TERMS & CONDITIONS

 MFC ENTERPRISES (WA) PTY LTD ACN 620 996 483

AS TRUSTEE FOR MFC TRUST

TRADING AS MENEGOLA FLOORING COMPANY

2/6 Uppill Place, Wangara WA 6065

Telephone: 0433 886 071  Email: admin@menegolaflooring.com.au

1. Any quotation is open for acceptance for a period of forty-five (45) days only. If the recipient of the quote or the party being supplied the goods or services (hereinafter referred to as the “Customer”) purports to accept the quotation after this date MFC Enterprises (WA) Pty Ltd ACN 620 996 483 as trustee for MFC Trust trading as Menegola Flooring Company (“the Company”) may proceed or decline at its discretion. The provision of a purchase order by the Customer to the Company or any other form of acceptance of the quote will constitute acceptance by the Customer of these terms and conditions (“the agreement”).

2. For the avoidance of doubt and notwithstanding any terms of a subsequent purchase order issued by the Customer, unless separately agreed in writing by the Company, the quoted price includes only the goods and services expressly stated on the quote and excludes the exclusions noted, and if any exclusions or additional goods or services are required, the Company’s usual cost of those goods and services will be charged to, and be payable by the Customer to the Company.

3. The Customer agrees to pay, without any deduction or set off in law or in equity whatsoever, the price charged by the Company for the supply of goods and services within 30 days of the date at the end of the month in which the goods or services are provided by the Company or within such other period of time as may be notified to the Customer on the quote or agreed between the Company and the Customer from time to time.

4. The Company shall be entitled to charge interest on all outstanding monies due by the Customer at the rate of 12.0% per annum.

5. The Company may, following the issue of a quote or a purchase order, require payment in advance of the whole or any part of the price to be charged as a condition precedent to the continued supply of goods and/or services by the Company to, or at the request of, the Customer or cease the supply of goods and/or services if there are any outstanding payments due by the Customer to the Company or if the Company, acting reasonably, has reason to doubt the Customer’s ability to pay for the supply in the future.

6. All legal costs (on a solicitor client basis), charges, duties and other expenses incurred by the Company in respect of this agreement or in relation to registering, maintaining or releasing any security interest, charge or caveat (including the cost of registering any financing statement or financing change statement), or incurred as a result of the Customer failing to perform their covenants and obligations contained herein, shall be paid by the Customer to the Company.  The expenses include, but are not limited to, the commission payable to a mercantile agent or a debt collector to pursue or recover outstanding monies pursuant to this agreement and the liability to pay this commission arises at the time the recovery is placed in the hands of the debt collector.

7. Property in any goods supplied by the Company to the Customer will not pass to the Customer until such time as all goods are paid for in full and until such time as the Customer has made payment in full of any other monies owing by the Customer to the Company and has met all of its obligations to the Company. The Customer agrees that goods supplied by the Company to, or at the request of, the Customer shall be at the Customer’s risk (including insurance responsibility) immediately on leaving the Company’s premises or into the Customer’s custody (whichever is the sooner).  The Customer further agrees:-

(i) under this agreement the Company may enter upon the Customer’s premises or elsewhere on at least 48 hours written notice to repossess the goods without being liable for trespass.  The Customer shall indemnify the Company for any loss or damage suffered by the Company and against all claims brought against the Company arising from the Company repossessing the goods;

(ii)     that in the event the Customer uses the goods in some manufacturing or construction process of its own or some third party and so as to meet payment due to the Company under this agreement, the Customer shall hold such part of the proceeds of such manufacturing or construction process as relates to the goods in trust for the Company.  Such part shall be deemed to equal in dollar terms the amount owed by the Customer to the Company at the time of the receipt of such proceeds; and

(iii)     to better secure any outstanding payment due to the Company under this agreement, the Customer appoints the Company as their attorney to collect the goods and/or to collect payment from any third party for the goods and/or to collect payment from any third party who owes monies to the Customer and to apply that payment against the Customer’s account with the Company. If payment is collected by the Company from a third party, then the Customer irrevocably agrees with the Company and with the third party that in providing this attorney the third party’s liability for payment to the Customer in relation to the outstanding monies is reduced by the sum of the payments collected by the Company from the third party.

8. For the purpose of this clause and other relevant clauses in this agreement “PPSA” means the Personal Property Securities Act 2009 and the expressions “accession”, “collateral”, “financing statement”, “financing change statement”, “security agreement”, “security interest”, “perfected security interest” and “verification statement” have the meanings given to them under, or in the context of the PPSA.

(i) This agreement constitutes a security agreement under the PPSA.

(ii) The retention of title arrangement in clause 7 constitutes the grant of a purchase money security interest by the Customer in favour of the Company in respect of all present and after acquired goods supplied to the Customer by the Company.

(ii) If requested by the Company the Customer must immediately sign any documents, provide all necessary information and do anything else required by the Company to ensure that the Company’s purchase money security interest or any other security interest created in favour of the Company is a perfected security interest.

(iii) The Customer must not enter into any security agreement that permits any other person to have or to register any security interest in respect of the goods supplied or any proceeds from the sale of the goods or grant any other security interest in favour of any party until the Company has perfected its purchase money security interest and other security interests created under this agreement.

(iv) The Customer must not do or permit anything to be done that may result in the purchase money security interest or any other security interest granted to the Company ranking in priority behind any other security interest.

(v) To the fullest extent permitted by the PPSA the Customer agrees to contract out of the application of the provisions listed in sections 115(1) and 115(7) and the sections listed therein shall not apply.

(vi) The Customer hereby waives any rights the Customer may otherwise have to:

(a) receive any notices or statements the Customer would otherwise be entitled to receive under sections of the PPSA including for the avoidance of any doubt the sections referred to in sections 115(1) and 115(7) of the PPSA;

(b) apply to a Court for an order concerning the removal of an accession under section 97 of the PPSA;

(c) object to a proposal of the Company to purchase or retain any collateral under sections 130 and 135 of the PPSA; and

(d) receive a copy of a verification statement confirming registration of a financing statement, or a financing change statement, relating to any security interest created under this document.

9. If the Customer (a) defaults in the due and punctual observance of all or any of their obligations or covenants under this agreement and fails to rectify that default within 7 days of receiving notice of that default from the Company; or (b) being a person, dies or commits an act of bankruptcy or enters into a debt arrangement or composition under the Bankruptcy Act 1966 or is unable to pay its debts or anything analogous, or having substantially similar effect, occurs; or (c) being a company, takes or shall have taken against it any action for its winding up, placement under official management, administration or receivership or is unable to pay its debts or anything analogous, or having substantially similar effect, occurs, then all monies owed by the Customer to the Company shall become immediately due and payable and the Company without prejudice to any right or remedies open to it may:

(i) treat as discharged all or any obligation arising from any agreement with the Customer;

(ii) retain any security given or monies paid by the Customer or available though the enforcement of any guarantee, security or bond and apply this in reduction of any sum of money owed or owing by the Customer to the Company;

(iii) reserve the right to enter upon the Customer’s premises or enter upon any premises to which the Customer has a right of access on at least 48 hours’ written notice to take possession of and remove any goods supplied by the Company to the Customer under this agreement or any other agreement between the Company and the Customer for which payment has not been received, without being liable for trespass. The Customer shall indemnify the Company for any loss or damage suffered by the Company and against all claims brought against the Company arising from the Company repossessing the goods;

(iv) take such steps as it may deem necessary to mitigate the damages suffered including the putting to use, hiring out, or sale of any goods supplied under this agreement;

(v) appoint in writing any person or persons to be a receiver or receiver and manager of the property charged under clauses 15 and 16 below or any part of the charged property. The receiver so appointed shall be the agent of the Customer and the Customer shall be solely responsible for all acts and omissions by the receiver appointed under this clause and for the remuneration of the receiver. The receiver shall without the need for any consent on the part of the Customer have all the powers conferred on a receiver under the Corporations Act 2001;

(vi) exercise any other right or remedy available to it under the PPSA including to enforce the security interests created by this agreement.

10. Should there be any variation in the information supplied in this document concerning the Customer, the proprietorship of the Customer’s trading name or a variation in the structure of the Customer’s business (such as conversion to, or from, a trustee), the Company shall forthwith be notified in writing by the Customer by email to the Company’s email address notified above.  Unless such notification is given to the Company, the Customer shall remain liable to the Company as though any goods or services supplied by the Company prior to such notification were supplied to, or at the request of, the original Customer.

11. If any payment made by, or on behalf of, the Customer to the Company shall subsequently be avoided at law or recovered by a liquidator or trustee in bankruptcy, such payment shall be deemed not to have discharged the Customer’s liability and in such event the Company and the Customer shall be restored to the position in which each would have been had the payment not been avoided or recovered. 

12. The Customer agrees that a variation or waiver of a term or condition under this agreement is effective only if it is in writing and signed by the Company and the Customer.  Such waiver is effective only in the specific instance and for the specific purpose it was given.   

13. The Customer agrees and irrevocably authorises the Company to apply, or set-off, against the Customer’s account under this agreement any sums which may be owed to the Customer by any company within the Company group of companies. The Customer further agrees the Company may in its discretion, allocate any payment received from the Customer towards any invoice that the Company determines and may do so at the time of receipt or at any time afterwards and is not compelled to apply the payment as directed by the Customer or any third party. On any default by the Customer, the Company may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Company, payment will be deemed to be allocated in such manner as preserves the maximum value of any security interest held by the Company.

14. The Customer warrants and agrees that where it is, at the time of this agreement, a trustee of any trust (the “Trust”):- (a) to produce a stamped copy of the Trust deed (with all amendments) if and when requested by the Company; (b) that they have full power and authority to execute, or continue with its obligations under, this agreement on behalf of the Trust as it is doing so in its individual capacity and in its capacity as trustee; (c) that it shall be bound by the terms and conditions of this agreement in its individual capacity, or further or alternatively, in its several capacity as trustee.

15. The Customer hereby in favour of the Company charge with the due and punctual payment and the due, punctual and complete performance of all its liabilities and obligations hereunder or on any basis whatsoever to the Company all its legal and equitable interest of whatsoever nature held in any real property both present and future and each of the Customer hereby consents to the Company lodging a caveat or caveats noting its proprietary interest herein.

16. The Customer grants a security interest in all of its present and after acquired property and in all of its present and future rights, title, estate and interest, whether legal and equitable, including in relation to any personal property including any debts owed to the Customer, in favour of the Company to secure the performance of its liabilities and obligations hereunder or on any basis whatsoever.

17. The Company shall have no liability whatsoever to the Customer in the case where any obligation that the Company has to the Customer is delayed, affected, prevented or rendered impractical or unviable by any occurrence to the extent such an occurrence is beyond the reasonable control of the Company including but not limited to: fire, flood, riot, earthquake, strike by employees, civil commotion, Act of God, act of terrorism, pandemic or epidemic event, any health or other government direction, rule or regulation which may impact on the supply of the goods or services or any other ordinance, rule or regulation which becomes effective before or during the supply of the goods or services, to be determined by the Company acting reasonably.

18. In this document words in the singular includes the plural and visa versa, and reference to any gender includes the other genders and where applicable reference to a person includes a body corporate.

19. If any party to this agreement comprises two or more parties each of those parties is jointly and severally liable on the covenants and obligations herein.

20. If any part of this agreement becomes void or unenforceable then that part shall be severed to the intent that all parts that are not void or unenforceable shall remain in full force and effect.  If this document and/or these terms and conditions and/or the further terms below are held to be a standard form small business contract then any clause or term which is deemed to be unfair pursuant to the Australian Consumer Law by any competent authority or the Courts, will be severed from this document and/or these terms and conditions and/or the further terms below.

21. This agreement shall be governed and construed in accordance with the laws of Western Australia and the parties submit to the jurisdiction of the Courts of Perth, Western Australia and waives any right to object to any proceedings being brought in those Courts.

22. None of the provisions of this agreement will merge in or upon the execution of this or any other agreement, document, act, matter or thing and will continue to remain in full force and effect for so long as is necessary to give effect to the provisions of this agreement.

23.     Where there is any inconsistency between the terms and conditions of this agreement and any prior or subsequent agreement between the Company and the Customer (including the Customer’s purchase order), any such prior or subsequent agreement shall be read down to the extent necessary to give full force and effect to the terms and conditions of this agreement. 

24.     To give effect to their obligations under this agreement the Customer hereby irrevocably appoints any solicitor for the Company, from time to time, as its attorney to do any act or thing which they are required to do under this agreement and which they have failed to do after receiving at least 7 days’ written notice from the Company of that failure.

25.     The Privacy Act 1988 requires the Company to have procedures in place that cover the collection, use and disclosure of personal information that the Company may receive from its customers.  This information is needed to process the requirements of the Company’s customers and is used for internal purposes. The Customer authorises the Company to carry out credit checks and obtain credit reports in respect of their credit worthiness in accordance with any law with respect thereto in force from time to time and to disclose to credit reporting agencies the information outlined in this agreement for this purpose. The Customer agrees that the Company may give to and seek from any trade references or credit providers named in this agreement and any providers of credit that may be named in a credit report issued by a credit reporting agency, information about the Customer. The Customer understands that this information can include any information about its credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act. The Customer acknowledges further details of the Company’s privacy policy is available on request or on the Company’s website at https://www.menegolaflooring.com.au/ .

FURTHER TERMS AND CONDITIONS OF SUPPLY

A.  All work is to be carried out during normal business hours. Work requested to be conducted outside business hours, if agreed to be done by the Company, will incur an additional charge.

B.     The Customer warrants all plans and drawings are accurate. If found to be different, the Company is entitled to vary the quote and price.

C.     The site is to be free from rubbish, debris, furniture, equipment and all other trades prior to commencement of installation and the Customer will provide without expense to the Company proper and uninhibited access to the site including but not limited to adequate light, water and power for the completion of the work.

D.     Where the Customer has requested the Company move furniture/equipment, all care and attention will be given, but no responsibility will be accepted for any accidental damaged caused.

E.     Placement of floor covering joins is at the discretion of the Company, unless otherwise specified on the quote.

F.     If the subfloor cannot be fully inspected and condition assessed, the Company cannot accept responsibility for any rectification necessary nor for defects caused by dampness, under floor heating, air conditioning or other extraneous causes.

G.     The Company is not responsible for damage occasioned in the moving of furniture or equipment. The Customer is responsible for:

a)     Uplifting and disposal of existing floorcoverings (unless the quote provides otherwise);

b)     Removing and replacing furniture and equipment;

c)     Ensuring that exposed cabling, including but not limited to phone and electrical data are removed.

H.     The Company is not responsible for damage to walls where skirting boards are not fitted (including but not limited to broken or damaged plaster) or to newly painted surfaces.

I.      The Customer must ensure the door-to-floor clearance is sufficient to accommodate the goods and services selected and to remove and replace doors if required or requested by the Company.

J.     The Customer acknowledges the appearance of the goods and services may be affected by shading, lighting or other external factors and acknowledges this characteristic when purchasing a cut pile carpet.

K.     Where inventory materials have been reserved or cut to size, costs will apply for any variations or cancellations.

L.     The Customer acknowledges that it has inspected the goods, is satisfied the goods are fit for the purpose they are to be used for and are of good quality.  The Customer is aware of the proper use for which the goods are designed.

M.   Notwithstanding anything contained herein the Customer acknowledges that no warranty or condition, express or implied, is given by the Company as to the condition of the goods or as to the suitability or fitness of the goods.  Subject to the extent permitted by legislation any obligation of the Company under these terms and conditions shall be to use its endeavours to supply goods and/or services or to repair or replace (at the Company’s discretion acting reasonably) any goods which are found to be defective during any applicable warranty period (if any) and in no event shall the Company be liable for any other claims, losses or damages including but not limited to claims for any indirect, special or consequential damage including but not limited to damages on account of prospective profits expenditures or other commitments relating to the business or goodwill of the Customer or on account of any consequential loss or damage incurred or suffered by the Customer or customers of the Customer, which arises from or is connected in any way whatsoever with the use of the goods or injury to any person, corporation or other entity.

N.     It is acknowledged by the Customer and the Company that the Australian Consumer Law and other laws may imply conditions or warranties in certain contracts and also give parties to those contracts certain other rights against suppliers of goods and services. To the extent such conditions, warranties or other rights are implied or given in respect of this agreement and it is not lawful or possible to exclude them, then such conditions, warranties or other rights shall (but only to the extent required by law) apply to this agreement and all other conditions, warranties or rights which might but for this provision be implied are hereby expressly excluded. Where the law implies any term or warranty into these terms and conditions which cannot be excluded, then the liability of the Company for any breach of such term will be limited in the manner permitted under section 64A of the Australian Consumer Law to one of the following (as the Company may determine):

(i)     in the case of goods supplied, to any one or more of the following:

(a)   replacement of the goods or the supply of equivalent goods;

(b)   repair of the goods;

(c)   payment of the cost of replacing the goods or of acquiring equivalent goods;

(d)   payment of the cost of having the goods repaired; and

(ii)     in the case of services supplied, to any one or more of the following;

(a)   supply of the services again; or

(b)   payment of the cost of having the services supplied again;

(c)   in the event that the Company (as a deemed “manufacturer”) has a liability to the Customer (as a “Company”) then, subject to the terms of section 276A of the Australian Consumer Law , such liability is limited to a liability to pay to the Customer an amount equal to whichever is the lesser of the cost of:

(i)     replacing the goods;

(ii)     obtaining equivalent services; or

(iii)     having the goods repaired.

O.     The Company will not be liable for any damages or delay in the event of labour or goods shortages and any quotations for completion of work times by the Company are made in good faith but as estimates and not commitments.  The Company shall not be bound by any such estimate and shall have no liability to the Customer for any losses whatsoever or howsoever arising by reason of any delays in the completion of work howsoever caused.  Clerical errors or omissions by the Company, whether in computation or otherwise in any quotation, acknowledgment or invoice, shall be subject to correction.

P.     In these terms and conditions words in the singular include the plural and visa versa, reference to any gender includes the other gender and, where applicable, reference to a person includes a body corporate.