Conditions of Sale

 The Supplier has agreed to the supply of, and the Customer has agreed to buy, the Goods on the terms and conditions of this Agreement.

Where the Goods supplied are wastewater treatment systems (including but not limited to HSTPs, AWTS, all waste septics and CEDs) and/or concrete water tanks the Customer shall also be bound and refer to the Supplementary Standard Conditions document.  .

1.                             DEFINITIONS AND INTERPRETATION

1.1                          Definitions

In this Agreement, unless the context otherwise requires:

"Waterpac Australia" means Waterpac Australia Pty Ltd, a company incorporated in Australia and its related bodies corporate.

"Business Day" means:

(a)                          for the purposes of clause 14.1, a day that is not a Saturday, Sunday, public holiday or bank holiday in the city where the notice is received; and

(b)                          for all other purposes, a day that is not a Saturday, Sunday, public holiday or bank holiday in Brisbane, Australia;

“Customer” means the person or other entity whose name appears on the Application for Credit and Conditions of Sale or the Tax Invoice.

“Delivery Address” means the property identified by the Customer as the address to which the Goods are to be delivered.

"Dollar" or "$" means the lawful currency of the Commonwealth of Australia;

"Force Majeure Circumstance" means, in respect of a party, any circumstance or event which, despite using all reasonable endeavours, the party is unable to control, including any act of God, flood, fire, damage caused by lightning, storm or tempest, rains falling during normal dry seasons, industry wide strikes, or industry wide lockouts or other industry wide industrial disturbances, acts of war, civil disturbance or enactments of any Government Agency;

"Goods" means the goods and/or services supplied by Waterpac Australia including but not limited to water tanks, fittings and pumps, water and wastewater treatments systems and UV systems;

"GST" means any applicable goods and services tax, value added tax or any other like tax, including goods and services tax as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

"Intellectual Property Rights" means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of copyright, patents, inventions, trade secrets, know-how, product formulations, confidential information, designs, circuit layouts, databases, trade marks, brand names, business names, applications for any of the foregoing and any improvements, enhancements or modifications thereto;

"Order" means a purchase order for Goods, submitted from time to time by the Customer to Waterpac Australia under this Agreement;

"Price" means the price specified on the tax invoice, as adjusted by Waterpac Australia from time to time;

"Third Party Interest" means any Security Interest, lease, option, voting arrangement, easement, covenant, notation, restriction, interest under any agreement, interest under any trust, or other right, equity, entitlement or other interest of any nature held by a third person.

1.2                          Interpretation

In this Agreement, unless the context otherwise requires:

(a)                          a reference to:

(i)                            the singular includes the plural and vice versa;

(ii)                           a gender includes all genders;

(iii)                          a document (including this Agreement) means that document (including any schedules and annexures), as amended, consolidated, supplemented, novated or replaced;

(iv)                         an agreement includes any deed, agreement or legally enforceable arrangement or understanding whether written or not;

(v)                          parties means the parties to this Agreement and to a party means a party to this Agreement;

(vi)                         a recital, clause, schedule, annexure or item means a recital, clause, schedule, annexure or item of this Agreement;

(vii)                        a notice means a notice, approval, demand, request, nomination or other communication given or served by one party to another under or in connection with this Agreement;

(viii)                       a person (including a party) includes:

(A)                         an individual, company, other body corporate, association, partnership, firm, joint venture, trust or Government Agency;

(B)                          the person's successors, permitted assigns, substitutes, executors and administrators; and

(C)                          the representative member of the GST group to which the person belongs to the extent that the representative member has assumed rights, entitlements, benefits, obligations and liabilities which would remain with the person if the person were not a member of a GST group;

(ix)                         a law:

(A)                         includes any legislation, treaty, judgement, rule of common law or equity or rule of any applicable stock exchange;

(B)                          means that law as amended, consolidated, supplemented or replaced; and

(C)                          includes any regulation, rule, statutory instrument, proclamation, by-law or other subordinate legislation made under that law;

(x)                          proceedings includes litigation, arbitration and investigation;

(xi)                         a judgement includes an order, injunction, decree, determination or award of any court or tribunal;

(xii)                        including or includes means including or includes (as the case may be) without limitation; and

(xiii)                       time means Brisbane, Australia time;

(b)                          headings are for convenience only and are to be ignored in interpreting this Agreement;

(c)                          where a word or phrase is defined, its other grammatical forms have a corresponding meaning;

(d)                          where an obligation, warranty, representation or covenant is assumed or given by more than one person, it will bind them jointly and severally;

(e)                          where a payment or other act must be made or done on a day that is not a Business Day, then it must be made or done on the next Business Day; and

(f)                           this Agreement must not be construed adversely to a party only because that party was responsible for preparing it. 

2.                             SUPPLY OF GOODS

(a)                          All supplies of Goods by Waterpac Australia to the Customer during the term of this Agreement will be on the terms and conditions of this Agreement.

(b)                          No other terms or conditions will apply to the supplies of Goods by Waterpac Australia unless they are accepted in writing by Waterpac Australia.

(c)                          The Customer acknowledges that Waterpac Australia’s supply of Goods is subject to availability at the time of ordering.

(d)                          Waterpac Australia will not be liable in any circumstances for failure to supply any product ordered by Customer.

(e)                          Waterpac Australia reserves the right to discontinue any product or change its design at any time.

(f)                           In the event of the discontinuance or change in design of Goods, Waterpac Australia is not liable for supply of any outdated Goods.   The Customer may update to the new model at their own cost.

3.                             ORDERS

(a)                          The Customer must submit an Order directly to Waterpac Australia.

(b)                          Any Purchase Order submitted by the Customer to Waterpac Australia will constitute an offer on the terms and conditions of this Agreement, as amended or supplemented by the express terms of the Purchase Order.

(c)                          If Waterpac Australia accepts an Order, Waterpac Australia and the Customer will be contractually bound to complete the Order in accordance with the terms and conditions of this Agreement.

(d)                          Orders can only be modified, suspended or cancelled after negotiation and agreement between the Customer and Waterpac Australia.  The Customer must indemnify Waterpac Australia in respect of any expenses incurred by Waterpac Australia relating to the modification or cancellation of any order.  An administration fee of 10% or $50 (whichever is the greater) will apply.

(e)                          Waterpac Australia reserves the right to decline to trade with any company or person.  Waterpac Australia has no obligation to provide an account for exercising this right.

4.                             EXPORT ORDERS

(a)                          Customers are responsible for the costs of and obtaining of any and all licences required when ordering Goods that are required to be exported to another country. 

(b)                          Customers are responsible for complying with any and all export and import regulations which are in force in Australia and the destination country when ordering Goods that are required to be exported to another country.

5.                             DELIVERY

5.1                          Point of delivery

(a)                          Waterpac Australia will unload tanks at the nearest, most easily accessible point within the boundaries of the Delivery Address.

(b)                          The point of delivery will be at the discretion of the driver, with regard to Workplace Health and Safety requirements.

5.2                          Timing

(a)                 Waterpac Australia will:

(i)                            inform the Customer of the delivery date at least 24 hours prior to the intended delivery;

(ii)                           use reasonable endeavours to meet delivery estimates;

(iii)                          promptly notify the Customer if it seems likely that delivery of the Goods will be delayed for any reason.

(b)                 Where the Customer is required to be present for the delivery, the Customer will:

(i)                            make themselves or their agent available between 6 am and 6 pm on the delivery date;

(ii)                          provide at least 48 hours notice if they require the delivery date to be   changed;

(iii)                          pay a reschedule fee of $66.00 where the notice required by clause 6.2 (b) above is not given;

(c)                                       Where delivery is unable to be affected due to the absence of the Customer, the Customer agrees to:

(i)             pay the costs associated with a second delivery;

(ii)                  pay a reschedule fee of $66.00.

(d)                 Waterpac Australia in no circumstances will be held liable to compensate the Customer for non-delivery or late delivery.

5.3                          Risk and Damage in Transit

(a)                          Risk to the Goods will be deemed to have passed to the Customer upon delivery in accordance with clause 5.

(b)                          If on delivery, any Goods are found to be damaged, it is the Customer’s responsibility to either:

(i)                            Refuse delivery and notify Waterpac Australia of this refusal in writing within 3 business days of delivery;

(ii)                           Note the damage on the delivery docket or receipt of delivery and notify Waterpac Australia of the damage in writing within 3 business days of delivery.

(c)                          If the Customer:

(i)                            provides the delivery driver with an unqualified signed delivery docket or receipt of delivery; OR

(ii)                           has noted the damage on the delivery docket or receipt of delivery

and fails to notify Waterpac Australia of any damage or defect in the Goods within 3 business days of delivery, the Customer shall be deemed to have received the Goods in good order and condition.

(d)                 Waterpac Australia in no circumstances will be held liable for any loss or damage to Goods in transit however arising, unless the carrier has admitted liability and paid for the damage caused to the Goods.

5.4                          Force Majeure

(a)                          Subject to clause 5.4(b), if delivery of the Goods is delayed due to any Force Majeure Circumstance:

(i)                            Waterpac Australia may at its option delay or cancel the whole or part of this Agreement; and

(ii)                           Waterpac Australia will not be in default under this Agreement, nor be liable for any Loss incurred or suffered by the Customer, for that reason only.

(b)                          The right of Waterpac Australia to rely on clause 5.4(a) is conditional on it:

(i)                            promptly notifying the Customer of the nature of the Force Majeure Circumstance and the way in which, and the extent to which, delivery is delayed;

(ii)                           using all reasonable endeavours to limit the effects of the Force Majeure Circumstance and to complete delivery of the Goods as soon as practicable; and

(iii)                          promptly notifying the Customer of any material change in the Force Majeure Circumstance.

6.                             PAYMENT

6.1                          Price

(a)                          The Customer will pay Waterpac Australia the Price for Goods that are delivered in accordance with this Agreement.

(b)                          Unless otherwise specified, quoted Prices are exclusive of all Taxes.

(c)                          Waterpac Australia reserves the right to change the price of any Goods without notice. 

(d)                          Any prices quoted in writing by Waterpac Australia will be for a period of 7 days from the date of offer.

6.2                          Payment of invoices

(a)                          Waterpac Australia provides to the Customer an invoice with each Order of Goods.  Subject to withholding under clause 6.4(a), payment is due in full immediately upon receipt of the invoice by the Customer.

(b)                          Payment is to be made in advance or by cash on delivery, unless credit arrangements have been approved in writing by Waterpac Australia.

6.3                          Credit Arrangements

(a)                            If credit arrangements have been approved by Waterpac Australia, payment is due Net 7 days upon receipt of the invoice by the Customer (“the due date”).

(b)                          If any amount is not paid Net 7 days under a credit arrangement, the Customer shall pay interest on the outstanding amount at the rate of 5% per annum above the current base lending rate of Waterpac Australia.

(c)                          Interest is payable from the due date until the amount is actually paid, and before and after any judgment being obtained by Waterpac Australia against the Customer in respect of the amount owing.

 6.4                          Disputed invoices

(a)                          If the Customer, acting reasonably and bona fide, disputes the amount of an invoice provided under clause 6.2, it may withhold the disputed portion pending resolution of the dispute, but it must still pay the undisputed portion by the due date for that invoice.

(b)                          If Waterpac Australia and the Customer are unable to resolve a dispute over the amount of an invoice within 5 Business Days of the due date for that invoice, clause 11 will apply.

(c)                          The Customer must pay Waterpac Australia interest in accordance with clause 6.3 on any amount withheld under clause 6.4(a) which is subsequently agreed, or otherwise determined, to be payable by the Customer.

(d)                          If legal action is taken by Waterpac Australia to recover monies due, then Waterpac Australia reserves the right to charge the Customer all fees incurred in such proceedings.  This provision is without prejudice to any of Waterpac Australia’s other rights and remedies under these Conditions of Sale or at law.

7.                             GST

(a)                          If a party ("GST Supplier") makes any supply to another party ("GST Recipient") in connection with this Agreement (including the supply of the Goods), the GST Recipient must pay to the GST Supplier an amount equal to any GST payable to the relevant taxing authority by the GST Supplier in relation to that supply ("GST Amount"), unless the amount payable by the GST Recipient for that supply is already expressed to be inclusive of GST.

(b)                          The GST Recipient's obligation to pay the GST Amount is conditional on the GST Supplier providing to the GST Recipient a tax invoice complying with any law under which GST is imposed.  The GST Supplier must do all other things reasonably requested by the GST Recipient to enable the GST Recipient to obtain any input tax credit or other statutory set-off to which it is entitled.

8.                             OWNERSHIP

(a)                 Ownership of the Goods is retained by Waterpac Australia until the Purchase Price is paid in full (including any outstanding interest incurred pursuant to Clause 6.3) for the Goods and for all other Goods supplied by Waterpac Australia to the Customer.

(b)                 The Customer shall not have any power to mortgage, charge or encumber the Goods whilst in its possession until payment in full has been made.

(c)                 In the event that the Customer defaults in payment of the Goods sold by Waterpac Australia or if a receiver is appointed of any of the Customer’s assets or if the Customer becomes insolvent or is adjudicated bankrupt or enters into an arrangement or compromise with its creditors, Waterpac Australia may take possessions of the Goods and may enter on to any premises in which the Goods are located for the purpose of doing so without notice.

 

9.                             RETURNS

(a)                          The Customer must telephone the sales office of Waterpac Australia before returning any goods.  The Customer must supply the office with the original invoice number and the date of purchase.  A Return Authorisation Form will be issued in approved cases.

(b)                          Any returned Goods must be received by Waterpac Australia within 7 days of the date of the original delivery and must be in their original packaging. 

(c)                          Goods will not be acceptable as returns unless they are returned undamaged, unaltered and in their original packaging.

(d)                          The Customer accepts liability for all freight costs incurred in the return of Goods including return for warranty repair or replacement.

(e)                          A restocking fee of $50 or 10% of the Purchase Price (whichever is greater) will be payable on all returns.

10.                          WARRANTIES

10.1                       Subject to limitations

For the avoidance of doubt, this clause 10 is subject to clause 12.

10.2                       General

Each party represents and warrants to each of the other parties that:

(a)                          this Agreement constitutes a full and binding legal obligation upon it;

(b)                          it has taken all necessary corporate or other action to properly authorise the execution of this Agreement;

(c)                          it has full corporate authority or statutory power (as the case may be) and lawful authority, to execute this Agreement and to properly perform its obligations under this Agreement;

(d)                          to its knowledge, there are no Claims pending or threatened against it which may have a material effect upon the subject matter of this Agreement.

10.3                       Goods

Waterpac Australia represents and warrants to the Customer that:

(a)                          Waterpac Australia has the right to supply the Goods in accordance with this Agreement and the Goods will be supplied to the Customer free of all Third Party Interests;

(b)                          the supply of the Goods to the Customer, and the subsequent use of the Goods by the Customer, will not infringe the Intellectual Property Rights of any third person;

(c)                          the Goods comply with all applicable Australian laws and standards, including with respect to safety, packaging and labelling; and

(d)                          the Goods will:

(i)                            be of good and merchantable quality and fit for the purpose for which goods of the same or a similar nature as the Goods are commonly supplied; and

(ii)                           not contain any material defects in design, workmanship or materials,

for the period specified in the relevant manufacturer’s warranty.

10.4                       Warranty Claims

(a)                          Waterpac Australia will not be responsible for any defect in the Goods to the extent that it was caused or contributed to by the negligent or reckless installation, use or repair of the Goods.

(b)                          Any advice, recommendation, information, assistance or service (“Customer Information”) provided by Waterpac Australia in relation to the Goods is given in good faith and is believed to be appropriate and reliable, and such Customer Information provided and any statement or representation made by Waterpac Australia in relation to any Goods supplied is provided or made without liability or responsibility on the part of Waterpac Australia. 

(c)                          To the fullest extent permitted by law, the Customer releases Waterpac Australia from and against all liability whatsoever for any injury, loss or damage sustained by the buyer howsoever arising.

(d)                          It is the Customer’s responsibility to ensure and satisfy itself that the Goods and any method of use or application of the Goods are suitable for that Customer’s purposes and the risk of any damage or loss or adverse consequences arising or resulting from the purchase or use of the Goods is voluntarily assumed by the Customer.

(e)                          Subject to Clause 5.3(b), Waterpac Australia warrants to the Customer that, at it’s option, Waterpac Australia shall supply the same quantity of the Goods as replacement for the defective Goods or refund to or credit the Customer with the purchase price of the defective Goods. 

(f)                           Subject to the Customer complying with Clause 5.3(b) and Clause 10.4(e), and where the Goods are warranted directly by the Manufacturer, in the event that any such Goods are found to have a manufacturing defect, Waterpac Australia Pty Ltd will endeavour to transfer to the Customer the benefits of any warranty given to it by the manufacturer of the products

(g)                          The Customer accepts liability for all freight costs incurred in the return of products including warranty repair or replacement of faulty goods without exception.

(h)                          Waterpac Australia Pty Ltd shall not be liable to the Customer for defective Goods if the defect arises because the Customer has:

(i)                            Repaired or altered the Goods without written consent of Waterpac Australia Pty Ltd authorised officers or

(ii)                           Subjected the Goods to conditions outside the manufacturer’s stated instructions on storage, usage, installation, use or maintenance.

(i)                   Waterpac Australia provides direct warranty for the following Goods only:  Nature Flow® System Water Treatment Systems (excluding UV glassware) and Nature Flow® Wastewater Treatment Systems (excluding pumps, tanks & UV glassware).  All other Goods supplied are warranted by the direct manufacturer of the Goods – the Customer will be directed to seek warranty through the appropriate manufacturer of the Goods.  

 

11.                          INDEMNITIES

11.1                       Subject to limitations

For the avoidance of doubt, this clause 11 is subject to clause 12.

11.2                       Defective Goods

(a)                 The Supplier hereby indemnifies the Customer against any Claim or Loss that may be brought against or incurred or suffered by any of them (as the case may be) and which arises directly or indirectly out of any Defective Goods or allegedly Defective Goods, except to the extent that such Claim or Loss was caused or contributed to by the Customer.

11.3               Intellectual Property Rights

(a)                 The Customer warrants that any design or instruction furnished to Waterpac Australia Pty Ltd will not be such as will cause Waterpac Australia Pty Ltd to infringe any patent, registered design or trademark in the execution of the Customer’s order.

(b)                 The Customer agrees to indemnify Waterpac Australia Pty Ltd against any infringement or unauthorised use of patents, trademarks, designs or copyrights arising out of the manufacture and use of the Goods.

(c)                 It is specifically agreed that the sale and the purchase of the Goods does not confer on the Customer any license or rights under any patents, trademarks, designs or copyrights the property of Waterpac Australia Pty Ltd.

12.                          LIMITATION OF LIABILITY

12.1                       Consequential loss

(a)                          Waterpac Australia’s liability for any Claim or Loss in connection with this Agreement will not extend to any indirect or consequential loss relating to, but not limited to:

(i)                            Electrical connections, removal of excess spoil from excavations and identification of underground services;

(ii)                           Collision with underground services or obstructions;

(iii)                          The Customer or their agent’s voluntary assistance to transport and/or locate the Goods supplied and/or delivered by Waterpac Australia to the Customer.

12.2                       Duty to mitigate

(a)                 Each party must take all reasonable steps to mitigate the effect on that party of any Claim or Loss for which another party may be liable under this Agreement.

13.                          DISPUTES

(a)                          In the event that there is an unresolved dispute between the parties in connection with this Agreement, each of the disputing parties must promptly nominate a senior representative and those representatives must promptly commence good faith discussions in an attempt to resolve the dispute without resorting to formal proceedings.

(b)                          No party may commence formal proceedings until at least 10 Business Days after the commencement of discussions under clause 13(a), except to:

(i)                            seek urgent interlocutory relief;

(ii)                           avoid the expiration of any applicable statutory limitation period; or

(iii)                          preserve a priority in relation to other creditors.

(c)                          Pending the resolution of a dispute in accordance with this clause 13, the parties must continue to perform their obligations under this Agreement to the extent that those obligations are not the subject of the dispute and it is reasonably practicable to do so.

14.                          GENERAL PROVISIONS

14.1                       Notices

(a)                          All notices given or served under this Agreement must be in legible writing, in English and sent to the recipient at the address or facsimile number set out below, or the address on the tax invoice or such other address or facsimile number specified by the recipient from time to time:

Supplier	Waterpac Australia Pty Ltd
Address:	PO Box 189, Jimboomba QLD 4280
Facsimile:	07 5546 9566
Attention:

 

Customer
Address:
Facsimile:
Attention: