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Conditions of Sale

  1. Definitions

1.1 “Pacific Water ” shall mean Pacific Water Technology, its successors and assigns or any person acting on behalf of and with the authority of Pacific Water Technology.

1.2 “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by Pacific Water to the Customer.

1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Customer on a principal debtor basis.

1.4 “Goods” shall mean all Goods supplied by Pacific Water to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Pacific Water to the Customer.

1.5 “Services” shall mean all Services supplied by Pacific Water to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).

1.6 “Price” shall mean the Price payable for the Goods as agreed between Pacific Water and the Customer in accordance with clause 4 of this contract.

1.7  ” Trial Equipment” and “Loan Equipment”  applies to any plant or equipment provided  on a temporary basis for the purposes of trials and demonstrations, and applies to equipment either supplied on a rental basis,  installment basis or paid for based on a trial or demonstration  agreement- any such conditions being superseded by the “Conditions of Sales” 

2. The Commonwealth Trade Practices Act 1974 {“TPA”) and Fair Trading Acts {“FTA”)

2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted     by those Acts where applicable.

2.2 Where the Customer buys Goods as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer’s statutory rights.

 

3. Acceptance

3.1 Any instructions received by Pacific Water from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by Pacific Water shall constitute acceptance of the terms and conditions contained herein.

3.2 The Customer hereby indemnifies, releases and defends Pacific Water from and against any losses, liabilities, claims, suits and costs caused by, or arising out of the way in which the Goods are packaged, if the Goods and packages or containers in which they are contained, are made in compliance with the Customer’s design or specification.

3.3 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.

3.4 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of Pacific Water .

3.5 The Customer shall give Pacific Water not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes     in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by Pacific Water as a result of the Customer’s failure to comply with this clause.

3.6 Goods are supplied by Pacific Water only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions     of trade.

 

4. Price and Payment

4.1 At Pacific Water ‘s sole discretion the Price shall be either:

4.2 as indicated on invoices provided by Pacific Water to the Customer in respect of Goods supplied; or

4.3 Pacific Water ‘s current price at the date of delivery of the Goods according to Pacific Water ‘s current Price list; or

4.4 Pacific Water ‘s quoted Price (subject to clause 4.2) which shall be binding upon Pacific Water provided that the Customer shall accept Pacific Water ‘s quotation in writing within thirty (30) days.

4.5 Pacific Water reserves the right to change the Price in the event of a variation to Pacific Water ‘s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation due to fluctuations in the currency exchange rate, or due to unforeseen circumstances) will be charged for on the basis of Pacific Water ‘s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.

4.6 Pacific Water may submit detailed progress payment claims in accordance with Pacific Water ‘s specified payment schedule. Such payment claims may include the reasonable value of authorised variations and the value of any materials delivered to the site but not yet installed.

4.7 At Pacific Water ‘s sole discretion a deposit may be required.

4.8 At Pacific Water ‘s sole discretion payment for approved Customers shall be due thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices.

4.9 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.

4.10 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to one and a half percent (1.5%) of the Price), or by direct credit, or by any other method as agreed to between the Customer and Pacific Water .

4.11 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

 

5. Delivery of Goods

5.1 At Pacific Water ‘s sole discretion delivery of the Goods shall take place when:

5.2 The Customer takes possession of the Goods at Pacific Water ‘s address; or

5.3 The Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by Pacific Water or Pacific Water ‘s nominated carrier).

5.4 At Pacific Water ‘s sole discretion the costs of delivery are:

5.4.1 in addition to the Price; or

5.4.2 for the Customer’s account.

5.5 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.

5.6 Pacific Water may deliver the Goods by separate installments. Each separate installment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

5.7 The failure of Pacific Water to deliver shall not entitle either party to treat this contract as repudiated.

5.8 Pacific Water shall not be liable for any loss or damage whatsoever due to failure by Pacific Water to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Pacific Water .

 

6. Risk

6.1 If Pacific Water retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.

6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Pacific Water is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Pacific Water is sufficient evidence of Pacific Water ‘s rights to receive the insurance proceeds without the need for any person dealing with Pacific Water to make further enquiries.

6.3 Where the Customer expressly requests Pacific Water to leave Goods outside Pacific Water ‘s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk and it shall be the Customer’s responsibility to ensure the Goods are insured adequately or at all.

6.4 Where any trial equipment or loan equipment provided by Pacific Water to the customer  for a specified or non -specified time frame, Pacific Water reserves the right at any time, to request the equipment to be returned to Pacific Water, at the expense of the customer.   The customer is responsible to ensure the equipment is returned in an undamaged state, and will be responsible for any repairs and associated costs  to render the equipment back into a serviceable state. 

 

7. Access

7.1 The Customer shall ensure that Pacific Water has clear and free access to the work site at all times to enable them to undertake the works.

7.2 Pacific Water 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 Pacific Water .

 

8. Underground Locations

8.1 Prior to Pacific Water commencing any work the Customer must advise Pacific Water of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Customer must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.

8.2 Whilst Pacific Water will take all care to avoid damage to any underground services the Customer agrees to indemnify Pacific Water 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 8.1.

 

9.Title

9.1 Pacific Water and the Customer agree that ownership of the Goods shall not pass until:

9.1.1 the Customer has paid Pacific Water all amounts owing for the particular Goods; and

9.1.2 the Customer has met all other obligations due by the Customer to Pacific Water in respect of all contracts between Pacific Water and the Customer.

9.2 Receipt by Pacific Water 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 and until then Pacific Water ‘s ownership or rights in respect of the Goods shall continue.

It is further agreed that:

9.3 Where practicable the Goods shall be kept separate and identifiable until Pacific Water shall have received payment and all other obligations of the Customer are met; and

9.4 Until such time as ownership of the Goods shall pass from Pacific Water to the Customer Pacific Water may give notice in writing to the Customer to return the Goods or any of them to Pacific Water . Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and

9.5 Pacific Water shall have the right of stopping the Goods in transit whether or not delivery has been made; and

9.5.1 If the Customer fails to return the Goods to Pacific Water then Pacific Water or Pacific Water ‘s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated and take possession of the Goods; and

9.5.2 The Customer is only a bailee of the Goods and until such time as Pacific Water has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to Pacific Water for the Goods, on trust for Pacific Water ; and

9.6 The Customer shall not deal with the money of Pacific Water in any way which may be adverse to Pacific Water ; and

9.7 The Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Pacific Water ; and

9.8 Pacific Water can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and

9.9 Until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that Pacific Water will be the owner of the end products.

1O.     Personal Property Securities Act 2009 {“PPSA”)

 In this clause:

10.1 Financing statement has the meaning given to it by the PPSA;

10.2 Financing change statement has the meaning given to it by the PPSA;

10.3 Security agreement means the security agreement under the PPSA created between the Customer and Pacific Water by these terms and conditions; and

10.4 Security interest has the meaning given to it by the PPSA.

10.5 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions:

10.5.1 constitute a security agreement for the purposes of the PPSA; and

10.5.2 create a security interest in:

10.6 All Goods previously supplied by Pacific Water to the Customer (if any);

10.7 All Goods that will be supplied in the future by Pacific Water to the Customer.

10.8 The Customer undertakes to:

10.8.1 Promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Pacific Water may reasonably require to:

10.8.2 Register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;

10.8.3 Register any other document required to be registered by the PPSA; or

10.8.4 Correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii);

11. Indemnify, and upon demand reimburse, Pacific Water 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 charged thereby;

12. Not register a financing change statement in respect of a security interest without the prior written consent of Pacific Water ;

13. Not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Pacific Water ; and

14. Immediately advise Pacific Water of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

15. Pacific Water and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

16. The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

17. The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

18. Unless otherwise agreed to in writing by Pacific Water , the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.

19. The Customer shall unconditionally ratify any actions taken by Pacific Water under clauses 10.3 to 10.5.

 

11. Security and Charge

11.1 Despite anything to the contrary contained herein or any other rights which Pacific Water may have howsoever:

Where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Pacific Water or Pacific Water ‘s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that Pacific Water (or Pacific Water ‘s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.

11.2 All prices exclude G.S.T. and are subject to change without notice. All items are sold according to Pacific Water Technologies’ Standard Terms & Conditions of sale.

11.3 Should Pacific Water elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify Pacific Water from and against all Pacific Water ‘s costs and disbursements including legal costs on a solicitor and own client basis.

11.4 The Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Pacific Water ‘s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 11.1.

12. Defects

12.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Pacific Water of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote.

12.2 The Customer shall afford Pacific Water an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way.

12.3 If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Pacific Water has agreed in writing that the Customer is entitled to reject, Pacific Water ‘s liability is limited to either (at Pacific Water ‘s discretion) replacing the Goods or repairing the Goods except where the Customer has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.

 

13. Returns

Returns will only be accepted provided that:

13.1 The Customer has complied with the provisions of clause 12.1; and

13.2 Pacific Water has agreed in writing to accept the return of the Goods; and

13.3 The Goods are returned at the Customer’s cost within fourteen (14) days of the delivery date; and

13.4 Pacific Water will not be liable for Goods which have not been stored or used in a proper manner; and the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.

13.5 Pacific Water may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of up to thirty percent (30%) of the value of the returned Goods plus any freight costs.

 

14. Warranty

14.1 Subject to the conditions of warranty set out in clause 14.3 Pacific Water warrants that if any defect in any workmanship of Pacific Water becomes apparent and is reported to Pacific Water within twelve (12) months of the date of delivery (time being of the essence) then Pacific Water will either (at Pacific Water ‘s sole discretion) replace or remedy the workmanship.

14.2 Subject to the conditions of warranty set out in clause 14.3 Pacific Water warrants that if any defect in any part(s) supplied by Pacific Water becomes apparent and is reported to Pacific Water within two (2) years of the date of delivery (time being of the essence) then Pacific Water will replace the defective part(s). This warranty does not include any labour costs for the replacement of the defective part all such costs shall be the Customer’s liability.

14.3 The conditions applicable to the warranty given by clause 14.1 and 14.2 are:

the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:

failure on the part of the Customer to properly maintain any Goods; or

failure on the part of the Customer to follow any instructions or guidelines provided by Pacific Water; or

any use of any Goods otherwise than for any application specified on a quote or order form; or

the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or

fair wear and tear, any accident or act of God.

14.4 The warranty shall cease and Pacific Water shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Pacific Water ‘s consent.

14.5 In respect of all claims Pacific Water shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.

14.6 For Goods not manufactured by Pacific Water , the warranty shall be the current warranty provided by the manufacturer of the Goods. Pacific Water shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.

14.7 In respect of the supply of  filtration equipment the customer will be responsible to provide the appropriate feed water conditions as specified by Pacific Water or their agents.   For membrane filtration equipment, it is the responsibility of the customer to supply the feed water within the specified parameters, that include a  silt density index( SDI) of less than 3 and a Langelier Saturation Index( LSI) of less than 1 .   Pacific Water does not accept any responsibilities in any failures or under performance , if these conditions are not met.

 

15. No Implied Service

The Buyer acknowledges and agrees that except as required by law this contract shall not entitle the Buyer to demand and receive from Pacific Water any site inspection or service of the Goods supplied, delivered and/or installed (if applicable). If the Buyer does require Pacific Water to provide such Services in relation to the Goods supplied under this contract then the Buyer shall arrange with Pacific Water to enter into a separate agreement in respect of the same. In the event that no separate agreement in relation to such Services is required by the Buyer, then the Buyer acknowledges and agrees that in the event of the Goods supplied requiring to be serviced or inspected due to breakdown or otherwise, then the Buyer shall rely solely on any benefit in respect of the same provided by the manufacturer (refer clause 14.4).

 

16. Intellectual Property

16.1 Where Pacific Water has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in Pacific Water , and shall only be used by the Customer at Pacific Water ‘s discretion.

16.2 The Customer warrants that all designs or instructions to Pacific Water will not cause Pacific Water to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Pacific Water against any action taken by a third party against Pacific Water in respect of any such infringement.

16.3 The Customer agrees that Pacific Water may use any documents, designs, drawings or Goods created by Pacific Water for the purposes of advertising, marketing, or entry into any competition.

17. Default and Consequences of Default

17.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Pacific Water ‘s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

17.2 In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by Pacific Water .

17.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify Pacific Water from and against all costs and disbursements incurred by Pacific Water in pursuing the debt including legal costs on a solicitor and own client basis and Pacific Water ‘s collection agency costs.

17.4 Without prejudice to any other remedies Pacific Water may have, if at any time the Customer is in breach of any obligation (including those relating to payment) Pacific Water may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. Pacific Water will not be liable to the Customer for any loss or damage the Customer suffers because Pacific Water has exercised its rights under this clause.

 

17.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of fifty dollars ($50.00)) shall be levied for administration fees which sum shall become immediately due and payable.

18.Costs of Recovery 

18.1 The debtor/s shall pay for all costs actually incurred by Pacific Water  in the recovery of any monies owed under this Agreement including recovery agent costs, repossession costs, location search costs, process server costs and solicitor costs on a solicitor/client basis.

18.2 Without prejudice to Pacific Water ‘s other remedies at law Pacific Water shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Pacific Water shall, whether or not due for payment, become immediately payable in the event that:

18.3 Any money payable to Pacific Water becomes overdue, or in Pacific Water ‘s 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 proposes or enters 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 the Customer or any asset of the Customer.

19. Compliance with Laws

19.1 The Customer and Pacific Water shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the works.

19.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the works.

19.3 The Customer agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.

20.Cancellation

20.1 Pacific Water may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice Pacific Water shall repay to the Customer any sums paid in respect of the Price. Pacific Water shall not be liable for any loss or damage whatsoever arising from such cancellation.

20.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by Pacific Water (including, but not limited to, any loss of profits) up to the time of cancellation.

20.3 Cancellation of orders for Goods made to the Customer’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.

21.     Privacy Act 1988

21.1.The Customer and/or the Guarantor/s (herein referred to as the Customer) agree for Pacific Water to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by Pacific Water .

21.2 The Customer agrees that Pacific Water may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:

to assess an application by the Customer; and/or

to notify other credit providers of a default by the Customer; and/or

to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or

to assess the creditworthiness of the Customer.

21.3 The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.

21.4 The Customer consents to Pacific Water being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

21.5 The Customer agrees that personal credit information provided may be used and retained by Pacific Water for the following purposes (and for other purposes as shall be agreed between the Customer and Pacific Water or required by law from time to time):

the provision of Goods; and/or

the marketing of Goods by Pacific Water , its agents or distributors; and/or

analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or

processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or

enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.

21.6 Pacific Water may give information about the Customer to a credit reporting agency for the following purposes:

to obtain a consumer credit report about the Customer;

allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.

21.7 The information given to the credit reporting agency may include:

personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number;

details concerning the Customer’s application for credit or commercial credit and the amount requested;

advice that Pacific Water is a current credit provider to the Customer

advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;

that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;

information that, in the opinion of Pacific Water , the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customers credit obligations);

advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once;

that credit provided to the Customer by Pacific Water has been paid or otherwise discharged.

21.8 Building and Construction Industry Security of Payment Act 2002

At Pacific Water ‘s 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 Payment Act 2002 may apply.

Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 of Victoria, except to the extent permitted by the Act where applicable.

22. General

22.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

22.2 If any provisions of these terms and conditions are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency.

22.3 These terms and conditions and any contract to which they apply shall be governed by the laws of the State in which the sale was made and are subject to the jurisdiction of the courts of that same State.

22.4 Pacific Water shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Pacific Water of these terms and conditions, or arising out of a malfunction or failure of the Goods.

22.5 In the event of any breach of this contract by Pacific Water the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.

22.6 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Pacific Water nor to withhold payment of any invoice because part of that invoice is in dispute.

22.7 Pacific Water may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.

22.8 The Customer agrees that Pacific Water may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Pacific Water notifies the Customer of such change. The Customer shall be under no obligation to accept such changes except where Pacific Water supplies further Goods to the Customer and the Customer accepts such Goods.

22.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

22.10 The failure by Pacific Water to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Pacific Water ‘s right to subsequently enforce that provision.

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