1. Warranty

a. The Seller warrants that the relevant Goods are manufactured to the standards and specifications of the Society of Automotive Engineers Australasia.

b. The Seller warrants that all Goods supplied by them are of acceptable quality and are fit for purpose.

c. At the Seller’s discretion, they will repair or replace any Goods supplied not found to be fit for purpose, subject to Paragraphs 14 and 15 of the Terms.

d. Except as set forth herein, and except as to title, it is expressly agreed that;

i. There is no warranty or merchantability or fitness for a particular purpose, nor other warranty express, implied or statutory nor any affirmation of fact, or promises by the Seller. With reference to the Goods which extends beyond

the specifications, agreed upon by the Seller and the Buyer; and

ii. The Buyer mutually acknowledges that it is purchasing goods solely on the basis of the commitments of the Seller. Expressly set forth herein and that no person is authorized to change or add to any of the Seller’s obligations under this warranty. In no event shall the Seller be liable for anticipated profits or for incidental or consequential damages.

9. Specific Warranties

a. Accessories, Mining Accessories, Steel Trays (Excluding Winches and ROPS) – 1 Year Warranty.

b. Winches and Rollover Protection Systems (ROPS) – 3 Years Warranty.

c. Suspension (excluding Shackles and Pins) – 3 Years Warranty or 60,000km Warranty, whichever occurs first.

d. Shackles and Pins – 3 Years Warranty.

i. The Seller warrants the original the Buyer, only when purchased new via the Seller’s authorised resellers and distributors, from date of sale.

 

10. Goods in Transit

a. The Buyer acknowledges that the Goods leaving the Seller’s premises are adequately packed and complete as per the Contract.

b. The Seller will not be liable for any damage to the Goods incurred in transit.

i. Claims for damage in transit must be made against the carrier.

c. The Seller will not be liable for deliveries of Goods that are incomplete as per the Contract.

i. Claims for incomplete deliveries must be made against the carrier.

d. The Buyer has an obligation to advise the Seller within 3 days of receipt of the delivery in the event of any of the following:

i. Damage to the Goods is incurred in transit; or

ii. The Goods delivered are incomplete as per the Contract.

11. Title

a. Title to the Goods will not pass to the Buyer until the Seller has been paid in full under the Contract.

b. Until the title to the Goods is passed to the Buyer, the Buyer must:

i. Hold the Goods as bailed for the Seller and keep them in good order and condition;
ii. Not remove any markings placed by the Seller and ensure that the Goods can be readily identified and distinguished from other property in The Buyer’s possession; and

iii. Deliver the Goods to the Seller immediately upon demand.

 

12. Risk

a. Risk on the Goods (including insurance responsibility) is borne by the Buyer upon

receipt of the Goods.

 

13. Limitation Of Liability And The Buyer’s Indemnity

a. Subject to the Terms, the Seller’s liability for any breach of a condition or warranty imposed on the Goods supplied or services provided is limited to the following:

i. Replacement of the Goods or the supply of equivalent Goods;

ii. Repair of the Goods;

iii. Payment of the cost of replacing the Goods or of acquiring or obtaining equivalent goods; and

iv. Payment of the cost of having the Goods repaired.

v. Where services have been provided, any one of the following (as the Seller may determine):

a. Providing the services again; or

b. Payment of the costs of having the services provided again.

b. Subject to the Terms, the Seller will not be liable for the following:

i. Any damage, expense, loss, or injury arising consequentially, indirectly, or contingently from:

1. The operation of the Goods;

2. Any defect in the Goods;3. Force Majeure, any act of God, natural disaster, or fire;

4. Any labour dispute, civil commotion or unrest, or intervention by government; or

5. Any other reason or cause beyond the Seller’s reasonable control.

ii. Any expense incurred by the Buyer in their attempts to repair or remedy any defect they perceive in the Goods.

c. The Buyer will indemnify the Seller for any loss, damage, expense or injury as it relates to the Contract and the Terms.

d. The Terms under this clause do not limit the Buyer’s rights under the ACL. The parties acknowledge and agree that the Buyer may have write’s under the ACL which are in addition to the rights conferred on the parties under this agreement.

 

14. Claims

a. Any claim for exchange of product, store credit, warranty, or refund made by the Buyer must comply with the following:

i. The claim must be in writing and addressed to:

1. McCormacks 4WD

The Manager

111 Rainbow Street

Sandgate QLD 4017

ii. The claim must contain in the subject line any of the following headings;

1. “Application for Exchange or Store Credit”;

2. “Application for Warranty”; or

3. “Application for Refund”;

iii. The claim must contain proof of purchase.1. The only acceptable proofs of purchase are original receipts and tax invoices issued by the Seller relating to the Goods subject to the claim.

2. In proving the purchase, the proof must legibly specify the following:

a. The date of purchase;

b. The issue date of the receipt or invoice (if applicable);

c. The price of the Goods; and

d. The invoice number or receipt number;

iv. If the Goods were delivered to the Buyer, the claim must contain the original Delivery Docket proving the Buyer’s receipt of the Goods.

1. The Delivery Docket must legibly specify the following:

a. The date of delivery or the date of receipt of delivery;

b. Specific reference to the Buyer’s order for Goods; and

c. The delivery number or code.

v. The Goods must be returned to the Seller in the original packaging and in the same condition it was received by the Buyer;

vi. The Goods must be in clean condition;

vii. The Buyer will be responsible for the cost of shipping in returning the Goods; and

viii. The claim must be in compliance with Paragraph 15.

b. A claim for exchange of product, store credit, warranty, or refund may only be accepted if the Buyer received the Goods in defective or damaged condition.

c. A claim for exchange of product, store credit or warranty is only considered if it is received by the Seller within 14 days after the Buyer has received the Goods.

d. A claim for refund is only considered if it is received by the Seller within 30 days after the Buyer has received the Goods.

e. Claims for exchange of product or store credit are limited to the purchase value of the Goods.i. If the Buyer wishes to exchange their purchased Goods for a product that exceeds the value of their claim, then the Buyer is responsible for the payment of the excess value.

f. Claims for refund on Goods in unused condition will unequivocally subject the Buyer to a restocking fee equivalent to 15% of the value of the Goods, payable to the Seller.

g. Claims made in contravention to Paragraph 15(a)(xii) of the Terms will unequivocally subject the Buyer to a handling fee equivalent to 40% of the value of the Goods, payable to the Seller

h. If the Goods were purchased by the Buyer as a gift, the gift recipient can make a claim for store credit equivalent to the value of the gifted Goods.

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15. Returns Policy

a. Subject to the Terms, claims for exchange of product, store credit, warranty, or refund will not be recognised where:

i. The Goods are made to special order or custom-made;

ii. The Goods are made to the Buyer’s specifications or drawings;

iii. The Goods are no longer required by the Buyer but remain of fit for purpose;

iv. The Goods are damaged by fitment error;

v. The Goods are damaged in transit to the Buyer;

vi. The Goods have survived past their warranty period;

vii. The claim is not made in compliance with Paragraph 14(a) of the Terms;

viii. The Buyer purchased the Goods for their resupply or resale;

ix. The Buyer has changed their mind about the Goods and the Goods remain fit for purpose;

x. The Buyer purchased the incorrect Goods;

xi. The Buyer has used the Goods for competitive purposes;xii. The Buyer has rendered the Goods to be of unacceptable quality by their improper or incorrect use of the Goods;

xiii. The Buyer has rendered the Goods to be of unacceptable quality by their operation of the Goods beyond the scope of purpose or expectation of the original manufacturer;

xiv. The Buyer has rendered the Goods to be of unacceptable quality by their negligent operation or care of the Goods;

xv. The Buyer has rendered the Goods to be of unacceptable quality by their negligent or wilful contravention of the instructions provided with the Goods on its safe and proper operation;

xvi. The Buyer has rendered the Goods to be of unacceptable quality by their wilful damage or desecration of the Goods;

xvii. The Buyer has rendered the Goods to be of unacceptable quality by their modification, tampering, or alteration of the Goods;

xviii. The Buyer has modified, tampered, or altered the Goods (including cosmetic and aesthetic alterations);

xix. The Buyer purchased the Goods from the Seller at a Sale Price or Discounted Price; or

xx. The Seller’s catalogue specifies that returns on the Goods will not be accepted for any reason of the Seller’s discretion.

 

16. Breach by the Buyer

a. If the Buyer breaches a Contract or the Seller is not satisfied of the Buyer’s ability to pay or otherwise comply with each Contract, the Seller reserves their rights to the following without compensation to the Buyer:

i. Terminate every Contract;

ii. Suspend or cease deliveries under all Contracts;

iii. Set-off all deposits against amounts due; andiv. Render all outstanding accounts to be immediately due and payable.
 

17. Waiver

a. The Seller’s right under the Contract are cumulative and in addition to any other rights. No delay or failure by the Seller to enforce any right is a waiver for that right. Any waiver by the Seller of any term or breach of the Contract is not to be taken as a continuing waiver or a waiver of any subsequent breach.