Conditions of Sale

Standard Conditions of Sale

“HydPower Hydraulics” means HydPower Hydraulics Pty Ltd, ABN 38 114 349 245, and all related corporations, successors and assigns; “Contract” means the contract referred to in Clause 2; “Customer” means a person or entity acquiring or offering to acquire Products from HydPower Hydraulics and, where the Customer comprises more than one party, the covenants and obligations of each party are joint and several; “Products” means all products, services and equipment supplied or to be supplied by HydPower Hydraulics to the Customer; “Conditions” means these Standard Conditions of Sale; “ACL” means the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Consumer rights (this clause prevails). Nothing in these Conditions excludes, restricts or modifies any consumer guarantee, right or remedy that cannot lawfully be excluded under the ACL or any other applicable law. Where the Customer is a “consumer” as defined in the ACL, these Conditions apply only to the extent they are consistent with the ACL, and any return, refund or exchange for that Customer is governed by our published Returns Policy and Refund Policy, which prevail over any inconsistent provision in these Conditions. The exclusions and limitations in Clauses 7, 9 and 16 apply only so far as the law permits.

1. Application of Conditions of Sale

Unless otherwise agreed in writing by HydPower Hydraulics, these Conditions will apply to all quotations, orders and offers in relation to the Products and the sale, supply, service and replacement of all Products, and will take precedence over any inconsistent provisions in any Customer order, or contained or referred to elsewhere, or implied by trade custom, practice or course of dealing, subject always to the consumer-rights clause above.

2. Orders and Contract

2.1 Each order by a Customer is deemed to be an offer to HydPower Hydraulics under these Conditions and is not binding on HydPower Hydraulics prior to its acceptance. On HydPower Hydraulics’ written acceptance of an order, the order and these Conditions will constitute the entire agreement of the parties in relation to the subject of that order (the “Contract”) and may only be varied in writing, signed by the parties.

2.2 Acceptance by the Customer of possession and/or delivery of Products will constitute acceptance, or confirmation of previous acceptance, of these Conditions to the exclusion of all other terms or provisions.

2.3 Subject to the Customer’s rights under the ACL and our published Returns and Refund Policies, the Customer is not entitled to cancel any order or materially vary any specifications without HydPower Hydraulics’ previous consent in writing.

3. Quotations and Prices

3.1 Prices quoted by HydPower Hydraulics are firm for a period of 28 days from the date of quotation.

3.2 HydPower Hydraulics reserves the right to make any changes necessary to correct errors or to allow for increases in the cost of labour, materials, freight, foreign exchange rates, taxes, duty or other levies taking effect prior to the date of delivery.

3.3 Unless otherwise stipulated, a quoted price is exclusive of all taxes and duties, transit insurance and transportation costs, for which the Customer will also be liable. Prices on the online store are in Australian Dollars (AUD) and include GST where indicated.

4. Credit

HydPower Hydraulics reserves the right to withdraw credit at any time and substitute cash with order, cash on delivery or any other terms. HydPower Hydraulics may refuse to proceed with any Contract at any time if the Customer’s credit is, or becomes, unsatisfactory to HydPower Hydraulics.

5. Description

5.1 HydPower Hydraulics catalogues, price lists and quotations do not constitute offers. Any description of Products given is for identification purposes only and does not constitute a contract of sale by description.

5.2 All drawings, designs, specifications and particulars of weight, dimensions and any figures or statements as to performance are intended merely to describe the Products generally and are not to be regarded as a warranty, representation or contractual term unless expressly agreed by HydPower Hydraulics in writing. This clause does not limit the consumer guarantees under the ACL.

6. Title and Risk

6.1 Notwithstanding any arrangements made for transportation of the Products to the Customer’s nominated destination, all Products sold are at the risk of the Customer from the time the Products leave HydPower Hydraulics’ premises.

6.2 Regardless of when risk passes, Products remain the property of HydPower Hydraulics as legal and equitable owner, and no title passes to the Customer until payment has been made in full (and all cheques and other negotiable instruments have cleared) for all Products supplied. Pending title passing, the Customer must: (i) keep the Products in good condition; (ii) keep the Products fully insured to their full replacement value against all risks; (iii) not encumber the Products in any way; and (iv) hold and keep the Products separately from other property so that they remain easily identifiable as Products supplied by HydPower Hydraulics.

6.3 Failure to make any payment by the due date will, without prejudice to any other available remedy, entitle HydPower Hydraulics to repossess the Products from any premises where they may be situated. For that purpose the Customer grants an irrevocable licence to HydPower Hydraulics, its employees or agents, to enter such premises using only such reasonable force as is necessary, and the Customer will indemnify HydPower Hydraulics against any liability to any third party in respect of such entry.

6.4 HydPower Hydraulics may bring an action against the Customer for the price of the Products in the event of non-payment by the due date as if property had already passed, and may also, by written notice at any time after the agreed delivery date, pass property in the Products to the Customer from the date of that notice.

7. Claims

7.1 For business (non-consumer) Customers, return of Products will not be accepted unless: (i) HydPower Hydraulics has received a substantiated written claim within 14 days from the date of delivery; (ii) prior authorisation has been given by HydPower Hydraulics; (iii) on return, the Products are accompanied by documentation stating the invoice number, the Customer name and address, and the reasons for return; and (iv) the Products are faulty by reason of defective materials or manufacturing process.

7.2 For business (non-consumer) Customers, HydPower Hydraulics accepts no liability: (i) for defects caused by the Customer’s installation of the Products; (ii) where the Products have been modified or repaired; (iii) where the Products have not been used, stored or maintained as recommended; or (iv) where the Customer has failed to observe the terms of payment or any other obligation under these Conditions.

7.3 This Clause 7 does not apply to consumer Customers, whose claims are governed by the ACL and our published Returns and Refund Policies.

8. Payment

8.1 Payment must be made by the due date stipulated in HydPower Hydraulics’ invoice, in cash or any other form acceptable to HydPower Hydraulics, without any deduction, withholding, set-off or counterclaim.

8.2 Unless otherwise expressly appropriated by HydPower Hydraulics, payments will be deemed to discharge the Customer’s oldest debt and will first reduce any costs or interest outstanding before reducing the principal debt.

8.3 If payment is not made by the due date, HydPower Hydraulics may, in addition to any other available remedy, charge interest on all overdue payments at the rate prescribed from time to time under the Penalty Interest Rates Act 1983 (Vic), from the due date until payment in full.

8.4 HydPower Hydraulics will be reimbursed for all reasonable debt-recovery costs in addition to the principal amount and interest.

9. Delay

9.1 HydPower Hydraulics’ responsibility for delivery ceases at the pre-agreed point of delivery.

9.2 Any period or date for delivery stated by HydPower Hydraulics is an estimate only and not a contractual commitment. HydPower Hydraulics will use its best endeavours to meet estimated delivery dates but, to the extent permitted by law and subject to the ACL, will not be liable for any loss or damage arising from failure to meet an estimated delivery date.

9.3 The Customer will take any action necessary on its part for timely delivery. HydPower Hydraulics will not be liable for loss or damage resulting from the Customer failing to provide necessary access and personnel to accept the Products at the agreed delivery point.

9.4 Any failure by HydPower Hydraulics to deliver within the stated time will not entitle the Customer to repudiate the Contract in whole or in part, subject to the Customer’s rights under the ACL.

10. Copyright and Confidentiality

HydPower Hydraulics retains all copyright and other proprietary rights in its confidential information and material, including documents, drawings, certifications and instructions provided to the Customer. The Customer must not use that information or material for any purpose other than that for which it was provided, and must not disclose, transfer or otherwise make it available to any third party in any form.

11. Consents

The Customer must obtain any governmental or other consents necessary to use or deal with the Products and must provide written confirmation to HydPower Hydraulics. HydPower Hydraulics is not obliged to perform any part of the Contract until the Customer has obtained all necessary authorisations and provided particulars of them.

12. Insolvency and Default

12.1 HydPower Hydraulics may, by written notice to the Customer, suspend or terminate any unperformed contract immediately if: (i) the Customer breaches the Contract or any other contract with HydPower Hydraulics; (ii) the Customer compounds with or negotiates any composition with its creditors generally; (iii) being an individual, the Customer dies, becomes permanently incapacitated, has a trustee appointed, has a receiving order made, or commits any act of insolvency; (iv) being a body corporate, the Customer calls a meeting of creditors, has a liquidator, provisional liquidator, administrator, receiver or similar appointed, or enters liquidation (other than solely for solvent reconstruction or amalgamation); or (v) some fact or circumstance leads HydPower Hydraulics to believe on reasonable grounds that the Customer is likely to materially fail to complete its obligations.

12.2 On such suspension or termination: (i) the Customer will, on demand, deliver to HydPower Hydraulics any Products in the Customer’s possession or control in which property remains with HydPower Hydraulics, failing which HydPower Hydraulics may repossess them under Clause 6; (ii) HydPower Hydraulics may, by written notice, declare immediately due and payable any amounts outstanding under this or any other agreement; (iii) HydPower Hydraulics may require cash in advance of further delivery and payment for Products already delivered, work in progress and tooling costs at the contract rate or, if none, a reasonable rate; and (iv) HydPower Hydraulics may claim damages for breach of contract.

12.3 This clause does not limit any other remedy available to HydPower Hydraulics, including compensation for any loss or damage suffered.

13. Arbitration

13.1 Any dispute or difference arising in connection with this Contract must be submitted to arbitration in accordance with the Resolution Institute (formerly the Institute of Arbitrators & Mediators Australia) Rules for the Conduct of Commercial Arbitrations.

13.2 Before resorting to arbitration or any court, HydPower Hydraulics and the Customer will each make a genuine effort to resolve any dispute by a face-to-face meeting between senior management, convened by HydPower Hydraulics at a convenient time and place. Failure to make such a genuine effort is agreed to justify a court awarding costs against the party at fault. Nothing in this clause prevents a consumer Customer from exercising rights under the ACL or accessing Consumer Affairs Victoria or any tribunal.

14. Representations

The Customer acknowledges that, other than as expressly set out in the Contract, neither HydPower Hydraulics nor any person acting on its behalf has made any representation, promise or undertaking on which the Customer has relied. This clause does not exclude liability for misleading or deceptive conduct under the ACL.

15. Agent’s Warranty

Any person contracting or purchasing Products on behalf of the Customer warrants that he or she has the authority to bind the Customer to the Contract.

16. Limitation and Exclusion

16.1 This clause is subject to the consumer-rights clause at the start of these Conditions and does not exclude, restrict or modify any consumer guarantee or remedy that cannot lawfully be excluded under the ACL.

16.2 Except as set out in these Conditions, any product warranty issued by HydPower Hydraulics, or as required by law, any term, representation, condition or warranty as to the quality, condition or description of the Products — whether implied by statute, common law, trade usage or custom — is excluded to the extent permitted by law.

16.3 Nothing in these Conditions is to be interpreted as excluding or restricting any liability of HydPower Hydraulics under the Competition and Consumer Act 2010 (Cth), the Australian Consumer Law, or any similar State or Territory legislation that cannot lawfully be excluded.

16.4 Where the Products are not of a kind ordinarily acquired for personal, domestic or household use, and to the extent permitted by law, HydPower Hydraulics’ liability for a breach of a non-excludable guarantee is limited, at HydPower Hydraulics’ option, to: (i) replacement of the Products or supply of equivalent Products; (ii) repair of the Products; (iii) payment of the cost of replacing the Products or acquiring equivalent Products; or (iv) payment of the cost of having the Products repaired.

16.5 Any Products or parts replaced will be supplied on the same conditions and with the same warranty (commencing on the date of delivery of the repaired or replaced Product) as the original Product.

17. Waiver

Any failure by HydPower Hydraulics to insist on strict compliance with the Contract, or any delay by HydPower Hydraulics in exercising its remedies under the Contract, will not constitute a variation or waiver of any provision of the Contract or of any remedy available to HydPower Hydraulics.

18. Applicable Law

These Conditions of Sale are governed by and construed in accordance with the laws of Victoria, Australia, and the Customer submits to the non-exclusive jurisdiction of the courts of that State and the Commonwealth of Australia.

19. Contact