Terms and Conditions of Purchase of ATM
1. DEFINITIONS
1.1 In these terms and conditions: ATM means an automated teller machine of the type referred to in the ATM Owner Legal Agreement. ATM Owner's Agreement means the document by that name forming part of or attached to these terms and conditions.
Buyer means the person or entity named ATM Buyer on the ATM Owner's Agreement. Guarantor means the person or persons named as guarantor or indemnifier in the ATM Owner's Agreement. We or us means Mandrake.ATM Pty Ltd 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 a fully executed ATM Owner's Agreement by the Buyer or the Guarantor.
2.2. By placing an ATM order in this way, the Buyer agrees to be bound by these terms and conditions and by the conditions laid out in the ATM Owner's Agreement.
3. DEPOSIT
3.1. When placing an order, the Buyer must pay a deposit equivalent to or higher than fifty per cent of the purchase price plus delivery charges (as quoted in our official quote).
4. PAYMENT
4.1. Before the ATM is delivered, the buyer must pay the balance of the purchase price plus delivery charges via direct electronic transfer or cash payment at a St George Bank branch or Australia Post.
5. DELIVERY
5.1. Any delivery times made known to the Buyer are estimates only. We will not be liable for any loss arising from late deliveries.
5.2. Risk in the ATM passes to the Buyer upon delivery.
6. RETENTION OF TITLE
6.1. We shall retain full legal and equitable title in the ATM until we have received the whole of the purchase price in cleared funds.
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. RETURNS
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 the purchase price when due:
a) we may elect not to deliver the ATM, and the Buyer forfeits an amount equivalent to 10 per cent 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 ATM is delivered, we may pursue action to recover the balance of the 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. LIABILITY
9.1. To the fullest extent 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 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 to supply an equivalent ATM 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. GST
10.1 If any goods or 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 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 GDST should be so entitled.
11. GUARANTEE OF INDEMNITY
11.1. In consideration of our accepting an order from the Buyer of an ATM at the request of the Guarantor, the Guarantor irrevocably and unconditionally guarantees to us:
(a) the due and punctual payments 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 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 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 that will not be released until all monies payable under these terms and conditions have been fully 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 that 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, nivation or assignment or 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 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 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 right 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. The Guarantor must pay any amount payable under this guarantee and indemnity 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 to be unpaid.
11.6. The Guarantor warrants that it will obtain a commercial benefit due to giving this guarantee and indemnity.
11.7. Where the Guarantor comprises more than one person, the obligations of those persons are joint and several.
12. DISCLOSURE
12.1. By submitting a fully executed ATM Owner's Agreement, the Buyer and the Guarantor (each, an "Applicant") hereby consent to us: (a) obtaining from a credit reporting agency a report containing information about the Applicant's commercial activities or credit worthiness: (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. GENERAL
13.1. Our failure or neglect to enforce any of these Terms and Conditions shall not be considered a waiver of our rights, nor will it 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, it shall be severed from them without affecting the validity and enforceability of the remaining terms and conditions.
13.3. This document superseded and replaced any arrangements, representations, understandings or agreements made or existing between the Buyer and us 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 Australian ATM network through the switching authority we utilise and participation in the rebate scheme we operate).
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.