TERMS AND CONDITIONS

1.1 “Mactech Diesel” means The Trustee for the MDS Trust t/as Mactech Diesel Solutions, its successors and assigns or any person acting on behalf of and with the authority of The Trustee for the MDS Trust t/as Mactech Diesel Solutions.

1.2 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting Mactech Diesel to provide the Services as specified in any proposal, quotation, order, invoice, verbally 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 a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Customer’s executors, administrators, successors and permitted assigns.

1.3 “Goods” means all Goods (including but not limited to any parts, oils or consumables used during the course of the Services) or Services supplied by Mactech Diesel 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).

1.4 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between Mactech Diesel and the Customer in accordance with clause 4 below.

1.5 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally if there is more than one Customer, by these terms and conditions if the Customer places an order for, accepts a quote in relation to, or accepts Delivery of the Goods.

2.2 In the event of any inconsistency between these terms and conditions and any other prior document or schedule that the parties have entered into, these terms and conditions shall prevail.|

2.3 Any amendment to these terms and conditions may only be amended in writing by the consent of both parties.

2.4 The Customer acknowledges and accepts that the supply of Goods:
For accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, Mactech Diesel reserves the right to vary the Price with alternative Goods as per clause 5.1.

2.5 In the event that the Goods and/or Services provided by Mactech Diesel are the subject of an insurance claim that the Customer has made, then the Customer shall be responsible for the payment of any monies payable to the insurance company and agrees to honour their obligation for payment for such transactions invoiced by Mactech Diesel and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful.

2.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions (Queensland) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3.1 The Customer acknowledges and accepts that Mactech Diesel 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 Mactech Diesel in the formation and/or administration of these terms and conditions; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by Mactech Diesel in respect of the Services.

3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of Mactech Diesel; the Customer shall not be entitled to treat these terms and conditions as repudiated nor render it invalid.

4.1 At Mactech Diesel’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by Mactech Diesel to the Customer; or
(b) Mactech Diesel’s estimated Price (subject to clause 6) which shall not be deemed binding upon Mactech Diesel as the actual Price can only be determined upon completion of the Services. Mactech Diesel undertakes to keep the Customer informed should the actual Price look likely to exceed the original estimate; or
(c) Mactech Diesel’s quoted price (subject to clause 5.1) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

4.2 At Mactech Diesel’s sole discretion, a non-refundable deposit may be required.

4.3 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by Mactech Diesel, which may be:
(a) on Delivery of the Goods;
(b) on completion of the Services;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by Mactech Diesel.

4.4 Payment may be made by credit card, electronic/on-line banking, or by any other method as agreed to between the Customer and Mactech Diesel.

4.5 Mactech Diesel may in its discretion allocate any payment received from the Customer towards any invoice that Mactech Diesel determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer Mactech Diesel may re-allocate any payments previously received and allocated.

4.6 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 Mactech Diesel nor to withhold payment of any invoice because part of that invoice is in dispute.

4.7 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to Mactech Diesel an amount equal to any GST Mactech Diesel must pay for any supply by Mactech Diesel 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.

5.1 Mactech Diesel reserves the right to change the Price:
(a) if a variation to the Services which are to be provided is requested; or
(b) if during the course of the Services, the Goods cease to be available from Mactech Diesel’s third-party suppliers, then Mactech Diesel reserves the right to provide alternative Goods, subject to prior confirmation and agreement of both parties; or
(c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, further faults which are found upon disassembly and/or further inspection) which are only discovered upon commencement of the Services; or
(d) in the event of increases to Mactech Diesel in the cost of labour or Goods, or fluctuations in currency exchange rates, which are beyond Mactech Diesel’s control.

5.2 Variations will be charged for on the basis of Mactech Diesel’s quotation, and will be detailed in writing, and shown as variations on Mactech Diesel’s invoice. The Customer shall be required to respond to any variation submitted by Mactech Diesel within ten (10) working days. Failure to do so will entitle Mactech Diesel 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.

5.3 All tow and/or salvage fees will be charged to the Customer, and will be added to the Price.

5.4 If Mactech Diesel has been requested by the Customer to diagnose a fault that requires disassembly and/or testing, all costs involved will be charged to the Customer irrespective of whether or not the repair goes ahead.

5.5 The Customer acknowledges and agrees that Mactech Diesel shall be entitled to:
(a) retain any components replaced during the provision of the Services; and
(b) the right to retain all proceeds obtained from the sale of such components to any auto recycler or salvage yard.

6.1 At Mactech Diesel’s sole discretion delivery of the Services (“Delivery”) shall take place when Mactech Diesel provides the Services at Mactech Diesel’s address.

6.2 Where Mactech Diesel is to provide any Services at the Customer’s nominated address then the Customer shall be liable for all costs incurred by Mactech Diesel from the time they depart from, and until they return to, their normal place of work (including, but not limited to, mileage and time calculated at Mactech Diesel’s standard rates and any Goods purchased for the Services).

6.3 Any time or date given by Mactech Diesel to the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and Mactech Diesel will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late. For clarify, this clause 6.3 includes but is not limited to delays with manufacturing, shipping, customs or delivery.

7.1 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.

7.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, Mactech Diesel is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Mactech Diesel is sufficient evidence of Mactech Diesel’s rights to receive the insurance proceeds without the need for any person dealing with Mactech Diesel to make further enquiries.

7.3 If the Customer requests Mactech Diesel to leave Goods outside Mactech Diesel’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.

7.4 The Customer acknowledges and accepts that:
(a) Mactech Diesel is only responsible for Goods that are replaced by Mactech Diesel, and that in the event that other components subsequently fail, the Customer agrees to indemnify Mactech Diesel against any loss or damage to the Goods or the Customer’s machine / vehicle, or caused by the components, or any part thereof howsoever arising; and
(b) where Mactech Diesel has performed temporary repairs on the machine / vehicle that:
(i) Mactech Diesel offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
(ii) Mactech Diesel will immediately advise the Customer of the fault and shall provide the Customer with an estimate for the full repair of the machine /vehicle; and
(c) Mactech Diesel, its employees, agents or contractors may test drive or carry out tests of the machine / vehicle at Mactech Diesel’s discretion and may, if requested by the Customer, collect or re-deliver the machine / vehicle where nominated by the Customer. Mactech Diesel will not be liable to the Customer for any damage which occurs to or is caused by the machine / vehicle during such driving, testing, collection or delivery unless it arises from the reckless or negligent act or omission of Mactech Diesel, its employees, agents, or contractors.

7.5 Mactech Diesel will accept no responsibility for valuables or other items left in the Customer’s machine /vehicle. It is the Customer’s responsibility to remove any valuables from the Customer’s machine / vehicle prior to servicing/repair.

7.6 Mactech Diesel shall not be liable for the loss of or damage to the Customer’s machine / vehicle, its accessories or contents while being repaired or operated in connection with the authorised Services (including in the event of a call-out: it shall be the Customer’s responsibility to remain with the vehicle to ensure security of the same), unless caused by the negligence of Mactech Diesel, or Mactech Diesel’s employees.

7.7 It is the Customer’s responsibility to ensure that the Customer’s machine / vehicle is fully insured against all possible damage (including, but not limited to, the perils of accident, fire, flood, theft and burglary and all other usual risks) whilst stored at Mactech Diesel’s premises. The machine /vehicle is at all times stored and repaired at the Customer’s sole risk and the Customer acknowledges they may be required to claim on their insurance in the event of such.

8.1 Mactech Diesel and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid Mactech Diesel all amounts owing to Mactech Diesel; and
(b) the Customer has met all of its other obligations to Mactech Diesel.

8.2 Receipt by Mactech Diesel 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.

8.3 It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 8.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to Mactech Diesel on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for Mactech Diesel and must pay to Mactech Diesel 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 Mactech Diesel and must pay or deliver the proceeds to Mactech Diesel 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 Mactech Diesel and must sell, dispose of or return the resulting product to Mactech Diesel as it so directs;
(e) the Customer irrevocably authorises Mactech Diesel to enter any premises where Mactech Diesel believes the Goods are kept and recover possession of the Goods;
(f) Mactech Diesel 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 Mactech Diesel;
(h) Mactech Diesel may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.

9.1 In this clause, the following words have the respective meanings given to them in the PPSA: Financing Statement, Financing Change Statement, Proceeds, Register, Security Agreement, Security Interest and Verification Statement.

9.2 The Customer acknowledges and agrees:
(a) that these terms & conditions constitute a Security Agreement that creates a Security Interest in all Goods (and Proceeds) previously supplied by Mactech Diesel to the Customer and to be supplied in the future by Mactech Diesel to the Customer;
(b) that the Security Interest created by these terms & conditions is a continuing Security Interest in all Goods (supplied now or in the future by Mactech Diesel to the Customer) and Proceeds, which will operate (despite any intervening payment or settlement of account) until Mactech Diesel has signed a release; and
(c) to waive its rights in relation to the sections listed in sub-section 115(1) of the PPSA (or as otherwise amended), which will not apply (to the extent, if any, mentioned) to the Security Agreement created by these terms & conditions.

9.3 The Customer undertakes to:
(a) keep all Goods free of any charge, lien or Security Interest except as created under these terms & conditions and not otherwise deal with the Goods in a way that may prejudice any rights of Mactech Diesel under these terms & conditions or the PPSA;
(b) sign any further documents and provide any further information (which must be complete, accurate and up-to-date in all respects) that Mactech Diesel may require to register a Financing Statement or Financing Change Statement in relation to a Security Interest on the Register, register any other document required to be registered by the PPSA, or correct a defect in a statement referred to in this clause 13.3(b);
(c) indemnify, and upon demand reimburse, Mactech Diesel for all fees (including actual legal fees on a solicitor and own client basis), costs, disbursements and expenses in registering and maintaining a Financing Statement or Financing Change Statement on the Register or releasing any Goods charged thereby, and enforcing or attempting to enforce the Security any Interest created by these terms & conditions; and
(d) not register, or allow to be registered, a Financing Statement or a Financing Change Statement in respect of the Goods or Proceeds in favour of a third party, without the prior written consent of Mactech Diesel; and immediately advise Mactech Diesel of any material change in its business details (including, but not limited to, its trading name, address, facsimile number) or business practices.

10.1 The Customer must inspect the Goods on Delivery and must within forty-eight (48) hours of Delivery notify Mactech Diesel in writing of any alleged 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 and in any case within the 48 hours after Delivery. Upon such notification the Customer must allow a reasonable time following notification for Mactech Diesel to inspect the Goods. If the Customer does not notify Mactech Diesel of any defects within 48 hours, the Goods will be presumed to be free from defects and the Customer will not be permitted to make any claim against Mactech Diesel in relation thereto.

10.2 Mactech Diesel reserve the right to assess any alleged defect and determine, in its sole discretion, that the defect exists and that it was not caused by any reason contained in clause 10.9.

10.3 Under applicable State, Territory and Commonwealth Law (including, without limitation the Competition and Consumer Act 2010 (Cth) “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-Excludable Guarantees).

10.4 Mactech Diesel acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excludable Guarantees.

10.5 Except as expressly set out in these terms and conditions or in respect of the Non-Excludable Guarantees, Mactech Diesel makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Mactech Diesel’s liability in respect of these warranties is limited to the fullest extent permitted by law.

10.6 If the Customer is a consumer within the meaning of the CCA, Mactech Diesel’s liability is limited to, at the option of Mactech Diesel, the replacement or repair of the Goods, or the payment of the cost of replacement or repair of the Goods.

10.7 If the Customer is not a consumer within the meaning of the CCA, Mactech Diesel’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 Mactech Diesel at Mactech Diesel’s sole discretion;
(b) limited to any warranty to which Mactech Diesel is entitled, if Mactech Diesel did not manufacture the Goods;
(c) otherwise negated absolutely.

10.8 Subject to this clause 10, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 10.1; and
(b) Mactech Diesel has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Customer’s cost (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.

10.9 Notwithstanding clauses 10.1 to 10.8 but subject to the CCA, Mactech Diesel 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 failing to act in accordance with these terms and conditions;
(c) the Customer using the Goods for any purpose other than that for which they were designed;
(d) 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;
(e) the Customer failing to follow any warranty policy or other instructions or guidelines provided by Mactech Diesel;
(f) fair wear and tear, any accident, or act of God.

10.10 In the case of second hand Goods, unless the Customer is a consumer under the CCA, the Customer acknowledges that it has had full opportunity to inspect the second hand Goods prior to Delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by Mactech Diesel as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Customer acknowledges and agrees that Mactech Diesel has agreed to provide the Customer with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 10.10.

10.11 Notwithstanding anything contained in this clause if Mactech Diesel is required by a law to accept a return then Mactech Diesel will only accept a return on the conditions imposed by that law.

10.12 Subject to clause 10.1, customised, or non-stocklist items or Goods made or ordered to the Customer’s specifications are not acceptable for credit or return.

10.13 In the event the Services include engine tuning, the Customer agrees:
(a) no warranty or guarantee is given by Mactech Diesel in relation to increase power, performance, speed or reduction in fuel consumption;
(b) results will vary depending on the make, model, size and age of the engine;
(c) the Services may render any other existing warranty in relation to the machine/vehicle void, and will not hold Mactech Diesel liable for any voiding of such;
(d) the Services may affect the Customer’s insurance and the Customer should make all relevant enquiries prior to accepting a quote or instructing Mactech Diesel to carry out the Services.

11.1 Where Mactech Diesel has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of Mactech Diesel. Under no circumstances may such designs, drawings and documents be used without the express written approval of Mactech Diesel.

11.2 The Customer warrants that all designs, specifications or instructions given to Mactech Diesel will not cause Mactech Diesel to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Mactech Diesel against any action taken by a third party against Mactech Diesel in respect of any such infringement.

11.3 The Customer agrees that Mactech Diesel may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Mactech Diesel has created for the Customer.

12.1 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 Mactech Diesel’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

12.2 If the Customer owes Mactech Diesel any money the Customer shall indemnify Mactech Diesel from and against all costs and disbursements incurred by Mactech Diesel in recovering the debt (including but not limited to internal administration fees, collection agency fees, legal costs on a solicitor and own client basis, Mactech Diesel’s contract default fee, and bank dishonour fees).

12.3 Further to any other rights or remedies Mactech Diesel may have under these terms and conditions, if a Customer has made payment to Mactech Diesel, 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 Mactech Diesel under this clause 12 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under these terms and conditions.

12.4 Without prejudice to Mactech Diesel’s other remedies at law Mactech Diesel shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Mactech Diesel shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Mactech Diesel becomes overdue, or in Mactech Diesel’s opinion the Customer will be unable to make a payment when it falls due;
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

13.1 Without prejudice to any other remedies Mactech Diesel may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Mactech Diesel may suspend or terminate the supply of Goods to the Customer. Mactech Diesel will not be liable to the Customer for any loss or damage the Customer suffers because Mactech Diesel has exercised its rights under this clause.

13.2 Mactech Diesel may cancel any contract, quote or purchase order to which these terms and conditions apply or cancel Delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice Mactech Diesel shall repay to the Customer any money paid by the Customer for the Goods. Mactech Diesel shall not be liable for any loss or damage whatsoever arising from such cancellation.

13.3 In the event that the Customer cancels Delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by Mactech Diesel as a direct result of the cancellation (including, but not limited to, any loss of profits).

13.4 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

14.1 the customer must observe the Privacy Act if it is applicable in respect of all personal information and indemnify us against any loss, cost, expense, damage or liability if you breach this clause.

15.1 Not withstanding the delivery of the Goods, title in any Goods delivered shall remain with Mactech Diesel until payment has been made in full by the Customer. The Customer acknowledges that it will be in possession of any Goods solely as bailee until payment has been made in full by the Customer.

15.2 The Customer hereby irrevocably grants to Mactech Deisel the right, at its sole discretion, to remove or repossess any Goods from the Customer and sell or dispose of them (and keep any proceeds of such) where any fees for the Goods have not been paid within the payment terms set out in these terms and conditions.

15.3 Where the Customer has left any item with Mactech Diesel for repair, modification, exchange or for Mactech Diesel to perform any other service in relation to the item and Mactech Diesel has not received or been tendered the whole of any monies owing to it by the Customer, Mactech Diesel shall have, until all monies owing to Mactech Diesel are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.

15.4 The lien of Mactech Diesel shall continue despite the commencement of proceedings, or judgment for any monies owing to Mactech Diesel having been obtained against the Customer.

16.1 Any written notice given under these terms and conditions 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 known address of the other party;
(c) by sending it by registered post to the known address of the other party;
(d) if sent by facsimile transmission to the fax number of the other party (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.

16.2 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.

17.1 If the Customer at any time upon or subsequent to accepting these terms and conditions is acting in the capacity of trustee of any trust (“Trust”) then whether or not Mactech Diesel may have notice of the Trust, the Customer covenants with Mactech Diesel as follows:
(a) these terms and conditions extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
(b) the Customer has full and complete power and authority under the Trust to accept these terms and conditions and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or 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 without consent in writing of Mactech Diesel (Mactech Diesel 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 property.

18.1 If a dispute arises between the parties then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.

19.1 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 the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

19.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland, the state in which Mactech Diesel has its principal place of business, and are subject to the jurisdiction of the Brisbane Courts in Queensland.

19.3 Subject to clause 10, Mactech Diesel shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Mactech Diesel of these terms and conditions (alternatively Mactech Diesel’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).

19.4 Mactech Diesel may licence and/or assign all or any part of its rights and/or obligations under these terms and conditions without the Customer’s consent.

19.5 The Customer cannot licence or assign their rights or obligations under these terms and conditions without the written approval of Mactech Diesel.

19.6 Mactech Diesel may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under these terms and conditions by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of Mactech Diesel’s sub-contractors without the authority of Mactech Diesel.

19.7 The Customer agrees that Mactech Diesel 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 Mactech Diesel to provide Goods to the Customer.

19.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

19.9 Both parties understand and acknowledge that these terms and conditions creates binding and valid legal obligations on them.