Manchester Tank & Equipment Co.Terms and Conditions

Terms and Conditions of Purchase


ENTIRE AGREEMENT
Buyer may agree from time to time to purchase Goods and/or Services, which together with the terms on the face hereof, supersede any other or inconsistent terms of Seller. These terms and conditions, any applicable order for Goods and/or Services from Buyer (an “Order”) and any other specifications of Buyer constitute the entire agreement between the parties with respect to Goods and Services (collectively the “Agreement”). Neither this Agreement, nor any modification, amendment or waiver to it, nor any cancellation, change or return of any Order, will be binding on Buyer until agreed in writing by Buyer’s authorized representative. No representation, promise or term not set forth herein has been or may be relied on by Seller, and any terms not contained in this Agreement are expressly objected to and rejected. Buyer’s acceptance of any Order, whether oral or written, is based on the express condition that Seller agrees to all terms and conditions of this Agreement. Seller’s acknowledgment of this Agreement, the delivery of Goods or performance of Services referenced herein or the presentation of an invoice by Seller will constitute Seller’s acceptance of these terms and conditions.
COVERAGE OF AGREEMENT
This Agreement will govern and control all Goods and Services provided by Seller to Buyer, now or in the future, regardless of whether performed pursuant to written Order(s) issued by Buyer, other written agreement(s) executed by the parties, and/or verbal request(s) issued by Buyer, and will remain in effect until either party will provide the other with sixty (60) days advance written notice of termination. The term “Buyer” will include Manchester Tank & Equipment Pty Limited, ABN 29 153 749 252, and its employees, agents, officers, directors, successors and assigns. The term “Seller” will refer to the vendor providing Goods and Services to Buyer, together with its employees, agents, subcontractors, suppliers and all other persons performing Services or supplying Goods on Seller’s behalf. The terms “Goods” or “Services” whether used together or separately, and wherever appearing herein will both mean (i) any and all products, supplies, materials, processes and/or equipment and/or (ii) any and all services, work or labour of any kind furnished or performed by Seller pursuant to this Agreement and any subsequent amendments, changes or modifications hereof.
CONTRACT PRICE; TERMS OF PAYMENT; TRANSPORTATION
The cost of Goods and Services performed by Seller will be those specifically set forth in any applicable Order, except that Buyer will receive the benefit of any price declines to actual time of shipment. All prices set out in any Order must be stated exclusive of any Australian goods and services tax (GST). Unless otherwise stipulated in any applicable Order, Goods will be shipped DAP (Delivered at Place) (per Incoterms 2010). Title will pass to Buyer only upon the earliest of the following events occurring (i) payment of the invoiced price of Goods by Buyer; or (ii) delivery to Buyer’s specified end destination on Buyer’s shipping date AND acceptance by Buyer; provided that Buyer reserves the right to reject and refuse any Goods and Services that do not comply with the terms of this Agreement or Buyer’s specifications and if so rejected, the provisions of Section 3A apply to the payment made by Buyer in respect of Goods. Upon payment, Buyer takes Goods free of any security interest given by Seller.
PAYMENT PROCEEDS HELD ON TRUST
Any payment received by Seller from Buyer prior to delivery of Goods to Buyer’s specified end destination on Buyer’s shipping date AND acceptance by Buyer, shall be held by Seller as trustee for Buyer to the extent of the invoiced price of the undelivered Goods. Unless otherwise agreed in writing by Buyer, within 7 days of failed or non-delivery to Buyer, or notice to Seller of rejection of the Goods by Buyer, Seller must return the purchase price in full to Buyer.
RELATIONSHIP OF PARTIES
Seller will at all times be an independent contractor with respect to Goods and Services and not an agent or employee of Buyer. Any services provided by Seller will be carried on by Seller according to its own methods subject only to specifications and agreements outlined in this Agreement or pursuant to any applicable Order. Seller will have full and exclusive control of its employees engaged in the performance of any Services or manufacture or delivery of any Goods.
INSPECTION
Seller will inspect and test all Goods prior to shipment. Notwithstanding any other inspection or testing or prior payment, all Goods and Services will be subject to inspection and approval by Buyer within a reasonable time after delivery to ensure compliance with plans and specifications at all times, but such approval will not relieve Seller of its duty to ensure proper performance of Services, for which it is solely responsible. The right to perform such inspections will not be construed as a reservation by Buyer of the right to control Seller’s work. Buyer reserves the right to reject and refuse any Goods and Services that do not comply with the terms of this Agreement or Buyer’s specifications.
SELLER’S RESPONSIBILITIES: TIME IS OF THE ESSENCE IN THIS AGREEMENT
Seller will: (1) perform Services diligently and complete Services and deliver Goods in accordance with the provisions of this Agreement; (2) maintain the jobsite free of waste material and rubbish and clear the jobsite upon completion of contracted Services; (3) provide all necessary safeguards for protection and maintenance of Services performed; and (4) repair and restore or replace (at Buyer’s option) any real or personal property belonging to Buyer which Seller may damage or destroy while performing Services and provide all accessories or parts required for Buyer’s use of any Goods at no additional charge. Seller performs Services at its OWN RISK. The safety of all persons employed by Seller, and/or any other person who enters upon Buyer’s premises for reasons relating to Services, will be solely Seller’s responsibility. Seller will enforce strict discipline and maintain good order among its employees and will not employ any unfit person or anyone not skilled in Services assigned to him. Seller will take all reasonable measures and precautions for the safety of its employees and subcontractors so as to prevent injuries to any person who enters upon Buyer’s premises and will comply with all applicable Work Health and Safety legislation regulations or codes of practice (WHS Legislation). Such measures and precautions will include without limitation utilizing all safeguards and warnings necessary to protect against any conditions on Buyer’s premises. Seller will procure that all of its employees, subcontractors or other workers engaged by it in the provision of Services for the Buyer attend any inductions required by the Buyer and comply with any direction, policy or procedure of the Buyer relating to safety. Seller will confine all equipment and its personnel to that area of Buyer’s premises where Services are to be performed and to any other area which Buyer may permit Seller to use. Pursuant to the provisions of WHS Legislation, Seller will furnish its employees a place of employment free from recognized hazards that cause or may cause death or serious physical harm to its employees and will comply with all pertinent standards promulgated under WHS Legislation. It is specifically understood that these duties will be the exclusive responsibility of Seller. Buyer will have no responsibility to ensure that Seller provides a safe working environment and/or complies with occupational safety and health rules, but Buyer will maintain any safety documentation or other information to the extent required by WHS Legislation and will have them available in its engineering and/or personnel office for inspection and copying by Seller. Seller is responsible for inspecting and complying with any safety documentation or other information provided by the Buyer and for making all other necessary inquiries or investigation in order to ensure a safe workplace. Seller will inform its employees of, and require their compliance with, Buyer’s emergency response plan.
INDEMNITY
Seller must, to the fullest extent permitted by applicable law, indemnify, defend and hold Buyer harmless from and against any and all claims, losses, suits, actions, damages, liabilities, settlements, expenses and costs (including without limitation solicitor and own client fees and other costs of litigation) that, directly or indirectly, arise from or relate to (1) any breach or violation of any of the terms of this Agreement, including any warranty or guarantee; (2) sickness, disease, death or injury (“Injuries”) to any person or persons, including without limitation those Injuries that result solely or concurrently from Buyer’s negligence; and (3) loss of or damage to property (including loss of use thereof) of Buyer or others arising out of or in any way connected with the Goods or performance of Services, including without limitation those that result solely or concurrently from Buyer’s negligence; provided, however, that Seller will have no obligation to indemnify Buyer for claims or losses described in clause (2) and/or (3) above that arise solely from the intentional misconduct of Buyer. The Seller may not make any admissions or enter into any settlements without the prior written consent of the Buyer. Seller warrants that any Goods and processes purchased pursuant to this Agreement, and the sale and/or use thereof, will not infringe any U.S. Letter Patent. Seller agrees to indemnify, defend and hold Buyer harmless from and against all claims, losses, suits, damages, actions, liabilities, settlements, expenses and costs (including without limitation solicitor and own client fees and other costs of litigation) that, directly or indirectly, arise from or relate to any infringement or claimed infringement of any patent(s) and/or license(s) arising out of or in any way connected with the use or sale of Goods or performance of the Services. In the event that Seller provides to Buyer any Goods or process to be utilized by Buyer subsequent to Seller’s completion of Services, Seller will, at no expense to Buyer, provide to Buyer upon final payment a paid-up, irrevocable, royalty-free, nonexclusive license to operate said Goods and/or perform said processes. In the event that Seller is unable to secure such license, Seller will, at no expense to Buyer, modify the Goods so as to render them non-infringing or will remove the Goods and replace them with Goods which will not infringe upon any licenses or patents, provided they continue to meet the specifications of this Agreement. It is not necessary for the Buyer to incur any expense or make any payment before enforcing a right of indemnity under this Agreement. Each indemnity under this Agreement is a continuing obligation, separate and independent from the other obligations of the parties, and survives the termination, completion or expiration of this Agreement.
INSURANCE
Seller will maintain and require its subcontractors to maintain in effect throughout the entire term of this Agreement insurance coverage (under an “occurrence” policy form) with an insurance company(ies) and in an amount satisfactory to Buyer in its sole discretion insuring: (a) Seller’s indemnity obligations under this Agreement; (b) workers compensation for occupational Injuries sustained by employees of Seller or its subcontractors as required by law; and (c) Seller’s and/or Buyer’s liability for any property damage or Injuries sustained by any person or persons, including Seller’s employees, which was in any manner caused by, arising from or related to Goods or Services performed by Seller and/or the use or condition of Buyer’s land, buildings, equipment or vehicles, regardless of whether the alleged Injury or damage was caused or alleged to be caused in whole or in part by the conduct of Buyer. Said policy(ies) will name Buyer as an additional insured on the policy(ies) unless otherwise agreed by Buyer in writing. Policy(ies) maintained pursuant to this paragraph will be primary, not excess or contributory, in regard to any other applicable policy(ies) Buyer might have. All policies of insurance will waive any and all rights of subrogation against Buyer. Prior to the commencement of any Services, Seller will furnish certificates of insurance satisfactory to Buyer (or if Buyer so directs, copies of the actual insurance policies including policy schedules, wordings and endorsements) from each insurance carrier certifying compliance with the requirements of this Agreement and stating that the insurance will not be cancelled, non-renewed or modified until the expiration of at least thirty (30) days after written notice of such cancellation or change has been received by Buyer. The insurance required by this paragraph will not limit Seller’s liability to Buyer under this Agreement or limit the rights or remedies available to Buyer at law or in equity.
DEFAULT; REMEDIES
Each of the following will constitute an event of “Default” by Seller: (i) failure to complete Services or deliver Goods within the time or with the quality specified or guaranteed in this Agreement; (ii) failure to comply with any provisions of this Agreement including breach of any warranty or guarantee; (iii) if Seller is, or admits in writing that it is, or is declared to be, or is taken under any applicable law to be (for any purpose), bankrupt, insolvent or unable to pay its debts as and when they fall due, including as a result of a failure to comply with a creditor's statutory demand; (iv) if a controller (as defined in section 9 of the Corporations Act 2001 (Cth)), receiver, receiver and manager, voluntary administrator, liquidator, provisional liquidator, scheme administrator or similar officer is appointed in respect of Seller or any asset of Seller; (v) an application (not withdrawn or dismissed within 7 days) is made to a court for an order, an order is made, a meeting is convened or a resolution is passed, for the purpose of appointing a liquidator to Seller or for the winding up of Seller; (vi) Seller proposes any moratorium or arrangement with creditors for the purposes of deferring or compromising debts owed by it; or (vii) anything analogous to anything referred to in subsections (iii) to (vi) inclusive, or which has a substantially similar effect, occurs with respect to Seller under any law. Upon Seller’s Default, Buyer may immediately, without prejudice to any other right or remedy it may have at law or in equity: (1) terminate the relationship with Seller or any pending Orders with Seller and obtain a return of all money already paid to Seller for Goods and Services, or, at its sole option and without liability to Seller, suspend Services or delivery of Goods and/or exclude Seller from Buyer’s premises until Seller furnishes satisfactory evidence that such Default has been cured; (2) take possession of any of Buyer’s samples and materials held by Seller; (3) finish Services or correct any non-conformity at Seller’s expense by whatever method Buyer deems expedient; (4) reject, repair or replace non-conforming Goods or Services or procure same or similar Goods or Services from another source, in which case Seller will be liable to Buyer for any additional costs or expenses incurred by Buyer; or (5) require Seller to correct or cure any non-conformity at Seller’s expense. In addition, Buyer reserves all other rights and remedies available to it at law or in equity. Seller agrees to cooperate with Buyer in any way reasonably required to complete Services or purchase replacement Goods. In such case, Buyer will pay for that portion of Services previously completed by Seller, subject to the terms and provisions above. In addition to its other remedies, Buyer will have a right of set-off and may withhold from time to time out of monies due Seller, amounts sufficient to fully compensate Buyer for any loss or damage resulting from any Default or breach by Seller. As an alternative, Buyer may, in its sole discretion, extend the delivery or completion schedule or waive any deficiencies in performance; provided, however, that no such waivers or extensions will be binding unless in writing and signed by Buyer’s authorized representative. Buyer will have the right at any time to require adequate assurances of Seller’s performance. In any action or proceeding between Buyer and Seller, Buyer will be entitled to recover all of its legal fees, expenses and other costs of litigation if it prevails on its cause(s) of action or defense(s).
WARRANTIES AND GUARANTEES
Where the Buyer acquires Goods and/or Services from the Seller as a "consumer" under the Australian Consumer Law, these Goods and/or Services come with guarantees that cannot be excluded under the Australian Consumer Law. In addition to all warranties prescribed by law (including, if applicable, the statutory consumer guarantees under the Australian Consumer Law, as well as any applicable implied warranties under the consumer protection laws in the States and Territories of Australia) or express warranties given by Seller, Seller gives the following additional warranties: The Seller warrants that it has clear title to all Goods furnished and that they are free of all liens, encumbrances and security interests. Unless otherwise specified in writing by Buyer, all Goods provided by Seller will be new and all Goods and Services (including any approved samples) will be of good quality, will conform to the requirements of this Agreement and Buyer’s specifications, descriptions and drawings, will be merchantable and fit for Buyer’s intended use and will be free from defects in design, material and workmanship. All Services provided by Seller will be performed by appropriately qualified and competent personnel in a professional manner using the highest standards of quality and workmanship. In the event that Seller encounters unknown or latent conditions which could impair the performance or quality of Goods or Services, Seller will give immediate notice of the nature of such condition to Buyer. Seller will obtain from subcontractors and vendors all available warranties and guarantees with respect to design, materials, workmanship, equipment and supplies furnished for the benefit of Buyer. Should a subcontractor or vendor seek to defend on grounds that Seller committed error, Buyer may enforce this warranty against Seller and Seller will resolve all such issues with the subcontractor/vendor. This warranty will survive Buyer’s acceptance of Goods or Services.
CHANGES AND EXTRAS
Buyer reserves the right to make changes to Services or Goods upon written request to Seller. Before proceeding with any Services involving possible claims for extra compensation, Seller will submit in writing to Buyer a detailed proposal related to the projected increase or decrease occasioned by such contemplated change and will secure from Buyer a written document describing such Goods and fixing Seller’s compensation. If Buyer and Seller cannot promptly agree on the change in price and/or that the matters under discussion constitute a change in Services, Buyer may, at its sole discretion, order Seller to proceed under protest in accordance with Buyer’s interpretation of the matter in dispute. Buyer and Seller will then continue to negotiate an agreement. Seller will not make any changes in Goods or Services (regardless of net cost effect) without prior written consent of Buyer.
LIENS
Seller will pay, satisfy and discharge all mechanics’, suppliers’, materialmen’s and other liens and all claims, obligations and liabilities which may be asserted against Buyer or its property by reason of, or as a result of, Seller’s acts or omissions relating to furnishing of Goods or performance of Services governed or controlled by this Agreement.
SUBLETTING AND ASSIGNING
Seller will not assign any contract and/or purchase order or sublet or delegate any part of Services to be performed on Buyer’s premises without the prior written consent of Buyer. In the event that such consent is given, it will not relieve Seller from any of its obligations under this Agreement or of any contract, Order or agreement (whether written or oral) between Buyer and Seller. Any transferee or subcontractor will be considered Seller’s agent and, as between Buyer and Seller, Seller will be and remain liable as if no such transfer or subletting had been made. Any attempted assignment, sublet or delegation in contravention of this paragraph will be void. Notwithstanding the above, however, this Agreement and the terms and conditions contained herein are enforceable against Seller’s successors and permitted assigns.
LABOR RELATIONS
Seller will promptly undertake all reasonable efforts to prevent or resolve any strikes or other labor disputes among its employees or the employees of its subcontractors. If such a dispute occurs, Seller will take all reasonable actions to minimize any disruption of performance of Services. Seller will immediately advise Buyer in writing of any possible labor dispute which may affect the performance of Services.
COMPLIANCE WITH LAWS
Seller in the performance of this Agreement will comply with all applicable federal, state and local laws, codes, regulations and ordinances, including all obligations under the Fair Work Act (Cth.) 2009, WHS Legislation and workers compensation legislation. Seller will not discriminate against any person because of race, religion, national origin, age sex, sexual orientation, marital status, pregnancy, disability or any other ground prohibited under any applicable discrimination legislation. Seller will obtain, at its sole expense, all necessary permits and licenses prior to commencement of Services and make copies of all such permits and licenses available to Buyer upon request. If Services involve or require Seller to transport or dispose of any material or waste, prior to beginning Services, Seller will furnish Buyer with copies of all applicable or required permits and licenses and notify Buyer in writing of the final and any interim destination of the material or waste, including in such notice verification that the place of disposal is validly authorized and permitted to accept the material or waste. In connection with this Agreement, the parties shall comply with all applicable international trade laws, including but not limited to laws and regulations regarding export controls, economic sanctions, trade embargoes and anti-boycott restrictions, and all applicable anti-corruption laws, including but not limited to the Australian Criminal Code, U.S. Foreign Corrupt Practices Act (as amended) and the United Kingdom Bribery laws.
TAXES
Seller will pay all contributions, taxes and premiums payable under federal, state and local laws measured upon the payroll of employees engaged in performance of Services under this Agreement, including FICA and unemployment compensation premiums and all customs, excise, transportation, occupational and other taxes applicable to receipts under this Agreement and on all Goods or Services furnished. The Buyer will only pay an additional amount on account of any GST imposed on the supply of goods or services to the Buyer by the Seller under this Agreement following receipt of a valid tax invoice for that supply and no earlier than the time at which the Buyer must pay the price for that supply in accordance with the Order.
CHOICE OF LAW; SUBMISSION TO JURISDICTION; CONSENT TO VENUE
This Agreement and all rights and obligations hereunder will be governed by and construed in accordance with the laws of the State of Victoria, Australia, without regard to its conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. The parties irrevocably agree that the exclusive venue for resolution of all claims, suits, actions and proceedings between the parties will be the courts of Victoria, Australia, to which jurisdiction Seller hereby irrevocably submits. Seller waives any objection or defense that Seller is not personally subject to the jurisdiction of the courts of Victoria, Australia; that venue of the action is improper; and that the action, suit or proceeding is brought in an inconvenient forum. In addition to any other mode of service of process authorized by law, Seller consents to service of process by registered or certified mail.
WAIVER
No waiver of any provision, right or remedy contained in this Agreement, including the terms of this paragraph, is binding on, or effective against, Buyer unless expressly set forth in writing and signed by Buyer’s authorized representative. Seller expressly agrees that no right or remedy provided for in this Agreement can be waived through course of dealing, course of performance or trade usage. Seller expressly agrees and acknowledges that reliance on any waiver without the written consent of Buyer is unreasonable. Waiver by Buyer of any breach will be limited to the specific breach so waived and will not be construed as a waiver of any subsequent breach. Buyer’s approval or consent to any action proposed by Seller will not be considered an agreement to the propriety, fitness or usefulness of the proposed action, and will not affect Seller’s obligation to strictly comply with this Agreement and all related Orders.
FORCE MAJEURE
Other than as set forth herein, neither party will be liable for delays in performance caused by acts of God, strikes or labor disturbances or other delays in performance due to any contingency beyond the party’s control. In the event of any such occurrence, the period for the party’s performance affected thereby will be extended for such period as reasonably required under the circumstances.
CUMULATIVE NATURE OF REMEDIES:
Buyer’s remedies under this Agreement are cumulative and in addition to any other remedies available to Buyer, whether at law, equity or otherwise.
SEVERABILITY
If any provision or part of a provision contained in this Agreement is held by a court of competent jurisdiction to be contrary to law or public policy, the remaining provisions of the Agreement will remain in full force and effect.
CONSTRUCTION
provision of this Agreement may be construed against Buyer as the drafting party.
ARBITRATION
At Buyer’s sole option and discretion, any disputes, claims or controversies (individually or collectively, a “Dispute”) between Seller and Buyer arising out of or relating to the transactions contemplated by this Agreement, including without limitation any claim based on or arising from an alleged tort, may be resolved by arbitration in accordance with the ACICA Arbitration Rules. The seat and the place of arbitration shall be Sydney, Australia. The language of the arbitration shall be English. This arbitration agreement will be governed by the law applying in Victoria, Australia. Notwithstanding the foregoing, Buyer reserves the right to resolve or bring any Dispute in a court of competent jurisdiction in accordance with paragraph 17 of these Terms and Conditions.

 

 

Terms and Conditions of Sale


GENERAL
In these Terms and Conditions:
  • The Company shall mean Manchester Tank & Equipment Pty. Ltd.
  • The Customer shall mean the addressee of this document or quotation.
  • The contact shall include any terms and conditions set out in or accompanying the Company’s tender or quotation, together with the following terms and conditions and IN THE EVENT OF ANY INCONSISTENCY THE FORMER SHALL PREVAIL.
  • In any legal actions the purchaser agrees to have such matters determined within jurisdiction of the Victorian Courts.
QUOTATIONS
Unless otherwise stated the Company’s tender or quotation will be valid for a period of thirty days from date of Issue, after which time acceptance of any order placed is subject to written confirmation. The date of acceptance shall be the date upon which notice in writing of acceptance by the Customer of a tender or quotation is received by the Company.
PRICE
Unless otherwise stated all prices quoted are ex our works/despatch centre and do not include freight, insurance or sales taxes.

The contract price is based on the cost from the Company’s principals or subcontractors, plus duty, landing and other inward charges and cost including foreign exchange costs ruling at the date of quotation unless otherwise stated, and if variations should occur prior to delivery ex the Company store the contract price may be amended by the Company.
TAX
When applicable, Tax will be charged to the Customer at the rate ruling at the date of Invoice.
DELIVERY
Availability of stock is as quoted subject to receipt of prior orders. Every endeavour will be made to complete delivery within the period stated but no liability can be accepted in regard thereto. Unless otherwise stated the Company will not accept cancellation of an order due to late delivery, nor shall it be liable for consequential damages of any kind arising out of late delivery or non-delivery, unless such liability cannot be excluded by law. Delivery may be made in one or more parcels and at different times or by separate shipments or deliveries. Each parcel shall form a separate contract, delivered and be accepted and paid for accordingly, notwithstanding late delivery or non-delivery of any parcel.
TERMS OF PAYMENT
Terms of payment for approved credit account customers are nett 7 days for equipment otherwise nett 30 days. For non-account customers terms are nett cash on delivery. For extended delivery contracts or for equipment engineered to Customers specification, progressive payments will be required and such terms will be stated on the quotation. The company reserves the right to charge interest up to 1.5% per month on overdue accounts. Credit facilities may be withdrawn at the Company’s discretion without notice, following any breach of any terms or conditions by the purchaser.
PASSING OF TITLE AND RISK, DAMAGE IN TRANSIT AND REPOSSESSION.
  • It is expressly agreed that the title to equipment sold hereunder shall not pass to the customer until payment has been received in full by the Company but the equipment or the part thereof delivered shall nevertheless be at the customer’s risk from the time of delivery and the customer shall indemnify the Company against all loss or damage to the equipment from whatever cause occurring after such time and the Company shall not be under any obligation to give any statutory notice or other notice that it accepts no responsibility.
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  • If the customer shall fail to pay for the equipment in full by the due date or, if the customer shall before then become bankrupt or commit any act of bankruptcy or, compound with its creditors or, go into liquidation whether voluntary or otherwise or have a Receiver or Manager appointed, the Company is irrevocably authorised at any time thereafter to enter upon any premises where the equipment is situated and to take possession of and remove the same.
INSURANCE
The Company will not insure any deliveries unless instructed in writing to do so. All insurance charges so incurred will be charged to the customer.
STRIKES, LOCK-OUTS & OTHER MAJEURES
The Company will not be responsible for any loss or damage or delay arising from strikes or lock-outs or from any clauses beyond its control including, without being limited to: “unavailability of raw materials, riots, fires, floods, breakdowns, Act of God or of governments, whether these factors affect the Company or its suppliers and whether occurring within or outside of Australia”.
INSPECTION AND CLAIMS FOR A DEFECTIVE DELIVERY
Subject to the rights conferred on a consumer under Schedule2 to the Competition and Consumer Act 2010 (as amended) (Australian Consumer Law) where such is applicable, the customer is responsible for immediate examination of equipment upon delivery and any deficiency or damage thereof must be reported to the Company in writing within 7 days of receipt otherwise no claim under the express warranty set out in clause 14 for such damage or deficiency will be entertained.
RETURN OF GOODS
Subject to the rights conferred on a consumer under the Australian Consumer Law, where such is applicable to the return of goods, when goods are returned to the Company for any reason whatsoever, prior arrangements for their acceptance must have been made by the Company. Unless such prior arrangements are made, the Company will not accept any responsibility or liability for goods returned, unless such obligation is implied by law. If credit is required for the goods returned the Customer must advise the Company of the date, delivery point and document numbers relating to the original delivery and should obtain proof of delivery to the Company. The goods must be in good order and condition. If goods are returned by the Customer for reasons other than defective delivery, warranty or failure to comply with a consumer guarantee under the Australian Consumer Law, unless other arrangements are made, the credit allowable will not exceed 80% of the net invoice value of the goods at date of delivery. Except in the instance of defective delivery the Customer is responsible for all freight and cartage charges to the Company’s store.
ALTERATIONS & ADDITIONS
If after commencement of design, production or manufacturer by the Company any specification changes are requested, the cost of such changes will be borne by the Customer and the delivery time as originally advised may be adjusted by the Company.
QUALITY AND TECHNICAL INFORMATION
Unless otherwise specified in the Company’s quotations or order confirmation, all equipment will be of standard design and manufacture, and according to the quoted standards, carefully inspected and where applicable submitted to its standard test at the works before despatch. Specifications, drawings and particulars of weights and dimensions specified by the Company are to be regarded as approximate only. Descriptions and illustrations contained in catalogues, price lists and other written material are intended merely to present a general idea of the goods described or illustrated therein and they shall not form part of any contract.
WARRANTY
  • Where you acquire Goods as a "consumer" under the Australian Consumer Law, our Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for 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. The Company will also conform to the general conditions outlined for the supply of Plant and Machinery for Export prepared under the auspices of the United Nations Economic Commission for Europe, Geneva, March 1953. In addition to all rights and remedies to which the Customer may be entitled under the Australian Consumer Law and any other relevant legislation, the Company also provides the express warranty set out below. This express warranty is given by:

     

    • Name: Manchester Tank & Equipment Pty. Ltd.
    • Company address: 21 McMillan Road, Echuca Vic 3564
    • Company telephone number: 1800 335 383
    • Company email address: sales@mantank.com.au

     

    The Warranty period shall commence from the date of delivery to the Customer. Any variation to this period must be agreed to by the Company in writing.

     

    THE COMPANY’S EXPRESS WARRANTY IS LIMITED TO NEW MANCHESTER TANK & EQUIPMENT PTY. LTD. EQUIPMENT AND IS FOR A PERIOD OF 12 MONTHS OR 2,000 HOURS OF OPERATION, WHICHEVER OCCURS FIRST, UNLESS OTHERWISE AGREED IN WRITING FOR SPARE PARTS THE PERIOD OF WARRANTY IS 90 DAYS AND FOR SERVICE LABOUR 30 DAYS.

     

    The Company’s express warranty is limited to defects resulting from faulty design, materials workmanship only, fair wear and tear excepted, but does not include freight charges, labour costs and travelling expenses incurred by the Company on warranty work.

     

    All parts claimed to be defective are to be returned at the Customer’s risk and freight paid to the nearest MANCHESTER TANK SERVICE AGENT for examination. The correct operation and maintenance of the equipment in accordance with the directions laid down in the operating manual supplied, is the purchaser’s responsibility and any contravention of these instructions will render the warranty null and void. In the case of equipment not of the Company’s manufacture, the Company’s express warranty is limited to the extent, if any, of the warranty given by the manufacturer to the Company or set out in any operation, maintenance or parts manuals issued with the equipment. The Company’s express warranty does not cover consequential damages resulting from failure of parts or equipment or subsequent expenses or losses. This warranty is extended by the Company only to the first user of MANCHESTER equipment purchased from the Company or from one of its authorised distributors and may not be transferred to any other person. The benefits conferred by this warranty are in addition to all non-excludable rights and remedies covered by the Australian Consumer Law and any other statutory rights to which the Customer may already be entitled. This warranty does not exclude, restrict or modify any such rights or remedies that are implied by law.
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  • Where you acquire Goods NOT as a "consumer" under the Australian Consumer Law (eg acquiring the Goods for the purposes of re-supply by way of sale or lease of the Goods), to the extent permitted by law, the express warranties in these Terms and Conditions are exclusive and in lieu of all other warranties whether express or implied by law or statute or arising from trade usage or course of dealing.
LIMITATION OF LIABILITY IN "CONSUMER" TRANSACTIONS.

 

  • To the extent permitted by law and subject to clause 15.2, the liability of the Company to the Customer for any non-compliance with a statutory guarantee or loss or damage arising out of or in connection with the supply of goods or services under these Terms and Conditions or any breach by the Company of these Terms and Conditions however arising (whether for breach of a term or terms of these Terms and Conditions, tort (including negligence), statute, custom, law or on any other basis) is limited to:

     

    • In the case of services:
      • the resupply of the services; or
      • the payment of the cost of resupply; and
    • in the case of goods:
      • the replacement of the goods or the supply of equivalent goods; or
      • the repair of the goods; or
      • the payment of the cost of replacing the goods or of acquiring equivalent goods; or
      • the payment of the cost of having the goods repaired.
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  • Clause 15.1 is not intended to have the effect of excluding, restricting or modifying:
    • the application of all or any of the provisions of Part 5-4 of the Australian Consumer law; or
    • the exercise of a right conferred by such a provision; or
    • any liability of the Company in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the Australian Consumer Law to a supply of goods or services.
COMPLIANCE WITH ANTI-BRIBERY LAWS
  • The Customer represents and warrants, in connection with the transactions contemplated by these Terms and Conditions, and any other agreement contemplated by or entered into pursuant to these Terms and Conditions, that the Customer will comply with all governmental laws, regulations and orders that may be applicable to the Customer, including without limitation all laws and regulations regarding export controls, economic sanctions and trade embargoes, anti-boycott restrictions, anti-money laundering laws and anti-corruption laws, including but not limited to Divisions 70, 141 and 142 of the Australian Criminal Code Act 1995 (Cth), the U.S. Foreign Corrupt Practices Act (as amended) and the United Kingdom Bribery laws (collectively, the “Applicable International Trade and Anti-Corruption Laws”).
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  • The Customer acknowledges and confirms that it and its officers, directors, employees, agents, contractors, designees and/or any other party acting on its behalf (collectively “Related Parties”) are familiar with the provisions of the Applicable International Trade and Anti-Corruption Laws.
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  • The Customer agrees to indemnify, defend and hold harmless the Company and its employees from and against any and all claims, demands, costs, penalties and fines arising in connection with any alleged breach by the Customer or any of its Related Parties of this paragraph.
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  • The Company may terminate in its entirety any agreement arising under these Terms and Conditions without liability to the Customer, if the Company believes in good faith that the Customer or any of its Related Parties has violated or intends to violate this paragraph.
NO LIABILITY FOR INDIRECT OR CONSEQUENTIAL LOSS OR NEGLIGENCE
To the extent permitted by law, the Company shall not in any event be liable for contingent, consequential, indirect, special punitive, or any other similar damages or for any injury to person or property whether arising under a breach of warranty or contract, or negligence (commission, omission or advice) or other tort, strict liability or otherwise and howsoever caused.
PATENTS
If any claim is made against the Customer based on a claim that any of our Goods constitute an infringement of any patent, the Customer will notify the Company immediately. The Company may, with the Customer’s assistance, if required, but at the Company’s expense, conduct settlement negotiations or the defense of any litigation. If any of our Goods are held to infringe any patent, and their use is prohibited by court order or, if as a result of a settlement, the Company considers their continued use unadvisable and provided that the Customer has given the Company the immediate notice required above and has used our Goods only in accordance with the provisions of these Terms and Conditions and has not altered or changed them in any material way, the Company will, at its option and expense, procure for the Customer the right to continue using the applicable Goods, modify the applicable Goods so that they become non-infringing, replace the applicable Goods with non-infringing Goods of substantially equal quality, or replace the applicable Goods and refund the purchase price, less reasonable depreciation. The foregoing states the Company’s entire liability for patent infringement.
WAIVER
No waiver of any provision, right or remedy contained in these Terms and Conditions, including the terms of this paragraph, is binding on, or effective against, the Company unless expressly set forth in writing and signed by the Company's authorised representative. The Customer expressly agrees that no right or remedy provided for in these Terms and Conditions can be waived through course of dealing, course of performance or trade usage. The Customer expressly agrees and acknowledges that reliance on any waiver without the Company's written consent is unreasonable. Waiver by the Company of any breach will be limited to the specific breach so waived and will not be construed as a waiver of any subsequent breach. The Company's approval or consent to any action proposed by the Customer will not be considered an agreement to the propriety, fitness or usefulness of the proposed action, and will not affect the Customer's obligation to strictly comply with these Terms and Conditions and all related orders.
SEVERABILITY
If any provision or part of a provision contained in these Terms and Conditions is held by a court of competent jurisdiction to be contrary to law or public policy, the remaining provisions of these Terms and Conditions will remain in full force and effect.
GOVERNING LAW
These Terms and Conditions and all rights and obligations hereunder will be governed by, and construed in accordance with, the laws applying in Victoria, Australia, without regard to its conflicts of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms and Conditions. In addition to any other mode of service of process authorized by law, the Customer consents to service of process by registered or certified mail.
ARBITRATION; DISPUTE RESOLUTION
Any dispute or difference arising out of, relating to, or in connection with these Terms and Conditions or the conduct of the parties in relation to their subject matter (including any question regarding the existence, validity or termination of these Terms and Conditions) (Dispute), must be resolved in accordance with the procedure set out in this paragraph 22. Any Dispute shall be resolved by arbitration in accordance with the ACICA Arbitration Rules. The seat and the place of arbitration shall be Sydney, Australia. The language of the arbitration shall be English. This arbitration agreement will be governed by the law applying in Victoria, Australia.
EXCLUSION OF OTHER TERMS
The above terms and conditions shall apply to all quotations given by the Company to the exclusion of any other terms and conditions in any document submitted by the customer to the extent that such last mentioned terms or conditions are inconsistent there with or with any rights of the Company expressed or implied by law. No modifications thereof shall be binding upon the parties hereto or either of them unless such modifications shall be in writing duly executed by the Customer and approved by the Company.
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