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TERMS AND CONDITIONS OF SALE
1. Unless otherwise agreed in writing by MAK Water “the Seller”, the customer “the Buyer” agrees that it will be bound by these terms and conditions if the Buyer places an order with the Seller and it is accepted by the Seller. The Seller is not bound by any terms and conditions contained in any document issued by the Buyer.
2. Once an order has been accepted by the Seller, it cannot be cancelled by the Buyer. The supply of goods or services is subject to availability. The Seller reserves the right to suspend or discontinue the supply of goods or services to the Buyer. If the Seller is unable to supply all of the Buyer’s order, these terms and conditions continue to apply to any part of the order supplied.
3. Where a written quotation has been given by the Seller, the selling price is the price specified in the quotation. In any other case, the Seller’s selling price is the price specified in the price list as at the date of dispatch. Unless otherwise stated, the selling price does not include GST. The Seller may at any time change its price list to reflect, among other things, changes in exchange rates or the imposition of any duties, levies or other taxes and the Buyer is bound by those changes. The Seller may charge a reasonable handling fee for all orders delivered to the Buyer. The Buyer must accept any errors or omissions in invoicing and, where applicable, the Buyer must accept the amended pricing and pay the difference within the approved terms of trade.
4. Unless otherwise agreed in writing by the Seller, delivery is to the Buyer’s premises. If a delivery date is specified, that date is an estimate only and the Seller is not liable for any delay in delivery. Time is not of the essence in relation to delivery and the Buyer must accept delivery and pay for the goods delivered including transport costs, if applicable, even if they are delivered after any specified delivery date. Please note that delivery costs (otherwise called freight) does not include offloading and positioning of goods. This is the responsibility of the Buyer and depending on the size and weight of goods purchased, may require additional resources such as manpower and/or a forklift. Any additional costs incurred for offloading and positioning of goods upon delivery must be negotiated directly between the Buyer and freight delivery supplier.
5. The Buyer must inspect the goods or services immediately following delivery or completion of the services (as the case may be). The Buyer may only return goods with the prior approval of the Seller. The goods must then be returned within 21 days of the date of delivery in an unsoiled, undamaged and re-saleable condition and, where appropriate, in the original packaging. A reasonable handling fee for any returned goods will be charged to the Buyer. Any claim that the goods or services are not in accordance with these terms and conditions (including if they are defective, damaged during delivery, are short delivered or services not as per contract) must be made at the time of delivery/services provided or in writing to the Seller within 48 hours after delivery of the goods/completion of the services to the Buyer. If the Buyer fails to make a claim then, to the extent permitted by law, the goods or services are deemed to have been accepted by the Buyer and the Buyer must pay for the goods or services in accordance with these terms and conditions.
6. If employees or authorised representatives of the Seller attend any premises as directed by the Buyer to install or apply any goods or perform any services, the Buyer will ensure appropriate policies and procedures are in place and followed and generally implement good industry practice (including occupational health and safety policies and risk assessments for any dangerous or potentially dangerous activities) and act consistently with the Seller’s policies as notified to the Buyer. This includes ensuring all safety equipment, communications equipment or other items are provided, maintained and are fit for their intended purpose and conducting hazard and assessment risk assessments.
7. Unless otherwise agreed, if the Buyer has an approved credit account with the Seller, the Buyer must pay for goods or services ordered by the Buyer within 30 days from the end of the month of invoicing or earlier if the approved credit limit is exceeded. The Seller may charge an administration fee for any payments by credit card. Time is of the essence in respect of the Buyer’s obligation to make payment for goods or services supplied by the Seller to the Buyer.
8. If the Buyer does not make any payment by the due date, exceeds its credit limit at any time, commits any other material breach of these terms and conditions or an insolvency event in respect of the Buyer arises or is reasonably suspected by the Seller, the Seller may (without limiting any other right or claim it may have against the Buyer) do any or all of the following:
a. charge the Buyer interest calculated on a daily basis on any portion of the Buyer’s account that is overdue at the Australian & New Zealand Banking Group’s reference rate for business loans, available to prime commercial customers plus 5% calculated from the date the payment was due until the date payment is made (both dates inclusive);
b. vary or withdraw any approved credit limit and/or terms of trade;
c. cancel or suspend any unfilled orders or cease providing the services;
d. terminate any contracts between the Seller and the Buyer and demand immediate payment of any moneys due and outstanding under those contracts;
e. cancel any rebate, discount or allowance due or payable by the Seller as at the date of the event;
f. enter (at any time) any premises in which the Seller’s goods (including any merchandising materials) are stored, to enable the Seller to inspect the goods and to reclaim possession of the goods without liability for the tort of trespass, negligence or payment of any compensation to the Buyer whatsoever;
g. lodge a caveat or other similar instrument over any property of the Buyer; or
h. institute any recovery process as the Seller in its discretion decides at the Buyer’s cost and expense.
9. If any part of an invoice is in dispute, the balance will remain payable and must be paid when due. The Buyer has no right to set-off any claim against the Seller from moneys owing to the Seller.
10. Goods supplied by the Seller to the Buyer are at the Buyer’s risk immediately on the earlier of delivery to the Buyer or into the Buyer’s custody, including its carrier or forwarder. The Buyer must insure the goods at its cost from delivery of the goods until they are paid for in full against such risks as are usual or common to insure against in a business of a similar nature to the Buyer.
11. The Buyer charges to the Seller all of the Buyer’s rights, property and undertaking of whatever kind and wherever situated and whether present or future for the purpose of securing payment of all amounts that, at any time and for any reason or circumstance and whether at law or otherwise and whether or not of a type within the contemplation of the parties at the date of this Agreement, are payable, are owing but not currently payable, are contingently owing, or remain unpaid by the Buyer to the Seller. If the Buyer fails to pay any amount owing to the Seller by the date on which such payment is due, the Seller may appoint one or more receivers to the Buyer’s property and undertaking, and may do anything that a receiver could do under law.
12. Property in the goods supplied by the Seller to the Buyer does not pass to the Buyer until those goods have been paid for in full. In the meantime, the Buyer takes custody of the goods and retains them only as fiduciary agent and bailee of the Seller. Until goods have been paid for in full:
a. to the extent possible, the Buyer must store the goods in a manner that shows clearly they are the property of the Seller, maintain records relating to the goods, secure the goods from risk, damage and theft and ensure that the goods are kept in good and serviceable condition;
b. the Buyer may sell the goods, in the ordinary course of its business, but only as fiduciary agent of the Seller. The Buyer must not represent to any third party that the Buyer is acting in any capacity for or on behalf of the Seller and the Buyer has no authority to bind the Seller to any contract or otherwise assume any liability for or on behalf of the Seller. The Buyer receives all proceeds (including any proceeds from insurance claims) in trust for the Seller and must keep the proceeds in a separate bank account until all liability to the Seller is discharged;
c. if the Buyer uses the goods in some manufacturing or construction process of its own or of a third party, the Buyer must hold in trust for the Seller that part of the proceeds of the manufacturing or construction process as is equal to the amount owing by the Buyer to the Seller at the time of receipt of the proceeds.
13. To the extent permitted by law and subject to any written warranty entered into between Seller and the Buyer with respect to goods provided under these terms and conditions, these terms and conditions exclude all other conditions, warranties, liabilities or representations in relation to the goods and /or services. Where legislation implies in these terms and conditions any condition or warranty that cannot be excluded or modified, the liability of the Seller for a breach of any such condition or warranty is limited at the Seller’s option to any one or more of the following:
a. In the case of goods:
i. replacement of the goods or the supply of equivalent goods;
ii. payment of the cost of replacing the goods or of acquiring equivalent goods, by credit to the Buyer’s account, in cash or by cheque at the Seller’s discretion; or
iii. repayment of any part of the purchase price of the goods which has been paid by the Buyer, by credit to the Buyer’s account, in cash or by cheque at the Seller’s discretion.
b. In the case of advice, recommendations, information or services by supplying the advice recommendations, information or services again.
14. Subject to clause 12, The Seller is not liable for any loss or damage of any kind whatsoever and howsoever arising out of or in connection with the supply of goods and services, including (without limitation) any indirect or consequential loss (including without limitation loss of profit, loss of revenue, loss of contract, loss of goodwill or increased cost of workings), arising out of or in connection with the supply of goods or services, even if due to the negligence of the Seller or any of its employees or agents.
15. The application of the United Nations Convention on Contracts for the International Sale of Goods (known as the Vienna Sales Convention 1980) is excluded.
16. If any provision of these terms or conditions is unenforceable, illegal or void, that provision is severed and the other provisions of these terms and conditions remain in force.
17. The Seller may amend or vary these terms and conditions by notifying the Buyer in writing of the amendment or variation.
18. The laws of Australia apply to these terms and conditions and any account opened in the name of the Buyer. The parties irrevocably submit to the jurisdiction of the appropriate court convenient to the Seller in respect of any claims, proceedings and matters arising out of or in respect of these terms and conditions.
19. The exemptions, limitations, terms and conditions in these terms and conditions shall apply whether or not any loss or damage is caused by negligence or actions constituting fundamental breach of contract.