Terms of Trade
Hydraulink Australia Pty Ltd
QF33- Terms of Trade
Hydraulink Australia takes pride in the quality of its products and its services to Customers. Customers are requested to inform Hydraulink Australia if an order is incorrectly delivered or if there is dissatisfaction with the goods. As a part of our quality procedures, it is important that Hydraulink Australia and the Customer agree on the terms on which business is to be transacted. These terms and conditions are current for trading with Hydraulink Australia at the time of issue and apply to all Goods sold to the Customer by Hydraulink Australia.
Hydraulink Australia may vary these terms and conditions.
In these conditions unless the contrary intention appears:
"Act" means the Competition and Consumer Act 2010 (Cth).
“Additional Charges” includes all delivery, handling and storage charges, sales tax, goods and services tax, stamp duty, interest, legal and other costs of recovery of unpaid money and all other government imposts and all money, other than the Purchase Price, payable by the Customer to Hydraulink Australia arising out of the sale of the Goods.
"Australian Consumer Law" means Schedule 2 of the Act.
“Customer” means the person to or for whom the Goods are to be supplied by Hydraulink Australia.
"Consumer Guarantee" means a right or guarantee the Customer may have under the Australian Consumer Law or other rights in relation to the supply of Goods (such as terms implied into a contract) that cannot lawfully be excluded.
"Consequential Loss" means:
(i) loss of profit, revenue, business, contracts or anticipated savings and interest;
(ii) loss or denial of opportunity;
(iii) loss of, or damage to, goodwill;
(iv) loss of business reputation, future reputation or publicity;
(v) loss or expense resulting from a claim by a third party;
(vi) damage or fault in performance arising out of incorrect or inappropriate operation of the Goods by the Customer or by the incorrect installation by a party other than Hydraulink Australia; and
(vii) loss of, or damage to, credit rating, whether direct, indirect or consequential; and
(b) other loss, damage or cost incurred that is indirect or consequential.
“Goods” means the goods and services sold to the Customer by Hydraulink Australia and include any services provided by Hydraulink Australia to the Customer.
“Hydraulink Australia” means Hydraulink Australia Pty Ltd ACN 096 805 453 and each of its Related Entities.
“Purchase Price” means the list price for the goods as charged by Hydraulink Australia at the date of the delivery or such other price as may be agreed by Hydraulink Australia and the Customer prior to delivery of the Goods.
"Related Bodies Corporate" has the same meaning given in the Corporations Act 2001 (Cth).
"Related Entities" means:
(a) Hydraulink Pty Ltd ACN 159 053 451; and
(b) any entity that is a Related Body Corporate, successor or assign of Hydraulink Australia
Pty Ltd ACN 096 805 453 or Hydraulink Pty Ltd ACN 159 053 451 from time to time.
2. Order for Goods
2.1 An order given to Hydraulink Australia shall be binding on Hydraulink Australia and the Customer, if it is accepted by Hydraulink Australia.
2.2 An order will be considered to be accepted by Hydraulink Australia if:
(a) a written acceptance is signed for or on behalf of Hydraulink Australia; or
(b) the Goods are supplied by Hydraulink Australia in accordance with the order.
2.3 Hydraulink Australia reserves the right to accept a part only of any order by notifying theCustomer verbally or in writing.
2.4 An acceptance of the order by Hydraulink Australia is then to be an acceptance of these terms and conditions by Hydraulink Australia and the Customer. These terms and conditions constitute the entire agreement between the parties and prevail over any oral, written, previous, contemporaneous and all other communications between the parties unless otherwise expressly agreed in writing and signed by the parties.
2.5 An order which has been accepted in whole or in part by Hydraulink Australia cannot be cancelled by the Customer without obtaining the prior written approval of Hydraulink Australia, which it may refuse in its absolute discretion.
3.1 To the extent permissible by law, any claims to be made against Hydraulink Australia for short delivery of Goods must be lodged with Hydraulink Australia in writing within 7 days of the delivery date.
3.2 Subject to clause 3.3, Hydraulink Australia’s liability in respect of a breach of a Consumer Guarantee is limited to, to the extent permissible by law and at Hydraulink Australia’s option;
(a) in relation to the Goods:
(i) the replacement of the products or the supply of equivalent products;
(ii) the repair of the products;
(iii) the payment of the cost of replacing the products or of acquiring equivalent products; or
(iv) the payment of the cost of having the products repaired,
(b) in relation to any services comprising the Goods:
(v) the supply of the services again; or
(vi) the payment of the cost of having the services supplied again.
3.3 The liability of Hydraulink Australia in respect of a breach of a Consumer Guarantee will be limited in the way set out in clause 3.2, if:
(a) the Goods are goods or services 'of a kind ordinarily acquired for personal, domestic or household use or consumption', as that expression is used in section 64A of the Australian Consumer Law;
(b) it is not 'fair or reasonable' for Hydraulink Australia to rely on such limitation in accordance with section 64A (3) of the Australian Consumer Law; or
(c) the relevant Consumer Guarantee is a guarantee pursuant to sections 51, 52 or 53 of the Australian Consumer Law.
3.4 Hydraulink Australia is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to the Customer for any Consequential Loss.
4.1 With the exception of Consumer Guarantees and to the extent permitted by law, Hydraulink Australia excludes all other terms, conditions or warranties whether implied or otherwise, not set out in these terms and conditions.
4.2 Hydraulink Australia advises that connectors should not be crimped to hoses which have not been specifically designed to be used together, whether because they are from different manufacturers, not approved by Hydraulink Australia, or have not been tested to ensure they are compatible for use with one another (known as a matched system). Where the Customer requests Hydraulink Australia to crimp a connector to hose that is not specifically designed to be used with such connector, the Customer acknowledges and agrees that Hydraulink Australia excludes all warranty, subject to the Act, in relation to such hose and connector assembly and that the Customer must keep Hydraulink Australia indemnified against any claim arising from the failure of such hose or crimped connector.
4.3 Subject to the Act, any warranty owing by Hydraulink Australia is valid for twelve (12) months from the date of delivery of the Goods or as otherwise agreed in writing by Hydraulink Australia and the Customer and only extends to Goods sold and used within Australia only.
4.4 Hydraulink Australia warrants to the Customer that the Goods are new, are without defect, and conform to any relevant Australian Standard and to the product technical specifications available both in print and on www.hydraulink.com.au.
4.5 Subject to the Act, if a Good is found to be defective, Hydraulink Australia may, at its sole discretion, request the Customer to return the faulty or failed Goods to Hydraulink Australia in which case, the Customer will return the Goods to Hydraulink Australia at its own cost. Hydraulink Australia may, at its sole discretion, reimburse the Customer for reasonable costs incurred in returning the faulty Goods upon the completion of Hydraulink Australia's inspection of the Goods.
The Customer agrees that upon on-sale of any Goods to third parties it must not make any misrepresentations to third parties about the Goods. Subject to the Act, and to the extent permitted by law, Hydraulink Australia excludes all liability with respect to any claim, loss or damage incurred by a third-party buyer of the Goods as a result of any such misrepresentation.
6. Delivery and Return of Goods
6.1 The times quoted for delivery are estimates only and Hydraulink Australia accepts no liability for failure or delay in delivery of Goods. The Customer is not relieved of any obligation to accept or pay for Goods by reason of any delay in delivery. Goods may be delivered by instalments at the discretion of Hydraulink Australia.
6.2 Risk in accepting the Goods shall pass on delivery to the Customer. Delivery will be deemed to have taken place upon the Goods being delivered to the Customer, at the Customer's nominated address as specified on the order.
6.3 Return of Goods, other than in the case of warranty or consumer guarantee claims, will not be accepted by Hydraulink Australia except by prior agreement in writing with Hydraulink Australia. Any Goods returned will be subject to a restocking charge of 15% of the Purchase Price of those Goods.
7. Price and Payment
7.1 Unless otherwise expressly agreed in writing, the price of the Goods shall be that Purchase Price charged by Hydraulink Australia at the date of delivery plus any Additional Charges.
7.2 The price of the Goods is subject to variation, extras, deletions, increase or decrease in material costs, supply, production, delivery and applicable taxes incurred arising between the order for the Goods and the date of delivery, as notified to the Customer.
7.3 All payments are due and payable to Hydraulink Australia within 30 days of issue of the tax invoice.
7.4 Without prejudice to any other rights Hydraulink Australia may have at law, if full payment of any tax invoice is not made by the due date, then:
(a) interest is charged to the Customer at the rate of 1.5% per month, calculated daily, from the expiry of that period until the date payment is received in full by Hydraulink Australia;
(b) Hydraulink Australia may at its option withhold further deliveries or cancel a contract without prejudice to any of its existing rights; and
(c) all other unpaid Tax Invoices become immediately due and payable.
7.5 All credit card payments for cash sales and Payment of Account will incur credit card surcharge per transaction in an amount that commensurate with the surcharge costs incurred by Hydraulink Australia for the acceptance of such credit card payments, and as determined by Hydraulink Australia's credit card payment processor from time to time.
8. Retention of Title
8.1 Ownership, title and property of the Goods remains with Hydraulink Australia until payment in full for the Goods and all sums due and owing by the Customer to Hydraulink Australia on any account has been made. Until the date of payment:
(a) the Customer has the right to sell the Goods in the ordinary course of business;
(b) until the Goods have been sold by the Customer in the ordinary course of the Customer’s business, the Customer holds the Goods as bailee for Hydraulink Australia, and when those Goods are sold by the Customer, the Customer must account to Hydraulink Australia for all proceeds delivered from such sale;
(c) the Goods are always at the risk of the Customer.
9.1 The Customer is deemed to be in default immediately upon the happening of any of the following events:
(a) if any payment to Hydraulink Australia is not made promptly on the due date for payment;
(b) if the Customer is a company and:
(i)an application is made, or a resolution is passed for its winding up;
(ii)a receiver is appointed, or a provisional liquidator or official manager is appointed;
(iii) it calls a meeting of its creditors pursuant to the Corporations Law;or
(iv)it proposes to enter into a deal or scheme of arrangement with its creditors;
(c)if the Customer is an individual and enters into a deed or scheme of arrangement with his
or her creditors or otherwise commits an act of bankruptcy;
(d) if the Customer ceases to carry on business or stops or suspends payment or states its intention of so doing or is unable to pay its debts as they fall due or if any cheque or bill of exchange drawn by the Customer payable to Hydraulink Australia shall be dishonoured.
9.2 In the event of a default by the Customer, then without prejudice to any other rights which Hydraulink Australia may have at law or here under:
(i) Hydraulink Australia or its agents may without notice to the Customer enter the Customer’s premises for the purposes of recovering the Goods.
(ii) Hydraulink Australia may recover and resell the Goods;
(iii) if the Goods cannot be distinguished from similar Goods which the Customer has or claims to have paid for in full, Hydraulink Australia may in its absolute discretion seize all Goods matching the description of the Goods and hold same for a reasonable period so that the respective claims of Hydraulink Australia and the Customer may be ascertained. Hydraulink Australia shall promptly return to the Customer any Goods the property of the Customer and Hydraulink Australia shall be in no way liable or responsible for any loss or damage to the Goods or for any loss, damage or destruction to the Customer’s business howsoever arising from the seizure of the Goods.
(iv) Hydraulink Australia may suspend or terminate any agreement to supply the Goods under these terms and conditions, and all other monies payable by the Customer to Hydraulink Australia shall immediately become due and payable.
9.3 If the Customer fails to make payment in full of any Tax Invoice by the due date, it agrees to indemnify Hydraulink Australia for any debt collection fees, late fees, legal fees or similar which Hydraulink Australia may incur.
10. Personal Property Securities Act (Cth) 2009 (“PPSA”)
10.1 Defined terms in this clause have the same meaning as given to them in the PPSA. Hydraulink Australia and the Customer acknowledge that these terms and conditions
10.2 Hydraulink Australia and the Customer acknowledge that these terms and conditions constitute a Security Agreement and gives rise to a Purchase Money Security Interest (PMSI) in favour of Hydraulink Australia over the Goods supplied or to be supplied to the Grantor pursuant to these terms and conditions.
10.3 The Goods supplied or to be supplied under these terms and conditions fall within the PPSA classification of ”Other Goods” acquired by the Customer pursuant to these terms and conditions.
10.4 Hydraulink Australia and the Customer acknowledge that Hydraulink Australia, as Secured Party, is entitled to register its interest in the Goods supplied or to be supplied to Customer, as Grantor, under these terms and conditions on the PPSA Register as Collateral.
10.5 To the extent permissible at law, the Customer:
(a) waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer, as Grantor, to Hydraulink Australia.
(b) agrees to indemnify Hydraulink Australia on demand for all costs and expenses, including legal costs and expenses on a solicitor/client basis, associated with the;
(i) registration or amendment or discharge of any Financing Statement registered by or on behalf of Hydraulink Australia; and
(ii) enforcement or attempted enforcement of any Security Interest granted to Hydraulink Australia by the Customer.
(c) agrees that nothing in sections 130 to 143 of the PPSA will apply to these Terms or the Security under these Terms.
(d) agrees to waive its right to do any of the following under the PPSA:
(i) receive notice of removal of an Accession under section 95;
(ii)receive notice of an intention to seize Collateral under section 123;
(iii)object to the purchase of the Collateral by the Secured Party under section 129;
(iv) receive notice of disposal of Collateral under section 130;
(v) receive a Statement of Account if there is no disposal under section 132(4);
(vi)receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.
(vii)receive notice of retention of Collateral under section 135;
(viii) redeem the Collateral under section 142; and
(ix)reinstate the Security Agreement under section 143.
11. Goods and Services Tax
Goods and Services Tax (GST) will be shown separately in the account for the sale of the Goods and the provision for service. The amount of GST payable in respect of the supply of the Goods is payable by the Customer. The Customer must indemnify Hydraulink Australia in respect of GST paid and payable by Hydraulink Australia in respect of the supply of the product and of the service.
12. Governing Law and Jurisdiction
12.1 This Agreement is governed by the laws of the state of New South Wales.
12.2 Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of New South Wales and Courts entitled to hear appeals from those Courts.
13.1 These Terms of Trade contain all of the terms and conditions of the contract between the parties and may only be varied by agreement in writing between the parties.
13.2 Any conditions found to be void, unenforceable or illegal may, to that extent be severed from these terms and conditions.
14. Acknowledgement and Consent Privacy Act 1988
14.1 Terms of Trade
a. The Customer makes an application for credit account with Hydraulink Australia and agrees to pay all amounts due to Hydraulink Australia from time to time promptly and in accordance with these Terms of Trade.
b. The Customer agrees that these Terms of Trade, as amended from time to time, will govern all transactions between Hydraulink Australia and the Customer and the terms and conditions referred to on any order forms that may be used by the Customer will not apply, unless agreed to in writing to the contrary by Hydraulink Australia.
c. The Customer agrees:
i. it has been provided with a copy of these Terms of Trade (a copy of which is also available on the Hydraulink Australia website);
ii. it has had the opportunity to read these Terms of Trade ; and
iii. to be bound by these Terms of Trade.
14.2 Accuracy of Information
a. The Customer warrants to Hydraulink Australia the accuracy of the information provided in the Credit Application Form. The Customer acknowledges that Hydraulink Australia will rely on the truth and accuracy of the information provided by the Customer in the form in considering the Customer’s credit application.
b. In addition to any other remedies that may be available to Hydraulink Australia, the Customers credit sale account may be suspended or terminated and all amounts outstanding will become immediately repayable in the event the particulars provided by the Customer in the Credit Application Form are inaccurate or misleading in any significant respect.
14.3 Credit Assessment - Privacy Act
a. The Customer agrees to allow Hydraulink Australia to obtain information on the Customer’s Credit standing from whatever source Hydraulink Australia deems appropriate, including any credit reference agency.
b. If any Goods are supplied to the Customer on credit, Hydraulink Australia may disclose certain information referred to in paragraph 3(e) below about the Customer to a credit reporting body (CRB) when:
i. assessing the Customer's application for credit; and
ii. managing the Customer's account with Hydraulink Australia.
The Customer authorises Hydraulink Australia to disclose such information to a CRB for these purposes.
c. Subject to Hydraulink Australia's obligations under the Privacy Act and other applicable laws, Hydraulink Australia may give the information referred to in paragraph 14.3(e) below to:
i. obtain a consumer credit report about the Customer; or
ii. allow the CRB to create or maintain a credit information file about the Customer.
d. The Customer agrees that Hydraulink Australia may disclose a credit report about it to any CRB, debt collecting agency, or Hydraulink Australia's insurers or advisers for the purposes of assessing the Customer's creditworthiness or to collect any overdue payments, as the case may be.
e. Hydraulink Australia may, in its sole discretion, disclose the following information relating to the Customer in accordance with this paragraph:
i. the name and address of the Customer and its directors and proprietors;
ii. credit limits on the Customer's accounts;
iii. the amount of any payments which are overdue;
iv. where an overdue payment has been previously reported, advise that the payment is no longer over due;
v. cheques or credit card payments which have been dishonoured; and
vi. information that Hydraulink Australia has ceased to supply Goods to the Customer.
f. Hydraulink Australia may refuse to supply the Goods to the Customer on credit on the basis of Hydraulink Australia's credit assessment of the Customer.