i. ‘Agreement’ means an agreement entered into between the Company and the Customer (and, where relevant, each Guarantor) to which these Terms and Conditions apply. For the avoidance of doubt, each time the Company accepts an Order, a separate Agreement is formed incorporating the Order and these Terms and Conditions.
ii. ‘Company’ shall mean Jaddfe Pty Ltd t/as Watermatic Irrigation (ABN: 46 097 407 791).
iii. ‘Customer’ means the Customer or any person acting on behalf of and with the authority of the Customer to purchase Goods or Services from the Company.
iv. ‘Delivery’ means:
a. In the case of Goods, delivered by the Company to the Customer at the location or place specified by the Customer in an Order; or
b. In the case of Services, the date of completion of those services; and include such other place or date (as the case may be) as parties may agree or as the Company, without obligation and at its sole discretion, consider reasonable in the circumstances.
v. ‘Dispatched ’ means Goods have been removed from the premises of the Company for the purpose of Delivery to the Customer, or any third party.
vi. ‘Guarantor’ means that person/s or entity who agrees to be liable for the debts of the Customer.
vii. ‘Goods’ shall mean Goods supplied by the Company to the Customer.
viii. ‘Order’ means any purchase order or other request by the Customer for the supply of Goods or Services by The Company, whether that supply is to the Customer or to any third party.
ix. ‘Price’ shall mean the cost of the Goods or Services as agreed between the Company and the Customer subject to Clause 3 of these Terms and Conditions.
x. ‘Services’ shall mean all services supplied by the Company to the Customer.
i. Any instructions received by the Company, whether verbal or written, from the Customer for the supply of Goods or Services or the Customers acceptance of Goods or Services supplied by the Company shall constitute acceptance of the Terms and Conditions contained herein.
2. Price and Payment
i. At the sole discretion of the Company:
a. The Price shall be as indicated on invoices provided by the Company to the Customer from time to time in respect of Goods or Services supplied, or
b. The Price of the Goods or Services shall be the Company’s quoted Price which shall be binding on the Company once accepted by the Customer.
ii. Time for the payment of Goods or Services purchased from the Company must be made within the time specified on the invoice.
iii. Payment may be made by cash on delivery (COD) , cheque or direct transfer. Credit card payments will be accepted for account payments, but a surcharge may apply to all such payments. Credit card payments accepted for a COD payment will not have a surcharge applied.
iv. The Customer shall not be entitled to retain or set off any money owing to the Company notwithstanding any default or alleged default by the Company.
v. If payment of any amount owing in this Agreement is not made on time, the Customer shall pay interest to the Company on any amount owing at the rate of 2.5% above Westpac Banking Corporations Business Overdraft Rate.
vi. The Customer will pay to the Company without deduction, set-off or counterclaim all monies owing to the Company.
vii. The Company shall be entitled at any time to set-off any monies then or contingently owed to the Company by the Customer against any debt the Company owes the Customer. Any Customer payment will be applied against interest, collection costs, administrative and legal costs then against the other amounts owing pursuant to this Agreement.
viii. If Goods are returned as defective but are not in fact defective after testing, then the Company is entitled to charge the Customer for all relevant additional freight and handling costs and for the costs of the Company’s labour in investigating the alleged defects in the Goods. Any additional Goods or Services required by the Customer will be charged to the Customer on the basis of a further Quote from the Company.
ix. The cost of any permits, inductions, licence fee s and/or toll charges incurred by the Company, and any special packing and packing materials used in relation to Goods or Services, will be charged to the Customer despite that such cost may have been omitted from any Quote.
3. Terms Of Sale
i. Goods or Services sold or supplied by the Company are sold or supplied strictly on these Terms and Conditions, which can only be waived or varied in writing by the Company. Unless an Order expressly provides otherwise, these Terms and Conditions will prevail over all conditions expressed or implied in any Order placed by the Customer (or in any standard terms and conditions of the Customer) to the extent of any inconsistency.
ii. 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 Goods or Services.
iii. Goods or Services to be sold or supplied by the Company to the Customer are as described on the Order accepted by the Company and the description of Goods or Services on the Order as accepted (modified only as may be agreed in writing) will prevail over all other descriptions including any prior enquiry by the Customer.
iv. The Company reserves the right to update from time to time the Terms and Conditions which will apply to an Agreement. If the Company makes a change to these Terms and Conditions, that change will take effect from the date on which the Company provides reasonable notification to the Customer of such change. The Customer confirms that notification on the Company’s website of the updated Terms and Conditions or reference to the updated Terms and Conditions in any material provided to the Customer will be reasonable steps taken by the Company to inform the Customer. The Customer will be taken to have acknowledged and accepted such change if the Customer makes a subsequent request for the Company to provide Goods or Services to the Customer. The Company declares, and the Customer acknowledges that the most up-to-date version of the Terms and Conditions which form part of the Agreement can be found on Company’s website , currently located at www.watermatic.com.au
i. The Company will not be liable for any loss, damage or delay occasioned to the Customer, its customers or any other person, arising from:
a. late Delivery or non-Delivery, or late utilisation of any Goods or Services; or
b. any actions or obligations conducted or incurred by the Customer in reliance on any expected delivery dates.
ii. The Customer is responsible for making arrangements to receive Goods or Services delivered in accordance with any Order which the Company may deliver in any manner it considers reasonable in the circumstances.
iii. If the Customer fails to accept Delivery of Goods or Services, the Customer will be liable for loss of or damage to the Goods or Services and for any costs or damages incurred by the Company on account of such failure to accept Delivery.
iv. The Customer waives any claim for shortage of any Goods Delivered if a claim in respect of short Delivery has not been lodged with the Company within 48 hours from the date and time of Delivery.
v. Should the Customer fail to provide sufficient instructions to enable Delivery of Goods to the Customer, the Company may arrange for suitable storage and insurance until such Goods are dispatched. Charges for storage, insurance, transport and other incidental costs may be charged by the Company to the Customer.
vi. Delivery of Goods or Services to a third party nominated by the Customer is deemed to be Delivery to the Customer.
vii. The Company may deliver Goods or Services in separate instalments. Each separate instalment may be invoiced and paid in accordance with these Terms and Conditions.
i. The risk in, and all attached liability for damage to, Goods passes to the Customer at the point of Dispatch of the Goods even if the Company delivers Goods itself or the Company’s premises are the intended delivery location. The Customer must make its own arrangements for insurance of the Goods on or before Dispatch.
ii. If any Goods are damaged or destroyed following Dispatch but prior to ownership passing to the Customer, the Company is entitled to receive all insurance proceeds payable for the Goods. The production of these Terms and Conditions by the Company will be sufficient evidence of the Company’s right to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.
6. Loss or Damage in Transit
i. The Company is not responsible to the Customer or any person claiming through the Customer for any loss or damage to Goods in transit caused by any event of any kind by any person (whether or not the Company is legally responsible for the person who caused or contributed to that loss or damage).
ii. The Company will endeavour to provide the Customer with such assistance as may be necessary to press claims on carriers as long as the Customer:
a. has notified the Company and the carriers in writing immediately after loss or damage is discovered on receipt of Goods; and
b. lodges a claim for compensation upon the carrier within three (3) days of the date of receipt of Goods.
i. If the Customer defaults in any payment, or if in the opinion of the Company, the Customer is unlikely to be able to meet its liability as it falls due then the Company may at its option:
a. Require payment forwith of all amounts owing by the Customer to the Company, whether or not such amounts are then due for payment including without limitation, all interest, administration and collection charges and all legal costs and any payment by the Customer shall be first applied to such charges and costs;
b. Charge full list price for goods supplied without allowing discount;
c. Repossess any goods delivered to the Customer for which payment has not been received.
ii. If the Customer is in default pursuant to clause 8(i) then the Customer indemnifies the Company against any loss or cost which the Company may incur in recovering payment from the Customer including but not limited to administration costs, collection costs and legal costs (on an indemnity basis).
8. Reservation of Title
i. Property in any goods supplied by the Company shall remain the sole and absolute property of the Company as legal and equitable owner until the full purchase price for all goods supplied is received by the Company from the Customer.
ii. The Customer irrevocably authorizes the Company to repossess any goods supplied by the Company to the Customer, without any notice if the Customer fails to make any payment when it is due or if in the opinion of the Company the payment of any amount in respect of goods supplied by the Company is in jeopardy or the Customer commences to be wound up or is placed in administration or under official management or into liquidation or suffers a receiver and/or manager to be appointed in respect of any of its assets. The Customer in consideration of credit being given irrevocably authorizes the Company to enter onto any land on which the goods are left and to which the Customer has a right of entry, to enter thereon and remove goods.
iii. When the Company retakes possession of the goods pursuant to its rights hereunder the contract between the Company and the Customer is thereby terminated and the Company has the right to resell such repossessed goods.
iv. Any monies received by the Customer in payment in part or in full for the Goods or Services supplied by the Company to the Customer shall be held by the Customer in trust for the benefit of the Company and payable to the Company until the Customer has paid for all Goods or Services supplied by the Company.
v. The Customer releases and indemnifies the Company and its servants or agents from all claims for loss or damage caused by the Company or its servants or agents in enforcing or attempting to enforce its rights under this clause.
i. The Customer hereby charges in favour of the Company as security for the Customer’s obligations to the Company, all right title and interest in any land held now by the Customer alone or jointly with anyone or acquired by the Customer at any time hereafter. If the Customer defaults in payment of any amount owed to the Company, the Customer specifically authorizes the Company to lodge a caveat against any dealings with any such property and appoints the Company to be the Customer’s Attorney for this purpose.
ii. The Customer acknowledges and specifically agrees that the Company may request a credit report on the Customer to be given to it for the purpose of assessing any credit provided to the Customer from a credit reporting agency, bank or financial institution and such report may contain consumer credit information.
iii. The Customer agrees that the Company may give information to a credit reporting agency, bank or financial institution on any default made by the Customer.
iv. The Customer authorizes the Company and its associated companies to obtain personal and/or confidential information about the Customer from the Customer or anyone else primarily for assessing any credit provided, the subsequent administration and collection of the account.
v. The Customer agrees to the Company, collecting, using, disclosing to the personnel of the Company and others their information for these purposes and for credit control generally.
11. Cancellations and Returns
i. In the event that the Customer cancels an Order for any Goods or Services the Customer will be liable for any and all loss or damage incurred (whether direct or indirect) by the Company as a direct result of the cancellation (including, without limitation, any loss of profits).
ii. Cancellation of Orders for non-standard Goods or Services made or provided to the Customer’s Specifications will not be accepted once production of those Goods or Services has commenced.
iii. The Company may cancel an Agreement, or any Delivery of Goods or Services at any time before the Goods or Services are delivered by giving written notice to the Customer. On giving such notice the Company will repay to the Customer any money paid by the Customer for Goods or Services not yet delivered. The Company will not be liable for any loss or damage whatsoever arising from such cancellation.
iv. The Customer may only return goods if the Company has agreed to that return and it is within 30 days of the purchase date. All such returns may be subject to a 20% re-stocking fee. Refunds will be in the form of a Company credit.
12. Defect and Warranties
i. The Customer must inspect Goods or Services on Delivery and must, within 48hours of Delivery notify the Company in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description, order or quote or other grounds for rejection of the Goods or Services. Upon such notification the Customer must:
a. Specify all grounds relied upon by it in its rejection of the Goods or Services;
b. Provide good quality evidence of the grounds for its rejection of the Goods or Services; and
c. Allow the Company reasonable access to the site to inspect the Goods or Services.
ii. The Customer is responsible for costs associated with the return of the Goods to the Company’s nominated premises.
iii. The Company warrants that if any defect in Services supplied by the Company becomes apparent and is reported to the Company within 12 months from the installation date, then the Company will at their sole discretion repair the defective Services.
iv. The warranty shall not cover any defect which may be caused or partly caused by or arise through:
a. Fair wear and tear;
b. Failure by the Customer or its agents to maintain the Goods or Services;
c. Failure by the Customer or its agents to follow any instructions or guidelines supplied by the Company in relation to the Goods or Services;
d. Use of the Goods or Services in any other way than their intended use;
e. The continued use of any Good or Service after a defect becomes apparent or would have become apparent.
v. The warranty shall cease and the Company shall thereafter in no circumstances be liable under the terms of warranty if the Goods or Services is repaired or altered without the written consent of the Company.
vi. All Goods are warranted to the level provided by the manufacturer.
vii. In carrying out repairs or replacement of Goods covered under a manufacturers warranty the Company may at their sole discretion charge the Customer a fee to undertake the repairs or replacement of the Goods.
viii. In respect of all claims the Company shall not be liable to compensate the Customer for any delay in either replacing or repairing the Goods or Services.
ix. The Company must be given reasonable access to the site to carry out any necessary reparatory works.
i. Any formal notice by one party to the other required by these Terms and Conditions or an Agreement must be in writing, and sent to the address for a party with which it normally deals (or to such other address for service of notices that a party has advised to the other). Notices are taken to be received:
a. if hand delivered, at the time of delivery;
b. if posted, on the 7th day after posting within Australia;
c. in the case of email or facsimile transmission, at the time of successful transmission.
ii. Any advice, recommendation, information, assistance or service by the Company in relation to the supply of Goods or Services, or use thereof is given in good faith and is believed to be appropriate and reliable. The Customer warrants and agrees that it will not rely on any such advice, recommendation, information, assistance or service, but enters into this Agreement and acquires the Goods or Services in reliance on its own judgement and with full opportunity to gain independent advice as to the nature and quality of the Goods or Services and their suitability for the Customer’s needs and specifications.
iii. Any liability arising out of or in respect of such advice, recommendation, information or service provided by the Company is hereby excluded.
i. The failure by the Company to enforce any provision of these Terms and Conditions will not be treated as a waiver of that provision, nor will it affect the Company’s right to subsequently enforce that provision. If any provision of these Terms and Conditions is invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired thereby.
i. In no event will the Company be liable to the Customer for any consequential loss either under contract, tort, statute or otherwise.
ii. The maximum liability of the Company to the Customer in this Agreement is limited to the Price.
17. PPS Act application:
i. The PPS Act applies to this contract and in particular to the reservation of title to any goods supplied by the Company as provided in clause 9 of this contract and the terms “attaches”, “collateral”, “perfected” and “personal property” as used in this clause have the meaning given to them in the PPS Act.
ii. The Customer must do anything reasonably required by Company for the purpose of ensuring that a Security Interest created under this contract attaches to the collateral intended to be covered by that Security Interest, the Security Interest is enforceable against third parties, perfected, maintained and otherwise effective, and any Security Interest created under these contract conditions has the priority contemplated by this contract.
iii. A Security Interest that arises under this contract applies to all present and after-acquired property of the Customer.
iv. The Customer agrees that:
a. Company has no obligation to dispose of or retain personal property it seizes within a reasonable time under section 125 of the PPS Act;
b. the Customer must not complain of damage, cost or inconvenience caused by Company in taking apparent possession of personal property under section 126 of the PPS Act;
c. following default, the Customer has no rights to redeem personal property under section 142 of the PPS Act; and
d. the Customer has no rights to reinstate this contract after default under section 143 of the PPS Act.
i. The Customer and Company agree that neither will disclose to an “interested party” as defined in sections 275(9) of the PPS Act, or any other person, any information of the kind described in section 275(1) of the PPS Act.
ii. If chapter 4 of the PPS Act would otherwise apply to the enforcement of the security interest created under this contract the Customer agrees that the following provisions of the PPS Act will not apply - Section 95 to the extent that it requires Company to give notice to the Customer, section 96, section 121(4), section 125, section 130, section 132(3)(d), section 132(4), section 134(1), section 135, section 142 and section 143.
iii. The Customer agrees that Company does not need to give the Customer any notice under the PPS Act including the verification statement under section 157 of the PPS Act, unless the notice is required by the PPS Act and cannot be excluded.
iv. The Customer waives any rights it has to object to Company’s proposal to purchase personal property under section 129(2)(b) of the PPS Act and object to Company’s proposal to retain personal property under section 134(2)(b) of the PPS Act.