Terms & Conditions of Sale
1.1 In these terms and conditions of sale:
- “We” or "us" or ”the Supplier" means Hayward Pool Products (Australia) Pty Ltd (ACN 083 413 414) and any Related Body Corporate as defined in Section 9 of the Corporations Act (hereafter referred to as “Hayward”).
- “you” means the Customer stated in the Application and any other person offering to contract with us on these terms and conditions or, where such person is acting in the course of employment, such person's employer,
- ”Goods" means goods supplied by us to you from time to time.
- “Services” means any work undertaken by us for you.
- “Agreement” means the agreement for the purchasing Goods and services on credit (and amendments to those terms and conditions as amended from time to time).
2.1 You will purchase and we will supply goods and services to you on the following terms and conditions, however we are not obliged to supply to you when requested to do so.
2.2 All additions and amendments to the terms and conditions must be in writing signed by us.
3. QUOTATIONS AND ORDERS
3.1 Any quotation or price list given by us to you does not constitute an offer to sell goods or services to you. We reserve the right to alter the quote or price list without notice to you.
3.2 By ordering goods and services, you are making a binding offer to purchase those goods and services. We may notify you of our acceptance of your order in writing. Alternatively, our delivery of goods and services pursuant to your order shall be deemed acceptance of your offer to purchase.
4. PRICES, GST, FREIGHT AND INSURANCE
4.1 All prices quoted are inclusive of freight if they meet the minimum order value. The Supplier shall determine the minimum order value.
4.2 All goods are supplied on a firm sale basis unless otherwise stated in writing.
5.1 You agree that until we confirm that credit terms have been granted to you, all goods are supplied on a cash before delivery basis.
5.2 Unless otherwise agreed, all amounts owing to the Supplier on account of goods and services supplied to you on credit are due and payable by the last working day of the month following dispatch of invoices to you,
5.3 You agree that if you fail to pay in accordance with this clause 5.2, we may:
- (charge interest on debts at 2.5% above the rate prescribed pursuant to the Penalty Interest Rates Act (Vic) from time to time; and
- charge a dishonour fee, where a cheque is dishonoured by your bank; and
- recover all collection costs and expenses (including collection agency fees), including legal expenses on a solicitor/own client basis incurred in collecting overdue accounts; and
- withhold supply.
5.4 Any forbearance by us in charging any of the fees set out in clause 5 does not constitute a waiver of our right to do so in the future.
6. RISK IN THE GOODS
Subject to clause 7.2, the risk of loss or damage to the Goods passes to you on the date and at the time that the Goods are removed from the Company's warehouse for the purpose of delivery to you.
7.1 We reserve the right to deliver Goods by instalments. Any delivery times notified to you are estimates only. If you request us to postpone delivery of the Goods beyond the delivery date or dates specified in your order, we may agree to do so if you agree to pay an additional fee for such postponement.
7.2 If we do not receive delivery instructions sufficient to enable us to dispatch the Goods within days of you being notified that the Goods are ready for delivery, you shall from the fifteenth day after notification
- be deemed to have taken delivery of the goods;
- be liable for storage charges, payable monthly on demand;
- assume risk in the goods.
8. CLAIMS AND LIABILITIES
8.1 Any claim by you as to breach of these terms and conditions by us must be made to us in writing within 7 days of delivery of the invoice. Time is of the essence.
8.2 You have the benefit of conditions and warranties implied by the Competition and Consumer Act 2010 (The Act") and nothing in these terms and conditions is intended to exclude, restrict or modify any statutory obligation we have. References to specific provisions of and circumstances arising under the Act are not intended to include reference to equivalent similar provisions of and circumstances arising under any State or Territory enactment.
8.3 Should we be liable for breach of a condition or warranty implied by the Act, our liability for the breach will, subject to the Act, be limited to one of the following as determined by us:
- the replacement or repair of the goods or services or the supply of equivalent goods or services; or
- the payment of the cost of replacing or repairing the goods or services or of acquiring equivalent goods.
- to the full extent permitted by law, all express and implied terms, other than the ones set out in these terms and conditions are excluded;
- to the full extent permitted by law, we are not liable for any injury to or death of any person or loss (including loss of profits or consequential loss) or damage to property arising from any act or omission of you, us or any other person (including any loss or damage arising from our negligence);
- you indemnify us against
- any claims made against us by any third party in respect of any loss, damage, death or injury as is set out in 8.4(b); and
- all losses and expenses which we may suffer or incur due to your failure to observe fully your obligations under the Agreement incorporating the terms of the application; and
- we make no representation, warranty or undertaking about the compliance of the goods or services with any statutory requirements relating to the marketing of goods. You acknowledge that you alone are responsible for compliance of the goods and services with this legislation.
8.5 We will not be responsible for non delivery or delay in delivery of any goods and services due to any cause beyond our reasonable control, notwithstanding that the cause may be operative at the time of entering the contract of sale. Where such delivery or delay occurs, we may deliver the goods and services not delivered or delayed at any subsequent time and you must accept and pay for them.
8.6 Where we give a date of intended delivery, this will be subject to the goods and services ordered being available and our being able to make the delivery on that date.
The Company warrants the Products to be free from defects in materials or workmanship for a period of twelve (12) months from the date the Product is installed by the Customer at its customer’s site or fifteen (15) months from the date of delivery of Products to the Customer whichever is the earlier date, provided that:
- Such warranty shall only apply to Products which have been properly installed and used in accordance with the Company’s recommendations or directions;
- Such warranty shall not apply to any Products which have been damaged as a result of incorrect or abnormal use, misuse, neglect, improper installation, failure to comply with the Company;s recommendations or directions or exposure to corrosive or other inappropriate conditions.
- Any claim for defects must be submitted to the Company in writing setting out comprehensive details of the claim prior to expiry of the said twelve month period, failing which the claim shall have no effect;
- The Company shall have no liability under such claim unless the Products, which are the subject of the claim, are preserved intact and are made available for inspection by the Company or its representatives and on request.
- Any products returned to the Company shall be returned to it at the cost of the Customer.
- Filtration systems are designed for use on swimming pools and spa pools and no warranty or guarantee is provided as to its suitability in other uses.
10. RETURNED GOODS
10.1 Where goods are returned to us, credit will only be issued under the following conditions:
- A return credit ("credit”) authority number must be obtained from the supply point prior to the return of any goods. We may refuse to give a credit or accept the return of any goods;
- You must provide the invoice number and date of purchase before a credit will be issued;
- The credit authority number must be clearly marked on the packaging of goods returned to us. Failure to comply with this requirement could result in our refusing to accept delivery of the returned goods.
10.2 All claims for credit must be supported by:
- Carriers consignment note or similar receipt of delivery;
- Our relevant invoice number; and
- The credit number issued by Hayward.
10.3 Without in any way limiting our discretion to refuse to accept the return of any goods, the following goods will not be returnable:
- Any goods that have been held by you for more than 14 days; or
- Any goods which are not in original condition;
- Any goods that are manufactured as made to order unless faulty – any manufacturing surcharge is non-refundable
10.4 We will only recognise claims for faulty goods that are lodged within seven days of you receiving the goods.
10.5 Goods must be returned by the carrier specified by us.
10.6 You agree to pay us a restocking fee of 20% in excess of 30 days of purchase and 50 % in excess of 60 days of purchase.
11. RETENTION OF TITLE
11.1 In relation to goods supplied to you:
- Property in those goods shall remain with us until the latter of:
- Payment in full for the goods and services; and
- Payment in full of all other monies owing as unpaid by you to us including monies in respect of goods and services previously or subsequently supplied to you by us:
- Where goods have been fully paid for they must be kept separate from unpaid goods otherwise where there is co-mingled stock property in the goods will revert back to the supplier irrespective of whether the goods have been fully paid for.
- The relationship between you and us shall be fiduciary;
- You will hold the goods as bailee for us;
- Where you sell those goods, you have no power to commit us to any contract or liability, but as between you and us, you will sell as fiduciary agent;
- We will be given full ownership of any new goods or objects formed if you transform our goods into other products or affix those goods to other objects;
- Where those goods are disposed of, the monies resulting from the disposal and all other , (tangible or intangible) received in respect of the goods, including insurance proceeds will be held separately in trust for us;
- Where those goods are disposed of, you may only dispose of the goods in the ordinary course of your business on commercially reasonable terms; You will keep records of those goods.
11.2 You undertake that until you deliver the goods to a third party, you will store the goods on your premises separately from your own goods, and those of any other person, and in a manner which makes the goods readily identifiable as our goods.
11.3 You agree that our employees or agents may enter upon your premises (doing all that is necessary to gain access) where it is reasonably thought goods supplied under this agreement might be stored for the purpose of examining or recovering the goods.
12.1 You hereby charge in favour of us:
- Any land that you own (or, acquire after the date hereof) as security for any and all monies, owing to us and hereby authorise us to register a caveat over the land if you default in making payment of any amount due to us;
- All your personal property including, without limitation, all the stock, motor vehicles, plant, equipment and debtors that you own (or acquire after the date hereof) as security for any and all monies owing to us and hereby authorise us to register, with any competent authority the charge over the property, if you default in making payment of any amount due to us.
You agree that:
13.1 We may set off any credit amount that we owe to you against any debit due by you to us;
13.2 You are not entitled to withhold payment of any money in respect of any set off or claim you have against us.
14. ACTS OF DEFAULT
- fail to pay for any goods and services on the due date; or
- otherwise breach this Agreement and fail to rectify such breach within 7 days notice; or
- you cancel delivery of the goods; or
- commit an act of bankruptcy; or
- allow a trustee in bankruptcy or receiver and manager to be appointed to you or any of your property; or
- allow distress to be levied by a judgement, order or security to be enforced, or to become enforceable against your property; or
- are a company; and.
- proceedings are commenced to wind you up or any of your subsidiaries; or
- a controller, receiver, administrator, liquidator or similar officer is appointed to you or in respect of any part of your property; then we and our agents may enter upon your premises (doing all that is necessary to gain access) where goods supplied under this contract are situated at anytime and retake possession of any or all of the goods we have supplied to you.
14.2 We reserve the right to resell the repossessed goods; and
14.3 terminate the Agreement.
If we conduct a resale pursuant to this clause:
15.1 we may do so at our premises or any other place; and
15.2 the resale may, at our discretion, be by public or private sale; and
15.3 we may recover from you as liquidated damages for our loss of bargain, the difference between the re sale price and the unpaid price (together with any incidental damages, such as holding expenses and charges but less expenses saved as a result of your breach), if applicable goods cannot be sold within 3 months of the first attempted sale, those goods will be deemed to have a re sale price of nil.
16. GOVERNING LAW
This contract is governed by the Law of Victoria. You and the Supplier irrevocably submit to the exclusive jurisdiction of the Victorian Courts and Federal Courts sitting in Victoria.
17. NOTICE OF WAIVER OF RIGHT TO VERIFICATION STATEMENT FOR THE PURPOSE OF SECTION 157 PERSONAL PROPERTY SECURITIES ACT 2009
The Customer and the Guarantors, jointly and severally acknowledge:
- The Supplier may be making application pursuant to Section 150 of the Personal Property Securities Act 2009, (“the Act”) to the Registrar of Personal Property Securities, to register a:
- Financing Statement relating to any condition in these Terms of Supply applicable to a security interest or prescribed personal property; and/or
- Financing Change Statement to amend a Registered Financing Statement relating to a security interest or prescribed personal property.
- On registration of any such Financing Statement or Financing Change Statement, pursuant to Section 156 of the Act, the Registrar will issue to the Supplier as the secured party, a Verification Statement in relation to the registration event.
- Pursuant to Section 157 of the Act, the Customer as grantor of the security interest will be entitled to notice from the Supplier of the Verification Statement unless:
- The registration event relates to commercial property of the Customer, (as defined in the Act); and
- The Customer has, in writing, waived the Customer’s right to receive notice of the Verification Statement.
In consideration of the Supplier accepting the Customer’s application for credit and the Customer’s request for supply of goods and/or services, the Customer and each of the Guarantors, as testified by their separate execution of this clause, jointly and severally waive, its, his, hers and their right under Section 157 of the Act to receive notice of a Verification Statement received by the Supplier in relation to registration of a Financing Statement or a Financing Change Statement, arising from a security interest provided by the Customer pursuant to these Terms of Supply.
18. WHOLE AGREEMENT
This Application and terms and conditions embody the whole agreement between the parties and subject to the express terms contained in any written order or written acceptance thereof, all previous dealings, representations and arrangements are hereby excluded and cancelled.
19. CESSATION OF SUPPLY
Our agreement to continue to deliver or sell goods to you is always conditional upon our being satisfied of your ability to pay and comply with these terms and conditions. If we cease to be so satisfied we may suspend and/or terminate deliveries and shall not be liable in any way for any claim, damage, expense or cost suffered by you.
Should any part of these terms and conditions be held to be void or unlawful, these terms and conditions shall be read and enforced as if the void or unlawful provisions have been deleted.