Milford Industries Pty Ltd ABN 14 119 800 896 (Milford)
Milford Account Holder - Terms of Sale of Goods
Content of the Agreement
2 Additions to or variation of the Agreement are effective only if agreed to in writing by all parties.
Purchase order, quote and confirmation
3 In order to purchase Goods you must place a purchase order with Milford and such purchase order may be accepted or rejected by Milford. A purchase order is only accepted when Milford provides you a written purchase order confirmation.
4 Milford may provide you with a written quotation following receipt of a purchase order. The issue of a purchase order confirmation will be subject to prior agreement of the quotation by you.
5 Orders are accepted by Milford subject to the condition that you agree to pay those prices appearing on Milford’s price list for the Goods current on the date of issue of the purchase order confirmation, or as otherwise provided in any written quotation from Milford.
6 All prices on Milford’s price list are subject to alteration without notice.
7 Milford may at its discretion, as a condition of providing the purchase order confirmation require you to provide a cash deposit in advance of delivery of the Goods or any other security for payment of the price.
Payment of purchase price
8 The purchase price is an amount referred to in clause 5, plus an amount equal to any goods and services tax imposed.
9 You must pay the purchase price in full within 30 days after the date of the invoice.
10 You must not set off any money alleged to be owing by Milford against money due by you to Milford.
Cancellation of orders
11 Without affecting Milford’s rights to seek other remedies and without limiting your obligations under the Agreement, if you propose to cancel a purchase order following confirmation of the same, Milford will only consent to such cancellation as follows:
11.1 For standard Goods, ie for Goods appearing on Milford’s then current price lists you must pay Milford a fee being a proportion of the purchase price equivalent to the proportion of labour, skill and materials used by Milford and its performance of its obligations under the Agreement at the date of cancellation or 15% of the purchase price, whichever is greater.
11.2 For non-standard Goods, without limiting its rights under this clause, Milford will only consent to cancellation of a purchase order if you pay all manufacturing costs incurred up to the date of cancellation.
Return of Goods and credits
12 You are deemed to have accepted the Goods unless you make a claim in accordance with clauses 13 to 16.
13 You may claim the right to reject any Goods which are wrongly supplied or oversupplied, or which are not in accordance with the Agreement, by notifying Milford of the claim and providing full particulars of the claim in writing within seven days of receipt of those Goods. Milford may dispute any such claim.
14 You must not return any Goods to Milford unless you have complied with clause 13 and have done all things necessary to permit Milford to examine the Goods to its satisfaction within that period.
15 Goods may be returned for credit if all of the following are complied with:
15.1 The Goods are returned to Milford’s premises by prior arrangement and with Milford’s written approval, at no cost to Milford, unless delivered as the result of an administrative error by Milford, in which case Milford will bear the cost of return.
15.2 The Goods are accompanied by the original picking slip and/or invoice for the Goods and notice of the Milford customer return for credit approval number and the reason for return.
15.3 The Goods are returned in an unsoiled, undamaged and resaleable condition, in their original packing.
16 A restocking fee is applicable at Milford’s discretion.
Delivery and storage of Goods
17 All quoted delivery or consignment dates are estimates only. Milford is not obliged to meet such dates and will not be liable to you by reason of delays caused by any reason whatsoever.
18 Delivery of the Goods occurs when the Goods are placed at your (including your nominee’s or agent’s) disposal at Milford’s premises.
19 Milford may deliver the Goods by instalments (where in Milford’s opinion this is reasonable to do so) and issue interim invoices to you.
20 Without limiting any other provision in this agreement, failure by you to pay any instalment, or any other amount when due, will entitle Milford to withhold or delay delivery of any remaining Goods ordered.
21 If delay in delivery is caused by a circumstance of force majeure (refer clauses 48 and 49), Milford may (at its option and without limiting its other rights and remedies) arrange suitable storage of the Goods, whether at its premises or elsewhere and you must pay or reimburse all costs and expenses of storage, insurance, demurrage, handling and other charges associated with such storage.
Title and risk
22 Until all monies owing by you to Milford are paid in full, title to the Goods is retained by Milford. Until then, you are a bailee of the Goods. You must comply with all of the following conditions:
22.1 Keep them in your possession and control.
22.2 Keep them in good repair and condition, excluding fair wear and tear.
22.3 Keep them stored separately and marked so that the Goods are clearly and easily identifiable as Milford’s property and inform Milford of the location of the Goods, if requested.
22.4 Not sell, assign or let them or any interest in them, or permit any charge, pledge, lien or other encumbrance to be created in relation to them.
22.5 Maintain and allow Milford to inspect records which do any of the following:
22.5.1 Identify any unpaid Goods owned by Milford.
22.5.2 Detail third parties to whom you sell or otherwise dispose of the unpaid Goods.
22.5.3 Detail payments made by such parties for the unpaid Goods.
23 If you do not pay for any Goods on the due date for payment, you authorise Milford, its employees and agents to enter your premises (and any premises under the control of you or an agent of you if the Goods are located on those premises) and use reasonable force to retake possession of the Goods without liability for trespass or damage. Milford may at its option keep or resell Goods retaken from you.
24 If you sell the Goods before payment in full to Milford, you hold the proceeds on trust for Milford in respect of those Goods, and must keep such proceeds in a separate account until the liability to Milford is discharged and must immediately pay that amount to Milford.
25 If you use the Goods in a manufacturing or construction process, you must hold that part of the proceeds of such manufacturing or construction process as relates to the Goods in trust for Milford. You must keep such proceeds in a separate account until the liability to Milford is discharged. Such part shall be deemed to equal in dollar terms the amount owing by you to Milford in respect of the Goods in question at the time of receipt of such proceeds. You must not assign the right to any such proceeds or enter into any other arrangement that would result in you not receiving those proceeds.
26 Despite the retention of these rights, Milford may recover the price of the Goods from you.
27 The risk in Goods supplied passes to you at the time of dispatch of the Goods from Milford’s premises.
28 You must keep the Goods insured against all risks for Goods of that kind from the time the risk in the Goods passes to you until the time the property in the Goods passes to you. You hold the proceeds of that insurance on trust for Milford up to the amount you owe Milford in respect of those Goods, and must keep such proceeds in a separate account until the liability to Milford is discharged and must immediately pay that amount to Milford.
29 You agree that there is no transfer to you of any interest in any intellectual property including copyrights, patents, trade marks, designs, brand names, logos, circuit layouts confidential information and know how in and relating to the Goods or used in, or coming into existence as a result of, the manufacture of the Goods (Intellectual Property).
30 You must not, and must not permit or assist any third party to:
30.1 infringe, harm or contest the validity, right to register, registration, ownership or right to use the Intellectual Property;
30.2 prevent or interfere with the use or registration by Milford’s or any of its related entities of the Intellectual Property;
30.3 register any of the Intellectual Property with any register or person in Australia or elsewhere in the world; and
30.4 modify or remove any trade marks, brand names or logos appearing on the Goods.
31 Without limiting clause 30, you must not provide any third party with access to the Goods, or information relating to the Goods, where you know or reasonably expects the third party may use the Goods or information to manufacture product (including product similar to the Goods) the:
31.1 making, hiring, selling or otherwise disposing;
31.2 offering to make, sell, hire or otherwise dispose;
31.3 using or importing; or
31.4 keeping for the purpose of doing any of the things described in 31.1, 31.2 and 31.3,
of which, infringes or is likely to infringe the Intellectual Property.
32 You warrant that the use by Milford of any specification, template, material, information or other thing provided by you for use in connection with the manufacture and supply of Goods to you under the Agreement will not infringe any intellectual property rights of yours or any third party.
33 You agree not to use any Intellectual Property to promote the Goods other than as directed by Milford to you in writing. You must not use any advertising or marketing materials which include the Intellectual Property which have not been provided by or approved by Milford in writing.
34 You indemnify Milford for any damage it incurs (including legal costs on a full indemnity basis) as a direct or indirect result of a breach of any of clauses 29 - 32.
35 You must not without Milford’s prior written consent disclose any confidential information of Milford’s including any confidential terms of the Agreement and any confidential information relating to the Goods, Milford or its related entities and Milford’s or its related entities businesses, manufacturing processes, strategies, operations, suppliers, competitors and customers except in one or more of the following circumstances:
35.1 The disclosure is required by law. If you decide that disclosure is required by law, you must immediately notify Milford of the requirement for the information to be disclosed.
35.2 The disclosure is to an officer or employee of yours, to the extent that he or she needs to know the information.
35.3 The disclosure is reasonably made to a professional legal adviser.
36 You must ensure that your employees, agents and contractors comply with the substance of this confidentiality obligation.
Limitation of liability
37 Except as implied by statute or expressly agreed in writing by Milford with you (including Milford’s Lifetime Ownership Warranty, if applicable), liability for defective Goods manufactured and/or sold by Milford that arises from faulty design, materials, workmanship and from fair wear and tear is excluded.
38 Milford makes no representation as to the fitness of Goods supplied by it for any purpose, other than a purpose which has been notified to Milford in writing, prior to the date of any agreement, by you, and confirmed in writing by Milford to be applicable.
39 In respect of Goods which are not ordinarily acquired for personal, domestic or household use or consumption, the liability of Milford for a breach of any condition or warranty implied by law is limited at Milford’s option to the repair of the Goods, or supply of a replacement, or payment of the cost of replacing the Goods or of acquiring equivalent Goods or payment of the cost of having the Goods repaired.
40 Except as implied by statute, all other liability, including for physical or financial consequential loss or damage and whether arising from negligence or misuse of product in any other way is excluded.
41 You agree that Milford will not be liable or responsible for any loss, damages, costs (including legal costs on a full indemnity basis) or claims incurred as a direct or indirect result of use, modification or installation of or any other dealing by you or any of your employees, agents and contractors with the Goods other than in accordance with Milford’s written instructions, standard design rules and any applicable law. You agree to indemnify Milford for any such loss, damages, costs or claims incurred by Milford.
Failure to pay money
42 If you do not pay money by the due date for payment, Milford may require you to pay interest at the Westpac Indicator Lending Rate effective from time to time plus 2% per annum calculated on daily balances of amounts unpaid, and if so required you must pay that interest.
43 If you do not pay money by the due date for payment under an agreement with Milford, Milford may elect to suspend from time to time some or all its obligations under that and any other agreement with you until payment in full is received by Milford or to enter your premises and repossess the Goods and keep or sell those Goods in accordance with clause 23. The non-performance of obligations suspended by Milford is not a breach of the Agreement. You remain bound by your obligations to Milford.
44 If you do not pay money by the due date for payment, Milford may give you notice in writing requiring payment of all money owing under the agreement within 30 days after the date of the notice. If Milford does not receive full payment within that period, your default is to be treated as a repudiation of the agreement and at any later time Milford may terminate the agreement by giving notice in writing to you.
45 Milford may exercise all rights resulting from the failure to pay money at any later time despite the supply of Goods by Milford after it becomes aware of a failure by you to pay money. The right to give notice requiring payment of all money owing may be exercised concurrently with the suspension of obligations by Milford.
46 Milford may by written notice to you immediately end the Agreement in any of the following circumstances:
46.1 You fail to perform any of your obligations under this agreement or any other agreement which you and Milford are parties to.
46.2 You die, become incapacitated or cease, or indicate that you are about to cease, to carry on business.
46.3 Anything happens that reasonably indicates that there is a significant risk that you are or will become unable to pay your debts as they fall due. This includes execution or distress being levied against any of your income or assets; a meeting of your creditors being called or held; a step being taken to make you bankrupt; and you entering into any type of agreement, composition or arrangement with, or assignment for, the benefit of, all or any class of its creditors, or being subject to a deed of company arrangement.
46.4 A step is taken to have a receiver, receiver and manager, provisional liquidator, liquidator or administrator appointed to you or any of your assets.
46.5 You sell or substantially change the nature of your business.
47 If the agreement is ended because of your default and you owe Milford money the money becomes payable immediately to Milford and bears interest in accordance with clause 42.
48 If Milford’s ability to perform its obligations under this agreement is adversely affected by war, strike, trade dispute, damage to plant or machinery, shortage of any material or labour, or any cause beyond Milford’s control, Milford may, if it chooses, end the agreement or suspend it for up to 3 months by giving you written notice. Milford will not be liable for any loss, damage or liability which you incur.
49 You must accept delivery of the Goods notwithstanding any delay in delivery caused by any of the events specified in clause 48.
Seller’s other rights and remedies
50 The rights and remedies provided in this agreement will not affect any other rights or remedies available to Milford.
Variation of Product
51 Milford may alter the Goods it supplies under this Agreement including any application data, specifications, instructions or design relating to the Goods at any time without notice. If any such change is made, Milford shall not be obliged to make such changes to any of the Goods for which a purchase order confirmation has been provided.
52 You acknowledge that Milford’s supply to you of Milford branded Goods is non-exclusive and does not in any way restrict Milford from supplying Milford branded Goods to any third party.
53 Neither party may assign any right under the Agreement without the other party’s written consent.
54 The fact that Milford fails to do, or delays in doing, something it is entitled to do under the Agreement, does not amount to a waiver of its right to do it. Any waiver must be agreed in writing by Milford.
55 If a clause or part of a clause can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from these terms, but the rest of this agreement is not affected.
56 A reference to the word 'include' or 'including' in the Agreement is to be interpreted without limitation.
57 Any notice to be given to a party under the Agreement must be in writing and must be sent by post, facsimile or email to the address of that party shown in the quotation, purchase order or purchase order confirmation. Notice is deemed to have been given at the time it would have been received in the normal course of post if sent by post, or if otherwise given at the time it was actually received.
58 This agreement is governed by and must be interpreted in accordance with the laws of South Australia. The parties unconditionally submit to the non-exclusive jurisdiction of the courts of South Australia.