McCormack's 4WD Terms & Conditions

  1. INTERPRETATION

In these Terms and Conditions of Sale (“Terms”),”Goods” means the goods the subject of the Contract; “MCCORMACKS 4WD” means the entity selling the Goods; “Buyer” means the entity purchasing the Goods; “Contract” means each contract between MCCORMACKS 4WD and Buyer for the sale and purchase of Goods and “order” includes” offer”.

  1. TERMS AND CONDITIONS

The only terms of the Contract are those agreed to in writing by MCCORMACKS 4WD. These Terms (to the extent they are not inconsistent with terms agreed to in writing by MCCORMACKS 4WD) and those which are implied or imposed by law (including the Trade Practices Act 1974 Cth)) to the extent that it is not lawful or possible to exclude them. All other terms, conditions and warranties are expressly excluded. lf a conflict arises between the terms of any order made by Buyer and these Terms, these Terms will prevail. An agreement to deliver the Goods in instalments is taken to be a separate Contract for each instalment. These Terms and each Contact including them are governed by the laws of Queensland and MCCORMACKS 4WD and Buyer submit to the jurisdiction of the courts of that State. lf a term is held to be unenforceable, the remaining terms will apply.

  1. QUOTATIONS AND ORDERS

Any quotation made by MCCORMACKS 4WD will not be construed or operate as an offer or obligation to sell. MCCORMACKS 4WD reserves the right to accept or reject in its absolute discretion any order received by it. Buyer will not be entitled to cancel or refuse delivery of, or payment for, any order made by it which has been accepted by MCCORMACKS 4WD.

  1. PRICE

The price payable to MCCORMACKS 4WD by Buyer for the Goods will be the price agreed; failing which it will be the price prevailing at the date the Goods are dispatched by MCCORMACKS 4WD for delivery to Buyer. Prices are payable in Australian currency and exclusive of delivery costs, taxes, duties and other imposts which, if chargeable, are payable by Buyer. Prices quoted in any MCCORMACKS 4WD pricelist are suggested prices only and may be changed by MCCORMACKS 4WD without notice.

  1. PAYMENT

Buyer must pay cash for the Goods on delivery or, at MCCORMACKS 4WD’s absolute discretion, strictly within 7 days of delivery. MCCORMACKS 4WD will appropriate payments first to outstanding interest and then to outstanding accounts in the date order rendered.

  1. OVERDUE AMOUNTS

If the Buyer fails to pay all or part of any amount to MCCORMACKS 4WD when due, interest will be payable on that amount from its due date until it is paid in full at a rate equivalent to 2% per annum above the overdraft rate from time to time charged to MCCORMACKS 4WD by its principal banker.

  1. DELIVERY

MCCORMACKS 4WD will make all reasonable efforts to deliver the Goods on the dates agreed, to the place or carrier designated by Buyer. MCCORMACKS 4WD has the right to make delivery in instalments and to deliver those Goods available for delivery. Buyer has no right to terminate the Contract because of a delay in delivery.

  1. WARRANTY

MCCORMACKS 4WD warrants that its products are manufactured to S.A.E.- Society of Automotive Engineers – specifications for the particular product. MCCORMACKS 4WD further warrants that all products sold here under are free from defects in material and workmanship.

MCCORMACKS 4WD will, at its sole option, repair or replace any products supplied by it which are found to be defective in either materials or workmanship providing that MCCORMACKS 4WD is actually notified in writing from Buyer of the alleged defect within ninety (90) days from the date of invoice. Any claim not made within this period shall conclusively be deemed waived by the Buyer. Repair or replacement is preconditioned on the examination of the goods by MCCORMACKS 4WD and, if requested by MCCORMACKS 4WD return of the goods to MCCORMACKS 4WD.

 

No Products are to be returned to MCCORMACKS 4WD without its written consent, according to procedures outlined in this manual, and the receipt by the Buyer of specific shipping instructions. MCCORMACKS 4WD shall not be liable for any expense incurred by Buyer in order to remedy any defect in its products. MCCORMACKS 4WD shall not be liable for any consequential, special, in direct or contingent damage or expense arising directly or indirectly from any defect in its products or from use of any products. This warranty does not apply to (1) Goods bought for industrial, mining or agricultural use, (2) Goods bought for resupply or resale, (3) Goods no longer required by Buyer, (4) Goods incorrectly chosen by Buyer; or (5) Goods modified or altered by Buyer (including changing colour).

EXCEPT AS SET FORTH HEREIN, AND EXCEPT AS TO TITLE, IT IS EXPRESSLY AGREED (a) THAT 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 MCCORMACKS 4WD. WITH REFERENCE TO THE GOODS WHICH EXTENDS BEYOND THE SPECIFICATIONS, AGREED UPON BY MCCORMACKS 4WD AND THE BUYER AND (b) THAT THE BUYER IF ANY MUTUALLY ACKNOWLEDGES THAT IT IS PURCHASING THE GOODS SOLELY ON THE BASIS OF THE COMMITMENTS OF MCCORMACKS 4WD. EXPRESSLY SET FORTH HEREIN. NO PERSON IS AUTHORIZED TO CHANGE OR ADD TO ANY OF MCCORMACKS 4WD’S OBLIGATIONS UNDERTHIS WARRANTY IN NO EVENT SHALL MCCORMACKS 4WD BE LIABLE FOR ANTICIPATED PROFITS OR FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.

 

Buyer agrees to indemnify and hold MCCORMACKS 4WD harmless from and against any loss, injury or damage, to person or property, that extends beyond the warranties set forth above, whether the claims against MCCORMACKS 4WD or the damages are incidental or consequential.

 

Accessories / Mining Accessories / Steel Tray (Excluding Winches and ROPS) – 1 Year Warranty.

Winches and ROPS – 3 Years Warranty.

Suspension (Excluding Shackles and Pins) 3 Year 60,000km Warranty

Shackles and Pins – 3 Year Warranty. MCCORMACKS 4WD warrants the original buyer, only when purchased new via authorised MCCORMACKS 4WD resellers and distributors, from date of sale.

 

Product is warranted against defects in material or workmanship that cause the product to perform below the specified limits set by MCCORMACKS 4WD, to the extent that MCCORMACKS 4WD will repair or replace any parts which are found to be defective.

All warranty claims must be submitted via original purchasing store or chain, unless otherwise arranged.

Proof of original purchase must be presented upon request.

 

Products may require to be returned to MCCORMACKS 4WD for assessment or repair. Postage and removal costs involved are not the responsibility of MCCORMACKS 4WD, and may only be considered upon discretion by MCCORMACKS 4WD in the event of such claim being verified.

 

The warranty does NOT apply where, 1) acts of neglect or misuse are evident, 2) product has been modified, 3) vehicles which are modified or not the recommended vehicle of use, 4) used in racing or competition conditions without the prior consent of MCCORMACKS 4WD, 5) used beyond the expectations of the original vehicle manufacturer.

 

Before installation of any product, please ensure you have received the correct parts for your application.

Ordering of the correct parts is the responsibility of the buyer. Return of a product in an un-used condition will attract a 15% restock fee, where MCCORMACKS 4WD is not at fault.

Return of used or soiled product, 1) outside warranty period, 2) without fault, will result in refusal of your claim and be returned at buyer`s expense.

Damage to products through fitment error is not covered under warranty.

  1. DAMAGE

Buyer acknowledges that the Goods leaving MCCORMACKS 4WD’s premises are adequately packed. Claims for damage in transit must be made against the carrier and, while MCCORMACKS 4WD will not accept liability for any damage, details of any claim must be promptly advised to MCCORMACKS 4WD. Prior to acknowledging delivery to the carrier, Buyer must ensure that the complete consignment has been received as specified in the carrier’s note. Any shortage or visible damage to outer packaging must be endorsed on the carrier’s note. Any shortages and/or damages must be reported to MCCORMACKS 4WD within 72 hours or receipt.

  1. TITLE

10.1 Title to the Goods will not pass to Buyer until the earlier of :

 

(a) MCCORMACKS 4WD being paid in full under all Contracts; or

(b) the sale by Buyer of the Goods in its ordinary course of business (in which case Buyer must kept an accurate account of each sale, hold the proceeds of each sale separate from Buyer’s own money and pay MCCORMACKS 4WD in full from the proceeds of the purchase price of each sale despite that the payment is not otherwise due).

 

10.2 Until title to the Goods passes to Buyer,

 

Buyer must:

(a) hold the Goods as bailed for MCCORMACKS 4WD and keep them in good order and condition;

(b) not remove any markings placed by MCCORMACKS 4WD and ensure that the Goods can be readily identified and distinguished from other property in Buyer’s possession; and

(c) deliver the Goods to MCCORMACKS 4WD immediately upon demand and, for this purpose, MCCORMACKS 4WD is authorized to enter at any time any premises on which the Goods may be located (the costs incidental to which will be borne by Buyer).

  1. RISK

Risk in the Goods (including insurance responsibility) passes to Buyer on delivery of the Goods to the place or carrier designated by Buyer or, if sooner, possession of the Goods passes to Buyer or its agent.

  1. IMPLIED TERMS, LIMITATION OF LIABILITY AND BUYERS INDEMNITY

12.1 Subject to Clause 2,

 

MCCORMACKS 4WDs liability for any breach of a condition or warranty imposed or implied by law in respect of any Goods or services which are not of a kind ordinarily acquired for personal, domestic or household use or consumption (provided that this provision does not apply if Buyer establishes that it is not fair or reasonable for MCCORMACKS 4WD to rely on it) will be limited to:

(a) in the case of Goods supplied, any one or more of the following (as MCCORMACKS 4WD may determine):

(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; or

(iv) payment of the cost of having the Goods repaired; and

(b) in the case of services supplied, any one of the following (as MCCORMACKS 4WD may determine);

(i) supplying the services again; or

(ii) payment of the costs of having the services supplied again.

 

12.2 Subject to these Terms,

 

MCCORMACKS 4WD will not be liable for any loss, damage, expense or injury of any kind or nature suffered or incurred by Buyer or any other person, arising out of or in connection with, the Contract (including, without limitation, liability due to negligence or wilful default of MCCORMACKS 4WD and any delay in delivery) or any error (whether negligent or not) in information supplied to Buyer in connection with its subject matter or the use, possession or delivery of the Goods or the exercise by MCCORMACKS 4WD of its rights under Clause 16 and Buyer will indemnify MCCORMACKS 4WD in relation to any such loss, damage, expense or injury.

  1. CLAIMS

Any claim made by Buyer must be in writing and contain the particulars specified in the MCCORMACKS 4WD’s Application for Exchange or Credit” or ‘Applications for Warranty” and be received by MCCORMACKS 4WD within 14 days after delivery of the Goods. Subject to the Contract, no claim for credit will be recognised where;

(1) the Goods are made to special order or Buyer’s specifications or drawings,
(2) are no longer required by Buyer,
(3) are returned without the particulars required by this Clause,
(4) Buyer has modified or altered the Goods (including changing colour) or
(5) if the MCCORMACKS 4WD Catalogue stipulates that return will not be accepted.
lf Buyer insists on returning the Goods, it must pay MCCORMACKS 4WD a handling fee equal to 40% or the price of the Goods.

  1. FORCE MAJEURE

Despite any other term or condition of the Contract, MCCORMACKS 4WD will not be liable for any loss, damage, expense or injury of any kind or nature suffered or incurred by Buyer or any other person, arising out of or in connection with any delay in delivery, or failure to perform any other term or condition of the Contract where that delay or failure is caused by an act of God, fire, labour dispute, civil commotion, intervention of a government, inability to obtain labour, materials or manufacturing facilities, accidents, interruptions of or delay in transportation or any other cause beyond MCCORMACKS 4WD’s reasonable control.

  1. ERRORS OR OMISSIONS

MCCORMACKS 4WD has the right to correct any clerical errors or omissions, whether in computation or otherwise in any quotation, acknowledgment or document forming part of a Contract.

  1. BREACH BY BUYER

If the Buyer breaches a Contract or MCCORMACKS 4WD is not satisfied of a Buyer’s ability to pay or otherwise comply with each Contract, MCCORMACKS 4WD may by notice to Buyer, but without compensation, terminate every Contract, suspend or cease deliveries under all Contracts, set-off all deposits against amounts due and made all amounts then outstanding by Buyer to MCCORMACKS 4WD immediately due and payable.

  1. WAIVER

MCCORMACKS 4WD’s right under the Contract are cumulative and in addition to any other rights. No delay or failure by MCCORMACKS 4WD to enforce any right is a waiver for that right. Any waiver by MCCORMACKS 4WD of any term or breach of the Contract is not to be taken as a Continuing waiver or a waiver of any subsequent breach.