Hydratorque’s Terms & Conditions of Trade
A.1 “Customer” means any buyer of Goods or services from the Company;
A.2 “The Company” means Hydratorque (Qld) Pty Ltd ACN 131 915 672;
A.3 “Goods” means the goods or rendering of a service the subject of this agreement;
A.4 “GST” means goods and services tax levied under New Tax System (Goods and Services Tax) Act 1999;
A.5 “Insolvency Event” means anything that indicates the individual or entity will become unable to pay its debts when they become due and payable including:
- the person/company is declared, made or becomes insolvent;
- an execution or distress process is levied against the individuals or entity’s assets which includes the individuals income;
- the individual or entity enters into a Deed of Company Arrangement with the individuals creditors;
- the individual fails to comply with Bankruptcy Notice or where it is Company, Statutory Demand served under the Corporations Law;
- a provisional liquidator, receiver, receiver and manager, administrator, scheme administrator, controller or such other administrator is appointed (whether by a Court, creditor or otherwise) to the individual/entity or over the individual/entity’s assets;
- a trustee in bankruptcy, interim receiver, controlling trustee or such other administrator is appointed (whether by a Court, creditor or otherwise) to the individual/entity or over the individual/entity’s assets;
A.6 “Normal Wear And Tear “means the gradual reduction in performance of Goods having regard to:‐
A.6.1 the age of the Goods; and
A.6.2 the nature and frequency of use of the Goods;
A.7 “Order” means the Customer’s offer to the Company to purchase the Goods;
A.8 “Warranty Period” means a period of six (6) months from the date of delivery of Goods to the Customer unless otherwise agreed to in writing by the Company.
1.1 Any quotation in relation to the Goods issued by the Company is an estimate of the costs of the Goods only and does not constitute an offer by the Company unless stated to be an offer by the Company in writing. Any quotation may be withdrawn or altered by the Company without notice.
1.2 Unless otherwise stated all prices quoted are EXCLUSIVE of freight delivery costs, insurance and other charges in relation to the transfer of the Goods from the Premises of the Company to the location designated by the Customer and these charges shall be payable by the Customer.
1.3 If the Company does not withdraw a quotation then it is valid for thirty (30) days from the date of quote unless otherwise stated.
The Customer agrees to pay any reasonable price increase if an order is placed after that period.
1.4 The Company may reasonably adjust the price of the Goods:‐
(a) if any government authority imposes any further duty, tax or fee in respect of the Goods or this Agreement; or
(b) to take into account any alteration in costs associated with the delivery of the Goods or (in the case of delivery by instalments) prior to the final delivery of the Goods;
1.5 Any Price concession or discount the Company provides to the Customer is conditional on the Customer’s full compliance with its obligations under this Agreement.
All prices are exclusive of GST (Goods and Services Tax) and a tax invoice shall be issued when invoice rendered by Company paid in full.
3.1 The Customer agrees to accept and pay for the Goods in accordance with this Agreement.
3.2 Unless the Company otherwise states in writing, the price for the Goods shall be paid in full by the Customer within THIRTY DAYS from the Date of Invoice (“Payment Due Date”).
3.3 The Company is not obliged to provide future deliveries and services to the Customer unless the Customer makes payment in full on or before the Payment Due Date, for Goods already supplied to it.
3.4 If payment is made by cheque which is dishonoured, the Company may charge the Customer for accounting, bank charges, interest and other fees incurred by it in respect of such dishonour.
3.5 Without prejudice to any other right or remedy the Company may have, it may charge the Customer on any overdue amounts payable by the Customer to the Company, interest at a rate of 6% per annum calculated daily above the Cash Rate Target specified by the Reserve Bank of Australia.
3.6 The Customer indemnifies the Company for any expenses incurred by the Company in enforcing the Company’s rights against the Customer under this Agreement and will reimburse the Company as a debt due and payable for such expenses when requested to do so by the Company.
3.7 If the Customer becomes, or in the Company’s unfettered view, is in danger of becoming the subject of an Insolvency Event, The Company may:‐
3.7.1 Repossess any Goods in the Customer’s possession, custody or control, wherever located for which full payment has not been made; and
3.7.2 Offset any payments owed by the Customer to the Company against any moneys owed by the Company to the Customer.
3.8 The Customer must not withhold payment of any invoice by reasons of set off, counter claim or otherwise.
4. RISK AND DELIVERY
4.1 The Customer must provide the Company with adequate delivery instructions for the Goods no later than SEVEN (7) days after the Company informs the Customer that the Goods are ready for collection.
4.2 The Company may at its discretion, charge the Customer a reasonable storage and/or administration fee in relation to Goods held by the Company for more than FOURTEEN (14) DAYS after the Company informs the Customer that the Goods are ready for collection. The Customer must pay the charges under this clause specified by the Company when asked to do so as a debt due and payable. Any Goods stored by the Company on behalf of the Customer are at the Customer’s risk.
4.3 Delivery is taken to occur when;
4.3.1 Fourteen (14) days after the Company notifies the Customer that the Goods are available for collection at the premises of the Company; or
4.3.2 The Company dispatches the Goods at the Customer’s direction, whichever is the earliest.
4.4 The Goods shall be at the risk of the Customer upon delivery.
4.5 Every endeavour will be made by the Company to complete delivery within the period requested by the Customer. The Company shall however not accept any liability for delivery outside that period for causes beyond its control. The Customer shall not be relieved of performance of its obligations because of the Company’s failure to meet any estimated delivery dates.
4.6 If by any reason of any event beyond the reasonable control of the Company, the delivery of Goods becomes impracticable or impossible in the Company’s opinion, the Company may terminate this Agreement by notice to the Customer. In these circumstances, the Customer must pay to the Company any unpaid amounts in relation to such Goods (including any variation thereof) that were actually delivered
4.7 If the Customer and Company agrees that the Goods supplied by the Company will be specified by the Customer by schedule from time to time, any schedule is subject to acceptance by the Company. If the schedule is accepted by the Company, it may only be cancelled with the prior written approval of the Company.
4.8 If a schedule is accepted by the Company under clause 4.7 and the Company is required to pre‐order the Goods from a third party supplier for the purpose of providing the Goods in accordance with the agreed schedule, upon receipt of an invoice for the Goods, the Customer will be liable to pay either of the following as required by the Company’s at its sole discretion:‐
4.8.1 the Price of the Goods to be supplied in accordance with the agreed schedule; or
4.8.2 the charge payable by the Company to the third party supplier as a re‐stocking fee notwithstanding whether such schedule is subsequently cancelled by the Customer.
5.1 The Customer may nominate, arrange or retain a carrier to effect delivery of the Goods from the Company to the Customer. Where the Customer does not nominate or state that it will arrange or retain the carrier in its delivery instructions, the Company may nominate, arrange or retain a carrier.
5.2 The Customer must bear all carriage costs.
6.1 Notwithstanding that the risk in the Goods may have passed to the Customer, the title shall remain with The Company until payment has been received in full. Payment by cheque shall not be deemed to have been made until such cheque is honoured. The Customer shall be deemed a Bailee of the Goods for the Company until payment in full has been received in full from the Customer.
6.2 Notwithstanding clause 6.1, risk in the Goods passes to the Customer from the first occurrence of:
(a) The physical delivery of the Goods to the Customer;
(b) Time when the Goods have been dispatched from the premises of the Company or placed on a carrier which is to effect delivery of the Goods from the Company to the Customer, where the carrier has been nominated, arranged or retained by the Customer;
(c) If Goods are stored by the Company in excess of fourteen (14) days on behalf of the Customer in accordance with Clause 4.2; or
(d) The passing of title in the Goods to the Customer.
6.3 The Company is not liable for any loss or damage or deterioration of the Goods after risk in the Goods has passed to the Customer.
6.4 In addition to any other rights the Company may have against the Customer, the Company may repossess the Goods if any amount due in respect of the Goods is outstanding or if the Company reasonably believes that any such amount will not be paid in full when it falls due for payment. The Customer grants the Company an irrevocable licence to enter upon any premises of the Customer for the purpose of taking possession of the Goods in accordance with this clause.
6.5 If the Customer sells and delivers the Goods to a third party in the ordinary course of the Customer’s business and:‐
6.5.1 the Customer fails to make payment to the Company pursuant to clause 3 above; and
6.5.2 the Customer is not paid by the third party notwithstanding and without derogation from any other rights the Company may have pursuant to the terms of this agreement or otherwise, the Customer agrees to assign to the Company its claim against the third party upon receiving the Company’s written request to that effect.
7. ORDER, ACCEPTANCE AND APPLICATION
7.1 If the Customer places an Order, accepts delivery of the Goods, makes any payment in respect of the Goods or performs any obligation under this Agreement, the Customer shall be taken to have agreed to and accepted the terms of this Agreement.
7.2 Subject to clause the Order is accepted by the Company on the basis that this Agreement constitutes the entire agreement between the Customer and the Company for the sale, purchase, delivery and supply of the Goods.
7.3 Unless otherwise agreed in writing in accordance with clause 13 of this Agreement, this Agreement constitutes the entire agreement between the Customer and the Company and supersedes and will prevail over all prior discussions, representations, agreements and arrangements in relation to the sale, purchase, delivery and supply of the Goods.
7.4 To the extent permitted by law any prior representations, agreements and arrangements, including representations as to the suitability of the Goods, and any descriptions, illustrations and material contained in any advertisement, catalogue, price list or brochure are excluded from, and do not form part of, this Agreement unless specifically stated in this Agreement to the contrary.
7.5 All specifications, drawings, and particulars of weight and dimensions of the Goods are approximate only. Unless the accuracy of such specifications, drawings, and particulars of weight and dimensions of the Goods has been confirmed by the Company to the Customer in writing in respect of a particular Order, the Customer cannot claim against the Company for any deviation in such specifications, drawings, or particulars of weight or dimensions.
8. LIABILITY OF SUPPLIER
8.1 To the fullest extent permitted by law, and subject to clause 12:
(a) The Company is not liable for any loss or damage, however caused (including, but not limited to, by the negligence of the Company), suffered by the Customer or any other person in connection with:
(i) The Goods;
(ii) Any misrepresentation by the Company, its directors, officers, employees, agents and/or subcontractors; or
(iii) Any statement by a third party accepted in good faith by the Company and repeated by it, in connection with the Goods;
(b) All express and implied terms, conditions, representations and warranties relating to the Goods (including without limitation all conditions or warranties as to the merchantability, quality, description, condition, safety, performance or fitness for purpose of any of the Goods) are excluded.
8.2 The Company shall not be liable to the Customer or to any other person for any loss of profit or other economic loss, indirect, special, consequential, general or other similar loss or damage how so ever arising.
8.3 The Customer warrants that it has not relied on any representation made by the Company directors, officers, employees, agents and/or subcontractors which is not in writing.
8.4 Nothing in this Agreement is intended to exclude, restrict or modify any rights which the Customer may have under the law which cannot be excluded, restricted or modified by Agreement.
9. EXAMINATION OF GOODS
9.1 The Customer is responsible for the immediate examination of Goods upon delivery and any deficiency or damage thereof must be reported to Company in writing within fourteen (14) days of delivery otherwise no claim for damage or deficiency shall be considered.
10. RESTOCKING FEE
10.1 Subject to this clause hereof no Goods may be returned to the Company nor will any credit allowed for such return without the Company’s prior written approval.
10.2 Any consent given under this clause may specify the terms and conditions and charges upon which any such return may be made.
10.3 Credit may be accepted up to 30 days after date of delivery subject to either of the following charges:‐
10.3.1 a 10% reduction for handling; or
10.3.2 any other amount charged to the Company by a third party supplier in relation to the return of the goods to such supplier at the Company’s sole discretion.
10.4 In no circumstances will credit be agreed more than 30 days after the date of delivery.
11. GOODS AND PERFORMANCE
11.1 Any performance figures in relation to the Goods given to the Customer by the Company are estimates only. The Company is not liable to the Customer or any other person for any loss or damage, including any consequential loss or damage (including for example, loss of profits or of business opportunity), in connection with a failure of any Goods to attain such figures, unless the Company gives a written guarantee in relation to such figures.
11.2 The Customer may inspect and test the Goods at the premises of the Company or at other premises with the prior written approval of the Company to verify any of the estimated performance figures. The Customer will bear the costs of the inspection and any tests except to the extent that inspection or testing is expressly included in the Price quoted pursuant to Clause 1.
11.3 No performance figures other than performance figures obtained under such inspection and/or testing may be used by the Customer to support any claim by the Customer.
12.1 Except as expressly implied by law, no warranties are given except as expressly given in writing by the Company.
12.2 To the extent that the Goods are supplied to the Company by a third party , the liability of the Company in relation to the Goods shall be limited to the Company’s right of redress (if any) against the third party supplier arising out of any alleged fault/defect in the Goods or component part thereof.
12.3 Provided the Customer is not in breach of any of its obligations under this Agreement, if the Company provides a written warranty with respect to any Goods it repairs, and the customer reports any faulty workmanship or material defect such Goods to the Company within the Warranty Period, the Company at its sole discretion may do any one or more of any of the following:
(a) In the case of Goods:
(i) replace the Goods or any part thereof or supply equivalent Goods;
(ii) repair the Goods;
(iii) pay the cost of replacing the Goods or of acquiring equivalent Goods; or
(iv) pay the cost of having the Goods repaired; and
(b) In the case of services:
(i) supply the services again; or
(ii) pay the cost of having the services supplied again.
12.4 To avoid doubt, the Company has sole discretion as to whether it employs any one or more of the alternatives specified in clauses 12.3 (a) & (b).
12.5 To the extent permissible by law, any warranties given by the Company do not cover:‐
12.5.1 Goods supplied by a third party;
12.5.2 Anything caused or contributed to by:
(a) An accident, abuse, neglect of a person other than of the Company;
(b) Vandalism, power outages, surges, inadequate voltage or current or use and installation of goods contrary to any instruction;
(c) Repair or modification of the Goods carried out;
(i) without the proper written consent of the Company; or
(ii) by a person other than the Company or its agent;
(d) damage occurring during transportation, freight, installation of the Goods or while moving the Goods;
(e) any criminal, deliberate, wilful, dishonest or fraudulent act, error or omission of the Customer;
(f) Normal wear and tear and the gradual reduction in operating performance of the Goods;
(g) costs, or removal, re‐installation, re‐commissioning or shipping of the Goods;
(h) Any defect or faulty workmanship in relation to the Goods:
(i) not notified to the Company within the Warranty Period; or
(ii) where the Customer continues to use the Goods after the Customer knew or discovered or ought reasonably to have known or discovered the defect or faulty workmanship;
(i) any breach by the Customer of law or regulatory requirement.
13. CUSTOMER WARRANTY, COVENANT AND INDEMNITY
13.1 The Customer warrants the accuracy of any specification or information provided by the Customer.
13.2 The Customer agrees not to make claim or commence any proceedings against any employee, director, agent or subcontractor of Company in connection with this Agreement including in connection with any misrepresentation, or negligence of, them or Company.
13.3 The Customer must indemnify the Company and any of its employees, directors, agents or subcontractors and hold them harmless in respect of a breach of clause 13.1 or clause 13.2.
13.4 If the Customer fails to accept or to pay for the Goods in accordance with this Agreement, then the Customer must (without prejudice to any other rights of the Company) indemnify the Company and hold it harmless in respect of any loss, damage, claim, cost of labour or other overhead or expense that is attributable to such failure.
13.5 The benefit of this clause 13 is held on trust by the Company for the benefit of its employees, directors, agents and subcontractors and can be enforced by the Company on their behalf.
13.6 WARNING – USER RESPONSIBILITY Failure or improper selection or improper use of the products described within product catalogues or related items can cause death, personal injury and property damage.
13.7 Product catalogues and other information from the Company provide product or system options for further investigation by users having technical expertise.
13.8 The user, through its own analysis and testing, is solely responsible for making the final selection of the system and components and assuring that all performance, endurance, maintenance, safety and warning requirements of the application are met. The user must analyse all aspects of the application, follow applicable industry standards, and follow the information concerning the product in the current product catalogue and in any other materials provided from the Company.
13.9 To the extent that the Company provide component or system options based upon data or specifications provided by the user, the user is responsible for determining that such data and specifications are suitable and sufficient for all applications and reasonably foreseeable uses of the components or systems.
14. SUSPENSION AND TERMINATION
14.1 If the Customer:‐
14.1.1 Defaults in any of its obligations under this Agreement;
14.1.2 Suspends or ceases to carry on business; or
14.1.3 Is the subject of an Insolvency Event;
Then the Company may immediately upon notifying the Customer, do one or more of the following:
(a) Terminate this Agreement or any other agreement between the Company and the Customer;
(b) Suspend the performance of any or all of its obligations under this Agreement until the end of the period in which the Customer has suspended or ceased to carry on business;
(c) Demand immediate payment for any Goods;
(i) Already delivered or provided by the Company to the Customer for which payment in accordance with this Agreement has not been received by the Company; or
(ii) Ordered by the Customer but not yet delivered or provided by or on behalf of the Company/other than that contained in the Warranty.
14.2 The rights of the Company provided for in clause 14.1 shall be without prejudice to any other rights the Company may have against the Customer.
15. USE OF GOODS
15.1 The Customer will:
15.1.1 Acquaint itself with requirements of all relevant Government and statutory or other authority (including, but not limited to, a manufacturer’s technical, copyright and operation requirements) in relation to the Goods and to the application(s) to which the Goods are put.
15.1.2 Comply with such requirements at all times while the Goods are in its possession or under its control.
15.1.3 Procure that any Customer of the Goods from the Customer acquaints itself with and complies with such requirements.
15.2 The Customer must:
(a) Comply with any instructions by the Company relating to the Goods; and
(b) Indemnify the Company in respect of any breach of this clause 15.
16. INTELLECTUAL PROPERTY
16.1 No rights or licence is granted to the Customer under any patent, copyright, registered design or other intellectual or industrial property right or interest other than the right to install, operate or resell the Goods.
16.2 Copies of documents in relation to the Company or the Goods such as drawings, plans and specifications the Company submits to the Customer, remain the property of the Company. The Customer must treat the information contained in those documents as strictly confidential. The Customer must use the information contained in those documents only to install or operate the Goods. The Customer must not use this information in any other way to the advantage of the Customer or the detriment of the Company.
16.3 By purchasing the Goods, the Customer does not gain any licence or right under any of the Company’s intellectual or industrial property such as a patent, registered design, trademark or copyright or confidential information.
17. CUSTOMER SPECIFICATION
17.1 If the Goods are manufactured to the design or specification of the Customer:‐
17.1.1 The Customer will ensure the plans, designs and specifications provided to the Company are appropriate for the client’s purposes, are complete and accurate and that the Goods, if constructed in accordance with such plans, designs and specifications will be fit for the customers intended use; and
17.1.2 The Customer warrants that the design, specification and Goods do not infringe any intellectual property right of a third party (such as patent, copyright, trademark or registered design) or other like protection of any other person and comply with any application statute, statutory instrument or regulation.
17.1.3 The Customer must indemnify the Company and hold it harmless in respect of any breach of this clause 17.1.
17.2 If the Company constructs the Goods in accordance with plans, designs and specifications provided by the Customer, to a reasonable and proper standard of workmanship, the Customer agrees to indemnify and hold harmless the Company against any costs incurred or loss suffered by the Customer or a third party as a result of the Goods being inadequate, inappropriate or unfit for their intended purpose.
18. ASSIGNMENT AND SUBCONTRACTING
18.1 The Company may assign or sub‐contract this Agreement for the manufacture or supply of the whole or any part of the Goods without seeking the consent of the Customer.
19. GOVERNING LAW AND JURISDICTION
19.1 This Agreement shall be governed by and construed in accordance with the Laws of Queensland.
19.2 The Company and the Customer each irrevocably and unconditionally submit to the non-exclusive jurisdiction of the Courts of Queensland whether State or Federal and each waives any immunity or any objection it may have to any action in those Courts and to a claim that any action has been brought in an inconvenient forum or to those Courts not having jurisdiction.
20.1 The Company may use and disclose to third parties personal information held by the Company, including information relating to the Customer’s commercial dealings and transactions with the Company for reasons including:
(a) Arranging for the delivery of the Goods;
(b) Facilitating the Company’s internal business operations, including fulfilment of any legal requirements;
(c) Credit reference checking and verification of the Customer’s financing arrangements;
(d) Arranging or facilitating any Warranty repairs or services; and
(e) Providing Customer with information and promotional material about other Goods and services that may be benefit to Customer.
20.2 The Customer can request access to personal information held by the Company, and the Company will process the request within a reasonable time. The Customer may ask the Company to correct personal information held by the Company which the Customer believes is incorrect. Access and correction requests will be granted in accordance with the Privacy Act 1988 (Cth).