1. General
Unless the context otherwise requires:
Agreement means the agreement between Aquamonix Pty Ltd T/a AQX Solutions and Customer for the supply of Goods by AQX Solutions to Customer and shall be constituted in its entirety by these Terms and Conditions of Sale and, if any, AQX Solutions’ quotation and the Confidential Credit Application and Agreement;
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010.
Credit Arrangement means the credit terms available to Customer pursuant to an application by Customer for the provision of Goods on credit submitted to AQX Solutions using AQX Solutions’ standard credit application form and accepted in writing by AQX Solutions (referred to as the Confidential Credit Application and Agreement); Customer means the party to whom AQX Solutions has agreed to supply Goods pursuant to the Agreement;
Goods means the goods and/or services agreed to be supplied by AQX Solutions and purchased by Customer pursuant to the Agreement;
GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or, if that Act does not exist means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act;
Guarantee means the guarantee document provided by Customer or Customer’s directors, shareholders or principals to AQX Solutions to guarantee the performance of the Agreement by Customer;
Proprietary Information means any and all information and intellectual property relating to the Goods or the installation or operation of the Goods including but not limited to patents, designs, drawings, instruction booklets, specifications, circuit drawings, componentry, trade secrets, trademarks and copyright in such information and intellectual property;
Purchase Order means the written purchase order by Customer to AQX Solutions for the supply of the Goods;
AQX Solutions ABN 26 609 047 878
2. Quotations and purchase orders
(a) Subject to the clause immediately below, quotations from AQX Solutions are valid for a period of 30 days from the date of issue or as otherwise specified in the quotation. Prices given in any quotation by AQX Solutions are applicable to that quotation only, and will not apply in any other instances. A quotation from AQX Solutions is not an offer to sell.
(b) In order to purchase the Goods, Customer must place with AQX Solutions a Purchase Order setting out an order number, AQX Solutions’ quotation number (if applicable), full description of the Goods to be purchased, the delivery date, delivery point and any other information required by AQX Solutions. The Purchase Order may be accepted or rejected by AQX Solutions at AQX Solutions’ sole discretion.
(c) A contract shall be formed by and upon AQX Solutions accepting from Customer a Purchase Order pursuant to the clause immediately above, and each contract shall be governed by the Agreement.
(d) The Agreement shall take precedence over any other representations, agreements, arrangements or understandings relating to the Goods and any matters in connection with the Goods.
(e) Any conditions or terms of purchase submitted by Customer deviating from or inconsistent with the Agreement will not bind AQX Solutions, notwithstanding any statement by Customer in its Purchase Order that its terms and conditions prevail over the Agreement.
(f) Where the Goods to be supplied contain raw materials, the price and availability of which is unpredictable (for example, PVC, copper, steel), and there is a lack of availability of such raw material either to enable AQX Solutions to supply the Goods or to supply the Goods at the price stated in the Purchase Order, AQX Solutions may, at its sole option:
(i) expend additional time to make reasonable efforts to attempt to locate raw material, and if raw material cannot be located, serve notice of immediate termination of the Purchase Order under the Agreement; or
(ii) endeavour to reach agreement with Customer on an increase in the purchase price for the Goods, and if agreement cannot be reached, serve notice of immediate termination of the Purchase Order under the Agreement; or
(iii) serve notice of immediate termination of the Purchase Order under the Agreement.
In no case shall AQX Solutions have any liability to Customer as a result of termination, but Customer shall pay to AQX Solutions the purchase price of Goods actually supplied under the Agreement.
3. Payment of purchase price
(a) Unless otherwise agreed in writing, AQX Solutions accepts Purchase Orders subject to the condition that Customer agrees to pay the purchase price appearing on AQX Solutions’ price list for those Goods current as at the date that AQX Solutions accepts the Purchase Order.
(b) If applicable, a copy of AQX Solutions’ publicly available price list for the Goods is available on request. All prices on AQX Solutions’ price list are subject to alteration without notice.
(c) The total purchase price, unless otherwise stated in the Purchase Order, includes GST but does not include any delivery charges, packaging, freight, assembly costs, installation costs, costs and charges of third party suppliers such as electricians, insurance or any statutory, sales, excise, or other taxes, duties or imposts, all of which may be added to the purchase price or otherwise will be paid by Customer or reimbursed by Customer to AQX Solutions, as AQX Solutions may elect.
(d) Payment of the purchase price must be made in full within 30 days after the date of the invoice or otherwise in accordance with Customer’s Credit Arrangement.
(e) Customer must not set off any money owing or alleged to be owing by AQX Solutions against money due by Customer to AQX Solutions.
(f) Customer acknowledges that AQX Solutions is a member of the Envirada Pty Ltd Group. Customer agrees that AQX Solutions and/or any other Envirada Pty Ltd Group company is entitled to exercise a right of set off to the extent Customer is indebted to AQX Solutions or to any Envirada Pty Ltd Group company against any monies due by AQX Solutions to Customer or any Envirada Pty Ltd Group company on this or any other account.
(g) If Customer does not pay money by the due date for payment, without prejudice to any other rights which it may have against Customer, AQX Solutions may require Customer to pay on demand interest at the Westpac Indicator Lending Rate effective from time to time plus 8% per annum calculated from the due date on daily balances of amounts unpaid.
4. Cancellation of orders
Customer may not alter or cancel a Purchase Order without AQX Solutions’ prior written consent. If AQX Solutions agrees to alter or cancel the Purchase Order, Customer will indemnify AQX Solutions against any loss, damage and expense incurred by AQX Solutions in relation to the alteration or cancellation of that Purchase Order, including the cost of return freight, return shipping to factory of origin, items purchased from third parties for inclusion in the Goods and all labour and engineering costs incurred by AQX Solutions in the execution or part execution of the Goods and including compensation payable to any of AQX Solutions’ suppliers and loss of profit.
5. Return of Goods and credits
(a) Customer is deemed to have accepted the Goods unless it makes a claim in accordance with the clause immediately below.
(b) Customer may reject any Goods that are wrongly supplied or oversupplied by notifying AQX Solutions of the claim and providing full particulars of the claim in writing within 5 days of receipt of those Goods. AQX Solutions may dispute any such claim.
(c) Goods referred to in the clause immediately above may be returned to AQX Solutions for credit if all of the following is complied with:
(i) the Goods are returned to AQX Solutions’ premises by prior arrangement and with AQX Solutions’ written approval within 7 days of delivery, at no cost to AQX Solutions, unless delivered as the result of an administrative error by AQX Solutions, in which case AQX Solutions will bear the cost of return;
(ii) the Goods are accompanied by a dispatch note stating AQX Solutions’ original invoice number and reason for return; and
(iii) the Goods are returned in an unsoiled, undamaged and resaleable condition in their original packing
(d) Customer must not return any Goods to AQX Solutions unless it has complied with the two clauses immediately above and has done all things necessary to permit AQX Solutions to examine the Goods to AQX Solutions’ satisfaction within that period.
6. Delivery, Storage and Use
(a) All quoted delivery or consignment dates are estimates only. AQX Solutions is not obliged to meet such dates and will not be liable to Customer by reason of delays caused by any reason whatsoever.
(b) AQX Solutions is deemed to have delivered the Goods when the Goods are made available to Customer for physical collection by or on behalf of Customer at Customer’s nominated delivery point (Delivery). Any unloading or loading shall be Customer’s responsibility, unless AQX Solutions otherwise agrees in writing.
(c) AQX Solutions may deliver the Goods by instalments (where, in AQX Solutions’ opinion, this is reasonable) and issue interim invoices to Customer.
(d) Without limiting any other provision of the Agreement, failure by Customer to pay any instalment, or any other amount when due, will entitle AQX Solutions to withhold or delay delivery of any remaining Goods ordered.
(e) If Customer is unable to collect the Goods at Customer’s nominated delivery point on the delivery day, AQX Solutions may (at its option and without limiting its other rights and remedies) arrange suitable storage of the Goods, whether at its premises or elsewhere, and Customer must pay or reimburse all costs and expenses of storage, insurance, demurrage, handling and other charges associated with such storage. Notwithstanding Customer’s inability to collect the Goods, Delivery is deemed to have occurred.
(f) The Customer must not install, store or in any way incorporate the Goods in any aircraft or in any vessel intended to fly or move in or through the atmosphere or space.
(g) The Customer acknowledges that it has the sole responsibility to confirm the suitability of the Goods for their intended purpose and that AQX Solutions makes no representation or warranty in this regard.
7. Title and risk
(a) Title to the Goods shall remain with AQX Solutions until all monies owing by Customer to AQX Solutions for the Goods have been paid in full.
(b) Until such time as Customer has paid AQX Solutions in full for the Goods, Customer shall:
(i) store the Goods separately and mark them so that they are clearly and easily identifiable as AQX Solutions’ property and, if AQX Solutions requests, inform AQX Solutions of the location of the Goods;
(ii) hold the Goods as bailee for AQX Solutions, subject to Customer’s right to deal with the Goods in the ordinary course of Customer’s business (Bailment);
(iii) indemnify AQX Solutions against any claim arising out of the possession, use or disposal of the Goods by Customer or repossession or attempted repossession by AQX Solutions.
(C) If:
(i) a payment is not made in accordance with the Agreement;
(ii) Customer commits any other breach of the Agreement;
(iii) Customer becomes bankrupt, has an administrator, a receiver or a receiver and manager appointed, goes into liquidation (whether voluntarily or otherwise), or is wound up, dissolved or declared insolvent, then AQX Solutions may at any time, without notice to Customer and without prejudice to any other rights that it may have against Customer:
(i) terminate the Agreement and the Bailment;
(ii) suspend some or all its obligations to Customer under the Agreement; and/or
(iii) enter upon any premises owned or occupied by Customer where AQX Solutions reasonably believes the Goods may be stored and repossess the Goods (including uninstalling the Goods) without being liable for any damages caused.
(d) If Customer sells the Goods before payment in full to AQX Solutions , or uses the Goods in a manufacturing or construction process of its own or some third party, Customer holds the proceeds on trust for AQX Solutions in respect of those Goods, and must keep such proceeds in a separate account until the liability to AQX Solutions is discharged and must immediately pay that amount to AQX Solutions.
(e) The risk in the Goods passes to Customer at the time of Delivery.
(f) AQX Solutions reserves the right to register a security interest for the purposes of the Personal Property Securities Act 2009, as amended. The Customer agrees to provide AQX Solutions with all such information that AQX Solutions requires in order to register a security interest at any time. The Customer will immediately advise AQX Solutions of any changes which may affect AQX Solutions’ security interest.
8. Insurance
Customer must keep the Goods insured against all risks for Goods of that kind from the time the risk in the Goods passes to Customer until the time that title to the Goods passes to Customer. Customer holds the proceeds of that insurance on trust for AQX Solutions up to the amount it owes AQX Solutions in respect of those Goods and must keep such proceeds in a separate account until the liability to AQX Solutions is discharged and must immediately pay that amount to AQX Solutions.
9. Warranty and Limitation of liability for Goods
(a) Other than is provided for in this clause 9, AQX Solutions makes no warranties or representations to Customer.
(b) AQX Solutions warrants the Goods to be free from defects in workmanship and materials under normal use and service for a period of 1 calendar year from the Delivery (Warranty Period). This warranty does not cover costs of recovery of the Goods from the site or damage, fault, failure or malfunction due to external causes including accident, abuse, misuse, mechanical or electrical overload, abrasion, corrosion, incorrect installation, failure to perform required preventative maintenance or normal wear and tear.
(c) During the Warranty Period, to the extent permitted by law, Customer’s sole remedy with respect to breach of warranties set out in the clause immediately above will be to repair or replace (as AQX Solutions may elect) any such defective Goods at AQX Solutions’ expense. The replacement or repaired Goods shall be covered by the unexpired portion of the Warranty Period in respect of the original Goods or for a period of 90 days, whichever is the greater.
(d) For equipment forming part of the Goods, which equipment is not manufactured by AQX Solutions, the original manufacturer’s warranty will apply. AQX Solutions’ liability for such equipment shall not exceed the liability of the manufacturer. After expiry of the Aquamonix Warranty Period, all labour, travel, site attendance, removal, reinstallation and freight charges associated with manufacturer warranty claims are chargeable to the Customer unless expressly covered by the manufacturer.
(e) In respect of Goods that are not ordinarily acquired for personal, domestic or household use or consumption, the liability of AQX Solutions for a breach of any condition or guarantee applied by law is limited at AQX Solutions’ option to the repair of the Goods, the supply of replacement Goods or payment of the cost of having the Goods supplied again.
(f) AQX Solutions’ liability under the Agreement will be reduced by the amount of any contributory loss or damage to the extent caused by Customer’s act or omission.
(g) Some Goods come with consumer guarantees that cannot be excluded under the Australian Consumer Law. Where these consumer guarantees apply, the Customer is entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.
(h) Any warranty claim must detail the basis of the alleged warranty breach in writing and be delivered to AQX Solutions by email to [email protected]
(i) Customer acknowledges and agrees that, to the extent permitted by law, AQX Solutions has no liability in contract, tort (including negligence or breach of statutory duty), by statute or otherwise for loss or damage (whether direct or indirect) of profits, opportunity, revenue, goodwill, bargain, production, contracts, business or anticipated savings, corruption or destruction of data or for any indirect, special or consequential loss or damage whatsoever.
(j) Subject to clause 9(g), AQX Solutions’ total liability under any contract and the Agreement shall not exceed the total dollar amount of the Goods purchased by Customer under each contract.
10. Proprietary Information
(a) Customer acknowledges that all Proprietary Information and all right, title and interest therein are the sole property of or licensed by AQX Solutions and Customer shall gain no right, title or interest in the Proprietary Information whatsoever. Customer specifically acknowledges AQX Solutions’ exclusive rights to ownership of any modification, translation or adaptation of the Proprietary Information and any other improvement or development based thereon, whether developed, supplied, installed or paid for by or on behalf of Customer or any buyer of Customer or otherwise.
(b) Customer must not and must not permit any person reasonably within its control nor procure any person to modify, copy, clone or reverse engineer the Goods, or copy, modify or decompile any of AQX Solutions’ documentation relating to the Goods.
11. Export/re-export/resale
(a) The Goods supplied are intended for use only in Australia, unless AQX Solutions otherwise agrees. If Customer exports or re-exports the Goods, it is Customer’s responsibility to ensure that the Goods and the use to which they are put comply with the laws of the destination.
(b) Customer acknowledges that the Goods purchased by Customer may not be sold, leased or otherwise transferred to or utilised by a terrorist organisation, a party listed on any US denied persons or entities list or by an end-user engaged in activities related to weapons of mass destruction, including but not limited to activities related to design, development, production or use of nuclear materials, nuclear facilities or nuclear weapons, missiles or support of missile projects, or chemical or biological weapons.
(c) If Customer resells the Goods, it shall not, in connection with their resale, pay or offer to pay, money or any thing of value to any government official, entity or organisation, any political party, any candidate for public office, or their employees or relatives, or any other person or entity for the purpose of influencing purchasing decisions or for any other improper purpose.
12. Miscellaneous
(a) The fact that AQX Solutions fails to do, or delays in doing, something it is entitled to do under the Agreement, does not amount to a waiver of it’s right to do it. AQX Solutions must agree in writing to any waiver.
(b) If a clause or part of a clause can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from the Agreement, but the rest of the Agreement is not affected.
(c) AQX Solutions shall not be liable for any failure to fulfil or any delay in fulfilling any obligation arising under the Agreement if the failure or delay has been caused directly or indirectly by any act of God, war or other civil commotion, strikes, lockouts, stoppages and restraints of labour, breakdown of machinery, inability to obtain raw materials or fuel, fire or explosion, any government action or any other cause beyond AQX Solutions’ reasonable control and not as a consequence of AQX Solutions’ negligence.
(d) Any notice to be given to a party under the Agreement must be in writing and must be sent by post, facsimile or email to the address of that party shown in the quotation, Purchase Order or order acknowledgment. Notice is deemed to have been given at the time it would have been received in the normal course of post if sent by post, or if otherwise given at the time it was actually received.
(e) The Agreement is governed by and must be interpreted in accordance with the laws of the State or Territory where AQX Solutions supplies the Goods and the Goods are delivered. Where there are multiple places of supply and/or delivery, AQX Solutions may elect the State or Territory in Australia that shall have jurisdiction over the Agreement. Customer unconditionally submits to the non-exclusive jurisdiction of the courts of the State or Territory determined in accordance with this clause.
(f) Where there is more than one Customer then the liability of each shall be joint and several.
(g) The rights and remedies provided in the Agreement will not affect any other rights or remedies available to AQX Solutions.
(h) Customer shall not assign this Agreement without AQX Solutions’ prior written consent.
(i) If the Customer is a trustee, then the Customer is bound by the Agreement both personally and in its capacity as a trustee.
13. PPSA Registration
(a) The Buyer agrees that all Goods supplied by the Company will be subject to a security interest as that term is defined in the PPSA and will treat the security interest in the Goods as continuing and subsisting security with priority over a registered general security and any unsecured creditors.
(b) Accordingly, the Buyer grants the Company a security interest in the Goods and in any proceeds arising from the sale of the Goods or in any accessions in the Goods or if the Goods become an accession the accession and the Goods, to secure the Buyer’s obligations to the Company, including, but not limited to, the Buyer’s obligation to make payment for the Goods.
(c) The Buyer agrees that all costs and disbursements incurred by the Company in registering its interest under the PPSA and enforcing its registered interest are recoverable against the buyer as a debt. The Buyer also agrees (if required) to the unconditional ratification of any actions by the Company in relation to the protection of the Company’s security interest.
(d) If the Company, pursuant to PPSA takes all or any of the Goods in satisfaction of the Buyer’s obligations to the Company, the Buyer agrees that they will remain liable to the Company for the difference between the market value of the Goods at the time they are first able to be sold by the Company free from all rights and interests of the Buyer and other persons and the amount of the Buyer’s obligations for which they are in default.
(e) The Buyer agrees that the Company and its employees, directors, agents or contractors have unconditional access to any premises where the Goods are stored, or where they are reasonably thought to be stored, and acknowledges that the Company and its employees, directors, agents or contractors have the right to take possession of these Goods. The Buyer forfeits any civil claims in respect of this, and exempts the Company from being liable for any damage that may occur in taking possession of the Goods. Until payment of the Price in full, the Buyer grants the Company the irrevocable right to enter upon any premises owned or occupied by the Buyer to retake possession of the Goods without liability for any damage caused.
(f) The Buyer agrees to waive to the maximum extent possible at law the following Rights under the PPSA:
(1) Receipt of a verification statement pursuant to section 157 and a statement of account under section 140
(2) To recover any proceeds under section 140:
(3) To receive notice from the Company to dispose of collateral under section 130, to retain collateral under section 135 and to object to that notice under Section 137;
(4) To redeem collateral under section 142;
(5) To reinstate a security agreement under section 143;
(6) To not have Goods and services damaged or to be reimbursed in respect of such damage if the Company takes possession of an Accession of Goods (section 92 and 93)
(7) To refuse permission to remove an accession until security is given by the company for reimbursement as per section 94
(8) To receive notice of removal of an accession under section 95
(9) To apply to court for an Order concerning removal of an accession; and
(10) Any other right in favour of the Buyer that can be lawfully contracted out of under PPSA (including but not limited to the provisions listed in section 115