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Water e-Source – Terms & Conditions of Trade
1. Definitions
1.1 “CSI” means Wateresource Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Wateresource Pty Ltd.
1.2 “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is
more than one Customer is a reference to each Customer jointly and severally.
1.3 “Goods” means all Goods or Services supplied by CSI to the Customer at the Customer’s request from time to time
(where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between CSI and the Customer in accordance with
clause 5 below.
2. Acceptance
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these
terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with CSI’s consent in writing and shall prevail to the extent of
any inconsistency with any other document or agreement between the Customer and CSI.
2.3 Any advice, recommendation, information, assistance or service provided by CSI in relation to Goods supplied is
given in good faith is based on CSI’s own knowledge and experience and shall be accepted without liability on the part of CSI, and it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Goods or Services.
3. Electronic Transactions Act 2000
3.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with
Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
4. Change in Control
4.1 The Customer shall give CSI not less than fourteen (14) days prior written notice of any proposed change of
ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by CSI as a result of the Customer’s failure to comply with this clause.
5. Price and Payment
5.1 At CSI’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by CSI to the Customer; or
(b) CSI’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise
for a period of thirty (30) days.
5.2 CSI reserves the right to change the Price:
(a) if a variation to the Goods which are to be supplied is requested; or
(b) if a variation to the Goods originally scheduled (including any applicable plans or specifications or change to
requirements) is requested; or
(c) in the event of increases to CSI in the cost of Goods (including but not limited to overseas transactions that may
increase as a consequence of variations in foreign currency rates of exchange and/or international freight and
insurance charges) which are beyond CSI’s control.
5.3 At CSI’s sole discretion a deposit may be required upon request.
5.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s
determined by CSI, which may be:
(a) on delivery of the Goods;
(b) before delivery of the Goods;
(c) by way of instalments/progress payments in accordance with CSI’s payment schedule;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is thirty (30) days following the end of the month in which any
invoice was given to the Customer by CSI.
5.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as
agreed to between the Customer and CSI.
5.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to CSI an
amount equal to any GST CSI must pay for any supply by CSI under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6. Delivery of Goods
6.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at CSI’s address; or
(b) CSI (or CSI’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer
is not present at the address.
6.2 At CSI’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
6.3 Any time or date given by CSI to the Customer is an estimate only. The Customer must still accept delivery of the
Goods even if late and CSI will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
7. Risk
7.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the
Goods on or before Delivery.
7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer,
CSI is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by CSI is sufficient evidence of CSI’s rights to receive the insurance proceeds without the need for any person dealing with CSI to make further enquiries.
7.3 If the Customer requests CSI to leave Goods outside CSI’s premises for collection or to deliver the Goods to an
unattended location then such Goods shall be left at the Customer’s sole risk.
8. Specifications
8.1 The Customer acknowledges that:
(a) all descriptive specifications, illustrations, drawings, data, dimensions and weights stated in CSI’s or
manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of
identification only. The Customer shall not be entitled to rely on such information, and any use of such does not
constitute a sale by description, and does not form part of the contract, unless expressly stated as such in
writing by CSI;
(b) while CSI may have provided information or figures to the Customer regarding the performance of the Goods,
the Customer acknowledges that CSI has given these in good faith, and are estimates based on industry
prescribed estimates under optimal operating conditions.
8.2 The Customer shall be responsible for ensuring that the Goods ordered are suitable for their intended use.
9. Title
9.1 CSI and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid CSI all amounts owing to CSI; and
(b) the Customer has met all of its other obligations to CSI.
9.2 Receipt by CSI of any form of payment other than cash shall not be deemed to be payment until that form of
payment has been honoured, cleared or recognised.
9.3 It is further agreed that:
(a) until ownership of the Goods passes to the Customer in accordance with clause 9.1 that the Customer is only a
bailee of the Goods and must return the Goods to CSI on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for CSI and must pay to CSI
the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary
course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods
then the Customer must hold the proceeds of any such act on trust for CSI and must pay or deliver the proceeds
to CSI on demand.
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer
does so then the Customer holds the resulting product on trust for the benefit of CSI and must sell, dispose of or
return the resulting product to CSI as it so directs.
(e) the Customer irrevocably authorises CSI to enter any premises where CSI believes the Goods are kept and
recover possession of the Goods.
(f) CSI may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any
interest in the Goods while they remain the property of CSI.
(h) CSI may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the
Goods has not passed to the Customer.
10. Personal Property Securities Act 2009 (“PPSA”)
10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the
meaning given to it by the PPSA.
10.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms
and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all
Goods and/or collateral (account) – being a monetary obligation of the Customer to CSI for Services – that have
previously been supplied and that will be supplied in the future by CSI to the Customer.
10.3 The Customer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete,
accurate and up-to-date in all respects) which CSI may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal
Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii)correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii);
financing change statement on the Personal Property Securities Register established by the PPSA or releasing
any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of
CSI;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the
Goods and/or collateral (account) in favour of a third party without the prior written consent of CSI;
(e) immediately advise CSI of any material change in its business practices of selling the Goods which would result
in a change in the nature of proceeds derived from such sales.
10.4 CSI and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement
created by these terms and conditions.
10.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of
the PPSA.
10.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
10.7 Unless otherwise agreed to in writing by CSI, the Customer waives their right to receive a verification statement in
accordance with section 157 of the PPSA.
10.8 The Customer must unconditionally ratify any actions taken by CSI under clauses 10.3 to 10.5.
10.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the
effect of contracting out of any of the provisions of the PPSA.
11. Security and Charge
11.1 In consideration of CSI agreeing to supply the Goods, the Customer charges all of its rights, title and interest
(whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
11.2 The Customer indemnifies CSI from and against all CSI’s costs and disbursements including legal costs on a
solicitor and own client basis incurred in exercising CSI’s rights under this clause.
11.3 The Customer irrevocably appoints CSI and each director of CSI as the Customer’s true and lawful attorney/s to
perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any
document on the Customer’s behalf.
12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
12.1 The Customer must inspect the Goods on delivery and must within seven (7) days of delivery notify CSI in writing of
any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow CSI to inspect the Goods.
12.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory
implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be
implied into these terms and conditions (Non-Excluded Guarantees).
12.3 CSI acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded
Guarantees.
12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, LW
makes no warranties or other representations under these terms and conditions including but not limited to the
quality or suitability of the Goods. CSI’s liability in respect of these warranties is limited to the fullest extent
permitted by law.
12.5 If the Customer is a consumer within the meaning of the CCA, CSI’s liability is limited to the extent permitted by
section 64A of Schedule 2.
12.6 If CSI is required to replace the Goods under this clause or the CCA, but is unable to do so, CSI may refund any
money the Customer has paid for the Goods.
12.7 If the Customer is not a consumer within the meaning of the CCA, CSI’s liability for any defect or damage in the
Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Customer by CSI at CSI’s sole
discretion;
(b) limited to any warranty to which CSI is entitled, if CSI did not manufacture the Goods;
(c) otherwise negated absolutely.
12.8 Subject to this clause 12, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 12.1; and
(b) CSI has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
12.9 Notwithstanding clauses 12.1 to 12.8 but subject to the CCA, CSI shall not be liable for any defect or damage which
may be caused or partly caused by or arise as a result of:
(a) the Customer failing to properly maintain or store any Goods;
(b) the Customer using the Goods for any purpose other than that for which they were designed;
(c) the Customer continuing the use of any Goods after any defect became apparent or should have become
apparent to a reasonably prudent operator or user;
(d) the Customer failing to follow any instructions or guidelines provided by CSI;
(e) fair wear and tear, any accident, or act of God.
12.10 CSI may in its absolute discretion accept non-defective Goods for return in which case CSI may require the
Customer to pay handling fees of up to fifteen percent (15%) of the value of the returned Goods plus any freight
costs.
12.11 Notwithstanding anything contained in this clause if CSI is required by a law to accept a return then CSI will only
accept a return on the conditions imposed by that law.
13. Intellectual Property
13.1 Where CSI has designed, drawn or developed Goods for the Customer, then the copyright in any designs and
drawings and documents shall remain the property of CSI.
13.2 The Customer warrants that all designs, specifications or instructions given to CSI will not cause CSI to infringe any
patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to
indemnify CSI against any action taken by a third party against CSI in respect of any such infringement.
13.3 The Customer agrees that CSI may (at no cost) use for the purposes of marketing or entry into any competition, any
documents, designs, drawings or Goods which CSI has created for the Customer.
14. Default and Consequences of Default
14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of
payment, at a rate of two and a half percent (2.5%) per calendar month (and at CSI’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 If the Customer owes CSI any money the Customer shall indemnify CSI from and against all costs and
disbursements incurred by CSI in recovering the debt (including but not limited to internal administration fees, legal
costs on a solicitor and own client basis, CSI’s contract default fee, and bank dishonour fees).
14.3 Without prejudice to any other remedies CSI may have, if at any time the Customer is in breach of any obligation
(including those relating to payment) under these terms and conditions CSI may suspend or terminate the supply of
Goods to the Customer. CSI will not be liable to the Customer for any loss or damage the Customer suffers
because CSI has exercised its rights under this clause.
14.4 Without prejudice to CSI’s other remedies at law CSI shall be entitled to cancel all or any part of any order of the
Customer which remains unfulfilled and all amounts owing to CSI shall, whether or not due for payment, become
immediately payable if:
(a) any money payable to CSI becomes overdue, or in CSI’s opinion the Customer will be unable to make a
payment when it falls due;
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an
arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the
Customer or any asset of the Customer.
15. Cancellation
15.1 CSI may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time
before the Goods are delivered by giving written notice to the Customer. On giving such notice LW shall repay to the Customer any money paid by the Customer for the Goods. CSI shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred
(whether direct or indirect) by CSI as a direct result of the cancellation (including, but not limited to, any loss of
profits).
15.3 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not
be accepted once production has commenced, or an order has been placed.
16. Privacy Act 1988
16.1 The Customer agrees for CSI to obtain from a credit reporting body (CRB) a credit report containing personal credit
information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by CSI.
16.2 The Customer agrees that CSI may exchange information about the Customer with those credit providers and with
related body corporates for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is
in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two
years.
16.3 The Customer consents to CSI being given a consumer credit report to collect overdue payment on commercial
credit.
16.4 The Customer agrees that personal credit information provided may be used and retained by CSI for the following
purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of
Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer;
and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
16.5 CSI may give information about the Customer to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Customer including credit history.
16.6 The information given to the CRB may include:
(a) personal information as outlined in 16.1 above;
(b) name of the credit provider and that LW is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer’s application for credit or commercial credit (e.g. date of
commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are
overdue by more than sixty (60) days and for which written notice for request of payment has been made and
debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and
CSI has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of CSI, the Customer has committed a serious credit infringement;
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty
dollars ($150).
16.7 The Customer shall have the right to request (by e-mail) from CSI:
(a) a copy of the information about the Customer retained by CSI and the right to request that CSI correct any
incorrect information; and
(b) that CSI does not disclose any personal information about the Customer for the purpose of direct marketing.
16.8 CSI will destroy personal information upon the Customer’s request (by e-mail) or if it is no longer required unless it
is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in
accordance with the law.
16.9 The Customer can make a privacy complaint by contacting CSI via e-mail. CSI will respond to that complaint within
seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30)
days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the
Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
17. General
17.1 The failure by CSI to enforce any provision of these terms and conditions shall not be treated as a waiver of that
provision, nor shall it affect CSI’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of South Australia
in which CSI has its principal place of business, and are subject to the jurisdiction of the courts in South Australia.
17.3 Subject to clause 12, CSI shall be under no liability whatsoever to the Customer for any indirect and/or
consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by CSI of these terms and conditions (alternatively CSI’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
17.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be
owed to the Customer by CSI nor to withhold payment of any invoice because part of that invoice is in dispute.
17.5 The Customer agrees that CSI may amend these terms and conditions at any time. If CSI makes a change to these
terms and conditions, then that change will take effect from the date on which CSI notifies the Customer of such
change. The Customer will be taken to have accepted such changes if the Customer makes a further request for
CSI to provide Goods to the Customer.
17.6 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action,
fire, flood, storm or other event beyond the reasonable control of either party.
17.7 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary
authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal
obligations on it.