The submission of the Customer’s Order shall constitute an offer by the Customer to purchase goods and/or services from the Supplier based on, and subject expressly to the Conditions outlined in, this Contract.
The Customer’s Order shall not be deemed to have been accepted by the Supplier until such time as the Contract Details have been signed by each of the Supplier and the Customer or the Supplier has otherwise ordered the goods on behalf of or commenced delivery of any specified services to the Customer, at which point, the Contract will be deemed to have been formed and to have become binding between the Customer and the Supplier.
The Customer hereby acknowledges that any Contract between it and the Supplier shall be formed on the basis of the Contract Details, these Conditions and the Schedules only.
The Customer confirms that it has not relied on any statement, promise or representation made by or behalf of the Supplier which is not set out in the Contract Details or the Schedules and acknowledges that it had been provided with a copy of these Conditions prior to the formation of this Contract, has had the opportunity to review the Conditions and fully understands their content and legal effect.
This Contract shall commence on the Commence ment Date and shall continue, unless terminated earlier in accordance with its terms, until all obligations of the Parties have been performed.
These Conditions apply to this Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate (whether that be through any purchase order or purchase confirmation submitted by or on behalf of the Customer, or any other written or oral communication between the Customer and the Supplier in connection with this Contract), or which are implied by trade, custom, practice or course of dealing.
The Customer acknowledges that this Contract is a separate contract related to the supply of the Goods and, where applicable, delivery of the Services specified in Schedule 2 only and is separate from any other contract which the Customer may have with the Supplier in respect of the supply or delivery of any other goods or services. The Customer acknowledges that termi nation or cancellation of any other such contracts between it and the Supplier shall not create any entitlement on its part to terminate this Contract.
Any samples, drawings, descriptive mater or advertising produced by the Supplier and any descriptions including weights and dimensions or illustrations contained in the Supplier’s catalogues or brochures or otherwise provided to the Customer are produced for the sole purpose of giving an approximate idea of the goods referenced in them, as the performance of the Goods varies according to the nature of the site upon which they are being used, and the circumstances of use. They shall not form part of this Contract nor have any contractual force. This Contract shall not constitute a sale by sample, despite goods having been exhibited to or inspected by the Customer.
The Supplier may, at its sole discretion, from time to time change the components, functionality or performance c haracteristics of any Goods provided that they conform in all material respects to the description of the Goods in the Contract Details. If at any time following the Commencement Date, the manufacturer of the Goods changes any of the components, functionality or performance characteristics of any Goods, the Supplier shall promptly notify the Customer of such changes, but the terms of this Contract shall continue to apply and the Customer shall remain obliged to accept such Goods (as modified) provided such changes do not materially alter the nature, specification or operability of the Goods unless a Manufacturer Event has occurred, in which case, the provisions of Clause 2.10 shall apply.
In addition to the provisions of Clause 2.9 above, if at any time, the manufacturer shall cease to manufacture or otherwise supply the Goods specified herein (a “Manufacturer Event”), the Supplier will promptly notify the Customer in writing of such Manufacturer Event . Following such notification, the Customer may, within a period of ten (10) Business Days following the date of such notice, either:
(a) order equivalent goods of such Manufacturer (such order to be confirmed in writing by the Supplier); or
(b) terminate and cancel this Contract without any fault or liability on the part of the Supplier,
if the Customer has not made an election upon the expiry of the ten (10) Business Day period specified in this Clause 2.10, then the Customer and Supplier agree that this Contract shall be deemed to have been cancelled with immediate effect, without any fault or liability on the part of the Supplier. Following any such cancellation, if the Supplier is holding any deposit from the Customer in respect of the Goods imp acted by such Manufacturer Event, the Supplier shall offer the Customer a credit note to the value of such deposit, net of any costs and expenses reasonably incurred by the Supplier in connection with such Manufacturer Event, to be applied by the Customer against a future purchase of goods from the Supplier.
The Customer agrees and acknowledges that the Supplier shall not be liable for any loss, expense or damage which it may suffer as a result of a Manufacturer Event having occurred.
AGREEMENT FOR SALE, PURCHASE AND CANCELLATION
The Supplier hereby agrees to sell or deliver, and the Customer agrees to purchase or accept, the Goods and/or the Services, as the case may be, for the price and on and subject to the terms specified in this Contract.
This contract is binding, and the Customer may only amend or cancel the order for the Goods or any Services, either in whole or in part, with the express written agreement of the Supplier unless applicable law provides that the Customer may amend or cancel the order for the Goods or any Services without such consent. Acceptance of any such request for cancellation or modification is entirely at the discretion of the Supplier and shall only become effective upon the terms of such cancellation, including any charges or fees payable by the Customer in connection therewith, being confirmed in writing by the Customer and the Supplier.
The Customer acknowledges that if the Supplier agrees to any amendment or cancellation of this Contract, such agreement will be subject to the payment by the Customer to the Supplier of compensation for any work in progress on the Goods at the time of termination, including any costs that the Supplier may be requ ired to pay to any manufacturer which cannot be avoided, but such compensation shall not include loss of anticipated profits or any consequential loss.
The Customer further acknowledges that certain types of Goods are of a specialized nature and that in these cases, there may be no immediate market for their resale (“Specialised Goods”). Where a Good is a Specialised Good, this will be indicated in the Contract Details. In any such case where the Supplier may agree to the amendment or cancellation of an order for such a Specialised Good, it shall do so only on the express basis that:
(a) it may accept delivery of such Goods from the original equipment manufacturer and hold such Goods for resale, either in whole or broken down into parts; subject expressly to
(b) the Custome r paying for the Goods as if they had been delivered to it, on the basis that the Supplier shall then refund to the Customer the proceeds of the sale of the Goods as and when such sales occur, less the costs of related to the sale, storage and insurance of the Goods, together with any associated financing charges and recognizing that due to the nature of such Specialised Goods, it may not be possible for the Supplier to realise proceeds from the sale of such Goods which are equivalent to the purchase price originally payable by the Customer.
The Customer acknowledges that any and all deposits paid to the Supplier are paid on a non-refundable basis, unless otherwise expressly agreed in writing by the Supplier. The Customer agrees that any such agreed refund by the Supplier of an amount deposited in accordance with this Contract shall be satisfied by way of a credit note issue d to the Customer by the Supplier, which may be redeemed against future orders of goods or services from the Supplier.
The Customer and Supplier agree that unless expressly agreed in writing, time shall not be of the essence in respect of the delivery of any Good or the performance of any Service.
PRICE AND PAYMENT
The Customer shall pay for Goods and Services (if any) in accordance with this Clause 9.
Unless expressly stated otherwise in the Contract Details, the Price may be subject to alteration by the Supplier to reflect any increase in costs to the Supplier of supplying the Goods or Services which arises from matters beyond the S upplier’s control. Further, where the Goods and/or Services are purchased by the Supplier from manufacturers or other suppliers in USD and then sold to the Customer in Local Currency and the Price for the sale to the Customer of the Goods and/or Services was determined with reference to the Agreed Rate, the Supplier reserves the right to, and the Customer agrees that the Supplier may, if the Actual Rate is higher by more than two percent (2%) than the Agreed Rate, unilaterally recalculate the Price with reference to the Actual Rate, but excluding for these purposes the value of any part of the Price already paid by way of deposit, with such recalculated price being the Adjusted Price. The Adjusted Price shall be reflected in the invoice to be delivered to the Customer by the Supplier and/or through an adjustment to the value of any payments to be made by the Customer to the Supplier by way of deposit. This right is for the benefit of the Supplier only and the Customer does not have the right to request an adjustment to the Price in this regard. The Actual Rate and the Adjusted Price shall each be determined by the Supplier alone, acting reasonably but with reference to the FX Benchmark. Under circumstances where the Supplier has invoked the right to notify the Customer of an Adjusted Price, references to Price or the Agreed Rate in this Contract shall be read as references to Adjusted Price or the Actual Rate, as the context requires.Further, the Price:
(a) Excludes amounts in respect of value added tax (VAT), sales tax or other applicable taxes or duties, whether federal, state or local (if and to the extent payable) which the Supplier may be required to pay or collect, which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate (unless a valid exemption certificate is furnished), subject to the delivery by the Supplier of a valid VAT or other applicable invoice; and
(b) Includes the costs of packaging, insurance and carriage of the Goods.
Except as otherwise stated in this clause 9, no extra charges shall be effective unless agreed in writing and signed by the Customer.
The Supplier may at its sole discretion invoice the Customer for the Price of the Goods and/or Services (plus VAT) at the prevailing rate (if applicable) in accordance with the Payment Schedule set out in the Contract Details. Where the Payment Schedule does not specify a Payment Schedule for Goods, the Supplier may invoice the Customer on or at any time after: (i) the completion of delivery, or, (ii) where the Customer is unable to accept delivery of the Goods at the Delivery Location on the Delivery Date, the date of deemed delivery set out in Clause 5.5. Where the Payment Schedule does not specify the payment terms for Services, the S upplier may at its sole discretion invoice the Customer for the Price of the Services plus VAT at the prevailing rate (if applicable) on or at any time after acceptance by the Customer of the Services in accordance with Clause 6.3. The Supplier shall ensure that all invoices include the invoice number, the Contract Number, the Customer’s order number, the Supplier’s VAT registration number, and any supporting documentation that the Customer may reasonably require. Payment shall be made in accordance with the Payment Schedule specified in the Contract Details (if any) and shall be in US Dollars unless otherwise specified in the Contract Details.
The Customer shall pay correctly rendered invoices within thirty (30) days of receipt of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier.
If the Customer fails to make any payment due to the Supplier under this Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the Interest Rate as set out in the Contract Details. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount. Interest on any overdue amount shall be calculated on the basis of the Price as may be adjusted pursuant to Clause 9.2 above.
All sums payable by the Customer shall be payable in full without deduction, withholding, set-off or counterclaim for any reason whatsoever arising in contract, tort (including negligence), breach of statutory duty or otherwise and in any case whether arising under this Contract or pursuant to any other agreement between the Supplier and the Customer, save as may be required by law.
The Supplier may at any time, without limiting any of its other rights or remedies, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
TITLE AND RISK OF LOSS
Risk of loss or damage to the Goods shall pass to the Customer on completion of delivery in accordance with Clause 5 and the Supplier shall, without prejudice to any other remedy, be entitled to maintain an action for the price of the Goods although title to them has not passed to the Customer.
Notwithstanding delivery and the passing of risk in the Goods, the Goods shall, unless specified in the Special Terms set out in the Contract Details, remain the sole and absolute property of the Supplier as legal and equitable owner until the Supplier has received in full (in cash or cleared funds) all sums due to it for the Goods and for all other goods delivered by the Supplier to the Customer for which payment remains due, at which point title to the Goods passes unconditionally and irrevocably to the Customer.
The Customer acknowledges that until the Supplier has received in full (in cash or cleared funds) all sums due to it for the Goods and for all other goods delivered by the Supplier to the Customer for which payment remains due, it is in possession of the Goods solely in a fiduciary capacity as bailee for the Supplier and that the Supplier retains ownership and holds title to the Goods until the title to the Goods is transferred to the Customer upon completion of the Customer’s obligations to the Supplier. Until such time as title to the Goods has passed to the Customer, the Customer shall (where possible) store the Goods in a manner which allows them to remain clear ly identifiable at all times as the Supplier’s property, shall not remove, deface or obscure any mark identifying the Supplier’s ownership of the Goods, and shall maintain them in satisfactory condition and keep them insured against all risks for their full price from the date of delivery (with the Supplier’s interest in such Goods to be expressly noted on the policy of insurance to be obtained by the Customer). The Goods are and will remain the Supplier’s property regardless of their use or manner of attachment to immovable property and the Supplier reserves the right, title and interest in the Goods until all amounts owing to the Supplier have been irrevocably paid in full. Until completion of all payments in respect of the Goods, the Customer shall give the Supplier such information relating to the Goods as the Supplier may require from time to time. Upon completion of all payments in respect of the Goods, the Supplier will transfer title and ownership of the Goods through a bill of sale.
The Supplier reserves the immediate right of repossession of the Goods for which the Supplier has retained title to hereunder (without being liable for any damage thereby occasioned), which shall be exercisable at any time after delivery of the Goods, following a material breach of this Contract by the Customer that has been notified by the Supplier to the Customer in writing following which the Supplier may at its sole discretion remotely disable the applicable unit(s) of Equipment.
For the purpose of exercising its rights under Clause 8.4, the Customer hereby grants, and must procure that any third party which holds the Goods or on whose property such Goods are located, grant an irrevocable right and licence to the Supplier’s nominee to enter upon all or any premises where the Goods are located with at least two (2) Busine ss Days written notice for the purpose of inspecting or repossessing such Goods, including the separation or disassembly of the Goods from any movable or immovable property to which they might be attached.
Until such time as all sums owing to the Supplier under this Contract and under all other contracts between the Supplier and the Customer under which payment remains due have been received by the Supplier, (in cash or cleared funds), the Customer shall be liable for and shall indemnify the Supplier against all loss or damage to the Goods following delivery from whatever cause.
Following delivery of the Goods, but prior to full payment being made in respect thereof, the Customer shall be entitled to use or process the Goods in such fashion as the Customer may wish and incorporate them in, or with, any other goods, provided that su ch action does not adversely affect the Supplier’s right to repossess such Equipment in accordance with Clause 8.4, and that such action does not affect title to the Goods.
If by reason of instructions or lack of instructions from the Customer or any other act or omission of the Customer, the dispatch of the Goods in accordance with this Contract is delayed, risk of loss or damage to the Goods shall pass to the Customer at the time such delivery was to have taken place. The Customer shall be liable to pay all costs incurred by the Supplier, including but not limited to storage, finance and insurance charges, which arise as a result of the delay. The Customer shall further be liable to meet its payment obligations under this Contract notwithstanding any delay in delivery of the Goods.
Until the Supplier has received in full (in cash or cleared funds) all sums due to it for the Goods, the Customer shall, at the request of the Supplier, grant to the Supplier a continuing first ranking security interest over the Customer’s interest in the Goods by executing a charge with respect to such Goods, in a form satisfactory to the Supplier. The Customer shall, at its expense, do any and all actions and execute, acknowledge, deliver, file, register and record such charge as and when requested by the Supplier and any documents that the Supplier deems desirable to protect the security interest in the Goods and the rights of the Supplier under this Contract as evidenced by the charge.
Returns and Refunds
The Supplier hereby agrees to sell or deliver, and the Customer agrees to purchas e or accept, the Goods and/or the Services, as the case may be, for the price and on and subject to the terms specified in this Contract.
This contract is binding, and the Customer may only amend or cancel the order for the Goods or any Services, either in whole or in part, with the express written agreement of the Supplier unless applicable law provides that the Customer may amend or cancel the order for the Goods or any Services without such consent. Acceptance of any such request for cancellation or modification is entirely at the discretion of the Supplier and shall only become effective upon the terms of such cancellation, including any charges or fees payable by the Customer in connection therewith, being confirmed in writing by the Customer and the Supplier.
The Customer acknowledges that if the Supplier agrees to any amendment or cancellation of th is Contract, such agreement will be subject to the payment by the Customer to the Supplier of compensation for any work in progress on the Goods at the time of termination, including any costs that the Supplier may be required to pay to any manufacturer which cannot be avoided, but such compensation shall not include loss of anticipated profits or any consequential loss.
The Customer further acknowledges that certain types of Goods are of a specialized nature and that in these cases, there may be no immediate market for their resale (“Specialized Goods”). Where a Good is a Specialized Good, this will be indicated in the Contract Details. In any such case where the Supplier may agree to the amendment or cancellation of an order for such a Specialized Good, it shall do so only on the express basis that:
(a) it may accept delivery of such Goods from the original equipment manufacturer and hold such Goods for resale, either in whole or broken down into parts; subject expressly to
(b) the Customer paying for the Goods as if they had been delivered to it, on the basis that the Supplier shall then refund to the Customer the proceeds of the sale of the Goods as and when such sales occur, less the costs of related to the sale, storage and insurance of the Goods, together with any associated financing charges and recognizing that due to the nature of such Specialized Goods, it may not be possible for the Supplier to realize proceeds from the sale of such Goods which are equivalent to the purchase price originally payable by the Customer.
The Customer acknowledges that any and all deposits paid to the Supplier are paid on a non-refundable basis, unless otherwise expressly agreed in writing by the Supplier. The Customer agrees that any such agreed refund by the Supplier of an amount deposited in accordance with this Contract shall be satisfied by way of a credit note issued to the Customer by the Supplier, which may be redeemed against future orders of goods or services from the Supplier.
The Customer and Supplier agree that unless expressly agreed in writing, time shall not be of the essence in respect of the delivery of any Good or the performance of any Service.The Customer shall inspect all new Goods promptly upon delivery and shall notify the Supplier promptly in writing if it considers there to be any material defects in design, material or workmanship. If the Customer has not notified the Supplier of any such defect within five (5) Business Days of the date of delivery, the Customer shall be deemed to have accepted the Goods.
The Supplier’s obligations above are subject to the following:
(a) The Customer’s written notification to the Supplier containing full details of such defects;
(b) The Goods being defective by reason of faulty workmanship or design or the use of defective materials and not as a result of damage in transit or any other causes;
(c) The Customer returning such Goods (or any part thereof) to the Supplier’s nominated delivery address if so required by the Supplier. The Customer is responsible for all costs associated with the transportation of such Goods. Such returned Goods shall be adequately packed for carriage and shall be clearly marked for identification with the name and address of the Customer; and
(d) The Customer having properly maintained and operated such Goods and complied with all service requirements, manuals and recommendations of the Supplier or the manufacturer (where applicable).
For the avoidance of doubt, the Supplier shall not be liable in respect of any defect arising out of or in connection with misuse, neglect, lack of adequate daily operating maintenance, willful or accidental damage, or normal wear and tear, as determined by the Supplier at its sole discretion. Where any inspection is carried out in accordance with Clause 4.2 or where any Goods or part thereof is returned to the Supplier but the Supplier at its sole discretion determines that it or the manufacturer is not responsible for any repair or replacement, the Supplier will be entitled to charge for such inspection work and will notify the Customer in writing accordingly. After the expiry of thirty (30) days from the date of such notification, the Supplier may, at its sole option, either return the Goods (or part thereof) to the Customer, or dispose of them and utilize the proceeds of sale in extinction of any debt then due to the Supplier from the Customer.
If the Supplier, acting reasonably, determines that the defect is:
(a) Covered by the manufacturer’s standard warranty terms, the Supplier must remedy or procure the remedy of the defect in accordance with those terms; or
(b) Not covered by the manufacturer’s standard warranty terms, the Supplier must provide a quote for remedying the defect to the Customer, which shall include a description of the work to be performed and an indication of the cost of such work. Any work undertaken by the Supplier to re medy a defect not covered by the manufacturer’s standard warranty terms shall only be undertaken by the Supplier following the written acceptance by the Customer of the terms of such quote.
The Supplier’s warranty obligations hereunder shall exclude all consumable items, including but not limited to oil, grease, fuel and filters, which will be provided by the Customer or purchased by the Customer at the Supplier’s then current selling price.
Except as otherwise agreed in writing by the Supplier, all work in respect of the Services shall be performed on the basis of Clause 6, and all such work shall be performed during the normal working hours of the Supplier. Where the Supplier requires the work to be performed outside the said hours, the Customer will pay any increased labor costs so incurred.
WARRANTIES
The Supplier warrants as at the date of this Contract, the date of the transfer of title to the Goods and the date of performance of Services that:
(a) It has been incorporated or formed in accordance with the laws of its place of incorporation or formation, is validly existing under those laws and has power and authority to own the Goods;
(b) It has power to enter into this document, to comply with its obligations under it and exercise its rights under it;
(c) It has in full force and effect all authorizations necessary for it to enter into this document, to comply with its obligations and exercise its rights under it and to allow them to be enforced;
(d) Its obligations under this document are valid and binding and are enforceable against it in accordance with its terms;
(e) It is not insolvent;
(f) It will be the sole legal and beneficial owner of and have good title to the Goods immediately prior to the transfer of title to the Goods to the Customer under this Contract; and
(g) Upon the transfer of title to the Goods, the Goods shall be free from any adverse claims, encumbrance, third party interest and any other claims that may affect the interest of the Customer and the Supplier hereby undertakes to fully indemnify the Customer in the event of any third-party claims over ownership or other claims in respect of the Goods.
(h) The Customer acknowledges that under no circumstances shall the Supplier provide any warranty in respect of any Goods supplied under this Contract other than those which the Supplier is itself in receipt of (and which remain in force) from the original equipment manufacturer.
The Customer represents and warrants to the Supplier that:
(a) This Contract constitutes its valid obligation, legally binding upon the Customer and enforceable according to its terms;
(b) Where the Goods are supplied in credit terms, the Customer will use the Goods for business purposes only and not for personal, family or household use unless specified in the Contract Details;
(c) The Customer must promptly pay all taxes, assessments, fees and other charges arising from this Cont ract or the Goods, except for the Supplier’s income taxes;
(d) Where the Goods are supplied in credit terms, the Customer must provide all financial information and reporting that the Supplier may reasonably require, including, information requested for an annual review of the Customer by the Supplier;
(e) All credit, financial and other information submitted to the Supplier in connection with this Contract is and will be true, correct and complete;
(f) The Customer will not change its name, principal place of business or primary residence (including any merger, consolidation, or restructure) without prior written notice to the Supplier;
(g) The Customer must not cede, assign this Contract or any right or obligation under it without the Supplier’s prior written consent;
(h) The Supplier may share any of the Customer’s information provided by the Customer or gathered by the Supplier with any affiliate of the Supplier that has or may extend credit to the Customer, and with any assignee;
(i) The Customer will defend at its own expense any action, proceeding or claim affecting or arising from the Goods;
(j) The Customer is able to pay its debts as they fall due, is not in breach of the payment terms of any existing contract or arrangement and no order has been made or petition presented, meeting convened or resolution passed for the winding up of the Customer nor has any distress, execution or other process been levied in respect of the Customer’s business or assets;
(k) Where the Goods are supplied in credit terms, the Customer shall be responsible for keeping the Goods in good working order and co ndition at all times and shall follow all manufacturer’s recommendations for operating, servicing, maintenance and repair of the Goods; and
(l) No administrative or other receiver has been appointed by any person over the business or assets of the Customer or any part thereof, nor has any order been made by or petition presented to any court for the appointment of an administrator or other analogous insolvency professional in respect of the Customer. No documents have been filed with any court for the appointment of such an administrator or other analogous insolvency professional and nor has any notice of intention to appoint such an administrator been given by any such person.
Mantrac Online Appreciation Program Terms and Conditions for Qualifying / Eligible Customers
Eligibility
a. Participation in the loyalty program is open only to qualifying customers who meet the predefined criteria.
b. Qualifying customers do not need to sign up for this program but must have an active Parts.cat.com account to be eligible for the program.
c. Participation is subject to acceptance of these terms and conditions.
d. Only purchases that are made through the Parts.cat.com store with a qualifying and eligible Mantrac account will count.
Membership Tiers
a. The loyalty program consists of four tiers: Bronze, Silver, Gold, and Platinum.
b. Each tier is determined by the customer's cumulative spending on online purchases within a designated time.
c. The accumulation for points will be calculated from all online purchases made through Parts.cat.com with a qualifying and eligible Mantrac accounts from the 01st of January 2024.
Earning Points
a. Qualifying customers earn loyalty points for every online purchase made.
b. Every $1 spent online is equal to 1 qualifying point.
c. Points accumulate and dependant on the number of points earned in the period will determine your tier.