Modular Components and Automation Pty Ltd
Terms and Conditions of Supply
- Supply of Goods and/or Services
Modular Components and Automation Pty Ltd (MCA) will supply the Goods and Services (if any) in accordance with, and subject to, the terms of this Agreement.
- Warranties
MCA warrants that Goods supplied are of merchantable quality and will meet any specifications set out in the Quotation or Invoice.
- Delivery
3.1 MCA will take reasonable steps to have the Goods delivered to the Purchaser at a place and on a date agreed between them.
3.2 If the preparation of the Purchaser’s order or the delivery of any Goods or Services is suspended by the Purchaser’s instructions or failure to instruct, the Price may be increased to cover any extra expenses incurred by MCA.
3.3 If the Purchaser is unable to accept delivery of the Goods when they are ready for dispatch, MCA may invoice the Purchaser an additional amount for storage.
3.4 If the Purchaser cancels its order prior to delivery but after the Goods are ready for dispatch, MCA reserves the right to invoice the Purchaser for all expense involved in the preparation of the order.
3.5 When this Agreement is performed by MCA by way of more than one delivery, the failure by MCA to make any one or more deliveries is not a repudiation of these terms and conditions by MCA in respect of that or any other deliveries.
- Title
4.1 Title in the Goods passes from MCA to the Purchaser when payment in full has been received by MCA.
4.2 The Purchaser acknowledges that until title in the Goods passes to the Purchaser in accordance with clause 4.1, the Purchaser:
a) holds the Goods as bailee of MCA and that a fiduciary relationship exists between the Purchaser and MCA in respect of those Goods;
b) must store the Goods separately and in such a manner that they are clearly identified as the property of MCA; and
c) MCA is entitled to demand the return of the Goods.
4.3 The Purchaser acknowledges that if it sells the Goods before title in and to the Goods has passed to the Purchaser in accordance with this clause, it sells the Goods as a fiduciary agent of MCA provided that such sales must not give rise to any obligations on the part of MCA.
- Risk
5.1 Risk in the Goods passes from MCA to the purchaser immediately once the Goods are delivered to the Purchaser’s nominated place of delivery.
5.2 The Purchaser must examine the Goods and/or Services for defects and must notify MCA of any defects in writing within 10 days of delivery.
- Price
The Price for the Goods and/or Services will be the price specified on the Quotation or Invoice.
- Taxes
7.1 Unless expressly specified, the Price is exclusive of all taxes.
7.2 Should any taxes (including, without limitation, GST) be levied on, in respect of, or in relation to, the Goods (including levied on payments made to us by you for the provision of the Goods under this Agreement) the Purchaser will be responsible for payment of the full amount of those taxes or payment of an equivalent amount to MCA where MCA is liable to pay them.
7.3 Any amount payable by the Purchaser to MCA under this clause 7 is in addition to any other amounts payable by the Purchaser under this Agreement.
7.4 The additional amount is payable at the same time as the consideration for the supply is payable or is to be provided. However, the additional amount need not be paid until the supplier gives the recipient a Tax Invoice.
7.5 The Purchaser must provide documentary evidence of payment of all taxes if made on MCA’s behalf.
7.6 If a party is entitled to be reimbursed or indemnified under this Agreement, the amount to be reimbursed or indemnified does not include any amount for GST for which the party is entitled to an Input Tax Credit.
- Invoicing and Payment
8.1 MCA will provide the Purchaser with a Goods Invoice to the Purchaser’s nominated place of delivery or email address.
8.2 MCA will provide the Purchaser with a Services Invoice as soon as practicable after completion of the Services.
8.3 The Purchaser must pay an Invoice in full before dispatch of Goods unless alternative arrangements have been agreed upon in writing between MCA and the Purchaser.
8.4 MCA reserves the right to vary the payment terms in this clause 8 in specified cases.
8.5 Unless otherwise specified, any money paid in accordance with this Agreement must be paid in Australian dollars.
8.6 The Purchaser may not withhold payment of money due to MCA for any reason.
8.7 MCA may charge interest at a rate of 2 percent on any amount due and not paid by the Purchaser within the time required for payment in clause 8.3.
- Intellectual Property
The parties acknowledge that all Intellectual Property Rights in the Goods and Services, their design, and any other materials including illustrations, drawings and other documents used for the purposes of MCA providing Goods and/or Services in accordance with this Agreement, vest in and are the property of MCA, and that the Purchaser shall have no right to reproduce or otherwise use such materials other than in accordance with this Agreement.
- Confidentiality
The Purchaser undertakes that it will not at any time (except as required by law) disclose to any person any confidential information belonging to MCA which it obtains as a result of this Agreement or the negotiations preceding this Agreement.
- Liability and Indemnities
11.1 To the extent permitted by law, MCA’s liability to the Purchaser in relation to the supply of Goods or Services under this Agreement is limited, at MCA’s sole discretion, to:
a) the replacement of the Goods or Services or the supply of equivalent Goods or Services;
b) the repair or rectification of the Goods or Services or payment of the cost of having the Goods or Services repaired or rectified; or
c) the refund of the price paid by the Purchaser for the Goods or Services.
11.2 MCA will not be liable to the Purchaser for any:
a) damages or losses which are not direct and which do not flow naturally from the relevant breach of this Agreement, even if those damages or losses may reasonably be supposed to have been in the contemplation of the parties as a probable result of the breach at the time they entered into this Agreement; and
b) losses of profits (whether direct or indirect).
11.3 The Purchaser will indemnify MCA and keep MCA indemnified for and against liability and any loss or damage of any kind arising directly or indirectly from:
a) any breach of this Agreement by the Purchaser; and
b) any action whatsoever that MCA is required to take in order to recover moneys due and payable to it under this Agreement.
11.4 Every exemption, liability, defense, immunity or other benefit contained in this Agreement to which MCA is entitled will also be held by MCA to the benefit of, and will extend to protect, each of MCA’s employees, agents, contractors and subcontractors as well as MCA’s Related Entities.
11.5 It is not necessary for MCA to incur expense or make payment before enforcing a right of indemnity conferred by these terms and conditions.
11.6 The indemnities in this Agreement are continuing obligations, independent from the other obligations of the parties under this Agreement and continue after this Agreement ends. It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity under this Agreement.
- Force Majeure
12.1 MCA’s obligations under this Agreement may be suspended during any period in which MCA is prevented or hindered from manufacture, delivery or supply of the Goods and/or Services through any circumstances outside MCA’s reasonable control, including but not limited to, strikes or other labour difficulty, weather, inability to obtain the necessary materials, equipment, facilities or services, power or water shortage, accidents or breakdowns of plant, machinery, software, hardware or communication network.
12.2 During any period of suspension in accordance with clause 12.1, MCA will not incur any liability to the Purchaser in respect of such suspension.
- Returns of Goods
13.1 Subject to clause 13.2, the Purchaser may return the Goods to MCA within 30 days of the date on which it received the Goods.
13.2 Any Goods which are returned by the Purchaser to MCA must not be damaged and must be in saleable condition.
13.3 For the purposes of clause 13.2, MCA may determine whether the Goods are not damaged and in a saleable condition in its absolute discretion.
13.4 If a Purchaser returns Goods to MCA in accordance with this clause 13, and has already paid MCA in full for those Goods, MCA will pay to the Purchaser the Price, less any re-stocking fee, to be determined in MCA’s absolute discretion.
- Governing Law
14.1 This Agreement is governed by the law in force in Victoria, Australia. Each party submits to the exclusive jurisdiction of that place.
- General
15.1 This Agreement constitutes the entire agreement of the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.
15.2 A provision of this Agreement or a right created under it may not be waived or varied except in writing, signed by the party or parties to be bound.
15.3 If the whole or any part of a provision of this Agreement is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of this Agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause has no effect if the severance alters the basic nature of this Agreement or is contrary to public policy.
15.4 MCA may exercise a right, remedy or power in any way it considers appropriate.
15.5 If MCA does not exercise a right, remedy or power at any time, this does not mean that it cannot exercise it later.
- Definitions
Amount of the Consideration means:
a) the amount of any payment in connection with a supply; and
b) in relation to non-monetary consideration in connection with a supply, the GST exclusive market value of that consideration as reasonably determined by MCA.
Invoice means an invoice for the supply of Goods or Services.
GST has the meaning it has in the GST Act.
GST exclusive market value has the meaning it has in the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cwith).
Input Tax Credit has the meaning it has in the GST Act.
Quotation means a written quotation for the supply of Goods and Services.
MCA means Modular Components and Automation Pty Ltd (ABN 59 664 023 456).
Purchaser means the party identified as the purchaser in the Quotation or Invoice.
Related Entity has the meaning given in the Corporations Act 2001 (Cwith).
Tax Invoice has the meaning it has in the GST Act.
Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to copyright, trademarks, designs, patents, circuit layouts, plant varieties, inventions and confidential information, and other results of intellectual activity in any field whether or not registrable, registered or patentable, and include rights and applications to register such rights and all renewals and extensions of such rights.
Version 2.2 Published 24/01/2023