MezzStor Pty Ltd (ABN 71 616 251 319)

Goods & Services Conditions of Sale

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These Conditions of Sale are to be read in conjunction with the details contained in your Quote. The Quote and these Conditions of Sale will form the terms and conditions of a Sale Agreement between you (the “Buyer”) and MezzStor Pty Ltd (ABN 71 616 251 319) (“MezzStor Systems”).

1 Definitions and interpretation

1.1 Definitions

Agreement means the Quote together with these Conditions of Sale.
Buyer means the purchaser of the Goods, the details of whom are set out in the Quote.
Goods means the Goods specified in the Quote.
MezzStor Systems means MezzStor Pty Ltd (ABN 71 616 251 319).
PPSA means the Personal Property Security Act 2009 (Cth)

1.2 Interpretation

(a) Words importing the singular number include the plural and vice versa. Any gender includes the other genders. Any reference to a person includes a reference to a corporation, firm, authority, government or governmental agent.

(b) A reference to legislation or to a legislative provision includes all regulations, orders, proclamations, notices or other requirements under that legislation or legislative provision. It also includes any amendments, modifications or re-enactments of that legislation or legislative provision and any legislation or legislative provision substituted for, and any statutory instrument issued under, that legislation or legislative provision.

(c) The clause headings in, and the index to, this Agreement are for reference purposes only and do not in any way influence or affect the meaning of this Agreement.

(d) A reference to any deed, agreement, licence, document or other instrument (including this Agreement) includes a reference to that deed, agreement, licence, document or other instrument as renewed, extended, novated, varied or substituted from time to time.

(e) A reference to any party to this Agreement or to any other deed, agreement, licence, document or other instrument required under this Agreement or for the purposes of this Agreement includes that party’s executors, administrators, substitutes, successors and permitted assigns.

(f) Where under or pursuant to this Agreement or anything done under this Agreement the day on or by which any act, matter or thing is to be done is not a Business Day such act, matter or thing must be done on the immediately preceding Business Day.

(g) Where under or pursuant to this Agreement or anything done under this Agreement the day on or by which any act, matter or thing is to be done is the 29th, 30th or 31st day of any month in which such a day does not occur, such act, matter or thing must be done on the last Business Day of that month.

(h) References to clauses are references to clauses of this Agreement.

(i) A reference to winding up or bankruptcy includes bankruptcy, winding up, liquidation, dissolution, and becoming an insolvent under administration (as defined in s 9 of the Corporations Act 2001) and to the circumstances and events giving rise to or constituting such condition or matters.

1.3 Sole agreement

This Agreement forms the basis of a written agreement which exclusively and completely state the rights of the Buyer and MezzStor Systems with respect to the sale of the Goods and/or Services. This Agreement supersedes all negotiations and prior agreements, whether written or oral, in respect of the Goods, including any previous agreement between the Buyer and MezzStor Systems with respect to the sale or leasing of the Goods.

1.4 Non-Exclusions

Nothing in these conditions exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010 (Cth)) and which by law cannot be excluded, restricted or modified.

2 The Quote

2.1

Unless otherwise stated the Purchase Price specified in the Quote is exclusive of Goods and Services Tax (GST).

2.2

The Quote constitutes an offer by MezzStor Systems to sell the Goods and/or Services to the Buyer for the Purchase Price specified in the Quote.

2.3

Unless previously withdrawn, MezzStor Systems’ Quote will remain open for acceptance within the period stated in the Quote or, when no period is so stated, within 30 days of the date of the Quote.

2.4

MezzStor Systems’ Quote may be accepted by the Buyer signing the Quote or providing a written instruction and where required paying to MezzStor Systems the Deposit.

3 Title and rights in relation to Goods

3.1

Title to the Goods passes to the Buyer free of encumbrances and all other adverse interests upon receipt by MezzStor Systems of payment in full of the Purchase Price together with any amounts previously owing to MezzStor Systems. Until title to the Goods passes to the Buyer, the Seller holds a security interest in the Goods and all proceeds from the sale of the Goods as contemplated under the PPSA.

3.2

MezzStor Systems reserves the rights in relation to the Goods until all accounts owed by the Buyer to MezzStor Systems are fully paid. These are rights:

(a) to ownership of the Goods;

(b) to enter the Buyer’s premises (or the premises of any associated company or agent where the Goods are located) without liability for trespass or any resulting damage and retake possession of the Goods; and

(c) subject to, and in accordance with, the Personal Property Securities Act 2009 (Cth), to keep or resell any Goods repossessed pursuant to this clause.

3.3

If the Buyer resells the Goods or products manufactured using the Goods, the Buyer must hold part of the proceeds of any such sale, as represents the invoice price of the Goods sold or used in the manufacture of the Goods sold, in a separate identifiable account as the beneficial property of MezzStor Systems. The Buyer must pay this amount to MezzStor Systems upon request. Despite these provisions, MezzStor Systems is entitled to maintain an action against the Buyer for the Purchase Price and the risk of the Goods must pass to the Buyer upon delivery.

3.4

Prior to title in the Goods passing to the Buyer under the terms of this agreement, the Buyer agrees that:

(a) the Buyer has no right or claim to any interest in the Goods to secure any liquidated or unliquidated debt or obligation MezzStor Systems’ owes to the Buyer;

(b) the Buyer cannot claim any lien over the Goods;

(c) the Buyer will not create any absolute or defeasible interest in the Goods in relation to any third party except as may be authorised by MezzStor Systems; and

(d) where the Buyer is in actual or constructive possession of the Goods:

A. the Buyer will not deliver them or any document of title to the Goods to any person except as directed by MezzStor Systems; and
B. it is in possession of the Goods as a bailee of those Goods and owes MezzStor Systems the duties and liabilities of a bailee.

3.5

In connection with the Goods, MezzStor Systems states to the Buyer that:

(a) MezzStor Systems has the right to supply the Goods to the Buyer;

(b) the activities of the Buyer in supplying the Goods do not infringe the rights of the owner of the Goods (where MezzStor Systems is not the owner of the Goods); and

(c) if the Goods are not owned by MezzStor Systems, that MezzStor Systems is authorised to supply the goods to the Buyer.

3.6

MezzStor Systems and the Buyer agree that:

(a) the property of MezzStor Systems in the Goods remains with MezzStor Systems until MezzStor Systems has been paid in full for the Goods under all individual contracts for the supply of the Goods;

(b) the Buyer is a bailee of the Goods until property in them passes to the Buyer and this bailment continues in relation to each of the Goods until the price of the Goods has been paid in full; and

(c) pending payment in full for the Goods, the Buyer:

A. must not supply any of the Goods to any person outside of its ordinary or usual course of business;
B. must insure the Goods for their full insurable or replacement value (whichever is the higher) with an insurer licensed or authorised to conduct the business of insurance in the place where the buyer carries on business; and
C. must not remove, deface or obliterate any identifying plate, mark or number on any of the Goods.

3.7

If the Buyer supplies any of the Goods to any person before all moneys payable by the Buyer have been paid to MezzStor Systems, the Buyer agrees that:

(a) it holds the proceeds of re-supply of the Goods on trust for and as agent for MezzStor Systems immediately when they are receivable or are received;

(b) it must either pay the amount of the proceeds of re-supply to MezzStor Systems immediately when they are received, or pay those proceeds into an account with a bank or a financial institution or deposit-taking institution as trustee for MezzStor Systems;

(c) any accessory or item which accedes to any of the Goods by an act of the Buyer, or of any person at the direction or request of the Buyer, becomes and remains the property of MezzStor Systems until MezzStor Systems is paid in accordance with paragraph 8(e)(i); and

(d) if the Buyer fails to pay for the Goods within the period of credit (if any) extended by MezzStor Systems to the Buyer, subject to, and in accordance with, the Personal Property Securities Act 2009, MezzStor Systems may recover possession of the goods at any site owned, possessed or controlled by the buyer and the buyer agrees that MezzStor Systems has an irrevocable licence to do so.

4 Passing of risk

Risk in the Goods passes to the Buyer upon delivery of the Goods to the Buyer or the possession of the Goods by the Buyer, its agent or courier as the case may be.

5 Personal Property Securities Act 2009 (Cth) (PPSA)

5.1

This agreement is a security agreement.

5.2

The interest of MezzStor Systems in the Goods and all proceeds from the sale of the Goods by the Buyer to a third party is a security interest.

5.3

The Buyer consents to MezzStor Systems registering its security interest on the Personal Property Securities Register and agrees to provide all assistance reasonably required by MezzStor Systems to facilitate registration.

5.4

Until title in the Goods has passed to the Buyer as contemplated by clause 3, the Buyer agrees not to in any way assign, charge, lease or otherwise deal with the Goods in such a manner as to create a security interest over the Goods in favour of the Buyer or any third party. [The parties agree that this clause will not prohibit the Buyer from selling the Goods in the ordinary course of business.]

5.5

The Buyer waives its rights to receive any notice under the PPSA (including notice of verification statement) unless the notice is required by that Act and cannot be excluded.

5.6

MezzStor Systems and the Buyer agree that this agreement and all related information and document(s) are confidential (Confidential Information) and will not be disclosed to unauthorised representatives or third parties, except to the extent disclosure is permitted by this agreement or required by law. MezzStor Systems and the Buyer agree that MezzStor Systems will not disclose the Confidential Information pursuant to a request under section 275(1) of the PPSA.

5.7

The parties agree that the Goods are not to be used predominantly for personal, domestic or household purposes, MezzStor Systems and the Buyer agree each of the following requirements or rights under the PPSA do not apply to the enforcement of MezzStor Systems’ security interest in the Goods or of this agreement:

(a) any requirement for MezzStor Systems to give the Buyer a notice of removal of accession;

(b) any requirement for MezzStor Systems to give the Buyer a notice of MezzStor Systems’ proposed disposal of the Goods;

(c) any requirement for MezzStor Systems to include in a statement of account, after disposal of the Goods, the details of any amounts paid to other secured parties;

(d) any requirement for MezzStor Systems to give the Buyer a statement of account if MezzStor Systems does not dispose of the Goods;

(e) any right the Buyer has to redeem the Goods before MezzStor Systems exercises a right of disposal; and

(f) any right the Buyer has to reinstate this agreement before MezzStor Systems exercises a right of disposal of the Goods.

5.8

Expressions defined in the PPSA have the same meaning when used in this agreement.

6 Exclusions of liability

6.1 Non-excludable terms and conditions

(a) If this Agreement attracts the operation of the Australian Consumer Law or any comparable legislation of any other State or Territory, certain conditions and warranties will be implied into this Agreement and rights and remedies conferred upon the Buyer with respect to the Goods and/or Services which cannot be excluded, restricted or modified by agreement (Non-Excludable Terms).

(b) If there are any Non-Excludable Terms in this Agreement, clause 4.2 will not apply to them.

(c) The Buyer acknowledges and agrees that with respect to any Non-Excludable Terms, MezzStor Systems’ liability is limited to one or more of, at MezzStor Systems’ election, replacement (or the cost of replacement) of the Goods and/or Services, the supply (or the cost of supply) of equivalent Goods and/or Services or the repair (or the cost of repair) of the Goods.

6.2 Implied terms and conditions regarding Goods excluded

Subject to clause 4.1 the Buyer agrees that to the full extent permitted by law MezzStor Systems has not given, nor has any person purporting to act with the authority of MezzStor Systems given, any condition, warranty or representation whatsoever in favour of the Buyer:

(a) as to the condition or quality of the Goods and/or Services including, without limitation, latent and other defects and whether or not discoverable by MezzStor Systems or the Buyer;

(b) as to the suitability or fitness for ordinary or any special use or purpose of the Goods and/or Services; or

(c) as to the correspondence of the Goods and/or Services, to any description of it or them.

6.3 Other implied terms and conditions excluded

(a) Except as provided by clause 4.2, no further or other covenants or provisions, whether in respect of the Goods and/or Services, or otherwise will be deemed to be implied into this Agreement or will arise between the Buyer and MezzStor Systems by way of collateral or other agreement by reason of any promise, representation, warranty or undertaking given or made by MezzStor Systems, any supplier, other previous owner of the Goods or any person purporting to act with the authority of MezzStor Systems on or prior to the date of this Agreement. The existence of any such implication or collateral or other agreement is hereby negatived.

(b) Any covenant or provision which is deemed by statute to be incorporated into this Agreement but the operation of which may be lawfully excluded, restricted or modified by agreement between the Buyer and MezzStor Systems or otherwise is hereby, to the maximum extent possible, so excluded, restricted or modified.

6.4 Limitation of liability

(a) Without limiting the forgoing, to the extent permitted by law, MezzStor Systems’ total liability arising out of or in connection with the Goods and/or Services, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the Purchase Price.

(b) Without limiting the forgoing, to the extent permitted by law, MezzStor Systems excludes liability for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by the Buyer, however caused and under any theory of liability (including without limitation negligence). This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.

7 Warranties you make

7.1 The Buyer represents and warrants that:

(a) in entering into this Agreement, it has read, understood and agreed to these terms and conditions;

(b) it has had the opportunity to take legal advice on the terms and effect of this Agreement;

(c) it has full power and authority to enter into this Agreement and do all things required by this Agreement; and

(d) it has complied with all laws.

8 Returned Goods

8.1

Except for any provisions to the contrary contained in this Agreement, MezzStor Systems is not under any duty to accept Goods returned by the Buyer. MezzStor Systems will do so only on terms to be agreed in writing in each individual case.

8.2

If MezzStor Systems agrees to accept returned Goods from the Buyer, the Buyer must return the Goods to MezzStor Systems at MezzStor Systems’ place of business at 7/87 Erindale Road, Balcatta, WA 6021.

9 Termination by MezzStor Systems

9.1

This agreement will automatically terminate if the Buyer enters into any composition or arrangement with its creditors or has a receiver appointed over any of its assets or is the subject of any resolution or petition for winding up or judicial management (other than for the purpose of amalgamation or reconstruction).

9.2 Without limiting the foregoing, MezzStor Systems may terminate this agreement if:

(a) the Buyer is in material breach of any of its obligations under this agreement; and

(b) the breach is capable of remedy fails to remedy the breach for a period of 30 days after receipt of a written notice by the other party requiring rectification of the breach.

9.3

Exercise of the right of termination under this clause will not prejudice the legal rights or remedies which MezzStor Systems may have against the Buyer in respect of a breach of any term, condition or warranty of this agreement.

9.4

The obligations of the parties that by their nature could reasonably construed as being intended to continue to apply beyond the termination of this agreement will continue to apply.

10 Amendment

This agreement may only be amended in writing signed by each of the parties.

11 Place of contract

This Agreement shall be governed by and construed in accordance with the laws of Western Australia. The parties submit to the non-exclusive jurisdiction of the courts and tribunals of the governing law jurisdiction. Nothing in this clause is intended to undermine the jurisdiction of the Federal Court of Australia or Federal Magistrates Court of Australia.