Terms & Conditions of Trade
1. Definitions
1.1 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, Contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.2 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.3 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when using Mayco House’s website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
1.4 “Customer” means retail or trade Customers, the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting Mayco House to provide the Services as specified in any proposal, quotation, order, invoice, or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a partnership, it shall bind each partner jointly and severally; and
(c) if the Customer is on behalf of or part of, a Trust, shall be bound in its own capacity as a trustee; and
(d) includes the Customer’s executors, administrators, successors, and permitted assigns.
1.5 “Goods” means all Goods or Services supplied by Mayco House to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.6 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
1.7 “Mayco House” means Mayco House Pty Ltd ATF Clark & Makridakis Family Trust T/A Mayco House, its successors and assigns or any person acting on behalf of and with the authority of Mayco House Pty Ltd ATF Clark & Makridakis Family Trust T/A Mayco House.
1.8 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between Mayco House and the Customer in accordance with clause 7 below.
2. Acceptance
2.1 The parties acknowledge and agree that:
(a) they have read and understood the terms and conditions contained in this Contract; and
(b) the parties are taken to have exclusively accepted and are immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Customer acknowledges and accepts that the supply of Goods:
(a) on credit shall not take effect until the Customer has completed a credit application with Mayco House and it has been approved with a credit limit established for the account. In the event that the supply of Goods requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, Mayco House reserves the right to refuse delivery; and
(b) for accepted orders may be subject to availability and if, for any reason, the Goods are not or cease to be available, Mayco House reserves the right to vary the Price with alternative Goods as per clause 7.2, subject to prior confirmation and agreement of both parties. Mayco House also reserves the right to halt all Services until such time as Mayco House and the Customer agree to such changes. Mayco House shall not be liable to the Customer for any loss or damage the Customer suffers due to Mayco House exercising its rights under this clause.
2.5 In the event that the Customer wishes to cancel the trade account, it is the Customer’s responsibility to email info@maycohouse.com and Mayco House will unsubscribe the Customer’s account from all marketing communications.
2.6 The Customer acknowledges and agrees that in the event that payment has not been received for the Goods when due, and the Goods have not been shipped, Mayco House reserves the right to cancel the order and return the items into stock.
2.7 Any advice, recommendation, information or assistance provided by Mayco House in relation to the Goods or Services supplied is given in good faith to the Customer, or the Customer’s agent and is based on Mayco House’s own knowledge and experience and shall be accepted without liability on the part of Mayco House.
2.8 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 the Electronic Transactions (Queensland) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Marketing Communications/Third Party Apps
3.1 When the Customer joins Mayco House’s trade program, the Customer accepts that they are signing up to receive all Mayco House’s marketing communications via email or Short Message Service (“SMS”).
4. Errors and Omissions
4.1 The Customer acknowledges and accepts that Mayco House shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by Mayco House in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by Mayco House in respect of the Services.
4.2 In circumstances where the Customer is required to place an order for Goods, in writing, or otherwise as permitted by these terms and conditions, the Customer is responsible for supplying correct order information such as, without limitation, size, measurements and quantity, when placing an order for Goods (whether they are made to order Goods or not) ("Customer Error"). The Customer must pay for all Goods it orders from Mayco House notwithstanding that such Goods suffer from a Customer Error and notwithstanding that the Customer has not taken or refuses to take Delivery of such Goods. Mayco House is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Customer Errors.
5. Change in Control
5.1 The Customer shall give Mayco House not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Customer shall be liable for any loss incurred by Mayco House as a result of the Customer’s failure to comply with this clause.
6. On-Line Ordering
6.1 The Customer acknowledges and agrees that:
(a) Mayco House does not guarantee the website’s performance;
(b) display on the website does not guarantee the availability of any particular Goods; therefore, all orders placed through the website shall be subject to confirmation of acceptance by Mayco House;
(c) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades;
(d) there are inherent hazards in electronic distribution, and as such Mayco House cannot warrant against delays or errors in transmitting data between the Customer and Mayco House including orders, and you agree that to the maximum extent permitted by law, Mayco House will not be liable for any losses which the Customer suffers as a result of online-ordering not being available or for delays or errors in transmitting orders;
(e) when making a transaction through the website, the Customer’s information will pass through a secure server using SSL (secure sockets layer) encryption technology or any other similar technology as disclosed by Mayco House and/or displayed on the website. The encryption process ensures that the Customer’s information cannot be read by or altered by outside influences; and
(f) if the Customer is not the cardholder for any credit card being used to pay for the Goods, Mayco House shall be entitled to reasonably assume that the Customer has received permission from the cardholder for use of the credit card for the transaction.
6.2 Mayco House reserves the right to terminate the Customer’s order if it learns that you have provided false or misleading information, interfered with other users or the administration of Mayco House’s business, or violated these terms and conditions.
7. Price and Payment
7.1 At Mayco House’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by Mayco House to the Customer upon placement of an order for Goods; or
(b) the Price as at the date of Delivery of the Goods according to Mayco House’s current price list, as previously disclosed to the Customer upon the Customer’s placement of an order for Goods; or
(c) Mayco House’s quoted Price (subject to clause 7.2) which will be valid for the period stated in the quotation or otherwise for a period of fourteen (14) days.
7.2 Mayco House reserves the right to change the Price:
(a) if a variation to the Goods which are to be supplied is requested; or
(b) in the event of increases to Mayco House in the cost of labour or materials (including, but not limited to, shortages in raw materials or any variation as a result of fluctuations in currency exchange rates or increases to Mayco House in the cost of taxes, levies, freight and insurance charges, or delays in shipment etc.) which are beyond Mayco House’s control.
7.3 Variations will be charged for on the basis of Mayco House’s quotation, and will be detailed in writing, and shown as variations on Mayco House’s invoice. The Customer shall be required to respond to any variation submitted by Mayco House within ten (10) working days. Failure to do so will entitle Mayco House to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
7.4 At Mayco House’s sole discretion, a reasonable deposit may be required for special orders or pre orders, in accordance with any quotation provided by Mayco House or as notified to the Customer prior to the placement of an order for Goods.
7.5 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by Mayco House, which may be:
(a) before delivery of the Goods; or
(b) the date specified on any invoice or other form as being the date for payment; or
(c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by Mayco House.
7.6 Payment may be made by cash, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and Mayco House.
7.7 Mayco House may in its discretion allocate any payment received from the Customer towards any invoice that Mayco House determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer Mayco House may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Mayco House, payment will be deemed to be allocated in such manner as preserves the maximum value of Mayco House’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
7.8 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Mayco House nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Customer must notify Mayco House in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as Mayco House investigates the disputed claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in Mayco House placing the Customer’s account into default and subject to default interest in accordance with clause 21.1.
7.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to Mayco House an amount equal to any GST Mayco House must pay for any supply by Mayco House under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
8. Out of Stock Items
8.1 In the event that the Customer orders an item that is out of stock, Mayco House will notify the Customer as soon as possible. If Mayco House is aware of an incoming order, Mayco House may offer the Customer the option to pre order the item.
9. Bundle Deals
9.1 Mayco House may at their discretion offer “special pack deals” for a limited time or while stocks last. However, the “special pack deals” cannot be used with any other special promotions offered by Mayco House.
10. Pre Orders
10.1 Pre orders are available to trade Customers and refer to Goods that have been ordered that is yet to be available as an “in-stock” item. Those Goods are most likely in transit to Mayco House and are not available for immediate Delivery.
10.2 A minimum order of one thousand dollars ($1000) applies for these types of orders.
10.3 In the event that the Goods are ready to be dispatched within two (2) weeks of the order being placed, full payment of the order is required prior to Delivery. If the order has a longer wait time (more than two (2) weeks), the Customer can opt to pay a fifty percent (50%) deposit to secure the stock, the balance of the Price is to be paid prior to the Goods being dispatched.
11. Special Orders
11.1 Special orders are only available for approved trade Customers and at Mayco House’s discretion.
11.2 A minimum order of ten thousand dollars ($10 000) and over is required for these types of orders.
11.3 Mayco House will arrange for the Customer to view samples, colour swatches etc prior to the order. A deposit shall be required at the time of the order in line with Mayco House’s manufacturing schedule.
11.4 Mayco House, may at their discretion, provide Goods to approved trade Customers which shall be subject to a minimum order quantity and dollar value, as determined by Mayco House, and as per their manufacturing schedule. The cancellation of Goods will not be accepted once production has commenced, or an order has been placed.
12. Delivery of Goods
12.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that Mayco House (or Mayco House’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address. Courier costs will be invoiced to the Customer as per what has been charged to Mayco House. The Goods would be deemed as delivered in accordance with this Contract if at that address the nominated carrier obtains from any person a receipt or a signed delivery docket for the Goods.
12.2 The Customer acknowledges and accepts that in the event a Delivery takes place, and no one is available to accept Delivery of the Goods, and the order is returned to a warehouse or depot, a redelivery fee may apply. In the event the Customer has signed a waiver and approved for the Goods to be left at or around your nominated Delivery address without an authorised representative receiving the Delivery, the Customer acknowledges and agrees that they have waived their inspection rights and cannot report any stolen, faulty, damaged Goods etc.
12.3 The cost of Delivery will be payable by the Customer in accordance with the quotation provided by Mayco House to the Customer, or as otherwise notified to the Customer prior to the placement of an order for Goods. The Delivery costs will be calculated by size, weight and Delivery location and must be paid in full prior to Delivery.
12.4 Any orders outside of Australia shall incur additional costs for freight, customs duty and taxes which shall be for the Customer’s cost unless otherwise agreed.
12.5 Mayco House may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
12.6 The Customer must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery.
12.7 Any time specified by Mayco House for Delivery of the Goods is an estimate only and Mayco House will not be liable for any loss or damage incurred by the Customer because of Delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. If Mayco House is unable to supply the Goods as agreed solely due to any action or inaction of the Customer, then Mayco House shall be entitled to charge a reasonable fee for redelivery and/or storage.
13. Risk
13.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
13.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, Mayco House is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Mayco House is sufficient evidence of Mayco House’s rights to receive the insurance proceeds without the need for any person dealing with Mayco House to make further enquiries.
13.3 Further to clause 12.2, if the Customer requests Mayco House to leave Goods outside Mayco House’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Customer’s sole risk.
13.4 The Customer acknowledges and accepts that it is the Customer’s responsibility to check quantities, before finalising an order with Mayco House. Mayco House shall not be liable for any incorrect quantities ordered by the Customer and such incorrect quantities shall be at the Customer’s own cost.
14. Specifications of the Goods
14.1 The Customer acknowledges and accepts that:
(a) linen products may have natural variations in colour, weave, size, and texture, which are part of the fabric's charm and shall not be deemed as a defect in the Goods;
(b) handmade Goods that have elements made by hand may show slight variations in design or finish, adding to their uniqueness;
(c) small knots or lumps in the fabric (slubs) are common in linen and are considered a natural characteristic; and
(d) the Goods can fade or be damaged by prolonged direct sunlight.
14.2 It is Mayco House’s recommendation that in order to preserve the Goods that the Customer should avoid exposing the Goods to sunlight for extended periods of time, including indoor areas with strong sun exposure.
14.3 By purchasing the Goods, the Customer accepts these natural characteristics as part of the unique appeal of Mayco House’s Goods.
15. Compliance with Laws
15.1 The Customer and Mayco House shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Goods/Services.
16. Title
16.1 Mayco House and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid Mayco House all amounts owing to Mayco House; and
(b) the Customer has met all of its other obligations to Mayco House.
16.2 Receipt by Mayco House of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
16.3 It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 16.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to Mayco House on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for Mayco House and must pay to Mayco House the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for Mayco House and must pay or deliver the proceeds to Mayco House on demand;
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of Mayco House and must sell, dispose of or return the resulting product to Mayco House as it so directs;
(e) the Customer irrevocably authorises Mayco House to enter any premises where Mayco House believes the Goods are kept and recover possession of the Goods;
(f) Mayco House may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Mayco House; and
(h) Mayco House may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
17. Personal Property Securities Act 2009 (“PPSA”)
17.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
17.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by Mayco House to the Customer, and the proceeds from such Goods.
17.3 The Customer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Mayco House may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 17.3(a)(i) or 17.3(a)(ii).
(b) indemnify, and upon demand reimburse, Mayco House for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Mayco House;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods or the proceeds of such Goods in favour of a third party without the prior written consent of Mayco House; and
(e) immediately advise Mayco House of any material change in its business practices of selling the Goods which would result in a change in proceeds derived from such sales.
17.4 Mayco House and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
17.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
17.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
17.7 Unless otherwise agreed to in writing by Mayco House, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
17.8 The Customer must unconditionally ratify any actions taken by Mayco House under clauses 17.3 to 17.5.
17.9 Subject to any express provisions to the contrary (including those contained in this clause 17), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
18. Security and Charge
18.1 In consideration of Mayco House agreeing to supply the Goods and/or provide its Services, the Customer grants Mayco House a security interest by way of a floating charge (registerable by Mayco House pursuant to the PPSA) over all of its present and after acquired rights, title and interest (whether joint or several) in all other assets that is now owned by the Customer or owned by the Customer in the future, to the extent necessary to secure the repayment of monies owed under this Contract for provision of the Goods and/or Services under this Contract and/or permit Mayco House to appoint a receiver to the Customer in accordance with the Corporations Act 2001 (Cth).
18.2 The Customer indemnifies Mayco House from and against all Mayco House’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Mayco House’s rights under this clause.
18.3 In the event that the Customer defaults or breaches any term of this Contract and as a result, the security provided in clauses 16.1,17.2 and 18.1 as applicable, is deemed insufficient by Mayco House to secure the repayment of monies owed by the Customer to Mayco House, the Customer hereby grants Mayco House a security interest as at the date of the default, by way of a charge, that enables the right and entitlement to lodge a caveat over any real property and or land owned by the Customer now, or owned by the Customer in the future, to secure the performance of the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money.
19. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
19.1 The Customer must inspect the Goods on Delivery and must within seventy-two (72) hours of Delivery notify Mayco House in writing to info@maycohouse.com. including any photos and a description of the issue along with any relevant product codes of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow Mayco House to inspect the Goods.
19.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
19.3 Mayco House acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
19.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Mayco House makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Mayco House’s liability in respect of these warranties is limited to the fullest extent permitted by law.
19.5 If the Customer is a consumer within the meaning of the CCA, Mayco House’s liability is limited to the extent permitted by section 64A of Schedule 2.
19.6 If Mayco House is required to replace the Goods under this clause or the CCA, but is unable to do so, Mayco House may refund any money the Customer has paid for the Goods.
19.7 If the Customer is not a consumer within the meaning of the CCA, Mayco House’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Customer by Mayco House at Mayco House’s sole discretion;
(b) limited to any warranty to which Mayco House is entitled, if Mayco House did not manufacture the Goods; and/or
(c) otherwise negated absolutely.
19.8 Subject to this clause 19, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 19.1; and
(b) Mayco House has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
19.9 Notwithstanding clauses 19.1 to 19.8 but subject to the CCA, Mayco House shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Customer failing to properly maintain or store any Goods;
(b) the Customer using the Goods for any purpose other than that for which they were designed;
(c) the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Customer failing to follow any instructions or guidelines provided by Mayco House; and/or
(e) fair wear and tear, any accident, or act of God.
19.10 Notwithstanding anything contained in this clause if Mayco House is required by a law to accept a return, then Mayco House will only accept a return on the conditions imposed by that law.
19.11 Further to clause 19.8, retail Customers will receive a refund on the full priced items within seven (7) days, minus any postage and handling fee incurred by Mayco House.
19.12 Subject to clause 19.1 customised, or non-stocklist items or Goods made or ordered to the Customer’s specifications are not acceptable for credit or return.
19.13 The Customer acknowledges and accepts that only defective, faulty Goods or wrong items received are acceptable for return as agreed to by Mayco House.
19.14 Mayco House will not accept any Goods if the Customer has had a “change of mind”.
19.15 The Customer acknowledges and accepts that no warranty will be given, and Mayco House shall not be liable for any Goods which have been designated as “sold as is”, “not in perfect condition”, “sold with faults”, “samples” or where a discount has been applied due to small faults/flaws within the fabric (downgraded stock).
20. Intellectual Property
20.1 Where Mayco House has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of Mayco House. Under no circumstances may such designs, drawings and documents be used without the express written approval of Mayco House.
20.2 The Customer warrants that all designs, specifications, or instructions given to Mayco House will not cause Mayco House to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Mayco House against any action taken by a third party against Mayco House in respect of any such infringement.
20.3 The Customer agrees that Mayco House may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Mayco House has created for the Customer.
21. Default and Consequences of Default
21.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Mayco House’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
21.2 If the Customer owes Mayco House any money, the Customer shall indemnify Mayco House from and against all costs and disbursements:
(a) incurred; and/or
(b) which would be incurred and/or
(c) for which by the Customer would be liable;
in regard to legal costs on a solicitor and own client basis incurred in exercising Mayco House’s rights under these terms and conditions, internal administration fees, Mayco House’s Contract fees owing for breach of these terms and conditions’, including, but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.
21.3 Further to any other rights or remedies Mayco House may have under this Contract, if a Customer has made payment to Mayco House, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Mayco House under this clause 21 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
21.4 Without prejudice to Mayco House’s other remedies at law Mayco House shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Mayco House shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Mayco House becomes overdue, or in Mayco House’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by Mayco House;
(c) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
22. Cancellation
22.1 Without prejudice to any other remedies the parties may have, if at any time either party is in breach of any obligation (including those relating to payment) under these terms and conditions (“the Breaching Party”) the other party may suspend or terminate the supply or purchase of Goods and/or Services to the other party, with immediate effect, by providing the Breaching Party with written notice. Neither party will be liable for any loss or damage the other party suffers because one of the parties has exercised its rights under this clause.
22.2 If Mayco House, due to reasons beyond Mayco House’s reasonable control, is unable to deliver any Goods and/or Services to the Customer, Mayco House may cancel any Contract to which these terms and conditions apply or cancel Delivery of Goods and/or Services at any time before the Goods and/or Services are delivered by giving written notice to the Customer. On giving such notice Mayco House shall repay to the Customer any money paid by the Customer for the Goods and/or Services. Mayco House shall not be liable for any loss or damage whatsoever arising from such cancellation.
22.3 The Customer may cancel Delivery of the Goods and/or Services by written notice served within forty-eight (48) hours of placement of the order, prior to the Goods being dispatched. If the Customer cancels Delivery in accordance with this clause 22.3, the Customer will not be liable for the payment of any costs of Mayco House, except where a deposit is payable in accordance with clause 7.4.
22.4 However, cancellation of orders for Goods made to the Customer’s specifications, special orders or for non-stocklist items, will not be accepted once production has commenced, or an order has been placed.
23. Privacy Policy
23.1 All emails, documents, images, or other recorded information held or used by Mayco House is Personal Information, as defined and referred to in clause 23.4, and therefore considered Confidential Information. Mayco House acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). Mayco House acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by Mayco House that may result in serious harm to the Customer, Mayco House will notify the Customer in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law.
23.2 Notwithstanding clause 23.1, privacy limitations will extend to Mayco House in respect of Cookies where the Customer utilises Mayco House’s website to make enquiries. Mayco House agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to Mayco House when Mayco House sends an email to the Customer, so Mayco House may collect and review that information (“collectively Personal Information”).
If the Customer consents to Mayco House’s use of Cookies on Mayco House’s website and later wishes to withdraw that consent, the Customer may manage and control Mayco House’s privacy controls via the Customer’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
23.3 The Customer agrees for Mayco House to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Customer in relation to credit provided by Mayco House.
23.4 The Customer agrees that Mayco House may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
23.5 The Customer consents to Mayco House being given a consumer credit report to collect personal credit information relating to any overdue payment on commercial credit.
23.6 The Customer agrees that personal credit information provided may be used and retained by Mayco House for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
23.7 Mayco House may give information about the Customer to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Customer including credit history.
23.8 The information given to the CRB may include:
(a) Personal Information as outlined in 23.4 above;
(b) name of the credit provider and that Mayco House is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults (provided Mayco House is a member of an approved OAIC External Disputes Resolution Scheme), overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and Mayco House has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of Mayco House, the Customer has committed a serious credit infringement; or
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
23.9 The Customer shall have the right to request (by e-mail) from Mayco House:
(a) a copy of the Personal Information about the Customer retained by Mayco House and the right to request that Mayco House correct any incorrect Personal Information; and
(b) that Mayco House does not disclose any Personal Information about the Customer for the purpose of direct marketing.
23.10 Mayco House will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
23.11 The Customer can make a privacy complaint by contacting Mayco House via e-mail. Mayco House will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to reach a decision on the complaint within thirty (30) days of receipt of the complaint. If the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
24. Service of Notices
24.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission; or
(e) if sent by email to the other party’s last known email address.
24.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
25. Trusts
25.1 If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust or as an agent for a trust (“Trust”) then whether or not Mayco House may have notice of the Trust, the Customer covenants with Mayco House as follows:
(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust, the trustees and the trust fund;
(b) the Customer has full and complete power and authority under the Trust or from the Trustees of the Trust as the case may be to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust, the trustees and the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Customer will not during the term of the Contract without consent in writing of Mayco House (Mayco House will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Customer as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust fund or trust property.
26. General
26.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.
26.2 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable, that provision shall be severed from this Contract, and the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
26.3 These terms and conditions and any Contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the Brisbane Courts in that state. These terms prevail over all terms and conditions of the Customer (even if they form part of the Customer’s purchase order).
26.4 Mayco House may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent provided the assignment does not cause detriment to the Customer.
26.5 The Customer cannot licence or assign without the written approval of Mayco House.
26.6 Mayco House may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of Mayco House’s sub-contractors without the authority of Mayco House.
26.7 The Customer agrees that Mayco House may amend their general terms and conditions for subsequent future Contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for Mayco House to provide Goods to the Customer.
26.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Customer to make a payment to Mayco House, once the parties agree that the Force Majeure event has ceased.
26.9 Both parties warrant that they have the power to enter this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
26.10 The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution and Delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.
26.11 If part or all of any term of this Contract is or becomes invalid, illegal or unenforceable, it shall be severed from this Contract and shall not affect the validity and enforceability of the remaining terms of this Contract.