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1.1 Definitions
Contained within Water2water Standard Terms & Conditions of Trade, ‘Water2water’ means Water2water Pty Ltd (T/as The Kandiah Family Trust No2) ACN 104 522 849, ‘the Buyer’ is defined as the company or individual making the purchase of the Service and/or Goods, ‘the Service and/or Goods’ means the materials and/or services subject to a sale or service/rental/maintenance contract between the Buyer and Water2water, ‘Consumer’ has the same meaning as prescribed under the Competition and Consumer Act 2010 (Cth) incorporating the Australian Consumer Law, ‘PPSA’ means the Personal Property Securities Act 2009 (Cth), ‘PMSI’ means a purchase money security interest, as defined in the PPSA, and ‘Proceeds’ has the meaning given to it in section 31 of the PPSA.
1.2. General Terms and Conditions
1.2.1 Any order, sale, service, rental, maintenance quotation and contract confirmed with Water2water shall be subject to these Standard Terms & Conditions of Trade (unless otherwise agreed in writing) to the extent that the same are applicable which are deemed to be agreed and accepted by all parties and override all standard terms and conditions documented, incorporated, or referred to in the Buyer’s order.
1.2.2 Without limiting Clause 1.2.1, these Conditions of Trade operate in conjunction with the Competition and Consumer Act 2010 (Cth) incorporating Australian Consumer Law.
1.2.3 These Conditions of Trade shall be governed by the laws applicable in the State of Western Australia and the Buyer submits to the jurisdiction of the West Australian Courts and Tribunals.
1.2.4 If any clause or part of these Conditions of Trade not being of fundamental nature is held to be illegal or unenforceable, the validity and enforceability of the remainder of these Conditions of Trade shall not be affected.
1.2.5 Conditions of Trade are binding:
In respect of each sale or supply of Goods by Water2water to the relevant Buyer, and in respect of each contract between Water2water and the relevant Buyer for each such sale or supply.
Except as otherwise expressly stated in these Conditions of Trade, these Conditions of Trade do not oblige Water2water to sell or supply any particular Goods to the Buyer.
2.1. Immediately upon despatch from Water2water, the Buyer accepts the Goods and the Goods become the Buyer’s risk, whether the Goods are delivered by Water2water or by others contracted by the Buyer. The Buyer shall take responsibility to insure against loss or damage to the Goods once the Goods are no longer on Water2water’s premises.
2.2 Water2water shall not be held liable in damages for delays, and the Buyer shall not be entitled to refuse or to accept delivery, unless where delay for an unreasonable length of time occurred due to circumstances that were within Water2water’s control without limiting the generality of the foregoing. Circumstances that are deemed not to be within Water2water’s control are Acts of God, trade disputes, fires, business interruptions due to pandemics, war, riots, civil commotions, strikes, lockouts, breakdowns, interruptions of transport, government-mandated actions, and any delays caused by the delivery of Water2water’s suppliers. During any such period of delay, the Buyer, after giving reasonable prior written notice of his intention to do so, shall be at liberty to purchase or rent elsewhere such Goods only as shall be necessary for the Buyer’s immediate requirements and to cancel a delivery from Water2water of any corresponding quantities so purchased or rented. All installation and delivery dates are estimates only.
3.1 The Buyer shall pay the price of the Supply stated on the Water2water invoice which will be the price ruling at the date of delivery inclusive of GST (as defined under the A New Tax System (Goods and Services Tax) Act 1999, as amended (‘the GST Act’)).
3.2 Terms and Prices may be subject to change without notice and unless otherwise specified are exclusive of any GST.
3.3 All stock is ordered subject to prior sale.
3.4 Water2water will provide the Buyer with a valid Tax Invoice that includes the ABN number and all other details required under the GST Act.
3.5 The Buyer shall pay GST at the rate set by the GST Act and provided on the Water2water tax invoice.
3.6 If the cost to Water2water of supplying the Goods not yet delivered is materially increased by any dispute or cause, and the parties are unable to agree on how much such increase shall be borne, Water2water or the Buyer may cancel the contract without liability in respect of the undelivered Goods.
3.7 Unless otherwise stated, the price is exclusive of freight, delivery and packaging costs, installation and relocation costs, bank fees and other such charges that may be notified by Water2water to the Buyer, whether quantifiable or not in advance (‘Price Additions’), any additional costs if incurred are payable by the Buyer unless otherwise agreed in writing.
3.8 Should delivery of the Goods be made in instalments, then each delivery is to be treated as a separate contract. Delay, suspension or failure in any delivery or defect in the Goods delivered shall not vitiate the contract in relation to other Goods.
4.1 The Buyer shall pay the price and the Price Additions (‘Total Price’) before the end of the month following the month of invoice. Unless otherwise stated on the Water2water tax invoice, and or contract or agreement this shall be deemed the ‘Due Date’.
4.2 Unless the Buyer is a Consumer:
4.2.1 Water2water may charge a monthly accounting fee equal to 1.25% of the overdue amount for each month or part thereof that any amount is overdue unless otherwise stated on the Rental Agreement/ Contract or Maintenance Agreement/Contract, in which case the contracted terms and fees may be applied if the Buyer does not pay the full amount of the Total Price on or before the Due Date shown on the Water2water tax invoice; and
4.2.2 Any expenses incurred by Water2water in collecting overdue payments from the Buyer, including debt collection agency, costs to recover goods owned by Water2water, legal and court fees including indemnity costs, lawyer/client costs, party/party costs and costs of any and all dispute resolution processes, shall be payable by the Buyer to Water2water as a debt due forthwith upon demand from Water2water.
4.2.3 The Buyer shall send all monetary amounts due under these Conditions of Trade to the address of Water2water printed on the front of the Water2water tax invoice.
4.2.4. If the Buyer fails to make any payment on the Due Date or becomes bankrupt or enters into liquidation (other than for the purpose of amalgamation or reconstruction) or makes any composition arrangement with creditors or has a receiver appointed of its undertaking, property or assets or any part thereof, Water2water shall have the option to withhold or cancel further orders and deliveries, provided that the failure on the part of Water2water to exercise such option in respect to one or more deliveries shall not affect their right to exercise it in respect of other orders and deliveries.
4.2.5. If the Buyer has been granted credit then the credit can be withdrawn at any time and any orders cancelled by Water2water in its sole discretion.
4.2.6. Any agreement by Water2water to extend the terms of credit or other indulgence granted to the Buyer shall not affect the Buyer’s liability to account to Water2water as aforesaid.
5.1 If:
5.1.2 The Buyer breaches any of these Conditions of Trade;
5.1.3 The Buyer fails to comply with any demand for payment issued by Water2water;
5.1.4 Any cheque tendered by or on behalf of the Buyer is dishonoured for payment;
5.1.5 Any online electronic funds transfer tendered by or on behalf of the Buyer is declined for payment;
5.1.6. Any amount payable by the Buyer to Water2water becomes overdue for payment or, in Water2water’s opinion, the Buyer will be unable to meet its payment obligations to Water2water as they fall due;
5.1.7. Any of the following occurs in respect of the Buyer if it is a company:
5.1.8 The Buyer (being an individual) commits an act of bankruptcy or is or becomes insolvent under administration; then, without prejudice to Water2water’s other remedies under these Conditions of Trade or at law:
5.1.9. Water2water will be entitled to cancel all or any part of any of the Buyer’s orders that remain outstanding;
5.1.10. All amounts owing to Water2water by the Buyer will, whether or not due for payment, become immediately payable by the Buyer;
5.1.11. The Buyer’s right to possess, use up, sell or otherwise deal with Goods in respect of which title has not passed to the Buyer under Clause 11 will cease; and
5.1.12. Water2water will be entitled to enter any premises where the Goods in respect of which title has not passed to the Buyer under Clause 11 are kept and remove, repossess and re-sell all or any such Goods. If Water2water takes such action then Water2water is not liable to the Buyer.
5.2 The Buyer indemnifies Water2water in respect of any claims or actions against, and costs, expenses and other liabilities incurred by, Water2water in relation to the repossession, removal and sale of Goods pursuant to these Conditions of Trade, including, and without limitation, any claims brought by third parties.
5.3 If:
5.3.1 Payment in full of the price of those Goods is due by the Buyer to Water2water;
5.3.2 Water2water retains possession or control of Goods;
5.3.3 Water2water has made the demand in writing to the Buyer for payment of the price of those Goods; and
5.3.4 Water2water has not received the full price of those Goods, then (without limiting any other provision of these Conditions of Trade), whether title in those Goods has passed to the Buyer or remains with Water2water, Water2water may dispose of those Goods and may claim from the Buyer any loss incurred by Water2water on such disposal.
6.1 Water2water excludes all warranties and guarantees in connection with Goods (or advice regarding Goods) supplied to the Buyer other than those which may not be excluded under the Competition and Consumer Act 2010 (Cth) or other relevant legislation. For the avoidance of doubt, this exclusion includes an exclusion of all conditions and warranties implied by custom, the general Law or statute, for damages suffered by the Buyer arising in any way out of the supply, delay in supplying or failure to supply Goods.
6.2. Water2water’s liability under any guarantee, condition or warranty implied or stipulated by the Competition and Consumer Act 2010 (Cth) or similar legislative provision which may not be excluded but may be limited, is limited at Water2water’s option to:
6.2.1. The referral of the Buyer to the manufacturer of the Goods for defect and warranty claims
6.2.2. The replacement of Goods or the supply of equivalent Goods;
6.2.3. The repair of Goods; or
6.2.4. The refund of the price paid by the Buyer for Goods
6.3. Water2water is not liable for indirect or consequential loss however described, (including any goods manufactured by other companies) except for any such liability which may not be excluded by force of the Competition and Consumer Act 2010 (Cth) or similar legislative provision.
6.4. Without limiting the generality of any other provision of these Conditions of Trade, the Buyer:
6.4.1. Acknowledges and accepts that whilst the Goods are;
6.4.2 Shall ensure that it, and where the Buyer may on-sell or supply the Goods to a third party, ensure the third party, is fully aware of all instructions and limitations published or communicated by Water2water or the manufacturers, relating to the maintenance and care of the Goods and the application of the Goods, including but not limited to instructions and limitations:
6.4.3. Acknowledges and agrees that it is responsible, and in the case where the Buyer on-sells or supplies the Goods to a third party, ensure that the third party is aware of their responsibility, to ensure that:
6.4.4. Acknowledges and agrees that it shall not, in the case where the Buyer on-sells or supplies the Goods to a third party, make any representations or claims about the quality, longevity, performance or other aspect of the Goods which has not been expressly authorised by Water2water in writing.
7.1. The Buyer may only return goods to Water2water for credit if:
7.1.2. The prior written approval of Water2water for the return has been obtained; and
7.1.3. The freight costs on the return have been paid by the Buyer.
7.2. If the Buyer returns the Goods otherwise than in accordance with clause 9.1:
7.2.1. Water2water may at its sole discretion accept the return and grant a credit to the Buyer; or
7.2.2. If Water2water does not accept the return, Water2water may hold the Goods on the Buyer’s behalf at the Buyer’s expense for a limited time, until arrangements satisfactory to Water2water are made by the Buyer for the disposal of the Goods.
7.3. Any credit given by Water2water for Goods returned by the Buyer and accepted by Water2water is subject to a re-stocking fee equal to 30% of the purchase price of the Goods plus return packaging and freight expenses.
8.1. No order for Goods placed by the Buyer and accepted by Water2water may be cancelled or deferred without prior consent in writing of Water2water and in the case of custom-made Goods ordered by the Buyer, no order for such Goods may be cancelled after:
8.1.2. Water2water has placed the order for the manufacture of such Goods; or
8.1.3. Water2water has purchased materials required for the manufacture of such Goods.
9.1. Title of each unit of the Goods shall not pass to the Buyer until payment has been received by Water2water in full (each unit being considered as a whole).
9.2. The Buyer unless otherwise agreed by Water2water in writing, shall store the Goods so that they are clearly identifiable as being the property of Water2water until payment has been made in full for the Goods and until the property in the Goods passes to the Buyer.
9.3. If the Buyer fails to make payment in accordance with these Conditions of Trade or Water2water reasonably believes the Buyer is unable to make payment for the Goods within prescribed terms, the servants or agents of Water2water shall be entitled to exercise any of its rights specified in clause 5 hereof.
10.1. The Buyer agrees that these Conditions of Trade and in particular the provisions of clause 11 create a security interest (including, where applicable, a Purchase Money Security Interest (PMSI) in Goods (and their Proceeds) supplied by Water2water to the Buyer from time to time.
10.2. The Buyer agrees to do all things necessary and execute all documents reasonably required by Water2water to register the PMSI granted by the Buyer under these Conditions of Trade and ensure that Water2water retains a security interest in the Goods under the PPSA.
10.3. The PMSI does not lose its priority as a result of the renewal, refinance, consolidation or restructure of the subject matter of these Conditions of Trade or any purchase money obligations of the Buyer.
10.4. Until title to Goods passes to the Buyer under clause 11, the Buyer waives its rights under sections, 95, 118, 120, 121(4), 129, 130, 132(3)(d), 132(4), 135, 142, 143, 157(1) and 157(3) of the PPSA, to the extent that is permitted by law. Water2water may also contract out of any other provisions of the PPSA not specified in this clause 12 as determined by Water2water from time to time, provided that is also permitted under the PPSA.
10.5. Where Water2water has rights in addition to those under Part 4 of the PPSA, those rights continue to apply.
10.6. The Buyer agrees that repossession and retention of Goods pursuant to the PPSA will only satisfy so much of the amounts owing by the Buyer to Water2water as is equivalent to Water2water’s estimation of the market value of the Goods as at the date of repossession, and the repossession and retention will immediately extinguish any rights or interest the Buyer has in the Goods.
10.7. Until title to Goods passes to the Buyer under clause 11, the Buyer must not give to Water2water a written demand, or allow any other person to give to Water2water a written demand, requiring Water2water to register a financing change statement under the PPSA in respect of the Buyer, the Goods, or enter into or allow any other person to enter into the personal property securities register a financing change statement under the PPSA in respect of the Goods.
10.8. The Buyer will be responsible for payment of any fees (and any other costs) that Water2water incurs in relation to investigating or registering its security interest in the Goods, and the fees and costs may be added as a charge on invoices issued by Water2water to the Buyer.
10.9. Money that Water2water receives from or on account of the Buyer may be applied by Water2water in the following order, or in any other order that Water2water may determine in its absolute discretion:
10.9.1. (non-secured obligations) first, to satisfy any obligation owed by the Buyer to Water2water that is not secured by a security interest in Goods;
10.9.2. (secured obligations but not PMSIs) then, to satisfy any obligation owed by the Buyer to Water2water that is secured by a security interest in Goods, but not by a PMSI;
10.9.3. (PMSIs satisfied using related proceeds) then, to satisfy any obligation owed by the Buyer to Water2water that is secured by a PMSI in Goods for that obligation and using proceeds from the sale of the Goods secured by that PMSI; and
10.9.4. (PMSIs satisfied using other sources) then, to satisfy any obligation owed by the Buyer to Water2water that is secured by a PMSI in Goods using funds or proceeds from any source.
10.9.5. The Buyer must not assign or factor its right and interest in any debt owed by a customer of the Buyer to the Buyer on account of the proceeds of the sale of any Goods by the Buyer on credit or deferred payment terms without Water2water’s prior written consent.
11.1. These Conditions of Trade shall not exclude, limit or modify the rights, entitlements and remedies conferred upon the Buyer, or the liabilities imposed upon Water2water under Commonwealth or State legislation, but are subject there to all excludable conditions and warnings which are hereby excluded where the Buyer is not a Consumer.
11.1.1 Buyer as Trustee
11.1.2. Where the Buyer enters into a contract with Water2water in its capacity as trustee of a trust, whether or not disclosed to Water2water and whether or not so expressed in the contract, the Buyer warrants that:
11.1.3. it is the sole trustee of the trust and has the power and authority to enter into the contract;
11.1.4. it does so with the consent of, and for the benefit of, all beneficiaries of the trust;
11.1.5. it does so both in its personal capacity and in the capacity of trustee
11.1.6. it is a right of indemnity from the trust’s assets for all obligations incurred by it; and
11.1.7. it will not remove or resign as trustee without the written consent of Water2water.
12.1. These Conditions of Trade shall be subject to the laws of Western Australia. The jurisdiction of the hearing of any dispute arising out of these Conditions of Trade shall be the State of Western Australia.
13.1. The Buyer acknowledges and consents to the use by Water2water of the Buyer’s personal information and that of its employees, officers and agents for the purpose of supply of Goods to the Buyer hereunder or for general marketing purposes and otherwise in accordance with Water2water’s Privacy Policy, which is available upon request. Other than in the circumstances allowed under the Privacy Act 1988 or Water2water’s privacy policy, Water2water does not disclose such personal information to other parties. The Buyer may contact Water2water at any time to access or change any personal information provided to Water2water.
14.1. These Conditions of Trade may be varied, replaced or deleted from time to time by Water2water and those items so altered shall form part of the contract between the parties in relation to orders and requests for Goods made or placed by the Buyer with Water2water.
14.2. Failure by Water2water to insist upon strict performance of any term of any contract between the parties or of any of these Conditions of Trade shall not constitute a waiver of similar or subsequent breach and the rights of Water2water to enforce these Conditions of Trade and those in any contract shall remain valid and subsisting.
15.1. The Buyer must not assign any rights or benefits under these Conditions of Trade unless the Buyer has obtained Water2water’s prior written consent. Any change in any ownership interest in the Buyer will be treated as an assignment for the purposes of Clause 15.1. Any assignment by the Buyer without Water2water’s written consent will release Water2water (at its discretion) from Water2water’s obligations under these Conditions of Trade, and clause 15.1 will apply.
15.2. Water2water may assign, sub-contract or license any of its rights, benefits or obligations under these Conditions of Trade without the Buyer’s consent.
16.1. If any provision of these Conditions of Trade, or any provision of a contract between Water2water and the Buyer regarding Goods, is or at any time becomes void or unenforceable, the remaining provisions will continue in full force and effect.
17.1. Time is of the essence of these Conditions of Trade and any contract between Water2water and the Buyer regarding Goods. Neither failure nor delay by Water2water to exercise any power, right or remedy will operate as a waiver by Water2water of that power, right or remedy.
18.1. In these Conditions of Trade unless the context otherwise requires:
18.2. The singular includes the plural and vice versa and a gender includes any gender.
18.3. A reference to these terms and conditions includes the terms of any privacy statement or policy issued by Water2water from time to time.
18.4. Headings are for convenience only and must be ignored when construing these Conditions of Trade.
18.5. A reference to a party includes that party’s successors, permitted assigns or substitutes, executors and administrators.
18.6. References to clauses, paragraphs, recitals, schedules, annexures and exhibits are references to clauses, paragraphs, recitals, schedules, annexures and exhibits in these Conditions of Trade.
18.7. Other parts of speech and grammatical forms of a word or phrase defined in these Conditions of Trade have a corresponding meaning.
18.8. A reference to a person includes any company, firm, partnership, joint venture, association, corporation, or other body corporate and any governmental agency and vice versa.
18.9. A reference to any agreement, contract or document is also a reference to that agreement, contract or document as amended, notated, supplemented, or replaced from time to time.
18.10. A reference to a law includes regulations and other instruments under it and amendments or replacements of any of them whether now or in the future.
18.11. Any reference to “writing” includes an electronic communication and “written” is to be interpreted accordingly.
18.12. Terms defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth), the Corporations Act 2001 (Cth) or the PPSA, PMSI have the same meaning in these Conditions of Trade unless provided otherwise.
18.13. “Including” and any other similar words are not words of limitation.
18.14. An agreement, deed, covenant, representation or warranty on the part of two or more persons is for the benefit of them jointly and severally.
18.15. Any indemnity is an irrevocable, continuing and unconditional indemnity and remains enforceable despite any variation to the obligations.
18.16. General words following words describing a particular class or category are not restricted to that class or category.
If you have any questions or would like more information, please call us on 1300 880 303 or email purify@water2water.com.au.
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