TERMS AND CONDITIONS OF SALE (NON-NEGOTIABLE)

1. GENERAL

1.1    In these terms and conditions of sale (“Conditions”) the following words have the meanings shown:

“Buyer” means the person, firm or company purchasing Goods and/or Services from Hilti;

“Contract” means any agreement between Hilti and the Buyer for the purchase of Goods and/or provision of Services from/by Hilti;

“Goods” means goods manufactured by Hilti and purchased by the Buyer on the terms of this Contract;

“GST” has the same meaning as in the GST Law;

“GST Law” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

“Hilti” means Hilti (Aust.) Pty Ltd, ABN 44 007 602 100, Level 5 Building G, 1 Homebush Bay Drive, Rhodes NSW 2138;

“Personnel” means the employees, servants, directors, agents, consultants or other personnel of Hilti or any of their subcontractors;

“Services” means the services to be supplied by Hilti under or in relation to the Contract;

“Taxable Supply” has the same meaning as in the GST Law;

“Tax Invoice” has the same meaning as in the GST Law.

1.2 Headings do not affect the interpretation of these Conditions.

 

2. MAKING THE CONTRACT

2.1 Any written quotation, estimate and/or advertised price for the Goods and/or Services shall be an invitation to treat and no binding contract shall be created by placing an order on Hilti’s website or otherwise until Hilti has sent an acknowledgement of order to the Buyer or (if earlier) Hilti delivers the Goods or provides the Services to the Buyer, whereupon a Contract shall be formed. In the event that Hilti has not provided an acknowledgement of order these Conditions, provided the Buyer shall have had prior notice of them, shall nonetheless apply to the Contract.

2.2 Any order shall be accepted entirely at the discretion of Hilti. Hilti reserves the right to reject any order in whole or in part for any reason, including where the Buyer fails the credit approval process of Hilti, or exceeds its available credit limit with Hilti, or the Goods and/or Services ordered are not available. Where the Goods and/or Services ordered are not available, Hilti will inform the Buyer accordingly and may recommend a replacement. If the replacement is accepted by the Buyer, this will constitute a binding order for the replacement Goods and/or Services and Hilti will deliver the replacement Goods and/or Services to the Buyer.

2.3 Any quotation made by Hilti is given subject to these Conditions and is valid for 30 days from its date (or until any other date shown on the quotation), provided that Hilti has not previously withdrawn it.

2.4 Unless agreed otherwise in writing and to the full extent permitted by law, these Conditions shall be incorporated in the Contract to the exclusion of all other terms and conditions. To the full extent permitted by law, any other general terms or conditions of the Buyer, even if they are known, are expressly excluded and rejected. These conditions shall furthermore provide the basis for all future transactions regarding the sale of Goods and/or provision of Services by Hilti.

2.5 These Conditions shall prevail unless expressly amended in writing and signed by an authorized representative on behalf of Hilti and an authorized representative on behalf of the Buyer.

2.6 In placing an order and purchasing any of the Goods, the Buyer acknowledges and agrees that all such purchases are for business purposes only.

 

3. DESCRIPTION OF GOODS AND SERVICES

3.1 The quantity, quality, description of and any specification for the Goods or Services shall be as set out in Hilti's acknowledgement of order or, in its absence, Hilti's quotation.

3.2 All descriptive matter, specifications and advertising issued by Hilti and any descriptions, details or illustrations contained in Hilti’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods or Services described in them and they will not form part of the Contract unless otherwise agreed in writing.

3.3 Hilti reserves the right, without liability to the Buyer, to make any changes in the specification of the Goods and/or Services which are required to conform with any applicable national and/or EU laws, regulations and/or safety requirements or which do not materially affect the quality or performance of the Goods and/or Services.

3.4 No statement, description, information, warranty, condition or recommendation contained in any catalogue, price list, advertisement or communication or made verbally by any of the Personnel shall be construed to vary in any way any of these Conditions under the Contract unless otherwise agreed in accordance with clause 2.5 above.

 

4. PRICE AND DELIVERY

4.1 Subject to clause 4.2 below, the price payable for Goods and/or Services shall, unless otherwise stated by Hilti in writing and agreed on its behalf, be the list price of Hilti current at the date of despatch and, in the case of an order for delivery by instalments, the price payable for each instalment shall be Hilti’s current list price at the date of the despatch of each instalment. 

4.2 Unless otherwise agreed in writing, Hilti’s prices may be subject to increase due to factors such as change in law or the interpretation thereof, inflation, wages, production cost, exchange rate fluctuations, materials or other costs since the date of Hilti’s quotation or, if no quotation is issued, the Buyer’s order. If the price payable for the Goods and/ or Services increases or decreases after the price is quoted, Hilti shall promptly notify the Buyer and Hilti will be entitled to invoice the Buyer for the adjusted price in place of the original Contract price.

4.3 All prices are exclusive of GST, taxes and all other applicable duties. The Buyer shall be liable for all and any local taxes (including GST), duties, levies and other government fees or charges as appropriate.

4.4 If any amount payable by the Buyer under this Contract is the consideration for a Taxable Supply in respect of which Hilti is liable to pay GST, the amount payable will be increased by the amount of the GST payable in respect of the Taxable Supply, and the additional amount will be payable at the same time as the Buyer is liable to pay the consideration for the Taxable Supply, however if the Buyer has not by then received a Tax Invoice from Hilti in respect of the Taxable Supply, then the additional amount is payable within 7 days after receipt from Hilti of a valid Tax Invoice.

4.5 The Buyer and Hilti agree to comply with their obligations in relation to GST under GST Law and any other applicable legislation governing GST. Each party warrants to the other that it is registered for GST and must immediately notify the other party if it ceases to be so registered.

4.6 Hilti shall be entitled to invoice the Buyer by post, by courier or email for the price of the Goods and/or Services in Australian dollars.

4.7 Hilti has the right to invoice the Buyer for its reasonable direct costs of any packaging, transportation of the Goods and any additional costs resulting from any other alteration made by or requested in written form by the Buyer on or at the time of delivery or upon notification by Hilti that the Goods are awaiting collection. Any such additional costs may be invoiced by Hilti in Australian dollars.

4.8 All deliveries will incur a minimum delivery charge with the exception of repair orders in the warranty period, Fleet Management orders and Fleet Management repair orders, which are part of an original order that has been partly fulfilled. Any date or time quoted for delivery is an estimate only. Any failure or delay in supply or delivery of the Goods shall not confer to Buyer any right of cancellation or refusal of delivery or render Hilti liable for any loss or damages directly or indirectly sustained by Buyer as a result thereof.

4.9 For deliveries within Australia, Hilti’s obligation to deliver shall be discharged on arrival of the Goods at Buyer’s nominated delivery destination or the address appearing on the invoice. Particulars appearing on Hilti’s delivery docket and any substantiating driver's dockets shall constitute prima facie evidence of date, time and place of delivery, whether or not the documents were signed.

 

5. CARRIAGE AND INSURANCE

5.1 The cost of carriage and insurance of the Goods to the Buyer’s premises shall be in accordance with the applicable Incoterms 2020 (see clause 5.2 below).

5.2 Unless expressly agreed otherwise in writing, export orders shall be charged in accordance with Incoterms 2020 - FCA place of departure, save that Hilti shall have no obligation to obtain any export licence or clearance required in relation to the Goods.

 

6. ADDITIONAL COSTS

6.1 The Buyer agrees to pay for all reasonable direct costs incurred  by Hilti as the result of (i) the Buyer’s change in instructions or failure to provide necessary information requested by Hilti; and (ii) the Buyer's delay in taking delivery of Goods or Services supplied at the scheduled delivery time; and (iii) any act or default on the part of the Buyer, its servants or agents. In addition, Hilti reserves the right to dispose of any Goods that are uncollected by the Buyer within 14 days of the Buyer being notified that the Goods are available for collection. 

6.2 Without prejudice to any other rights and remedies which Hilti may have, if the Goods are submitted to Hilti or its Personnel for repair, Hilti shall have a general lien on the Goods in respect of all debts owed by the Buyer to Hilti in respect of such Goods only (including the costs of the repair), and if the Goods are not collected and paid for by the Buyer within five months of the Buyer being informed that the Goods are ready for collection, the Buyer agrees that Hilti shall be entitled after 14 working days’ notice to the Buyer to dispose of the Goods as Hilti thinks fit.

 

7. TERMS OF PAYMENT

7.1 Unless agreed otherwise in writing, all payments due under any Contract must be made by the Buyer within 30 days of the end of the month after an invoice is sent by Hilti to the address provided by the Buyer. Hilti will issue invoices after delivery of the Goods and/ or Services, unless Hilti determines that payment is required in advance of delivery due to the Buyer's financial position. If the Buyer fails to make all undisputed payments when due, in addition to any other remedies that may be available to Hilti, Hilti may suspend the delivery of Goods and/or Services to the Buyer if such failure continues for thirty (30) days following written notice thereof, without liability. 

7.2 If the Goods or Services are delivered / provided in instalments, Hilti shall be entitled to invoice each instalment as and when delivery thereof has been made and payment shall be due in accordance with clause 7.1 above in respect of each invoice.

7.3 Any failure by the Buyer to either pay any due instalment in accordance with this Contract or provide all necessary delivery information requested by Hilti in respect of any Goods or Services shall cause the whole of the price for Goods and Services already manufactured or provided at the time of such a default, to become due forthwith without any notice.

7.4 Prompt payment shall be a condition precedent to future deliveries of the Goods / provision of Services due under any Contract.

7.5 Unless otherwise agreed in writing between the parties, Hilti is entitled to charge and to be paid interest at 4% above the current corporate overdraft reference rate, as published by the Commonwealth Bank of Australia on the first Business Day of each month, on any unpaid invoices and/or any other overdue payments due from the Buyer.

 

8. DELIVERY OF GOODS

8.1 The period for delivery shall be the period within which the Goods are intended to be dispatched from Hilti’s premises and shall be calculated from the date of the receipt by Hilti of the Buyer’s order or the date of receipt of all necessary information to enable Hilti to manufacture or procure the manufacture of the Goods, whichever shall be the later, and the Buyer shall take delivery of the Goods within such a period. If no period is stipulated by Hilti, then delivery will be such time after receipt of instructions as Hilti thinks reasonable.

8.2 Unless agreed otherwise in writing, all times or dates given for delivery of the Goods are given in good faith and time for delivery shall not be of the essence. Hilti shall not be liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods.

8.3 Without prejudice to the warranties in clause 12 below, the Buyer must notify Hilti of any non-delivery, loss of or damage to the Goods occurring post-delivery or for any claim that the Goods are not in accordance with the Contract:  

8.3.1 immediately in case the loss of or damage to the Goods occurred in transit or upon delivery provided that the relevant loss or damage is expressly mentioned on the consignment note;

8.3.2 within 28 days of delivery of the Goods in the case of defective Goods; or

8.3.3 within 7 days of delivery of the Goods for any other noncompliance with the Contract.

8.4 All requests for proof of delivery must be made within a period of 21 days following the date of the invoice.

8.5 If for any reason the Buyer is unable to accept delivery of the Goods at the time when the Goods have been notified as ready for delivery, Hilti may at its sole discretion store the Goods at the risk and cost of the Buyer and take all reasonable steps to safeguard and insure them at the cost of the Buyer, provided that the Buyer shall be immediately informed thereof.

8.6 Hilti shall determine, acting reasonably, if it is necessary to make delivery by instalments and shall notify the Buyer of the quantities of the Goods to be delivered in each instalment and the intervals of those instalments.  Hitli shall notify the Buyer of such arrangements prior to delivery of the Goods and the Buyer may cancel its order without penalty within 14 days if it does not agree to delivery being provided in the proposed instalments. Any defect in any instalment shall not be a ground for cancellation of the remainder of the instalments.

 

9. RETURNS AND CANCELLATIONS

9.1 If Buyer wants to return Goods to Hilti where it has changed its mind, please call customer service on 131 292. In these circumstances and to the extent permitted by law, Goods:

9.1.1 must be unused items in original packaging and in unbroken quantities and in as-new condition to qualify for return.

9.1.2 shall only be accepted for return within 30 days of the date of purchase, subject to Hilti’s approval and are subject to its inspection and acceptance on return.

9.1.3 returned are subject to a re-stocking fee of 10% plus freight.

9.1.4 subject to an expiry date, special order products, chemical products and discontinued items shall not be accepted for return.

9.2 To the extent permitted by law, the method of refund provided by Hilti to Buyer in accordance with this clause is at its absolute discretion.

 

10. PASSING OF TITLE AND RISK

10.1 The risk shall pass in accordance with the applicable Incoterms 2020.

10.2 Property in the Goods shall not pass to the Buyer until Hilti has received in full (in cash or cleared funds) all sums due to it in respect of:

10.2.1 the Goods; and

10.2.2 all other sums which are or which become due to Hilti from the Buyer on any account.

10.3 Until property in the Goods has passed to the Buyer, the Buyer shall:

10.3.1 hold the Goods on a fiduciary basis as Hilti’s bailee;

10.3.2 store the Goods (at no cost to Hilti) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as Hilti’s property;

10.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and

10.3.4 maintain the Goods in satisfactory condition and keep them insured on Hilti’s behalf for their full price against all risks to the reasonable satisfaction of Hilti. On request the Buyer shall produce the policy of insurance to Hilti.

10.4 The Buyer may use the Goods in the ordinary course of the Buyer’s business before ownership has passed to it.

10.5 The Buyer’s right to possession of the Goods shall terminate immediately upon the occurrence of any of the events specified in clauses

16.1.2 to 16.1.6 below.

10.6 Hilti shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Hilti.

10.7 The Buyer grants Hilti and its Personnel an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them, and the Buyer acknowledges that Hilti shall have the right to intercept and repossess Goods in transit where the Buyer’s right to possession has terminated.

10.8 Where Hilti is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by Hilti to the Buyer in the order in which they were invoiced to the Buyer.

10.9 On termination of the Contract, howsoever caused, Hilti’s (but not the Buyer’s) rights contained in this clause 10 shall remain in effect. Hilti’s rights and remedies set out in this clause 10 are in addition to and shall not in any way prejudice, limit or restrict any of Hilti’s other rights or remedies under the Contract or in law.

10.10 PERSONAL PROPERTY AND SECURITIES ACT 2009 (Cth) (“PPSA”)

10.10.1 Defined terms in clause have the same meaning as given to them in the PPSA.

10.10.2 Hilti and Buyer acknowledge that these Terms and Conditions constitute a Security Agreement and gives rise to a Purchase Money Security Interest (PMSI) in Hilti’s favour over the goods supplied or to be supplied to Buyer as the Grantor pursuant to these Terms and Conditions.

10.10.3 The goods supplied or to be supplied under these Terms and Conditions fall within the PPSA classification of ”Other Goods” acquired by Buyer pursuant to these Terms.

10.10.4 Hilti and Buyer acknowledge that Hilti, as Secured Party, is entitled to register its interest in the goods supplied or to be supplied to Buyer, as Grantor, under these Terms and Conditions on the PPSA Register as Collateral. To the extent permissible at law, Buyer:

(a) waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by Buyer, as Grantor, to Hilti.

(b) is liable to Hilti for Hilti's direct and reasonable costs for enforcement or attempted enforcement of any Security Interest granted to Hilti by Buyer arising from a breach by Buyer of these Conditions.

(c) agree that nothing in clauses 130 and 143 of the PPSA will apply to these Terms or the Security under these Terms;

(d) agree to waive its right to do any of the following under the PPSA:

i. receive notice of removal of an Accession under clause 95;

ii. receive notice of an intention to seize Collateral under clause 123;

iii. object to the purchase of the Collateral by the Secured Party under clause 129;

iv. receive notice of disposal of Collateral under clause 130;

v. receive a Statement of Account if there is no disposal under clause 130(4);

vi. receive a Statement of Account under clause 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.

vii. receive notice of retention of Collateral under clause 135;

viii. redeem the Collateral under clause 142; and

ix. reinstate the Security Agreement under clause 143.

(e) agree that all payments received from Buyer must be applied in accordance with clause 14(6)(c) of the PPSA.

 

11 SUPPLY OF SERVICES

11.1 Hilti shall provide the Services to the Buyer in accordance with the Contract applying reasonable skill and care.

11.2 Hilti shall use its reasonable endeavours to meet any performance dates for the Services, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services. Hilti shall not be liable for any loss whatsoever or howsoever arising caused by its failure to provide the Services on the due date.

11.3 Where Hilti is to perform the Services at the Buyer’s premises, the Buyer shall:

11.3.1 procure safe and unhindered access to the premises for all the Personnel to carry out the Services at all relevant times;

11.3.2 ensure that all consents, permissions, or licences required to allow the Services to be provided are in place;

11.3.3 ensure the provision of adequate power, lighting, heating and other such facilities or supplies required for the provision of the Services;

11.3.4 provide adjacent to where the Services are to be provided storage for the materials required for the Services;

11.3.5 ensure that the site where Services are to be provided are adequate for that purpose, clear and free from all health and safety hazards and possess such facilities for the Personnel to comply with any applicable legislation and as Hilti shall reasonably require; and

11.3.6 be responsible for the Personnel’s death or personal injury or damage to or loss of Hilti (and subcontractors and Personnel’s) property whilst on the Buyer’s premises except to the extent any such death or personal injury results from the negligence of Hilti or its subcontractors.

11.4 The Services will be deemed to be completed and the relevant element of the Contract price to be due and payable forthwith:

11.4.1 when Hilti issues a written notice to the Buyer confirming such completion; or

11.4.2 if Hilti is available to perform the Services on the date scheduled for performance but is prevented from doing so by reason of:

(a) the lack of relevant assistance from the Buyer (such as lack of availability of test components or parts from the Buyer); or

(b) the condition of the Buyer’s premises on the site at which the Services are to be provided and/or the facilities at or the services available at those premises at the time agreed for the provision of the Services; or

(c) the failure by the Buyer to comply with the Contract.

 

12. WARRANTIES

12.1 Where Goods and/or Services are supplied with the benefit of a specific written warranty set out in another document produced by Hilti, such warranty shall apply instead of the warranty set out in clause 12.2 below. The warranty in clause 12.2 shall only apply where no such specific warranty is supplied in relation to the Goods and/or Services. The exclusions in clauses 12.4 and 12.6 to 12.8 shall apply to every such specific warranty except for the “manufacturer’s lifetime warranty” set out in any operating instructions supplied with the Goods.

12.2 If the Buyer establishes to Hilti’s reasonable satisfaction within 12 months of the date of delivery of the Goods or performance of the Services that there is a defect in the materials or workmanship of the Goods or that the Goods or Services are supplied not in accordance with the Contract then Hilti shall at its option, at its sole discretion and within a reasonable time:

12.2.1 repair or make good such defect or failure in such Goods free of charge to the Buyer (including all costs of transportation of any Goods or materials to and from the Buyer for that purpose); or

12.2.2 replace such Goods with Goods which are in all respects in accordance with the Contract or re-perform such Services: or

12.2.3 issue a credit note to the Buyer in respect of the whole or part of the Contract price or such Goods or Services as appropriate having taken back such Goods or materials relating to such Goods or Services, subject in every case to the other provisions of this clause 12 provided that the liability of Hilti under this clause 12 shall in no event exceed the purchase price of such Goods or Services and performance of any one of the above options shall constitute an entire discharge of Hilti’s liability under this warranty.

12.3 Goods presented for repair may be repaired by Hilti using new or refurbished parts of quality equivalent to new. Hilti shall retain the replaced part that is exchanged as its property, and the replacement part will become your property. Goods traded-in (in the course of a repair or otherwise) in exchange for new Goods shall be retained by Hilti as its property. It is agreed by Buyer and Hilti that all Goods repaired and/or exchanged by Hilti is for value. By accepting the repair to be conducted by Hilti, Buyer agrees to the foregoing terms on which the repair will be conducted. This notice is given to Buyer or consumer under Australian Consumer Law.

12.4 For the avoidance of doubt, the Buyer agrees to hold harmless and indemnify Hilti from and against any and all costs relating to the removal or reinstallation of the Goods.

12.5 Any Goods repaired or replaced, or Services reperformed shall be warranted by Hilti for a further period of 12 months commencing on the date such repair, replacement or reperformance was completed, provided that: (1) the overall warranty period for the affected Goods or Services shall not in any event exceed 24 months from the date of original delivery of the Goods or the original completion of the Services (as the case may be); and (2) subject in every case to the other provisions of this clause 12, Hilti’s liability under this clause 12 shall in no event exceed the purchase price of such Goods or Services.

12.6 Hilti shall not be liable for breach of the warranty in clause 12.2 above or any other warranty, guarantee or condition:

12.6.1 arising from any defect in Goods arising from any drawing, design or specification supplied by the Buyer;

12.6.2 arising from any acts, omissions, negligence or default of the Buyer or arising from fair wear and tear (unless expressly stated otherwise in the warranty document), willful damage, unsuitable storage, handling, treatment, installation, maintenance, repair or application, abnormal use or use under abnormal conditions;

12.6.3 arising from any non-compliance with the safety, training, usage and maintenance requirements (including, but not limited to, excessive or heavy use), method statements, data sheets, instructions or recommendations (whether oral or in writing) communicated to the Buyer by Hilti and/or any of its Personnel or suppliers;

12.6.4 arising from incorporation, alteration, modification or conversion of the Goods with any other goods, products or systems outside the intended purpose of the Goods, or as a result of non-compatibility of the Goods with any other goods, products or systems or use of consumables, components or spare parts other than those manufactured by Hilti without Hilti’s prior written approval;

12.6.5 if the total price for the Goods and/or Services has not been paid by the due date for payment;

12.6.6 unless any claim by the Buyer which is based on any defect in the quality or condition of the Goods and/or Services or their failure to correspond with their description or specification shall (whether or not delivery is refused by the Buyer) be notified to Hilti within 10 days after the Buyer discovers or ought to have discovered the defect or failure; or

12.6.7 unless Hilti is given a reasonable opportunity to examine such Goods or location at which the Services were performed and the Buyer (if asked to do so by Hilti) returns such Goods or materials relating to the Services to Hilti’s place of business for the examination to take place there.

12.7 In each of the foregoing events under clauses 12.6.1 to 12.6.4 above, the Buyer agrees to indemnify Hilti against all actions, costs, charges, losses, damages and expenses which Hilti may incur or sustain by reason of any action brought by any third party or end-user relating in any way to such events including but not limited to the installation of the Goods.

12.8 Save as expressly provided in these Conditions, all warranties, conditions, guarantees or other terms implied by statute, custom usage or otherwise are excluded to the fullest extent permitted by law.

 

13. BUYER’S RESPONSIBILITY

13.1 The selection of the Goods and/or Services suitable for the Buyer’s purposes depends on a range of factors. These factors include, but are not limited to, on- site conditions or other circumstances of the proposed application of the Goods known only to the Buyer. The Buyer is solely responsible for satisfying itself that the data supplied to Hilti on which information or recommendations made by Hilti are based is correct and that any assumptions made by Hilti to supplement that data are suitable for the Buyer’s purposes.

13.2 Any advice, representation or recommendation given by Hilti or Personnel to the Buyer or its employees or agents as to the Goods and/or Services, their fitting or use, or as to the incorporation or compatibility of the Goods with other goods is general in nature. The Buyer must satisfy itself about:

(a) the suitability and compatibility of the Goods for the intended use;

(b) what training is necessary for the Buyer and its employees;

(c) the required level of ongoing maintenance for the Goods; and

(d) the adequacy of the premises in which the Goods are to be used.

13.3 The Buyer acknowledges that it is responsible for ensuring it and its employees, agents, contractors and end-users of the Goods:

(a) store, handle, use, construct, maintain, and repair the Goods at all times in accordance with good practice and in accordance with the Goods’ method statements and data sheets, as well as all other relevant safety, training, usage and maintenance instructions and guidelines supplied to the Buyer from time to time by Hilti or its Personnel and;

(b) receive the necessary training in respect of Goods supplied;

(c) in connection with the hiring of the Goods or the Goods being otherwise used by third parties, that the Goods are supplied in the original packaging including all method statements, data sheets, labelling and warnings as are supplied with the Goods by Hilti;

(d) use the Goods with the recommended safety equipment in accordance with all applicable method statements and data sheets, and other relevant Hilti safety, training, usage and maintenance instructions and guidelines supplied from time to time; and

(e) comply at all times with all applicable workers’ health and safety laws and regulations, and all other relevant legislation in respect of the Goods and their usage.

13.4 The Buyer shall ensure and guarantee that no companies and persons blacklisted on the respective blacklists of the United States, the European Union, Switzerland or other competent jurisdictions / governments are supplied with products, information, software or technology without the legally required approval. The Buyer shall further guarantee that it does not intend to use any products, information, software and technology delivered by Hilti to the Buyer in or in connection with nuclear technology or weapons of mass destruction (nuclear, biological, chemical) or carriers thereof.

13.5 ON SALE / RE-SELLING

(a) Buyer agrees that upon on-sale/ re-selling of any Goods to third parties it must not make any misrepresentations to third parties about the Goods.

(b) Buyer will ensure that all the Goods (a) (include all applicable instruction-for-use and safety information, (b) are not expired and (c) have been stored and handled at all times while in its possession or control in compliance with all applicable legal requirements and Hilti’s published information (including product labelling and packaging, technical publications, installation instructions, material safety data sheets “MSDS”, etc.). Buyer will additionally ensure that materials with expiration dates are not resold if returned to Buyer more than fourteen (14) days after being initially sold and that the temperature-controlled goods are stored between 5°C and 25°C.

(c) Buyer shall check and ensure that no companies and persons blacklisted on the respective blacklists of the United States, European Union, Switzerland or other competent countries / governments are supplied with goods, information, software or technology without the legally required approval. This includes abiding by all export or re-export restrictions applicable. Buyer shall further guarantee that it does not intend to use any goods, information, software and technology delivered by Hilti or other affiliates of Hilti to Buyer in or in connection with nuclear technology or weapons of mass destruction (nuclear, biological, chemical) and carriers thereof.

(d) Buyer shall cooperate with Hilti in providing relevant information and permits representatives of Hilti to review Buyer’s store locations and sales and service activities in order to review the quality of the goods and services and to ensure that branding and goods handling activities are appropriate.

13.6 INSPECTIONS

(a) Buyer shall examine the Goods immediately after delivery. If the Goods do not correspond with the description of them on the delivery note or invoice or are defective on examination of the Goods, please call customer service on 131 292. If the Goods do not correspond with the order, then provided that the Goods are preserved intact and are returned to Hilti in the same condition as that in which they were delivered, Hilti shall at its discretion replace those Goods or reimburse Buyer for the amount of the purchase price paid for them (and reasonable shipping costs). For defective Goods, Hilt may direct you to return or dispose of those Goods, and Hilti shall at its discretion, repair or replace those Goods or reimburse Buyer for the amount of the purchase price paid for them (and reasonable shipping costs).  Hilti must provide notice of any claim in this respect within 30 days of delivery of the Goods. 

 

14. LIMITATION OF LIABILITY

14.1 Notwithstanding anything to the contrary under these Conditions or any Contract, this clause 14 sets out the entire financial liability of Hilti (including any liability for the acts or omissions of its Personnel) to the Buyer in respect of:

14.1.1 any breach of these Conditions;

14.1.2 any use made by the Buyer of any of the Goods or Services; or

14.1.3 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.

14.2 Hilti shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of turnover or revenue, loss of business, loss of production or opportunity, loss of data, depletion of goodwill or otherwise.

14.3 Hilti shall not be liable for any direct, indirect or consequential loss or damage howsoever arising.

14.4 SUBJECT TO THE FOREGOING, HILTI’S TOTAL LIABILITY (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, MISREPRESENTATION OR OTHERWISE) UNDER OR IN CONNECTION WITH THE PERFORMANCE, BREACH OF STATUTORY DUTY OR CONTEMPLATED PERFORMANCE OF ANY CONTRACT, OR BASED ON ANY CLAIM FOR CONTRIBUTION OR INDEMNITY, SHALL NOT EXCEED A SUM EQUAL TO THE INVOICE PRICE UNDER THE CONTRACT.

 

15. BUYER’ S INDEMNITY

15.1 The Buyer shall be liable for and indemnifies Hilti in respect of all damage or injury to any person or loss of or damage to any property and against all actions, demands, costs, charges, expenses or other loss suffered by Hilti arising:

15.1.1 under any relevant statutes and/or regulations; and/or

15.1.2 in respect of any act, omission, negligence, and/or breach of the terms of these Conditions or otherwise through the default of the Buyer.

15.2 Where Goods supplied by Hilti are used by a third party in a manner not previously agreed in writing by Hilti to be suitable, or in a manner not in accordance with these Conditions, including (but not limited to) clause 13.3, Hilti shall not be liable for any costs, loss, damage, liability or expenses suffered or incurred by the Buyer or any third party arising directly or indirectly from or in respect of such Goods or such use (including for loss of revenue, profits, production, opportunity, business, goodwill and/or of any contract) and the Buyer shall indemnify and keep indemnified Hilti from and against all such costs, loss, damage, liability or expenses suffered or incurred by Hilti as a result of any claim or demand in respect thereof by any third party.

 

16. DEFAULT OR INSOLVENCY OF BUYER

16.1 In the event that:

16.1.1 the Buyer shall be in breach of any of its obligations under the Contract;

16.1.2 any distress or execution shall be levied on the Buyer’s property or assets; or

16.1.3 the Buyer (an individual or partnership) shall make or offer to make any voluntary arrangement or composition with its creditors or become bankrupt or if any bankruptcy petition be presented against him;

16.1.4 (if the Buyer is a company) the Buyer has an administrative receiver or administrator appointed or makes a voluntary arrangement with its creditors, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder, or the Buyer commences to be wound up; or

16.1.5 the Buyer fails to pay its debts as and when they fall due; or

16.1.6 such equivalent event in clause 16.1.1 to clause 16.1.5 occurs to the Buyer in its local jurisdiction;

Hilti at its discretion and without prejudice to any other right or claim may by notice in writing forthwith determine wholly or in part any and all of the other Contracts between Hilti and the Buyer or may (without prejudice to Hilti’s rights subsequently to determine the Contract for the same cause should it so decide) by notice in writing suspend further deliveries of Goods and/or the supply of Services. To the extent any payment has been made by Buyer for Goods or Services not delivered or provided, Hilti shall promptly refund Buyer for any such payments accordingly.

 

17. INTELLECTUAL PROPERTY

17.1 Any intellectual property created by Hilti in the course of the performance of the Contract or otherwise in the design, manufacture or supply of or otherwise in relation to the Goods or the provision of the Services shall remain the property of Hilti. Nothing in these Conditions shall be deemed to have given the Buyer a licence or any other right to use any of the intellectual property of Hilti.

17.2 All logos, trade name or trademarks (‘Marks’) owned or used by Hilti in the course of its business are the property of Hilti. Hilti reserves all intellectual property rights in relation to the use of such Marks. The Buyer may not use, or permit the use of, such Marks or any similar Marks without the prior written permission of Hilti.

 

18. FORCE MAJEURE

Hilti shall be entitled to delay or cancel delivery or to reduce the amount of the Goods and/or Services delivered if it is prevented from, hindered or delayed in manufacturing, obtaining or delivering the Goods and/or Services by normal route or means of delivery through any circumstances beyond its control including, but not limited to, epidemics and pandemics, acts of God, governmental actions, national emergency, acts of terrorism, protests, riot, civil commotion, strikes, lock-outs, other labour disputes (whether or not relating to either party’s workforce), accidents, war, fire, explosion, flood, epidemic, reduction in or unavailability of power at manufacturing plant, breakdown of plant or machinery, shortage or unavailability of raw materials from normal source of supply, or restraints or delays affecting carriers.

 

19. EXPORT / IMPORT CONTROLS

19.1 If the delivery of Goods under a Contract is subject to the granting of an export or import license by a government or any governmental authority under any applicable law or regulation, or otherwise restricted or prohibited due to export or import control laws or regulations, Hilti may suspend its obligations and the Buyer’s rights regarding such delivery under the Contract until such license is granted or for the duration of such restriction and/or prohibition, respectively, and Hilti may terminate the Contract, without incurring any liability towards the Buyer.

19.2 By accepting Hilti’s offer, by entering into any Contract and/or by accepting any Goods from Hilti, the Buyer agrees that it will not deal with the Goods and/or documentation related thereto in violation of any applicable export or import control laws and regulations.

 

20. WAIVER

Except where otherwise stated in these Conditions, the waiver by a party of any right or the failure by a party to exercise any right or to insist on the strict performance of any provision of this Contract shall not operate as a waiver of, or preclude any further exercise or enforcement of any other right or provision of this Contract.

 

21. SEVERABILITY

If one or more of the provisions of these Conditions or the Contract are or will become invalid or unenforceable, or if one or more of the provisions of these Conditions or the Contract are or will become incomplete, the other provisions of these Conditions and the Contract will remain valid without limitation, save that the main obligations of the parties hereunder remain unaffected. Each invalid or unenforceable provision shall be replaced or completed by a valid and enforceable provision in such a way that the new provision closely reflects the legal and economic effects the parties have concurrently aimed at in the invalid or unenforceable provision.

 

22. THIRD-PARTY RIGHTS

A person who is not a party to this Contract has no right to enforce any term of this Contract.

 

23. ASSIGNMENT

The Buyer may not assign, transfer, sub-contract or in any way dispose of its rights or obligations under this Contract without the prior written consent of Hilti (such consent not to be unreasonably withheld or delayed).

 

24. NOTICES

24.1 Any notice required to be served under this Contract shall be served on Hilti at its registered offices, the address of which may be notified to the Buyer by Hilti from time to time, and on the Buyer at the address notified to Hilti in its registration application by first class post, registered air mail or by email or facsimile. The Buyer is responsible for notifying Hilti in writing of any change of address, email address or fax number from those in the Buyer’s registration application.

24.2 Any such notice served by post shall be deemed to have been served seven days after the date of dispatch. In the case of service by email, when the email is available to read in the recipient’s inbox and in the case of facsimile when the addressee’s machine acknowledges receipt thereof provided that a copy of the notice or communication is also put into the post in accordance with clause 24.1 within 24 hours following dispatch of the initial version.

 

25. FAIR COLLECTION NOTICE – DATA PROTECTION

25.1 Hilti shall comply with the provisions of the applicable data protection laws in relation to the processing of any data, including personal data, it obtains from the Buyer or from third parties with the Buyer’s consent, for example, credit reference agencies (“data”). Hilti shall comply with its online Privacy Policy when the Buyer purchases the Goods and/or Services from Hilti through Hilti’s website.

25.2 Hilti may process all data to enable Hilti to do business with the Buyer and for the specific purpose of selling the Goods and/or Services to the Buyer. Hilti will not retain any data for longer than necessary for the legally permissible purposes for which they were collected, as required under applicable retention policies and/or as required or permitted in accordance with applicable law.

25.3 Any data will only be used in connection with the Contracts and any other business Hilti conducts for the Buyer and for any other purpose required for the fair processing of the Buyer’s data or as agreed by the Buyer in a specific context. The Buyer may notify Hilti in writing to cease processing the data if it wishes Hilti to cease using any data which the Buyer has voluntarily given to Hilti. In such circumstances, Hilti reserves the right to terminate the Contract.

25.4 Hilti may disclose the Buyer’s data as required by law, including but without limitation, to prevent a crime, protect Hilti’s, its customers’, its employees’ or other third parties’ safety (such as for fraud protection purposes), discharge a statutory duty or as required by a binding order of a court, a law enforcement authority or a regulator. Hilti will carefully determine the permissibility of disclosing data in each such context, paying particular attention to the type of request, types of data affected and any impact that a disclosure of data would have on the data subject affected. Should Hilti decide to disclose data in such context it will also consider ways of reducing the scope of the disclosure, for instance by redacting the information provided.

25.5 Hilti may share the Buyer’s data with other entities of the Hilti group of companies and with its business partners if there is a legitimate reason to do so and such sharing is legally permissible.

25.6 Hilti may employ third-party service providers to perform certain functions on Hilti’s behalf and under its instructions. Examples include database management, computer maintenance services, web analytics, handling in-bound inquiries, delivering packages, sending postal mail and email, removing repetitive information from customer lists, analysing data, providing sales and marketing assistance, processing credit card payments, and providing customer service. Third-party service providers may for instance include IT companies, credit card processors, credit rating agencies or legal, financial and other advisors.

25.7 As Hilti continues to develop its business, it might sell all or parts of its business. In such transactions, customer data (including the Buyer’s data) generally is one of the transferred business assets, but remains subject to the provisions stated herein, unless the Buyer consents otherwise.

 

26. CONFIDENTIALITY

The Buyer acknowledges that all trade and business secrets as well as all technical, commercial and financial data of Hilti disclosed to the Buyer by Hilti that are not public knowledge is the confidential information of Hilti. The Buyer shall not disclose any such confidential information to any third party without the prior written consent of Hilti and shall not use any such confidential information for any purpose other than as agreed between the parties in writing. The confidentiality obligation shall not apply if a disclosure is mandatory pursuant to applicable law or regulations. Prior to making a mandatory disclosure, the Buyer shall inform Hilti in writing of the need to make such a disclosure and the circumstances requiring it, and the parties shall discuss and agree in good faith upon appropriate means to protect Hilti’s interests.

 

27. ENTIRE AGREEMENT

The Contract sets out the entire agreement and understanding between the Buyer and Hilti in connection with the sale of Goods and the provision of Services and shall supersede and replace all documentation previously issued by Hilti purporting to set out its terms and conditions of sale of Goods and/or Services. The Buyer acknowledges that the Contract has not been entered into wholly or partly in reliance on, nor has the Buyer been given any warranty, statement, promise or representation by Hilti or on its behalf other than as expressly set out in the Contract. To the extent permitted by law, the Buyer agrees that the only rights or remedies available to it arising out of or in connection with any warranties, statements, promises or representations will be for breach of contract and irrevocably and unconditionally waives any right it may have to any claim, rights or remedies including any right to rescind the Contract which it might otherwise have had.

 

28. CHOICE OF LAW AND DISPUTE RESOLUTION

28.1 Any dispute arising out of, or in connection with these Conditions or the Contract shall be construed and operated in accordance with the laws of the State of New South Wales. The application of the UN Convention on the International Sale of Goods is excluded.

28.2 Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales.