MIDWEST FABRICATION Pty Ltd
ABN 80 106 512 225 ("Midwest")
"Authorised Officer" means a Director of Midwest, its CEO or one of its Business Managers.
"Conditions" means these Terms and Conditions of Sale.
"Goods" means the goods sold by Midwest to You.
"Guarantor" means the person named in the Guarantee and Indemnity (if applicable).
"Terms and Conditions" means these Terms and Conditions of Sale.
"You", "Your" means the direct customer buying Goods from Midwest.
1. General
Midwest supplies Goods subject to these Terms and Conditions to the exclusion of all other conditions not agreed by Midwest in writing.
2. Entire agreement
These Terms and Conditions comprise the entire agreement between You and Midwest and all statements and representations by any Midwest employee or officer are excluded.
3. Variation
Midwest is not bound by any variation of these Terms and Conditions unless confirmed in writing by an Authorised Officer.
4. Changes
Midwest may change these Terms and Conditions from time to time upon reasonable notice to You. The Terms and Conditions are available for perusal on the Midwest website (www.midwest.net.au).
5. Severability
If any provision of these Terms and Conditions should be held to be invalid in any way or unenforceable, the provision shall be severed, and the remaining provisions shall not be affected or impaired and these Terms and Conditions shall be construed so as to give effect to Midwest intent.
6. Quotations
6.1 Any quotation by Midwest for the supply of goods will be made subject to these Terms and Conditions.
6.2 A quotation is not an offer or obligation to sell goods.
6.3 Midwest may accept or reject Your order in response to a quotation at its sole discretion.
6.4 Quotations are current for a period of thirty days from the date given unless withdrawn or changed by Midwest in that period.
6.5 An order in response to a quotation in which You include alterations in design or specification of goods will constitute a request for a further quotation.
6.6 If Midwest becomes aware of any increase in the costs to Midwest of acquiring or supplying goods Midwest may amend a prior quotation.
6.7 Prices in a quotation are current at the date of quotation and are made in Australian currency (AUD) unless otherwise specified.
7. Availability of goods
Midwest may refuse Your order if goods You want are not in stock or are otherwise unavailable or if Midwest is unable to supply the quantity You want because goods in stock have been appropriated to the orders of other customers.
8. Your specifications
If Your order refers to specifications or drawings Midwest will not supply Goods to comply with them unless You have supplied them to Midwest before placing the order and Midwest has agreed in writing to supply goods which comply with them.
9. Prices
9.1 Prices do not include freight charges, government taxes or imposts which You agree to pay in addition to the price, unless they are expressly included in Midwest's quotation.
9.2 Midwest may change prices without notice.
9.3 Prices in Midwest catalogues and price lists are recommended sales prices only and do not constitute representations that Midwest will sell at such prices.
9.4 Midwest will supply Goods in response to Your order at the price current at the date of dispatch.
9.5 Prices do not include GST unless stated otherwise.
10. Minimum order charge
Midwest reserves the right to charge a minimum order charge in addition to the cost of Goods. A minimum order charge of $50.00 will be applied.
11. Payment
11.1 If Midwest has not agreed to supply Goods to You on credit You must pay the invoice amount, which must be cleared in the bank account of Midwest, before Midwest will order or deliver Goods to You.
11.2 If Midwest has agreed to supply Goods to You on credit You must pay the amount of each invoice within 7 days of the date of the invoice.
11.3 You may pay by electronic funds transfer, credit card or by cheque. Payment will not be regarded as made by cheque until Midwest is informed by its bank that it holds cleared funds. Payment by credit card will incur a fee plus goods services tax equivalent to the bank fee charged for processing the transaction.
11.4 You must pay an invoice amount without any set-off, deduction or condition unless agreed by Midwest in writing.
12. Interest on unpaid amounts
12.1 You agree to pay interest on any amount payable by You and not paid within the time specified in paragraph 11 at the rate of 2.7% per month, calculated pro rata from the due date for payment until the amount is paid in full.
12.2 When interest is payable by You Midwest will apply any amount received from You first, in payment of the interest and secondly, in payment or part payment of the unpaid price of Goods.
12.3 Imposition of interest does not extend the time in which You are to pay any amount payable by You.
13. Commencement and cancellation of orders
13.1 If Midwest has not agreed to supply goods to You on credit You must pay the required non-refundable deposit before Midwest will commence Your order.
13.2 Your quoted delivery time will only commence once Your order has been accepted and receipt of Your non-refundable deposit has been cleared.
13.3 If You cancel an order and Midwest has incurred any cost and/or expense (including without limitation procuring Goods from a supplier in or outside of Australia) in fulfilling the order before it receives notice of cancellation You agree to indemnify Midwest for such cost and/or expense.
13.4 Any refunds will be paid to You within two (2) business days after the cancellation has been approved by Midwest in writing.
14. Risk and insurance
Risk in the Goods (including responsibility to take out insurance) passes to You at the place of delivery of the Goods to You.
15. Delivery of goods
15.1 Midwest will deliver the Goods to You when it passes the Goods to a carrier at Midwest facility.
15.2 Midwest will not be liable to You for any delay in delivery or non-delivery of Goods or any part of them arising from events beyond its control.
16. Transport of goods
Unless Midwest agrees at Your request to arrange the carriage of Goods You must arrange for the Goods to be transported to a location of Your choice. Irrespective of whether You or Midwest arranges for carriage of Goods You agree that the carrier is Your agent and You must pay for the cost of carriage. Midwest is not liable for any loss or damage to Goods while in possession or control of a carrier.
17. Inspection of goods
17.1 Upon receipt of Goods, You must endorse on the carrier's invoice or cart note any short delivery or visible damage to packaging or Goods.
17.2 You must give notification to Midwest in writing within 48 hours from the date of receipt of Goods, notice of alleged short delivery or alleged defect in the goods or any alleged non-conformity of Goods with Your order.
17.3 You waive any claim for short delivery or non-compliance with any order if You have not notified Midwest within two days from the receipt of the Goods.
18. Defective goods
18.1 Midwest guarantees Goods which it manufactures against faulty workmanship, materials or design for a period of twelve months from the agreed date of delivery, this can include from the date of "on farm" commissioning by Midwest.
18.2 The guarantee does not apply where defect arises from materials supplied by You or from a design requested by You, if You self-install the goods, replacements or repairs resulting from normal wear of units and machinery, corrosive atmosphere, damage or injury caused by lack of care, insufficient inspection or maintenance, improper use or defects arising from an event outside Midwest control including but not limited to fire, flood, earthquake or other natural calamity, motor vehicle or other accident, strike, civil unrest, terrorism or war.
18.3 The guarantee is limited to repairing or replacing the parts or units recognised as defective within the shortest reasonable time at Midwest expense inclusive of parts and labour but exclusive of transport and/or travelling expense, each of which shall be at Your cost.
18.4 Midwest liability and that of its resellers is wholly limited to the original cost of the product sold.
18.5 Any unauthorised repairs or alterations to the Goods will make this warranty void.
18.6 If You wish to take advantage of this guarantee, You must contact Midwest office and provide written details of Your order and a detailed description of the fault including how and when the event occurred within the period specified in 18.1 above.
18.7 When Midwest has not manufactured Goods, Midwest undertakes that it will, if requested in writing by You, make all reasonable endeavours to assist You to obtain from the manufacturer the benefit of any guarantee or warranty which the manufacturer may have expressly given as to the quality of fitness for any purpose of the Goods except as may otherwise be provided for by law.
18.8 Midwest sole liability in respect of any faulty Goods not manufactured by Midwest shall be limited to fulfilment of this undertaking.
18.9 Midwest shall not be liable for any injury, damages, expense or loss of profit direct or consequential arising out of the use of installation of products supplied by Midwest all of which are supplied at Your sole risk.
19. Return of goods
You may not return Goods to Midwest for credit unless Midwest has consented in writing and any return will be accepted under the following conditions:
(a) You may only return the goods when accompanied by a Goods return authorisation provided by Midwest.
(b) You must prepay freight and packing costs and enclose a packing list with the Goods.
(c) You must return the Goods in an undamaged condition to be certified by Midwest.
(d) Midwest will allow credit only on an original invoice price less a restocking fee, up to 15% of original invoice.
(e) Midwest will not allow credit for non-standard specifically procured Goods, custom made or indent goods.
(f) Goods returned as faulty may be subject to testing to determine liability for fault. Goods found not to be at fault will not be accepted for credit.
20. Rights of Midwest
If –
(a) Distress, execution or other legal processes are levied upon any of Your assets;
(b) You enter into any arrangement or composition with Your creditors, commit any act of bankruptcy or being a company, a controller (as defined in the Corporations Act) is appointed to the whole or any part of Your assets, You enter into liquidation or voluntary administration or a winding up petition is presented against You or You call a meeting of creditors; or
(c) You do not pay for Goods on the due date; or
(d) You breach any material provision of the contract constituted by acceptance by You of these Terms and Conditions or as varied by Midwest;
then without prejudice to its rights under any other Clause or at law, Midwest may (but it is not bound to do so) do any of the following: terminate the contract, suspend delivery of all or any outstanding orders to You, require immediate payment on delivery for all Goods delivered or to be delivered after the relevant event or require immediate payment for any Goods delivered and not paid for by You prior to the event.
21. Retention of title
21.1 Notwithstanding the Goods are at Your risk in whole or in part, Midwest retains the property and a legal title to the Goods until You have paid to Midwest amounts due in respect for Goods supplied by Midwest to You.
21.2 Until You have fully paid for the Goods:
(a) Buyer agrees that all Goods shall remain the property of Supplier and the property in, title to, all Goods shall not pass to the Buyer until such time as the Supplier has:
i. been paid in full for all Goods; and
ii. received payment of all other sums that are owing by the Buyer to the Supplier; and
iii. all moneys owing and referred to above i. and ii. have been collected and cleared by the Supplier.
(b) The Supplier may in its discretion, allocate any payment received from the Buyer towards any invoice that the Supplier determines and may do so at the time of receipt or at any time afterwards. On any default by the Buyer, Supplier may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Supplier, payment will be deemed to be allocated in such manner as preserves the maximum value of Supplier's Purchase Money Security Interest (as defined in the PPSA) in the Goods.
(c) The Supplier and the Buyer acknowledge these Terms constitute a Security Agreement under the PPSA.
22. Personal Property Securities Act (PPSA)
22.1 Defined terms in this Clause have the same meaning as those given to them in the PPSA.
22.2 You and Midwest acknowledge that these Terms and Conditions constitute a Security Agreement for the purposes of Section 20 of the PPSA and gives rise to a purchase money security interest in favour of Midwest over the Goods supplied to You as Grantor pursuant to the Terms and Conditions. The Goods to be supplied under these Terms and Conditions fall within the PPSA classification of "Other Goods" acquired by You pursuant to these Terms and Conditions.
22.3 You agree to execute such documents and do such further acts and things as may be required by Midwest to perfect the security interest granted by You to Midwest under these Terms and Conditions and the PPSA by registration and ensure that all of Your obligations are discharged and fully satisfied. Midwest security interest under the Terms and Conditions remains perfected and has priority over all other security interests in the collateral (except for the security interests that Midwest has expressly agreed to subordinate).
22.4 You undertake that You will not without Midwest prior written consent (which it may grant in its sole discretion) change or permit the change of any of its details that are required to be included in the financing statement.
22.5 You may not grant any security interest in all or any of the Goods except with the prior written consent of Midwest (which may be withheld in its sole discretion). You agree that Midwest may apply to register its security interest in the Goods at any time before or after delivery of the Goods. You irrevocably waive Your rights under Section 157 of the PPSA to receive a notice of any verification statement in respect of the Company's security interest under these Terms and Conditions.
22.6 Pursuant to Section 115(1) of the PPSA the parties contract out of each provision of the PPSA referred to in the Section.
22.7 Each party waives its rights to receive each notice which under Section 157(3) of the PPSA it is permitted to waive and each party waives its right to receive anything from any other party under Section 275 of the PPSA.
22.8 You acknowledge that You have received value, as at the date of the first delivery of the Goods and You have not agreed to postpone the time for attachment of the security interest granted to the Company under these Terms and Conditions.
23. Set off
At any time, Midwest may offset any amount, or obligation Midwest may owe You against any amount which You owe to Midwest on any account whatsoever.
24. Testing
Midwest may at its own expense carry out tests on Goods in accordance with its standards and testing procedures. Any additional tests, procedures and associated documentation required by You are at Your expense.
25. Fitness for purpose
You agree that You do not rely on the skill and judgment of Midwest or any of its employees in relation to the suitability of any of the Goods for a particular purpose or application for which You require the Goods and Midwest is under no liability of any kind whatsoever if the Goods are not suitable and unfit for purpose. You must ensure the Goods supplied are fit for the purpose for which they are to be used. You cannot rely on any assurance from Midwest or its employees on any Goods delivered unless those assurances are in writing and hand-signed by a duly Authorised Officer. A list of Authorised Officers is available on request.
26. Compliance with laws and instructions
26.1 You are solely responsible for obtaining all necessary permits and licences to comply with all applicable legislation, regulations, by-laws or rules in connection with installation and operation of the Goods. You must comply with all instructions provided by Midwest, its supply line partners or suppliers in relation to the fitting installation and use of the Goods.
26.2 Failure to comply with this Clause will make void the warranty contained in these Terms and Conditions.
27. Representations and warranties
You represent and warrant to Midwest that at any time during the continuance of this Agreement:
(a) all the information given to Midwest by You in connection with this Agreement is correct and is not misleading;
(b) in entering into this Agreement, You have not relied upon any representation or statement made by Midwest or on its behalf;
(c) You have full power, and where applicable have procured all corporate consents, for the execution and performance of this Agreement;
(d) this Agreement creates an unconditional, valid and enforceable legal obligation, and the execution and performance of this Agreement does not contravene any provision of any agreement, law or governmental consent binding on You or Your assets; and
(e) all facts and information specified in any document given to Midwest at any time by or on Your behalf in connection with this Agreement are true, accurate complete and up-to-date in all material respects.
28. Legislation
If as a result of any legislation becoming applicable to these Terms and Conditions or any changes in legislation or interpretation by a Court or by any authority charged with its administration, Midwest becomes liable to pay any tax duty, excise levy or impost in respect of any amount received from You, then You must pay Midwest these additional amounts upon demand.
29. Trust
If You are the trustee of a trust You enter into this Agreement in both Your capacity as trustee and in Your personal capacity and that You have the power to execute this Agreement under the Deed constituting the trust then You will not retire as trustee or appoint a new or additional trustee without advising Midwest in writing (in which case Midwest may require new guarantors to sign a guarantee).
30. Information drawings and documentation
30.1 All descriptive specifications, illustrations, drawings, data, dimensions and weights provided by Midwest or otherwise contained in Midwest publications including price lists, brochures, catalogues, electronic media and other advertising material are approximate only and are intended to be by way of general description of Goods and shall not form part of the Agreement between Midwest and You unless otherwise specified by Midwest.
30.2 If following the acceptance of an order You request Midwest to provide specifications and drawings; Midwest may at its discretion produce such specifications and drawings at Your reasonable expense.
30.3 Any drawings, studies or other documents submitted by Midwest to You remain the property of Midwest and constitute confidential information, intellectual property and copyright of Midwest. You must not use them for any purpose other than in accordance with these Terms and Conditions and must not transmit, disclose or make them available to any third parties without Midwest prior written consent.
31. Force majeure
Midwest will not be liable for any loss, damage or delay arising out of its failure (or that of its suppliers and subcontractors) to perform obligations under the Terms and Conditions due to causes beyond its reasonable control including without limitation Acts of God, acts or omissions of You or Your agents, acts of civil or military authority, fires, strikes, epidemics, crime scene restrictions, war, riots, acts of terrorism, delays in transportation or transportation embargo. In the event of such delay Midwest performance dates will be extended for such length of time as may be reasonably necessary to enable Midwest to perform its obligations. If the event continues for a period of three months or more Midwest may (without affecting the accrued rights and obligations of the parties as at the date of termination) terminate this Agreement immediately by giving written notice to You.
32. Australian Consumer Law
32.1 If You are a consumer (as defined in the Australian Consumer Law) or in any other law of the Commonwealth or any other State or Territory of Australia, Your rights shall be governed by the provisions of the Competition and Consumer Act and the Australian Consumer Law and law of a State or Territory to the extent that such liability may not be excluded by express agreement.
32.2 If liability may not be excluded by express agreement and where the Goods to be provided by Midwest are not of a kind or merely acquired for personal domestic or household use or consumption, the liability of Midwest for a breach of a conditional warranty implied by the Competition and Consumer Act shall be limited to the repair of the Goods or at Midwest option the replacement of the Goods or the supply of equivalent Goods.
33. Intellectual property
Goods offered for sale or supplied by Midwest may be the subject of patents, registered designs, trademarks, copyright or other proprietary and legal protection and You will immediately notify Midwest of any suspected infringement of such rights. To the best of Midwest knowledge Goods sold do not infringe any patent, trademark, registered design or copyright of any third party.
34. Credit worthiness & credit limits
34.1 All business with You is done on the basis You have established a credit limit with Midwest appropriate to the size of the business You wish to conduct. You can check Your credit limit by emailing administration@midwest.net.au Failure to establish an appropriate credit limit may cause delays to order processing. You are strongly advised to establish and or check Your credit limit prior to ordering to avoid delays. Midwest can at its own discretion ship goods to You over and above Your credit limit. In the event Your credit account is over Your established credit limit You will make payment to return the account to be within the credit limit. Midwest can at its own discretion place the credit account on hold until the account is brought back within the credit limit. Accounts not paid according to trading terms in clause 11 may be placed on stop by Midwest at its discretion regardless of if over or within credit limit.
34.2 You agree that Midwest may seek to obtain consumer credit information from any credit reporting body about You if Midwest considers it relevant to assessing Your credit worthiness and credit limit.
35. Jurisdiction
This agreement is governed by the laws of Queensland, Australia.