This document details the conditions of trade when doing business with MantaMESH Australia. Unless specified otherwise by MantaMESH Australia these conditions of trade shall apply.
1. Definitions
1.1 In these conditions:
1.1.1 Company means MantaMESH Pty Ltd (ACN 082 565 357);
1.1.2 Customer means the person, firm or company ordering or buying the Goods from the Company, including through the MantaMESH portal;
1.1.3 The MantaMESH portal means the online ordering system operated by the Company allowing the Customer to purchase Goods from the Company; and
1.1.4 Goods means all goods or services offered for sale by the Company to the Customer.
2. Application of these Conditions of Trade
2.1 These conditions of trade govern all supplies of Goods by the Company to the Customer, including when the Customer places an order using the MantaMESH portal. All other conditions, express or implied, are excluded to the fullest extent permitted by law, including any terms and conditions sought to be imposed by the Customer.
2.2 These conditions take precedence over any conditions set out in any communication or document of the Customer regardless of the date or time of such communication or document, unless otherwise agreed by the Company in writing.
3. Offer and acceptance
3.1 Any marketing material, pricing, quotation or tender given to the Customer by the Company, and the availability the MantaMESH portal, is not an offer from the Company to sell the Customer Goods. It is merely an invitation for the Customer to place an order with the Company.
3.2 The Company reserves the right to correct any obvious errors in any marketing material, price list, quotation or tender, whether technical or otherwise. Furthermore the Company reserves the right to make any changes to the specification of the Goods which are required to conform to any applicable statutory requirements or, where the Goods are to be supplied to the Customer’s specification, which do not materially affect their quality or performance.
3.3 An order placed by the Customer is not binding until accepted by the Company. The Company is not obliged to accept any order from the Customer. The Company may accept the order by written confirmation or by delivery and in the case of delivery, only as to the portion of the order actually delivered. If an order is accepted, the Company will carry out the order and the Customer must pay for the Goods in accordance with these conditions of trade.
4. Price
4.1 The price payable by the Customer for each of the Goods supplied is the price set out in any quotation or tender, as at the date the order is accepted by the Company, unless otherwise agreed.
4.2 Prices do not include GST, any shipping charges or costs of insurance or other Government duties or imposts. Each of these is payable by the Customer and if paid by the Company, the Customer must reimburse the Company on demand.
4.3 Unless otherwise stated, prices are in AUD.
4.4 The Company reserves the right, by giving notice to the Customer at any time before delivery, to vary the price of the Goods to reflect changes in the costs to the Company which is due to any external factors beyond the control of the Company including but not limited to foreign exchange fluctuation, currency regulation, alteration of duties, changes in the cost of materials or other costs of manufacture.
5. Payment
5.1 Unless the Customer has written approval for credit, all orders must be paid in advance before order acceptance.
5.2 Credit terms are subject to an application process to assess the credit worthiness of the Customer and are granted at the sole discretion of the Company.
5.3 Where the Company has granted credit to the Customer the terms of payment are strictly 28 days from the invoice date.
5.4 If any payment amount the Customer owes to the Company is not paid by the due date then, without prejudice to any other right or remedy available to the Company:
5.4.1 All money the Customer owes to the Company becomes immediately payable despite any previously agreed credit terms or conditions;
5.4.2 The Company may suspend or cancel any undelivered orders to the Customer;
5.4.3 The Company may charge the Customer interest on any amount outstanding, commencing on the day after the due date for payment and ending on the date when the payment is received by the Company. The interest rate charged is to be calculated daily at the rate of five percentage points above the official base interest rate per annum; and
5.4.4 The Customer will pay all collection costs including but not limited to bank and legal expenses and debt collection commissions incurred in obtaining payment for any amounts owing to the Company in respect of the Goods.
5.5 The granting of any credit by the Company to the Customer will be at the Company’s absolute discretion and may be revoked at any time whereupon any and all amounts owing to the Company must be paid immediately.
6. Delivery and shipping terms
6.1 Unless otherwise agreed by the Company in writing or in the Company’s order acceptance, delivery will be Free Carrier (FCA Incoterms 2020).
6.2 Any times quoted for delivery are to be treated as estimates only, involving no contractual obligation.
6.3 The Company reserves the right to charge the Customer for storage if the Goods are not collected by the Customer within 5 working days of the notice of Dispatch.
6.4 In the event of any delay to the supply of Goods caused by something outside the Company’s reasonable control including but not limited to government directives, global pandemics, accidents, strikes, transport and shipping delays or stock shortages (force majeure):
6.4.1 the Company will not be liable for any damage or loss caused; and
6.4.2 The Company may rescind the relevant order.
6.5 Additional costs associated with delays in receiving the goods including but not limited to delays on site and demurrage will be charged to the Customer.
7 Passing of Risk
7.1 Risk in each order passes from the Company to the Customer at the time the Goods are Dispatched. (FCA Incoterms 2020).
8. Loss or Damage in Transit
8.1 The Company is not responsible for any loss or damage to Goods in transit, but will render all reasonable assistance to the Customer in lodgement of claims on carriers in respect of such loss or damage.
8.2 Unless otherwise agreed in writing, the Company does not effect insurance on any Goods forwarded from the Company to the Customer, from the Company’s premises or from the Company’s suppliers.
9. Retention of Title
9.1 The Company remains the owner of all Goods the Company supplies to the Customer or on behalf of the Customer until the Customer has paid all amounts which are owing to the Company by the Customer.
9.2 Until the Customer becomes the owner of the Goods in accordance with clause 9.1:
9.2.1 The Customer holds the Goods as the Company’s agent and bailee and the Customer owes the Company a fiduciary duty in respect of the Goods;
9.2.2 The Customer must store them on the Customer’s premises separately from the Customer’s own goods or goods of any other person and in a manner which makes them readily identifiable as the Company’s Goods;
9.2.3 The Company may terminate the Customer’s right to resell the Goods immediately by written notice delivered to the Customer’s place of business; and
9.2.4 The Company may enter, by the Company’s employees or agents, on any premises where the Goods are situated, or where the Company reasonably believes them to be situated, and retake possession of the Goods, if the Customer defaults in paying any part of the price or associated charges for them or the Customer becomes or resolves to become subject to any form of insolvency or administration.
9.3 The Customer may re-supply the Goods to any person or entity before the Customer has paid all amounts which are owing to the Company provided that:
9.3.1 The re-supply is in the ordinary course of the Customer’s business;
9.3.2 All money received by the Customer for the Goods will be held by the Customer on trust for the Company; and
9.3.3 The Customer must either: (a) Pay the money immediately when it is received by the Customer; or (b) Deposit the money into a bank account and hold it as trustee for the Company.
9.4 The Customer’s permission to enter premises under clause 9.2.4 is irrevocable and the Customer agrees that the Company’s employees or agents may enter those premises at any reasonable time after default of payment by the Customer or before default if the Company believes a default is likely.
9.5 The Company will not be liable, in contract or in tort or otherwise, for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of any action taken under this clause 9.
10. Cancellation of Orders and Returns
10.1 The Company is not obliged to accept the cancellation of orders or the return of Goods by the Customer.
10.2 Orders cannot be cancelled except with the Company’s prior written approval and upon terms that will indemnify the Company against all losses and including adequate compensation.
10.3 Orders or balance of orders may be cancelled by the Company if the Customer fails to adhere to the terms of the contract or if the Company suspects the credit worthiness of the Customer.
11. Sale by Specification
11.1 The Customer must ensure that the Goods are suitable for the purpose intended before using the Goods for those purposes. Except to the extent expressly specified by the Company in writing, the Company sells the Goods by specification and the Customer decides for what purpose to use or re-supply the Goods. To the extent the Company expressly specifies in writing a purpose for which the Goods are suitable, the Company sells the Goods for use only as specified for that purpose. The Company is not liable for any loss or damage caused by incorrect use of the Goods.
11.2 The Customer indemnifies the Company against all claims, demands, damages, penalties, costs, charges, expenses and loss to which the Company may become wholly or partially liable where the Goods to be supplied are in accordance with the Customers specification, or at the Customer’s request, and involving an infringement or alleged infringement of any patent, copyright, design, trade mark or other industrial or intellectual rights.
12. PPS Law
12.1 This clause 12 applies to the extent that these conditions of trade provide for or contain a ‘security interest’ for the purposes of the Personal Property Securities Act 2009 (Cth) (“PPS Law”) (or part of it).
12.2 The security interest granted to the Company is a ‘purchase money security interest’ (“PMSI”) to the extent that it can be under section 14 of the PPS Law.
12.3 The Customer agrees that all collateral which is at any time subject to the Company’s security interest secures its own purchase price.
12.4 The Customer agrees, in addition, to the extent possible under PPS Law, that all collateral which is at any time subject to the Company’s security interest secures as a PMSI the purchase price of all collateral supplied to the Customer
12.5 This clause 12 does not limit what other amounts are secured under these conditions of trade.
12.6 The parties agree that payments will be applied in the following order:
12.6.1 to obligations that are not secured, in the order in which those obligations were incurred;
12.6.2 to obligations that are secured, but not by PMSIs, in the order in which those obligations were incurred;
12.6.3 to obligations that are secured by PMSIs, in the order in which those obligations were incurred.
12.7 The Company may register its security interest as a PMSI. The Customer must do anything (such as obtaining consents and signing documents) which the Company requires for the purposes of:
12.7.1 ensuring that the Company’s security interest is enforceable, perfected and otherwise effective under the PPS Law;
12.7.2 enabling the Company to gain first priority (or any other priority agreed to by the Company in writing) for its security interest; and
12.7.3 enabling the Company to exercise rights in connection with the security interest, and to assure performance of its obligations. The Customer hereby gives the Company an irrevocable power of attorney to do anything the Company considers the Customer should do under these conditions of trade.
12.8 The rights of the Company under these conditions of trade are in addition to and not in substitution for the Company’s rights under other law (including the PPS Law) and the Company may choose whether to exercise rights under these conditions of trade, and/or under such other law, as it sees fit.
12.9 In respect of Goods that are not used predominantly for personal, domestic or household purposes, the following provisions of the PPS Law do not apply and, for the purposes of section 115 of the PPS Law are “contracted out” of these conditions of trade:
12.9.1 sections 95 (notice of removal of accession to the extent it requires the Company to give a notice to the Customer), 96 (retention of accession), 125 (obligations to dispose of or retain collateral);
12.9.2 section 130 (notice of disposal to the extent it requires the Company to give a notice to the Customer);
12.9.3 section 132(3)(d) (contents of statement of account after disposal);
12.9.4 section 132(4) (statement of account if no disposal);
12.9.5 section 135 (notice of retention);
12.9.6 section 142 (redemption of collateral); and
12.9.7 section 143 (re-instatement of security agreement).
12.10 The following provisions of the PPS Law confer rights on the Company:
12.10.1 section 123 (seizing collateral);
12.10.2 section 126 (apparent possession);
12.10.3 section 128 (secured party may dispose of collateral);
12.10.4 section 129 (disposal by purchase); and
12.10.5 section 134(1) (retention of collateral) The Customer agrees that in addition to those rights, the Company shall, if there is default by the Customer, have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any Goods, not only under those sections but also, as additional and independent rights, under these conditions of trade and the Customer agrees that the Company may do so in any manner it sees fit including (in respect of dealing and disposal) by private or public sale, lease or licence.
12.11 The Customer waives its rights to receive a verification statement in relation to registration events in respect of commercial property under section 157 of the PPS Law.
12.12 Solely for the purpose of allowing the Company the benefit of section 275(6) of the PPS Law, the parties agree that neither of them must disclose information of the kind that can be requested under section 275(1) of the PPS Law.
13. Warranty and Limitation of Liability
13.1 Terms, conditions, warranties and guarantees implied by law which cannot be excluded, restricted or modified apply to the supply of the Goods to the extent required by that law.
13.2 The Company excludes to the extent permitted by law all other terms, conditions, warranties and guarantees which might be implied into a contract by the Customer.
13.3 The Customer does not rely on any representation, warranty, guarantee or other provision made by or for the Company which is not expressly stated in any contract between the Company and the Customer.
13.4 To the extent permitted by law, the Company’s liability for a breach of contract, breach of statutory duty, negligence or other tort in relation to the supply of the Goods, is limited at the Company’s option to (a) the replacement of the Goods or the supply of equivalent Goods; (b) the repair of the Goods; (c) the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or (d) the payment of the cost of having the Goods repaired.
13.5 Except as otherwise provided in this clause 13, the Company will not be liable for any indirect or consequential loss or damage, loss of profit or loss of revenue whether suffered or incurred by the Customer or another person or legal entity, irrespective of whether such loss or damage arises directly or indirectly from the Goods supplied by the Company to the Customer.
14. Miscellaneous
14.1 These conditions of trade may be changed by the Company from time to time by the Company giving notice of the change to the Customer. Notice is deemed given (whether or not actually received) when the Company does any of the following: (a) sends notice of the change to the Customer at any address (including an email address) supplied by the Customer; (b) or publishes the amended terms and conditions on the Company’s website or on the MantaMESH portal.
14.2 In these conditions of trade: (a) a reference to a statute or regulation includes all statutes and regulations consolidating or replacing it; and (b) a reference to a statute includes all regulations issued under that statute.
14.3 These conditions of trade are governed by the laws in force in the State of New South Wales, Australia. Each party submits to the non-exclusive jurisdiction of the courts of that state.
14.4 If any of the provisions of these Conditions is null and void or should otherwise not be binding, all the other provisions will continue to apply and the provision concerned will be applied as much as possible in accordance with its import without violating the law.