Terms and Conditions of Trade

INTERPRETATION

In these Terms:

1.1.

“Agreement” means any agreement between Mackies and the customer;

1.2.

“Consequential Loss or Damage” means loss of profits, revenue, use or opportunity, re-installation costs, removal costs and any remote or indirect form of loss or damage;

1.3.

“GST” means the Goods and Services Tax imposed by A New Tax System (Goods & Services Tax) Act 1999 and any related act and/or regulations;

1.4.

“Mackies” means Mackies AST NSW, ABN 74 680 892 611 - ACN 680 892 611

1.5.

“Products” means all products sold and/or delivered by Mackies to the customer from time to time;
and

1.6.

“Terms” means these Terms and Conditions of Trade.

2.1.

These Terms apply to all products sold or supplied by Mackies.

2.2.

No amendment, alteration, waiver or cancellation of these Terms is binding on Mackies unless confirmed in writing by Mackies.

2.3.

The customer acknowledges that no employee or agent of Mackies may make any representation, warranty or promise in relation of the Products or the sale of the Products other than as contained in these Terms.

3.1.

Customers are required to quote the relevant stock number when placing orders.  (Note:  all dimensions are in millimetres.)

3.2.

Mackies reserves the right to impose a minimum invoice value of AUD$100.00.  Otherwise a $25.00 account fee may apply.

4.1.

All enquiries regarding non stock items will be “Price on Application” and otherwise subject to these Terms.

4.2.

Prices for non stock items are specified in the quotation.

4.3.

Subject to clause 5.2, all quotations given by Mackies are valid for thirty (30) days from the date set out in the quotation.

5.1.

Prices are as:

5.1.1.

quoted;
or

5.1.2.

determined by the price list current at the time of order which is subject to change without notice.

5.2.

Where Products are imported by Mackies or incorporate imported components, then:

5.2.1.

the price set out in the quotation or price list is based on the Australian Dollar exchange rate against the currency in which Mackies is obliged to pay for the imported products or component in force on the date of the quotation; and

5.2.2.

if the cost to Mackies of the Products or any component of Products increases as a result of fluctuations in the current exchange rate, then Mackies will be entitled to increase the price of the Products accordingly without prior notice to the customer.

5.3.

All prices are quoted Nett Ex Works, unless expressly specified otherwise.

6.1.

GST is not included in the quoted price.

6.2.

Where GST is imposed on Mackies in respect of the supply of Products then the customer must pay Mackies the amount of such GST in addition to the quoted price.

6.3.

Mackies must provide a tax invoice showing the amount of GST payable.

7.1.

Unless customers have accredited accounts with Mackies, the price inclusive of GST must be paid in full prior to despatch or collection of Products.  Mackies may in its discretion agree for the price to be paid cash on delivery.

7.2. 

Payments must be made strictly net, without any deduction or discount other than as stated in these Terms or in the relevant invoice or statement to the customer’s accredited accounts.  (Customers who do not have accounts with Mackies are advised to apply to Mackies’ head office for details.)

7.3.

Payments must be made in full within thirty (30) days of invoice date in cash or cleared funds.

7.4.

In the absence of any specific written direction to the contrary, payments will be credited against the oldest outstanding account of the customer with Mackies to the most recent.

7.5.

The customer cannot set-off from any payment, any counter-claims that the customer may have against Mackies.

7.6.

The absence of minor parts that does not seriously affect the use of the Products does not entitle the customer to a reduction or a delay of payment.

7.7.

Interest is payable on all overdue accounts calculated on a daily basis at the rate of interest equivalent to the National Australia Bank’s indicator rate as at the final date of payment plus 2% until full payment is received by Mackies.

7.8.

If the customer fails to comply with either clause 7.1 or 7.3, whichever is applicable, Mackies may treat such failure as a fundamental breach of the Agreement and treat the Agreement as repudiated.

8.1.

Legal and beneficial ownership of the Products will not pass to the customer until such time as the Products so supplied have been paid for in full in cash or cleared funds.

8.2.

Until the amount payable in respect of the Products has been paid in full in cash or cleared funds:

8.2.1.

the customer will hold the Products as bailee only for Mackies;

8.2.2.

any monies received or income generated by the customer (up to the amount owing to Mackies) through the use of such Products will be deemed to be received on trust for Mackies; and

8.2.3.

the Products must be stored in such manner that they are readily distinguishable from other products owned by the customer or other persons, so as to clearly show that they are the property of Mackies.

9.1.

The Products are entirely at the risk of the customer from the moment of despatch to the customer even though property in and title to the Products have not passed to the customer.

9.2.

The customer must, at its own expense, maintain the Products and insure them for the benefit of Mackies for their full replacement value against theft, destruction, fire, water and other risks, as from the moment of despatch from Mackies’ premises to the customer’s point of delivery and until property of and title to the Products have passed to the customer.

9.3.

The customer must take all reasonable measures to ensure that Mackies’ title to the Products is in no way prejudiced. If the Products are lost, destroyed or damaged, any insurance proceeds relating to the Products in respect of such event that are received by the customer, must be paid to Mackies immediately on receipt.

10.1.

Unless otherwise agreed by Mackies, the customer acknowledges that the Products are not intended to be used by the customer for the purposes of resale.  If Mackies agree that the customer may resell the Products, then the provisions set out in clauses 10.2 to 10.4 will apply.

10.2.

Subject to clause 10.1, if the customer is a reseller of the Products then, subject to clause 10.3, the customer has the right to sell the Products in its own name at full market value and in the ordinary course of business.

10.3.

Any sale by the customer of Products subject to a retention of title, whether in their original condition or incorporated into other products, will only be effected by the customer as trustee for Mackies and the proceeds of such sale and the rights of Mackies' customer against its customer arising from such sale will be held on trust for Mackies. The said proceeds must be held in a separate account or otherwise clearly identified in the books and records of the customer.

10.4.

If the customer resells any Products then, unless the Products are clearly identifiable by serial numbers or other distinguishing marks, the customer is deemed to have disposed of the Products in the chronological order of supply by Mackies to the customer (oldest to the most recent).

11.1.

Availability, despatch and delivery dates are estimates only. 

11.2.

The customer is solely responsible for providing adequate directions to enable Mackies, its agents or contractors to effect despatch to the customer’s nominated premises.

11.3.

Where Mackies is required to enter the customer’s nominated premises, the customer agrees that, unless Mackies is proved to be negligent:

11.3.1.

Mackies will not be liable for any loss, damage or injury caused by such entry; and

11.3.2.

it will indemnify and keep Mackies indemnified against any claims made by any third party against Mackies arising from such entry.

11.4.

The customer acknowledges and agrees:

11.4.1.

that no warranty is given or is implied to be given in respect of availability or despatch dates;

11.4.2.

estimated availability and despatch dates are based on information supplied by manufacturers and suppliers and may be subject to delays associated with the import of the Products; and

11.4.3.

that Mackies is not liable for any loss including Consequential Loss or Damage as a result of its inability or failure to despatch the Products within specified time frames.

11.5.

Mackies may at any time extend the time for despatch of the Products, provided that the extension does not exceed the reasonable amount of time allowable for such despatch.

11.6.

The customer agrees that Mackies’ despatch records will be:

11.6.1.

proof of despatch of the Products in good order and of the quality and quantity specified in the quotation; and

11.6.2.

evidence of receipt by the customer notwithstanding the absence of any representative of the customer at the point of delivery.

12.1.

Mackies reserves the right to despatch or deliver the Products in whole or by instalments, as well as to despatch or deliver prior to the date for such despatch or delivery, and in such event, the customer must not refuse to take delivery of the Products.

12.2.

Where the Products are despatched or delivered by instalments, each instalment is regarded as a separate contract.

12.3.

Any failure on the part of Mackies to despatch or deliver any instalment within any specified time does not entitle the customer to repudiate the Agreement in respect of the balance of the Products that have not been delivered.

12.4.

The customer is solely responsible for payment of additional freight for partial instalments.

INSPECTION

Unless the customer has inspected the Products and given written notice to Mackies within seven (7) days after collection or delivery that the Products are defective do not comply with the relevant specifications or descriptions, or that the Products are faulty or damaged, the Products are deemed to have been accepted in good order and condition and compliant with those specifications and description.

The customer is deemed to have purchased the Products on the occurrence of any of the following events:

14.1.

the expiry date, if any, of the Products in question has passed;

14.2.

use or re-sale of the Products;

14.3.

damage, destruction or loss of the Products; or

14.4.

the Products becoming shop-soiled.

No order may be cancelled, modified or deferred without the prior written consent of Mackies (at Mackies' sole discretion) and if such consent is given, it is at Mackies’s election, subject to Mackies being reimbursed all losses, including loss of profits, and payment of a cancellation and handling fee (being not more than 15% of the invoiced value of the Products).

16.1.

Subject to clauses 16.2 and 16.3, Mackies will only accept the return of any Products to it by the customer, if:

16.1.1.

the customer has applied to Mackies for approval to return the Products with seven (7) days of collection or delivery, whichever is applicable;

16.1.2.

Mackies has given written approval for the return of the Products and issued a Return Authorisation Number;

16.1.3.

the customer has returned the Products to Mackies’ premises (or such premises as are specified by Mackies in its approval referred to in clause 16.1.2) within fourteen (14) days from the date the approval is granted; and

16.1.4. 

the return is accompanied by a Return Authorisation Number issued by Mackies.

16.2.

If Mackies agrees to the return of Products:

16.2.1.

the Products, when received by Mackies, must be unsoiled, undamaged and in a resaleable condition (if otherwise, the customer must pay for all costs of replacement and/or repair) as determined by Mackies;

16.2.2.

the customer must pay for the delivery, freight, customs, duties, levies and/or insurance in respect of the return of the Products to Mackies; and

16.2.3.

the customer must bear the risk of loss or damage of the Products in transit until arrival of the Products at the return address as advised by Mackies.

16.3.

Mackies will not allow a credit or return of Products if the:

16.3.1.

Products are imported especially for the customer or comprise non-standard equipment made to special order; or

16.3.2.

Products are marked on Mackies’ invoices as “NOT RETURNABLE”.

17.1.

The customer is solely responsible for the:

17.1.1.

installation of the Products (save where Mackies has undertaken to perform the installation works on behalf of the customer at the customer’s request); and

17.1.2.

use of the Products,
in accordance with the manufacturer’s directions and guidelines.

17.2.

If Mackies assumes responsibility for installation, supervision of the installation and/or commissioning of the supplied Products, then:

17.2.1.

the customer warrants that the structure of the site or equipment in respect of which the installation is carried out is sound and will sustain the installation and erection work incidental thereto, and that Mackies will not be liable for any loss or damage resulting from inadequate or defective foundations, walls, roofs or other structures erected by third parties;

17.2.2. 

unless otherwise specified by Mackies in writing, the resulting costs of the installation/erection are payable by the customer in addition to the invoiced value of the Products; and

17.2.3. 

the customer must take all reasonable steps to ensure that all tools and auxiliary materials delivered to the customer’s nominated premises to be used by Mackies for installing or erecting the Products remain the property of Mackies and are protected against loss, damage, destruction or theft and undertakes to indemnify and keep Mackies indemnified against such loss, damage, destruction or theft.

18.1.

If the customer chooses to participate in Mackies Pan Maintenance Program, the customer acknowledges and agrees that processing of the customer’s products or materials is undertaken by Mackies at the customer’s risk.

18.2.

Mackies undertakes to carry out processing by recognised trade methods but will not be responsible for any loss (including Consequential Loss or Damage) by distortion or otherwise arising from such processing.

18.3.

The customer must ensure that all customer’s products or materials are free of product debris, mould and infestation from pests.

18.4.

The customer warrants that all products and materials submitted are composed of a material suitable for processing.  The costs of any special handling or packing equipment required for the transit of processed products will be borne by the customer and debited to the accredited account of the customer unless otherwise agreed by Mackies.

18.5.

Mackies reserves the right to return, at the customer’s costs all customer’s products or materials which in the reasonable opinion of Mackies:

18.5.1.

do not comply with the requirements set out in either clause 18.3 or 18.4; or

18.5.2.

are beyond repair or re-conditioning.

If:

19.1.

the Products are not paid for in accordance with these Terms or any other applicable written agreement; or

19.2.

Mackies receives notice that, or reasonably believes that a third party may attempt to levy execution against or attach the Products; or

19.3.

any other event occurs which is likely to adversely affect the customer's ability to pay for the Products (including but not limited to the appointment of a receiver, administrator, liquidator or similar person [each an “insolvency representative”] to the customer's undertaking),
then Mackies may at any time thereafter, without notice to the customer and without prejudice to any other rights which it may have against the customer, terminate any contract relating to the Products and the bailment referred to in clause 8.2.1.

In any of the circumstances referred to in the preceding clause, the customer:

20.1.

authorises Mackies by itself, its agents or representatives at all reasonable times, without notice, to enter onto (with force if reasonably necessary) and at all necessary time(s), to remain in and on any premises where the Products are located in order to collect the Products, without being guilty of any manner of trespass; and

20.2.

assigns to Mackies all the customer's rights to enter onto and remain in and on such premises until all the Products have been collected.

ADMINISTRATION, RECEIVERSHIP ETC.

In any of the circumstances referred to in clause 19.3:

21.1.

neither the customer nor its insolvency representative is entitled to sell, charge, remove, dispose of, use or otherwise deal with the Products in any way inconsistent with Mackies' ownership of the Products, without Mackies' prior written approval;

21.2.

the customer and its insolvency representative is obliged to re-deliver the Products to Mackies immediately or immediately on his appointment at its, his or her expense; and

21.3.

the insolvency representative will become personally liable to Mackies on a full indemnity basis in respect of any dealings with or use of the Products by the customer or the insolvency representative occurring after the date of appointment of the insolvency representative and must account to Mackies or reimburse Mackies for all monies received as a result of such dealings or use of the Products.

If the customer carries on business as trustee of a trust, then the customer warrants that:

22.1.

the customer enters into the contract as trustee of the trust;

22.2.

the customer has all requisite powers under the trust instrument to enter into the contract;

22.3.

the beneficiary of the trust approves the purchase of the Products on the terms of the contract; and

22.4.

the assets of the trust are available to Mackies in satisfaction of any debt incurred by the customer.

23.1.

These Terms do not affect any rights conferred by the Trade Practices Act (1974).

23.2.

Mackies is not subject to, and the customer releases Mackies from any liability (including but not limited to Consequential Loss or Damage) arising from any delay in delivery or fault or defect in the Products. The customer acknowledges that Mackies is not responsible if the Products do not comply with any applicable safety standard(s) or similar regulation(s), and that Mackies is not liable for any claim, cost, damage or demand resulting from such non-compliance.

23.3. 

If any statutory provisions under the Trade Practices Act 1974 or any other statute(s) apply to the Agreement then, to the extent to which Mackies is entitled to do so, Mackies' liability under the statutory provisions is limited, at Mackies' option, to:

23.3.1.  

replacement or repair of the Products or the supply of equivalent Products; or

23.3.2.

payment of the cost of replacing or repairing the Products or of acquiring equivalent Products,
and in either case, Mackies will not be liable for any Consequential Loss or Damage or other direct or indirect loss or damage.

SAMPLES

Any sample inspected by the customer is solely for the customer’s convenience and does not constitute a sale by sample.  All samples remain the property of Mackies.

WARRANTY

25.1.

Mackies warrants that the Products will be despatched from Mackies’ premises in an undamaged condition.

25.2. 

The customer acknowledges and agrees that:

25.2.1. 

all technical data supplied by Mackies in relation to the Products are approximates only unless advised otherwise and are subject to alterations by Mackies without notice; and

25.2.2.

it is satisfied from its own enquiries that the specification of the Products is correct and appropriate for the purpose required by the customer.

25.3.

Where the Products carry a manufacturer’s warranty, Mackies will, if and when required to do so, use all reasonable endeavours to assist the customer in obtaining the benefit of that warranty.

25.4.

Subject to clause 13, on discovery of any defect in the Products, the customer must immediately notify Mackies in writing of such defect. The customer must not carry out any remedial work to products that are alleged to be defective without first obtaining the written consent of Mackies to do so.

25.5.

The provisions of any act or law (including but not limited to the Trade Practices Act 1974) implying terms, conditions and warranties, or any other terms, conditions and warranties which might otherwise apply to or arise out of the Agreement in relation to the Products are hereby expressly negatived and excluded to the full extent permitted by law.

25.6.

The customer expressly acknowledges and agrees that it has not relied on, and Mackies is not liable for any advice given by Mackies, its servants, agents, representatives or employees in relation to the suitability of the Products for any purposes.

26.1.

Particulars in leaflets, catalogues, drawings, brochures and other printed material are illustrations only, form no part of the contract between Mackies and the customer, and are not binding on Mackies.

26.2.

All technical documents such as drawings, illustrations, descriptions, etc., are the exclusive property of Mackies.  They must not be made available to third parties, or copied, duplicated or used to reproduce any part of the Products.

27.1.

Any drawings, models, prototypes or any other works of art which are provided by Mackies to the customer together with any quotation are subject to the copyright held by Mackies and the customer acknowledges that the copyright is held by Mackies and that it will be bound by this clause even if it does not proceed with acceptance of any quotation provided by Mackies in relation to any Products.

27.2.

The customer acknowledges that any drawings, models, prototypes or any other works of art which are provided by Mackies to the customer for the purposes of any quotation are provided on the basis that they are strictly confidential and must not be disclosed to any third party.  Mackies reserves the right to recall any such drawings, models, prototypes and/or works of art when the customer either accepts a quotation or determines not to proceed with any quotation provided by Mackies.

THIRD PARTY’S INTELLECTUAL PROPERTY

28.1.

The customer warrants that the drawing of any form or shape for which a quotation has been issued and which has been endorsed by the customer and supplied by the customer to Mackies does not infringe the rights of any third party (whether copyright, registered design, pattern, trademark, confidential information or otherwise) or breach any applicable law.

28.2.

In the event of any claim, action, suit, demand, order for costs or damages (including legal expenses on a solicitor and client basis) referrable to the rights and/or laws referred to in clause 28.1 being made or brought against Mackies, the customer must fully indemnify Mackies and keep Mackies indemnified from and against same.

Mackies will not be liable for any breach of contract due to any matter or thing beyond Mackies' control (including but not limited to transport stoppages, transport breakdown, fire, flood, earthquake, acts of God, strikes, lock-outs, work stoppages, wars, riots or civil commotion, intervention of public authority, explosion or accident).

WAIVER OF BREACH

No failure by Mackies to insist on the strict performance of any of the terms in these Terms is a waiver of any right or remedy which Mackies may have, and is not a waiver of any subsequent breach or default by the customer.

NO ASSIGNMENT

Neither the Agreement nor any rights arising under the Agreement may be assigned by the customer without the prior written consent of Mackies which is at Mackies' absolute discretion.

If any provision contained in these Terms is held by a court to be unlawful, invalid or unenforceable, the validity and enforceability of the remaining provisions are not affected.

CONTRACT / GOVERNING LAW

33.1. 

The terms of contract between the parties are wholly contained in these Terms and any other writing signed by both parties. The contract is deemed to have been made at the place of business of Mackies in Sydney and any cause of action is deemed to have arisen there.

33.2. 

The provisions of the United Nations Convention on contracts for the International Sale of Products adopted at Vienna, Austria on 10 April 1980 do not apply to any Products supplied by Mackies to the customer.