TERMS AND CONDITIONS OF TRADE

 

General

 

  1. These term and conditions (Terms and Conditions) (which shall only be waived in writing signed by AQUASPEC T/as Boiling Point Services) shall prevail over all conditions of the Customer’s order to the extent of any inconsistency.

 

  1. 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 the Goods or Services.

 

  1. Goods means the products detailed in the Purchase Order.

 

  1. Purchase Order means any Order (including any quotation by AQUASPEC T/as Boiling Point Services) whether written or verbal, placed by the Customer which specifies Goods or Services to be supplied by AQUASPEC T/as Boiling Point Services.

 

  1. Services means services to the Goods to be supplied by AQUASPEC T/as Boiling Point Services as detailed in the Purchase Order.

 

Terms of Trade

 

  1. The Goods and all other products sold or supplied and plumbing Services performed by AQUASPEC T/as Boiling Point Services are sold on these Terms and Conditions.

 

Quotations

 

  1. Unless previously withdrawn, AQUASPEC T/as Boiling Point Services quotations are open for acceptance within the period stated in them or, where no period is so stated, within thirty (30) days only after its date.

 

  1. AQUASPEC T/as Boiling Point Services reserves the right to refuse any order based on any quotation within seven (7) days after the receipt of the order.

 

  1. AQUASPEC T/as Boiling Point Services reserves the right the change the Price:-

 

  • f a variation to Goods to be supplied is requested; or
  • If a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or

 

  • Where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to poor weather conditions, limitations to accessing the site, obscured site defects, safety considerations, prerequisite work by any third party not being completed, etc) which are only discovered on commencement of the Services; or

 

  • In the event of increases to AQUASPEC T/as Boiling Point Services in the cost of labour or materials which are beyond AQUASPEC T/as Boiling Point Services control.

 

Ordered

  1. The Customer must order and Goods and/or Services from AQUASPEC T/as Boiling Point Services by submitting a Purchase Order to AQUASPEC T/as Boiling Point Services.
  2. All Purchase Orders for the Goods and/or Services must contain applicable details as required by AQUASPEC T/as Boiling Point Services.

 

  1. AQUASPEC T/as Boiling Point Services will accept the terms of the Purchase Order by written or verbal acknowledgement. AQUASPEC T/as Boiling Point Services reserves the right to accept or reject any Purchase Order.

 

  1. Once a Purchase Order is placed by the Customer and confirmed by AQUASPEC T/as Boiling Point Services binding agreement is formed.

 

  1. If a Customer wishes to cancel an order for Goods, the Customer must contact AQUASPEC T/as Boiling Point Services as soon as possible. AQUASPEC T/as Boiling Point Services may at its sole discretion:-

 

  • Allow the Customer to cancel the order and refund to the Customer any moneys paid to AQUASPEC T/as Boiling Point Services for the price of the Goods; or
  • Require the Customer to fulfil their obligations under these Terms and Conditions and accept delivery of the Goods.

Drawings and Specifications

  1. All specifications, drawings and plans and dimensions submitted to or by AQUASPEC T/as Boiling Point Services are approximate only and any deviation from any of these does not vitiate any contract with AQUASPEC T/as Boiling Point Services or form grounds for any claim against AQUASPEC T/as Boiling Point Services.

 

  1. The descriptions, illustrations and performances contained in catalogues, pricelists or any other advertising material do not form part of the contract of sale of the Goods or the description applied to the Goods.

 

  1. Where specifications, drawings or other particulars are supplied by the Customer and AQUASPEC T/as Boiling Point Services price is made on estimates of quantities required, then if there are any adjustments in quantities above or below the quantities estimated by AQUASPEC T/as Boiling Point Services and set out in any quotation, then any such increase or decrease are to be adjusted on a unit rate basis according to unit prices set out in this document or in the quotation or purchase order.

 

Delivery  

 

  1. The delivery times made known to the Customer are estimates only and AQUASPEC T/as Boiling Point Services is not liable for late delivery or non delivery.
  2. AQUASPEC T/as Boiling Point Services is not liable for any loss, damage, or delay occasioned to the Customer or any of its customers arising from late or non delivery or late installation of the Goods.

 

  1. AQUASPEC T/as Boiling Point Services may at its option deliver the Goods to the Customer in any number of instalments unless it is agreed that the Customer will not take delivery by instalments.

 

  1. If AQUASPEC T/as Boiling Point Services delivers any of the Goods by instalment, and any one of those instalments is defective for any reason:-

 

  • It is not a repudiation of the contract of sale formed by these conditions; and
  • The defective instalment is a severable breach that gives rise only to a claim for compensation.

 

  1. The Customer agrees to accept the Goods once the Goods leave AQUASPEC T/as Boiling Point Services (or designated third party supplier’s) premises.
  2. Any Goods become the Customer’s sole risk once the Goods leave AQUASPEC T/as Boiling Point Services premises, irrespective of which party organise the transport or the method utilised. It is the responsibility of the Customer to organise suitable insurance for loss, damage or any other related matter.

 

Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

 

  1. The Customer must inspect the Goods and Services installed and must within 48 hours of installation notify AQUASPEC T/as Boiling Point Services in writing of any evident defects/damage, shortage in quality, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods or Services as soon as reasonably possible after any such defect becomes evident. Upon such notification he Customer must allow AQUASPEC T/as Boiling Point Services to inspect the Goods.
  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).

 

  1. AQUASPEC T/as Boiling Point Services acknowledges that nothing in these Terms and Conditions purports to modify or exclude the non-excluded guarantees except as expressly set out in these Terms and Conditions or in respect of the non-excluded guarantees. AQUASPEC T/as Boiling Point Services makes no warranties or other representations under these Terms and Conditions including but not limited to the quality or suitability of the Goods or Services and AQUASPEC T/as Boiling Point Services liability in respect of these warranties is limited to the fullest extent permitted by law.

 

  1. If the Customer is a consumer within the meaning of the CCA, AQUASPEC T/as Boiling Point Services liability is limited to the extent permitted under Section 64A of Schedule 2.

 

  1. If AQUASPEC T/as Boiling Point Services is required to rectify, re-supply or pay the costs of re-supplying any Services or Goods under these Terms and Conditions or the CCA, but is unable to do so, then AQUASPEC T/as Boiling Point Services may refund any money the Customer has paid for the Services or Goods but only to the extent that such refund shall take into account the value of any Services or Goods and consumables which have been provided to the Customer which were not defective.

 

  1. If the Customer is not a consumer within the meaning of the CCA, AQUASPEC T/as Boiling Point Services liability for any defect or damage in the Goods or Services is:-

 

  • Limited to the value of any expressed warranty provided to the Customer by AQUASPEC T/as Boiling Point Services at AQUASPEC T/as Boiling Point Services sole discretion;
  • Limited to any warranty to which AQUASPEC T/as Boiling Point Services is entitled, if AQUASPEC T/as Boiling Point Services did not manufacture the equipment;

 

  • Otherwise negated absolutely.

 

  1. Notwithstanding clauses 24-29 but subject to the CCA, AQUASPEC T/as Boiling Point Services shall not be liable for any defect or damage which may be caused or partly caused by, or arise as a result of:-

 

  • The Customer failing to properly maintain or store any Goods;
  • The Customer interfering with the Goods in any way without AQUASPEC T/as Boiling Point Services written approval to do so;

 

  • The Customer using the Goods for any purpose other than for that which it was designed;

 

  • The Customer continuing to use the Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;

 

  • The Customer failing to follow any instructions or guidelines provided by AQUASPEC T/as Boiling Point Services;

 

  • Fair wear and tear, any accident or act of God.

 

 

 

Price

 

  1. Unless otherwise stated all prices quoted by AQUASPEC T/as Boiling Point Services are net, exclusive of goods and services tax (GST), installation costs, packaging costs, freight charges, delivery costs, bank charges.

 

 

 

  1. At AQUASPEC T/as Boiling Point Services sole discretion the Price shall be either:-

 

  • As indicated on Invoices provided by AQUASPEC T/as Boiling Point Services to the Customer in respect of Goods and Services supplied; or
  • AQUASPEC T/as Boiling Point Services quoted Price (subject to clauses 8 and 9) which shall be binding upon AQUASPEC T/as Boiling Point Services provided that the Customer shall accept in writing AQUASPEC T/as Boiling Point Services quotation within 30 days.

 

Payment

 

  1. Time for payment for the Goods and Services being of the essence, the price will be payable by the Customer on the day determined by AQUASPEC T/as Boiling Point Services, which may be:-

 

  • On delivery of the Goods; or
  • For approved Customers made by instalments in accordance with AQUASPEC T/as Boiling Point Services payment schedule; or

 

  • The date specified on any Invoice or other form as being the date for payment; or

 

  • Failing any notice to the contrary, the date which is 7 days following the date of any Invoice issued to the Customer by AQUASPEC T/as Boiling Point Services.
  1. Payment may be made by cash, cheque, bank cheque, electronic/online banking, or by any other method as agreed between the Customer and AQUASPEC t/as Boiling Point Services.

 

  1. Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to AQUASPEC T/as Boiling Point Services an amount equal to any GST AQUASPEC T/as Boiling Point Services must pay for any supply of Goods or Services by AQUASPEC T/as Boiling Point Services under this or any other agreement. The customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer 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.

 

  1. Receipt by AQUASPEC T/as Boiling Point Services of any form of payment under than cash shall not be deemed to be payment until the form of payment has been honoured, cleared or recognised.

 

 

Rights in Relation to Goods

  1. AQUASPEC T/as Boiling Point Services reserves the following rights in relation to the Goods until all accounts owed by the Customer to AQUASPEC T/as Boiling Point Services are fully paid:-

 

  • Ownership of the Goods;

 

  • To enter the Customer’s premises (or the premises of any associated company or agent where the Goods are located) without liability for trespass or any resulting damage and retake possession of the Goods; and

 

  • To keep or resell any Goods repossessed pursuant to (b) above.

 

  1. Notwithstanding the provisions in clauses 39 hereof, AQUASPEC T/as Boiling Point Services shall be entitled to maintain an action against the Customer for the purchase price.

 

  1. The Customer is a bailee of the Goods until such time as ownership of them passes to the Customer and this bailment continues in relation to the Goods until all accounts owed by the Customer to AQUASPEC T/as Boiling Point Services are fully paid. However the risk of the Goods passes to the Customer upon the earlier of:-

 

  • Actual or constructive delivery of the Goods to the Customer; or
  • Collection of the Goods from AQUASPEC T/as Boiling Point Services or any bailee or agent of AQUASPEC T/as Boiling Point Services by the Customer’s agent, carrier or courier.

 

Storage

 

  1. AQUASPEC T/as Boiling Point Services reserves the right to make a reasonable charge for storage if delivery instructions are not provided by the Customer within 14 days of a request by AQUASPEC T/as Boiling Point Services for such instructions. The parties agree that AQUASPEC T/as Boiling Point Services may charge for storage from the first day after AQUASPEC T/as Boiling Point Services requests the Customer to provide delivery instructions.

 

Return of the Goods

  1. AQUASPEC T/as Boiling Point Services is not under any duty to accept Goods returned by the Customer and will do so only on terms to be agreed in writing in each individual case.
  2. If AQUASPEC T/as Boiling Point Services agrees to accept returned Goods from the Customer under clause 41, the Customer must return the Goods to AQUASPEC T/as Boiling Point Services at AQUASPEC T/as Boiling Point Services principal place of business.

 

Goods Sold  

 

  1. All Goods to be supplied by AQUASPEC T/as Boiling Point Services to the Customer are as described on the purchase order agreed by AQUASPEC T/as Boiling Point Services and the Customer and the description on such purchase order modified or so agreed prevails over all other descriptions including any specification or enquiry of the Customer.

 

Cancellation

 

  1. No order may be cancelled except with consent in writing from AQUASPEC T/as Boiling Point Services and on terms which will indemnify AQUASPEC T/as Boiling Point Services against all losses (including but not limited to any loss of profits).

 

  1. AQUASPEC T/as Boiling Point Services may cancel these Terms and Conditions or cancel delivery of Goods and Services at any time before the Goods and Services are delivered by giving written notice to the Customer. On giving such notice AQUASPEC T/as Boiling Point Services shall repay the Customer any sums paid in respect of the Price. AQUASPEC T/as Boiling Point Services shall not be liable for any loss or damage whatsoever arising from such cancellation.

 

Place of Contract

 

  1. The contract for the sale of Goods and Services is made in the State of Queensland from which this document is issued.
  2. The parties submit all disputes arising between them to the Courts of Queensland in any Court competent to hear appeals from those Courts in the first instance.

 

 

No Waiver

  1. The failure of any party to enforce any provision of these Terms and Conditions or to exercise any rights expressed herein, is not a waiver of such provision or rights and does not affect the enforcement of this Terms and Conditions.
  2. No waiver under clause 48 operates as an estoppel against the party who seeks to rely on clause 48.

 

  1. The exercising by any party of any of its rights expressed herein does not preclude or prejudice such party from exercising the same or any other rights it may have irrespective of any previous action taken by that party.

 

Default and Consequences of Default

 

  1. Interest on overdue Invoices shall accrue daily from the date when payment becomes due, until the date of payment, at the rate of 1.5% above AQUASPEC T/as Boiling Point Services overdraft rate per calendar month (and at AQUASPEC T/as Boiling Point Services sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

 

  1. If the Customer owes AQUASPEC T/as Boiling Point Services any money the Customer shall indemnify AQUASPEC T/as Boiling Point Services from and against all costs and disbursements incurred by AQUASPEC T/as Boiling Point Services in recovering the debt (including but not limited to internal administration fees, legal costs on a Solicitor and own client basis, AQUASPEC T/as Boiling Point Services Collection Agency costs and bank dishonour fees).

 

  1. Without prejudice to any other remedies AQUASPEC T/as Boiling Point Services may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these Term and Conditions AQUASPEC T/as Boiling Point Services may repossess the Goods or suspend or terminate the supply of Goods or Services to the Customer and any of its other obligations under the Terms and Conditions. AQUASPEC T/as Boiling Point Services will not be liable to the Customer for any loss or damage the Customer suffers because AQUASPEC T/as Boiling Point Services has exercised its rights under this clause
  2. Without prejudice to AQUASPEC T/as Boiling Point Services other remedies at law AQUASPEC T/as Boiling Point Services shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies AQUASPEC T/as Boiling Point Services may have and all amounts owing to AQUASPEC T/as Boiling Point Services shall, whether or not due to payment, become immediately payable in the event that:-

 

  • Any money payable to AQUASPEC T/as Boiling Point Services becomes overdue, or in AQUASPEC T/as Boiling Point Services opinion the Customer will be unable to meet its payments as they fall due; or
  • The Customer becomes insolvent, convenes a meeting with its creditors or proposed to enter into an arrangement with creditors; or makes an assignment for the benefit of its creditors; or

 

  • A Receiver, Manager, Liquidator (provisional or otherwise) or similar person is appointed in respect of a Customer or any asset of the Customer.

 

 

 

 

 

Limitation of Liability and Release

 

  1. To the maximum extent permitted by law:-

 

  • AQUASPEC T/as Boiling Point Services liability in relation to the performance or otherwise of its obligations under these Terms of Trade will not exceed the price of the Goods and/or Services;
  • AQUASPEC T/as Boiling Point Services will not be liable to the Customer for any loss of profits or any consequential or indirect loss of any nature whatsoever including loss of use, revenue or any loss of business, production, contract or goodwill.

 

  1. AQUASPEC T/as Boiling Point Services will not be liable for any loss or damage of any kind whatsoever caused directly or indirectly by way delay or in any failure to deliver the Goods in whole or in part.

 

  1. The Customer releases AQUASPEC T/as Boiling Point Services and its agents, employees and contractors from all claims and demands resulting from any accident, damage, loss, injury or death arising from the Customer’s use of the Goods including that damage or loss results from negligence.

 

  1. AQUASPEC T/as Boiling Point Services will not be liable for any loss or damage of any kind whatsoever caused directly or indirectly by any incorrect data or information supplied by the Customer particularly relating to product selection and operation, availability, location and description details.

 

 

Indemnity

 

  1. Without limiting any other clause of these Terms and Conditions, to the maximum extent permitted by law, the Customer indemnify AQUASPEC T/as Boiling Point Services and its directors, officers, agents, employees and contractors (jointly and severally) (collectively referred to as the Indemnified Persons) and keep each of the Indemnified Persons indemnified against all loss, actions, claims, proceedings, costs, expenses, claims and damages in respect of which the Indemnified Person shall or may become liable arising from or in relation to any one or more of the following:-

 

  • Any breach of these Terms of Trade by the Customer;
  • Any wrongful, wilful or negligent act or omission of the Customer (or any of its employees, agents or contractors);

 

  • The storage, handling or use of any of the Goods in a manner inconsistent with any instructions or directions given to the Customer by AQUASPEC T/as Boiling Point Services or the manufacturer of the Goods;

 

  • Any injury or loss sustained by any person who is employed or engaged by the Customer as an employee, agent or contractor for the purpose of (amongst other things) the performance of the Customer’s obligations under these terms of trade and who suffers any injury or loss arising out of or in the course of such employment or engagement by failing to use the Goods in a manner consistent with any instructions or directions given to the Customer by AQUASPEC T/as Boiling Point Services or the manufacturer of the Goods;

 

  • If the Customer fails to:-

 

  • Comply with any law relating to the labelling or use of the Goods;
  • Take any other reasonable precaution to bring to the attention of potential uses of the Goods any dangers associated with the Goods and to detect any matters in relation to which AQUASPEC T/as Boiling Point Services become liable;

 

  • Otherwise comply with any law, rules, standards or regulations applicable in relation to the Goods for the use of the Goods for any directions or instructions given by AQUASPEC T/as Boiling Point Services in relation to the Goods.

 

Installation

 

  1. If the Customer organises installation of any Goods or part of any Goods supplied by AQUASPEC T/as Boiling Point Services, the installation must comply with:-

 

  • All installation recommendations and instructions supplied by AQUASPEC T/as Boiling Point Services or the manufacturer; and
  • All industry, HSC and legal requirements and guidelines.
  1. AQUASPEC T/as Boiling Point Services will not be held responsible for any failure on behalf of the Customer to comply with clause 60.

 

  1. It is the Customer’s responsibility to ensure that prior to any purchase of goods, all necessary installation requirements and associated costs have been considered and accounted for.

 

Dangerous and Hazardous Goods

 

  1. Some Goods or parts of Goods supplied by AQUASPEC T/as Boiling Point Services may be considered to be hazardous or dangerous. AQUASPEC T/as Boiling Point Services will provide appropriate notification, documentation and directions on how to use and operate the Goods.
  2. If the Customer purchases Goods that are considered hazardous or dangerous from AQUASPEC T/as Boiling Point Services, it is the Customer’s responsible to ensure that they and their employee, agents and/or contractors who come into contact with the Goods comply with any documentation or directions given by AQUASPEC T/as Boiling Point Services and all applicable laws and recommendations in relation to those Goods.

 

Personal Property Securities Act 2009 (Cth) (PPSA)

 

  1. In this clause financing statement, security agreement, security interest, interested person, register and proceeds have the meaning given to them by the PPSA.
  2. The Customer acknowledges that these Terms and Conditions constitute a Security Agreement for the purpose of Section 20 of the PPSA and that a security interest exists in all Goods (and their proceeds) supplied by AQUASPEC T/as Boiling Point Services to the Customer from time to time.

 

  1. AQUASPEC T/as Boiling Point Services may protect its security interest by lodging a Financing Statement on the PPSA Register.

 

  1. The Customer must execute any documents and do such acts as may be required by AQUASPEC T/as Boiling Point Services to register a security interest, with the propriety it requires, and to maintain that registration.

 

  1. To the maximum extent permitted by law all costs incurred by AQUASPEC T/as Boiling Point Services in registering or lodging a Financial Statement or a Financing Change Statement must be paid by the Customer to AQUASPEC T/as Boiling Point Services on demand.

 

  1. The Customer, to the maximum extent permitted by law waives its rights under Sections 95, 118, 121, 130, 132 and 135 of the PPSA and any rights to receive from AQUASPEC T/as Boiling Point Services any notice under the PPSA (including a Statement of Account or notice of a Verification Statement) unless the notice is required by the PPSA and the relevant requirement cannot be excluded.

 

  1. The Customer acknowledges that it has received value as at the date of first delivery of the Goods and has not agreed to postpone the time for attachment of the security interest (as defined in the PPSA) granted to AQUASPEC T/as Boiling Point Services under these Terms and Conditions.

 

  1. The Customer irrevocably grants to AQUASPEC T/as Boiling Point Services the right to enter upon the Customer’s property or premises, without notice and without being in any way liable to the Customer or to a third party, if AQUASPEC T/as Boiling Point Services has caused to exercise any of AQUASPEC T/as Boiling Point Services rights under Section 123 and/or Section 128 of the PPSA and the Customer shall indemnify AQUASPEC T/as Boiling Point Services from any claims made by any third parties as a result of such exercise.