Hypac Australia Pty Ltd – Terms & Conditions of Trade
1. Definitions1.1 “Acknowledgment Document” means the document signed by the Customer in conjunction with these Terms and Conditions of Trade andapplicable if the Supplier elects, whereby the Customer acknowledges the extent and effect of the provision of security the Customer providesto the Supplier in consideration of the provision of Goods or Services.1.2 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to,this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, Contracts,client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details,electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable),previous credit applications, credit history) and pricing details.1.3 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendmentsexpressed to be supplemental to this Contract.1.4 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including PersonalInformation) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Customerdoes not wish to allow Cookies to operate in the background when using the Supplier’s website, then the Customer shall have theright to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiriesvia the website.1.5 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting the Supplier toprovide the Services as specified in any proposal, quotation, order, invoice, or other documentation, and:(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and(b) if the Customer is a partnership, it shall bind each partner jointly and severally; and(c) if the Customer is on behalf of or part of, a Trust, shall be bound in its own capacity as a trustee; and(d) includes the Customer’s executors, administrators, successors, and permitted assigns.1.6 “Goods” means all Goods or Services supplied by the Supplier to the Customer at the Customer’s request from time to time (where thecontext so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).1.7 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).1.8 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between the Supplier and the Customer inaccordance with clause 5 below.1.9 “Supplier” means Hypac Australia Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of HypacAustralia Pty Ltd.2. Acceptance2.1 The parties acknowledge and agree that:(a) they have read and understood the terms and conditions contained in this Contract; and(b) the parties are taken to have exclusively accepted and are immediately bound, jointly and severally, by these terms and conditions if theCustomer places an order for or accepts delivery of the Goods.2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the partieshave entered into, the terms of this Contract shall prevail.2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.2.4 The Customer acknowledges and accepts that the supply of Goods on credit shall not take effect until the Customer has completed a creditapplication with the Supplier and it has been approved with a credit limit established for the account.2.5 In the event that the supply of Goods requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, theSupplier reserves the right to refuse delivery.2.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the ElectronicTransactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.3. Errors and Omissions3.1 The Customer acknowledges and accepts that the Supplier shall, without prejudice, accept no liability in respect of any alleged or actualerror(s) and/or omission(s):(a) resulting from an inadvertent mistake made by the Supplier in the formation and/or administration of this Contract; and/or(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Supplier in respect of the Services.3.2 In circumstances where the Customer is required to place an order for Goods, in writing, or otherwise as permitted by these terms andconditions, the Customer is responsible for supplying correct order information such as, without limitation, measurements and quantity, whenplacing an order for Goods (whether they are made to order Goods or not) ("Customer Error"). The Customer must pay for all Goods it ordersfrom the Supplier notwithstanding that such Goods suffer from a Customer Error and notwithstanding that the Customer has not taken orrefuses to take Delivery of such Goods. The Supplier is entitled to, at its absolute discretion to waive its right under this sub-clause in relationto Customer Errors.4. Change in Control4.1 The Customer shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customerand/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone orfax number/s, change of trustees, or business practice). The Customer shall be liable for any loss incurred by the Supplier as a result of theCustomer’s failure to comply with this clause.5. Price and Payment5.1 At the Supplier’s sole discretion, the Price shall be either:(a) as indicated on any invoice provided by the Supplier to the Customer upon placement of an order for Goods; orHypac Australia Pty Ltd – Terms & Conditions of Trade#26801 © Copyright – EC Credit Control 1999 - 2026(b) the Supplier’s quoted Price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period offourteen (14) days.5.2 The Supplier reserves the right to change the Price if a variation to the Supplier’s quotation is requested. Variations will be charged for on thebasis of the Supplier’s quotation (including variations from the plan of scheduled Services or specifications, fluctuations in the current exchangerate, or as a result of increases to the Supplier in the cost of materials and labour), and will be detailed in writing, and shown as variations onthe Supplier’s invoice. The Customer shall be required to respond to any variation submitted by the Supplier within ten (10) working days.Failure to do so will entitle the Supplier to add the cost of the variation to the Price. Payment for all variations must be made in full at the timeof their completion.5.3 At the Supplier’s sole discretion, a reasonable deposit may be required upon placement of an order for Goods, in accordance with any quotationprovided by the Supplier or as notified to the Customer prior to the placement of an order for Goods.5.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by the Supplier,which may be:(a) on or before delivery of the Goods; or(b) by way of instalments/progress payments in accordance with the Supplier’s payment schedule; or(c) thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices; or(d) the date specified on any invoice or other form as being the date for payment; or(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Supplier.5.5 Payment may be made by cash, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method asagreed to between the Customer and the Supplier.5.6 The Supplier may in its discretion allocate any payment received from the Customer towards any invoice that the Supplier determines andmay do so at the time of receipt or at any time afterwards. On any default by the Customer the Supplier may re-allocate any paymentspreviously received and allocated. In the absence of any payment allocation by the Supplier, payment will be deemed to be allocated in suchmanner as preserves the maximum value of the Supplier’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.5.7 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by theSupplier nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any partof the invoice is in dispute, then the Customer must notify the Supplier in writing within three (3) business days, the invoice shall remain dueand payable for the full amount, until such time as the Supplier investigates the disputed claim, no credit shall be passed for refund until thereview is completed. Failure to make payment may result in the Supplier placing the Customer’s account into default and subject to defaultinterest in accordance with clause 14.1.5.8 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to the Supplier an amount equal toany GST the Supplier must pay for any supply by the Supplier under this or any other agreement for the sale of the Goods. The Customermust pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. Inaddition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expresslyincluded in the Price.6. Delivery of Goods6.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that the Supplier (or the Supplier’s nominated carrier) delivers the Goods tothe Customer’s nominated address even if the Customer is not present at the address.6.2 The cost of Delivery will be payable by the Customer in accordance with the quotation provided by the Supplier to the Customer, or as otherwisenotified to the Customer prior to the placement of an order for Goods.6.3 The Supplier may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with theprovisions in these terms and conditions.6.4 Any time specified by the Supplier for Delivery of the Goods is an estimate only and the Supplier will not be liable for any loss or damageincurred by the Customer because of Delivery being late. However, both parties agree that they shall make every endeavour to enable theGoods to be delivered at the time and place as was arranged between both parties. If the Supplier is unable to supply the Goods as agreedsolely due to any action or inaction of the Customer, then the Supplier shall be entitled to charge a reasonable fee for redelivery and/or storage.7. Risk7.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery, and the Customer must insure the Goods on or before Delivery.7.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, the Supplier is entitled toreceive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Supplier is sufficient evidence ofthe Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.7.3 If the Customer requests the Supplier to leave Goods outside the Supplier’s premises for collection or to deliver the Goods to an unattendedlocation, then such Goods shall be left at the Customer’s sole risk.8. Compliance with Laws8.1 The Customer and the Supplier shall comply with the provisions of all statutes, regulations and bylaws of government, local and other publicauthorities that may be applicable to the Goods/Services.9. Title9.1 The Supplier and the Customer agree that ownership of the Goods shall not pass until:(a) the Customer has paid the Supplier all amounts owing to the Supplier; and(b) the Customer has met all of its other obligations to the Supplier.9.2 Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has beenhonoured, cleared or recognised.9.3 It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 9.1:(a) the Customer is only a bailee of the Goods and must return the Goods to the Supplier on request;Hypac Australia Pty Ltd – Terms & Conditions of Trade#26801 © Copyright – EC Credit Control 1999 - 2026(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Supplier and must pay to the Supplier theproceeds of any insurance in the event of the Goods being lost, damaged or destroyed;(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and formarket value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of anysuch act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand;(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customerholds the resulting product on trust for the benefit of the Supplier and must sell, dispose of or return the resulting product to the Supplieras it so directs;(e) the Customer irrevocably authorises the Supplier to enter any premises where the Supplier believes the Goods are kept and recoverpossession of the Goods;(f) the Supplier may recover possession of any Goods in transit whether or not Delivery has occurred;(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods whilethey remain the property of the Supplier; and(h) the Supplier may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has notpassed to the Customer.10. Personal Property Securities Act 2009 (“PPSA”)10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by thePPSA.10.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute asecurity agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that willbe supplied in the future by the Supplier to the Customer, and the proceeds from such Goods.10.3 The Customer undertakes to:(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date inall respects) which the Supplier may reasonably require to:(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property SecuritiesRegister;(ii) register any other document required to be registered by the PPSA; or(iii) correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii).(b) indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financing statement or financing changestatement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;(c) not register a financing change statement in respect of a security interest without the prior written consent of the Supplier;(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods or the proceeds ofsuch Goods in favour of a third party without the prior written consent of the Supplier; and(e) immediately advise the Supplier of any material change in its business practices of selling the Goods which would result in a change inproceeds derived from such sales.10.4 The Supplier and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by theseterms and conditions.10.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.10.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.10.7 Unless otherwise agreed to in writing by the Supplier, the Customer waives their right to receive a verification statement in accordance withsection 157 of the PPSA.10.8 The Customer must unconditionally ratify any actions taken by the Supplier under clauses 10.3 to 10.5.10.9 Subject to any express provisions to the contrary (including those contained in this clause 10), nothing in these terms and conditions is intendedto have the effect of contracting out of any of the provisions of the PPSA.11. Security and Charge11.1 In consideration of the Supplier agreeing to supply the Goods and/or provide its Services and as acknowledged by the Supplier in accordancewith any Acknowledgment Document the Customer grants the Supplier a security interest by way of a floating charge (registerable by theSupplier pursuant to the PPSA) over all of its present and after acquired rights, title and interest (whether joint or several) in all other assetsthat is now owned by the Customer or owned by the Customer in the future, including but not limited to those set out in any AcknowledgmentDocument, to the extent necessary to secure the repayment of monies owed under this Contract for provision of the Goods and/or Servicesunder this Contract and/or permit the Supplier to appoint a receiver to the Customer in accordance with the Corporations Act 2001 (Cth).11.2 The Customer indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor andown client basis incurred in exercising the Supplier’s rights under this clause.11.3 In the event that the Customer defaults or breaches any term of this Contract and as a result, the security provided in clauses 9.1,10.2 and11.1 as applicable, is deemed insufficient by the Supplier to secure the repayment of monies owed by the Customer to the Supplier, theCustomer hereby grants the Supplier a security interest as at the date of the default, by way of a charge, that enables the right and entitlementto lodge a caveat over any real property and or land owned by the Customer now, or owned by the Customer in the future, to secure theperformance of the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money), inaccordance with the Acknowledgement Document.12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)12.1 The Customer must inspect the Goods on Delivery and must within seven (7) days of Delivery notify the Supplier in writing of any evidentdefect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect inthe Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow the Supplierto inspect the Goods prior to providing a remedy and solely for verified non-conformance.Hypac Australia Pty Ltd – Terms & Conditions of Trade#26801 © Copyright – EC Credit Control 1999 - 202612.2 Without limiting the generality of this clause 12 and after the Customer takes Delivery of the Goods or Services in accordance with clause 6,the following conditions may apply:(a) defects for new consumables must be reported within seven (7) days. The warranty for new consumables and non-conformance excludesnormal wear and tear, misuse or damage after installation;(b) new components will be as quoted at the time of the requested quote;(c) a storage warranty for new gear components is up to six (6) months prior to installation and once installed the twelve (12) monthsmanufacturer’s warranty applies. If installation takes longer than six (6) months, the twelve (12) months manufacturer’s warranty will bereduced proportionally; and(d) used or rebuilt items are supplied as is and in accordance with clause 12.11, with exception if a warranty is expressly stated in the Supplier’soriginal quotation as accepted by the Customer.12.3 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees andwarranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (NonExcluded Guarantees).12.4 The Supplier acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.12.5 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Supplier makes no warrantiesor other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. The Supplier’sliability in respect of these warranties is limited to the fullest extent permitted by law.12.6 If the Customer is a consumer within the meaning of the CCA, the Supplier’s liability is limited to the extent permitted by section 64A ofSchedule 2.12.7 If the Supplier is required to replace the Goods under this clause or the CCA, but is unable to do so, the Supplier may refund any money theCustomer has paid for the Goods.12.8 If the Customer is not a consumer within the meaning of the CCA, the Supplier’s liability for any defect or damage in the Goods is:(a) limited to the value of any express warranty or warranty card provided to the Customer by the Supplier at the Supplier’s sole discretion;(b) limited to any warranty to which the Supplier is entitled, if the Supplier did not manufacture the Goods; and/or(c) otherwise negated absolutely.12.9 Subject to this clause 12, returns will only be accepted provided that:(a) the Customer has complied with the provisions of clause 12.1; and(b) the Supplier has agreed that the Goods are defective; and(c) the Customer is in receipt of a return authorisation issued by the Supplier; and(d) the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and(e) the Goods are returned in as close a condition to that in which they were delivered as is possible.12.10 Notwithstanding clauses 12.1 to 12.9 but subject to the CCA, the Supplier shall not be liable for any defect or damage which may be causedor partly caused by or arise as a result of:(a) the Customer failing to properly maintain or store any Goods;(b) the Customer using the Goods for any purpose other than that for which they were designed;(c) the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudentoperator or user;(d) the Customer failing to follow any instructions or guidelines provided by the Supplier or manufacturer; and/or(e) fair wear and tear, any accident, or act of God.12.11 In the case of second-hand Goods, unless the Customer is a consumer under the CCA, the Customer acknowledges that it has had fullopportunity to inspect the second-hand Goods prior to Delivery and accepts them with all faults and that to the extent permitted by law nowarranty is given by the Supplier as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expresslyexcluded. The Customer acknowledges and agrees that the Supplier has agreed to provide the Customer with the second-hand Goods andcalculated the Price of the second- hand Goods in reliance of this clause 12.11.12.12 Notwithstanding anything contained in this clause if the Supplier is required by a law to accept a return, then the Supplier will only accept areturn on the conditions imposed by that law.12.13 Subject to clause 12.1, unless expressly agreed in writing by the Supplier, the Supplier does not accept returns, cancellations, credits orrefunds for change of mind, incorrect ordering or over ordering by the Customer, obsolescence, excess or surplus stock, non-stocklist itemsor Goods made or ordered to the Customer’s specifications.13. Intellectual Property13.1 Where the Supplier has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documentsshall remain the property of the Supplier. Under no circumstances may such designs, drawings and documents be used without the expresswritten approval of the Supplier.13.2 The Customer warrants that all designs, specifications, or instructions given to the Supplier will not cause the Supplier to infringe any patent,registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Supplier against any actiontaken by a third party against the Supplier in respect of any such infringement.13.3 The Customer agrees that the Supplier may (at no cost) use for the purposes of marketing or entry into any competition, any documents,designs, drawings or Goods which the Supplier has created for the Customer.14. Default and Consequences of Default14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and ahalf percent (2.5%) per calendar month (and at the Supplier’s sole discretion such interest shall compound monthly at such a rate) after aswell as before any judgment.14.2 If the Customer owes the Supplier any money, the Customer shall indemnify the Supplier from and against all costs and disbursements:(a) incurred; and/or(b) which would be incurred and/orHypac Australia Pty Ltd – Terms & Conditions of Trade#26801 © Copyright – EC Credit Control 1999 - 2026(c) for which by the Customer would be liable;in regard to legal costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under these terms and conditions, internaladministration fees, the Supplier’s Contract fees owing for breach of these terms and conditions’, including, but not limited to, contract defaultfees and/or recovery costs (if applicable), as well as bank dishonour fees.14.3 Further to any other rights or remedies the Supplier may have under this Contract, if a Customer has made payment to the Supplier, and thetransaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costsincurred by the Supplier under this clause 14 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention tothe Customer’s obligations under this Contract.14.4 Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Customerwhich remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable if:(a) any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Customer will be unable to make a payment whenit falls due;(b) the Customer has exceeded any applicable credit limit provided by the Supplier;(c) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makesan assignment for the benefit of its creditors; or(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of theCustomer.15. Cancellation15.1 Without prejudice to any other remedies the parties may have, if at any time either party is in breach of any obligation (including those relatingto payment) under these terms and conditions (“the Breaching Party”) the other party may suspend or terminate the supply or purchase ofGoods and/or Services to the other party, with immediate effect, by providing the Breaching Party with written notice. Neither party will beliable for any loss or damage the other party suffers because one of the parties has exercised its rights under this clause.15.2 If the Supplier, due to reasons beyond the Supplier’s reasonable control, is unable to deliver any Goods and/or Services to the Customer, theSupplier may cancel any Contract to which these terms and conditions apply or cancel Delivery of Goods and/or Services at any time beforethe Goods and/or Services are delivered by giving written notice to the Customer. On giving such notice the Supplier shall repay to theCustomer any money paid by the Customer for the Goods and/or Services. The Supplier shall not be liable for any loss or damage whatsoeverarising from such cancellation.15.3 The Customer may cancel Delivery of the Goods and/or Services by written notice served within forty-eight (48) hours of placement of theorder, prior to the Goods being dispatched. If the Customer cancels Delivery in accordance with this clause 15.3, the Customer will not beliable for the payment of any costs of the Supplier, except where a deposit is payable in accordance with clause 5.3.15.4 However, cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will not be accepted onceproduction has commenced, or an order has been placed.16. Privacy Policy16.1 All emails, documents, images, or other recorded information held or used by the Supplier is Personal Information, as defined and referred toin clause 16.4, and therefore considered Confidential Information. The Supplier acknowledges its obligation in relation to the handling, use,disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being PrivacyAmendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”),under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). TheSupplier acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information,held by the Supplier that may result in serious harm to the Customer, the Supplier will notify the Customer in accordance with the Act and/orthe GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approvedby the Customer by written consent, unless subject to an operation of law.16.2 Notwithstanding clause 16.1, privacy limitations will extend to the Supplier in respect of Cookies where the Customer utilises the Supplier’swebsite to make enquiries. The Supplier agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels andweb beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:(a) IP address, browser, email client type and other similar details;(b) tracking website usage and traffic; and(c) reports are available to the Supplier when the Supplier sends an email to the Customer, so the Supplier may collect and review thatinformation (“collectively Personal Information”).If the Customer consents to the Supplier’s use of Cookies on the Supplier’s website and later wishes to withdraw that consent, theCustomer may manage and control the Supplier’s privacy controls via the Customer’s web browser, including removing Cookies bydeleting them from the browser history when exiting the site.16.3 The Customer agrees for the Supplier to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g.name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance detailsor next of kin and other contact information (where applicable), previous credit applications, credit history) about the Customer in relation tocredit provided by the Supplier.16.4 The Customer agrees that the Supplier may exchange information about the Customer with those credit providers and with related bodycorporates for the following purposes:(a) to assess an application by the Customer; and/or(b) to notify other credit providers of a default by the Customer; and/or(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other creditproviders; and/or(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.16.5 The Customer consents to the Supplier being given a consumer credit report to collect personal credit information relating to any overduepayment on commercial credit.Hypac Australia Pty Ltd – Terms & Conditions of Trade#26801 © Copyright – EC Credit Control 1999 - 202616.6 The Customer agrees that personal credit information provided may be used and retained by the Supplier for the following purposes (and forother agreed purposes or required by):(a) the provision of Goods; and/or(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or(d) enabling the collection of amounts outstanding in relation to the Goods.16.7 The Supplier may give information about the Customer to a CRB for the following purposes:(a) to obtain a consumer credit report; and(b) allow the CRB to create or maintain a credit information file about the Customer including credit history.16.8 The information given to the CRB may include:(a) Personal Information as outlined in 16.4 above;(b) name of the credit provider and that the Supplier is a current credit provider to the Customer;(c) whether the credit provider is a licensee;(d) type of consumer credit;(e) details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit accountand the amount requested);(f) advice of consumer credit defaults (provided the Supplier is a member of an approved OAIC External Disputes Resolution Scheme),overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written noticefor request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdueaccounts and the Supplier has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);(g) information that, in the opinion of the Supplier, the Customer has committed a serious credit infringement; or(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).16.9 The Customer shall have the right to request (by e-mail) from the Supplier:(a) a copy of the Personal Information about the Customer retained by the Supplier and the right to request that the Supplier correct anyincorrect Personal Information; and(b) that the Supplier does not disclose any Personal Information about the Customer for the purpose of direct marketing.16.10 The Supplier will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required to fulfilthe obligations of this Contract or is required to be maintained and/or stored in accordance with the law.16.11 The Customer can make a privacy complaint by contacting the Supplier via e-mail. The Supplier will respond to that complaint within seven(7) days of receipt and will take all reasonable steps to reach a decision on the complaint within thirty (30) days of receipt of the complaint. Ifthe Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner atwww.oaic.gov.au.17. Unpaid Seller’s Rights17.1 Where the Customer has left any item with the Supplier for repair, modification, exchange or for the Supplier to perform any other service inrelation to the item and the Supplier has not received or been tendered the whole of any monies owing to it by the Customer, the Supplier shallhave, until all monies owing to the Supplier are paid:(a) a lien on the item; and(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal ofuncollected goods.17.2 The lien of the Supplier shall continue despite the commencement of proceedings, or judgment for any monies owing to the Supplier havingbeen obtained against the Customer.18. Service of Notices18.1 Any written notice given under this Contract shall be deemed to have been given and received:(a) by handing the notice to the other party, in person;(b) by leaving it at the address of the other party as stated in this Contract;(c) by sending it by registered post to the address of the other party as stated in this Contract;(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of thetransmission; or(e) if sent by email to the other party’s last known email address.18.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post,the notice would have been delivered.19. Trusts19.1 If the Customer at any time upon or subsequent to entering into the Contract is acting in the capacity of trustee of any trust or as an agent fora trust (“Trust”) then whether or not the Supplier may have notice of the Trust, the Customer covenants with the Supplier as follows:(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust, the trustees and thetrust fund;(b) the Customer has full and complete power and authority under the Trust or from the Trustees of the Trust as the case may be to enter intothe Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust,the trustees and the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any otheraction which might prejudice that right of indemnity; and(c) the Customer will not during the term of the Contract without consent in writing of the Supplier (the Supplier will not unreasonably withholdconsent), cause, permit, or suffer to happen any of the following events:(i) the removal, replacement or retirement of the Customer as trustee of the Trust;(ii) any alteration to or variation of the terms of the Trust;Hypac Australia Pty Ltd – Terms & Conditions of Trade#26801 © Copyright – EC Credit Control 1999 - 2026(iii) any advancement or distribution of capital of the Trust; or(iv) any resettlement of the trust fund or trust property.20. General20.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall itaffect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal orunenforceable, that provision shall be severed from this Contract, and the validity, existence, legality and enforceability of the remainingprovisions shall not be affected, prejudiced or impaired.20.2 These terms and conditions and any Contract to which they apply shall be governed by the laws of New South Wales and are subject to thejurisdiction of the courts in that state. These terms prevail over all terms and conditions of the Customer (even if they form part of the Customer’spurchase order).20.3 The Supplier may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consentprovided the assignment does not cause detriment to the Customer.20.4 The Customer cannot licence or assign without the written approval of the Supplier.20.5 The Supplier may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contractby so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of the Supplier’ssub-contractors without the authority of the Supplier.20.6 The Customer agrees that the Supplier may amend their general terms and conditions for subsequent future Contracts with the Customer bydisclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts suchchanges, or otherwise at such time as the Customer makes a further request for the Supplier to provide Goods to the Customer.20.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, nationalor global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo,including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) orother event beyond the reasonable control of either party. This clause does not apply to a failure by the Customer to make a payment to theSupplier, once the parties agree that the Force Majeure event has ceased.20.8 Both parties warrant that they have the power to enter this Contract and have obtained all necessary authorisations to allow them to do so,they are not insolvent and that this Contract creates binding and valid legal obligations on them.20.9 The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the executionand Delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.20.10 If part or all of any term of this Contract is or becomes invalid, illegal or unenforceable, it shall be severed from this Contract and shall notaffect the validity and enforceability of the remaining terms of this Contract.
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