Terms and Conditions

1  Definitions

In these Terms:

ACL means the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth);

Agreement means an agreement for the provision of Goods by MTW to the Customer that is formed pursuant to clause 2.2;

Background IP means, in respect of an Agreement, those IP Rights owned by a party which are in existence prior to the commencement of that Agreement;

Balance means the Price less the Deposit.

Consequential Loss means loss of expected savings, loss of profit, loss of revenue, loss of goodwill, lost or delayed production, increased financing costs, downtime, business interruption costs, or any consequential, special or indirect loss or damage, whether or not the possibility or potential extent of the loss or damage was known or foreseeable, howsoever arising;

Consumer has the meaning given in the ACL;

Customer means the person, jointly and severally if more than one, acquiring Goods from MTW as specified on the Quote; 

Customer Specifications has the meaning given to that term in clause 2.5(a);

Deposit means that part of the Price which must be paid by the Customer upon acceptance of the Quote, in the amount set out in the Quote.

Goods means goods supplied by MTW to the Customer as specified in the Quote;

GST has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 as amended;

Improvements means any developments, changes, modifications or additions to the Specifications which are created or developed by or for the Customer during or as a result of MTW manufacturing or procuring the manufacture of the Goods under an Agreement;

Incidental Work means any product or work created by MTW or for the Customer during or as a result of providing services to the Customer under an Agreement which are created simply to assist the MTW in the development or manufacture of the Goods;

Insolvency Event means where a party is an individual, and commits an act of bankruptcy, has a bankruptcy petition presented against it or is made bankrupt; or is a corporation, and is, or declares that it is insolvent, or is unable to pay its debts as and when they fall due or has a liquidator appointed to it;

IP Rights means statutory and other proprietary rights in respect of trade marks, designs, patents, circuit layouts, copyright, confidential information, know how, manufacturing processes, circuit layouts and all other rights with respect to intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation of July 1967;

Loss means any loss, expense, cost or damage of any kind and includes a fine or penalty imposed by a statutory or other authority;

MTW means New Hope Trading Pty Ltd ACN 645 001 421 t/as Magic Trailers World ABN 78 645 001 421;

MTW Specifications has the meaning given to that term in clause 2.5(b);

PPSA means the Personal Property Securities Act 2009 (Cth) as amended;

Price means the price for the Goods as specified in the Quote;

Quote means MTW’s written quote for the Goods (and which may be provided electronically);

Related body corporate has the meaning given in the Corporations Act 2001 (Cth);

Specifications means the Customer Specifications or the MTW Specifications; and

Terms means these Terms and Conditions of Sale.

2 Basis of Agreement

2.1 Unless otherwise agreed by MTW in writing, these Terms apply exclusively to every Agreement formed between MTW and the Customer for the manufacture and supply of Goods and cannot be varied or replaced by any other conditions, including the Customer’s terms and conditions (if any).

2.2 An Agreement between MTW and the Customer for the supply of Goods is formed when the Customer accepts, in writing or by email, a Quote, provided the Customer’s acceptance does contain additional or varied terms or Price to those set out in the Quote.

2.3 A Quote issued by MTW is open for acceptance within the period stated in the quotation or 30 days if no period is stated.

2.4 The Quote will be in writing and contain the Specifications of the Goods to be supplied and details of any special requirements.

2.5 The Customer may:

(a) supply its own specifications for the manufacture of the Goods comprising drawings, plans, designs, illustrations and descriptive matter (Customer Specifications); or 

(b) request MTW to design and develop specifications for the manufacture of the Goods comprising drawings, plans, designs, illustrations and descriptive matter, based on instructions given by the Customer to MTW (MTW Specifications). 

2.6 Each Agreement incorporates the Quote,  the Specifications and these Terms.

2.7 If there is any inconsistency between these Terms, the Quote and the Specifications , the inconsistency must be resolved in accordance with the following order of priority: (a) the Quote, (b) the Specifications, and (c) the Terms.

2.8 MTW may vary these Terms by written notice to the Customer at any time. Any variations will apply to all Quotes accepted after the notice date.

3 Prices

3.1 Unless otherwise specified in the Quote, Prices contained in the Quote exclude GST), any other taxes or duties imposed on or in relation to the Goods, and costs associated with delivery of the Goods to the Customer.

3.2 If the Customer requests any variation to an Agreement, or if there is any change in the costs incurred by MTW in relation to the Goods, including due to increased costs of labour or materials, fluctuating currency exchange rates, freight insurance and customs or primage duties prior to a Quote being accepted, MTW may vary its Price to take account of any such change, by notifying the Customer in writing. MTW is under no obligation to supply the Goods unless and until the Customer accepts the Price variation.

4 Payment

4.1 The Customer must pay the Price as follows:

(a) the Deposit, at the time the Quote is accepted; and

(b) the Balance, before delivery of the Goods.

4.2 All payments must be made by direct debit to MTW’s nominated account in accordance with details set out on MTW’s invoices. 

5 Payment Default & Termination

5.1 If the Customer defaults in payment by the due date of any amount payable to MTW or otherwise breaches the Agreement or suffers an Insolvency Event, all money payable by the Customer to MTW on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and MTW may, without prejudice to any of its other rights:

(a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) for the period from the due date until the date of payment in full;

(b) charge the Customer for, and the Customer must indemnify MTW from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with an Agreement or to recover any Goods;

(c) enforce any security interests in Goods held by the MTW; and/or

(d) cease or suspend supply of any further Goods or the provision of credit facilities to the Customer.

5.2 Either party may terminate an Agreement:

(a) immediately on written notice to the other party where either party has a liquidator appointed to it; or

(b) on 14 days written notice where the other party is breach of its obligations under an Agreement and such breach is not remedied within 30 days of written notice that specifies the breach.

5.3 The Customer may terminate this Agreement at any time before MTW gives notice to the Customer that the Goods are ready to be collected. If the Customer terminates this Agreement:

(a) MTW will be entitled to retain the Deposit received from the Customer;

(b) with MTW’s approval in writing, if the Goods the subject of this Agreement were stock products (not custom made for the Customer), the Customer may elect to order new goods which are in stock and available for sale by MTW, and apply that Deposit towards those other goods ordered by the Customer.

5.4 MTW may terminate this Agreement by notice to the Customer at any time before the Customer has collected the Goods. If MTW cancels the Customer’s order pursuant to this clause, MTW will refund to the Customer the Deposit paid by the Customer. Return of the Deposit will be the Customer’s sole and exclusive remedy for such termination. 

5.5 Termination of an Agreement does not affect the rights of a party which accrued prior to the effective date of termination.

6 Passing of Property

6.1 Until MTW receives full payment in cleared funds of all amounts owing to it by the Customer (including for all Goods supplied by it to the Customer):

(a) title in all Goods remains with MTW;

(b) the Customer must hold the Goods so they can be identified as the property of MTW (including by maintaining MTW's labelling and packaging) and keep the Goods separate from its goods;

(c) the Customer must hold the proceeds of any sale of the Goods on trust for MTW in a separate account with a bank to whom the Customer has not given security;

(d) MTW may without notice, lawfully enter any premises where it suspects the Goods are and remove them, notwithstanding that they may have been attached to other goods or property and for this purpose the Customer irrevocably licences MTW to enter such premises and indemnifies MTW from and against all costs, claims, demands or actions by any party arising from such action.

7 PPSA

7.1 For the purposes of these Terms:

(a) terms used in clause 7 that are defined in the PPSA have the same meaning as in the PPSA;

(b) these Terms are a security agreement and MTW has a purchase money security interest in all present and future Goods supplied by MTW to the Customer and the proceeds of the Goods received by the Customer;

(c) the security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer to MTW at any particular time; and

(d) the Customer must do whatever is necessary (including executing all documents) in order to give effect to the security interest created under an Agreement (including procuring any third party to take all necessary steps as MTW may at any time require).

7.2 Where permitted by the PPSA, the Customer:

(a) waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132 135 and 157 of the PPSA; and

(b) agrees that (i)  the provisions of Chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on MTW will apply only to the extent that they are mandatory; (ii)  where MTW has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply; and (iii)  pursuant to section 275(6) of the PPSA, neither MTW nor the Customer is required to disclose to an interested person information regarding MTW’s security interest.

7.3 The Customer must not, without the prior written consent of MTW:

(a) register a financing statement or a financing change statement in relation to the Goods pursuant to the PPSA;

(b) make a demand to alter the financing statement in relation to the Goods pursuant to section 178 of the PPSA; or

(c) grant any security interest, lien or other right over the Goods (of any of them).

7.4 MTW may allocate amounts received from the Customer in any manner MTW determines.

8 Risk and Insurance

8.1 Risk in the Goods and all insurance responsibility for theft, loss, damage or otherwise will pass to the Customer immediately on collection of Goods to the Customer. MTW strongly recommends that the Customer takes out a comprehensive insurance package to cover the Goods themselves and the fit-out (including electrical components), public and products liability insurance and business interruption insurance.  

9 Performance of Agreement

9.1 Any period or date for delivery of Goods stated by MTW is an estimate only. MTW will use its reasonable endeavours to meet any such estimate but will not be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated delivery date.

10 Delivery/Collection

10.1 MTW will notify the Customer the Goods are ready to be collected. 

The Customer must collect the Goods within 14 days of receiving notice from MTW pursuant to clause 10.1. If a third party will be collecting the Goods on behalf of the Customer, the Customer must notify MTW in writing in advance, providing the name and authority of that person to collect the Goods.  The Customer or its nominee will be required to sign to confirm receipt of the Goods upon collection.

10.2 If the Goods are not collected within 14 days of the notice given pursuant to clause 10.1, MTW may charge the Customer a storage fee of $30 plus GST per day until the Goods are Collected. The Customer agrees this fee is a fair and reasonable pre-estimate of the cost to MTW.

10.3 The Customer must advise MTW in writing within 72 hours of collection if there is damage to the Goods, the wrong Goods have been received or the quantity of the Goods is incorrect or the Goods dot not comply with the Specifications.

10.4 If the Customer does not give written notice to MTW within 72 hours of collection of the Goods of any of the matters specified in clause 10.3, the Customer is deemed to have accepted the Goods.

11 Warranties and Liability

11.1 MTW warrants that:

(a) all Goods supplied to the Customer under an Agreement: (i) will comply with the Quote for the Goods; (ii) are new; and (iii)  will be supplied free from all encumbrances; and

(b) MTW will at all times: (i) exercise care, skill, attention and diligence and will employ techniques of a standard in accordance with good industry practice; and (iii) comply with all laws applicable to the supply of the Goods to the Customer. 

11.2 Except as set out in clause 11.1 of these Terms, and subject to any guarantees, terms, warranties and conditions that by law cannot be excluded (including guarantees given under Division 1 of Part 3-2 of the ACL), any term, guarantee, condition or warranty in respect of the  Goods and any services provided under an Agreement or any remedy for their failure, whether implied by statute, common law, trade usage, custom or otherwise, is expressly excluded.

11.3 The liability of MTW (and its Related bodies corporate) to the Customer (if the Customer is a Consumer or acquires the Goods as a Consumer) for any breach of a consumer guarantee, warranty or condition imposed by the ACL is limited to such one or more of the following as MTW decides:

(a) in relation to Goods: (i) replacing the Goods or resupplying equivalent Goods; (ii)repairing the Goods; (iii) paying the cost of replacing the Goods or acquiring equivalent Goods; or (iv) paying the cost of having the Goods repaired; or

(b) in relation to the supply of services, to (i) supplying the services again; or (ii) providing for the cost of having the services provided again.

11.4 Except as provided in this clause 11.3 and in clause 11.5, nothing in these Terms restricts, limits or modifies any rights a Consumer may have against MTW (and its Related bodies corporate) under Divisions 1 and 2 of Part 5-4 of the ACL.

11.5 The liability of MTW (and its Related bodies corporate) to indemnify the Customer under Division 3 of Part 5-4 of the ACL where the Customer has supplied the Goods or services to a Consumer:

(a) if the Goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, is limited to (i)  the cost of replacing the Goods; (ii)  the cost of supplying equivalent Goods; or (iii)  the cost of having the Goods repaired, whichever is the lowest amount;

(b) if the services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, is limited to in relation to the supply of services, to (i) supplying the services again; or (ii) providing for the cost of having the services provided again; and

(c) if the Goods or services are of a kind ordinarily acquired for personal, domestic or household use or consumption, is limited to the payment of the indemnity amount determined for the purposes of section 274 of the ACL.

11.6 To the maximum extent permitted by law and subject to the other provisions of this clause 11:

(a) MTW will not be liable to the Customer for any claim or Loss howsoever arising in connection with the Goods or MTW’s obligations under this Agreement, including for (i) any defect or failure of the Goods; (ii) failure of the Goods to obtain or comply with any applicable laws, regulations, permits, consents or approvals necessary to use or operate the Goods (including registration and road-worthiness of the Goods in any jurisdiction); (iii) any delay in supplying the Goods; (d) the Goods being unsuitable in any way; or (iv) reliance by the Customer on any statement or other representations made by MTW (except under this agreement), except to the extent such liability is caused by any gross negligence or fraud of MTW;

(b) MTW’s total liability to the Customer (or any Related body corporate) arising out of or in connection with its performance of its obligations pursuant to an Agreement (including the supply or installation of any Goods), howsoever arising is limited as follows:

(i) MTW will have no liability to the Customer (or any Related body corporate) for any Consequential Loss; and

(ii) MTW’s total aggregate liability for all Losses of the Customer (and all Related bodies corporate), howsoever arising, will not exceed the GST-exclusive Price paid by the Customer to MTW for the specific Goods that give rise to the Loss in question.

12  Specific Customer Responsibilities

12.1 The Customer undertakes to MTW that it will:

(a) obtain and pay for any permits or registrations required to transport, use or operate Goods;

(b) ensure that all national, state or local/municipal code, regulatory or legislative requirements are met in relation to operation and use of the Goods;

(c) submit any requests for changes to any Goods, terms or services provided for in an Agreement to MTW in writing. These will not be accepted by MTW unless agreed in writing by an authorised employee of MTW. No extra or additional work will be carried out by MTW without the Customer’s written instruction or PO, which must clearly show the Price for such work; and

(d) where required by MTW, review and approve drawings for the Goods submitted to the Customer. MTW will not commence manufacture until such approval is received by MTW.

12.2 MTW will not be responsible for malfunction or breakdown of Goods due to (a) use or misuse of the Goods; (b) the Goods not being maintained or serviced in accordance with any instructions received from MTW; or (c) use of incorrect or non-specified spare parts.

12.3 If requested by the Customer, MTW may arrange a third party to carry out plumbing or electrical work on the Goods and to assist with connections to the Goods. In these circumstances, MTW engages the third party as agent for the Customer, and the Customer is responsible for all costs and expenses associated with this work. In no circumstances will MTW be liable for any work performed, or not performed, by such third parties.

12.4 MTW does not provide any maintenance services. If MTW introduces the Customer to any mechanic or other third party to carry out maintenance on the Goods or for any other reason, you must engage that services provider independently of MTW and only after make your own diligent enquiries as to the suitability and fit of the services provider to your business and needs. We do not make any representations or warranties in respect of the suitability of any third party to your needs.  

12.5 The Customer acknowledges and agrees that:

(a) maintenance of the Goods and its various components is the responsibility of the Customer. MTW will provide the Customer with the manufacturers’ printed maintenance literature where it is available to us, however MTW does not warranty the accuracy of that information, and the Customer must ensure it is aware of the maintenance requirements and undertake the necessary actions;

(b) MTW cannot guarantee that the Goods will meet the requirements for registration or road-worthiness in any particular jurisdiction, and will not be responsible for any non-compliance. The Customer is responsible (at its cost) for ensuring compliance and obtaining any modifications or work required for this purpose;

(c) because extra weight is added to the Goods during the fit out, the standard suspension of the Goods may need to be upgraded to carry this extra load. Unless expressly agreed in a Quote, MTW will not install additional suspension, air bags or leaf springs in any Goods. The Customer is responsible for ensuring the load that the Goods carry after the fit out is complete is within the carrying capacity limit of those Goods; and

(d) where Goods include refrigeration in mobile units, such Goods require special attention due to the harsh and hot environment in these units. The Goods supplied will include vents that allow for additional air movement where possible. Glass front fridges, slush machines and any 240v refrigeration often provide an attractive “display” unit for selling or storing items, however the success of these fridges in mobile operations is variable and somewhat limited under warm and hot conditions. Although MTW will supply and install these 240 volt refrigeration units at the Customer’s request, MTW does not warrant their effectiveness. If additional vents are required to assist with fine tuning the airflow then this is to be done at the Customers expense and responsibility.

13 Intellectual Property

13.1 Nothing in an Agreement affects any party’s existing rights in any Background IP.

13.2 Subject to each party’s compliance with the Agreement, including the Customer’s payment of the Price in accordance with the Agreement and any restrictions specified in an Agreement, each party grants to the other a non-exclusive, royalty-free revocable licence to use (excluding the right to sub-licence) that party’s Background IP solely in connection with the Agreement and solely for the purpose for which it was provided and in accordance with the terms of the Agreement.

13.3 The parties acknowledge and agree that:

(a) MTW owns all the IP Rights in the MTW Specifications and all Improvements and Incidental Works created by MTW in the manufacture of the Goods on the basis of MTW Specifications (MTW IP); and

(b) MTW grants the Customer a, royalty-free revocable licence to use the MTW IP solely for the purpose of using or selling the Goods. The Customer is not permitted to sub-licence or assign the licence to MTW IP granted under this clause or manufacturer or procure the manufacture of any thing using the MTW IP, without MTW’s prior written consent.

13.4 The parties acknowledge and agree that:

(a) subject to clause 13.4(c), the Customer owns all the IP Rights in the Customer Specifications (Customer IP);

(b) the Customer grants MTW a non-exclusive, royalty-free revocable licence to use (excluding the right to sub-licence) the Customer IP solely for the purpose of carrying out its obligations under an Agreement; and

(c) MTW owns all the Improvements and Incidental Works created by MTW in the manufacture of the Goods on the basis of Customer Specifications (MTW Improvements & Incidental Works). MTW agrees not use the MTW Improvements & Incidental Works in the manufacture of goods which are the same as the Goods, other than for the Customer.

13.5 MTW grants the Customer a non-exclusive, perpetual, royalty-free revocable licence to use MTW Improvements & Incidental Works solely for the purpose of using or selling the Goods. The Customer is not permitted to sub-licence or assign the licence to MTW Improvements & Incidental Works granted under this clause without MTW’s prior written consent.

13.6 The Customer warrants that the Specifications will not infringe the Intellectual Property Rights of any third party. The Customer indemnifies and will keep indemnified MTW against all Claims against MTW by third parties in relation to the ownership or right to use the Specifications arising from or in connection with the Specifications or the Goods.

14 Force Majeure

14.1 MTW is not liable in any way to the extent that it is prevented from acting by circumstances beyond its reasonable control including, without limitation, industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, acts of God, pandemic, epidemic or acts of terrorism or war. If an event of force majeure occurs, MTW may suspend or terminate any Agreement by giving the Customer written notice.

15 Trustees

15.1 If the Customer is a trustee of a trust, the Customer acknowledges that the trustee will be liable (both in its own right and as trustee) for complying with the Agreement and that the assets of the Trust will be available to meet payment of the Price.

16 Miscellaneous

16.1 The law of Victoria governs these Terms and Agreement. The parties submit to the exclusive jurisdiction of the courts of or in Victoria and the courts of appeal therefrom, in respect of any matters arising out of or in connection with an Agreement.

16.2 MTW's failure to enforce any of these Terms will not be construed as a waiver of any of MTW’s rights.

16.3 If any of the Terms are unenforceable they will be read down so as to be enforceable or, if they cannot be so read down, the unenforceable terms will be severed from these Terms without affecting the enforceability of the remaining terms.

16.4 A notice must be in writing and handed personally or sent by email or express post to the last known address of the addressee. Notices sent by express post to an address in Australia are deemed to be received within 3 days of posting. Notices sent by email are deemed received upon successful transmission.