Terms of Trade

1.        DEFINITIONS

1.1.           "MACS" shall mean "KDK Auto Limited trading as Mac’s Auto Clinic and Tyre Services" or any agents or employees thereof.

1.2.           "Customer" shall mean the Customer, any person acting on behalf of and with the authority of the Customer, or any person purchasing products and services from MACS.

1.3.           "Goods" shall mean:

1.3.1.           all Goods of the general description specified on the front of this agreement and supplied by MACS to the Customer; and

1.3.2.           all Goods supplied by MACS to the Customer; and

1.3.3.         all inventory of the Customer that is supplied by MACS; and

1.3.4.           all Goods supplied by MACS and further identified in any invoice issued by MACS to the Customer, which invoices are deemed to be incorporated into and form part of this agreement; and

1.3.5.           all Goods that are marked as having been supplied by MACS or that are stored by the Customer in a manner that enables them to be identified as having been supplied by MACS; and

1.3.6.           all of the Customer's present and after-acquired Goods that MACS has performed work on or to or in which Goods or materials supplied or financed by MACS have been attached or incorporated.

1.3.7.           The above descriptions may overlap but each is independent of and does not limit the others.

1.4.           "Goods" shall also mean all goods, products, services and advice provided by MACS to the Customer and shall include without limitation the supply of motor vehicle parts and all automotive services and repairs, technical advice, breakdown salvage, towing and all charges for labour, hire charges, insurance charges freight or any fee or charge associated with the supply of Goods by MACS to the Customer.

1.5.           “GST” means goods and services tax in terms of the Goods and Services Tax Act 1985, at the rate prevailing from time to time (including any tax levied in substitution for that tax)

1.6.           "Price" shall mean the cost of the Goods as agreed between MACS and the Customer and includes all disbursements e.g. charges MACS pay to others on the Customer's behalf subject to clause 4 of this contract.

2.        ACCEPTANCE

2.1.           Any instructions received by MACS from the Customer for the supply of Goods shall constitute a binding contract and acceptance of the terms and conditions contained herein.

3.        COLLECTION AND USE OF INFORMATION

3.1.           The Customer authorises MACS to collect, retain and use any information about the Customer, for the purpose of assessing the Customer's credit worthiness, enforcing any rights under this contract, or marketing any Goods provided by MACS to any other party.

3.2.           The Customer authorises MACS to disclose any information obtained to any person for the purposes set out in clause 3.1.

3.3.           Where the Customer is a natural person the authorities under clauses 3.1 and 3.2 are authorities or consents for the purposes of the Privacy Act 1993.

4.        PRICE

4.1.           Where no Price is stated in writing or agreed to orally the Goods shall be deemed to be sold at the current amount as such Goods are sold by MACS at the time of the contract.

4.2.           The Price may be increased by the amount of any reasonable increase in the cost of supply of the Goods that is beyond the control of MACS between the date of the contract and delivery of the Goods.

5.        PAYMENT

5.1.           Unless otherwise agreed payment for Goods shall be made:

5.1.1.           In full on completion of work or pick up of vehicle;

5.1.2.           Interest may be charged on any amount owing after the due date at the rate of 2.5% per day (cumulative).

5.1.3.           Any expenses, disbursements and legal costs incurred by MACS in the enforcement of any rights contained in this contract shall be paid by the Customer, including any reasonable solicitor's fees or debt collection agency fees.

5.1.4.           Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.

5.1.5.           A deposit may be required.

5.1.6.           Payments made by credit card will attract a surcharge of 3% against the invoiced amount.

6.        QUOTATION OR ESTIMATES

6.1.           Where a quotation or estimate is given by MACS for Goods:

6.1.1.           Unless otherwise agreed the quotation or estimate shall be valid for thirty (30) days from the date of issue; and

6.1.2.           The quotation or estimate shall be exclusive of GST unless specifically stated to the contrary;

6.1.3.           MACS reserve the right to alter the quotation or estimate because of circumstances beyond its control.

6.1.4.           Where Goods are required in addition to the quotation or estimate the Customer agrees to pay for the additional cost of such Goods.

7.        RISK

7.1.           Delivery of Goods shall be deemed complete when MACS gives possession of the Goods directly to the Customer or possession of the Goods is given to a carrier, courier, or other bailee for purposes of transmission to the Customer.

7.2.           All vehicles are stored, worked on and driven solely at the Customer's (owner's) risk. The Customer (owner) is responsible for keeping vehicles insured at all times.

7.3.           A storage fee of $20 per day may apply if

7.3.1.           a vehicle is not picked up or able to be delivered within 48 hours of notification to Customer that work on the vehicle is complete;

7.3.2.           MACS has advised you in advance before agreeing to supply the Customer any Goods.

8.        TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)

8.1.           Title in any Goods supplied by MACS passes to the Customer only when the Customer has made payment in full for all Goods provided by MACS and of all other sums due to MACS by the Customer on any account whatsoever. Until all sums due to MACS by the Customer have been paid in full, MACS has a security interest in all Goods.

8.2.           If the Goods are attached, fixed, or incorporated into any property of the Customer, by way of any manufacturing or assembly process by the Customer or any third party, title in the Goods shall remain with MACS until the Customer has made payment for all Goods, and where those Goods are mixed with other property so as to be part of or a constituent of any new Goods, title to these new Goods shall deemed to be assigned to MACS as security for the full satisfaction by the Customer of the full amount owing between MACS Automotive and Customer.

8.3.           The Customer gives irrevocable authority to MACS to enter any premises occupied by the Customer or on which Goods are situated at any reasonable time after default by the Customer or before default if MACS believes a default is likely and to remove and repossess any Goods and any other property to which Goods are attached or in which Goods are incorporated. MACS shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded. MACS may either resell any repossessed Goods and credit the Customer's account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain any repossessed Goods and credit the Customer's account with the invoice value thereof less such sum as MACS reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.

8.4.           Where Goods are retained by MACS pursuant to clause 8.3 the Customer waives the right to receive notice under s.120 of the Personal Property Securities Act 1999 ("PPSA") and to object under s.121 of the PPSA.

8.5.           The following shall constitute defaults by the Customer:

8.5.1.           Non-payment of any sum by the due date.

8.5.2.           The Customer intimates that it will not pay any sum by the due date.

8.5.3.           Any Goods are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Goods.

8.5.4.           Any Goods in the possession of the Customer are materially damaged while any sum due from the Customer to MACS remains unpaid.

8.5.5.           The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer's assets or a landlord distrains against any of the Customer's assets.

8.5.6.           A Court judgment is entered against the Customer and remains unsatisfied for seven (7) days.

8.5.7.           Any material adverse change in the financial position of the Customer.

9.        SECURITY INTEREST FOR SERVICE PROVIDERS

9.1.           The Customer gives MACS a security interest in all of the Customer's present and after-acquired property that MACS has performed services on or to or in which Goods or materials supplied or financed by MACS have been attached or incorporated.

10.      PAYMENT ALLOCATION

10.1.         MACS may in its discretion allocate any payment received from the Customer towards any invoice that MACS determines and may do so at the time of receipt or at any time afterwards and on default by the Customer may reallocate any payments previously received and allocated. In the absence of any payment allocation by MACS, payment shall be deemed to be allocated in such manner as preserves the maximum value of MACS purchase money security interest in the Goods.

11.      GENERAL LIEN

11.1.         The Customer agrees that MACS may exercise a general lien against any Goods or property belonging to the Customer that is in the possession of MACS for all sums outstanding under this contract and any other contract to which the Customer and MACS are parties.

11.2.         If the lien is not satisfied within seven (7) days of the due date MACS may, having given notice of the lien at its option either:

11.3.         Remove such Goods and store them in such a place and in such a manner as MACS shall think fit and proper and at the risk and expense of the Customer; or

11.4.         Sell such Goods or part thereof upon such terms as it shall think fit and apply the proceeds in or towards discharge of the lien and costs of sale without being liable to any person for damage caused.

12.      DISPUTES

12.1.         No claim relating to Goods will be considered unless made in writing within seven (7) days of delivery.

13.      LIABILITY

13.1.         The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon MACS which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on MACS, MACS liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.

13.2.         Except as otherwise provided by clause 13.1 MACS shall not be liable for:

13.2.1.        Any loss or damage of any kind whatsoever, arising from the supply of Goods by MACS to the Customer, including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Goods provided by MACS to the Customer; and

13.2.2.        The Customer shall indemnify MACS against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of MACS or otherwise, brought by any person in connection with any matter, act, omission, or error by MACS its agents or employees in connection with the Goods.

14.      WARRANTY

14.1.         Manufacturer's warranty applies where applicable.

15.      CONSUMERS GUARANTEES ACT

15.1.         The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Goods from MACS for the purposes of a business in terms of section 2 and 43 of that Act.

16.      PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES

16.1.         If the Customer is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for MACS agreeing to supply Goods and grant credit to the Customer at their request, also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to MACS the payment of any and all monies now or hereafter owed by the Customer to MACS and indemnify MACS against non-payment by the Customer. Any personal liability of a signatory hereto shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in this contract. The signatories and Customer shall be jointly and severally liable under the terms and conditions of this contract and for payment of all sums due hereunder.

17.      MISCELLANEOUS

17.1.         MACS shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.

17.2.         Failure by MACS to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations MACS has under this contract.

If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.