Terms and Conditions
In consideration of the payments made or to be made by you (the “Customer”) under the agreement between yourselves and Mobile Bins Australia Pty Ltd ACN 066 714 145 (MBA) in respect to MBA supply of Goods to you, it is hereby agreed :
a) If you become insolvent within the meaning of Section 95A of the Corporations Act, or a receiver/administrator, receiver/administrator and manager, official manager or provisional liquidator is appointed to you, all rights hereby licensed or otherwise granted to you by MBA revert to MBA.
b) These terms and conditions are to be read subject to mandatory provisions of legislation of the Commonwealth of Australia or of one or more of the States or Territories, in so far as such provisions are applicable. The invalidity of any clause, or other part of a clause, shall not affect any other clause, or part of the clause.
c) MBA reserves the right to amend and or change the Terms and Conditions of Trading giving reasonable notice.
d) Any amendment to these terms not consented to in writing by MBA is void.
Quotations and Prices are based on the current cost of raw materials, production, and unless otherwise agreed, are subject to amendment by MBA before or after acceptance of the quotation to meet any changes in such costs between the date of quotation and the date of delivery of the order. A quotation shall be deemed by MBA as having been accepted where a signed purchase order has been received from the customer either in the form of
a) A customers standard purchase order or;
b) An MBA issued quotation which has subsequently been returned and acts as a purchase order or;
c) A combination of an MBA quotation and a customers purchase order. MBA shall not be liable for customer(s) costs where non acceptance of delivery of goods or services is purported to have occurred after MBA receipt of quotation(s) / purchase order(s) as detailed in this clause.
3. GOODS AND SERVICES TAX (GST)
Definition of ‘Goods’ – Any rendering of service or goods by MBA and subsequently delivered to the customer under these terms and conditions
a) MBA shall be entitled to charge the amount of any GST payable, whether or not included in the quotation.
b) Any quotation or price quoted that does not expressly state the GST component of the sale, excludes GST and GST shall be applied on top of that quoted price.
c) MBA shall provide you with a Tax Invoice and Australian Business Number [ABN] in respect to the supply of the Goods.
4. OWNERSHIP OF GOODS –
4.1 Title in Goods Property in the goods delivered to the customer shall not pass to the customer until such time as MBA has received payment in full of all monies owing to MBA including but not limited to monies owing in respect to the goods specified on any particular invoice to which these terms and conditions apply.
4.2 Licence to Enter Premises The customer hereby irrevocably empowers and gives to MBA a license in addition to and without the limitation of any other right MBA may have to enter without notice upon premises where the goods are located and to take possession of the same and to thereafter to deal with the goods as its own. The licence endures as long as any monies whatsoever are owed by the customer to MBA. If the customer has mixed the goods with any other goods or products then the licence granted hereunder permits MBA to take reasonably, steps to remove from such mixed products any discrete component(s) identifiable as the property of MBA pursuant to these terms and conditions
4.3 Risk in the Goods Risk in the Goods will pass to the Customer at the time of delivery of the Goods and the Customer will be wholly responsible for the Goods at that time.
4.4 Deemed Purchase of Goods The Customer shall be deemed to have purchased the Goods if, unless within 7 days (or such other period as MBA may stipulate from time to time) of delivery the Customer has justifiable reason IE. That the goods were not as specified on the customers order, and advised in writing that delivery of the Goods cannot be accepted.
4.5 Price Excludes Delivery Charges Unless otherwise specified, the price quoted excludes the cost of delivery of the Goods to the Customer’s delivery location, which shall be additional to the quoted price quotation.
5. CONTINGENCY CHARGES The customer further agrees that in the event of their breach of any of the terms of this agreement including a failure to make payment of any monies due to MBA pursuant to this agreement that the customer shall pay to MBA all collection costs, commissions, fees, charges and expenses including any and all legal costs on a solicitor and own client basis incurred by MBA of and incidental to this agreement or any matter arising out of or incidental to this agreement or the customers performance or failure to perform any of the terms of this agreement
a) Payment is deemed to have occurred once funds are received into MBA account and this can be verified by MBA.
b) If you hold a 30-Day Trading Account, then you are required to remit payment within 30 days of issue of invoice. Unless otherwise stated by MBA in writing, no discount shall be granted.
c) If you do not hold a 30-Day Trading account then you must remit payment for goods PRIOR TO PICK UP OR DESPATCH OF GOODS. MBA accepts no liability for costs associated with delays caused by inability to despatch goods should payment not be received.
d) In the case of the first transaction between the parties, you must pay MBA the value of your order on acceptance of the quotation or the lodging of your order (whichever shall be the later) unless otherwise agreed by MBA.
e) MBA accepts most major credit cards including Amex, VISA, and MasterCard and shall charge up to 5% surcharge in such instances, but shall advise the customer of same prior to processing payments to credit card(s).
f) In the event of non payment of invoice, MBA reserves the right to on-charge 2% of the amount owing [exclusive of GST] per month at its discretion for any invoice that is not paid in line with the agreed payment terms noted in these terms and conditions.
7. USING A THIRD PARTY LENDER(s) Third party lenders hold no binding contract to trade with MBA. Definition of a ‘third party lender’ is any form of third party entity who may be providing finance, be a financier or lender who may provide funding to the customer or monies of any kind whatsoever not associated with the customer directly that the customer intends using for payments for goods supplied by MBA, should those lent funds not be the funds of the customer. If the customer wishes to utilise any form of lending institution in order to remit payment on their behalf for any and all goods and services supplied by MBA, then the customer is bound to comply with MBA lending institution stipulates which are –
a) Goods shall be Despatched only after the lending institution has released payment in full for the goods
b) Customer must indicate a wish to use a lending institution for payment, at time of or prior to placement of purchase order or acceptance of MBA quotation.
c) A letter or intention to settle all outstanding monies in full in favour of MBA drafted by the lender may be accepted in certain cases to allow for release of goods, to the ultimate discretion of MBA.
d) MBA customers holding trading accounts who wish to utilise the services for payment of a lending institution must do so with a view to remittance of all outstanding monies owing to MBA within the payment terms detailed in item
8. EXPORTS Payment for goods ordered by the customer must be made prior to release / despatch of order via electronic transfer of funds or an irrevocable letter of credit or bank guarantee in favour of MBA as approved by MBA. Goods shall not be released for lading & shipment until MBA has approved the method and receipt of payment accordingly, unless alternative contract containing guarantee of payment have been entered into by MBA and the customer. The customer will be responsible for all shipping, insurance and delivery charges. MBA reserves the right to decline supply overseas where method of payment is not detailed and or accepted to the ultimate discretion of MBA.
9. DESIGN DESCRIPTION AND TECHNICAL DATA
a) MBA reserves the right to supply alternative product of like dimensions and quality where a particular product is unavailable in sufficient volumes for any reason. Such alternative product will carry identical warranty protection and pricing as the original product. In the event that MBA exercises its right under this clause to supply alternative product, it shall assess the magnitude of the demand or urgency of supply and may unilaterally elect not to notify the customer prior to delivery of supplied goods. Where the original product is not presently available but may become available after a period of delay, then MBA will inform the customer. Should the customer not observe ‘Claims’ [Clause 11], the customer will be deemed to have accepted delivery of the alternative product. In no case is the customer entitled to cancel its order by virtue of MBA exercising its rights under this clause, nor can the customer hold MBA liable for any consequential loss arising from this.
b) Whilst every effort is made to ensure accuracy, the descriptions, illustrations and materials contained in any catalogue, price list, brochures, leaflets or other descriptive matter provided by or on behalf of MBA represent the general nature of the items described therein and shall not form part of any order or agreement or amount to any representation or warranty. MBA reserves the right to modify design of goods without notice.
c) Should you, the customer, refuse to accept delivery of alternatively supplied product then MBA can recover any loss arising from your failure to accept delivery of such alternative product.
10. WARRANTY 10.1 General Warranty
a) Subject to such statutory warranties as cannot validly be excluded, all terms and conditions that are capable of exclusion and not expressly mentioned in this warranty are expressly excluded and shall not operate to injure MBA.
b) Liability for breach of a condition or warranty implied into this contract by the Trade Practices Act, 1974, other than a condition implied by Section 74H, is limited to any one of the following, as determined by MBA – i. the replacement of the Goods or the supply of equivalent Goods; or ii. the repair of the Goods within 14 days of inspection by MBA, by MBA; or iii. the payment of the cost of replacing the Goods of acquiring equivalent Goods; or iv. the payment of the cost of having the Goods repaired within 14 days of inspection by MBA by a third party.
c) Pursuant to Section 68A of the Trade Practices Act, 1974, this clause applies in respect of any of the Goods supplied under this contract which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, provided that this Clause will not apply if the Customer establishes that reliance on it would not be fair and reasonable.
10.2 Warranties Defined
Our Warranties are designed to accommodate the specific applications that MBA goods may be used accurately and appropriately. MBA will in all cases use its best endeavours to honour all legitimate warranty claims in favour of the customer, subject to the criteria below – Plastic Parts MBA warrants all ‘commercially classified’ plastic parts or plastic components of its Goods from failure in normal and which are regular use where such failure is due to proven defects in material or manufacturing for a period of 2 years in most commercial applications, from the date of purchase. Goods that are for domestic use in municipal situations, and or by the direct public MBA offers a warranty of 10 years from the date of manufacture.
See also ‘domestically classified’ plastic parts (see Commercial vs. Domestic use classification below). Other Components / Parts MBA warrants each and every one of the other parts or components of its Goods from failure in normal and regular use where such failure is due to defects in material for a period of 3 years, from the date of purchase. Workmanship MBA warrants its workmanship in respect to its Goods from failure in normal and regular use where such failure is due to defects in workmanship for a period of 1 year, from the date of purchase. Weather MBA warrants that the products shall not be subject to material defects caused by ultraviolet radiation, temperature variations, humidity or the interaction of the forgoing, for a period of 5 years from the date of purchase. Strength & Tolerance All MBA Goods possess working load weight ratings applicable to all plastic parts and other components. In most cases this is clearly printed on the goods prominently in view or can for other components / parts may be determined by virtue of the overall working load weights for those goods. A safe working load [SWL] may also be in affect and or be governed by national standards or legislation depending on the country, state or territory in which the goods are being used.
Overloading Overloading beyond safe OHS guidelines is inherently dangerous to both the public, the user and collector of waste in which the goods are used. It is the sole responsibility of the customer to educate its clients of the potential hazards of overloading, having knowledge of the known strengths and tolerances of the goods.
Where MBA determines that overloading has occurred and or has contributed to or the cause of damage, or breakage of goods, all warranties immediately are immediately void. Notification & Inspection This warranty is not valid unless the Customer
i. notifies its warranty claim to MBA within the relevant warranty period; and
ii. either returns or makes the relevant parts or components available for inspection by MBA
iii. In order to determine a warranty claims validity, MBA may require expert determination advice from a third party supplier of goods to perform inspection of goods claim of which MBA would then make final determination.
Adjustment for Usage Where a claim under this warranty:
a) stems from defects in material; and
b) is made more than 1 year after purchase of the relevant Goods, the Customer must pay to MBA a contribution calculated according to the following formula : a = b x c d whereas a = contribution payable by the Customer b = the then current price of the relevant Goods/component c = the number of months expired since the date of purchase of the relevant goods/component d = the number of months in the relevant warranty period.
Commercial vs. Domestic use classification Where MBA goods are used in ‘commercial’ applications said goods are reinforced and strengthened in a manner befitting such use. MBA further designates goods as being commercial ‘grade’. MBA goods may in cases be designed for ‘domestic’ purposes in which case the domestic goods may not perform in such a robust manner due to the lesser wear and tear protection in domestic applications as that of commercial grade goods.
The two categories are –
a) domestic [municipal or general public] applications
b) commercial [commercial and industrial – high wear] applications MBA shall consult with the customer and recommend goods that are suitable for either or both uses, based on the proposed usage criteria provided by the customer. It is the exclusive responsibility of the customer to provide details of the intended purpose of the purchased goods, from which MBA makes its recommendation. Where MBA is able to determine that goods not fit for commercial purposes are used by the customer for commercial purposes IE that increased stresses are being placed on the goods by virtue of the increased wear & tear of commercial applications, MBA reserves the right to diminish the warranty statement by up to 50% or entirely, making the specific warranty for plastic parts used in commercial application to 5 years, or void all warranties where inappropriate use can be determined. MBA conversely may grant an extended warranty in excess of 5 years to its ultimate discretion having regard to the criteria outlined above. Domestic applications shall confirm to item 10.2 ‘Warranties Defined’ Relevant Standards A/S & other Where relevant Australian Standards [A/S] apply to goods sold to the customer, these may contain specific information pertaining to load limits, designated weights during tipping and use of goods where hydraulic lifting equipment may be involved. MBA reserves all rights to deny warranty claims, where relevant standards have been ignored by the customer which has led to or caused damages to the goods.
10.3 Exclusions from Warranty Hydraulic Lifting Equipment
This warranty does not extend to or cover any damage to MBA Goods caused by the use of any hydraulic lifting system or mechanism unless:
a) MBA approved that system or mechanism beforehand in writing; and
b) All directions and requirements of MBA in connection with the use of that system or mechanism were satisfied. Parts Manufactured by Third Party This warranty does not extend to any parts or components of MBA Goods manufactured by third parties provided that MBA will use its best endeavours to pass on the benefit of any claim made by MBA and accepted by any such third party under any warranty given by the third party. General Exclusion This warranty does not cover damage to MBA Goods due to accident, misuse, abuse, environmental causes (except where stipulated), normal wear and tear, overloading, alterations and failure to follow approved lifting, handling, manning, installation, maintenance and operating instructions. Consequential Damage MBA’s liability to any Customer under this warranty is limited to the replacement or repair of defective Goods as contemplated in clause 9.1 and MBA shall not under any circumstances be liable for consequential, special or incidental damages resulting from the purchase or use of any MBA Goods.
11. FORCE MAJEURE
Contracts and deliveries may be suspended by MBA in the event of any strike, lockout, trade dispute, fire, tempest, brouhaha, breakdown, riot, theft, crime, civic disturbance, act of God, war, legislation, force majeure, the inability of MBA to procure necessary materials or Goods thereby preventing or retarding performance of the contract of delivery of Goods and no responsibility shall be attached to MBA for any delay, default, loss or damage due to any of the above causes or to any other cause beyond the control of MBA.
12. CLAIMS It is the exclusive responsibility of the customer to verify at time of delivery that they accept the goods as correct and in good order, or notify of any irregularity(s) not consistent with the customers purchase order. Unless claims arise that refer to ‘Warranty’ issues (see item 8 Goods Warranty), the following shall constitute the basis for handling of claims : a) The Customer will be deemed to have accepted the goods as being in accordance with its order unless it notifies MBA in writing of its claim within 7 days of receipt of the goods. b) No return of allegedly defective or faulty goods will be accepted by MBA unless MBA has issued prior written authorisation for the return.
13. ACCEPTANCE Acceptance of MBA’s quotation shall be an acceptance of these terms and conditions. Inconsistencies arising between these terms which may be introduced by other terms and conditions contained in the Customer’s order shall be null and void unless otherwise expressly agreed / accepted by MBA in writing.
14. GENERAL LIEN MBA shall, in respect of all unpaid debts due from the Customer, have a general lien on all Goods and property ordered by the customer but in possession of MBA and shall be entitled, on the expiration of 30 days (or such other period as MBA may stipulate), written notice to the Customer that MBA is to dispose of such Goods or property as it thinks fit and to apply the proceeds towards such debt.
15. WAIVER Notwithstanding that MBA might agree in respect of any particular transaction either expressly, or by implication, to waive any one or more of these terms and conditions, such agreement shall in no way release the Customer from any other obligation or requirement set out herein