Trading Terms and Conditions

EMTON PTY LTD T/AS MICROTEC ENGINEERING

PART 2: TERMS AND CONDITIONS OF TRADE


1.  Definitions

In these conditions:

“Agreement” means any agreement entered into for the provision of goods or services by Microtec Engineering to the Customer;

"Customer" means a person, firm or corporation, jointly and severally if there is more than one, acquiring goods or services;

"goods" means goods supplied by Microtec Engineering to the Customer;

“GST” means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended;

"Intellectual Property" means all patents, copyright, trade marks, designs, specifications, drawings and instruction manuals (whether registrable or not) owned or licensed by Microtec Engineering in respect of the goods or services;

"Machinery" means any goods, machinery or equipment provided by the Customer to Microtec Engineering for the purpose of providing the services;

“Microtec Engineering” means Emton Pty Ltd (ACN 103 309 253) trading as Microtec Engineering;

"Price List" means any price list issued by Microtec Engineering from time to time in relation to the price payable for the goods or services;

"Quotation" means any written quote provided by Microtec Engineering to the Customer concerning the proposed supply of goods or services;

"services" means any installation, maintenance, repair, commissioning, certification and any other services performed by Microtec Engineering; and

"Terms" means these Terms and Conditions of Trade.

2.  Basis of Agreement

2.1            Unless otherwise agreed in writing, the Terms apply exclusively to every Agreement and cannot be varied or displaced by other terms.

2.2            Any Quotation provided by Microtec Engineering to the Customer concerning the proposed supply of goods or services is valid for 14 days, is an invitation to treat only and is subject to the Customer offering to enter into an Agreement and accepting these Terms.

2.3            The Terms may include additional terms in Microtec Engineering's Quotation.

2.4            The Agreement is accepted by Microtec Engineering when Microtec Engineering confirms its acceptance of an order from the Customer in writing or electronic means or provides the Customer with the goods or commences the services.

2.5            Microtec Engineering may refuse to accept any order.

2.6            It is the Customer’s responsibility to provide Microtec Engineering with its specific requirements in relation to the goods or services.

2.7            Microtec Engineering may vary or amend these Terms by written notice to the Customer at any time. Any variations or amendments will apply to orders made by the Customer after the date of notice.

3.  Pricing

3.1            Unless otherwise agreed in writing, prices specified for the supply of goods or services in any Quotation, verbally or in a Price List exclude GST and any other taxes or duties imposed on or in relation to the goods or services. In addition to payment of the price of the goods and services, the Customer must pay any GST and any other taxes or duties imposed on the goods or services, at their current prevailing rates.

3.2            Where no Quotation is provided, prices for goods and services are set in accordance with Microtec Engineering’s prevailing Price List, which is subject to change from time to time.  The price payable for the goods and services is the price applicable at the date of delivery of the goods or performance of the services.

3.3            If:

(a)     the Customer requests any variation to an Agreement; or

(b)    there is any change in Microtec Engineering's costs incurred in relation to the goods or services,

then Microtec Engineering may adjust the price to account for the variation, by notifying the Customer.

4.  Payment

4.1            Unless otherwise agreed in writing, payment for the goods and services must be made immediately upon completion of the services or upon notification that the goods are ready for collection.

4.2            If credit is offered, payment is due in full within 30 days of invoice date.

4.3            Payment must be made to Microtec Engineering without any deduction or set-off.

4.4            Payment by cheque is not deemed made until the proceeds of the cheque have cleared.

4.5            Microtec Engineering reserves the right in its sole discretion to revoke or amend the Customer's payment terms immediately upon giving the Customer written notice.

5.  Payment Default

5.1            If the Customer defaults in payment by the due date of any amount payable to Microtec Engineering, then all money which would become payable by the Customer to Microtec Engineering at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and Microtec Engineering may, without prejudice to any other remedy available to it:

(a)    claim a general lien over all or any of the Machinery in Microtec Engineering's possession, and subject to giving 30 days written notice to the Customer, sell the property by private treaty or public auction whichever Microtec Engineering in its sole discretion deems appropriate and allocate the proceeds to the repayment of its costs and expenses and any other sum due and payable by the Customer to Microtec Engineering;

(b)    charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 4% for the period from the due date until the date of payment in full;

(c)    charge the Customer for, and the Customer must indemnify Microtec Engineering from, all costs and expenses (including legal costs and expenses on an indemnity basis and all storage charges) incurred by it resulting from the default, in taking action to enforce compliance with the Terms, to recover any goods or to recover any sum due;

(d)    cease or suspend for such period as Microtec Engineering thinks fit, supply of any further goods or services to the Customer;

(e)    by written notice to the Customer, terminate any Agreement so far as unperformed by Microtec Engineering;

             without effect on Microtec Engineering's accrued rights under any Agreement.

5.2            Clauses 5.1(d) and (e) may also be relied upon, at Microtec Engineering's option where the Customer becomes bankrupt, enters into any scheme of arrangement with its creditors or has an administrator or similar functionary appointed in respect of its assets.

6.  Passing of Property

6.1        Until Microtec Engineering receives full payment in cleared funds for all goods and services supplied by it to the Customer, as well as all other amounts owing to Microtec Engineering by the Customer:

(a)    title and property in all goods remain vested in Microtec Engineering and do not pass to the Customer;

(b)    the Customer must hold the goods as fiduciary bailee and agent for Microtec Engineering;

(c)    the Customer must keep the goods separate from its goods and maintain Microtec Engineering's labelling and packaging;

(d)    the Customer is required to hold the proceeds of any sale of the goods, or any Machinery incorporating the goods, on trust for Microtec Engineering in a separate account however failure to do so will not affect the Customer's obligation to deal with the proceeds as trustee; and

(e)    Microtec Engineering may without notice, enter any premises where it suspects the goods may be and remove them, notwithstanding that they may have been attached to other goods, machinery or equipment not the property of Microtec Engineering, and for this purpose the Customer irrevocably licences Microtec Engineering to enter such premises and also indemnifies Microtec Engineering from and against all costs, claims, demands or actions by any party arising from such action.

6.2        Microtec Engineering retains a lien over all and any Machinery until full payment in cleared funds is received by Microtec Engineering for all services supplied and works carried out upon any Machinery.

7.  Service Conditions

7.1        The Customer must ensure that Microtec Engineering, its sub-contractors, employees and agents have full and safe access to the Customer's premises and work site and any necessary equipment, materials and information.  Microtec Engineering may, in its discretion and without liability to the Customer, refuse to provide the services if conditions are not work safe.

8.  Performance of Agreement

8.1        Any period or date for delivery of goods or performance of services stated by Microtec Engineering is intended as an estimate only and is not a contractual commitment. Microtec Engineering will use its reasonable endeavours to meet any estimated dates for delivery of the goods or completion of the services.

9.  Risk and Insurance

9.1            All risk and insurance responsibility for theft, damage or otherwise: 

(a)     in relation to the goods, passes to the Customer immediately upon the goods being made available for collection from Microtec Engineering's premises.

(b)     in relation to the Machinery, remains with the Customer at all times.

9.2            The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use or possession of any of the goods or services supplied by Microtec Engineering.  

10.  Acknowledgments

10.1         The Customer acknowledges that:

(a)    it has not relied on any service involving skill and judgment, or on any advice, recommendation, information or assistance provided by Microtec Engineering in relation to the goods or services or their use or application.

(b)    any description of the goods or services provided in a Quotation, Price List  or invoice is given by way of identification only and does not constitute a contract of sale by description.

 11.  Liability

11.1         Except as specifically set out in the Terms or contained in any warranty statement provided with the goods or services, any term, condition or warranty in respect of the quality, merchantability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services, whether implied by statute, common law, trade usage, custom or otherwise, is expressly excluded.

11.2         Replacement or repair of the goods or re-supply of the services is the absolute limit of Microtec Engineering's liability howsoever arising under or in connection with the supply of the goods or services or the Customer's or any third party's use of, storage or other dealings with the goods or services.

11.3         Microtec Engineering is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party.

11.4         Microtec Engineering is not liable for any loss or damage suffered by the Customer where Microtec Engineering has failed to deliver goods or services, fails meet any delivery date or cancels or suspends the supply of goods or services.

11.5         Nothing in the Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods which cannot be excluded, restricted or modified. 

11.6         Microtec Engineering will have no liability whatsoever under these Terms to the extent that such fulfilment is prevented by circumstances beyond its reasonable control including but without limitation to industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, acts of God, acts of terrorism, or acts of war. Should an event of force majeure occur Microtec Engineering may terminate the Agreement by giving written notice to the Customer.

 12.  Certification services

12.1         Microtec Engineering's certification services are provided on the basis of information and materials supplied by the Customer.  Microtec Engineering is not liable to the Customer for any errors, defects or omissions in the certification services, or for any resulting loss or damage, where the error or damage is caused by incorrect or incomplete information supplied by the Customer.

12.2         Microtec Engineering is not liable in connection with certification services provided by any third party. 

 13.  Removal/replacement of OEM safety system 

13.1         Where the Customer requests Microtec Engineering to fit an aftermarket system to any Machinery:

(a)     the Customer acknowledges that it is aware and understands that the aftermarket system may reduce or remove the functionality of the Machierny's OEM safety features;

(b)     the installation of the aftermarket system is carried out by Microtec Engineering at the Customer's own risk;

(c)     the customer is responsible for satisfying itself that the aftermarket system is suitable for the Customer's use and provides sufficient safety features;

(d)     Microtec Engineering makes no warranties or representations about the application, use, safety or suitability of the aftermarket system required by the Customer to be installed;

(e)     the aftermarket system will be installed on the basis that the Customer has obtained all necessary permits and licenses required to use the Machinery and the aftermarket system;

(f)       the Customer assumes all risk and responsibility relating to or arising from the selection and use of the aftermarket system and the Machinery to which it is fitted; and

(g)     the Customer must indemnify and keep Microtec Engineering indemnified from and against any and all costs, actions, claims, demands, loss or damage arising from or in connection with the installation of the aftermarket system, its and the Machinery's use and operation, and any decreased safety functionality as a result of the installation.

 14.  Claims

14.1         Subject to clause 14.2, Microtec Engineering will not be liable for any defects, shortages, damage or non-compliance with the specifications in the Agreement unless:

(h)     the Customer notifies Microtec Engineering with full details within 7 days of delivery of the goods or completion of the services specifying the shortage or defect; and

(i)       Microtec Engineering is given the opportunity inspect the goods or services and investigate the complaint before any further dealing.

14.2         If the Customer fails to give the notice as required in clause 14.1, it is deemed to have accepted the goods and services and will be bound to pay for them.

14.3         Where Microtec Engineering accepts any claim for defects, shortages, damage or non-compliance with the Agreement specifications, Microtec Engineering may, at its option, repair or replace the goods, re-supply the services or refund the price of the goods or services.


15.  Intellectual Property

15.1         The Customer acknowledges that it has no proprietary right or interest in the Intellectual Property.

15.2         The Customer must not register or record or attempt to register or record anywhere in the world the Intellectual Property or any part of it or anything similar to it nor aid or abet anyone else to do so.

15.3         Any Intellectual Property provided by Microtec Engineering to the Customer remains Microtec Engineering's exclusive property and must be returned to Microtec Engineering on demand and must not be copied or communicated to any third party without Microtec Engineering's express written consent.

16.  Cancellation

16.1         If, through circumstances beyond Microtec Engineering's control, it is unable to provide the goods or services, then Microtec Engineering may by written notice to the Customer, cancel the Customer's order (even if it has already been accepted).

16.2         No purported cancellation or suspension of an order or any part of it by the Customer is binding on Microtec Engineering after that order has been accepted. However, if Microtec Engineering accepts the Customer's cancellation, Microtec Engineering may charge the Customer for the cost of any goods ordered or services commenced prior to the cancellation.

17.  Miscellaneous

17.1         The law of Victoria from time to time governs the Terms.

17.2         Microtec Engineering's failure to enforce any of these Terms shall not be construed as a waiver of any of Microtec Engineering’s rights.

17.3         If any of the Terms are unenforceable it shall be read down so as to be enforceable or, if it cannot be so read down, the term shall be severed from these Terms without affecting the enforceability of the remaining terms.

17.4         A notice must be in writing and handed personally or sent by email, facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by email or facsimile are deemed received on the sender's machine confirming transmission.