Terms and Conditions

Disclosure Notice and important information about MaxiPARTS Limited Terms and Conditions

These MaxiPARTS Limited Terms and Conditions are divided into two parts:

These MaxiPARTS Limited Terms and Conditions are important, and you should read them fully. But there are some specific terms we wanted to make you aware of. These are set out below.

Website Terms and Conditions

User Generated Content (see clause 7 of these Website Terms and Conditions)

If you submit information, content or materials (such as customer reviews of our Goods or Services) (User Generated Content) to our Sites, we may use your User Generated Content for our business purposes, such as displaying your User Generated Content in our marketing materials or on our Sites or social media pages. We may also share your User Generated Content with other related bodies corporate including other members of MaxiPARTS Limited.

Reliance on Site Content (Disclaimer) (see clause 13 of these Website Terms and Conditions)

MaxiPARTS Limited makes the content of the Sites available for general information only. The information on our Sites is not a substitute for appropriate professional advice.

Limitation of liability and indemnity (see clause 14 of these Website Terms and Conditions)

To the extent permitted by applicable law and subject always to the Non-excludable Rights, we will not be liable to you in any way for any cause in connection with your use of the Sites and our liability to you will be limited as set out in clause 14 of these Website Terms and Conditions.

Trading Terms and Conditions

Exclusions and limitations (see condition 10 of these Trading Terms and Conditions)

To the extent permitted by applicable law and subject to the Non-excludable Consumer Obligations, we will not be liable to you for any special, indirect or consequential loss or damage in any way in connection with the supply of the Goods or Services. Our liability to you will be limited as set out in clause 10 of these Trading Terms and Conditions.

Price and payment (see condition 4 of these Trading Terms and Conditions)

Where we have ordered in items or parts to fulfil your Order, we may ask you to pay a deposit of not more than 10% of the total Purchase Price before commencing the Services or supplying the Goods.

Cancellations and deferrals (see condition 5 of these Trading Terms and Conditions)

1.1 MaxiPARTS Limited (ASX: MXI) is a leading company operating within Australia’s automotive and commercial vehicle sector. Its product range includes commercial vehicle parts for trucks and trailers, automotive supplies and workshop consumables, catering to a diverse customer base across several industries. MaxiPARTS Limited owns brands MaxiPARTS and Förch Australia.
1.2 MaxiPARTS Limited includes MaxiPARTS Limited (ABN 58 006 797 173) and its Australian subsidiaries and affiliates MaxiPARTS Operations (ABN 76 110 786 215) and Förch Australia Pty Ltd (ABN 20 151 607 555), we, us or our.

2.               Application of these MaxiPARTS Limited Website Terms and Conditions

2.1 These MaxiPARTS Limited Website Terms and Conditions consist of clauses 2 to 17, which apply to your use of the Sites and our Goods and Services provided through the Sites (Website T&Cs).  
2.2 In these Website T&Cs, a reference to Party means MaxiPARTS Limited or you, and together the Parties.

3.1 These Website T&Cs only apply to your use of the websites owned or operated by MaxiPARTS Limited:

        3.1.1    https://www.maxiparts.com.au
        3.1.2    https://www.maxipartslimited.com.au
        3.1.3    https://shop.forch.com.au
        3.1.4    https://www.forch.com.au
        3.1.5    any other websites specified by MaxiPARTS Limited from time to time, (each a Site and together the Sites), and any of our Goods or Services provided                                   through the Sites (together, the Goods and Services).

3.2 There are other Terms and Conditions that may apply to your interactions with us, including when you order or otherwise complete a purchase of Goods or Services via the Sites. 
3.3 Other MaxiPARTS Limited websites may have different Terms and Conditions which apply to them.
3.4 The terms “you” and “your” refer to the person accessing or using the Sites or our Goods or Services.

4.               Acceptance of Website T&Cs 

4.1 Subject to the Trading Terms and Conditions, these Website T&Cs govern your access to and use of the Sites, including any Site Content (as defined below) and our Goods and Services provided through or in connection with the Sites.
4.2 By browsing, accessing or using the Sites or by using the Goods or Services provided through the Sites, you acknowledge that you have read, understood and agree to be bound by these Website T&Cs.
4.3 As our Goods and Services include specialised equipment and tools which are generally operated by adults and licensed professionals, if you are under 15 years of age, then you must obtain your parent or guardian’s consent before accessing or using the Sites or using the Goods or Services provided through the Sites.
4.4 These Website T&Cs form a legally binding agreement between MaxiPARTS Limited and you. If you do not agree to these Website T&Cs, you must immediately exit and not access or use these Sites or order our Goods or Services provided through the Sites.

5.               Creating an online account or MaxiPARTS VIP Member Account

5.1 You may create a:
      5.1.1    general account by registering via the relevant link on the registration page on the Site (Online Account); or
      5.1.2    MaxiPARTS VIP Member Account by registering via the relevant link on the registration page on the MaxiPARTS Site (VIP Member Account).
      5.1.3    To register for an Online Account or MaxiPARTS VIP Member Account (together an Account), you must provide MaxiPARTS with certain true and correct information about yourself as requested by the relevant registration page.
      5.1.4    For a MaxiPARTS VIP Member Account, this includes your Company name, Trading Name and ABN. If you do not provide this information, you will not be able to create a MaxiPARTS VIP Member Account.
5.2 If you create an Account, you must promptly notify and/or update your profile if any of your personal information is erroneous or changes from time to time.

6.               Privacy and security

6.1 If you create an Account, sign-up to receive emails and/or newsletters regarding our Goods and Services, fill in a ‘contact us’ form, use the live chat function, or submit a customer review on our Sites, we will need to collect your personal information. Personal information requested by us may include, but is not necessarily limited to:

        6.1.1    your first name and last name;
        6.1.2    your email address;
        6.1.3    your phone number;
        6.1.4    your date of birth;
        6.1.5    the city where you live, including State and Postcode details.

6.2 The collection, use, disclosure and handling of personal information is governed by our Privacy Policy (which is available at www.maxipartslimited.com.au/privacy-policy, www.maxiparts.com.au/privacy-policy, www.forch.com.au/privacy-policy), together with other terms such as the applicable privacy collection statements provided to you.

6.3 You confirm that all of the information you provide to us, including any personal information, will be complete, true and correct.

6.4 You acknowledge that the internet is an inherently insecure communication medium, and your use of the Sites is at your own cost and risk. You must take your own precautions to ensure that the processes which you employ for accessing the Sites do not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage your own computer system.

6.5 If you create a MaxiPARTS VIP Member Account, you must keep all usernames, passwords and other security-based information secure and private at all times. If your username, password or other security-based information is lost or stolen, you must notify MaxiPARTS in writing and take any reasonable steps we advise you to take to mitigate the adverse impact of the lost or stolen security-based information at the earliest possible opportunity.

Subject to applicable laws, you agree that we have no responsibility for any use, misuse, loss, corruption, interception or delay of information or data uploaded, downloaded, hosted or otherwise communicated via the Sites 

7.1 You may choose to submit information, content and materials, such as customer reviews of our Goods or Services if we make this functionality available on the Sites (User Generated Content) to the Sites and/or MaxiPARTS.

7.2 You acknowledge and agree that if you choose to submit or post User Generated Content, you must own or have the right to submit that User Generated Content. User Generated Content that you submit must be your own opinion. User Generated Content must not:

        7.2.1    infringe any intellectual property rights (including copyright, database right or trade mark right) of any person or be in breach of any legal duty owed to any person, such as a contractual duty or a duty of confidence;
        7.2.2    deceive or be likely to deceive any person;
        7.2.3    be used to impersonate any person (including MaxiPARTS Limited and MaxiPARTS Limited representatives) or to misrepresent your identity or affiliation with any person (including MaxiPARTS Limited and MaxiPARTS Limited representatives); or
        7.2.4    be illegal, obscene, defamatory, threatening, pornographic, harassing, hateful, racially or ethnically offensive, encourage any conduct that would be considered a criminal offence, give rise to civil liability, violate any law or be otherwise inappropriate.

7.3 If you become aware or reasonably suspected that any User Generated Content on the Sites may infringe these requirements, you must promptly notify us in writing.

7.4 User Generated Content that you submit or share on a Site may be seen by other users of the relevant Site or third parties. Where we have made relevant settings available, we will use commercially reasonable efforts to honour the choices you make about who can see your User Generated Content.

7.5 You agree that MaxiPARTS Limited may:

        7.5.1    edit or delete your User Generated Content if it infringes the requirements set out in clause 7.2 or you are otherwise in breach of a term or condition of these Website T&Cs or we have reasonable rounds to believe you may be infringing another person’s intellectual property or other rights;
        7.5.2    link your User Generated Content to other material, including User Generated Content submitted by other users or material created by MaxiPARTS Limited, its related bodies corporate and/or other third parties;
        7.5.3    use your User Generated Content for its business purposes, for example, displaying your User Generated Content in our marketing materials or on our Sites or social media pages; and
        7.5.4    share your User Generated Content with its related bodies corporate, including other members of MaxiPARTS Limited.

7.6 MaxiPARTS Limited does not promise to display any User Generated Content that you provide.

7.7 MaxiPARTS Limited does not claim ownership rights in your User Generated Content, however, by submitting your User Generated Content to a Site you are deemed to grant MaxiPARTS Limited (and its licensors) an irrevocable, perpetual, non-exclusive, royalty-free and worldwide licence to use, copy, modify, distribute, publish, communicate to the public and process that User Generated Content in connection with the Sites without further consent from, or notice and/or compensation to, you.

8.               Cookies

8.1 By using our Sites, you acknowledge and agree that we may use cookies or other similar tracking technologies on our Sites to help us track your Site usage and remember your preferences. More information about how MaxiPARTS Limited uses cookies and how you can enable or disable cookies can be found in our Privacy Policy, which is available at www.maxipartslimited.com.au/privacy-policy, www.maxiparts.com.au/privacy-policy, www.forch.com.au/privacy-policy.

9.               Prohibited activities

9.1 When using a Site, you must not:

        9.1.1    use the Sites for any activities that breach any laws or are contrary to any relevant standards or codes;
        9.1.2    make fraudulent enquiries, purchases or requests through the Sites;
        9.1.3    infringe any intellectual property right (including copyright, database right or trade mark right) of any person or be in breach of any legal duty owed to any person, such as a contractual duty or a duty of confidence;
        9.1.4    reproduce any Site Content without our express written permission, which we may grant or withhold at our absolute discretion in order to ensure that we are not breaching any laws, intellectual property rights or other rights of a third party and ensuring we protect our own valuable assets;
        9.1.5    seek reimbursement from any other party for access to a Site or on-sell any information obtained from any Site;
        9.1.6    engage in any conduct which is likely to mislead or deceive us or any other person, impersonate any other person while using a Site, conduct yourself in an offensive manner while using a Site, or use a Site for any illegal, immoral or harmful purpose;
        9.1.7    submit, post, upload, email or otherwise send or transmit to a Site, or any users of a Site, anything that contains software viruses or any other computer code, files or programs designed to interrupt, harm, damage, destroy or limit the functionality of any computer software or hardware or equipment linked directly or indirectly to any Site; or
        9.1.8    interfere with a Site or networks underlying or connected to a Site or any networks connected to a Site.

10.               Intellectual property

10.1 Subject to clause 7.7, the entire contents and design subsisting in, relating to or arising out of the Sites and available through or in connection with a Site including copyright, logos, trademarks, designs, text, graphics, images, information, applications and other files, and their selection and arrangement (the Site Content) are the intellectual property of MaxiPARTS Limited, our content providers or our licensors, with all rights reserved.

10.2 You must not do anything, or omit to do anything, which may infringe our intellectual property rights, except with our express written permission. You must not reproduce, frame, transmit (including broadcast), adapt, link to or otherwise use any of the material on a Site, including audio and video excerpts, except as expressly permitted by statute or with MaxiPARTS Limited prior written consent.

10.3 No Site Content may be modified, distributed, communicated, framed, reproduced, republished, downloaded, displayed, posted, transmitted, sold, assigned, duplicated, licensed in any form or by any means, in whole or in part, without our prior written consent. In addition, you agree not to use any data mining, robots, or similar data gathering and extraction methods in connection with a Site.

10.4 You may view a Site and the Site Content using your web browser and save an electronic copy, or print out a copy, of parts of a Site solely for your own information, research or study, but only if you:

        10.4.1    do not modify the copy from how it appears unless expressly authorised by MaxiPARTS Limited and then only in accordance with these Website T&Cs; and
        10.4.2    include the copyright notice reasonably specified by MaxiPARTS Limited in writing on the copy.

10.5 When you send us any feedback or suggestions or complete a survey in relation to a Site, you agree that we can use any ideas, concepts, or techniques contained in the feedback, suggestions or survey responses. When you participate in any chat sites, forums or other activities involving the publication of User Generated Content that you provide in the public forum, you agree that we can reproduce, use and distribute those materials.

11.               Linked Sites

1.1 Third party websites

        11.1.1    This clause 11.1 applies where we provide links to the websites of third parties but not where we provide links to websites belonging to, or operated by, MaxiPARTS Limited, in which case, clause 11.2 applies.
        11.1.2    We may provide links to third parties’ websites or may divert your devices to third party websites from time to time (Linked Websites). Unless otherwise notified on a Linked Website, Linked Websites are not reviewed, controlled or examined by us in any way. The provision of links to Linked Websites does not mean that MaxiPARTS Limited endorses or recommends, or has any association with, the Linked Websites or the relevant third-party Goods and Services.
        11.1.3    You acknowledge and agree that we are not responsible for any of the content, availability, advertising, products, services or other materials of any Linked Websites, or any additional links contained on Linked Websites, or the conduct of any person associated with a Linked Website.
        11.1.4    Linked Websites may be subject to their own Terms and Conditions and Privacy Policies. You acknowledge that it is your sole responsibility to review and comply with those Terms and Conditions, and we have no responsibility for your actions when using a Linked Website.

11.2 MaxiPARTS Limited Sites

        11.2.1    This clause 11.2 applies where we provide links to websites belonging to, or operated by MaxiPARTS Limited.
        11.2.2    We may provide links to the websites of MaxiPARTS Limited or may divert your devices to the websites of MaxiPARTS Limited from time to time (MaxiPARTS Limited Sites). The provision of links to MaxiPARTS Limited Sites are for your convenience only.
        11.2.3    MaxiPARTS Limited Sites are subject to the Terms and Conditions and Privacy Policies of the relevant MaxiPARTS Limited Member (if applicable). You should review and comply with the relevant Terms and Conditions if accessing MaxiPARTS Limited Sites.

12.               Availability

12.1 While we take reasonable steps to ensure the availability and security of the Sites, you accept that the Sites are provided on a ‘as is’ basis.

12.2 The Sites are not a storage service, and you agree that we have no obligation to store, maintain or provide you with a copy of any User Generated Content that you provide, except to the extent required by applicable law or as provided in our Privacy Policy.

13.               Disclaimer

13.1 The Site Content is intended to provide general information only. It is not in the nature of advice. While every effort is taken to ensure the information is accurate, we do not represent or warrant that this information is correct, current, complete, reliable or suitable for any purpose and it must not be relied on by you or any other person as a substitute for appropriate advice tailored to specific circumstances.

13.2 The information on the Sites is provided on the basis that all persons accessing a Site undertake responsibility for assessing the relevance and accuracy of its content.

14.               Limitation of liability and indemnity

14.1 Subject to applicable law and without limiting any provisions of these Website T&Cs, neither Party will be liable to the other Party for any kind of loss or damage incurred as a result of the Party’s use of any Site, including any viruses or other malicious software that may affect the other Party while the other Party uses a Site or for any faults, failures or interruptions or the accuracy, timeliness, completeness, security or reliability of any communications (including any transactions) made using a Site.

14.2 Nothing in these Website T&Cs is intended to exclude, restrict or modify any condition, guarantee, warranty, right or remedy that you may have under the Competition and Consumer Act 2010 (Cth) or any other applicable legislation which may not be excluded, restricted or modified by agreement (Non-excludable Rights).

14.3 To the maximum extent permitted by law, under no circumstances will either Party be responsible to the other Party or any third party whether in contract, tort (including negligence), in equity or under statue for any special, indirect, consequential, incidental or punitive damages, including damages for loss of opportunity, profits, revenue or goodwill.

14.4 Except for liability in relation to breach of any Non-excludable Rights and liability under clause 14.5, each Party’s total maximum liability to the other Party in contract, tort (including negligence), statute or otherwise, is limited to one thousand Australian dollars (AUD $1,000).

14.5 To the maximum extent permitted by law, our liability for breach of any Non-excludable Rights is limited to:

        14.5.1    any replacement or refund for a major failure and you may seek compensation for any other reasonably foreseeable loss or damage; or
        14.5.2    replacement or repair if the Goods or Services fail to be of acceptable quality and the failure does not amount to a major failure.

14.6 You agree to indemnify, defend and hold us harmless from and against all losses, expenses, damages and costs (including reasonable solicitor’s fees) or liability incurred or suffered by you or by us arising from any claim, demand, suit, action or proceeding by any person against you or us where such loss or liability arose out of, in connection with, or in respect of your conduct in breach of these Website T&Cs. Because we are fair and reasonable, your liability under this clause is reduced to the extent that MaxiPARTS Limited or any of their related bodies corporate (and their officers, employees and representatives), directly contributed to the loss.

15.               Cancellation, suspension and termination of Account

15.1 You may cancel your Account at any time by notice to MaxiPARTS Limited at the contact details below.

15.2 If you have a MaxiPARTS trade account as a trade customer, cancellation of your trade account is governed by the MaxiPARTS Limited Trading Terms and Conditions.

15.3 Cancelling your Account will end your ability to access your Account and you will need to register again if you change your mind. Any data or personal information MaxiPARTS Limited has collected about you or your use of the Sites will be retained and destroyed in accordance with MaxiPARTS Limited Privacy Policy. In particular, MaxiPARTS Limited reserves the right to delete any information or data that relates to your Account if your Account has been deleted for a period exceeding 30 days.

15.4 Notwithstanding anything else in these Website T&Cs, MaxiPARTS Limited may immediately suspend or terminate your Account without notice or cause for any of the following reasons:

        15.4.1    you breach any of these Website T&Cs;
        15.4.2    you have failed to provide correct personal information in accordance with clause 6.1;
        15.4.3    MaxiPARTS Limited has ceased to provide the Account functionality;
        15.4.4    MaxiPARTS Limited business or contractual relationships with third parties require MaxiPARTS Limited to do so; or
        15.4.5    MaxiPARTS Limited considers that you have done something that is detrimental to MaxiPARTS Limited business interests or reputation or those of any of its third parties.

15.5 You acknowledge that neither MaxiPARTS Limited, nor any other person, will have any liability to you for any reason whatsoever arising from suspension or termination of your access to your Account.

16.             General

16.1 Entire agreement: These Website T&Cs, together with any additional Terms and Conditions set out on any Site from time to time, constitute the entire agreement relating to its subject matter and supersede and cancel any prior drafts, versions, agreements, undertakings, representations, warranties and arrangements of any nature in writing relating to such subject matter.

16.2 Force majeure: Neither Party will be in breach of these Website T&Cs or otherwise liable to the other Party for any unavailability or failure of any Site, or the Goods or Services or any delay or other failure by us to comply with these Website T&Cs that is caused by or arises from any event or circumstances beyond the Party’s control.

16.3 Rights cumulative: The rights, powers, privileges and remedies provided under any provision of these Website T&Cs are cumulative and not exclusive of any rights, powers, privileges or remedies provided under any provision of these Website T&Cs or by applicable law or otherwise.

16.4 Waiver: No failure to exercise nor any delay in exercising by us of any right, power, privilege or remedy under these Website T&Cs will impair or operate as a waiver thereof in whole or in part. No single or partial exercise of any right, power privilege or remedy under these Website T&Cs will prevent any further or other exercise thereof or the exercise of any other right, powers, privilege or remedy.

16.5 Invalidity: Any clause or provision of these Website T&Cs held to be illegal, invalid, void, voidable or unenforceable must be read down to the extent necessary to ensure that it is not illegal, invalid, void, voidable or unenforceable. If it is not possible to read down a clause or provision as required by this clause, part or all of the provision or clause of these Website T&Cs will be severed from these Website T&Cs and the remaining clauses or provisions continue in force.

16.6 Interpretation: In these Website T&Cs, unless expressed to the contrary:

        16.6.1    a person includes a firm, partnership, joint venture, association, corporation or other body corporate;
        16.6.2    the word ‘includes’ in any form is not a word of limitation;
        16.6.3    where a word or phrase is defined, another part of speech or grammatical form of that word of phrase has a corresponding meaning;
        16.6.4    references to the singular include the plural and vice versa;
        16.6.5    a gender includes all other genders; and
        16.6.6    headings and sub-headings are for ease of reference only and do not affect the interpretation of these Website T&Cs.

16.7 Governing law: These Website T&Cs are governed by the laws of Victoria, Australia. You are deemed to submit to the non-exclusive jurisdiction of the courts of Australia. The Sites may be accessed throughout Australia and overseas. MaxiPARTS Limited makes no representation that the Site Content complies with the laws (including intellectual property laws) of any country outside Australia. If you access any Site from outside Australia, you do so at your own risk and are responsible for ensuring that your access to the relevant Site is not illegal or prohibited by laws which apply to you.

17.             Contact Us

Part 2: MaxiPARTS Limited Trading Terms and Conditions

Where you (the Buyer) are acquiring Goods and Services from us (the Supplier) as a Consumer, the Australian Consumer Law (as that term is defined below) automatically provides a range of consumer guarantees, including that Goods will be of acceptable quality, fit for purpose, match the description or sample, and have spare parts and repair facilities reasonably available. In addition, there is a consumer guarantee that Services will be provided with due care and skill, fit for any specified purpose, and provided within a reasonable time.

If the Supplier fails to comply with the consumer guarantees when supplying Goods or Services, the Consumer may be entitled to a remedy under the Australian Consumer Law. The consumer guarantees regime (including a Consumer's right to a remedy and a Supplier's liability for failure to comply with a guarantee) cannot be excluded, restricted or modified, except to the extent permitted under the Australian Consumer Law. These Terms and Conditions are therefore subject to and will not apply to the extent that they exclude, restrict or modify, the consumer guarantees regime (except to the extent permitted under the Australian Consumer Law).

You (the Buyer) will be considered a Consumer (for the purposes of the consumer guarantees regime) where you acquire:

• Goods or Services that cost less than $100,000; or
• Goods or Services that cost more than $100,000 but are of a kind ordinarily acquired for domestic, household, or personal use or consumption; or
• A vehicle or trailer primarily used to transport Goods on public roads.

1.             Definitions

In these Terms and Conditions:

• • • Account Application Form means the Account Application and Customer Information form incorporating these Terms and Conditions.
    • Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (as amended or replaced from time to time).
    • Buyer means the person named below as the Buyer and includes any Related Entity of the Buyer who accepts an Estimate or Quote, or whose Order is accepted by the Supplier.
    • Consumer means a consumer within the meaning of section 3 of the Australian Consumer Law.
    • Delivery Date means the date on which the Goods are delivered, or the Services provided, to the Buyer.
    • Estimate means a preliminary assessment by the Supplier of the Services required based on information provided by the Buyer, which may include a non-binding indication of a Purchase Price.
    • Finished Goods means Customer Goods that have been serviced in accordance with the Specifications and Services.
    • Goods means Goods which the Supplier supplies to the Buyer in accordance with these Terms and Conditions.
    • MaxiPARTS Entity means any of (including Australian subsidiaries and affiliates) MaxiPARTS Limited (ABN 58 006 797 173), MaxiPARTS Operations Pty Ltd ACN 110 786 215, MaxiPARTS (QLD) Pty Ltd ACN 082 691 423, Colrain (QLD) Pty Ltd ACN 084 354 496, Colrain (Albury) Pty Ltd ACN 111 881 951 and Förch Australia Pty Ltd (ABN 20 151 607 555).
    • Order means an order for Goods and/or Services given by the Buyer to the Supplier.
    • PPS Act means the Personal Property Securities Act 2009 (Cth) and any regulation made at any time under the PPS Act (each as amended and replaced from time to time).
    • PPS Register means the national online register established under the PPS Act.
    • Purchase Price means the tax inclusive amount the Buyer must pay to the Supplier for the Goods and/or the Services, being the Supplier's quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Supplier's published price list current at the date of acceptance of the Order.
    • Quote means a quote for Services given by the Supplier to the Buyer, which may be in response to an Order.
    • Related Entity, in the case of a Buyer that is a company, means a related entity as defined in the Corporations Act 2001 (Cth) and, in the case of a Buyer that is an individual, means a company controlled by that individual or of which that individual is a director and each related entity as defined in the Corporations Act 2001 (Cth) of the companies.
    • Services means the Services that the Supplier supplies to the Buyer in accordance with these Terms and Conditions.
    • Specifications means the specifications of the Goods or Services as described in the Estimate or Quote (if accepted by the Buyer) or the Order (if accepted by the Supplier).
    • Supplier means the MaxiPARTS Entity that is supplying the relevant Goods and/or Services to the Buyer.
    • Terms and Conditions means the Terms and Conditions of sale and supply set out in this document and includes any additional Terms and Conditions agreed in writing between the Supplier and the Buyer.

Terms used in these Terms and Conditions which are defined in the PPS Act have the same meaning given to them in the PPS Act.

2.             Acceptance of Terms and Conditions

2.1 A binding contract is formed between the Buyer and the Supplier when the Buyer signs a copy of these Terms and Conditions, and/or when the Buyer places an Order, accepts an Estimate or Quote or otherwise authorises the Supplier to supply Goods or Services. The contract consists of: (a) the Account Application Form; (b) these Terms and Conditions; (c) the Order, Estimate, Quote or Specifications; and (d) any other terms the Buyer and Supplier agree in writing, and in the event of an inconsistency between the terms of the above documents, the order of precedence is as set out above. There is only a contract to supply specified or particular Goods if the Supplier agrees to provide those Goods in accordance with condition 3.1.

2.2 Where the Buyer places an Order for Goods or Services which contains Terms and Conditions inconsistent with these Terms and Conditions, the Buyer's Terms and Conditions are excluded, and these Terms and Conditions apply to the Order.

3.              Orders, Estimates, Quotes and Specifications

3.1 Any Order submitted by the Buyer must be accepted in writing by the Supplier's authorised representative before it will bind the Supplier. Each Order accepted by the Supplier will be deemed to incorporate these Terms and Conditions.

3.2 The Buyer must verify the accuracy of any Order (including any applicable Specification) submitted by the Buyer to the Supplier. The Buyer must confirm any Estimate or Quote provided by the Supplier is acceptable to the Buyer prior to accepting the Estimate or Quote.

3.3 The Supplier may make any changes to a Specification which are required to conform with any applicable safety, legal or other statutory requirements. The Supplier may make any changes to a Specification which do not materially adversely affect the quality or performance of the relevant Goods or Services, by using its best endeavours to give reasonable prior notice to the Buyer. If the Buyer does not agree to the change, it may cancel the Order, Estimate or Quote. Condition 5 below relating to cancellations will apply to any costs, losses, charges and expenses incurred by the Supplier up to the date of cancellation.

3.4 If any process is to be applied to the Goods by the Supplier in accordance with the Specifications requested and provided by the Buyer, the Buyer indemnifies and must pay to the Supplier on demand the amount of all losses, damages, costs and expenses incurred by the Supplier in connection with any claim for infringement of any intellectual property rights of any other person which arises from the Supplier's use of the Specifications provided by the Buyer in connection with the Goods.

4.              Price and Payment

4.1 The Supplier may require the Buyer to pay a deposit of not more than 10% of the Purchase Price before commencing the Services or supplying the Goods where the Supplier has incurred upfront costs by ordering items or parts to fulfil the Order. A deposit is non-refundable, except where the Buyer is entitled to a refund under the Australian Consumer Law, or where the Buyer terminates the agreement as a result of a breach by the Supplier. The Supplier's express or implied approval for extending credit to the Buyer may be withdrawn at any time.

4.2 Subject to condition 4.3 and 4.4, the Buyer agrees to pay the Supplier the Purchase Price, as invoiced by the Supplier to the Buyer, either: (a) on or before the Delivery Date; or (b) within 30 days of the end of the month in which the Goods or Services are delivered or provided, as described in the Order, Estimate or Quote.

4.3 Any agreement by the Supplier to supply Goods or Services on credit terms may be cancelled or withdrawn on reasonable notice to the Buyer if any account is overdue at the absolute discretion of the Supplier.

4.4 If the Supplier has agreed to payment terms set out in condition 4.2, or otherwise to supply Goods or Services on credit terms, and the Supplier: (a) has reasonable grounds to believe that the Buyer may fail to pay an invoice within the period provided (such as multiple accounts being overdue at the time of purchase of the Goods or Services); or (b) has not otherwise been provided with adequate assurance of payment within 14 days of written request, then the Supplier may require the Buyer to pay the Purchase Price before the Delivery Date and the Supplier is not required to deliver the Goods until such time as the Purchase Price is received or adequate assurance of payment is provided to the Supplier's reasonable satisfaction.

4.5 The Supplier reserves the right to reasonably increase the Purchase Price to reflect any increase in the cost to the Supplier of supplying the Goods and/or Services due to: (a) any factor beyond the Supplier's reasonable control; or (b) any change in delivery dates, quantities or specifications for Goods and/or Services which the Buyer requests by notice in writing; or (c) any delay caused by the Buyer's instructions or failure to give the Supplier adequate information or instructions. Where the Supplier proposes to increase the Purchase Price, the Supplier will provide reasonable prior notice to the Buyer. If the Buyer does not agree to the change in the Purchase Price, it may cancel the Order, Estimate or Quote. Condition 5 below relating to cancellations will apply to any costs, losses, charges and expenses incurred by the Supplier up to the date of cancellation.

4.6 The Supplier may apply any money it receives from the Buyer against any Amount Overdue in order of oldest to newest Amount Overdue.

5.              Cancellations and Deferrals

5.1 When an Order is accepted by the Supplier, or an Estimate or Quote is accepted by the Buyer, the Buyer is bound by the Order, Estimate or Quote. If the Supplier has incurred upfront costs by ordering items or parts to fulfil the Order and the Buyer subsequently cancels or defers the Order, Estimate or Quote, the Buyer will, at the Supplier's discretion, pay all reasonable costs, losses, charges and expenses incurred by the Supplier associated with any cancellation or deferral of the Order, Estimate or Quote by the Buyer. Following cancellation or deferral, the Supplier will take reasonable steps to cease incurring or otherwise minimise further costs, losses, charges or expenses associated with the cancellation or deferral.

5.2 The Supplier will provide the Buyer with an invoice setting out the costs incurred by the Supplier associated with the cancellation or deferral of the Order, Estimate or Quote by the Buyer and the Buyer will pay the amount set out in the invoice within 7 days of the date of an invoice from the Supplier.

6.             Delivery

6.1 The Buyer will be responsible for the cost of any delivery to the Buyer’s premises (which is included in the Purchase Price).

7.             Title

7.1 The Buyer agrees that title to Goods will not pass to the Buyer until the Purchase Price and all other amounts payable to the Supplier have been paid in full.

7.2 Until title to Goods has passed to the Buyer in accordance with this condition, if the Buyer has taken delivery of the Goods, the Buyer holds the Goods as fiduciary bailee of the Supplier and the Buyer agrees to store the Goods separately so that the Goods are identifiable as the Supplier's property. The Buyer has the right to sell the Goods in the ordinary course of trade if the Buyer accounts to the Supplier for all payments, including payments by third parties, in accordance with the Buyer's fiduciary relationship.

7.3 The risk of loss or damage to the Goods passes to the Buyer on the Delivery Date.

8.             Acceptance

8.1 This condition 8 does not apply where the Buyer is acquiring Goods or Services as a Consumer. Nothing in this condition 8 limits any rights or remedies the Buyer may have under the Australian Consumer Law in circumstances where the Buyer acquires Goods or Services from the Supplier as a Consumer.

8.2 Subject to condition 8.1, the Buyer must examine the Goods and unless the Buyer gives written notice to the Supplier of any defects in the Goods or their failure to correspond with the Specifications within 7 days of the Delivery Date, the Buyer is deemed to have accepted the Goods as being of merchantable quality, corresponding with the Specifications and free of defects.

9.             Excusable Delays

9.1 A party is not liable for any delay in, or failure to comply with, these Terms and Conditions where the failure was due to any cause beyond that party's reasonable control (such as forces of nature, industrial action and action or inaction by a government agency).

10.           Exclusions and Limitations

10.1 To the extent that the Buyer acquires Goods or Services from the Supplier as a Consumer, the Buyer may have certain rights and remedies (including, without limitation, consumer guarantee rights) under the Australian Consumer Law that cannot be excluded, restricted or modified by agreement. Nothing in these Terms and Conditions operates to exclude, restrict or modify the application of any provision, condition or warranty, the exercise of any right or remedy, or the imposition of any liability, implied or conferred under the Australian Consumer Law or any other statute, where to do so would contravene that statute, or cause any part of these Terms and Conditions to be void (Non-excludable Consumer Obligations).

10.2 Except in relation to Non-excludable Consumer Obligations, and otherwise to the extent permitted by law, all conditions, warranties, guarantees, rights, remedies, liabilities or other terms implied or conferred by statute, custom or the common law that impose any liability or obligation on the Supplier are excluded from these Terms and Conditions. Except in relation to Non-excludable Consumer Obligations, and subject to condition 10.3 to the extent permitted by law, the Supplier will have no liability to the Buyer for any: (a) loss, harm, damage, cost or expense (including legal fees), except to the extent that any loss, harm, damage, cost or expense was caused or contributed to by the Supplier; or (b) any special, indirect or consequential loss or damage (including, without limitation, economic loss, loss of contract, loss of profit or revenue, loss of opportunity, loss of production, production stoppage or loss of data), arising directly or indirectly under or in connection with the supply of the Goods or Services, whether by way of indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity.

10.3 In relation to Non-excludable Consumer Obligations, except where the Supplier is supplying Goods or Services of a kind ordinarily acquired for personal, domestic or household use or consumption to the Buyer (in respect of which the Supplier's liability is not so limited under these Terms and Conditions), the Supplier's liability to the Buyer for a failure to comply with any Non-excludable Consumer Obligation (other than a guarantee as to title, encumbrances or quiet possession) is limited to: (a) in the case of Services, the cost of supplying the Services again or payment of the cost of having the Services supplied again; and (b) in the case of Goods, the cost of replacing the Goods, supplying equivalent Goods or having the Goods repaired, or payment of the cost of replacing the Goods, supplying equivalent Goods or having the Goods repaired, as permitted under the Australian Consumer Law.

11.           Termination

Termination by the Supplier for cause

11.1 The Supplier may terminate this agreement in whole or in part including any agreement to supply under these Terms and Conditions immediately by written notice if: (a) the Buyer materially breaches any of these Terms and Conditions and the breach cannot be remedied within 30 days of receipt of a written notice from the Supplier requiring it to remedy that material breach; or (b) the Buyer ceases to carry on a business; or (c) the Buyer is unable to pay its debts as they become due, is presented with a winding-up petition or if any step is taken to appoint a receiver, receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, or an administrator to the Buyer, its assets, operations or business; or (d) the Supplier believes that one of the events stated in condition 11.1-11.3 has occurred or there is a material risk that one of those events will occur.

11.1.1 If the Supplier terminates this agreement pursuant to condition 11.1, then subject to Part 5 of the Corporations Act 2001 (Cth), all amounts owed by the Buyer to the Supplier will become immediately due and payable and the Supplier may: (a) suspend any further supply of Goods or Services; (b) cancel any discounts provided to the Buyer for early payment; (c) recover and resell any Goods in which title remains with the Supplier; and/or (d) set-off any amount owed by the Buyer against any amount owing to the Supplier.

11.2 The Buyer may terminate this agreement in whole or in part immediately by giving written notice to the Supplier if the Supplier materially breaches any of these Terms and Conditions and the breach cannot be remedied within 30 days of receipt of a written notice from the Buyer requiring it to remedy that material breach. In the event of termination pursuant to this clause, then subject to Part 5 of the Corporations Act 2001 (Cth), all amounts owed by the Buyer to the Supplier will become immediately due and payable and the Supplier may recover and resell any Goods in which title remains with the Supplier.

11.3 Termination of this agreement or suspension of the supply of Goods or Services does not affect any accrued rights or remedies of the Supplier.

12.           Failure to Pay

12.1 If the Buyer fails to pay any amount under this agreement on the day it is due (including any amounts which become immediately due and payable under condition 11.1) (Amount Overdue): (a) the Buyer will pay interest on the Amount Overdue at the rate fixed from time to time under the Penalty Interest Rates Act 1983 (Vic) for the period from the day the amount fell due until the date of payment; (b) the Buyer will pay all of the Supplier's reasonable costs of recovering payment of the Amount Overdue as invoiced by the Supplier to the Buyer; and (c) the Supplier may appropriate any payment made by the Buyer on any other account in payment of the Amount Overdue.
12.2 The Buyer agrees that the Supplier has a security interest over all of the Buyer's property in its possession until the Amount Overdue and all other amounts due have been paid in full.

13.             Intellectual Property

13.1 All patents, trademarks, copyrights, designs, know-how, trade secrets, improvements and any other intellectual property (Intellectual Property) in the Goods and Services remain the sole property of the Supplier at all times and the Buyer agrees that it will not infringe any of the Supplier's Intellectual Property rights.

13.2 All drawings, technical specifications and Intellectual Property supplied or made available to the Buyer by the Supplier are subject to copyright and strictly confidential. The Buyer must not: (a) communicate any details of any drawings or technical specifications to any third party without the Supplier's prior written consent; or (b) make any copies of or use the drawings or technical specifications for any purpose other than expressly authorised in writing.

14.            Taxes

14.1 In this condition 14, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the meaning given to it in that act.
14.2 If GST is payable in respect of any supply made under or in connection with this agreement, the recipient will pay to the supplier an amount equal to the GST payable on the supply at the same time and in the same manner as the consideration for the supply is to be provided under this agreement  .
14.3 If a party must reimburse or indemnify another party for a loss, cost or expense, the amount to be reimbursed or indemnified is first reduced by any input tax credit the other party is entitled to for the loss, cost or expense, and then increased in accordance with condition 14.2.
14.4 Any consideration to be paid or provided for a supply made under or in connection with this agreement, unless specifically described in this agreement as GST inclusive, does not include an amount on account of GST.

15.            Privacy

15.1 The parties must comply with all applicable Australian privacy legislation which applies to the party. The Buyer consents to the Supplier’s use and disclosure of personal information of the Buyer or any of the Buyer's directors, officers, principal, guarantors, employees or agents for the purposes of obtaining and/or maintaining a commercial and/or consumer credit report and for registering and amending financing statements under the PPS Act.

16.            PPS Act

16.1 These Terms and Conditions constitute a security agreement.

16.2 The Buyer grants to the Supplier a security interest in the Goods and their proceeds, as security for payment of the Purchase Price and all other amounts payable by the Buyer to the Supplier and for the Buyer's performance of its other obligations to the Supplier.

16.3 The Buyer agrees: (a) at the Supplier's request, to promptly do all things (including signing any documents) and provide all assistance and information necessary to ensure that the Supplier has a perfected first ranking security interest in all Goods (and the proceeds of those Goods) at the Buyer's cost; and (b) that the Supplier may register a financing statement or financing change statement at the Buyer's cost and do anything else required to perfect its security interest in the security interest granted under these Terms and Conditions.

16.4 The Buyer waives its right to receive notice from the Supplier of any verification statement under section 157 of the PPS Act.

16.5 The following provisions of the PPS Act do not apply: section 95 (notice of removal of accession); subsection 121(4) (enforcement of liquid assets); section 125 (obligation to dispose of or retain collateral); section 130 (notice of disposal); paragraph 132(3)(d) (contents of statement of account); subsection 132(4) (statement of account if no disposal); section 135 (notice of retention); section 142 (redemption of collateral); and section 143 (reinstatement of security agreement).

16.6 To the extent permitted by law, the Buyer will indemnify the Supplier on demand, for all costs and expenses incurred in connection with: (a) registering or maintaining a financing statement or financing change statement relating to any security interest that is created or provided for by these Terms and Conditions; and (b) enforcing these Terms and Conditions, including any security interest that is created or provided for by these Terms and Conditions.
16.7 The Supplier reserves all rights and powers it may have in addition to those conferred under the PPS Act.

16.8 The Buyer must not: (a) create, or permit to be created, any security interest over, or in respect of its rights in, the Goods including any replacement part or other item that is incorporated into or attached to any Goods (other than that created under these Terms and Conditions and in all its assets in favour of a bank or similar financial institution); or (b) change any of its details as set out in the Account Application Form without notifying the Supplier at least 10 business days prior to doing so.

16.9 The Buyer represents and warrants to the Supplier that: (a) all information in the Account Application Form is true, correct and complete; and (b) the Goods are not purchased for personal, domestic or household purposes.

16.10 The Buyer repeats each representation and warranty in condition 16.9 each time the Supplier supplies Goods to the Buyer, with reference to the facts and circumstances at the time such Goods are supplied.

16.11 Despite condition 16.8, if the Buyer permits a security interest to be registered over the Goods (other than an all-asset security interest in favour of a bank or financial institution), the Buyer must do, at its own expense, everything reasonably necessary to remove the security interest from the PPS Register.

16.12 The Supplier is irrevocably authorised to enter any premises where the Goods are kept, and to use the name of the Buyer and to act on its behalf, if necessary, to recover possession of the Goods and seize the Goods in accordance with the PPSA without liability for trespass or any resulting damage.

17.            General

17.1 The Supplier may sub-contract the supply or delivery of the Goods and/or Services.

17.2 No waiver by the Supplier of any breach of these Terms and Conditions by the Buyer will be considered as a waiver of any subsequent breach of the same or any other provision. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.

17.3 A term or part of a term of this agreement that is illegal or unenforceable may be severed from these Terms and Conditions and the remaining terms or parts of the terms of these Terms and Conditions continue in force.

17.4 Neither party may assign these Terms and Conditions, or any rights under these Terms and Conditions, without the prior written consent of the other party, such consent not to be unreasonably withheld.

17.5 These Terms and Conditions are governed by the law applicable in Victoria and each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Victoria.