MTQ ENGINE SYSTEMS (AUST) PTY LIMITED (“SUPPLIER”)
TERMS AND CONDITIONS (T&Cs)
1. PRICES AND GST
All prices quoted are subject to change without prior notice and are exclusive of GST. Customer warrants that it is registered for GST and will notify the Supplier if it ceases to be so. Each amount payable by the Customer under these T&Cs in respect of a Taxable Supply by the Supplier is a GST exclusive amount and on receipt of a tax invoice the Customer must, in addition to that amount and at the same time, pay the GST payable in respect of in that supply. "Taxable Supply" and "GST" have the meanings set out in the A New Tax System Goods and Products and Services) Act 1909 (Cth). This account may be subject to a monthly account fee as agreed.
2. CLAIMS AND RETURNS
No claims for shortage or damaged items will be recognised unless notified within seven (7) days from receipt of goods. Goods returned for credit will be subject to handling charge as follows: 14-29 days - 10%. After 30 days - Nil Credit. All returns for credit are subject to substantiation to the Supplier’s reasonable satisfaction and invoice numbers must be supplied before credit will be considered.
3. WITHDRAWAL, SUSPENSION AND VARIATION OF CREDIT
For the avoidance of doubt, the credit offered (if any), remains at all times a matter for the Supplier’s sole determination and the Supplier may, at any time, without the need to provide a reason or incurring any liability to the Customer, vary, suspend (temporarily or indefinitely) or withdraw any credit granted to the Customer.
4. SUSPENSION AND CEASING OF SUPPLY
The Supplier may, at any time, at its complete discretion and without incurring any liability to the Customer, cease or suspend supply of any goods or services to the Customer or amend these T&Cs.
5. CUSTOMER DEFAULT
Without limitation to the Supplier’s rights, all amounts owing to the Supplier become immediately due and payable if Customer defaults in making prompt payment of any amount due to the Supplier, becomes insolvent or bankrupt, commits an act of bankruptcy, convenes a meeting with its creditors, or enters into an arrangement with its creditors, or makes an assignment for the benefit of its creditors, or appoints a receiver, manager, liquidator (provisional or otherwise), ceases to carry on business, or is financially unable to pay its debts or meet its obligations under these T&Cs.
To the extent permitted by law or expressly by these T&Cs, all warranties or guarantees whether express, implied, statutory or otherwise, relating in any way to the goods or the supply of goods are excluded.
Where liability cannot be limited (under the Australian Consumer Law or otherwise), to the extent permitted by law, the Supplier’s liability is limited as follows:
i. In respect of goods:
- If there is a major failure, the goods cannot be repaired or the Supplier has not responded within a reasonable time offering repair or replacement, a refund or replacement if the goods are rejected or payment of the reduction in value of the goods if the goods are not rejected; or
- If there is not a major failure, at the Supplier’s election, replacement, repair or refund; and
ii. In respect of services:
- If there is a major failure, the problem cannot be fixed or the Supplier has not responded within a reasonable time, a refund if the contract is terminated or payment of difference between the value of the services provided compared to the price paid; or
- If there is not a major failure, at the Supplier’s election, a refund or a further service to rectify the problem.
To the extent permitted by law, the Supplier is not liable to the Customer (under contract, negligence, indemnity or otherwise), and the Customer hereby releases the Supplier from any claim for, loss arising from business interruption, loss of actual or anticipated profit or revenue (whether arising at law as direct or indirect loss) or any consequential loss or damage, howsoever arising in respect to the supply of goods or services pursuant to these T&Cs or the Supplier's negligence, act or omission.
8. PAYMENT TERMS
Trading terms are Net 30 days unless other agreed by the Supplier in writing. Failure to adhere to these terms will result in the account becoming C.O.D., until such time as the account is paid in full. The Supplier reserves the right to determine when the account will be reopened. The Supplier is entitled to charge the Customer interest on amounts not paid within the credit period specified by the Supplier at a rate equivalent to 3% per annum above the business overdraft commercial Interest rate of the Supplier's principal bankers from the invoice date until payment of the debt.
9. APPLICATION OF MONIES RECEIVED:
If the Supplier receives or recovers money in respect of any debt of the Customer, the Supplier may use the money to pay off whichever debt or part of a debt the Supplier chooses and is not compelled to apply the money as directed by the Customer or any other person.
Should payment remain outstanding beyond the Company's payment terms as outlined in Clause 8, the Customer is liable for all costs including legal costs (on a solicitor/own client basis) and mercantile agents’ fees incurred by the Company in recovering the amount outstanding.
The Customer will be liable for all transactions and expenses involving the Customer's credit account including any fraudulent use of the account by the Customer, any person authorised by the Customer to use the account or the Customer's employees, agents or contractors.
12. RETENTION OF TITLE
The Supplier retains the title and ownership of goods, and Customer holds the goods as a bailee only, until Customer has paid all moneys owing to the Supplier in full. Risk passes to the Customer at the time of delivery. If the Customer defaults in payment, then without prejudice to the Supplier's other rights, the Customer expressly and irrevocably authorises the Supplier to enter and remain upon any premises occupied or used by the Customer without notice to recover possession of goods.
13. CHARGES AND PERSONAL PROPERTIES SECURITIES REGISTER
i. agrees that the retention of title contained in these T&Cs give rise to a “security interest” as defined in the Personal Properties Securities Act 2009 ("PPSA") in any of and all personal property (as defined in the PPSA) (“Personal Property”) which is the subject matter of the credit application or these T&Cs;
ii. charges all of its rights, property and undertaking of whatever kind and wherever situated, whether present or future including, without limitation, its capital and any interest in real property (both legal and beneficial, in freehold and leasehold land) (other than any Personal Property to which the PPSA applies) to the Supplier; and
iii. agrees to mortgage all of its present and future interests in any real property to the Supplier, as security for the performance of its obligations under the T&Cs including payment of goods.
The Customer must, within seven (7) days of request from the Supplier, do all things or execute or arrange execution of such documents as the Supplier requires to perfect or register any “security interest” under the PPSA, charge or mortgage. On and from the Registration Commencement Time (as defined in the PPSA):
i. the Customer has no rights under, or by reference to, sections 125, 142 and 143 of the PPSA if the Customer defaults and the Supplier takes enforcement action under these T&Cs in respect of the Goods;
ii. the Supplier is under no obligation to dispose of or retain any secured property the Supplier seizes within a reasonable time under section 125 of the PPSA;
iii. if any part of the moneys owing to the Supplier by the Customer is secured by a purchase money security interest granted by the Customer, the Supplier will use any money received under this document in the following order:
a. first, to pay obligations that are secured by which are not secured by a purchase money security interest; and
b. second, to pay obligations that are secured by a purchase money security interest;
iv. The Customer waives all rights to:
a. receive any notice under sections 95, 130 and 135 of the PPSA in relation to the enforcement of any “security interest” over the goods;
b. receive a statement of account under sections 132(3)(d) and 132(4) of the PPSA; and
c. a copy of, or notice of, any verification statement confirming registration of a financing statement or a financing change statement relating to any “security interest” under, or provided for by, these T&Cs.
Except if section 275(7) of the PPSA applies, each of the parties agree not to disclose any information of the kind referred to in section 275(1) of the PPSA that is not publicly available.
The Customer acknowledges that the Supplier, by virtue of the charge and mortgage, has a caveatable interest in any real property of the Customer which is or becomes subject to the charge and/or mortgage and may lodge a caveat over that property.
14. CHANGE OF OWNERSHIP
The Customer will notify the Supplier in writing of any impending change of ownership or legal structure of the Customer at least 45 days prior to such change. The Supplier reserves the right to vary, suspend (temporarily or indefinitely) or withdraw any credit. Customer indemnifies the Supplier against any loss or damage incurred by it as a result of the Customer's failure to notify or the change of control.
The Customer indemnifies the Supplier in relation to any direct or indirect loss, claims, liability, cost or damage suffered by the Supplier or it related bodies corporate (as the latter term is defined in the Corporations Act 2001) arising from or in connection with:
i. The fraud or negligence of the Customer, its officers, contractors, employees, servants or agents;
ii. The Customer’s breach of these T&Cs; or
iii. Any claim, demand or proceedings against the Supplier that any payment of the Customer is void, voidable or otherwise invalid for any reason (including pursuant to any provision of the Corporations Act 2001).
16. JOINT AND SEVERAL
If the Customer consists of more than one person, the obligations of each person are joint and several.
Each clause, sub-clause and part of these T&Cs is separate and independent. If any clause or sub-clause or part is found to be invalid or ineffective, the other clauses or sub-clauses or parts will not be adversely affected.
Any waiver by the Supplier must be in writing. In the event that the Supplier elects not to exercise any of the Supplier's rights under or connection with these T&Cs, the Supplier's election will not constitute a waiver of any rights relating to any other breach of these T&Cs.
These T&Cs may only be amended with the Supplier's prior written agreement. Any other contractual terms of the Customer (whether upon the Customer’s order or elsewhere) shall not apply in any circumstances nor shall they constitute a counter-offer.
The Customer cannot assign these T&Cs or any agreement under its credit application (by change of control in ownership or legal structure or otherwise) without the Supplier's prior written consent. The Supplier may assign upon written notice to the Customer.
20. RECIPIENT CREATED TAX INVOICE (RCTF) AGREEMENT
Customer agrees that the Supplier may issue Recipient Created Tax Invoices ('RCTls') for the supply to Customer (or its agent) make to the Supplier. You will not issue tax invoices for these supplies. The Supplier will issue the RCTI within 28 days of determining the value of the supply.
21. GOVERNING LAW
These T&Cs are governed by the laws of the State of Victoria. The Customer submits and consents to the jurisdiction of courts in Victoria and appeal courts therefrom.
22. PRIOR CONDUCT
Customer represents that it has not, and does not, rely on the Supplier’s prior conduct or statements when entering into these T&Cs and agrees that the Supplier’s relies on this representation for the purpose of agreeing to provide credit.
If the Supplier has provided any quotation specifically for goods and services (“Quotation”):
i. These Terms & Conditions shall apply to the Quotation;
ii. The price in the Quotation shall be the Supplier’s current price as at the date of Quotation and the price actually payable for the goods and services shall be the Supplier’s current price as at the date of the Customer’s acceptance of the Quotation; and
iii. Subject to paragraph (ii) the Quotation shall remain valid for acceptance by the Customer for thirty (30) days after the date of the Quotation.
i. The Supplier will use all reasonable endeavours to deliver goods and services on or before the agreed date for delivery (“Delivery Date”), but:
a. The Delivery Date is subject to extension for any delay caused by strikes, lockouts, war, breakdowns, accidents, delays in transport, fire or any cause beyond the reasonable control of the Supplier; and
b. The Supplier will not be liable for any loss, damage or other liability whether in contract, tort, negligence or otherwise and whether directly or indirectly arising from the goods and services not being delivered by the Delivery Date for any
ii. The Supplier may, with the agreement of the Customer, deliver goods & services to the Customer in instalments and in which case the Supplier may separately invoice the Customer for payment for each delivery instalment (which shall be taken to be the subject of a separate and distinct contract between the parties).
iii. Goods and services which have been specifically manufactured, modified, imported by the Supplier or altered by the Customer cannot be returned simply because the Customer has changed their mind.
i. The Customer is responsible for insuring their property against fire, theft and all other risks whilst the Customer’s property is at the Supplier’s premises for repairs/maintenance. The Customer discharges the Supplier from all claims or demands in relation to the Customer’s property being stored/parked at the Supplier’s premises.
ii. The Supplier may, in its absolute, discretion require the Customer to provide evidence of a current insurance certificate for the Customers property and may, in its absolute discretion refuse to accept property of the Customer if the Customer is unable or otherwise refuses to provide reasonable evidence of a current insurance policy.
26. REMANUFACTURED PARTS
i. The Supplier may carry out repairs by using remanufactured parts of the same type rather than repairing parts.
ii. The Customer acknowledges and accepts that it is in the Supplier’s absolute discretion to use Remanufactured parts to replace existing parts.
27. CUSTOMER SPECIFICATION/SPECIAL ORDERS/INTELLECTUAL PROPERTY
i. If any goods & services are manufactured by the Supplier to the design or specification of the Customer, the Customer warrants to the Supplier that any drawings, plans, specifications and other design information provided to the Supplier for the manufacture of such goods & services are accurate and correct in all respects and do not infringe upon the intellectual property rights of any third party including any copyright, patents, designs or trademarks of the third party;
ii. Where the design of any goods & services supplied by the Supplier to the Customer is proved by the Customer (or its nominee) to the Supplier, or the design is provided by the Supplier in accordance with specifications provided by the Customer, the Customer will accept sole responsibility for the design and are responsible for the suitability for the goods & services for the purposes for which they were designed and acquired;
iii. “Proprietary Information” means any and all information relating to any goods & services sold by Supplier and/or the installation or operation of the goods (including all intellectual property therein) supplied by the Supplier to the Customer and the Customer acknowledges that all Proprietary Information and all right title and interest therein are the sole property of or licensed by the Supplier and the Customer shall gain no right title or interest in the Proprietary Information whatsoever. The Customer specifically acknowledges the Supplier’s exclusive rights to ownership of any modification, translation or adaptation of the Proprietary Information and any other improvement or development based thereon which is developed supplied installed or paid for by or on behalf of the Customer;
iv. The Customer agrees to indemnify the Supplier in respect of any loss, damage, expense, claim or liability suffered or incurred by the Supplier as a result of any claim by a third party asserting infringement of any intellectual property rights in relation to such goods or any breach by the Customer of this clause 27 or any claims against Supplier arising out of any matters referred to in this clause 27.
i. This clause applies if Supplier is installing any goods & services into property belonging to the Customer;
ii. The Supplier will install the goods & services at the place nominated by the Supplier in the order in respect of the goods & services to be installed;
iii. The Customer will be responsible (unless previously agreed with the Supplier in writing) to obtain and pay for any permits or authorities required for the goods & services to be installed by the Supplier at the Supplier’s nominated location.
28. SUPPLIERS WARRANTY
i. This warranty is given by MTQ Engine Systems (Aust) Pty Ltd (“the Supplier”) (ABN 24 089 558 878) of 80 Achievement Crescent, Acacia Ridge, QLD 4110 (Telephone: 07 3723 4400) (Facsimile: 07 3274 6189) in addition to other rights and remedies under Australian Consumer Law.
ii. During the period of either 12 months from the date of invoice of the goods and services provided, or the goods and services have been in use, service or operation in an automotive engine for a period of 20,000 kms (whichever occurs first), the Supplier will replace or repair (at the Supplier’s absolute discretion) any defective goods & services under clause 28 without charge so long as the defect does not arise from:
Improper adjustment, operation or use of the goods & services;
Any modification or adaption of, or addition to the goods & services
Misuse of the goods & services or operation contrary to the product specifications;
Inadequate maintenance of the goods & services; or
Fuel, oil or other contamination of the goods and services.
iii. If the Customer is a Consumer (“Consumer” has the meaning defined in Section 3 of the Competition and Consumer Act 2010) the goods & services come with guarantees that cannot be excluded under the Australian Consumer Law. The Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the goods & services repaired or replaced if the goods & services fail to be of acceptable quality and the failure does not amount to a major failure, save as otherwise limited or exclude by operation of clause 7 above.
iv. The cost of the inspection and labour associated with the removal and replacement of any defective goods & services (including the cost of travel and accommodation) shall be the responsibility of and at the expense of the Customer until it is verified by the Supplier to be a warranty claim at which time these expenses shall be the responsibility of the Supplier
v. The Customer cannot assign this warranty without the prior written consent and approval of the Supplier.