1. These terms apply to all goods sold by Mezign Creative (“the Company”). These terms override all terms proposed by any customer including terms set out on any order or other documents. If other terms are proposed these terms are deemed to be reoffered to and accepted by the customer or their agents on delivery of the goods. These terms may be varied at any time by the Company. The terms at the time of delivery of goods will prevail if there is any conflict.
2. These terms constitute the entire agreement. No other representations are made by the Company in relation to supply of the goods. These terms may only be varied, or additional terms incorporated (other than terms of the product description, quantity, indicative price and delivery instructions set out on each order) if in writing signed by a representative of the Company of the status of General Manager or above. There are no other terms and to the extent permitted all other terms including warranties that may be implied, including statutory terms, are excluded.
3. If any trading agreement exists between the Company and the customer these terms nevertheless apply to all goods supplied which are also covered by the trading agreement though, if there is an inconsistency with these terms, the trading agreement will prevail to the extent of any inconsistency. No trading agreement will legally bind the Company or the customer unless in writing and signed by a representative of the Company of the status of General Manager or above, and the customer.
4. In these terms and conditions: ‘Company’ means Mezign Creative; ‘Customer’ means the individual, Company or other organisation to whom the Company may agree to supply goods in accordance with the Company’s standard conditions of sale; and ‘Manufacturer’ means the original supplier of goods where the Company is not the original creator.
Ordering, Acceptance and Price
5. Orders once received from a customer are irrevocable. The Company may withdraw from the supply of goods ordered at any time up to delivery. Any quotation of the Company may be varied or withdrawn up to the time of delivery and will lapse on any specified expiry date.
6. The customer is responsible for ensuring all quotations and orders are accurate. The Company takes no responsibility for errors in respect of the goods, quantity or price set out on any quotation or order.
7. All prices quoted or advised are strictly net based on the quantity and the pack sizes at the date of quotation or order. Prices may be varied to those at the date of delivery and will be adjusted accordingly to any change in any costs to the Company or variation in quantity or pack sizes. Prices are exclusive of GST.
8. The customer is responsible for the following costs and charges in addition to the price unless otherwise specified in the Company’s quotation:
(a) altering items to non-standard sizes;
(b) special packaging or tooling requirements;
(c) service charge where the invoice value is below the minimum determined by the Company from time to time;
(d) expenses incurred by the Company due to deferral of delivery at the customer’s request beyond the delivery date specified or cancellation of the customer’s invoice; and
(e) GST and all other statutory taxes and charges
9. Orders once received cannot be deferred unless agreed to in writing by the Company and the customer indemnifies the Company for any loss.
10. Confirmation of order documents must be clearly marked otherwise they will be treated as original orders.
11. If for any reason the goods ordered are unavailable, the Company has the right to substitute alternative goods provided they are reasonably equivalent in all respects (unless the customer’s order specified otherwise). If quantity and pack sizes vary from the date of quotation or order the Company may substitute alternative sizes but not so that the customer is required to purchase in aggregate more goods than ordered.
12. If the Company agrees to make available any goods for the carrying out of any tests or certification processes then those tests or processes will be carried out by the customer at the customer’s cost and risk. By providing goods for the undertaking of testing or processes pursuant to this clause the Company expressly does not assume any responsibility for the goods whatsoever including any liability if the results of the tests or processes carried out are wrong.
Packaging and Delivery
13. Delivery will take place at the Company’s premises where the customer’s order is accepted unless the Company agrees at the customer’s cost and risk to effect delivery or arrange freight to an address specified by the customer, in which case delivery will take place at such address. The customer will provide all necessary labour and equipment to safely off load the goods at a reasonable access point at any address specified for delivery.
14. All reusable packaging remains the Company’s property. The customer must, following the unpacking of goods, retain all packaging of which title does not pass to the customer on delivery. The customer is responsible for any damage or loss to any packaging and may not treat packaging as being abandoned if such packaging is not promptly collected by the Company or manufacturer after unpacking.
15. Acceptance of delivery of the goods by the customer is deemed to be acceptance of the condition and correctness of goods ordered.
16. The Company reserves the right to supply or deliver by instalments, and each instalment will be deemed to be sold under a separate contract. Failure to supply or deliver any instalment will not entitle the customer to repudiate any order.
17. Prior to any order and at delivery, the customer must ensure it and or its agents have all documents and information regarding all goods which may be supplied by the Company, as required under all health and safety and environmental laws and standards.
Title and Risk
18. Notwithstanding delivery or freight arrangements, risk (including deterioration, loss or damage) passes to the customer preloading at the Company’s premises or at an address specified by the customer or if shipped directly from the manufacturer preloading at the manufacturer’s premises or if shipped directly from outside Australia preloading at the port of entry in Australia. The customer is responsible for all insurance of the goods from the point when risk passes.
19. All shipments are made at the Customer’s risk and cost, although freight charges are subsidised by the Company. Normal deliveries are charged at cost. Special deliveries which include out of area special deliveries (see website), dangerous goods, substrates and machinery can be arranged at the Customer’s cost.
20. Title passes to the customer when the Company has been paid in full for all goods supplied by it to the customer.
21. Until the customer has paid all monies owed to the Company;
(a) the Company retains a purchase money security interest in the goods and the proceeds of sale of the goods under the Personal Property Securities Act 2009 (PPSA);
(b) the customer consents to the Company registering a security interest under the PPSA and agrees to do all things reasonably required by the Company to effect such registration;
(c) the customer waives any right the customer has under PPSA to receive notice in relation to registration of the Company’s interest in the goods under the PPSA;
(d) the customer will immediately advise the Company of any changes which may affect the Company’s security interest.
22. The Company reserves copyright in all documents, drawings and specifications produced by the Company or on the Company’s behalf in connection with the goods.
23. The customer must not advertise or publish that the supplier and the Company have a contract for the supply of goods or to refer to the Company in any advertising and/or merchandising material without first obtaining the prior written consent of the Company.
24. The customer must not reproduce, modify, amend or publish, or allow to be reproduced, modified, amended or published, the Company’s registered or unregistered trademarks, names or logos without first obtaining the prior written consent of the Company.
25. Where goods are rejected by the Customer as not being in accordance with the Customer’s order, the Company will only accept the return of such goods provided that it receives written notice within 5 working days of receipt of the goods by the Customer. If no notice is received the goods shall be deemed to have been accepted by the Customer. Returned goods will not be accepted without a Return Authorisation Number which will be supplied by the Company on receipt of the Customer notice.
26. Where the Company has supplied goods in accordance with a Customer order, the Company will accept the return of those goods subject to the payment by the Customer of a restocking charge of 25% of the value of the goods invoiced (whichever is greater) and the cost of freight both ways. The Customer must quote the invoice numbers that goods were supplied under. The goods must be in the same condition they were dispatched by the company to the Customer. If the Customer complies with these conditions, the Company will provide the Customer with a credit in respect of the goods returned.
27. The Company will not consider any claim for compensation, indemnity or refund until liability, if any, has been established or agreed with the Manufacturer and where applicable, the Company’s or the Manufacturer’s insurance company.
28. In the case of defects or faulty workmanship in the goods or any part of the goods supplied by the Company the Customer is not entitled to any greater compensation than the Company receives from the Manufacturer.
Cancellation of Orders
29. Requests by a Customer for cancellation of any order or for rescheduling of deliveries will only be considered by the Company if made in writing. The Customer must pay to the Company an amount equal to all costs incurred in the preparation and delivery of the order and its cancellation or rescheduling.
30. The Company is not liable for the cancellation or partial delivery of any order or part order if performance by the Company is prevented or delayed directly or indirectly by any cause beyond the reasonable control of the Company whether such cause existed or was foreseeable at the date of acceptance of the Customer’s order by the Company or not.
31. Payment for goods may be by cash, MasterCard, Visa or PayPal, as agreed with the Company.
(a) the Customer defaults or commits any breach of any of its obligations to the Company; or
(b) the Customer at any time becomes bankrupt or, if an incorporated body, any resolution or petition to wind up its business is passed or presented otherwise than for reconstruction or amalgamation, or if a liquidator or receiver or manager of such corporate body or its undertaking property or assets or any part thereof is appointed, or if the Customer is insolvent or is unable, or admits its liability, to meet its commitments promptly as and when due, then the Company may (without prejudice to any other claims or rights which the Company might have) immediately cancel any uncompleted order or cancel or suspend delivery. In addition, and notwithstanding any other provisions of the Company’s standard conditions of sale, payments for any delivery already made shall immediately become due.
Invoicing and Payment
33. Payment must be made by the invoiced billing period. In the event payment is not made by the due date the Company reserves the right to suspend or cancel undelivered orders and to take proceedings for recovery. The customer must pay interest equal to 1.5% per month for each month or part thereof on overdue amounts from the due date until paid. The customer is not entitled to any retention or otherwise retain any amount due to the Company. All payments are to be made without deduction or equitable or other set off whatsoever.
34. Until the Company has been paid in full for all goods supplied by it to the customer: –
(a) the Company remains the owner and the customer is only a bailee;
(b) the customer must store the goods separately from any other goods, keep them readily identifiable as the Company’s goods and maintain proper records of any sale or disposal of the goods;
(c) the customer bears all risk in respect of the goods from delivery and must fully insure them;
(d) the customer will not sell the goods except in the ordinary course of business;
(e) and the customer will hold the proceeds of any sale or disposal to the extent of the amount due to the Company in a separate account for the Company’s benefit and promptly pay that amount to the Company.
35. At all times the customer will allow the Company access to the premises occupied by the customer during normal business hours and to the goods in order to inspect the goods and retake possession of the goods at any time prior to payment in full of the price payable for all goods supplied by the Company to the customer and for other monies payable by the customer to the Company. The customer acknowledges that this access shall be full, free and unhindered and shall not be or constitute trespass by the Company. The customer indemnifies the Company for any liability or loss it suffers seeking to exercise its rights of access and retaking possession.
Warranty and Indemnity
36. Errors and misprints in computation, typing or otherwise in the Company’s documents including catalogues, price lists, delivery docket, invoice or statement or credit note shall be subject to correction by the Company by means of reissue of the document or by adjusting dockets with reference to the original transaction.
37. The customer acknowledges that the Company is a wholesaler and it does not manufacture nor warrant products sold by it nor does it hold sufficient technical expertise or skills to evaluate a customer’s requirement or orders.
38. Warranties and provisions that may be implied by the Competition and Consumer Act 2010 and any other legislation are expressly excluded except to the extent that exclusion is prohibited by the legislation and this overrides these terms.
39. Subject to paragraph 38, the Company gives no warranty whatsoever in relation to the goods sold to the customer, whether in regard to the quality of the goods, fitness of the goods for any purpose or the compliance of the goods sold with any description or sample produced by either party to the other at any time, whether prior to, at the time of or subsequent to the customer placing an order for the goods with the Company, or otherwise. The customer warrants that the goods will be installed and used
(a) only in applications for which the goods were manufactured and are able to be satisfied by the goods specifications and
(b) in accordance with all manufacturer’s instructions and good and usual industry standards including being fully tested as safe prior to use.
40. Subject to paragraph 38, any remaining liability of the Company, if any, to the customer arising from the supply of goods by the Company or pursuant to any contract whether the liability arises for breach of contract or at common law, including the law relating to negligence by the Company, is limited to repair by the Company of the goods, the resupply by the Company or replacement goods at no additional charge or the refund of the price paid by the customer for the goods giving rise to liability, whichever the Company deems appropriate. In no case will the Company incur liability for any loss or damage exceeding the sale price of the goods paid by the customer for the goods nor on account of losses or damages suffered by the customer including loss of profit, damage to property or personal injury arising from that supply or that agreement, whether arising directly, incidentally or consequently.
41. Subject to paragraph 38, all information contained in any documents, catalogues, price lists, photographs, brochures and other illustrations or advertising material and drawings represent generally the subject matter of the goods and will not be taken as necessarily representing the goods the subject of any quotation or order and will not form part of any contract or agreement for supply.
42. Subject to paragraph 38, except as otherwise expressly provided in these terms, the customer releases the Company from all actions, claims, demands, losses, liability, damages and expenses arising from or in relation to the supply of the goods and indemnifies the Company for any loss or liability that the Company may suffer (including the legal costs on an indemnity basis in defending or prosecuting any claim) arising from the use by the customer of the goods or a breach of these terms including warranties by the customer.
43. The Customer agrees that the Company may disclose a credit report or any personal information derived from it to another credit provider in order to assess the credit worthiness of the Customer, or to assess an application for credit by the Customer or to help the Customer avoid defaulting on credit obligations or to notify a default to the Customer.