To the fullest extent legally permissible all dealings between Membrane Systems Australia and any Customer relating to any products [“Products”] and/or services are subject to the following Terms and Conditions of Trade [“these Terms] unless otherwise agreed in writing:
- Payments to be by cash, bank cheque or EFTPOS and without deduction unless otherwise agreed, as per invoice/statement. If Membrane Systems Australia receives or recovers money in respect of debts of the customers or anyone else. Membrane Systems Australia may use it to pay off whichever part of the debts it chooses.
- Interest will be charged on overdue accounts at the rate of 2% of invoice total per month outstanding.
- Property: Even if Membrane Systems Australia grants any credit facility and/or time pay:
- a. Property in Products shall not pass to the Customer until payment in full and of all monies owed to Membrane Systems Australia and Membrane Systems Australia reserves the right to possession and dispose of Products as it sees fit at any time until full payment;
- b. the Customer grants permission to Membrane Systems Australia to enter any property to recover the Products and with such force as is necessary;
- c. the Customer agrees that a certificate purporting to be signed by an officer of Membrane Systems Australia identifying Products as unpaid for shall be conclusive evidence that Products have not been paid for and of Membrane Systems Australia’s title to those Products;
- d. upon sale or disposition of any Products prior to full payment the Customer agrees to deposit all proceeds in a separate bank account, not mix such proceeds with any other monies and account to Membrane Systems Australia for the same as fiduciary and bailee;
- e. without derogating from Membrane Systems Australia’s rights as a creditor of the Customer or arising under these Terms if Products used in any construction, building, fabrication and/or manufacturing process [“the Process”] which results in an entitlement of the Customer to receive money from any other person the Customer agrees to hold such part of any monies received by the Customer (or the corresponding book debt owed to the Customer in respect of those monies) as is equivalent to the value of any Products used in the Process as invoiced by the Customer by Membrane Systems Australia UPON TRUST for Membrane Systems Australia until payment in full for those Products and all monies owed to Membrane Systems Australia;
- f. Products shall be deemed to be dealt with by the Customer on a “first in first out” basis at all times: and
- g. Nothing in this clause is intended to create a charge over any Products and this clause shall be read down to the extent necessary to avoid creating any charge.
- Limitation of Liability: The customer agrees:
- a. to limit any claim it makes to the cost of replacement of Products or of acquiring equivalent products;
- b. that Membrane Systems Australia shall not be liable for any loss or expense arising after seven days from delivery after which there shall be deemed to be unqualified acceptance;
- c. that to the fullest extent legally permissible Membrane Systems Australia shall not be liable for any damages for personal injury, any damage to property and/or any contingent, consequential, direct, indirect, special or punitive damages whether due to negligence or otherwise and the Customer acknowledges this limit of liability and agrees to limit any claim accordingly; and
- d. that to the fullest extent legally permissible no other term, condition, agreement, warranty, representation and/or understanding whether express or implied, in any way extending to, otherwise relating to or binding upon Membrane Systems Australia other than these Terms is made or given by or on behalf of Membrane Systems Australia other than by these Terms save and except to the extent otherwise required by law.
- Exclusions: The Customer agrees that:
- a. no dealing between Membrane Systems Australia and the Customer shall be or be deemed to be a sale by sample;
- b. any advice or assistance given by or on behalf of Membrane Systems Australia shall be accepted at the Customer’s risk and shall not be deemed to have been given as expert or adviser nor to have been relied upon;
- c. Products are sold subject to each and every manufacturer’s trading terms and conditions and are protected by each and every manufacturer’s warranty and Membrane Systems Australia shall not be liable to the extent that any manufacturer is liable under a manufacturer’s warranty unless otherwise required by law; and
- d. Membrane Systems Australia shall not be liable nor responsible for any failure to comply with any requirements of the Customer or any other person (whether relating to manufacture, design, fabrication, installation and/or any other particular intended use of any Products and/or otherwise) which are not precisely and accurately communicated in writing directly to the appropriate personnel at Membrane Systems Australia prior to the entry by Membrane Systems Australia into any relevant sale contract.
- Cancellation and Returns: The Customer agrees that:
- a. the Customer shall at no time cancel the whole or part of any order placed without Membrane Systems Australia prior approval;
- b. the Customer shall not return Products without Membrane Systems Australia prior written approval and if Products are not in brand new and unused condition and if three weeks or more have passed since the earliest delivery date;
- c. Membrane Systems Australia may otherwise elect to take back Products in saleable condition on such terms as Membrane Systems Australia considers to be reasonable;
- d. the Customer shall in all cases pay to Membrane Systems Australia a restocking fee of 15% of the gross invoice value of all returns;
- e. notwithstanding any other provisions of these Terms the Customer shall not return any Products which have been altered from the original condition when purchased.
- Orders: The Customer agrees that:
- a. each order it places shall be deemed to include a representation that it is solvent and able to pay all of its debts as and when they fall due; and
- b. when any order is placed the Customer shall inform Membrane Systems Australia of any facts which might reasonably affect any decision to accept the order and/or grant credit and that any failure to do so shall be deemed to create and constitute an inequality of bargaining position, the taking of an unfair advantage of Membrane Systems Australia and to be unconscionable, misleading and deceptive.
- Purchase Price: all sales are otherwise made by Membrane Systems Australia at its ruling price at the time of delivery and on such other terms as Membrane Systems Australia considers to be reasonable.
- Delivery:
- a. Membrane Systems Australia accepts no responsibility or duty to deliver but may elect to arrange delivery at its discretion and without liability and at the Customer’s cost and risk in all things;
- b. Membrane Systems Australia shall not be liable for delay or any failure or inability to deliver;
- c. Products shall be deemed to be delivered as soon as they are ready for delivery at which time risk shall be deemed to have passed to the Customer; and
- d. Membrane Systems Australia may charge for frustrated delivery to cover Membrane Systems Australia’s reasonable expenses.
- Other Terms and Conditions: No terms and conditions sought to be imposed by the Customer upon Membrane Systems Australia shall apply
- Recovery Costs: The Customer shall pay all costs and expenses (including legal costs on an indemnity basis) incurred by Membrane Systems Australia and/or its agents in respect of the Customer whether relating to any debt, possession or Products and/or otherwise.
- Jurisdiction: The Customer agrees that all contracts made with Membrane Systems Australia shall be deemed to be in the State nominated by Membrane Systems Australia and the Customer agrees to submit to the jurisdiction of the appropriate Court nominated by Membrane Systems Australia in the capital city of that State.
- Forward Orders: The Customer agrees:
- a. to pay for so much of any forward order as is from time to time invoiced by Membrane Systems Australia;
- b. that no delay or failure to fulfil any part of such order shall entitle any cancellation or variation of any order or delay or reduce any payment; and
- c. to pay any demurrage and/or other costs and expenses of Membrane Systems Australia in handling and/or holding Products once ready for delivery.
- Force Majeure: Membrane Systems Australia shall not be or be deemed to be in default or breach of any contract as a result of Force Majeure. Force Majeure shall include any cause beyond the reasonable control of Membrane Systems Australia including strikes and lockouts.
- Attornment: For the purpose of giving effect to the Customer’s obligations under these Terms (in particular clause 13. of these Terms) the Customer hereby irrevocably appoints the Credit Manager (or like equivalent) for the time being of Membrane Systems Australia as the Customer’s Attorney in all things.
- Disputes: The Customer agrees to pay into an interest-bearing account in the joint names of Membrane Systems Australia and the Customer any amount claimed by Membrane Systems Australia as a condition precedent to any dispute by the Customer of any such claim on the basis that upon resolution of the dispute the trust fund and any interest shall be dispersed according to the resolution This clause shall operate as a bar to any defence or claim by the Customer until fully complied with.
- Defaults: Upon default or breach of those Terms by the Customer Membrane Systems Australia may inter alia retain all monies paid, cease further deliveries, recover from the Customer any loss of profits arising and/or at Membrane Systems Australia’s election take immediate possession of Products not paid for without prejudice to any other rights Membrane Systems Australia may have and without Membrane Systems Australia being liable in any way to any person.
- Severability: Any part of these Terms being a whole or part of a clause shall be capable of severance without affecting any other part of these Terms.
- Good & Services Tax [GST]: All monies payable to Membrane Systems Australia and any other consideration for any other “taxable supply” (within the meaning of A New Tax System (Goods & Service Tax) Act 1999 and associated legislation as amended from time to time) shall unless Membrane Systems Australia otherwise directs be deemed at all times to be exclusive of GST and/or any other applicable taxes, government charges, levies and/or imposts of any kind whatsoever – any and all of which must be paid by the Customer to Membrane Systems Australia as and when and in such manner as Membrane Systems Australia reasonably requires.
- Warranty Policy: All equipment supplied by Membrane Systems Australia has been tested and inspected at the plant and is warranted to be free from defects in material and workmanship. All equipment is warranted for a period of one (1) year. Any part that proves, upon our examination, to be defective, will be replaced without In the event of repair or replacement, this one (1) year warranty is non-cumulative. This warranty shall not apply to equipment and parts subjected to abusive or improper use, lack of maintenance or accident and shall not cover normal wear and tear or to certain wearable components such as seals. This warranty also does not apply to equipment and components used with chemicals not approved by Membrane Systems Australia. Except as expressively stated herein, Membrane Systems Australia is never liable for damages of any kind in connection with the purchase, maintenance or use of this equipment, including loss of profit and any all consequential damages. THE WARRANTY EXPRESSED HEREIN IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED OR FITNESS FOR A PARTICULAR PURPOSE. Membrane Systems Australia does not authorise anyone to enter into any agreement or assume any obligations or liabilities in connection with this Warranty. This Warranty applies to the original Membrane Systems Australia equipment purchaser only and is not transferable excluding official resellers nominated by Membrane Systems Australia.
- Notice: The Customer agrees that it shall be deemed to have notice of any change to these Terms immediately any change is adopted by Membrane Systems Australia and whether or not the Customer has actual notice thereof. The Customer shall be bound by any terms and conditions of trade which may be adopted by Membrane Systems Australia immediately they are so adopted and notwithstanding any other purported or pre-existing terms and conditions which might otherwise have applied.