Conditions of Sale
MECHTRIC PTY LTD
Conditions of Sale
Mechtric Pty Ltd ABN 32 008 700 918, of Malaga, Western Australia, and its successors and assigns.
These Conditions of Sale govern the supply of all Goods and Services by Mechtric Pty Ltd. They apply to every Order accepted on or after the date of publication. Prepared for solicitor sign-off prior to publication. Statutory references are current Australian/Commonwealth law.
1. Definitions
1.1 In these Conditions, unless the context otherwise requires:
ABN means Australian Business Number.
ACN means Australian Company Number.
ACL Saver means that, despite anything else in the relevant clause, nothing in that clause limits, excludes or modifies the Customer's rights, and the clause does not apply to the extent it would do so, where the Goods are faulty, not of acceptable quality, not reasonably fit for any purpose for which goods of that kind are commonly supplied, not fit for a disclosed purpose, not as described, or incorrectly supplied, or in respect of any consumer guarantee or any other right or remedy that cannot lawfully be excluded under the ACL or any other applicable law.
Australian Consumer Law or ACL means the Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth), as applied as a law of each State and Territory of Australia (including, in Western Australia, by the Fair Trading Act 2010 (WA)).
Conditions means these Conditions of Sale, as varied from time to time in accordance with clause 40.
Consumer has the meaning given in section 3 of the ACL.
Contract means each contract for the supply of Goods or Services formed between Mechtric and the Customer in accordance with clause 4, incorporating these Conditions.
Customer means the person, firm or company that places an Order with, or acquires Goods or Services from, Mechtric, and includes its successors and permitted assigns.
GST means goods and services tax imposed under the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Goods means any goods (including parts, components, materials and equipment) supplied or to be supplied by Mechtric to the Customer.
Indent Items means non-stock Goods specially procured to the Customer's Order from an overseas or external supplier, and not held by Mechtric as general stock.
Insolvency Event means, in respect of a party, any of: the appointment of a liquidator, provisional liquidator, administrator, receiver, receiver and manager or controller; the entry into a deed of company arrangement or other arrangement or composition with creditors; becoming insolvent or unable to pay debts as and when they fall due within the meaning of the Corporations Act 2001 (Cth); committing an act of bankruptcy; or any analogous event.
Mechtric means Mechtric Pty Ltd ABN 32 008 700 918 (whose registered office and other entity details are as stated in the entity line at the head of these Conditions) and its successors and assigns.
Obsolete Items means Goods identified by Mechtric as obsolete, clearance, run-out or final sale, sold subject to remaining available stock.
Order means an order for the supply of Goods or Services placed by the Customer with Mechtric.
PMSI means a purchase money security interest within the meaning of section 14 of the PPSA.
PPSA means the Personal Property Securities Act 2009 (Cth).
PPSR means the Personal Property Securities Register established under the PPSA.
Price means the price payable for the Goods or Services determined in accordance with clause 7.
Quotation means a written quotation issued by Mechtric to the Customer.
Services means any services (including engineering, technical assistance, commissioning, training and the like) supplied or to be supplied by Mechtric to the Customer.
1.2 Terms used in clause 14 (Personal Property Securities Act) that are not defined in clause 1.1 and that are defined in the PPSA — including security interest, security agreement, financing statement, financing change statement, verification statement, proceeds, attach, perfect, register, grantor and collateral — have the meaning given to them in, or in the context of, the PPSA.
2. Application of these Conditions
2.1 These Conditions apply to and are incorporated in every Quotation, Order and Contract for the supply of Goods or Services by Mechtric to the Customer, and prevail over any inconsistent term to the maximum extent permitted by law.
2.2 By placing an Order with Mechtric, opening or operating a credit account with Mechtric, or accepting delivery of any Goods or supply of any Services, the Customer is taken to have read, understood and agreed to these Conditions.
2.3 These Conditions, together with each accepted Order and any written Quotation to which the Order relates, constitute the entire agreement between the parties in respect of the relevant supply, as more fully set out in clause 5.
2.4 Nothing in these Conditions excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term implied or imposed by any law (including the ACL) that cannot lawfully be excluded, restricted or modified. To the extent of any inconsistency between these Conditions and such a law, that law prevails and these Conditions are read down so as to be valid and enforceable.
3. Quotations
3.1 A Quotation is provided for information purposes only, is not an offer capable of acceptance so as to form a Contract, and imposes no obligation on Mechtric to supply Goods or Services at the prices stated.
3.2 Quotations are issued on an errors-and-omissions-excepted basis, and Mechtric may at any time correct any clerical error or omission in a Quotation. Goods quoted or indicated as ex-stock are subject to prior sale, and any delivery time quoted is an estimate given without commitment.
3.3 Unless otherwise stated in the Quotation, a Quotation is valid and open for acceptance for 30 days from its date. After that period, any price, delivery date or other detail is subject to change and must be reconfirmed in writing by Mechtric.
3.4 The price stated in a Quotation applies only to the Goods or Services and quantities specified, and not to any lesser or greater quantity or to Goods or Services of a different type.
4. Orders and Formation of Agreement
4.1 Each Order placed by the Customer constitutes an offer by the Customer to purchase Goods or Services on these Conditions at the prices applicable in accordance with clause 7.
4.2 Mechtric may, acting reasonably, accept or decline any Order in whole or in part. No Contract is formed unless and until Mechtric accepts the Order, whether by written acceptance, by commencing supply, or by delivering the Goods or supplying the Services.
4.3 Once accepted, an Order may not be varied or cancelled by the Customer except with Mechtric's written consent and in accordance with clauses 6 and 24.
5. Entire Agreement
5.1 These Conditions, each accepted Order and any related written Quotation contain the entire agreement between the parties in respect of the relevant supply and supersede all prior negotiations, representations, understandings and arrangements.
5.2 Any term or condition contained in or referred to in any Order, purchase order, specification or other document issued by the Customer that is inconsistent with or additional to these Conditions is of no force or effect.
5.3 Mechtric's failure to object to any additional or conflicting term accompanying an Order does not operate as an acceptance of that term or as a waiver of any of these Conditions.
6. Variations and Cancellations
6.1 A request by the Customer to vary or cancel an accepted Order takes effect only if Mechtric agrees to it in writing.
6.2 Where Mechtric agrees to a variation or cancellation, the Customer is liable for all costs and charges Mechtric reasonably incurs and cannot reasonably mitigate up to the date of variation or cancellation, including any cancellation or restocking charge determined in accordance with clause 24.
6.3 Indent Items and Obsolete Items may not be cancelled, returned or exchanged, because they are procured to order or sold on a final-sale basis. This clause is subject to clauses 24.3, 24.4 and 24.5 (which preserve the Customer's non-excludable rights under the ACL).
7. Price
7.1 All prices in Mechtric's price lists, catalogues, electronic media and advertising material are recommended selling prices only, are subject to amendment, and are issued on an errors-and-omissions-excepted basis.
7.2 Unless otherwise agreed in writing, the Price for an Order is the price applying at the date the Contract is formed or the date of dispatch, as Mechtric determines, and is exclusive of GST, freight, insurance and handling charges.
7.3 Any change to Mechtric's published prices applies only to Orders placed after the change takes effect and does not affect any Order already accepted by Mechtric. Where a Quotation has been given, the quoted price is firm for the period stated in the Quotation or, if no period is stated, for 30 days.
7.4 If, after acceptance of an Order, Mechtric must increase the Price for that Order due to a matter beyond its reasonable control (including a change in supplier costs, exchange rates, duties or taxes arising after the date of the Quotation or Order), Mechtric will give the Customer written notice of the proposed increase, clearly notifying the Customer of its right to cancel under this clause. The Customer may, by written notice given within 14 days of Mechtric's notice, cancel the affected undelivered part of the Order and receive a refund of any amount prepaid for the cancelled Goods or Services. If the Customer does not cancel within that period after having been clearly notified of its right to do so, the increased Price applies.
8. Performance
8.1 Any figures, statements or data given by Mechtric as to the performance, capacity, rating, output, dimensions or characteristics of the Goods or Services are estimates or approximations only, given in good faith on the basis of information available to Mechtric (including from manufacturers), and are not representations or warranties of fact unless expressly confirmed in writing by Mechtric.
8.2 The Customer is responsible for satisfying itself that the Goods and Services are suitable for the Customer's particular purpose, except to the extent the Customer is entitled to rely on a consumer guarantee under the ACL or on advice expressly given in accordance with clause 30.
9. Drawings and Specifications
9.1 All drawings, specifications, descriptive matter, weights, dimensions and illustrations contained in catalogues, price lists, brochures and other Mechtric material are approximate only and are intended to give a general description of the Goods or Services. They do not form part of any Contract unless expressly incorporated in writing.
9.2 Where the Customer supplies drawings, specifications or instructions, the Customer warrants that they are accurate and complete and that Mechtric's use of them in supplying the Goods or Services will not infringe the rights of any third party. The Customer indemnifies Mechtric against any loss, liability, cost or expense to the extent it arises from a breach of this warranty and could not have been avoided or mitigated by Mechtric acting reasonably, and reduced to the extent caused or contributed to by Mechtric or any person for whom Mechtric is responsible.
10. Intellectual Property
10.1 All intellectual property rights in any drawings, specifications, designs, software, data, documentation or other materials created or supplied by Mechtric or its suppliers in connection with the Goods or Services remain the property of Mechtric or the relevant owner, and nothing in these Conditions transfers any such right to the Customer.
10.2 The Customer must not, without Mechtric's prior written consent, copy, reproduce, modify or disclose to any third party any such materials, or use them for any purpose other than the proper use of the Goods or Services supplied.
11. Compliance with Laws and Instructions
11.1 The Customer is responsible for ensuring that its acquisition, installation, use, storage and disposal of the Goods, and its receipt of the Services, comply with all applicable laws, regulations, standards and codes.
11.2 The Customer must observe all instructions, manuals, warnings and recommendations supplied by Mechtric or the manufacturer in respect of the installation, use, maintenance and storage of the Goods. Mechtric is not liable for any loss or damage arising from the Customer's failure to do so, except to the extent any liability cannot be excluded under the ACL or other applicable law.
12. Insurance
12.1 Mechtric effects and maintains Public and Products Liability insurance for the sum insured stated in its current certificate of currency AUD 20 million, together with workers compensation insurance as required by the laws of each relevant State or Territory in which it operates. Mechtric will, on reasonable request, provide a certificate of currency.
12.2 The Customer must obtain and maintain any insurance necessary to address the risks allocated to the Customer under these Conditions (including risk in the Goods passing under clause 13) and, if requested, provide Mechtric with a certificate of currency.
13. Risk and Title
13.1 Unless otherwise agreed in writing, the Goods are supplied ex Mechtric's nominated warehouse and risk in the Goods passes to the Customer upon loading of the Goods onto the transport vehicle deck, regardless of which party arranges or pays for freight or insurance.
13.2 Where the Customer selects an unattended or no-signature-required delivery method, the Customer authorises the Goods to be left at the nominated premises and assumes all risk of loss of or damage to the Goods from the time of delivery to those premises, except to the extent the loss or damage is caused by Mechtric.
13.3 If the Customer delays taking delivery for more than 14 days after the Goods are available, Mechtric may place the Goods into storage at the Customer's expense in accordance with clause 22, in which case the Goods are deemed delivered and risk passes to the Customer upon being placed into storage, except to the extent the delay, loss or damage is caused by Mechtric.
13.4 Title in and ownership of the Goods does not pass to the Customer until Mechtric has received payment in full, in cleared funds, of all amounts owing by the Customer to Mechtric on any account whatsoever, including for the Goods and for any other Goods or Services previously or subsequently supplied.
13.5 Until title passes, the Customer: (a) holds the Goods as fiduciary bailee of Mechtric; (b) must store and mark the Goods so that they are clearly identifiable as Mechtric's property and kept separate from the Customer's own goods and those of third parties so far as reasonably practicable; (c) must insure the Goods to their full replacement value and must not grant any lien, charge or security over them; (d) may sell the Goods in the ordinary course of its business, but only as agent and fiduciary for Mechtric, and must hold the proceeds of any such sale (to the value of the amounts owing to Mechtric) on trust for Mechtric in a separate account; and (e) irrevocably licenses Mechtric, its employees and agents, on reasonable notice (except where an Insolvency Event has occurred or Mechtric reasonably believes the Goods are at risk, in which case no notice is required) and where payment is overdue and has not been remedied within 7 days of written demand, to enter any premises in the Customer's occupation or control where the Goods are reasonably believed to be located and to repossess them.
13.6 Mechtric's right to repossess the Goods under clause 13.5(e) survives termination of any Contract between the parties. This clause 13 operates together with clause 14.
14. Personal Property Securities Act
14.1 The Customer acknowledges that these Conditions constitute a security agreement for the purposes of the PPSA, and that the retention of title in clause 13 and the grant of security interest in this clause 14 give rise to a security interest in favour of Mechtric.
14.2 The Customer grants to Mechtric a security interest in all Goods supplied (and to be supplied) by Mechtric to the Customer, and in their proceeds, to secure payment of all amounts owing by the Customer to Mechtric on any account and the performance of all of the Customer's obligations to Mechtric. To the extent that the security interest secures all or part of the purchase price of the Goods, it is a PMSI within the meaning of section 14 of the PPSA. Mechtric's security interest extends to all proceeds of the Goods (including accounts and the right to receive payment) under sections 31 and 32 of the PPSA, whether or not the proceeds are held in a separate account. The security interest attaches to the Goods when the Customer obtains possession of them, and the parties do not agree under section 19(3) of the PPSA to defer the time of attachment to a later time.
14.3 The Customer consents to Mechtric registering its security interest (including its PMSI) on the PPSR and must do anything Mechtric reasonably requires (including obtaining consents, executing documents, providing its accurate legal-entity name and ABN or ACN and other identifiers, and adjusting the timing of any matter) to enable Mechtric to register one or more financing statements, to ensure the security interest is enforceable, attached, perfected and otherwise effective, to enable Mechtric to apply for any registration or give any notification in connection with the security interest, and to enable Mechtric to exercise its rights. Mechtric may register its security interest at any time, including before delivery.
14.4 The Customer must not register, or permit to be registered, a financing change statement or a demand under section 178 of the PPSA in respect of the Goods without Mechtric's prior written consent. The Customer must reimburse Mechtric for all registration and enforcement costs.
14.5 To the extent the law permits, and provided the collateral is not used by the Customer predominantly for personal, domestic or household purposes: (a) for the purposes of section 115(1) of the PPSA, the Customer agrees that the following provisions of the PPSA do not apply to, and Mechtric need not comply with them in, the enforcement by Mechtric of its security interest, and the Customer waives its right to receive any notice that would otherwise be required under them — sections 95, 121(4), 125, 130 (to the extent it requires Mechtric to give a notice to the Customer), 132(3)(d), 132(4), 142 and 143; and section 118 and section 129 (each to the extent it requires Mechtric to give a notice to the Customer); and (b) for the purposes of section 115(7) of the PPSA, Mechtric need not comply with sections 132 and 137(3) of the PPSA.
14.6 The Customer waives, under section 157(3) of the PPSA, its right to receive a verification statement in respect of any registration relating to a security interest under these Conditions. This waiver applies only in respect of collateral that is described in the relevant registration as commercial property and is not used by the Customer predominantly for personal, domestic or household purposes.
14.7 For the purposes of section 275(6) of the PPSA, the Customer and Mechtric agree that neither party will disclose information of the kind described in section 275(1) of the PPSA, except where disclosure is required under that section despite this agreement. The Customer must not authorise, and waives any right it may have to authorise, the disclosure of any such information to an interested person under section 275.
14.8 Nothing in this clause limits the operation of section 111 of the PPSA (which requires a secured party to exercise its rights honestly and in a commercially reasonable manner) or any other provision of the PPSA or other law that cannot lawfully be excluded. Registration of a security interest under the PPSA is national and is unaffected by the choice of governing law in clause 33.
15. GST
15.1 Words and expressions used in this clause that are defined in the GST Act have the meaning given to them in that Act.
15.2 Unless expressly stated otherwise, all prices, fees and other amounts payable under these Conditions are expressed in Australian dollars and are exclusive of GST.
15.3 If GST is payable on any taxable supply made by Mechtric under or in connection with these Conditions, the Customer must pay to Mechtric, in addition to and at the same time as the consideration for that supply, an amount equal to that consideration multiplied by the prevailing rate of GST.
15.4 Mechtric will issue the Customer with a tax invoice that complies with the GST Act for each taxable supply. Where the GST-inclusive amount payable is $1,000 or more, the Customer must, on request, provide its identity and ABN so that a compliant tax invoice may be issued. The Customer is not obliged to pay the GST component of any consideration until Mechtric provides a compliant tax invoice for the supply.
15.5 Where Goods are supplied for export, Mechtric will treat the supply as GST-free to the extent permitted by section 38-185 of the GST Act. If the Goods are not exported from Australia within 60 days after the earlier of (a) Mechtric receiving any of the consideration for the supply, or (b) Mechtric issuing an invoice for the supply (or, for payment by instalments, within 60 days after the final instalment), or if Mechtric does not obtain sufficient documentary evidence of export within the time required, the supply will be treated as a taxable supply and the Customer must pay Mechtric the applicable GST in addition to the Price, on demand.
16. Payment
16.1 Unless Mechtric has approved a credit account for the Customer, payment is due in full before delivery of the Goods or supply of the Services.
16.2 Where Mechtric has approved a credit account, the Customer must pay each invoice within 30 days of the date of the invoice, unless other terms are agreed in writing. Payment must be made in Australian dollars in full, and the Customer must not set off, counterclaim or deduct any amount except to the extent of any amount that Mechtric has agreed in writing, or that has been finally determined by a court or tribunal, to be payable by Mechtric to the Customer. Nothing in this clause excludes any set-off right that cannot lawfully be excluded.
16.3 If any amount is not paid when due, Mechtric may, acting reasonably and after giving the Customer notice and a reasonable opportunity to remedy (except where immediate action is reasonably necessary to protect Mechtric against loss): (a) suspend or withhold any outstanding supply; (b) charge interest on the overdue amount, calculated on daily balances from the due date until payment is received in cleared funds, at the rate of 3% per annum above Mechtric's bankers' overdraft reference rate from time to time; and (c) recover from the Customer all costs reasonably incurred in recovering the overdue amount, including legal costs and debt-recovery agency fees.
16.4 Where the Customer pays by cheque or electronic transfer, payment is taken to occur only when the funds are cleared by Mechtric's bank.
16.5 Mechtric may, acting reasonably, set, review and vary the Customer's credit limit and may suspend supply where the credit limit is exceeded, after giving notice and a reasonable opportunity to remedy except where immediate action is reasonably necessary to protect Mechtric against loss.
17. Force Majeure
17.1 Neither party is liable for any failure or delay in performing its obligations (other than an obligation to pay money) to the extent the failure or delay is caused by an event beyond its reasonable control, including acts of God, fire, flood, storm, pandemic or epidemic, war, terrorism, civil unrest, government action or restriction, strike or industrial action, failure of transport, energy or communications networks, or failure or shortage of supply by a party's own suppliers.
17.2 The affected party must notify the other as soon as reasonably practicable and use reasonable endeavours to mitigate the effect of the event. Performance dates are extended by a reasonable period to compensate for the delay.
17.3 If an event of the kind described in clause 17.1 continues for 90 days or more, either party may terminate the affected Order or Contract by written notice without affecting any accrued rights, and Mechtric will refund any amount prepaid for Goods not delivered or Services not supplied.
18. Testing
18.1 Where testing of the Goods is agreed in writing, it will be carried out at Mechtric's premises or such other place as Mechtric reasonably nominates, in accordance with the relevant standard or specification agreed between the parties.
18.2 If the Customer requires testing additional to Mechtric's standard procedures, or witnessing of testing, the cost is borne by the Customer and any consequent delay extends Mechtric's delivery times by a reasonable period.
19. Packing
19.1 Unless otherwise agreed in writing, Mechtric will pack the Goods in accordance with its standard practice and the requirements of the relevant carrier.
19.2 Any special packing, marking or handling requested by the Customer is supplied at the Customer's expense. Returnable packing remains Mechtric's property and must be returned by the Customer at the Customer's expense and in good condition.
20. Delivery
20.1 All statements about delivery times and costs are made in good faith but are estimates only and are not representations of fact. Time for delivery is not of the essence, and Mechtric is not liable for any loss, damage or expense caused by late or non-delivery, except to the extent any liability cannot be excluded under the ACL or other applicable law.
20.2 Mechtric may deliver the Goods in instalments, and each instalment is treated as a separate supply. Failure to deliver any instalment does not entitle the Customer to treat the Contract as repudiated.
20.3 Mechtric is entitled to recover from the Customer all freight, handling and delivery charges, except to the extent these are included in an agreed delivered price.
21. Shortages and Claims in Transit
21.1 The Customer must inspect the Goods as soon as reasonably practicable after delivery. Any claim that the Goods are short-delivered, or have been delivered in a damaged state, must be notified to Mechtric in writing within 28 days of delivery or, where the shortage or damage was not reasonably apparent within that period, within a reasonable time after it becomes apparent.
21.2 Signing a delivery or consignment note is, in the absence of contrary evidence, evidence that the delivery was received without any shortage or damage that would have been apparent on reasonable inspection without unpacking. The quantity recorded by Mechtric on dispatch is, in the absence of contrary evidence, evidence of the quantity delivered.
21.3 Nothing in this clause derogates from, or limits, the Customer's rights under the ACL or any other law in respect of Goods that are faulty, not of acceptable quality, not as described, or incorrectly supplied.
22. Storage
22.1 If the Customer fails or refuses to take delivery of the Goods when they are available, or delays delivery for more than 14 days, Mechtric may, acting reasonably, store the Goods (or arrange their storage) at the Customer's expense, except to the extent the failure, refusal or delay is caused by Mechtric.
22.2 Where Goods are placed into storage under clause 22.1, the Goods are deemed to have been delivered, risk passes to the Customer in accordance with clause 13.3, and the Customer is liable for all reasonable storage, insurance and handling costs until the Goods are collected or re-delivered.
23. Inspection of Goods and Services
23.1 The Customer must inspect the Goods and the results of any Services as soon as reasonably practicable after delivery or performance and must, within 28 days, notify Mechtric in writing of any defect, deficiency or non-conformity that is apparent on reasonable inspection or, where the defect, deficiency or non-conformity was not reasonably apparent within that period, within a reasonable time after it becomes apparent.
23.2 Failure to notify Mechtric within the period in clause 23.1 does not affect the Customer's rights under the ACL or any other law in respect of Goods or Services that are faulty, not of acceptable quality, not as described, not fit for a disclosed purpose, or incorrectly supplied, but otherwise the Goods and Services are taken to have been accepted by the Customer.
24. Returns and Cancellations
24.1 The Customer does not have a right to cancel a Contract or to return Goods for credit, refund or exchange merely because the Customer has changed its mind, ordered incorrectly, or no longer requires the Goods.
24.2 Mechtric may, at the Customer's request and acting reasonably in its discretion, agree to accept the return or cancellation of stock Goods (being Goods not produced to order, not Indent Items and not Obsolete Items). Where Mechtric agrees: (a) the Customer must pay a restocking fee of up to 20% of the invoice value of the relevant Goods, representing Mechtric's reasonable estimate of the costs of handling, inspection and re-stocking, which Mechtric will not apply to the extent it exceeds the costs Mechtric actually and reasonably incurs in respect of the return; (b) the Goods must be unused, in their original undamaged packaging and in resaleable condition, returned at the Customer's risk and expense within 30 days, with proof of purchase; and (c) credit is given only after Mechtric's authorisation and inspection. Mechtric is not obliged to accept any discretionary return where the total invoice value returned is less than $150.
24.3 Indent Items: Indent Items are non-stock Goods specially procured to the Customer's Order on the Customer's behalf. Once an Order for Indent Items is confirmed by the Customer, the Order and the Indent Items may not be cancelled, returned or exchanged, and no refund is available. If Mechtric nonetheless agrees to a cancellation, or where the Customer purports to cancel, the Customer is liable for all costs and charges Mechtric reasonably incurs and cannot reasonably mitigate in respect of the cancelled Indent Items, up to the full Order value. By confirming an Order containing Indent Items the Customer acknowledges and accepts this condition. The ACL Saver applies to this clause.
24.4 Obsolete Items: Obsolete Items are sold subject to remaining available stock and on a final-sale basis. No backorders will be raised, and Obsolete Items may not be returned or exchanged and no refund is available. The ACL Saver applies to this clause.
24.5 Nothing in this clause limits or excludes the Customer's rights under the ACL or any other law in respect of Goods that are faulty, not of acceptable quality, not fit for a disclosed purpose, not as described, or incorrectly supplied. Where the Customer is entitled to remedies under the ACL, those remedies (and, in the case of a major failure of Goods, the Customer's choice of refund or replacement) prevail over this clause.
25. Repairs Not Under Warranty
25.1 Where Mechtric carries out repairs that are not covered by the warranty in clause 28 or by a non-excludable right under the ACL, the repairs are chargeable at Mechtric's then-current rates for labour, parts and materials.
25.2 Mechtric warrants such repairs (workmanship and any parts supplied by Mechtric in the course of the repair) to be free from defects for a period of 90 days from the date of the repair. This warranty is in addition to, and does not limit, any right of the Customer under the ACL that cannot lawfully be excluded.
26. Engineering, Technical Assistance, Services and Training
26.1 Where Mechtric agrees to supply engineering, technical assistance, commissioning, Services or training, it will do so with due care and skill and within a reasonable time, in accordance with the scope agreed in writing.
26.2 Unless included in an agreed fixed price, such Services are charged at Mechtric's then-current rates, together with reasonable travel, accommodation and incidental expenses. The Customer must provide safe and timely access to its premises, personnel, information and facilities as reasonably required for Mechtric to perform the Services.
26.3 Any advice, recommendation or assistance given by Mechtric in connection with the Goods or Services that is not expressly confirmed in writing in accordance with clause 30 is given for general guidance only and is acted upon at the Customer's own risk, except to the extent any liability cannot be excluded under the ACL.
27. Loans and Hire
27.1 Where Mechtric loans or hires Goods to the Customer (including demonstration, trial or evaluation units), title in those Goods remains with Mechtric at all times, and the Customer holds them as bailee.
27.2 The Customer must keep loaned or hired Goods in good condition (fair wear and tear excepted), use them only for their intended purpose and in accordance with any instructions, insure them to their full replacement value, not part with possession of them, and return them on demand or at the end of the agreed period at the Customer's expense. The Customer is liable for any loss of or damage to loaned or hired Goods while in the Customer's possession or control, except to the extent caused by Mechtric's negligence or default.
28. Warranty (Customers who are not Consumers)
28.1 Where the Customer is not a Consumer in respect of the Goods or Services, and in addition to any non-excludable rights under the ACL, Mechtric warrants that: (a) the Goods will be free from defects in materials, workmanship and design for a period of 12 months from the date of dispatch; and (b) the Services will be free from defects in workmanship for a period of 12 months from the date the Services are performed.
28.2 To make a claim under this warranty, the Customer must: (a) give Mechtric written notice of the claim within 28 days of the defect becoming apparent and within the applicable warranty period; (b) allow Mechtric to inspect the Goods or the results of the Services before any repair or replacement; and (c) if requested, return the affected Goods to Mechtric with proof of purchase. To the extent a claim is made by a Customer who is a Consumer to whom the mandatory statement in clause 28.6 applies, Mechtric bears the expense of the Customer making that claim, and clause 28.6 prevails over any provision of this clause requiring the Customer to bear the cost of claiming.
28.3 This warranty does not apply to any defect or failure caused by fair wear and tear, misuse, abnormal use, incorrect or faulty installation, accident, neglect, unauthorised repair or modification, failure to follow instructions, or use outside the manufacturer's specifications or in unusual environmental conditions.
28.4 Mechtric's sole obligation under this warranty is, at its option, to repair or replace the defective Goods, supply equivalent Goods, supply the Services again, or pay the cost of any of those. Goods repaired or replaced under this warranty are warranted for the unexpired portion of the original warranty period or 90 days, whichever is longer; where a part is rectified, its warranty expires not less than 12 months from rectification, but the total warranty period in respect of any item does not exceed 18 months from the date of original supply.
28.5 The benefits given to the Customer by this warranty are in addition to, and do not limit or replace, any right or remedy of the Customer under the ACL or any other law that cannot lawfully be excluded.
28.6 Mandatory statement and claim details (warranty against defects). The warranty in this clause 28 is a warranty against defects for the purposes of the ACL. To make a claim under it, contact Mechtric at: Mechtric Pty Ltd ABN 32 008 700 918, 14 Lorries Ct, Malaga, Western Australia; telephone 1800 252 995; email sales@mechtric.com.au. Where the Customer is a Consumer, Mechtric bears the expense of the Customer making a claim under this warranty. The benefits given to the Customer by this warranty are in addition to other rights and remedies of the Customer under a law in relation to the Goods or Services to which the warranty relates. The following mandatory statements are required by regulation 90 of the Competition and Consumer Regulations 2010 (Cth) and the wording prescribed by that regulation cannot be varied. The statement that applies to the Customer's purchase is the one that corresponds to what the Customer has purchased: (i) Where the purchase is for goods only: "Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure." (ii) Where the purchase is for services only: "Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled: to cancel your service contract with us; and to a refund for the unused portion, or to compensation for its reduced value. You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure, you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract." (iii) Where the purchase is for both goods and services: "Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled: to cancel your service contract with us; and to a refund for the unused portion, or to compensation for its reduced value. You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service."
29. Australian Consumer Law and Consumer Guarantees
29.1 Nothing in these Conditions excludes, restricts or modifies any consumer guarantee, right or remedy conferred on the Customer by the Australian Consumer Law (being Schedule 2 to the Competition and Consumer Act 2010 (Cth)) or any other applicable law that cannot lawfully be excluded, restricted or modified. To the extent of any inconsistency, those guarantees, rights and remedies prevail over these Conditions.
29.2 The mandatory statements prescribed by regulation 90 of the Competition and Consumer Regulations 2010 (Cth), keyed to whether the Customer's purchase is for goods only, services only, or both goods and services, are set out in clause 28.6, together with Mechtric's contact details and claim procedure. The prescribed wording cannot be varied.
29.3 Where a failure of the Goods amounts to a major failure within the meaning of section 260 of the ACL, the Customer (and not Mechtric) is entitled to choose between rejecting the Goods and obtaining a refund or a replacement, together with compensation for any reasonably foreseeable consequential loss or damage. Nothing in these Conditions purports to give Mechtric the choice of remedy in such a case.
29.4 Where a failure of the Services is a major failure within the meaning of section 268 of the ACL, the Customer may terminate the contract for the Services and obtain a refund for any unused portion, or recover compensation for the reduction in value of the Services below the price paid, and in either case may recover compensation for any reasonably foreseeable loss or damage. Where a failure of the Services is not a major failure, the Customer is entitled to have it remedied within a reasonable time, or (if Mechtric refuses or fails to do so within a reasonable time) may have it remedied elsewhere and recover the reasonable cost, or terminate the contract for the Services.
30. Representations, Fitness for Purpose and Advice
30.1 The Customer acknowledges that, except as expressly set out in these Conditions, in a written Quotation, or in advice expressly confirmed in writing by an authorised officer of Mechtric, it has not relied on any representation, statement, advice or recommendation made by or on behalf of Mechtric in deciding to acquire the Goods or Services. Nothing in this clause operates to exclude, restrict or modify any liability of Mechtric under section 18 of the ACL or for fraud, or any right of the Customer that cannot lawfully be excluded.
30.2 Where the Customer makes known to Mechtric, before the Contract is formed, any particular purpose for which the Goods or Services are required and relies on Mechtric's skill or judgement, Mechtric's obligation is limited to using reasonable care in advising on suitability for that disclosed purpose. This clause does not limit any consumer guarantee under sections 55 or 61 of the ACL or any other non-excludable right of the Customer.
31. Limitation of Liability
31.1 To the maximum extent permitted by law, and subject always to clause 29 and to any liability that cannot lawfully be excluded, restricted or modified:
(a) where the Goods or Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, Mechtric's liability for any failure to comply with a consumer guarantee under the ACL is limited as permitted by section 64A of the ACL, at Mechtric's option, as follows: (i) for Goods, and other than for a failure to comply with the guarantees in sections 51, 52 or 53 of the ACL (which are not limited), to the replacement of the Goods or the supply of equivalent Goods, the repair of the Goods, the payment of the cost of replacing the Goods or of acquiring equivalent Goods, or the payment of the cost of having the Goods repaired; and (ii) for Services, and other than for a failure to comply with the guarantee in section 60 of the ACL where that guarantee may not be limited, to the supplying of the Services again, or the payment of the cost of having the Services supplied again;
(b) Mechtric is not liable for any indirect, special or consequential loss or damage, loss of revenue or profit, loss of anticipated savings, loss of business or goodwill, loss of contract, loss of data, loss of use or production, or business interruption, howsoever arising and whether in contract, tort (including negligence), under statute or otherwise, except to the extent such loss or damage is recoverable as reasonably foreseeable loss under the ACL or any other law that cannot be excluded; and
(c) Mechtric's total aggregate liability to the Customer in connection with the Goods or Services giving rise to the liability, whether in contract, tort, under statute (to the extent it can be excluded) or otherwise, is limited to the amount equal to the Price paid for those Goods or Services, except that this cap does not apply to, and does not limit, Mechtric's liability for failure of any consumer guarantee that cannot be limited under section 64A of the ACL, or any other liability that cannot lawfully be excluded or limited.
31.2 Nothing in this clause operates to exclude, restrict or modify the application of the ACL or any other law where to do so would contravene that law or cause any part of these Conditions to be void.
32. Liability for Fault Only
32.1 To the extent permitted by law, and other than for any liability that cannot be excluded, each party's liability to the other for loss or damage arising under or in connection with these Conditions is reduced to the extent that the loss or damage was caused or contributed to by the other party or by a person for whom the other party is responsible.
32.2 Mechtric is not liable for any loss or damage to the extent it arises from the Customer's negligence, breach of these Conditions, failure to follow instructions, or improper installation, use, storage or maintenance of the Goods.
33. Governing Law and Jurisdiction
33.1 These Conditions, and each Contract formed under them, are governed by the laws in force in the State of Western Australia and the laws of the Commonwealth of Australia as applicable in that State.
33.2 Each party irrevocably submits to the non-exclusive jurisdiction of the courts of the State referred to in clause 33.1 and the courts competent to hear appeals from them, and agrees not to object to the venue of any proceedings on the ground that it is an inconvenient forum.
33.3 Registration of any security interest under the PPSA is national in operation and is unaffected by the choice of governing law in this clause.
34. Resolution of Disputes
34.1 A party must not commence court proceedings in respect of a dispute arising under or in connection with these Conditions (other than proceedings seeking urgent interlocutory relief, or to recover a liquidated debt) until it has complied with this clause.
34.2 The party claiming a dispute must give the other written notice setting out the nature of the dispute, and the parties' senior representatives must meet (in person or remotely) within 14 days of that notice and negotiate in good faith to resolve it.
34.3 If the dispute is not resolved within 21 days of the notice, either party may refer it to mediation administered by the Resolution Institute in accordance with its mediation rules, with the mediation held in Perth, Western Australia, and the parties sharing the mediator's costs equally.
34.4 If the dispute is not resolved within 30 days of referral to mediation, either party may commence proceedings in accordance with clause 33.
35. Notices
35.1 A notice under these Conditions must be in writing and given to a party at the address, or by the email address, last notified by that party. A notice may be delivered by hand, sent by prepaid post, or sent by email.
35.2 A notice is taken to be received: if delivered by hand, on delivery; if sent by prepaid post, on the third business day after posting; and if sent by email, at the time the email enters the recipient's information system, unless the sender receives an automated message that the email has not been delivered. A notice received after 5.00 pm on a business day, or on a day that is not a business day, is taken to be received at 9.00 am on the next business day.
36. Severability
36.1 If any provision of these Conditions is or becomes invalid, illegal or unenforceable in any jurisdiction, that provision is read down to the extent necessary to make it valid and enforceable or, if it cannot be read down, is severed, and the remaining provisions continue in full force and effect.
37. Waiver
37.1 A failure, delay or indulgence by Mechtric in exercising any right or remedy under these Conditions does not operate as a waiver of that right or remedy. A waiver is effective only if given in writing and is limited to the specific instance for which it is given.
38. Assignment
38.1 The Customer must not assign, novate or otherwise transfer any of its rights or obligations under these Conditions or any Contract without Mechtric's prior written consent, which must not be unreasonably withheld or delayed.
38.2 Mechtric may assign or transfer its rights (including the right to receive payment) under these Conditions or any Contract on notice to the Customer. Mechtric may novate its obligations only to a related body corporate, or to a purchaser of the relevant part of its business that assumes those obligations, on prior written notice to the Customer.
39. Amendment
39.1 No amendment to a particular Contract is effective unless made in writing and signed by or on behalf of both parties. This clause does not limit Mechtric's right to vary these Conditions for future Orders in accordance with clause 40.
40. Variation of these Conditions
40.1 Mechtric may vary these Conditions from time to time. Mechtric will give the Customer reasonable prior written notice (not less than 14 days) of any variation that is more than minor or administrative, including by notice to the Customer's last-notified email address. Minor or administrative changes may be notified by publication on Mechtric's website.
40.2 A variation applies only to Orders placed after the variation takes effect and does not retrospectively affect any Contract already formed. The Conditions applying to an Order are those in force at the time Mechtric accepts that Order.
40.3 If a variation is likely to cause the Customer material detriment, the Customer may, before the variation takes effect, notify Mechtric in writing that it does not accept the variation, in which case the previous Conditions continue to apply to any Order then outstanding and the Customer may close its account without penalty (subject to paying for Goods and Services already supplied).
41. Interpretation
41.1 In these Conditions, unless the context otherwise requires: (a) the singular includes the plural and vice versa; (b) a reference to a person includes a body corporate, partnership, trust or other entity; (c) a reference to a statute, regulation or instrument includes any amendment, replacement or re-enactment of it and any subordinate legislation made under it; (d) headings are for convenience only and do not affect interpretation; (e) a reference to a clause is a reference to a clause of these Conditions; (f) the words 'including', 'for example' and similar expressions are not words of limitation; (g) a reference to dollars or $ is to Australian currency; and (h) a reference to a business day is to a day that is not a Saturday, Sunday or public holiday in Perth, Western Australia.
41.2 No rule of construction applies to the disadvantage of a party on the basis that it prepared these Conditions.
41.3 These Conditions are research and drafting support and are intended to be solicitor-ready. They should be reviewed by a qualified Australian legal practitioner, and the entity name, ABN, registered-office State and address, supplier contact details (telephone and email) in clause 28.6, insurance sum insured and bankers' overdraft reference rate confirmed, before publication.