Terms and conditions
1.1 In these terms and conditions:
ATM means an automatic teller machine of the type referred to in the ATM Buyer Application Form.
ATM Buyer Application Form means the document by that name forming part of, or attached to, these terms and conditions.
Buyer means the person or entity named as ATM buyer on the ATM Buyer Application Form. Guarantor means the person or persons named as guarantor and indemnifier on the ATM Buyer Application Form.
we or us means Mandrake.ATM Pty Ltd ABN 72 111 571 076.
1.2 In these terms and conditions:
(a) words importing the singular include the plural and vice versa;
(b) words denoting a gender include all genders;
(c) headings shall be ignored in construing these
terms and conditions;
(d) references to persons include references to
corporations and other bodies and entities.
2. TERMS OF SUPPLY
2.1 An order for an ATM may only be placed by the Buyer
submitting to us the ATM Buyer Application Form duly completed and signed by the Buyer and the Guarantor. We are, however, not obliged to accept such an order from the Buyer and may decline the Buyer’s offer to buy for credit or other reasons.
2.2 By placing an order the Buyer agrees to be bound by these terms and conditions.
3.1 At the time of placing an order the Buyer must pay
a deposit to us equivalent to 50% of the purchase price of the ATM (as stated in the ATM Buyer Application Form).
4.1 The Buyer must pay the balance of the purchase price
plus delivery charges (as stated in the ATM Buyer Application Form) before delivery of the ATM by way of bank cheque or direct deposit as cleared funds to our nominated bank account.
5.1 Any delivery times made known to the Buyer are
estimates only. We will not be liable for any loss
arising from late delivery.
5.2 Risk in the ATM passes to the Buyer upon delivery.
6. RETENTION OF TITLE
6.1 Full legal and equitable title in the ATM shall be
retained by us until the whole of the purchase price has been received in cleared funds by us.
6.2 Until the purchase price has been paid in full we may enter the Buyer’s premises (or the premises of any associated person where the ATM is located) without liability for trespass or any resulting damage and retake possession of the ATM.
7.1 The Buyer must notify us promptly after delivery if
the Buyer regards the ATM as defective. We will provide the Buyer with a return authorisation number for any defective ATM. If the ATM is shown to be defective at the time of sale and not due to wear and tear, negligence, neglect or default on the part of the Buyer (or any person under its direction or control), it will be replaced without charge. An ATM will not be accepted for return if it does not have a return authorisation number. We shall not be liable for any freight charges which have not been agreed in advance with us.
8. BUYER’S DEFAULT
8.1 If the Buyer defaults under these terms and conditions by failing to pay the balance of purchase price when due:
(a) we may elect not to deliver the ATM and the
Buyer forfeits an amount equivalent to 10% of the purchase price as liquidated damages. This does not preclude us from recovering other unspecified damages suffered as a consequence of the Buyer’s default; or
(b) if the delivery of the ATM is made, we may maintain an action for recovery of the balance of purchase price plus accrued interest.
8.2 Interest on owing but unpaid amounts will accrue at the rate of 12% per annum, calculated daily.
9.1 To the full extent permitted by law all warranties and conditions implied under statute or general law are expressly excluded. We will not be liable for any loss of profits, consequential, indirect or economic loss or damage arising out of or in connection with the supply or operation of the ATM.
9.2 Our liability for a breach of a condition or warranty which by law is incapable of exclusion is limited (but only to the extent permitted by law) at our option to (a) replace the ATM or the supply of equivalent automatic teller machine; or
(b) the cost of replacing the ATM or acquiring an equivalent automatic teller machine; and
(c) in the case of services – to the supplying of the services again or the payment of the costs of having the services supplied again.
10.1 If any goods and services tax (GST) is payable on any supply made by a party (supplier) to another party (recipient) under or in connection with these terms and conditions, then the recipient must pay to the supplier the amount of such GST (to the extent that it is not already specifically included) in addition to the consideration otherwise payable for the supply.
10.2 The supplier must provide the recipient with a tax invoice in such form as will permit the recipient to claim an input tax credit for the amount of such GST should it be so entitled.
Terms and Conditions of Purchase of ATM
11. GUARANTEE AND INDEMNITY
11.1 In consideration of our accepting an order from the
A buyer for the ATM at the request of the Guarantor, the Guarantor irrevocably and unconditionally guarantees to us:
(a) the due and punctual payment of all amounts
at any time owing by the Buyer to us under or
in connection with these terms and conditions; (b) the due and punctual performance by the
Buyer of all of the Buyer’s obligations under
these terms and conditions.
11.2 If as a result of the Buyer’s insolvency, any
amounts payable by the Buyer to us are not recoverable or, if paid, become repayable, then as a separate obligation, the Guarantor agrees to pay to us (by way of indemnity) an amount equal to the amount irrecoverable or repayable (as the case may be).
11.3 The guarantee and indemnity obligations of the Guarantor are principal and continuing obligations which will not be released until all monies payable under these terms and conditions have been paid in full and satisfied and all of the Buyer’s obligations under these terms and conditions have been performed.
11.4 The guarantee and indemnity obligations of the Guarantor will not be affected by anything which would otherwise reduce or discharge the Guarantor’s liability, including:
(a) us granting time or any other indulgence or concession to the Buyer;
(b) our varying these terms and conditions or the contract arising upon our acceptance of an order for the ATM from the Buyer;
(c) any transaction or agreement or variation, novation or assignment of a transaction or agreement between the Buyer and us;
(d) the Buyer’s winding up, administration, bankruptcy or insolvency;
(e) any judgment or order is obtained or made against the Buyer;
(f) an obligation on the Buyer, or any provision of these terms and conditions, being void, voidable, unenforceable, released, waived, impaired, novated, enforced or impossible or illegal to perform;
(g) any amount owing under these terms and conditions not being recoverable or the Buyer’s liability or the liability of any other person to us ceasing (including as a result of a release or discharge by us or by law);
(h) our exercising or not exercising any rights under or in connection with these terms and conditions;
(i) any default, misrepresentation, negligence, breach of contract, misconduct, acquiescence, delay, waiver, mistake, failure to give notice or other action or inaction of any kind (whether or not prejudicial to the Buyer) by us or any other person.
11.5 Any amount payable under this guarantee and indemnity must be paid by the Guarantor to us upon demand. Without limiting our other rights, the Guarantor must pay interest at the rate referred to in clause 8.3 on amounts due but unpaid.
11.6 The Guarantor warrants that it will obtain a commercial benefit as a result of giving this guarantee and indemnity.
11.7 Where the Guarantor comprises more than one person, then the obligations of those persons are joint and several.
12.1 By submitting the completed and signed ATM Buyer
Application Form, the Buyer and the Guarantor (each, an “Applicant”) hereby consents to us: (a) obtaining from a credit reporting agency a report containing information about the Applicant’s commercial activities or creditworthiness;
(b) disclosing to a credit reporting agency certain information about the Applicant such as identity particulars and any serious credit infringement which we believe the Applicant has committed.
13.1 Failure or neglect by us to enforce any of these terms and conditions shall not be construed as a waiver of our rights nor affect our rights to take any subsequent action.
13.2 If any provision in these terms and conditions is held to be invalid, unlawful or unenforceable, such provision shall be severed from these terms and conditions without affecting the validity and enforceability of the remaining terms and conditions.
13.3 This document supersedes and replaces any arrangements, representations, understandings or agreements made or existing between us and the Buyer and (except as otherwise may be agreed in writing) constitutes the entire agreement relating to the supply of the ATM. (There are additional terms and conditions regarding the connection of the ATM to the automatic teller machine network through the switching authority utilised by us and participation in the rebate scheme operated by us).
13.4 The Buyer must not assign or otherwise transfer or attempt to assign any right or obligation under these terms and conditions without our prior written consent.
13.5 These terms and conditions and the supply of the ATM shall be governed by the laws of the State of Queensland.