1.1. “Seller” means MNF Enterprises Pty Ltd ATF The M&N Family Trust Trading as MNF 4×4, its successors and assigns or any person acting on behalf of and with the authority of MNF Enterprises Pty Ltd ATF The M&N family Trust Trading as MNF 4×4.
1.2. “Buyer” means the person’s buying the Goods as specified in any invoice, document or order, and if there is more than one Buyer is a reference to each Buyer jointly and severally.
1.3. “Goods” means all Goods and/or Services supplied by the Seller to the Buyer at the Buyer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other)
1.4. “Price” means the Price payable for the Goods as agreed between the Seller and the Buyer in accordance with clause 4 below.
2.1. The Buyer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Buyer placed and order for Goods, requests the supply of Goods or accepts delivery of Goods.
2.2. These terms and conditions may only be amended with the Seller’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Buyer and the Seller.
2.3. Check an order has been accepted my MNF 4×4; it cannot be cancelled by the Buyer. If the Buyer makes a change request to the already accepted order where it results in an increase in total price including labour (if applicable), the Buyer will be charged the additional cost. The supply of Goods or Services is subject to availability.
2.4. MNF 4×4 reserves the right to suspend or discontinue the supply of Goods or Services to the Buyer. MNF 4×4 will advise approximate supply date on acceptance of an order. If MNF 4×4 is unable to supply all of the Buyer’s orders, these terms and conditions continue to apply to any part of the order supplied.
2.5. MNF 4×4 is not liable for any loss or damage suffered by the Buyer as a result of any failure to provide all or part of an order.
2.6. Where a written quotation has been given by MNF 4×4, the selling price is the price specified in the quotation. In any other case, MNF 4×4’s selling price is the price specified in the price list as at the date of dispatch or as otherwise advised by MNF 4×4. Unless otherwise stated, the selling price does not include GST.
2.7. MNF 4×4 may at any time change its price list to reflect among other things, changes in exchange rates, or the imposition of any duties, levies or other taxes and the Buyer is bound by those changes. All quotes are valid for 30 days from date of issue.
2.8. Where the Buyer has requested a special order that requires MNF 4×4 to supply Goods outside its standard supply, the Buyer will be required to provide payment in full prior to MNF 4×4 accepting that order.
2.9. In relation to vehicle fitment jobs, MNF 4×4 reserves the right to re-quote if the vehicle delivered to MNF 4×4’s premises requires further work from the quoted work specification, including but not limited to the removal of tub body and/or other fittings and accessories that interferes with the correct fitment, and cleaning of the vehicle.
3. Change in Control
3.1. The Buyer shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Buyer and/or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s name, address, contact phone or fax number/s, or business practice) The buyer shall be liable for any loss incurred by the Seller as a result of the Buyer’s failure to comply with this clause.
4. Price and Payment
4.1. At the Seller’s sole discretion the price shall be either:-
- As indicated on any invoice provided by the Seller to the Buyer; or
- The Seller quoted price which will be valid for the period stated in the quotation or otherwise for a period of fourteen (14) days.
4.2. The Seller reserves the right to change the Price if a variation to the Seller’s quotation is requested. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties or unforeseen circumstances or as a result of increases to the Seller in the cost of materials and labour or as a result of variations in currency exchange rates) will be charged for on the basis of the Seller’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3. Time for payment for the Goods being of the essence, the Price will be payable to the Buyer on the date/s determined by the Seller, which may be:
- On delivery of the Goods;
- Before delivery of the Goods;
- The date which is thirty (30) days following the date of any invoice given to the Buyer by the Seller;
- Thirty (30) days following the end of the month in which a statement is posted to the Buyer’s address or address for notices; or
- The date specified on any invoice or other form as being the date for payment.
4.4. Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Buyer and the Seller.
For payments made by the Buyer to the Seller by credit card, the Seller may at its sole discretion charge the Buyer a surcharge on the part of the invoice (including GST) to be paid by the Buyer using a credit card and the surcharge of 2.5%.
4.5. Charge the Buyer interest calculated on a daily basis on any portion of the Buyer’s account that is overdue at the utilised financial institution’s reference rate for business loans, available to prime commercial customers, plus 5% calculated from the date the payment was due until the date payment is made (both dates inclusive).
4.6. Unless otherwise stated the Price does not include GST. In addition to the Price the Buyer must pay to the seller an amount equal to any GST the Seller must pay for any supply by the Seller under this or any other agreement for the sale of the Goods. The Buyer must pay GST without deduction or set off any other amounts, at the same time and on the same basis as the Buyer pays the Price. In addition the Buyer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the price.
5. Delivery of Goods
5.1. Delivery (“Delivery”) of the Goods is taken to the occur at the time that the Buyer collects the Goods from the Seller or the Seller (or the Seller’s nominated carrier) delivers the Goods to the Buyer’s nominated carrier or nominated address even if the Buyer is not present at the address.
5.2. At the Seller’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
5.3. The Buyer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Buyer is unable to take of the Goods as arranged then the Seller shall be entitled to charge a reasonable fee for redelivery and/or storage.
5.4. Where there is more than one Good or Service supplied by the Seller, the Seller may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.5. At any time or date given by the Seller to the Buyer is an estimate only. The Buyer must still accept delivery of the Goods even if late and the Seller will not be liable for any loss or damage incurred by the Buyer as a result of the delivery being late.
6. Risk and Title
6.1. Goods supplied by MNF 4×4 to the Buyer are at the Buyer’s risk immediately on the earlier of delivery to the Buyer or into the Buyers custody, including its carrier or forwarder. The Buyer must insure the Goods at its cost from delivery of the Goods until they are paid for in full against such risks as are usual or common to insure against in a business of a similar nature to the Buyer.
6.2. Property in the Goods supplied by MNF 4×4 to the Buyer does not pass to the Buyer until all the Goods have been paid for in full. In the meantime, the Buyer takes custody of the Goods and retains them only ad fiduciary agent and bailee of MNF 4×4. Until all Goods have been paid for in full.
6.3. Risk of damage to or loss of the Goods passes to the Buyer on Delivery.
6.4. If any of the goods are damaged or destroyed following delivery but prior to ownership passing to the Buyer, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further inquiries.
6.5. If the Buyer requests the Seller to leave Goods outside the Seller’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Buyer’s sole risk.
6.6. The Seller and the Buyer agree that ownership of the Goods shall not pass until:
- The Buyer has paid the Seller all amounts owing to the Seller; and
- The Buyer has met all of it other obligations to the Seller.
6.7. Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
6.8. It is further agreed that:
- Until ownership of the Goods passes to the Buyer in accordance with clause 7.1 that the Buyer is only a bailee of the Goods and must return the Goods to the Seller on request.
- The Buyer holds the benefit of the Buyer’s insurance of the Goods on trust for the Seller and must pay to the Seller the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
- The Buyer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Buyer sells, disposes or parts with possession of the Goods then the Buyer must hold the proceeds to the Seller on demand.
- The Buyer should not convert or process the Goods or intermix them with other Goods but if the Buyer does so then the Buyer Holds the resulting product on trust for the benefit of the Seller and must sell, dispose of or return the resulting produce to the Seller as it so directs.
- The Buyer irrevocably authorises the Seller to enter any premises whether the Seller believes the Goods are kept and recover possession of the Goods.
- The Seller may recover possession of any goods in transit whether or not a delivery has occurred.
- The Buyer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Seller.
- The Seller may commence proceedings to recover the Price of the Goods sold and interest notwithstanding that ownership of the Goods has not passed to the Buyer.
7. Vehicle Storage
7.1. Whilst all care is taken, MNF 4×4 accepts no responsibility for vehicles stored and/or transported.
8. Personal Property Securities Act 2009 (“PPSA”)
8.1. In this clause, financing statement, financing change statement, purchase money security interest (“PMSI) security agreement, and security interest has the meaning given to it by the PPSA.
8.2. Upon assenting to these terms and conditions in writing the Buyer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by the Seller to the Buyer.
8.3. The Buyer agrees and acknowledges that the security interest created under this agreement is a PMSI in Goods and/or Services supplied and is continuing and subsisting security interest attaching to all Goods now or in the future supplied to the Buyer by the Seller.
8.4. The Buyer undertakes to:
- Promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Seller may reasonably require to;
– Register a PMSI, financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
– Register any other documents required to be registered by the PPSA; or
– Correct a defect in a statement referred to in clause 8.4(a)(i) or 8.4(a)(ii);
- Indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
- Not register a financing change statement in respect of a security interest without the prior written consent of the Seller;
- Not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of the Seller;
- Immediately advice the Seller of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
8.5. The Seller and the Buyer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
8.6. The Buyer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3), 132(4) of the PPSA.
8.7. The Buyer waives their rights as a grantor and/or debtor under sections 142 and 143 of the PPSA.
8.8. Unless otherwise agreed to in writing by the Seller, the Buyer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
8.9. The Buyer must unconditionally ratify any actions taken by the Seller under clauses 8.4 to 8.6.
8.10. Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out any of the provisions of the PPSA.
9. Security, Charge and Lien
9.1. In consideration of the Seller agreeing to supply the Goods, the Buyer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, including but not limited to the Goods owned by the Buyer either now or in the future, to secure the performance by the Buyer of its obligations under these terms and conditions (including, but not limited to, the payment of any money)
9.2. The Seller shall have a lien on the Goods for freight, additional freight, disbursements, storage and other expenses, or other charges and all sums whatsoever which are or become due to the Seller from the Buyer from time to time.
9.3. The Buyer indemnifies the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Sellers rights under this clause.
9.4. The Buyer irrevocably appoints the Seller and each director of the Seller as the Buyer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 9 including, but not limited to, signing any document on the Buyers’ behalf.
10. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
10.1. The Buyer must inspect the Goods on delivery and must within seven (7) days of delivery notify the Seller in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Buyer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evidence. Upon such notification the Buyer must allow the Seller to inspect the Goods.
10.2. Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and condition (“Non-Excluded Guarantees”).
10.3. The seller acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
10.4. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Seller makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. The Seller’s Liability in respect of these warranties is limited to the fullest extent permitted by law.
10.5. If the Buyer is a consumer within the meaning of the CCA, the Sellers liability is limited to the fullest extent permitted by section 64A of Schedule 2.
10.6. If the seller is required to replace the Goods under this clause or the CCA, but is unable to do so, the Seller may refund any money the Buyer has paid for the Goods.
10.7. If the Buyer is not a consumer within the meaning of the CCA, the Seller’s liability for any defect or damage in the in the Goods is:
- Limited to the value of any express warranty or warranty card provided to the Buyer by the Seller at the Seller’s sole discretion;
- Limited to any defect or damage that occurred within 12 months of Delivery of the Goods from the Seller to the Buyer provided that it is not the result of any wilful act, negligent act or omission or international damage to the Goods by the Buyer, its nominee, agents or any third party and it is in fact the Goods that are defective.
- Limited to any warranty to which the Seller is entitled, if the Seller did not manufacture the Goods;
- Otherwise negated absolutely.
10.8. Subject to this clause 10, return will only be accepted provided that:
- The buyer has complied with the provisions of clause 10.1; and
- The Seller has agreed that the Goods are defective; and
- Any associated labour charges – removal of and fitment of any replacement item(s) are at the Buyer’s cost; and
- Any associated freight charges are at the Buyer’s cost; and
- The goods are returned in a close condition to that in which they were delivered as is possible.
- For refunds goods must be returned within 30 days of the purchase date (refunds exclude any associated labour and freight costs).
- Items removed to allow fitment of aftermarket accessories/purchased goods, become the property of MNF Enterprises unless claimed by the buyer within 7 days. Claim for any such items must be made in writing.
10.9. Notwithstanding clauses 10.1 to 10.8 but subject to the CCA, the Seller shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
- The Buyer failing to properly maintain or store any Goods;
- The Buyer using the Goods for any purpose other than that for which they are designed;
- The Buyer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
- The Buyer failing to follow any instructions or guidelines provided by the seller;
- Fair wear and tear, any accident, or act of God.
10.10. Notwithstanding anything contained in this clause if the Seller is required by the law to accept a return then the Seller will only accept a return on the conditions imposed by that law.
11. Default and Consequences of Default
11.1. Interest on overdue invoices that accrue daily from the date when payment becomes due, until the date payment, at a rate two and a half percent (2.5%) per calendar month (and at the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgement.
11.2. If the Buyer owes the Seller any money, the Buyer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Seller’s collection agency costs, and bank dishonour fees).
11.3. Without prejudice to any other remedies the seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment) under these terms and conditions the Seller may suspend or terminate the supply of the Goods to the Buyer. The seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller has exercised its rights under this clause.
11.4. Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable if:
- Any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to make a payment when it falls due;
- The Buyer becomes insolvent, convenes a meeting with its creditor or proposes or enters into and arrangement with creditors, or makes and assignment for the benefit or its creditors; or
- A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer.
12.1. The Seller may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Buyer. On giving such notice the Seller shall repay to the Buyer any money paid by the Buyer for the Goods. The seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
12.2. In the event that the Buyer cancels delivery of Goods the Buyer shall be liable for any and all loss incurred (whether direct or indirect) by the Seller as a direct result of the cancellation (including, but not limited to, any loss of profits).
12.3. Cancellation of orders for Goods made to the Buyer’s specifications, or for non-stockist items, will definitely not be accepted once production has commenced, or an order has been placed.
13. Privacy Act 1988
13.1. The Buyer agrees for the Seller to obtain from accredit reporting agency a credit report containing personal credit information about the Buyer in relation to credit provided by the Seller.
13.2. The Buyer agrees that the Seller may exchange information about the Buyer with those credit providers either named in a consumer credit report issued by a credit reporting agency for the following purposed:
- To asses an application by the Buyer; and/or
- To notify other credit providers of a default by the Buyer and/or
- To exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other credit provider; and/or
- To assess the creditworthiness of the Buyer. The Buyer understands that the information exchanges can include anything about the Buyer’s creditworthiness, credit standing, credit history or credit capacity that providers are allowed to exchange under the Privacy Act 1988.
13.3. The Buyer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K (1) (h) Privacy Act 1988).
13.4. The Buyer agrees that personal credit information provided may be used and retained by the Seller for the following purposes (and for other purposes as shall be agreed between the Buyer and Seller or required by law from time to time):
- The provision of Goods; and/or
- The marketing of Goods by the Seller, its agents or distributors; and/or
- Analysing, verifying and/or checking the Buyer’s credit, payment and/or status in relation to the provision of Goods; and/or
- Processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Buyer; and/or
- Enabling the daily operation of the Buyer’s account and/or the collection of amounts outstanding in the Buyer’s account in relation to the Goods.
13.5. The Seller may give information about the Buyer to a credit reporting agency for the following purposes:
- To obtain a consumer credit report about the Buyer;
- Allow the credit reporting agency to create or maintain a credit information file containing information about the Buyer.
13.6. The information given to the credit reporting agency may include:
- Personal particulars (the Buyer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number):
- Details concerning the Buyer’s application for credit or commercial credit and the amount requested;
- Advice that the Seller is a current credit provider to the Buyer;
- Advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
- That the Buyer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
- Information that, in the opinion of the Seller, the Buyer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Buyer’s credit obligations);
- Advice that cheques drawn by the Buyer for one hundred dollars ($100) or more, have been dishonoured more than once;
- The credit provided to the Buyer by the Seller has been paid or otherwise discharged.
14.1. The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’s rights to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable to validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
14.2. These terms and conditions and any contract to which they apply shall be governed by the laws of the state of Queensland in which the Seller has its principal place of business, and are subject to the jurisdiction of the courts in that state.
14.3. Subject to clause 10 the Seller shall be under no liability whatsoever to the Buyer for any indirect and/or consequential loss and/or expense (including loss or profit) suffered by the Buyer arising out of a breach by the Seller of these terms and conditions (alternatively the Seller’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
14.4. The Buyer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Buyer by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.
14.5. The Seller may licence or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
14.6. The Buyer agrees that the Seller may amend these terms and conditions at any time. If the Seller makes a change to these terms and conditions, than that change will effect from the date on which the Seller notifies the Buyer of such change. The Buyer will be taken to have accepted such changes if the Buyer makes a further request for the Seller to provide the Goods to the Buyer.
14.7. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm of other event beyond the reasonable control of either party.
14.8. The Buyer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so. It is not insolvent and that this agreement created binding and valid legal obligations on it.
14.9. This agreement constitutes the entire between the parties relating in any way to its subject matter. All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this agreement are merged in this agreement and are of no further effect. No oral explanation or information provided by a party to another affect the meaning or interpretation of this agreement or constitutes any collateral agreement, warranty or understanding.
THIS IS A LEGAL DOCUMENT AND IF YOU ARE UNSURE OF ITS MEANING AND EFFECT YOU SHOULD SEEK LEGAL ADVICE