Standard terms and conditions of sale
As offered by Monika Pty Ltd trading as Monika (“Monika”) to its customers (each a “Customer”)
1.1 “The Company” means Monika Pty Ltd, trading as “Monika”.
1.2 “The Customer” means the Customer of the Company.
1.3 “The Conditions” means the standard conditions of sale set out in this document and any special terms agreed in writing between the Company and the Customer.
1.4 “The Contract” means any Contract for the sale of Goods by the Company to the Customer.
1.5 “The Goods” means systems, system components, software and other products (including the installation fitting and commissioning of the goods or any part of them) which the Company is to supply in accordance with the Contract.
2.0 Customers entering into transactions with the Company expressly warrant that they are authorised to accept and are accepting the Conditions not only for themselves but also as agents for and on behalf of all other persons who are or may become interested in the Goods whether in whole or part.
Existence of contract
3.1 No Contract shall come into existence until the Customer’s order (however given) is accepted by the earliest of (a) the Company’s written acceptance (b) delivery of the Goods and (c) the Company’s invoice.
3.2 These Conditions shall be incorporated in the Contract to the exclusion of any terms or conditions stipulated or referred to by the Customer.
3.3 No variations or amendments of this Contract shall be binding on the Company unless confirmed by it in writing.
3.4 No order which has been accepted by the Company may be cancelled by the Customer except with the agreement in writing of the Company and on terms that the Customer shall indemnify the Company in full against all loss (including loss of profit) costs (including the cost of all labour and materials used) damages charges and expenses incurred by the Company as a result of cancellation subject to a minimum charge of 25% of the quoted price.
Withdrawal or alteration of quotations
4.0 All quotations are subject to withdrawal or alteration in whole or part by the Company at any time until the Customer’s order has been subsequently confirmed by the Company in writing and if the Company requires references or guarantees, until the Company has
notified the Customer in writing that the result of the enquiries is satisfactory or that the guarantor has been accepted by the Company.
5.1 The price of the Goods will be the Company’s quoted price or where no price has been quoted the price listed in the Company’s price list current at the date of acceptance of this order. Prices invoiced are calculated in respect of the quantity of Goods actually delivered to achieve a completely functional system irrespective of the quantity in respect of which any quotation was issued.
5.2 The Company shall have the right by giving written notice to the Customer at any time before delivery to adjust its prices for any increase in the price of materials parts labour transport changes in work or delivery schedules or quantities or any other costs of any kind arising for any reason after the date of the Contract.
Delivery and performance
6.1 Goods are delivered to the Customer when the Company notifies the Customer that they are available to the Customer or any agent of the Customer or any carrier (who shall be the Customer’s agent whoever pays his charges) at the Company’s premises or if some
other delivery point is agreed by the Company by the Seller delivering the Goods to that place.
6.2 The Company may at its discretion deliver the Goods by instalment in any sequence and each instalment shall be deemed to be the subject of a separate Contract and no default or failure by the Company in respect of any one or more instalments shall vitiate the Contract in respect of the Goods previously delivered or undelivered Goods.
6.3 Any dates quoted by the Company for the delivery of the Goods are approximate only and shall not form part of the Contract and the Customer acknowledges that in the performance expected of the Company no regard has been paid to any quoted delivery dates.
6.4 If the Customer fails to take delivery of the Goods or any part of them or fails to provide any instructions documents licences consents or authorisations required to enable the Goods to be delivered delivery shall be deemed to have taken place and the Company shall be entitled to store or arrange for the storage of the Goods and the Customer shall pay to the Company all costs and expenses including storage and insurance charges arising from its failure.
6.5 If the Company fails to deliver the Goods (or any instalment) within a reasonable time for any reason other than any cause beyond the Company’s reasonable control or the Customer’s fault and the Company is accordingly liable to the Customer the Company’s
liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
6.6 Delivery of Goods may be suspended by the Company wholly or in part without liability during and for a reasonable time as a result of the following:
6.6.1 default of the Customer including goods, materials and components which are not being supplied by the Company and are required for the installation fitting or commissioning of the Goods not being on site or other ancillary work not included in the Company’s quotation not being ready at the time represented to the Company.
6.6.2 the Company being delayed in or prevented from making delivery due to act of God force majeure war civil disturbance requisitioning statutory restrictions import or export regulation strike lock-out trade dispute difficulty in obtaining labour materials breakdown of machinery fire accident or any other cause whatsoever beyond the Company’s control.
6.6.3 non delivery by the Company’s suppliers or damage to or destruction of the whole or part of the Goods.
7.1 The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer and for supplying details of specifications in reasonable time to enable the Company to complete manufacture and delivery within the specified period.
7.2 The Customer shall ensure that all ancillary work including any hard wiring required for the installation fitting and commissioning of the Goods is carried out and satisfactorily completed by the time represented to the Company. All ancillary electrical works must comply with the hardwiring specification supplied by the Company.
7.3 The Customer must ensure that any wiring, lighting, electrical appliances or item of plant and equipment as installed at the site where the Goods are to be used comply with all current Australian Regulations and Standards and in particular those relating to electromagnetic compatibility.
7.4 The customer shall ensure that the end user of the Goods is made aware of the product disposal instructions published by the Company in compliance with its obligations under current Australian Directives on waste electronic and electronic equipment.
7.5 The Customer shall ensure that the Company is properly represented at all site meetings.
7.6 Any additional work carried out by the Company arising from the Customer’s failure to comply with its obligations shall be charged separately and be the responsibility of the Customer.
Descriptions and illustrations
8.1 Any descriptions illustrations specifications figures as to performance drawings and particulars of weights dimensions submitted by the Company or contained in the Company’s catalogues price lists, website or elsewhere are merely intended to represent a general idea of the Goods and are not to form part of the Contract or be treated by representations.
8.2 Any drawing photographic material of any description catalogue literature leaflets blueprints quotations and all or any documents produced for the purpose of any works of any description to be performed by the Company shall remain the exclusive property of the Company and will be returned on demand and shall not be copied or otherwise reproduced without first obtaining the consent of the Company in writing.
Warranties and liability
9.1 Subject to the following provisions the Company warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of twelve months from delivery.
9.2 The above warranty is given by the Company subject to the following conditions:
9.2.1 the Company shall be under no liability in respect of any defect in the Goods arising from any drawing design or specification supplied by the Customer;
9.2.2 the Company shall be under no liability in respect of any defect arising from fair wear and tear wilful damage negligence abnormal working conditions failure to follow the Company’s instructions (whether oral or in writing) misuse or alteration or repair of the Goods without the Company’s approval;
9.2.3 the Company shall be under no liability under the above warranty (or any other warranty condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
9.2.4 the above warranty does not extend to parts materials or equipment not manufactured by the Company in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company
9.2.5 the Company shall be under no liability unless the Goods have been installed fitted and commissioned by the Company or by a third party with the permission of the Company and in accordance with the fitting instructions available from the Company.
9.3 Subject as expressly provided in these Conditions and except where the Goods are sold to a person dealing as a consumer all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9.4 Where the Goods are sold under a consumer transaction the statutory rights of the Customer are not affected by these Terms.
9.5 Where a valid claim in respect of any of the Goods which is based on a defect in the quality or condition of the Goods or their failure to meet specification is notified to the Company in accordance with these Conditions the Company may repair or replace the Goods (or the part in question) free of charge or at the Company’s sole discretion refund to the Customer the price of the Goods (or a proportionate part of the price) in which case the Company shall have no further liability to the Customer.
9.6 Except in respect of death or personal injury caused by the Company’s negligence or liability for defective products under the Consumer Protection Act the Company shall not be liable to the Customer by reason of any representation (unless fraudulent) or any implied warranty condition or other term or any duty at common law or under the express terms of the Contract for loss of profit or for any indirect special or consequential loss or damage costs expenses or other claims for compensation whatsoever (whether caused by the negligence of the Company its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or their use or resale by the Customer and the entire liability of the Company under or in connection with the Contract shall not exceed the price of the Goods except as expressly provided in these Conditions.
9.7 The benefit of the warranty shall not be assignable without the Company’s consent in writing.
10.1 If a claim is made against the Customer that the Goods infringe or that their use or resale infringes the patent copyright design trade mark or other industrial or intellectual property rights of any other person then unless the claim arises from the use of a drawing design
or specification supplied by the Customer the Company shall indemnify the Customer against all loss damages costs and expenses awarded against or incurred by the Customer in connection with the claim or paid or agreed to be paid by the Customer in settlement of the claim provided that:
10.1.1 the Company is given full control of any proceedings or negotiations in connection with the claim;
10.1.2 the Customer shall give the Company all reasonable assistance for the purposes of any such proceedings or negotiations;
10.1.3 except pursuant to a final award the Customer shall not pay or accept the claim or compromise any such proceedings without the consent of the Company (which shall not be unreasonably withheld);
10.1.4 the Customer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Customer may have in relation to such infringement and this indemnity shall not apply to the extent that the Customer recovers any sums under any such policy or cover (which the Customer shall use its best endeavours to do);
10.1.5 the Company shall be entitled to the benefit of and the Customer shall accordingly account to the Company for all damages and costs (if any) awarded in favour of the Customer which are payable by or agreed with the consent of the Customer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim; and
10.1.6 without limiting any duty of the Customer at common law the Company may require the Customer to take such steps as the Company may reasonably require to mitigate or reduce any such loss damages costs or expenses for which the Company is liable to indemnify the Customer under this clause.
11.1 Unless otherwise agreed by the Company all accounts must be paid in full either by approved cheque or direct into the Company’s bank account. The quoted price will be invoiced in two equal parts. The first part will be invoiced on order to be paid prior to
installation and in any event within 30 days from the date of invoice. The second part will be invoiced on delivery to be paid prior to commissioning and in any event within 30 days from the date of the invoice. Time for payment shall be of the essence of the Contract.
11.2 If payment of the full invoice price is not made within 30 days of the date of invoice:
11.2.1 the Company shall be entitled to cancel the Contract or suspend any Services until such as it has been paid; and
11.2.2 the Customer shall not be allowed any discount given in that invoice and shall pay interest on any given overdue amount from the date of which payment was due to that on which it was made (whether before or after judgement) on a daily basis at a rate of 5% per annum over the base rate from time to time quoted by ANZ Bank and reimburse to the Company all costs and expenses (including legal costs) if incurred in the collection of any overdue amount.
12.1 All quotations are exclusive of goods and services tax (GST). If the Customer is a business operating outside of Australia, the Company shall not charge GST provided such evidence is received as reasonably required that the Customer is operating in a business capacity and provided that the Company is not providing Services relating to the Goods within the member country.
12.2 If the Company incurs interest, penalties or legal costs because any information on the Customer’s GST Status is not correct, the Customer must indemnify the Company fully on demand for these amounts.
12.3 If the Company’s invoices are not payable by the Customer but by a third party, the Customer will still be liable for any GST in respect of the Company’s charges.
Risk and title
13.1 Risk in the Goods passes when they are delivered to the Customer.
13.2 The Company shall transfer only such title or rights in respect of the Goods as the Company has and if the Goods are purchased from a third party shall transfer only such title or rights as that party had and has transferred to the Company.
13.3 Notwithstanding delivery or the installation, fitting or commissioning of the Goods or the passing of risk in the goods or any other provision of these Conditions title in the Goods shall remain with the Company and shall not pass to the Customer until the amount due under the invoice for the Goods and all other goods agreed to be sold by the Company to the Customer for which payment is then due has been received by the Company in cash or cleared funds in full.
13.4 Until title passes the Customer shall hold the Goods as bailee and fiduciary agent for the Company and shall where practicable keep the Goods separate from those of the Customer and third parties and properly stored protected and insured and mark them so that they can at all times be seen to be the property of the Company but the Buyer may resell or use the Goods in the ordinary course of its business.
13.5 The Company shall be entitled at any time before title passes to require the Customer to deliver up the Goods to the Company or to repossess and dismantle (without being liable for any damage caused by so doing) and use or sell any of the Goods and so terminate
(without any liability to the Customer) the Customer’s right to use sell or otherwise deal in them and for that purpose or determining what if any Goods are held by the Customer and inspecting them to enter any premises of the Customer or any third party where the Goods are stored or kept.
13.6 The Company shall be entitled to maintain an action for the price of any Goods notwithstanding that title in them has not passed to the Customer.
13.7 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods title to which remains with the Company but if the Customer does so all moneys owing by the Customer to the Company shall (without limiting any other right or remedy) forthwith become due and payable.
13.8 Any software supplied with the Goods is supplied on the basis of licence only and title to software does not pass with the passing of title to the Goods.
14.1 Where the Goods delivered are not to be installed by the Company any claim for non-delivery of any Goods shall be notified in writing by the Customer to the Company within three days of the date of the Company’s invoice and any claim that any Goods have been
delivered damaged are not of the correct quantity, do not comply with their description shall be notified by the Customer to the Company within three days of their delivery.
14.2 Any such claim must be in writing and must contain full details of the claim including (where the Goods have been delivered) the part numbers of the Goods.
14.3 The Company shall be afforded reasonable opportunity and facilities to investigate any such claims and the Customer shall if so requested by the Company promptly return any Goods the subject of any claim and any packing securely packed and carriage paid to the Company for examination.
14.4 The Company shall have no liability with regard to any such claim in respect of which the Customer has not complied with the provisions of this Condition and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
14.5 A claim or counterclaim by the Customer against the Company in respect of one particular transaction shall not be made the reason for deferring payment or withholding payment of monies payable or liabilities incurred to the Company in respect of any other transaction.
Installation, fitting and commissioning
15.1 Where the Company undertakes the installation, fitting and commissioning of the Goods supplied it reserves the right to instruct or employ a sub-contractor of its choice for that purpose.
15.2 Installation, fitting and commissioning and of the Goods supplied is not included in the quotation unless expressly stated therein.
15.3 The Company shall have no liability for faults resulting from the incorrect installation, fitting or commissioning of the Goods by the Customer or its representatives or agents. In such a case it is the Customer’s responsibility to commission and test the installation and to arrange at the Customer’s costs for any faults to be rectified.
Termination or suspension of the contract
16.1 If the Customer shall default in any of his obligations to the Company or commit any breach of any Contract entered into by the Company with the Customer or any agent or nominee of the Company then the Company shall have the right to terminate without
notice any agreements arrangements order or obligations of any description and invoice the Customer for any work performed and expense incurred including any loss of profit forthwith and the Customer shall pay any such invoice so rendered in accordance with the applicable clauses hereof.
16.2 If the Customer makes a voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction);
16.2 or an encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Customer; or
16.3 the Customer ceases or threatens to cease to carry on business; or
16.4 the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly then without limiting any other right or remedy available to the Company the Company may cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
Alterations, inspections, extras
17.1 The Company reserves the right to make an additional charge for any extras ordered and not specified in the quotation and also for the expense of all inspection tests alterations or additions or any other work undertaken at the Customer’s request.
17.2 Removal of old apparatus or goods preparation or completion of site are not included in the quotation unless expressly provided for in the quotation.
18.1 The Contract is between the Company and the Customer as principals and shall not be assignable by the Customer without the express written consent of the Company.
18.2 The Company shall have a lien on all the Customer’s property in the Company’s possession for all sums due at any time from the Customer and shall be entitled to use sell or dispose of that property as agent for and at the expense of the Customer and apply the proceeds in and towards the payment of such sums on 28 days notice in writing to the Customer. On accounting to the Customer for any balance remaining after payment of any sums due to the Company and the Cost of sale or disposal the Company shall be discharged of any liability in respect of the Customer’s property.
18.3 Any notice to be given under the Contract shall be in writing and sent by facsimile transmission or forwarded by first class prepaid registered or recorded delivery letter post to the receiving party at its business address as last notified in writing to the other party
and shall be deemed to have been given on the date of the facsimile transmission or on the day following that on which the notice was posted.
18.4 No waiver by the Company of any breach of Contract shall be considered as a waiver of any subsequent breach of the same or any other provision.
18.5 If any provision of the Contract is considered by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
18.6 The Contract is governed by Australian law and the Customer agrees that any dispute arising in connection with the Contract shall be subject to the exclusive jurisdiction of the Australian courts.