Terms and Conditions
Waterline Tanks Pty Ltd. ACN 655 977 683
1. AGREEMENT BETWEEN YOU AND US
These Terms and Conditions, together with:
- the Application for Commercial Credit (if applicable);
- the Order Confirmation; and
- the Guarantee and Indemnity (if applicable)
set out the terms of the Agreement between You and Us. The provision or acceptance of an Application for Commercial Credit, Order Confirmation or Guarantee and Indemnity shall not form a separate agreement between You and Us, but shall constitute part of this Agreement.
2. DEFINITIONS
When we refer to the following terms in this document:
“ACL” means the Australian Consumer Law which is contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
“Agreement” means the agreement between You and Us being those things listed in Clause 1.
“Consumer” means a consumer as that term is defined in the ACL.
“Consumer Guarantees” means the guarantees relating to the supply of goods and services contained in the ACL.
“Credit Account” means any billing arrangement We have extended to You upon our approval of the Application for Commercial Credit.
“Credit Application” means any application for a Credit Account completed by You.
“Goods” means any goods supplied or to be supplied by the Us to You pursuant to this Agreement and/or any contract.
“Insolvency Event” in relation to a party, means:
- The party is (or states that it is) insolvent (as defined in the Corporations Act 2001 (Cth)); or
- The party has a Controller (as defined in the Corporations Act 2001 (Cth)) appointed to any part of its property; or
- The party is in receivership, in receivership and management, in liquidation, in provisional liquidation, under administration, has been or is in the process of being wound up, or has had a receiver or a receiver and manager appointed to any part of its property; or
- The party is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved; or
- The party is taken to have failed to comply with a statutory demand (pursuant to section 459F(1) of the Corporations Act 2001 (Cth)); or
- The party is the subject of an event described in section 459C(2) or section 585 of the Corporations Act 2001 (Cth), or it makes a statement from which the other party reasonably deduces it is so subject; or
- The party is otherwise unable to pay its debts when they fall due.
“Loss” means damage, loss, cost, expense, suit, charge, action, right or action, or liability (whether actual or contingent).
“Non-Excludable Provision” has the meaning set out in Clause (12).
“Order” means an order placed by You with Us for the purchase of Goods.
“Order Confirmation” means the confirmation of Your order for Goods provided to You by Us.
“Price” means the price payable for the Goods as agreed between Us and You in accordance with clause 6 of these Terms and Conditions.
“PPSA” means the Personal Property Securities Act 2009 (Cth) (as amended) and any other legislation and regulations in respect of it and the following words in clause 10 have the respective meanings given to them in the PPSA: collateral, financing change statement, financing statement, interested person, purchase money security interest, register, registration, security agreement, security interest and verification statement.
“Related Body Corporate” has the same meaning as in the Corporations Act 2001 (Cth).
“Relevant Document” means any Application for Commercial Credit, Guarantee, Indemnity and Charge which guarantees all monies owing by You to Us.
“Small Business” means a business that employs less than 20 people (including casual employees employed on a regular and systematic basis) or other such number as prescribed by the ACL.
“We/Us/Our” means Waterline Tanks Pty Ltd (ACN 655 977 683).
“You/Your” means the person, firm, organisation, partnership, corporation, trust or other entity purchasing Goods from Us. The reference to “You/Your” also includes any directors, employees, agents and contractors authorised to enter into these Terms and Conditions.
3. ORDERS
3.1. A contract for the supply of Goods is made when You place an Order or when the We are requested by You to provide Goods.
3.2. A contract made pursuant to clause 3.1 is deemed to be a contract incorporating these Terms and Conditions, notwithstanding any inconsistencies that may be introduced in Your Order unless expressly agreed to in writing by Us.
3.3. The provisions of these Terms and Conditions will prevail over any of Your terms and conditions, whether or not any inconsistency arises.
3.4 You may not cancel an Order after it has been acknowledged by Us without Our consent in writing. This may be refused or given at the Our sole discretion and, when given, will be on condition that You will compensate Us for all Loss that We may suffer directly as a result of the cancellation as determined by Us in our sole discretion with supporting evidence of the Loss.
3.5 Any purported cancellation by the You to which We have not consented, may be treated by Us as a repudiation of the contract by the You.
3.6 We may, at Our sole discretion, reject any Order.
3.7 We may change the Price for the Goods at any time on giving prior notice to You. Any change to the Price will apply to all Goods delivered on or after the date specified by Us in the notice to You. If no date is specified in the notice, the change will be effective immediately for all delivered after the date of notification, and whether or not an Order for the Goods had already been received and accepted prior to the change.
3.8 We may terminate a contract Our sole discretion at any time by giving 7 days’ notice in writing to You. In those circumstances Our liability to You shall be strictly limited to the return of any unexpended deposit and the delivery of any goods and materials paid for by You.
4. PRICE
4.1. The Price is that advised by Us to You.
4.2. Unless expressly stated otherwise, the Price excludes fees, duties (e.g., Stamp Duty), taxes (e.g., GST), surcharges and all other imposts of any government authority (‘governmental imposts’).
4.3. We reserve the right to change the Price in accordance with Clause 3.7.
4.4. At Our sole discretion, a deposit may be required from You.
5. PAYMENT
5.1. Payment for the Goods is due and payable upon placing an Order with us unless otherwise nominated or agreed by Us.
6. DELIVERY
6.1. Times quoted for delivery by Us are given in good faith and are estimates only.
6.2. We will not be liable for failure to deliver or for delay in delivery arising from any cause beyond Our control. You will not be relieved of any obligation to accept or pay for Goods by reason of any delay in delivery.
6.3. A delivery charge, freight and/or insurance may be charged to You and added to the Price.
6.4. If You fail to accept delivery of the Goods or give proper instructions to Us for their delivery within fourteen (14) days after notification in writing that the Goods are ready for delivery, You may be liable to pay to Us all reasonable costs for storage, protection and insurance of the Goods after expiration of such fourteen (14) day period. We reserve the right to store such Goods at a location of our choosing.
6.5. No defect or claim in respect of Goods delivered will entitle You to reject delivery of other Goods, which are not subject to any defect or claim, delivered as part of the Order.
7. TERMINATION
7.1. We have the right to cancel any contract made pursuant to clause 3.1 including the cancellation of the supply of Goods in respect of the same, at any time before the supply of the Goods by giving written notice to You. We will not be liable for any Loss whatsoever arising from such cancellation.
7.2. A contract may, Our sole discretion, also be terminated in the following circumstances:
- You have not complied with the terms of payment pursuant to clause 5; or
- In Our opinion, any change of circumstances, including without limitation, changes in Your constitution, composition, ownership, membership, control status or ability to provide security for payments of amounts which have been or are likely to be payable by You, makes the continued operation of the contract undesirable or unsatisfactory; or
- You are subject to an Insolvency Event;
- You, being a partnership, dissolves, threatens or resolves to dissolve, or is in jeopardy of dissolving; or
- You, being a natural person, dies; or
- You are otherwise in breach of your obligations under these Terms and Conditions and/or the Agreement and/or any other contract that You have with Us.
7.3. If the contract is terminated pursuant to clause 7.2 and We agree to the return of the Goods, You may be liable to pay a restocking fee in the amount of 20% of the Price upon request (via invoice) from Us.
8. CLAIMS
8.1. You will inspect the Goods upon delivery.
8.2. You will, within two (2) business days of the supply of any Goods (time being of the essence), notify Us of any alleged defect, error, omission, shortage in quantity, damage or failure to comply with the description or quotation.
8.3. You will allow Us to inspect the alleged defect, error, omission, shortage in quantity, damage or failure to comply within a reasonable time of receiving notification.
8.4. If You fail to give notice in accordance with clause 8.2, the Company will be deemed to have fulfilled the contract and no claim You need be recognised by Us.
9. OWNERSHIP OF GOODS
9.1. Property and ownership (including legal and equitable title) in any Goods sold by Us to You remains with Us until You meet all of Your obligations pursuant to these Terms and Conditions, including without limitation payment in full of the Price and all other amounts owing to Us by You.
9.2. The Goods are at Your risk from the time at which they are dispatched to Your or Your nominee. You must insure (and keep insured) the Goods on the following conditions until such time as property and ownership (including legal and equitable title) pass to You:-
- The Goods must be insured for their full insurable or replacement value (whichever is higher); and
- The Goods must be insured by an insurer licensed or authorised to conduct the business of insurance in the place where the Goods will be stored; and
- The insurances which You effect or cause to be effected under these Terms and Conditions must name Us as a named insured; and
- The insurances must be construed to provide that insurers have no right of subrogation against Us.
9.3. If You fail to pay for the Goods in accordance with clause 5:-
- You must deliver the Goods to the Us, where demanded by Us or Our agent; or
- We may recover possession of the Goods by any necessary means at any site owned, possessed or controlled by You; and
- You agree that We have an irrevocable licence to exercise our rights under this clause; and
- You are liable for all costs associated with the exercise of Our rights under this clause, and this liability will be payable on demand.
9.4. You will allow the Us to inspect the alleged defect, error, omission, shortage in quantity, damage or failure to comply within a reasonable time of receiving notification.
9.5. If You fail to give notice in accordance with clause 8.2, the Company will be deemed to have fulfilled the contract and no claim by the Buyer need be recognised by the Company.
9.6. You agree that, until property and ownership (including legal and equitable title) of the Goods has passed to You:-
- You will not supply any of the Goods to any person outside of its ordinary or usual course of business;
- You will not allow any person to have or acquire any security interest in the Goods;
- You will not create any absolute or defeasible interest in the Goods in relation to any third party except as may be authorised by Us; and
- You must not remove, deface or obliterate any identifying place, mark or number on any of the Goods.
10. PPSA
10. 1. You acknowledge that these Terms and Conditions constitute a security agreement that creates a security interest in favour of Us in all Goods supplied by Us to You to secure payment from time to time, including future advances. You agree to grant to Us a ‘Purchase Money Security Interest’.
10.2. You acknowledge that by assenting to these Terms and Conditions, You grant a security interest (as that term is defined in the PPSA) to Us.
10.3. You undertake to:
- Sign any further documents and/or provide any further information (which information You warrant to be complete, accurate and up-to-date in all respects) that We may reasonably require to enable registration of a financing statement or financing change statement (as defined in section 10 of the PPSA) on the Personal Property Securities Register (‘PPSR’);
- Not register a financing change statement or make a demand to alter the financing statement pursuant to section 178 of the PPSA in respect of the Goods without the prior consent from Us;
- Pay all costs incurred by Us in registering and maintaining a financing statement (including registering a financing change statement) on the PPSR and/or enforcing or attempting to enforce the security interest created by these Terms and Conditions including executing subordination agreements; and
- Be responsible for the full costs incurred by Us (including actual legal fees and disbursements on a solicitor and client basis) in obtaining an order pursuant to section 182 of the PPSA.
10.6. You agree that immediately on request by Us, You will procure from any person(s) considered by Us to be relevant to its security position such agreement and waivers as We may at any time require.
10.7. You agree to promptly do anything We request (such as obtaining consents, providing information and signing and producing documents) in order to perfect, preserve, maintain, protect, or otherwise give full effect, under the PPSA and related regulations, to these Terms and Securities and the Security Interest created by these Terms and Conditions.
11. SECURITY
11.1. Your agree that:
- As security for your obligations and liabilities under this Agreement, you hereby charge for the due and punctual payment and performance of those obligations and liabilities all, of Your legal and equitable interest (both present and future) of whatsoever nature held in any and all real property;
- Without limiting the generality of the charge in this clause, You agree, on Our request, to execute any documents and do all things necessary required by Us to register a mortgage security or other instrument of security over any real property and against the event that You fail to do so within a reasonable time of being so requested, You irrevocably and by way of security, appoint any credit manager or solicitor engaged by Us to be Your true and lawful attorney to execute and register such instruments; and
- You will indemnify Us on an indemnity basis against all costs and expenses incurred by Us in connection with the preparation and registration of any such charge and mortgage document.
12. INDEMNITIES AND EXCLUSIONS OF LIABILITIES
12.1 Subject to this clause 12, and except as expressly provided to the contrary in this Agreement, all guarantees, term, conditions, warranties, undertakings, inducements or representations, whether express or implied, statutory or otherwise, relating to this Agreement or its subject matter are excluded to the maximum extent permitted by law.
12.2. Nothing in this Agreement excludes, restricts or modifies any right or remedy, or any guarantee term, condition, warranty, undertaking, inducement or representation, implied or imposed by any legislation which cannot lawfully be excluded or limited. This may include the Consumer Guarantees.
12.3. Where We are not able to exclude a guarantee, term, condition, warranty, undertaking, inducement or representation, implied or imposed by legislation in relation to this Agreement (Non-Excludable Provision’) and We are able to limit Your remedy for a breach of the Non-Excludable Provision, then Our liability for breach of the Non-Excludable Provision is limited to (at Our election), the repair or replacement of the goods or the supply of substituted goods (or the cost of doing so).
12.4. Subject to Our obligations under the Non-Excludable Provisions and to the maximum extent permitted by law, Our maximum aggregate liability for all claims under or relating to this Agreement or its subject matter, whether in contract, tort (including without limitation negligence), in equity, under statute, under an indemnity, is limited to an amount equal to the fees paid by You under this Agreement. In calculating Our aggregate liability under this clause, the parties must include any amounts paid or repairs undertaken by Us for a breach of any Non-Excludable Provisions.
12.5. Subject to the clauses 12.3 and 12.4, We will not be liable to You for any consequential , indirect or special loss or damage, loss of actual or anticipated profits or revenue, loss of business, business interruption, wasted costs You have incurred, amounts that you are liable to Your customers for or any loss suffered by third parties under or relating to this Agreement or its subject matter, whether in contract, tort (including without limitation negligence) in equity, under statute, under an indemnity, whether or not such loss or damage was foreseeable and even if advised of the possibility of the loss or damage.
12.6 You are liable for and indemnify Us against all liability, claims, damage, loss, costs and expenses (including, without limitation, legal fees, costs and disbursements on a full indemnity basis, whether incurred or awarded against Us and any environmental loss, cost, damage or expense) in respect of:
- Personal injury;
- Damage of property; and
- A claim by a third party, in respect of Your breach of the Agreement. Your liability under this indemnity is diminished to the extent that Our breach of the Agreement or Our negligence causes the liability, claims, damage, loss, costs or expenses.
12.7 Each indemnity in this Agreement is a continuing obligation, separate and independent form the other obligations of the parties and survives termination, completion and expiration of this Agreement. It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity conferred by this Agreement.
12.8 We will not be liable to You for any acts or omissions of any person supplied by Us where that person is acting under Your direction and control and you indemnify Us against all liability, claims, damage, loss, costs and expenses (including, without limitation, legal fees, costs and disbursements on a full indemnity basis, whether incurred or awarded against Us and any environmental loss, cost, damage or expense) arising form or incurred in connection with such acts or omissions.
13. YOUR LIABILITY
13.1.Your liability for the performance of Your obligations under these Terms and Conditions is not released, discharged or relieved by anything that but for this clause might have that effect, including without limitation:
- The grant of a waiver or other indulgence to You or any assigned party by Us;
- Any transaction or arrangement between Us and You or any assigned party;
- You being subject to an Insolvency Event;
- We being subject to an Insolvency Event;
- We exercising, delaying or refraining from exercising any right, power or remedy given to it by law, by these Terms and Conditions, or by any other document or agreement with You or any assigned party;
- We obtaining a judgment against You or any assigned party for the payment of any money under these Terms and Conditions and/or any other document or agreement between the Us and You or any assigned party; and
- Any change in circumstance of Us or You or any assigned party (including a change of circumstance of a person, the members of a partnership or the composition of a company).
14. WAIVER
14.1. Failure by Us to insist upon strict performance of any term or condition herein will not be deemed a waiver of any rights We may have, including without limitation those rights arising from a subsequent breach by You of any term or condition.
15. SEVERABILITY
15.1. If any part of this Agreement becomes void or unenforceable for any reason then that part will be severed with the intent that all remaining parts continue to be in full force and effect and be unaffected by the severance of any other parts.
16. ENTIRE AGREEMENT
16.1. This Agreement comprises the entire agreement between the parties.
17. NO RELIANCE
17.1. You acknowledge that neither We nor any person acting on Our behalf have made any representation or other inducement to You to enter into this Agreement and You have not entered into the Agreement in reliance on any representations or inducements except for those representations contained within this Agreement.
18. VARIATION
18. To the extent that a variation to this Agreement is not detrimental to You, from time to time, We may vary this Agreement. We will give you 28 days written notice of Our varied terms.
19. NOTICES
19.1. Any notices to be given by one party to the other must, unless otherwise agreed, be in writing and be transmitted by prepaid mail to the last known address of the recipient party. Notice will be deemed to have been delivered on the date following posting.
20. JURISDICTION
20.1. This Agreement is governed by the laws of Victoria and each party submits to the nonexclusive jurisdiction of the courts of that State in respect of any proceedings arising in connection with this Agreement. Each party waives any objection to the venue of any legal process in these courts on the basis that the process has been brought in an inconvenient forum.
21. DISPUTE RESOLUTION
21.1. If a dispute arises under, out of, or in connection with this Agreement, a party may give the other party a notice requiring that an attempt be made to resolve the dispute with the help of a mediator to be appointed jointly by the parties.
21.2. If the parties do not agree on a mediator within 7 days after the notice is given, the mediator is to be appointed by the President of the Law Institute of Victoria.
21.3. The parties must abide by, and with, the directions of the mediator in relation to the mediation process.
21.4. Each of the parties must co-operate fully with the mediator and pay an equal share of the fees and expenses the mediator is entitled to.
22. SIGNING THIS AGREEMENT
22.1. The person signing or accepting the terms of any document which forms part of this Agreement or Relevant Documents for and on behalf of You hereby warrants that he or she has Your authority to enter into the Agreement on Your behalf and grant the security interests in connection with it and is empowered to binding You to the Agreement and each security interest granted in connection with it.
22.2. The person signing or accepting the terms of this Agreement in addition to any other terms contained within these Terms indemnifies Us against all losses, costs and claims incurred by Us arising out of the person so signing this Agreement not in fact having such power and/or authority.
23. FORCE MAJEURE
23.1 Subject to Clause 23.2, neither party will be responsible for any delays in delivery due to causes beyond their control including but not limited to acts of God, war, terrorism, mobilisation, civil commotion, riots, embargoes, orders or regulations of governments of any jurisdiction, fires, floods, strikes, lockouts or other labour difficulties, shortages of or inability to obtain shipping space or land transportation.
23.2 Our obligations under this Agreement be suspended during the continuance of the force Majeure event.
24. GUARANTEE AND INDEMNITY
24.1 If you are a corporation, provision of the Goods may, at Our absolute discretion, be subject to and conditional upon all of Your directors executing the attached Guarantee and Indemnity.