Terms and Conditions

The Purchaser agrees that conditions of sale below apply to this Contract for the purchase of the goods described overleaf (the Goods) and, unless the contrary intention is expressed or implied, to any future contract for purchase of Goods by the Purchaser from Mack Trucks Australia Pty. Ltd. A.B.N. 41 009 719 582 or any related company (as defined in the Corporations Law) of Mack Trucks Australia Pty. Ltd. (herein referred to as Mack Trucks) unless Mack Trucks has otherwise agreed in writing, and that such terms and conditions shall bind the Purchaser and the Purchaser's executors, administrators and assigns.

1. Any order placed with Mack Trucks shall form a contract binding on Mack Trucks only upon acceptance by Mack Trucks:
   (a) accepting in writing;
   (b) delivering the Goods in accordance with the order, or
   (c) delivering the Goods to the Purchaser, its servants or any carrier for the purpose of such delivery.
   Any variation to the conditions of sale made by the Purchaser on such order shall not form part of the contract with Mack Trucks and delivery of the Goods ordered shall not be an acceptance of any such variation or subject to such variation unless Mack Trucks shall have expressly agreed to the variation in writing. Signing of the varied order form by Mack Trucks (whether under seal or by a person authorised to sign the order forms) shall not amount to an acceptance of the variation unless such variation is initialled by a person so authorised by Mack Trucks.
   
   
2. Unless otherwise agreed in writing by Mack Trucks, the purchase price of Goods ordered shall be the price charged by Mack Trucks, as at the date of delivery of the Goods plus the amount equal to any excise, sales tax, tax or other fee, charge, or impost levied by the Government or any government authority (whether Australian or foreign) on Mack Trucks in relation to the supply, use, sale or delivery of the Goods ordered or part thereof as at the date of delivery. The purchase price does not include any insurance, packing and delivery charges and the purchaser must pay these charges in addition to the purchase price. The purchaser acknowledges that any pricing policy prices quoted at the time of making this contract are recommended prices only and Mack Trucks is under no obligation to comply with these prices. Payment of the purchase price must be made to Mack Trucks within thirty (30) days from the end of the month in which the Goods are delivered to the Purchaser. In any proceedings for payment of monies not paid within this time, Mack Trucks shall be entitled to recover interest at the rate of 1.5% per month on the amounts unpaid from the date of delivery of the Goods to the date of payment of same.
   
   
3. Full responsibility and liability for risk, loss or damage to the Goods ordered or by the Goods ordered, shall pass to the Purchaser upon delivery of the Goods to the Purchaser, its servants or to any carrier for the purpose of such delivery. Mack Trucks is not responsible for any loss or damage to Goods in transit. Mack Trucks shall render the purchaser such reasonable assistance as may be necessary to press claims on carriers provided the purchaser shall have notified Mack Trucks and the carriers in writing immediately that any loss or damage to the Goods is discovered on receipt of Goods and shall lodge a claim on the carrier within three days of the date of receipt of the Goods.
   
   
4. The delivery times made known to the purchaser are estimates only and Mack Trucks shall not be liable for late delivery or non-delivery and under no circumstances shall Mack Trucks be liable for any loss, damage or delay occasioned to the purchaser or its customers arising from late or non-delivery or late installation of the Goods. In the event that delivery is prevented or delayed for reasons beyond the control of Mack Trucks, Mack Trucks may in its absolute discretion cancel the Contract by notice in writing to the Purchaser without any liability on Mack Trucks behalf and such cancellation shall not give rise to any claim against Mack Trucks by the Purchaser. The Purchaser cannot cancel the contract and has no right to refuse delivery of the Goods ordered for reasons of delay in despatch or delivery of the Goods.
   
   
5. Should Mack Trucks so require, the Goods may be delivered by instalments and each instalment shall be treated as a separate contract on the terms and conditions contained herein for those Goods delivered.
   
   
6. Mack Trucks are not liable for any loss, damage or claim which arises as a result of the Goods being affixed or applied (whether by adhesive or otherwise) to any other goods by the Purchaser.
   
   
7. Mack Truck's liability for Goods manufactured by it is limited to making good any defects by repairing the same or at Mack Truck's option by replacement, within a period not exceeding twelve calendar months after the Goods have been dispatched provided that:
   (a) defects have arisen solely from faulty materials or workmanship;
   (b) the Goods have not received maltreatment, inattention or interference;
   (c) accessories of any kind used by the purchaser are manufactured by or approved by Mack Trucks;
   (d) the seals of any kind on the Goods remain unbroken; and
   (e) the defective parts are promptly returned to Mack Trucks at the Purchaser's cost.
   If the Goods are not manufactured by Mack Trucks the guarantee of the manufacturer thereof shall be accepted by the Purchaser and is the only guarantee given to the Purchaser in respect of the Goods. Mack Trucks shall not be liable for and purchaser releases Mack Trucks from any claims in respect of faulty or defective design of any Goods supplied unless such design has been wholly prepared by Mack Trucks and the responsibility for any claim has been specifically accepted by Mack Trucks in writing and in any event Mack Truck's liability hereunder, shall be strictly limited to the replacement of defective parts in accordance with clause 9 of these conditions. Except as provided herein, all express and implied warranties, guarantees and conditions under statute or general laws as to merchantability, description, quality, suitability or fitness of the Goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are hereby expressly excluded and Mack Trucks shall not be liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operations of the Goods or arising out of Mack Truck's negligence or in any way whatsoever.
   
   
8. Mack Truck's liability (if any) for any claims under this contract or under the Trade Practices Act is expressly limited to a liability to pay to the purchaser an amount equal to the cost of replacing the Goods, the cost of obtaining equivalent goods, or the cost of having the Goods repaired, whichever is the lowest amount.
   
   
9. In the event that the Purchaser defaults under the terms of this contract, commits any act of bankruptcy, a receiver, controller, liquidator or administrator is appointed to the Purchaser or over substantially all of the Purchaser's assets, then Mack Trucks may in its absolute discretion withhold further deliveries for such time in its discretion or cancel the contract without prejudice to its rights hereunder and without any liability or claim attaching to Mack Trucks as a result of same. In the event that proceedings are commenced in relation to the insolvency of the Purchaser, notwithstanding anything to the contrary herein, all monies owing to Mack Trucks on any account whatsoever shall become immediately due and payable.
   
   
10. (A) Mack Trucks reserves the following rights in relation to the Goods until all moneys owing to Mack Trucks in relation to the goods and all other goods supplied by Mack Trucks to the Purchaser are paid for in full.
    
    
    

    (a) property in and title to the Goods; (b) property in and title to products manufactured using the goods and of any other goods or objects with which the Goods are mixed if they are mixed in such a way that the Goods are not removable or distinguishable; (c) in the event that the Purchaser fails to pay any moneys on the due date for payment, to enter the Purchaser's premises (or the premises of any associated company or agent where the Goods are located without liability for trespass or any resulting damage and retake possession of the Goods; and (d) to keep or resell any Goods repossessed according to (b) above.

    
    
    (B) The Purchaser shall store the goods and any other products manufactured using the Goods so that such Goods and manufactured products are clearly identifiable as the property of Mack Trucks.
    
    (C) Notwithstanding the above, the Purchaser has the right to sell the Goods to third parties in the ordinary course of its ordinary business.
    
    (D) Mack Trucks shall have a right to any claims which the Purchaser may have from time to time against any third parties in relation to the sale of the Goods or any products manufactured using the Goods.
    
    (E) In the event that the Goods are sold, the Purchaser will keep the proceeds from such sale separate from other monies.
    
    (F) The Purchaser agrees and acknowledges that until its total indebtedness to Mack Trucks on any account whatsoever is discharged, it holds the Goods as bailee of Mack Trucks and that fiduciary relationship exists between them
    
    (G) Notwithstanding the provisions above Mack Trucks shall be entitled to maintain an action against the Purchaser for the purchase price and the risk in the Goods shall pass to the Purchaser upon delivery.
    
    
11. Mack Trucks may, in its absolute discretion, accept any Goods (other than Goods) which are not standard parts or goods in the market place or Goods which were specifically procured by Mack Trucks for the purchaser) returned by the Purchaser if returned with details of the invoice number and date of invoice which related to the Goods, and provide the Purchaser with a refund or credit for the returned Goods as follows:
    (a) if returned within 15 days of delivery of the Goods, the full purchase price;
    (b) if returned after 15 days but within 30 days of delivery of the Goods, the purchase price less 10% of the purchase price; or
    (c) if returned more than 30 days after delivery of the Goods, no refund or credit will be given.
    
    
12. Nothing in these conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any conditions, warranty, guarantee, right or remedy implied by law (including the Trade Practices Act 1975) and which by law cannot be excluded, restricted or modified.
    
    
13. If any clause, sub-clause or part thereof is or is held to be invalid, void or unenforceable for any cause whatsoever the same shall not in any way prejudice or affect the validity or enforceability of the remaining terms of this contract.