These terms and conditions (“Terms”) form the agreement between you and Motorcycle Holdings Operations Pty Ltd ABN 80 150 970 344 of 68 Moss Street, Slacks Creek, QLD 4127 (“we” or “us” or “our”) for the sale of the motorcycles (“Vehicles”) and spare parts and accessories (“Parts and Accessories”) on stacyc.com.au (“Web Site”). The Web Site is intended only for consumers wishing to order Vehicles and Parts and Accessories (“Products”) through the Web Site for delivery in Australia or collection in store. We do not accept orders for delivery outside Australia. You should understand that by ordering any of Products, you accept these Terms. You may print a copy of these Terms for future reference. We reserve the right to change these Terms at any time without prior notice. Such changes however will have no effect on orders that were submitted before posting of such revised Terms on the Web Site.
2. Placing Your Order
2.1 To place an order you must be 18 years of age or over and have a valid email address.
2.2 Your order constitutes an offer by you to buy the Products on these Terms. You are deemed to have placed an order with us by ordering via our online checkout process. After placing an order, you will receive an email from us acknowledging that we have received your order and containing an order reference number and details of the Product(s) you have ordered ("Order Confirmation"). Please note that the Order Confirmation is acknowledgment that we have received your order and does not mean your order has been accepted by us. All orders are subject to our acceptance of your offer to buy the Product(s) ordered. We will only accept your offer (and form the contract of sale on these Terms, the “Contract”) when we contact you by email or phone to confirm your order has been accepted and to arrange delivery/collection of the Product (a "Dispatch Confirmation"). These Terms constitute the entire Contract between us and you for the supply of Products.
2.3 We may refuse to accept your order or reverse your order:
2.3.1 where the Product is not available;
2.3.2 where we cannot obtain authorisation for your payment;
2.3.3 if there has been a pricing or Product description error (see clauses 2.5 and 3.4); or
2.3.4 if you do not meet the eligibility criteria set out in these Terms.
2.4 We will not be obliged to supply any other Products which may have been part of your order until the dispatch or date of collection of such Products has been confirmed in a separate Dispatch Confirmation.
2.5 All Products are subject to availability. If, for any reason, any or all of the Products you have ordered are or become unavailable or there has been an error in the price on the Web Site we will make reasonable efforts to notify you of this as soon as possible after becoming aware of it and advise you of revised delivery or collection dates (if applicable). In such cases, if you have already paid for the Products we will either notify you when the Products will be delivered (or collected) or refund you the amount paid as soon as reasonably possible.
3.1 The price of the Products will be as quoted on the Web Site from time to time, except in cases of obvious error. Product prices include GST at the current rates. Unless specified otherwise, the price quoted on our Web Site for Products will include dealer pre-delivery charges.
3.2 For Vehicles, ‘ride away prices’ are inclusive of all offers, cash backs, rebates and discounts from manufacturers and dealers.
3.3 Product prices and delivery charges are liable to change at any time, but changes will not affect orders in respect of which we have already sent you a Dispatch Confirmation.
3.4 Our Web Site contains a large number of Products and it is always possible that, despite our best efforts, some of the Products listed on our Web Site may be incorrectly priced. We will normally verify prices as part of our dispatch procedures so that, where a Product's correct price is less than our stated price, we will charge the lower amount when dispatching the Product to you or making it available for collection. If a Product’s correct price is higher than the price stated on our Web Site, we will normally, at our discretion, either contact you for instructions before dispatching the Product or making it available for collection, or reject your order and notify you that we are rejecting it. If the pricing error is obvious and unmistakeable and could have reasonably been recognised by you as an error, we do not have to provide the Products to you at the incorrect (lower) price.
3.5 You may pay for your Products by the methods of payment displayed on the checkout section of the Web Site. You must pay in the currency as indicated on your invoice.
4. Delivery of Your Products
4.1 Orders placed on the Web Site can only be delivered in Australia, or collected in store.
4.2 We will deliver the Products to the delivery address you specify in your order. Your chosen delivery method will be specified on the Order Confirmation. All deliveries will be co-ordinated by our dealerships and will be arranged through the Dispatch Confirmation process.
4.3 Any date of dispatch/collection of the Products communicated through the Dispatch Confirmation process is an estimate only.
4.4 Delivery of the Products does not normally include installation unless we expressly specify otherwise.
4.5 We will be deemed to have delivered the Product(s) to you when we deliver them to the address you gave us when placing the order, or when they are collected in store.
4.6 The Products will be your responsibility from the earlier of time of dispatch in accordance with the Dispatch Confirmation, or collection in store.
4.7 If you elect to collect your Product in store, upon notification by us that the Product is ready for collection, you shall, subject to payment in full be entitled to and shall take delivery of the Product within seven (7) days of such notification.
4.8 Ownership of the Products will only pass to you on the later of either delivery/collection or when we receive full payment of all sums due in respect of the Products, including delivery charges (if applicable).
5. Exchanges, Returns and Refunds
5.1 The Products may come with certain guarantees that cannot be excluded under the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (“Australian Consumer Law”). You may be entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You may also be entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
5.2 If you have changed your mind on a Parts and Accessories purchase and you are able to provide satisfactory proof of purchase, you may be eligible for an exchange or refund within a reasonable period of time from purchase (in most cases a reasonable period of time is deemed to be 30 days) provided that the item:
5.2.1 is in new saleable condition;
5.2.2 is unworn or unused with all original, sealed packaging and tags attached; and
5.2.3 is not subject to the exclusions listed at clause 5.5 below.
5.3 Exchanges for the same item of clothing or accessories in a different size will not incur any additional charges. However, if the new item of clothing or accessories is a different Product (including a different colour) and there is a price difference, you will need to pay the difference.
5.4 We are not required to provide you with a copy of your original receipt to facilitate an exchange or refund.
5.5 If you have changed your mind, you are not eligible for an exchange or refund for:
5.5.1 custom made, personalised or altered items;
5.5.2 gift cards or vouchers;
5.5.3 special orders; or
5.5.4 electrical items.
5.6 If you believe a Product is not of acceptable quality (for example, it is faulty), then you may have rights to a remedy under the Australian Consumer Law. These rights are not impacted by the change of mind policy or limited by a defined timeframe. However, the Australian Consumer Law does recognise that the relevant time period may vary by Product (or service) depending on the nature of the goods (or service).
5.7 Where you believe a Product is not of acceptable quality, it may be necessary for us to send the item to the manufacturer or their service agent for it to be assessed within a reasonable period of time. If there is a major failure with the item, you may choose a refund, exchange or repair. If the failure is minor, we will repair the item (or, at our discretion, we may replace the item or refund you) within a reasonable time.
5.8 Where an item is damaged through abnormal use, we are not required to provide a refund, exchange or repair.
5.9 Please keep your receipt as we will require satisfactory proof that you purchased the item from us before providing a remedy under the Australian Consumer Law.
6. Exclusion of warranties
6.1 You may have rights under statutory consumer protection laws, including the Australian Consumer Law, which cannot be excluded, restricted or modified. The exclusions of warranties, and the limitation of liability below and in clause 7, apply subject to any rights you may have under such laws.
6.2 You expressly understand and agree that your access to and use of the Web Site is at your sole risk and that the Web Site is provided "as is" and "as available". In particular, we do not warrant to you that your access to and use of the Web Site, including for the purpose of purchasing Products will meet your requirements (and you expressly acknowledge that you have relied on your own experience, skill and judgment to evaluate the Web Site and Products and that you are satisfied as to the suitability of the Web Site and Products to meet your requirements).
6.3 Without limiting the foregoing, and to the extent permitted by law, all express and implied representations, conditions, warranties, guarantees or other provisions that are not contained in these Terms (whether based in legislation, the common law or otherwise) are excluded, including any representations, conditions, warranties or guarantees as to acceptable quality, fitness for purpose or timeliness.
6.4 If any condition, warranty, guarantee or other provision is implied or imposed in relation to these Terms (whether based in legislation, the common law or otherwise) and cannot be excluded (a "Non-Excludable Term"), and we are able to limit your remedy for a breach of such Non-Excludable Term, then our liability for such a breach of a Non-Excludable Term is limited to one or more of the following, at our option:
6.4.1 in relation to goods, the replacement of goods or the supply of equivalent goods, the repair of goods, the payment of the cost of replacing the goods or acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
6.4.2 in relation to services, the supplying of the services again or the payment of the cost of having the services supplied again.
7. Our liability to you
7.1 We sell the Products to you entirely for your private non-commercial use. You agree that you will not use the Products for any commercial, business or re-sale purposes unless otherwise agreed with us in writing.
7.2 We will be liable for a failure to comply with these Terms where the breach is one that is contemplated by us both at the time that a Contract is formed in respect of any particular Product order and arises from our negligence but not where the loss or damage is not of a type which was contemplated at the time of the Contract.
7.3 Subject to our obligations under the Non-Excludable Terms, nothing in these Terms shall render us liable to indemnify you in respect of any liability of any kind incurred by you to any other person but this is not an exclusion of any liability that may arise by virtue of a breach by us of these Terms or any negligence on our part or that of our employees or agents.
7.4 Subject to our obligations under the Non-Excludable Terms, we will not be responsible for any business loss (including loss of profits, income or revenue, contracts, anticipated savings, data, goodwill or wasted expenditure) or any other indirect or consequential loss that was not reasonably foreseeable by both you and us when you commenced using the Web Site or when a Contract was formed.
7.5 Nothing in these Terms excludes or limits our liability for: death or personal injury caused by our negligence; fraud or fraudulent misrepresentation; any breach of the obligations implied by the Australian Consumer Law; defective products under the Australian Consumer Law; any other matter in respect of which it would be illegal for us to exclude, or attempt to exclude, our liability.
7.6 Subject to clause 7.5, if either of us fails to comply with these Terms, neither of us shall be responsible for any losses that the other suffers as a result, except for those losses which are a foreseeable consequence of the failure to comply with these Terms.
8. Vehicle specific terms
8.1 The provisions of this clause 8 apply in respect of Vehicle purchases, notwithstanding any other provision in these Terms (other than clauses 6 and 7).
8.2 Offers on Products are only valid for the period stated on the Web Site.
8.3 A Vehicle purchased on the Web Site may include a pre-paid service, which will be performed by us in store in accordance with the relevant manufacturer’s specifications. Any additional services will be charged by us in accordance with our then applicable services rates.
8.4 Before providing the service referred to in clause 8.3, we will require satisfactory proof that you purchased the Vehicle from us.
8.5 You must deliver any trade-in to us, and full ownership thereof free from encumbrances will pass to us on delivery.
8.6 Any defect in or encumbrance on the trade-in or departure of the trade-in from the description described in writing to us will entitle us to rescind the Contract or to reduce the amount allowed by us in respect of the trade-in, or to return the trade-in without liability to you, and in such case, we will be entitled to recover from you any additional balance due as a result of such reduction, or return.
8.7 If you have not delivered the trade-in to us as at the date of the Contract, we have the right upon the trade-in being delivered to us to re-value the trade-in and based upon that re-valuation may either rescind the Contract or substitute a new amount as allowance on the trade-in for the purposes of the Contract and we shall be entitled to recover from you any additional balance due as a result of such re-valuation.
8.8 In the event of a dispute between you and us as to the amount we have reduced the allowance on the trade-in then the amount of such reduction shall be determined by an independent arbiter as agreed to by both you and us and failing agreement, by an independent arbiter appointed by the President of the Motor Trades Association of Queensland Industrial Organisation of Employers.
8.9 You give the right to us to issue a tax invoice in respect to the vehicle being traded in and purchased by us.
Possession prior to payment
8.10 If you take possession of a Vehicle before we receive full payment of all sums due in respect of the Products, including delivery charges (if applicable), you:
8.10.1 do so as the fiduciary agent and bailee of us and you must not sell, transfer or otherwise encumber the Vehicle. If, in breach of this clause, you sell, transfer or otherwise encumber the Vehicle, you do so as our fiduciary agent and you will receive all proceeds whether tangible, or intangible, direct or indirect, or any such dealing with the Vehicle in trust for our benefit and will keep such proceeds in a separate account until the liability to us is discharged; and
8.10.2 acknowledge that this contract constitutes a Security Agreement and that we hold a Security Interest over all of the Products and we are entitled to register our interest in the Products on the personal property securities register established under the PPSA as Collateral. In this clause, ‘Security Agreement’, ‘Security Interest’ and ‘Collateral’ have the meanings given in the Personal Property Securities Act 2009 (Cth) (“PPSA”).
8.11 If you breach these Terms before we receive full payment of all sums due in respect of the Vehicle, including delivery charges (if applicable), then without prejudice to any other rights and remedies, we may resell the Vehicle with no liability to you and:
8.11.1 retain any monies paid by you on account of the purchase price of Vehicle to a limit of 10% of the purchase price of Vehicle; or
8.11.2 recover from you by way of liquidated damages an amount representing 10% of the total price of the Vehicle; or
8.11.3 recover from you by way of liquidated damages all loss of profit and reasonable expense and costs incurred as a result of your beach; and/or
8.11.4 retain any vehicle or other goods traded or proceeds of sale of same or any moneys paid by you on account of the purchase price of the Vehicle on account of any damages suffered.
8.12 You acknowledge that:
8.12.1 at the time of entering into the Contract, various information relating to the Vehicle such as registration number, engine number, year of manufacture, compliance date, may not be available and as a consequence you authorise us to write in the appropriate information into any document relating to that Vehicle.
8.12.2 we cannot and have not warranted that the Vehicle’s mileage as recorded by its odometer, log books or other recording device or record, is correct;
8.12.3 we cannot and have not warranted that any air bag which is supposed to be fitted to the Vehicle is in fact fitted and operational; and
8.12.4 you have inspected the Vehicle and confirm that the Vehicle is ostensibly of merchantable quality and fit for your purposes.
8.13 The manufacturer’s warranty on new Vehicles will be furnished with the Vehicle and no other warranties are given by us (to the extent permitted by law) except where otherwise provided in writing to you at the time of delivery of the Vehicle.
8.14 You acknowledge that some or all of the parts, Products, or additional items you have requested be supplied and/or fitted in respect of the Vehicle may not be or are not approved by the manufacturer of the Vehicle for use on the Vehicle. As such they are not covered by the Vehicle’s manufacturer’s warranty. You also acknowledge and agree that your use may affect the warranty provided by the Vehicle’s manufacturer to the extent that the Vehicle’s manufacturer considers that any non-approved products and/or their installation may affect the specifications or quality of the Vehicle.
9. Use of any personal information and data you provide to us
10. Availability and content
10.1 Access to the Web Site is permitted on a temporary basis, and we reserve the right to withdraw or amend the Web Site without notice. We shall not be liable if, for any reason, the Web Site is unavailable at any time or for any period.
10.2 From time to time we may restrict access by any one user, groups of users or all users to parts of the Web Site and/or to our entire Web Site without notice.
10.3 You are responsible for making all the arrangements necessary to have access to the Web Site. You are also responsible for ensuring that persons who access the Web Site through your internet connection are aware of these Terms and comply with them.
10.4 While we will make reasonable efforts to ensure that the information on the Web Site is correct, the material displayed on it is provided without any guarantees, conditions or warranties as to its accuracy, including, but not limited to, information about the Products and prices described on it.
10.5 The availability of the Products which are the subject of your order will be determined by the Product description displayed on the Web Site at the time of placing your order. We will make reasonable efforts to ensure that any Product description is a fair representation of the actual Products offered.
10.6 We reserve the right to suspend, modify or amend the Web Site and/or the Products offered, at any time.
11. Events outside our control
11.1 We will not be liable or responsible for any failure to perform or delay in performance of any of our obligations under a Contract that is caused by an Event Outside Our Control (as described in clause 11.2 below).
11.2 An "Event Outside Our Control" means any act or event beyond our reasonable control including, without limitation, strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, supplier or sub-contractor failure, subsidence, epidemic or other natural disaster or failure of public or private telecommunications network or impossibility of the use of public or private transport.
11.3 If the Event Outside Our Control occurs that affects the performance of our obligations under a Contract:
11.3.1 we will notify you as soon as possible;
11.3.2 our obligations under a Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control.
11.4 We reserve the right to defer the date of delivery/collection of the Products or to cancel the delivery of the Products in the case of any Event Outside Our Control or which is beyond our reasonable control and which prevents or hinders the delivery/collection of the Products.
12. Waiver and variation
12.1 If we fail, at any time during the term of the Contract, to insist upon strict performance of any of your obligations under the Contract or under these Terms, or if we fail to exercise any of the rights or remedies to which we are entitled under the Contract, this will not constitute a waiver of such rights or remedies and will not relieve you from compliance with such obligations.
12.2 These Terms may be amended by us only in writing.
13.1 If any court or competent authority decides that any of the provisions in these Terms or any provisions of the Contract is invalid, unlawful or unenforceable to any extent, the term will, to that extent only, be severed from the remaining terms, which will continue to be valid to the fullest extent permitted by law.
14. Our right to vary these Terms
14.1 We have the right to revise and amend these Terms from time to time by posting them on the Web Site. Amendments are usually made to reflect changes in law, the ways in which we accept payments from you and to accommodate changes to the way Products are supplied, however, these Terms may also be amended for any other reason and in our sole discretion.
14.2 You will be subject to the policies and Terms in force at the time that you order Products from us, unless any change to those policies or these Terms is required to be made by law or governmental authority (in which case it will apply to orders previously placed by you), or if we notify you of the change to those policies or these Terms before we send you the Dispatch Confirmation (in which case we have the right to assume that you have accepted the change to these Terms, unless you notify us to the contrary within seven (7) working days of receipt by you of the Products).
15. Applicable law
15.1 These Terms and the Contract are governed by and shall be construed in accordance with the laws of Queensland and each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland in respect of any dispute arising out of these Terms and/or any Contract for the purchase of Products through the Web Site.
16.1 All formal notices given by you to us must be given to Attention: The Company Secretary, Motorcycle Holdings Operations Pty Ltd (ABN 80 150 970 344), postal address: 68 Moss Street, Slacks Creek, QLD 4127, email address firstname.lastname@example.org. We may give notice to you at either the email or postal address you provide to us when placing an order. Notice will be deemed received and properly served immediately when posted on our Web Site, twenty four (24) hours after an email is sent, or three (3) days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
17.1 Any clauses which are, by their nature, intended to survive expiry or termination of these Terms or the Contract will survive expiry or termination of these Terms or the Contract for any reason
18. Group Companies
18.1 You acknowledge and agree that:
18.1.1 we enter into these Terms and the Contracts for and on behalf of all of our ‘related bodies corporate’ (as that term is defined in the Corporations Act 2001 (Cth)) (“Group Companies”);
18.1.2 the Group Companies are each entitled to obtain and enforce the benefit of these Terms and any Contract; and
18.1.3 we hold that benefit on trust for each other Group Company and can, if requested by any of them, enforce these Terms of a Contract (including any indemnities) on their behalf.