Manitou Center Sydney

Terms & Conditions

TERMS & CONDITIONS

  • DEFINITIONS
    In these Conditions:
    1. “the Supplier” means MANITOU AUSTRALIA PTY LIMITED; its successors and assigns or any person acting on behalf of and with the authority of Manitou Australia Pty Ltd.
    2. “the Client” means any person acting on behalf of and with the authority of the Client requesting the Supplier to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
      1. if there is more than one Client, is a reference to each Client jointly and severally; and
      2. if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
    3. includes the Client’s executors, administrators, successors and permitted assigns.
      “the Goods” means all products or goods (including “Capital goods” meaning Machines and Attachments and Service parts) supplied by the Supplier to the Client at the Client’s request;
    4. “Service parts” means all spare, service, repair, or replacement parts of any Goods, accessories and/or consumables supplied to the Client, either separately or deposited incidentally by the Supplier in the course of conducting, or supplying to the Client the Goods;
    5. “the Services” means any work labour or services carried out by the Company.
    6. “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between the Supplier and the Client in accordance with clause 5 below
    7. “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
  • APPLICATION
    1. All orders are accepted only upon the Conditions herein contained to the exclusion of any other terms or conditions expressed or implied (including terms contained in a document produced by the Purchaser) and these terms shall prevail to the exclusion of any other terms and conditions. Unless expressly accepted by the Company in writing and signed by an authorised representative of the Company no addition to our modification of these Conditions shall apply.
  • ACCEPTANCE
    1. The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts Delivery of the Goods and/or Services.
    2. These terms and conditions may only be amended with the Supplier’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Supplier.
    3. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2003 or any other applicable provisions of that Act or any Regulations referred to in that Act.
  • ERRORS AND OMISSIONS
    1. The Client acknowledges and accepts that the Supplier shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
      1. resulting from an inadvertent mistake made by the Supplier in the formation and/or administration of this contract; and/or
      2. contained in/omitted from any literature (hard copy and/or electronic) supplied by the Supplier in respect of the Goods and/or Services.
      3. 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 the Supplier; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.
  • CHANGE IN CONTROL
    1. The Client shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address and contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by the Supplier as a result of the Client’s failure to comply with this clause.
  • PRICE AND PAYMENT
    1. At the Supplier’s sole discretion, the Price shall be either:
      1. as indicated on any invoice provided by the Supplier to the Client; or
      2. the Supplier’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
    2. The Supplier reserves the right to change the Price:
      1. if a variation to the Goods which is to be supplied is requested; or
      2. if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
      3. where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, availability of machinery, safety considerations, prerequisite work by any third party not being completed etc) which are only discovered on commencement of the Services;
      4. in the event of increases to the Supplier in the cost of labour or materials, or fluctuations in currency exchange rates, which are beyond the Supplier’s control.
    3. Variations will be charged for on the basis of the Supplier’s quotation, and will be detailed in writing, and shown as variations on the Supplier’s invoice. The Client shall be required to respond to any variation submitted by the Supplier within ten (10) working days. Failure to do so will entitle the Supplier 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.
    4. At the Supplier’s sole discretion, a deposit may be required.
    5. Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by the Supplier, which may be:
      1. on Delivery;
      2. before Delivery;
      3. by way of instalments in accordance with the Supplier’s payment schedule;
      4. thirty (30) days following the end of the month of invoicing in which the invoice and/or statement is posted/emailed to the Client’s address or address for notices;
      5. the date specified on any invoice or other form as being the date for payment; or
      6. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Supplier.
    6. Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge may apply per transaction), or by any other method as agreed to between the Client and the Supplier.
    7. The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute.
    8. Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Supplier an amount equal to any GST the Supplier must pay for any supply by the Supplier under this or any other agreement for the sale/hire of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client 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.
  • DELIVERY
    1. Delivery of the Goods (“Delivery”) is taken to occur at the time that:
      1. the Client or the Client’s nominated carrier takes possession of the Goods at the Supplier’s address; or
      2. when the Goods leave the Supplier’s premises whether they are to be delivered by the Supplier or the Supplier’s nominated carrier.
    2. At the Supplier’s sole discretion, the cost of Delivery is either included in, or in addition to, the Price.
    3. The Supplier may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
    4. Any time specified by the Supplier for delivery of the Goods is an estimate only and the Supplier will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that the Supplier is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then the Supplier shall be entitled to charge a reasonable fee for redelivery and/or storage.
  • TITLE
    Notwithstanding the provisions of clause 7:
    1. Subject to the rest of this clause 8, no legal or equitable title in the Goods sold or supplied to the Client will pass to the Client until the Company has received payment from the Client of the contract price in full with all GST thereon together with all other moneys that may be or become due from the Client to the Company thereunder, on any account between the Client and the Company, or under any other contract made between the Client and the Company. Until all such sums due to the Company by the Client have been paid in full, the Company has a security interest in all Goods and their proceeds.
    2. If payment is made by the Client by cheque, bill of exchange, promissory note, other negotiable instrument (and whether payable immediately or in the future) or in any other way which does not involve the Company receiving the full sum due in cleared funds, payment shall not for the purpose of these provisions be treated as having been received until the Company has received cleared funds.
    3. Subject to clause 8(k), until the legal and equitable title to the Goods passes to the Client, the Client:
      1. shall hold the Goods as bailee for the Company returnable at will and without prior demand by the Company;
      2. shall, upon demand by the Company, immediately deliver up the Goods to the Company;
      3. hereby authorises the Company to enter upon the premises upon which the Goods are stored for the purpose of taking possession thereof; and
      4. shall store such Goods, whilst in the possession of the Client, separately from any other goods and in a manner which makes them readily identifiable as the Goods of the Company.
    4. At any time the Company shall be entitled to enter the Client’s premises for the purpose of inspecting the Goods and all stock entries, books of account, invoices, sales ledgers and other documents pertaining to them and for the purposes of collecting or taking possession of the Goods or any of them and the Client shall be responsible for all the Company’s costs and expenses in connection with so doing and the Company shall not be liable for any damage caused by entering the Client’s premises
    5. Subject to this clause 8, the Client may sell any Goods in the ordinary course of business which may have been delivered but which are still owned by the Company PROVIDED THAT the Company may by notice given at any time terminate the right to sell and such right shall terminate automatically upon a receiver or administrative receiver being appointed over any assets of the Client or the Client going into liquidation or becoming subject to an administration order
    6. If pursuant to the rights granted in subclause (e) the Client sells the Goods before the contract price has been satisfied, the proceeds of any such sales will be the property of the Company and must be held by the Client on a fiduciary basis as trustee for the benefit of the Company, payable to the Company immediately without demand, until the contract price has been paid in full. The Client shall open a separate account with its bankers for the sole purpose of receiving such proceeds of sale of the Goods and paying out of it the price of the Goods to the Company.
    7. If the Goods are attached, fixed or incorporated into any property of the Client, title in the Goods will remain with the Company until the Client has made payment for all of the Goods, and where those Goods are mixed with other property so as to be part of or a constituent of any new goods or property, title to those goods or property shall be deemed to be assigned to the Company as security for the full satisfaction by the Client of the full amount owing between the Company and the Client.
    8. The Company shall not be liable for, and the Client expressly releases the Company from any liability for, any damage, costs or losses arising from or in connection with the recovery of possession of the Goods by the Company.
    9. The Client agrees that ss. 95, 96, 117, 118, 120, 121, 125, 130, 132(3)(d), 132(4), 135, 142 and 143 (“Relevant Sections”) of the Personal Property Securities Act 2009 (PPSA) do not apply to the enforcement by the Company of any security interest created or provided for by the contract to which the PPSA applies. The Client waives any right it may have under the Relevant Sections of the PPSA on such enforcement.
    10. The Client acknowledges receipt of a copy of this contract and waives any right it may have to receive from the Company a copy of any financing statement, financing change statement or verification statement that is registered, issued or received at any time in relation to this contract.
    11. Until title of the Goods passes to the Client, the Client will not purport to assign any right or interest therein to any other person except as provided in clause 8(e)
    12. The Client shall promptly do whatever the Company reasonably requests of the Client to:
      1. ensure the Company’s rights in relation to the Goods are enforceable, perfected and effective; and
      2. enable the Company to apply for any registration, or give any notification, in connection with the contract to preserve the Company’s rights in relation to the Goods.
    13. The Client must pay all of the Company’s costs and expenses in relation to compliance with any demand under the PPSA, or in relation to any application for, or the obtaining of, any court order to maintain any registration in respect of any security interest created under the contract and the serving of such court order on the Client or the Registrar of Personal Property Securities.
    14. The Client must supply all details requested by the Company to enable the Company to register a financing statement in respect of the Goods, including providing notice to the Company if those details change.
    • SECURITY AND CHARGE
      1. In consideration of the Supplier agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
      2. The Client indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under this clause.
      3. The Client irrevocably appoints the Supplier and each director of the Supplier as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 9 including, but not limited to, signing any document on the Client’s behalf.
    • DEFECTS, WARRANTIES AND RETURNS, COMPETITION AND CONSUMER ACT 2010 (CCA)
      1. The Client must inspect the Goods on Delivery and must within seven (7) days notify the Supplier in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Supplier to inspect the Goods.
      2. Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
      3. The Supplier acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
      4. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Supplier makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. The Supplier’s liability in respect of these warranties is limited to the fullest extent permitted by law.
      5. If the Client is a consumer within the meaning of the CCA, the Supplier’s liability is limited to the extent permitted by section 64A of Schedule 2.
      6. If the Supplier is required to replace the Goods under this clause or the CCA, but is unable to do so, the Supplier may refund any money the Client has paid for the Goods.
      7. If the Client is not a consumer within the meaning of the CCA, the Supplier’s liability for any defect or damage in the Goods is:
        1. limited to the value of any express warranty or warranty card provided to the Client by the Supplier at the Supplier’s sole discretion;
        2. limited to any warranty to which the Supplier is entitled, if the Supplier did not manufacture the Goods
        3. otherwise negated absolutely.
      8. Subject to this clause 10, returns will only be accepted provided that:
        1. the Client has complied with the provisions of clause 10.1; and
        2. the Supplier has agreed that the Goods are defective; and
        3. the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
        4. the Goods are returned in as close a condition to that in which they were delivered as is possible.
      9. Notwithstanding clauses 10.1 to 10.8 but subject to the CCA, the Supplier shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
        1. the Client failing to properly maintain or store the Goods;
        2. the Client using the Goods for any purpose other than that for which they were designed;
        3. the Client continuing the use of the Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
        4. the Client failing to follow any instructions or guidelines provided by the Supplier;
        5. fair wear and tear, any accident, or act of God.
      10. Notwithstanding anything contained in this clause if the Supplier is required by a law to accept a return then the Supplier will only accept a return on the conditions imposed by that law.
    • COPYRIGHT AND DESIGN
      1. Notwithstanding the sale of the Goods the Company reserves right to commence proceedings against the Purchaser in respect of any breach of the Company’s registered designs, patents, copyright or trademarks existing in (1) the Goods, (2) any drawings designs or other specifications of the Goods or (3) any other materials supplied by the Company to the Purchaser.
    • DEFAULT
      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 the Supplier’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
      2. If the Client owes the Supplier any money the Client shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Supplier’s collection agency costs, and bank dishonour fees).
      3. Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable if:
        1. any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Client will be unable to make a payment when it falls due;
        2. the Client has exceeded any applicable credit limit provided by the Supplier;
        3. the Client 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
        4. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
    • CANCELLATION
      1. Without prejudice to any other remedies the Supplier may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Supplier may suspend or terminate the supply of Goods to the Client. The Supplier will not be liable to the Client for any loss or damage the Client suffers because the Supplier has exercised its rights under this clause.
      2. The Supplier may cancel any contract to which these terms and conditions apply or cancel Delivery at any time before the Goods are delivered by giving written notice to the Client. On giving such notice the Supplier shall repay to the Client any money paid by the Client for the Goods. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.
      3. In the event that the Client cancels Delivery the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Supplier as a direct result of the cancellation (including, but not limited to, any loss of profits).
      4. Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
    • PRIVACY ACT
      1. The Client agrees for the Supplier to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by the Supplier.
      2. The Client agrees that the Supplier may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
        1. to assess an application by the Client; and/or
        2. to notify other credit providers of a default by the Client; and/or
        3. to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
        4. to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two years.
      3. The Client consents to the Supplier being given a consumer credit report to collect overdue payment on commercial credit.
      4. The Client agrees that personal credit information provided may be used and retained by the Supplier for the following purposes (and for other agreed purposes or required by):
        1. the provision of Goods; and/or
        2. analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
        3. processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
        4. enabling the collection of amounts outstanding in relation to the Goods.
      5. The Supplier may give information about the Client to a CRB for the following purposes:
        1. to obtain a consumer credit report;
        2. allow the CRB to create or maintain a credit information file about the Client including credit history.
      6. The information given to the CRB may include;
        1. personal information as outlined in 14.a above;
        2. name of the credit provider and that the Supplier is a current credit provider to the Client;
        3. whether the credit provider is a licensee;
        4. type of consumer credit;
        5. details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
        6. advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and the Supplier has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
        7. information that, in the opinion of the Supplier, the Client has committed a serious credit infringement;
        8. advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
      7. The Client shall have the right to request (by e-mail) from the Supplier:
        1. a copy of the information about the Client retained by the Supplier and the right to request that the Supplier correct any incorrect information; and
        2. that the Supplier does not disclose any personal information about the Client for the purpose of direct marketing.
      8. The Supplier will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
      9. The Client can make a privacy complaint by contacting the Supplier via e-mail. The Supplier will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at oaic.gov.au.
    • UNPAID SETTLER’S RIGHT
      1. Where the Client has left any item with the Supplier for repair, modification, exchange or for the Supplier to perform any other service in relation to the item and the Supplier has not received or been tendered the whole of any moneys owing to it by the Client, the Supplier shall have, until all moneys owing to the Supplier are paid:
        1. A lien on the item; and
        2. 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.
      2. The lien of the Supplier shall continue despite the commencement of proceedings, or judgment for any moneys owing to the Supplier having been obtained against the Client.
    • SERVICE OF NOTICES
      1. Any written notice given under this contract shall be deemed to have been given and received:
        1. by handing the notice to the other party, in person;
        2. by leaving it at the address of the other party as stated in this contract;
        3. by sending it by registered post to the address of the other party as stated in this contract;
        4. if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
        5. if sent by email to the other party’s last known email address.
      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.
    • TRUST
      1. If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (Trust) then whether or not the Supplier may have notice of the Trust, the Client covenants with the Supplier as follows:
        1. the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
        2. the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client 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;
        3. the Client will not without consent in writing of the Supplier (the Supplier will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
          1. the removal, replacement or retirement of the Client as Trustee of the Trust;
          2. any alteration to or variation of the terms of the Trust;
          3. any advancement or distribution of capital of the Trust; or
          4. any resettlement of the trust property.
    • GENERAL
      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.
      2. These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia, the state in which the Supplier has its principal place of business, and are subject to the jurisdiction of the courts in that state.
      3. Subject to clause 10, the Supplier shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Supplier of these terms and conditions (alternatively the Supplier’s liability shall be limited to damages which under no circumstances shall exceed the Price).
      4. The Supplier may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
      5. The Client cannot licence or assign without the written approval of the Supplier.
      6. The Supplier may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Supplier’s sub-contractors without the authority of the Supplier.
      7. The Client agrees that the Supplier may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for the Supplier to provide Goods to the Client.
      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.
      9. Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.

    GET IN TOUCH

    Block 6, 1B Unwin Street

    Rosehill NSW 2142

    (02) 9517 3174

    contact@manitou-center.com.au

    SAY HELLO