1 About the Website
1.1 Thank you for visiting www.motorex.com.au (the “Website”). The Website provides a service which allows users to purchase automotive aftermarket products (the “Services”).
1.2 The Website is operated by Bralson Pty. Limited (ACN 050 094 650) t/as MotorActive (“MotorActive”). Access to and use of the Website, or any of its associated products, is provided by MotorActive. Please read these terms and conditions (the “Terms”) carefully. By using or browsing the Website, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of this Website immediately and leave the Website.
1.3 MotorActive reserves the right to review and change any of the Terms by updating this page at its sole discretion. When MotorActive updates the Terms, it will use reasonable endeavours to provide you with notice of same. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, you should print off or save a local copy of the Terms for your records.
2 Acceptance of the Terms
2.1 You accept the Terms by remaining on the Website. You may also accept the Terms by clicking to accept or agree to the Terms where this option is made available to you by MotorActive in the user interface.
3 Registration to use the Services
3.1 In order to access the Services, you must first complete a Trade Customer Application available through the website (the “Trade Application”) and send an executed copy of the same to MotorActive. When completing the Trade Application, or as part of your continued use of the Services, you may be required to provide personal information about yourself (such as identification or contact details), including:
(a) an email address and/or preferred username;
(b) a mailing address;
(c) a telephone number; and
(d) a password.
3.2 You warrant that any information you give to MotorActive in the course of completing the Trade Application will always be accurate, correct and up to date.
3.3 Once you have completed the Trade Application and this has been approved by MotorActive in writing, you will be a registered user of the Website (“User”) and agree to be bound by the Terms. As a User you will be granted immediate access to the Services.
3.4 You may not use the Services and may not accept the Terms if:
(a) you are not of legal age to form a binding contract with MotorActive; or
(b) you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.
4 Your obligations as a User
4.1 As a User, you agree to comply with the following:
(a) you will use the Services only for purposes that are permitted by:
(i) the Terms;
(ii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
(b) you have the sole responsibility for protecting the confidentiality of your password and/or email address. Use of your password by any unauthorised person may result in the immediate cancellation of the Services;
(c) any use of your registration information by any unauthorised person, or third parties, is strictly prohibited. You agree to immediately notify MotorActive of any unauthorised use of your password or email address or any breach of security of which you have become aware;
(d) access and use of the Website is limited, non-transferable and allows for the sole use of the Website the User for the purposes of MotorActive providing the Services;
(e) you will not use the Services or Website for any illegal and/or unauthorised use which includes collecting email addresses of Users by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Website;
(f) you agree that commercial advertisements, affiliate links, and other forms of solicitation may be removed from the Website without notice and may result in termination of the Services. Appropriate legal action will be taken by MotorActive for any illegal or unauthorised use of the Website; and
(g) you acknowledge and agree that any automated use of the Website or its Services is prohibited.
5 Purchase of the Products and Return Policy
5.1 The Website provides you with an opportunity to browse various products that have been listed for sale through the Website (the “Product”) and to purchase the Product through the Website and have it delivered. In using the Services to purchase the Product through the Website, you will agree to the payment of the purchase price listed on the Website for the Product (the “Purchase Price”).
5.2 Payment of the Purchase Price may be made through the following third party provider:
(a) Westpac PayWay Net;
(the “Payment Gateway Providers”)
In using the Services, you warrant that you have familiarised yourself with, and agree to be bound by, the applicable Terms and Conditions of Use, Privacy Policy and other relevant legal documentation provided by the Payment Gateway Providers.
5.3 You may also, at MotorActive’s sole discretion, be provided with the opportunity to make payment of the Purchase Price by way of a credit facility provided by MotorActive (the “Credit Facility”). For the avoidance of doubt, the Credit Facility is subject to alternative pricing and payment arrangements and is governed by a separate agreement that must be completed prior to you being provided with the Credit Facility. For further information, contact MotorActive at: helent@motoractive.com.au.
5.4 Following payment of the Purchase Price being confirmed by MotorActive, you will be issued with a receipt to confirm that the payment has been received and MotorActive will record your purchase details for future use.
5.5 MotorActive may, at their sole discretion, provide a refund on the return of the Products within fourteen (14) days where the Product packaging is unopened and remains in a saleable condition. You acknowledge and agree that you are liable for any postage and shipping costs associated with this clause 5.5.
6 Warranty
6.1 MotorActive’s Products come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure of the Product. You are also entitled to have the Products repaired or replaced if the Products fail to be of acceptable quality and the failure does not amount to a major failure (the “Warranty”).
6.2 You may make a claim under this clause 6 (the “Warranty Claim”) for material defects and workmanship in the Products within a twelve (12) months from the date of purchase (the “Warranty Period”).
6.3 In order to make a Warranty Claim during the Warranty Period, you must provide proof of purchase to MotorActive showing the date of purchase of the Products, provide a description of the Products and the price paid for the Products by sending written notice to MotorActive at 35 Slough Business Park, Holker Street, Silverwater, NSW 2121 or by email at: helent@motoractive.com.au.
6.4 Where the Warranty Claim is accepted then MotorActive will, at its sole discretion, either repair or replace any defective Products or part thereof with a new or remanufactured equivalent during the Warranty Period. You acknowledge and agree that you will be solely liable for any postage or transportation costs incurred in facilitating the Warranty Claim.
6.5 The Warranty shall be the sole and exclusive warranty granted by MotorActive and shall be the sole and exclusive remedy available to you in addition to other rights and under a law in relation to the Products to which this warranty relates.
6.6 All implied warranties including the warranties of merchantability and fitness for use are limited to the Warranty Period.
6.7 The Warranty does not apply to any appearance of the supplied Products nor to the additional excluded items set forth below nor to any supplied Products where the exterior of which has been damaged or defaced, which has been subjected to misuse, abnormal service or handling, or which has been altered or modified in design or construction.
6.8 You acknowledge and agree that the Warranty does not apply in the event that:
(a) the supplied Products are improperly handled and, as a result, are damaged or modified to your detriment;
(b) the supplied Products are not used in accordance with the directions supplied with the Products or MotorActive; and/or
(c) you cause defects as a result of you exposing the goods to any of the following:
(i) extreme thermal or environmental conditions;
(ii) unauthorised modifications or connections;
(iii) repair by use of unauthorised parts;
(iv) accident; or
(v) force majeure (e.g. lightning strike, bushfire etc.), or other acts beyond MotorActive’s reasonable control (including but not limited to damage by fire, flood, etc.).
7 Delivery
7.1 You acknowledge that the Services offered by MotorActive integrate delivery (the “Delivery Services”) through the use of third party delivery companies (the “Delivery Service Providers”).
7.2 You acknowledge that MotorActive does not provide the Delivery Services to you and you agree that MotorActive will not be liable to you for any special, indirect or consequential loss or damage, loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Delivery Services.
7.3 In providing the Services, MotorActive may provide you with a variety of delivery and insurance options offered as part of the Delivery Services by the Delivery Service Providers. You acknowledge and agree that MotorActive is not the provider of these delivery and insurance options and merely facilitates your interaction with the Delivery Service Providers in respect to same.
7.4 Please ensure that you enter the correct delivery address when purchasing the Products as any Products returned as undeliverable as a result of same will incur a re-dispatch fee. Any deliverable charges paid for the original dispatch are not refundable.
7.5 Upon delivery, a signature may be required before you can take possession of the Products. Where a signature is required to effect the Delivery Services and a signature cannot be obtained at the time of delivery, a card will be left informing you of how to collect your goods during normal business hours. Where you fail to respond to the Delivery Service Providers card and the goods are returned to us as unclaimed, further delivery charges will be payable for re-dispatch. Delivery charges paid for the original dispatch are not refundable.
7.6 In the event that an item is lost or damaged in the course of the Delivery Services, MotorActive asks that you:
(a) contact the Delivery Service Provider directly to request a refund or to claim on any insurance options available; and
(b) contact us by sending an email to: helent@motoractive.com.au outlining in what way the Products were damaged in transit so we are able to determine if the Delivery Service Provider should be removed from the Services.
8 Copyright and Intellectual Property
8.1 The Website, the Services and all of the related products of MotorActive are subject to copyright. The material on the Website is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the site content and compilation of the website (including text, graphics, logos, button icons, video images, audio clips and software) (the “Content”) are owned or controlled for these purposes, and are reserved by MotorActive or its contributors.
8.2 MotorActive retains all rights, title and interest in and to the Website and all related content. Nothing you do on or in relation to the Website will transfer to you:
(a) the business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright of MotorActive; or
(b) the right to use or exploit a business name, trading name, domain name, trade mark or industrial design; or
(c) a system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a system or process).
8.3 You may not, without the prior written permission of MotorActive and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Content or third party contact for any purpose. This prohibition does not extend to materials on the Website which are freely available for re-use or are in the public domain.
9 General Disclaimer
9.1 You acknowledge that MotorActive does not make any terms, guarantees, warranties, representations or conditions whatsoever regarding the Products other than provided for pursuant to these Terms.
9.2 MotorActive will make every effort to ensure a Product is accurately depicted on the Website, however, you acknowledge that sizes, colours and packaging may differ from what is displayed on the Website.
9.3 Nothing in these Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
9.4 Subject to this clause 9, and to the extent permitted by law:
(a) all terms, guarantees, warranties, representations or conditions which are not expressly stated in these Terms are excluded; and
(b) MotorActive we will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or these Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
9.5 Use of the Website, the Services, and any of the products of MotorActive (including the Delivery Services), is at your own risk. Everything on Website, the Services, and the Products of MotorActive, are provided to you on an “as is” and “as available” basis, without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors, third party content providers or licensors of MotorActive (including any third party where the Delivery Services are made available to you) make any express or implied representation or warranty about its Content or any products or Services (including the products or services of MotorActive) referred to on the Website. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
(a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
(b) the accuracy, suitability or currency of any information on the Website, the Service, or any of its Content related products (including third party material and advertisements on the Website);
(c) costs incurred as a result of you using the Website, the Services or any of the products of MotorActive;
(d) the Content or operation in respect to links which are provided for the User’s convenience;
(e) any failure to complete a transaction, or any loss arising from e-commerce transacted on the Website; or
(f) any defamatory, threatening, offensive or unlawful conduct of third parties or publication of any materials relating to or constituting such conduct.
10 Limitation of liability
10.1 MotorActive’s total liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the most recent Purchase Price paid by you under these Terms or where you have not paid the Purchase, then the total liability of MotorActive is the resupply of information or Services to you.
10.2 You expressly understand and agree that MotorActive, its affiliates, employees, agents, contributors, third party content providers and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
10.3 MotorActive is not responsible or liable in any manner for any site content (including the Content and Third Party Content) posted on the Website or in connection with the Services, whether posted or caused by users of the website of MotorActive, by third parties or by any of the services offered by MotorActive.
11 Termination of Contract
11.1 The Terms will continue to apply until terminated by either you or by MotorActive as set out below.
11.2 If you want to terminate the Terms, you may do so by:
(a) notifying MotorActive at any time; and
(b) closing your accounts for all of the services which you use, where MotorActive has made this option available to you. Your notice should be sent, in writing, to helent@motoractive.com.au.
11.3 MotorActive may at any time, terminate the Terms with you if:
(a) you have breached any provision of the Terms or intend to breach any provision;
(b) MotorActive is required to do so by law;
(c) the partner with whom MotorActive offered the Services to you has terminated its relationship with MotorActive or ceased to offer the Services to you;
(d) MotorActive is transitioning to no longer providing the services to Users in the country in which you are resident or from which you use the service; or
(e) the provision of the services to you by MotorActive is, in the opinion of MotorActive, no longer commercially viable.
11.4 Subject to local applicable laws, MotorActive reserves the right to discontinue or cancel your membership to the Website at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Website or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts MotorActive’s name or reputation or violates the rights of those of another party.
11.5 When the Terms come to an end, all of the legal rights, obligations and liabilities that you and MotorActive have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.
12 Indemnity
12.1 You agree to indemnify MotorActive, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
(a) all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with any Content you post through the Website;
(b) any direct or indirect consequences of you accessing, using or transacting on the Website or attempts to do so and any breach by you or your agents of these Terms; and/or
(c) any breach of the Terms.
13 Dispute Resolution
13.1 Compulsory:
If a dispute arises out of or relates to the Terms, no party may commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sort).
13.2 Notice:
A party to the Terms claiming a dispute (“Dispute”) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
13.3 Resolution:
On receipt of that notice (“Notice”) by that other party, the parties to the Terms (“Parties”) must:
(a) Within seven (7) days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
(b) If for any reason whatsoever, twenty-one (21) days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Law Society of New South Wales or his or her nominee;
(c) The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
(d) The mediation will be held in Sydney, Australia.
13.4 Confidential
All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.
13.5 Termination of Mediation:
If thirty (30) days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
13.6 Legal Proceedings:
In the event that the Dispute is not resolved at the conclusion of the mediation, either Party may institute legal proceedings concerning the subject matter of the Dispute thereafter.
13.7 Venue and Jurisdiction
The Services offered by MotorActive are intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of Sydney, Australia.
13.8 Governing Law
This agreement is governed by the laws of New South Wales, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to this agreement and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of New South Wales, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. This agreement shall be binding to the benefit of the parties hereto and their successors and assigns.
14 Independent Legal Advice
14.1 Both parties confirm and declare that the provisions of this agreement are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.
15 Severance
15.1 If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.
16 Force majeure
If a party is prevented from or delayed in performing an obligation by Force Majeure, and promptly acts to mitigate or remove the Force Majeure and its effect, then the obligation is suspended during, but for no longer than, the period the Force Majeure continues and any further period that is reasonable in the circumstances.
In this clause “Force Majeure” means an event beyond the reasonable control of the affected party, which occurs without the fault or negligence of the affected party.