GENERAL TERMS AND CONDITIONS
In these Terms and Conditions:-
(a) “MIT” means DMCS IT Pty Ltd T/a Mullins IT (69 153 493 077).
(b) “Australian Consumer Law” means the law as set out in Schedule 2 of the Competition and Consumer Act 2010.
(c) “Contract” means a contract for sale by MIT to the Customer of the Goods and/or services incorporating these Terms and Conditions.
(d) “Consumer Contract” means a contract for the acquisition of goods or services as a 'consumer' as defined in section 3 of the Australian Consumer Law.
(e) “Customer” means the person or company that purchases the Goods from MIT, specified in the Order, quotation and/or the Tax Invoice provided to the Customer.
(f) “Goods” means any products, goods, accessories, materials, spare parts and services to be supplied by MIT to the Customer subject to these Terms and Conditions.
(g) “High Risk Activities” means use in hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, medical life support, mass and air traffic control, weapons systems, life-support machines or any other application in which the failure of the Goods could lead directly to death, personal injury or severe physical or property damage.
(h) “Order” means the order placed by the Customer for the purchase of Goods via the Website or any other means, including, not limited to, email, telephone, facsimile, or verbally after inspecting the stock at the Premises.
(i) “Place of Delivery” means the place provided by the Customer at the time of placing the Order and agreed to by MIT for delivery of the Goods.
(j) “Premises” means the premises occupied by MIT at 2 Grant Street, Battery Hill Q. 4551.
(k) “Returns Policy” means the policy applicable to the Customer relating to the return of the Goods found on the Website.
(l) “Tax Invoice” means the invoice provided to the Customer, following the placement of an Order, for payment by the Customer prior to dispatch and delivery of the Goods.
(m) “Website” means the website with domain name www.MullinsIT.com owned by MIT.
2. FORMATION OF CONTRACT
2.1: No Contract comes into existence until the Order placed by the Customer has been accepted by MIT providing a Tax Invoice to the Customer and such Tax Invoice being paid in full by the Customer. The Contract is deemed to be concluded upon payment being received by MIT from the Customer. The Customer warrants that it is buying for its own use only and not for re-sale purposes.
2.2: The Goods sold by MIT are subject to these Terms and Conditions to the exclusion of any other terms and conditions stipulated or referred to by the Customer. The Customer acknowledges that it is aware of the contents of, and agrees to be bound by, these Terms and Conditions. The acceptance of the products by the Customer is deemed to incorporate acceptance of these Terms and Conditions. Neither MIT’s acknowledgement of an Order nor its failure to object to conflicting, different, or additional terms and conditions in an Order will be deemed an acceptance of such terms and conditions or a waiver of the provisions.
3. ORDERS, PRICING AND PAYMENT
3.1: Pricing quoted or offered by MIT are subject to change without prior notice and may be withdrawn, or altered, prior to acceptance at any time without prior notice.
3.2: In an event where prices have increased during the ordering process or after payment has been made by the Customer, but before the Goods have been dispatched, MIT may request the difference in payment for the increase in prices. The Customer may cancel the Order by giving MIT written notice up to seven (7) days after MIT has notified the Customer of the increase in price.
3.3: Payment for the Goods must be made in full after the provision of a Tax Invoice and before the dispatch and delivery of the Goods. Payment shall be made in accordance with the payment terms set out on the Tax Invoice provided to the Customer.
3.4: MIT accepts payments by direct deposit, internet transfer, PayPal or credit cards. MIT does not accept any orders placed from overseas or for overseas consumers. Credit Card payments incur the following surcharges:
3.4.1: VISA and MASTERCARD - 2%;
3.4.2: AMEX - 3%; and
3.4.3: PayPal – 1.5%.
3.5: The Customer will pay for all applicable shipping and handling charges. These charges will be disclosed to the Customer at the time of placement of the Order and incorporated in the Tax Invoice for payment by the Customer prior to dispatch and delivery.
3.6: The Customer agrees to pay all taxes, duties, exchange rates and import costs of every kind in respect of the sale of the Goods. If GST applies to any supplies by MIT, the Customer must pay an additional amount by way of GST payable on supply at the time that payment for the supply is to be made under these Terms and Conditions, and MIT will issue a tax invoice to the Customer in respect of the supply. Terms used in this clause have the same meaning as in the A New Tax System (Goods and Service Tax) Act 1999 (Commonwealth). In the event of changes in exchange rates, taxes, duties or import costs, MIT reserves the right at any time between the time of order and the time of delivery to increase or decrease it’s selling price for such Goods accordingly.
3.7: Time for payment is of the essence. MIT reserves the right to cancel any Order and offer the ordered Goods for sale to the other consumers in the event that payment is not made within fourteen (14) days after the provision of the Tax Invoice by MIT to the Customer.
4. CANCELLATION AND RETURNS
4.1: A request to cancel or vary an Order by the Customer prior to delivery of the Goods must be received by MIT in writing before dispatch and will be subject to payment of a cancellation (administration) fee of 10% of the value of the Order.
4.2: If the Customer changes his/her/its mind and wishes to return the Goods after accepting delivery, or the Goods are faulty, defective, not fit for their intended purpose or of unacceptable quality (through no fault of the Customer), MIT will offer an exchange or refund, or have it repaired (whichever the case may be), in accordance with, and strictly subject to, the terms of the Returns Policy.
5.1: All software provided is subject to the terms and conditions of the license agreement relating to that software. The Customer acknowledges its obligations to abide by such license agreements. The Customer acknowledges that MIT does not make any express warranty in relation to any software under these Terms and Conditions. In addition to any rights the Customer may have under statute, all software is warranted in accordance with the license agreement that governs its use.
5.2: All rights, title or interest in respect of the intellectual property rights in the software remain with licensor of the software at all times.
6. TITLE AND RISK
6.1: Subject to paragraph 6.2 below, title and risk in the Goods passes to the Customer upon delivery of the Goods to the Customer. Title to those products, which are software, shall remain with the applicable licensors at all times.
6.2: In the event that credit terms are agreed to between MIT and the Customer and the Customer takes possession of the Goods without up-front payment (with payment being deferred to a later date as agreed between MIT and the Customer):
6.2.1: Title to the Goods shall not pass to the Customer until MIT has received payment in full. Until such time as the Customer has paid in full and title of the Goods has passed to the Customer, the Customer holds any Goods it receives from MIT as a bailee subject to a fiduciary relationship between MIT and the Customer.
6.2.2: MIT reserves the following rights to MIT in relation to the Goods until payment has been made in full for the Goods:-
18.104.22.168: Legal ownership of the Goods;
22.214.171.124: To enter the Customer’s premises (or the premises of any associated or related company or agent where the Goods are located) without liability for trespass or any resulting damage and take possession of the Goods;
126.96.36.199: To keep or re-sell any Goods repossessed pursuant to sub-paragraph 188.8.131.52 above. If the Goods are re-sold by the customer, the Customer shall hold such part of the proceeds of such sale as represents the price of the Goods sold (as shown on the Tax Invoice) in a separate identifiable account as the beneficial property of MIT and shall pay such amount to MIT upon request. Notwithstanding the foregoing provisions, MIT shall be entitled to maintain an action against the Customer for the invoice price or part thereof; and
184.108.40.206: The Customer agrees that MIT shall be entitled to register a Notification on the Personal Properties Securities Register, provided for under Personal Property Securities Act 2009 (“the PPSA”), in respect of MIT’s rights set out in this condition.
220.127.116.11: For the purposes of sub-paragraph 18.104.22.168, the following provisions apply:
22.214.171.124.1: Financing Statement, Financing Change Statement and Security Interest have the meaning given to it by the PPSA;
126.96.36.199.2: Security Agreement means the Security Agreement under the PPSA created between the Customer and MIT by these Terms and Conditions;
188.8.131.52.3: Upon accepting these Terms and Conditions, the Customer acknowledges and agrees that these Terms and Conditions:-
(a) Constitute a Security Agreement for the purpose of the PPSA;
(b) Create a Security Interest in all goods previously supplied by MIT to the Customer (if any), or all goods that will be supplied in the future by MIT to the Customer;
184.108.40.206.4: The Customer undertakes to:-
(a) Promptly sign any further documents and/or provide any further information which MIT may reasonably require to:-
(i) Register a Financing Statement or Financing Change Statement in relation to a security interest on the Personal Properties Securities Register;
(ii) Register any other document required to be registered by the PPSA; or
(iii) Correct a defect in a Financing Statement, or a Financing Change Statement or other document required to be registered by the PPSA.
(b) Indemnify, and upon demand reimburse MIT, for all expenses incurred in registering a Financing Statement or Financing Change Statement on the Personal Properties Securities Register by the PPSA or releasing any goods charged thereby;
(c) Not register a Financing Change Statement in respect of a security interest without the prior written consent of MIT;
(d) Not register, or permit to be registered, a Financing Statement or a Financing Change Statement in relation to the goods in favour of a third party without the prior written consent of MIT;
(e) Immediately advise MIT of any material change in its business practices of selling the goods which would result in a change in the nature of proceeds derived from such sales.
220.127.116.11.5: MIT and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the Security Agreement created by these terms of agreement;
18.104.22.168.6: MIT hereby reserves its rights to receive notices under sections 95,118,121(4), 130, 132(3)(d) and 132(4) of the PPSA.
22.214.171.124.7: The Customer waives its rights as a Grantor and/or a Debtor under sections 142 and 143 of the PPSA;
126.96.36.199.8: Unless otherwise agreed to in writing by MIT, the Customer waives its rights to receive a verification statement in accordance of Section 157 of the PPSA and the Customer shall unconditionally ratify any actions taken by MIT under the provisions of this clause.
7.1: MIT will use its best endeavors to deliver the Goods, following payment in full, within One (1) to seven (7) business days (“the estimated delivery date”) to the Place of Delivery. The estimated delivery date is intended to be a good faith estimate of the time of the delivery and will not form part of the Contract. Actual delivery date will be affected by factors such as clearance of payment, the Customer's location and availability of parts for the Goods (if applicable). MIT will not be liable for any delay in delivery of the Goods, howsoever caused.
7.2: The Customer may cancel an Order for Goods purchased under a Consumer Contract if MIT is unable to deliver the Goods within a reasonable period from the estimated delivery date.
7.3: Only the Customer may accept delivery of the Goods at the Place of Delivery. At the time of delivery, the Customer must present an Australian photo ID with the same details listed on the Tax invoice. If the Customer is not present at time of collection of Goods, MIT reserves the right to charge a further shipping and handling fee for the future delivery of the Goods. If a person above 18 years of age, other than the Customer is to accept delivery of the Goods, the Customer must advise MIT in writing of this persons contact details prior to the dispatch of Goods.
7.4: MIT is not responsible for any loss or damage to Goods incurred during the delivery or shipment of the Goods. However, where appropriate, MIT agrees to provide the Customer with such assistance as may be necessary in support of a claim against a transport carrier provided that the Customer has notified MIT and the transport carrier in writing immediately if any such loss or damage is discovered following the delivery of products and lodges a claim on the transport carrier within three (3) business days of the date of delivery.
8. ACCEPTANCE OF GOODS
8.1: Unless the Customer notifies MIT to the contrary in writing within three (3) days from the date of delivery, the Goods will be deemed to have been accepted by the Customer. MIT shall not accept claims for shortages in delivery of Goods after this time.
8.2: Nothing in clause 8.1 affects the Customer's right to claim against MIT for a faulty product under the Australian Consumer Law.
8.3: Once the Goods have been accepted by the Customer, the Customer agrees not to use the Goods in any way other than intended and/or specified, nor for any purpose other than their intended use.
8.4: To the extend deemed necessary, nothing in these Terms and Conditions shall be construed as granting any right, title or interest in any of MIT’s patents, designs, trademarks, trade secrets, knowhow or other intellectual property rights in relation to the Goods or otherwise (“Intellectual Property Rights”). All Intellectual Property Rights shall be the sole and exclusive property at all times of MIT.
8.5: MIT has a policy of on-going product update and revision. As a result, MIT may revise and/or discontinue products at any time without notice.
9.1: Nothing in these Terms and Conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law, as set out in the Australian Consumer Law, and which by law cannot be excluded, restricted or modified.
9.2: The Customer accepts the warranty of the manufacturer of the Goods (“the manufacturer’s warranty”). The manufacturer’s warranty varies between manufacturers and commences on the date of the Tax Invoice for the period of the warranty provided by the relevant manufacturer. The Customer should take all reasonable measures to read and fully understand the terms of the manufacturer’s warranty as set out in the warranty document provided within the packaging of the Goods. If such warranty document is missing from the packaging at the time of delivery, the Customer must immediately notify MIT so that a replacement warranty document can be arranged for the Customer.
9.3: All express manufacturer’s warranties will only be reviewed and/or processed upon presentation of the original receipt or Tax Invoice listing the product details, serial and model numbers and the Customer’s name, and clearly setting out that the Goods were purchased from MIT. A failure by the Customer to provide proof of purchase for the Goods purchased, which are under warranty or no longer covered under warranty, will result in a review fee of $60.00 (exclusive of GST) payable to MIT before proceeding with the warranty claim.
9.4: The Goods come with consumer guarantees that cannot be excluded under the Australian Consumer Law. The Customer is entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
9.5: To make a claim with respect to a warranty provided for in these Terms of Condition or under statute, please contact MIT’s accounts department at:
Address: 2 Grant Street, Battery Hill Q. 4551
Ph: 1300 68 55 46
10.1: MIT will not be liable in contract or in tort for any loss or damage suffered and the Customer's rights are limited to those set out in these Terms and Conditions and under statute.
10.2: For goods and services which are not supplied under a Consumer Contract, MIT’s total liability in respect of each event or series of connected events will not exceed the total price paid for the purchase of Goods and/or services under these Terms and Conditions.
10.3: The Customer will indemnify MIT and keep MIT fully and effectively indemnified against any loss of or damage to any property or injury to or death of any persons caused by any negligent act or omission or willful misconduct of the Customer, its employees, agents or sub-contractors or by any breach of its contractual obligations arising out of these Terms and Conditions.
10.4: MIT and the Customer agree that MIT's liability:
10.4.1: is governed solely by the Australian Consumer Law; and
10.4.2: to the extent permitted by law, does not extend to any incidental, indirect, special or consequential loss or damages arising out of or in connection with the purchase, use or performance of Goods or services, even if MIT has been advised of their possibility.
10.5: In relation to goods or services supplied under a Consumer Contract that are not of a kind ordinarily acquired for personal, domestic or household use or consumption, MIT's liability for breach of a guarantee implied into a Contract which cannot lawfully be excluded is limited, at MIT's option, to:
10.5.1: in the case of Goods, the replacement of the Goods or the supply of equivalent Goods; the repair of such Goods; the payment of the cost of replacing the Goods or of acquiring equivalent products; or the payment of the cost of having the Goods repaired; or
10.5.2: in the case of services, the supplying of services again; or the payment of the cost of having services supplied again.
10.6: MIT shall not be held responsible for any damage, fault, failure, delay or malfunction arising out of any circumstances outside of its reasonable control, including but not limited to, Acts of God, governmental actions, strikes or other labour difficulties, war or national emergency, black outs, fire, explosion, flood, an act or omission of a third party, an inability to obtain any necessary materials, delay in receipt of parts, the failure of equipment supplied by others, power or water shortage, accidental breakdown of plant machinery, software or hardware.
10.7: To the extent permitted by law, any typographical, clerical or other error or omission in sales literature, quotation, price list, acceptance of offer, invoice or other documents or information issued by MIT will be subject to correction without any liability on the part of MIT.
11. USE OF GOODS
11.1: MIT’s Goods are designed for specific applications and purposes to work under certain operating conditions. Customer's use of the Goods other than in accordance with any manual, operating instructions or specified operating conditions may damage the Goods and data stored on it. Such use may adversely affect the Customer's rights.
11.2: The Customer agrees to only use the Goods in accordance with any manual and any specified operating conditions.
11.3: The Goods are not fault-tolerant and are not designed or intended for use in High Risk Activities. MIT expressly disclaims any express or implied warranty of fitness for High Risk Activities.
12. FORCE MAJEURE
12.1: Neither party will be liable for any delay in performing any of its obligations under these Terms and Conditions if such delay is caused by circumstances beyond the reasonable control of the party so delaying, and such party will be entitled to a reasonable extension of time for the performance of such obligations.
13. GOVERNING LAW
13.1: These Terms and Conditions are governed by and construed in accordance with the laws of Victoria and are subject to the non-exclusive jurisdiction of the courts of Victoria.
14.1: The Customer must not assign or otherwise transfer any Contracts or any of its rights and obligations under these Terms and Conditions whether in whole or in part without the prior written consent of MIT. Any such unauthorised assignment will be deemed null and void.
14.2: If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, such provision shall be deemed severable and the validity of the other provisions of these Terms and Conditions and the remainder of the provisions in question will not be affected.
14.3: No failure or delay on MIT's part in exercising any power or right under these Terms and Conditions operates as a waiver, nor does any single or partial exercise of any power or right preclude any other or further exercise, or the exercise of any other power or right.
DMCS IT PTY LTD is a Australian owned and operated company based On the Sunshine Coast, Queensland Australia.