- Scope of Agreement
Notwithstanding anything contained in any correspondence that has gone between us, these terms and conditions together with HyperWeb’s quotation (if any), constitute the entire agreement between us in regards to the goods and services stated in the quotation (or in your order) and will prevail over all prior negotiations, proposals or correspondence or previous dealings between the parties.
You acknowledge that by entering into this agreement, you have not relied on any representation from us other than those expressly set out in this agreement.
- Cost Increases
Any increase in costs beyond our control will result in the price being increased by the same amount. The term “costs” includes statutory charges, the price paid by us for raw materials, components, goods or services (including and dependent on rates of overseas exchange, customs duty, insurance, freight & tariff), labour rates (including and dependent on the statutory hours per week, workers’ compensation, long service leave, superannuation, sick and holiday pay & public holidays) and any other costs beyond our control.
- Completion Dates
Time will not be of the essence under this Agreement. Dates given for completion are stated in good faith but are not to be treated as a term of this Agreement.
Unless warranted in writing by us to the contrary, completion dates are approximate only and although every reasonable effort will be made by us to complete the work by the estimated completion date, any failure by us to deliver by any particular date will not entitle you to cancel the Agreement or claim compensation.
We will not be liable for failure to complete or delays in fulfilling the order where fulfilment is prevented, delayed or hindered by any act or omission on your part (or on the part of anyone acting on your behalf).
All completion dates are dependent upon the timely receipt by us of your instructions and all necessary particulars required for provision of the services.
- Force Majeure
We are not liable for any failure to deliver, or delay in the completion due to any cause beyond our reasonable control, including but not limited to acts of God, acts of civil or military authority, fires, epidemics, floods, riots, wars, sabotage, labour disputes, governmental actions or inability to obtain materials, components, energy, manufacturing facilities, or transportation. If any such delay occurs, the date of delivery or completion of this Agreement is extended by a period equal to the time lost by reason of such delay.
- Assignment of Rights
We are entitled at any time to assign our rights under this Agreement to our successors, nominated transferees or assigns.
We may assign, sub-contract or otherwise transfer any right, obligation or benefit under this Agreement, or any part thereof, to any other party without your consent.
- Retention of Title in Goods Sold
If our scope of work includes goods supplied to you by us, then until each invoice is paid in full, ownership of the Goods remains with us. Title to the Goods passes to you only when we receive full payment. You agree that we may register our security interest in the goods under the Personal Property Securities Act 2009.
Risk in any goods passes to you on delivery.
- Warranty for Services
Unless otherwise required by law or stated in our quotation or agreed by us at the time of acceptance of your offer, the warranty period for the supply of services is three months from the date of completion of the service (“Services Warranty Period”).
We warrant that the services will be provided in accordance with the description contained within our quotation and that they will be provided with all due care and skill. However, except to the extent otherwise required by law we will not be liable for any failure to provide the services as aforesaid unless you notify us in writing of your claim within the Services Warranty Period.
The warranty does not apply to the extent that you (or anyone on your behalf) makes modifications to the goods or services supplied by us.
- Warranty Conditions – Australian Consumer Law
If you are a Consumer (as that term is defined in the Australian Consumer Law) and there is a breach by us of any warranty provided by us in regard to the goods or services provided under this Agreement then we will:
(a) repair or replace the Goods or relevant parts;
(b) resupply or rectify the services; or
(c) where we determine that it is not feasible to repair or replace the Goods or rectify the services, refund to you the amount invoiced for the Goods or services.
To claim the warranty you must write to us within the relevant Services Warranty Period specifying the nature of the defect, breach or non-conformance. All written correspondence must be sent to:
PO Box 4029
Kotara East NSW 2305
If you make a warranty claim in accordance with this clause 8, you will be responsible for all expenses associated with the warranty claim other than the costs of the repair, replacement, rectification or refund for the Goods or services including the cost of returning any defective Goods to us.
The benefits to you of this express warranty are in addition to other rights and remedies you have under the Australian Consumer Law.
All other terms, conditions, warranties and guarantees implied or imposed by statute, common law or otherwise in relation to the goods (including without limiting the generality of the foregoing any implied or imposed warranty or guarantee that the Goods are suitable or fit for any particular use or purpose or that the goods will comply with a sample) or the services are hereby excluded, except for any warranties or guarantees which may not be excluded according to applicable law.
- Limitation of Liability
We will not under any circumstances be liable for any contingent, indirect, consequential or special losses (including but not limited to loss of profit or income, loss of business opportunity, business interruption, increased expense of operation or any financing and holding costs), damages or injuries arising directly or indirectly from this Agreement or any performance or failure to perform this Agreement, whether in contract, tort, negligence, strict liability or otherwise, including (but not limited to) our negligence, default or misconduct even if informed of the possibility of such damages.
If you are not a Consumer, to the extent permitted by law:
- we are not liable to you for any loss or for damage to persons or property or for death or injury caused by any act or omission (including negligent acts or omissions) by us or our employees or contractors, wherever occurring, arising from the subject matter of this Agreement; and
- our liability to you for any other obligation, breach, or liability is limited and completely discharged by the payment of one dollar.
If you are a Consumer, our liability for the failure to comply with a guarantee required under the Australian Consumer Law is limited as follows:
- if the failure cannot be remedied or is a major failure as defined in the Australian Consumer Law (a “Relevant Failure”), our liability is as stated in the Australian Consumer Law in respect of that Relevant Failure; and
- if such failure is not a Relevant Failure, then in our absolute discretion:
- if the failure is in respect of services, our liability is limited to the supply of those services again or the payment of the cost of having those services resupplied;
- if the failure is in respect of Goods, our liability is limited to replacement of the Goods, the supply of equivalent goods, the repair of the goods or the cost of replacing the goods or having them repaired.
For all other liability arising in connection with these Terms of Trade (including but not limited to breach of contract, tort, negligence or under an indemnity), then to the extent permitted by law, our liability is limited and completely discharged by the payment of one dollar.
All invoices must be paid in full (without any set-off or counterclaim) and payment must be received by us within 30 days of the date of the invoice. Payment is only received by us when the payment is made in cash, or when the proceeds of other methods of payment are cleared and credited to our bank account.
Should payment not be made in accordance with our payment terms, we may in addition to our other rights charge you weekly interest on the overdue amount based on the prevailing Commonwealth Bank of Australia base corporate overdraft rate for facilities over $100,000 plus 3%, calculated from the date payment was due to the date of full and final payment. Payment will be first credited against interest accrued. If you fail to pay any amount to us when due whether in respect of this or any other agreement between us, we may in addition to any other rights we may have, either suspend further work or terminate this Agreement, in which event we will be entitled to payment from you for work performed. We may withdraw or suspend credit facilities at any time without notice to you.
- Intellectual Property
You acknowledge and agree that all intellectual property rights in the services supplied by us are owned exclusively by us, except for copyright in designs, specifications or drawings provided by you (and in that regard, you warrant that you are the owner of the intellectual property rights in that material and indemnify us for any breach).
You must not without our prior written consent decompile, disassemble, reverse engineer, manufacture, duplicate or modify any of the services or components thereof nor reproduce, copy or disclose nor permit others to reproduce, copy or disclose any of our designs or copyright works.
- Termination of Agreement and other rights
If you default in due observance or performance of any or all of your obligations under this agreement or, if you are a person, die or commit an act of bankruptcy, or if you are a company and you take or have taken against you any action for the winding up or the placing of the company under official management, administration, liquidation or receivership, we may without prejudice to any other rights herein or at law give notice to you of our intention to do any one or more of the following:
(a) treat the agreement as repudiated, terminate and sue you for breach; and /or
(b) suspend the works; and / or
(c) claim the return of all Goods where title has not yet transferred to you; and/ or
(d) retain any security given or monies paid by you and apply this against the assessed loss and damages incurred by us in performing the contract; and / or
(e) make all outstanding amounts immediately due and payable.
- General Matters
This agreement is governed by the laws of New South Wales, Australia and the parties agree to submit to the non-exclusive jurisdiction of the Courts of that State.
If any part of this Agreement is declared legally invalid or unenforceable, the provision should be read down to the minimum extent necessary to render it enforceable and valid, and if incapable of being read down, it will be severed from the remainder of these conditions which will not be affected by such severance.