Effective Date: 01 January 2020
1. DEFINITIONS
Agreement means this agreement between the Purchaser and Seller to supply Products;
Business day means any day in the state of Victoria that is not designated by law as a public holiday and is not a Saturday or a Sunday and is a day on which commercial establishments usually open for business;
Purchaser means the individual or organisation who buys or agrees to buy the Products from the Seller;
Date of Delivery means the date the Purchaser makes collection of that order by the Purchaser or the Purchaser's agent or it is delivered to the courier or transport company at Handymax's premises for the purpose of dispatch to its destination;
Deposit means the amount as shown on the quote or Tax Invoice sent by Handymax;
Excluded Use means a use relating to aircraft, watercraft, hovercraft, power stations, chemical plants, petrochemical plants, pharmaceuticals, mining or drilling sites;
Handymax means Handymax Trading Pty Ltd (ACN 643 556 030);
Intellectual property means trademarks, patents, copyrights, designs, and confidential information as may be applicable to the products and to any advertising and promotional material and any technical materials and user manuals associated with the supply of the products;
Marketing Material means including any online or hard print brochures, articles, blog posts, photos, images, diagrams, specifications or advertisements supplied by Handymax;
Manufacturer means the manufacturer of Products;
Order means an order made by the Purchaser to purchase Products from the Seller; 
Price means the agreed price of each of the products sold to the Purchaser as stipulated on the Quote or Tax Invoice sent by Handymax;
Products means the articles that the Purchaser agrees to buy from the Seller and any other goods supplied by Handymax including any spare parts;
Seller means Handymax Trading Pty Ltd of 29 Babbage Drive, Dandenong South VIC 3175 owns and operates wheel loaders, excavators and forklifts;
Terms and Conditions means these terms and conditions of sale. 
2. NATURE
      1. This Terms and Conditions establishes the relationship of seller and Purchaser of the products between Handymax and the Purchaser for the supply of the products by the Purchaser in the Purchaser's own name and on the Purchaser's own account to third parties in the territory.
      2. The Purchaser acknowledges that it is a commercial Purchaser and that it is not a consumer and that it is buying the products for the purpose of re-supply on its own account to its own account.
      3. The parties agree that this agreement does not constitute the Purchaser as agents of, or as partners with, Handymax for any purpose.
      4. The Purchaser may describe themselves as authorised dealers, sellers or distributors of Handymax's products but must not describe themselves in any way as agents for Handymax. 
      5. The Purchaser acknowledges that the manufacturer of the products is not Handymax. The Purchaser agrees to not hold Handymax out to the public as the manufacturer of the products.

3. APPLICATION
This Terms and Conditions stipulated for shall apply to all contracts for the sale of Products by the Seller to the Purchaser, and shall be deemed to prevail over any other documentation or communication from the Purchaser.
4. WARRANTY
      1. As at the Date of Delivery Handymax offers a warranty in the event of a product becoming defective within (the lesser of):
         1. 2000 hours of usage; or
         2. 12 months,
subject regular servicing being completed in accordance with the recommended schedule and provided only if the product has not been used for an Excluded Use.
      2. The warranty at paragraph (a) above is subject to Handymax’s Terms of Warranty (if any).
5. QUOTATIONS        
      1. The Seller's Quotation is not an offer to sell and may be amended or withdrawn by the Seller without notice; Purchaser is responsible to pay for their own freight cost, price depending on location, 
      2. The Quotation is based upon the Products listed in the Quotation. Should there be any variation in the total quantity of Products ordered, the Seller reserves the right to amend the price accordingly; and
      3. Where the Products ordered by the Purchaser are not available in stock at the time of Order, the Purchaser will be expressly notified of expected delivery date, which may be subject to unforeseeable delays, which do not give the Purchaser the right to a refund.
6. REPAIR, REPLACEMENT AND RECALL
      1. In the event of any of the products proving faulty within a period of 1 month from the date of delivery to the Purchaser Handymax must replace it, repair it or grant an appropriate credit to the Purchaser;
      2. So long as the Purchaser has complied with any obligation as to quality and storage where any of the products prove to be faulty within 1 month from the date they were delivered to a customer, Handymax must (as it elects) replace it, repair it or grant an appropriate credit to the Purchaser;
      3. Any product that is alleged to be faulty, requires repair or replacement or is the subject of a recall must be delivered to Handymax at its address. The cost of delivery to Handymax’s address is borne by the Purchaser;
      4. For any alleged faulty or non-faulty product which requires repair or replacement, the Purchaser must make a prior appointment with Handymax for an assessment for repair or replacement. An appointment can only be made by the Purchaser with at least 7 days’ prior notice. Handymax shall have discretion to accept the appointment request and to set the time of the appointment and will confirm the time with the Purchaser as soon as possible after an appointment is requested;
      5. If any product is faulty or is the subject of a recall, Handymax’s liability shall be limited to the cost of repair or replacement of that product. The Purchaser cannot make any other claim of loss against Handymax;
      6. The warranty is limited to faults and defects which occur in the product under normal working conditions and in accordance with the manufacturer’s recommendations. 
7. PAYMENT FOR PRODUCTS
      1. The Purchaser agrees to pay for all products of Handymax ordered and accepted by them promptly and as follows:
         1. The Purchaser must pay a Deposit for the order immediately upon commencing the order;
         2. The Purchaser acknowledges that the Seller is under no obligation to start the order unless deposit is received;
         3. Deposit is non-refundable however can be transferable to a future order with Handymax;
         4. The Purchaser must pay the balance of the Price upon the product being ready for delivery to the Purchaser;
         5. The Purchaser must reimburse the Seller for any costs, expenses or losses incurred, in the event that the Purchaser cancels an accepted quote or Tax Invoice, or forfeits an already approved finance approval. A Quote and/or Tax Invoice is deemed to be accepted if any sort of deposit is placed into the Seller’s funds.
      2. Payment of the Deposit and balance of the Price must be made to the account specified on the quote or Tax Invoice sent by Handymax;
      3. Handymax must sell the products to the Purchaser under the orders placed at the Price as shown in Handymax's price list as set out at  Item 5 subject to the right of Handymax to change the prices of its products without notice;
      4. The Purchaser agrees that the Price is a wholesale price offered to the Purchaser only and is confidential in nature. The Purchaser agrees to not disclose the terms of the agreement and the Price to any unauthorised person or entity or third parties, except to the extent disclosure is permitted by this agreement or required by law;
      5. The Purchaser must pay any Products and services tax that is applicable to the supply of the products to the Purchaser by Handymax and acknowledges that the Price does not include any amount for Products and services tax;
      6. In consideration of Handymax incurring expenses pursuant to this agreement, the Purchaser and the Purchaser’s Guarantor charge in favour of Handymax all of their estate and interest both legal and equitable in any real or personal property which they currently own or will acquire in the future with payment of any money outstanding under this agreement to Handymax.
8. DELIVERY OR DISPATCH OF PRODUCTS TO PURCHASER
      1. Handymax is only obliged to deliver the products to the Purchaser at Handymax’s business address unless otherwise requested by the Purchaser. Should dispatch to a different address be required, Handymax will dispatch products ordered by the Purchaser by road transport or any other appropriate method. The Purchaser is liable for the cost of packing and the cost of transport or courier and if applicable, insurance. Handymax will provide an estimate of the cost of packing, transport or courier and if applicable, insurance;
      2. Any delivery time, completion date or period offered is an estimate only and is not to be construed as a fixed time unless expressly construed in writing;
      3. Where a specific delivery date has been agreed, and where this delivery date cannot be met, the Purchaser will be notified and given the opportunity to agree a new delivery date, and this does not give the right to a refund;
      4. The Seller is to endeavour reasonably, to meet any date agreed for delivery. In any event, time of delivery shall not be of the essence and the Seller will not be liable for any losses, costs, damages or expenses encountered by the Purchaser or any third party arising directly or indirectly out of any failure to meet any estimated delivery date;
      5. The Purchaser has no right of action against Handymax for any loss occurring to them by reason of any delay in delivery caused by or contributed to by shortage of stock or delays in transit or delays caused by accidents or strikes;
      6. Delivery of Products shall be made to the Purchaser’s address as specified in Tax Invoice or Quotation, and the Purchaser shall make all arrangements necessary to take delivery of the Products when they are tendered for delivery;
      7. If the Purchaser funds have not been cleared and cannot or refuses to pay the balance, the Purchaser will be held liable to pay for the freight costs both ways and the deposit will be non refundable;
      8. The Purchaser must make every effort possible to ensure somebody over the age of 18 is at the property at the time of delivery and the balance (if any) must be paid as agreed with the Seller;
      9. Risk in each order passes to the Purchaser upon collection of that order by the Purchaser or the Purchaser's agent or courier or transport company as the case may be;
      10. The risk of loss or damage for any dispatch or consignment passes from Handymax to the Purchaser when it is delivered to the courier or transport company at Handymax's premises for the purpose of dispatch to its destination. 
9. RETURN POLICY
      1. Return of Products by the Purchaser can only be made with the prior written approval of the Seller;
      2. Strictly no returns for “change of mind”;
      3. The cost of return freight will be the onus of the Purchaser, not the Seller;
      4. Where returned Products are found to be damaged due to the Purchaser’s fault and neglect, the Purchaser will be liable for the cost of repairing such damage.
10. PRIVACY
      1. The Purchaser hereby authorises the Seller to collect, retain, record and use and disclose commercial information about the Purchaser, in accordance with Privacy Laws.
      2. The Purchaser accepts that any form of communication made with the Seller is subject to collection and used for the following purposes:
         1. Keep customers informed with new products and/or specials;
         2. Responding to enquiries about our products and services;
         3. Processing of orders; and
         4. Marketing purposes.
11. PURCHASER’S RESPONSIBILITY
The Purchaser agrees to:
      1. Within seven (7) days to notify the Seller should they have not received all manuals and warranty forms;
      2. To read and understand the safety procedures before operating the unit. These procedures are to be found in the respective manuals;
      3. Insurance will be the Purchaser’s liability from the time the Products leave the Seller’s premises;
      4. Ensure its officers, employees and agents have received correct operator and safety training according to the Instruction Manuals provided;
      5. Not make any claim against the Seller and further indemnifies the Seller against all loss or damage to person or property that may be occasioned due to the Purchaser’s failure to carry out operator training in the correct use of the Products. For the avoidance of doubt this includes any and all loss or damage due to negligence on the part of the Purchaser, its officers, employees or agents; and
      6. Any product returned to the workshop (by the Purchaser) for any reason including; repair or warranty work must be collected by the Purchaser within 21 days from the day of initial drop off. Failure to do so, will attract on the 22nd day onwards, a storage fee of $50 per day inc gst, fees commencing on the 22nd day. Storage fees must be paid prior to collection or delivery of Products.
12. MARKETING MATERIAL
The Purchaser acknowledges:
      1. that it has made its own enquiries, inspections, assessments and investigations into the suitability of the products for the Purchaser’s purposes;
      2. that it has not relied on any Marketing Material when purchasing the products, 
and agrees that it will not make any claim or commence any action or proceeding for damages, compensation, loss, expense, cost or liability.
13. INTELLECTUAL PROPERTY
      1. The Purchaser agrees:
         1. to use the Intellectual Property only under the conditions which are set down by Handymax or by any third party owner of the intellectual property;
         2. to apply the Intellectual Property to the products and any associated advertising and promotional material in a manner and form as Handymax directs;
         3. to notify Handymax promptly of any actual or suspected infringement of the Intellectual Property and all relevant information known to the Purchaser concerning an infringement;
         4. to take reasonable action as may be specified by Handymax at the expense of Handymax concerning the infringement.
      2. The Purchaser must not (without Handymax's consent):
         1. use the Intellectual Property for any other purposes;
         2. register or use any of the Intellectual Property as part of its corporate name, business name or trading name;
         3. do anything concerning the Intellectual Property which might lead to its dilution or which might cause confusion or deception to the public concerning the origin of the rights which are the subject of the intellectual property;
         4. use any business or trading name which is similar to any name forming part of the Intellectual Property or which is capable of being confused with any name forming part of the intellectual property; and
         5. disclose any confidential information forming part of the Intellectual Property to any person.
14. FORCE MAJEURE
      1. The Seller will not be held responsible for the consequences of force majeure, being an event beyond any person’s control. 
      2. Force Majeure includes but is not limited to loss or damage caused by: fire, flood, tempest, earthquake, riot, strike, crime, civil disturbance, breakdown, war etc. 
15. DISCLAIMER
      1. The Seller reserves the right to periodically update products (price, specifications, colours, models etc) on the website, which cannot be guaranteed for any period of time. Products are available until stocks last, unless otherwise stated in writing. The Seller shall make every effort to ensure prices are correct at the point at which the Purchaser places an Order;
      2. The Seller reserves the right to withdraw Products from the website at any given time;
      3. The Seller shall not be deemed liable for withdrawing Products from the website;
      4. The Seller reserves the right to alter these Terms & Conditions at any given time without notice. By continuing to use the Web Site, you agree to be bound by the changes. We are not obliged to notify you of any changes but we will endeavour to alert you to any significant changes, which will be communicated via email if need be.
      5. Except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law as to:
         1. merchantability, description, quality, suitability or fitness of the products for any purpose; or
         2. design, assembly, installation, materials, workmanship or otherwise,are expressly excluded.
      6. Handymax is not liable for physical or financial injury, loss or damage or consequential loss or damage of any kind arising out of:
         1. the supply, assembly, installation or operation of the products; 
         2. Handymax’s negligence or other act or omission; 
         3. the Purchaser’s reliance on Marketing Material; 
         4. the Purchaser’s use of manuals supplied by Handymax, which have been merely translated by Handymax into English based on the manufacturer’s manual.
      7. These terms and conditions shall be governed by and construed in accordance with the laws of Victoria.
16. CONTACT
You can contact us about Terms and Conditions using the following details:
E: Legal@handymax.com.au
29 Babbage Drive, Dandenong South VIC 3175