Terms & Conditions of Trade
Definitions
1.1 “MA“ shall mean “Mortuary Assist ABN: 64 038 468 119”, its successors and assigns or any person acting on behalf of and with the authority of Mortuary Assist.
1,2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by MA to the Client.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by MA to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by MA to the Client.
1.5 “Services” shall mean all Services supplied by MA to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the price payable for the Goods as agreed between MA and the Client in accordance with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3. Acceptance
3.1 Any instructions received by MA from the Client for the supply of Goods or Services and/or the Client’s acceptance of Goods or Services supplied by MA shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of MA.
3.4 The Client shall give MA not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by MA as a result of the Client’s failure to comply with this clause.
3.5 Goods and or Services are supplied by MA only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
4. Price and Payment
4.1 At MA’s sole discretion the Price shall be either:
(a) As indicated on invoices provided by MA to the Client in respect of Services/Goods supplied; or :-
(b) MA’s current price at the date of delivery of the Services/Goods according to MA’s current Price list; or:–
(c) MA’s quoted Price (subject to clause 4.2) which shall be binding upon MA provided that the Client shall accept MA’s quotation in writing within thirty (30) days.
4.2 MA reserves the right to change the Price in the event of a variation to MA’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required due to hidden or unforeseen difficulties that require additional chemical treatment, or as a result of increases to MA in the cost of materials and labour) will be charged for on the basis of MA’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 At MA’s sole discretion a non-refundable deposit may be required.
4.4 At MA’s sole discretion payment shall be due before delivery of the Goods and or Services.
4.5 Time for payment for the Goods and or Services shall be of the essence and will be stated on the invoice or any other forms. lf no time is stated, then payment shall be due within seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by client company/business cheque (by prior approval from MA), or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and MA.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Delivery of Goods
5.1 At MA’s sole discretion delivery of the Goods shall take place when:
(a) The Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by MA or MA’s nominated carrier); or:-
(b) The Client’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Client’s agent.
5.2 At MA’s sole discretion the costs of delivery are:
(a) Included in the Price; or:–
(b) In addition to the Price; or:-
(c) For the Client’s account.
5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then MA shall be entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5.5 The failure of MA to deliver shall not entitle either party to treat this contract as repudiated.
5.6 MA shall not be liable for any loss or damage whatsoever due to failure by MA to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of MA.
6. Risk
6.1 lf MA retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 lf any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, MA is entitled to receive all insurance proceeds payable for the Goods.
The production of these terms and conditions by MA is sufficient evidence of MA’s rights to receive the insurance proceeds without the need for any person dealing with MA to make further enquiries.
6.3 The Client acknowledges that the process of embalming can distort a body and agrees to indemnify MA against any claim whatsoever should any such distortion occur as a result of the embalming process.
6.4 Goods once dispatched from MA’s premises shall be at the Client’s sole risk.
6.5 Whilst all care shall be taken to secure any property entrusted to MA and which is intended to accompany the deceased all such items shall be left with MA at the Client’s sole risk.
6.6 In the event that an approved key holder enters MA’s premises outside of MA’s normal hours of operation and unaccompanied by MA or MA’s agent, then the key holder does so at their own risk and indemnifies MA against any claim, damage or injury howsoever arising out of such entry or whilst on MA’s premises.
7. Title
7.1 MA and the Client agree that ownership of the Goods shall not pass until:
(a) The Client has paid MA all amounts owing for the particular Goods; and:–
(b) The Client has met all other obligations due by the Client to MA in respect of all contracts between MA and the Client.
7.2 Receipt by MA of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then MA’s ownership or rights in respect of the Goods shall continue.
7.3 It is further agreed that:-
(a) Where practicable the Goods shall be kept separate and identifiable until MA shall have received payment and all other obligations of the Client are met; and:-
(b) Until such time as ownership of the Goods shall pass from MA to the Client, MA may give notice in writing to the Client to return the Goods or any of them to MA. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease;
and:–
(c) MA shall have the right of stopping the Goods in transit whether or not delivery has been made; and:-
(d) If the Client fails to return the Goods to MA then MA or MA’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods; and:-
(e) The Client is only a Bailee of the Goods and until such time as MA has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to MA for the Goods, on trust for MA; and
(f) The Client shall not deal with the money of MA in any way which may be adverse to MA; and
(g) The Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of MA; and:-
(h) MA can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and:-
(I) Until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that MA will be the owner of the end products.
8. Defects
8.1 The Client shall inspect the Goods on delivery and shall within three (3) days of delivery (time being of the essence) notify MA of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote.
The Client shall afford MA an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the goods are defective in any way. lf the Client shall fail to comply with these provisions the goods shall be presumed to be free from any defect or damage. For defective Goods, which MA has agreed in writing that the Client is entitled to reject, MA’s liability is limited to either (at MA’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (Cwlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
8.2 Goods will not be accepted for return other than in accordance with 8.1 above.
9. Warranty
9.1 For Goods not manufactured by MA, the warranty shall be the current warranty provided by the manufacturer of the Goods. MA shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods. To the extent permitted by statute, no warranty is given by MA as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded.
MA shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
10. Default & Consequences of Default
10.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of five and one half percent (5.5%) per calendar month (and at MA’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
10.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by MA.
10.3 lf the Client defaults in payment of any invoice when due, the Client shall indemnify MA from and against all costs and disbursements incurred by MA in pursuing the debt including legal costs on a solicitor and own client basis and MA’s collection agency costs.
10.4 Without prejudice to any other remedies MA may have, if at any time the Client is in breach of any obligation (including those relating to payment| MA may suspend or terminate the supply of Goods or Services to the Client and any of its other obligations under the terms and conditions. MA will not be liable to the Client for any loss or damage the Client suffers because MA has exercised its rights under this clause.
10.5 lf any account remains overdue after sixty (60) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
10.6 Without prejudice to MA’s other remedies at law MA shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to MA shall, whether or not due for payment, become immediately payable in the even that:
(a) Any money payable to MA becomes overdue, or in MA’s opinion the Client will be unable to meet its payments as they fall due; or:-
(b) The Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors;
or:-
(c) A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
11. Cancellation
11.1 MA may cancel any contract to which these terms and conditions apply or cancel delivery of goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice MA shall repay to the Client any sums paid in respect of the Price. MA shall not be liable for any loss or damage whatsoever arising from such cancellation.
11.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by MA (including, but not limited to, any loss of profits) up to the time of cancellation.
11.3 In the event that the Client cancels any service(s) requested off MA, the Client, by discretion of MA, may incur a late cancellation fee in the amount of one hundred ($100.00) dollars.
12. Privacy Act 1988
12.1 The Client and/or the Guarantor/s agree for MSS to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by MA.
12.2 The Client and / or the Guarantor/s agree that MA may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) To assess an application by Client; and/or:-
(b) To notify other credit providers of a default by the Client; and/or:-
(c) To exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or (d) to assess the credit worthiness of Client and/or Guarantor/s.
12.3 The Client consents to MA being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
12.4 The Client agrees that personal credit information provided may be used and retained by MA for the following purposes and for other purposes as shall be agreed between the Client and MA or required by law from time to time:
(a) Provision of Goods; and/or:-
(b) Marketing of Goods by MA, its agents or distributors in relation to the Goods; and/or
(c) Analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods; and/or:-
(d) Processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or:-
(e) Enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
12.5 MA may give information about the Client to a credit reporting agency for the following purposes:
(a) To obtain a consumer credit report about the Client; and/or:-
(b) Allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
13. General
13.1 lf any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining
provisions shall not be affected, prejudiced or impaired.
13.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
13.3 MA shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by MA of these terms and conditions.
13.4 ln the event of any breach of this contract by MA the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
13.5 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by MA nor to withhold payment of any invoice because part of that invoice is in dispute.
13.6 MA may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
13.7 The Client agrees that MA may review these terms and conditions at any time. lf, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which MA notifies the Client of such change.
13.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
13.9 The failure by MA to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect MA’s right to subsequently enforce that provision.
14.0 MA reserves the right to refuse any Client(s) instructions, whether written or verbal or other, undertake and perform any mortuary work at the Client(s) approved mortuary facility, should the Client(s) mortuary be found not to meet the mandatory Health Requirements and comply with current and updated OHS & Infectious Risk Policies. This also includes the following:-
- No professional lift equipment is available.
- Services by MA are not guaranteed and are subject to pre-case analysis of the cadaver.
- No cadaver preparation will be performed at the Client(s) approved mortuary without written consent from the Client(s) to proceed, in particular, specifying clearing in written mortuary instructions to MA, the preparation(s) required and production and sighting or having in MA possession at the time, original Medical Cause of Death / Coroners Order for disposal of human remains. Under no circumstances will MA undertake preparation of a cadaver for a funeral service or family viewing, on production of a Life Extinct Document by the Client(s) to MA.
14.1 The Client(s) acknowledge that embalming is not an exact science and the results are dependent upon a number of factors, including but not limited to the conditions under which the death occurred, such as:-
(a) Time Lapse between death and the onset of the embalming procedure;
(b) Physical condition at the time of death;
(c) Medications, Life Saving Procedures, cause of death, Storage procedures of releasing institution, Natural Elements, Tissue/Organ(s) Donations;
(d) Post-Mortem (Autopsy) Examinations;
14.2 The Client/s further acknowledges that any instructions issued to MA to perform embalming or reconstructive work on a cadaver at the Client/s registered mortuary, shall be performed by a Qualified Embalmer engaged by MA. The Client further agrees and acknowledge that at times, MA may be required to provide a Student Embalmer in Training and or a Mortuary Assistant, to assist the MA Embalmer to perform the embalming tasks required.
14.3 The Client/s acknowledge that if MA is requested to withhold embalming of the cadaver, and perform what is commonly referred to in the funeral industry as a “Basic Preparation / BP”, this procedure will involve the following, but not limited to, due to any unforeseen circumstances and pre case analysis, also referred to as Pre-Embalming Analysis by MA Embalmer, which may require further procedures for viewing purposes only and potential non viewing of the cadaver:- (The BP will consist at minimum);
(a) Wash & Disinfect Cadaver;
(b) Closure of orifices (Pack & Suture);
(c) Dressing of Cadaver (If Clothing Provided by Client)
(d) Facial Settings
(e) Encoffining (If Provided by Client at time of BP Procedure)
14.4 MA Embalmer shall perform “BP” to Standard Industry Procedures. The Client/s acknowledge that further mortuary procedures may be required on the cadaver, to enable a potential viewing by the family. The Client/s further acknowledge that each case is different and circumstances surrounding the death of a cadaver may and will vary to each case, and as such, MA Embalmers cannot guarantee any preparation procedures performed to be successful and allowing a viewing of the deceased to the family.
14.5 The Client/s agree that the MA Embalmer/s pre-case analysis of a deceased and recommendations made to the Client/s by MA Embalmer, is final and the Client/s agree to abide by the recommendations made by MA.
14.6 The Client/s agree and acknowledges that, without embalming, the Client/s (Funeral Home) loses some ability to control physical and/or cosmetic changes that may occur to the cadaver.
14.7 MA agrees to liaise with the Client/s family (Clients) concerning mortuary matters and results and recommendations made by MA to the Client/s, with reference to a pre-case embalming analysis / pre-case analysis.
14.8 The Client/s agree “Not” to discuss any mortuary procedure for which they are not qualified embalmers, nor will the client/s make any form of promises or recommendations to their family clients concerning viewings and funeral dates, etc., before MA Embalmer has undertaken and completed the pre-case embalming analysis / pre-case analysis and only then, will the Client/s continue with the funeral arrangements, etc.
15.0 INDEMNICATION
15.1 The Client/s agree to indemnify and hold harmless Mortuary Assist ABN: 64 038 468 119, its qualified embalmer/s, student embalmers in training, mortuary assistants, from any claims or causes of action arising or related in any respect to the direction as set forth above and in this Terms & Conditions of Trade, from any claims or cause of legal action.
15.2 MA agrees that all mortuary procedures undertaken and performed by MA Qualified Embalmer/s, shall be carried out and performed with the highest possible industry standards at all times, with diligence, and dignity to the cadaver. MA further agrees that it will provide the highest level of professional attention, approach and ethics to the Client/s, at all times.