Terms of quotation and sale
These terms apply to all quotations, purchase orders and sales of products, equipment and services by Eureka Water & Filtration (ABN 75 212 159 357). Questions about these terms can be sent to info@eurekawater.com.au or (07) 4774 3607.
1. Applicable terms
These terms and conditions govern the purchase and sale of the products, equipment and related services (if any) referred to in Eureka Water & Filtration (EWF) purchase order, quotation, proposal or acknowledgement, as it may be. Whether these terms and conditions are included in an offer or an acceptance by EWF, such offer or acceptance is conditioned on Buyer’s consent to these terms and conditions. EWF rejects all additional or different terms in any of Buyer’s purchase order or documents.
2. Quotation
All quotations by EWF are subject to change or withdrawal without prior notice to Buyer, unless specifically stated in the quotation. Quotations are made subject to approval by EWF of Buyer’s credit.
3. Payment
Buyer shall pay EWF the full purchase price within 30 days, or where no price has been quoted (or a quoted price is no longer valid), the price listed in EWF’s price list current at the date of acceptance of the Buyer’s purchase order. Unless EWF’s Documentation provides otherwise, freight, storage, insurance and all taxes, duties or other governmental charges relating to the Product or Service shall be paid by Buyer. If EWF is required to pay any such charges, Buyer shall immediately reimburse EWF. All payments are due within the terms of the quotation and invoice. If Buyer fails to make payment at the due date then, without prejudice to any other right or remedy available to EWF, EWF shall be entitled to (i) apply a monthly interest charge at 1% per month of the total outstanding amount or (ii) cancel the purchase order contract or suspend any further deliveries to the Buyer. Buyer shall pay all of EWF’s reasonable cost (including lawyer’s fees) incurred in collecting amounts due but unpaid.
4. Delivery
EWF will use its reasonable endeavours to provide the Products and Services in accordance with the delivery times quoted in EWF Documentation. Unless EWF Documentation provides otherwise, Delivery terms are FOB EWF’s premises. EWF assumes no liability due to delays, including any direct or consequential damages due to a delay in delivery. All risk and title in a Product passes to the Buyer (i) in the case where EWF has agreed to arrange the delivery of the Products (Service), upon delivery of the Products by EWF to the Buyer’s premises and (ii) in any other case, upon the Product (Service) the subject of a Purchase Order, being ready for dispatch or collection by the Buyer from EWF’s premises.
5. Changes
The Buyer may, from time to time, either in writing or by telephone, request EWF to vary any provision of a Purchase Order. EWF will use reasonable endeavours to accommodate any such request for variation (but shall not be liable to the Buyer to the extent it is not able to accommodate any such request). Where EWF accommodates the Buyer’s request for a variation, and where such variation involves an increase in the Products or Services to be supplied under a purchase order, the Buyer will within 10 days of its receipt of the relevant EWF invoice pay to EWF all additional amounts reasonably incurred and invoiced by EWF as a result of such variation. If the variation involves a reduction in the Products or Services to be supplied under a purchase order, EWF will reduce any amounts payable by the Buyer for the Products or Services which, as a result of such variation, are no longer to be supplied under a purchase order. EWF may change the manufacturer’s specifications from time to time of any product to take into account improvements of design and unavailability of materials without obtaining the Buyer’s approval if, in the reasonable opinion of EWF, the changes (i) improve the Product’s function, operation or use or (ii) do not result in the Product differing in any substantial way from the original specifications of the Products as were relevant at the time the Customer made a purchase order. In all other cases, EWF will obtain the Buyer’s written approval prior to making any changes to Product specification.
6. Cancellation
If Buyer cancels or suspends its order for any reason other than EWF’s breach, Buyer shall promptly pay EWF for work performed prior to cancellation or suspension and any other direct cost incurred by EWF as a result of such cancellation or suspension.
7. Warranty
EWF warrants to Buyer that the Product shall materially conform to the description in EWF’s Documentation and shall be free from defects in material and workmanship. If Buyer gives EWF prompt written notice of breach of this warranty within 3 months from delivery (the Warranty Period), EWF shall, at its sole option and as Buyer’s remedy, repair or replace the defective Product or refund the purchase price. If EWF determines that any claimed breach is not, in fact, covered by this warranty, Buyer shall pay EWF its then customary charges for any repair or replacement made by EWF. EWF’s warranty is conditional on (i) the defective Product being supplied by EWF under the EWF Documentation, (ii) Buyer has used the defective Product strictly in accordance with EWF’s instructions, (iii) any defective Product has not been modified, altered or repaired except by EWF, and (iv) the Product is not defective due to (a) fair wear and tear or (b) improper use or handling of the Product by Buyer. EWF’s warranty does not cover damage caused by chemical action or abrasive material, misuse or improper installation (unless installed by EWF).
8. Ownership of materials
All devices, designs (including drawings, plans and specifications), estimates, prices, notes, electronic data and other documents or information prepared or disclosed by EWF and all related intellectual property rights, shall remain EWF’s property. EWF grants Buyer a non-exclusive, non-transferable licence to use any such material solely for Buyer’s use of the Product or Service. Buyer shall not disclose any such material to third parties without EWF’s prior written consent.
9. Force majeure
Under no circumstances shall either EWF or Buyer have any liability for any breach (except for breach of payment obligations) caused by extreme weather or other act of God, strike or other labour shortage or disturbance, fire, accident, war or civil disturbance, delay of carriers, failure of normal sources of supply, act of government or any other cause beyond such party’s reasonable control.
10. Limitation of liability
Notwithstanding anything else to the contrary, EWF shall not be liable for any consequential or other indirect damages (whether for loss of profit or otherwise), cost, expenses or other claims for compensation. Except in respect of death or personal injury caused by EWF’s negligence, EWF’s total liability arising at any time from the sale or use of the product shall not exceed the purchase price paid for the product. These limitations apply whether the liability is based on contract, tort, strict liability or any other contract term.
11. Set-off
The Buyer may not seek to effect or effect any set-off against any liabilities due by EWF to the Buyer against any liabilities due or which may fall due by the Buyer to EWF, and vice versa.
12. Confidentiality
If EWF discloses to Buyer any research, development, technical, economic, or other business information or “know-how” which is personal to EWF or is not common knowledge among competitors to whom it may be useful and which may give EWF an advantage over its existing and prospective competitors, whether reduced to writing or not, the Buyer will not use or disclose any such information to any other person or company at any time, without EWF’s prior written consent. In the event that the Buyer and EWF have entered into a separate Confidentiality Agreement, the terms and conditions of such agreement shall take precedence over the terms of this paragraph.
13. Miscellaneous
These terms, together with any quotation, purchase order or acknowledgement issued or signed by EWF, comprise the complete and exclusive statement of the agreement between the parties (“Agreement”) and supersede any terms contained in Buyer’s documents, unless separately signed by EWF. No part of these terms and conditions may be changed or cancelled except by a written document signed by EWF and Buyer. No course of dealing or performance, usage of trade or failure to enforce any term shall be used to modify these terms and conditions. If any of these terms are unenforceable, such term shall be limited only to the extent necessary to make it enforceable, and all other terms shall remain in full force and effect. These terms and conditions and the contract between EWF and the Buyer shall be governed by the laws of Queensland and any dispute that cannot be settled shall be settled under the Rules of the Australian Commercial Disputes Centre.