Terms of Trade
1.
Definitions
1.1
“Client” means
the person/s, entities or any person acting on behalf of and with the authority
of the Client requesting Irrigation Works to provide the Services as specified
in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly
and severally; and
(b) if the Client is a partnership, it shall bind each partner jointly and
severally; and
(c) if the Client is a part of a Trust, shall be bound in their capacity as
a trustee; and
(d) includes the Client’s executors, administrators, successors and
permitted assigns.
1.2
“Confidential Information” means information of a confidential nature whether oral, written or in
electronic form including, but not limited to, this Contract, either party’s
intellectual property, operational information, know-how, trade secrets,
financial and commercial affairs, Contracts, client information (including but
not limited to, “Personal Information”
such as: name, address, D.O.B, occupation, driver’s license details, electronic
contact (email, Facebook or Twitter details), medical insurance details or next
of kin and other contact information (where applicable), previous credit
applications, credit history) and pricing details.
1.3
“Contract” means
the terms and conditions contained herein, together with any quotation, order,
invoice or other document or amendments expressed to be supplemental to this Contract.
1.4
“Cookies” means
small files which are stored on a user’s computer. They are designed to hold a
modest amount of data (including Personal Information) specific to a particular
client and website and can be accessed either by the web server or the client’s
computer. If the Client does not wish to
allow Cookies to operate in the background when using Irrigation Works’
website, then the Client shall have the right to enable / disable the Cookies
first by selecting the option to enable / disable provided on the website, prior
to making enquiries via the website.
1.5
“Equipment” means
all Equipment including any accessories supplied on hire by Irrigation Works to
the Client (and where the context so permits shall include any supply of
Services). The Equipment shall be as described on the invoices, quotation,
authority to hire, or any other work authorisation form provided by Irrigation
Works to the Client.
1.6
“Goods” means
all Goods or Services supplied by Irrigation Works to the Client at the
Client’s request from time to time
(where the context so permits the terms ‘Goods’ or ‘Services’ shall be
interchangeable for the other).
1.7
“GST” means Goods and Services
Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999”
(Cth).
1.8
“Irrigation Works” means Barossa Valley
Irrigation Works Pty Ltd T/A Irrigation Works, its successors and assigns or
any person acting on behalf of and with the authority of Barossa Valley
Irrigation Works Pty Ltd T/A Irrigation Works.
1.9
“Price” means
the Price payable (plus any GST where applicable) for the Goods and/or Equipment
hire as agreed between Irrigation Works and the Client in accordance with
clause 6
below.
2.
Acceptance
2.1
The parties
acknowledge and agree that:
(a)
they have read and
understood the terms and conditions contained in this Contract; and
(b)
the parties are taken to have exclusively accepted and
are immediately bound, jointly and severally, by these terms and conditions if
the Client places an order for or accepts delivery of the Goods/Equipment.
2.2
In
the event of any inconsistency between the terms and conditions of this Contract
and any other prior document or schedule that the parties have entered into,
the terms of this Contract shall prevail.
2.3
Any
amendment to the terms and conditions contained in this Contract may only be
amended in writing by the consent of both parties.
2.4
The
Client acknowledges and accepts that:
(a) Irrigation Works reserves the right to introduce a minimum
order amount at their sole discretion;
(b) the supply of
Goods/Equipment on credit shall not take effect until the Client has completed
a credit application with Irrigation Works and it has been approved with a
credit limit established for the account. In the event
that the supply of Goods/Equipment requested exceeds the Client’s credit limit
and/or the account exceeds the payment terms, Irrigation Works reserves the
right to refuse delivery. The Client acknowledges and agrees that to setup
up and maintain a credit account that a minimum purchase amount may be required
to be made within each year. In the event that purchases fall below this amount
in a month, then Irrigation Works reserves the right to cancel the credit
account;
(c)
in the event Irrigation
Works acts as an agent on behalf of the Client with a third party, the Client
agrees to honour their obligation for payment for such transactions invoiced by
Irrigation Works and shall ensure payment is made by the due date, thereby not
limiting Irrigation Works in their obligations for payment as agents acting on
behalf of the Client to third parties; and
(d) Goods for accepted orders
may be subject to availability and if, for any reason, the Goods are not or
cease to be available, Irrigation Works reserves the right to substitute
comparable Goods (or components of the Goods) and vary the Price as per clause 6.2.
In all such cases Irrigation Works will notify the Client in advance of any
such substitution, and also reserves the right to place the Client’s order
and/or Services on hold, as per clause 7.2
until such time as Irrigation Works and the Client agree to such changes.
2.5
At Irrigation Works’ sole discretion, pumps may be
available on loan or hire where estimated repairs or replacement could take
longer than seven (7) days.
2.6
Electronic signatures shall be deemed to be
accepted by either party providing that the parties have complied with Section 9
of the Electronic Communications Act 2000 or any other applicable provisions of
that Act or any Regulations referred to in that Act.
3.
Errors and Omissions
(a) resulting from an
inadvertent mistake made by Irrigation Works in the formation and/or
administration of this Contract; and/or
3.2
In circumstances where the Client is required to
place an order for Goods, in writing, or otherwise as permitted by these terms
and conditions, the Client is responsible for supplying correct order
information such as, without limitation, measurements and quantity, when
placing an order for Goods (whether they are made to order Goods or not)
("Client Error"). The Client
must pay for all Goods it orders from Irrigation Works notwithstanding that
such Goods suffer from a Client Error and notwithstanding that the Client has
not taken or refuses to take Delivery of such Goods. Irrigation Works is entitled to, at its
absolute discretion to waive its right under this sub-clause in relation to Client
Errors.
4.
Change in Control
4.1
The Client shall give Irrigation Works not less than fourteen
(14) days prior written notice of any proposed change of ownership of the
Client and/or any other change in the Client’s details (including but not
limited to, changes in the Client’s name, address, contact phone or fax
number/s, change of trustees, or business practice). The Client shall be liable
for any loss incurred by Irrigation Works as a result of the Client’s failure
to comply with this clause.
5.
On-Line Ordering
5.1
The
Client acknowledges and agrees that:
(a) Irrigation Works does
not guarantee the website’s performance;
(b) display on the website
does not guarantee the availability of any particular Goods; therefore, all
orders placed through the website shall be subject to confirmation of
acceptance by Irrigation Works;
(c) on-line ordering may
be unavailable from time to time for regularly scheduled maintenance and/or
upgrades;
(d) there are inherent
hazards in electronic distribution, and as such Irrigation Works cannot warrant
against delays or errors in transmitting data between the Client and Irrigation
Works including orders, and you agree that to the maximum extent permitted by
law, Irrigation Works will not be liable for any losses which the Client
suffers as a result of online-ordering not being available or for delays or
errors in transmitting orders;
(e) when making a
transaction through the website, the Client’s information will pass through a
secure server using SSL (secure sockets layer) encryption technology or any
other similar technology as disclosed by Irrigation Works and/or displayed on
the website. The encryption process ensures that the Client’s information
cannot be read by or altered by outside influences; and
(f) if the Client is not
the cardholder for any credit card being used to pay for the Goods, Irrigation
Works shall be entitled to reasonably assume that the Client has received
permission from the cardholder for use of the credit card for the transaction.
5.2
Irrigation
Works reserves the right to terminate the Client’s order if it learns that you
have provided false or misleading information, interfered with other users or
the administration of Irrigation Works’ business, or violated these terms and
conditions.
6.1
At Irrigation Works’ sole discretion, the Price
shall be either:
(a) as indicated on any invoice provided by Irrigation Works to the Client upon placement of an order for Goods/Equipment; or
(b) the Price as at the date of Delivery of the Goods/Equipment according to
Irrigation Works’ current price list, as previously disclosed to the Client upon the Client’s placement of an
order for Goods/Equipment; or
(c) Irrigation Works’ quoted Price (subject to clause 6.2)
which will be valid for the period stated in the quotation or otherwise for a
period of thirty (30) days.
6.2
Irrigation Works 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 Services originally scheduled (including any applicable plans or specifications) is requested; or
(c)
where additional Services
are required due to the discovery of hidden or unidentifiable difficulties
(including, but not limited to, delays of the Goods being received from the
manufacturer, poor weather conditions, limitations to accessing
the site, availability of machinery, safety considerations, manufacturing time
required or delays to, prerequisite work by a third party not being completed,
change of design, hard rock or other barriers below the surface or iron
reinforcing rods in concrete, other latent soil conditions, difference in pipe
sizes, or hidden underground pipes
and wiring, etc.) which are only discovered on commencement of the Services; or
(d)
in the event of increases
to Irrigation Works in the cost of labour or materials which are beyond
Irrigation Works’ control.
6.3
Variations will be charged for on the basis of Irrigation
Works’ quotation, and will be detailed in writing, and shown as variations on Irrigation
Works’ invoice. The Client shall be required to respond to any variation
submitted by Irrigation Works within ten (10) working days. Failure to do so
will entitle Irrigation Works to add the cost of the variation to the Price.
Payment for all variations must be made in full at the time of their
completion.
6.4
At Irrigation Works’ sole discretion, a reasonable
non-refundable deposit may be required upon placement of an order for
Goods/Equipment, in accordance with any quotation provided by Irrigation Works
or as notified to the Client prior to the placement of an order for
Goods/Equipment. Such deposit may also be required for any Goods on
back order.
6.5
Time for payment for the Goods/Equipment being of
the essence, the Price will be payable by the Client on the date/s determined
by Irrigation Works, which may be:
(a) on delivery of the Goods/Equipment;
(b) before delivery of the Goods/Equipment;
(c) by way of instalments/progress payments in accordance with Irrigation
Works’ 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 for certain approved Clients or otherwise seven (7)
days following the date of any invoice given to the Client by Irrigation Works.
6.6
Payment may be made by cash, cheque, electronic/on-line
banking, credit card (a surcharge may apply per transaction), or by any other
method as agreed to between the Client and Irrigation Works.
6.7
Irrigation
Works may in its discretion allocate any payment received from the Client
towards any invoice that Irrigation Works determines and may do so at the time
of receipt or at any time afterwards. On any default by the Client Irrigation
Works may re-allocate any payments previously received and allocated. In the
absence of any payment allocation by Irrigation Works, payment will be deemed
to be allocated in such manner as preserves the maximum value of Irrigation
Works’ Purchase Money Security Interest (as defined in the PPSA) in the
Goods/Equipment.
6.8
The Client shall not be
entitled to set off against, or deduct from the Price, any sums owed or claimed
to be owed to the Client by Irrigation Works nor to withhold payment of any
invoice because part of that invoice is in dispute. Once in receipt of an
invoice for payment, if any part of the invoice is in dispute, then the Client
must notify Irrigation Works in writing within three (3) business days, the
invoice shall remain due and payable for the full amount, until such time as Irrigation
Works investigates the disputed claim, no credit shall be passed for refund
until the review is completed. Failure to make payment may result in Irrigation
Works placing the Client’s account into default and subject to default interest
in accordance with clause 20.1.
6.9
Unless otherwise stated the Price does not include
GST. In addition to the Price, the Client must pay to Irrigation Works an
amount equal to any GST Irrigation Works must pay for any supply by Irrigation
Works under this or any other agreement for the sale of the Goods/hire of the
Equipment. The Client must pay GST, without deduction or set off of any other
amounts, at the same time and on the same basis as the Client pays the Price.
In addition, the Client 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.
7.
Provision of the Services and Delivery of Goods/Equipment
7.1
Subject to clause 7.2 it is
Irrigation Works’ responsibility to ensure that the Services start as soon as
it is reasonably possible.
(a) make a selection; or
(b) have the site ready for the Services; or
(c) adverse or inclement weather conditions; or
(d) notify Irrigation Works that the site is ready.
7.3
Delivery (“Delivery”)
of the Goods/Equipment is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the
Goods/Equipment at Irrigation Works’ address; or
(b) Irrigation Works (or Irrigation Works’ nominated carrier) delivers the
Goods/Equipment to the Client’s nominated address even if the Client is not
present at the address.
7.4
The cost of Delivery will be payable by the Client
in accordance with the quotation provided by Irrigation Works to the Client, or
as otherwise notified to the Client prior to the placement of an order for
Goods/Equipment.
7.5
Irrigation Works may deliver the Goods/Equipment in
separate instalments. Each separate instalment shall be invoiced and paid in
accordance with the provisions in these terms and conditions and Irrigation Works may require payment for the
Goods to be made prior to any installation being commenced.
7.6
Any time specified by Irrigation Works for Delivery
of the Goods/Equipment is an estimate only and Irrigation Works will not be
liable for any loss or damage incurred by the Client as a result of Delivery
being late. However, both parties agree that they shall make every endeavour to
enable the Goods/Equipment to be delivered at the time and place as was
arranged between both parties. In the event that Irrigation Works is unable to
supply the Goods/Equipment as agreed solely due to any action or inaction of
the Client, then Irrigation Works shall be entitled to charge a reasonable fee
for redelivery and/or storage.
8.
Risk
8.1
If Irrigation Works retains ownership of the Goods
under clause 15 then where Irrigation Works is:
(a) supplying Goods only, all risk for the Goods shall immediately pass to
the Client on Delivery and the Client must insure the Goods on or before Delivery;
and
(b) to both supply and install Goods then Irrigation Works shall maintain a
contract works insurance policy until the Services are completed. Upon
completion of the Services all risk for the Services shall immediately pass to
the Client.
8.2
Notwithstanding the provisions of clause 8.1 if
the Client specifically requests Irrigation Works to leave Goods outside
Irrigation Works’ premises for collection or to deliver the Goods to an
unattended location then such materials shall always be left at sole risk of
the Client and it shall be the Client’s responsibility to ensure the Goods are
insured adequately or at all. In the event that such Goods are lost, damaged or
destroyed then replacement of the Goods shall be at the Client’s expense.
8.4
The Client warrants that any structures to which
the Goods are to be affixed are able to withstand the installation of the Goods
and that any plumbing or gas connections (including, but not limited to, meter
boxes, pipes, couplings and valves) are of suitable capacity to handle the
Goods once installed. If for any reason (including the discovery of asbestos,
defective or unsafe plumbing or gas pipes or dangerous access to crawl spaces
etc) that Irrigation Works, or employees of Irrigation Works, reasonably form
the opinion that the Client’s premises is not safe for the installation of
Goods to proceed then Irrigation Works shall be entitled to delay installation
of the Goods (in accordance with the
provisions of clause 7.2 above) until
Irrigation Works is satisfied that it is safe for the installation to proceed.
Where Irrigation Works is requested to bring any existing pipework up to
standard prior to commencement of the Services, then any additional costs shall
be treated as a variation to the Price.
8.5
Irrigation Works shall be entitled to rely on the
accuracy of any plans, specifications and other information provided by the
Client. The Client acknowledges and agrees that in the event that any of this
information provided by the Client is inaccurate, Irrigation Works accepts no
responsibility for any loss, damages, or costs however resulting from these
inaccurate plans, specifications or other information.
8.6
The Client acknowledges and agrees that where
Irrigation Works has performed temporary repairs that Irrigation Works:
(a) offers no guarantee against the reoccurrence of the initial fault, or
any further damage caused; and
(b) will immediately advise the Client of the fault and shall provide the
Client with an estimate for the full repair required.
8.7
The Client acknowledges and accepts that:
(a) Irrigation Works is only responsible for parts that are replaced by
Irrigation Works and does not at any stage accept any liability in respect of
previous services and/or goods supplied by any other third party that
subsequently fail and found to be the source of the failure, the Client agrees
to indemnify Irrigation Works against any loss or damage to the Goods, or
caused by the Goods, or any part thereof howsoever arising;
(b) the presence of plant or tree root growth and/or other blockages may
indicate damaged pipe work and therefore where Irrigation Works is requested to
merely clear such blockages, Irrigation Works can offer no guarantee against
reoccurrence or further damage. In the event of collapse during the pipe
clearing process, Irrigation Works will immediately advise the Client of the
same and shall provide the Client with an estimate for the full repair of the
damaged pipe work;
(c) all site preparation work is the Client’s responsibility and shall
conform to the requirements as specified by Irrigation Works;
(d) where contaminated or unsuitable soil requires to be replaced by sand as
part of the provision of the Services, then this cost shall be treated as a
variation and shown on the invoice; and
(e) any repairs, parts and labour for claims that are outside the warranty
period shall be charged to the Client.
8.8
The Client shall indemnify Irrigation Works from
any losses, claims or damages that result from leaks caused by defects that
fall outside the scope of the Services Irrigation Works have been contracted to
supply.
9.
Specifications
9.1
The Client acknowledges and accepts that:
(a) all descriptive specifications, illustrations, drawings, data,
dimensions, ratings and weights stated in Irrigation Works’ or manufacturer’s
fact sheets, price lists or advertising material, are approximate only and are
given by way of identification only. The Client 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 Irrigation Works;
(b) while Irrigation Works may have provided information
or figures to the Client regarding the performance of the Goods, the Client
acknowledges that Irrigation Works has given
these in good faith and are estimates based on Water Efficiency Labelling and
Standards (WELS) scheme and/or industry prescribed estimates. The water
efficiency may be less than estimates due to factors out of Irrigation Works’
control (including, but not limited to, water pressure, water source, the
mineral content of water based on geographical location, etc.); and
(c) Goods supplied may:
(i) fade or change colour over time;
(ii) expand, contract or distort as a result of exposure to heat, cold,
weather;
(iii) mark or stain if exposed to certain substances; and
(iv) be damaged or disfigured by impact or scratching.
10.
Insurance
10.1
Irrigation Works shall have public liability
insurance of at least five million dollars ($5m). It is the Client’s
responsibility to ensure that they are similarly insured.
11.
Access
11.1
The Client shall ensure that Irrigation Works has
clear and free access to the site at all times to enable them to undertake the
Services. Irrigation Works shall not be liable for any loss or damage to the
site (including, without limitation, damage to pathways, driveways and
concreted or paved or grassed areas) unless due to the negligence of Irrigation
Works.
12.
Care of Goods
12.1
Irrigation Works may at its discretion notify the
Client that it requires to store at the site Goods, fittings and appliances, or
plant and tools required for the Services, in which event the Client shall
supply Irrigation Works a safe area for storage and shall take all reasonable
efforts to protect all items so stored from possible destruction, theft or
damage. In the event that any such items are destroyed, stolen or damaged then
the cost of repair or replacement shall be the Client’s responsibility.
13.
Underground Locations
13.2
Whilst Irrigation Works will take all care to avoid
damage to any underground services the Client agrees to indemnify Irrigation
Works in respect of all and any liability claims, loss, damage, costs and fines
as a result of damage to services not precisely located and notified as per
clause 13.1.
14.
Compliance with Laws
14.1
The Client and Irrigation Works shall comply with
the provisions of all statutes, regulations and bylaws of government, local and
other public authorities that may be applicable to the Goods/Services,
including testing all gas pipes prior to commencement of the Services.
14.2
The Client shall obtain (at the expense of the
Client) all licenses and approvals that may be required for the Services.
14.3
The Client agrees that the site will comply with
any work health and safety (WHS) laws relating to building/construction sites
and any other relevant safety standards or legislation.
14.4
Where the Client has supplied products for Irrigation
Works to complete the Services, the Client acknowledges that it accepts
responsibility for the suitability of purpose and use for their products and
the intended use and any faults inherent in those products. However, if in Irrigation Works’ opinion, it is believed that the products
supplied are non-conforming products as per state regulations, then Irrigation
Works shall be entitled, without prejudice, to halt the Services until the
appropriate conforming materials are sourced and all costs associated with such
a change to the plans will be invoiced in accordance with clause 6.2.
15.1
Irrigation Works and the Client agree that
ownership of the Goods shall not pass until:
(a) the Client has paid Irrigation Works all amounts owing to Irrigation
Works; and
(b) the Client has met all of its other obligations to Irrigation Works.
15.2
Receipt by Irrigation Works 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.
15.3
It is further agreed that until ownership of the
Goods passes to the Client in accordance with clause 15.1:
(a) the Client is only a bailee of the Goods and must return the Goods to Irrigation
Works on request;
(b) the Client holds the benefit of the Client’s insurance of the Goods on
trust for Irrigation Works and must pay to Irrigation Works the proceeds of any
insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Client 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 Client sells, disposes or parts with possession of the Goods then the
Client must hold the proceeds of any such act on trust for Irrigation Works and
must pay or deliver the proceeds to Irrigation Works on demand;
(d) the Client should not convert or process the Goods or intermix them with
other goods but if the Client does so then the Client holds the resulting
product on trust for the benefit of Irrigation Works and must sell, dispose of
or return the resulting product to Irrigation Works as it so directs;
(e) the Client irrevocably authorises Irrigation Works to enter any premises
where Irrigation Works believes the Goods are kept and recover possession of
the Goods;
(f) Irrigation Works may recover possession of any Goods in transit whether
or not Delivery has occurred;
(g) the Client 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 Irrigation Works; and
(h) Irrigation Works may commence proceedings to recover the Price of the
Goods sold notwithstanding that ownership of the Goods has not passed to the
Client.
16.
Personal Property Securities Act 2009 (“PPSA”)
16.1
In this clause financing
statement, financing change statement, security agreement, and security
interest has the meaning given to it by the PPSA.
16.2
Upon assenting to these terms and conditions in
writing the Client 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/Equipment and/or collateral (account) – being a
monetary obligation of the Client to Irrigation Works for Services – that have
previously been supplied and that will be supplied in the future by Irrigation
Works to the Client.
16.3
The Client undertakes to:
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 16.3(a)(i) or 16.3(a)(ii);
(b) indemnify, and upon demand reimburse, Irrigation Works for all expenses
incurred in registering a financing statement or financing change statement on
the Personal Property Securities Register established by the PPSA or releasing
any Goods/Equipment charged thereby;
(c) not register a financing change statement in respect of a security
interest without the prior written consent of Irrigation Works;
(d) not register, or permit to be registered, a financing statement or a
financing change statement in relation to the Goods/Equipment and/or collateral
(account) in favour of a third party without the prior written consent of Irrigation
Works;
(e) immediately advise Irrigation Works of any material change in its
business practices of selling Goods which would result in a change in the
nature of proceeds derived from such sales.
16.4
Irrigation Works and the Client agree that sections
96, 115 and 125 of the PPSA do not apply to the security agreement created by
these terms and conditions.
16.6
The Client waives their rights as a grantor and/or
a debtor under sections 142 and 143 of the PPSA.
16.7
Unless otherwise agreed to in writing by Irrigation
Works, the Client waives their right to receive a verification statement in
accordance with section 157 of the PPSA.
16.8
The Client must unconditionally ratify any actions
taken by Irrigation Works under clauses 16.2 to 16.5.
16.9
Subject to any express provisions to the contrary (including
those contained in this clause 16), nothing in these terms and conditions is
intended to have the effect of contracting out of any of the provisions of the
PPSA.
16.10
Only
to the extent that the hire of the Equipment exceeds a two (2) year hire period
with the right of renewal shall clause 16
apply as a security agreement in the form of a PPS Lease in respect of Section
20 of the PPSA, in all other matters this clause 16
will apply generally for the purposes of the PPSA.
17.
Security and Charge
17.2
The Client indemnifies Irrigation Works from and
against all Irrigation Works’ costs and disbursements including legal costs on
a solicitor and own client basis incurred in exercising Irrigation Works’
rights under this clause.
17.3
In the event that the Client defaults or breaches
any term of this Contract and as a result, the security provided in clauses 15.1,16.2 and 17.1 as applicable, is deemed insufficient by Irrigation
Works to secure the repayment of monies owed by the Client to Irrigation Works,
the Client hereby grants Irrigation Works a security interest as at the date of
the default, by way of a charge, that enables the right and entitlement to
lodge a caveat over any real property and or land owned by the Client now, or
owned by the Client in the future, to secure the performance of the Client of
its obligations under these terms and conditions (including, but not limited
to, the payment of any money.
18.
Defects, Warranties and Returns, Competition and Consumer Act 2010 (“CCA”)
18.1
The Client must inspect the Goods/Equipment on Delivery
and must within seven (7) days of Delivery notify Irrigation Works in writing
of any evident defect/damage, shortage in quantity, or failure to comply with
the description or quote. The
Client must notify any other alleged defect in the Goods/Equipment as soon as
reasonably possible after any such defect becomes evident. Upon such
notification the Client must allow Irrigation Works to inspect the
Goods/Equipment.
18.2
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).
18.3
Irrigation Works acknowledges that nothing in these
terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
18.4
Except as expressly set out in these terms and
conditions or in respect of the Non-Excluded Guarantees, Irrigation Works makes
no warranties or other representations under these terms and conditions
including but not limited to the quality or suitability of the Goods/Equipment.
Irrigation Works’ liability in respect of these warranties is limited to the
fullest extent permitted by law.
18.6
If Irrigation Works is required to replace the
Goods under this clause or the CCA, but is unable to do so, Irrigation Works
may refund any money the Client has paid for the Goods.
18.7
If the Client is not a consumer within the meaning
of the CCA, Irrigation Works’ 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 Client by Irrigation Works at Irrigation Works’ sole discretion;
(b) limited to any warranty to which Irrigation Works is entitled, if Irrigation
Works did not manufacture the Goods;
(c) otherwise negated absolutely.
18.8
Subject to this clause 18, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 18.1; and
(b) Irrigation Works has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’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.
18.9
Notwithstanding clauses 18.1 to 18.8 but
subject to the CCA, Irrigation Works 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 Client failing to properly maintain or store any Goods/Equipment;
(b) the Client using the Goods/Equipment for any purpose other than that for
which they were designed;
(c) the Client continuing the use of the Goods/Equipment after any defect
became apparent or should have become apparent to a reasonably prudent operator
or user;
(d) the Client failing to follow any instructions or guidelines provided by Irrigation
Works;
(e) fair wear and tear, any accident, or act of God.
18.10 Irrigation Works may in its absolute discretion accept non-defective
Goods for return in which case Irrigation Works
may require the Client to pay handling fees of
up to twenty percent (20%) with a minimum of fifty dollars ($50) of the value
of the returned Goods plus any freight costs.
18.11 Notwithstanding anything contained in this clause if Irrigation Works is
required by a law to accept a return, then Irrigation Works will only accept a
return on the conditions imposed by that law.
19.
Intellectual Property
19.1
Where Irrigation Works has designed, drawn or
developed Goods for the Client, then the copyright in any designs and drawings
and documents shall remain the property of Irrigation Works. Under no
circumstances may such designs, drawings and documents be used without the
express written approval of Irrigation Works.
19.2
The Client warrants that all designs,
specifications or instructions given to Irrigation Works will not cause Irrigation
Works to infringe any patent, registered design or trademark in the execution
of the Client’s order and the Client agrees to indemnify Irrigation Works
against any action taken by a third party against Irrigation Works in respect
of any such infringement.
19.3
The Client agrees that Irrigation Works may (at no
cost) use for the purposes of marketing or entry into any competition, any
documents, designs, drawings or Goods which Irrigation Works has created for
the Client.
20.
Default and Consequences of Default
20.2
If the Client owes Irrigation Works any money, the
Client shall indemnify Irrigation Works from and against all costs and
disbursements:
(a) incurred; and/or
(b) which would be incurred and/or
(c) for which by the Client would be liable;
in regard to legal costs on a solicitor and own client basis incurred in exercising Irrigation Works’ rights
under these terms and conditions, internal administration fees, Irrigation
Works’ Contract fees owing for breach of these terms and conditions’,
including, but not limited to, contract default fees and/or recovery costs (if
applicable), as well as bank dishonour fees.
20.3
Further to any other rights or remedies Irrigation
Works may have under this Contract, if a Client has made payment to Irrigation
Works, and the transaction is subsequently reversed, the Client shall be liable
for the amount of the reversed transaction, in addition to any further costs
incurred by Irrigation Works under this clause 20 where
it can be proven that such reversal is found to be illegal, fraudulent or in
contravention to the Client’s obligations under this Contract.
20.4
Without prejudice to Irrigation Works’ other
remedies at law Irrigation Works shall be entitled to cancel all or any part of
any order of the Client which remains unfulfilled and all amounts owing to Irrigation
Works shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Irrigation Works becomes overdue, or in Irrigation
Works’ opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by Irrigation
Works;
(c) the Client 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
(d) a receiver, manager, liquidator (provisional or otherwise) or similar
person is appointed in respect of the Client or any asset of the Client.
21.
Cancellation
21.2
If Irrigation Works, due to reasons beyond Irrigation
Works’ reasonable control, is unable to deliver any Goods/Equipment to the Client,
Irrigation Works may cancel any Contract to which these terms and conditions
apply or cancel Delivery of Goods/Equipment at any time before the
Goods/Equipment are delivered by giving written notice to the Client. On giving
such notice Irrigation Works shall repay to the Client any money paid by the Client
for the Goods/Equipment. Irrigation Works shall not be liable for any loss or
damage whatsoever arising from such cancellation.
21.3
The Client may cancel Delivery of the
Goods/Equipment by written notice served within forty-eight (48) hours of
placement of the order. If the Client cancels Delivery in accordance with this
clause 21.3, the Client will not be liable for the payment of
any costs of Irrigation Works, except where a deposit is payable in accordance
with clause 6.4. Failure by the Client to otherwise accept
Delivery of the Goods/Equipment shall place the Client in breach of this
Contract.
21.4
Cancellation of orders for Goods made to the
Client’s specifications, or for non-stocklist items, will definitely not be
accepted once production has commenced, or an order has been placed.
22.1
All
emails, documents, images or other recorded information held or used by Irrigation
Works is Personal Information, as defined and referred to in clause 22.3, and therefore
considered Confidential Information. Irrigation Works acknowledges its
obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to
the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being
Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory
requirements, where relevant in a European Economic Area (“EEA”), under the EU
Data Privacy Laws (including the General Data Protection Regulation “GDPR”)
(collectively, “EU Data Privacy Laws”). Irrigation Works acknowledges that in
the event it becomes aware of any data breaches and/or disclosure of the Client’s
Personal Information, held by Irrigation Works that may result in serious harm
to the Client, Irrigation Works will notify the Client in accordance with the
Act and/or the GDPR. Any release of such Personal Information must be in
accordance with the Act and the GDPR (where relevant) and must be approved by
the Client by written consent, unless subject to an operation of law.
22.2
Notwithstanding
clause 22.1, privacy limitations will extend
to Irrigation Works in respect of Cookies where the Client utilises Irrigation
Works’ website to make enquiries. Irrigation Works agrees to display reference
to such Cookies and/or similar tracking technologies, such as pixels and web
beacons (if applicable), such technology allows the collection of Personal
Information such as the Client’s:
(a) IP address, browser,
email client type and other similar details;
(b) tracking website usage
and traffic; and
(c) reports are available
to Irrigation Works when Irrigation Works sends an email to the Client, so Irrigation
Works may collect and review that information (“collectively Personal
Information”)
If the Client consents to Irrigation Works’ use of
Cookies on Irrigation Works’ website and later wishes to withdraw that consent,
the Client may manage and control Irrigation Works’ privacy controls via the
Client’s web browser, including removing Cookies by deleting them from the
browser history when exiting the site.
22.4
The Client agrees that Irrigation Works may
exchange information about the Client with those credit providers and with related body corporates for the following
purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of
this credit account, where the Client is in default with other credit
providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s
repayment history in the preceding two years.
22.5
The Client consents to Irrigation Works being given
a consumer credit report to collect
personal credit information relating to any overdue payment on commercial
credit.
22.6
The Client agrees that personal credit information
provided may be used and retained by Irrigation Works for the following
purposes (and for other agreed purposes or required by):
(a) the provision of Goods/Equipment; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or
status in relation to the provision of Goods/Equipment; and/or
(c) processing of any payment instructions, direct debit facilities and/or
credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the
Goods/Equipment.
22.7
Irrigation Works may give information about the
Client 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
Client including credit history.
22.8
The information given to the CRB may include:
(a) Personal Information as outlined in 22.3
above;
(b) name of the credit provider and that Irrigation Works is a current
credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’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 (provided Irrigation Works is a
member of an approved OAIC External Disputes Resolution Scheme),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 Client no
longer has any overdue accounts and Irrigation Works has been paid or otherwise
discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of Irrigation Works, the Client has
committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or
more than one hundred and fifty dollars ($150).
22.9
The Client shall have the right to request (by
e-mail) from Irrigation Works:
(a) a copy of the Personal Information about the Client retained by Irrigation
Works and the right to request that Irrigation Works correct any incorrect Personal
Information; and
(b) that Irrigation Works does not disclose any Personal Information about
the Client for the purpose of direct marketing.
22.10
Irrigation Works will
destroy Personal Information upon the Client’s request (by e-mail) or if it is
no longer required unless it is required in order to fulfil the obligations of
this Contract or is required to be maintained and/or stored in accordance with
the law.
22.11
The Client can make a privacy complaint by contacting Irrigation Works via e-mail. Irrigation
Works 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 Client is not
satisfied with the resolution provided, the Client can make a complaint to the
Information Commissioner at www.oaic.gov.au.
23.
Unpaid Seller’s Rights
23.1
Where the Client has left any item with Irrigation
Works for repair, modification, exchange or for Irrigation Works to perform any
other service in relation to the item and Irrigation Works has not received or
been tendered the whole of any monies owing to it by the Client, Irrigation
Works shall have, until all monies owing to Irrigation Works are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation
applicable to the sale or disposal of uncollected goods.
23.2
The lien of Irrigation Works shall continue despite
the commencement of proceedings, or judgment for any monies owing to Irrigation
Works having been obtained against the Client.
24.
Equipment Hire
24.1
Equipment shall at all times remain the property of
Irrigation Works and is returnable on demand by Irrigation Works. In the event
that Equipment is not returned to Irrigation Works in the condition in which it
was delivered Irrigation Works retains the right to charge the Client the full
cost of repairing the Equipment. In the event that Equipment is not returned at
all Irrigation Works shall have right to charge the Client the full cost of
replacing the Equipment.
24.2
The Client shall:
(a) keep the Equipment in their own possession and control and shall not
assign the benefit of the Equipment nor be entitled to a lien over the
Equipment;
(b) not alter or make any additions to the Equipment including but without
limitation altering, make any additions to, defacing or erasing any identifying
mark, plate or number on or in the Equipment or in any other manner interfere
with the Equipment;
(c)
keep the Equipment, complete with all parts and
accessories, clean and in good order as delivered, and shall comply with any
maintenance schedule as advised by Irrigation Works to the Client.
24.3
The Client accepts full responsibility for the
safekeeping of the Equipment and the Client agrees to insure, or self insure, Irrigation
Works’ interest in the Equipment and agrees to indemnify Irrigation Works
against physical loss or damage including, but not limited to, the perils of
accident, fire, theft and burglary and all other usual risks and will effect
adequate Public Liability Insurance covering any loss, damage or injury to
property or persons arising out of the use of the Equipment. Further the Client
will not use the Equipment nor permit it to be used in such a manner as would
permit an insurer to decline any claim.
(a)
any lost hire charges Irrigation
Works would have otherwise been entitled to for the Equipment, under this, or
any other hire agreement;
(b)
any insurance excess
payable in relation to a claim made by either the Client or Irrigation Works in
relation to any damage caused by, or to, the hire Equipment whilst the same is
hired by the Client and irrespective of whether charged by the Client’s
insurers or Irrigation Works’.
24.5
Return of the Equipment (“Return”) will be completed when the:
(a)
Equipment is returned by
the Client to Irrigation Works’ place of business; or
(b)
Irrigation Works takes
back possession of the Equipment once collection by Irrigation Works is
affected.
25.
Building and Construction Industry Security of Payments Act 2009
25.1
At Irrigation Works’ sole discretion, if there are
any disputes or claims for unpaid Goods and/or Services then the provisions of
the Building and Construction Industry Security of Payments Act 2009 may apply.
25.2
Nothing in this Contract is intended to have the
effect of contracting out of any applicable provisions of the Building and
Construction Industry Security of Payments Act 2009 of South Australia, except
to the extent permitted by the Act where applicable.
26.
Service of Notices
26.1
Any written notice given under this Contract shall
be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as
stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party
as stated in this Contract (if any), on receipt of confirmation of the
transmission;
(e) if sent by email to the other party’s last known email address.
26.2
Any notice that is posted shall be deemed to have
been served, unless the contrary is shown, at the time when by the ordinary
course of post, the notice would have been delivered.
27.
Trusts
27.1
If the Client at any time upon or subsequent to
entering in to the Contract is acting in the capacity of trustee of any trust
or as an agent for a trust (“Trust”) then whether or not Irrigation Works may
have notice of the Trust, the Client covenants with Irrigation Works as
follows:
(a) the Contract extends to all rights of indemnity which the Client now or
subsequently may have against the Trust, the trustees and the trust fund;
(b) the Client has full and complete power and authority under the Trust or from the Trustees of the Trust as the case may
be to enter into the Contract and the provisions of the Trust do not purport to
exclude or take away the right of indemnity of the Client against the Trust,
the trustees and the trust fund. The Client will not release the right of
indemnity or commit any breach of trust or be a party to any other action which
might prejudice that right of indemnity;
(c) the Client will not during the term of the Contract without consent in
writing of Irrigation Works (Irrigation Works will not unreasonably withhold
consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Client as trustee of the
Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement
of the trust fund or trust property.
28.
General
28.1
Any
dispute or difference arising as to the interpretation of these terms and
conditions or as to any matter arising herein, shall be submitted to, and
settled by, mediation before resorting to any external dispute resolution mechanisms
(including arbitration or court proceedings) by notifying the other party in
writing setting out the reason for the dispute. The parties shall share equally
the mediator’s fees. Should mediation fail to resolve the dispute, the parties
shall be free to pursue other dispute resolution avenues.
28.2
The failure by either party to enforce any
provision of these terms and conditions shall not be treated as a waiver of
that provision, nor shall it affect that party’s right to subsequently enforce
that provision. If any provision of these terms and conditions shall be
invalid, void, illegal or unenforceable, that provision shall be severed from
this Contract, and the validity, existence, legality and enforceability of the
remaining provisions shall not be affected, prejudiced or impaired.
28.3
These terms and conditions and any Contract to
which they apply shall be governed by the laws of South Australia and are
subject to the jurisdiction of the Tanunda Courts in that state. These terms
prevail over all terms and conditions of the Client (even if they form part of
the Client's purchase order).
28.4
Irrigation
Works may licence and/or assign all or any part of its rights and/or
obligations under this Contract without the Client’s consent provided
the assignment does not cause detriment to the Client.
28.5
The
Client cannot licence or assign without the written approval of Irrigation
Works.
28.6
Irrigation
Works may elect to subcontract out any part of the Services but shall not be
relieved from any liability or obligation under this Contract by so doing.
Furthermore, the Client agrees and understands that they have no authority to
give any instruction to any of Irrigation Works’ sub-contractors without the
authority of Irrigation Works.
28.7
The
Client agrees that Irrigation Works may amend their general terms and
conditions for subsequent future Contracts with the Client by disclosing such
to the Client in writing. These changes shall be deemed to take effect from the
date on which the Client accepts such changes, or otherwise at such time as the
Client makes a further request for Irrigation Works to provide Goods/Equipment
to the Client.
28.8
Neither party shall be liable for any default due
to any act of God, war, terrorism, strike, lock-out, industrial action, fire,
flood, storm, national or global pandemics and/or the implementation of regulation,
directions, rules or measures being enforced by Governments or embargo,
including but not limited to, any Government imposed border lockdowns
(including, worldwide destination ports), etc, (“Force Majeure”) or other event
beyond the reasonable control of either party. This clause does not apply to a failure by the Client to make a payment
to Irrigation Works, once
the parties agree that the Force Majeure event has ceased.
28.9
Both parties warrant that they have the power to
enter into this Contract and have obtained all necessary authorisations to
allow them to do so, they are not insolvent and that this Contract creates
binding and valid legal obligations on them.
28.10
The rights and obligations of the parties will not
merge on completion of any transaction under this Contract, and they will
survive the execution and Delivery of any assignment or other document entered,
for the purpose of, implementing any transaction under this Contract.
28.11
If part or all of any term of this Contract is or
becomes invalid, illegal or unenforceable, it shall be severed from this
Contract and shall not affect the validity and enforceability of the remaining
terms of this Contract.