1. Parties and application
These Wholesale Supply Terms apply when Division 22 Pty Ltd (ABN 85 670 745 838), trading as MOD5, supplies products to a trade customer. “Customer” means the business identified in the applicable quotation, account application, order or invoice.
These terms apply only where they are supplied or incorporated before the relevant contract is accepted.
2. Contract documents and priority
A supply contract consists of:
- any specifically negotiated written terms signed or confirmed by both parties;
- the accepted MOD5 quotation or written order confirmation;
- these Wholesale Supply Terms, identified by version or effective date;
- the Topshield Film Warranty and Claims and Returns Procedure identified for the order;
- the applicable product instructions and technical documents; and
- other documents expressly incorporated before acceptance.
A document higher in the list prevails to the extent of an inconsistency. A Customer purchase order does not override these terms unless MOD5 expressly accepts the changed term in writing. Website summaries and marketing material do not vary an accepted contract, although this does not limit responsibility for a representation MOD5 makes or a right that cannot lawfully be excluded.
3. Quotations, authority and contract formation
A quotation is an invitation to place an order and remains open for its stated validity period. An order is an offer by the Customer to purchase the stated products. The person placing an order represents that they are authorised to bind the Customer.
A contract is formed only when MOD5:
- issues written order confirmation;
- accepts payment for the order;
- issues an invoice expressly confirming acceptance; or
- otherwise confirms acceptance in writing.
An automated acknowledgement or enquiry reference is not order acceptance. MOD5 may reasonably decline an order before acceptance, including because of stock, credit, compliance or product-suitability concerns.
4. Products and substitutions
MOD5 will supply products materially consistent with the accepted order. MOD5 will not substitute a materially different product without the Customer's approval. Minor packaging or manufacturing changes that do not materially affect the agreed product may occur.
The Customer must check the order confirmation and promptly notify MOD5 of any error.
5. Product information and suitability
Product descriptions, specifications and technical materials must be read with the current product instructions and accepted quotation. The Customer is responsible for assessing whether a product is suitable for its intended vehicle, substrate, application, installation method and legal environment.
MOD5 remains responsible for the accuracy of representations it makes and for obligations that cannot lawfully be excluded. Samples are supplied for professional evaluation. A sample result does not guarantee identical results in every installation condition.
6. Batch and manufacturing variation
Film colour, finish, optical appearance, adhesive behaviour and other characteristics may vary slightly within the applicable specification and between production batches. A variation within the applicable specification is not, by itself, a defect.
The Customer must check product identification and batch details before cutting or installation. Where consistent appearance across adjacent panels or surfaces is important, the Customer must use compatible material from the same batch where reasonably practicable and contact MOD5 before installation if a material difference is identified.
7. Price and GST
Unless the accepted quotation states otherwise:
- prices are in Australian dollars;
- wholesale prices exclude GST;
- applicable GST will be added and shown on the tax invoice; and
- freight, insurance, installation and other services are additional.
MOD5 will not change the agreed price after contract formation unless the Customer requests and accepts a change, the contract identifies an adjustable third-party cost and the adjustment is reasonably calculated and disclosed, or the parties otherwise agree in writing.
8. Payment and credit
Unless MOD5 has approved written credit terms, cleared payment is required before dispatch. If MOD5 approves credit, the Customer must pay each invoice by its stated due date and remain within its approved credit limit. Deposits or staged payments apply only when stated in the accepted quotation.
The Customer must not withhold an undisputed amount because another amount is disputed. The parties must work reasonably to resolve the disputed amount. After reasonable notice, MOD5 may suspend unfulfilled orders while an undisputed amount remains overdue.
An overdue undisputed amount may accrue interest from its due date at the Reserve Bank of Australia cash rate plus 4% per annum, calculated daily. After reasonable notice, the Customer must reimburse reasonable external recovery costs properly incurred in recovering that overdue amount.
Credit approval is discretionary and may be subject to authorised identity, trade-reference and credit checks. MOD5 may reasonably change or withdraw credit for future orders because of payment history, credit risk or changed circumstances, without retrospectively changing an accepted order.
9. Delivery and freight
Delivery dates are estimates unless the accepted quotation expressly states a guaranteed date. MOD5 will take reasonable steps to meet an estimated date and notify the Customer of a material known delay.
MOD5 may make reasonable partial deliveries or place unavailable items on backorder after notifying the Customer. The Customer may cancel a materially delayed backordered item before dispatch and receive a refund for that item.
The Customer must provide an accurate address, safe access and any authority-to-leave instruction. Additional carrier costs caused by incorrect information, refused delivery or unavailable access may be charged if reasonably incurred and evidenced.
If MOD5 arranges freight, risk passes when products are delivered in accordance with the Customer's nominated address or authority. If the Customer collects or appoints its own carrier, risk passes when products are handed to the Customer or that carrier.
10. Title and Personal Property Securities Act
Legal title to products does not pass until MOD5 receives full cleared payment for those products.
The Customer grants MOD5 a security interest in products supplied on credit and their proceeds to secure payment of amounts owing for those products. The Customer consents to MOD5 making registrations reasonably necessary to perfect that interest and must promptly provide information reasonably required for that purpose.
Until title passes, the Customer must take reasonable care of unpaid products and, where reasonably practicable, keep them identifiable. The Customer may resell or install products in the ordinary course of its business, but MOD5's security interest in the products and their proceeds continues to the extent permitted by law.
Nothing in this clause authorises unlawful repossession or permits MOD5 to recover more than the amount properly owing and recoverable under law.
11. Inspection, shortages and freight damage
The Customer should inspect the delivery promptly and notify MOD5 where possible:
- within two business days of visible freight damage, shortage or incorrect supply; and
- within five business days of concealed freight damage discovered after opening.
The Customer should retain packaging where available and provide photographs, delivery records and product or batch details. These periods are procedural and do not remove a right or remedy that cannot lawfully be excluded. Delay may affect MOD5's ability to verify transit damage or recover from a carrier.
12. Order changes and cancellation
An accepted order may be changed or cancelled by agreement. Before dispatch, MOD5 will reasonably consider a cancellation request. The Customer must pay only reasonable, evidenced costs already and irreversibly incurred for the cancelled order.
Any deposit will be applied to those costs and the unused balance refunded. Custom-cut, specially manufactured or specially ordered products cannot be cancelled for change of mind after MOD5 commits irrecoverable supplier or production costs, where this restriction was disclosed before acceptance.
MOD5 may cancel an order if supply becomes unlawful or impossible, or a material supplier failure outside its reasonable control prevents supply. MOD5 will refund amounts paid for products not supplied.
13. Returns
There is no automatic return right for change of mind.
MOD5 may approve a change-of-mind return where:
- the request is made within 14 days after delivery;
- the product is standard stock;
- it is unopened, unused, undamaged and in resaleable condition;
- it has been stored correctly; and
- MOD5 issues return authorisation before it is sent.
An approved change-of-mind return may attract a restocking charge of up to 15% of the invoiced value, reflecting reasonable handling and inspection costs. The Customer bears return freight. No restocking charge applies to a defective or incorrectly supplied product or another non-excludable remedy.
14. Product guarantees, defects and statutory rights
Topshield film supplied by MOD5 carries the supplier guarantee shown on the product packaging or confirmed in the accepted order. The guarantee period varies by the exact film range and product. The Topshield Film Warranty page summarises the current guarantee periods.
The Customer must follow the MOD5 Claims and Returns Procedure when reporting a suspected product issue. MOD5 will review the information supplied and, where appropriate, help coordinate the claim with Topshield. Any outcome or remedy will follow the applicable Topshield guarantee and Australian law.
The Topshield guarantee is additional to any guarantee, condition, warranty, right or remedy that cannot lawfully be excluded, including under the Australian Consumer Law. A Customer may be a consumer under that law even when purchasing for business use.
15. Installer and Customer responsibilities
The Customer is responsible for:
- inspecting and correctly storing products;
- using trained personnel, suitable tools and current instructions;
- testing product and substrate compatibility where reasonably required;
- inspecting and recording the vehicle, paint, glass or lens condition before installation;
- identifying repaired, repainted, resprayed, touched-up, coated or otherwise non-original surfaces;
- explaining a material substrate risk to the vehicle owner and retaining the owner's written acknowledgement before proceeding;
- obtaining MOD5's written approval before representing an excluded or non-standard surface as eligible for a MOD5 express warranty;
- complying with applicable vehicle, glazing, road-use, workplace and consumer laws;
- keeping relevant product, batch, customer approval and installation records; and
- remaining responsible for its workmanship and any warranty, representation or obligation it gives.
The Topshield product guarantee relates to the film itself. Substrate condition, preparation, installation workmanship and any additional promise made by the Customer remain the Customer's responsibility. Nothing in this clause limits a right or remedy that cannot lawfully be excluded.
16. Road use and unauthorised representations
The Customer must not:
- make product claims that exceed current MOD5 documentation;
- alter product identification or traceability records;
- represent itself as a MOD5 employee, agent or exclusive representative;
- knowingly use a product contrary to a stated safety, legal or application limitation; or
- represent that a product or completed installation complies with a road, glazing, tint, visibility or vehicle standard unless current MOD5 documentation supports the representation and the Customer has verified the completed installation.
17. Product safety, traceability and corrective action
The Customer must retain reasonable order, product, batch and installation records for the applicable warranty period.
If MOD5 issues a reasonable safety, stop-use, quarantine, corrective-action or recall notice, the Customer must promptly stop supplying or installing affected products, isolate remaining stock, identify affected installations from available records and reasonably cooperate with MOD5.
Responsibility for reasonable corrective-action costs will be determined by the cause, the applicable warranty and rights that cannot lawfully be excluded.
18. MOD5 branding and materials
MOD5 grants the Customer a limited, non-exclusive and revocable permission to use current MOD5 product names, approved installer marks and supplied marketing or technical materials solely to promote and install genuine MOD5 products. The Customer must follow current brand instructions and must not alter materials in a misleading way or imply an agency, exclusivity or endorsement that MOD5 has not confirmed in writing.
MOD5 may withdraw this permission on reasonable notice or immediately where continued use is misleading, unlawful or materially damaging to the brand. Withdrawal does not prevent accurate identification of genuine MOD5 products already supplied.
19. Liability
Nothing in this clause limits liability that cannot lawfully be limited.
Subject to that qualification, neither party is liable to the other for indirect or consequential loss that was not reasonably foreseeable when the contract was formed.
This exclusion does not apply to fraud, wilful misconduct, breach of confidentiality, infringement of intellectual property, personal injury, property damage caused by negligence or liability that cannot lawfully be excluded. Each party must take reasonable steps to mitigate loss.
20. Indemnity
The Customer indemnifies MOD5 against direct loss, damage, liability or reasonable external cost to the extent caused by:
- the Customer's negligent or unlawful installation;
- a representation made by the Customer without MOD5's authority;
- deliberate misuse of a product; or
- the Customer's material breach of these terms.
The indemnity is reduced to the extent MOD5, its product or its personnel caused or contributed to the loss. It does not cover indirect loss or an amount recoverable from MOD5 under a non-excludable obligation.
21. Suspension and termination
Either party may terminate an uncompleted contract for a material breach that the other party fails to remedy within a reasonable period after written notice.
To the extent permitted by law, MOD5 may immediately suspend supply where reasonably necessary because of an urgent safety issue, unlawful conduct, fraud, insolvency or a serious security risk. Termination does not affect accrued payment obligations, existing claims or clauses intended to survive termination.
MOD5 will refund amounts paid for undelivered products, less reasonable amounts properly due under the contract.
22. Force majeure
A party is not liable for delay caused by an event outside its reasonable control if it promptly informs the other party, takes reasonable steps to reduce the delay and resumes performance when reasonably possible. Payment already due for delivered products is not excused.
If the delay materially defeats the purpose of an unfulfilled order, either party may cancel the affected part by notice. MOD5 will refund payment for products not supplied.
23. Disputes
A party raising a dispute must give reasonable details to the other party. An authorised representative from each party must first attempt to resolve the dispute in good faith.
If unresolved after 10 business days, either party may propose mediation in Victoria before commencing court proceedings. This does not prevent urgent interlocutory relief, debt recovery for an undisputed amount or exercise of a non-excludable statutory right.
24. Privacy and confidentiality
MOD5 handles personal information in accordance with its Privacy Policy and applicable law.
Each party must protect confidential commercial information received from the other and use it only for the contract, except where disclosure is authorised, already public through no breach, independently known or required by law. This obligation survives termination.
25. Notices
A notice under an accepted contract may be sent to the email or physical address shown in the accepted order, invoice or account records. An email is treated as received when it enters the recipient's information system, unless the sender receives a delivery-failure notice. A party must promptly notify the other of a change to its notice details.
26. Changes to these terms
A change to an accepted contract must be agreed in writing or made under an express and transparent adjustment mechanism in that contract. MOD5 may update these standard terms for future transactions. An update does not change an existing contract without agreement.
27. Entire agreement and representations
The contract documents listed in clause 2 record the agreement for the accepted order and replace earlier negotiations about that order. Nothing in this clause excludes liability for fraud, misleading or deceptive conduct, or another representation or right that cannot lawfully be excluded.
28. General provisions
A failure or delay in exercising a right is not a waiver. If part of these terms is unenforceable, it is to be read down where possible and the remaining provisions continue.
Neither party may assign an accepted contract without the other party's consent, which must not be unreasonably withheld. MOD5 may assign it as part of a genuine sale or restructure of its business if the assignment does not materially reduce the Customer's rights. Electronic acceptance and communications may be used where permitted by law.
29. Governing law
These terms and each supply contract are governed by the laws of Victoria, Australia. The parties submit to the non-exclusive jurisdiction of the courts of Victoria and courts entitled to hear appeals from them.
30. Contact
Division 22 Pty Ltd trading as MOD5
ABN 85 670 745 838
12 Fink Street
Williamstown North VIC 3016
Australia
Email: info@mod5.com.au
Phone: 0430 090 692