Terms and Conditions

INTERPRETATION

1. In this Agreement, unless the context otherwise requires:

(a) Price Variations means any additional costs associated with the Products or Services which are in addition to the Price, including but not limited to any “Non-Standard Installation Costs” specified in the LIFT APPLIANCE SALES CONTRACT;

(b) Balance means the Price, less the Deposit;

(c) Customer means the party who is specified as the Customer in the LIFT APPLIANCE SALES CONTRACT, or any other party who places an Order, and includes the party’s transferees, successors and permitted assigns. Where the Customer is more than one person or entity, the liability of each such person or entity in relation to the Order is both joint and several;

(d) Deposit means the “Deposit” as specified in the LIFT APPLIANCE SALES CONTRACT on signing of the contract;

(e) Encumber means an encumbrance or security interest including but not limited to a mortgage, fixed charge, floating charge, pledge, lien, conditional sale agreement, hire or hire purchase agreement, option, restriction as to transfer, use or possession, easement or a subordination to a right of a person or an adverse or competing interest of another person or security interest (within the meaning of the Personal Property Securities Act 2009 (cth));

(f) Event of Default means each of the events set out in clause 36;

(g) Force Majeure Event means an event which precludes a party from performing their obligations under this Agreement and which is beyond the reasonable control of a party including, without limitation, an act of God, war or other civil commotion, strikes, lockouts, stoppages and restraints of labour, breakdown of machinery, inability to obtain raw materials or fuel, fire or explosion or any government action;

(h) GST has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (cth);

(i) Installation Address means the “Installation Address” as specified in the LIFT APPLIANCE SALES CONTRACT;

(j) Installation Date means the date and time that MINI LIFT agrees in writing to install the Products at the Installation Address;

(k) Intellectual Property means all intellectual property owned or controlled by MINI LIFT, and includes without limitation: (a) any trademarks used by MINI LIFT to sell or market products or services from time to time; (b) any and all present future, registered and unregistered rights, owned by MINI LIFT which subsist in copyright, patents, trademarks, designs and the right to keep confidential information confidential;

(l) MINI LIFT means MINI LIFT Pty Ltd ABN 88 134 698 365

(m) Order means an order for Products and/or Services and/or a request for MINI LIFT to supply Products and/or Services to the Customer or nominee of the Customer;

(n) Price means the “Total Price Payable” as specified in the LIFT APPLIANCE SALES CONTRACT;

(o) Products means the items listed in the LIFT APPLIANCE SALES CONTRACT which MINI LIFT will supply together with any associated items supplied by MINI LIFT, including but not limited to all associated manuals, tools, maintenance records, spare parts, accessories and attachments;

(p) LIFT APPLIANCE SALES CONTRACT means the LIFT APPLIANCE SALES CONTRACT in connection with the Order, prepared by MINI LIFT and accepted by the Customer upon the earlier of payment of the Deposit or the signing of this Agreement;

(q) Services means all services incidental to the supply and installation of the Products, including the site assessment, delivery, installation and commissioning of the Products at the Installation Address; and

(r) This Agreement means the agreement between the Customer and MINI LIFT on the basis of these Terms and Conditions and the LIFT APPLIANCE SALES CONTRACT.

2. In the interpretation of this Agreement, unless the contrary intention appears:

(a) Headings are for convenience only and do not affect the interpretation of this Agreement;

(b) The words “includes” or “including” will not limit whatever follows;

(c) A reference to a person includes a reference to a corporation, firm, association or other entity, and vice versa; the singular includes the plural and vice versa; a reference to any gender includes a reference to all other genders;

(d) A reference to any legislation includes a reference to any modification or re-enactment of that legislation; and

(e) Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning.

USAGE OF THIS AGREEMENT

3. This Agreement and the LIFT APPLIANCE SALES CONTRACT govern the supply of the Products and/or the Services, or any other goods and/or services by MINI LIFT to the Customer.

ORDERS

4. Each Order constitutes an offer by the Customer to MINI LIFT to purchase Products and Services and is subject to acceptance by MINI LIFT. Any Order accepted by MINI LIFT shall constitute a binding agreement between the Customer and MINI LIFT on the terms of this Agreement.

VARIATION OR CANCELLATION BY CUSTOMER

5. The Customer shall not vary or cancel an Order, or change the Installation Date, without the written consent of MINI LIFT.

6. If MINI LIFT does elect to accept variations to the Order, the Customer shall pay for any variations to the Order at rates specified by MINI LIFT which shall be in addition to the Price

7. The Customer may however, by written notice to MINI LIFT, cancel an order for the Products on or before te expiry of the statutory 3 day cooling of period under the circumstances permitted in clause 26;

8. If the Customer cancels an order for the Products where permitted by clause 7, then subject to the Customer having complied with its obligations under this Agreement, MINI LIFT will provide a full refund to the Customer of amounts paid prior to cancellation.

CANCELLATION OF ORDER BY MINI LIFT

9. MINI LIFT may at its sole and absolute discretion, by written notice to the Customer, cancel an order and/or terminate this Agreement at any time prior to installation of the Products, and for any reason whatsoever. The Customer acknowledges that without limiting the forgoing, MINI LIFT may cancel an order and/or terminate this Agreement due to its inability to supply Products including, without limitation, failure by its suppliers to provide any part of the Products.

10. Upon such termination, and subject to the Customer having complied with its obligations under this Agreement, MINI LIFT will pay a full refund to the Customer of amounts paid prior to such cancellation or termination.

AVAILABILITY OF PRODUCTS

11. If Products ordered by the Customer are not available at the time of Order they will be supplied by MINI LIFT when available, and MINI LIFT shall not be liable to the Customer to make good any loss or damage whether arising directly or indirectly as a result of any ensuing delay in delivery.

RETURN OF PRODUCTS

12. Products ordered by the Customer in error or in excess may not be returned for credit or exchange except with the prior written consent of MINI LIFT which may be withheld in its sole discretion.

13. Subject to clause 43, if MINI LIFT agrees to any return of the Products, then the Products will only be accepted by MINI LIFT if they are returned in their original packaging by MINI LIFT’s nominated carrier, at the Customer’s expense, in a saleable condition, and received within 7 days following the date that MINI LIFT communicated its agreement to accept such return.

PAYMENT

14. All prices charged by MINI LIFT are subject to change without notice and unless otherwise specified, are inclusive of any GST. MINI LIFT’s price lists or price catalogues do not constitute an offer by MINI LIFT to supply any item set out in the price lists or price catalogues.

15. The Customer must pay to MINI LIFT:

(a) First payment, the deposit upon signing this agreement, contract of acceptance 45% of the total contract price.

(b) Second payment 48 hours prior to on site delivery, a further 45% of the total contract price.

16. All payments by the Customer are to be made by cash, bank cheque or other cleared funds through electronic bank transfer.

17. The Customer must also pay to MINI LIFT at the same time the price is payable GST, and all other applicable taxes, duties, levies, penalties and any other government charges payable in relation to the supply of Products or provision of Services (which have not been included in the Price) on demand by MINI LIFT.

18. The Customer must make all payments to MINI LIFT required by this Agreement without set-off, deduction or counterclaim.

PROVISION OF THE SERVICES

19. MINI LIFT shall use its best endeavours to provide the Services by the Installation Date.

20. Unless otherwise agreed by the parties in writing, MINI LIFT shall not be responsible for providing any services other than the Services (including any variations to the Services).

21. The Customer grants permission to MINI LIFT and its employees, contractors and/or agents to enter, at any time, the premises at the Installation Address, for the purposes of performing the Services. The Customer agrees to make himself or herself present at the premises, when and as reasonably required by MINI LIFT or its employees, agents and contractors.

FORCE MAJEURE EVENT

22. If MINI LIFT becomes unable, due to the occurrence of a Force Majeure Event, to carry out any obligation, in whole or in part, placed on it by this Agreement, MINI LIFT may, in its absolute discretion either:

(a) Suspend performance of that obligation, so far as it is affected by the Force Majeure Event, during the period the Force Majeure Event continues; or

(b) Cancel the Customer’s Order without liability.

INSTALLATION DATE

23. The Customer acknowledges that the Installation Date is an estimate only and should MINI LIFT be unable to install the Products by the Installation Date then:

(a) The Installation Date shall be extended by any amount of time deemed necessary by MINI LIFT; and

(b) MINI LIFT may at its sole discretion cancel any Order, in which case any amounts paid to MINI LIFT by the Customer shall be refunded.

PRICE VARIATIONS

24. The Customer may be liable to pay Price Variations in connection with the Products or Services if MINI LIFT or its employees, agents or contractors deem that the Customer’s premises are not immediately suitable for the installation of the Products.

25. Price Variations anticipated by MINI LIFT at the Order Date shall be itemised in the LIFT APPLIANCE SALES CONTRACT. However these expenses are estimates only and are not binding on MINI LIFT.

26. If MINI LIFT determines, in its sole discretion, that the Customer is required to pay any Price Variations not provided for in the LIFT APPLIANCE SALES CONTRACT, in order to complete the Services, MINI LIFT will first notify the Customer of the Quantum of the Price Variations, and give the Customer the opportunity to cancel the Order if it does not agree to the Price Variations.

TITLE TO THE PRODUCTS

27. The Products remain the property of MINI LIFT (and MINI LIFT retains title to the Products) until the Price and any other payment or sum due to MINI LIFT has been paid in full by the Customer.

28. All Products shall be at the risk of the Customer from the time that installation of the Products at the Customer’s premises has been completed. 29. The Customer must not offer, sell, assign, sub-let, mortgage, pledge, Encumber or otherwise deal with the Products in any way which is inconsistent with or would detract from MINI LIFT’s ownership of the Products until the Price and any other payment or sum due to MINI LIFT has been paid in full by the Customer. If requested by MINI LIFT, the Customer must ensure the Products are clearly identifiable as the property of MINI LIFT.

30. In the event that the Customer is in default of its obligations under this Agreement, any Order or any other agreement that exists between the Customer and MINI LIFT, MINI LIFT will at its election be entitled to the immediate return of the Products and for this purpose may enter the Customer’s premises to recover any Products. If MINI LIFT so elects, the Customer must at its cost take all necessary action (including obtaining the consent of any third party) to enable MINI LIFT to exercise its rights under this clause.

DISCREPANCY OF PRODUCTS

31. Unless otherwise stated by MINI LIFT in writing, the exact specifications, dimensions and masses quoted in respect of any Products are approximate and subject to change without notice and subject to commercial tolerances.

32. MINI LIFT reserves the right at its discretion to substitute any part or component of the Products with a comparable part or component of similar functionality.

CUSTOMER WARRANTY

33. The Customer warrants for the benefit of MINI LIFT that any and all information provided by the Customer to MINI LIFT in connection with any Order to purchase the Products is true and correct.

PRIVACY/CREDIT REPORTING

34. The Customer agrees to sign any consents or other forms required by MINI LIFT under which it will consent, amongst other things, to MINI LIFT obtaining credit information about the Customer or providing a credit report in relation to the Customer or exchanging credit information about the Customer to third parties.

INTELLECTUAL PROPERTY

35. The Customer acknowledges and agrees that under no circumstances will it take any interest in MINI LIFT’s Intellectual Property, and MINI LIFT reserves all of its rights in respect of its Intellectual Property.

DEFAULT

36. Upon the occurrence of an Event of Default, MINI LIFT may by notice in writing to the Customer:

(a) Elect that all monies owing by the Customer to MINI LIFT under this Agreement, any Order or any other agreement that exists between the Customer and MINI LIFT whatsoever become immediately due and payable in full by the Customer; and/or

(b) Terminate an Order, or all Orders with the Customer.

37. In respect of any terminated Order (other than an Order cancelled under Clauses 7 or 22(b)), the Customer must pay to MINI LIFT any and all losses, damages, costs, interest, fees, charges (including handling charges) and expenses incurred or suffered by MINI LIFT and its suppliers as a result of the Customer’s default of this Agreement and the subsequent cancellation of the Order.

38. The Customer must give MINI LIFT full details of any Event of Default as soon as it becomes aware that an Event of Default has occurred.

39. Each of these events or circumstances is an Event of Default:

(a) The Customer fails to comply with this Agreement or the terms of any contract or Order between the Customer and MINI LIFT;

(b) The Customer being an individual is declared bankrupt or becomes of unsound mind;

(c) The Customer enters into any composition or arrangement with its creditors or goes into liquidation (voluntarily or otherwise) or has a receiver or liquidator or trustee or administrator or similar official appointed over all or part of its assets;

(d) The Customer ceases or threatens to cease to carry on all, or substantially all, of its business or operations;

(e) An order being made, or the Customer passing a resolution, or any other step is taken, for the Customer’s winding up (including but not limited to an application being made to a court for an order for its winding up);

(f) The Customer becomes or is declared or is deemed to be insolvent, or is unable or deemed to be unable to pay its debts, or stops or threatens to stop payments generally;

(g) The Customer undergoes a change in its control or ownership not approved by MINI LIFT in writing; or

(h) An event or circumstance occurs in relation to the Customer which is analogous to any event or circumstance specified in paragraphs (b) to (f).

LIABILITY/INDEMNITY

40. The parties acknowledge that, under applicable State and Commonwealth law, certain clauses, conditions, guarantees and warranties may be implied in this Agreement and there are rights and remedies conferred on the Customer in relation to the provision of goods or of services which cannot be excluded, restricted or modified by agreement (Non-excludable Rights). The terms of this Agreement are subject to the Non-excludable Rights.

41. Except to the extent of Non-excludable Rights, MINI LIFT will not be liable for:

(a) any claim by the Customer or any other person, including without limitation, any claim relating to or arising from all clauses, conditions, guarantees and warranties expressed or implied, and all rights and remedies conferred on the Customer, by statute, the common law, equity, trade, custom or usage otherwise; and

(b) any representations, warranties, conditions or agreement made by any agent or representative which are not expressly confirmed by MINI LIFT in writing, and the liability of MINI LIFT for any such matters is hereby excluded.

42. Where (and to the extent) permitted by law the liability of MINI LIFT for a breach of a Non-Excludable Right can be limited, MINI LIFT’s liability is limited, at MINI LIFT’s election, to one of the following:

(a) Replacement of the Products or supply of equivalent products;

(b) Resupply of the affected Services;

(d) Payment of the costs of replacing the Products or acquiring equivalent products;

(e) Payment of the cost of providing equivalent services to the affected Services; or

(f) Payment of the cost of having the Products repaired.

43. Notwithstanding any other provision in this Agreement, MINI LIFT is in no circumstance (whatever the cause) liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Customer for any:

(a) Increased costs or expenses;

(b) Loss of profit, revenue, business, contracts or anticipated savings;

(d) Special, indirect or consequential loss, damage or expense; or

(e) Death or personal injury, whatsoever and howsoever arising.

44. To the full extent permitted by law, MINI LIFT’s liability to the Customer for all claims made by the Customer, in relation to a breach of this Agreement or otherwise, whether arising under contract, negligence or any other tort, under statute or otherwise, will not exceed in aggregate the amounts paid by the Customer under this Agreement.

??_NERAL

45. This Agreement contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this Agreement and has no further effect.

46. This Agreement may only be varied by written agreement between the parties.

47. The rights of MINI LIFT are cumulative and are in addition to any other rights of that party.

48. This Agreement is governed by the laws of the State of Victoria and the parties irrevocably submit to the nonexclusive jurisdiction of the courts of Victoria

49. Any provision of this Agreement which is unenforceable, illegal or void or partly unenforceable, illegal or void is, where possible, to be severed to the extent necessary to make this Agreement enforceable, but so as not to affect the enforceability of the remaining provisions of this Agreement. 50. No failure or partial failure by a party to enforce any of its rights under this Agreement constitutes a waiver or partial waiver of that right, and no waiver is effective unless it is in writing and signed by authorised representatives of each party.

51. The Customer shall not assign its rights, or novate its obligations, under this Agreement without the prior written consent of MINI LIFT. MINI LIFT may assign its rights, or novate its obligations under this Agreement, without obtaining the consent of the Customer.

52. The Customer must promptly sign all documents and do all things that MINI LIFT from time to time reasonably requests to effect, perfect or complete this Agreement and all transactions incidental to it.

53. Any notice that is required to be given under this Agreement must be in writing. It may be:

(a) Hand delivered – in which case the notice will be deemed to have been received once it has been delivered;

(b) Transmitted by facsimile if the recipient has facilities for the transmission of documents by facsimile – in which case the notice will be deemed to have been given at 9:00am on the next day following the date of transmission; or

(c) Mailed by prepaid post – in which case the notice will be deemed to have been given at 5:00pm on the third day following the date of posting to the last known address or facsimile number of the recipient.