Terms and Conditions
1 HOW TO READ THIS AGREEMENT
1.1 MEANING OF CAPITALISED WORDS AND PHRASES
Capitalised words and phrases used in these terms and conditions have the meaning given:
(a) to that word or phrase in the Key Agreement Details;
(b) by the words immediately preceding any bolded and bracketed word(s) or phrase(s); or
(c) in the definitions in clause 17 of these terms and conditions.
1.2 ORDER OF PRECEDENCE
(a) Subject to clause 1.2
(b) and unless otherwise expressly stated, in the event of any inconsistency between these terms and conditions and an Order or Key Agreement Details, these terms and conditions will prevail to the extent of such inconsistency.
(b) Any Special Conditions set out in the Key Agreement Details are incorporated in these terms and conditions and will replace and prevail over any other terms to the extent of any inconsistency.
2 SUPPLY
HP Aviation Hoses agrees to supply, and the Client agrees to buy, the Supply Goods in accordance with the terms of this agreement.
3 TERM
This agreement commences on the Commencement Date and will continue unless terminated earlier in accordance with clause 13.
4 DISTRIBUTION
(a) HP Aviation Hoses grants to the Client a right to market, distribute and sell the Supply Goods to third parties in the Territory in accordance with this clause 4 and the intellectual property licence in clause 9.
(b) The parties acknowledge and agree that:
(i) unless otherwise agreed in writing, the rights granted under this agreement to the Client are non-exclusive and HP Aviation Hoses may make the same or similar arrangements with any other third party in relation to the Territory;
(ii) HP Aviation Hoses may provide the Supply Goods (or equivalent goods) to any third party in the Territory for the Order; and
(iii) the Client may market, distribute and sell the Supply Goods to third parties outside the Territory.
5 CLIENT OBLIGATIONS
The Client acknowledges and agrees, that unless otherwise agreed in writing:
(a) the Client is not appointed as HP Aviation Hoses’ agent or representative and must not make any representations to third parties as to being an agent or representative of HP Aviation Hoses
(b) the Client must only sell the Supply Goods in accordance with any applicable Laws; and
(c) the Client must ensure that in selling the Supply Goods to customers:
(i) they do so with due care and consideration and ensuring the appropriate Supply Goods are provided to each customer;
(ii) that customers are given instructions on the proper care and usage of the Supply Goods;
(iii) that the Client provides ongoing support to customers, such as by fielding any ongoing questions customers may have regarding care and usage of the Supply Goods;
(iv) they do so in accordance with any documentation or instructions provided by HP Aviation Hoses; and
(v) have in place a returns policy for the sale of the Supply Goods in accordance with applicable Laws.
6 ORDERS AND DELIVERY
6.1 ORDERS
(a) The Client may place an Order for the supply of the Supply Goods with HP Aviation Hoses by contacting HP Aviation Hoses directly to request a Quote (Quote Request).
(b) Once a Quote Request has been received, HP Aviation Hoses will review and provide a Quote to the Client.
(c) If the Client accepts the Quote by contacting HP Aviation Hoses directly to place the Order, HP hoses will proceed with manufacturing, sourcing and supplying the Supply Goods.
(d) HP Aviation Hoses will deliver the Supply Goods to the Delivery Address specified in an Order.
(e) Due to the nature of the Supply Goods, once an Order has been received by HP Aviation Hoses, that Order is irrevocable and binding on the parties and cannot be cancelled or amended unless expressly agreed in writing by the parties. HP Aviation Hoses may charge reasonable Cancellation Fees to the Client where required to recover costs of cancelling an Order.
(f) Accepted Quotes and Orders placed by the Client are incorporated into and form part of this agreement.
6.2 DELIVERY
(a) HP Aviation Hoses will store, transport and deliver the Supply Goods:
(i)in accordance with all relevant laws, rules, regulations, standards, industry codes and other requirements in Australia or any other relevant jurisdictions in which the relevant Supply Goods are delivered to, through or from, relating to the supply, transportation and exporting of the Supply Goods;
(ii) in appropriate containers or vehicles in order to prevent contamination, deterioration or damage to the quality of the Supply Goods; and
(iii) together with all relevant information, certifications, registrations, forms, or other documents relating to the Supply Goods.
(b) Any delivery by instalments must be requested by the Client at the time of placing the Order and approved by HP Aviation Hoses. All other deliveries will include shipment of all Supply Goods under each Order.
(c) Any delivery timeframes provided by HP Aviation Hoses are estimates only and HP Aviation Hoses provides no guarantee that an Order will be delivered by a certain date or time.
(d)Unless otherwise specified, delivery of the Supply Goods will be made by a freight carrier engaged by HP Aviation Hoses. The Client acknowledges and agrees that requests for delivery of the Supply Goods to be made by an alternate freight carrier of their choice (Client Nominated Freight Carrier) will need to be made to HP Aviation at the time of Order and HP Aviation Hoses accepts no responsibility for any damage to the Supply Goods in transit when delivered by a Client Freight Carrier.
(e) Subject to clause 6.2(a), HP Aviation Hoses accepts no responsibility for any damage to the Supply Goods in transit. The Client agrees to promptly inspect the Supply Goods on arrival. If the Client identifies damage in the Supply Goods due to shipping, the Client agrees to notify HP Aviation immediately.
6.3 TITLE AND RISK
With the exception of Supply Goods delivered under clause 6.2(d). title to and risk in the Supply Goods will remain with HP Aviation Hoses until, and will pass to the Client when, the Supply Goods have been delivered to the Client and the Price and any applicable Shipping Fees have been paid in full.
7 PRICE AND PAYMENT
7.1 PAYMENT
(a) The price payable by the Client for the Supply Goods is as set out in the Quote for the Order placed.
(b) Upon receiving an Order, HP Aviation Hoses will issue the Client a tax invoice.
(c) Unless otherwise agreed in writing, the Client must pay the Price, along with any applicable Shipping Fees, at the time of placing an Order.
7.2 DUTIES AND TAX
(a) The Client acknowledges and agrees that where a Delivery Address is not located in the Territory outlined in the Key Agreement Details:
(i) an Order may be subject to taxes (including any export or import taxes), levies and excises (including customs tax), charges and costs (Import Charges) upon reaching its country of destination;
(ii) it is the Client’s responsibility to pay for any applicable Import Charges and that failure to pay may result in the Order being held at the customs centre of the country of destination; and
(iii) HP Aviation Hoses will not be liable for any costs the Client may incur in having their Order release from customs, including reimbursing the Client for any Import Charges the Client may pay.
(b) The Client is responsible for the payment of Import Charges payable in connection with the supply of the Supply Goods
(c) Unless otherwise indicated, all amounts stated in this agreement are exclusive of all taxes (including any goods and services tax), levies, excises, duties and imposts payable in connection with this agreement whether in Australia or the jurisdiction in which the Client and their customers are located (Taxes).
(d) If any Taxes are or become payable on a supply made under or in connection with this agreement, an additional amount is payable by the Client equal to the amount of Taxes payable on the relevant supply as calculated by HP Aviation Hoses, and subject to HP Aviation Hoses providing a tax invoice.
7.3 PAYMENT PROVIDER
HP Aviation Hoses may use third-party payment providers (Payment Providers) to collect payments for Orders. The processing of payments by the Payment Provider will be, in addition to these terms, subject to the terms, conditions and privacy policies of the Payment Provider and HP Aviation Hoses are not liable for the security or performance of the Payment Provider. HP Aviation Hoses reserves the right to correct, or to instruct the Payment Provider to correct, any errors or mistakes in collecting the Client’s payment.
7.4 CARD SURCHARGES
HP Aviation Hoses reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
8 SPECIFICATIONS AND QUALITY
(a) If an Order does not, in the reasonable opinion of the Client, conform to the Specifications, Order or any other term of this agreement (including the Supply Goods being damaged, not being of the correct quantity or not being delivered at all) (Fault or Faulty), the Client may provide written notice to the HP Aviation Hoses, detailing the Fault and providing evidence of the Fault, such as images of the Fault (Fault Notice).
(b) Upon receiving a Fault Notice, the HP Aviation Hoses will investigate the Fault and determine, in its reasonable opinion, whether there has been a Fault in the Order. In investigating the Fault, HP Aviation Hoses may, at its election, require the Client to return all or a selection of the Supply Goods to HP Aviation Hoses at the Client’s cost.
(c) Where the HP Aviation Hoses determines that there has been a Fault, HP Aviation Hoses will reimburse the Client for any costs associated with returning the Supply Goods to HP Aviation Hoses and the Client may elect at their discretion to and notify the HP Aviation Hoses that:
(i) the Client will accept the Supply Goods at a reduced price, to be agreed to by the parties in good faith; or
(ii) they will complete an inspection of all the Supply Goods delivered, then notify the HP Aviation Hoses of the total number of Faulty Supply Goods.
(d) Where the Client notifies the HP Aviation Hoses of the number of Faulty Supply Goods, then, at the Client’s election:
(i) the Client will not be obliged to make any payment for any such Faulty Supply Goods and the HP Aviation Hoses will refund to the Client any amounts already paid by the Client for the Faulty Supply Goods; or
(ii) the HP Aviation Hoses will supply to the Client replacement Supply Goods within a reasonable time which conform with the relevant Order and the terms of this agreement. The Client acknowledges that where the Client elects to receive replacement Supply Goods due to a fault in the material/s used to manufacture the product, there may be a delay in the delivery of replacement Supply Goods due to factors beyond HP Aviation Hoses’ control, including any delays in the production and/or shipment of materials required.
(iii) HP Aviation will provide reasonable assistance to raise product fault and quality issues with its suppliers for Supply Goods sourced for and on behalf of the Client under this Agreement.
9 INTELLECTUAL PROPERTY
(a) Each party retains ownership of its respective intellectual property and nothing in this agreement transfers ownership or assigns any Intellectual Property Rights of a party to another party.
(b) HP Aviation Hoses grants the Client a worldwide, revocable, non-transferrable and royalty-free licence to market, distribute and sell the Supply Goods in the Territory.
(c) The Client may use HP Aviation Hoses’ logos, names, trademarks, trade devices, service marks, symbols or any insignia, design or endorsement associated with the Supply Goods for the purpose of marketing and selling the Supply Goods.
10 CONFIDENTIALITY AND RESTRAINT
10.1 CONFIDENTIALITY
Except as contemplated by this agreement, a party must not and must not permit any of its officers, employees, agents, contractors or related companies to use or to disclose to any person any confidential information disclosed to it by another party without that party’s prior written consent.
This clause does not apply to:
(a) information which is generally available to the public (other than as a result of a breach of these terms or another obligation of confidence);
(b) information required to be disclosed by any law; or
(c) information disclosed by the Client to its subcontractors, employees or agents for the purposes of receiving or reselling the Supply Goods or fulfilling its obligations under this agreement.
11 WARRANTIES
(a) Each party warrants to the other party that as at the date of this agreement:
(i) it is validly existing under the laws of its place of incorporation or registration;
(ii) it has taken all necessary action to authorise its entry into and has the power to enter into and perform its obligations under this agreement and to carry out the transactions contemplated by this agreement;
(I) its obligations under this agreement are valid and binding and enforceable against it in accordance with their terms; and it has and will at all times comply with all relevant laws, rules, regulations, codes of practice and other requirements relating to, and the sale of, the Supply Goods, including that it holds all necessary registrations, permits, licences and other authorisations in respect of the Supply Goods (Laws and Authorisations).
(b) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
(c) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL) or any other rights the Client may have under any applicable Laws.
12 LIABILITY
(a) (Liability) To the maximum extent permitted by applicable law, HP Aviation Hoses limits all liability in aggregate of all claims to the Client (and any third parties who encounter the services or goods through the Client’s business) for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to this agreement or any goods or services provided by HP Aviation Hoses including any advice, recommendation, information, assistance in relation to the course of providing the Supply Goods under this Agreement to the amount paid by the Client to HP Aviation Hoses under the most recent Order.
(b) (Indemnity) The Client indemnifies HP Aviation Hoses and its employees, contractors and agents in respect of all liability for any claim(s) by any person (including any third party who encounter the services or goods through the Client’s business) arising from the Client’s or the Client’s employee’s, customer’s, contractor’s or agent’s:
(i)breach of any third party intellectual property rights;
(ii) breach of any term of this agreement, including any of the warranties outlined in clause 12;
(iii) breach of any applicable Laws, including as a result of the use, marketing, distribution or sale of the Supply Goods;
(iv) negligent, wilful, fraudulent or criminal act or omission; or
(v) use of any Supply Goods provided by HP Aviation Hoses.
(c) (Consequential loss) To the maximum extent permitted by law, under no circumstances will HP Aviation Hoses be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this agreement or any goods or services provided by HP Aviation Hoses (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth) or any applicable Laws).
(d) (Assistance)If a claim is made by a person againstHPAviation Hoses arising out of or in connection with the Client, the Client must (and must ensure that its Personnel),at the expense of the Client, provide all reasonable assistance and co-operation to HPAviation Hoses in the conduct of any legal or other proceedings including, without limitation:
(i)providing all relevant documents in its possession;
(ii)signing any documents or authorities;and
(iii)as may be reasonably required for the prosecution or advancementof any legal or otherproceedings.
13 TERMINATION
(a) The Client may terminate this agreement at any time by providing written notice to HP Aviation Hoses.
(b) Without limiting clause 13.1(a), either party (Non-Defaulting Party) may terminate this agreement immediately by written notice to the other party (Defaulting Party) if the Defaulting Party:
(i) is in breach of this agreement; or
(ii) suffers an Insolvency Event; or
(iii) ceases, suspends or threatens to cease or suspend to conduct its business.
13.2 ACCRUED RIGHTS AND LIABILITIES
The expiration or termination of this agreement will not prejudice any accrued rights or liabilities of either party, nor excuse either party from a breach of this agreement occurring prior to expiration or termination of this agreement.
13.3 CONSEQUENCES OF EXPIRATION OR TERMINATION
Upon expiration or termination of this agreement:
(a) if requested by the Client, HP Aviation Hoses will deliver to the Client the Supply Goods which were the subject of any outstanding Order received by HP Aviation Hoses from the Client prior to the date of expiration or termination of this agreement;
(b) the Client must pay any outstanding amounts owed to HP Aviation Hoses, including for Orders to be fulfilled under clause 3(a); and
(c) HP Aviation Hoses must return to the Client any documents that contain any of the Client’s confidential information.
13.4 SURVIVAL
Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this agreement will survive and be enforceable after such termination or expiry.
14 IF THE PARTIES HAVE A DISPUTE
(a) The parties must, without delay and in good faith, attempt to resolve any dispute which arises out of or in connection with this agreement prior to commencing mediation in accordance with clause 14(b).
(b) If an issue between the parties arises under this agreement that cannot be resolved day-to-day, the parties will make genuine efforts in good faith to participate cooperatively in mediation, at equal shared expense of the parties.
(c) The parties will conduct mediation through the Australian Disputes Centre (ADC) and in accordance with the ADC’s Guidelines for Commercial Mediation (as current at the time of the dispute).
(d) The parties will follow the mediator’s recommendations on the extent of mediation required, and when to stop mediation if the issue cannot be resolved.
(e) If mediation does not resolve the issue, the parties must:
(i) if they haven’t already done so, engage independent legal representation at their own expense to understand the strength of their arguments; and
(ii) based on that advice, if settlement is not achieved, participate in arbitration (or other dispute resolution mechanism agreed in mediation) through the ADC at equal shared expense.
(f) The parties will follow the binding outcome of arbitration (or other agreed mechanism).
(g) Either party may at any time during this process make an offer for settlement. The parties acknowledge and agree it is in their best interests to properly consider all genuine settlement offers. The parties will use best endeavours to avoid litigation and reach a prompt settlement.
(h) The process in this clause does not apply where a party requires an urgent injunction.
15 NOTICES
(a) Any notices required to be sent under this agreement must be sent via email using the party’s email addresses set out at the beginning of this agreement and the email’s subject heading must refer to the name and date of this agreement.
(b) If no email address is stated in this agreement, the notice may be sent to the email address most commonly used by the parties to correspond in relation to this agreement at the time the notice is sent.
(c) The notice will be considered to be delivered 24 hours after it was sent, unless the sender has reason to believe the email failed to send or was otherwise not delivered or received.
16 GENERAL
16.1 FORCE MAJEURE
If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement or a Statement of Work (other than an obligation to pay money) due to an event beyond its reasonable control of the Affected Party, including a severe weather incident or an act of war or terror in a relevant location (Force Majeure), the Affected Party must give to the other party prompt written notice of:
(a) reasonable details of the Force Majeure; and
(b) so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
The relevant obligation will be suspended during the Force Majeure to the extent that it is affected by the Force Majeure. The Affected Party must use its best endeavours to overcome or remove the Force Majeure as quickly as possible.
16.2 GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applying in Victoria, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
If the day on which any act is to be done under this agreement is a day other than a Business Day, that act must be done on or by the immediately following Business Day except where this agreement expressly specifies otherwise.
16.4 AMENDMENTS
This agreement may only be amended in accordance with a written agreement between the parties.
16.5 WAIVER
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
16.6 SEVERANCE
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
16.7 JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
16.8 ASSIGNMENT
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
16.9 COUNTERPARTS
This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.
16.10 COSTS
Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.
16.11 ENTIRE AGREEMENT
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
16.12 INTERPRETATION
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (gender) words indicating a gender includes the corresponding words of any other gender;
(c) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(d) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(e) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(f) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(g) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(h) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(i) (includes) the word “includes” and similar words in any form is not a word of limitation;
(j) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision; and
(k) (currency) a reference to $, or “dollar”, is to Australian currency, unless otherwise agreed in writing.
17 DEFINITIONS
A term or expression starting with a capital letter which is defined below has the meaning given to it in the following:
Term | Meaning |
Business Day | A day (other than a Saturday, Sunday or any other day which is a public holiday) on which banks are open for general business in Victoria. |
Commencement Date | The date of the last party to this agreement signs this agreement. |
Delivery Address | In respect of an Order, the address for delivery specified in that Order. |
Indemnified Loss | Loss, damage, liability, cost (including all legal and other professional costs on a full indemnity basis), charge, expense, outgoing, fine or payment of any nature or kind. |
Insolvency Event | In relation to a party, the occurrence of any of the following: (a) a receiver, receiver and manager, liquidator, provisional liquidator, administrator or trustee is appointed in respect of that party or any of its assets; (b) an application is made to court or a resolution is passed or an order is made for the winding up or dissolution of that party; (c) that party proposes or takes any steps to implement a scheme of arrangement or other compromise or arrangement with its creditors or any class of them; or (d) that party is declared or taken under any applicable law to be insolvent or that party’s board of directors resolves that it is, or is likely to become at some future time, insolvent. |
Intellectual Property Rights | All copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of this agreement both in Australia and throughout the world. |
Key Agreement Details | The table set out at the beginning of this agreement titled “Key Agreement Details”. |
Laws | Any applicable legislation, regulation, by-law, ordinance or subordinate legislation in force from time to time in the relevant jurisdictions where the Supply Goods are supplied or received and includes any industry codes of conduct. |
Personnel | In relation to a party, its representatives, employees, secondees, agents and subcontractors (who are individuals), including employees and contractors (who are individuals) of subcontractors. |
Supply Goods | The Supply Goods as set out in each Quote and Order placed, and as otherwise varied from time to time by written agreement between the parties. |
Territory | The Territory as set out in the Key Agreement Details. |
Website | Means https://hpaviationhoses.com.au/ and any of its subdomains. |
