TERMS AND CONDITIONS
These Terms and Conditions apply to all contracts entered into by the Customer with Miller Randle (Aust) Pty Ltd ACN 074 986 477 trading as MRD Home for the provision of goods by MRD to the Customer and govern MRD Home’s relationship with the Customer.
In these Terms and Conditions:
‘Business Day’ means a day that is not a Saturday, Sunday, public holiday or bank holiday in Victoria;
‘Consequential Loss’ means any loss or damage suffered by a party or any other person which is indirect or consequential, including but not limited to loss of revenue, loss of income, loss of business, loss of profits, loss of goodwill or credit, loss of business reputation, future reputation or publicity, loss of use, loss of interest, damage to credit rating, or loss or denial of opportunity;
‘Customer’ means any person offering to contract with MRD Home on these Terms and Conditions including that person’s agents, servants and employees and any related bodies corporate as defined in the Corporations Act 2001 (Cth) and any party named as the Applicant in the MRD Home Credit Application;
‘Customised Order’ means any Goods to be custom designed and manufactured by MRD Home in accordance with the Customer’s specific Order;
‘Goods’ means the Goods provided by MRD Home to the Customer as specified in the Order and includes all materials, equipment and products required to provide the Goods;
‘Invoice’ means the invoice issued by MRD Home to the Customer setting out the amount to be paid by the Customer;
‘Loss’ means any loss or damage whatsoever and howsoever caused and includes, without limitation, injury to or death of any person, damage to any real or personal property (including intellectual property) of any person, loss of income or profits, actual or prospective liability to any third party, any legal costs and any indirect or Consequential Loss or damage;
‘MRD Home’ means Miller Randle (Aust) Pty Ltd ACN 074 986 477 trading as MRD Home and its agents, servants and employees and any related bodies corporate as defined in the Corporations Act 2001 (Cth);
‘Order’ means any Order submitted in writing or online by the Customer to MRD Home for the Goods including Pro Forma Orders and Customised Orders;
‘Premises’ means 7 McGregors Drive, Keilor Park Victoria Australia 3042;
‘Pro Forma Order’ means any order for existing Goods;
‘The Act’ means the Privacy Act 1988 (Cth).
(a) By placing an Order with MRD Home to provide the Goods, the Customer is deemed to have accepted these Terms and Conditions.
(b) Unless MRD Home otherwise agrees in writing, these are the only terms and conditions that apply to the provision of the Goods by MRD Home and the Customer agrees that these terms and conditions will in all circumstances prevail over any other document, Order, Invoice or other terms.
(c) MRD Home reserves the right to change these Terms and Conditions from time to time at its sole discretion including but not limited to variations, modifications and amendments. Any changes will take immediate effect once the Customer is notified in writing of the changes.
(d) Subject to clause 2(e) these Terms and Conditions supersede and exclude all prior and other discussions, dealings, representations, (contractual or otherwise) and arrangements relating to the provision of the Goods including but not limited to those relating to the provision of the Goods or the results that ought to be expected from the Goods.
(e) If there is an inconsistency between any other terms agreed by the Customer and MRD Home in writing and/or these Terms and Conditions, the terms agreed by the Customer and MRD Home will prevail to the extent of any inconsistency.
(f) These Terms and Conditions may be varied by agreement between the parties in writing only.
(g) If any provision of these Terms and Conditions or its application to any person or circumstance is or becomes invalid, illegal or unenforceable, the provision shall, so far as is possible, be read down to such extent as may be necessary to ensure that it is not invalid, illegal or unenforceable. If any provision or part of it cannot be so read down the provision or part of it shall be deemed to be void and severable and the remaining provisions of these Terms and Conditions shall not in any way be affected or impaired.
Once an Order is placed for the Goods, MRD Home will provide a written Invoice. Once the Customer has received the Invoice, the Customer is deemed to have accepted the Invoice together with these Terms and Conditions at which time provision of the Goods as specified in the Invoice becomes binding on the Customer.
4. THE PRICE
Unless otherwise agreed in writing, the price for the Goods shall be the price stipulated in the Invoice.
The prices for Goods displayed on the MRD Home website are indicative only, are not binding upon MRD Home and are subject to change. MRD Home reserves the right to change the prices displayed on its website. Any change to pricing will be notified to the Customer before finalising any Invoice.
If there is any discount applied by MRD Home to the price of any Goods, any discount will only be applicable if payment is made by the Customer within the time frame specified in the Invoice.
5. PAYMENT AND DEFAULT
(a) Unless otherwise agreed in writing by MRD Home (including where otherwise identified in any Invoice issued by MRD Home), all Invoices shall be payable by the Customer prior to the provision of the Goods:
(i) Credit Customers – within 30 days from the date of the Invoice;
(ii) Pro Forma Orders – payment in full within 7 days from the date of Invoice; or
(iii) Sale Orders – payment in full within 7 days from the date of Invoice.
(b) MRD Home may, in its sole discretion, require payment of a non-refundable deposit.
(c) MRD Home reserves the right to charge interest on any overdue amount at the penalty interest rate as set from time to time by Attorney General of Victoria in accordance with the Penalty Interest Rates Act 1983 (Vic) calculated daily and compounded monthly from the due date for payment until payment in full is received by MRD Home;
(d) The Customer agrees to bear all costs incurred by MRD Home in collecting any overdue amounts including but not limited to collector agency fees, legal fees and court costs, on a full indemnity basis.
(i) The Customer defaults on any payments or is unable or states that it is unable to pay its debts as and when they fall due;
(ii) The Customer, being an individual, commits an act of bankruptcy or has a controller or trustee appointed in respect of the Customer’s estate or any part of the Customer’s property or assets;
(iii) The Customer being a company passes a resolution for its winding up or enters into liquidation or has an application for winding up filed against it;
(iv) A receiver, receiver and manager, controller or voluntary administrator is appointed over any part of the property or assets of the Customer; or
(v) The Customer experiences any analogous event having substantially the same or similar effect to any of the events specified above,
then MRD Home may at its option, cancel any Invoice and/or cease to provide the Goods without notice to the Customer and without prejudice to any other action or remedy which MRD Home has or might otherwise have under these Terms and Conditions. In such circumstances, all monies owing and outstanding to MRD Home on any Invoice and irrespective of whether the due date on any Invoice has occurred or passed shall become immediately due and payable.
(a) Pro forma Orders.
MRD Home does not accept cancellation of an Order once payment of the Invoice has been received by MRD Home. Any Order which is not paid within 7 days of Invoice may be cancelled at the sole discretion of MRD Home and the Customer will be liable to pay to MRD Home a cancellation fee together with all costs and expenses incurred in the recovery of the cancellation fee from the Customer.
(b) Customised Orders.
A non-refundable deposit is payable, as noted on the Invoice, for any Customised Order which must be paid within 14 days of the date of Invoice. MRD Home does not accept cancellation of a Customised Order once a deposit has been made in accordance with the Invoice. Where any Customised Order is cancelled by the Customer, the Customer will be liable to pay all costs, expenses and disbursements incurred by MRD Home in relation to production and manufacture of the Goods or purchase of components by MRD Home for the Goods pursuant to the Order prior to its cancellation.
MRD Home does not offer refunds on cancelled Orders, however, reserves the right at its sole discretion, subject to clauses 6(a) and (b) herein, to raise a credit on behalf of the Customer. Any credit raised by MRD Home is valid for and must be used within 12 months.
7. DELIVERY, PROPERTY IN THE GOODS AND RISK
(a) Property in the Goods shall not pass to the Customer until payment for the Goods and any other Goods supplied by MRD Home to the Customer have been paid in full.
(b) MRD Home and the Customer agree that the Goods are delivered from the Premises and that risk in the Goods passes to the Customer upon collection from the Premises.
(c) All Goods are delivered via courier engaged by MRD Home unless otherwise instructed by the Customer and must be signed for by the Customer on delivery unless other arrangements are agreed upon in writing between MRD Home and the Customer.
(d) Freight costs and in-transit insurance are the responsibility of the Customer and are excluded from the Price of the Goods.
(e) MRD Home accepts no liability for Goods damaged in transit.
(f) Delivery of the Goods to an agent, carrier or representative of the Customer constitutes delivery to the Customer.
(g) Goods sent to depots for onforwarding in accordance with the Customer’s delivery instructions are considered received in good condition at the point of delivery by MRD Home’s freight carrier.
(h) A handling fee of $18.00 is payable for all Orders with a value less than $100.00 (excluding GST).
(i) Any Order for Goods flagged for collection by the Customer will be retained at the Premises for a maximum of 5 business days in anticipation of collection. Upon expiration of 5 business days, the Goods the subject of the Order will be placed back into MRD Home stock. A re-stocking charge of 8% of the Price is payable upon any replacement Order for the Goods.
(j) Where a delivery is signed for by the Customer, no claims for short delivery of packaging or cartons may thereafter be made by the Customer.
(k) Time is not of the essence under this clause and MRD Home shall not be liable for any failure or delay in the provision of Goods for any reason whatsoever.
8. EXCHANGE, RETURNS AND CREDIT
MRD Home does not offer refunds.
Claims for faulty or damaged Goods must be notified in writing within seven (7) days of delivery of the Goods to the Customer and must be accompanied by digital photographs and forwarded to:
Goods must be returned to MRD Home in their original packaging and original condition within fourteen (14) days of receipt of the claim by MRD Home. MRD Home will provide the Customer with instructions as to return of Goods to the Premises. Goods may only be returned to MRD Home by a freight carrier authorised by MRD Home. MRD Home reserves the right to apply a handling charge to any returned Goods.
MRD Home will inspect the Goods upon return to the Premises and, if found by MRD Home to be faulty, an exchange will be arranged or credit raised at MRD Home’s sole discretion.
Goods returned to MRD Home in packaging that is not original and/or does not protect the Goods in transit to MRD Home will not receive a credit.
Unless otherwise stated, the Goods are not pre-assembled. All Goods include simple step by step assembly instructions.
All MRD Home Goods (including the contents of the MRD Home website and Instagram page and any designs associated with MRD Home Goods) are copyright protected. Apart from fair dealing permitted by the Copyright Act 1968, MRD Home grants its Customers permission to use copyright material only for the purposes specified in the Order and/or Invoice and specifically excludes any right to edit or modify or relabel MRD Products. For reproduction or use of MRD Home copyright material beyond such use, written permission must be obtained directly from MRD Home or the relevant copyright owner. If given, permission will be subject to the requirement that the copyright owner’s name and interest in the material be acknowledged when the material is reproduced or quoted, in whole or in part.
11. PERSONAL PROPERTY SECURITIES ACT
(a) The Customer agrees that these terms and conditions create a PMSI in the Goods (and their proceeds) supplied presently and in the future by MRD Home to the Customer.
(b) The Customer agrees to do all things necessary and execute all documents reasonably required to register the PMSI granted by the Customer under these terms and conditions and to ensure that MRD Home acquires a perfected security interest in the Goods under the PPSA.
(c) The Customer will, upon demand, pay all of MRD Home’s expenses and legal costs (on a solicitor/agent/client basis) in relation to or in connection with the registration of MRD Home’s security interest and all other costs associated with protection and enforcement of MRD Home’s security interest created by these terms and conditions or by undertaking an audit under the provisions of the PPSA, or the repossession of the Goods the subject of these terms and conditions or the exercise, enforcement or preservation of any right or interest under these terms and conditions or any contract that MRD Home has with the Customer.
(d) This PMSI does not lose its priority as a result of the renewal, refinance, consolidation or restructure of the subject matter of these terms and conditions and any purchase money obligations.
(e) Until ownership of the Goods passes to the Customer, the Customer waives its rights under the following provisions of the PPSA, to the extent that it is permitted by law to:
(i) receive a notice of intention of removal of an accession (s.95);
(ii) receive a notice that MRD Home has determined to enforce its security interest in accordance with land law (s118);
(iii) receive a notice of enforcement action against liquid assets;
(iv) receive a notice of disposal of Goods by MRD Home purchasing the Goods (s129);
(v) receive a notice to dispose of the Goods (s130);
(vi) receive a statement of account following disposal of the goods (s132(2));
(vii) receive a statement of account if no disposal of the Goods, six monthly (s152(4));
(viii) receive notice of any proposal by MRD Home to retain the Goods (s135(2));
(ix) object to any proposal by MRD Home to either retain and dispose of the Goods (s137(3));
(x) redeem the Goods (s142);
(xi) reinstate the security agreement (a143); and
(xii) receive a notice of any verification statement (s157(1) and 157(3)).
(f) To the extent permitted by the PPSA, these terms and conditions exclude any provisions of the PPSA which may be excluded in MRD Home’s discretion and which would otherwise confer rights on the Customer.
(g) The Customer further agrees that where MRD Home has rights in addition to those under Part 4 of the PPSA, those rights shall continue to apply.
(h) The Customer’s right to possession of Goods still owned by MRD Home under these terms and conditions shall cease if:
(i) the Customer being an individual, commits an act of bankruptcy,
(ii) the Customer being a company, circumstances arise where a receiver, manager, administrator or controller becomes entitled to take possession of any of its assets, any proceedings are instituted for winding up, or the Customer entering into a Deed of Company Arrangement,
(iii) the Customer ceasing or threatening to cease conducting business in the normal manner or applying for deregistration or receives a deregistration notice,
(iv) any cheque the Customer provide to MRD Home or any Group Company is dishonoured for payment,
(v) the Customer failing to comply with any demand for payment issued by MRD Home or any Group Company, or
(vi) the Customer breaching any of the terms and conditions contained herein and/or are in default of any other agreement between MRD Home and the Customer.
(i) The Customer expressly and irrevocably agrees that MRD Home is entitled to enter any premises where the Goods supplied by MRD Home are located to repossess, remove and sell the Goods. The Customer (its successors and assigns, including any external manager or administrator) shall not object to MRD Home, or its agents, entering any premises for the purpose of this clause and agrees to indemnify and keep MRD Home indemnified in respect of any claims, actions and costs that may arise against MRD Home in relation to the removal, repossession and sale of the Goods pursuant to these terms and conditions including any claims brought by third parties.
(j) The Customer agrees that repossession and retention of the Goods pursuant to the PPSA will only satisfy so much of the monies which may become payable to MRD Home by the Customer, as is equivalent to MRD Home’s estimation of the market value of the Goods as it is at the date of repossession and the repossession and retention will immediately extinguish any rights for interest MRD Home has on the value of the Goods recovered.
(k) Until ownership of the Goods passes, the Customer must not give MRD Home a written demand or allow any other person to give MRD Home a written demand requiring MRD Home to register a financing change statement under the PPSA or enter into or allow any other person to enter into the Personal Property Securities Register a financing change statement under the PPSA.
(l) The Customer agrees not to change the Customer name or undertake any changes to any documents that MRD Home has registered, requires to be registered or are capable of being registered without our prior written consent of MRD Home.
For avoidance of doubt, these terms regarding the PPSA apply even where the customer is a Consumer.
12. CREDIT ACCOUNTS
Accounts that record no activity for a period of 12 months or more will be closed and will only be re-activated upon approval of a new Credit Application.
13. PRIVACY – CREDIT ACCOUNTS
If the Goods are supplied on Credit the following provisions apply (Section 18E(8) of the Act).
MRD Home may give information about the Customer to a credit reporting agency, limited to the following kinds of information as permitted by the Act. This includes:
• Identity details – including name, sex, date of birth, current known address, two immediately previous addresses, current or last known employer, driver’s licence number.
• The fact that the Customer has applied for credit and the amount.
• The fact that MRD Home is a credit provider to the Customer.
• Payments which are overdue for at least 60 days for which MRD Home has taken steps to recover.
• Advice that payments are no longer overdue.
• Advice of cheques drawn by the Customer which have been dishonoured more than once.
• When, in MRD Home’s opinion, the Customer has committed a serious credit infringement.
• When the credit provided to the Customer has been discharged.
Giving information to a Credit Reporting Agency (Section 18E(1)(b) of the Act).
The Customer and Guarantor acknowledge that MRD Home has informed the Customer that it may give certain information about the Customer to a credit reporting agency.
Exchanging information with Other Credit Providers (Section 18N(1)(b) of the Act).
The Customer and guarantor agree to MRD Home checking personal information about the Customer and Guarantor with any credit provider named in the Credit Application, and with other credit providers that may be named in a credit application, and with other credit providers that may be named in a credit report issued by a credit reporting agency for any of the following purposes:
• To assess the Customer’s and/or the guarantor’s credit worthiness;
• To assess the Customer’s application for credit;
• To help the Customer avoid defaulting on its credit obligations;
• To notify a default by the Customer.
The Customer acknowledges that all information about the Customer’s credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give to or receive from each other under the Act.
The Customer acknowledges and agrees that MRD Home may disclose a credit report or any personal information derived from it to another credit provider, for any of the purposes mentioned above.
Access to Commercial Credit Information (Section 18L(4) of the Act).
In order to assess the Customer’s application for credit, the Customer consents to MRD Home obtaining a credit report containing information about the Customer’s commercial activities and commercial credit worthiness, from a business which provides information the commercial credit worthiness of persons.
Access to Consumer Credit Information for a Commercial Credit Application (Section 18K(1)(b) of the Act).
The Customer acknowledges and agrees that MRD Home, in order to assess the Customer’s application for credit, obtaining from a credit reporting agency, a credit report about the Customer containing consumer credit information AND the Customer further acknowledges and agrees to the Australian Gift & Homewares Association Inc. giving a credit report to MRD Home.
14. FORCE MAJURE
MRD Home is not liable for any failure to perform any of its obligations under these Terms and Conditions as a result of any event beyond its reasonable control including, without limitation, where MRD Home is prevented or hindered from providing the Goods as a result of any strikes, lockouts or other labour difficulty, inability to obtain any necessary materials, products, equipment, facilities or Goods from usual suppliers on usual terms, power or water shortage, accidents or breakdowns of plant, machinery, software, hardware or communication network or weather conditions of any kind. In such circumstances, CID may suspend performance of any obligations under these Terms and Conditions while the event continues. MRD Home shall not incur any liability to the Customer in respect of such suspension.
Except where legislation cannot be excluded or would make this clause illegal, or where the inclusion of this clause would otherwise make MRD Home liable to a penalty, the Customer releases MRD Home from any claim that is made against MRD Home for damages, or otherwise in respect of any Loss, damage, death, or injury arising from negligence or otherwise caused directly or indirectly by or arising from the Goods except to the extent that such Loss, damage, death or injury has been caused by MRD Home.
All warranties and conditions that are capable of exclusion and would, apart from this provision, form part of these Terms and Conditions are expressly excluded to the maximum extent permitted by law.
17. LIMITATION OF LIABILITY
Except where legislation prevents MRD Home’s liability from being limited, or where a limitation of liability would otherwise render MRD Home subject to a penalty, MRD Home’s liability in connection with the provision of Goods is limited to any one of the following as determined by MRD Home in its sole discretion and subject to these terms and conditions:
(a) MRD Home providing the Goods again;
(b) MRD Home providing a credit for the Goods.
To the extent the law permits and notwithstanding any other clause of these terms and conditions, MRD Home excludes all liability whatsoever to the Customer for any Consequential Loss.
The Customer must indemnify, and keep indemnified, MRD Home from and against any Loss or claims, including any third party claims, arising out of a breach of these Terms and Conditions by the Customer or anyone else authorised to represent the Customer.
Waiver by MRD Home of a breach of these Terms and Conditions or of any right or power arising from a breach of these Terms and Conditions is not waived by any failure to exercise or delay in exercising, or a partial exercise of, that or any other right or power.
20. NO RIGHT TO OFFSET
No amount owing whether present or future, actual, contingent or prospective and on any account whatsoever by the Customer to MRD Home may be offset against any amount owing whether present, future, actual, contingent or prospective of the Customer to MRD Home hereunder on any other account whatsoever.
Notwithstanding any other clause in these Terms and Conditions, to the extent that any supply made under or in connection with these Terms and Conditions is a taxable supply (as defined by GST Law), the Customer must pay to MRD Home, in addition to the consideration provided for under these Terms and Conditions for that supply an amount (additional amount) equal to the amount of that consideration multiplied by the rate at which GST is imposed in respect of the supply. The Customer must pay to MRD Home the additional amount at the same time as the consideration to which it is referable. The Customer is responsible for paying any other duties, taxes or charges, including stamp duty (if applicable), in relation to the provision of Goods.
22. GOVERNING LAW
These Terms and Conditions shall be governed by the law of the State of Victoria. Each party submits to the non-exclusive jurisdiction of the Courts exercising jurisdiction in Victoria and waives any right to claim that those Courts are an inconvenient forum.