B2B Terms & Conditions

To the fullest extent legally possible all contracts, dealings, transactions and/or arrangements made between MTB Holdings (herein referred to by trading name, "MTB Direct") and any Customer ("Customer") relating to any goods, products, services or materials supplied or to be supplied by MTB Direct to the Customer ("Goods") are subject to the following Terms and Conditions of Trade ("these Terms") unless otherwise agreed in writing.

Payments
1. Payment must be made in full at the time of placing an order via the website. This agreement does not extend credit or payment terms of the Customer.
Liability for goods
1. Immediately upon delivery, the Customer accepts risk and liability for the Goods.
Limitation of Liability

To the extent permissible at law (including under the Australian Consumer Law):
1. MTB Direct will not be liable for any claim arising after 7 days from delivery of goods or performance of services (or at all once goods have been unpacked, modified, on-sold or otherwise used or applied) after which there will be deemed to be unqualified acceptance of the goods.
2. MTB Direct will not be liable in any way for any contingent, consequential, direct, indirect, special or punitive damage arising whether due to MTB Directs' negligence or otherwise and the Customer acknowledges this limit of liability and agrees to limit any claim accordingly.
3. no other term, condition, agreement, warranty, representation or understanding whether express or implied in any way extending to or otherwise relating to or binding upon MTB Direct is made or given.
4. MTB Direct will not be liable for any claim relating to or arising from any alleged fault or defect, whether caused or contributed to by MTB Direct, the Customer or any 3rd party otherwise.
Returns

To the extent permissible by law (including under the Australian Consumer Law):
1. Returns will not be accepted after 7 days from the date of delivery of the items to the Customer.
2. MTB Direct must be notified of an intention to return an item within 7 days of receipt.
3. The customer is to make all reasonable efforts to deliver the item back to MTB Direct within a further 5 business days.
4. Any items being returned must be in as new, saleable condition and the acceptance of all returns is at the full discretion of MTB Direct.
5. A 15% restocking fee will apply to all returned items.
6. Any Goods which are accepted by MTB Direct as defective may be returned and will be replaced free of charge or be the subject of a credit for the invoiced value. "Free of charge" does not include labour, transport or material costs and the issuance of a replacement or credit is at the discretion of MTB Direct.
Placement of Orders

To the extent permissible at law (including under the Australian Consumer Law), if any dispute arises concerning any order (and including any measurement, quality, quantity, identity, or authority or any telephone, facsimile, e-mail or computer-generated order) the internal records of MTB Direct will be conclusive evidence of what was ordered.
Delivery
1. To the extent permissible by law (including under the Australian Consumer Law), MTB Direct accepts no responsibility for delivery but may elect to arrange delivery at its discretion and without any liability and at the Customer's costs and responsibility in all matters.
2. MTB Direct reserves the right to charge for all deliveries at costs determined at its discretion.
3. The Customer will be deemed to have accepted delivery and liability for the Goods immediately after they are delivered to a carrier, or to the Customer's business premises or site whether attended or not.
4. A document (including without limitation a consignment note) purporting to be signed by an officer(s) of MTB Direct confirming delivery will be conclusive evidence of delivery as will any signed delivery docket.
5. To the extent permissible by law (including under the Australian Consumer Law), MTB Direct will not be liable for delay, failure or inability to deliver any Goods.
6. The Customer agrees to pay any costs associated with re-delivery.
Variation
1. Customers will not be able to vary orders once placed.
2. If MTB Direct determines that a variation can be facilitated, the Customer agrees to cover any associated costs of variation or cancellation.
Exclusions

To the extent permissible by law (including under the Australian Consumer Law):
1. no dealing with the Customer will be deemed to be a sale by sample or description.
2. if MTB Direct publishes material about its goods and prices, any part which is incompatible with these Terms is expressly excluded.
3. the Customer will rely on its own knowledge and expertise in choosing any product for any purpose.
4. any advice or assistance given for or on behalf of MTB Direct must be accepted at the Customer's risk and must not be or be deemed given as expert advice nor to have been relied upon.
Severability

If a provision of these Terms would but for this clause, be unenforceable, that provision must be read down to that extent necessary to avoid that result and if that provision cannot be read down to that extent, it must be severed without altering the validity and enforceability of the remainder of these Terms.
Purchase Price
1. All sales are made by MTB Direct at its ruling price at the time of delivery.
2. All government imposts and any GST ("imposts") will be paid by the Customer.
3. MTB Directs' price lists exclude Imposts unless expressly noted thereon.
Default

To the extent permissible at law (including under the Australian Consumer Law), default or breach by the Customer of these Terms or in any dealings with MTB Direct will entitle MTB Direct to retain all monies paid, call-up all monies due or owing (whether currently due and owing or not) cease further deliveries and recover from the Customer all loss of profits without prejudice to any other of its rights under these Terms or at law.
Product and Services
1. To the extent permissible at law (including under the Australian Consumer Law), MTB Direct disclaims any responsibility or liability whatsoever relating to the suitability of any product for any application, purpose, use or process.
2. The Customer agrees to check and test all Goods prior to use alteration or any sale or application thereof whether in relation to any characteristic or suitability for any particular purpose or process or otherwise.
3. The Customer agrees to check and test all Goods for compliance with all relevant applicable standards and regulatory bodies before use, on-sale or application and to use or apply same in accordance with all applicable standards, regulations and guidelines with all manufacturer's and/or MTB Direct recommendations and directions as well as with good commercial practice.
4. MTB Direct may update, modify, make substitutions or alter any of its goods or any component or raw material incorporated in or used in forming any part of any Goods as part of its ongoing business. The Customer agrees to accept current goods in substitution of any goods ordered provided they are not materially different.
5. To the extent permissible at law (including under the Australian Consumer Law), MTB Direct disclaims any responsibility or liability relating to any Goods:
  1. processed or made to designs, drawings, specifications or measurements etc or with materials which are provided or approved (whether in part or fully) by or on behalf of the Customer: and/or
  2. utilised, sorted, handled or used incorrectly or inappropriately
Other Terms

Terms and/or conditions sought to be imposed by the Customer upon MTB Direct will not apply unless agreed in writing by MTB Direct.
Recovery Costs

The Customer will pay ( on a full indemnity basis) all costs and expenses of MTB Direct, its legal adviser, mercantile agents and others acting on its behalf in respect of anything instituted or being considered as a result of any breach of these Terms or breach of any dealings with MTB Direct.
Attornment

To give effect to its obligations arising under these Terms (and especially clause 21) the Customer hereby irrevocably appoints any director of MTB Direct from time to time, as its attorney.
Customer Restructure
1. The Customer will notify MTB Direct of any change in its structure or management including any sale in or disposition of any part of the business of the Customer, any change in director, shareholder, management, partnership or trusteeship or sale of any material part of its business ("Restructure") within 7 days of any such change.
2. The Customer agrees it will:
  1. cause any new entity created by virtue of a Restructure ("New Entity") to be bound by the Terms; and
  2. Continue to be bound by these Terms despite a Restructure and will indemnify MTB Direct for any loss or damage it suffers as a result of a breach of these Terms by the New Entity.
Jurisdiction

All contracts made with MTB Direct will be deemed to be made in the State of Queensland and the parties submit to the exclusive jurisdiction of the appropriate Courts in or nearest Brisbane in that State.
Waiver

If MTB Direct elects not to exercise any rights arising as a result of a breach of these Terms it will not constitute a waiver of any rights relating to any subsequent or other breaches.
Force Majeure

MTB Direct will not be in default or breach of any dealings with the Customer as a result of Force Majeure (i.e. anything beyond MTB Directs' reasonable control).
Sampling

The Customer must pay for all Goods provided to or ordered by the Customer as "sampling" unless otherwise agreed in writing.
Intellectual Property
1. If MTB Direct utilises any design patent or intellectual property or follows any instruction provided by or on behalf of the Customer, the Customer indemnifies MTB Direct against any claim, proceeding, damages or liability for any loss cost or expense arising as a result whether for any alleged infringement of any intellectual property or otherwise.
2. The Customer must not advertise, use or represent any intellectual property of MTB Direct or of any Goods themselves in any way without the prior written consent of MTB Direct.
3. If the Customer breaches or permits any breach of this clause, it acknowledges MTB Direct may suffer claims by third parties as a result ( e.g. by models whose images are reproduced without authority and/or by parties who are entitled to exploit any intellectual property) and Clause 29 (Indemnity) will apply.
Discounts

Any discount offered by MTB Direct is at its complete discretion and will only be available provided the Customer is not in breach of any part of these Terms nor in default in any of its dealings with MTB Direct.
Discounts or promotions offered to retail customers are not available to wholesale Customers

Specifications
1. Any illustration drawing or specifications supplied by MTB Direct ("Specs") are drafts and approximates and are for illustration purposes and the Customer should not rely on the accuracy of such Specs in any way.
2. Any tangible or intellectual property rights in Specs remain the property of MTB Direct and may be recalled at any time.
3. Specs are to be treated at all times as confidential and not made use of without the prior written consent of MTB Direct.
Trusts

The Customer agrees that these terms bind it not only in its own capacity but also as the Trustee of every trust of which it is a trustee.
No Merger

Termination of these Terms and/or dealings between the Customer and MTB Direct ("Cessation") will not end those provisions of these Terms that are capable of surviving Cessation.
Stock Discretion

MTB Direct has a continuing discretion to allocate available stock and gives no warranty as to the certainty of supply unless expressly agreed in writing in advance.
Partial Delivery/Forward Orders

If the Customer places forward orders or requests partial or instalment delivery, the Customer agrees:
1. to pay for so much of any order as is from time to time delivered by MTB Direct: and
2. that no delay or failure to fulfil any part of any order will entitle the Customer to cancel or vary any order or delay or reduce any payment.
Acceptable Variation

The Customer will accept variation in quantities at plus or minus 5% and will pay pro-rata for the actual quantity delivered.
Indemnity

To the extent permissible at law (including under the Australian Consumer Law), the Customer indemnifies MTB Direct against any claim or loss arising from or related in any way to any contract or dealing between MTB Direct and the Customer or anything arising therefrom or arising as a result of or subsequent to any breach of these Terms.
Insolvency

If the Customer commits or is involved in any act of insolvency, it will be deemed in default under these Terms. An act of insolvency includes bankruptcy, liquidation, receivership, administration or the like and failure to pay in accordance with these Terms.
All Divisions

The Customer agrees that these Terms will apply to all dealings between the Customer and MTB Direct and any associated parties.
Recalls

In the event of a product recall ("Recall") the Customer must give MTB Direct such assistance as MTB Direct reasonably requires in relation to that Recall.
Pallets

The Customer will return all pallets and any re-useable packaging provided with Goods and indemnifies MTB Direct for the full replacement cost thereof, if not returned to MTB Direct promptly and in good order.
Exclusion of warranty

To the extent permissible by law (including under the Australian Consumer Law), MTB Direct is not bound by any warranty (and the Customer agrees not to make any claim against MTB Direct in relation to any warranty) in respect of Goods or services unless all Goods and services have paid for in full without set-off or deduction of any kind.
MTB Direct not Manufacturer

To the extent permissible by law (including under the Australian Consumer Law):
1. the Customer agrees that MTB Direct is not the manufacturer of any Goods;
2. Goods are sold subject to any manufacturer's trading terms and conditions and are covered (if at all) by any manufacturer's warranty applicable thereto.
3. MTB Direct shall not be liable to any party as manufacturer
4. MTB Direct will use all reasonable endeavours to assist the Customer to claim upon the actual manufacturer at the Customers cost in all things; and
5. if MTB Direct is deemed manufacturer of any Goods in any circumstances, the Customer will fully indemnify MTB Direct against any liability loss or cost associated with or arising as a result of such deeming.
The Competition and Consumer Act 2010 (Cth) and Fair Trading Acts
1. Nothing in these Terms is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
2. If the Customer is a consumer for the purposes of the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 ("ACL"), nothing in these Terms limits any remedy available for a failure of the guarantees in sections 56 and 57 of the ACL.
Limitation of Liability
1. Australian Consumer Law Warranty: Our goods come with guarantees that cannot be excluded under Australian consumer law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also 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.
2. This clause is subject to any contrary provisions of any applicable law (including without limitation the Australian Consumer Law Schedule of the Competition and Consumer Act 2010), the operation of which cannot be excluded.
3. MTB Directs' liability for a breach of these Terms, a condition, warranty or a guarantee of supply or in relation to defective goods and services is limited to (at MTB Directs' election):
  1. in the case of goods MTB Direct supplies: A. the replacement of the goods or the supply of equivalent goods; B. the repair of the goods; or C. the payment of the cost of replacing the goods or of acquiring equivalent goods;
  2. in the case of services MTB Direct supplies, the supplying of the services again, and the Customer will limit any claim upon MTB Direct accordingly.
4. If goods or services MTB Direct supplies are of a kind ordinarily acquired for personal, domestic or household use or consumption, and there is a "major" failure of the goods or services to meet any consumer guarantee under Schedule 2 (The Australian Consumer Law) of the Competition and Consumer Act 2010 (Cth) then the Customer may choose one of the following remedies:
  1. in the case of goods MTB Direct supplies: A. ask for a refund; B. return the goods and ask for an identical replacement, or one of similar value if reasonably available; or C. keep the goods and ask for compensation for the drop in value caused by the problem; or
  2. in the case of services MTB Direct supplies: A. cancel the contract and pay a reasonable amount for the work done, or seek a refund; or B. for money already paid, keep the contract and negotiate a reduced price for the drop in value of the service — this may mean asking for some of the money back the Customer has already paid.
Safety Requirements – Bicycle Sales
1. The Customer must deliver all literature, owner's manual and instructions supplied by MTB Direct with a given bicycle to the purchaser of that bicycle, and urge that it be read before use.
2. The Customer shall carefully orient each purchaser to the particular bicycle purchased, to review safety equipment, to explain that the bicycle will require expert service and to recommend use of an approved helmet.
3. The Customer shall maintain orderly records of all MTB Direct bicycles sold along with purchaser names, addresses and phone numbers so that in the event a recall becomes necessary, the purchasers can be contacted.
4. To the extent permissible at law (including under the Australian Consumer Law), the Customer indemnifies MTB Direct and shall keep MTB Direct fully and effectively indemnified from and against all actions, claims, demands, costs, losses or expenses of any nature brought by any person against MTB Direct ("Claim") as a result of or in connection with or arising out of the use of the Goods, to the extent that the Claim is caused by, results from, or arises out of the failure by the Customer to comply with any of the requirements of this clause.
Approved Website
1. The Customer may sell the Goods on the Customer's website provided it is clearly and legally the online distribution channel for the approved business, matching the ACN/ABN of the approved customer.
2. The Customer must not sell the Goods through electronic channels other than the approved Website.
General Web Site Restrictions
1. The Customer must not allow the Website to link to, or provide data feeds to, any "Transactional Website" or permit any Transactional Website to link to the Website. For the purpose of this clause 46, "Transactional Website" shall mean a shopping portal, online marketplace, or any other website that either:
  1. is capable of accepting orders from consumers; or
  2. creates the perception that orders are accepted on the site, although the consumers are redirected to other third-party websites for order placements.
2. The Customer must not use the words "MTB Direct" or any trademarks or any trademarks owned by the brands it distributes; or the names of any brands, or any words associated with the brands, MTB Direct distributes, A. in metadata on the Website; B. as internet search terms; C. in any domain name or URL address.
3. The Customer must not purchase or register:
  1. the words "MTB Direct" or associated terms
  2. any MTB Direct trademarks or any trademarks owned by the brands it distributes; or (ii) the names of any brands, or any words associated with the brands, MTB Direct distributes.
Sales and Distribution
1. To the extent permissible at law (including under the Australian Consumer Law), the Customer must not directly or indirectly offer for sale, sell, divert, ship, distribute or otherwise dispose of Goods to:
  1. any individual that the Customer knows, or has reason to believe, will resell the Goods
  2. any distributors or wholesalers;
  3. any other person under circumstances where it knows or should know, based on the circumstance of the transaction, that the Goods are intended for resale or will likely be resold.
2. The Customer agrees to cooperate with MTB Direct to ensure compliance with the provisions of this clause, which will include the right for MTB Direct to inspect the Customer's books and records upon reasonable notice during business hours. The Customer further agrees to reimburse MTB Direct for any costs incurred as a result of the Customer's breach of this clause, including reasonable legal fees, investigator's costs and costs to repurchase diverted Goods. The Customer must not purchase authentic MTB Direct products from any third party.
Counterfeit Products

The Customer must not manufacture, purchase or sell, offer to sell, or distribute, including at no cost, counterfeit products of the brands represented by MTB Direct.
Termination of Supply
1. MTB Direct may terminate supply without notice if the Customer is in breach of any of these Terms upon which the Customer agrees to immediately stop selling the Goods and return any Goods to MTB Direct.
2. The Customer agrees that upon MTB Directs' request, it will immediately remove all references to MTB Direct and the Goods from its advertising and marketing materials and its website. All costs and losses in relation to such removal will solely be borne by the customer.