Terms and Conditions

1. Definitions

(a) “MAPAL” means MAPAL Australia Pty Ltd ABN 33 087 736 338

(b) “Agreement” means the agreement entered into between MAPAL and the Customer

(c) “Customer” means the Customer purchasing or offering to purchase products or services from MAPAL.

(d) “Date of delivery” means the date on which goods leave MAPAL premises or the date a service is supplied.

(e) “Goods” include products manufactured, imported, supplied or delivered by MAPAL to the Customer.

(f) “Services” include advice, production or engineering drawings, tool management services, consulting, and tool maintenance programs.

2. Parties

(a) These terms and conditions of sale, as amended from time to time by MAPAL, apply to all sales of Product and Services to the Customer.

3. Quotations and orders

(a) Any quotation given by MAPAL to the Customer is not an offer or obligation to sell and MAPAL reserves the right to accept or reject any order it receives.

(b) A quotation is open for acceptance within the period stated in the quotation or within 30 days if no period is stated.

(c) Until MAPAL accepts in writing, an order submitted by the Customer, MAPAL is not obliged to supply the Product so ordered to the Customer. MAPAL reserves the right to refuse any order based on a quotation within 7 days after receiving the order.

(d) If the Customer defaults under these terms and conditions, MAPAL may cancel, suspend, or vary the terms and conditions of any incomplete order that has been accepted by MAPAL without notice to the Customer and without being liable to the Customer.

(e) MAPAL is not responsible to the Customer for a breach of its obligation to supply the Product pursuant to an order MAPAL has accepted, or for any delay in delivery, if the failure to supply or the delay in delivery, is caused by matters beyond the reasonable control of MAPAL (including, without limitation, act of God, acts of government, war or other hostility, national or international disaster, fire, explosion, power failure, equipment failure, strike or lockout, inability to obtain necessary supplies and any other force majeure occurrence).

(f) Under no circumstances is MAPAL liable for any consequential loss or damage resulting from any breach of contract or warranty, including breach of an essential term, and MAPAL’s liability is limited to the order price of the Product.

4. Prices

(a) Prices quoted in any order apply to that order only and do not apply in any other circumstances.

(b) All prices will be subject to the Goods and Services Tax (GST) if applicable.

5. Payment

(a) All invoices are payable 30 days after the end of the month in which the goods or services are supplied by MAPAL.

(b) Time is of the essence for all the Customer’s obligations.

(c) MAPAL reserves the right to charge interest and administration charges of 2% above the overdraft rate charged to MAPAL by its bank to the Customer on overdue accounts.

(d) The Customer agrees to pay MAPAL any expenses (including legal costs) incurred in collecting any outstanding debts due by the Customer to MAPAL.

6. Delivery

(a) Any delivery times notified to the Customer are estimates only and MAPAL is not responsible for late or non-delivery.

(b) If the Customer requests MAPAL to postpone delivery of the Product beyond the delivery date or dates specified in the order, MAPAL may agree to do so if the Customer pays an additional fee for such postponement and for storage charges.

7. Retention of title

(a) It is expressly agreed and declared that the Product delivered by MAPAL to the Customer remains the sole and absolute property of MAPAL as legal and equitable owner until all money due to MAPAL has been paid to MAPAL, but such Product will be at the Customer’s risk from the time of delivery of the Product to the Customer.

(b) The Customer undertakes to store the Product on its premises separately from its own goods or those of any other person and in a manner which makes the Product readily identifiable as MAPAL’s Product, until delivery of the Product to a third party.

(c) The Customer may resell the Product but only as fiduciary agent of MAPAL.

(d) The Customer must keep an amount from the proceeds of sale, which is equal to the debt owed to MAPAL in a separate identifiable account as the beneficial property of MAPAL and must immediately pay such amount to MAPAL upon request.

(e) The Customer’s right to possession of the Product ceases if it does anything or fails to do anything which would entitle a receiver, a receiver and manager, an administrator, or a trustee to be appointed in respect of the Customer, its undertaking or property or any part thereof, or entitle a person to present a creditor’s petition for winding up the Customer

(f) MAPAL may for the purpose of examination or recovery of the Product enter upon any premises where the Product is stored or where it is reasonably thought to be stored.

(g) If the Customer uses the Product in some manufacturing or construction process of its own or some third party, then the Customer must hold such part of the proceeds of such manufacturing or construction process as relates to the Product in trust for MAPAL.

(h) These provisions apply notwithstanding any arrangement under which MAPAL provides credit to the Customer. To the extent that there is any inconsistency, these provisions prevail.

8. Claims and liabilities

(a) Any claim by the Customer as to incorrect performance or breach of these terms and conditions (other than a claim made under Clause 8) must be made to MAPAL in writing within 30 days of delivery, for which time is of the essence.

(b) Where a claim relates to the warranties under Clause 8, the limitations and exclusions in that clause apply.

(c) The total liability of MAPAL, its employees, servants and agents is limited to one or more of the following at the option of MAPAL:

. (i) replacement of the Product supplied or supply of equivalent Product.

. (ii) payment of the cost of replacing the Product or of acquiring equivalent Product;

. (iii) payment of the cost of having the Product repaired; and does not extend to consequential loss or damage.

9. Warranties and indemnities

(a) The Customer represents and warrants that:
(i) any material (including but not limited to drawings, designs, models, specifications and any documents) provided by the Customer to MAPAL for use by MAPAL in connection with this Agreement is the sole property of the Customer or the Customer is legally entitled to allow MAPAL to use such material for the purpose of this Agreement.
(ii) the use by MAPAL for the purposes of this Agreement of any material provided by the Customer will not infringe any intellectual property rights of any third party; and
(iii) without limiting the effect of paragraphs (i) and (ii) the Customer, being legally entitled to do so, authorises MAPAL to reproduce the material for the purposes of this Agreement.

(b) The Customer will indemnify and keep indemnified and hold harmless MAPAL, its employees and agents from and against all and any liabilities, actions, proceedings, claims or demands against all losses, damages, costs or expenses of MAPAL of whatsoever kind which arise directly or indirectly out of or in connection with:
(i) the performance by MAPAL of its rights and obligations under this Agreement including the provision of services; and
(ii) breach of any of the representations or warranties made or given by the Customer in the Agreement

(c) MAPAL warrants that any Product sold by it will be of merchantable quality. This warranty does not apply where in MAPAL’s opinion a defect has been caused by careless or improper handling, by non-adherence to operating instructions or by fair wear and tear.

(d) For the purpose of making any claim in accordance with this clause the Customer must:
(i) immediately upon becoming aware of circumstances giving rise to a claim under this clause, notify MAPAL in writing setting out full particulars of the claim;
(ii) allow MAPAL, its employees and agents full and free access to the Product in relation to which the claim is made and to the place where the Product has been applied or used for the purpose of conducting such tests as MAPAL may, in its absolute discretion, consider necessary to determine whether the claim is justified or not

(e) MAPAL shall take all reasonable steps to care for tools supplied by the Customer, provided that the Customer carries insurance of such tools. Repairs where necessary shall be at the expense of the Customer.

10. Advice

(a) If MAPAL provides advice or other information to the Customer, it shall do so in good faith, but the Customer is responsible for confirming the accuracy and reliability of that advice with respect to the use which the Customer makes or intends to make of the goods supplied by MAPAL.

11. Governing law

(a) This Agreement is governed by the laws of Victoria notwithstanding the place in which the Product or Service is delivered. The Customer and MAPAL irrevocably submit to the exclusive jurisdiction of the court of Victoria.

12. Whole agreement

(a) These terms and conditions and any warranties implied by law which are not capable of being excluded or modified embody the whole agreement between the parties and, subject to the express terms contained in any written order and written acceptance thereof (which will only apply to that particular order), all previous negotiations, representations, warranties, arrangements and statements (if any), whether expressed or implied, including any collateral agreement or warranty, regarding the subject matter or the intentions of either of the parties are merged in these terms and conditions and otherwise are hereby excluded and cancelled. The Customer acknowledges that it has not been induced to enter into this agreement by any representation, advice or information given or made by or on behalf of MAPAL.

13. Privacy Act authority

(a) For the purposes of assessing the credit-worthiness of the Customer from time to time and the collection of payments, the Customer authorises MAPAL, its employees and agents to make such enquiries as they deem necessary including, without limitation, making enquiries of and obtaining reports (as may be allowed by law) from persons nominated by the Customer as trade referees, the Customer’s creditors, bankers and financiers, credit providers, mortgage and trade insurers and credit reporting agencies (“the information sources”). The Customer consents to the information sources providing to MAPAL such information as is requested by MAPAL and permitted to be given by law. The Customer also consents to MAPAL disclosing personal information or the contents of any credit report to a credit reporting agency for the purpose of that credit reporting agency creating or adding to any credit information file in relation to the Customer.