1. DEFINITIONS

In these Conditions:
“Australian Consumer Law” means the provisions contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
“Conditions” means these terms and conditions of sale, as amended by MW Toolbox Manufacturing VIC from time to time.
“Corporations Act” means the Corporations Act 2001 (Cth).
“Customer” means any person who has placed an Order with MW Toolbox Manufacturing VIC or requests a quotation from MW Toolbox Manufacturing VIC or purchases Goods or Services from MW Toolbox Manufacturing VIC.
“Goods” means any goods requested by the Customer in an Order.
“GST” has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
“Order” means any order placed by a person for the supply of Goods and/or Services by MW Toolbox Manufacturing VIC.
“PPSA” means the Personal Property Securities Act 2009 (Cth).
“Proceeds” has the meaning given to it in the PPSA.
“Security Agreement” means the security agreement under the PPSA created between MW Toolbox Manufacturing VIC and the Customer by these Conditions.
“Security Interest” has the meaning given to it in the PPSA.
“Services” means any services requested by the Customer in an Order.
“MW Toolbox” means MW Toolbox Manufacturing VIC Pty Ltd ACN 623 476 406 trading as MW Toolbox.

2. CONDITIONS TO PREVAIL

Subject to clause 9.4 these Conditions constitute the terms and conditions upon which MW Toolbox will supply Goods and/or Services to the Customer and take precedence over any terms and conditions that may be contained in any Order or in any other document.

3. TERMS OF PAYMENT

• Unless otherwise agreed in writing by MW Toolbox, the Customer shall pay in full for all Goods and/or Services supplied by MW Toolbox prior to MW Toolbox dispatching these Goods and/or Services. All written agreements made separately to this, the Customer shall pay in full for all Goods and/or Services supplied by MW Toolbox by no later than the last day of the month following the date of MW Toolbox’s tax invoice. MW Toolbox may issue an invoice to the Customer on and from the date of an Order.
• If the Customer fails to make any payment when due, then without prejudice to any other provision of these Conditions or to any other remedy provided to MW Toolbox under these Conditions or otherwise, interest will accrue on the amount of the overdue payment at a rate equal to 10% calculated from the date payment was due, and all amounts owing by the Customer to MW Toolbox on any account will immediately become due and payable.

4. PRICES

• The price of Goods and/or Services will be the then current price charged by MW Toolbox as at the date of delivery of the Goods and/or Services, subject to any increases in accordance with clause 4.2.
• Unless already included in the price of Goods and/or Services, MW Toolbox may add to the price of any Goods and/or Services:
  • any amount that MW Toolbox is required to pay on account of any excise duty or any taxes or charges which may be established or levied by any governmental authority (domestic or foreign) thereupon or on any part thereof or in connection therewith:
    • any amount that MW Toolbox is required to pay on account of any GST which may be established or levied by a government agency.
    • any transportation, packing and delivery costs; and
    • an amount that reflects any relevant increase in exchange rates, transportation costs and the cost of labour and material
  • Any discounted price of Goods and/or Services provided by MW Toolbox in a period of a promotional event or non-promotional event are not valid in conjunction with additional offers at the time.

5. WARRANTY AND RETURNS OF GOODS

• Our Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable damage. You are also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.
• Subject to clause 5.1, further details about our 12-month warranty on Good and Services are set out in clause 9 below and on our website at https://www.toolboxmel.com.au/return-policy the terms of which are incorporated into these Conditions.

6. INSPECTION BY CUSTOMER

Subject to clause 5.1, the Customer must inspect all Goods and/or Services upon delivery of the Goods or completion of the Services, as the case may be, and must report in writing to MW Toolbox within 7 days of the date of delivery any alleged defects in Goods and/or Services with details of the relevant invoice number and a description of the alleged defects. Unless Goods and/or Services are so rejected within that 7 day period, such Goods and/or Services will be deemed to comply with the Specifications.

7. RETENTION OF TITLE

• Ownership of and title to the Goods remains with MW Toolbox and does not pass to the Customer until payment in full on any account relating to the sale of the Goods has been received by MW Toolbox.
• Until Ownership of and title to the Goods passes to the Customer:
• the Customer will hold such Goods as bailee for MW Toolbox;
• the Customer shall, at its cost, hold and store the Goods in such a way as to clearly identify them as the property of MW Toolbox and keep proper stock records and records of account in respect of the purchase, receipt, sale or other dealings in relation to the Goods;
• the Customer must not sell or purport or dispose of the Goods except in the ordinary course of its business;
• if the Goods or part thereof are sold by the Customer, the Customer must hold so much of the Proceeds of such sale as equals the unpaid price payable to MW Toolbox in a separate account, for MW Toolbox. MW Toolbox has a right to trace the Proceeds of any such sales in accordance with equitable principles;
• the Customer must not charge, encumber or create a Security Interest in the Goods or make any alterations to the Goods or do or allow anything to happen to the Goods that might contribute to the deterioration in their value or otherwise affect the interests of MW Toolbox;
• MW Toolbox may, without prejudice to any of its other rights, enter into the Customer’s premises (or any other place occupied by the Customer) to inspect, search for, remove and re-take, repossess or resume possession of any or all of the Goods and, the Customer hereby grants to MW Toolbox, its servants and agents, leave and an irrevocable licence to do so at any time without prior notice, using reasonable force if necessary, for that purpose if:
• there is any breach of any of these Conditions or any other contract between MW Toolbox and the Customer in respect of the Goods; or
• the Customer takes any action that could result in his being made bankrupt or arrangement under Part X of the Bankruptcy Act 1966(Cth) is invoked against the Customer or where the Customer is a corporation, if the customer is or becomes insolvent or an externally administered body corporate (within the meaning of the Corporations Act) or a controller (within the meaning of the Corporations Act) enters into possession or takes control of the Customer’s undertaking or property or any part thereof.
• MW Toolbox may recover the price of the Goods (plus interest properly payable) and may apply to wind up or bankrupt the Customer, if the Goods are not paid for within MW Toolbox‘s usual credit terms, notwithstanding that ownership of, and title in, the Goods has not passed to the Customer.
• The provisions of this clause 7 apply notwithstanding any arrangement under which MW Toolbox provides credit to the Customer. To the extent that there is any inconsistency, these provisions prevail.

8. PPSA

• These Conditions are an agreement that constitute a Security Agreement.
• The Customer acknowledges that MW Toolbox has a Security Interest in the Goods and any Proceeds even if the Goods have been sold or used in the ordinary course of its business until the Customer has paid for the Goods in full.
• The Customer must not do, or agree to do, any of the following:
  • create or allow another Security Interest to be created over the Goods without MW Toolbox’s prior approval;
  • lease, hire, or bail the Goods to another person;
  • otherwise part with possession of the Goods or any of them otherwise than by way of sale to a customer in the ordinary course of its business;
  • change its name, relocate its principal place of business, or change its place of registration or incorporation without giving MW Toolbox 14 days prior written notice.
• Neither the Customer nor MW Toolbox will disclose to an interested person (as defined in section 275(9) of the PPSA) or any other person, any information of the kind described in section 275(1) of the PPSA. The Customer must not authorise the disclosure of any information of the kind described in section 275(1) of the PPSA.
• The Customer must do anything (such as obtaining consents and signing documents) which MW Toolbox requires for the purposes of:
  • ensuring that MW Toolbox’s Security Interest in the Goods is enforceable, perfected and otherwise effective under the PPSA;
  • enabling MW Toolbox to gain first priority for its Security Interest in the Goods; and
  • enabling MW Toolbox to exercise rights in connection with the Security Interest in the Goods.
• To the extent permitted by the PPSA for the purposes of sections 115(1) and 115(7) of the PPSA:
• MW Toolbox needs not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4) and 137; and
• sections 142 and 143 are excluded.
• The Customer waives its right to receive a verification statement under section 157 of the PPSA.
• The Customer agrees to pay all expenses (including legal expenses on a full indemnity basis) arising from the collection of overdue monies or the registration, maintenance, enforcement or discharge of MW Toolbox’s Security Interest in the Goods.

9. LIABILITY OF COMPANY

• To the extent permitted by law, MW Toolbox will not be liable in respect of any loss or damage (including consequential loss or damage), howsoever caused (whether by negligence or otherwise), which may be suffered or incurred or which may arise directly or indirectly or in connection with the Goods or Services, howsoever acquired, including where any person has:
  • modified or in any way altered the Goods or changed the formulation or make-up of the Goods;
  • failed to use the Goods in accordance with the instructions or recommendations of MW Toolbox published from time to time in connection with the use of the Goods;
  • failed to use the Goods in accordance with any applicable laws or regulations.
• To the extent permitted by law, MW Toolbox will not be under any liability in respect of any loss or damage (including consequential loss or damage) however caused (whether by negligence or otherwise) which may be suffered or incurred or which may arise directly or indirectly in respect of any technical advice or assistance given or rendered by it to the Customer whether or not in connection with the manufacture, preparation or supply of Goods and/or Services to the Customer, provided that MW Toolbox has provided such technical advice or assistance with due care and skill.
• Where any applicable legislation implies any term, condition or warranty into the relationship between MW Toolbox and the Customer or into these Conditions or a contract of sale between MW Toolbox and the Customer in relation to the sale or supply of Goods and/or Services, or otherwise gives the Customer a particular remedy against MW Toolbox and that legislation or any legislation avoids or prohibits provisions excluding or modifying the application of, or exercise of, or liability under, such term, condition, warranty or remedy, then that term, condition, warranty or remedy is deemed to be included in these Terms and Conditions of Sale, or, as the case may be, apply to that relationship. However, MW Toolbox’s liability for any breach of such term, condition or warranty or under such remedy, will be limited, at MW Toolbox’s option, in any one or more of the ways permitted by that legislation including, where so permitted:
  • if the breach relates to any Goods, to:
• the replacement of those Goods or the supply of equivalent goods;
• the repair of those Goods;
• the payment of the cost of replacing those Goods or acquiring equivalent goods; or
• the payment of the cost of having those Goods repaired; and
  • if the breach relates to any Services to:
• the supplying of those Services again; or
• the payment of the cost of having those Services supplied again.
  • If there is any inconsistency between the express terms of these Conditions and any term, condition, warranty or remedy deemed to be included in these Conditions pursuant to clause 3, that deemed term, condition, warranty or remedy will prevail to the extent of the inconsistency.
  • The descriptions, illustrations and other material contained in any catalogue, price list, brochure, leaflet or other material provided by or on behalf of MW Toolbox does not form part of these Conditions or any contract between MW Toolbox and the Customer for the supply of Goods or Services and does not amount to any representation or warranty (whether collateral thereto or otherwise), nor does the use of such material constitute a contract of sale by description. All Goods and Services supplied by MW Toolbox will be in conformity with MW Toolbox’s standard commercial specifications at the time of supply, subject to MW Toolbox’s right without notice to incorporate such minor modifications thereto as it thinks fit or any modifications of whatever nature necessary to comply with any relevant law.

10. PROPERTY AND RISK

Risk in Goods will pass to the Customer immediately upon delivery of the Goods by MW Toolbox.

11. ACKNOWLEDGEMENTS

The Customer acknowledges that:

• it has not relied on any representations made by MW Toolbox as to the suitability of the Goods for any specific purpose; and
• it is its responsibility to make its own enquiries and investigations as to the suitability of the Goods for any particular purpose.

12. FORCE MAJEURE

MW Toolbox will not be liable as a result of delay in performance or of non-performance of the Conditions caused by circumstances beyond its control, including but not limited to acts of God, fire, explosion, flood, machinery or equipment breakdown, accident, war, government action, riots, strikes, lockouts, industrial action, shipping delays or delays by suppliers or contractors due to causes beyond the control of those suppliers or contractors.

13. SEVERANCE

If it is held by a court of competent jurisdiction that:

• any part of these Conditions is void, voidable, illegal or unenforceable; or
• these Conditions would be void, voidable, illegal or unenforceable unless any part of these Conditions was severed from these Conditions, that part will be severed from and will not affect the continued operation of the remainder of these Condition

14. WAIVER

No waiver by either party of any breach of any of the terms and conditions contained in these Conditions will be effective unless given in writing and no waiver will be construed as a waiver of any subsequent breach of the same or any other terms or conditions of these Conditions.

15. GOVERNING LAW

These Conditions are governed by and construed in accordance with the laws in force in the State of Victoria and MW Toolbox and the Customer submit to the jurisdiction of the courts of that State.

16. PRIVACY ACT

• The Customer is informed that personal information (including credit-related information) relating to the Customer might be disclosed by MW Toolbox to a credit reporting body. The credit-related information that may be disclosed includes details of any overdue payments, payment arrangement defaults or serious credit infringements (as that term is defined in the Privacy Act 1988(Cth).
• The Customer agrees:
• that MW Toolbox may obtain from a business which provides information about the commercial credit worthiness of persons, information concerning their respective commercial activities or commercial credit worthiness and using that information for the purposes of assessing this application;
• that any credit reporting body may give to MW Toolbox (a credit provider) any credit report or record or information that has any bearing on the credit worthiness, credit standing, credit history or credit capacity of the Customer for any purpose permitted by law including:
• to assess an application by the Customer for credit;
• to notify other credit providers (either directly or by notification to a credit reporting body) of a default by the Customer;
• to exchange credit-related information with other credit providers as to the status of the Customer’s account where the Customer is in default with another credit provider; and
• to assess the credit worthiness of the Customer at any time.
• Further details regarding how we collect, use, store and disclose credit related information as well as details regarding our recognised dispute resolution scheme is contained in our Privacy Policy, a copy of which is available here https://www.toolboxmel.com.au/privacy-policy/