Terms & Conditions
The www.envirofluid.com website (this website) is owned and operated by Envirofluid Pty Ltd ABN 50 121 403 567. By virtue of accessing and viewing this website, you agree to be bound by this website Terms and Conditions. Envirofluid Pty Ltd reserves the right at its sole discretion, to modify or change these Terms of Use without notice. Following these changes, any accessing or viewing of this website will entail acceptance of all amendments.
Envirofluid Pty Ltd currently offer the standard products and services listed on this website, and identified in the attached documents and literature. Users should consider these documents and literature in deciding whether to specify or acquire any particular product or service, by accessing the appropriate link and printing.
Disclaimers
All information contained on this website is given in good faith, and has been derived from sources believed to be accurate. However the information is strictly general and selective, and may therefore not be complete or accurate for your specific purpose or application. Envirofluid Pty Ltd makes no representation or warranty of any kind as to the accuracy or completeness of the information.
All product specifications and descriptions, recommendations and other information provided on this website are given as general guidance and advice and are to be viewed in conjunction with all other data available and applicable to each particular standard product.
Envirofluid Pty Ltd and its directors, employees and associates do not guarantee the security of this website, or give any warranty of reliability or accuracy, and do not accept any responsibility arising in any other way, including by reason of negligence for errors in or omissions from the information on this website. Envirofluid Pty Ltd do not accept any liability for any loss or damage however caused, as a result of any person relying on any information on the website, or being unable to access this website.
In preparing the information contained on this website, Envirofluid Pty Ltd has not taken into account your specific objectives and intended applications. Before acting on the general advice and guidance contained on this website, you should give due consideration as to whether the information on this website is appropriate, based on your needs and the actual conditions existing for that application. You should obtain the relevant documents and literature referred to on this website, before making any decision about whether to acquire the product or service.
Envirofluid Pty Ltd maintains a policy of continuous improvement and development, and therefore reserves the right to modify, amend or otherwise alter product designs and specifications, models and part numbers and pricing etc. without prior notice. Envirofluid Pty Ltd accepts no liability for incorrect information, errors or omissions.
Copyright Statement
This website and its entire contents are © copyright Envirofluid Pty Ltd and all rights are reserved. Storage in any electronic database, reproduction or adaptation of this website is prohibited whether in whole or part by any person or party. The information may not be divulged or used in any form or by any means, for any purpose other than that stated by Envirofluid Pty Ltd. Such illicit use constitutes a breach of © copyright and may result in legal action, except as permitted under the Copyright Act in Australia, or with prior written consent by Envirofluid Pty Ltd. Copyright in the information contained on this website is owned by Envirofluid Pty Ltd ABN 50 121 403 567. You may use this information for your own personal reference only, and reproduce it in hard copy only for your personal use. The information must not be otherwise reproduced, and must not be distributed or transmitted to any other person or party, nor incorporated in any way into other documents or product material whatever.
User Login – Online Store
Envirofluid Pty Ltd reserves the right at its sole discretion to accept or limit, refuse or cancel User Login registration and/or access. All mandatory fields of the User Login application for registration must be completed, before being considered and enabled.Envirofluid Pty Ltd utilises email to Clients for marketing, general information and communication purposes. Should this service not be required, please contact us on 03 5564 6455 or send an email to admin@envirofluid.com
By accessing, viewing or downloading from this Online Store area, acceptance is required of all Envirofluid Pty Ltd website Terms and Conditions, standard disclaimers and copyright etc.
When purchasing from Envirofluid Pty Ltd’s online store, card details are transmitted through a secure 256Bit Single Root SSL server. Card data is not hosted or retained by Envirofluid Pty Ltd after processing.
Deliveries
The standard time for dispatch is next day. The standard time for delivery is one week, but this is dependant of location. Not all standard products listed on this website are available ex stock. Lead times on manufactured products may vary, and are subject to confirmation at time of ordering. The supply of all products and services, are strictly subject to Envirofluid Pty Ltd Terms and Conditions of Trade.
Returns
Special orders and non-stock Goods will not be accepted for return.
Returns for approved Goods will only be accepted provided that Envirofluid Pty Ltd has agreed in writing to accept the return of the Goods and the Goods are returned in the condition in which they were delivered. Unless otherwise agreed with Envirofluid Pty Ltd, a handling fee of twenty percent (20%) of the value of the returned Goods plus any freight costs will still be charged.
Purchases made during a health pandemic will not be credited or refunded. It is the client’s responsibility to ensure product quantities ordered meet their requirements.
Please also note that no cancellations are allowed for any advance orders for items directly related to COVID-19 infection prevention, (such as hand sanitisers, disinfectants, sanitisers and test kits).
Acknowledgements
Proprietary product images, illustrations and information incorporated on this website are provided courtesy of contributing Manufacturers. Proprietary product specifications, claims and trademarks, are those of the Manufacturers and remain their intellectual property.
Terms & Conditions of Trade
ENVIRONMENTAL FLUID SYSTEMS PTY LTD (ABN 50 121 403 567)
1. Definitions
1.1 Defined terms have the meanings given below unless expressed otherwise.
“Additional Charge” means:
(a) fees incidental to packing, shipping, freight, and all other ancillary charges and taxes including GST;
(b) fees or charges for additional work performed at the Client’s request or reasonably required as a result of the Client’s conduct, calculated in accordance with the Supplier’s published price list; and
(c) expenses incurred by the Supplier, at the Client’s request or reasonably required as a result of the Client’s conduct.
“Business Day” means a day that is not a Saturday, a Sunday, or a public holiday in the location of the Point of Delivery of the first Order between the Supplier and the Client.
“Client” means the person identified as such on a Quote or Order and includes their agents, successors and permitted assignments.
“Ex Works” is properly defined by Incoterms 2020 and is incorporated into these terms of trade to place responsibilities on, and delegate risk to, the Supplier and Client, with regards to risk of the Goods.
“Goods” means the goods ordered from the Supplier by the Client as described in a valid Order form.
“GST” means the goods and services tax under the A New Tax System (Goods and Services) Tax Act 1999 (Cth) (“GST Act”).
“Incoterms 2020” means the International Commercial Terms 2020 published by the International Chamber of Commerce.
“Intellectual Property Rights” means intellectual property rights at any time protected by statute or common law, including copyright, trade marks, patents and registered designs.
“Law” means any law, regulation, authorisation, ruling, judgment, order or decree of any Governmental Agency and any statute, regulation, proclamation, ordinance or by-law in force in Australia from time to time, common law and principles of equity and any applicable laws in the Territory.
“Loss” includes, but is not limited to, costs (including the Supplier’s legal costs), expenses, lost profits, award of damages, personal injury and property damage.
“Order” means a purchase order for Goods or Services placed by a Client as varied in accordance with these terms of trade.
“Point of Delivery” is defined in clause 5.2(c).
“PPS Law” means:
(a) the Personal Property Securities Act 2009 (Cth) (“PPS Act”) and any regulation made at any time under the PPS Act (each as amended from time to time);
(b) any amendment made at any time to any other legislation as a consequence of a PPS Law; and
(c) only applies to Goods located in Australia, or where the grantor is an Australian entity.
“Quote” means a written description of the Goods and/or Services to be provided to the Client together with an estimate of the total price and time frame for the delivery of Goods and/or Services.
“Services” means the services to be provided by, or on behalf of, the Supplier to the Client as described in a valid Order.
“Supplier” means Environmental Fluid Systems Pty Ltd (ABN 50 121 403 567) and includes their agents, successors and permitted assigns.
“Territory” means worldwide.
2. Interpretation
2.1 In these terms of trade, unless the context otherwise requires:
(a) a reference to writing includes email and other written communication;
(b) the singular includes the plural and vice versa;
(c) all monetary amounts set out in the Supplier’s published price list and Quotes refer to Australian dollars unless otherwise stated;
(d) a person includes a body corporate, partnership, joint venture, association or board;
(e) a reference to a clause is a reference to these terms of trade;
(f) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(g) headings are for convenience only and do not affect the interpretation of these terms of trade; and
(h) if the date on which any act, payment, or thing is to be done falls on a day which is not a Business Day, that act, payment, or thing, must be done on the next Business Day.
3. Application
3.1 These terms of trade apply to all transactions between the Client and the Supplier regarding Goods and/or Services, including all Quotes, Orders, and variations.
3.2 These terms of trade become binding on the parties:
(a) at the time the Supplier notifies the Client of its acceptance of an Order placed under clause 5.1; or
(b) if no notification is given by the Supplier under clause 3.2(a), on the date three Business Days following the date the Supplier receives an Order submitted by a Client in compliance with clause 5.1.
4. Quotes
4.1 The Supplier may provide the Client with a Quote. Any Quote issued by the Supplier is valid for 30 days from the date of issue.
4.2 Quotes are based upon the cost of materials available at the time of preparation of the Quote and contemplate the timely supply by the Client of a relevant Order containing instructions to the Supplier.
4.3 Following provision of a Quote to the Client, these terms of trade are not binding, and the Supplier is not obliged to commence work, until these terms take legal effect under clause 3.2.
4.4 An indication in a Quote of the time frame for the provision of the Goods or Services is an estimate only and is not a fixed time frame. Subject to any obligations in respect of Laws including consumer guarantees under chapter 3, part 3-2, division 1 of the Australian Consumer Law (“ACL”), this estimate is not binding upon the Supplier.
4.5 The Supplier will endeavour but does not guarantee to have available for delivery or shipment, Goods ordered by the Client by the date stipulated in a Quote and Order.
4.6 The Supplier will endeavour to notify the Client if the Supplier is unable, or expects that it will be unable, whether temporarily or otherwise, to supply any of the Goods or Services in the volume required and/or within the stipulated delivery time.
4.7 The Supplier may amend details in a Quote in order to update the relevant details with written notice to the Client, however any update regarding the scope of Goods or Services or any adjustment to pricing requires the written consent of the Client in order to be effective. Any amendment supersedes the relevant prior detail between the parties.
5. Orders
5.1 Each Order for Goods and/or Services must include the criteria set out in clause 5.2 and is submitted by the Client by:
(a) delivering a completed standard Order form to the Supplier; or
(b) ordering directly with the Supplier.
5.2 Each valid Order must be completed by the Client and specify:
(a) the date of the Order;
(b) the quantity and type of Goods and/or scope of required Services;
(c) delivery or collection details, including:
(i) details of the Client’s delivery address (where the Client opts for the Supplier to deliver the Goods); or
(ii) a written request for the Client to collect the Goods from the Supplier; and
(iii) the preferred date by which the Goods and/or Services should be delivered or collected, (“Point of Delivery”); and
(d) any other relevant details required by the Supplier or Client.
5.3 Any costs incurred by the Supplier in reliance on incorrect or inadequate information provided by the Client in an Order may result in the imposition of an Additional Charge.
5.4 Placement of an Order compliant with clause 5.2 means the Client accepts these terms of trade and the most recent Quote provided by the Supplier relating to that Order.
5.5 The Supplier may in its absolute discretion refuse to provide Goods or Services where:
(a) Goods or Services are unavailable for any reason;
(b) credit limits cannot be agreed upon or have been exceeded; or
(c) payment for Goods or Services previously provided to the Client or any related corporation of the Client or to any other party who is, in the reasonable opinion of the Supplier, associated with the Client under the same or another supply contract, has not been received by the Supplier.
5.6 A Client cannot cancel a placed Order without the prior written consent of the Supplier. Where an Order is cancelled, the Client indemnifies the Supplier against any Losses incurred by the Supplier as a result of the cancellation.
6. Variations
6.1 The Client may request that its Order be varied by providing a request in writing to the Supplier. A request for a variation must be agreed to in writing by the Supplier in order to have effect.
6.2 If the Client wishes to vary its requirements after a Quote has been prepared by the Supplier or after the placement of an Order, the Supplier reserves the right to vary the Quote to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates.
6.3 A revised Quote issued by the Supplier in respect of the requested variation supersedes the original Quote. If the revised Quote only specifies additional work, the Quote for that additional work will be in addition to the immediately preceding Quote for the Goods or Services or both.
6.4 The Supplier has an automatic extension of time for the provision of the Goods or Services equal to the delay caused by the variation.
7. Payment Terms
7.1 At the Supplier’s discretion, the Supplier may issue an invoice to the Client in one or more ways:
(a) prior to the provision of Goods and/or Services (including prior to or following dispatch); or
(b) upon completion of the provision of the Goods and/or Services or within 30 days of such completion; or
(c) such other way as agreed by the Supplier and the Client (including where there is a preference to pay the price in instalments).
7.2 The amount payable by the Client is set out in the invoice and is calculated as:
(a) the amount for the Goods and/or Services detailed in the Quote and any Additional Charges; or
(b) where no Quote has been provided by the Supplier, the Supplier’s charges for the Goods and/or Services calculated by reference to the Supplier’s published price list and any Additional Charges.
7.3 The Client must pay an invoice issued by the Supplier to the Supplier within 30 days of a valid tax invoice being issued to the Client, or such other reasonable due date stated in an invoice (“Due Date”).
7.4 The Supplier may withhold the provision of any further Goods or Services if any amounts are overdue after the Due Date.
7.5 In the Supplier’s ultimate discretion, the Supplier may apply any payment received from the Client to any amount owing by the Client to the Supplier provided the Client is notified ahead of the Supplier setting-off any amounts.
7.6 The Client is not entitled to retain any money owing to the Supplier regardless of any default or alleged default by the Supplier of these terms of trade, including (but not limited to) the supply of allegedly faulty or defective Goods, provision of Services to an inadequate standard or a delay in the provision of Goods or Services. Nothing in this clause affects the Client’s rights for any alleged failure of a consumer guarantee under the ACL.
7.7 The Client is to pay the Supplier on demand interest at the rate of 10% per year on all overdue amounts owed by the Client to the Supplier, calculated daily.
7.8 All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses of the Supplier, are to be paid by the Client as debt due and payable under these terms of trade.
7.9 The Client and the Supplier agree to comply with their obligations in relation to GST and any other applicable legislation governing GST.
7.10 The Client is responsible for the administration, collection, remittance and payment of any and all taxes, duties, charges, levies, assessments and other fees of any kind imposed by governmental or other authority in respect of the purchase, receipt, importation, sale or other disposal of the Goods.
7.11 Any current or future tax or governmental charge (or increase in same) affecting the Supplier’s costs of production, sale, delivery or shipment, or which the Supplier is otherwise required to pay or collect in connection with the sale, purchase, delivery, storage, processing, or use of the Goods, will be for the Client’s account and will be added to the price of the Goods or forwarded to the Client for payment.
8. Additional Charges
8.1 The Supplier may require the Client to pay Additional Charges in respect of Costs incurred by the Supplier as a result of reliance on inadequate or incorrect information or material provided by the Client or information or material supplied later than required by the Supplier in order for it to provide the Goods or Services within the specified time frame (if any).
8.2 The imposition of Additional Charges may also occur as a result of:
(a) costs related to shipping, freight, packing, packaging and ancillary costs;
(b) cancellation by the Client of an Order where cancellation results in Loss to the Supplier;
(c) storage costs for Goods not collected from the Supplier from the original Point of Delivery;
(d) photocopying, courier, packing or handling charges not included in the Quote;
(e) Government or council taxes or charges not included in the Quote; or
(f) additional work required by the Client or any other occurrence which causes the Supplier to incur costs in respect of the Client’s Order additional to the price described in the Quote.
9. Point of Delivery
9.1 Subject to clauses 4.5 and 6, the Supplier must supply the Goods to the Client according to valid Orders placed under clause 5.2.
9.2 The Goods will be delivered Ex Works to the Point of Delivery.
9.3 Without limiting the delivery terms stipulated in the Order, the Client is responsible for the payment of all costs, levies, duties, customs or taxes of any nature in connection with the Goods and their import into and use in, the Territory.
9.4 Each delivery of Goods in response to each of the Client’s Orders will form a separate contract of sale, and default in respect of one delivery is not a cause for terminating the relationship between the parties under the terms of trade unless otherwise agreed by the parties in writing.
9.5 The Supplier will use commercially reasonable endeavours to supply the Goods according to the timeframe stipulated in each Order however time is not of the essence in relation to delivering the Goods.
10. Rejection of Goods
10.1 The Client must inspect the Goods as soon as possible and within three Business Days of delivery or collection under the Point of Delivery, and immediately after inspection, give written notice to the Supplier of any claim that the Goods are not in accordance with the Order or these terms of trade.
10.2 If the Client fails to give the notice referred to in clause 10.1, the Goods will be treated (subject to any relevant Laws) as having been accepted by the Client.
11. Risk and Title
11.1 Unless clause 11.2 applies, risk to the Goods passes from the Supplier to the Client on the Goods being dispatched Ex Works.
11.2 Where a third-party service provider is responsible for delivering the Goods to the Client, risk to the Goods passes to the Client at the Point of Delivery.
11.3 The Client is responsible for obtaining all insurance it considers necessary or appropriate in relation to any risks of damage or loss during transit.
11.4 Title in the Goods passes from the Supplier to the Client when payment is made in full for those Goods (including payment of any Additional Charges).
12. Retention of Title
12.1 Where Goods are supplied by the Supplier to the Client without payment in full, the Client:
(a) is a bailee of the Goods until property in them passes to the Client;
(b) irrevocably appoints the Supplier to be its attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of any security interest in favour of the Supplier with respect to the Goods under applicable Law;
(c) must be able upon demand by the Supplier to separate and identify as belonging to the Supplier the Goods supplied by the Supplier from other goods which are held by the Client;
(d) must not allow any person to have or acquire any security interest in the Goods;
(e) agrees that the Supplier may repossess the Goods if payment is not made within 30 days (or such longer time as the Supplier may, in its complete discretion, approve in writing) of the supply of the Goods; and
(f) the Client grants an irrevocable licence to the Supplier or its agent to enter the Client’s premises in order to recover possession of Goods pursuant to this clause.
12.2 The Client indemnifies the Supplier for any damage to property or personal injury which occurs as a result of the Supplier entering the Client’s premises provided the Supplier was acting reasonably.
12.3 Where Goods are supplied by the Supplier to the Client without payment in full of all moneys payable in respect of the Goods and any Services provided by the Supplier in respect of those Goods, and:
(a) the Client makes a new object from the Goods, whether finished or not;
(b) the Client mixes the Goods with other goods; or
(c) the Goods become part of other goods, (“New Goods”), the Client agrees with the Supplier that the ownership of the New Goods immediately passes to the Supplier.
12.4 The Client will hold the New Goods on trust for the Supplier until payment of all sums owing to the Supplier whether under these terms of trade or any other contract have been made. The Supplier may require the Client to store the New Goods in a manner that clearly shows the ownership of the Supplier.
12.5 For the avoidance of doubt, under clause 12.3, the ownership of the New Goods passes to the Supplier at the beginning of the operation or event by which the Goods are converted into, are mixed with or become part of other goods.
12.6 Despite clause 12.1, the Client may transfer, sell or dispose of Goods, including New Goods, to a third party in the ordinary course of business, provided that:
(a) where the Client is paid by a third party in respect of Goods including New Goods, the Client holds the whole of the proceeds of sale, less any GST, on trust for the Supplier in a separate account, until all amounts owned by the Client to the Supplier have been paid; or
(b) where the Client is not paid by a third party, the Client agrees to assign all of its rights against the third party to the Supplier upon the Supplier giving the Client notice in writing to that effect and for the purpose of giving effect to that assignment the Client irrevocably appoints the Supplier as its attorney.
12.7 Where Goods are supplied by the Supplier to the Client without payment in full of all moneys payable in respect of the Goods and any Services provided by the Supplier in respect of those Goods, the Client acknowledges that the Supplier has a right to:
(a) require that payment is made prior to dispatch of Goods; and/or
(b) register and perfect a personal property security interest under PPS Law (where applicable if Goods are located in Australia or the Client is an Australian entity); or
(c) consider, and if appropriate, secure the Goods under the relevant destination jurisdiction if the there is domestic legislation moderately equivalent to PPS Law.
12.8 If:
(a) a PPS Law applies or commences to apply to these terms of trade or any transaction contemplated by them, or the Supplier determines (based on legal advice) that this is the case; and
(b) in the Supplier’s opinion, the PPS Law:
(i) does or will adversely affect the Supplier’s security position or obligations; or
(ii) enables or would enable the Supplier’s security position to be improved without adversely affecting the Client, the Supplier may give notice to the Client requiring the Client to do anything (including amending these terms of trade or execute any new terms and conditions) that in the Supplier’s opinion is necessary, to the maximum possible extent, to overcome the circumstances contemplated in clause 12.8(b)(i) or improve the security position as contemplated in clause 12.8(b)(ii).
12.9 Subject to clause 12.8, the Client must comply with the requirements of that notice within the time specified in the notice. Following completion of relevant acts under this clause, and if in the Supplier’s opinion the Supplier’s security position or obligations under or in connection with these terms of trade have been or will be materially adversely affected, the Supplier may by further notice to the Client terminate these terms of trade.
12.10 Subject to clause 12.9, the Client must immediately pay to the Supplier all outstanding monies owed to the Supplier.
13. Intellectual Property Rights
13.1 The Client warrants that it owns all Intellectual Property Rights or has a licence to authorise the Supplier to reproduce or use all copyright works or other materials the subject of Intellectual Property Rights supplied by the Client to the Supplier for the purposes of the Order.
13.2 The Client indemnifies and agrees to keep indemnified the Supplier against all Losses incurred by the Supplier in relation to or in any way directly or indirectly connected with any breach of any other Intellectual Property Rights in relation to any material supplied by the Client.
13.3 Unless specifically agreed by the parties in writing, all Intellectual Property Rights in any works created by the Supplier on behalf of the Client vest in and remain the property of the Supplier.
13.4 Subject to payment of all invoices due in respect of the Goods or Services, the Supplier grants the Client a perpetual, non-exclusive licence to use the works created or produced by the Supplier in connection with the provision of Goods or Services under these terms of trade for the purposes contemplated by the Order.
14. Agency and Assignment
14.1 The Client agrees that the Supplier may at any time appoint or engage an agent to perform an obligation of the Supplier in relation to these terms of trade.
14.2 The Supplier has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these terms of trade provided that the assignee agrees to assume any duties and obligations of the Supplier owed to the Client under these terms of trade.
14.3 The Client is not to assign, or purport to assign, any of its obligations or rights under these terms of trade without the prior written consent of the Supplier.
15. Events of Default
15.1 Each of the following occurrences is an event of default:
(a) the Client breaches or is alleged to have breached these terms of trade for any reason (including, but not limited to, defaulting on any payment due to the Supplier) and fails to remedy that breach within 14 days of written notice of such event by the Supplier;
(b) the Client, being a natural person, commits an act of bankruptcy;
(c) the Client, being a corporation, is subject to:
(i) a petition being presented, an order being made or a meeting being called to consider a resolution for the Client to be wound up, deregistered or dissolved;
(ii) a receiver, receiver and manager or an administrator being appointed to all or any part of the Client’s property and undertaking;
(iii) the entering of a scheme of arrangement (other than for the purpose of restructuring); and
(iv) any assignment for the benefit of creditors;
(d) the Client purports to assign its rights under these terms of trade without the Supplier’s prior written consent; or
(e) the Client ceases or threatens to cease conduct of its business in the normal manner.
15.2 Where an event of default occurs, except where payment in full has been received by the Supplier, the Supplier may:
(a) terminate these terms of trade;
(b) terminate any or all Orders and credit arrangements (if any) with the Client;
(c) refuse to deliver Goods or provide further Services;
(d) pursuant to clause 12.1, repossess and re-sell any Goods delivered to the Client, the payment for which has not been received provided such action is within the applicable Laws; and/or
(e) retain (where applicable) all money paid by the Client on account of Goods or Services or otherwise.
15.3 In addition to any action permitted to be taken by the Supplier under clause 15.2, on the occurrence of an event of default all invoices will become immediately due and payable.
16. Termination
16.1 In addition to the express rights of termination provided in these terms of trade, a party may terminate these terms of trade by giving 30 days written notice to the other party.
17. Exclusions & Limitation of Liability
17.1 The Client expressly agrees that use of the Goods and Services is at the Client’s risk. To the full extent allowed by Law, the Supplier’s liability for breach of any term implied into these terms of trade by any Law is excluded.
17.2 All information, specifications and samples provided by the Supplier in relation to the Goods or Services are approximations only and, subject to any consumer guarantees under the ACL or other Laws, small deviations or slight variations from them which do not substantially affect the Client’s use of the Goods or Services will not entitle the Client to reject the Goods upon delivery or to make any claim in respect of them.
17.3 To the extent permitted by Law, the Supplier limits its liability for any breaches of consumer guarantees in respect of the Goods to: (a) the replacement of the Goods or the supply of equivalent Goods; (b) the repair of the Goods; (c) the payment of the cost of replacing the Goods or of acquiring equivalent goods; or (d) the payment of the cost of having the Goods repaired.
17.4 To the extent permitted by Law, the Supplier limits its liability for any breaches of consumer guarantees in respect of the Services to: (a) supplying the Services again; or (b) the payment of the cost of having the Services supplied again.
17.5 To the fullest extent permissible at Law, the Supplier is not liable for any indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, opportunity, data or profits, arising out of or in any way connected with the provision of or failure to provide Goods or Services, or otherwise arising out of the provision of Goods or the Services, whether based on terms of trade, negligence, strict liability or otherwise, even if the Supplier has been advised of the possibility of damages.
17.6 The ACL may give to the Client certain consumer guarantees (if the Client is defined as a consumer in section 3 of the ACL), which cannot be restricted, limited or varied.
18. Indemnities
18.1 The Client indemnifies and will keep indemnified the Supplier in respect of any Loss the Supplier suffers, incurs or is liable for in connection with a breach of these terms of trade by theClient, except to the extent that the Loss is caused by the Supplier.
18.2 This clause 18 survives termination of these terms of trade.
19. Force Majeure
19.1 Neither party will be responsible for delays or failure of performance (except for obligations to make timely payments hereunder) resulting from acts beyond the reasonable control of suchparty (“Force Majeure Event”).
19.2 A Force Majeure Event shall include acts of God, strikes, walkouts, pandemics, riots, acts of war, epidemics, import embargos, failure of suppliers to perform, governmental regulations, power failures, earthquakes or other disasters.
20. Battle of the Forms
20.1 These terms of trade exclusively govern all transactions between the parties. Any term or condition introduced by a party either directly or indirectly, by way of reference or otherwise, isexplicitly rejected and will have no effect provided such term or condition creates a conflict or inconsistency with these terms of trade.
20.2 Subject to an inconsistency or conflict under clause 20.1, a party’s acceptance of an offer made by a third party will not be construed as an acceptance of the third party’s terms and conditions, regardless of any language in such acceptance that may purport to incorporate or adopt such terms.
20.3 Any attempt to modify, add, or alter these terms of trade by any purchase order, acknowledgment, or other communication will be deemed to be a counter-offer and will not take effect unless expressly agreed by the parties in writing.
21. Dispute Resolution
21.1 The parties must follow the procedure in this clause 21 where any dispute arises between the Supplier and the Client.
21.2 A party may give another party a notice of the dispute and the dispute must be dealt with in accordance with the procedure set out in this clause.
21.3 A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution by way of negotiation in accordance with this clause.
21.4 A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in thisclause.
21.5 If a dispute is notified, the dispute must immediately be referred to the parties’ respective senior management. Those representatives must endeavour to resolve the dispute as soon as possible and in any event within 10 Business Days (or other period as agreed).
21.6 Unless otherwise agreed by the parties, any dispute that cannot be settled by negotiation between the parties or their representatives, the parties expressly agree to endeavour to settle the dispute by arbitration.
21.7 Following negotiation, any dispute, controversy or claim arising out of, relating to or in connection with these terms of trade, including any questions regarding its existence, validity or termination, will be resolved by the commencement of legal proceedings or arbitration in accordance with the ACICA Expedited Arbitration Rules. The seat of arbitration will be Sydney,Australia and the language of the arbitration will be English.
21.8 Despite the existence of a dispute (including the referral of the dispute to mediation), each party must continue to perform its obligations under these terms of trade unless otherwise agreed by the parties in writing.
21.9 The parties must hold confidential, unless otherwise required by Law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for the purposes of dispute resolution.
21.10 The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.
22. General
22.1 These terms of trade are governed by the laws of New South Wales, Australia, and each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia.
22.2 Nothing in these terms of trade establishes or creates a supplier and agent relationship, or an employer and employee relationship, or a partnership, or joint venture, or franchise, between the parties.
22.3 These terms of trade supersede all oral and written negotiations and communications by and on behalf of either of the parties.
22.4 In entering into these terms of trade, the Client has not relied on any warranty, representation or statement, whether oral or written, made by the Supplier or any of its employees or agents relating to or in connection with the subject matter of these terms of trade.
22.5 If any provision of these terms of trade at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
22.6 A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
22.7 A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on a Quote or Order (as varied pursuant to this clause) and delivered personally, sent by pre-paid mail to the address of the addressee, or sent by email to the email address of the addressee with acknowledgement of delivery.
22.8 A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the fifth Business Day after posting (if delivering nationally), or on the tenth Business Day after posting (if delivering internationally); or if sent by email before 5pm on a Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.
22.9 A party may only change its postal or email address for service by giving notice of that change in writing to the other party.
22.10 The United Nations Convention on Contracts for the International Sale of Goods (1980) (The Vienna Convention) (and any acts or regulations enacting The Vienna Convention) will not apply to these terms of trade and are excluded.