Terms and Conditions of Supply
Introduction
eWater Systems Pty Ltd (ACN 121 152 636) (eWater) agrees to sell to the Customer, and the Customer agrees to purchase the eWater System and/or Consumables from eWater in accordance with these terms and conditions (Agreement).
This Agreement applies to all orders placed by the Customer with eWater for the purchase of eWater Systems and Consumables. No terms or conditions set out in any invoice or purchase order (or similar), issued by the Customer, will override this Agreement or any Sales Order. In the event of any inconsistency between this Agreement and any Sales Order, the Sale Order shall take precedence.
Placement of orders
The Customer shall pay the Price for the eWater System and/or Consumables in Australian Dollars and in accordance with the Sales Order. Payment shall be made by electronic funds transfer or other method nominated by eWater in writing.
In addition to the Price paid for the eWater System and/or Consumables, the Customer agrees to pay:
(a) GST and any other taxes and government charges, levies or fines in relation to the purchase of the eWater System and/or Consumables;
(b) the cost to re-deliver the eWater System and/or Consumables to the Customer (including packaging costs, storage fees and transport insurance) because the Customer was not available to accept delivery of the eWater System and/or Consumables; and
(c) the Cancellation Fee.
Price
The Customer must pay for the eWater System in advance either in one lump sum payment or in two equal instalments as follows:
(a) 50% of the Price is immediately due on receipt of eWater’s Sales Order to the Customer’s nominated email address (Deposit); and
(b) 50% of the Price is due before the eWater System is due to be delivered to the Customer.
Unless eWater otherwise agrees in writing, the Customer must pay the Price for the Consumables in full before delivery.
If the Customer requires onsite training or commissioning and installation support, the Customer will be separately invoiced for these services, and such fees will be payable in full before onsite training and/or commissioning and installation support is provided.
eWater obligations
Subject to the Customer complying with its obligations under this Agreement, eWater shall:
(a) Supply the eWater System and/or Consumables in accordance with this Agreement;
(b) provide online training in relation to the use of the eWater System (). To request access to the online or onsite training, please contact eWater by email at service@ewatersystems.com or by telephone (1300 EWATER (392 837)). If the Customer requires onsite training in relation to the use of the eWater System, additional fees will apply at our prevailing rates at the time. To request onsite training, the Customer must provide eWater with at least 14 days’ written notice.
eWater shall provide the Customer with materials or resources (via digital links, videos or email) to assist the Customer to commission and install the eWater System at the Customer’s Delivery Address. To request onsite commission and installation services, please contact eWater by email at service@ewatersystems.com.
If the Customer requires ‘Builder hand-over’, additional fees will apply at our prevailing rates at the time.
In the event eWater fails to comply with clauses 5.1 and 5.2, eWater will use reasonable endeavours to correct any such non-performance or provide you with an alternative means of accomplishing the desired performance. To the fullest extent permitted by law, the foregoing constitutes your sole and exclusive remedy for any breaches of clauses 5.1 and 5.2.
Delivery
If eWater provide you with an estimated delivery date, such delivery times are estimates only and are not binding on eWater.
The time for delivery of the eWater System and/or Consumables shall not be regarded as being of the essence and are at all times subject to availability of the eWater System and/or Consumables. If the delivery of the eWater System and/or Consumables is delayed for any reason (including the unavailability of the eWater System and/or Consumables), eWater:
(a) shall use reasonable endeavours to promptly notify the Customer of any delays in delivering the eWater System and/or Consumables; and
(b) will not be liable to the Customer for any costs, losses or damages caused by any delays in delivery.
eWater will deliver all eWater Systems and/or Consumables purchased by the Customer to the Delivery Address or such other location as agreed by the parties in writing from time to time.
If eWater agrees in writing to deliver the eWater System and/or Consumables to the Delivery Address, eWater shall use reasonable endeavours to effect delivery of the eWater System and/or Consumables to the Delivery Address and by the date and time specified in advance by eWater. eWater will not deliver the eWater System and/or Consumables to a post box or post restante. All associated costs (including the costs incurred by eWater effecting transport insurance on behalf of the Customer) are payable by the Customer, and delivery will be at the Customer’s risk.
If eWater is unable to effect delivery of the eWater System and/or Consumables to the Delivery Address for any reasons (including the failure on the Customer‘s part to take delivery within a reasonable time), eWater will, at its absolute discretion, be entitled to charge the Customer additional fees at the prevailing rate to re-effect delivery of the eWater System and/or Consumables, and eWater will not liable to the Customer or anyone else for any costs, losses or damages caused to the Customer (or anyone else) by any delays or failure to effect delivery.
The Customer will ensure that any person who collects or takes delivery of the eWater System and/or Consumables on behalf of the Customer is authorised by the Customer to do so. The Customer shall procure that its duly authorised representative shall be present at delivery or the collection of the eWater System and/or Consumables. Acceptance of delivery by such representative shall constitute conclusive evidence that Customer has examined the eWater System and/or Consumables and found it to be in good condition, complete in every way for purpose for which it is intended, and in quantities ordered by the Customer. If required, the duly authorised representative shall sign a receipt confirming acceptance.
eWater may, at its absolute discretion, withhold delivery of the eWater System and Consumables if:
(a) an Insolvency Event occurs in respect of the Customer; or
(b) the terms of payment for the eWater System and Consumables have not been strictly adhered to by the Customer.
Restrictions
The Customer must not do (nor attempt to do) any of the following:
(a) access all or any part of the eWater System or copy, modify, duplicate all or any part of the eWater System and/or Documentation (in any form or media or by any means in order) in order to build a product, service or code which competes with the eWater System;
(b) violate eWater’s or the manufacturer’s intellectual property rights;
(c) modify, alter, adapt, reverse compile, disassemble or reverse engineer all or any part of the eWater System in any way; and
(d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the eWater System and/or Documentation available to any third party.
Defective eWater System
When the eWater System and/or Consumables are delivered to the Customer on the Delivery Date, the Customer must promptly check the eWater System and Consumables for any defects. The Customer must immediately (but no later than one Business Day after receiving the eWater System and/or Consumables) give eWater written notice of these defects.
Subject to clause 8.3, if eWater is defective, the Customer will return the defective eWater System and/or Consumables to eWater for exchange with a replacement eWater System and/or Consumables and eWater shall pay the reasonable cost to replace the defective eWater System and Consumables.
To the maximum extent permitted by law, eWater will not exchange or replace a defective eWater System and/or Consumables:
(a) which have been lost, stolen or damaged while in the possession, custody or control of the Customer or otherwise as a result of an act or omission by anyone other than eWater;
(b) which have been tampered with, defaced or misused by the Customer or any other person;
(c) which have been installed, interoperated or intermingled with third party materials, goods or services;
(d) which have been modified, altered or repaired by any party other than eWater or third party service providers authorised by eWater;
(e) which have not been correctly stored or used under normal conditions, including as specified by eWater; or
(f) if the Customer failed to provide eWater with written notice in accordance with clause 8.1.
To the maximum extent permitted by law, clause 8.2 is the sole and exclusive remedy of the Customer in relation to the delivery of defective eWater Systems and/or Consumables.
Risk and title
Risk of loss, theft, damage or destruction of the eWater System and Consumable passes to the Customer as soon as the eWater System and/or Consumables are collected by a freight forwarder, transport or delivery service provider from eWater’s warehouse for delivery to the Customer.
Title to, and in, the eWater System and Consumables will not pass to the Customer until payment in full for the eWater System and Consumables (and any other amounts owing by the Customer to eWater under this Agreement) is received by eWater in cleared funds.
eWater shall be entitled at any time until title in, and to, the eWater System and Consumables passes to Customer in full, to demand return of the eWater System and Consumables and it shall be entitled without notice to the Customer and without liability to the Customer to enter any premises occupied by the Customer in order to search for and remove the eWater System and Consumables.
Exclusion of warranties and liability
Subject to clause 10.5:
(a) eWater warrants that during the Warranty Period the eWater System will perform in accordance with the Document; and
(b) during the Warranty Period, eWater shall, at its own cost, repair the eWater System or replace the eWater System (or any parts or components thereof) if the eWater System is defective or faulty (Product Warranty).
The Product Warranty:
(a) expires at the end of the Warranty Period; and
(b) does not apply if the Customer fails to notify eWater of a fault or defect during the Warranty Period.
The, Consumables and the Documentation are provided to the Customer on ‘as is’ basis.
It is the Customer’s responsibility to satisfy itself as to the suitability, condition, safety and fitness for purpose of the eWater System and Consumables without relying upon the skills or judgment of eWater. To the maximum extent permitted by law and except during the Warranty Period, eWater makes no warranty that the eWater System and Consumables requested by the Customer meets the needs of the Customer’s business, are suitable for the purpose for which they are used or defect or error free.
The Product Warranty does not apply and eWater will not be liable to the Customer or anyone else where the eWater System and Consumables:
(a) have not been maintained, cleaned and used strictly in accordance with the Documentation;
(b) the suitability of the eWater System and Consumables for any particular purpose or use under specific conditions which were not made known or communicated to eWater;
(c) have been altered, repaired or modified by anyone other than eWater or third party service provider authorised by eWater;
(d) are damaged, faulty or not working as a result of external electrical power or water supply failures, onsite plumbing or external drain line malfunction;
(e) have been subjected to unusual or non-recommended use, misuse, neglect, accident, damage in transit, abuse or unusual or natural hazard;
(f) have been installed improperly; or
(g) have been interoperated with third party materials, goods or services.
To the extent that the Customer acquires goods or services from eWater as a consumer within the meaning of the Australian Consumer Law, the Customer may have certain rights and remedies (including, without limitation, consumer guarantee rights) that cannot be excluded, restricted or modified by this Agreement.
Nothing in this clause 10 operates to exclude, restrict or modify the application of any condition, warranty or provision implied by law, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law or any other statute where to do so would:
(a) contravene that statute; or
(b) cause any term of this Agreement to be void,
(Non-excludable Obligation).
Except in relation to Non-excludable Obligations and to the maximum extent permitted by law:
(c) all representations, conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied or imposed by custom, under the general law or by statute are expressly excluded under this Agreement;
(d) eWater will not be liable to the Customer or any third party for:
(i) direct, indirect, consequential, incidental, special or exemplary damages, expenses, losses or liabilities; or
(ii) loss of profits, business interruption, loss of revenue, economic loss, loss of goodwill, loss of or damage to reputation, downtime costs, loss of use, failure to realise anticipated savings, loss under or in relation to any other contract, loss of opportunity or expectation loss or loss of production; or
(iii) loss of, or damage to, any property or any personal injury or death to the Customer or any third person, arising out of, relating to or connected to the provision, delivery, installation, commissioning, training or use of the eWater System, Consumables, the Documentation and this Agreement, regardless of the cause of action on which they are based, even if advised of the possibility of such damage occurring; and
Notwithstanding anything else, eWater’s total aggregate liability arising out of, relating to or connected to the provision, installation, delivery, training, commissioning or use of the eWater System, Consumables, the Documentation and this Agreement (and whether arising under any statute, in tort (for negligence or otherwise), or on any other basis in law or equity), is limited to the amounts paid by the Customer to eWater under this Agreement in the preceding one month from the date of the claim.
The Customer agrees to defend, indemnify and hold eWater, its Affiliates and its Personnel (collectively, the Indemnified) harmless from and against any and all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be brought against the Indemnified or which the Indemnified may pay, sustain or incur as a direct or indirect result of or arising out of any:
(a) loss of or damage to any property belonging to the Customer or any third party, or any personal injury or death arising out of or in connection with this Agreement; or
(b) breach or non-performance by the Customer or its Personnel of any its obligations under this Agreement.
Suspension and termination
This Agreement commences on the date specified on the Sales Order and continues unless terminated pursuant to its terms.
Without prejudice to any of its other rights, powers or remedies eWater may suspend or cancel any Sales Order for the delivery of eWater System and/or Consumables, and may terminate this Agreement immediately by notice in writing, if:
(a) the terms of payment for any eWater System and/or Consumables by eWater have not been strictly adhered to by the Customer;
(b) the Customer breaches any of its obligations under this Agreement; or
(c) an Insolvency Event occurs in respect of the Customer.
On termination of this Agreement, without prejudice to other rights or remedies, the Customer shall pay to eWater on demand:
(a) all outstanding invoices and other amounts due under this Agreement (including any interest); and
(b) any costs and expenses (including legal costs) incurred by eWater in collecting any sums due under or arising out of this Agreement.
Termination of the Agreement is without prejudice to the rights of eWater accruing up to the date of termination.
Force Majeure
eWater will have no liability to the Customer or to anyone else under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond control including, but not limited to, acts of God, failure of a utility service or transport or telecommunications network, riots, civil commotion, computer hacking, war, acts of terrorism, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or earthquake, epidemic, pandemic, mandatory government shut-down or lockdown, any disaster or adverse weather, governmental actions, default or non-performance of hosting or data centre providers or other suppliers or sub-contractors, labour disputes, or any other failure, act or omission in eWater’s supply chain.
Notices
All notices given by eWater may be given by email to the address specified in the Purchase Order. It is the Customer’s obligation to keep that email address current and correct. The Customer agrees that the record of eWater having sent a notice to it by email is, of itself, conclusive proof of receipt.
Notices given by the Customer must be delivered to eWater writing and addressed to: service@ewatersystems.com.
General
A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
This Agreement, the Sales Order and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
Neither party shall, without the prior written consent of the other party (which will not be unreasonably withheld), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement, except that eWater may assign, sell or transfer its rights or obligations under this Agreement to an Affiliate or bona fide third party purchaser of eWater’s business.
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way.
The laws of the State of Victoria, Australia govern this agreement. You agree to submit to the exclusive jurisdiction of the Courts of Victoria.
Definitions
In this Agreement the following definitions apply:
(a) Affiliate means in relation to any party, a person which, directly or indirectly, (i) is Controlled by that party; or (ii) Controls that party; or (iii) is Controlled by a person referred to in (ii) above, and for this purpose Control means the power of a person to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership agreement or other document regulating such person) that the affairs of another are conducted in accordance with its wishes;
(b) Business Days means each day excluding Saturdays, Sundays and public holidays in Victoria;
(c) Customer means the person or entity listed in the Sales Order and includes anyone acting on the Customer’s behalf or with the Customer’s express or implied authority;
(d) Consumables means consumable products or stock used in connection with eWater System, including, but not limited to, spray bottles, testing kits and electrolyser salts, available to purchased from the Website;
(e) Deposit has the meaning in clause 4.1(a);
(f) Delivery Address means the delivery address for the eWater System and Consumables as nominated by the Customer in writing;
(g) Documentation means the documents made available to the Customer by eWater which sets out the description of the eWater System, operating instructions, manuals and warnings for the eWater System, including, but not limited to, specifications and performances statements;
(h) eWater has the meaning in clause 1.1;
(i) eWater System means onsite generating cleaning and sanitising solution systems which uses water electrolysis technology;
(j) Insolvency Event means a liquidation or winding up, the appointment of a controller, administrator, receiver, manager or similar insolvency administrator to a party or any substantial part of its assets or any event that has a substantially similar effect to the above events;
(k) Personnel means officers, directors, employers, contractors or agents of party;
(l) Price means the fees and charges payable by the Customer to eWater to purchase the eWater System and/or Consumables;
(m) Sales Order has the meaning in clause 2.2, and includes the invoice for payment. The invoice shall contain details of the eWater System and/or the Consumables and the corresponding Price to purchase the eWater System and/or Consumables; together with the Customer’s contact details and Deliver Address;
(n) Warranty Period means 12 months from the date the eWater System is delivered to the Delivery Address; and
(o) Website means eWater’s website located at www.ewatersystems.com or other website notified in writing by eWater from time to time.