1. Application of these Terms and Conditions
(a) These terms and conditions of sale issued 01 November 2016 replace any previous terms and conditions of sale published, issued or used by Milestone LED Sign Solutions (ABN 088 050 325 801) (“Milestone”).
(b) All tenders, proposals and quotations issued by, all orders placed with, and all arrangements entered into by Milestone for the supply, provision and/or delivery of goods and/or services are subject to these Terms and Conditions unless specified in writing between Milestone and other party being a person, firm or company who or which is seeking to purchase from Milestone or to whom or to which Milestone’s quotation is addressed (“Purchaser”).
(c) An agreement between Purchaser and Milestone for supply of and payment for goods and/or services (“Agreement”) will be upon these Terms and Conditions to the exclusion of all other terms and conditions and all prior oral or written representations.
(d) Each order or acceptance of quotation for goods or services will be deemed to be an offer by the Purchaser for goods or services under these Terms and Conditions.
(e) Agreement is made when an order is accepted by Milestone. No order or offer shall be binding on Milestone, and no Agreement formed, until accepted by Milestone in writing or in such manner as Milestone in its sole discretion determines.
(f) Unless previously withdrawn all quotations are valid for thirty (30) days from the date shown thereon, but are not to be construed as an obligation to sell and no Agreement or contractual relationship arises there from until the Purchaser’s order has been accepted by Milestone.
2. Prices
(a) Prices quoted by Milestone for the supply of goods & services:
(i) are ex Milestone warehouse Sydney. Unless specifically stated otherwise in writing all freight, delivery and insurance charges to the Purchaser’s premises or other address specified by the Purchaser are for the account of the Purchaser;
(ii) exclude goods and services tax (“GST”) except where otherwise stated and Milestone will invoice Purchaser, and Purchaser must pay to Milestone, the valid GST amount.
(iii) unless otherwise stated are in Australian dollars.
(b) The Scheduled Rate refers to the Milestone Schedule of Services
(c) Any increases in the costs to Milestone of the supply of goods and/or services as a result of
(i) changes in ruling award wages, charges by Milestone’s suppliers, rates for freight, ordinary marine insurance, customs duties, landing, clearing and delivery charges and other taxes (including the rate of GST) and duties in respect of the goods;
(ii) the Purchaser requiring installation or other services work or any part thereof to be carried out outside normal working hours;
(iii) changes in requirements for conformance with any relevant legislation, court orders, regulations or bylaws;
(iv) delays caused by the failure of the Purchaser or contractors for whom the Purchaser is responsible to meet their respective obligations;
(v) variation in exchange rates occurring between the date of Milestone’s relevant quotation or tender or, where there is no such quotation or tender, from the date of Milestone’s acceptance of the Purchaser’s order, as the case may be, and the date of supply of the relevant goods and/or services shall be borne by the Purchaser.
3. Ancillary Costs
(a) Where Milestone is asked to perform services such as but not limited to installation, implementation, set-up, configuration and/or training, these services will be provided on a time and materials basis at the scheduled rate unless otherwise stated.
(b) Travel time and sundry costs such as but not limited to parking, fares, tolls, fuel, meals, accommodation, and out of pocket expenses are for the account of the Purchaser.
4. Variation of Supply
Any request by the Purchaser for variation of an Agreement must be made to Milestone in writing showing full and detailed information thereof, and Milestone will advise promptly prices and terms and conditions for the variations concerned. No variation work will be commenced unless and until Milestone receives a signed acceptance from the Purchaser of the terms and conditions and price of such variations. Milestone reserves the right to refuse any such request for variations.
5. Delivery and Completion Period
(a) Where goods are to be delivered to a nominated address Milestone shall be deemed to have delivered the goods in accordance with the contract if it obtains a receipt or signed delivery docket for the goods from any person at that address.
(b) If a nominated address is unattended or if delivery cannot otherwise be effected or the goods cannot be dispatched for any reason beyond Milestone’s control, Milestone may store the goods at the Purchaser’s risk and expense or take such other steps as Milestone considers in its sole discretion to be appropriate.
(c) Milestone shall not be responsible for unloading goods at the point of delivery.
(d) The risk of loss or damage to goods shall pass to the Purchaser at the time of delivery or when the Purchaser is notified that the goods are available for dispatch, as the case may be.
(e) If any delivery or completion period is quoted by Milestone it shall be deemed to be given on the following basis:
(i) the delivery or completion period stated in any quotation, proposal, tender or Agreement is subject to prior sale and/or confirmation of availability of by Milestone’s supplier;
(ii) Delivery time will vary depending on public and national holidays both domestic and abroad especially Christmas and Easter periods as well as possible supplier shortages.
(iii) Delivery is subject to hardware, software and service availability.
(iv) In all cases, Milestone will use its best endeavours to meet the time quoted for delivery of goods or completion of the installation of goods. However the time so quoted is an indication only and shall not be considered a binding commitment upon Milestone nor a condition of sale.
(v) In the case of goods which are in whole or in part subject to special design, manufacture or other non-standard requirements, the delivery or completion period stated in any quotation, proposal, tender or Agreement is subject to the Purchaser having given Milestone full final and adequate instructions and/or drawings and having fulfilled any other requirement specified by Milestone to enable Milestone to proceed uninterruptedly with the supply and/or manufacture of the goods.
(vi) Where Milestone is required to install and/or commission the goods, the delivery or completion period stated in any quotation, tender or Agreement is subject to the Purchaser having fulfilled all requirements referred to in (iv) above and further is subject to site availability acceptable to Milestone and completion of all activities necessary to enable Milestone to install and/or commission the goods
(vii) Milestone shall not be liable for any loss or damage suffered by the Purchaser or otherwise arising out of the Milestone’s failure to meet the times quoted.
6. Consignment/Loan Stock
From time to time Milestone may lend the Purchaser equipment for demonstration and evaluation purposes prior to the Purchaser issuing a firm order for same. In such case the following clauses apply in addition to others herein:
(a) The Purchaser shall be responsible for ensuring the prompt return of the goods to Milestone within 7 (seven) days (or alternative period of time specifically agreed in writing).
(b) The Purchaser shall be responsible for all damage to the goods incurred while the goods are in the Purchaser’s possession, and undertakes to reimburse Milestone for the goods replacement costs or repair costs at Milestone ‘s discretion.
7. Payment
(a) Except as otherwise agreed in writing by Milestone, payment for products or services shall be made in full, including freight, handling, packaging and insurance charges, before physical delivery of the goods or services.
(b) Credit card payments incur a 2% surcharge, 3.95% AMEX. Diners Club is not accepted.
(c) Where delivery of goods or services to Purchaser is effected before full payment is received, Milestone will invoice due amounts on shipment, and except as otherwise agreed in writing Purchaser must settle all amounts due within 7 days of date of invoice.
(d) Notwithstanding any previously agreed credit account and payment arrangement, if Milestone considers in its sole discretion that the financial condition of the Purchaser so warrants, it may decline to deliver or install goods or carry out the work unless the Purchaser provides a satisfactory security for the purchase price. Should the Purchaser fail to comply with this provision Milestone may cease deliveries and/or leave the site with any re-establishment or other costs thereby incurred to be borne entirely by the Purchaser.
(e) Should the Purchaser intend to arrange lease or hire purchase finance for the purchase of the goods or any part thereof, the Purchaser shall notify Milestone of such intention and shall arrange for the lease or hire purchase documentation to be completed in sufficient time to permit settlement to be effected by the finance company on or before the date of delivery or installation.
(f) If the Purchaser fails to pay amounts properly invoiced pursuant to these Terms, Milestone shall be entitled (without prejudice to any other right hereunder or at law):
(i) to charge interest on amounts due from the date when due until payment is received by Milestone at the rate of 3.5% per month.
(ii) to charge a warehousing fee of AUD 40.00 / cbm per day (including weekends) + GST and a one off administration fee of AUD 50.00 + GST
(iii) where Milestone still retains title, to retake possession of the goods and to give the Purchaser written notice that Milestone intends to resell the goods after the expiry of seven (7) days from the date of the notice and if the Purchaser fails within that period to pay the purchase price with interest thereon then Milestone shall be released from all obligations under the Agreement or other contract with Purchaser.
(iv) to commence legal proceedings without notice and the Purchaser shall pay all Milestone’s legal and other costs incurred by Milestone in seeking collection of the due amount.
(g) Should the Purchaser postpone, or circumstances require postponement of, the delivery/installation date, the goods will be invoiced and subject to payment in full in accord with the original terms and/or agreed delivery/installation date. Should the amount include Estimated Services, payment is required for those services rendered to date.
8. Return of Equipment
(a) No goods shall be returned to Milestone without the prior authorization of Milestone.
(b) Such authorisation will be at the sole discretion of Milestone, and on the basis that Purchaser agrees that:
(i) Where in the opinion of Milestone goods are not returned in the condition in which they were supplied (“as supplied condition”) any costs incurred by Milestone in restoring goods to “as supplied condition” are for the account of the purchaser;
(ii) Milestone may impose a special fee to be determined by Milestone at its sole discretion to cover among other things, restocking charges and any loss Milestone may incur in reselling such returned goods;
(iv) Milestone may apply such other conditions as it may deem necessary.
9. Order Cancellation
(a) Milestone at its discretion may accept an order cancellation request from the Purchaser.
(b) Milestone will impose a fee (currently 20% of the Purchase price) to cover among other things, warehousing, restocking charges and any loss Milestone may incur in reselling such returned goods.
(c) Milestone may apply such other conditions as it may deem necessary.
(d) In the case of goods which are in whole or in part subject to special design, manufacture or other non-standard requirements Milestone will impose a fee (currently 50% of the Purchase price) to cover among other things, restocking charges, unrecoverable payments and any loss incurred in salvaging or disposing of goods unable to be resold.
10. Installation & Maintenance
(a) Where Milestone is not contracted to install the goods, Milestone representatives may, if so required by the Purchaser, provide advice on the siting, installation (if appropriate) and operation of the goods. In providing this advice the representatives of Milestone are expressing personal views derived from their experience in the industry but except as provided in clause 13, Milestone shall have no liability whatsoever to the Purchaser in respect of any such advice given by any representative.
(b) Where specified by Milestone in relation to goods being supplied and or to services including installation service, the Purchaser shall at its own expense provide power of appropriate quality and at the required locations. Milestone shall be under no liability whatsoever should any loss be incurred and/or damage suffered including consequential loss or damage as a result of the required power not being continually available.
(c) If any repairs to or maintenance of the goods (other than those covered by Milestone’s normal warranty provisions) are to be carried out by Milestone, and the Purchaser does not have a current Maintenance Agreement with Milestone, then the cost of such work shall be charged to the Purchaser at Milestone normal rates for such work.
(d) Where Milestone is required to affix the goods to an existing structure Milestone is not responsible for the suitability of said structure. It remains the responsibility of the Purchaser to ensure any such structure is suitable and the Purchaser bears any risk associated with affixing to said structure.
11. Property and Risk in Goods
(a) Property in each unit of the goods does not pass until such time as payment in full for the goods has been made and the Purchaser does not owe any other money to Milestone on any account whatever and whether or not such other money has become due for payment. Until such time, the Purchaser will hold all the goods supplied as bailee for Milestone and must keep the goods separate from other goods in the Purchaser’s possession and store them in a manner that identifies them as belonging to Milestone.
(b) The Purchaser may resell the goods, but only as fiduciary agent and trustee for Milestone, by way of bona fide sale at full market value and in the ordinary course of its business
(c) The Purchaser must not combine the goods with any other goods unless the goods can be easily extricated from such combination at any time.
(d) The Purchaser grants a licence to Milestone to:
(i) dismantle any such combination and to enter any place where the goods or other goods are located in order to extricate the goods; and
(ii) enter any place where the goods may be located so Milestone can retake possession of the goods.
(e) If the Purchaser is unable to grant Milestone any such licence the Purchaser, on being requested by Milestone so to do, shall immediately dismantle such combination, extricate the goods and deliver them to Milestone. Milestone shall not be liable and is hereby indemnified by the Purchaser for any damage caused by or costs incurred in dismantling the goods.
(f) Until the debts have been paid in full the Purchaser must hold such part of the money it receives from:
(i) any sub-sale of the goods under the immediately preceding subclause; and
(ii) the proceeds of any sale of any products into which the goods have been mixed or converted by any process
(iii) as equals the amount of the debts at the time the money is received (‘the Proceeds’) as bailee, fiduciary agent and trustee for Milestone.
(g) The Purchaser expressly acknowledges that it is bound by such fiduciary obligation and acknowledges that:
(i) it must hold the Proceeds on trust for Milestone.
(ii) it must place the whole of the Proceeds in an account separate from its own moneys (‘the Proceeds Account’).
(iii) it must maintain the Proceeds Account separate from its own moneys at all times.
(iv) it must maintain proper records for the Proceeds Account.
(v) it must not assign or encumber the Proceeds or do any other act in derogation of Milestone’s legal or beneficial interests.
(vi) it must account to Milestone on demand for all moneys standing to the credit of such account;
(vii) Milestone may appropriate payments to such goods and accounts as it thinks fit, notwithstanding any contrary appropriation by the Purchaser;
(viii) for the purposes of identification of different consignments of the goods purchased from Milestone and receipt of Proceeds, the Purchaser agrees that the principle of “Last In, First Out” shall be applied to any items which cannot be distinguished.
(ix) receipt by the Purchaser of payment for the sale of any products into which the goods have been mixed or converted by any process shall be treated as evidence that it has received Proceeds; and
(x) Milestone trace the Proceeds in equity.
12. Personal Property Securities Act 2009 (“PPSA”)
(a) The Purchaser acknowledges and agrees that:
(i) The application for commercial credit, as read with these Terms and Conditions of Sale constitute a security agreement for the purposes of Sec 20 of the PPSA;
(ii) A security interest exists in the goods supplied by Milestone to the Purchaser (and their proceeds) and in all goods to be supplied by Milestone to the Purchaser in the future (and their proceeds);
(iii) The security interest granted by the Purchaser to Milestone pursuant clause 9 of these Terms and Conditions of Sale shall constitute a purchase money security interest as defined in Sec 14 of the PPSA.
(b) The Purchaser undertakes to execute all documents and do all such further acts as may be required by Milestone to facilitate and affect registration under the PPSA of the security interest(s) granted by the Purchaser to Milestone.
(c) Until property in the goods passes as envisaged in clause 9(a) of these Terms and Conditions of Sale, the Purchaser irrevocably waives its rights under the following provision of Part 3 of the PPSA:
(i) to receive a notice of intention of removal of an accession (Sec 95 of the PPSA).
(d) Until property in the goods passes as envisaged in clause 9(a) of these Terms and Conditions of Sale, the Purchaser irrevocably waives its rights under the following provision of Part 4 of the PPSA:
(i) obligations secured by interests in personal property and land (Sec 117 of the PPSA);
(ii) to receive notice that Milestone decides to enforce its security interest in accordance with land law (Sec 118 of PPSA)
(iii) to receive notice on enforcement action against liquid assets (Sec 121(4) of the PPSA);
(iv) obligation to dispose of or retain collateral (Sec 125 of the PPSA);
(v) to receive notice of disposal of goods by Milestone purchasing the goods (Sec 129 of the PPSA)
(vi) to receive notice of disposal of goods (Sec 130 of the PPSA);
(vii) to receive a statement of account following disposal of goods including details of payment to other creditors (Sec 132(3)(d) of the PPSA);
(viii) to receive statement of account if no disposal of goods for each 6 month period (Sec 132(4) of the PPSA);
(ix) to redeem the goods (Sec 142 of the PPSA);
(x) to reinstate the security agreement (Sec 142 of the PPSA).
(e) The Purchaser further agrees that where Milestone has rights in addition to those under Part 4 of the PPSA, those rights will remain unaffected and will continue to apply.
(f) Until property in the goods passes, the Purchaser must not give Milestone a written demand or allow any other person to give Milestone a written demand requiring Milestone to register a Financing Change Statement under the PPSA or enter into or allow any other person to enter into the register of personal property securities a financing change statement under the PPSA.
(g) The Purchaser acknowledges that it has received value as at the date of first delivery of the goods and has not agreed to postpone the time for attachment of the security interest as defined in the PPSA granted to Milestone under these Terms and Conditions of Sale.
(h) The Purchaser irrevocably grants to Milestone the right to enter upon the Purchaser’s property or premises, without notice, and without being in any way liable to the Purchaser or to any third party, if Milestone has cause to exercise any of Milestone’s rights under Sec 123 of the PPSA, and the Purchaser shall indemnify Milestone from any claims made by any third party as a result of any such exercise.
13. Licenses and Consents
If it is necessary for the lawful fulfilment of the Agreement or other contract:
(a) For the Purchaser to hold or obtain import, export, currency or other licence, consent or authority, then the Purchaser shall be obliged to obtain the same.
(b) For Milestone to hold or obtain any such licence consent or authority then Milestone shall apply for the same, but if the same is refused this Agreement of other contract shall forthwith come to an end, and neither Milestone nor the Purchaser shall be under any liability in respect thereof. Where required by Milestone, the Purchaser shall execute and deliver to Milestone prior to delivery of the goods, an end user operating system licence or other software licence in a form required by Milestone or the supplier of the goods to Milestone.
14. General Warranty
(a) Except where the Purchaser is a “Consumer” for the purpose of the Competition & Consumer Act 2010 (the Act), and unless otherwise agreed in writing, Milestone
(i) makes no warranty of any kind as to the goods supplied or to work done in respect of the installation of the goods pursuant to this Agreement and all terms, conditions and warranties and whether express or implied other than contained in this Agreement are hereby expressly negated and excluded,
(ii) shall not be liable to compensate the Purchaser for any loss (including but not limited to loss of profits and consequential loss) or damage to person or property, or for death or injury caused by an act or omission of Milestone, its employees or agents including loss or damage arising out of the installation of the goods or from failure of the goods.
(b) In connection with the supply by Milestone to the Purchaser of any goods or services within the meaning of the Act, other than goods or services of a kind ordinarily acquired for personal domestic or household use or consumption, the liability of Milestone in the event of a breach of a condition or warranty implied by the Act (other than a condition or warranty implied by Sch 2, Part 3-2) shall be limited to one of the following as determined by Milestone:
(i) in the case of goods, to any one or more of the following:
(aa) the replacement of the goods or the supply of equivalent goods;
(bb) the repair of the goods;
(cc) payment of the cost of replacing the goods or acquiring equivalent goods;
(dd) the payment of the cost of having the goods repaired;
or
(ii) in the case of services:
(aa) to the supplying of the services again;
(bb) to payment of the cost of having the services supplied again.
(c) Product warranties are “return to base” unless stated otherwise. If requested Milestone will attend site to collect the goods. Applicable fees and charges in accord with the Milestones Schedule of Services will apply. A current Schedule of Services is available on request.
(d) Individual products carry separate warranty terms and conditions.
15. Force Majeure
Milestone shall not be liable for failure to perform its obligations if the failure arises from circumstances beyond its reasonable control, including but not limited to fire, explosion, strikes, lock-outs or any other industrial disputes, failure or refusal of its supplier to supply the goods, inclement weather, acts of God, Governmental action. In no such event shall the Purchaser be entitled to damages of any kind for late performance or failure to perform.
16. Assignment
The Purchaser shall not assign its obligations hereunder without Milestone’s written consent.
17. Waiver & Variation
A provision of or a right created under these terms in favour of Milestone may not be waived or varied except in writing signed by Milestone. Milestone may elect not to exercise its rights arising from a breach of any provision of these terms and such election, even if the breaches are continuous and multiple, shall not create any estoppel or presumption against Milestone.
18. Applicable Law
A quotation, proposal, tender and any contract or Agreement of which it shall form the basis, shall be interpreted and enforced in accordance with the laws for the time being in force in the State of New South Wales and the Purchaser agrees to submit to the jurisdiction of the Courts therein.
19. Severance
Should any term hereof be affected by any illegality, unenforceability or invalidity, that term shall be considered to the extent of such illegality, unenforceability or invalidity independently of and severable from any other term contained herein and shall not affect the enforceability of any other term hereof in any way whatsoever.