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HydroTerra terms and conditions for website usage

Welcome to our website. If you continue to browse and use this website you are agreeing to comply with and be bound by the following terms and conditions of use, which together with our privacy policy govern HydroTerra's relationship with you in relation to this website.

The term ‘HydroTerra' or ‘us' or ‘we' refers to the owner of the website whose registered offices are BWANA Corporation Pty Ltd. trading as HydroTerra, 2 Wingrove Street Alphington, Victoria 3078 Australia. Our ABN is 45 280 574 976. The term ‘you' refers to the user or viewer of our website.

The use of this website is subject to the following terms of use:
The content of the pages of this website is for your general information and use only. It is subject to change without notice.

Neither we nor any third parties provide any warranty or guarantee as to the accuracy, timeliness, performance, completeness or suitability of the information and materials found or offered on this website for any particular purpose. You acknowledge that such information and materials may contain inaccuracies or errors and we expressly exclude liability for any such inaccuracies or errors to the fullest extent permitted by law.

Your use of any information or materials on this website is entirely at your own risk, for which we shall not be liable. It shall be your own responsibility to ensure that any products, services or information available through this website meet your specific requirements.

This website contains material which is owned by or licensed to us. This material includes, but is not limited to, the design, layout, look, appearance and graphics. Reproduction is prohibited other than in accordance with the copyright notice, which forms part of these terms and conditions.

All trademarks reproduced in this website, which are not the property of, or licensed to the operator, are acknowledged on the website.

Unauthorised use of this website may give rise to a claim for damages and/or be a criminal offence.

From time to time this website may also include links to other websites. These links are provided for your convenience to provide further information. They do not signify that we endorse the website(s). We have no responsibility for the content of the linked website(s).

You may not create a link to this website from another website or document without HyroTerra's prior written consent.

Your use of this website and any dispute arising out of such use of the website is subject to the laws of Australia.

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TERMS AND CONDITIONS – SALE OF EQUIPMENT

Following are the Terms and Conditions applying to the Sale of Equipment by Bwana Corporation Pty Ltd T/as (Hydroterra) to the customer, as individual or organisation placing an order with Hydroterra.

Prices: Unless stated otherwise prices quoted are in Australian dollars and are based on rates of freight, insurance, customs duty, foreign exchange, shipping expenses, cartage and sorting and tracking charges, State and Federal taxes and Charges applying at the date of quotation. Any alterations either before acceptance or during the currency of the contract shall be to the customer account, unless otherwise agreed in writing.

Quotations: Unless otherwise stated, quotations will remain open for acceptance for a period of thirty days (30) after which they will be subject to confirmation by HydroTerra before acceptance of an order.

Ordering: Placing an order with HydroTerra will indicate automatic acceptance of these terms and conditions. Orders placed for the value of less than $100.00 may incur a $50.00 accounting fee. No order for goods will be accepted by HydroTerra unless and until it is received by HydroTerra in writing.

Delivery: Freight is provided using HydroTerra’s nominated carrier only, and is deemed to have occurred upon receipt of the goods at the customer’s premises. Where the customer nominates a carrier, delivery is deemed to have occurred upon delivery to or collection by the customer’s nominated carrier. Where goods are to be collected by the customer from HydroTerra, delivery is deemed to have occurred when the customer has been notified by HydroTerra that the goods are available for collection.

Risk and Ownership:

(a) The risk in all goods supplied shall pass to the customer on delivery by HydroTerra to the customer.
(b) Property in the goods shall not pass from HydroTerra to the customer until payment is made by the customer to HydroTerra for the invoice price of the goods. Until payment in full has been made the customer holds the goods merely as a bailee on trust for HydroTerra. By giving reasonable notice HydroTerra may require the customer to return any goods which remain the property of HydroTerra.

Payment Terms: Unless otherwise provided for, payment terms are strictly payment prior to delivery. HydroTerra reserves the right to suspend shipments to any customer whose account is overdue. Goods to be purchased under finance will normally not be despatched until HydroTerra has been notified by the finance company that the finance has been approved.

Goods and Services Tax (GST): GST at ruling rates will be charged on all goods and services supplied and will be collected by HydroTerra on behalf of the Commissioner of Taxation. No exemptions apply.

Claims: Unless claims for non delivery of goods, incorrect delivery of goods and delivery of goods not in accordance with the order are notified in writing to HydroTerra within 7 days from date of delivery, then the said goods are deemed to be in all respects in accordance with the order and the customer shall be liable for and bound to pay for the goods. Any written notice must give details of the invoice number, invoice date and reason for claim.

Returns: Goods ordered and shipped may only be returned after written approval (Return Authorisation Form) has been given by HydroTerra and any credit due or any repairs/replacement under warranty shall be determined after inspection. A re-stocking fee equal to 30% of the sale price may be applied to goods returned for credit. Except for warranty claims, returns will not be accepted for any reason after 60 days from the date of shipment. Goods
approved by HydroTerra for return must be sent freight pre-paid unless otherwise arranged with Hydroterra. Goods approved by HydroTerra for return freight collect will only be accepted if sent by HydroTerra’s nominated carrier.

Delay in Delivery: HydroTerra undertakes to make every effort to ensure that goods are delivered within the quoted delivery time. Orders for goods not delivered within the quoted delivery time may only be cancelled by the customer giving HydroTerra 7 days notice in writing of the intention to cancel such order and provided the goods have not been delivered by HydroTerra within those 7 days.

Overdue Accounts: HydroTerra may charge the customer bona fide reasonable costs including the costs of any bank fees for dishonoured cheques, collection agencies, solicitor or other legal or accounting costs incurred in the collection of overdue monies. These costs are in addition to any costs awarded by a court of competent jurisdiction.

Warranty: To the extent provided by law, the only warranty that applies to the goods and any work performed by HydroTerra is that of the Manufacturer of the goods. The customer acknowledges this and indemnifies and holds harmless HydroTerra against any and all claims relating to defects in materials and workmanship in the goods supplied.

Liability: (a) Liability of HydroTerra to the customer shall not in any case exceed the purchase price of the goods for which liability arises whether in contract or tort or however. HydroTerra shall not be liable to the customer for any damages or consequential loss including loss of profit or any account however arising from any breach of contract and the customer releases HydroTerra from any such claim.
(b) Subject to the Trade Practices Act 1974 (as amended), no warranty, term or condition shall be implied against
HydroTerra by statute, common law or otherwise. No representation, condition, term or warranty shall be binding upon HydroTerra unless it is written and signed by HydroTerra or a person authorised in writing by HydroTerra.

Repairs: Goods returned for repairs shall be accompanied by a Return Authorisation Form listing the faults found and the work required to be done. No work shall commence until the customer provides HydroTerra with an official order number or written authorisation to proceed with the repairs.

Installation and Commissioning: Unless itemised separately prices quoted do not include installation or commissioning. Installation and commissioning work will be undertaken in accordance with Hydroterra’s standard terms and conditions for Professional Services.

Intellectual Property and Confidentiality: The customer acknowledges that documentation accompanying the goods supplied and in particular any drawings, diagrams, descriptions or illustrations of goods, tables and specifications are or may be the intellectual property of the Manufacturer of the goods and may contain knowledge and information confidential to the Manufacturer. The customer undertakes to keep confidential such knowledge and information and not disclose it to third parties except in so far as it is already in the public domain or required to be exposed by law.

Force Majeure: (a) Neither HydroTerra nor the customer shall be responsible for any failure to fulfil their respective obligations under these terms and conditions if fulfilment has been delayed, hindered, interfered with curtailed or prevented by any circumstance which is not within the reasonable control of the effected party or by compliance with any order, demand, requirement, recommendation or request of any international, national, port, transportation, local or other authority or court having the appropriate jurisdiction or any person purporting to be or to act for such authority or court or any strike, lock out or industrial dispute whether or not HydroTerra or the customer are parties thereto.
(b) If either party fails to perform its duties and/or obligations under these terms and conditions as a result of one or more of the reasons specified above that party shall give written notice to the other of its inability setting out the reason in question and the operation of the contract shall be suspended during the period in which the reason continues. Forthwith upon the reason ceasing to exist, the party relying upon it shall give written notice to the other of this fact. If the reason continues for a period of more than thirty (30) days and substantially affects the commercial intention of the transaction between the parties, the party not claiming relief under this term may terminate the contract upon giving seven days (7) written notice of termination to the other party. Termination shall be without prejudice to any of the rights and obligations of either party approved prior to the date of termination.

Notices: Any notice required under these terms and conditions must be in writing, addressed to the other party and either delivered to that party’s address, sent by mail or transmitted by facsimile or email.
(a) A notice given to a party under (a) above shall be duly given and received on the date of delivery on the third day after posting or on the day of transmission in the case of a facsimile or email.

Governing Law: The Law of the State of Victoria governs these terms and conditions and any legal proceedings pursuant to them.

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TERMS AND CONDITIONS – EQUIPMENT HIRE AGREEMENT

Following are the terms and conditions applying for the hiring of equipment from Bwana Corporation Pty Ltd (HydroTerra):

Instrument Calibration

All HYDROTERRA instruments are subject to calibration/check testing prior to dispatch, however the hirer is responsible for ensuring appropriate calibration prior, during and following the use of an instrument. HYDROTERRA will carry out regular maintenance and repairs due to ordinary wear. HYDROTERRA under no circumstances will be responsible for the validity of instrument readings.

Equipment Repairs & Cleaning

Prior to the dispatch of instruments, HYDROTERRA inspects and cleans instruments to ensure satisfactory performance. The hirer is to follow instrument maintenance guides or instructions, which are provided by HYDROTERRA. Any failure to clean and decontaminate instruments will incur additional costs based on $30 for every 15 minutes (or part thereof) required to carry out repairs and decontamination.

Damage or Loss

The hirer is responsible for all financial liabilities associated with instrument loss or damage during incorrect usage, possession or freight, and HYDROTERRA must be notified immediately any instrument is lost or damaged. The hirer assumes all financial liability for loss and damage of equipment due to misuse, abuse or accident.
The Customer accepts full responsibility to guard the equipment against theft, damage or negligence until it has been returned to HYDROTERRA. In respect to theft, damage or loss of equipment the rental/hire of the equipment shall continue until the item has been adequately repaired (as deemed by HYDROTERRA) or the replacement cost has been paid by the customer to HYDROTERRA.
Replacement of Malfunctioning equipment
In the event of instrument failure or malfunction, HYDROTERRA must be notified immediately, and a replacement will be shipped if available, if the instrument problem is not able to be rectified quickly and easily. Malfunctioning instruments are to be immediately returned to HYDROTERRA. Costs for road freight in such circumstances will be covered by HYDROTERRA; if airfreight is required additional charges are the responsibilities of the renter.

Freight conditions & Charges

HYDROTERRA will dispatch hire instruments using a pre-paid express service, which will be invoiced as freight charges. The return of instruments and associated freight charges is the responsibility of the hirer unless prior arrangements have been made with HYDROTERRA. Any loss or damage to instruments during shipment from the hirer to HYDROTERRA is the responsibility of the hirer. HYDROTERRA must be notified immediately should any shipment problems occur. The hirer must ensure that it is contactable by phone on the day of dispatch and HYDROTERRA must be contacted by 12.00 pm the day before if there are any changes to the agreed day of dispatch, otherwise cancellation fees will apply including freight charges.
Liability
Under no circumstance will HYDROTERRA be liable for any damage, including financial or consequential losses, instrument losses, associated damage to other equipment/instruments, replacement instrument charges or downtime. HYDROTERRA will not be responsible or liable for any loss or damage to a hirer’s business, property, personal injury or death. HYDROTERRA is indemnified by the hirer from any claims arising from, and associated with the hiring of instruments, including all legal fees and charges.

Hire Period

The hiring period commences on the date indicated on the Rental Order Confirmation Form. The duration of the hire is based on the date the instrument(s) are returned to HYDROTERRA. Instruments returned after 12 noon will incur the additional hire cost for that day. There is no charge for equipment held over the weekend, and the minimum hiring period is one day. Any extension to the hire period must be approved by HYDROTERRA.

Daily Rental Rate

Is based on a 24 hour period; Weekly rental rate is based on a seven day period; Monthly rental rate is based on a four week period.

Payment Terms

Payment terms are either in advance or on account, net 7 days from date of invoice. HYDROTERRA reserves the right to suspend shipments to customers where accounts are overdue for payment.Early Cessation

Notwithstanding the rental period, HYDROTERRA expressly reserves the right to early cessation, which may be exercised on demand and at the absolute discretion of HYDROTERRA. In the event that HYDROTERRA so demands the customer shall forthwith return the equipment to HYDROTERRA. The applicable rental shall be adjusted and payable on a pro rata basis

Customer Covenants

The Customer covenants with HYDROTERRA that:
The equipment shall remain the property of HYDROTERRA unless otherwise agreed in writing by HYDROTERRA.
The Customer shall not sell, charge, pledge or part with possession of the equipment.
The Customer shall use the equipment in a careful and proper and responsible manner and will not interfere or tamper with the equipment or let any other person / persons do so.
The Customer shall notify HYDROTERRA immediately if any judgement or order is levied against the Customer or the property of the Customer or if a petition is presented for the liquidation of the Customer or a receiver is appointed or a scheme of arrangement is proposed.
The Customer shall permit HYDROTERRA or its agents or servants to enter the premises where the equipment is located at all reasonable times in order to inspect the equipment and carry out repairs to the equipment.
The Customer requires and will use the equipment for business purposes only.
The Customer accepts full responsibility to guard the equipment against theft, damage or negligence until it has been returned to HYDROTERRA. In respect to theft, damage or loss of equipment the Rental / Hire of the equipment shall continue until the item has been repaired by HYDROTERRA or the replacement cost has been paid by the Customer to HYDROTERRA.

Warranty

HYDROTERRA warrants that each item of equipment rented/ hired is of merchantable quality and fit for purpose for which it was designed and undertakes to repair or replace equipment, which has failed due to defects in materials or workmanship. Without limiting the generality of the foregoing the aforesaid warranty does not extend to repair or replacement of equipment occasioned by:
The failure of the Customer to comply with any instructions or literature supplied with the equipment relating to the storage,
Installation, operation or servicing of the equipment;
Faulty installation or workmanship by a third party, which causes damage to the equipment;
The misuse, neglect or alteration in any manner by the Customer, its agents or employees or any third party.Limitation Of Liability

The Customer acknowledges that it has not relied upon any statement by HYDROTERRA in respect of the Customers purpose for the utilisation of the equipment and that HYDROTERRA is not responsible or liable for the failure of that equipment to perform for the purposes required by the Customer nor for any loss or damage alleged to have arisen from delay in delivery, malfunction or failure of any of that equipment.
Long Term Hire
The Customer agrees that if a hire rate discount has been provided for long term hires and the customer returns the equipment prior to the nominated end date HYDROTERRA reserved the right to charge the customer full value for the period of hire without discount.

Sundry

These Terms and Conditions set forth constitute the entire agreement between HYDROTERRA and the Customer with respect to the equipment and shall not be amended except in writing signed by both parities and the Customer does acknowledge and agree that all other warranties or the suitability of the equipment for any particular use or purpose whether implied or statutory are hereby excluded.

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TERMS AND CONDITIONS FOR PROFESSIONAL SERVICES

Bwana Corporation Pty Ltd and/or HydroTerra Projects Pty Ltd (HydroTerra) and the Client (as described in the accompanying Proposal) agree that any professional services, including subsequent services and charges (collectively the Services), to be provided by HydroTerra relating to the Proposal will be on the following Terms and Conditions. Collectively the Proposal and the following Terms and Conditions form the Agreement between the Client and Bwana Corporation Pty Ltd and/or HydroTerra Projects Pty Ltd (HydroTerra).

1. Standard of Care – HydroTerra shall provide the Services with such skill, care and diligence as is ordinarily exercised by consultants in similar circumstances at the time the Services are provided. HydroTerra shall provide the Client the opportunity to provide feedback regarding the provision of the Services at any time.

2. Site Disturbance – Where fieldwork activities are undertaken as part of the Services, the Client understands that in the normal course of work some surface disturbance will occur. Unless expressly described in the Proposal, or required by law, HydroTerra’s responsibility to make good for disturbance caused during HydroTerra investigation activity shall be limited to uncompacted backfilling of test pits and surface-plugging of boreholes not otherwise capped. Any other repair or re-instatement of pavements or other surface finishes shall be the Client’s responsibility and is not part of this Agreement.

3. Right of Entry, Permits, Site Information and Utilities - The Client shall obtain all necessary permits and licenses and provide right of entry for HydroTerra and its subcontractors to carry out the Services. The Client (at its own cost) shall provide to HydroTerra in advance all relevant and necessary information, documents and other particulars concerning the provision of the Services including but not limited to any on-site hazardous materials and underground utilities. HydroTerra shall rely on such information.

4. Rates – The rates as set out in Schedule 1 are applicable for 6 months after acceptance of the Proposal or the duration of the Services, whichever is lesser. Thereafter the Rates shall be reviewed and adjusted with respect to market conditions.

5. Limitation of Liability - To the maximum extent permitted by law:
a. Subject to paragraphs (b), (c) and (d) below, the liability of HydroTerra, its employees, officers and directors arising out of the performance or non-performance of the Services, whether under law of contract, tort or otherwise, shall be limited in aggregate to the cost of rectifying the works the subject of the Services, or the amount of $300,000, whichever is the lesser
b. HydroTerra shall not under any circumstance be liable to the Client in respect to any indirect, consequential or special losses (including loss of profit, loss of business opportunity and payment of liquidated sums or damages under any other agreement).
c. HydroTerra will be deemed discharged from all liability in respect of the Services, whether under the law of contract, tort, or otherwise, on the expiration of one (1) year from the completion of the Services, the date of invoice in respect of the final amount claimed by HydroTerra pursuant to Clause 5, or the termination of this Agreement, whichever is earliest. The Client shall not be entitled to commence any action or claim whatsoever against HydroTerra or any employee, agent or sub-consultant of HydroTerra in respect of the Services after that date.

6. Third party reliance - Unless expressly agreed by HydroTerra, no third party may rely upon any work product provided under this Agreement. The Client indemnifies HydroTerra from any unlicensed use of or reliance on said work product.

7. Confidentiality – Neither the Client nor HydroTerra shall disclose to third parties or use for any purpose (other than providing or benefiting from the Services) any information provided by the other unless required by law or the information is already available to the public, or the other consents to the disclosure.

8. Dispute - Any dispute between the Client and HydroTerra shall be notified in writing by the aggrieved party to the other within 7 days of the onset of the dispute. It shall be handled as follows:

a. Within 7 days of notification, the parties and their principals shall meet in good faith, without legal representation, in an attempt to resolve the dispute.
b. If the dispute is not resolved under (a), the parties agree that the dispute shall then be subject to final expert determination. The expert shall be chosen by agreement between the parties.
c. The parties irrevocably waive any recourse to further action..
d. Notwithstanding the subject of the dispute, the parties agree to continue to perform all other obligations under this agreement.

9. Termination - Either party may terminate its obligations under this Agreement in the event of a substantial breach by the other party of its obligations and the breach has not been remedied within 30 days of a written notice requiring the breach to be remedied; OR without cause upon giving the other party 30 days' written notice of its intention to do so. HydroTerra may suspend or terminate its obligations under this Agreement in the event of monies payable to HydroTerra for the Services being outstanding for more than 30 days.

10. Assignment - Neither party and their respective successors may assign, transfer, or sublet any obligation under this Agreement without the prior written consent of the other party. Unless stated in writing to the contrary, no assignment, transfer, novation or sublet shall release the assignor from any obligation under this Agreement.

11. Subconsultants - If HydroTerra considers it appropriate to do so, it may, with the Client’s prior written approval, engage another consultant to assist HydroTerra in provision of the Services. Such written permission from the Client cannot be unreasonably withheld. The Client acknowledges that HydroTerra may have retained subconsultants affiliated with HydroTerra to provide Services for the benefit of HydroTerra. To the maximum extent allowed by law, the Client acknowledges and agrees it will not have any direct legal recourse to, and waives any claim, demand, or cause of action against, HydroTerra’s affiliated companies, and their employees, officers and directors.

12. Miscellaneous –
a. This Agreement shall be subject to either the laws of the State of Australia where the Services are provided, or if the Services are provided outside of Australia, the laws of the State of Australia which is the location of the HydroTerra office that is the source of the Proposal.
b. This Agreement is the entire Agreement between the parties for the provision of the Services in the Proposal and supersedes all other agreements, representations, correspondence, and discussions in connection with the Services. In particular, no terms incorporated into or referenced by any Purchase Order, however and whenever presented, shall at any time operate to amend or substitute for the terms of this Agreement.

c. If any Clause of this Agreement is found to be inoperable due to illegality, such Clause is severed from the Agreement and the rest of the Agreement remains in force.
d. Nothing in this Agreement, nor in the performance of the Services, shall be construed as creating a relationship of agency, partnership, or other relationship other than that of Client and Consultant between the parties.

13. Ownership and Use of Work Product - Intellectual property and copyright in all drawings, reports, specifications, bills of quantity, calculations, software, designs of systems and/or products, and other documents (“work product”) provided by HydroTerra in the provision of the Services shall remain the property of HydroTerra. Subject to the Client complying with its obligations under this Agreement, and to the following conditions, HydroTerra grants to the Client a nonexclusive, non-transferable license to use the work product for the purposes described in the Proposal. The Client shall not use, or make copies of, such work product in connection with any work not included in the Proposal without prior written consent from HydroTerra. If the Client is in breach of any obligation to make a payment to HydroTerra, HydroTerra may revoke the license to use the work product and the Client shall return to HydroTerra all originals and copies of work product provided under the Services.

14. Safety – HydroTerra shall be responsible only for its activities and that of its employees and nothing shall imply that HydroTerra has any responsibility for job site safety which is the responsibility of the Client or its agents or contractors. The Client shall provide in advance any environmental, health, or safety policies or procedures it requires HydroTerra to abide by during provision of the Services. If no policies or procedures are provided, HydroTerra shall abide by its own policies and procedures in the provision of the Services. If in HydroTerra’s reasonable opinion it is unsafe to continue, HydroTerra may suspend the Services without penalty until the unsafe condition is rectified. At no time shall HydroTerra be deemed to be in control of the project site unless by prior written agreement in connection with specific Services.

15. Publicity – The Client consents to Hydroterra’s use of a general description of its Services and general images of the Services, in Hydroterra’s internal and external marketing materials, including resumes, proposals, and marketing materials. Neither Party shall otherwise use the name, trade marks, or trade names of the other, in part or in whole, without the other party’s prior written approval.

Payment – The Client shall pay to HydroTerra the Fees and Expenses as set out in the Proposal without set off or deduction. Where this Agreement has been entered into or authorised by an Agent (or a person purporting to act as an Agent) on behalf of the Client, the Agent and the Client shall be jointly and severally liable for payment of all accounts due to HydroTerra under this Agreement. Unless agreed otherwise all monies payable by the Client to HydroTerra shall be paid within thirty (30) days of the date of the invoice. Monies not paid within that period shall attract interest from the date of the invoice until payment at a rate of 1.5% per month, plus debt collection fees where applicable. Client shall notify HydroTerra within ten (10) days of receipt of any invoice of any dispute with the invoice and the parties will promptly meet to resolve the dispute. Unless such notification is received by HydroTerra, the Client agrees the invoice will be deemed valid and payment is due under the terms of this Condition

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