1. General
1.1 In these Terms:
- CC Act means the Competition and Consumer Act 2010 (Cth);
- Credit
Facility is defined in clause 5.1(a);
- Goods is
defined in clause 3.1;
- Price is
defined in clause 4;
- Purchaser means the person to whom a quotation is provided, or to whom Goods are supplied;
- Quotation means a quotation for the supply of Goods by the Supplier to the Purchaser;
- Supplier means Hills Limited ABN 35 007 573 417 and each of its related bodies corporate from time to time (within the meaning of the Corporations Act 2001 (Cth)) and for each Quotation means the company (being Hills Limited or one of its related bodies corporate) that issues the relevant Quotation;
- Supplier’s Books means the Supplier’s applicable catalogue(s) or price books, relevant at the time of any Quotation or order; and
- Terms means these Standard Terms and Conditions of Supply.
- Website means a website operated by the Supplier.
2. Quotations
2.1 This section of the Terms applies to all Quotations provided by the Supplier to the Purchaser and invoices issued by the Supplier to the Purchaser.2.2 Unless stated specifically to the contrary in a Quotation, each Quotation is:
a) based on the Supplier’s understanding of the Purchaser’s requirements. It is the Purchaser’s responsibility to verify prior to accepting a Quotation that the Goods will meet the Purchaser’s requirements;b) valid for 30 days from the date it is given;c) exclusive of GST and other taxes unless otherwise stated;d) confidential, and the Purchaser agrees not to disclose the pricing detail to any other person; ande) in $A unless the parties agree otherwise in writing.2.3 The Supplier reserves the right to vary or withdraw a Quotation prior to acceptance, to take into account any variation in currency exchange rates, government charges and import duties, transportation costs etc arising after the date of the Quotation.
2.4 Where a Quotation relates to Goods to be exported from Australia, all prices are quoted FOB at the port nominated by the Supplier. The Purchaser acknowledges that it is responsible for all additional charges by any Government or other authorities.
2.5 Products marked with an “*” asterisk next to them in the Quotation are non-stocked items and are not returnable.
2.6 If the Product requires the Purchaser to hold a current certification from the manufacturer or the Supplier as a condition to the right to purchase, use, install or resell the Product, then the Purchaser represents and warrants to the Supplier that it holds a current certification for the Product and is approved to purchase, use, resell and/or install (directly or indirectly) the Product. The Purchaser acknowledges that a breach of this warranty by the Purchaser may result in a breach by the Supplier of its contract with the manufacturer of the Product and the Supplier may suffer damages, including without limitation loss of profits, in consequence of the breach.
3. Standard Terms of Sale
3.2 (a) The Supplier may amend these Terms from time to time.
(b) The Terms that apply to a Quotation, or order placed without a Quotation, will be the Terms applicable as at the date of the Quotation or order.
3.4 These Terms shall prevail over any Terms provided by the Purchaser, except to the extent specifically agreed by the Supplier in writing and signed by an authorised representative of the Supplier.
3.4 No variation to these Terms is binding upon the Supplier unless set out in writing and signed by an authorised representative of the Supplier.
4. Price
4.1 Subject to these Terms, the price of the Goods (Price) shall be:
(a) the price set out in a Quotation where that Quotation has been validly accepted prior to expiry;
(b) where purchased via a Website, the price set out on the Website at the time of the order; or
(c) in any other case, as set out in the Supplier’s Books (less any discount agreed in writing).
5. Payment
5.1 Terms are strictly cash on delivery unless:
(b) the order is made via a Website, in which case payment is to be made via that Website at the time of order, unless the Purchaser has been granted a Credit Facility; or
(c)the parties agree otherwise in writing.
5.2. If the Purchaser breaches its obligations relating to payment of the Price or any other amount due under these Terms, then the Supplier may require the Purchaser to pay interest on any overdue amount at a rate of 1.5% per month (or the rate specified in the Credit Facility, whichever is the higher) calculated daily on the overdue portion from the date payment was due, until payment is made in full.
6. Cancellation
6.1 An order accepted by the Supplier shall not be cancelled by the Purchaser without the written consent of the Supplier. Where the Supplier does so consent, the Purchaser shall pay to the Supplier all reasonable costs incurred by the Supplier in relation to the supply of the Goods, up to the date the Purchaser cancelled the order.
7. Delivery and Freight
7. 7.1. Unless other arrangements are agreed in writing, the Purchaser
shall be responsible to arrange and pay freight from the Supplier’s place of
business.
7.2 Delivery occurs when the Supplier delivers the Goods to the
Purchaser’s nominated carrier (or the Supplier’s carrier where the Purchaser
has requested the Supplier to arrange transport on its behalf (which shall be
at Purchaser’s cost and charged as a separate item)).
7.3 Risk in the Goods shall be the Purchaser’s once the Goods are
delivered in accordance with clause 7.2 or as otherwise agreed in writing
between the parties.
7.4 In the event of the Purchaser failing to accept any delivery of
the Goods, and provided that the Goods correspond with the order made by the
Purchaser, and supplied in accordance with these Terms, and free from defects,
the Supplier shall be
(a) entitled to payment for the Goods or at its option, all reasonable costs incurred by the supplier in relation to the supply and non-acceptance of the Goods; and
(b) entitled at its option to treat the requirement to supply
the remainder of the Goods (if any) as cancelled by the Purchaser.
7.5 Delivery and despatch dates are estimates only and the Supplier
will not be liable where delivery does not occur on or before the estimated
date Subject always to Goods being in stock, the Supplier will use all
reasonable endeavours to deliver the Goods:
7.6 at the time requested by, or agreed with, the Purchaser; or
7.7 if no delivery time is requested by or agreed with the
Purchaser, within a reasonable period from the date of the order for the Goods.
7.8 The Supplier will not in any circumstances be liable for late
delivery and late delivery does not entitle the Purchaser to cancel any order
or part order for the Goods.
8. Claims and Credits
8.1 Without
limiting clause 15:
a) a) Any request for credit, or claim by the Purchaser (including any
claim that the Goods delivered do not correspond with the Goods ordered) shall
be made in writing within 14 days of delivery, and must be accompanied by proof
of purchase, otherwise the Purchaser will be deemed to have accepted the Goods.
b) b) mall deviations or variations in the Goods shall not give rise
to any claims.
c) c) the Supplier accepts a request for credit, the Goods must be returned in “as new” condition, and may be subject to a restocking fee to cover the reasonable costs of the Supplier.
9. Intellectual Property and Modifications
9.1 The purchaser acknowledges
the Supplier's licence to use or ownership of the copyright, patents, trade
marks, designs and any other intellectual property rights contained within the
Goods manufactured or supplied by the Supplier and in particular agrees that
neither the Purchaser, nor its servants or agents, will attempt to do anything
with any of the Supplier's intellectual property rights which will render the
Purchaser liable to the Supplier for violation or infringement of its
intellectual property rights.
9.2) Where the Purchaser provides
information and / or instructions in writing to the Supplier and where the
Supplier makes any modifications, alterations or adjustments to any Goods as a
result of or in reliance upon the information or instructions provided by the
Purchaser:
a) the supplier bears no
liability for any loss or damage suffered howsoever arising out of any reliance
by the Supplier on the information or instructions provided by the Purchaser,
including where the alterations or amendments are challenged by a third party
as being in breach of that third party's intellectual property rights; and
b) the purchaser indemnifies the Supplier in full against any loss or damage suffered by the Supplier howsoever arising out of any reliance by the Supplier on the information or instructions provided by the Purchaser or otherwise associated with such modifications, alterations or adjustments, including any alleged intellectual property infringement
10. Licences or Consents
10.1 It is the Purchaser’s responsibility to obtain any licence or consent required by any Government or other authority for the purchase or use of the Goods.
10.2 If the Goods are software or cloud services, then the Purchaser acknowledges it has read and is bound by any applicable End User Licence Agreement (howsoever described) accompanying those Goods.
10.3 The Purchaser acknowledges it has read and is bound by the Supplier’s Privacy Policy located at: https://www.hills.com.au/templates/privacy.
11. Trade Marks
11.1 The supply of Goods shall not confer any right upon Purchaser to use any of the Supplier’s trade marks, which at all times remain the property of the Supplier.
12. Title
13. Security in Goods (Goods supplied in Australia)
13.1 This
clause applies only to Goods supplied in Australia or to an Australian entity
for which a Credit Facility applies or the Price has not been paid in full for
the Goods. Unless otherwise defined, terms used in this clause 13 have the meaning given
to them in the Personal Property Securities Act 2009 (Cth) and its regulations
(PPSA - Aus)
13.2 The
Purchaser agrees:
(a)
that
these Terms are or create a security interest in all present and after acquired
Goods as security for any and all the Purchaser’s obligations to the Supplier;
(b)
that
the security interest extends to and continues in all proceeds and accessions
and is a purchase money security interest to the extent it secures all or part
of the purchase price of the relevant collateral;
(c)
to
do such things as the Supplier may require from time to time to ensure that any
security interest of the Supplier is perfected under the PPSA – Aus in whatever
manner the Supplier considers appropriate;
(d)
to
keep the Supplier fully informed of all relevant information regarding the
Purchaser, including providing not less than 14 days notice in writing of any
proposed change in name or contact details and will immediately notify the
Supplier of any material changes in business activities;
(e)
not
to allow for any security interest other than a security interest under clause
13.2(a) to be created, enforced or registered in respect of the Goods;
13.3 To
the fullest extent permitted by the PPSA – Aus:
(a)
nothing
in sections 125, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA – Aus apply to
these Terms or any security interest arising under these Terms; and
(b)
the
Purchaser waives and contracts out of its rights to receive any notice or
statement under sections 95, 118, 121(4), 123, 130, 132(4), 157 and any other
section of the PPSA – Aus.
(a)
take
possession of the Goods, wherever they are located;
(b)
remove
any Goods which have become an accession and/or
(c)
enter
upon the Customer’s premises or any premises where the Goods are located for
that purpose; and/or
(d) appoint any person to be a receiver of all or any of the collateral.
14. Security in Goods (Goods supplied in New Zealand)
14.1 This clause 14 applies only to Goods supplied in New Zealand.
14.2 The Purchaser agrees:
(a)
that these Terms create a security interest in
all present and after acquired Goods as security for all the Purchaser’s
obligations to the Supplier, which is registrable in the Personal Property
Securities Registry under the Personal
Property Securities Act 1999 (NZ) (PPSA
- NZ);
(b)
to do all things reasonably required by the
Supplier to ensure that the Supplier acquires a perfected security interest in
the Goods under the PPSA - NZ; and
(c)
to waive its rights to receive a copy of any
verification statement(s) under the PPSA – NZ and that as between the Supplier
and the Purchaser, it will have no rights under sections 114(1)(a), 116,
117(1)(c), 119, 120(2), 121, 125, 126, 127, 129, 131, 132, 133 and 134 of the
PPSA - NZ.
14.3 If the
Purchaser does any of the following things:
(a)
fails to make payment in full as required by
these Terms;
(b)
fails to comply with any of these Terms;
(c)
commits an act of bankruptcy or makes an
arrangement with all or any number of its creditors, or has a receiver or
liquidator appointed; or
(d)
if the Goods are "at risk" within the
meaning of the PPSA - NZ,
then the Supplier may repossess and sell the Goods (subject to these Terms and in accordance with the PPSA - NZ) and where reasonably necessary for such purpose, may enter the premises where it expects the Goods are held.
15. Warranty and Liability
15.1 The Supplier warrants that the Goods are of acceptable quality and free from defects caused by faulty manufacture or faulty materials. This warranty is valid for 12 months from the date of delivery of the Goods, or such period provided in the manufacturer’s warranty documentation accompanying the Goods, whichever is the greater. This warranty is in addition to any non-excludable legal rights or remedies conferred on the purchaser under the CC Act and any similar laws.
15.2 If during the warranty period, any part of the Goods fails to operate correctly due to faulty manufacture or materials, the Supplier will, at its option, either repair the Goods, supply replacement Goods or reimburse the Purchaser for the Price, provided that the Purchaser returns the Goods to the Supplier at the address specified in the Quotation, or a service centre authorised by the Supplier. The Supplier shall not be liable for defects arising from fair wear and tear or misuse of the Goods.
15.3 The Purchaser is liable for all costs
associated with sending the warranty claim Goods to the Supplier, including
freight or postage and insurance, and for collection or return of the repaired
or replacement Goods.
15.4 To the extent permitted by law, all warranties,
conditions, obligations and liabilities, other than those specified in these
Terms, are excluded.
15.5 To the extent permitted by law, the Supplier's
liability for any non-excludable condition or warranty is limited to (at the
Supplier's option):
(a)
in the case of goods – repairing, replacing or
supplying equivalent goods, or paying the cost of any of those remedies to the
purchaser; or
(b)
in the case of services – supplying the
services again or paying the cost of having the services supplied again.
15.6 This clause 54 applies where the Goods are "consumer
goods" within the meaning of the CC Act:
Our
goods come with guarantees that cannot be excluded under the Australian
Consumer Law. You are entitled to a replacement or refund for a major failure
and compensation for any other reasonably foreseeable loss or damage. You are
also entitled to have the goods repaired or replaced if the goods fail to be of
acceptable quality and the failure does not amount to a major failure.
15.8 Clause 15.7 will apply even if such damages are foreseeable, and even if the Supplier was advised of the likelihood of such damages occurring.
16. Invoice and GST
16.1 At the time of supply of the Goods (or at such earlier time as it determines in its sole discretion), the Supplier will provide the Purchaser with a valid tax invoice, in the form prescribed by the A New Tax System (Goods & Services Tax) Act 1999 (Cth) or any other relevant legislation.
16.2 Where any sum is to be paid by the Purchaser to the Supplier, the Purchaser must pay this sum plus the amount of any applicable GST.
17. Delay
The
Supplier shall not be liable for any loss sustained by the Purchaser through
delay in delivering the Goods caused by circumstances outside of the reasonable
control of the Supplier.
18. Default
18.1 It is a Default
if the Purchaser:
(a)
fails to pay any amount (including the Price)
to the Supplier when due for payment;
(b)
breaches any of these Terms or the Terms
relating to the Purchaser’s credit application; or
(c)
commits an act of bankruptcy or makes an
arrangement with all or any number of its creditors, or has a receiver,
administrator or liquidator appointed.
18.2 If a Default occurs the Supplier may, to the
extent permitted by law:
(a)
suspend any further supply or deliveries of any
Goods;
(b)
cancel any Credit Facility (and require that
all further sales be on a cash on or before delivery basis);
(c)
declare all amounts owing by the Purchaser to
the Customer on any account immediately due and payable;
(d)
treat these terms as repudiated by the
Purchaser;
(e)
exercise any other rights, including to enforce
any security interest and to claim the return of any Goods to which it has
title; and
(f)
recover all debt collection and legal expenses
incurred by Supplier on a client/solicitor basis in connection with the
enforcement or attempted enforcement of these Terms.
19. Disclaimer and Indemnity
19.1 Except as expressly provided in these terms, to
the extent permitted by law, the Supplier and each of its related bodies
corporate
(a)
exclude all liability to the Purchaser or
anyone else for loss or damage of any kind (however caused or arising) relating
in any way to the Goods or in connection with these Terms
(b) will not be liable for any direct, indirect, special, incidental or consequential damages arising out of the Purchaser’s access to, use or resale of the Goods or in connection with these Terms.
19.2 The Purchaser shall at all times indemnify, and
keep indemnified, the Supplier and each of its related bodies corporate,
including their directors, officers, employees and agents from and against any
loss (including reasonable legal costs and expenses on a full indemnity basis)
or liability incurred or suffered by the Purchaser arising from any claim,
demand, suit, action or proceeding by any person against the Purchaser where
such loss or liability arose out of, in connection with or in respect of the
Purchaser’s conduct, or access to, use or misuse or resale of the Goods or
breach of these Terms or the terms of any third-party licence agreement that
applies to the Goods.
19.3 This clause is not intended to exclude or limit
any rights which the Purchaser may have under the Competition and Consumer Act
2010 (Cth).
20. Waiver and Assignment
20.1 The failure by either party to exercise or
enforce any right shall not be deemed to be a waiver of any such right.
20.2 The Supplier may assign any of its rights
arising under these Terms without notice to the Customer. The Customer may only
assign its rights, or any of them, arising under these Terms with the prior
written consent of the Supplier which may be withheld in the Supplier’s
absolute discretion.
21. Severance
If
any part of these Terms is found to be void, illegal or unenforceable by a
court of competent jurisdiction then that part shall be severed from the
balance of the Terms and shall not affect the continued operation of the
remaining provisions.
22. Governing Law
These
Terms shall in all respects be exclusively governed by and constructed and
interpreted in accordance with the laws of New South Wales, and the parties
agree to submit to the exclusive jurisdiction of the courts of that
jurisdiction.
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