Truck Components Webshop
1. Definitions
In this document ("Terms and Conditions"):
(a) "Contract" means the contract formed between HYVA and the Customer by an Order accepted by an Order Acknowledgment;
(b) "Customer" means the person placing the Order with HYVA;
(c) "Goods" means any goods, Goods, services or materials to be supplied by HYVA;
(d) “HYVA” means Hyva Pacific Pty Ltd;
(e) unless otherwise stated, an expression used or defined in the Corporations Act 2001 has the same meaning in the Terms and Conditions.
2. Registration of Account
(a) The Truck Components Webshop (Webshop) is run by:
72 Glenwood Drive
Thornton, NSW 2322
Australia
+61 (0)2 4966 3777
(b) To order Goods via the Webshop, the Customers need to register an Account online either in advance or at the moment of placing an Order.
(c) To register, Customers shall follow three steps: (1) complete the Registration Form online, (2) click on the "Sign up" field and (3) confirm the intention to create an Account by clicking on the confirmation link sent automatically to the email address provided by a Customer.
(d) When registering in advance, the Customers must provide their email address and create a password. If registering at the moment of placing an Order, the Customers will be required to provide additional information required for handling of an Order: registration number, name and surname / company name, address (street, house / flat number, zip code, city, country), e-mail address, contact telephone number. Professional Customers are also required to provide their ABN.
(e) Registration of Account is free. The account will remain active for two years from the date of last log-in. Customers may at any time delete the Account by sending a request to HYVA at sales@truckcomponents.com.au.
3. Orders, Order Acknowledgments and Contract
(a) An order or an offer to purchase (Order) can be made by the Customer by simply:
(i) adding the Goods to the electronic basket;
(ii) completing the identified order form; and
(iii) clicking on the “Order with the obligation to pay”; or
(iv) by calling HYVA on +61 (0)2 4966 3777; or
(v) by emailing sales@truckcomponents.com.au.
(b) An Order is accepted when the Customer receives from HYVA an order acknowledgment in writing, sent to the provided email address (Order Acknowledgement). HYVA will use its best endeavours to confirm any order within 10 days of placement.
(c) When an Order is accepted by an Order Acknowledgment the Contract will be wholly documented by (in descending order of precedence) any specific term(s) agreed in writing, the Order Acknowledgment and these Terms and Conditions.
(d) Previous dealings between HYVA and the Customer shall not have any effect on the Contract.
(e) Trade custom and/or trade usage is superseded by the Contract and shall not be applicable in the interpretation of the Contract.
(f) This Contract constitutes the entire agreement between HYVA and the Customer with respect to the Goods supplied under the Contract. All prior negotiations, proposals and correspondence are superseded by that Contract and these Terms and Conditions will in all circumstances prevail over the Customer's terms and conditions of purchase (if any).
(g) By placing an order, opening an account or registering for the newsletter a Customer is deemed to have accepted these Terms and Conditions and agreed to be bound by them.
4. Prices
(a) Unless otherwise agreed in writing, the price charged for the Goods shall be:
(i) exclusive of any transaction tax (“transaction tax” includes the goods and services tax as well as any identified or new transaction taxes that come into existence after the effective date of these Terms and Conditions), and
(ii) as per the price ruling as determined by HYVA at the date of delivery. Any price indications or price lists are subject to alteration in accordance with the price ruling as at that date of delivery;
(iii) as shown on the website in Australian dollars.
(b) Where a transaction tax applies to any supply made under these Terms and Conditions, HYVA may recover from the Customer an additional amount on account of that transaction tax.
(c) Notwithstanding any provision in the Contract, HYVA may increase the price of Goods after an Order Acknowledgment and prior to delivery of the Goods if the price increase results from an increase in the price of any inputs which comprise part of the Goods.
5. Delivery
(a) HYVA will make all reasonable efforts to have the Goods delivered to the Customer or his designated agent as agreed between the parties (or if there is no specific agreement then at HYVA’s reasonable discretion), but HYVA shall not be liable for:
(i) any failure to deliver or delay in delivery for any reason; or
(ii) any damage or loss due to unloading or packaging; or
(iii) damage to property caused upon entering premises to deliver the Goods.
(b) Any costs incurred by HYVA due to any failure by the Customer to accept the Goods at time of delivery will be reimbursed by the Customer to HYVA. Except as required by law, HYVA will be under no obligation to accept Goods returned for any reason.
(c) HYVA only delivers the Goods to, and within, Australia.
(d) The Customer will inspect and check all Goods received as soon as practicable upon unloading. If Goods received are not what a Customer has requested, there are shortages or the Goods were damaged during delivery arranged by HYVA, Customers are entitled to reject Goods or ask for rectification. In this case, Customers shall inform HYVA about this as soon as possible but not later than within 7 working days of delivery by emailing HYVA at sales@truckcomponents.com.au. HYVA will respond to the email and provide instructions regarding the manner of returning Goods or will endeavour to rectify any shortages as soon as practicable. Goods need to be returned immediately after the return instructions have been provided in the same condition in which they were received at HYVA’s cost. If HYVA confirms the acceptance of the rejection, HYVA will either (a) dispatch the correct Goods or replacement Goods; or (b) refund the purchase price.
6. Payment
Payment for the Goods must be made in full (without any set off) and received by HYVA prior to delivery. Payment is only received by HYVA when it receives cash or when the proceeds of other methods of payment are credited and cleared to HYVA’s bank account.
7. Title and related matters
(a) The legal and equitable title to the Goods will only be transferred from HYVA to the Customer when the Customer has met and paid all that is owed to HYVA on any account whatsoever.
(b) Notwithstanding the above, the Customer is still required to pay HYVA for Goods already delivered and for Goods manufactured or ordered to specification and not yet delivered.
8. Default
(a) The Customer will be in default if:
i) the Customer breaches the Terms and Conditions;
ii) payment for the Goods has not been received by HYVA by the due date of payment;
iii) the Customer being an individual commits an act of bankruptcy or becomes an insolvent under administration;
iv) the Customer being a body corporate becomes an externally-administered body corporate or has an application for winding up filed against it;
v) HYVA forms the opinion that the Customer's credit worthiness or credit standing alters from that indicated in its Application.
(b) If the Customer defaults, HYVA may:
i) treat the whole of the Contract and any other Contract with the Customer as repudiated and sue for breach of contract; and/or
ii) refuse to supply any Goods to the Customer; and/or
iii) claim the return of any Goods in the Customer's possession where title has not passed to the Customer; and/or
iv) without notice to the Customer withdraw or vary any credit HYVA has provided to the Customer; and/or
v) without notice to the Customer make all monies owing by the Customer to HYVA on any account immediately due and payable;
9. Risk
Risk in the Goods passes to the Customer upon delivery (including all risks associated with unloading) or upon title in the Goods passing to the Customer, whichever is the earlier.
10. Credit
(a) HYVA may grant the Customer credit upon the Terms and Conditions on the basis of the Application and such other documents and information as may be required by HYVA.
(b) Until HYVA grants the Customer credit by notice in writing, HYVA will only supply Goods to the Customer on the basis of cash in advance.
(c) The granting of credit does not oblige HYVA to extend any particular amount of credit to the Customer.
(d) The Customer must notify HYVA in writing if there is any change in the shareholding or ownership of the Customer or any material change in the Customer's financial position.
(e) The Customer agrees that if requested by HYVA the Customer will:
i) charge in favour of HYVA all beneficial interests (freehold and leasehold) in real estate held now or in the future by it as security for payment of all and any moneys payable by the Customer to HYVA.
ii) execute a mortgage or other instrument of security in form requested by HYVA.
11. Intellectual Property
(a) The Customer warrants to HYVA that any documents provided by the Customer are accurate and that HYVA is entitled to use all such documents for the purposes of the Contract and that such use does not infringe any third party's intellectual property rights.
(b) The Customer indemnifies HYVA against all claims and all losses and damages incurred by HYVA as a result of documents provided by the Customer to HYVA for the purposes of or in the course of the supply of the Goods breaching a third party's intellectual property rights.
(c) If the Customer receives any confidential information from HYVA the Customer may not use or disclose such information unless it receives the prior written consent of HYVA, such information enters the public domain (other than as a result of a breach of this paragraph) or the use or disclosure is required by law.
12. Force Majeure
HYVA is not liable for failure to perform the Contract to the extent and for so long as its performance is prevented or delayed because of:
(a) circumstances outside HYVA's control;
(b) failure of HYVA's machinery; or
(c) failure of a supplier to HYVA.
13. Representations and Fitness for Purpose, Warranty
(a) Except as expressly provided to the contrary in the Contract, all representations, warranties, terms and conditions in relation to the Goods (whether implied or otherwise) are hereby excluded to the maximum extent permitted by law.
(b) The Customer agrees that if it is aware (or should be aware) that the Goods, the subject of an Order, are for a particular purpose (including, but not limited to, use as a component part of another product) or are required to possess special or uniform characteristics, the Customer will clearly specify that purpose or those characteristics in any such Order.
(c) For HYVA Group branded Goods, HYVA warrants that the Goods will be free of defects in product material and workmanship for all new Goods for twelve (12) months from the date of first use of the product subject to the terms and conditions of HYVA Warranty Conditions available at www.hyva.com/en/warranty/standard-warranty-terms-and-conditions/. Other brands may have different warranty conditions.
(d) Customers shall inform HYVA about the presence of any alleged defect as soon as possible after the defect is discovered within the applicable warranty period by emailing HYVA at sales@truckcomponents.com.au or calling +61 (0)2 4966 3777. Customers may be requested to return the defective Good to HYVA in accordance with HYVA return instructions at the following address:
Hyva Pacific Pty. Ltd
72 Glenwood Drive
Thornton, NSW 2322
Australia
14. Limitation of Liability
(a) HYVA's liability to the Customer (and any party claiming through the Customer against HYVA) for any claim for loss or damages (including legal expenses) made in connection with the Contract for contract, tort (including negligence), under statute, in equity or otherwise shall be as follows:
i) if HYVA is in breach of a Contract HYVA's liability is strictly limited to:
(A) for goods, Goods or materials the cost of replacement of the defective Goods as soon as reasonably practicable, or the repair of the defective Goods or the repayment (or allowance) of the invoice price of the defective Goods at the option of HYVA;
(B) for services, to the provision of the services again or payment of the cost of having the relevant services provided again at the option of HYVA;
ii) HYVA's liability for breach of a Contract does not extend beyond the defective Goods to any other Goods that are part of an Order or otherwise;
iii) where loss or damage is not covered by subparagraph 14(a)(i), HYVA is not liable to the Customer under statute, in equity or in tort (including negligence or otherwise) for any loss or damage to person or property arising from or caused in any way by the Goods;
iv) HYVA shall not be liable for any indirect, special or consequential loss or damage of any nature whatsoever resulting from or caused in any way by the Goods;
v) "indirect, special or consequential loss or damage" includes:
(A) any loss of income, profit or business;
(B) any loss of goodwill or reputation;
(C) any loss of value of intellectual property.
(b) HYVA’s obligations in the event of paragraph 14(a) applying do not include:
i) the cost of removal of defective Goods whether installed or otherwise;
ii) the cost of installation of replacement for defective Goods;
iii) defects in Goods caused by improper installation or maintenance of Goods or related components or normal wear and tear and damage;
15. Waiver
HYVA waives a right under a Contract only by written notice that it waives that right. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.
16. Severance
If a provision of a Contract would, but for this clause, be unenforceable:
(a) the provision must be read down to the extent necessary to avoid that result;
(b) if the provision cannot be read down to that extent, it must be severed without altering the validity and enforceability of the remainder of the Contract.
17. Variation
HYVA may vary the Terms and Conditions without notice to the Customer.
18. Costs
The Customer must pay HYVA all costs and expenses incurred by HYVA in connection with the Contract including legal expenses (on a solicitor-client basis), stamp duty and costs incurred in the recovery of monies owing by the Customer to HYVA or in otherwise enforcing HYVA's rights against the Customer under the Contract.
19. Applicable Law
This document is governed by the law of the State or Territory in which the Order is accepted by HYVA and the courts of that State or Territory have non-exclusive jurisdiction in connection with this document. The Sale of Goods (Vienna Convention) Act 1986 (New South Wales) (and any similar legislation relating to the Vienna Convention in other States or Territories) does not apply to the Contract.
20. HYVA may Assign
Without notice to the Customer, HYVA may assign to any person this document and any Contract.
21. Measures
(a) Any and all statements made by HYVA as to weight, length, quantity or other characteristics of Goods are approximate and HYVA may supply Goods on an actual or calculated basis.
(b) A calculated basis will be in accordance with the applicable Australian standards.
(c) HYVA’s statements as to weight, length, quantity or other characteristics are final and HYVA is not liable for any errors in such statements unless the Customer gives HYVA
i) written notice of any error within 14 days of delivery;
ii) a reasonable opportunity to examine and re-test the Goods before they are used or dealt with.
22. Newsletter
(a) The Customers may also subscribe to HYVA Newsletter by submitting their e-mail address in the "Newsletter" tab on the Website. The Customers can also subscribe to the Newsletter by checking the appropriate checkbox when registering an Account.
(b) Newsletters are provided free of charge for an indefinite period. The Customers have the option, at any time and without giving a reason, to unsubscribe from the Newsletter by sending an appropriate request to HYVA, in particular via e-mail to the following address: sales@truckcomponents.com.au.
23. Data Protection
(a) HYVA processes all Customers’ data in accordance with our Privacy Policy, the EU GDPR for as long as it is applicable in Australia, and the applicable local privacy legislation.