1 Placing an Order
(a) We agree to provide you with the Goods and/or Services specified in the accepted Order to which this Contract applies.
(b) This Contract cannot be varied without the written agreement of the parties.
1.2 Estimates and quotations
(a) The prices set out in the Order, unless stated otherwise:
(i) in respect of Services, are estimates only and we will invoice you based on the actual work performed;
(ii) in respect of Goods, are the Fees listed for the applicable Goods.
(b) If the prices for Goods are specified as being an estimate, we will only charge you the retail cost for the applicable Goods.
(c) By placing the Order based on an estimate, you agree to pay the Fees in your invoice for the actual work done or Goods provided, provided that the Fees do not unreasonably exceed the estimate (including any updated estimate agreed by you).
1.3 Cancellations of and changes to the Order
(a) This clause is subject to any rights you have under any applicable law.
(b) If you wish to cancel or make changes to your Order, please contact us and we will use best efforts to cancel or change your Order.
(c) If you cancel or change your Order, we may require you to pay any reasonable costs we have incurred or irrevocably committed in respect of:
(i) any part of your Order (including any components, goods or materials forming part of your Order) that we have sourced especially for your Order and will provide you with any Goods on payment of the applicable costs; and
(ii) the cost of any labour, parts and/or tooling expended on your Order.
1.4 Special Conditions
Each party will comply with the Special Conditions (if any) in relation to the delivery and receipt of Goods and Services.
2.1 Order
(a) We will supply the Goods and Services to you as set out in the Order.
(b) The Goods will comply with the specification or description in the Order.
(c) The Services will:
(i) comply with the specification or description in the Order; and
(ii) be performed safely, skilfully, diligently, on time and according to the agreed timetable, and by fully qualified, competent and suitable people.
2.2 Goods
(a) From time to time, we may need to provide you with Goods that are different to the goods listed on your Order because the quoted product in your Order:
(i) is out of stock, discontinued or is subject to a recall;
(ii) has been updated or changed by the manufacturer; or
(iii) is not appropriate for the application.
(b) Provided that the replacement is not materially different in terms of function, suitability and price, we will substitute the product without requiring your prior approval.
(c) If the proposed substitution is materially different to the product in your Order, we will only proceed with your approval.
2.3 Ownership and Risk
(a) Ownership of Goods remains with us until we receive payment in full of all amounts due and payable for those Goods. Where payments are made in instalments, or Goods are provided on credit, ownership of the Goods remains with us until all amounts owing have been paid.
(b) We carry the risk of damage to or loss of the Goods while they are in our physical possession. From the moment that we deliver the Goods to you, or hand them to a carrier that you nominate, the risk of damage to or loss of the Goods passes to you.
(c) If risk in the Goods passes to you before we have been paid in full for those Goods, then you must insure the Goods against all insurable risks until ownership passes to you.
2.4 Services
(a) You acknowledge and agree that we may test the Goods or Equipment as part of providing you with the Services.
(b) Where the Services involve installation of Goods or repair of your Equipment, you acknowledge that we may need to:
(i) undertake some preliminary works on your Equipment to identify issues and confirm the scope of the work to be undertaken; or
(ii) provide the Services in stages,
and we will provide you with an estimate pursuant to clause 1.2.
(c) You acknowledge and agree that:
(i) undertake some preliminary works on your Equipment to identify issues and confirm the scope of the work to be undertaken; or
(i) you must pay the Fees for Services rendered, even if you do not proceed with any further work;
(ii) any issues or faults that we did not agree to repair as part of the Services will not be repaired unless we agree as part of a variation to your Order (which may be subject to further Fees);
(iii) to the fullest extent permitted by law, we do not provide any warranties in respect of the Services, and specifically do not warrant that we will repair any issues with your Equipment; and
(iv) except as set out in the Order or as otherwise agreed in writing, we are not responsible for (or responsible for any associated costs of) reassembling your Equipment if you do not proceed with the Services.
(d) If you request for us to reassemble (but not repair) your Equipment, you agree to pay our reasonable costs of reassembly.
2.5 Subcontractors
We might need to subcontract some or all of the Services that we perform for you. You acknowledge and agree that we can subcontract the performance of Services in our absolute discretion, including to other HA Group Entities. We will be responsible for Services that we subcontract unless you otherwise agree in writing.
3.1 Equipment
(a) If you leave your Equipment in our possession, you do so at your own risk. We are not liable for any loss of or damage to your property while it is in our possession (for example, while we are performing Services involving that property), except to the extent that the loss or damage is caused or contributed to by our negligent act or omission.
(b) You must make sure that any property that you deliver to us has been made safe and is in a suitable condition for delivery of the Goods and/or Services that we are providing. You must ensure that there are no loose items in any Equipment that you deliver which may cause damage or injury (including, in respect of vehicles, when raising or lowering the cabin).
(c) The Services may result in the loss of data or settings on your Equipment. You are responsible for ensuring that you have made a copy of any data or settings before providing us with your Equipment.
(d) You acknowledge and agree that, to the extent that you do not comply with this clause:
(i) we are not liable for any damage to the Equipment; and
(ii) you indemnify us for any loss, damage or injury that we suffer as a result.
4.1 Fees
(a) You agree to pay us the Fees for the Order as set out in a validly issued invoice.
(b) Except as otherwise stated, the prices listed an Order for Goods or Services exclude delivery, storage or transportation costs.
4.2 Taxes and Duties
(a) Unless otherwise specified, all amounts in the Order include GST.
(b) Where GST is payable for a taxable supply by a party under this Contract, the recipient of the taxable supply must pay the GST, subject to the supplier providing a tax invoice.
(c) In this clause:
(i) terms which are defined in the GST Act have the same meaning as in the GST Act; and
(ii) GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
4.3 Payment Terms
(a) Unless otherwise agreed, you must pay the Fees for the Order before collection or dispatch of the Goods and before we provide you with the Services.
(b) If you dispute an invoice in accordance with this Contract, you can withhold payment of the disputed portion of the invoice until the dispute is resolved between the parties, but must still pay the undisputed portion in full.
(c) If:
(i) we have not received payment (in whole or in part) for Goods or Services provided under this Contract; or
(ii) any HA Group Entity has not received payment (in whole or in part) for Goods or Services provided under any other contract entered into under the Agreement,
in cleared funds by the date set out in the applicable invoice, then we may, by providing notice to you:
(iii) require that all unpaid amounts under this Contract be made on the payment terms set out in clause 4.3(a);
(iv) charge you interest on all overdue amounts under this Contract at the rate of one percent (1%) per month, calculated daily and any payments that we receive from you will be applied against any accrued interest charges first;
(v) suspend or cancel any further deliveries of Goods and/or Services under this Contract; and
(vi) preclude you from participating in any special deals, discounts, bonus payments, redemptions, rebates or other incentive programs until all overdue Fees have been paid.
4.4 Credit cards
(a) We may, in our absolute discretion, accept or reject payment by credit card. If we accept a payment by credit card then we can charge you an amount equal to the amount that it costs us to accept payment using that payment type. We do not accept American Express.
5.1 Supply
(a) You acknowledge and agree that we have no obligation to provide you with credit and we will only supply you with Goods and Services on credit on the condition that you:
i) agree to any credit terms and conditions notified to you;
(ii) provide additional information in order to enable us to assess your suitability, and the amount of credit that we are willing to provide;
(iii) warrant that any Goods or Services you order on credit are not intended to be used wholly or primarily for personal, family or household purposes; and
(iv) have not exceeded any applicable credit limit in your dealings with all HA Group Entities.
(b) If we do supply you with Goods or Services on credit, then the following special payment terms apply:
(i) Services – payment is due 30 days net from invoice date;
(ii) spare parts – payment is due 30 days net from invoice date;
(iii) principal product sales:
(A) orders less than AUD$60,000 (excluding GST) - payment is due 30 days net from invoice date.
(B) orders of AUD$60,000 (excluding GST) or more - a 40% deposit must be paid upon order, and payment of the balance is due 30 days net from statement date.
5.2 General Security
(a) This clause 5.2 applies where we agree to provide you with Goods on credit.
(b) You grant us a Security Interest (as defined in the PPSA) in all of your present and after acquired property, and in your present and future rights in relation to any personal property as defined in the Personal Property Securities Act 2009.
(c) If you leave property in our possession then:
(i) you grant us a lien over that property to secure any unpaid amounts that you might owe us from time to time while the property is in our possession;
(ii) if you refuse to pay any amount due to us then we can sell or otherwise dispose of the property that you have left in our possession, subject to any applicable law. You authorise us to apply the proceeds of sale against the amounts that you owe to us, as well as to any costs of storage, transport, auction or sale;
(iii) you acknowledge and agree that, to the extent permitted by law, the repairer’s lien that we hold takes precedence and priority over any other security interest in the property.
(d) Unless we consent in writing, you agree not to sell or otherwise dispose of Goods that we have not received payment for if any of the following things happen:
(i) a receiver or administrator is appointed over any of your assets;
(ii) a winding up order is made against you;
(iii) you go into voluntary liquidation; or
(iv) a bankruptcy order is made against you, or you commit an act of bankruptcy (if you are an individual).
5.3 PPSA
(a) This part of this Contract talks about specific rights and obligations connected to the Personal Properties Securities Act 2009. Capitalised words in this part of this Contract have the meaning set out in the ‘PPSA’.
(b) To the maximum extent permitted by law, until ownership of Goods passes to you, you agree that:
(i) you hold the Goods, and that have not been re-sold, as a bailee for us;
(ii) you can resell Goods, but you cannot bind us to any liability to any third party (contractual or otherwise). We can revoke our authority to sell the Goods at any time, acting reasonably;
(iii) you can only resell the Goods if you make the purchaser aware of our rights under clause 5 of this Contract;
(iv) if you sell the Goods, then you do so as agent for us and hold the proceeds of sale on trust for us (but only to the extent of any unpaid amounts that you owe us); and
(v) if the purchaser doesn’t pay you for the Goods, then you must assign your claim against the purchaser to us upon demand (but this will not affect your obligations to pay us or to observe your obligations under this Contract). You irrevocably appoint us as your attorney for the purpose of giving effect to this clause.
(c) This clause creates a Purchase Money Security Interest in the Goods, any product that the Goods are used as a component in, and all proceeds of their respective sale, to secure your performance under this Contract.
(d) You acknowledge and agree that you grant us a Security Interest in all Goods that we supply to you, now or in the future, and the proceeds from the sale of those Goods.
(e) You agree that, pursuant to sections 115(1) and 115(7) of the PPSA, sections 95, 96, 117, 118, 121(4), 125, 127, 129, 130, 132(3)(d), 132(4), 135, 136(3), 136(4), 136(5), 137, 142 and 143 of the PPSA will not apply to this Contract (to the extent permitted by law).
(f) For the purposes of section 14(6) of the PPSA, you agree that we will apply any payments that we receive from you under or in connection with a transaction under this Contract in any order that we decide.
(g) You agree to sign all documents and take any steps that we reasonably require to effect Registration of our Financing Statement or Financing Change Statement, or Perfection or enforcement of this Purchase Money Security Interest. We can register the Security Interest created under this Contract with any relevant authority or public register, and we are not obliged to give any notice or documents under the PPSA unless the relevant obligation cannot be excluded. You agree to waive your right to be provided with verification statements pursuant to section 157 of the PPSA.
(h) You agree to give us at least 14 days written notice of any proposed change to your name or other details, including but not limited to your address, telephone number, fax number, email address or trading name.
(i) You agree that each other provision of Part 4.3 of the PPSA shall not apply to the extent contemplated by sections 115(7) and 116(2), but only to the extent that the provision imposes obligations on us.
6.1 Australian Consumer Law
(a) This clause 6.1 only applies if you are a consumer within the meaning of the Australian Consumer Law.
(b) Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
(i) to cancel your service contract with us; and
(ii) to a refund for the unused portion, or to compensation for its reduced value.
(c) You are also entitled to choose a refund or replacement for major failures with goods.
(d) If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion.
(e) You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
6.2 Warranty - Goods
(a) Some Goods may come with a warranty specified by the manufacturer or distributor of those Goods (Manufacturer Warranty) and we will use reasonable endeavours to provide you with the benefit of any applicable Manufacturer Warranty.
(b) To make a claim for Goods covered under a Manufacturer Warranty, you must comply with the terms and conditions specified by the manufacturer.
(c) If we agree to process a claim under Manufacturer Warranty on your behalf, you must:
(i) ensure that the applicable Goods are appropriately preserved to avoid further damage; and
(ii) made the applicable Goods available for inspection, which may be at your cost.
(d) The benefits under any applicable Manufacturer Warranty are in addition to any rights you may have under the Australian Consumer Law and under any other applicable law that cannot be excluded.
(e) Unless otherwise agreed by us and subject to any Non-Excludable Terms, we do not provide any other warranty in respect of Goods.
6.3 Warranty - Services
(a) The benefits under this warranty are in addition to any rights you may have under the Australian Consumer Law and under any other applicable law that cannot be excluded.
(b) Subject to the full and final payment for the Services, we agree to provide the following warranties (HA Warranty) for any issues identified within the period set out below:
(i) For Services that only involve supplying labour directly related to the supply of Goods (for example, supplying labour to install a part), we warrant those Services will be free from defects for the duration of the Manufacturer Warranty on the Goods or six (6) months from the date that the Services are completed, whichever is longer.
(ii) For Services involving the supply of labour, we warrant that those Services will be free from defects for a period of six (6) months from the date that the Services are completed.
(c) Unless otherwise agreed by us and subject to any Non-Excludable Terms, we do not provide any warranty in respect of any other Services.
(d) To make a claim under the HA Warranty, you must
(i) provide us with written notice of the claim within 15 days of the issue appearing; and
(ii) deliver any components, parts or other material relevant to the issue to an address that we specify to allow us to assess the issue.
(e) We will assess the issue and if we are satisfied, acting reasonably, that the Services that we supplied were defective, we will (at our option):
(i) fix any defects to the extent that the defect arose from the Services provided;
(ii) refund the Fees paid for the defective Services.
(f) Under this warranty, a defect does not include:
(i) pre-existing issues or defects with your Equipment which we were not required to repair as part of the Services;
(ii) normal wear and tear of components or parts; and
(iii) issues resulting from a failure to maintain Goods or Equipment in accordance with the manufacturer's instructions.
6.4 Refund policy
(a) Except as required by any applicable law, we are not required to provide a refund or replacement for Goods if you change your mind.
(b) At our complete discretion, we may choose to accept the return of Goods for credit or exchange as agreed by us in advance in writing. We will not accept return of Goods for change of mind where the Goods have been specially sourced or are customised for you.
(c) If we do choose to accept Goods returned for change of mind, then you agree to pay a reasonable handling and administration charge of up to 20% of the Fees paid for the returned Goods (excluding any delivery and handling charges).
(d) Freight and other costs of returning Goods for change of mind are your responsibility.
(e) You must include the invoice number that the Goods were supplied under with any Goods returned.
7.1 Non-Excludable Terms
Despite anything else in this Contract, we acknowledge that some laws may, including the Australian Consumer Law, imply particular non-excludable guarantees, warranties and conditions into particular agreements for the supply of goods and services, which cannot be excluded, restricted or modified (Non-Excludable Terms). It is agreed by the parties that:
(a) we do not exclude, restrict or modify any of the Non-Excludable Terms;
(b) nothing in this clause or this Contract is intended to exclude, or is to be interpreted as excluding, any Non-Excludable Term that cannot lawfully be excluded or disclaimed by us; and
(c) nothing in this Contract limits any remedies which may be available to you at law and which cannot lawfully be excluded by us, including in respect of any breach of a Non-Excludable Term which may be applicable.
7.2 Limitation of Liability
(a) Notwithstanding anything else to the contrary in this Contract, to the extent we are unable to fully exclude our liability pursuant to an applicable law, and to the extent that we are entitled to do so, our liability to you for a breach of any of the Non-Excludable Terms is limited to any one of the following, at our option:
(i) in the case of goods - replacement or a refund for the goods; and
(ii) in the case of services - supply of the services again, or payment of the cost of having the services supplied again.
(b) To the fullest extent permitted by law, our total liability for any claim by you in respect of the Order (or any Goods or Services purchased under the Order) is limited to the Fees paid in respect of the relevant Good or Service.
(c) Except to the extent permitted by law, we are not liable for any indirect, special or consequential loss or damage, including but not limited to loss of goodwill, loss of profit, loss of revenue, loss of expected savings, opportunity costs, loss of business, loss of reputation and business interruption), whether arising in contract, tort (including negligence), under any statute or for any other reason whatsoever.
(a) If either party is or will be prevented from performing any of its obligations under this Contract due to a Force Majeure Event, then that party is excused from performing the affected obligations (except in respect of payment of Fees) for as long as the circumstance giving rise to Force Majeure Event persists provided that the party affected by Force Majeure Event:
(i) notifies the other party as soon as possible and in any event within 10 days of the Force Majeure Event occurring; and
(ii) uses best endeavours to minimise the effects of the Force Majeure Event to the extent commercially reasonable.
(b) A party cannot make a claim for loss, damage, costs or expenses suffered to the extent that the claim relates to the Force Majeure Event.
(c) For the purpose of this clause Force Majeure Event means any occurrence or non-occurrence that directly or indirectly results in a party being delayed in performing its obligations (other than obligations to pay money) under this Contract that is beyond the reasonable control of that party, and which could not have been foreseen and mitigated by a party acting reasonably.
(a) We can terminate this Contract by giving prior notice to you in writing if:
(i) you don’t comply with a material obligation under this Contract;
(ii) you breach this Contract and fail to remedy that breach within 14 days of receiving notice of the breach;
(iii) any other contract you have entered into under the Agreement has been terminated for cause by a HA Group Entity;
(iv) being a natural person, you commit any act of bankruptcy; or
(v) being a corporation, you pass a resolution for winding up or liquidation (other than for the purposes of solvent reorganisation or reconstruction) or administration, or enter into any composition or arrangement with creditors, or if a receiver or manager or administrator or controller is appointed for any of your property or assets, or you become liable to be wound up by reason of insolvency, or if any petition is presented for your winding up, or if a liquidator or provisional liquidator or administrator is appointed.
(b) In the event of termination we may, in addition to exercising all or any of our rights, suspend any further deliveries and immediately recover possession of any Goods not paid for in accordance with this Contract.
(c) You can terminate this Contract by giving prior notice to us in writing if:
(i) we breach any this Contract and fail to remedy that breach within 14 days of receiving notice of the breach; or
(ii) any other contract you have entered into under the Agreement has been terminated for cause by you.
10.1 Definitions
In this Contract, capitalised have the meaning given to them in clause 4.2 of the Agreement, and:
(a) Australian Consumer Law means the Australia Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
(b) Diagnostic Services has the meaning given to that term in clause 2.4.
(c) Fees means the fees for Goods and Services as set out in the Order or, where the Order includes an estimate, the price set out in the applicable invoice for that Order.
(d) Force Majeure Event has the meaning given to that term in clause 8(c).
(e) HA Warranty has the meaning given to that term in clause 6.3.
(f) Non-Excludable Terms has the meaning given to that term in clause 7.1.
10.2 Interpretation
This Contract is to be interpreted in accordance with clause 4.3 of the Agreement.
10.3 Waiver
(a) A party may not rely on the words or conduct (including a delay in the exercise, a non exercise or a partial exercise of a right) of any other party as a waiver of any right arising under or in connection with this Contract (including a right to rely on this clause) unless the waiver is in writing and signed by the party granting the waiver.
(b) A waiver is only effective in relation to the particular obligation or breach in respect of which it is given and is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.
10.4 Severance
If a provision in this Contract is wholly or partly void, illegal or unenforceable in any relevant jurisdiction, that provision or part must, to that extent, be treated as deleted from this Contract for the purposes of that jurisdiction. This does not affect the validity or enforceability of the remainder of the provision or any other provision of this Contract.
10.5 Notices
(a) Any notice under this Contract must be in writing in English and must be sent by regular post or sent by email to a party at the address set out in the Order or otherwise notified to the other party from time to time.
(b) A notice takes effect when received (or such later time as specified in it), and is taken to be received:
(i) if sent from and to a place within Australia by regular post, at 9:00 am on the sixth business day after the date of posting; or
(ii) if sent by email, when the email (including any attachment) is sent to the receiving party at the nominated email address, unless the sending party receives a notification of delivery failure within 24 hours of the email being sent.
10.6 No Representations
Other than in respect of an express statement provided to you by us, including as set out in this Contract, you acknowledge and agree that you have not relied on any other inducement, representation or statement made by or on behalf of us in making your decision to purchase Goods or Services.
10.7 Statement of Debt
You agree that a certificate signed by a Director, Secretary, Financial Controller or Credit Manager of our company is prima facie evidence of the amount that you owe us.
10.8 Dispute Resolution
(a) You agree to deal with any dispute or disagreement arising under this Contract as set out in this clause. Nothing in this clause prevents a party from seeking urgent or interlocutory relief.
(b) A party claiming that there is a dispute may give the other party a notice setting out the nature of the dispute (Dispute Notice).
(c) If the dispute is regarding an invoice or account issued by us, you must:
(i) set out in the Dispute Notice the amounts you intend to withhold for the relevant part of the invoice or account;
(ii) provide us with the Dispute Notice promptly after receipt of the invoice or account and no later than 10 days after the date of the invoice or account;
(d) Within 14 days of the Dispute Notice (or such other period we agree in writing) each party will nominate a representative and the representatives will meet to discuss the issues raised in the Dispute Notice and the representatives will try to settle the dispute by direct negotiation.
(e) If the dispute has not been resolved within 30 days of the Dispute Notice (or such other period as we agree in writing), a parties may commence legal proceedings or the parties may otherwise agree on some other means of resolving the dispute.