1.DEFINITIONS

“Additional Charges”: All delivery, handling and storage charges, goods and services tax, stamp duty, interest, legal and other costs of recovery of unpaid money and all other government imposts and all money, other than the purchase price, payable by the Customer to Monarch arising out of the sale of the Goods.
“Agreement”: The agreement for supply formed under clause 2, comprising the relevant Quotation, Monarch’s written acceptance (if any), these Terms and any other document expressly incorporated by Monarch in writing.
“Consequential Loss”: Increased costs or expenses, loss of revenue, loss of profit or anticipated profit, loss of business, loss of business reputation, loss of opportunities, loss of anticipated savings, loss of goodwill, loss of expense resulting from a claim by a third party, special or indirect loss or damage of any nature whatsoever caused by Monarch’s failure to complete or delay in completing the order to deliver the Goods, and any other loss suffered by a party as a result of a breach of these terms and conditions that cannot reasonably be considered to arise directly and naturally from that breach
“Delivery”: For Goods, the time of delivery under clause 5, including collection by the Customer or its nominated carrier or handover to a carrier under the agreed delivery terms; and for Services, when the Services are performed.
“Force Majeure Event”: Any event beyond the reasonable control of the affected party, including natural disaster, fire, flood, war, terrorism, civil unrest, epidemic or pandemic, government action, industrial dispute, transport, utility or communications failure, plant or equipment breakdown, or material shortage. It excludes lack of funds, inability to make a profit or avoid a financial loss, and changes in market conditions.
“Goods”: Any goods, products, materials, equipment or components supplied by Monarch to the Customer, but excludes Services unless the context requires otherwise.
“GST”: Goods and Services Tax payable under the A New Tax System (Goods and Services Tax) Act 1999 (Cth), as amended.
“Intellectual Property Right”: Any patent, design right, trade mark, copyright, trade secret, confidential information, know-how or other proprietary or intellectual property right, whether registered or unregistered, in any jurisdiction.
“Monarch”: Monarch Asia Pacific Pty Ltd (ABN 60 141 555 688) trading as Monarch Industrial Products.
“Quotation”: Any quotation, proposal or estimate issued by Monarch to the Customer, including any stated scope, specifications, price, lead time, exclusions and special conditions.
“Special Fabricated Products”: Any custom-manufactured, fabricated, machined, modified or made-to-order Goods, including custom filter or strainer components, housings, screens, baskets, skids, pressure-containing equipment, machinery and other capital equipment supplied to the Customer’s requirements.
“You” or “Customer”: The person, firm or company purchasing the Goods to which these terms and conditions apply.
“ACL”: The Australian Consumer Law in Schedule 2 to the Competition and Consumer Act 2010 (Cth), as amended.
“PPSA”: The Personal Property Securities Act 2009 (Cth) and any regulations made under it, as amended.
“PPSR”: The Personal Property Securities Register established under the PPSA.
“Services”: Any engineering, fabrication, machining, installation, inspection, technical, repair or other services supplied by Monarch to the Customer.

2.ORDER FOR GOODS

(a)

A Customer order is an offer to purchase. No order is binding on Monarch until Monarch accepts it in writing (including by email or order acknowledgement) or commences supply. Monarch may accept or reject an order, or accept only part of an order.

(b)

By placing an order, the Customer accepts these Terms. These Terms prevail over any terms contained in or referred to by the Customer’s order, purchase order or other document unless Monarch expressly agrees otherwise in writing. A reference by Monarch to a Customer purchase order does not, by itself, constitute acceptance of the Customer’s terms.

(c)

Once an order has been accepted, the Customer may not cancel or vary it without Monarch’s prior written approval. If Monarch approves a cancellation or variation, the Customer must pay the reasonable costs, expenses and commitments incurred as a result, including return freight, restocking, labour, materials, administration and third-party cancellation charges. Any balance of monies paid after those amounts have been deducted will be refunded to the Customer.

(d)

The Customer must inspect the Goods promptly on Delivery and notify Monarch in writing of visible transit damage, shortages or incorrect supply within 24 hours where reasonably practicable, together with reasonable supporting evidence. This notification period is intended to facilitate freight and insurance claims and does not limit any right or remedy that cannot lawfully be excluded.

(e)

For Special Fabricated Products, if cancellation occurs after manufacture, procurement or other work has commenced, the Customer must, to the extent permitted by law, pay the costs and non-cancellable commitments incurred and the value of work performed up to the date of cancellation, even if the Goods cannot be completed or resold.

(f)

If Delivery or collection is postponed due to an act or omission of the Customer, Monarch may, after notifying the Customer, store the Goods at the Customer’s risk and expense. Monarch may invoice Goods that are ready for Delivery in accordance with the agreed payment terms, and reasonable storage, handling and re-delivery costs will be payable as Additional Charges.

(g)

Monarch may rely on specifications, drawings, process data, operating conditions and other information supplied by the Customer. The Customer is responsible for the accuracy and completeness of that information and for confirming that the Goods and/or Services are suitable for the intended application, unless Monarch expressly agrees in writing to accept design or selection responsibility. The Customer must promptly review drawings and documents submitted for approval and notify Monarch of any apparent discrepancy.

(h)

If an order is cancelled, any deposit or other amount already paid may be applied against amounts payable by the Customer under this clause 2.

(i)

A Customer-requested change after order acceptance may affect price, scope and Delivery. No variation is effective until agreed by Monarch in writing, and the Quotation or order will be adjusted accordingly.

3.PAYMENT AND INTEREST

(a)

For approved account holders, all sums payable to Monarch are due in full no later than 30 days from End of Month, unless the Quotation or Monarch’s written order acceptance states different payment terms. Customers without an approved account must pay on the terms stated in the Quotation or otherwise notified by Monarch in writing.

(b)

Where any amount payable to Monarch is more than 30 days overdue, Monarch may, to the extent permitted by law, charge interest at 1.5% per month on the overdue amount until payment. Interest is a separate debt due and payable on demand.

(c)

A deposit or full payment may be required at the time of ordering Special Fabricated Products. A deposit may be applied to work performed, materials ordered, non-cancellable commitments and other reasonable costs incurred for the order and is non-refundable to that extent, unless otherwise agreed in writing or required by law.

4.PRICING

(a)

Prices and these Terms may be changed by Monarch before an order is accepted. Once an order is accepted, the price and Terms applicable to that order will not be changed except by an agreed variation, as expressly permitted by the Quotation, or as required by law.

(b)

Unless otherwise stated, prices are exclusive of GST. The amount payable by the Customer is the GST-exclusive price of the Goods and/or Services, plus GST and any applicable Additional Charges.

(c)

Credit card payments will be accepted for purchases up to and including $2,000.00 (including GST). Purchases over $2,000.00 are by EFT only.

5.DELIVERY

(a)

Quoted Delivery dates and lead times are estimates unless Monarch expressly agrees in writing that a date is firm. Monarch will use reasonable endeavours to meet estimated dates but, subject to any right or remedy that cannot lawfully be excluded, is not liable merely because Delivery is delayed. Goods may be delivered in instalments where reasonably necessary.

(b)

Risk in the Goods passes to the Customer on Delivery. Passing of risk is separate from passing of title under clause 10.

(c)

Unless otherwise agreed in writing, Goods are supplied ex works from Monarch’s premises and freight, packaging and handling are charged separately. Where the Customer nominates a carrier, Delivery occurs when the Goods are handed to that carrier. Where Monarch arranges freight, the agreed Quotation or order acceptance will determine the Delivery point and allocation of freight risk.

(d)

Subject to clause 7 and any liability that cannot lawfully be excluded, Monarch is not liable for Consequential Loss arising solely from a delay in Delivery. A delay caused by a Force Majeure Event is also subject to clause 13.

6.CLAIMS

(a)

The Customer should notify Monarch in writing of any shortage, visible damage or apparent non-conformity within seven (7) days after receipt of the Goods so that the matter can be investigated promptly. This time period does not limit rights relating to latent defects or any right or remedy that cannot lawfully be excluded.

(b)

Where Goods are damaged in transit and the freight risk is borne by the Customer, the Customer should note the damage on the carrier’s delivery record, retain reasonable evidence of the damage and promptly make any required carrier claim, while also notifying Monarch.

(c)

The Customer must provide Monarch with a reasonable opportunity to inspect any Goods that are the subject of a claim before the Goods are altered, repaired, disposed of or returned, unless urgent action is reasonably necessary to prevent further damage or a safety risk.

7.LIMITATION OF LIABILITY

(a)

Nothing in these Terms excludes, restricts or modifies any consumer guarantee, condition, warranty, right or remedy under the ACL or any other law that cannot lawfully be excluded, restricted or modified.

(b)

Subject to clause 7(a) and to the maximum extent permitted by law, all conditions, warranties and representations not expressly set out in the Agreement are excluded, and Monarch is not liable for Consequential Loss.

(c)

Where the ACL applies to Goods or Services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption, and it is fair and reasonable to do so, Monarch’s liability for failure to comply with a consumer guarantee is limited, at Monarch’s option and as permitted by section 64A of the ACL: for Goods, to repair, replacement, supply of equivalent goods, or payment of the cost of repair or replacement; and for Services, to re-supply or payment of the cost of having the Services supplied again.

(d)

Subject to clauses 7(a)–(c), and to the extent permitted by law, Monarch’s aggregate liability arising out of or in connection with an Agreement will not exceed the price paid or payable for the affected Goods and/or Services. This limitation does not apply to the extent that liability cannot lawfully be limited.

(e)

Any express warranty given by Monarch does not extend to failure or damage caused by fair wear and tear, misuse, improper storage, installation or maintenance, unauthorised modification, operation outside stated ratings or specifications, or process conditions, chemicals or materials not disclosed to Monarch, except to the extent the failure or damage was caused by Monarch.

8.RETURNS

(a)

Subject to clause 7 and any non-excludable rights, change-of-mind returns require Monarch’s prior written approval. Standard stocked Goods may be accepted for return if they are unused, undamaged, in original and resaleable condition and returned within ten (10) days after receipt. Unless otherwise agreed, an approved change-of-mind return is subject to a restocking fee of 25% of the purchase price.

(b)

Special Fabricated Products are not returnable for change of mind and remain payable. This does not limit any right or remedy for defective or non-conforming Goods that cannot lawfully be excluded.

(c)

The Customer is responsible for return freight and related costs for an approved change-of-mind return. Where Goods are returned because of a matter for which Monarch is responsible, return costs will be dealt with in accordance with applicable law and the agreed remedy.

9.INTELLECTUAL PROPERTY

(a)

All branding, artwork, drawings, specifications and other material provided by the Customer remain the intellectual property of the Customer or its licensors. Monarch may use that material only as reasonably necessary to quote, design, manufacture and supply the Goods and/or Services.

(b)

The Customer warrants that Monarch’s authorised use of material supplied by the Customer will not infringe any third-party Intellectual Property Right.

(c)

The Customer indemnifies Monarch against third-party claims, losses and reasonable legal costs arising from an allegation that Monarch’s authorised use of Customer-supplied material infringes a third-party Intellectual Property Right, except to the extent the claim arises from a modification or use by Monarch outside the authority given by the Customer.

(d)

Unless otherwise agreed in writing, all Intellectual Property Rights in Monarch’s pre-existing materials and in designs, drawings, calculations, specifications, manufacturing methods, software, tooling, know-how and other materials created or developed by Monarch remain owned by Monarch or its licensors.

(e)

Once the Customer has paid all amounts due for the relevant Goods and/or Services, Monarch grants the Customer a non-exclusive licence to use Monarch-supplied drawings and documents solely for the operation, installation, maintenance and repair of those Goods. The Customer must not use them to manufacture or procure copies of the Goods without Monarch’s prior written consent.

10.RETENTION OF TITLE AND PPSA

(a)

Legal title to the Goods remains with Monarch until all amounts payable in respect of those Goods have been received by Monarch in cleared funds. Risk passes in accordance with clause 5 independently of title.

(b)

Until title passes, the Customer must hold the Goods as bailee for Monarch, keep them separately identifiable where reasonably practicable, properly stored, protected and insured, and must not create or permit any security interest over the Goods that is inconsistent with Monarch’s rights.

(c)

The Customer may resell or use the Goods in the ordinary course of its business before title passes. To the extent permitted by law, Monarch’s security interest extends to identifiable proceeds of sale and to products or mass into which the Goods are incorporated or mixed.

(d)

The Customer acknowledges that these Terms create a security interest in favour of Monarch for the purposes of the PPSA and, where applicable, a purchase money security interest (PMSI). The Customer consents to Monarch registering that security interest on the PPSR and must promptly provide information and assistance reasonably required for registration, maintenance and enforcement.

(e)

The Customer must promptly notify Monarch of any change to its name, ACN, ABN, business structure or other details that may affect a PPSR registration, and must not do or permit anything that would make Monarch’s security interest ineffective. Reasonable PPSR registration and enforcement costs are Additional Charges.

(f)

If the Customer fails to pay an amount when due or becomes insolvent, Monarch may, subject to the PPSA and other applicable law, enforce its security interest and recover possession of Goods in which it retains an enforceable interest. Nothing in these Terms authorises unlawful entry onto premises or any other unlawful enforcement action.

11.INDEMNITY

(a)

To the extent permitted by law, the Customer indemnifies Monarch and its officers and employees against loss, damage, liability, cost and third-party claims to the extent caused by the Customer’s breach of the Agreement, negligent or wrongful act or omission, misuse of the Goods, failure to follow supplied instructions, or infringement arising from Customer-supplied specifications, drawings, branding or other material.

(b)

The indemnity in clause 11(a) does not apply to the extent that the relevant loss, damage, liability, cost or claim was caused or contributed to by Monarch’s breach, negligence or wilful misconduct, or to the extent an indemnity is prohibited by law.

12.MISCELLANEOUS

(a)

The Agreement constitutes the entire agreement between the parties in relation to its subject matter and supersedes prior discussions and representations, except for any representation or right that cannot lawfully be excluded. No amendment or variation to an accepted order is effective unless agreed in writing by an authorised representative of Monarch and the Customer.

(b)

The laws of Queensland, Australia govern the Agreement. The parties submit to the jurisdiction of the courts of Queensland and courts entitled to hear appeals from those courts.

(c)

If any provision of the Agreement is void, illegal or unenforceable, it is to be read down to the minimum extent necessary and, if it cannot be read down, severed without affecting the remaining provisions.

(d)

A failure or delay by either party to exercise a right under the Agreement does not operate as a waiver of that right. A waiver is effective only if given in writing.

(e)

An order, acceptance, approval, variation or other communication may be made electronically, including by email. Electronic communications satisfy any requirement in these Terms for writing unless applicable law requires otherwise.

13.FORCE MAJEURE

(a)

A party is not liable for a failure or delay in performing an obligation under the Agreement to the extent the failure or delay is caused by a Force Majeure Event, provided that this clause does not excuse an obligation to pay an amount that became due before the Force Majeure Event.

(b)

The affected party must notify the other party as soon as reasonably practicable of the Force Majeure Event and its likely effect, and must use reasonable efforts to mitigate the effect of the event. Affected obligations are suspended for the period reasonably required by the Force Majeure Event.

(c)

If a Force Majeure Event prevents performance of a material obligation for more than 60 consecutive days, either party may terminate the affected order by written notice. The Customer remains liable for Goods and Services supplied, work completed and reasonable non-cancellable commitments incurred before termination.

Terms and Conditions of Sale