CONDITIONS OF SUPPLY
“Company” refers to Victorian Hydraulics Pty Ltd ABN 92 109 622 317
1. Quotations
(a) Unless otherwise agreed in writing a quotation may be accepted up to 30 days from the quotation date, after which the Company reserves the right to amend or withdraw the quotation.
2. Charging conditions
(a) Charges for maintenance, service, repairs or installation work are based on work being carried out during Normal Working Hours (08:00 to 16:30 hours, subject to alteration by the Company, Monday to Friday except Public Holidays) and are conditional on our having continuous and uninterrupted work opportunity and assume unhindered access to the areas where the work is to be carried out. They do not cover extraneous work, building work etc. and, should the Company agree to carry out such work at the request of the Client during installation, then the Company shall not be liable for any damage caused to such items. All additional costs arising from any alteration to our specifications or estimates required by you and interruption or delays by you, your employees, agents or Clients or other trades during the course of installation or service may result in additional costs.
(b) All service call-outs, emergency call-outs, repairs, waiting time, supply and replacement of equipment or parts (whether within Normal Working Hours or outside of such) shall be chargeable items with minimum service charges applicable.
3. Force Majeure
(a) A Party (“Affected Party”) is not liable for any failure to perform an obligation (other than to pay money) under the Agreement caused by any of the following events (“Event”).
i. war, riot, insurrection, vandalism, sabotage, national emergency (whether in fact or law), piracy, hijack or act of terrorism including the use or threatened use of violence or act putting the public or any section of it in fear, for political purposes of for furthering an ideological aim;
ii. strike, lockout, ban, limitation of work or other disturbance;
iii. any other occurrence outside the control of the Affected Party or its employees, agents, licensees, franchises, contractors or servants.
The Affected Party must notify the other party as soon as practical of any anticipated delay or failure caused by an Event.
(b) The performance of the Affected Party’s obligations under this Agreement is suspended for the period during which the Affected Party is reasonably prevented from performing an obligation which is caused by the Event (“Delay”) and the Affected Party is not liable for any loss or damage whatsoever suffered by the other party during such suspension.
4. Taxation
(a) Where any Supply under these Terms and Conditions is or becomes subject to a Goods and Services Tax, an amount equal to the GST paid or payable in respect of the Supply shall be added to the amount exclusive of GST paid or payable for the Supply under these Terms and Conditions;
(b) The provisions contained in sub-clause (a) apply notwithstanding any other clause of these Terms and Conditions whatsoever;
(c) Each party agrees to do all things, including providing invoices and other documentation that may be necessary or desirable to enable or assist the other party to claim any credit, set-off, rebate or refund in relation to any amount of GST paid or payable in respect of any Supply under these Terms and Conditions:
(d) In clause:
i. The expression “GST” means any tax in the nature of a tax on or on the supply of goods, real property, services, or other things (or similar tax) levied, imposed or assessed by the Commonwealth of Australia or any State or Territory of Australia , which may operate at any time during the term of these Terms and Conditions, other than any interest, fine, penalty, fee or other payment imposed on or in respect of the above;
ii. The expression “Supply” means any form of supply whatsoever, and includes any supply within the meaning of any Commonwealth, State or Territory legislation imposing, or relating to the imposition of GST.
5. Warranty
(a) The warranty period for the equipment is 6 months from the date of completion of installation and equipment sold on a supply only or supply and commission basis, or 6 months from the date of delivery of the equipment (whichever applies earliest). This relates to installations where Victorian Hydraulics is the commissioned installer.
(b) Warranty support is based on repair at our premises or replacement with our consent and at our discretion with no other costs or charges to the Company applicable as per our Warranty agreement.
6. The Client:
(a) Shall obtain and pay for all necessary consents for the installation of the equipment and shall give to the Company and maintain clear and safe access to the premises at all reasonable times for the purpose of doing anything which the Company is required or entitled to do hereunder. The Client acknowledges that it may be necessary for some work to be carried out outside Normal Working Hours.
(b) Shall assume all risks in the equipment upon and from delivery of the equipment to its premises or as otherwise directed by it or collection by it or its agents or servants but title to the equipment shall not pass the Client until the Company shall have received payment in full of the charge for the installation or equipment indicated in the quotation.
Until then:
i. The title in the equipment remains vested in the Company notwithstanding delivery of the equipment and passing of risk to the Buyer;
ii. The Client shall hold the equipment as bailee for and on trust for the Company;
iii. The Client shall store the equipment in such a way that it’s condition is maintained and it can be readily identified as being the property of the Company;
iv. The Client shall on request inform the Company of the precise location of each item of the equipment, identified where applicable by serial number, by supplying the Company, at the Client’s expense with a written schedule of the relevant location within 7 days of request;
v. The Client may sell the equipment as the Company’s agent in the normal course of the Client’s business and may pass good title to the Client’s Client, being bona fide purchasers for value without notice of the Company’s rights on the following conditions:
1. The proceeds of such sale up to the Client’s maximum indebtedness to the Company shall be held by the Client as bailee for and on trust for the Company;
2. In the event of such sale the Client shall up to its maximum indebtedness to the Company account to the Company on demand for the proceeds of sales provided that no such demand shall be made by the Company in the absence of the Company having reasonable cause to believe that the Client might default in making payment for the equipment in accordance with these Terms and Conditions;
3. The Company shall be entitled to make a claim directly against the Client’s Client for any purchase moneys unpaid by such Client provided the Company shall return to the Client all moneys recovered in excess of the amount then owed by the Client to the Company, the Company being entitled to deduct from such excess its costs and expenses in making such claim;
4. The Company may at any time revoke the Client’s power of sale in respect of the equipment;
5. The Client’s power of sale shall automatically cease if the Client at any time is in default of payment of moneys due to the Company under any contract between it and the Company;
6. The Client shall notify the Company without delay of any attachment of the equipment by third parties which might infringe the Company’s title to the equipment;
vi. Upon termination of the Client’s power of sales, the Company shall be entitled by itself, its employees or agents to enter upon any of the Client’s premises for the purpose of removing and repossessing the equipment or (subject to the limit specified in this sub-clause) the processed of any sale;
vii. Until title in the equipment has passed to the Client, the Client shall not purport to be the owner of the equipment and shall not show the equipment as stock in its accounts;
(c) Shall make available, at no cost to the Company, all necessary ladders and scaffolding or other items required for access to the equipment, which shall be safe to use and comply with relevant legislation.
(d) Shall indemnify and keep indemnified the Company against any claims whatsoever for damage penalties costs and expenses and against all liabilities in respect of any patent, registered design or any industrial copyright of any third party where the equipment is made or procured for the Client and supplied by the Company to other than the Company’s design at the Client’s request or is used by the Client in conjunction with other equipment not supplied by the Company.
(e) Shall advise the Company of the existence of concealed pipes, wires and cables for water, gas, electricity, telephone or other services affecting the premises and shall confirm the location of such services to the Company’s technician before work commences. In the absence of such notice the Company accepts no liability for damage to such services or any loss damage or injury whatsoever incurred or sustained in consequence thereof as the Client hereby acknowledges and the Client shall indemnify the Company against any claim whatsoever for loss, damage or injury resulting from damage to such services as aforesaid.
(f) Supply
i. Shall inspect all goods upon delivery and within 7 days of delivery give notice to Victorian Hydraulics Pty Ltd of any matter or issue by which the buyer alleges that the goods are not in accordance or specification of the purchase order;
ii. Goods may not be returned for credit without first obtaining a Returned Material Authority (RMA) number from Victorian Hydraulics Pty Ltd. Goods returned without any associated documentation and prior approval shall not be accepted by Victorian Hydraulics;
iii. Victorian Hydraulics will accept goods returned for credit in those instances where Victorian Hydraulics is at fault, i.e. incorrectly supplied or proven to be damaged in transit on our carrier;
iv. Goods returned for credit, except under (i) & (iii) above, shall be subject to a 20% of value or $20 (whichever is greater) restocking fee;
v. Non standard products or products specially purchased for Clients will not be accepted for return by Victorian Hydraulics except under the conditions outlined in (i) & (iii) above, or unless an alternate purchaser can be immediately found. In this event clause (iv) will still apply;
vi. All freight charges for goods returned for credit will be prepaid by the Client unless otherwise approved by Victorian Hydraulics Pty Ltd management prior to shipping;
vii. All merchandise returned must be in a clean and resaleable condition.
7. The Company:
(a) Shall install or supply the equipment within reasonable time from date of acceptance by the Client of a quotation or as otherwise agreed by the Company in writing Provided Always that time shall not be of the essence;
(b) Shall, during the warranty period, make good by repair or, at the Company’s option, by the supply of a replacement, defects which under proper use appear in such part or parts of the equipment during the warranty period which arise solely from faulty materials or workmanship. The defective equipment will be replaced free of charge except for goods not manufactured by the Company where the Company will pass on to the Client, to the extent that it is so able, the benefit of any guarantee received by it. Response is during Normal Working Hours only;
8. The Company’s Liability:
The Company has no special knowledge of the nature and value of the contents of the premises or vehicle for which the equipment has been specified and in which it is to be installed or serviced or of the nature of the risks to which the premises and their contents will be or may be from time to time exposed. The potential loss or damage which the Client might suffer is likely to be disproportionate to the sums that can reasonably be charged by the Company under agreements of this nature. As the Client knows or should know the extent of such potential loss or damage and is therefore in the best position to do so it should insure against all likely risks. Accordingly, the Company limits its liability to the Client as set out in this clause which specifies the entire liability of the Company including liability for negligence. The provisions of this clause do not affect the Clients statutory rights where the Client deals as a “consumer” of goods or services within the meaning of that term in the Trade Practises Act 1974 as amended and/ or similar State legislation (“Consumer”).
(a) Liability
i. Except as provided in clause (a) above the Company shall have no liability whether in contract tort (including negligence) or otherwise for any loss damage or injury where such loss damage or injury arises indirectly or unforeseeably from or is consequential or contingent upon a wrongful act or omission on the part of the Company or of its servants or agents acting in the course of their employment;
ii. The Company shall have no liability in any circumstances whatsoever whether in contract tort (including negligence) or otherwise and whether caused directly or indirectly for financial loss of profits contracts business anticipated savings, use or goodwill.
iii. Under no circumstances shall the Company have any liability for any deliberately wrongful act, wilful act, default or omission by any employee of the Company acting in the course of his employment unless such act, default or omission could have been avoided by the exercise of due care and diligence on the part of the Company as employer.
9. General:
(a) Payment:
i. The Company reserves the right to issue progress invoices for materials and /or labour expended on work in progress. A final invoice will be issued on completion of an installation or supply of equipment;
ii. The Company reserves the right to place into bond materials which cannot be accepted for delivery on site and invoice the full value thereof;
iii. Payment is against invoice;
iv. Payment is due to be received on the Company’s premises or lodged directly into the Company’s nominated bank account by the 25th day of the month following the date of invoice.
v. The Client may not offset or contra any monies owing against Company invoices.
If any payment shall be more than one month in arrears the Company shall have the right to withhold further deliveries of constituent components of the equipment. Time for payment shall be of the essence.
(b) If the Client purports to cancel any order, contract or agreement before work on installation of equipment has begun, then the Client shall pay to the Company on demand a sum equivalent to all the Company’s costs, fees and expenses incurred up to the date of such purported cancellation including any damages payable to the Company’s sub-contractors, suppliers and others together with a reasonable proportion of the Company’s loss of anticipated profits.
(c) The Company reserves the right to charge interest on any sum due to the Company and not paid on the due date at the rate of 1.5% per month from time to time compounded monthly on all amounts overdue until payment thereof such interest to run from day to day and to accrue after as well as before any judgement.
(d) Recovery Costs – The Customer shall pay all costs and expenses incurred by the Supplier, its legal advisors (on an indemnity basis), mercantile agents and others in respect of any action instituted or being considered against the Customer whether for debt, possession of any products or otherwise.
(e) The Company may perform any of its obligations through sub-contractors.
(f) The Company’s policy is one of constant improvement and the Company reserves the right to alter the specification of any component part of parts of the equipment at its discretion at any time without notice. The Company also reserves the right because of difficulties in obtaining supplies, to use at its discretion equipment and materials other than those specified provided this does not materially affect the performance of the equipment.
(g) Neither party shall be liable to the other by reason of its failure to perform any of its obligations hereunder by reason of strikes, lock-outs, labour disputes, weather conditions, traffic congestion, and mechanical breakdown, obstruction of any public or private road or highway, or any cause beyond its control.
(h) Either party may give the other notice under these Terms and Conditions by letter or facsimile addressed to the postal or facsimile address last known to the party giving the notice or any such notices shall be considered given when the letter or facsimile would have been delivered in the ordinary course of post or transmission.
(i) No terms or representation express or implied other than those expressly embodied in these Terms and Conditions shall be binding upon the Company unless accepted by the Company under the hand of a Director, the Secretary or Authorised Officer in writing.
(j) This agreement shall be subject to the laws of the State of Victoria and the parties submit to the jurisdiction of the Courts of Victoria.
(k) It is agreed that these Terms and Conditions operate to the exclusion of all terms and conditions issued by the Client whether contained in purchase orders or otherwise and whether issued before or after the date these Terms and Conditions come into effect.
(l) The term “equipment” means all goods or services of any kind, including components and systems where the context requires, supplied by the Company at the Client’s request.