Terms of Trade

TERMS AND CONDITIONS OF TRADING WITH MAC UTE ACCESSORIES PTY LTD

I. DEFINITIONS

1.1 In these terms and conditions unless the context otherwise
requires:

  • a) “Buyer” means the person buying the goods from Mac Ute Accessories Pty Ltd.
  • b) “Business Day” means any day that registered banks in Australia are open for business excluding Saturdays, Sundays and statutory holidays.
  • c) “Company” means Mac Ute Accessories Pty Ltd and includes it successors and assigns.
  • d) “Designs” means all designs, drawings and documents prepared by the Company, or provided by the Buyer, for the manufacture and/or production of Goods.
  • e) “Event of Default” means the happening of any of the following events, namely:
    • I. The Buyer fails to pay for the Goods or Services on the due date for payment.
    • II. The Buyer defaults in performance of any one or more of
      its other obligations to the Company under the Contract.
    • III. The Buyer commits an act of bankruptcy or enters into a composition or arrangement with creditors or (being a company) commences to be liquidated or has a receiver or statutory manager appointed in respect of any of its assets.
  • f) “Goods” means accessories for attaching to motor vehicles for, carrying and storage purposes; including without limitation racks for carrying cycles and other general luggage and all other inventory; and/or any Hard Lids manufactured or obtained for the buyer.
  • g) “Contract” has the meaning given that term in clause 2.1
  • h) “Price” means the price of the Goods or Services as agreed between the Company and Buyer.
  • i) “Services” means the services purchased by the Buyer from the Company and includes any services arising from the supply of Goods.

1.2 References to one gender include the other genders and
references to the plural include the singular and vice versa.

II. CONTRACT

2.1 These terms and conditions together with the Company’s confirmation of order (if any) and the provisions of a quotation (if any) shall constitute the contract between the Company and the Buyer for the sale and purchase of Goods and/or Services.

2.2 No agent or representative of the Company is authorised to make any representations, warranties, conditions or agreements not expressly confirmed by the Company in writing, and the Company is not in any way bound by any such authorised statements, nor can any such statements be taken to form part of the Contract or part of a contract with the Company collateral to the Contract.

2.3 Where Goods are installed by a third party, the Company shall not be responsible for defects, damage, leaks, fitment issues or losses arising from installation workmanship.

III. PRICE

3.1 If between the date a Contract is entered into, and the date of delivery of Goods or performance of Services pursuant to that Contract any item involved in the supply, production and/or delivery of those Goods or the carrying of those Services is increased in price due to the circumstances beyond the Company’s control, the Price shall be increased to reflect those additional costs.

3.2 All prices are subject to change without notice and prices in the Company’s price list or catalogue should be confirmed prior to ordering.

3.3 Unless expressly stated in a quotation or any price list or catalogue issued by the Company, the Price does not include the cost of installation of Goods purchased by the Buyer from the Company.

3.4 If the Buyer requests any variation to a contract for the supply of goods or services, the Company is entitled to adjust, and if necessary, increase the price to reflect the cost of the variation.

IV. TAXES AND DUTIES

4.1 Unless otherwise stated, all prices quoted by the Company are exclusive of Goods and Services Tax ("GST").

4.2 The Buyer must pay GST in addition to the Price at the rate applicable at the date of supply.

4.3 Where GST is payable on any supply made under these Terms, the Buyer must pay the GST amount at the same time as payment for the relevant Goods or Services.

V. PAYMENT

5.1 Where Goods and/or Services are supplied on credit, invoices are payable strictly on the 20th of the month following date of invoice or as per other payment terms specified on the invoice.

5.2 Failure to pay any amount by due date shall be breach of the Buyer’s obligations under these terms and conditions and the Company may in respect of such account, without prejudice to any other rights or remedies it may have, charge penalty interest thereon (plus GST if GST is applicable). Interest shall accrue at 0.10% per day (36.5% per annum equivalent) or the maximum rate permitted by law from the date payment was due until payment is made in full.

5.3 The Buyer shall not be entitled to withhold payment or to make any deduction from or set off any amount against any moneys payable to the Company without prior written consent of the Company.

5.4 Receipt by the Company of any cheque or other bill of exchange or any promissory note, shall not be deemed to be payment or conditional payment until the same has been honoured or cleared and until such time shall not prejudice or affect the Company’s rights, powers or remedies against the Buyer and/or the Goods

 5.5 The buyer will make payment to the seller’s bank account for all monies owed:

MAC Ute Accessories Pty Ltd
Bank: ANZ
BSB: 013 011 Account: 1614 14431

VI. CANCELLATIONS AND SPECIAL ORDERS

6.1 The Company may accept or reject any cancellation request at its sole discretion.

6.2 Orders for Goods that are manufactured, modified, powder coated, sourced, procured or supplied specifically for the Buyer, or which are not ordinarily held in stock by the Company, may not be cancelled once manufacture, procurement or processing has commenced.

6.3 Where a cancellation is accepted by the Company, the Buyer shall be liable for all costs incurred by the Company up to the date of cancellation, including but not limited to materials, freight, labour, subcontractor charges, powder coating costs and administration costs.

6.4 Any deposit paid by the Buyer is non-refundable unless otherwise agreed in writing by the Company.

6.5 The Company may charge a reasonable cancellation fee to cover costs incurred as a result of the cancellation.

6.6 Goods manufactured or supplied for a specific vehicle make, model or variant may not be returned due to incorrect vehicle selection by the Buyer, dealer, installer or end user unless otherwise agreed by the Company.

VII. DELIVERY OF GOODS

7.1 Delivery of Goods shall be made to the delivery address as indicated in the Contract or as specified by the buyer, if no place is indicated delivery shall be deemed complete when the Company has advised the Buyer that the Goods are available for collection.

7.2 Where the cost of freight has not been included in the Price, and the Company undertakes the delivery of Goods, the price shall be increased by the cost of freight and handling incurred in delivery of those Goods.

7.3 Without prejudice to any other right or remedy, the Company may charge storage and transportation expenses if the Buyer fails or refuses to take or accept delivery or indicates to the Company that it will fail to do so.

7.4 Delivery of 10% more or less than the quantity of the Goods ordered by the Buyer shall constitute performance by the Company, the amount under or over supplied to be deducted or charged on a pro rata basis.

7.5 The Company reserves the right to deliver the Goods by instalment shall be deemed a separate contract under the same provisions as the main contract. Failure by the Company to deliver, or defective delivery by the Company of one or more instalments shall not entitle the Buyer to cancel the contract.

7.6 Shortages must be advised in writing as soon as possible after receipt of delivery.

7.7 The Buyer must inspect the Goods immediately upon delivery and prior to signing any delivery documentation.

7.8 Any visible shortage, damage, defect or discrepancy must be noted on the carrier's delivery documentation at the time of delivery and notified to the Company in writing within twenty-four (24) hours of delivery, together with photographs where applicable.

7.9 Where Goods are delivered by a third-party carrier, the Buyer acknowledges that freight services are provided subject to the carrier's terms and conditions and applicable Australian transport laws.

7.10 If the Buyer signs a delivery receipt without recording visible damage or shortages, the Goods shall be deemed to have been delivered free from any visible external damage or shortage unless the Buyer can establish otherwise.

7.11 Delivery dates provided by the Company are estimates only and are not guaranteed.

7.12 The Company shall not be liable for any loss, damage, delay or expense arising from delays in manufacture, freight, shipping, customs clearance, supplier delays or circumstances beyond the Company's reasonable control.

VIII. DELAY AND DELIVERY TIMEFRAMES

8.1 The Company shall not be liable under any circumstances for any loss or damage (including any consequential loss) for late or nondelivery of the Goods or late performance of Services.

8.2 If a time for delivery of the Goods or performance of Services is quoted by the Company the time shall be an approximate only and shall not be deemed to be the essence of the contract.

8.3 Any claim for freight damage, shortage or non-delivery must be notified to the Company within 24 hours of delivery and accompanied by supporting photographs where applicable.

IX. RISK AND OWNERSHIP

9.1 Risk of any loss, damage or deterioration to the Goods passes to the Buyer on delivery.

9.2 Property and ownership of the Goods remains with the Company and does not pass to the Buyer until the Buyer pays the amount owing for the Goods under the Contract and any other moneys owing by the Buyer to the Company from time to time whether in relation to the Contract or any other contract or on any other account whatever (“Buyers Total Indebtedness”)

9.3 Until ownership of the Goods passes to the Buyer:

  • (a) the Buyer must keep the Goods separate and readily identifiable as the property of the Company;
  • (b) the Buyer must maintain the Goods in good condition;
  • (c) the Buyer must not grant any security interest over the Goods; and
  • d) the Buyer must insure the Goods for their full replacement value.

9.4 The Buyer’s authority to sell the Goods is cancelled if:

  • (a) The Buyer commits an Event of Default;
  • (b) The Company notifies the Buyer in writing (whether an Event of Default has occurred or not) that the Buyer’s authority to sell the Goods is cancelled.

9.5 Where the Buyer sells the Goods in accordance with the authority contained in clause 9.3 (b) above before ownership of the Goods has passed to the Buyer, the Buyer shall hold the proceeds of such sale upon trust for the Company in a separate account not mixed with any other funds of the Buyer.

9.6 The Company may apply any payments received from or on behalf of the Buyer’s Total Indebtedness as the Company may think fit.

9.7 The Company may bring an action for the price of the Goods whether ownership has passed to the Buyer or not.

9.8 To the extent permitted by law, the Buyer authorises the Company and its agents to enter premises owned or occupied by the Buyer for the purpose of inspecting or recovering Goods to which the Company retains ownership under these Terms.

X. LIABILITY

10.1 Warranty claims are governed by the MAC Ute Accessories Pty Ltd Warranty Policy as amended from time to time and available on the Company's website. Available at https://macutes.com.au/pages/warranty

10.2 The Company's Warranty Policy operates in addition to any rights and remedies available under the Australian Consumer Law.

10.3 Nothing in these Terms excludes, restricts or modifies any guarantee, right or remedy conferred by the Australian Consumer Law or any other applicable legislation which cannot lawfully be excluded, restricted or modified.

10.4 Where the Buyer acquires Goods or Services for business purposes and is not entitled to the benefit of the consumer guarantees under the Australian Consumer Law, the Company's liability shall be limited, at its option, to:

  • (a) replacement of the Goods;
  • (b) repair of the Goods;
  • (c ) payment of the cost of replacing the Goods;
  • (d) payment of the cost of repairing the Goods; or
  • (e ) re-supply of the Services.

10.5 To the maximum extent permitted by law, the Company shall not be liable for any indirect, consequential or special loss or damage including but not limited to:

  • (a) loss of profit;
  • (b) loss of revenue;
  • (c) loss of business opportunity;
  • (d) loss of goodwill;
  • (e) vehicle downtime;
  • (f) replacement vehicle costs;
  • (g) accommodation expenses;
  • (h) towing costs; or
  • (i) any claim by a third party.

10.6 Subject to Clause 10.3, the aggregate liability of the Company arising out of or in connection with the supply of Goods or Services shall not exceed the Price paid by the Buyer for the relevant Goods or Services giving rise to the claim.

10.7 The Company may charge a restocking fee of up to ten percent (10%) of the purchase price together with any freight and handling costs for Goods returned due to change of mind, incorrect ordering or other reasons not attributable to the Company.

10.8 The Buyer is responsible for ensuring the correct vehicle make, model, year, variant and tub configuration are specified when ordering Goods. The Company accepts no liability for loss arising from incorrect information supplied by the Buyer.

10.9 The Buyer acknowledges that vehicle manufacturers may alter specifications, dimensions or model configurations without notice. The Company shall not be liable for compatibility issues arising from manufacturer changes occurring after publication of product information.

10.10 Goods classed as “one offs”, and/or marked as non-returnable in the Company’s catalogue, and/or for vehicle models beyond five (5) years old will only be accepted for return where the Company is at fault. Other Goods will only be accepted for return where the Buyer has applied to the Company for a Returns Goods Authority Number (RGA) within seven (7) days of receiving the Goods, and the Goods are then returned within fourteen (14) days of receiving the Goods. All Goods when returned must be accompanied by the RGA number and the original invoice/docket. It is the Buyer’s responsibility to ensure the Goods are returned in a reasonable condition and wrapped to prevent freight damage.

XI. PERSONAL PROPERTY SECURITIES ACT 1999 (PPSA)

11.1 The Buyer acknowledges that ownership of the Goods remains with the Company until payment is received in full in accordance with these Terms

11.2 The Buyer agrees to do all things reasonably required by the Company to protect the Company's ownership rights in the Goods.

11.3 Nothing in these Terms obliges the Company to register any security interest under the Personal Property Securities Act 2009 (Cth).

XII. DIMENSIONS AND SPECIFICATIONS AND DESIGNS

12.1 Dimensions and specifications contained or referred to in the Contract or in any catalogues, drawings or other publications issued by the Company are approximate only. Unless otherwise expressly agreed in writing by the parties, it is not a condition of the Contract that the Goods will correspond precisely with such dimensions and specifications.

12.2 Where the Company manufactures Goods based on Designs provided by the Buyer:

  • (a) Ownership of those designs will remain with the Buyer; and
  • (b) The Company is not liable for any loss the Buyer may suffer or incur through any fault in Design.

12.3 Where the Company manufactures Goods based on Designs it has completed, Ownership of the Designs remains within the Company

XIII. INTELLECTUAL PROPERTY

13.1 All intellectual property rights including designs, drawings, specifications, engineering information, manufacturing methods, product developments and related materials created or supplied by the Company remain the sole property of the Company.

13.2 The Buyer must not copy, reproduce, modify, distribute or permit any third party to use any intellectual property belonging to the Company without the Company's prior written consent.

XIV. DEFAULT

14.1 The Company may, in addition to any other right of termination or remedy conferred on the Company under the Contract or by law, terminate the Contract at any time and with immediate effect by written notice given by the Company to the buyer if:

  • (a) the buyer commits an event of default;
  • (b) the buyer (if the buyer is an individual) dies;
  • (c) the buyer suspends, for ten business days or longer, or ceases its principal business activities;
  • (d) the buyer has committed any material breach of the contract which is not reasonably capable of being remedied by the Buyer within five business days, provided that the Company may not at any time give such a notice terminating this Contract if, at the time, the Company is in default under this Contract. 

14.2 If any of the events referred to in clause 14.1 shall occur the Company may then;

  • (a) To the extent permitted by law, the Buyer irrevocably authorises the Company and its agents to enter any premises where the Goods are located to inspect, repossess or recover Goods; and
  • (b) apply the proceeds towards the payment of all moneys owing to the Company by the Buyer; and all costs incurred by the Company as a result of any such action shall be immediately payable by the Buyer upon written demand from the Company.

14.3 Upon termination of this Contract for whatever reason;

  • (a) such termination shall be without prejudice to the rights and remedies of either party in respect of any antecedent breach of this Contract by the other party;
  • (b) the provisions of clauses 8.1 to 11.3 (inclusive), Clauses 5, 8, 9, 10, 11, 13, 14, 15, 17 and 18 survive termination together with any other provision which by its nature is intended to survive termination;
  • (c) notwithstanding any contrary provision in this Contract, any amount payable by the Buyer to the Company under this Contract shall be deemed to have fallen due and become payable immediately prior to such termination occurring.

XV. GENERAL

15.1 The Buyer shall indemnify the Company for all legal costs, debt collection costs, mercantile agent costs and other recovery expenses incurred by the Company on a full indemnity basis.

15.2 No waiver of any breach or failure to enforce any provision of these terms and conditions by the Company shall in any way effect, limit or waive the Company’s right subsequently to enforce these terms and conditions of sale.

15.3 The Buyer may not assign any of his rights or obligations under these terms and conditions without the prior written consent of the Company, which consent may be withheld at the Company’s sole discretion. 

15.4 Should any of these terms and conditions become void or inoperative by operation of law, the remaining terms and conditions shall remain unaffected and valid.

15.5 If, due to any circumstances beyond its reasonable control the Company is unable, either wholly or partly, to carry out any obligations under these terms and conditions, that obligation shall be suspended so far as it is affected by and during the continuance of that circumstance.

15.6 The Buyer undertakes, that if it sells its business, and ceases to be a customer of the Company, it will forthwith advise the Company the name and full contact details of the Purchaser of its business.

15.7 These Terms shall be governed by and construed in accordance with the laws of Queensland, Australia and the parties irrevocably submit to the exclusive jurisdiction of the Courts of Queensland and the Commonwealth of Australia.

15.8 The Buyer authorises the Company to collect, retain, use and disclose personal information for the purposes of assessing creditworthiness, administering the account, enforcing these Terms, recovering debts and maintaining the commercial relationship between the parties in accordance with the Privacy Act 1988 (Cth).

15.9 The Buyer authorises the Company to obtain information about the Buyer from credit reporting agencies, trade referees and other credit providers and to disclose information concerning the Buyer's payment performance where permitted by law in accordance with the Privacy Act 1988 (Cth).

XVI. FORCE MAJEURE

16.1 The Company shall not be liable for any failure or delay in performing its obligations where such failure or delay results from circumstances beyond its reasonable control including but not limited to:

  • (a) supplier shortages;
  • (b) manufacturing delays;
  • (c) freight disruptions;
  • (d) port congestion;
  • (e ) industrial disputes;
  • (f) acts of God;
  • (g) fire;
  • (h) flood;
  • (i) pandemic;
  • (j) epidemic;
  • (k) government restrictions;
  • (l) war; or
  • (m) any other unforeseen event beyond the Company's reasonable control.

XVII. ELECTRONIC COMMUNICATION

17.1 The Buyer agrees that notices, invoices, statements, demands and other communications may be sent electronically and shall be deemed received on transmission unless the sender receives notice of delivery failure.

XVIII. NO RELIANCE

18.1 The Buyer acknowledges that it has not relied upon any representation, statement, warranty, undertaking or promise made by or on behalf of the Company other than those expressly set out in writing by the Company.