goods g) Frustrated Delivery: If time spent delivering exceeds 30 minutes or requires more than one attempt, the Customer agrees to pay all costs relating thereto plus a loading of 10% to cover administration costs.
9. Variation or cancellation of any order dealing or arrangement must be agreed in writing.
10. Exclusions: a) No dealing with the Customer shall be or be deemed to be a sale by sample or description b) If M&P publishes material about its goods & prices, any part which is incompatible with these Terms is expressly excluded c) the Customer will rely on its own knowledge & expertise in choosing any product for any purpose d) Any advice or assistance given for or on behalf of M&P shall be accepted at the Customer’s risk & shall not be or be deemed given as expert or adviser nor to have been relied upon.
11. On-Sale: The Customer agrees that upon on-sale of any goods to inform any third party involved of these Terms & in particular the provisions of clause 3 & especially clause 3 (h).
12. Severability: Any part of these Terms can be severed without affecting any other part.
13. Stock Discretion: M&P has a continuing discretion to allocate available stock & gives no warranty as to certainty of supply unless expressly agreed in writing in advance.
14. Purchase Price: a) All sales are made by M&P at its ruling price at the time of delivery b) government imposts & any GST (“imposts”) will be to the Customer’s account c) M&P’s price lists exclude imposts unless expressly noted thereon.
15. Default or breach by the Customer of these Terms or in any dealings with M&P will entitle M&P to retain all monies paid, call-up all monies due or owing (whether currently due & owing or not), cease further deliveries & recover from the Customer all loss of profits without prejudice to any other of its rights under these Terms or at law.
16. Products & Services a) M&P disclaims any responsibility or liability whatsoever relating to any dyes colours colour fastness characteristic suitability for any particular purpose or process b) the Customer agrees to check and test all goods prior to use alteration or any sale or application thereof whether in relation to any dyes colours, colour fastness, characteristic or suitability for any particular purpose or process or otherwise c) the Customer agrees to check & test all goods for compliance with all relevant applicable standards & regulatory bodies before use, on-sale or application & to use or apply same in accordance with all applicable standards, regulations & guidelines, with all manufacturers &/or M&P recommendations & directions as well as with good commercial practice d) M&P may update modify make substitution or alter any of its goods or any component or raw material incorporated in or used in forming any part of any goods as part of its ongoing business. The Customer agrees to accept current goods in substitution for any goods ordered provided they are not materially different e) M&P disclaims any responsibility or liability relating to any goods i) processed or made to designs drawings specifications or measurements etc or with materials which are provided or approved (whether in part or fully) by or on behalf of the Customer ii) utilised stored handled or used incorrectly or inappropriately
17. Other Terms & Conditions & Notice: a) No terms &/or conditions sought to be imposed by the Customer upon M&P shall apply unless agreed in writing by M&P b)The Customer will be deemed to have notice of any change to these Terms, immediately M&P adopts them.
18. Recovery Costs: The Customer will pay all costs & expenses of M&P, its legal advisers, mercantile agents & others acting on its behalf in respect of anything instituted or being considered as a result of any breach of these Terms or breach of any dealings with M&P.
19. Attornment: To give effect to its obligations arising under in these Terms the Customer hereby irrevocably appoints any solicitor for M&P from time to time, as its attorney.
20. Customer Restructure: The Customer will notify M&P of any change in its structure or management including any change in director shareholder management partnership or trusteeship or sale of any material part of its business within 7 days of any such change.
21. Jurisdiction: All contracts made with M&P shall be deemed to be made in Victoria & the parties submit to the jurisdiction of the appropriate Courts in or nearest Melbourne.
22. Credit Limit: M&P can vary or withdraw any credit facility or limit at any time at its discretion & without any liability to the Customer or any other party.
23. Waiver: If M&P elects not to exercise any rights arising as a result of breach of these Terms it shall not constitute a waiver of any rights relating to any subsequent or other breach.
24. Security For Payment: The Customer a) agrees on written request to charge in favour of AMJ (i) by way of a fixed charge, all its books of account goodwill documents of title & current & later acquired real & intellectual property & (ii) by way of a floating charge the whole of the Customer’s other undertaking property & assets with Full Payment b) grants a lien to M&P over any of its property in the possession or control of M&P until Full Payment.
25. Force Majeure: M&P will not be in default or breach of any dealing with the Customer as a result of Force Majeure (ie: anything beyond M&P’s reasonable control).
26. Exports of any goods are governed by these Terms & all international trade conventions &/or terms are expressly excluded.
27. Intellectual Property: a) If M&P utilises any design patent or intellectual property or follows any instruction provided by or on behalf of the Customer the Customer indemnifies M&P against any claim proceeding damages or liability for any loss cost or expense arising as a result whether for any alleged infringement of any intellectual property or otherwise b) The Customer may not advertise, use or represent any intellectual property of M&P or of any goods themselves in any way without the prior written consent of M&P c) If the Customer breaches or permits any breach of this clause, it acknowledges AMJ may suffer claims by third parties as a result (eg: by models who's images are reproduced without authority &/or by parties who are entitled to exploit any intellectual property) & clause 34 will apply
28. Discounts: a) Any discount offered by M&P is at its complete discretion & will only be available provided the Customer is not in breach of any part of these Terms nor in default in any of its dealings with M&P b) unless otherwise agreed in writing, early payment discounts (if any) will be noted on the face of the relevant invoice & are subject to these Terms.
29. Specifications: a) Any illustration drawing or specification supplied by M&P (“Specs”) are drafts & approximates b) Any tangible or intellectual property rights in Specs shall remain the property of M&P & may be recalled at any time c) Specs are to be treated at all times as confidential & not made use of without the prior written consent of M&P.
30. No Set-off or Counter Claim will be made or applied by the Customer until payment in full of all bone fide invoices raised by M&P (whether current or overdue) & this clause may be pleaded as a bar to any action taken prior to such payment in full.
31. Insolvency: a) If the Customer commits or is involved in any act of insolvency, it will be deemed in default under these terms b) An act of insolvency includes bankruptcy, liquidation, receivership, administration or the like & failure to pay in accordance with these Terms.
32. Partial Delivery/Forward Orders: If the Customer places forward orders or request partial or instalment delivery, the Customer agrees a) to pay for so much of any order as is from time to time delivered by M&P b) that no delay or failure to fulfil any part of any order shall entitle the Customer to cancel or vary any order or delay or reduce any payment.
33. Acceptable Variation: The Customer will accept variation in quantities at minus 20% & will pay pro-rata for the actual quantity delivered.
34. Indemnity: The Customer indemnifies M&P against any claim or loss arising from or related in any way to any contract or dealing between M&P & the Customer or anything arising therefrom or arising as a result of or subsequent to any breach of these Terms.
35. AMJ not Manufacturer: a) The Customer agrees that M&P is not the manufacturer of any goods b) Goods are sold subject to any manufacturer's trading terms and conditions and are covered (if at all) by any manufacturer's warranty applicable thereto. c) M&P shall not be liable to any party as manufacturer d) M&P will use all reasonable endeavours to assist the Customer to claim upon the actual manufacturer but at the Customers cost in all things e) If M&P is deemed manufacturer of any goods in any circumstances, the Customer will fully indemnify M&P against any liability loss or cost associated with or arising as a result of such deeming.