1. TERMS OF SUPPLY
These Terms and Conditions apply to all products ("Products") sold or supplied by Enviropipes Pty Ltd (hereinafter referred to as "Enviropipes") to the party completing the application annexed to these conditions (hereinafter referred to as the "Customer").
2.1 The price of the Products shall be the prevailing price as quoted by Enviropipes from time to time. Enviropipes reserves the right to increase the price of the Products at any time prior to delivery by notice in writing to the Customer. On receipt of such a notice the Customer may cancel any part of the undelivered order.
2.2 The customer is required to pay the price for the Products in Australian dollars.
2.3 Any fluctuation in the invoice or contract price as a result of currency variation, taxes, customs duty or other imports shall be to the Customer's account.
2.4 Unless otherwise specified all pricing will be deemed exclusive of freight, transportation, packaging, shipping, clearance fees and other costs, charges and expenses incurred by Enviropipes in the course of delivering or supplying the Products to the Customer.
2.5 Where any of the costs in Clause 2.4 are incurred by Enviropipes but have not been allowed for by Enviropipes in calculating the price, then they shall be to the Customer's account.
3. PRODUCT SPECIFICATIONS
The Customer guarantees to Enviropipes that all Product specifications and other design information provided to Enviropipes for the manufacture of special orders are accurate and correct in all respects. In addition, the Customer confirms that such an order does not infringe upon a third party's intellectual property rights including the copyrights, trademarks, designs or patents of a third party.
4.1 Any delivery dates and times made known to the Customer are estimates only and not contractual commitments. Enviropipes will take reasonable steps to meet any estimated dates and times but Enviropipes will not be liable for any deliveries not on time or non-delivery of the Products to the Customer nor will Enviropipes be liable for any loss, damage or delay occasioned to the Customer or any other person or entity for failure to meet any estimated date or time. If Enviropipes provides any services related to the Products, it will provide such services within a reasonable time.
4.2 If Enviropipes is prevented from delivering goods for any reason including an act of God, strike, lockouts, trade disputes, fire, breakdown or interruption of transport, Enviropipes will be under no liability whatsoever to the Customer and shall be entitled to extend the time for performance.
4.3 If the Customer fails to accept delivery of the Product or is unable to do so for any reason, Enviropipes can deliver the Product to a place of storage nominated by the Customer, and failing such nomination, to a place of storage decided by Enviropipes. Such delivery shall be deemed to be delivered to the Customer. All costs, charges and expenses incurred by Enviropipes on account of storage, detention, double cartage/delivery or similar causes if these costs are caused by the Customer's inability or failure to accept delivery of the goods when delivered or ready for delivery by Enviropipes, shall be to the Customer's account.
4.4 Enviropipes is not required to obtain a signed acknowledgement or other receipt from any person at the place of storage nominated for delivery. However if a signed acknowledgement or other receipt is obtained from someone believed by Enviropipes to be authorised by the Customer to sign or otherwise take delivery, then this will signify evidence of the Customer's acceptance of the goods delivered.
4.5 Subject to Clause 4.4 and Clause 13.6, all claims for Enviropipes' failure to fulfill the Customer's order due to shortfall, defect, incorrect delivery and/or otherwise must be made by giving written notice to Enviropipes within fourteen (14) days from the date of delivery. If no notice is received by Enviropipes then it will be deemed that the Customer has accepted the Products provided. Where Enviropipes agrees to accept the return of any Product, the Product must be in a good and saleable condition. In addition, Enviropipes may include a handling charge on the return of such Product that will be to the Customer's account.
4.6 Enviropipes at all times retains ownership of any of Enviropipes' owned boxes, pallets or other item used in the supply of the Product and the Customer agrees to indemnify Enviropipes in respect of any boxes, pallets or other item not returned in good order and condition to Enviropipes within fourteen (14) days of delivery of the Product.
5.1 Unless otherwise agreed by Enviropipes and the Customer in writing, payment must be made within 30 days of the end of the month following the date of the invoice.
5.2 Enviropipes may at any time without notice terminate or suspend any right of the Customer to purchase Products on credit. Where there are monies outstanding with respect to any invoice, Enviropipes reserves the right to require that any deliveries that have not yet been made be paid for in cash on delivery.
5.3 If at any time monies are due and owing by the Customer to Enviropipes with respect to any invoice, then the whole amount of all invoices then outstanding will become immediately due and payable.
5.4 Enviropipes reserves the right to charge the Customer interest at the rate of 2% per month on any monies due to Enviropipes by the Customer that are unpaid, calculated daily from the due date for payment until payment is received. If the Customer has an account with Enviropipes, Enviropipes may deduct the Customer's account at any such times it chooses for such interest.
5.5 In addition, the Customer shall pay all costs, charges and expenses incurred by Enviropipes in recovering unpaid amounts or otherwise enforcing or attempting to enforce any of its rights under these Terms and Conditions, including all legal costs calculated on a "solicitor and own client" basis.
5.6 Enviropipes may withdraw the Customer's credit facilities at its discretion at any time or alter the Customer's credit limit, without notice to the Customer or any guarantor of the Customer.
6. GST AND TAXES
6.1 Unless otherwise specified all pricing will be deemed to be expressed exclusive of goods and services tax levied pursuant to the A New Tax System (Goods and Services Tax) Act 1999 ("GST") and other taxes.
6.2 Except to the extent that any GST or other taxes have already been specifically included in the price, the Customer must pay the amount of any applicable GST or other taxes at the time of payment for the Products.
7. RETENTION OF TITLE
7.1 Full legal and equitable title in the Products and ownership of the Products shall remain vested in Enviropipes until such time as the whole of the purchase price for the Products (and associated costs, duties and charges invoiced for the Products) have been paid in full to Enviropipes.
7.2 In the event that the Customer defaults on a payment of any monies owing, Enviropipes may enter the Customer's premises (or the premises of any associated entity where the Products are located) without liability for trespass or any resulting damage and retake possession of the Products. Enviropipes may resell, reuse or recycle any Products that have been repossessed how it sees fit.
7.3 In the event that the Customer sells the product or uses the product in some manufacturing or construction process, of its own or some third parties, the Customer must hold the proceeds of the sale in a separate identifiable account as Enviropipes' beneficial property and pay such amount to Enviropipes on request.
All risk in the Products shall pass to the Customer upon delivery or when the Product is deemed delivered.
9. RETURN OF GOODS
9.1 Subject to clause 10, Enviropipes will not accept the return of a Product, unless otherwise agreed in writing by Enviropipes. A surcharge to recover the costs of restocking, recycling and repackaging may be determined and applied by Enviropipes on those Products that are accepted for return. The charge determined by Enviropipes will be deducted from the amount of the credit allowed for the return.
9.2 All Products that are returned to Enviropipes must be accompanied by the original invoice number.
9.3 No custom made Products are able to be returned pursuant to this clause 9 unless such Products are defective.
10.1 Nothing in these Terms and Conditions shall be read or applied so as to exclude, restrict or modify the application of any provision or statute (including the Competition and Consumer Act 2010 - Formally the Trade Practices Act 1974), where to do so would be in breach of the law or void any part of these Terms and Conditions.
10.2 All conditions, guarantees and warranties as to:
(i) the merchantable quality, condition, fitness for purpose or correspondence with description or sample of the goods; and
(ii) the services being rendered with due care and skill;
which may otherwise be implied by common law, statute law or is a practice of the trade are specifically excluded, except where such exclusions would be in breach of the law or void any part of these Terms and Conditions.
10.3 Subject to Clause 8.1, Enviropipes excludes all liability for any loss or damage experienced by the Customer (whether direct, indirect or consequential) in relation to any fault or deficiency of whatsoever nature in the Product or the production, manufacture, design, supply, acquisition, use or consumption of the Product, or any neglectful act or omission of Enviropipes, its directors, officers, employees, contractors or agents.
10.4 Where Enviropipes is legally responsible for breaching a condition or guarantee implied by Division 1 of Part 3-2 of the Competition and Consumer Act 2010, Enviropipes liability is restricted to:
(i) in the case of the Product, replacement of the Product, the supply of the equivalent Product or the repair of the Product; and
(ii) in the case of services, the supplying of services again.
11.1 Enviropipes may withdraw any credit facilities which may have been extended to the Customer and/or discontinue the delivery of any Products which have not yet been supplied to the Customer, without prejudice to Enviropipes' rights and resolutions in relation to the contravening of these Terms and Conditions by the Customer, if:
(i) any monies due and payable by the Customer are in arrears for seven (7) days not considering whether or not written demand has been made by Enviropipes;
(ii) the Customer defaults in satisfying the conditions of any agreement, terms or stipulation in these Terms and Conditions and such default is not resolved within seven (7) days of service of a written notice to Enviropipes on the Customer;
(iii) the Customer is unable to settle its debts to any person as they become payable, as a consequence of the Customer entering into, or any steps are taken to have the Customer enter into liquidation, receivership, administration, bankruptcy or any arrangement with the Customer's assets or the Customer otherwise becomes insolvent; or
(iv) The customer contravenes any of these Terms and Conditions.
12. INTELLECTUAL PROPERTY
12.1 Where Enviropipes requires any copyright material, patents, registered designs or trademarks owned by the Customer for the execution of any contract, the Customer will grant permission and will hold Enviropipes harmless from and indemnify Enviropipes against any infringement of any copyright, patent, registered design or trademark. The same will apply where the Customer is the licensee or sub-licensee.
12.2 The license or trademark of any Product supplied by Enviropipes to the Customer will not confer to the Customer upon the sale of the Product to the Customer.
13.1 These Terms and Conditions are deemed to succeed any arrangements or agreements in place between Enviropipes and the Customer and constitute the entire agreement relating to the supply of Products by Enviropipes, excluding any arrangements or agreements made in writing which state otherwise.
13.2 These Terms and Conditions will be governed in accordance with the laws of Western Australia and the parties consent to submit to the exclusive jurisdiction of the Courts in the State of Western Australia.
13.3 A quotation will not represent an offer to sell a Product to the Customer. No contract will exist between the Customer and Enviropipes for the supply of a Product until a Customer's order for the Product has been accepted by Enviropipes (such acceptance of Customer's order may be communicated by Enviropipes in writing or by overt act of acceptance). At their discretion, Enviropipes can accept or refuse any order for a Product and can make their acceptance of an order conditional upon the Customer receiving a satisfactory credit assessment.
13.4 Enviropipes may vary these Terms and Conditions at any time and it is the Customers responsibility to check the printed terms and conditions accompanying or included with any quote, invoice or service, or updated terms and conditions provided to the Customer from time to time.
13.5 The Customer shall not delegate or otherwise transfer or attempt to transfer any right or obligation under these Terms and Conditions without gaining prior written consent from Enviropipes.
13.6 Enviropipes accepts no responsibility whatsoever for the accuracy or for any results obtained by the Customer if the Customer relies on information contained in Enviropipes' published literature and information given by Enviropipes' staff. All advice or information that the Customer relies upon is done so entirely at their own risk. Enviropipes will not be liable for any loss or damage suffered where the Customer relies on such information.
13.7 In the event that the entire or any part or parts of any clause in these Terms and Conditions are held to be void or unenforceable in entirety or in part, such clause or part thereof shall to that extent be severed from these Terms and Conditions but the validity and enforceability of the remainder of these Terms and Conditions shall not be affected.
13.8 These Terms and Conditions shall bind the Customer's personal and legal representatives, successors and permitted assigns.