Puretec Pty Ltd Supply Agreement
In this agreement, unless the context requires otherwise
“Customer” means the person that executes this document and acquires goods from the Seller.
“Delivery” means the delivery of Goods as defined in clause 10(a).
“Goods” means all goods including goods relating to water filtration treatment or supply, including but not limited to drinking water systems, water treatment systems, ultraviolet systems, whole house and commercial systems, filter housings, filter cartridges, tapware, purifiers, valves, fittings and tubes.
“Order” means a written or verbal order from the Customer to the Seller.
“Seller” means Puretec Pty Ltd (ABN 44 164 806 688).
2 APPLICATION OF AGREEMENT
The Seller agrees to supply Goods on the terms and conditions of this Agreement. All other terms and conditions, express or implied, are excluded to the fullest extent permitted by law, including any terms and conditions sought to be imposed by the Customer.
Orders will be binding on the Seller under this agreement once that Order has been accepted by the Seller, either in writing or by the Seller’s performance. The Seller reserves the right to refuse an Order either in whole or in part. Any Order or part of an Order not accepted by the Seller will be regarded as having been refused by the Seller. Once the Seller has accepted an Order, the Customer may not alter or modify the Order without the prior written consent of the Customer.
The price for Goods are subject to withdrawal, correcting or alteration at any time before acceptance of an Order by the Seller. PRICES ARE EX SELLERS WAREHOUSE UNLESS OTHERWISE AGREED IN WRITING. Unless otherwise stated in an Order, all prices are in Australian dollars and do not include any goods and services tax, stamp duty and other excises and duties that may be imposed in relation to this agreement or the supply of goods. Each of them is payable by the Customer, and if paid by the Seller must be reimbursed on demand. Invoices may be issued to the Customer by fax or email.
(a) Subject to the Customer being issued a tax invoice, and unless the Seller gives the Customer credit, the Customer must pay for all Orders as follows:
(i) a deposit equal to one third of the total price detailed in an Order at the time an Order is accepted by the Seller;
(ii) further progress payments as detailed in an Order (if any); and
(iii) the balance of the price on Delivery.
(b) Any prices quoted or invoiced less than the Seller’s list price only apply if payment is received by the Seller by the due date. Where payment is received after the due date, the Seller reserves the right to increase the price to the list price prior to the addition of any other surcharges
The Seller may decide to give credit to the Customer, but it is not obliged to, even if it has previously given the Customer credit. If the Seller decides to give the Customer credit, then the Customer must pay the Seller’s invoices within 30 days from Delivery, and the Customer is bound by this agreement, and any additional terms and conditions that the Seller may set for giving the Customer credit. The Seller may decline to give the Customer further credit at any time. If the Seller does so, all money that the Customer owes the Seller on any account becomes immediately payable.
7 OVERDUE PAYMENTS
If any amount the Customer owes the Seller is not paid by the due date then:
(a) all money that the Customer owes the Seller on any account becomes immediately payable despite any previously agreed credit terms;
(b) the Seller may suspend or cancel any outstanding Order it has accepted from the Customer;
(c) the Seller may charged the Customer interest on any amount outstanding from the due date until payment is made, calculated daily, at an annual rate equal to 5% per annum plus the cash target rate specified by the Reserve Bank of Australia;
(d) if the Seller charges interest under this clause, it will credit any part payment first against the interest;
(e) the Customer agrees that it is liable for all the Seller’s costs, losses and expenses relating to recovering the overdue payments from the Customer, including mercantile agents’ and lawyers’ fees and expenses on a full indemnity basis.
(a) The Customer may not:
(i) cancel, or defer delivery of, an Order or part of an Order after it has been accepted by the Seller; or
(ii) return Goods already delivered, except with the written consent of Seller and upon terms that reimburse and indemnify the Seller against all loss including cartage, bank charges and other incidental expenses.
(b) Where the Seller agrees to accept Goods for return a re-stocking charge of 20% of the price of the Goods returned must be paid by the Customer to the Seller. The Seller may also deduct reasonable labour costs associated with the restoration of non-stock items to the conditions as supplied by the Seller, or as supplied by the manufacturer (if the manufacturer is not the Seller).
9 ACCEPTANCE AND CLAIMS
Acceptance of the Goods by the Customer delivered shall be deemed for all purposes – to have taken place at the expiration of seven days from Delivery.
(a) The delivery arrangements set out in this clause apply to all Orders unless otherwise agreed by the Seller in writing. For the purposes of this clause "Delivery" occurs when the Goods are left at the delivery address specified in the relevant Order.
(b) The Customer may, by written notice to the Seller, elect to make its own arrangements at its own cost to take Delivery of the Goods from the Seller’s warehouse.
(c) Unless the Customer makes an election under the preceding clause, the Seller will at its own cost arrange Delivery of the Goods the subject of an accepted Order to the delivery address specified in the Order or to such other delivery address as the Seller may agree from time to time in writing in its absolute discretion. The Seller may engage a sub-contractor or carrier to effect Delivery.
(d) The Customer shall provide or cause to be provided full and clear access for delivery and will at its own expense provide all necessary assistance in unloading the Goods at the nominated delivery address.
(e) The Customer must notify the Seller promptly in writing of any shortages, damage or defects in the Goods which the Customer considers to have been sustained prior to Delivery.
(f) Availability, shipment dates, any preferred delivery dates and delivery costs given by the Seller are estimates given in good faith but are not binding on the Seller and the Seller shall have no liability to the Customer for any loss incurred by the Customer for any failure or delay in Delivery.
(g) The Seller may deliver the Goods by instalment or partial shipments and the Customer will accept each delivery.
(h) If Delivery is delayed for a cause other than the Seller’s own negligence, the Customer shall be liable for any extra charges, or any losses or expense incurred by the Seller, and the Customer shall not be entitled to cancel the Order by reason thereof.
11 RETENTION OF TITLE & PASSAGE OF RISK
(a) The Seller remains the legal and beneficial owner of all Goods sold by the Seller to the Customer under this agreement until all amounts due in respect of all Goods have been received by the Seller in cleared funds. This applies even if the Customer installs the Goods or commingles the Goods with other goods.
(b) Except to the extent agreed to in writing by the Seller, the Customer must hold the Good as Seller’s fiduciary bailee and must keep the Goods physically separate from all other goods and products purchased by the Customer from other suppliers.
(c) The Customer must notify the Seller of all premises at which it holds any Goods supplied under this agreement. The Customer must allow the Seller to enter upon its premises to inspect the Goods in its possession upon reasonable notice from time to time.
(i) the Customer fails to pay any amount (whether in part or whole) payable in respect of any Goods by the time required for payment;
(ii) the Customer enters into bankruptcy, liquidation or a composition with its creditors, has a receiver or manager appointed over all or any part of its assets, enters into administration or becomes insolvent; or
(iii) this agreement is terminated, or becomes terminable at the option of the Seller,
the Seller may, without notice to the Customer, enter at any reasonable time any premises where Goods are located (or believed by the Seller to be located) and take possession of those Goods not paid for and any other Goods to the value of the amount owing. The Seller’s permission to enter the Customer’s premises for that purpose is irrevocable. The Seller is not liable to the Customer in contract, tort or otherwise, for any costs, damages, expenses or losses incurred by the Customer as a result of any action taken by the Seller under this clause.
(e) If any Goods belonging to the Seller are sold or otherwise disposed of by the Customer or if any insurance claim is made in respect of them, the Seller is entitled to trace and receive the sale or insurance proceeds. The Customer must notify the Seller of all insurance claims made by it in respect of Goods. The Customer must keep the proceeds of sale or insurance in a separate bank account on trust for the Seller.
(f) The Customer must reimburse to the Seller all costs incurred the by the Seller in exercising its rights under this clause.
(g) Risk in all Goods will pass to the Customer on Delivery. The Customer's obligation to insure Goods commences when risk passes to the Customer. The Customer must insure the Goods for their full value and ensure that the Seller’s interest is noted on the policy. The Seller may require the Customer to demonstrate compliance with this clause including by producing a copy of the insurance policy.
12 PPS LAW
(a) This clause applies to the extent that this agreement provides for or contains a ‘security interest’ for the purposes of the Personal Property Securities Act 2009 (Cth) (“PPS Law”) (or part of it).
(b) The security interest granted to Seller is a ‘purchase money security interest’ (“PMSI”) to the extent that it can be under section 14 of the PPS Law.
(c) The Customer agrees that all collateral which is at any time subject to the Seller’s security interest secures its own purchase price.
(d) The Customer agrees, in addition, to the extent possible under PPS Law, that all collateral which is at any time subject to the Seller’s security interest secures as a PMSI the purchase price of all collateral supplied to the Customer.
(e) This clause does not limit what other amounts are secured under this document.
(f) The parties agree that payments will be applied in the following order:
(i) to obligations that are not secured, in the order in which those obligations were incurred;
(ii) to obligations that are secured, but not by PMSIs, in the order in which those obligations were incurred;
(iii) to obligations that are secured by PMSIs, in the order in which those obligations were incurred.
(g) The Seller may register its security interest as a PMSI. The Customer must do anything (such as obtaining consents and signing documents) which the Seller requires for the purposes of:
(i) ensuring that the Seller’s security interest is enforceable, perfected and otherwise effective under the PPS Law;
(ii) enabling the Seller to gain first priority (or any other priority agreed to by Seller in writing) for its security interest; and
(iii) enabling the Seller to exercise rights in connection with the security interest,
and to assure performance of its obligations, the Customer hereby gives the Seller an irrevocable power of attorney to do anything the Seller considers the Customer should do under this document.
(h) The rights of the Seller under this document are in addition to and not in substitution for Seller’s rights under other law (including the PPS Law) and Seller may choose whether to exercise rights under this document, and/or under such other law, as it sees fit.
(i) The following provisions of the PPS Law do not apply and, for the purposes of section 115 of the PPS Law are “contracted out” of this document in respect of goods that are not used predominantly for personal, domestic or household purposes:
(i) sections 95 (notice of removal of accession to the extent it requires Seller to give a notice to the Customer), 96 (retention of accession), 125 (obligations to dispose of or retain collateral);
(ii) section 130 (notice of disposal to the extent it requires Seller to give a notice to the Customer);
(iii) section 132(3)(d) (contents of statement of account after disposal);
(iv) section 132(4) (statement of account if no disposal);
(v) section 135 (notice of retention);
(vi) section 142 (redemption of collateral); and
(vii) section 143 (re-instatement of security agreement)
(j) The following provisions of the PPS Law:
(i) section 123 (seizing collateral);
(ii) section 126 (apparent possession);
(iii) section 128 (secured party may dispose of collateral);
(iv) section 129 (disposal by purchase); and
(v) section 134(1) (retention of collateral)
confer rights on the Seller. The Customer agrees that in addition to those rights, the Seller shall, if there is default by the Customer, have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any Goods, not only under those sections but also, as additional and independent rights, under this document and the Customer agrees that the Seller may do so in any manner it sees fit including (in respect of dealing and disposal) by private or public sale, lease or licence.
(k) The Customer waives its rights to receive a verification statement in relation to registration events in respect of commercial property under section 157 of the PPS Law.
(l) Solely for the purpose of allowing the Seller the benefit of section 275(6) of the PPS Law, the parties agree that neither of them must disclose information of the kind that can be requested under section 275(1) of the PPS Law, to the extent requested under section 275.
13 PRE-DELIVERY INSPECTION & AFTER SALES SERVICING
Subject to clause 14(a), the Customer acknowledges that this agreement does not entitle the Customer to receive from Seller any pre-delivery site inspection or after sales servicing of the Goods. If the Customer does require the Seller’s services, in respect of a pre-delivery site inspection and/or after sales service, then the Customer should arrange with the Seller to enter a separate agreement in respect of such services. In the event that no separate agreement in relation to such services is entered into, then the Customer acknowledges that in the event the Goods supplied require an after sales service, or inspection due to breakdown or otherwise, then, unless otherwise required under law, the Customer shall rely solely on any benefit of same provided by the Manufacturer.
14 IMPLIED WARRANTIES & GUARANTEES
(a) Terms, conditions, warranties and guarantees implied by law which cannot be excluded, restricted or modified apply to our supply of the Goods to the extent required by that law.
(b) The Seller excludes to the extent permitted by law all other terms, conditions, warranties and guarantees which might be implied into an agreement with the Customer.
(c) The Customer does not rely on any representation, warranty or other provision made by or for the Seller which is not expressly stated in the Seller’s agreement with the Customer.
15 LIMITATION OF LIABILITY
(a) If the Goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the Seller’s only obligation resulting from a breach by it of any consumer guarantee it owes to the Customer is limited to:
(i) the replacement of the Goods or the supply of equivalent Goods;
(ii) the repair of the Goods;
(iii) the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the Goods repaired.
(b) Except as required by law, the Seller will not be liable for any indirect or consequential loss or damage, loss of profit or loss of revenue whether suffered or incurred by the Customer or another person or legal entity, irrespective of whether such loss or damage arises directly or indirectly from Goods supplied by the Seller to the Customer.
The Customer may pay the costs of any Goods that are returned for repair by the Customer. The Goods will be at the Customer’s risk from the time they leave the Customer’s control.
17 VARIATIONS BY CUSTOMER
Should there be any variation in details, sizes and quantifies, delivery instructions or any other item or matter on which the quotation or invoice is based Seller reserves the right to revise and amend the price accordingly.
18 CLERICAL ERROR
Clerical errors in computations, typing or otherwise of catalogue; quotation; acceptance; offer; invoice; delivery docket; credit note; specification of the Seller shall be subject to correction.
(a) Except as provided in clause 19(b), this Agreement may only be varied by the written agreement of both parties.
(b) The terms in this Agreement may be changed by the Seller from time to time by the Seller giving notice of the change to the Customer. Notice is deemed given (whether or not actually received) when the Seller does any of the following: (a) sends notice of the amendment to the Customer at any address (including an email address) supplied by the Customer; (b) publishes the amended terms on its website (www.puretec.com.au); or (c) displays the amended terms at premises from which the Seller conducts its operations.
If any of the provisions of this agreement are unlawful or invalid by reason of any applicable statute or rule of law, then such provision shall be severed from the rest of this Contract which shall remain valid and binding on the parties. A reference to any statutory provision includes reference to that provision as amended or replaced. The law of South Australia governs this agreement and each party submits to the non-exclusive jurisdiction of the South Australian courts.