HYE TECH COMPUTER SOLUTIONS PTY LTD ACN: 161 672 484
TERMS AND CONDITIONS OF SALE
1. GENERAL
1.1 Unless otherwise agreed in writing by Hyetech
Computers Solutions Pty Ltd (“Hyetech”), the following conditions shall govern
this transaction and shall be incorporated into all future transactions where
Hyetech supplies any goods, as described in the individual tax invoice provided
by Hyetech (“the Goods”), to a Customer (“Customer”), whether or not these
conditions are made expressly applicable to any particular transaction.
1.2 Terms and conditions contained in any form, order, or
other writing of the Customer that are at variance with or additional to these
terms and conditions are not binding upon Hyetech unless specifically accepted
by Hyetech in writing.
1.3 Any quotation submitted by Hyetech shall constitute
an invitation to do business only. A contract shall only be formed when an
order is received from the Customer to purchase goods, subject to Hyetech’s
terms and conditions of sale. The quotation shall, at the discretion of
Hyetech, be capable of being withdrawn at any time prior to acceptance by
Hyetech of the Customer’s offer to purchase Goods.
1.4 The description of the Goods on the face hereof, or
given in any other document, is for identification purposes only. The use of
such description shall not constitute an order for the supply of the Goods as a
sale by description unless expressly stated.
1.5 Hyetech reserves the right to deliver the Goods by
instalments, and each instalment shall be deemed to be sold under a separate
contract incorporating Hyetech’s standard terms and conditions of sale. Failure
by Hyetech to deliver any instalment shall not entitle the Customer to cancel
the balance of the order.
2. RIGHTS IN RELATION TO GOODS
2.1 It is the responsibility of the Customer to ensure,
when ordering, that all Goods ordered conform to the Customer’s requirements.
2.2 Notwithstanding the provisions of Clause 2.6 below,
title to and ownership of the Goods shall not pass from Hyetech to the
Customer. Full legal and beneficial ownership of the Goods shall remain with
Hyetech until the Customer has paid the invoiced price in full, including any
additional charges, taxes, or duties related to the Goods, in accordance with
these terms and conditions.
2.3 All Goods supplied by Hyetech to the Customer, as
described in each individual tax invoice provided by Hyetech, fall under the
Personal Property and Securities Act 2009 (PPS Act) as part of Retention of
Title Arrangements (Security Interests) and will be registered on the PPS
Register. The Customer acknowledges that Hyetech has been granted a Security
Interest under the PPS Act and consents to Hyetech registering the Goods on the
PPS Register.
2.4 The Customer shall assist Hyetech, if required, in
any reasonable way to ensure that the Security Interest becomes a
"Perfected Security Interest" as defined in the PPS Act.
2.5 Until title and ownership of the Goods pass to the
Customer under Clause 2.2, and without prejudice to Hyetech’s other rights:
2.6 Subject to these terms and conditions, the Customer
may process or incorporate the Goods with other items, provided that any
resulting products are clearly marked and stored to indicate that they contain
Goods owned by Hyetech. The Security Interest continues in the mixed or
improved products.
2.7 The Customer may sell products derived from the Goods
only as bailee for Hyetech, and all proceeds from such sales shall be held in
trust for Hyetech, not mingled with other funds, and clearly identifiable as
Hyetech’s money. If the Customer does not receive payment, it must assign its
rights to Hyetech upon request within three (3) days.
2.8 The Customer assumes all risk of loss or damage to
the Goods from the time they are loaded for dispatch from Hyetech’s premises or
the storage premises.
2.9 The Customer shall indemnify Hyetech on demand for
any loss, damage, cost, expense, or liability (including consequential loss,
loss of profits, and legal costs) incurred by Hyetech in exercising its rights
under this Clause 2.
2.10 Nothing in this Clause 2 confers any right upon the
Customer to return the Goods or delay or refuse payment.
3. DELIVERY AND ACCEPTANCE
3.1 Any delivery times quoted are estimates only, and
Hyetech shall not be liable for any loss or damage arising from or related to
any failure or delay in delivery due to circumstances beyond Hyetech’s control.
This includes, but is not limited to: fire, flood, natural disasters, strikes,
lockouts, industrial disputes, breakdowns or accidents, unavailability or
shortages of raw materials, labor, power, supplies, or transport, acts of God,
or orders or directives from any local, state, or federal government or
authority.
3.2 Hyetech's obligation to deliver the Goods shall be
fulfilled when the Goods are made available for pickup at the premises where
they are stored. The Customer must collect the Goods at its own expense.
3.3 Unless otherwise specified in writing by the
Customer, Hyetech may choose the method of shipment and the carrier. Hyetech
may make partial shipments, which will be invoiced and payable separately. All
freight costs shall be borne by the Customer.
5. PRICES AND VARIATION OF PRICES
5.1 All prices shall be either as quoted or in accordance
with Hyetech’s current price list at the time of the order, whichever is
higher. Such price lists are subject to the conditions (if any) stated thereon.
Verbal quotations are subject to written confirmation. All prices quoted are
exclusive of taxes, imposts, charges, and duties related to the sale of the
Goods. These taxes, imposts, and duties (where applicable) shall be the
responsibility of the Customer.
5.2 The Customer shall be required to pay Hyetech any
additional amounts that may become payable by Hyetech as a result of any
increases in taxes, imposts, charges, or duties applicable to the sale of the
Goods.
5.3 Prices may be changed by Hyetech at any time without
prior notice to the Customer.
6. DEFAULT
6.1 Upon the occurrence of any of the following events:
(a) The commission by the Customer of any act described
in Clause 2.3;
(b) The Customer failing to make any payment to Hyetech by the due date; or
(c) The Customer breaching any of these terms and conditions;
Then, in any such event, Hyetech shall have the right to:
6.2 Should Hyetech, by its servants or agents, enter any
premises where the Goods are located for the purpose of repossession under this
Clause, and legal action is brought against Hyetech for trespass or any other
related cause, the Customer shall indemnify and keep Hyetech indemnified
against all damages, losses, and legal liabilities resulting from such action.
7. RETURN OF GOODS
7.1 Any Goods being returned to Hyetech for warranty
replacement or credit must be labeled and consigned in accordance with
Hyetech’s return procedures, as may be established from time to time. The
current procedures for returning Goods include:
(a) Claims for shortages, loss, or damage must be made by
the Customer within two (2) days of receipt of the Goods.
(b) Express approval for the return of Goods must first
be obtained from a duly authorised officer of Hyetech by way of a Return
Authorisation number.
(c) Returned Goods must include all relevant accessories.
The Goods (including accessories) must be in the original packaging, with
software unopened, and must be in undamaged, saleable condition.
(d) No claim for credit in respect of any returned Goods
will be approved by Hyetech unless the Customer’s completed claim form
accompanies the returned Goods and includes at least the following:
(i) The purchase invoice number and date;
(ii) The reason for return; and
(iii) The name of the Hyetech officer who approved the return, along with the
details of such approval.
(e) Subject to the above, any Goods returned more than 14
days after the invoice date may be credited at the current price less a 15%
restocking fee.
(f) All costs incurred in returning the Goods to Hyetech
shall be borne by the Customer, unless otherwise approved in writing by an
authorised officer of Hyetech.
8. LIMITATION OF LIABILITY
8.1 Except as required by the provisions of the Competition
and Consumer Act 2010 or any relevant State legislation, all express or
implied conditions, warranties, undertakings, and covenants that cannot be
excluded under such laws shall be limited, at Hyetech’s sole discretion, to one
of the following remedies:
i. The replacement of the relevant Goods or the supply of
equivalent goods, provided that any defect has developed under proper and
normal conditions of use and maintenance by the Customer; or
ii. The repair of the relevant Goods; or
iii. The payment of the cost of replacing the relevant Goods or acquiring
equivalent goods, if available at the time; or
iv. The payment of the cost of having the relevant Goods repaired.
Hyetech shall determine, at its discretion, which of the
above remedies shall apply in any given case.
8.2 Except as provided in Clause 8.1, Hyetech shall not
be liable to the Customer or to any third party claiming through the Customer,
whether in contract or tort, for any direct, indirect, or consequential loss,
damage, or expense arising out of or in connection with any breach by Hyetech,
its employees, agents, or contractors of these terms and conditions or in
relation to the supply of Goods or services. This includes, but is not limited
to, any error (whether negligent or not) in information provided before or
after the supply.
"Consequential Loss" includes, but is not limited to, loss of
profit, loss of use, loss of goodwill, payments made or due to any third party,
or any loss or damage resulting from delays in service delivery, as well as any
associated costs incurred by the Customer.
8.3 Without limiting the effect of any other provisions
of these terms and conditions, and subject to Clause 8.1, in the event that
Hyetech is found liable to the Customer or any third party claiming through the
Customer—whether in contract, tort, or otherwise—for any loss arising from the
supply of Goods or services, such liability shall not exceed the amount paid by
the Customer to Hyetech for the Goods in question, less any freight, taxes,
duties, or other amounts payable by Hyetech to third parties.
Such loss or damage includes, without limitation, that caused by the
negligence, willful misconduct, or legal default of Hyetech or any of its
employees, agents, or contractors, regardless of foreseeability.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 The Customer acknowledges that all trademarks, trade
names, patents, copyrights, and other intellectual property embodied in or
associated with the Goods, as well as any related information or documentation,
are the property of Hyetech or the respective manufacturer or supplier of the
Goods to Hyetech. The Customer further acknowledges that Hyetech holds the
rights to import and distribute the Goods within Australia and New Zealand.
9.2 The Customer also acknowledges that such copyrights,
intellectual property rights, and other related rights belonging to Hyetech or
the applicable manufacturer or supplier may only be used by the Customer with
the prior written consent of Hyetech or the respective manufacturer/supplier.
The Customer shall not dispute, challenge, or undermine the ownership or title
of Hyetech or such third parties in respect of these rights.
The Customer further acknowledges that the sale of Goods does not confer any
rights or interests in any trademarks, patents, copyrights, industrial designs,
or other intellectual property belonging to Hyetech or its suppliers.
10. CREDIT DISCLOSURE & CREDIT INFORMATION
Hyetech may agree to provide goods to the Customer on
credit under this application. In order to process the application, Hyetech
will rely on the information the Customer provides and may also need to obtain
personal credit information about the Customer to grant commercial credit in
relation to these goods. This information may be obtained by Hyetech from the
Customer, from people or organisations named in the Customer’s credit
application, and from credit reporting agencies. Any defaults on credit granted
to the Customer may be listed with a credit reporting agency.
In addition to the Hyetech Terms and Conditions, the
Customer acknowledges and consents to Hyetech collecting, using, and disclosing
the Customer’s personal information in accordance with the Privacy Act 1988,
including:
10.1 Seeking consumer credit information pursuant to
section 18K(1)(b) of the Privacy Act 1988;
10.2 Exchanging information with other credit providers
pursuant to section 18N(1)(b) of the Privacy Act 1988;
10.3 Listing credit default information pursuant to
section 18E(1)(b)(vi) of the Privacy Act 1988; or
10.4 Any other use in connection with the Customer’s
credit account as permitted under the Privacy Act 1988.
In accordance with section 18H(2) of the Privacy Act
1988, the Customer may access their personal information collected by Hyetech
to assess whether the information held is accurate, incomplete, or out of date.
In the event that the Customer’s application for credit
is refused by Hyetech, and the refusal is based wholly or partly on information
derived from a credit report obtained from a credit reporting agency, then
Hyetech will provide the Customer with written notice pursuant to section 18M
of the Privacy Act 1988.
All sales are deemed to be made in the State of South
Australia, and shall be governed and construed in accordance with the Law of
the State of South Australia and with the Commonwealth of Australia.
In the event that any or any part of these terms,
conditions or provisions shall be determined invalid, unlawful or unenforceable
to any extent such terms, conditions or provisions shall be severed from the
remaining terms and conditions, which shall continue to be valid and
enforceable to the fullest extent permitted by law.
Failure by Hyetech to insist upon strict performance of
any term warranty or condition of these terms and conditions shall not be
deemed a waiver therefore of any rights that Hyetech may have and no express
waiver shall be deemed a waiver of any subsequent breach of any term, warranty
or condition.
No modification, variation or amendment to these terms
and conditions shall be of any force or effect unless in writing and signed by
Hyetech.
Any notice or document required under these terms and conditions to be served on Hyetech must be addressed to its registered office for the time being. Any notice or document similarly required to be served on the Customer may be sent to the Customer’s last known address. Notices and documents may be delivered by hand or sent by prepaid post and if sent by post shall be deemed to be served on the day on which they would be delivered in the ordinary course of post. Notices and documents may be delivered by facsimile or electronic email to the parties’ last known facsimile number or email address and shall be deemed to be served at the time of transmission.
16.1 Unless inconsistent with the context:
“Hyetech” means Hyetech Computers Solutions Pty Ltd
together with its successors and assigns. “Customer” shall include, in the case
of an individual, his executors and administrators and in the case of a
corporation, its successors and permitted assigns. Where the Customer is more
than one person, all Customers, shall be jointly and severally bound by the
terms and conditions contained or implied herein. “Goods” means all products
and services offered for sale by Hyetech to the Customer.
16.2 The plural includes the singular and vice versa, and
one gender includes all other genders.
16.3 Marginal headings shall not effect the interpretation of these terms and conditions.
