Terms and Conditions for Sale & Supply of Goods and Services
MMGT Trading Pty Ltd (ABN 80 139 708 115) trading as Mountain Shade Company will be referred to as “the Supplier”, “Mountain Shade”, “we”, “us” and “our”. The Purchaser will be referred to as , “the Reseller”, “you” and “your”.
1. You have been supplied goods and services by the Supplier and this transactional sale refer’s to these terms and conditions. By you undertaking the action/s to purchase and/or resell the Mountain Shade products, services, components or solutions described within the provided documentation you acknowledge that you have read, understood and agree to abide by the following terms and conditions.
2. Quotation Terms
2.1 All quotes provided to you have a validity period as mentioned in the quotation. This validity period signifies that the quotation is valid for only the period defined. Should you decide to proceed with the order after the defined period, Mountain Shade reserves the right to reject the order and if required, reissue a new quotation. If a validity period is not specified, quotation validity shall be 30 days from date of quotation.
2.2 Mountain Shade reserves the right to deny any quote for production even if still within the defined validity period.
2.3 By signing for approval or approving a quotation by any means, you agree that you have authority to make the purchase on behalf of your company/organization/person and this approval is a legally binding contract with Mountain Shade for the purchase and production of your order. Should you decide to deny Mountain Shade of this order post-approval, you will be required to pay a 50% order-exit fee where printing or product customisation is involved.
3. Payment Terms
3.1 All written prices and quotations provided by Mountain Shade include GST unless otherwise stated. You shall pay the full outstanding balance of charges to Mountain Shade prior to dispatch. The Reseller shall pay all sums due to Mountain Shade in terms of this agreement without any set-off, deduction, counterclaim, and/or any other withholding of monies unless specified on the tax invoice. If any amount due by You to Mountain Shade is not paid on the due date, then without prejudice to any other remedies to which Mountain Shade may be entitled, all such overdue amounts shall bear interest at a rate determined by Mountain Shade compound each month in arrears till payment is received.
3.2 You will be required to pay a minimum of 100% deposit to Mountain Shade payable either by cash, EFT, bank cheque or credit card prior to the commencement of custom printing production . In the event that the order is cancelled by You post-approval, the deposit may be forfeited in full to Mountain Shade based on Mountain Shades sole decision based on production status achieved prior to cancellation.
3.3 Mountain Shade does not offer credit facilities or commercial loans of any description to sourcing products.
4.1 Mountain Shade always seeks to list Products with the most competitive prices. Mountain Shade reserves the right to change prices for Products at any time. All and any documents supplied to you that include price lists, promotional specials or product information in printed or electronic form are COMMERCIAL IN CONFIDENCE, and remain as such even after the expiry of any Reseller agreement you may have with Mountain Shade.
4.2 You acknowledge and understand that any Price Lists, Pricing information or Mountain Shade documents supplied to you by Mountain Shade during the period you are a Reseller ( and for 24 months afterwards your termination as a Reseller) are COMMERCIAL IN CONFIDENCE. This includes any documents marked and unmarked as such. Mountain Shade supplied these documents to you in good faith of our agreement, and sharing these documents or their contents in any way and for any reason with parties outside of your organisation will cause damage to Mountain Shade commercially. Mountain Shade has the right to pursue you for such breaches to the full extent of the Governing law.
5. Freight & Delivery:
All freight & delivery costs(if any and applicable) shall be born by the Reseller and paid to Mountain Shade as per specified in the tax invoice, prior to dispatch.
5.1 In the case of a return for damaged and/ or faulty goods the return to Mountain Shade or our repair centre will be born by the Reseller and the freight/delivery back to the Reseller will be born by Mountain Shade.
6. Backorder Products:
In the event that some or all goods ordered by the Reseller are not available for immediate dispatch those goods will be placed on backorder only after full payment was been received and delivered to the Reseller or drop shipped to your customer when available.
7. Production and Delivery
No printed or custom production goods order shall go into production without a 100% prior deposit to Mountain Shade ( unless mutually agreed ), payable either by cash, EFT, bank cheque or credit card,. Our production period for printed goods is typically a maximum of 30 days from the date the 100% deposit has cleared into the Mountain Shade bank account and the final design is approved by the Reseller. Faster production times for custom printing are available and will be advised by Mountain Shade in writing and identified as best effort.
7.1 Mountain Shade holds no liability in respect to production times other than our standard typical production period. It is the responsibility of the Reseller to ensure that their order is placed sufficiently ahead of any deadlines. The 30 day production timeline signifies that the corresponding date the following month after deposit clears, the goods will be ready for dispatch from our office.
7.2 Mountain Shade does not hold any responsibility in regards to the delivery timetable of our shipping supplier/broker/company. We do not guarantee in anyway a specific delivery date to the Reseller; we only guarantee that after 30 days the goods will be dispatched from our warehouse or production facility. In addition, we do not hold any responsibility for items that are lost or damaged during shipping to the Reseller. Transit Insurance for the goods can be arranged for by the Reseller.
8. Manufacturer’s Warranty
Unless otherwise negotiated and agreed to in writing, Mountain Shade products may carry either a warranty based on the Frame Model Specification. The duration of the manufacturer’s warranty starts from the date of purchase, represented by the transaction of payment for the good(s) and the stated warranty period applicable to the product on your tax invoice. You should reflect these terms to your customer.
8.1 This warranty is representative that the product will be free of faulty workmanship and manufacturing defects for the prescribed period and does not cover wear and tear through normal use, except where wear and tear have been accelerated by faulty workmanship or manufacturing faults. The Reseller shall be responsible for all damages and/or losses due to the Resellers negligence, misdirection and/or misuse of the goods as specified or any type of use not intended for the products. The Reseller undertakes to instruct their Customer to only use the goods for their intended purpose and in a safe & correct manner in accordance with any operating and/or safety instructions provided or supplied by Mountain Shade. Mountain Shade will not be responsible for damages caused by Force Majeure.
8.2 Should any claim be made against a product purchased from Mountain Shade, the Reseller is required to complete on behalf of the customer a RMA/claim form and return the item to our office for inspection by our staff. Any claim will be authorized at the full discretion of an authorized Mountain Shade warranty officer.
8.3 Any Mountain Shade product found faulty due to a manufacturing error during the warranty period will be repaired, or, spare parts provided to Resellers unable to bring the marquee to our workshop for repairs. The marquee must be used exactly as outlined in our instruction manual/document and additionally as per below.
a) After each use, the nuts, bolts and screws in the frame should be checked for tightness. Any loose nuts/screws are to be tightened. Frame failure due to loose bolts/screws is not covered by Mountain Shade or our suppliers as a warranty claim
b) Prior to the storage of the marquee, it should be free of any water or moisture and cleaned to ensure safe operation and durability
c) Mountain Shade products are not to be used as permanent structures in any way and should have an installation period and building code approval that reflects and ensures non permanent usage. You must not reperesent that a Mountain Shade can be used a permanent structure or in any way outside of the Mountain Shade factory Warranty in any way as this will cause violation of the Mountain Shade supplied warranty, and warranty obligation fulfillment will revert to you as the Reseller.
d) Marquees are not to be altered in any way from the condition of first purchase
e) Marquees are not to be used for the support of any other structures at any time
f) Do not install or continue to use your marquee in stormy or windy conditions or any conditions where the Mountain Shade products cannot be installed and used in a safe operating manner
g) Mountain Shade products should be used only when supervised or with physical person attendance at the installation site for the duration of the installation.
h) Engineer and Testing Certificates are for compliance declaration. Information contained is recommended values. Your customers should consult their own resources to determine the best configuration for their situation and environment
i) Factory Sample items are excluded from this warranty
9. Severability: This agreement many be severed by either party in writing or any other mechanism of assured information delivery. Any remaining provisions hereof shall remain in full force and effect for any purchases by the Reseller. All provisions in these terms and conditions that are not transactional survive severance and the obligations must be adhered to even if you are no longer a Reseller for Mountain Shade.
10. Our Liability
We will not be liable for any loss of income, loss of profits, loss of contracts, loss of data or for any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise.
10.1 Our maximum aggregate liability for any Product supplied to you whether in contract, tort (including negligence) or otherwise shall in no circumstances exceed the amount payable by you to us in respect of the Product(s) in question.
You shall not assign any rights and obligations under these Terms and Conditions whether in whole or in part without the prior written consent of Mountain Shade. Any unauthorized assignment shall be deemed null and void.
If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and Conditions and the remainder of the provisions in question shall not be affected thereby.
11.1 Under the Trade Practices Act 1974 ("Act"), where implied conditions and warranties cannot be excluded, any liability in Mountain Shade for breach of such conditions and warranties (other than a condition or warranty implied by section 69 of the Act) shall be limited, at the option Mountain Shade, to the replacement of the Product(s) or the re-supply of the same Product(s); the payment of the cost of replacing the Product(s) or of acquiring equivalent Product(s).
11.2 Neither our failure nor your failure to enforce any Term or Condition constitutes a waiver of such Term or Condition. Such failure shall in no way affect the right to later enforce such Term or Condition.
12. Confidentiality Undertaking
You agree to maintain strict confidentiality of all Mountain Shade Picing information supplied to you . Specifically you will remain obliged to protect this information during this agreement tenure and after severance of this agreement. Specifically you will be obliged to and comply with and not share with any other parties directly or indirectly via any mechanisms:
12.1 Any Reseller information you received during your relationship or single sale with the Supplier, such as and not limited to - price lists, product information, future product information and business information and business tactics.
12.2 Any designs or any material the result of services provided by Mountain Shade for any customers or prospects.
After severance, you will not contact or share any information to allow third parties to so or to approach any other Mountain Shade dealers, resellers, distributors or sponsored persons or teams.
You acknowledge that by breaching any conditions in this agreement you could cause commercial damage to the Supplier and you could be liable for the damages that could result to the full extent of the Governing Law.
13. Governing Law
These Terms and Conditions shall be governed by and construed in accordance with the laws of Victoria and shall be subject to the non-exclusive jurisdiction of the courts of Victoria. Mountain Shade are not in any way liable to you or any third party for any loss whatsoever associated with your use of our products or any of our documentation relating to our products. If and to the extent any state does not permit the exclusion or limitation of liability for consequential or incidental damages, the Supplier's liability, in such state, shall be limited to the fullest extent permitted by law.