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1. Application and Acceptance.
(a) These terms and conditions govern the rights and obligations of the Hydroflux Group of companies [Hydroflux Pty Ltd, Hydroflux Epco Pty Ltd, Hydroflux Industrial Pty Ltd and Hydroflux Technology Pty Ltd ] “the Seller” and the purchaser and apply to all contracts and other agreements for the supply of goods or services entered into by the seller unless otherwise agreed in writing by the seller.
(b) The Acceptance of the seller’s quotation and/or supply of goods or services includes the acceptance of the following terms and conditions. In the event of a purchaser’s official order form, contract and/or attachments containing special conditions, it is understood that such conditions are only binding in so far as they are not at variance with the seller’s terms and conditions.
c) These terms and conditions may only be varied with the seller’s written consent and these terms and conditions shall form part of the contract unless agreed in writing by the seller.
d) Any purchase order made by a purchaser whether pursuant to a quotation or tender or otherwise shall not be binding on the seller until accepted by the seller in writing and a quotation or tender may at any time, prior to acceptance by the seller of a purchase order, be varied or cancelled by the seller.
2. Price and Validity
(a) The prices quoted by the seller for the goods do not include GST and if applicable shall be additional to the quoted price. For the purposes of these terms and conditions “GST”means GST within the meaning of a New Tax System (Goods and Services Tax) Act 1999.
(b) Any increase in the cost of the goods and/or services as a result of an increase n any of the costs associated with manufacture, delivery and/or supply of the goods and/or services caused by any act beyond the control of the seller, including without limitation increases due to variations in exchange rates, the cost of materials or labour and the cost of conforming with any relevant legislation, orders, regulations of by-laws between the date of quotation or tender and the date of delivery/installation of the goods and/or supply of the services shall be borne by the purchaser.
(c) All quotations are valid for 30 days from the date of issue unless specifically agreed in writing by the seller (subject to clause 1.d).
(a) Unless otherwise agreed in writing, deposit payments are due immediately upon presentation of the sellers invoice and progress and final payments are due nett 14 days from the date of invoice. Credit is subject to the completion by the purchaser of the seller’s credit application form and its subsequent approval in writing by the seller.
(b) The purchaser shall pay interest to the seller on the moneys outstanding from the date 30 days after the date of invoice calculated at monthly rests at the rate of the current commercial overdraft rate determined by the ANZ Bank plus 3%.
property in the goods shall not pass to the purchaser until the contract price including any variations or retentions, has been paid in full.
(d) So long as the property title to the goods has not passed in accordance with clause 3c. to the purchaser, the seller (and its duly authorised agents) shall be entitled to access during business hours to the premises of the purchaser for purpose of repossessing the goods.
(a) The seller shall make all reasonable efforts to meet any date for delivery of the goods and/or supply of services agreed by the purchaser. Where a delay in delivery or supply is caused by any act, matter or thing beyond the control of the seller, the time for delivery or supply shall be extended by a reasonable period.
(b) The seller may deliver the goods and/or supply the services prior the date for delivery of the goods agreed between the seller and purchaser.
The seller shall not be liable for any loss, damage, or delay (consequential or otherwise, direct or otherwise) of any kind whatsoever caused directly or indirectly by the inability of seller to perform its obligations under the contract, whether in respect of delivery or otherwise where such failure is a result of any act or omission of the seller, its employees, contractors or agents, or of any cause beyond the reasonable control of the seller including, inability to obtain to materials or transport, writ, epidemic, fire, flood, hostilities, strikes, war, accident, act of God, any statute rule regulation order act or omission of any government or department thereof or any local or municipal authority, any judgment or order threatened, likely or actual in favour of any person claiming any rights in respect of the goods and services or in any other case.
The goods in the seller’s offer or of the seller’s supply are normally guaranteed by the manufacturer, under these circumstances our guarantee liability does not extend beyond that of the manufacturer. Goods manufactured by the seller are guaranteed for a period of 12 calendar months from the date of supply or being ready for supply where supply is delayed by the purchaser. Goods returned against any guarantee claim are to be forwarded carriage paid to our premises. Alternatively the Company may at its discretion repair or replace these goods at the installed location and charge the purchaser for travel time and costs but shall not be liable for any charges, costs or expenses incurred by the purchaser. Where repair or replacement is made at site, then access to, cleaning of any removal will be at the cost and responsibility of the purchaser. At the seller’s discretion the seller will replace or repair any item found to be defective in a reasonable time period and this shall be the full extent of the seller’s liability. Incorrect installation, abuse, misuse, neglect, non-genuine parts and any unauthorized repairs and/or where the purchaser is in default in the observance or performance of any other provisions of the contract shall cancel this guarantee.
7. Drawings, Documentation, Software and Programs
(a) The purchaser agrees that all designs, drawing, plans, specifications, illustrations, instructions, documentation, software, programs and the like which are provided to the purchaser by the seller, are the sole property of seller and shall not be produced or copied or used or disclosed to third parties as the basis for manufacture or sale or duplication of items without the written consent of the seller.
(b) Software used for programming or otherwise of control systems are the property of the seller and are not included in the contract or supply.
8. Risk and Delivery
The goods shall be at the risk of the purchaser, regardless of the ownership (see clause 3.c) upon transfer of control of the goods into the possession of the purchaser or the carrier to the seller’s or manufacturers premises (whichever shall be the earlier occurrence) and whether the carrier has been engaged by the seller or the purchaser. If after notification that the goods are ready for delivery, delivery is delayed by the purchaser, the seller shall be entitled to arrange suitable storage at its premises or elsewhere and risk in the goods shall pass immediately to the purchaser. The purchaser will be liable for all costs of storage, handling and other charges associated with such storage.
9. Access to the Site
(a) The purchaser shall permit the seller any access to the site as the seller requires to complete the seller’s work under the contract and shall take all reasonable measures to avoid interference with the work of the seller.
(b) The purchaser shall provide at no cost to the seller electricity, water, crib rooms, site accommodation, amenities etc. necessary for the installation, testing and commissioning of the plant.
10. Taking Over
(a) The plant shall be deemed to have been taken over by the purchaser when, except for minor omissions and/or defects, installation has been completed or when the plant has been put into commercial use, whichever is the earlier.
(b) Regardless, the plant shall be deemed to have been taken over 1 calendar month after the seller has given the purchaser written notice that installation and/or erection is complete.
(c) For the time of completion of the installation except for minor omissions and/or defects, regardless as to whether the plant has yet achieved any performance requirements of the contract the purchaser shall provide trained operators to operate and maintain the plant at the purchasers cost.
(a) The seller does not guarantee any performance limits stated in the quotation or tender unless such limits are expressly guaranteed by the seller separately in writing and regardless any estimates of power, labour, maintenance, chemical usage, sludge quantities, discharge and disposal costs are not guaranteed.
(b) Regardless the seller’s liability shall always be limited to 5 per cent of the sale value of equipment only as stated in any quotation or as determined by the seller.
(a) Orders cannot be terminated except with the seller’s written consent, which may be withheld without reason or granted subject to such condition as the seller at its sole discretion may stipulate. Deposit payments are non-refundable.
(b) The seller may at its sole discretion terminate the of a term of the contract and fails to remedy the breach within 14 days of notice in writing by the seller specifying the breach and requesting the purchaser to remedy it and/or the purchaser is declared bankrupt, resolves to go into liquidation or has a petition for its bankruptcy or winding up presented or enters into a scheme of arrangement with its creditors or if any liquidator, receiver or official manager is appointed.
(c) Termination will be on terms which will reimburse the seller for any costs or loss (including but not limited to loss of profit, legal costs (on a full indemnity basis)) incurred.
Any waiver by the seller of strict compliance with these terms and conditions shall not be deemed a waiver unless it is in writing and signed by an authorised officer of the seller.
14. Law and Dispute Resolution
(a) The contract shall be governed by the law of NSW and the parties agreed to submit to the jurisdiction of the courts of NSW and in any Courts having appellate jurisdiction from them.
(b) Any dispute between the purchaser and the seller arising out of or in any way connected with contract which is not resolved by the purchaser and the seller within 21 days of a notice by either party to the other advising that it is a notice pursuant to this clause, shall be referred for decision to the person agreed between the seller and the purchaser or, failing agreement within 45 days, to the President of the Institute of Engineers Australia or their nominee and such arbitration shall be conducted in accordance with the Rules for the Conduct of Commercial Arbitrations of the Institute of Arbitrators Australia.