TERMS AND CONDITIONS OF SUPPLY (“TERMS”) HYDRO-DIS WATER TREATMENTS SYSTEMS PTY LTD ACN 158 819 777
1. In these Terms:
1.1 “Buyer” means the Buyer of the Goods and/or Scope of Works detailed in the Invoice;
1.2 “Goods” means the goods and services to be supplied by the Seller to the Buyer as detailed in the Invoice and includes any part or parts thereof;
1.3 “GST” has the meaning given in section 195-1 of A New Tax System (Goods and Services Tax) Act 1999 (Cth);
1.4 “Invoice” means the invoice issued by the Seller to the Buyer which details the Goods and/or Scope of Works and the Price to which these Terms are annexed (if applicable);
1.5 “PPSA” means the Personal Property Securities Act 2009 (Cth);
1.6 “Price" means the total amount payable for the Goods and/or Works (if applicable) as detailed in the Invoice, including applicable GST, and delivery costs;
1.7 “Scope of Works” means the scope of works to be carried out by the Seller as agreed between the Buyer and Seller in writing;
1.8 “Seller” means Hydro-Dis Water Treatments Systems Pty Ltd ACN 158 819 777; and
1.9 “Works” means the works detailed in the Scope of Works;
1.10 “Quote” means a quote issued by the Seller to the Buyer for the provision of Goods and/or Scope of Works. These Terms form part of the Quote for the provision of the Goods and/or Scope of Works.
2. These Terms will apply to the supply of Goods and/or Scope of Works by the Seller despite any conflicting terms proposed by the Buyer, unless waived in writing by the Seller.
Supply of the Goods & Scope of Works
3. The Seller agrees to supply the Goods and the Buyer agrees to purchase the Goods on these Terms.
4. The Seller will undertake the works detailed in the Scope of Works (if applicable) on these Terms.
5. The Seller is not liable to the Buyer for any loss, damages, cost or claim resulting from the non-supply of the Goods and/or Works (including any consequential loss).
6. Unless otherwise agreed by the Seller in writing, the Buyer must pay the Price without deduction in accordance with the payment terms detailed in the Invoice and/or Quote.
7. In the event of non-payment of the Price in accordance with these Terms, the Buyer will pay all reasonable collection expenses, legal costs and any other expenses incurred by the Seller in connection with the non-payment by the Buyer.
8. If the Buyer fails to pay the Price to the Seller in accordance with these Terms, the Seller may in its absolute discretion charge the Buyer interest calculated on the portion of the Buyer’s account overdue from time to time at the rate of 2%per month from the date on which such default arose.
9. If the Price is not paid by the Buyer to the Seller in accordance with these Terms, the Buyer acknowledges and agrees that the Seller has the right (without prejudice to any other rights and remedies it may have) to recover, remove and/or resell the Goods and/or any part of the Works (if applicable). For that purpose, the Seller’s employees, agents or workers may without notice enter any place the Seller believes the Goods and/or Works to be without committing a trespass.
10. The Seller will have no obligation to make good any damage caused by the recovery or removal of Goods and/or any part of the Works pursuant to clause 9 and the Seller will not be liable for and the Buyer will indemnify the Seller against any costs, claims, damages or losses suffered by the Buyer as a result of such removal.
Title and Risk
11. In relation to all Goods and/or Works:
11.1 title in the Goods and/or Works will not pass to the Buyer until the Price is paid in full to the Seller;
11.2 risk in the Goods and/or any part of the Works will pass to the Buyer immediately upon delivery to or collection of the Goods and/or installation of the Works;
11.3 until the Seller receives full payment of the Price, the provisions of clause 15 apply and the Seller has the right (without prejudice to any other rights and remedies it may have) to recover, remove and/or resell the Goods and/or Works free from any claims by the Buyer in accordance with clause 9; and
11.4 the Buyer will indemnify the Seller against any costs, claims, damages or losses suffered by the Seller or a third party as a result of the Buyer’s inability to pay the Price for the Goods and/or Works.
12. In relation to all Goods and/or Works, if the Buyer has not paid the Price but sells or otherwise disposes of the Goods and/or Works or any part of them, the monies received in respect of the disposal of the Goods and/or Works will be held on trust by the Buyer for the Seller and will be payable immediately to the Seller.
13. The Seller will deliver the Goods and/or the Works to the Buyer on the delivery date as detailed in the Invoice.
14. The Seller will not be liable for any claim incurred or suffered by the Buyer as a result of delay in the delivery of the Goods and/or Works by the Seller.
15. Where the Seller has supplied Goods and/or Works to the Buyer but where title in the Goods and/or Works has not yet passed to the Buyer, the Buyer acknowledges and agrees that:
15.1 these Terms constitute a Security Agreement for the purposes of the PPSA;
15.2 the Buyer grants the Seller a purchase money security interest (“PMSI”) under the PPSA in the Goods and/or Works and their proceeds to secure all amounts owed to the Seller by the Buyer;
15.3 the Seller may register the PMSI on the Personal Property Securities Register (“PPSR”);
15.4 it will undertake to do all things necessary and provide the Seller on request all information the Seller requires to register a financing statement or financing change statement on the PPSR;
15.5 it undertakes not to change its name in any form or other details on the PPSR without first notifying the Seller; and
15.6 it will, if required by the Seller, pay to the Seller the cost of registering and maintaining registration of the Buyer’s PMSI on the PPSR, within 14 days of the request.
15.7 The Seller need not give any notice under the PPSA (including a verification statement or a financing change statement) unless the notice is required by the PPSA and cannot be excluded.
15.8 No party may disclose information of the kind referred to in section 275(1) of the PPSA (except where the parties may do so and where required due to the operation of section 275(7) of the PPSA) and the Buyer must not authorise the disclosure of such information.
15.9 The Buyer appoints the Seller as its attorney to sign in the Buyer’s name all documents which the Seller considers necessary to enforce and to protect its rights under these Terms.
15.10 The Buyer agrees that to the maximum extent permitted by law, it waives any rights it may have pursuant to, and the parties contract out of, sections 95, 118, 123, 125, 128, 129, 130, 132(1), 132(4), 135, 142 and 143 of the PPSA.
15.11 The Buyer acknowledges that unless otherwise defined in these Terms, the terms and expressions used in this clause 14 have the meanings given to them, or by virtue of, the PPSA.
16. All “water treatment” installations are to be installed by suitably skilled plumbers and electricians as contractors of the Seller unless otherwise agreed between the Seller and the
Buyer in writing.
17. In the event that the Buyer does not comply with clause 16 of these Terms, then any warranty given by the Seller in accordance with clause 18 of these Terms will be void.
18. Any Goods not manufactured by the Seller will be subject to the manufacturer’s warranty (if any).
19. The Seller will provide a warranty for a period of 12 months from installation in respect of the supply and installation of the Goods and/or Works.
20. Except for the relevant manufacturing warranty or as required by mandatory operation of the law, all conditions or warranties in respect of the Goods and/or Works, express or implied, statutory or otherwise, are excluded.
21. To the maximum extent permitted by law, the sole liability of the Seller to the Buyer in respect of any defective Goods and/or Works is (at the election of the Seller) limited to:
21.1 the resupply of the defective Goods to the Buyer; or
21.2 or refund the price paid by the Buyer for the defective Goods;
21.3 the resupply of the defective Works to the Buyer; or
21.4 refund the price paid by the Buyer for the defective Works.
22. The Buyer will indemnify and continue to indemnify the Seller against any claim arising from or in relation to the Buyer using the Goods for a purpose for which they were not designed.
23. Goods may only be returned with the Seller’s consent which must be requested within 5 days of delivery of the relevant Goods. All returned Goods must be returned to the Seller at the Buyer’s cost.
24. The Seller is responsible for cleaning and/or disinfection of that part of the Buyer’s premises where the Goods have been installed and/or Works have been undertaken (“Premises”) so that the condition of the Premises is in the same condition as the condition immediately prior to the installation of the Goods and/or Works being undertaken.
25. In particular, the Seller will clean, remove all chemical spills and ensure that adequate disinfection is undertaken in accordance with the agreed Scope of Works.
26. The Seller is not responsible for the condition of the Buyer’s Premises and will accept no liability in relation to the condition of the Buyer’s Premises.
27. To the maximum extent permitted by law the Buyer indemnifies and keeps indemnified the Seller against any and all claims suffered or incurred by the Seller arising out of:
27.1 any negligent act or omission of the Buyer;
27.2 any breach by the Buyer of these Terns or any applicable law; or
27.3 any action or trespass resulting from the Seller entering the location in accordance with clause 10,
except to the extent that the claim results from the negligence, fault or wilful misconduct of the Seller.
28. To the maximum extent permitted by law, the Seller indemnifies, and keeps indemnified the Buyer against any and all claims suffered or incurred by the Buyer arising out of:
28.1 any negligent act or omission of the Seller;
28.2 any breach by the Seller of these Terms or any applicable law,
except to the extent that the claim results from the negligence, fault or wilful misconduct of the Buyer.
29. Notwithstanding anything in clauses 27 and 28 of these Terms, under no circumstances whatsoever will the either party be liable for any indirect or consequential loss or damage (including loss of profit or loss of opportunity) whatsoever.
30. These limitations and indemnities continue after the expiration or termination of these Terms.
31. These Terms may be immediately terminated by the Seller if:
31.1 the Buyer is in breach of these Terms and fails to remedy that breach within 7 days of receiving notice to do so;
31.2 the Buyer fails to pay any amount outstanding to the Seller after receiving 7 days prior notice that the amount is outstanding; or
31.3 the Buyer becomes bankrupt or insolvent.
32. Either party may terminate these Terms immediately by written notice to the other if:
32.1 the defaulting party commits a material breach of these Terms and that breach is not rectified within 30 days of being notified;
32.2 the defaulting party is presumed insolvent within the meaning of any applicable law, is made bankrupt, is placed into liquidation or any other form of administration relating to insolvent debtors or has a third party take possession of any substantial asset(s) of the defaulting party or if any proceedings are issued or an event occurs intended to lead to any of those consequences.
33. If GST is imposed on any supply made under or in accordance with these Terms, the Buyer must pay the Seller, an amount equal to the GST payable on or for the taxable supply, subject to the Buyer receiving (if required by law) a valid tax invoice in respect of the supply. Payment of this amount must be made at the same time as payment for the taxable supply is required to be made in accordance with these Terms.
34. These Terms are to be governed and interpreted in accordance with the laws of the State of South Australia. The parties agree to submit themselves to the non- exclusive jurisdiction of the courts of South Australia and any competent appellate courts.
35. Any notice to be given by one party to the other must be signed by the party giving the notice or by one of its duly authorized officers. The notice may be faxed to the intended recipient’s facsimile number or e-mailed to the intended recipient’s e-mail address. The notice will be deemed to have been received by the intended recipient upon receipt by the sender of a successful facsimile transmission answerback or in the case of e-mail, on the day of transmission provided that the sender is able to give evidence of transmission and the intended recipient does not give evidence of non-receipt.
36. The Seller may add or vary these Terms from time to time on 7 days’ written notice to the Buyer.
37. No party is liable for any failure to perform its obligations under these Terms if the failure or delay is due to anything beyond that party’s reasonable control. If that failure exceeds 60 days, the other party may terminate these Terms with immediate effect by giving notice to the other party. This clause does not apply to any obligation to pay the Price due by the Buyer in accordance with these Terms.
38. These Terms are strictly personal to the parties and neither of them will assign any of its rights or obligations under these Terms wholly or in part to any person without the other party's consent. The other party’s costs associated with considering any request for consent to an assignment under this clause 38, whether or not consent is granted, will be paid by party seeking consent.
39. Any change in the ownership structure of a party, which has the effect of changing the person or persons in effective management or control of that party, will be deemed an assignment by that party for the purposes of these Terms.
40. Any amendment to a term of these Terms must be made in writing executed by the parties or duly authorised officers on behalf of the parties.