Microsystems Pty Ltd – Terms & Conditions of Trade

1. Definitions

1.1 “Service Provider” shall mean Microsystems Pty Ltd and its successors and assigns.

1.2 “Client” shall mean the Client or any person acting on behalf of and with the authority of the Client.

1.3 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Client if a Limited Liability Client on a principal debtor basis.

1.4 “Services” shall mean all services supplied by the Service Provider to the Client and includes any advice or recommendations.

1.5 “Price” shall mean the cost of the Services as agreed between the Service Provider and the Client subject to clause 4 of this contract.

2. Acceptance

2.1 Any instructions received by the Service Provider from the Client for the supply of Services and/or the Client’s acceptance of Services supplied by the Service Provider shall constitute acceptance of the terms and conditions contained herein.

2.2 Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Service Provider.

2.3 None of the Service Provider’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Service Provider in writing nor is the Service Provider bound by any such unauthorised statements.

3. Services

3.1 The Services shall be as described on the invoices, quotation, work authorisation, sales order or any other work commencement forms as provided by the Service Provider to the Client.

4. Price And Payment

4.1 At the Service Providers sole discretion;
• (a) The Price shall be as indicated on invoices provided by the Service Provider to the Client in respect of Services supplied; or
• (b) The Price shall be the Service Provider’s current price at the date of delivery of the Services according to the Service Providers current Price list; or
• (c) The price of the Services shall be the Service Provider’s quoted price which shall be binding upon the Service Provider provided that the Client shall accept in writing the Service Provider’s quotation within thirty (30) days.

4.2 Time for payment for the Services shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be on delivery of the Services.

4.3 At the Service Providers sole discretion, for certain approved Clients payment will be due thirty (14) days following the date of the invoice.

4.4 At the Service Provider’s sole discretion, payment for approved Clients shall be due 14 days following the posting of an Invoice to the Client’s address or address for notices.

4.5 Payment will be made by cash, or by cheque, or by bank cheque, or by EFT, or by credit card, or by any other method as agreed to between the Client and the Service Provider.

4.6 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Service Provider.

5. Delivery Of Services

5.1 Delivery of the Services shall be made to the Client’s address. The Client shall make all arrangements necessary to take delivery of the Services whenever they are tendered for delivery, or delivery of the Services shall be made to the Client at the Service Providers address.

5.2 At the Service Providers sole discretion the Client may cancel delivery of Services. In the event that the Client cancels d ivery of Services the Client shall be liable for any costs incurred by the Service Provider up to the time of cancellation.

5.3 The failure of the Service Provider to deliver shall not entitle either party to treat this contract as repudiated.

5.4 The Service Provider shall not be liable for any loss or damage whatever due to failure by the Service Provider to deliver the Services (or any of them) promptly or at all.

6. Risk

6.1 If the Service Provider retains property in the Services nonetheless, all risk for the Services passes to the Client on delivery.

7. Defects/Returns

7.1 The Client shall inspect the Services on delivery and shall within seven (7) days of delivery notify the Service Provider of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Service Provider an opportunity to inspect the Services within a reasonable time following delivery if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.

8. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts

8.1 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.

9. Clients Disclaimer

9.1 The Client hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Service Provider and the Client acknowledges that he buys the Services relying solely upon his own skill and judgement.

10. Default & Consequences Of Default

10.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and shall accrue at such a rate after as well as before any judgement.

10.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify the Service Provider from and against all the Service Provider’s costs and disbursements including on a solicitor and own client basis and in addition all costs of collection.

10.3 Without prejudice to any other remedies the Service Provider may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Service Provider may suspend or terminate the supply of Services to the Client and any of its other obligations under the terms and conditions. The Service Provider will not be liable to the Client for any loss or damage the Client suffers because the Service Provider exercised its rights under this clause.

10.4 If any account remains unpaid at the end of the second month after supply of the Services or services the following shall apply: An immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable.

10.5 In the event that:
• (a) any money payable to the Service Provider becomes overdue, or in the Service Provider’s opinion the Client will be unable to meet its payments as they fall due; or
• (b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
• (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client; then
• (i) the Service Provider shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies; and
• (ii) all amounts owing to the Service Provider shall, whether or not due for payment, immediately become payable.

11. Security And Charge

11.1 Notwithstanding anything to the contrary contained herein or any other rights which the Service Provider may have howsoever:
• (a) Where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Service Provider or the Service Provider’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Client and/or the Guarantor acknowledge and agree that the Service Provider (or the Service Provider’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
• (b) Should the Service Provider elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify the Service Provider from and against all the Service Provider’s costs and disbursements including legal costs on a solicitor and own client basis.
• (c) To give effect to the provisions of clause [11.1 (a) and (b)] inclusive hereof the Client and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Service Provider or the Service Provider’s nominee, as the Client’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as the Service Provider shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Client and/or the Guarantor in any land, realty or asset in favour of the Service Provider and in the Client’s and/or Guarantor’s name as may be necessary to secure the said Client’s and/or Guarantor’s obligations and indebtedness to the Service Provider and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Service Provider’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.

12. Cancellation

12.1 The Service Provider may cancel these terms and conditions or cancel delivery of Services at any time before the Services are delivered by giving written notice. The Service Provider shall not be liable for any loss or damage whatever arising from such cancellation.

13. Privacy Act 1988

13.1 The Client and/or the Guarantor/s agree for the Service Provider to obtain from a credit-reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by the Service Provider.

13.2 The Client and/or the Guarantor/s agree that the Service Provider may exchange information about Client and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
• (a) To assess an application by Client;
• (b) To notify other credit providers of a default by the Client;
• (c) To exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and
• (d) To assess the credit worthiness of Client and/or Guarantor/s.

13.3 The Client consents to the Service Provider being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

13.4 The Client agrees that Personal Data provided may be used and retained by the Service Provider for the following purposes and for other purposes as shall be agreed between the Client and Service Provider or required by law from time to time:
• (a) provision of Services;
• (b) marketing of Services by the Service Provider, its agents or distributors in relation to the Services;
• (c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Services;
• (d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and
• (e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Services.

13.5 The Service Provider may give, information about the Client to a credit reporting agency for the following purposes:
• (a) to obtain a consumer credit report about the Client; and or
• b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.

14. Title

14.1 It is the intention of the Service Provider and agreed by the Client that property in the Services shall not pass until
• (a) The Client has paid all amounts owing for the particular Services, and
• (b) The Client has met all other obligations due by the Client to the Service Provider in respect of all contracts between the Service Provider and the Client, and that the Services, or proceeds of the sale of the Services, shall be kept separate until the Service Provider shall have received payment and all other obligations of the Client are met.

14.2 It is further agreed that:
• (a) The Client shall not deal with the money of the Service Provider in any way which may be adverse to the Service Provider.
• (b) Until such time as ownership of the Services shall pass from the Service Provider to the Client the Service Provider may give notice in writing to the Client to return the Services or any of them to the Service Provider. Upon such notice the rights of the Client to obtain ownership or any other interest in the Services shall cease.
• (c) If the Client fails to return the Services to the Service Provider then the Service Provider or the Service Provider’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Services are situated and take possession of the Services, without being responsible for any damage thereby caused.
• (d) Receipt by the Service Provider of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Service Provider’s ownership of rights in respect of the Services shall continue.
• (e) The Client shall not charge the Services in any way nor grant nor otherwise give any interest in the Services while they remain the property of the Service Provider.
• (f) The Service Provider may require payment of the Price or the balance of the Price due together with any other amounts due from the Client to the Service Provider arising out of these terms and conditions, and the Service Provider may take any lawful steps to require payment of the amounts due and the Price.
• (g) The Service Provider can issue proceedings to recover the Price of the Services sold notwithstanding that ownership of the Services may not have passed to the Client.

15. Intellectual Property

15.1 Where the Service Provider has designed or customised Services for the Client, then the copyright in those designs and customisations shall remain vested in the Service Provider, and shall only be used by the Client at the Service Provider’s discretion.

15.2 Conversely, in such a situation, where the Client has supplied intellectual property, the Service Provider in its sale conditions may look for an indemnity (the specifications and design of the Services (including the copyright, design right or other intellectual property in them) shall as between the parties be the property of the Service Provider). Where any designs or specifications have been supplied by the Client for manufacture by or to the order of the Service Provider then the Client warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Services shall not infringe the rights of any third party.

15.3 The Client warrants that all designs or instructions to the Service Provider will not cause the Service Provider to infringe any patent, registered design or trademark in the execution of the Clients order.

16. General

16.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

16.2 All Services supplied by the Service Provider are subject to the laws of New South Wales and the Service Provider takes no responsibility for changes in the law which affect the Services supplied.

16.3 The Service Provider shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Service Provider of these terms and conditions.

16.4 In the event of any breach of this contract by the Service Provider the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of the Service Provider exceed the Price of the Services.

16.5 The Client shall not set off against the Price amounts due from the Service Provider.

16.6 The Service Provider may license or sub-contract all or any part of its rights and obligations without the Client’s consent.

16.7 The Service Provider reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Service Provider notifies the Client of such change.

16.8 Neither party shall be liable for any default due to any act of God, war, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.