STANDARD TERMS AND CONDITIONS OF SALES MANULI HYDRAULICS GROUP (“MHG”)
ALL GOODS AND SERVICES PROVIDED BY MHG ARE FURNISHED ONLY ON THE TERMS AND CONDITIONS STATED BELOW:
These standard terms and conditions of sales ("Terms") apply to and bind each person or entity to whom by Manuli Fluiconnecto Pty Ltd or any company owned or controlled by Manuli Rubber Industries S.p.A. operating in the Manuli Hydraulics Group (referred to below as MHG) sells or suppliers good or services to (referred to below as Buyer or Buyers).
2. Supply Ordering Process
The Buyer may issue purchase orders to MHG in the following ways:
a. By fax
b. By e-mail
c. On-line, in accordance with the procedures specified by MHG in writing from time to time
The Buyer agrees that MHG may vary prices, discounts and payment conditions in force when the contract is confirmed. Any modifications will be effective from the date MHG notifies the Buyer of the variation, and will apply only to the part of the supply that has not then been completed. The Buyer may cancel the remainder of the order for any part not completed within 14 (fourteen) days of the notification of the variation and MHG shall have no liability, directly or indirectly, whatsoever for any such cancelled order.
Prices do not include country, federal, state or local taxes, now or hereafter enacted, applicable to the goods sold, which tax or taxes will be added by MHG to the sales prices where MHG has the legal obligation to collect them, and will be paid by the Buyer or reimbursed by the Buyer to MHG if paid by MHG, unless the Buyer provides MHG with a valid tax exemption certificate.
5. Contract Formation
Orders placed by the Buyer shall only be accepted by MHG upon and subject to these terms and conditions and are subject to written acceptance by MHG by e-mail, fax or post. MHG may, in its absolute discretion, accept or reject an order from the Buyer. A contract shall be deemed to have been entered between the Buyer and MGH upon acceptance in writing by MHG of an order (or part thereof).
Payment shall be made in accordance with the invoice, and in the currency stated on the invoice, except to the extent varied in accordance with clause 11 herein. If payment in full is not received by MHG by the due date, the Buyer shall pay interest on the outstanding amount from the date the payment becomes due until the date the payment is made at a rate of 2% above the rate set from time to time by the Penalty Interest Rates Act 1983 (Vic) to cover the administration costs of collection.
At any time, the amount of credit may be changed or credit withdrawn by MHG. On any order on which credit is not extended by MHG, shipment or delivery shall be made, at MHG’s election, Cash on order (in whole or part), letters of credit with all costs of collection paid by the Buyer or other terms as agreed in writing between the parties.
7. Shipping and Delivery
Shipments shall be EXW as such term is defined in the Incoterms 2010, unless otherwise agreed upon in writing. Shipping dates are approximate and are based to a great extent on prompt receipt by MHG of all necessary information from the Buyer. MHG shall not be liable for any loss or expense incurred by the Buyer in the event that MHG fails to meet the specified delivery schedule(s) due to production or other delays due to unforeseen circumstances. Buyer must collect the products within 5 working days from the declaration by MHG of readiness for shipment EXW. If the products are not collected within 5 working days, MHG will, in its absolute and sole discretion, elect to terminate the order or store the products at MHG’s warehouse at risk and expense of the Buyer at a rate of € 0,5 per day per pallet, which the Buyer agrees to pay. Unless otherwise agreed upon in writing, shipments shall be only for Lot or multiple of Lot for each product code. The term “Lot” is the minimum order quantity for each product code as indicated in the current price list/catalogue and must be a multiple of the minimum quantity per product code.
Title to all products shall not pass from MHG to the Buyer until the later of:
a. unconditional payment by cleared funds in full to MHG for those goods; and
b. unconditional payment by cleared funds in full of all other amounts owing or unpaid by the Buyer to MHG on any account, including in respect of products previously or subsequently supplied by MHG to the Buyer.
9. Withdrawal Right
In the event that MHG notifies the Buyer that it cannot comply with the shipping date indicated in the confirmation of order, and unless a new shipping date is agreed in writing by the parties, the Buyer can, waiving any other rights, withdraw the order by means of written notice to be sent to MHG within 7 days from the notification by MHG.
MHG will only accept returns upon prior written agreement and on terms and conditions to be agreed between the parties, except that MHG is required at law to accept returns, MHG will comply with any such requirements.
Due to MHG's requirements, tolerances of +/-10% of the confirmed quantities, as and if applicable, are always allowed and accepted by the Buyer.
12. Non-compliance and insolvency
If the Buyer:
a. is a corporation and:
i. a receiver, receiver and manager, liquidator, provisional liquidator, trustee, administrator, controller, inspector appointed under any companies or securities legislation, or another similar official, is appointed in respect of the Buyer or any of its property, or any security is enforced over any substantial part of its assets, or
ii. the Buyer ceases to carry on all or substantially all of its business, is unable to pay its debts when due, or is deemed unable to pay its debts under any law, or makes an assignment for the benefit of, or enters into or makes any arrangement or compromise with, the Buyer's creditors or threatens to do so, or stops payments to its creditors generally, or
iii. the Buyer is, becomes, or is deemed to be insolvent or bankrupt, or
iv. anything having a similar effect to any of the events specified above happens under the law of any applicable jurisdiction; or
b. is a natural person and anything having a similar effect to any of the events specified in this clause 12 happens in respect of that individual; or
c. fails to make any payment by the due date; or
d. breaches these Terms; or
e. if there are any changes of any kind in the Buyer's corporate structure or status, or trading capacity; or
f. the Buyer has proven difficulty in meeting the payments to MHG or third parties;
then MHG shall be entitled to, in its absolute and sole discretion:
g. suspend all further orders and deliveries and, if applicable, convert any premiums that have matured, bank transfers or other deeds of payment unless a suitable guarantee is issued;
h. require an immediate payment from the Buyer of all other purchase orders; or
i. terminate and cancel, without liability, any or all purchase orders immediately by notice in writing.
These actions may be in addition to other remedies exercisable by MHG. Upon cancellation of these Terms, MHG shall not have to repay to the Buyer any money paid by the Buyer for work that has not yet been performed. MHG shall not be liable for any loss or damage whatsoever arising from such cancellation.
13. Force Majeure
MHG shall not be responsible for any delay or failure to perform due to causes beyond its reasonable control. These causes shall include, without limitation, fire, flood, earthquake, accident, acts of the public enemy, war, acts of terrorism, riot, epidemic, quarantine restrictions, labor dispute, labor shortages, interruption of transportation, inability to secure raw materials or machinery, extraordinary increases in such raw materials prices, rationing or embargoes, acts of God, acts of Government or any agency thereof, acts of any state or local government or any agency thereof, and judicial action (Force Majeure Event). Where a Force Majeure Event prevents or delays a party from performing an obligation under these Terms, that obligation is suspended as long as the Force Majeure Event continues, provided that in the case of the Buyer, that the Buyer gives reasonable notice to MHG of the Force Majeure Event. However, the Buyer shall not be excused from any obligation prior to the receipt of the notice by MHG. If the Force Majeure Event continues for a period of three months or more, MHG may terminate these Terms immediately by notice in writing to the Buyer.
14. Limitation of Liabilities
The Buyer acknowledges and agrees that:
a. MHG excludes all warranties, conditions and guarantees in connection with any goods and services supplied by MHG to the Buyer other than those which cannot be excluded under legislation (including but not limited to the Competition and Consumer Act 2010 (Cth) ("CAC Act") or similar state and territory laws which cannot be lawfully excluded) or any express warranties or guarantees issued or approved in writing by MHG, and this exclusion includes an exclusion of all conditions
MANULI FLUICONNECTO PTY. LTD.
A.B.N. 69 095 388 122
Manuli Fluiconnecto Pty. Ltd. is a member company of the Manuli Rubber Industries group
and warranties implied by custom, the general law and statute (other than those that may not be excluded by force of law).
b. the Buyer has not relied upon or been induced by any representations, express or implied warranties in relation to the goods or services other than those contained in these Terms.
c. subject to any non-excludable legislation, MHG shall not be liable in respect of any claim by the Buyer (whether contractual, tortious, statutory or otherwise) for any special, incidental, indirect or consequential damages or injury including, but not limited to, any loss of profits, contracts, revenue or data or loss or damage to personal property on any work site arising out of or in connection with the provision of the goods or services under these Terms and whether as a result of any breach, default, negligence or otherwise by MHG;
d. MHG's maximum aggregate liability, in any event, in relation to any matter arising under or in connection with these Terms shall be capped at the amount paid by the Buyer to MHG for the relevant goods or services.
MHG's liability under any guarantee, condition or warranty implied or stipulated by the CAC Act or similar legislative provision which may not be excluded but may be limited in any of the following ways, is limited at MHG's option to:
a. in the case of goods supplied by MHG:
i. the replacement of the goods or the supply of equivalent goods;
ii. the repair of the goods; or
iii. the refund of the price paid by the Buyer for the goods; or
b. in the case of services supplied by MHG:
i. the supply by MHG of the services again; or
ii. the refund of price paid by the Buyer for the services.
15. Warranty and claims
MHG warrants that the Products will be free of defects in material and workmanship for a period equal to twelve (12) months from the date of shipping from MHG to the Buyer or, with the sole exception of assembly machines, within two thousand (2000) hours of use, whichever comes first. In case of claims presented in the correct way and regarded as founded, MHG agrees to replace or repair the defective product when these are returned to its premises.
a. This warranty does not cover any faults caused by normal deterioration, accelerated deterioration caused by special physical, chemical or electrochemical conditions, insufficient maintenance or incorrect repair, failure to follow the storage, user and operating instructions, use of unsuitable materials, the effects of a chemical or electrolyte process, assembly operations not carried out using only MHG’s original parts or MHG’s original certified parts, using MHG’s assembly machines and in strict accordance with MHG’s latest assembly instructions to be found always updated at www.manuli-hydraulics.com, or any other faults arising as a result of circumstances over which the supplier has no control. This warranty does not cover faults caused by modifications made by the Buyer or a third party, or assembly or installation operations carried out by these latter without observance of the operating and installation conditions and/or the technical specifications of the products.
b. IN NO EVENT SHALL MHG BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. NO PRODUCT IS WARRANTED AS BEING FIT FOR A PARTICULAR PURPOSE. The warranties described above apply only if (i) the Product has not been misused, tampered or abused in any manner nor have repairs been attempted thereon; (ii) written notice of failure within the warranty period is forwarded – exclusively by means of the form available on the website www.manuli-hydraulics.com to be filled in each section - to MHG and MHG's direction for properly identifying Products returned under warranty are followed; and (iii) with the return, a notice authorizing MHG to examine and disassemble returned Products to the extent MHG deems it necessary to ascertain the cause of failure. The warranties stated herein are exclusive. THERE ARE NO OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, BEYOND THOSE SET FORTH HEREIN, and MHG does not assume any other obligation or liability in connection with the sale or use of the Products.
c. The receipt by the Buyer or its Buyer(s) of any of the Products shall constitute the Buyer' unqualified acceptance of same and waiver by the Buyer of all claims hereunder (OTHER THAN CLAIMS NOT DISCOVERABLE UPON RECEIPT AND INSPECTION) unless the Buyer gives written notice of the same to MHG within eight (8) days after its receipt or, in the event of concealed defects, the claim should be sent to MHG in writing within eight (8) days of their discovery, and in any case within a period of twelve (12) months from shipping from MHG to the Buyer, or, with the sole exception of assembly machines, within two thousand (2000) hours of use, whichever comes first. In any case, whenever possible, the Buyer shall send MHG a sample of the defective product to follow up the claim procedure.
d. No claim of any kind, where as to Products delivered or for delay in delivery or failure to deliver, and whether or not based on negligence, shall be greater in amount that the purchase price of the Products with respect to which such claim is made. IN NO EVENT SHALL MHG BE LIABLE FOR INDIRECT, INCIDENTAL SPECIAL, OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT CAUSED BY OR RESULTING FROM THE NEGLIGENCE THEREOF. It is expressly understood that any technical advise furnished by MHG with respect to the use of the Products, shall not be deemed to be a representation that the Products may be so used successfully or that such use will offer any specific result, and MHG does not assume any obligation or liability for any advice given or results obtained.
e. The Buyer shall indemnify and hold MHG harmless against any and all loss damage, cost, or expense of any kind incurred by reason of any negligence, breach or other fault of the Buyer imposed by law upon MHG for damages assessed because of property damage or bodily injuries or death sustained or resulting from the sale, use, or handling of the Products except to the extent caused by the negligence of or breach of these Terms by MHG, and the MHG has notified the Buyer in writing of any third party's claims or demands within sixty (60) days after MHG received notice thereof.
For the orders sent to MHG on-line, these will be accepted only after the correct completion of the activation procedure described in point 2.C above, which takes place using a user-id and password. The Buyer is aware that the revelation of the user-id and password to unauthorized parties would enable these to make orders in his name. Consequently, the Buyer will take all reasonable steps to ensure the user-id and password are kept confidential. MHG will take no responsibility for abusive use of the user-id and password, and the order will remain fully valid and effective after confirmation of it has been issued.
a. The Buyer agrees to release MHG from any action, request or claim, including claims for compensation for damages, deriving directly or indirectly from the use or abuse of the user-id and password by any party.
b. The Buyer agrees to immediately notify MHG of the loss or theft of the password, whereupon MHG will deactivate the password in question and issue a new password as soon as reasonably practicable.
17. Entire Agreement
THESE TERMS AND CONDITIONS, INCLUDING THE LIMITED WARRANTY AND DISCLAIMER AND LIMITATIONS OF LIABILITY, ARE THE ENTIRE AGREEMENT BETWEEN MHG and the Buyer. The terms hereof may not be varied, supplemented, qualified, modified, waived or interpreted by any prior or subsequent course of performance or conduct between the parties (including the shipment of goods hereunder) or by any usage of the trade or by conflicting or additional terms upon the face or reverse of any form to which this is attached or a part of, nor may it be modified by any agent, employee, or representatives of MHG unless such modification or representation is made in writing and signed by a duly authorized officer of MHG. Stenographic or clerical errors are subject to correction.
If any term of these Terms is held to be illegal or unenforceable, such term shall be severed from these Terms and the remaining terms shall remain in force.
These Terms shall be binding on and inure to the benefit of the successors and assigns of the entire business and goodwill of either MHG or Buyer, or of that part of the business of either used in the performance of such contract, but shall not be otherwise assignable by Buyer.
20. Proprietary Rights
Trademarks, service marks and other product identifications are MHG’s property at all times and shall only be used in connection with the products. The Buyer shall not remove or deface any such marks.