These terms and conditions of sale, as amended from time to time by the Seller, apply to all sales of Product(s) by the Seller to the Customer.
Quotations and orders
Any quotation given by the Seller to the Customer is not an offer or obligation to sell but an invitation to treat only. The Seller reserves the right to accept or reject any order it receives.
Until the Seller accepts in writing an order submitted by the Customer, the Seller is not obliged to supply the Product so ordered to the Customer. The Seller reserves the right to refuse any order based on a quotation within 7 days after receiving the order.
If the Customer defaults under these terms and conditions, the Seller may cancel, suspend or vary the terms and conditions of any incomplete order that has been accepted by the Seller without notice to the Customer and without being liable to the Customer.
The Seller is not responsible to the Customer for a breach of its obligation to supply the Product pursuant to an order the Seller has accepted, or for any delay in delivery, if the failure to supply or the delay in delivery, is caused by matters beyond the reasonable control of the Seller (including, without limitation, acts of God, acts of government, war or other hostility, national or international disaster, fire, explosion, power failure, equipment failure, strike or lockout, inability to obtain necessary supplies and any other force majeure occurrence).
Under no circumstances is the Seller liable for any consequential loss or damage resulting from any breach of contract or warranty, including breach of an essential term, and the Seller's liability is limited to the order price of the Product or such amount of the order price as has been paid as at the date of the alleged breach (subject to clause 9).
Prices
Prices quoted in any order apply to that order only and do not apply in any other circumstances.
All prices include the Goods and Services Tax (GST).
Payment
All invoices for wholesale goods are payable 7 days from the date of invoice or by negotiated terms.
Time is of the essence for all the Customer's obligations.
The Seller reserves the right to charge interest to the Customer on overdue accounts at the interest rate of 10% per annum.
The Customer agrees to pay the Seller any expenses (including legal costs) incurred in collecting any outstanding debts due by the Customer to the Seller.
Risk in the Product
The risk of loss or damage to the Product passes to the Customer on the date and at the time that the Product is removed from storage for the purpose of delivery to the Customer.
Delivery
Any delivery times notified to the Customer are estimates only and the Seller is not responsible for late or non-delivery.
If the Customer requests the Seller to postpone delivery of the Product beyond the delivery date or dates specified in the order, the Seller may agree to do so if the Customer pays an additional fee for such postponement and for storage charges.
All HydraPlay Products are supplied on a delivery only basis & compulsory postage and handling charges apply
Postage & handling charges apply 'per item' therefore multiple orders made in the same transaction will incur multiple postage & handling charges.
Retention of title
It is expressly agreed and declared that the Product delivered by the Seller to the Customer remains the sole and absolute property of the Seller as legal and equitable owner until all money due to the Seller has been paid to the Seller, but such Product will be at the Customer's risk from the time of delivery of the Product to the Customer.
The Customer undertakes to store the Product on its premises separately from its own goods or those of any other person and in a manner which makes the Product readily identifiable as the Seller's Product, until delivery of the Product to a third party.
The Customer may not resell the Product, unless with express written consent of HydraPlay Pty Ltd.
The Customer must keep an amount from the proceeds of sale which is equal to the debt owed to the Seller in a separate identifiable account as the beneficial property of the Seller and must immediately pay such amount to the Seller upon request.
The Customer's right to possession of the Product ceases if it does anything or fails to do anything which would entitle a receiver, a receiver and manager, an administrator or a trustee to be appointed in respect of the Customer, its undertaking or property or any part thereof, or entitle a person to present a creditor's petition for winding up the Customer.
The Seller may for the purpose of examination or recovery of the Product enter upon any premises where the Product is stored or where it is reasonably thought to be stored.
If the Buyer uses the Product in some manufacturing or construction process of its own or of some third party, then the Customer must hold such part of the proceeds of such manufacturing or construction process as relates to the Product in trust for the Seller.
These provisions apply notwithstanding any arrangement under which the Seller provides credit to the Customer. To the extent that there is any inconsistency these provisions prevail.
Claims and liabilities
Any claim by the Customer as to incorrect performance or breach of these terms and conditions must be made to the Seller in writing within 14 days of the date recorded on the order receipt, for which time is of the essence.
Where a claim relates to the warranties under Clause 9, the limitations and exclusions in that clause apply.
The total liability of the Seller, its employees, servants and agents is limited to one or more of the following at the option of the Seller:
replacement of the Product supplied or supply of equivalent Product;
payment of the cost of replacing the Product or of acquiring equivalent Product;
payment of the cost of having the Product repaired; and does not extend to consequential loss or damage.
Warranties
The Seller warrants that for a period of 30 days from the date on the order receipt
any Product sold by it will be free from defects in workmanship and material under normal use. This warranty does not cover any Product accessories and parts which are not sold by the Seller, and in that case the Customer will only have the benefit of the warranty (if any) of the manufacturer of such parts and accessories which forms part of the contract between the Seller and the manufacturer. This warranty does not apply where in the Seller's opinion a defect has been caused by careless or improper handling, by non-adherence to operating instructions or by fair wear and tear.
If the Customer is not completely happy with its purchase (the "Satisfaction Guarantee"), it can return the Product for a refund, subject to the conditions contained in Clause 12 below.
Exclusions
The Seller will not be liable under this warranty where:
in the Seller's reasonable opinion a defect is caused by fair wear and tear by careless or improper handling, non-adherence to operating instructions, improper installation or by other abuse or misuse caused by the Customer or a third party;
any defect, loss or damage is caused to the Product during delivery or shipping.
What the Seller will do
The Seller will, in its absolute discretion:
repair the Product or pay for the cost of having the Product repaired; or
replace the Product a maximum of two (2) times at the Customer's request; or
supply an equivalent Product; or
pay for the cost of replacing the Product or acquiring an equivalent Product; or
refund the cost of the Product in accordance with clause.
if the terms and conditions of this clause 9 are satisfied.
The Seller reserves the right to charge the Customer, at the Seller's current hourly rate, for the cost of examining the Product if such examination by the Seller reveals that the Product:
is not defective; or
is defective as a result of any of the events specified in clause.
What the Customer must do
For the purpose of making any claim under this warranty the Customer must:
immediately upon the Customer becoming aware of circumstances giving rise to a claim pursuant to clause 9.1 or 9.2 return the Product, at the Customer's expense, to the Seller;
the Product must be in its original condition and packaging with all original accessories and contents and a completed return receipt;
All Products for return should be sent by registered mail at the Customer's expense. The Seller does not accept liability for Products which are lost or damaged in the mail.
The Seller reserves the right to refuse to accept and to return to the Customer any Products returned by post marked "Cash or Cheque on Delivery" or "More to Pay".
Refunds and Returns or Replacements
Refunds and returns or replacements do not include postage and/or handling charges and all such charges are at the expense of the Customer.
All requests for refunds will be processed within 30 business days of receipt by the Seller.
Where refunds are requested for Products paid by instalments, only those instalments which have been debited from the Customer will be reimbursed (less any postage and/or handling charges in accordance with paragraph 13.1).
Waiver
No waiver by the Seller of any breach of these terms and conditions operates as a waiver of any other breach, and the doing and/or omission of any act, matter or thing whatsoever by the Seller, its employees or agents (which but for this clause ought or might amount to a waiver of the Seller's rights in respect of any such breach or default) does not operate as a waiver in any way of the Seller's rights and powers in respect of such breach or default.
Notices
Any notice required under this agreement must be in writing and given by post, facsimile or hand to the Seller or the Customer at the address set out in the schedule or at such other address or facsimile number as is notified in writing by one party to the other.
Governing law
This contract is governed by the laws of Victoria notwithstanding the place in which the Product or any of them are to be delivered. The Customer and the Seller irrevocably submit to the exclusive jurisdiction of the Courts of Victoria.
Whole agreement
These terms and conditions and any warranties implied by law which are not capable of being excluded or modified embody the whole agreement between the parties and, subject to the express terms contained in any written order and written acceptance thereof (which will only apply to that particular order), all previous negotiations, representations, warranties, arrangements and statements (if any), whether expressed or implied, including any collateral agreement or warranty, regarding the subject matter or the intentions of either of the parties are merged in these terms and conditions and otherwise are hereby excluded and cancelled. The Customer acknowledges that it has not been induced to enter into this agreement by any representation, advice or information given or made by or on behalf of the Seller.
Privacy Act authority
For the purposes of assessing the credit-worthiness of the Customer from time to time and the collection of payments, the Customer authorises the Seller, its employees and agents to make such enquiries as they deem necessary including, without limitation, making enquiries of and obtaining reports (as may be allowed by law) from persons nominated by the Customer as trade referees, the Customer's creditors, bankers and financiers, credit providers, mortgage and trade insurers and credit reporting agencies ("the information sources"). The Customer consents to the information sources providing to the Seller such information as is requested by the Seller and permitted to be given by law. The Customer also consents to the Seller disclosing personal information or the contents of any credit report to a credit reporting agency for the purpose of that credit reporting agency creating or adding to any credit information file in relation to the Customer.
We may also use your information to tell you about special offers and other products from HydraPlay and other selected companies. If you do not wish to receive these offers by writing to us at Privacy Officer, HydraPlay c/- Pure Mist Water, 101 Scotts rd, Geeveston, Tasmania, 7116, Australia.
