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Macquarrie Corporation Pty Ltd ACN 006 012 880 (“Macquarrie”, “we”, “our” or “us”)
1.1. Subject to clause 24 and upon completion of a Credit Account Application, we may extend credit to you and set a credit limit.
1.2. You are not entitled to credit until we confirm the credit facility in writing.
1.3. We may review your credit arrangements from time to time and, where we reasonably consider that your creditworthiness has materially deteriorated or payment is at risk, reduce or withdraw your credit limit, require payment in advance or reasonable security, or suspend further supply.
1.4. If you exceed your credit limit, you remain liable for all amounts owing to us.
2.1. Our Terms and Conditions, the original Credit Account Application and any Guarantees govern the entire relationship between Macquarrie, the Customer and the Guarantors in connection with the provision of our Goods and Services.
2.2. The Customer and the Guarantors acknowledge that they have not relied on any representation, inducement, warranty or promise which is not set out in our Terms and Conditions, the original Credit Account Application and any Guarantees.
2.3 If there is any inconsistency between documents forming an Agreement, the following order of precedence applies: (a) any written variation expressly agreed by Macquarrie; (b) Macquarrie’s Quote or accepted Order; (c) these Terms and Conditions.
3.1. We may update these Terms and Conditions from time to time. Any amendment will apply only to Orders placed after the amended Terms and Conditions are made available to you, unless you expressly agree otherwise. An amendment will not retrospectively vary an Order already accepted by us.
3.2. By placing a written or oral Purchase Order for our Goods and / or Services after we have updated our Terms and Conditions you accept such updated terms and conditions.
4.1. You agree to purchase, and we agree to supply, all Goods and Services subject to these Terms and Conditions.
4.2. You will be bound by these Terms and Conditions upon:
(i) signing this document; and/or
(ii) placing a written or oral Purchase Order for our Goods and/or Services which we accept.
4.3. All invoices in respect of Goods delivered shall be deemed to be accepted as a correct charge if, after 14 days from the date of receipt of the invoice, you raise no objection to the invoice.
4.4. A minimum order value may be implemented and varied from time to time at our sole discretion.
4.5. A deposit may be required at our sole discretion.
5.1. You agree to provide us with immediate written notice upon a change of your corporate details, such as organisation name, ABN, principal place of business, directors, Trustees or a material change in shareholders.
5.2. You acknowledge and agree that:
(i) You will provide all relevant information to enable us to supply the correct Goods or perform the Services in a timely and proper manner.
(ii) We will rely upon the accuracy and completeness of your information, and you hereby warrant to us the accuracy and completeness of all such information.
5.3. If we have provided you with any representations or information in connection with the Goods and Services, you acknowledge that you have conducted your own enquiries and formed your own opinion as to the correctness or appropriateness of such representations or information and the Goods themselves.
5.4. Any specifications or details we provide you with respect to the Goods are our best estimates and any deviation does not entitle you to make any claim against us. Any sample provided is merely to indicate the general nature of the product and we do not warrant that Goods supplied will correspond exactly with any sample or with any previous or future Goods supplied.
5.5. We are not liable for any delay or failure to supply Goods or perform Services to the extent caused or contributed to by your delay, act or omission, including any failure to provide information, materials, access, instructions or approvals reasonably required by us. Any affected delivery date or timeframe will be extended by a period reasonably corresponding to the delay, and you must pay our reasonable additional costs arising from that delay.
6.1. Unless we expressly agree otherwise in writing, you are responsible for determining that the Goods are suitable for your intended application, operating environment and use, including compatibility with any equipment, system or process into which the Goods are incorporated. Any technical assistance, selection guidance or recommendation provided by us is provided to assist you and does not transfer that responsibility to us, subject to any guarantee or liability that cannot lawfully be excluded.
6.2. Where Macquarrie supplies Goods (including Timber Solutions) and agrees to provide Services in connection with those Goods, or otherwise agrees to provide Services, Macquarrie will perform the Services with due care and skill and substantially in accordance with any agreed quotation, scope of work or other written description of the Services. Those Services will be supplied under these Terms and Conditions, including the provisions relating to price and payment, delivery, risk, title, warranties and liability.
6.3. Where Services involve inspection, repair, maintenance, modification or rectification, Macquarrie does not warrant that the Services will identify or rectify any defect, damage or condition that was not reasonably apparent having regard to the nature and agreed scope of the Services, subject always to any guarantee, right or remedy that cannot lawfully be excluded.
6.4. You must ensure that any site at which Macquarrie performs Services is safe and complies with applicable work health and safety requirements, and must disclose any known defect, hazard, contamination, access restriction, special handling requirement or other circumstance that may reasonably affect the safe or proper performance of the Services.
6.5. You must provide Macquarrie and its personnel with safe, timely and reasonable access to the premises, site, Goods and other property on or in relation to which the Services are to be performed, together with all information, instructions, approvals, facilities and assistance reasonably required to perform the Services. Macquarrie is not responsible for delay or additional cost caused by your failure to do so and may extend any affected timeframe and charge reasonable additional costs arising from that failure.
7.1. We may provide you with a Quote for the supply of Goods and/or Services but we are not obliged to supply the Goods and/or Services until an oral or written Purchase Order is placed by you and that Purchase Order is accepted by us.
7.2. All Goods and Services are subject to availability.
7.3. After we accept an Order, we may adjust the price only to reflect an increase in our cost of supply arising from changes in exchange rates, manufacturer or supplier pricing, freight, tariffs, duties, taxes or other external input costs beyond our reasonable control. We will give you reasonable notice of any material increase. If a material increase applies and the affected Goods have not been manufactured, specially ordered or dispatched, you may cancel the affected part of the Order without penalty, other than for reasonable costs already incurred by us that cannot reasonably be avoided or recovered.
7.4. Unless otherwise stated in a Quote, a Quote is valid for 30 days from its date. We may correct any clerical, typographical or obvious error in a Quote or other sales document by giving you notice as soon as reasonably practicable.
8.1. By placing a Purchase Order with us, you are offering to purchase our Goods and/or Services at the price set out in our Quote or otherwise agreed with us, plus any applicable delivery or other charges. We reserve the right to accept or reject your offer. Once accepted, the price may only be adjusted in accordance with clause 7.4.
8.2. If you cancel an Order after we have accepted it, you must pay our reasonable costs and losses arising directly from the cancellation, including non-cancellable supplier or manufacturer charges, freight, labour and materials, to the extent those costs or losses cannot reasonably be avoided or recovered by us.
8.3. We may cancel an Order before delivery where we are unable to supply the Goods or it is no longer reasonably practicable for us to do so due to circumstances beyond our reasonable control. We will give you notice as soon as reasonably practicable and refund any amount paid for the affected Goods. Subject to any rights or remedies that cannot lawfully be excluded, we will not be liable for any loss arising from the cancellation.
8.4. These Terms and Conditions govern every Purchase Order accepted by us. Any terms contained in or attached to your Purchase Order, procurement document, acknowledgement or other document do not vary or override these Terms and Conditions unless we expressly agree to the variation in writing. Any amendment to an accepted Purchase Order requires our written consent.
8.5. Any request by you to change, defer or reschedule an accepted Purchase Order, including any change to specifications, quantities or delivery dates, is subject to our written agreement. You must pay any reasonable additional costs, charges or losses we incur as a result, including supplier or manufacturer charges, freight, handling, restocking, labour and the cost of materials or components that cannot reasonably be reused or cancelled.
9.1. Unless stated otherwise in writing, all prices which we quote or estimate to you are exclusive of GST.
9.2. Where GST is payable on a Taxable Supply, we will provide you with a Tax Invoice and you must pay the GST.
10.1. Delivery of the Goods to a site nominted by you may incur a delivery charge.
10.2. Delivery of the Goods is taken to occur at the time that:
(i) Your nominated carrier takes possession of the Goods from our Premises; or
(ii) We (or our nominated carrier) deliver/s the Goods to a site nominated by you even if you are not present at the site.
10.3. We will use reasonable care to ensure Goods are properly packed and secured for delivery, having regard to the nature of the Goods and the agreed method of delivery.
10.4. Subject to any rights you have under the Australian Consumer Law that cannot be excluded, late or delayed delivery does not of itself entitle you to refuse delivery, terminate the Agreement or claim damages from us.
10.5. We may make partial or instalment deliveries and may invoice each delivery separately. A delay or defect affecting one instalment does not, of itself, entitle you to reject or cancel any other instalment, subject to any right that cannot lawfully be excluded.
10.6. If you fail or refuse to take delivery when the Goods are ready for delivery, we may store the Goods at your risk and charge you our reasonable storage, handling, redelivery and related costs. If the failure continues for a reasonable period after notice from us, we may cancel the affected Order and recover our reasonable resulting loss, subject to applicable law.
11.1. Until you receive written notice from us stating that your credit facility has been granted, you must pay the Amount Due for the Goods or Services in full prior to collection or dispatch from our Premises.
11.2. Where credit has been extended to you, payment must be made within 30 days from the end of the month of the date of the invoice.
11.3 You are required to pay the Amount Due with no deduction or set-off.
11.4 If any Amount Due remains fully or partially unpaid 45 days or more from the end of the month of the date of the invoice, we will require you to pay the entire amount outstanding prior to further Goods being delivered or Services being performed.
We may also in our absolute discretion do any or all of the following:
(i) Reduce or cancel your credit limit;
(ii) Reduce or cancel any of your current orders which remain unfulfilled;
(iii) Cease supply of further Goods or Services;
(iv) Commence legal proceedings;
(v) Notify the relevant credit reporting bodies;
(vi) Terminate this agreement in writing.
11.5. In the event of a dispute, the complete undisputed portion of the Amount Due must be paid to us in full within 30 days from the end of the month of the date of the invoice and the Dispute Resolution clause will apply.
11.6. In the event of non-payment of any undisputed amount 45 days or more from the end of the month of the date of the invoice clause 11.4 applies.
12.1. All payments must be made by either Visa or Mastercard, or electronic online banking.
12.2. Payments must be made without any deduction for fees or charges imposed by your bank and or any third parties.
12.3. Payments other than cash shall not be deemed to be made until that form of payment has been honoured or cleared.
13.1. Apart from legal action initiated by us with respect to the recovery of a debt, if a dispute arises one party must give the other party written notice of the dispute and the parties must make a genuine attempt to identify the issues in dispute and resolve such issues immediately and in a co-operative manner prior to commencing legal or administrative proceedings.
14.1. If you do not pay the Amount Due in full in accordance with these Terms and Conditions, then you must pay to us interest charged at the Commonwealth Bank’s Benchmark Business Lending Indicator Rate, as published from time to time, plus 2% per annum on the balance of the Amount Due for the period from and including the due date for payment until the date that payment of the Amount Due is made in full. You agree that this is a genuine pre-estimate of our loss.
14.2. You agree to pay any costs, charges and expenses incurred by us in exercising our rights to recover the Amount Due including but not limited to mercantile agency fees and commission and legal costs on an indemnity basis in bringing debt recovery proceedings or a claim for breach of these Terms and Conditions.
14.3. You agree to indemnify us from and make good any loss incurred or suffered by us as a result of your failure to pay the Amount Due in full or your breach of these Terms and Conditions.
15.1. Property in and ownership of the Goods shall not pass to you until we have received payment in full of the Amount Due and all other amounts owing to us by you from time to time. For the avoidance of doubt, risk may pass to you before title passes in accordance with clause 16.
15.2. You must store our Goods safely and separately in a manner which clearly identifies such Goods as our property. You must not remove, deface or obliterate any identifying mark, code or number on any of the goods.
15.3. Until title passes, you may use or resell the Goods in the ordinary course of your business, unless you are in default under these Terms and Conditions. You must not otherwise dispose of, encumber or grant a security interest in the Goods without our prior written consent.
15.4. Upon demand you will immediately return the Goods to us and/or allow us, our employees or agents to enter upon any premises where the Goods have been stored (or where we suspect the Goods have been stored) to recover them.
15.5. You hereby indemnify us from and against any liability to any third party in respect of any claims, actions, proceedings, demands, costs, damages and loss arising from us exercising our rights under this clause.
15.6. If, in breach of this clause, you sell or on-supply any Goods prior to paying the Amount Due and any other outstanding amounts owing to us by you from time to time, you hereby acknowledge that you are holding all proceeds of such sale or on-supply on trust for us as our fiduciary agent until your liability to us is fully and finally discharged.
16.1. Risk in the Goods passes to you when the Goods are dispatched from our premises, including during transit, whether delivery is arranged by us, you or a third party.
16.2. Title to the Goods does not pass to you until we have received payment in full of all amounts owing to us.
16.3. Until title passes, you hold the Goods subject to our rights under these Terms and Conditions and the PPSA.
16.4. You must insure the Goods from the time risk passes for their full replacement value.
16.5. To the extent permitted by law, we are not responsible for loss of or damage to the Goods after risk has passed, except to the extent caused by our breach, negligence or other liability that cannot lawfully be excluded.
17.1. In this clause, capitalised expressions have the meaning given to them in the PPSA. These Terms and Conditions constitute a Security Agreement and you grant us a Security Interest in all Goods supplied by us to you on credit and their proceeds. We may register and maintain that Security Interest, including as a Purchase Money Security Interest (PMSI), on the Personal Property Securities Register.
17.2. You consent to any registration required to perfect or maintain our Security Interest and must promptly do anything reasonably required by us for that purpose. You must not register, or permit another person to register, a Security Interest over the Goods or their proceeds without our prior written consent. You must reimburse us for our reasonable costs of registration and enforcement.
17.3. To the extent permitted by the PPSA, you waive your right to receive any verification statement and agree that the provisions of the PPSA which may be excluded by agreement between the parties, including the provisions specified in section 115(1), will not apply to the enforcement of our Security Interest.
17.4. To the extent permitted by law, neither party will disclose information of the kind referred to in section 275(1) of the PPSA except where disclosure is required by the PPSA or another law.
18.1. All right, title and interest in intellectual property rights in or relating to the Goods and Services, including product technology, software, firmware, formulations, specifications, designs, documentation, know-how, trade secrets and any improvements or developments to them, remain owned by us or our licensors, manufacturers or suppliers. Except as expressly provided in these Terms and Conditions or agreed by us in writing, no ownership of those intellectual property rights passes to you.
18.2. Nothing in these Terms and Conditions affects either party’s ownership of intellectual property owned or developed independently of the supply of the Goods or Services. To the extent we create any new intellectual property in performing the Services, we own that intellectual property unless otherwise agreed by us in writing.
18.3. You grant us and our contractors a non-exclusive, royalty-free licence to use any materials, information, designs, specifications or other intellectual property you provide to us to the extent reasonably necessary for us to supply the Goods or perform the Services. You warrant that you have the rights necessary to provide those materials and grant that licence.
18.4. Nothing in these Terms and Conditions prevents us from using or owning any ideas, learnings, methods, concepts, techniques, processes, know-how or general skills developed or acquired in connection with supplying the Goods or Services, or from providing similar goods or services to other customers.
18.5. You must not, and must not permit or assist any other person to:
(a) copy, reproduce, modify, adapt, decompile, disassemble, reverse engineer or otherwise attempt to derive the composition, source code or underlying structure of any Goods, software or other materials supplied by us, except to the extent permitted by law;
(b) challenge, contest or oppose any intellectual property rights owned by us or our licensors, manufacturers or suppliers;
(c) use any trade mark, name or logo associated with the Goods or Services except as authorised by us; or
(d) disclose or use our confidential information except as authorised by us or required by law.
19.1. You must keep confidential and use only for the purposes of purchasing, operating or receiving Services in relation to the Goods any non-public commercial or technical information we provide to you, including pricing, drawings, specifications, manuals, designs and know-how. You must ensure your employees, contractors and representatives do the same and, on request, return or destroy that information, except where disclosure or retention is required by law.
20.1. Where Goods include controllers, displays, programmable components, software or firmware, any software or firmware supplied with or embedded in the Goods is licensed, not sold. Ownership of that software or firmware and all associated intellectual property remains with us or the relevant manufacturer or third-party licensor. Subject to these Terms and any applicable third-party licence terms, you are granted a royalty-free, non-exclusive, non-transferable, non-sublicensable licence to use that software or firmware solely in connection with the relevant Goods and for its intended purpose. Unless otherwise expressly permitted by us or the relevant licensor in writing, you must not copy, reproduce, modify, adapt, translate, create derivative works from, decompile, disassemble, reverse engineer, sell, rent, lease, distribute, sublicense or otherwise transfer that software or firmware or any right to access or use it, except to the extent such restriction is prohibited by law.
20.2. Unless expressly agreed by us in writing as part of the agreed scope, you are responsible for determining the suitability and compatibility of the Goods, software, firmware, configuration and control logic for your overall machine, system, network, engine, PLC, sensors, hydraulic system, operating environment and intended application.
20.3. To the extent permitted by law, we are not responsible for failure, malfunction, loss or damage to the extent caused or contributed to by programming, configuration, calibration, parameter or setpoint changes, modification, integration or repair undertaken by you or a third party, or by third-party equipment, software, networks or components outside our agreed scope.
20.4. Where Macquarrie agrees to provide programming, configuration, calibration, commissioning, integration or testing Services, we will perform those Services with due care and skill and substantially in accordance with the agreed scope. You must provide accurate and complete operating requirements, specifications, control philosophy, safety parameters, interfaces and other information reasonably required by us.
20.5. Unless expressly included within our agreed scope, you remain responsible for the safety and regulatory compliance of the overall machine, plant or system in which the Goods are installed, including appropriate risk assessments, guarding, emergency stops, independent safety controls, functional safety measures and ensuring that operators are appropriately trained and competent.
20.6. Where Goods or Services rely on telecommunications, internet connectivity, cloud platforms, satellite services, third-party networks or other external services, availability and performance may depend on those third-party services. Unless expressly agreed otherwise in writing, we do not warrant uninterrupted or continuous connectivity or availability and are not responsible for an interruption or failure to the extent caused by a third-party service or network.
20.7. You are responsible for maintaining reasonable security of credentials, networks, devices and systems under your control that connect to or interact with the Goods. You must not provide unauthorised access to Macquarrie software, firmware or remote access functionality.
20.8. We may provide software or firmware updates, patches, revised configurations, substitute components or superseding products from time to time. Subject to any agreed specification and rights that cannot lawfully be excluded, we may make such changes provided they do not materially adversely affect the agreed functionality of the relevant Goods.
21.1. We may use artificial intelligence, machine learning and other automated tools (AI System/s) in connection with our business and the supply of Goods or Services, including to assist with design, engineering, programming, configuration, analysis, diagnostics, documentation, administration and customer support.
21.2. Where we use an AI System in providing Goods or Services, we remain responsible for our obligations under these Terms and Conditions and will apply reasonable human oversight and quality assurance appropriate to the nature and risk of the relevant use.
21.3. Unless expressly agreed otherwise in writing, our use of an AI System does not transfer to you any ownership of the AI System, model, software, prompts, workflows, methodologies, know-how or other underlying technology used by us. Your rights in any deliverable supplied by us remain subject to clause 18 (Intellectual property) and any applicable third-party terms.
22.1. Goods are not supplied on a sale or return basis.
22.2. Subject to clause 22.5, Goods may only be returned for credit with our prior approval and must:
(a) be returned within 30 days of the Invoice date;
(b) be accompanied by a copy of the relevant Invoice, clearly stating the reason for return and the Return Authorization (RMA Number) issued by us by email; and
(c) be in their original packaging and in a saleable condition.
22.3. We will not accept or provide credit for any Goods returned or left with us without our prior approval and a valid RMA Number. Any approved return is subject to a minimum handling fee of 15% of the price of the returned Goods.
22.4. Any return of Goods due to change of mind is at our discretion and subject to the requirements of this clause 22.
22.5. Specially ordered, manufactured, modified, configured or programmed Goods may not be returned unless we agree otherwise in writing, subject to any rights or remedies that cannot lawfully be excluded.
22.6. If we arrange delivery, you must inspect the Goods against the delivery docket and verify that the Goods delivered are those ordered by you. You must notify us of any discrepancy or error within 24 hours of delivery.
23.1. You hereby indemnify us and our directors, contractors and agents against any loss, claim, demand, suit, action or proceeding brought against us or them arising from any breach of these Terms and Conditions to the extent caused by you or from your misuse of our goods.
24.1. To the extent that a party is bound by the Privacy Act 1988 (Cth) or any other applicable privacy laws or codes, it will comply with those laws and codes when accessing, collecting, storing, using or otherwise handling Personal Information in connection with these Terms and Conditions.
24.2. The Customer and/or the Guarantor/s (herein also referred to as Customer) agree for Macquarrie to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by Macquarrie.
24.3. The Customer agrees that Macquarrie may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(i) To assess an application by Customer; and/or
(ii) To notify other credit providers of a default by the Customer; and/or
(iii) To exchange information with other credit providers as to the status of the credit account, where the Customer is in default with other credit providers; and/or
(iv) To assess the creditworthiness of Customer.
24.4. The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
24.5. The Customer consents to Macquarrie being given a consumer credit report for the purposes outlined in section 18K(1) of the Privacy Act 1988.
24.6. The Customer agrees that personal credit information provided may be used and retained by Macquarrie for the following purposes and for other purposes as shall be agreed between the Customer and Macquarrie or permitted by law from time to time:
(i) Provision of Goods and Services; and/or
(ii) marketing of Goods and Services by Macquarrie, its agents or distributors; and/or
(iii) analysing, verifying and/or checking the Customer’s credit, payments and/or status in relation to the provision of Goods and Services; and/or
(iv) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and/or
(v) enabling the daily operation of Customer account and/or the collection of the amounts outstanding in the Customer’s account in relation to the Goods or Services.
24.7. Macquarrie may give information about the Customer to a credit reporting agency for the following purposes:
(i) To obtain a consumer credit report about the Customer;
(ii) Allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
24.8. The information given to the credit reporting agency may include:
(i) Personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s license number);
(ii) Details concerning the Customer’s application for credit or commercial credit and the amount of credit requested;
(iii) Advice that Macquarrie is a current credit provider to the Customer;
(iv) Advice of any overdue accounts, loan payments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(v) That the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(vi) Information that, in the opinion of Macquarrie, the Customer has committed a serious credit infringement or shown an intention not to comply with the Customer’s credit obligations;
(viii) That credit provided to the Customer by Macquarrie has been paid or otherwise discharged.
25.1. Subject to these Terms and Conditions and any rights or remedies that cannot lawfully be excluded, we warrant that new Goods manufactured by us will be free from defects in materials and workmanship under normal use and service for 12 months from the date of sale, and commissioning and installation Services performed by us will be free from defects in workmanship for 3 months from completion. To the maximum extent permitted by law, we do not provide any warranties for Software Products which are supplied on an “as is” basis.
25.2. For new Goods manufactured by a third party, any express warranty is limited to the applicable manufacturer’s or supplier’s warranty and, unless otherwise specified, applies for 12 months from the date of sale, subject always to any rights or remedies that cannot lawfully be excluded.
25.3. Our express warranty applies to the original purchaser only and is conditional on the Goods being properly installed, operated, serviced and maintained in accordance with the manufacturer’s recommendations and specifications.
25.4. Any repaired or replaced part carries only the unexpired portion of the original express warranty period, and any replaced part becomes our property if we request its return.
26.1. Subject to any rights or remedies that cannot lawfully be excluded, if Goods are defective, we may, at our option, repair or replace the Goods, supply equivalent Goods, provide a credit to your Credit Account or refund the price paid.
28.1. We will perform Services with due care and skill. To the extent permitted by law, our liability for Services is limited, at our option, to supplying the Services again or paying the reasonable cost of having them supplied again.
28.1. If you leave any Goods or other property with us for inspection, repair or other Services and fail to collect them when requested, we may store, retain, sell or otherwise dispose of them in accordance with applicable law. You are responsible for our reasonable storage and disposal costs to the extent permitted by law.
29.1. Subject to the Australian Consumer Law and any other rights that cannot lawfully be excluded, information, specifications, samples, advice and recommendations provided by us are given in good faith and are indicative only. Minor variations that do not materially affect the use or performance of the Goods do not entitle you to reject them.
29.2. To the extent permitted by law, we are not liable for any indirect, incidental, special or consequential loss arising from the Goods or Services, including loss of production or output, downtime, business interruption, loss of use, contracts, anticipated savings, revenue or profit, or the cost of substitute equipment, facilities or services.
29.3. To the extent permitted by law, our aggregate liability arising out of or in connection with any particular Order, Goods or Services, whether in contract, tort (including negligence), statute or otherwise, is limited to the amount paid or payable to us for the Goods or Services giving rise to the claim.
29.4. Nothing in these Terms and Conditions excludes, restricts or limits any liability, guarantee, right or remedy that cannot lawfully be excluded, restricted or limited.
30.1. If you are entering into these Terms and Conditions as the Trustee of a trust (either corporate or personal), then you warrant and represent to us that:
(i) The Trustee will be liable to us personally / directly as well as in its capacity as Trustee;
(ii) all of the powers and discretions conferred on the Trustee by the trust deed are capable of being validly exercised by the Trustee and have not been varied or revoked and the relevant trust is a valid and subsisting trust;
(iii) The Trustee is the sole trustee of the trust and has full and unfettered power under the trust deed to enter into these Terms and Conditions and that these Terms and Conditions are being executed and entered into as part of the due and proper administration of the trust for the benefit of the beneficiaries of the trust;
(iv) That you will immediately advise us of any change of Trustee; and
(v) no restrictions on the Trustee’s right of indemnity out of, or lien over, the trust’s assets exist or will be created or permitted to exist and that right will have priority over the right of the beneficiaries to the trust’s assets.
31.1. Either party may terminate this agreement on 30 days’ notice in writing.
31.2. Either party may terminate this agreement on 10 Business Days’ notice in writing if that party commits a breach of this agreement and does not rectify the breach within 5 Business Days of receiving written notice of the breach.
31.3. To the extent permitted by law, we may immediately suspend supply or terminate this Agreement by written notice if you become insolvent, are unable to pay your debts as and when they fall due, or we have reasonable grounds to believe you are unwilling or unable to pay amounts owing or to become owing to us. Termination or suspension does not affect any accrued rights or your obligation to pay amounts already due.
32.1. These Terms and Conditions are governed by the laws of Victoria, Australia. We have the exclusive right to nominate any jurisdiction in which any legal action is to be commenced and conducted.
33.1. Our records are prima facie evidence about the Amount Due;
33.2. You may not assign any of your rights under these Terms and Conditions without our written authorisation;
33.3. A waiver by us of any rights arising due to any breach, default or omission is only effective if it is in writing and shall not be deemed to be a waiver of any other unspecified rights.
33.4. If any provision of these Terms and Conditions shall be invalid, void, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
33.5. Neither party is liable for delay or failure to perform to the extent caused by an event beyond its reasonable control, including natural disaster, fire, flood, war, terrorism, civil unrest, epidemic or pandemic, cyber incident, industrial action, government action or restriction, import or export restriction, port or transport disruption, shortage of transport, materials, components or energy, or delay or failure by a manufacturer, OEM or other supplier caused by such an event. We may suspend or delay affected supply and, where available supply is insufficient, allocate available Goods among customers on a reasonable basis. This clause does not excuse an obligation to pay an amount already due.
33.6. You warrant that you have the authority to enter into this agreement and have obtained all necessary internal authorisations to allow you to do so.
34.1. Headings do not affect interpretation. All references to the singular includes the plural and vice versa. Person includes a firm or body corporate, an incorporated body, association or authority. A reference to a person includes its executors, administrators, successors and permitted assigns. And where two or more persons are a party, they are bound jointly and severally.
In these Terms and Conditions:
(i) Agreement means the contract of sale formed by the Credit Application and these Terms and Conditions.
(ii) “AI System” has the meaning given to it in clause 21.1.
(iii) “Amount Due” means any amount properly payable by you to us under an Agreement, Order or invoice, including any applicable interest, fees, charges and costs recoverable under these Terms and Conditions.
(iv) “Customer” means the applicant, which may be a company, partnership, sole trader or trustee.
(v) “Goods” means any goods and/or prototypes we have supplied to you or will supply to you in the future;
(vi) “GST” has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999;
(vii) “Guarantor” means the persons named in any corresponding Guarantee and Indemnity.
(viii) “Nominated Account” means the bank account nominated by you in the direct debit request form;
(ix) “Personal Information” has the meaning defined in the Privacy Act 1988 (Cth) and refers to that Personal Information that is transferred by either party to the other party or acquired by either party for the purposes of this Agreement, if any;
(x) “Purchase Order” / “Order” means an oral or written purchase order placed in accordance with our usual course of business;
(xi) “Quote” means a verbal or written estimate of the amount to be charged by us;
(xii) “Services” means any Services we are to supply or have supplied to you.
(xiii) “Supplier” means any third-party supplier of the Goods to Macquarrie.
(xiv) “Tax Invoice” and “Taxable Supply” have the same meaning as in the A New Tax System (Goods and Services Tax) Act1999;
(xv) “Terms and Conditions” means these Terms and Conditions and any amendments to these Terms and Conditions.
(xvi) “You” means the Customer.