General Terms & Conditions
1. DEFINITIONS AND INTERPRETATION
1.1 ‘Hi-Tech’ shall mean Hi-Tech Metrology Pty Ltd ACN 605 153 473, its successors and assigns or any person acting on behalf of and with the authority of Hi-Tech.
1.2 ‘Customer’ shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by Hi-Tech to the Customer and/or any Guarantor provided for the purposes of securing the Customer’s obligations pursuant to these Terms and Conditions.
1.3 ‘GST’ has the meaning given to that term in the GST Law.
1.4 ‘GST Law’ has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
1.5 ‘Guarantor’ means that person (or persons) who agrees to secure and be liable for the debts of the Customer as if he/she were principally liable as the Customer.
1.6 ‘Installation Period’ means the period of time agreed between Hi-Tech and the Customer within which the Products will be installed (where applicable).
1.7 ‘Intellectual Property Rights’ means all present and future rights throughout the world conferred by statute, common law or equity in or in relation to inventions, discoveries, innovations, know how, technical information and data, prototypes, processes, improvements, patent rights, circuitry, drawings, plans, specifications, copyright, trade mark rights, design rights, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether or not registrable, registered, or patentable. These include all rights in all applications to register these rights, all renewals and extensions of these rights and all rights in the nature of these rights.
1.8 ‘Products’ shall mean all Products supplied by Hi-Tech to the Customer (and where the context so permits) shall include measurement equipment, tools and systems and related equipment including: bridge, gantry, horizontal arm, laser tracker, vision or articulated arm type coordinate measuring machines ("CMM(s)"), parts, probes, controllers, components, computer systems, accessories and assemblies of all the foregoing ("Part(s)") and computer software, firmware and related documentation sold or licensed by Hi-Tech ("Software Materials") and otherwise as described on the invoices, quotations, work authorisation or any other forms as provided by Hi-Tech to the Customer.
1.9 ‘Price' shall mean the Price payable for the Products as agreed between Hi-Tech and the Customer in accordance with clause 4 hereof.
1.10 ‘Services’ shall mean all services supplied by Hi-Tech to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Products as defined above).
1.11 In the interpretation of these Terms and Conditions, unless the context or subject matter requires otherwise:
1.11.1 a reference to a party includes that party's executors, administrators, substitutes, successors and permitted assigns;
1.11.2 each covenant by two or more persons as a party is made jointly by all and severally by each;
1.11.3 the singular includes the plural and vice versa.
2. ACCEPTANCE
2.1 The Customer agrees to purchase and Hi-Tech agrees to sell the Products and/or Services in accordance with these Terms and Conditions.
2.2 These Terms and Conditions shall apply to all Products and/or Services sold by Hi-Tech to the Customer unless otherwise agreed to in writing.
2.3 These Terms and Conditions are deemed to be incorporated into all agreements (whether made in writing or otherwise) and contracts for the purchase of Products and/or Services by the Customer from Hi-Tech and will prevail over any inconsistent terms in any document of any third-party supplier unless otherwise agreed to in writing.
2.4 If the Customer places an order with Hi-Tech for Products and/or Services (whether in writing or otherwise) or enters into a contract with Hi-Tech for the provision of Products and/or Services, the Customer is taken to have accepted these Terms and Conditions.
2.5 Upon acceptance of these Terms and Conditions by the Customer these Terms and Conditions are binding and can only be amended with the written agreement of Hi-Tech and the Customer.
2.6 The Customer shall give Hi-Tech not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including, but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by Hi-Tech as a result of the Customer’s failure to comply with this clause.
3. PRICE AND PAYMENT
3.1 At Hi-Tech’s sole discretion:
3.1.1 The Price shall be as indicated on invoices provided by Hi-Tech to the Customer in respect of Products and/or Services;
3.1.2 The Price shall be Hi-Tech’s current price at the date of delivery of the Products according to Hi-Tech’s current price list; or
3.1.3 The Price of the Products shall, subject to sub-condition 3.1.2 hereof, be Hi-Tech’s quoted price which shall be binding upon Hi-Tech provided that the Customer shall accept in writing Hi-Tech’s quotation within thirty (30) days; and
3.1.4 The Price quoted by Hi-Tech is exclusive of delivery charges unless expressly stated otherwise, which are the responsibility of the Customer.
3.2 All quotations issued by Hi-Tech are valid for a period of 30 days only.
3.3 Any variation from the Products and/or Services provided on an initial invoice will be charged for on the basis of Hi-Tech’s quotation and will be shown as extras on an amended, further or subsequent invoice. Payment for all extras must be made in full by the Customer.
3.4 Hi-Tech may submit detailed progress payment claims in accordance with Hi-Tech's specified payment schedule. Such payment claims may include the reasonable value of authorised variations and the value of any materials delivered to the site but not yet installed.
3.5 At Hi-Tech’s sole discretion, a deposit may be required. The deposit amount or percentage of the price will be stipulated at the time of the order of the Products and/or Services and shall become immediately due and payable.
3.6 Time for payment for the Products and/or Services shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be due seven (7) days from the date of the invoice.
3.7 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by Hi-Tech.
3.8 Approved credit may be revoked at any time. Hi-Tech reserves the right to suspend manufacture and delivery due to failure by the Customer to make payments when due, which suspension shall not vitiate the Customer's obligations with respect to the suspended quantity.
3.9 For all standard Product orders received within Australia, payment may be made by cash, or by cheque, or by bank cheque, or by credit card (plus any charges that may be applicable), or by EFTPOS or by any other method as agreed to between the Customer and Hi-Tech and upon the following terms:
3.9.1 Where the order value exceeds $10,000 and in circumstances involving approved credit, Hi-Tech will require a 30% deposit, with the remaining balance to be paid prior to delivery; or
3.9.2 Where order value is less than $10,000 and in circumstances involving approved credit, payment is required strictly within 30 days from date of invoice.
3.10 Payment requirements for all standard Product orders received from all other countries outside of Australia are as follows:
3.10.1 Payment must be made by way of cleared Electronic Funds Transfer or by way of an irrevocable Letter of Credit confirmed by an Australian Bank
3.10.2 Letters of Credit must:
i. cover the full amount of the purchase Price, less the amount of any advance payment; accompany the order and carry an expiration date at least one hundred and twenty (120) days beyond the estimated or scheduled delivery date; and
ii. allow partial draws upon invoice coinciding with any applicable progress payments and be otherwise payable upon presentation of bill of lading, commercial invoice and packing list. If, however, Hi-Tech is unable to ship for any cause beyond Hi-Tech's control, Hi-Tech has the right to draw upon a Letter of Credit by furnishing a certificate of manufacture.
3.11 Receipt by Hi-Tech of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
4. DELIVERY OF PRODUCTS
4.1 Delivery dates and schedules are calculated by Hi-Tech at the point of receipt of deposit monies and any information or approvals necessary to proceed with design and manufacture;
4.2 Delivery of the Products shall be made to the Customer’s nominated address. The Customer shall make all arrangements necessary to take delivery of the Products whenever they are tendered for delivery, or delivery of the Products shall be made to the Customer at Hi-Tech’s address.
4.3 Delivery of the Products to a carrier nominated by the Customer or failing such nomination to a carrier at the discretion of Hi-Tech for the purposes of transmission to the Customer, is deemed to be delivery of the Products to the Customer. In the event of Hi-Tech nominating a carrier, the carrier shall be deemed to be the agent of the Customer.
4.4 Delivery of the Products to a carrier or third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of these Terms and Conditions.
4.5 The costs of carriage and any insurance will be the responsibility of the Customer. Hi-Tech shall not be liable for any loss or damage caused during transit. If the Customer requires insurance for the Products, the Customer should ensure that the Products are insured for full replacement value. Hi-Tech assumes no responsibility for loss and damage (howsoever arising) from damage to, or loss of, Products, whether on their journey to the Customer, or on their return to Hi-Tech from the Customer, irrespective of whether the Customer has insured the Products.
4.6 Freight terms are in accordance with the International Chamber of Commerce Incoterms 2010.
4.7 Where the Customer expressly requests Hi-Tech to leave Products outside Hi-Tech’s premises for collection, or to deliver the Products to an unattended location, then such Products shall be left at the Customer’s sole risk and it shall be the Customer’s responsibility to ensure the Products are insured adequately. If the Products are damaged, destroyed or stolen prior to the Customer making full payment for the Products, Hi-Tech is entitled to receive all insurance proceeds payable in respect of the damaged, destroyed or stolen Products. The production of these Terms and Conditions by Hi-Tech is sufficient evidence of Hi-Tech's right to receive the insurance proceeds and to the extent that the Customer may have effected insurances in respect of the Products, the Customer irrevocably appoints Hi-Tech as its attorney and agent for the purposes of making and pursuing any claim for such insurance proceeds.
4.8 Any request for extension of delivery made by the Customer shall be subject to a 1.5% per month delivery extension surcharge on the gross value of a Customer’s invoice (GST inclusive).
4.9 Hi-Tech may deliver the Products by way of separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions of these Terms and Conditions.
4.10 The failure of Hi-Tech to deliver shall not entitle either party to treat any agreement as repudiated.
4.11 Hi-Tech shall not be liable for any loss or damage whatsoever due to failure by Hi-Tech to deliver the Products (or any of them) promptly or at all, due to circumstances beyond the control of Hi-Tech.
5. INSTALLATION
5.1 If installation is included in Hi-Tech's quotation, Hi-Tech and the Customer will agree, in writing, to an Installation Period within which the installation of the Products may take place. This Installation Period is subject to change based on the operational requirements of Hi-Tech.
5.2 The Customer must ensure that Hi-Tech has clear and free access to the installation site at all times during the Installation Period to enable it to undertake the installation.
5.3 The Customer shall obtain, at its own expense, all licenses and/or approvals that may be required for any installation of the Products.
5.4 Location of Underground and other Services:
5.4.1 Prior to Hi-Tech commencing any installation on-site, the Customer must advise Hi-Tech, in writing, of the precise location of all underground and above ground mains and services existing on the site and clearly mark or indicate the same on plans of the installation site. The mains and services the Customer must identify include, but are not limited to:
i. electrical and gas services;
ii. water mains, storm water drains and irrigation pipes;
iii. sewer services, sewer connections and sewer sludge mains;
iv. pumping services;
v. telephone, fibre optic and internet cables,
vi. oil pumping mains; and
vii. any other mains or services that may be on site.
5.4.2 Whilst Hi-Tech will employ all reasonable care and skill during the installation of the Products to avoid damage to any services or mains, the Customer hereby agrees to indemnify and hold harmless Hi-Tech its employees, officers and agents, from and against all claims, suits, demands or fines relating to the damage to services or mains not precisely identified and marked or indicated by the client.
5.5 If installation is delayed at the Customer's request, full payment is due when the Products are ready for delivery. Installation will not commence until full payment is received by Hi-Tech.
5.6 If installation is unable to proceed during the Installation Period as a result of the Customer not being prepared for installation, including the failure of the Customer to provide clear and free access to the installation site, or the installation site being unsuitable for Hi-Tech’s installation, the Customer is responsible to pay Hi-Tech, based on published service rates, any additional installation costs incurred by Hi-Tech resulting from the Customer’s failure.
5.7 The Customer is responsible for all storage costs associated with a delay in installation as a result of a Customer’s failure to comply with Clause 5.6 or suspending commencement of an installation.
5.8 Hi-Tech shall not be required to provide installation, training or part-programming services, or similar, sold with the Products, any time after a period of twelve (12) months has elapsed from the date of delivery.
6. OCCUPATIONAL HEALTH AND SAFETY
6.1 It is the Customer’s responsibility to ensure proper and safe use of any Products in accordance with all applicable manuals, safety standards, codes, ordinances, regulations and laws and general standards of care. This extends to the proper and safe installation of any Products where installation is not carried-out by Hi-Tech.
6.2 The Customer shall provide all necessary devices, tools and means that may be necessary to protect any/all personnel operating the Products from bodily injury that may result from particular use, operation, set-up or service of Hi-Tech’s Products. The Customer is advised to consult the operator, machine and programming manuals, Safety Standards and State and Federal regulations.
7. TITLE
Each delivery of Products by Hi-Tech to the Customer shall be deemed to be subject to the following conditions:
7.1 Risk in the Products shall, in accordance with Clauses 4.2 – 4.4 of these Terms and Conditions, pass to the Customer once the Products have been delivered by Hi-Tech to the Customer, to a carrier or third-party nominated by the Customer, or to a carrier or third-party nominated by Hi-Tech.
7.2 No title or ownership of the Products passes to the Customer until payment in full of all monies owing by the Customer to Hi-Tech in respect of Products or Services delivered has been received by Hi-Tech from the Customer and the Customer shall:
7.2.1 Store Products which have not been paid for, separately, securely, safe from damage and readily identifiable as Products of Hi-Tech and as agent, trustee and bailee of Hi-Tech;
7.2.2 The Customer may resell the Products but only as agent of Hi-Tech. Any right to bind Hi-Tech to any liability or third party by agreement or otherwise is expressly negatived. Any resale of the Products by the Customer is to be at arm's-length and on market terms and pending resale or dealing in the Products, the Products are to kept separate from the Customer's own Products and insured by the Customer with a reputable insurer and noting the interest of Hi-Tech;
7.2.3 The Customer will receive all proceeds of resale of or any dealing with the Products, whether the proceeds are tangible or intangible, whether direct or indirect, on trust for Hi-Tech and will keep such proceeds in a separate account until the liability of the Customer to Hi-Tech shall have been discharged. Such proceeds of resale shall be held in trust for Hi-Tech and shall be deemed to be equal in dollar terms to the amount owing by the Customer to Hi-Tech in respect of the Products at the time of receipt of such proceeds;
7.2.4 Hi-Tech is to have the power to appropriate payments to such Products and accounts as it thinks fit notwithstanding any appropriation by the Customer to the contrary;
7.2.5 If the Customer does not pay for any Products on the due date specified by Hi-Tech, Hi-Tech is hereby irrevocably authorised by the Customer to enter the Customer’s premises (or any premises under the control of the Customer or as agent of the Customer if the Products are stored at such premises), and use reasonable force to take possession of the Products without liability for the tort of trespass, negligence or payment of any compensation to the Customer (or its agent) whatsoever;
7.2.6 For the purpose of giving effect to and perfecting any matters contained in this clause, the Customer irrevocably appoints Hi-Tech as its attorney; and
7.2.7 The parties agree that the provisions of this clause apply notwithstanding any agreement between the parties under which Hi-Tech gives the Customer credit.
7.3 It is expressly agreed between Hi-Tech and the Customer that:
7.3.1 Neither the Products or proceeds of sale or dealing therefrom shall be available for general distribution among creditors of the Customer in the case of corporate administration, liquidation or bankruptcy;
7.3.2 Neither the Products or proceeds of sale or dealing therefrom shall be available for distribution among secured creditors of the Customer holding a fixed or floating security over the Customer; and
7.3.3 The loss of identity of Products subject to resale or dealing does not prevent the proceeds of resale or dealing being held on trust by the Customer or Hi-Tech.
7.4 The Customer acknowledges and agrees that, except as required by law, and save for the provisions of Clause 11 of these Terms and Conditions, these Terms and Conditions shall not entitle the Customer to demand or receive from Hi-Tech any site inspection or service of the Products supplied, delivered and/or installed (if applicable). Any such requirement of the Customer shall be arranged directly with Hi-Tech by way of separate agreement.
8. PRIVACY ACT 1988
8.1 The Customer agrees that Hi-Tech may, in accordance with the terms of the Privacy Act 1988, obtain from a credit-reporting agency a credit report containing personal credit information about the in relation to credit provided by Hi-Tech.
8.2 The Customer agrees that Hi-Tech may exchange information about the Customer with credit providers named in a consumer credit report issued by a reporting agency for the following purposes:
8.2.1 To assess an application by the Customer;
8.2.2 To notify other credit providers of a default by the Customer;
8.2.3 To exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and
8.2.4 To assess the credit worthiness of Customer.
8.3 The Customer consents to Hi-Tech being given a consumer credit report to collect overdue payment on commercial credit.
8.4 The Customer agrees that personal data provided may be used and retained by the Hi-Tech for the following purposes and for other purposes as shall be agreed between the Customer and Hi-Tech or required by law from time to time:
8.4.1 provision of Products and Services;
8.4.2 marketing of Products and Services by Hi-Tech, its agents or distributors in relation to the Products and Services;
8.4.3 analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Products and Services;
8.4.4 processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and
8.4.5 enabling the daily operation of a Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Products and Services.
8.5 Hi-Tech may give information about the Customer to a credit reporting agency for the following purposes:
8.6 to obtain a consumer credit report about the Customer; and/or
8.7 allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
9. PERSONAL PROPERTY SECURITIES ACT 2009
Each transaction for the sale of Products and Services and each delivery of Products and Services by Hi-Tech to the Customer, shall be deemed to be subject to the following conditions:
9.1 words and phrases used in this clause which are defined in the Personal Property Securities Act 2009 ("PPSA") have the same meaning in this Clause;
9.2 "collateral" for the purposes of the PPSA means the Products which Hi-Tech may provide to the Customer from time to time which are the subject of this clause;
9.3 the contents of this Clause is a security agreement for the purposes of the PPSA;
9.4 "dealing" means and includes the Customer using the Products and Services in some manufacturing or construction process of its own or, of a third party;
9.5 "resale" means and includes any form of sale, hire, loan or in any way parting with possession of the Products and Services.
9.6 The content of this clause and the conditions contained in it constitute a security agreement for the purposes of the PPSA in respect of which the Customer agrees that the collateral is not to be used predominantly for personal, domestic or household purposes, The Customer unconditionally and irrevocably contracts out of the following provisions of the PPSA:
9.6.1 Section 95 requiring notice to be given of removal of an accession;
9.6.2 Section 96 when a person with an interest in the whole may retain an accession;
9.6.3 Section 121 (4) requiring notice to grantor in relation to enforcement of liquid assets;
9.6.4 Section 130 requiring a secured party to give notice to a grantor in respect of disposal of collateral;
9.6.5 Section 132 (3)(d) requiring the delivery of a statement of account to a grantor after disposal;
9.6.6 Section 132 (4) requiring delivery of a statement of account if no disposal;
9.6.7 Section 135 requiring delivery by a secured party to a grantor of notice of retention;
9.6.8 Section 142 giving the right by a grantor to redeem collateral; and
9.6.9 Section 143 giving the right of a grantor to seek reinstatement of a security agreement.
9.7 The Customer consents to Hi-Tech, at the Customer's cost and expense, registering any security interest contemplated or constituted by this Clause or these conditions and agrees to sign all documents requested by Hi-Tech and to do all such things as Hi-Tech requests in order to register Hi-Tech's security interest pursuant to the PPSA including the registration of a Financing Statement, a Financing Change Statement in respect of a security interest and any other document or notice required for the purposes of the PPSA. The Customer unconditionally and irrevocably waives the right to receive a Verification Statement in relation to the registration of any security interest by Hi-Tech in respect of the collateral.
9.8 The Customer undertakes that it will not:
9.8.1 do anything which would prejudice or interfere with Hi-Tech's right to registration of its security interest pursuant to the provisions of the PPSA;
9.8.2 register or seek to register a Financing Change Statement in respect of the collateral without Hi-Tech's prior written consent; and
9.8.3 permit any further encumbrance to subsist in respect of the collateral in favour of any third party without prior the written consent of Hi-Tech.
9.9 Hi-Tech's rights pursuant to this clause are addition to and not in substitution of any other rights Hi-Tech has against the Customer.
10. SECURITY AND CHARGE
10.1 Notwithstanding anything to the contrary contained herein or any other rights which Hi-Tech may have howsoever:
10.1.1 Where the Customer is the owner of land, realty or any other asset capable of being charged, the Customer agrees to charge its right, title and interest in the said land, realty or any other asset to Hi-Tech or the Hi-Tech’s nominee to secure all amounts and other monetary obligations payable to Hi-Tech. The Customer acknowledges and agrees that Hi-Tech shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met;
10.1.2 Should Hi-Tech elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer shall indemnify Hi-Tech from and against all Hi-Tech’s costs and disbursements including legal costs on a solicitor and own client basis.
11. DEFECTS
11.1 The Customer shall immediately inspect the Products upon delivery to ascertain their fitness for the Customer's purpose and shall within seven (7) days of delivery, or upon installation, notify Hi-Tech in writing of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Hi-Tech an opportunity to inspect the Products within a reasonable time following delivery in the event of any alleged deficiency. If the Customer shall fail to comply with these provisions the Products shall be conclusively presumed to be in accordance with the conditions and free from any defect or damage.
11.2 For defective Products which Hi-Tech has agreed in writing that the Customer is entitled to reject, Hi-Tech’s liability is limited to (at Hi-Tech’s discretion) a refund of the purchase price of the Products, replacing the Products or repairing the Products provided that:
11.2.1 the Customer has complied with the provisions of Clause 11.1;
11.2.2 The Products are returned at the Customer’s cost within seven (7) days of receiving written confirmation from Hi-Tech that the Customer is entitled to reject the Products, or in the case of Products that have been installed, the Customer shall afford Hi-Tech an opportunity, within seven (7) days of receiving written confirmation from Hi-Tech that the Customer is entitled to reject the Products, an opportunity to inspect, rectify or de-install the Products;
11.2.3 Hi-Tech will not be liable for Products which have not been stored or used in a proper manner.
11.3 Products made or ordered to customer specification, or considered by Hi-Tech as excluded from its standard inventory shall only be acceptable for credit or return at the sole discretion of Hi-Tech.
11.4 The Customer leaves Products for repair at its own risk.
12. WARRANTIES AND INDEMNITY
Mutual Warranties
12.1 Each party warrants to the other that:
12.1.1 It has the power and authority to enter into these Terms and Conditions;
12.1.2 If it enters into these Terms and Conditions as an agent for another party, it is authorised to act for its principal in the manner contemplated by these Terms and Conditions and its authority has not been withdrawn or revoked.
Hi-Tech Warranties
12.2 The warranty period for the Products, unless otherwise stated is as follows:
12.2.1 For products installed by Hi-Tech, warranty is effective for a period of twelve (12) months from the date of installation.
12.3 For products not installed by Hi-Tech warranty is effective for a period of twelve (12) months from delivery of the Products.
12.4 For after-market parts and/or accessories warranty is effective for a period of ninety (90) days from the date of delivery.
12.5 For after-market service, warranty is effective for a period of thirty (30) from the date of completion of service.
12.6 Any warranty offered by Hi-Tech is subject to and conditional upon:
12.6.1 The Customer operating Products strictly in accordance with the specifications, operating manuals, safety warnings or directions, and any other directions, advice, safety instructions or materials provided by Hi-Tech and/or the manufacturer;
12.6.2 The Customer not modifying the Products without the express written authorisation of Hi-Tech;
12.6.3 Failure of the Products not being caused by improper use, lack of maintenance, or improper installation (where installation was not carried-out by Hi-Tech);
12.6.4 The Customer using the Products for the purpose they are intended and in the manner of operation intended by Hi-Tech or manufacturer; and
12.6.5 The Customer adhering to the service and maintenance instructions provided by Hi-Tech or a manufacturer in respect of the Products.
In the event that the Customer fails to adhere to the pre-conditions in sub-clauses 12.6.1 to 12.6.5, Hi-Tech shall be under no obligation to honour any warranty in respect of the provision of Products or Services by Hi-Tech to the Customer.
12.7 In respect of Products not manufactured by Hi-Tech the warranty shall be the current warranty (if any) provided by the manufacturer of the Products.
12.8 Unless otherwise stated in writing, Hi-Tech gives no warranty in respect of second-hand, remanufactured or reconditioned Products.
12.9 In the case of second-hand Products, the Customer acknowledges that it has had full opportunity to inspect the same and it accepts the same with all faults and that no warranty is given by Hi-Tech as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded.
12.10 The limit of the Hi-Tech's liability in respect of any warranty claim shall be at Hi-Tech’s sole discretion, either refunding the purchase Price of the Products, replacing the Products or the Services with similar Products or Services or, repairing the Products or, paying for the repair of the Products.
12.11 The foregoing warranty will not apply to the following:
12.11.1 products exported by the Customer outside of Australia;
12.11.2 measurement software in respect of which the customer has breached the software licence;
12.11.3 measurement software training;
12.11.4 special customer part-programming included on the Customer's order;
12.11.5 training services.
12.12 Special parts programming and/or Services will be warranted only in accordance with any terms agreed to between the parties in writing.
12.13 The Customer acknowledges that product acceptance tests are agreed to only by way of express written agreement between the parties.
Indemnity
12.14 Other than as expressly provided for in this Clause 12, Hi-Tech will not be liable for any loss or damage (including indirect/consequential loss or damage, which includes without limitation, loss of profits and loss of revenue) of any kind whatsoever.
12.15 The Customer indemnifies and will keep indemnified Hi-Tech upon demand against all loss, damage, costs (including legal costs on a solicitor and own client basis) or liability whatsoever suffered or incurred by Hi-Tech, arising out of or in connection with:
12.16 Any breach of these Terms and Conditions by the Customer; and/or
12.17 Any death or injury to a person, any loss or damage to real or personal property caused by the Customer’s act or omission.
13. GOVERNMENT RESTRICTIONS
13.1 Hi-Tech’s performance under any contract is subject to the issuance of any required export licence or other necessary Government authorisation.
13.2 Hi-Tech has the right to terminate, without liability, any proposal, order or contract if Hi-Tech determines such sale, export or delivery violates relevant law.
13.3 Termination under this Clause will not affect the right of Hi-Tech to recover the contract Price for any unpaid Products and Services already delivered or provided.
13.4 The Customer shall not export or re-export any Product in violation of relevant law and it is understood that machinery, equipment, documentation and software, if any, including technical data, may not be exported or re-exported in violation of the U.S. Export Administration Act, its implementing laws and regulations, the laws and regulations of other U.S. agencies or the export and import laws of the jurisdiction in which this machinery, equipment, documentation and software, if any, including technical data was obtained.
13.5 Export to or from any individual, entity, or country specifically prohibited by relevant law represents a breach of these Terms and Conditions.
14. INTELLECTUAL PROPERTY OWNERSHIP
14.1 Neither Hi-Tech nor the Customer transfers any right, title or interest in any Intellectual Property Rights to the other.
14.2 The Customer must not use any of Hi-Tech’s Intellectual Property Rights (including Trade Marks) unless authorised by Hi-Tech in writing.
14.3 In developing and producing products, each party must not infringe the Intellectual Property Rights held by the other in relation to the Products.
14.4 Neither party will cause or permit (to the extent within its control) anything which may amount to misuse, interference with, damage or endangerment to the Intellectual Property Rights of the other party, or its suppliers, or assist others to do so.
14.5 Each party undertakes to notify the other party as soon as reasonably practicable after it becomes aware of any unauthorised use or attempted unauthorised use by any person of the other party’s Intellectual Property Rights.
14.6 The Customer acknowledges that software and/or other intellectual property provided by a third-party licensor of Hi-Tech (“Third-Party Intellectual Property”) may be incorporated in the Products and Services. The Customer warrants that it will abide by the applicable Terms and Conditions with respect to such Third-Party Intellectual Property, whether set forth in the Product documentation, files contained in the Products, any individual product licence granted, or as otherwise provided by Hi-Tech from time to time in writing.
14.7 The Customer will not:
14.7.1 decode, reverse engineer, reprint, transcribe or reproduce, in whole or in part, the Third-Party Intellectual Property,
14.7.2 modify or enhance the Third-Party Intellectual Property, or
14.7.3 otherwise access or manipulate the Third-Party Intellectual Property
except as expressly permitted in writing by Hi-Tech.
14.8 The Customer may make one (1) copy of the Third-Party Intellectual Property solely for back-up or archival purposes.
14.9 This Clause will survive the termination of these Terms and Conditions.
15. DEFAULT AND CONSEQUENCES OF DEFAULT
15.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2% higher than the rate prescribed by the Penalty Interest Rates Act 1983.
15.2 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify Hi-Tech from and against all of Hi-Tech’s costs and disbursements including on a solicitor and own client basis and in addition all of Hi-Tech's costs of collection.
15.3 Without prejudice to any other remedies Hi-Tech may have, if at any time the Customer is in breach of any obligation (including those relating to payment), Hi-Tech may suspend or terminate the supply of Products and Services to the Customer and any of its other obligations under these Terms and Conditions. Hi-Tech will not be liable to the Customer for any loss or damage the Customer suffers because Hi-Tech has exercised its rights under this Clause;
15.4 In the event that:
15.4.1 any money payable to Hi-Tech becomes overdue, or in Hi-Tech’s opinion the Customer will be unable to meet its payments as they fall due;
15.4.2 the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors;
15.4.3 a receiver, manager, administrator, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer
then without prejudice to Hi-Tech’s other remedies at law, Hi-Tech shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to Hi-Tech shall, whether or not due for payment, immediately become payable. Further, Hi-Tech may refuse or withdraw any further extension or provision of credit to the Customer.
16. RETURNS AND CANCELLATION
16.1 Hi-Tech may, in its sole discretion, provide a refund for Products returned with proof of sale within seven (7) days of the date of delivery.
16.2 There are no returns in circumstances involving non-standard, special order, or customised items.
16.3 All Products returned are subject to a 10% re-stocking fee.
16.4 Additional fees will apply for any Products returned damaged, incomplete, or not in the original packaging.
16.5 Hi-Tech may cancel any contract to which these Terms and Conditions apply or cancel delivery of Products at any time before the Products are delivered by giving written notice to the Customer. On giving such notice Hi-Tech shall repay to the Customer any sums paid in respect of the Price. Hi-Tech shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.6 In the event that the Customer cancels delivery of Products, the Customer shall be liable for any loss incurred by Hi-Tech (including, but not limited to, any loss of profits) up to the time of cancellation. Hi-Tech reserves the rights to charge a re-stock fee:
16.6.1 of no less than 10% on any Products returned in their original unmodified condition; and
16.6.2 of no less than 50% on any Products returned in a modified or manufactured condition (which will only be accepted for return in special circumstances);
at the absolute discretion of Hi-Tech.
16.7 Cancellation of orders for Products made to the Customer’s specifications or non-stocklist items will not be accepted once production has commenced.
17. DISPUTE RESOLUTION
17.1 In the event of any grievance or dispute concerning the subject matter of these Terms and Conditions, save for any interlocutory relief which is required by a party, no party shall institute proceedings in any Court having jurisdiction without first having complied with the provisions of Clause 17.2.
17.2 Hi-Tech and the Customer agree that, in the event of a grievance or dispute arising between them in relation to or concerning the subject matter of these Terms and Conditions, the following procedures shall be undertaken:
17.2.1 the aggrieved party shall notify the other party in writing of the existence of the dispute and provide written details of the grounds of dispute; and
17.2.2 the parties shall meet and endeavour to resolve the dispute by negotiation within seven (7) days of receipt of the notice of the dispute.
17.3 If the parties are unable to resolve the dispute by negotiation, then either of the parties may elect whether to refer the dispute to mediation. If the parties are unable to agree on a process for resolving the dispute within two (2) days of the meeting referred to in sub-Clause 17.2.2 above, then the dispute shall be referred to mediation to be conducted in accordance with the Mediation Guidelines promulgated from time to time by the Law Institute of Victoria.
17.4 The mediator shall be chosen and appointed jointly by the parties. The costs of the mediator shall be shared equally by the parties. If the parties are unable to agree on a mediator, then the President of Law Institute of Victoria shall appoint one for the parties.
17.5 If the parties are unable to resolve the dispute by mediation they shall submit to the jurisdiction of the Courts of the State of Victoria (as the case may be) and any Court competent to hear appeals therefrom.
18. GENERAL
18.1 Any provision of these Terms and Conditions which is unenforceable or partly unenforceable is to be severed to the extent necessary to make these Terms and Conditions enforceable, unless this would materially change the intended effect entirety of these Terms and Conditions.
18.2 The parties agree and acknowledge that prior to having entered into these Term and Conditions they have:
18.2.1 carefully read the provisions of these Terms and Conditions and understood them; and
18.2.2 not relied upon any statement, representation or warranty made by another party, its officers, servants, agents or solicitors in relation to the subject matter of these Terms and Conditions other than as set out herein.
18.3 Hi-Tech takes no responsibility for changes in the law which affect the Products and/or Services supplied.
18.4 Hi-Tech may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
18.5 Hi-Tech reserves the right to review these Terms and Conditions at any time and from time to time. If, following any such review, there is to be any change in such conditions, that change will take effect from the date on which Hi-Tech notifies the Customer of such change.
18.6 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Hi-Tech nor to withhold payment of any invoice because part of that invoice is in dispute.
18.7 In the event of translation of these Terms and Conditions to a language other than English, the English language translation shall prevail.
18.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
18.9 Hi-Tech shall have the benefit of all rights and remedies provided by law or equity. Failure of Hi-Tech to exercise or reserve any right or remedy, or term or condition of any contract, shall not be construed as a waiver or relinquishment of any of the other right, remedy, term or condition of any contract or the future performance or exercise of any such term, condition, right or remedy.
18.10 These Terms and Conditions constitute the entire agreement and understanding between the parties concerning its subject matter and succeeds and cancels all other previous agreements, contracts, statements and understandings, whether verbal or in writing.