Terms & Conditions

TERMS AND CONDITIONS OF TRADE – GOODS

1. Definitions

In these Terms and Conditions of Trade:

“Account” means the Customer’s account with the Vendor.

“Customer” means the person or entity making the application or any person acting with ostensible authority on behalf of the Customer. “Goods” means goods supplied by the Vendor to the Customer at any time.

“Order” or “Orders” means the order or orders of the Customer to the Vendor to supply Goods.

“PPSA” means the Personal Property Securities Act 2009.

“Vendor” means Monkeytoe Systems Limited or associated entities.

2. Orders

Orders will be on such forms or in such manner as the Vendor may require from time to time.

3. Acceptance

Each Order shall constitute acceptance by the Customer of these Terms and Conditions of Trade.

4. Prices

Prices are subject to change without notice. All Orders will be charged at prices prevailing at the date of delivery of the Goods.

5. Delivery

Where the Order makes provision for delivery then delivery shall take place at the place stated in the Order. If no place is indicated then delivery shall be made at the physical address of the Customer set out in the application.

6. Time of Performance

The Vendor shall not be responsible for any delay in delivery of the Goods outside his control e.g. procurement supply issues, freight timelines & products damaged in freight. The Customer shall not be entitled to cancel orders because of any such delay.

Dates for delivery are given in good faith and are not to be treated as a condition of sale or purchase. Delivery by the Vendor to a carrier is deemed to be delivery to the Customer.

The vendor accepts exemption from the above conditions should the following occur:

1. The vendor has failed to inform the Customer of extended delays, 5 working days ahead of expected and agreed delivery dates
2. The product has arrived damaged and too late to replace or repair, to be of beneficial use to the Customer

7. Terms of Payment

Payment for all goods shall be on or before delivery unless alternative arrangements have been made with the vendor in writing, in which case the following provisions shall apply.

1. Unless otherwise specified, payment for all Goods shall be made no later than the 20th day of the month following
2. An administration fee may be charged on all overdue amounts in addition to any other charges pursuant to this
3. Interest will accrue on all amounts overdue at the rate of 5% per month and will be calculated on a day by day basis until payment is made in full.
4. All costs of or incurred by the Vendor as a result of a default by the Customer including but not limited to administration charges, debt collection costs and legal costs as between solicitor and client shall be payable by the
5. If the Customer defaults in any payment or commits any act of bankruptcy or any act which would render it liable to be wound up or if a resolution is passed or proceedings are filed for the winding up of the Customer or if a receiver is appointed for all or any assets of the Customer, the Vendor may cancel any Order without prejudice to any other rights it may have and payment for all completed Orders shall immediately become

8. Quotation

Where a quotation is given by the Vendor for the supply of Goods:

1. unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue;
2. the quotation shall be exclusive of Goods and Services Tax unless specifically stated to the contrary;
3. The Vendor reserves the right to alter the quotation because of circumstances beyond its

9. Errors or Omissions

Clerical errors or omissions, whether in computation or otherwise in the quotation, acknowledgement or invoice shall be subject to correction.

10. Risk

Where the vendor has arranged freight, risk shall pass to the customer on delivery, otherwise from the time of dispatch to the Customer by the Vendor, risk in all Goods supplied shall pass to the Customer and any loss, damage or deterioration to the Goods shall be borne by the Customer. The Customer shall notwithstanding any loss, damage or deterioration to the Goods remain liable to pay for the Goods.

11. Ownership/General Lien
    1. The Vendor shall retain ownership of all Goods supplied until it receives payment in full of all amounts owing by the Customer for all
    2. If any of the Goods are incorporated in or used as material for other goods before payment is made ownership in the whole of the other goods shall be and remain with the Vendor until payment is The Vendor’s Security Interest in the Goods shall continue in the terms of section 99 of the PPSA.
    3. The Vendor shall have a right to stop and retrieve the Goods in transit whether or not ownership has

12. Ownership

Until payment is made by the Customer, the Customer agrees to:

1. ensure the Goods are readily identifiable at all times as the property of the Vendor;
2. hold the Goods as trustee for the Vendor and will deal with the Goods for and on behalf of the Vendor (but will not hold the Customer out as an agent to any third parties;
3. if the Goods are re-sold, the proceeds of re-sale will belong to the Vendor and the Customer shall keep the proceeds of sale in a separate account for which separate records are kept.

13. Merger with Other Goods

If the Goods are attached, fixed or incorporated into any property of the Customer, by way of any manufacturing or assembly process by the Customer or any third party or otherwise, title in the products and services shall remain with the Vendor until the Customer has made payment for all Goods and where those Goods are mixed with other property so as to be part of or constituent of any new goods title to those new goods shall be deemed to be assigned to the Vendor as security for the full satisfaction by the Customer of the full amount owing by the Customer to the Vendor.

14. Recovery of Goods
    1. In the event of non-payment or if payment of the Customer’s Account is overdue the Vendor shall be entitled without prejudice to any right it has at law or in equity to enter the place where the Goods are stored whether the Customer’s premises or property or the premises or property of a third party for the purpose of recovering and taking possession of the Goods
    2. The Customer warrants to the Vendor that where the Goods are stored on the premises or property of a third party the

Customer is acting as agent for the third party and has the full authority of the third party to authorise entry on to the premises or property of the third party for the purpose of recovering the Goods without releasing the Customer from liability.

1. The Vendor will not be responsible for any damage reasonably caused in the course of removal of Goods supplied either in the possession of the Customer or a third party and the Customer indemnifies the Vendor in respect of damage caused in the removal of the Goods from the property of a third party.
2. The Vendor may resell the Goods and apply the proceeds towards payment of the Customer’s outstanding Account with the

Any shortfall will remain the liability of the Customer. The Customer indemnifies the Vendor for all costs and expenses including legal costs as between solicitor and client which the Vendor may incur in recovering the Goods and any monies owed to it.

15. Warranties
    1. Where applicable, manufacturer’s warranties will attach to the
    2. Goods supplied are guaranteed for the period of the manufacturer’s warranty from the date of delivery against defective material or workmanship, provided payment for such goods has been made in full and any required customer documentation has been properly completed and received by the vendor. To the full extent allowed by law all other warranties express or implied are expressly
    3. Unless otherwise specified, the vendor gives no warranty express or implied as to the quality, description or fitness for any particular purpose of the goods.

16. Compliance

The Customer shall be solely responsible for obtaining any necessary permits under and for compliance with all legislation, regulations, by-laws or rules having the force of law in connection with the installation and operation of the Goods.

17. Cancellation

The Customer shall not be entitled to cancel an Order other than as allowed pursuant to these Terms and Conditions of Trade.

18. Returns
    1. The Customer shall not be entitled to return the Goods or cancel an Order other than as allowed pursuant to these Terms and Conditions of
    2. Custom made items and procured goods (i.e. cut lengths) are not returnable for
    3. Faulty, damaged or short supplied goods must be advised within seven (7) days of If the customer has ordered incorrectly the customer shall bear all costs of return and the goods must be returned in as new resellable condition. Returned goods may be subject to a handling fee. All relevant documentation must accompany the goods. All claims for freight are conditional upon the damage being endorsed on the consignment note and are at the sole discretion of the vendor

19. Personal Property Securities Act 2009

• The Customer hereby acknowledges that these Terms and Conditions of Trade constitute a security agreement which creates a security interest in favour of the Vendor in all Goods previously supplied by the Vendor to the Customer (if any) and all after-acquired Goods supplied by the Vendor to the Customer (or for the Customer’s account) to secure the payment from time to time and at a time, including future advances. The Customer agrees to grant a “Purchase Money Security Interest” to the Vendor, as that term is defined in the
• The Customer acknowledges and agrees that by assenting to these terms the Customer grants a security interest (by virtue of the retention of title clause in these Terms and Conditions of Trade) to the Vendor and all Goods previously supplied by the Vendor to the Customer (if any) and all after- acquired Goods supplied by the Vendor to the Customer (or for the Customer’s account) and these terms shall apply notwithstanding anything express or implied to the contrary contained in the Customer’s purchase
• The Customer undertakes to:
  • sign any further documents and/or provide any further information (which information the Customer warrants to be complete, accurate and up-to-date in all respects) which the Vendor may reasonably require to enable registration of a financing statement or financing change statement on the Personal Property Securities Register (“PPSR”)
  • not register a financing change statement as defined in Section 10 of the PPSA or make a demand to alter the financing statement pursuant to Part 5.6 of the PPSA in respect of the Goods without the prior written consent of the Vendor;
  • give the Vendor not less than 14 days’ prior written notice of any proposed change in the Customer’s name and/or any other changes in the Customer’s details (including but not limited to changes in the Customer’s address, facsimile number, email address, trading name or business practice);
  • The Customer waives any rights to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to the security interests under these Terms and Conditions of Trade.
• If Chapter 4 of the Personal Property Securities Act would otherwise apply to the enforcement of a security interest arising in connection with the agreement to which these Terms and Conditions of Trade apply, the Customer agrees that the following provisions of the PPSA will not apply to any enforcement:
  • Section 95 (notice of removal of accession), to the extent that it requires the Supplier to give a notice to the Customer;
  • Section 96 (when a person with an interest in the whole may retain an accession);
  • Subsection 121(4) (enforcement of liquid assets – notice to grantor);
  • Section 125 (obligation to dispose of or retain collateral);
  • Section 129 (disposal by purchase);
  • Section 130 (notice of disposal of collateral), to the extent that it requires the Supplier to give a notice to the Customer;
  • Section 132(3)(d) (contents of statement of account after disposal);
  • Section 132(4) (statement of account if no disposal);
  • Section 135 (notice of retention of collateral);
  • Section 142 (redemption of collateral); and
  • Section 143 (reinstatement of security agreement).
• The Customer agrees that immediately on request by the Vendor the Customer will procure from any persons considered by the Vendor to be relevant to its security position such agreement and waivers as the Vendor may at any time

20. Events of Default

All payments shall become immediately due to the Vendor and the Vendor may at its option suspend or terminate these Terms and Conditions of Trade and/or exercise any of the remedies available to it under these Terms and Conditions of Trade in the event that:

• a receiver is appointed over any of the assets or undertaking of the Customer;
• an application for the appointment of a liquidator is filed against the Customer which remains unsatisfied for a period of 10 days; or any of the conditions necessary to render the Customer liable to have a liquidator exist, or a liquidator is appointed;
• the Customer goes into voluntary liquidation, amalgamates with another company or acquires its own shares in accordance with the Corporations Act 2001;
• the Customer suspends payments to its creditors or makes or attempts to make an arrangement or composition or scheme with its creditors; or
• The Customer becomes insolvent within the meaning of the Corporations Act 2001 or is, becomes, or is presumed to be unable to pay its debts as they fall due as defined in the Corporations Act 2001, or commits any act of bankruptcy.

21. Authority to Sell Goods Supplied

Notwithstanding that title in all Goods is retained by the Vendor, the Customer is authorized to sell the Goods in the ordinary course of business provided that the authority may be removed by written notice if the Vendor considers the credit of the Customer to be unsatisfactory or if the Customer is in default in the performance of its obligations to the Vendor and shall be deemed automatically revoked if the Customer commits any act of bankruptcy or any act which would render it liable to be wound up or if a resolution is passed or proceedings are filed for the winding up of the Customer or a receiver is appointed for all or any assets of the Customer.

22. Sale of Goods Supplied

• Where Goods in respect of which property has not passed to the Customer are sold by the Customer in the ordinary course of business, the book debt created on the sale and the proceeds of sale when received shall be held by the Customer for the Vendor in terms of Part 4 of the
• Where any proceeds of sale are placed in the Customer’s bank account the funds in the Customer’s bank account shall be deemed to be held on trust for the Vendor to the extent of proceeds of
• Where any payments are made from the Customer’s bank account otherwise than to the Vendor payment shall be deemed to have been made from all other funds in the Customer’s bank account and not from funds held on trust for the Vendor.
• The trust obligation imposed by this clause and the Vendor’s entitlements under the Goods supplied to the

23. Liability

• The Vendor’s liability to the Customer shall be limited to the value of the Order
• The Competition and Consumer Act 2010 may imply warranties or conditions or impose obligations upon the Vendor which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on the Vendor the Vendor’s liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
• Except as otherwise provided above the Vendor shall not be liable for any loss or damage of any kind whatsoever, arising from the supply of Goods by the Vendor to the Customer including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Goods provided by the Vendor to the

24. Suitability of Goods

The Customer must satisfy itself that the Goods as ordered are fit and suitable for the purpose for which they are required. The Vendor makes no warranties or representation and expressly negates any implied or expressed condition that the Goods will be suitable for a particular purpose or use for which the Customer may use them. The Customer accepts all risk and responsibility for consequences arising from the use of the Goods whether singularly or in combination with other Goods.

25. Dimensions and Specifications

Dimensions and specifications contained or referred to in any Order, catalogues, brochure or other publications maintained or issued by the Vendor are estimates only.

26. Assignment

• The Customer shall not assign all or any of its rights or obligations under this contract without the written consent of the
• The Vendor is entitled at any time to assign to any other party all or any part of a debt which is owing to the

27. Disputes

• In the event of any dispute arising between the Vendor and the Customer, such dispute shall in the first instance be referred to mediation for
• In the event that resolution by mediation is not achieved to the satisfaction of both parties within 30 days of referral to mediation, either party may then take legal action to resolve the
• Nothing in this clause prevents the Vendor from taking legal action to enforce payment of any debt due, nor where required to seek interlocutory or injunctive relief.

28. Notices

Any notices required, including any payment claims, under these Terms of Trade are to be served by email, but only if the information in the notice or document is readily accessible so as to be usable for subsequent reference and the person to whom the information is required to be served consents to the information being given in electronic communication. Consent may be inferred from a person’s conduct.

29. Validity

If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

30. Changes of General Terms and Conditions

• The Vendor may at any time refuse an order by the Customer or decline to approve any application by the Customer for any reason
• The existence of an account by the Customer with the Vendor does not automatically entitle the Customer to credit in the
• Failure by the Vendor to enforce any of the terms and conditions contained in these Terms and Conditions of Trade shall not be deemed to be a waiver of any of the rights or obligations the Vendor has under these Terms and Conditions of
• The Vendor may from time to time by written notice to the Customer amend, add to or repeal the trading conditions covered by this Agreement or may substitute any fresh trading conditions and such amendment, addition or substitute trading conditions shall be binding on the Customer fourteen days after the date of delivery of the

31. Force Majeure

Neither the Vendor nor the Customer will be liable to the other for any breach of this Agreement by any extraordinary occurrences which are beyond the reasonable control of the party in question.

32. Entire Agreement

These Terms and Conditions of Trade constitute the entire agreement and supersede and extinguish all prior agreements and understandings between the Vendor and the Customer.

33. Other Agreements

If there is inconsistency between these Terms and Conditions of Trade and any order submitted by the Customer or any other arrangement between the Vendor and Customer, these Terms and Conditions of Trade prevail unless otherwise agreed in writing by the parties.

34. Governing Law

These Terms and Conditions of Trade will be interpreted in accordance with and governed by the laws of Australia and the Australian Courts will have exclusive jurisdiction over any dispute in relation to the Goods.

35. Privacy Act

• The customer authorises the vendor or its agent or duly authorised credit reporter to:
  • Access, collect, retain and use any information about the customer for the purpose of assessing the customer’s creditworthiness and /or for the purpose of marketing products and services to the
  • Disclose information about the customer, whether collected by the vendor from the customer directly or obtained by the vendor from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection, or notifying a default by the customer.
• Where the customer is an individual the authorities under this clause are authorities or consents for the purposes of the Privacy Act 1988
• The customer shall have the right to request the vendor for a copy of the information about the customer retained by the vendor and the right to request the vendor to correct any incorrect information about the customer held by the