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1. GENERAL

These Terms and Conditions are deemed to be incorporated into all contracts (expressed or implied) for the supply of goods to the Buyer and supersede all Terms and Conditions previously. These are the entire terms and conditions of all goods, merchandise and services (Goods) supplied by Hoctor Refrigeration Pty Ltd (ABN 57 203 893 054) to any person, firm or company placing an order with Hoctor Refrigeration (Customer), or where Goods are used during the provision of a service to the Customer (Terms and Conditions). Except as otherwise expressly agreed upon in writing between a duly authorised officer of Hoctor Refrigeration and the Customer, these Terms and Conditions shall apply notwithstanding any provisions to the contrary which may appear on any form or other document issued by the Customer.

2. INTERPRETATION

In these terms and conditions, unless the context otherwise requires:

  1. ‘The Seller’ means the legal entity stated on the top and /or front of this document, its related and subsidiary companies;

  2. ‘The Buyer’ means the person (including its successors, personal representatives and permitted assigns) acquiring goods from the Seller and where there is more than one buyer the covenants on their part contained herein shall be deemed to be joint and several covenants; and

  3. ‘Goods’ means all goods and/or services supplied by the Seller to the Buyer.

3. PRICING

Prices quoted are subject to exchange rate fluctuations. It is the policy of the Seller that all imported equipment has forward exchange cover unless otherwise agreed in writing with the Buyer. Prices listed are subject to alteration without notice to the Buyer between the date of listing and the date or dates of delivery, all goods will be charged for at the prices ruling at the date or dates of delivery.

4. GOODS AND SERVICES TAX (GST)

All prices quoted are exclusive of GST unless otherwise stated in writing. GST will be added where applicable at the rate ruling on date of invoice.

5. PAYMENT

  1. For imported items, made to order or goods that are a special purchase, the terms of payment are:  A deposit of 50% with the order, the remaining 50% payable prior to shipping.

  2. For contract work the terms of payment will be as set out in the final quotation accepted by the buyer.

  3. For all other purchases not incorporated in 5(a) or 5(b) the terms of payment shall be net cash in full prior to delivery unless a credit facility has been extended by the Seller to the Buyer and advised in writing. The Seller reserves the right to withdraw a credit facility at any time at its sole discretion.

  4. Without prejudice to any other rights or remedies of the Seller, where any payment is not made on the due date interest at the rate of 4% above the Seller’s overdraft rate (as certified by an officer of the Seller) from time to time shall be payable upon the amount outstanding, calculated from the due date of payment until payment is made in full,

  5. Where the Buyer fails to effect payment as required by sub-paragraph (a) hereof the Seller may, at its discretion, and without attracting any liability to the Buyer withhold delivery of all other goods for which orders have been placed by the Buyer and accepted by the Seller.

  6. The Seller reserves the right to set off any amounts owing to a Buyer against amounts owed by a Buyer before settlement of monies outstanding.

6. DELIVERY

  1. Any times given for delivery are an estimate and for guidance only. The Buyer shall not be relieved of any obligation to accept or pay for the goods by reason of any delay in delivery.

  2. The Buyer shall not be entitled to terminate the contract in the event of any kind whatsoever and, to maximum extent permitted by law, the Seller shall not be liable in any way whatsoever for or in respect of any loss or damage howsoever arising out of or in connection with or in relation to any failure to deliver or delay in delivery arising from any circumstances of whatsoever nature including, without limitation, delay by alterations to the contract or specifications of the goods or any other act or default on the part of the Buyer or by fire, flood, earthquake, storm, tempest, or other natural phenomenon, acts of riot, civil commotion, or any accident or failure or inability to obtain licenses or any order or direction of any local, state or federal government or governmental authority or instrumentality.

  3. If the Seller determines that it is or may be unable to complete its obligations within a reasonable time or at all, the contract may be terminated by the Seller. In the event of termination, the Buyer shall have no claim against the Seller for any damage, loss, cost or expenses whatsoever.

  4. The goods will be delivered Free-on-Truck at the Seller’s store and costs for delivery beyond this point shall be to the Buyers account unless otherwise agreed in writing. Where the buyer requests that the Seller arranges such delivery, the Seller shall select the route and the means of delivery. Delivery shall be made only to ground floor or kerbside areas with appropriate access and the Buyer shall ensure that appropriate equipment is available for offloading the goods from the transport vehicle.

  5. The Seller reserves the right to deliver by installments and each installment shall be deemed to be sold under a separate contract, failure of the Seller to deliver any installment shall not entitle the Buyer to cancel the balance or the order. If the Buyer is in default in respect of any installments, the Seller may elect to treat the default as a breach of contract relating to each other installment.

  6. At the time of delivery the Buyer shall inspect the goods and ensure that the goods comply with relevant specifications and descriptions agreed in the contract. Should the goods not comply the relevant specifications and descriptions agreed in the contract the Buyer must provide written notice within two days of delivery. If this does not occur it is deemed to have been accepted by the Buyer in good order and condition.

7. TITLE

  1. Title to the goods shall not pass to the Buyer and the goods shall remain the property of the Seller until such time as the invoice amount thereof and all other sums due from the Buyer to the Seller have been paid in full.

  2. From the time of delivery and pending payment the Buyer shall hold the goods as the Bailee of the Seller.

  3. Notwithstanding any nonpayment by the Buyer of the invoice amount for the goods the Title therein shall pass to the Buyer;

    1. where the Seller advises the Buyer in writing that Title has passed

  4. If the Buyer shall fail to pay for the goods in full prior to the due date or if the Buyer before then becomes bankrupt or commits any act of bankruptcy or compound with its creditors or have judgment entered against it in any Court or go into liquidation whether voluntary or otherwise or have a Receiver or Manager appointed or given any security over its stock or plant, the Seller is irrevocably authorized at any time thereafter to enter upon any premises where the goods are situated and to take possession of and remove them and use the Buyer’s name and to act on his behalf in exercising such rights.

  5. Subject to Clause 7(a) the buyer shall be entitled to sell the goods in the ordinary course of its business. In the event that the Buyer uses the goods in some manufacturing or construction process of its own or some third party or on-sells the product the buyer shall hold such proceeds of such manufacturing or sale in trust for Seller, such part or shall be deemed to equal in dollar terms the amount owing by the Buyer to the seller at the time of the receipt of such proceeds. The buyer shall not remove or cover any identifying mark and shall not affix any identifying mark until payment for the goods has been made in full.

  6. The buyer’s right to sell the goods in the ordinary course of its business:

    1. may be revoked at any time by the seller giving notice to that effect if the Buyer is in default for longer than seven days in the payment of any sum whatsoever due to the supplier.

    2. shall automatically cease if a receiver, controller, liquidator or administrator is appointed to the assets, undertaking or property of the Buyer, or a winding up order against the Buyer is made or petitioned, or any petition or order in bankruptcy against the Buyer is present or make, or the Buyer goes into voluntary liquidation or calls a meeting or makes arrangements or compositions with its creditors.

  7. Until the Seller has received payment in full for the Goods invoiced and delivered:

    1. The Buyer must not charge the Goods in any way, nor grant or otherwise give any interest in the products without the written consent of the Buyer.

    2. The Seller may give notice in writing requiring the Buyer to return the Goods or any of them to the Seller and if the Buyer fails to return the Goods within a reasonable time then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Buyer where the Goods are situated as the invitee of the Buyer to take possession and  remove the  Goods and the Seller shall not be liable for any damage, injury or loss however caused resulting from the recovery of the Goods.

  8. The Buyer acknowledges that:

    1. These terms and Conditions constitute a security agreement for the purposes of the Personal Property Securities Act 2009 (Cth) and regulations made under that Act (“PPSA”).

    2. Under this security agreement the Seller is the secured party, the Buyer is the grantor and the Goods supplied by the Seller to the Buyer pursuant to these Terms and Conditions is “collateral”, including Goods that are supplied to the Buyer both before and after this security agreement is made.

    3. The Buyer grants a “purchase money security interest” to the Seller in the Goods as collateral pursuant to this security agreement for the purposes of the PPSA.

    4. The Seller has or will register its purchase money security interest in the Goods as collateral in accordance with the PPSA.

    5. At the Sellers request, the Buyer must at its cost do anything considered by the Seller in its absolute discretion to be necessary for the purposes of ensuring that the Seller’s purchase money security interest is able to be registered on the Personal Property Securities Register and is enforceable, perfected and effective so as to give the Seller priority for the purchase money security interest in the event of insolvency of the Buyer or otherwise.

    6. The Seller is not required to give the Buyer any notice under the PPSA (including a notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.

8. CANCELLATIONS & RETURNS

  1. Returns
    1. No Goods listed in the Seller’s price list will be accepted for return by the seller unless a prior request (which may be accepted or refused by the Seller in its sole and absolute discretion) is made and an approval number given by the Seller. A fee of 20% of the price of the relevant goods will be charged upon the return of the goods. All costs for the repackaging, transport and repair of returned goods shall be borne by the Buyer.
    2. No goods will be accepted for return where the goods are not listed in the Seller’s price list.
  2. Cancellations
    1. In the case of goods listed in the Seller’s price list, a fee of 20% of the agreed selling price of the relevant goods will be charged to the Buyer upon cancellation of any order.
    2. In the case of goods not listed in the Seller’s price list, upon cancellation of an order, a fee equal to 150% of the cost incurred and expected to be incurred by the Seller in relation to the goods shall be charged to the Buyer.

9. RISK

  1. Risk of loss or damage in the goods shall pass to the Buyer upon delivery of the goods to the Buyer or the agent of the Buyer or to a carrier commissioned by the Buyer or by the Seller.

  2. The Buyer shall, at his expense, insure the goods in its name and the name of the Seller against any such loss or damage to, or loss of, the goods for their full replacement value and keep them so insured until the goods are paid for in full. 

10. WARRANTY

  1. Except for any express warranty given by it, the Seller excludes all conditions, warranties and terms implied by statute, general law or custom, except any implied condition or warranty the exclusion of which would contravene any statute or cause this clause to be void (“Non-excludable Condition”).

  2. The Seller accepts no liability for any loss or damage direct or indirect of or to any person or property arising from the installation or operation of goods including consequential loss or damage arising from any circumstances whatsoever, except under a Non-excludable Condition.

  3. Subject to Clause 10(b) the Seller undertakes to repair, replace or supply (at the Sellers option) all brand new goods and components thereof supplied by it which the Seller in its sole and absolute discretion deems to be defective in materials or workmanship under proper, normal and recommended conditions of use and maintenance. This undertaking unless otherwise confirmed in writing by the Seller covers the provision of labour and parts for 12 months from due date of commissioning of the goods by the Seller’s authorized representative or alternatively 30 days after dispatch of the goods from the Seller’s store, whichever of these shall occur first. If the goods are not installed in accordance with the manufacturer’s written instructions, the Seller may at its sole discretion render the warranty partially or wholly invalid.

  4. The Seller’s undertaking in paragraph 10(c) does not extend to goods and components thereof manufactured either entirely or substantially of glass or similar substances, light globes, infrared or quartz tubes and electrical controls or elements, neither is it extended to include consumable items such as oils, lubricants, cleaning materials and accessory tools.

  5. The Seller’s undertaking in paragraph 10(c) does not extend to include the repair of damage nor to adjustments to equipment as a result of external influences including, but not limited to, lightning strikes, electrical disturbances, water supply disturbances and drainage faults.

  6. The Seller’s undertaking in paragraph 10(c) does not extend to second-hand or re-conditioned goods and components supplied. All second-hand or re-conditioned goods 

  7. Training of operators (where applicable at the sole discretion of the seller) is normally conducted during commissioning of the equipment. Re-training of existing operators and training of newly assigned operators after commissioning is not classified as warranty and may only be carried out on a chargeable basis.

  8. The liability of the Seller under this warranty is limited to the repair or replacement of defective goods or components, all other costs including, without limitation, cartage, carriage and installation shall be borne by the Buyer. Goods or components which fail as a result of operator error, misuse, abuse and inappropriate operation will not be repaired or replaced under warranty.

  9. While the goods are in the custody of the Seller for investigation or repair, they shall be at the risk of the Buyer and no liability shall attach to the Seller, its servants or agents for any damage occasioned to, or loan of, the goods howsoever arising, 

  10. To obtain the benefit of this warranty, the Buyer must give notice to the Seller immediately upon it becoming aware of the alleged defect and in any event before the expiration of the said twelve month period.

  11. Warranty repairs are carried out during the Seller’s normal business hours (usually 07.00 hrs to 15.30hrs) Monday to Friday excluding designated Public Holidays. Repairs may be available at times other than normal warranty hours but will not be treated as warranty and will be subject to call-out fees and hourly charges, including penalty rates where applicable.

11. TERMINATION

If any payment is outstanding for more than seven (7) days after the due date (whether legally or formally demanded or not) or the Buyer fails to observe or perform any of these terms and conditions or a resolution is passed or proposed or a petition is presented or an application filing for the winding up of the Buyer or an administrator, receiver or receiver and manager is appointed in respect of the property or any part of the property of the Buyer or the Buyer (being a Seller) is de-registered or the Buyer makes or proposes to make an arrangement with its creditors or the Buyer is placed under official management or execution is levied upon the assets of the Buyer and is not satisfied within seven (7) days, the Seller may at any time thereafter terminate any contract for the sale of goods summarily by notice in writing the Buyer but without prejudice to the rights of the Seller hereunder including its rights to demand and sue for all outstanding amounts owed by the Buyer to the Seller.

12. GOVERNING LAW

These Terms and Conditions shall be governed by and construed in accordance with the laws of Victoria, Australia.  Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Victoria in connection with matters concerning these Terms and Conditions or the transactions contemplated by them.

 

 

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