By submitting an Order, the Customer agrees that they have read, understood and will be bound by these Terms.
Terms and Conditions (Commercial) PDF
1. Definitions
In these Terms and Conditions (Terms), the words below have the following meanings:
Agreement means the Agreement formed under clause 2.2.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent State or Territory legislation.
Business Day means any day except a Saturday, Sunday or public holiday in Victoria.
Confidential Information means all information and other content disclosed by Micador to the Customer and includes these Terms and the prices of the Goods or Services but excludes information that:
(a) is public knowledge or becomes available to the Customer from a source other than Micador (otherwise than as a result of a breach of confidentiality); or
(b) is rightfully known to, or in the possession or control of the Customer and not subject to an obligation of confidentiality in accordance with the terms of the Agreement.
Consequential Loss means:
(a) any form of indirect, special or consequential loss, including loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain and loss of opportunity; and
(b) any loss beyond the normal measure of damages.
Customer means the entity or person requesting that Goods and/or Services be supplied to it by Micador.
Delivery Fee means the delivery fee set out at https://micador.com.au/shipping at the time a Customer makes an Offer.
Force Majeure Event means any event arising from, or attributable to, acts, events, omissions or accidents which are beyond the reasonable control of a party.
Goods means the goods to be supplied by Micador to the Customer under the Agreement.
Intellectual Property Rights means any and all intellectual and industrial property rights anywhere in the world including but not limited to the rights comprised in any patent, copyright, design, trade mark, eligible layout or similar right whether at common law or conferred by statute, rights to apply for registration under a statute in respect of those ort like rights and right to protect trade secrets and know how, throughout the world for the full period of the rights and renewals and extensions.
Invoice has the meaning provided to it in clause 3.3.
Loss means any loss, liability, cost, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and includes direct loss and Consequential Loss.
Micador means Micador Australia Pty Ltd (ABN 98 004 509 880).
Offer has the meaning provided to it in clause 2.1.
Order means any order submitted through the website located at https://micador.com.au by the Customer to Micador to supply to the Customer any Goods or provide it with any Services (or both).
PDH Goods or Services means goods or services which, for the purposes of the Australian Consumer Law, are of a kind ordinarily acquired for personal, domestic or household use or consumption.
Purchase Price has the meaning given to it in clause 3.1.
Returns Policy means Micador’s policy (if any), as amended from time to time, in respect of the return of Goods by Micador as published by Micador on https://micador.com.au/guarantee_and_returns.
Services means the services to be supplied by Micador to the Customer under the Agreement.
Specifications means any physical, qualitative, technical or descriptive specifications, dimensions, weights or other particulars of the Goods or Services or photographs or illustrations of the Goods which are supplied by Micador or which may be available on the internet, including as provided in any Order, price list, catalogue, brochure or other document which describes the Goods or Services.
2. Ordering and formation of Agreement
2.1 The Customer acknowledges and agrees that by submitting an Order to Micador the Customer has made an irrevocable offer to Micador for Micador to supply it with the Goods and/or provide it with the Services on the terms of these Terms and the Order (Offer).
2.2 A contract will be formed between Micador and the Customer in respect of each Offer upon the earlier of Micador:
(a) notifying the Customer that it accepts the Customer’s Offer;
(b) making delivery of the Goods the subject of the Offer to the Customer; or
(c) performing the Services the subject of the Offer.
2.3 The Agreement formed under clause 2.2 will comprise these Terms, the Order and the Invoice.
2.4 Micador is not bound to accept any Offer and may not accept any Offer for any reason and in the sole discretion of Micador.
3. Price and payment
3.1 Unless otherwise agreed by the parties, the price the Customer must pay for the Goods and/or Services under the Agreement will be:
(a) the price for the Goods and/or Services specified in the Order; plus
(b) the Delivery Fee, (Purchase Price).
3.2 Subject to clause 14, unless otherwise expressly specified by Micador or in these Terms, all prices stated are stated exclusive of any tax, levy, duty, charge, impost, fee, deduction or withholding (including any interest, fine, penalty, fee or any other amount imposed on or in respect of any of those amounts) (Taxes) and the Customer is solely responsible for the payment of all Taxes levied or payable in respect of the Goods and/or Services. 3.3 Micador may invoice the Customer for the Purchase Price at any time following formation of the Agreement (Invoice).
3.4 Unless otherwise agreed in writing between the Customer and Micador the due date for payment by the Customer to Micador of the Purchase Price is at the time of placing the Order (Due Date).
4. Delivery of Goods and provision of Services
4.1 Micador will deliver the Goods to the Customer in the manner:
(a) determined by Micador; or
(b) as otherwise agreed between Micador and the Customer.
4.2 In the event of the Customer returning or failing to accept any delivery of the Goods, Micador will be entitled to:
(a) payment for those Goods;
(b) treat the obligation to supply the remainder of the Goods (if any) as cancelled by the Customer; and
(c) at the risk and cost of the Customer and without limiting any other rights Micador may have, store any Goods which the Customer refuses to take delivery of or fails to collect.
4.3 Micador will use its reasonable endeavours to deliver the Goods and provide the Services on any date estimated by Micador, however the Customer acknowledges that:
(a) these dates are estimates only;
(b) if Micador does not currently stock a Good, then there may be a delay in the supply of that Good until Micador has restocked that Good; and
(c) order marked ‘Indent only’ means the Goods are ordered especially for the Customer and may take up to 3 months to come into stock.
5. Return of Goods
5.1 The terms of this clause 5 (including any Returns Policy) are subject to clause 7 and, if a Good is not of acceptable quality, faulty, defective or damaged, the Customer may have rights under the Australian Consumer Law which are not affected by this clause 5.
5.2 If there is a Returns Policy, the Customer agrees to be bound by the terms of the Returns Policy and to only return the Goods to Micador in accordance with the terms of the Returns Policy.
6. Title and risk of Goods
6.1 Title to and risk in any Goods supplied under the Agreement passes to the Customer upon the Goods being removed from Micador’s premises (or that of Micador’s supplier or agent) for delivery to the Customer.
6.2 The Customer is responsible for arranging, and taking out in its own name and its own cost, any insurance in respect of the Goods from the time risk passes to the Customer under this clause and Micador is not obliged to give the Customer a notice referred to in section 35(3) of the Sale of Goods Act 1923 (NSW) (or any equivalent legislation).
6.3 The Customer indemnifies Micador against any Loss or damage to the Goods, however caused, occurring after risk in the Goods passes to the Customer.
6.4 In the event that the Customer is required to return any Goods to Micador, risk in the Goods passes to Micador on confirmation of receipt of the Goods by Micador.
6.5 The Customer must not resell or resupply the Goods to any third party without the prior written consent of Micador.
7. Liability
7.1 If the Customer is a Consumer (as defined in section 3 of the Australian Consumer Law) (Consumer) and Micador supplies PDH Goods or Services to the Customer, Micador acknowledges that the Customer may have certain rights under the Australian Consumer Law in respect of the guarantees provided under Division 1 of Part 3-2 of the Australian Consumer Law (Consumer Guarantees) as they apply to the PDH Goods or Services supplied by Micador and nothing in these Terms should be interpreted as attempting to exclude, restrict or modify the application of those rights.
7.2 If the Customer is a Consumer and any goods or services supplied by Micador to the Customer are non PDH Goods or Services, Micador’s liability to the Customer in connection with any breach of the Consumer Guarantees in respect of those non PDH Goods or Services is limited (at Micador’s discretion) to:
(a) in the case of Goods:
(i) the replacement of the Goods or the supply of equivalent goods;
(ii) the repair of the Goods;
(iii) the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the Goods repaired; and
(b) in the case of Services:
(i) the supplying the Services again; or
(ii) the payment of the cost of having the Services supplied again.
7.3 If the Customer makes a claim against Micador which includes a cause of action other than for a breach of a Consumer Guarantee then, to the extent the claim, or part of the claim, does not relate to a Consumer Guarantee and to the extent permitted by law, Micador expressly excludes all liability in respect of the Goods or Services supplied by Micador to the Customer. 7.4 Subject to the rest of this clause 7, the aggregate liability of Micador to the Customer arising out of or in connection with the Agreement will in no event exceed an amount equal to the amount of the Purchase Price received by Micador under the Agreement.
8. Notification of claims
The Customer must notify Micador immediately if it becomes aware of any claim or any death, serious injury or serious illness, in respect of, or caused by, the Goods and the Customer will take all reasonable steps to mitigate any Loss arising as a consequence of the claim, death, serious injury or serious illness.
9. Intellectual Property
9.1 The parties acknowledge and agree that, unless otherwise agreed in writing, as between Micador and the Customer all Intellectual Property Rights in the Goods and any material created as part of the Services vests in and exclusively belongs to and are irrevocably assigned to Micador and the Customer agrees that it must not infringe or use the Intellectual Property Rights of Micador which exist in the Goods or materials created as part of the Services without the prior written consent of Micador.
9.2 The Customer must not modify, adapt, vary, reverse engineer, disassemble or copy all or any part of any Good without the prior written consent of Micador.
10. Indemnity
The Customer indemnifies Micador and holds Micador harmless from and against all Losses (including all legal costs, and any other associated fees and costs) for which Micador incurs as a direct or indirect result of:
(a) any death, injury or illness or damage to property arising from the Customer’s unloading, storage or handling of the Goods;
(b) any breach of the Agreement by the Customer; and
(c) any negligent or wilful act or omission by the Customer, the Customer’s employees, agents, servants, contractors or others for whom the Customer is legally responsible.
11. Specifications
11.1 The Specifications are approximate only and Micador makes no representation or warranty as to the completeness or accuracy of the Specifications and the Customer is responsible for making its own enquiries in relation to the completeness and accuracy of the Specifications provided.
11.2 Micador may make changes to the specifications, dimensions, weights or other particulars of the Goods as may be required from time to time by law or any safety or manufacturing requirements.
12. Confidentiality
12.1 The Customer:
(a) may use Confidential Information solely for the purposes of the Agreement;
(b) must keep confidential all Confidential Information; and
(c) may disclose Confidential Information only to (i) employees and contractors who (A) are aware and agree that the Confidential Information must be kept confidential and (B) either have a need to know the Confidential Information (and only to the extent that each has a need to know), or have been specifically approved by Micador; (ii) as required by law or securities exchange regulation; or (iii) with the prior written consent of Micador.
12.2 The Customer must notify Micador immediately once it becomes aware of any breach of confidentiality in respect of the Confidential Information and must take all reasonable steps necessary to prevent further unauthorised use or disclosure of the Confidential Information.
13. Privacy
The Customer acknowledges and agrees that personal information (as that term is defined in the Privacy Act 1988 (Cth)) regarding the Customer, may be collected, held, used and disclosed by Micador for the purposes set out in Micador’s privacy policy (which privacy policy is available on Micador’s website or on request from Micador). The Customer consents to Micador collecting, holding, using and disclosing any such personal information for all purposes specified in Micador’s privacy policy.
14. GST
14.1 In this clause, words and expressions which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended, varied or replaced from time to time) have the same meaning given to them by that Act.
14.2 Unless otherwise expressly stated in writing in the Agreement, all amounts payable by the Customer in connection with the Agreement do not include an amount for GST. If GST is payable on any supply made by Micador under these Terms, the Customer must pay to Micador, in addition to and at the same time as the payment for the supply, an amount equal to the amount of GST on the supply. Where the Customer is required by these Terms to reimburse or indemnify Micador for any Loss or other amount incurred, the amount to be reimbursed or paid will be reduced by the amount of any input tax credit that Micador will be entitled to claim for the Loss or amount incurred and increased by the amount of any GST payable by Micador in respect of the reimbursement or payment.
15. Termination
15.1 Without limiting Micador’s other rights under these Terms, and to the extent permitted by law, Micador may terminate the Agreement with immediate effect by written notice to the Customer if:
(a) the Customer has breached any term of the Agreement (including these Terms) and, if the breach is capable of remedy, has not remedied the breach within 14 days of receiving notice requiring the breach to be remedied; or
(b) Micador is prevented or delayed in performing its obligations under the Agreement due to a Force Majeure Event.
15.2 Each party retains any rights, entitlements or remedies it has accrued before termination, including the right to pursue all remedies available to either party at law or in equity.
16. Cancellation
16.1 Micador may cancel or suspend the Agreement effective immediately upon providing the Customer with written notice of cancellation or suspension where Micador believes (for any reason) that it will be unable to supply the relevant Goods or provide the Services to the Customer, provided that Micador will refund to the Customer any amounts already paid by the Customer for the Goods or Services subject to the cancellation and which are not provided to the Customer. The refund of any amounts will be the Customer’s sole remedy against Micador in respect of any cancellation under this clause 16.1.
16.2 Neither the Agreement nor any Offer that has been submitted can be cancelled by the Customer except with the prior written consent of Micador.
17. Inconsistency
17.1 Unless otherwise specified in these Terms, in the event of an inconsistency between any of the documents listed in clause 2.3, the following order of precedence will apply to the extent of the inconsistency (1) the prices and quantity of Goods and/or Services set out in the Quote or, if there is no Quote, in the Order (2) these Terms; (3) the Account Application; (4) the Invoice; and (5) without limiting clause 17.2, any terms in the Order.
17.2 These Terms will prevail over any Customer terms and conditions, except to the extent specifically agreed by Micador in writing and any terms or conditions included in an Order or other document provided or issued by the Customer will only be binding on Micador if expressly agreed by Micador in writing.
18. Miscellaneous
18.1 In these Terms:
(a) the meaning of general words is not limited by specific examples introduced by ‘includes’, ‘including’, ‘for example’ or ‘such as’ or similar expressions;
(b) a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes and permitted assigns;
(c) no provision will be construed to the disadvantage of a party because that party was responsible for the preparation of the Terms or the inclusion of the provision in the Terms; and
(d) unless otherwise provided, all monetary amounts are in Australian dollars and a reference to payment means payment in Australian dollars.
18.2 Micador will not be liable for any failure to perform or delay in performing its obligations under the Agreement if that failure or delay is due to a Force Majeure Event.
18.3 Any price list, goods lists or other similar documents or catalogues issued by or on behalf of Micador do not constitute an offer by Micador to supply Goods appearing in those lists or catalogues or an offer by Micador to supply Goods at the prices set out in those lists or catalogues. Micador’s price lists and catalogues may be changed by Micador at any time without notice.
18.4 The Customer must not assign or otherwise deal with any of its rights or obligations under these Terms without Micador’s prior written consent. Micador may, to the extent permitted by law, assign, subcontract or deal with any of its rights or obligations under these Terms at any time in circumstances where, in the opinion of Micador acting reasonably, the assignment will not adversely affect the rights of the Customer.
18.5 Micador may, to the extent permitted by law, vary these Terms from time to time with the variation becoming effective as soon as Micador provides the Customer notice of the variation (Variation Date). Any variation to these Terms will only apply to any Offer made after the Variation Date.
18.6 A failure to exercise or delay in exercising any right under these Terms does not constitute a waiver and any right may be exercised in the future. Waiver of any rights under these Terms must be in writing.
18.7 If any provision of these Terms is void, unenforceable or illegal and would not be so if words were omitted, then those words are to be severed and if this cannot be done, the entire provision is to be severed from these Terms without affecting the validity or enforceability of the remaining provisions.
18.8 The termination or expiry of these Terms or the Agreement does not operate to terminate any rights or obligations that by their nature are intended to survive termination or expiration, and those rights or obligations remain in full force and binding on the party concerned including without limitation the rights and obligations under clauses 5, 6, 7, 8, 9, 10, 14, 15, 17 and 18.
18.9 Each party must:
(a) do all acts necessary or desirable to give full effect to the Agreement; and
(b) refrain from doing anything which might prevent full effect being given to the Agreement.
18.10 The relationship between the parties is and will remain that of independent contractors, and nothing in these Terms or the Agreement constitutes the parties as partners or joint venturers or constitutes any party as the agent of another party or gives rise to any other form of fiduciary relationship between the parties.
18.11 Notices by a party must be delivered by hand, prepaid post or email and sent to the address of the receiving party specified in the Order or, if none are specified, in any other part of the Agreement. Notices will be deemed to have been received: by hand upon delivery; by post within six Business Days of sending; and by email one hour after the email is sent (unless the sender knows that email has failed to send).
18.12 These Terms are governed by the laws in force in Victoria, and the Customer and Micador submit to the non-exclusive jurisdiction of the courts of Victoria.
18.13 The United Nations Convention on Contracts for the International Sale of Goods (1980) (The Vienna Convention) and any acts or regulations enacting The Vienna Convention will not apply to these Terms or the Agreement and are excluded.