Terms and Conditions Agreement

1. Definitions

Agreement means this Contract and any annexures;

Client means the person/s buying the Goods as specified in any invoice, document or order and if there is more than one Client is a reference to each Client jointly and severally. 

Delivery means delivery of the Goods to the Client.

Goods means the goods and/or Services supplied by us to you under this Agreement;

GST means the goods and services tax as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth); 

Force Majeure Event shall include but is not limited to an Act of God, war, natural disaster (including but not limited to an earthquake, flood, hurricane, volcano event, wildfire/bushfire or landslide, accidents, fire, storm, pandemic, COVID lockdown and/or transport delays resulting therefrom, terrorism, strike, embargo, civil disasters, change of legal/political environment, business disruption, revolt, energy failure and/or external telecommunications failure; 

Order means an accepted order placed by the Client with the Supplier for Goods;

Parties is a reference to both us and you;

PPSA means 

a.   the Personal Property Securities Act 2009; and 

b.   the Personal Property Securities Regulations 2010, 

as amended, supplemented, or affected by any other applicable legislation of the Commonwealth, or any State or Territory of Australia. 

PPSA Register means the Personal Property Securities Register within the meaning of, and as defined in, the PPSA;

Purchase Order means an invoice, quotation, purchase order or other document detailing the Goods wishing to be ordered; 

Quotation means the document issued by ML Group Holdings Pty Ltd outlining the estimate of the cost for the provision of the Goods. 

Services means the Services, if any, to be supplied as part of the Goods under this Agreement;

Specifications include but are not limited to the window ratings, design window pressures, any design specifications (including measurements, dimensions and colour), relevant building codes and Australian Standards applicable to the Goods.

Supplier means ML Group Holdings Pty Ltd (ACN 654 782 395); 

Terms means the Terms included in this Agreement;

You/Your means the Client to whom we are providing the Goods to under this Agreement;

We/Us/Our means ML Group Holdings Pty Ltd (ACN 654 782 395). 

2. Acceptance 

   2.1. The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these Terms if the Client places an order for or accepts delivery of the Goods. 

   2.2. These Terms may only be amended with the Supplier’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Supplier. 

3. Term of Agreement and Estimate

   3.1. The terms of this Agreement will commence on the earlier of: the date you sign it; instruct us to commence work; or pay a deposit. These terms remain in effect until all the Goods you have ordered from us  have been delivered, unless the order for such Goods  are terminated in accordance with this Agreement. The term may be extended by written consent of the Parties. 

   3.2. Any quotation provided is an estimate of the total costs based on your instructions and the apparent work that needs to be done to deliver the Goods. The estimate may increase if additional time and materials are required. Where possible we will inform you in advance of any increase to the original estimate. 

4. Availability of Goods and Orders

   4.1. The Supplier reserves the right to withdraw any Goods from sale temporarily or permanently without prior notice to you for any reason. Some Goods might still appear on the Website for a period of time after that withdrawal but that is not a representation they are available. 

   4.2. The Supplier reserves the right to accept or reject your Purchase Order for any reason, including without limitation, an error in the product description or price posted on the Website, the availability of Goods, or an error in your Purchase Order. Your contract with the Supplier comes into existence when you receive email confirmation from the Supplier confirming receipt of your order, an acceptance of your order, confirmation of receipt of your payment and details of the likely delivery. 

   4.3. You acknowledge and agree that:

        4.3.1. all pictures and images of Goods displayed on the Website are for illustration purposes only, and the appearance and dimensions of Goods may differ in real life; and 

        4.3.2. you have read and fully understand and accept any written description of the Goods prior to submitting your Order.  

5. Payment Terms and Reimbursement of Expenses

   5.1. Residential Payment Terms 

       5.1.1. The Client is required to make payment upfront for any Goods purchased from the Supplier. 

       5.1.2. Invoices are due within 14 business days of receipt. Late payments of invoices will incur penalty fees of 5% p.a. calculated daily. 

   5.2. Developers Payment Terms 

       5.2.1. We require a deposit equal to 50% of the total amount in the quotation. 

       5.2.2. The remaining amount owing is payable 7 days prior to delivery of the Goods.

       5.2.3. Invoices are due within 14 business days of receipt. Late payments of invoices will incur penalty fees of 5% p.a. calculated daily. 

        5.2.4. Where the total fees for the Goods exceed $10,000 we reserve the right to invoice you in installments while undertaking delivery of the Goods , and before completion of delivery of the Goods. We reserve the right to stop work in the event you cease paying the instalments. 

   5.3. Once full payment has been received, we will transfer ownership of the Goods  to you. Until this point, we retain ownership over the materials and any benefits derived from the Goods.

   5.4. In respect of any Order, we will charge you and you agree to pay: 

       5.4.1. The cost of the Goods, as invoiced; and 

       5.4.2. The Delivery Fee (if applicable). 

   5.5. In the event that this Agreement is terminated by you before completion of Delivery  of the Goods but where the Goods  have been partially delivered, we will be entitled to a pro rata payment of the total quotation up until the date of termination.

   5.6. Where we need to purchase materials or make any reasonable and necessary expenses to provide the Goods, you agree to reimburse us for such expenses if they are outside of the scope of the invoiced Goods where possible we will pre-approve expenses with you first.

   5.7. Unless otherwise stated, all amounts, including out of pocket expenses, expressed and described on or in connection with this Agreement and/or invoices are listed in Australian Dollars (AUD) and are GST inclusive. 

6. Shipping & Delivery 

   6.1. Date of Delivery is quoted in good faith and in light of conditions and circumstances prevailing at the time, but no responsibility is accepted by the Supplier for delay due to a Force Majeure Event or any other cause beyond the Supplier’s control. Unless there are exceptional circumstances, we will make every effort to fulfill your Order. 

   6.2. Delivery of the Goods is taken to occur at the time that the Supplier (or the Supplier’s nominated carrier) delivers the Goods to the Client’s nominated address, even if the Client is not present at the address.

   6.3. The Supplier accepts no responsibility or liability for deliveries after they have been left at your designated delivery address. Risk in the Goods pass to you on the date and time of Delivery of the Goods to the delivery address provided in your Order.

   6.4. The Supplier uses delivery agents to deliver your Goods. You agree that your details including your delivery address to be supplied to the delivery agent for the purpose of delivering your Goods. 

   6.5. You acknowledge and agree that additional delivery fees may be payable if your Order incurs additional charges, for instance, because you provide an incorrect delivery address and a second delivery attempt is required.

   6.6. The Client must take delivery by receipt or collection of the Goods whenever they are tendered for Delivery. In the event that the Client is unable to take delivery of the Goods as arranged then the Supplier shall be entitled to charge a reasonable fee for redelivery and/or storage. 

   6.7. Delivery of the Goods to a third party nominated by the Client is deemed to be delivered to the Client for the purposes of this agreement. 

   6.8. You indemnify the Supplier against any loss or damage you might suffer or incur arising out of delivery of the Goods to anywhere other than a kerbside or road. 

   6.9. You acknowledge and agree that the Supplier’s delivery drivers are not authorised representatives of the Supplier for any purposes arising under this clause. The Supplier may integrate delivery through the use of delivery agents. Those third party delivery service providers and delivery companies are not authorised representatives of the Supplier for any purposes arising under these Terms. You acknowledge that the Supplier is not the provider of these third party delivery options and merely facilitates your interaction with the third party delivery providers and delivery companies. 

7. Termination

   7.1. The following events constitute an Event of Default:

        7.1.1. If you fail to make payment required by this Agreement on the due date for payment and do not remedy such breach within 30 days of the due date;

        7.1.2. If we ascertain that you have made any false, misleading or inaccurate statements having a material effect in relation to the making of this Agreement;

         7.1.3. If in our reasonable opinion, you act in a manner which has, or is likely to, adversely affect our business; and

         7.1.4. Either party becomes insolvent. 

   7.2. We may terminate this Agreement immediately or on a specified date by issuing a notice to you if:

         7.2.1.If you suffer an Event of Default as defined in clause 7.1;

         7.2.2. you breach any term of this Agreement;

         7.2.3. you become insolvent, go into liquidation, are wound up, commit an act of bankruptcy or enter into a scheme of arrangement with any creditor; or

         7.2.4. you do anything which brings our reputation into disrepute. 

   7.3. You may terminate this Agreement if we suffer an Event of Default under clause 7.1 by giving us 30 days written notice. 

   7.4. On termination of this Agreement for any reason, or if an Event of Default occurs, you must pay for all Goods and work performed by us up to the date of termination, including any part performance (on a pro rata basis), and irrespective of whether the Goods were delivered before the Event of Default or the termination. Default interest will be applied to this amount until any outstanding balance is paid in full. We retain the right to enforce any performance we deem appropriate including court action and you will be liable for legal and enforcement costs on the basis of full indemnity. 

8. Use of Subcontractors

   8.1. We may, at our discretion, engage third party subcontractors to perform any of our obligations  under this Agreement. 

9. Client’s Responsibilities 

   9.1. It is the Client’s responsibility, in accordance with the relevant Australian Standards, to advise the Supplier in writing of:

        9.1.1. the window ratings;

        9.1.2. design window pressures;

        9.1.3. any design specifications (including measurements, dimensions and colour); and 

        9.1.4. the relevant building codes and Australian Standards. 

(‘Specifications’)

   9.2. It is the Client’s responsibility to check the details of the Goods in the Quotation in relation to the Specifications. To the extent permitted by law, the Supplier will not be liable for any incorrect details of the Goods in relation to quantities, description, sizes, dimensions, colours, glass and accessories or any loss suffered by the Client as a result of ordering incorrect or unsuitable Goods. 

   9.3. The Client must ensure that the Goods are suitably stored when on site, including but not limited to protected from weather, theft and damage. 

   9.4. The final cleaning of the Goods after they’ve been installed is the responsibility of the Client. 

10. Risk

 10.1. In the event any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, the Supplier is entitled to receive all insurance proceeds payable for the Goods. The production of these Terms is sufficient evidence of the Supplier’s rights to receive insurance proceeds. 

 10.2. If the client requests the Supplier to leave Goods outside the Supplier’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk. 

 10.3. The Client acknowledges that Goods supplied may: 

       10.3.1. fade or change colour over time; 

       10.3.2. expand, contract or distort as a result of exposure to heat, cold, weather;

       10.3.3. mark or stain if exposed to certain substances; and/or  

       10.3.4. be damaged or disfigured by impact or scratching. 

11. Retention of Title and PPSA

 11.1. Items and property pertaining to the Goods supplied will remain our property and will not pass on to you until payment of the money owing for the Goods and any other money owing by you to us has been fully paid.

 11.2. You shall, at our request, assist in taking any measures necessary to protect our title in the Goods supplied.

 11.3. Until the Goods have been paid for in full:

       11.3.1. You have possession of the Goods as bailee only;

        11.3.2. You must properly store, protect and insure the Goods, including storing them in a manner that shows clearly they are our property; and 

        11.3.3. You may sell or consume the Goods, in the ordinary course of business, but only as our fiduciary agent.

 11.4. You have no authority to bind us to any liability by contract or otherwise and must not purport to do so.

 11.5. You must, if requested by us, deliver the Goods to us, failing which, we are irrevocably authorised to enter the place where the Goods are being stored and repossess the Goods, if: 

        11.5.1. You fail to pay a due amount owing following demand by us;

        11.5.2. You commit an act of bankruptcy;

        11.5.3. A receiver is appointed to you;

        11.5.4. You go into liquidation, administration, or some other form of insolvency administration;

        11.5.5. You cease to carry on business; or

        11.5.6. You enter into a scheme or compromise with your creditors. 

 11.6. The Supplier’s property in the Goods is not affected if the Goods become a fixture attached to your or a third party’s premises.

 11.7. The Supplier may commence legal action against you if the Goods are not paid for, although property in the Goods has not passed to you.

 11.8. You irrevocably agree and consent to us registering our interest in the Goods on the PPSA Register pursuant to the provisions of the PPSA and doing all things necessary to assist with registering the Goods. 

12. Warranties and Indemnities

 12.1. You agree that you are relying only on the Terms expressed in this Agreement and relevant invoices, and not on any other information or representation given by us.

 12.2. To the extent permitted by law, the Supplier disclaims all liability arising from, or in any way connected with the Goods, including any liability for consequential or indirect losses, whether caused by breach of statute, contract, negligence or other tort. 

 12.3. To the extent permitted by law, the Supplier disclaims all liability arising from, or in any way connected with the Goods in circumstances where termites or structural conditions cause issues with the Goods. 

 12.4. You will indemnify us against any claims resulting from any work or service we carry out on your request.  

 12.5. The Supplier is responsible for waterproofing its Goods only. If the structure is not waterproofed correctly and the Supplier is installing the Goods, all warranties are voided. 

13. Confidentiality and Intellectual Property

 13.1. Both parties agree not to disclose any confidential information about the other party and their business except as required by law. Any intellectual property produced under this Agreement remains our property. 

 13.2. Where Goods are manufactured to a Client’s instructions, the Client will indemnify and keep indemnified the Supplier against any liability to or action by a third party for infringement or alleged infringement of a patent, registered design, trademark of copyright arising from the Supplier complying with the Client’s instructions. 

14. Force Majeure Event

 14.1. The Supplier will not be liable for any loss or inconvenience caused by a delay in delivery of materials or Goods under this Agreement, including any delay caused by a Force Majeure Event. 

 14.2. If we are wholly or partially unable to perform our obligations under this Agreement because of a Force Majeure Event, then:

                 14.2.1. After the Force Majeure Event arises, we will use reasonable endeavours to notify you of the extent to which we are unable to perform our obligations;

                 14.2.2. We will use reasonable endeavours to mitigate the effect of the Force Majeure Event; and

                 14.2.3. We will not be liable to you for any liability or loss you may suffer or incur as a result of the Force Majeure Event.

 14.3. If a Force Majeure Event occurs and has continued for a period of more than 60 days, and we are unable to perform our obligations under these Terms, either party may terminate this Agreement. 

15. Dispute Resolution 

 15.1. Compulsory 

If a dispute arises out of or relates to this Agreement, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).

 15.2. Notice

A party to this Agreement claiming a dispute (‘Dispute’) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute. 

 15.3. Resolution

On receipt of that notice (‘Notice’) by the other party, the parties to the Terms (‘Parties’) must:

       15.3.1. Within 14 days of receipt of the Notice endeavor in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;

       15.3.2. If for any reason whatsoever, 14 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of mediator or request that an appropriate mediator be appointed by the President of the Australian Mediation Association or his or her nominee;

        15.3.3. The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and, without limiting the foregoing, undertake to pay any amounts requested by the mediator as a precondition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;

          15.3.4. The mediation will be held in Melbourne, VIC. 

 15.4. Confidential

All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence. 

 15.5. Termination of Mediation 

If 2 weeks have elapsed after the start of the mediation for the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so. 

16. General

 16.1. To the extent permitted by law, the Supplier will not be liable for the non-compliance and/or faulty performance of any windows where the Client failed to advise the Supplier in writing of the Specifications. 

 16.2. The relationship between the Parties under this Agreement does not constitute a partnership, agency, joint venture or any form of fiduciary relationship or contract of employment. 

 16.3. Nothing in this Agreement limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including Australian Consumer Law (or any liability under them) by which law may not be limited or excluded. 

 16.4. The clauses relating to Intellectual Property, Liability and Indemnities and any other clause that by its nature is intended to survive the expiry or termination of this Agreement, shall be deemed to survive expiry and termination. 

 16.5. You warrant to us that you have the power to enter into and perform the obligations of this Agreement without breaching any other legal rights or obligations.

 16.6. You agree that your relationship with us is not exclusive. We may enter into arrangements with other parties for similar work. 

 16.7. This Agreement may be executed in counterparts.

17. Modification and Waiver 

 17.1. Any modification of this Agreement will only be binding if stated in writing and signed by an authorised representative of each Party. 

 17.2. Waiver of any provision or right under this Agreement must be in writing and signed by the party entitled to the benefit of the provision or right being waived. 

 17.3. A failure or delay by the Supplier to exercise a power or right under these Terms and Conditions does not constitute a waiver of that power or right, and the exercise of a power or right by the Supplier does not preclude its future exercise or the exercise of any power or right by or on behalf of the Supplier.

18. Notice

All notices, approvals, consents or other communications under this Agreement must be provided in writing to the other Party, or their designated representative. 

19. Governing Law 

The Terms and Conditions contained within this Agreement are governed by the laws of Victoria and the Commonwealth of Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria. 

20. Entire Agreement 

 20.1. This Agreement together with the Invoice contains the entire agreement between the parties and excludes any oral representations that are inconsistent with the written documents.

 20.2. These Terms and any document expressly referred to in them represent the entire agreement between the Parties and supersedes any prior agreement, understanding or arrangement between the Parties, whether oral or in writing. If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed, and the rest of the Terms shall remain in force.