These terms and conditions will apply to the supply of Goods by MONTANA COLORS AUSTRALIA to a Customer, subject to any variations subsequently agreed between MONTANA COLORS AUSTRALIA and the Customer.
1. Ordering Goods
1.1 To order Goods the Customer must place an Order with MONTANA COLORS AUSTRALIA in accordance with MONTANA COLORS AUSTRALIA processes as advised to the Customer from time to time. MONTANA COLORS AUSTRALIA may, at its discretion, reject any Order.
1.2 There is no obligation on MONTANA COLORS AUSTRALIA to enquire as to the authority of any person placing an Order on behalf of the Customer.
1.3 An Order becomes binding on MONTANA COLORS AUSTRALIA and the Customer on the date MONTANA COLORS AUSTRALIA notifies the Customer that it accepts the Order or supplies Goods under that Order, at which time a separate contract will be formed comprising the Order and these terms and conditions (the Contract).
1.4 No terms or conditions that the Customer seeks to impose will apply, unless expressly accepted in writing by MONTANA COLORS AUSTRALIA.
2.1 The price for the Goods will be the price listed in MONTANA COLORS AUSTRALIA current price list as at the date of acceptance of the Order, subject to any volume discounts or rebates that MONTANA COLORS AUSTRALIA has agreed with the Customer in writing.
2.2 The price will be increased by the amount of any GST and other taxes and duties that may be applicable, except to the extent that such taxes or duties are expressly included in the price.
2.3 Unless otherwise agreed by the parties, the price does not include transportation costs. Goods are supplied ex-works.
2.4 MONTANA COLORS AUSTRALIA may change the price for the Goods at any time on giving prior notice to the Customer. Any change to the price will apply to all Goods ordered on or after the date specified by MONTANA COLORS AUSTRALIA in the notice to the Customer. If no date is specified in the notice, the change will be effective immediately for all Goods ordered after the date of notification.
3.1 Unless MONTANA COLORS AUSTRALIA has agreed to provide credit to the Customer, payment for the Goods is to be made on delivery of the Goods. If the Customer has completed a credit application and MONTANA COLORS AUSTRALIA has agreed to provide credit to the Customer, payment for the Goods is to be made by the due date specified in the approved credit terms.
3.2 Payment for the Goods is to be made by such method as MONTANA COLORS AUSTRALIA nominates from time to time.
3.3 If the Customer does not pay any amount by the due date for payment, MONTANA COLORS AUSTRALIA may charge:
(1) an administration fee equal to 10% of the amount of the invoice payable, up to a maximum of $250; and
(2) default interest on the due but unpaid amount at the rate that is 6% above the cash rate published by the Reserve Bank of Australia from time to time, calculated on a daily basis from the due date until payment is received in full (after as well as before judgment).
3.4 If credit is being provided by MONTANA COLORS AUSTRALIA to the Customer, the Customer:
(1) acknowledges and agrees that the credit is to applied wholly or predominantly for commercial purposes;
(2) acknowledges that MONTANA COLORS AUSTRALIA has the right to withdraw credit at any time, whether the Customer is in default under the terms of a Contract or otherwise; and
(3) agrees that, if the credit is cancelled or withdrawn, any debt then due by the Customer to MONTANA COLORS AUSTRALIA will become immediately due and payable.
4.1 Where it has been agreed that MONTANA COLORS AUSTRALIA will be responsible for delivery, any time advised for delivery is an estimate only. MONTANA COLORS AUSTRALIA has the right to nominate a suitable time for loading the Goods onto a delivery vehicle, taking into account weather conditions and safety matters, and MONTANA COLORS AUSTRALIA is not liable for any delay in delivery.
4.2 In all circumstances, whatever the agreed method of delivery, the Customer will be responsible at its own cost for unloading the Goods, or for arranging for a suitable means of unloading the Goods, from the relevant delivery vehicle. The Customer shall be responsible for any loss or damage occurring during unloading of the Goods. The Customer will indemnify MONTANA COLORS AUSTRALIA against any loss, liability, costs or expenses incurred by MONTANA COLORS AUSTRALIA relating to the unloading of the Goods.
4.3 MONTANA COLORS AUSTRALIA may deliver the Goods by instalments.
4.4 If the Customer refuses to accept delivery of the Goods then the risk in the Goods shall pass to the Customer from the time of such refusal. The Customer will indemnify MONTANA COLORS AUSTRALIA against any loss, liability, costs or expenses incurred by MONTANA COLORS AUSTRALIA if, after the time for delivery or collection of the Goods, MONTANA COLORS AUSTRALIA subsequently arranges storage or transportation of, or insurance for, the Goods (whether due to any failure or refusal of the Customer to take delivery or following agreement with the Customer).
4.5 MONTANA COLORS AUSTRALIA and the Customer agree that:
(1) the period of 72 hours from delivery represents a reasonable period for the Customer to examine the Goods for defects, errors, discrepancies or non-conformity with the Contract;
(2) the Goods will be deemed accepted by the Customer unless:
(a) the Customer notifies MONTANA COLORS AUSTRALIA in writing of any alleged defects, errors, discrepancies or non-conformity within the periods set out in clause 4.5(1); and
(b) MONTANA COLORS AUSTRALIA is given the opportunity to inspect the Goods to confirm the defects, errors, discrepancies, or non-conformity in order to determine whether to agree to the return of the Goods (at MONTANA COLORS AUSTRALIA discretion); and
(3) except as set out in these terms, the Customer is not entitled to return the Goods for any reason.
5. Risk and title
5.1 Risk of any loss, damage or deterioration of or to the Goods passes to the Customer on delivery.
5.2 For the avoidance of doubt, MONTANA COLORS AUSTRALIA will not be liable for Goods that have not been stored or maintained in a proper manner following delivery.
5.3 Ownership of the Goods remains with MONTANA COLORS AUSTRALIA and does not pass to the Customer until the Customer pays to MONTANA COLORS AUSTRALIA:
(1) the price in respect of the Goods; and
(2) all other monies owing by the Customer to MONTANA COLORS AUSTRALIA on any account whatsoever.
5.4 The Customer acknowledges that upon delivery of the Goods to the Customer, the Goods become subject to a Security Interest in favour of MONTANA COLORS AUSTRALIA, which shall remain in effect until such time as the Goods are returned to MONTANA COLORS AUSTRALIA (in accordance with these terms), or the Customer has paid MONTANA COLORS AUSTRALIA in full for the Goods.
5.5 While ownership of the Goods remains with MONTANA COLORS AUSTRALIA, MONTANA COLORS AUSTRALIA authorises the Customer in the ordinary course of its business to use the Goods and to sell the Goods for full consideration. Except as otherwise expressly permitted by these terms, the Customer must not sell, lease, dispose of, create a security interest in, mortgage or part with possession of the Goods or any interest in the Goods (or purport to attempt to do such a thing) or permit any lien over the Goods.
5.6 The authority referred to in clause 5.5:
(1) may be revoked at any time by MONTANA COLORS AUSTRALIA notifying the Customer, in such manner and at such time as MONTANA COLORS AUSTRALIA determines in its sole discretion, that the authority is revoked; and
(2) is, in any event, revoked automatically from the time an Event of Default occurs.
5.7 Where the authority conferred by clause 5.5 is revoked under clause 5.6:
(1) the Customer authorises MONTANA COLORS AUSTRALIA to use reasonable force to enter the premises where the Goods are stored and remove them;
(2) MONTANA COLORS AUSTRALIA shall exercise reasonable care in entering such premises and removing such Goods, but shall not be liable for trespass or any damage caused by the use of reasonable force;
(3) the Customer is released from the obligation to pay the price for all Goods repossessed by MONTANA COLORS AUSTRALIA but only to the extent any proceeds obtained by MONTANA COLORS AUSTRALIA reselling the Goods (less all costs incurred) exceeds the price owing by the Customer to MONTANA COLORS AUSTRALIA for those same Goods;
(4) MONTANA COLORS AUSTRALIA may resell any repossessed Goods and apply the proceeds of sale in reduction of any amount owing by the Customer to MONTANA COLORS AUSTRALIA as MONTANA COLORS AUSTRALIA thinks fit; and
(5) the Customer is liable for all costs associated with the exercise by MONTANA COLORS AUSTRALIA of its rights under this clause and costs are payable to MONTANA COLORS AUSTRALIA on demand.
5.8 MONTANA COLORS AUSTRALIA may bring an action for the amount owing by the Customer in respect of the Goods even where ownership of the Goods has not passed to the Customer.
5.9 The Customer must insure and keep insured with a reputable insurance company all Goods in its possession or control from the time for delivery of such Goods against risk of loss or damage by hazards normally insured against.
5.10 Until ownership of the Goods passes to the Customer under these terms, the Customer must:
(1) keep the Goods in a manner that they are separately identifiable; and
(2) keep proper stock records and records of account with respect to the purchase, receipt, sale of, and other dealings with, the Goods; and
(3) make those records and/or the Goods themselves available to MONTANA COLORS AUSTRALIA for inspection (and, in the case of the records, copying them) at its reasonable request and upon any failure to do so (and without limiting MONTANA COLORS AUSTRALIA other rights and remedies), MONTANA COLORS AUSTRALIA may enter, and use reasonable force to enter, the premises where the records and/or the Goods are kept for any such purpose; and
(4) not do or allow anything to happen that might contribute to a deterioration in the value of the Goods or otherwise adversely affect the rights or interest of MONTANA COLORS AUSTRALIA in the Goods under these terms.
5.11 The Customer must immediately notify MONTANA COLORS AUSTRALIA if the Customer considers that an Event of Default is likely to occur.
5.12 The Customer agrees to promptly do anything MONTANA COLORS AUSTRALIA requests (such as obtaining consents, providing information and signing and producing documents) in order to perfect, preserve, maintain, protect, or otherwise give full effect, under the PPSA, to this document and the Security Interest created by this document, including registering one or more financing statements in relation to the Security Interest created by this document on any register established pursuant to the PPSA.
5.13 To the extent the law permits, the Customer waives its rights to receive any notice that is required by any provision of the PPSA (including a notice of a verification statement under section 157(1) of the PPSA).
5.14 The parties agree to contract out of all sections referred to in section 115(1) of the PPSA other than those sections referred to in section 115(1)(e), (i), (j) and (k).
5.15 The Customer agrees to indemnify MONTANA COLORS AUSTRALIA for all costs, fees, charges and expenses incurred by MONTANA COLORS AUSTRALIA in connection with the registration and enforcement of the Security Interest created by this document.
6. Warranties and liability
6.1 In respect of Claims of any kind:
(1) the Customer and MONTANA COLORS AUSTRALIA agree that Claims shall be subject to the qualifications, limitations, exclusions and caps contained in these terms; and
(2) the sole remedies available to the Customer against MONTANA COLORS AUSTRALIA, whether under these terms or at law shall be:
(a) at MONTANA COLORS AUSTRALIA discretion, the repair or replacement of the Goods under these terms; or
(b) payment of compensation up to the liability cap prescribed in clause 6.2.
6.2 MONTANA COLORS AUSTRALIA’s maximum liability arising out of any Claim or under these terms or at law (whether in contract, tort, including negligence, statute or otherwise) shall not exceed the price of the Goods.
6.3 No legal action or proceeding may be brought in respect of any Claim more than six months after the date of delivery. Where Goods are delivered by multiple instalments, a Claim in respect of each instalment must be made within the specified notice period from that delivery.
6.4 In addition to other qualifications, limitations, exclusions and caps contained in these terms, MONTANA COLORS AUSTRALIA will not be liable (whether in contract, tort, including negligence, statute or otherwise) for any:
(1) loss of profits (whether actual or anticipated);
(2) consequential loss or damage, including but not limited to economic loss or loss of production, revenue or management time;
(3) indirect loss or damage; or
(4) special loss or damage of any kind.
6.5 The only conditions, warranties, descriptions, representations or guarantees agreed to by MONTANA COLORS AUSTRALIA are those expressly provided by MONTANA COLORS AUSTRALIA in writing or referred to in clause 6.6.
6.6 To the maximum extent permitted by law:
(1) nothing in these terms excludes, restricts, or modifies any condition, warranty, guarantee or liability which is implied by or which is given by the Competition and Consumer Act 2010 (Cth) (CCA), or other applicable laws where to do so is illegal or would render any provision of these terms void; and
(2) MONTANA COLORS AUSTRALIA liability for breach of the CCA (other than a guarantee under sections 51, 52 or 53 of Schedule 2 of the CCA) in relation to the supply of goods which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, is limited, at MONTANA COLORS AUSTRALIA option, to the replacement, repair, or payment of the cost of the replacement or repair of the Goods.
6.7 The Customer agrees to indemnify MONTANA COLORS AUSTRALIA against any liability or cost incurred by MONTANA COLORS AUSTRALIA (however arising) as a direct or indirect result of the Customer breaching any obligations (whether under statute or the general law) to any person in respect of Goods including (for the avoidance of doubt) any misrepresentation regarding the grade, characteristics or suitability of any Goods.
6.8 The Customer:
(1) warrants to MONTANA COLORS AUSTRALIA that it has read and understood these terms;
(2) warrants that it has not relied on any representation or statement made by or on behalf of MONTANA COLORS AUSTRALIA in connection with the supply of Goods that has not been clearly and expressly stated in the Contract; and
(3) warrants that the supply of the Goods by MONTANA COLORS AUSTRALIA to the Customer, and the use of Goods by the Customer, will not make MONTANA COLORS AUSTRALIA liable to any prosecution, claim or other action under any applicable law.
7.1 If any Event of Default occurs:
(1) MONTANA COLORS AUSTRALIA may suspend or terminate any Contract, effective immediately on notice in writing to the Customer and refuse to supply any and all Goods to the Customer;
(2) any amount owing by the Customer to MONTANA COLORS AUSTRALIA will immediately become due and payable notwithstanding that the due date has not arisen;
(3) each Security Interest created by a Contract will become immediately enforceable; and
(4) where title to any Goods has not passed to the Customer, the Customer must return the Goods to MONTANA COLORS AUSTRALIA promptly on request or MONTANA COLORS AUSTRALIA may, at its option, enter the Customer’s premises, take possession of and sell the Goods.
7.2 MONTANA COLORS AUSTRALIA is entitled to recover from the Customer all costs that MONTANA COLORS AUSTRALIA incurs in connection with the exercise, protection or enforcement of MONTANA COLORS AUSTRALIA rights under any Contract or conferred by law, in each case on demand and on a full indemnity basis (including solicitor client costs).
7.3 Subject to any mandatory law, MONTANA COLORS AUSTRALIA will not be liable:
(1) in respect of any loss or damage that results from the exercise, attempted exercise or non-exercise by MONTANA COLORS AUSTRALIA of its rights under any Contract or conferred by law; or
(2) to account as a mortgagee in possession in respect of the Goods if it or any person on its behalf takes possession of the Goods.
8. Force Majeure
8.1 Without limiting the foregoing, neither MONTANA COLORS AUSTRALIA nor the Customer will be liable for any delay or failure in the performance of any obligation or the exercise of any right under a Contract or for any loss or damage (including indirect or consequential loss or damage) if such performance or exercise is prevented or hindered in whole or in part by reason of a Force Majeure Event. Nothing contained in this clause will excuse payment of any money due or which becomes due under a Contract.
8.2 The rights and obligations of a party that is affected by a Force Majeure Event will be suspended during the continuance of the Force Majeure Event, and either party claiming to be affected by the Force Majeure Event will give immediate notice to the other party containing full particulars of the Force Majeure Event. The party giving notice under this clause will take all reasonable steps to mitigate the effects of the Force Majeure Event and remove such Force Majeure Event provided that neither party will be required to remove any such Force Majeure Event if to do so would require it contrary to its judgement to settle a strike or labour dispute or otherwise submit to the demands of opposing parties.
8.3 If the Force Majeure Event prevents or hinders performance of a Contract for a continuous period of 180 days either party may, on not less than 14 days prior written notice to the other party, terminate that Contract.
9.2 In this clause 9, ‘personal information’ has the meaning set out in the Privacy Act.
(1) providing Goods to the Customer and administering MONTANA COLORS AUSTRALIA relationship with the Customer including responding to queries;
(2) assessing the Customer's credit application with MONTANA COLORS AUSTRALIA and determining the provision of credit; and
(3) to identify and inform the Customer about other products or services that may be of interest to the Customer.
9.6 Notwithstanding any of these terms, where the Customer is a natural person, the Customer specifically agrees for the purposes of privacy legislation including the Privacy Act to MONTANA COLORS AUSTRALIA:
(1) being given a credit report that may contain personal information of or relating to the Customer for the purpose of assessing an application for credit or for the purpose of the collection of payments that are overdue under any Contract, but only in accordance with the MONTANA COLORS AUSTRALIA Application for Commercial Credit;
(2) disclosing to or obtaining from another credit provider a credit report or personal information derived from a credit report on the Customer for the purpose of assessing or exchanging information relating to the Customer's creditworthiness, credit history or credit capacity, but only in accordance with the MONTANA COLORS AUSTRALIA Application for Commercial Credit; and
(3) collecting and using personal information as may be required for the purposes of the PPSA, including but not limited to, use in financing statements registered by MONTANA COLORS AUSTRALIA,
and MONTANA COLORS AUSTRALIA advises the Customer and the Customer acknowledges that MONTANA COLORS AUSTRALIA may disclose the information it acquires about the Customer to a credit agency (but only in accordance with the MONTANA COLORS AUSTRALIA Application for Commercial Credit), other related entities of MONTANA COLORS AUSTRALIA or as may be required by law (including the PPSA).
10. Confidential information
10.1 The Customer must hold in the strictest confidence all information furnished or made available by MONTANA COLORS AUSTRALIA to the Customer in connection with the subject matter of any Contract or the supply of Goods. The Customer agrees not to use such information or disclose such information to others without MONTANA COLORS AUSTRALIA prior written consent. The obligations in this clause 10 will not apply to any information which:
(1) at the time of disclosure was or thereafter becomes, generally available to the public by publication or otherwise through no breach by the Customer of any obligation herein;
(2) the Customer can show by written records was in the Customer’s possession prior to disclosure by MONTANA COLORS AUSTRALIA; or
(3) is legally made available to the Customer by or through a third party having no direct or indirect confidentiality obligation to MONTANA COLORS AUSTRALIA with respect to such information.
11. Intellectual property
11.1 All know-how, specifications, inventions, devices, developments, processes, copyrights and other information or industrial or intellectual property disclosed or otherwise provided to the Customer by MONTANA COLORS AUSTRALIA or otherwise subsisting in the Goods and all rights therein (collectively Intellectual Property) will remain the property of MONTANA COLORS AUSTRALIA and will be kept confidential by the Customer. The Customer shall have no claim to, nor ownership interest in, any Intellectual Property. The Customer acknowledges that no license or rights of any sort are granted to the Customer in respect of any Intellectual Property, other than the limited right to use Goods purchased from MONTANA COLORS AUSTRALIA for the purpose they are supplied by MONTANA COLORS AUSTRALIA.
12.1 In this clause 12:
(1) ‘Consideration’, ‘Input Tax Credit’, ‘Recipient’, ‘Supply’, ‘Tax Invoice’ and ‘Taxable Supply’ have the meanings given to those expressions in the GST Act; and
(2) ‘Supplier’ means any party treated by the GST Act as making a Supply on these terms.
12.2 Unless otherwise expressly stated, all prices or other sums payable or Consideration to be provided under or in accordance with any Contract are exclusive of GST.
12.3 If GST is imposed on any Supply made under or in accordance with a Contract, the Recipient of the Taxable Supply must pay to the Supplier an additional amount equal to the GST payable on or for the Taxable Supply, subject to the Recipient receiving a valid Tax Invoice in respect of the Supply. Payment of the additional amount must be made at the same time and in the same way as payment for the Taxable Supply is required to be made in accordance with the Contract.
13.1 If any provision of these terms or a Contract is invalid, unenforceable or illegal it will be severed and will not affect the enforceability of the remaining provisions of these terms or the Contract.
13.2 A party’s failure to insist another party performs any obligation under a Contract is not a waiver of that party’s right to insist the other party performs, or to claim damages for breach of, that obligation, nor to insist the other party performs any other obligation, unless the waiving party acknowledges the waiver in writing.
13.3 Upon expiry or termination of a Contract, any accrued rights or remedies MONTANA COLORS AUSTRALIA may have as at the date of expiry or termination will not be affected. Clauses 3 (Payment), 5 (Risk and security), 6 (Warranties and liability), 9 (Privacy), 10 (Confidential information), 11 (Intellectual property), 14 (Definitions) and this clause 13 (Miscellaneous) survive termination of a Contract.
13.4 Each Contract is governed by and construed in accordance with the laws of New South Wales, and the laws of the Commonwealth of Australia applicable in New South Wales. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and the relevant federal courts and courts competent to hear appeals from them.
In these terms:
MONTANA COLORS AUSTRALIA means MONTANA COLORS AUSTRALIA Pty Limited ABN 87 615 059 508;
(1) means any demand or assertion of right to compensation or other legal or equitable remedy (whether in contract, tort, including negligence, statute or otherwise) arising out of or relating to the supply of Goods; and
(2) includes any proceeding in any tribunal, court or other forum arising out of or relating to the supply of Goods;
Contract has the meaning given by clause 1.3;
Customer means the person or entity acquiring or ordering Goods from MONTANA COLORS AUSTRALIA;
Event of Default means:
(1) the Customer fails to comply with the terms of a Contract (including, without limitation, where the Customer fails to pay for Goods on or before the due date);
(2) an application or order is made, a resolution is made or proposed or other steps are taken for the winding up, dissolution, official management or voluntary administration of the Customer (other than a voluntary liquidation for the purpose of amalgamation or reconstruction);
(3) the Customer enters into any arrangement, compromise or composition or assignment for the benefits of its creditors or any class of them;
(4) a receiver, a receiver and manager, administrator or other officer is appointed to the Customer or any part of its property, or a third party attempts to levy execution against the Customer’s property or the goods;
(5) the Customer ceases, suspends or threatens to cease or suspend the conduct of its business or disposes of or threatens to dispose of its assets other than in the ordinary course of business;
(6) the Customer is or is deemed (including under any applicable law) unable to pay its debts as and when they fall due, or stops or suspends the payments of its debts;
(7) in the case of the Customer being a natural person, the Customer commits an act of bankruptcy; or
(8) MONTANA COLORS AUSTRALIA is of the view, acting reasonably, that any of the above will or is likely to occur;