terms and conditions.

1.            Outline

1.1          Currency:  These Terms + Conditions apply to the supply of all Goods and/or Services by us to you.

1.2          The Agreement between us with respect to relevant Goods and/or Services comprises:

1.2.1      these Terms + Conditions; and

1.2.2      the terms of the relevant Order or Proposal (subject to clause 2.5).

1.3          Acceptance:  An Agreement is accepted and binding on the parties when:

1.3.1      we accept an Order communicated by you to us in accordance with clause 2.3;

1.3.2      you accept a Proposal which is capable of acceptance;

1.3.3      you accept delivery of, or any part of, Goods and/or Services pursuant to an Order; or

1.3.4      you make a payment for any Goods and/or Services supplied by us.

2.            Proposals + Orders

2.1          Providing a Proposal: We may provide to you a Proposal relating to the potential supply of Goods and/or Services. We may withdraw a Proposal before its acceptance at any time unless the Proposal otherwise expressly provides.

2.2          Accepting a Proposal:  If our Proposal is on satisfactory terms, you may accept it in accordance with its terms (if expressly capable of acceptance).

2.3          Subject to acceptance:  All Orders are subject to our review and acceptance, which we may withhold in our absolute discretion and is subject to clause 2.4. Acceptance of an Order by us will be communicated in writing (which may include by email) to you.

2.4          Delay in placing an Order/Proposal expiry: If an Order is not placed with us within 14 days of the date of a Proposal or where expressly capable of acceptance the Proposal is not accepted within the required time period stated in it, the details and terms provided to you in the Proposal may be subject to further written confirmation by us in our absolute discretion.

2.5          Additional or alternative conditions:  Unless otherwise expressly agreed by us in writing (which acceptance shall include a reference to this clause 2.5), we will not be bound by any terms or conditions (excepting Fees or details of the specific Goods and/or Services) added by you in an Order or other communication from you or on your behalf (express or implied).

3.            Fees

Fees: Unless otherwise agreed to in writing by us, subject to clause 4, the fees and amounts payable by you for the relevant Goods and/or Services shall be the fees and amounts in Australian dollars stated in the relevant Agreement. If no fees or amounts relevant to specific Goods and/or Services are stated, our published fees at the date of acceptance (in accordance with clause 1.3) of the relevant Agreement shall apply. In addition, you must pay to us all applicable taxes (including GST), charges, disbursements, insurance and delivery costs in relation to the relevant Goods and Services.

4.            Payment

Invoice:  Unless otherwise specified in an Agreement, we will issue you an Invoice upon acceptance of the relevant Agreement for all fees and amounts payable under it.

4.1          Deposit: Unless you are a licensed motor vehicle trader or its related finance corporation with acceptable credit-worthiness, a 50% deposit will be required prior to the scheduling or commencement of the supply of the Goods or Services to you, or such other amounts or on payment terms as may be specified by us in an Agreement.

4.2          Payment:  Unless otherwise specified in an Agreement, all final balances and payments shall be made in full on, or before, the date of substantial completion of the supply (and where applicable, installation) of the Goods or Services to you. For the purpose of this clause, substantial completion will be determined by us in our sole discretion.

4.3          Payment method:  All payments are to be made to us by direct credit to the bank account nominated by us (including by EFT or BPay), or as otherwise agreed by us in writing.

4.4          Bank account details: Our bank details are: Westpac Bank, Account Name MITS ALLOY Pty Limited, BSB 032 639, Account No: 255473.

4.5          Credit card fees: If you wish to pay by credit card, an additional charge is payable as a percentage of the total amount so payable. Details of the additional charge are available on request.

4.6          Costs of enforcement:  We may recover from you any costs we incur in the collection of payment of any Invoice.

4.7          Credit:  We may offer and likewise reserve the right to withdraw credit, in each case, on such terms and whenever we think fit. Generally, credit is only available if you are a duly licensed motor dealer or finance institution.

4.8          No set off:  You may not set off (in law or in equity) against any payment any claims which you may have against us.

5.            Default Interest

5.1          Amount: If you fail to make a payment in accordance with clause 4 or otherwise when due we may in our discretion charge default interest in addition at the cash rate from time to time set by the Reserve Bank of Australia plus 4% per annum (compounded daily).

5.2          Default Interest amount credited first: Any payment you make to us shall first be credited against any Default Interest accrued pursuant to this clause 5 to the actual date of payment.

6.            Termination

6.1          Termination by us:  We may by notice  in writing to you terminate with immediate effect an Agreement (in whole or in part) if you suffer or are subject to a Default Event.

6.2          Consequences of termination: Upon termination:

6.2.1      all amounts payable immediately become payable in full by you; and

6.2.2      termination of an Agreement (in whole or in part) for any reason does not extinguish or otherwise affect any rights or remedies of either party which arose prior to the time of termination.

7.            Delivery, Title + Risk

7.1          Delivery:  We, by our nominated carrier or otherwise, will deliver the Goods (including where they form part of a vehicle) to you, your agent or nominee, to a carrier, place specified by you or as otherwise agreed in writing.

7.2          No liability for delay:  We will use reasonable efforts to deliver the Goods (including where they form part of a vehicle) to you by the date and to the place or person contemplated by clause 7.1.

7.3          Title: We will retain absolute title over any Goods we supply or procure that are to or do form part of your or another person’s relevant vehicle until we have received payment in full in respect of such Goods and all related Services. We may at any time until payment remove any such Goods from a relevant vehicle.

7.4          Risk: All risks in and concerning your or another person’s relevant vehicle (including for these purposes any modifications or incorporated Goods) while it is situated on, or about, our premises or while under our control or being modified or awaiting any work remain with you. This includes, without limitation, all risk of damage or loss however caused. You must insure the relevant vehicle (including any Goods which form part of a vehicle at any relevant time) against all relevant risks. A failure to do so may cause you or another relevant person material loss.

8.            Express Warranties

8.1          Warranty:  We warrant to you that (subject to clause 10.6)

8.1.1      Goods supplied by us will comply with any applicable specifications stated in the relevant Agreement;

8.1.2      all Services shall be provided using reasonable skill and care and within a reasonable time (or the time specified in the relevant Agreement); and

8.1.3      all reversing camera and reversing sensor kits comply with Australian Design Rules and Australasian New Car Assessment Program safety ratings.

8.1.4 all manufactured product is subject to a lifetime manufacturers warranty (limited). This limited lifetime manufacturers warranty applies to the original purchaser and the original installation only. This warranty applies to fabricated product only and excludes (but is not limited to) any of the following: locks, latches, seals, struts, slides, runners, tanks and hardware. These items are excluded by our warranty but retain their individual warranties as specified by the supplier and we will not be liable for any failure that occurs as a result of the failure these components.

9.            Cross Traffic Sensors etc

9.1          As part of the Services provided by us, we may remove reversing sensors, cameras and cross traffic warning equipment from fixed rear body components of an ex-factory vehicle and (subject to clauses 9.2 and 9.3 reinstall them on the vehicle in conjunction with Goods supplied by us  (as the case may be).

9.2          We will use reasonable skill and care so as to endeavour to reinstall such equipment in the same general location, but it may not be exactly the same geometry.

9.3          We do not guarantee that such modifications or re-positioning of equipment will be exactly within the original geometry reference of the original vehicle specifications. Subject to any applicable laws which cannot be limited or excluded, we accept no responsibility for any faults or risks in or consequent upon the operation of such equipment due to the relocation or re-positioning of any such equipment.

10.          Exclusions + Limitations

10.1       ACL exception:  The exclusions and limitations in this clause 8.1 are subject to clause 11 (Statutory Rights).

10.2       Excluded rights:  All express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), relating to an Agreement, that are not contained in it, are excluded to the fullest extent permitted by law

10.3       Limitation of liability:  We exclude to the fullest extent permitted by law all liabilities arising in relation to each Agreement.

10.4       Limitations: No warranty is given and we will not be liable for:

10.4.1   alterations to Goods for which we are not responsible;

10.4.2   damage or failure caused by unusual or non-recommended use or application of the Goods; or

10.4.3   loss caused by any factors beyond our control.

10.5       Total liability:  Our total and aggregate liability for breach of all Agreements and duties at law and in equity (however arising) is limited (subject to applicable laws) at our option to:

In the case of Goods

10.5.1   the replacement of the Goods or the supply of equivalent Goods;

10.5.2   the repair or rectification of the Goods;

10.5.3   the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or

10.5.4   the payment of the cost of the repair or rectification of the Goods; and

In the case of Services

10.5.5   the supply of the Services again; or

10.5.6   the payment of the cost of having the Services supplied again.

10.6       We give no warranty or guarantee in respect of any goods or services that are supplied or carried out or provided to you by a third party even where forming part of an Agreement. Any warranties, statutory guarantees or other rights will be governed by the terms of supply by that third party provider to you and relevant laws.

11.          Statutory Rights

11.1       ACL rights:  In circumstances where you are acquiring Goods and/or Services from us as a ‘consumer’ for the purposes of (and as defined in section 3 of Schedule 2 of) the ACL, we acknowledge and agree that certain statutory guarantees and rights shall apply to you as provided by relevant laws but subject to the Agreement as applicable and where permitted by relevant laws.

11.2       No restriction:  Nothing in an Agreement excludes, restricts or modifies any condition, warranty, statutory guarantee, right or remedy implied or imposed by common law, statute or regulation which cannot be lawfully excluded, restricted or modified, which may include the ACL and corresponding provisions and relevant laws of State or Territory legislation containing implied terms and/or statutory guarantees which operate to protect the purchasers of goods and services in various circumstances.

12.          GST

12.1       Fees exclusive of GST: Unless otherwise agreed by us in writing, fees with respect to any taxable supply are exclusive of GST.

12.2       GST payable in addition: You must pay to us all GST in addition to any other amounts payable by you to us, which will be payable by you when required to pay for the Goods and/or Services.

12.3       Issue of tax invoice: We will issue a tax invoice for any taxable supply to you, which will enable you, if permitted by the GST Law, to claim a credit for GST paid by you. 

12.4       Third party supplies: If GST is payable for a taxable supply by a third party, we will request that party to provide you with a tax invoice.

13.          Force Majeure

13.1       If a Force Majeure Event occurs, we may:

13.1.1   totally or partially suspend performance of a relevant Agreement during any period in which we may be prevented or hindered from performing due to that Force Majeure Event; or

13.1.2   elect to extend at our discretion the period for performance of an obligation under the relevant Agreement as is reasonable in all the circumstances.

14.          Assignment

We may without notice assign, transfer and/or sub-contract our rights and/or obligations (in whole or in part) under an Agreement. You may not assign, transfer, hold on trust or otherwise delegate any of your rights or obligations under an Agreement without our prior written consent.

15.          Governing law

Each Agreement is governed by the laws of the State of New South Wales.

16.          Dictionary + Interpretation

16.1       Personal pronouns:  Except where the context otherwise provides or requires:

16.1.1   the terms we, us or our refers to the Company; and

16.1.2   the terms you or your refers to the relevant Customer or Client.

16.2       Dictionary: In each Agreement, unless otherwise provided or the context requires, the following terms shall have their meaning as specified:

ACL means the Australian Consumer Law under the Consumer and Competition Act 2010 (Cth) as amended.

Agreement has the meaning given in clause 1.2.

Business Day means a day other than a Saturday, Sunday or public holiday in New South Wales, Australia.

Commencement Date means the date stated in the relevant Order Form, Proposal or other relevant document in respect of an Agreement.

Company means MITS Alloy Pty Limited (ACN 643 500 350) whose usual place of business  is at 122 Woodstock Street, Mayfield North, New South Wales 2304, Australia.

Customer or Client means any person or entity that places an Order with us, or accepts a Proposal, or agrees by conduct or by virtue of notice or otherwise to be bound by these Terms + Conditions.

Default Event means any one or more of the following events:

(a)          you cannot pay your debts as they fall due; or

(b)          you breach any provision of an Agreement (which breach, if capable of remedy, is not remedied within 5 Business Days of a request to do so); or

(c)          you are wound up, make a composition with creditors, appoint a liquidator, receiver or administrator or otherwise suffer an event which we consider compromises your credit-worthiness.

Default Interest means an amount payable under clause 5.1.

Force Majeure Event means circumstances beyond our reasonable control or responsibility, and shall include, but not be limited to compliance with any laws, regulations, orders, acts, instructions or priority request of any government, or any department or agency, computer downtime or failure, internet failure, failure of a utility service, failure of electrical supply, civil or military authority, acts of God, pandemics, acts of the public enemy, your acts or omissions, fires, floods, strikes, lockouts, embargoes, wars, labour or material shortages, riots, insurrections, defaults of our suppliers or subcontractors, delays in transportation, or loss or damage to Goods in transit.

Goods means goods supplied by the Company from time to time.

GST means a goods and services tax, or a similar value added tax, levied or imposed by the GST Law.

GST Law has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Invoice means a tax invoice issued in accordance with the GST Law and terms of the Agreement.

Order means an order for Goods and/or Services in writing received by us.

Proposal means a quotation, estimate or proposal by us for the supply of particular Goods and/or Services.

Services means services provided by us from time to time.

Terms + Conditions means the terms and conditions set out in this document.

Manufactured product means any aluminium product that we, (MITS Alloy) have fabricated in-house as a component of our trays and canopies.

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