- 1.1 This document sets out the Terms and Conditions of Trade (“Terms”) between:
- 1.1.1 The Liquitech Group of Companies (“Liquitech”) which includes:
- (a) Liquitech(Qld) Pty Ltd ABN 19 081 412 508
- (b) Trading as Liquitech Pump & Power Equipment
- (c) Trading as Liquitech Equine
- (d) Trading as Liquitech Joint Health
- (e) Any other subsidiary of Liquitech(Qld) Pty Ltd
- 1.1.2 Any person or corporation (“customer”) acquiring goods and services from Liquitech.
- 2.1 Any instruction received by Liquitech from the customer for the supply of goods/ and/or the customer’s acceptance of services and/or goods supplied by Liquitech shall constitute acceptance of the terms and condition contained herein.
- 2.2 Upon acceptance of these terms and conditions by the customer the terms and conditions are irrevocable and can only be rescinded in accordance with the terms and conditions or with the written consent of the Director of Liquitech.
- 2.3 None of Liquitech’s agents or representatives is authorized to make any
representations, statements, conditions or agreements not expressed by the management of Liquitech in writing nor are Liquitech bound by any such unauthorized statements.
- 2.4 The customer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to them by any servant or agent of Liquitech and the Customer acknowledges that he/she buys the Goods relying solely upon their own skill and judgment.
3. Description of Goods
- 3.1 In their Terms and unless the context otherwise indicates the term “goods” means those goods which the Customer requests Liquitech to Supply
- 3.2 The Goods, the subject of this contract, shall be those Goods (including any product, stock or other items supplied by Liquitech) described in Liquitech’s written quotation or, in the absence of written quotation, on Liquitech’s delivery slip or invoice. If the description on these documents differs from the description on any order form provided by the customers, the description on the Liquitech document
- 3.3 Specifications of Goods given in any brochures, letters, price lists, data sheets, or other documents of Liquitech or supplied by Liquitech are given to identify the Goods generally and do not form part of the description of the Goods.
- 4.1 Orders may be placed by the Customer by telephone, or in writing by facsimile or letter, or via electronic means.
- 4.2 Liquitech reserves the right to insist upon written confirmation of any order placed by the customer.
- 4.3 The customer must order the minimum shipping quantity shown on the price list current at the order date or in a multiple of the quantity. Liquitech has the right to supply a quantity equal to the nearest or lower multiple.
- 4.4 Liquitech has no obligation to accept an order for Goods placed by the Customer by one of the methods in clause 4.1 above. Supply of the Goods ordered by the Customer by Liquitech constitutes acceptance of the order.
- 4.5 Liquitech shall make every reasonable endeavour to satisfy the Customer’s order in accordance with the Customer’s requirements. The Customer acknowledges and agrees that Liquitech does not warrant or represent the availability of further or larger quantities of the Goods.
5. Delivery and Freight
- 5.1 Liquitech will use all reasonable efforts to deliver Goods and accept orders, to the address specified on the delivery slip, on or before any estimates date, but Liquitech does not represent or warrant that it will do so.
- 5.2 Liquitech shall under no circumstances be held liable whether for direct, indirect or consequential loss or damage arising by reason of any delay in delivery of the Goods or any failure to deliver the Goods ordered by the Customer for whatever reason
- 5.3 Liquitech will arrange transportation of the Goods to the customer at its own cost, unless the Customer is advised prior to delivery that the Customer is required to pay for the delivery. Any additional freight costs arising due to the unavailability of the Customer to accept delivery shall be borne by the customer.
- 5.4 Liquitech may however in its absolute discretion, allow the Customer to arrange transport of the Goods. If the Customer arranges its own transport of the Goods,Liquitech may invoice the Customer for any differential in freight cost, between the actual freight cost, and that which Liquitech would have incurred.
- 5.5 On delivery of the Goods, the customer shall check the quantity, quality and description of the Goods delivered against the description on the delivery slip(s), and shall give written notice to Liquitech of any alleged deficiency or irregularity in quantity, quality or description within 48 hours from the time of delivery.Should such notice not be given within that time, the Goods actually delivered shall be deemed to be in accordance with the delivery slip and free from any defect or damage and the customer shall not thereafter make any such claim or take any action in relation to any alleged deficiency or irregularity.
- 5.6 Delivery of the Goods to a carrier either named by the Customer or, failing such naming to a carrier at the discretion of Liquitech for the purpose of transmission to the Customer, is deemed to be a delivery of the Goods to the Customer.
- 5.7 Liquitech may deliver the Goods by separate installments (in accordance with the agreed delivery schedule). Each separate installment shall be invoiced and paid for in accordance with the provision in this contract of sale.
- 5.8 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purpose of this agreement.
- 5.9 The failure of Liquitech to deliver shall not entitle either party to treat this contract as repudiated.
- 6.1 Liquitech will invoice the Customer for the Goods at the price shown on the price list or quotation which is current at the date of the invoice.
- 6.2 Any special prices will apply to specific Goods only for as long as the goods last or the duration of the newsletter or flyer in which they are advertised.
- 6.3 Liquitech shall not be bound by any typographical errors that may occur with price advertised in the current price list, newsletter, invoice, statements or any other document published by Liquitech.
- 6.4 The price shall be increased by the amount of any GST and other taxes and
duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by Liquitech.
- 7.1 The customer may pay invoices by cash on delivery, credit card, cheque or direct entry into the Liquitech bank account. The due date for payment will be shown on all invoices and statements and will differ depending on the payment method used.
- 7.2 At Liquitech’s sole discretion, payment by credit card for approved customer’s shall be due on the 6th. of each month following posting of a statement to the Customer’s address or address for notices.
- 7.3 At Liquitech’s sole discretion, payment by cheque and direct debit for approved customers shall be done by the end of each month following the posting of a statement to the Customers address or address for notice.
- 7.4 Any customer operating a cash only account(COA) as a business, a private
person or individual is required to pay for the goods at the time of ordering. Operating a COA does not entitle the customer to convert automatically to a normal trading account – normal conditions of the trading account, such as trade references, are required to be met before opening a normal trading account regardless of size or turnover of a COA. Where turnover is expected to be less that $1,000 per month no trading account will be made available and the Customer will be required to purchase goods using a COA.
- 7.5 Non-receipt of an invoice does not constitute a reason for late payment. It is the Customer’s responsibility to ensure that goods ordered are paid for within the required time.
- 7.6 Should the Customer fail to pay in full the amount owing to Liquitech within the period provided for in clause 7.1, Liquitech may without prejudice to its other rights either:
- 7.6.1 Require payment in advance for any further deliveries, whether of existing orders or any orders places by the Customer in the future; or
- 7.6.2 Terminate any contract forthwith by written notice to the Customer
- 7.7 Liquitech may at its absolute discretion enter into a payment arrangement with the customer for any overdue amounts. The arrangement must be in writing, signed by the customer and an authorized Liquitech employee and must not exceed a period of six months. Liquitech reserves the right to vary this limit at its absolute discretion.
- 7.8 Any payment to Liquitech by the Customer which is not specifically allocated by the Customer will credited first against interest changed and then against amounts owing to Goods supplied with oldest balances being discharged first.
- 7.9 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 1.5% per calendar month and shall accrue at such a rate after as well as before any judgment
- 7.10 If the Customer defaults in payment of any invoice when due, the customer shall indemnify Liquitech from and against all Liquitech’s costs and disbursements including on a solicitor and own client basis and in addition all external collection agency costs.
- 7.11 Without prejudice to any other remedies Liquitech may have, if at any time the Customer is in breach of any obligation (including those relating to payment), Liquitech may suspend or terminate the supply of Goods to the customer and any of its other obligations under the terms and conditions. Liquitech will not be liable to the Customer for any loss or damage the customer suffers because Liquitech exercised its rights under this clause.
- 7.12 In the event that:
- 7.12.1 Any money payable to Liquitech becomes overdue, or in Liquitech’s opinion the customer will be unable to meet its payment as they fall due; or
- 7.12.2 The Customer becomes insolvent, convenes a meeting with its creditor or proposes to enter into an arrangement with creditors, or makes an assignment for the benefit of its creditor; or
- 7.12.3 A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer then:
- (a) Liquitech 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; and
- (b) All amounts owing to Liquitech shall, whether or not due for payment, immediately become payable.
8. Risk and Title
- 8.1 Ownership of the Goods shall remain with Liquitech and Liquitech reserves the right to dispose of the Goods until such time as payment in full is made for all amounts owing by the Customer to Liquitech so that the Customer’s total indebtedness to Liquitech under these terms is discharged
- 8.2 If the Customer defaults under these terms Liquitech may without prejudice to any of it’s other rights and remedies require the return at the expense of the Customer of all goods not paid for and, in default of compliance, Liquitech is hereby irrevocably authorized by the Customer to enter its premises or premises controlled by the Customer and use reasonable force to take possession of the Goods without liability for the torts of trespass, negligence or payment of any compensation to the Customer whatsoever.
- 8.3 The Customer acknowledges that until its total indebtedness under these terms and conditions of sale is discharged, it holds the Goods as bailee of Liquitech and that a fiduciary relationship exists between the Customer and Liquitech.
- 8.4 The customer may pay Liquitech the proceeds of sale of any Goods for which Liquitech has not yet received payment, and the Customer must pay those proceeds of sale into a separate bank account and hold them on trust for Liquitech until they are paid to Liquitech.
- 8.5 The risk in the Goods purchased will, unless otherwise agreed by Liquitech in writing, pass to the Customer upon delivery to the Customer or his agent or to a carrier commissioned by the Customer.
- 8.6 If any of the Goods are damaged or destroyed prior to property in them passing to the Customer, Liquitech is entitled, without prejudice to any of its other right or remedies under these terms and conditions of trade (including the right to receive payment of the balance of the Price of the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under the Contract. The production of these terms and conditions by Liquitech is sufficient evidence of Liquitech’s rights to receive the insurance proceeds without the need for any person dealing with Liquitech to make further enquires.
- 8.7 It is further agreed that:
- 8.7.1 The Customer shall not deal with the money of Liquitech in anyway which may be adverse to Liquitech.
- 8.7.2 Receipt by Liquitech of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honored or cleared and until then Liquitech’s ownership of rights in respect of the Goods shall continue.
- 8.7.3 The customer shall not change the goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Liquitech.
- 8.7.4 Liquitech can issue proceedings to recover the Price of the goods sold notwithstanding the ownership of the Goods may not have passed the Customer.
9. Credits and Returns of Goods
- 9.1 All Goods are sold on the basis of “no return for credit” unless:
- 9.1.1 Subject to clause 8.5, the goods are received in a damaged state;
- 9.1.2 The goods are supplied in the incorrect quantity;
- 9.1.3 Incorrect Goods are received by the Customer; or
- 9.1.4 The Goods are faulty
- 9.2 Other specific circumstances for the return of Goods for credit may be approved by Liquitech in its absolute discretion.
- 9.3 Claims for credit must be made within seven (7) days of receipt of the Goods and a copy of the invoice from which the Goods were supplied must be presented, failing which any such claims are deemed to be waived.
- 9.4 Goods that have passed their expiry date will only be accepted for credit where the manufacturer of that particular product gives credit for expired stock.
- 9.5 Any return of Goods by the customer must be to Liquitech using the procedures determined by Liquitech. The customer will be advised of such procedures by Liquitech when Liquitech agrees to the return of the Goods for credit.
- 9.6 All Goods that carry a warranty or guarantee of the manufacturer shall be
credited or exchanged only when so agreed by the manufacturer
- 9.7 Liquitech will not be liable for Goods which have not been stored or used in a proper manner.
- 9.8 The Goods must be 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.
- 10.1 Subject to the conditions of warranty set out in Clause 10.2 Liquitech warrants that if any defect in any workmanship manufactured by Liquitech becomes apparent and it is reported to Liquitech within six (6) months of date of delivery (time being of the essence), then Liquitech will (at Liquitech’s sole discretion) repair the defect or replace the workmanship.
- 10.2 The conditions applicable to the warranty given by Clause 10.1 are:
- 10.2.1 The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
- (a) Failure on the part of the Customer to properly maintain any Goods; or
- (b) Failure on the part of the Customer to follow an instructions or guidelines provided by Liquitech; or
- (c) Any use of any Goods otherwise than for any application specified on a quote or order form; or
- (d) The continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonable prudent operator or user; or
- (e) Fair wear and tear, any accident or act of God.
- 10.2.2 The warranty shall cease and Liquitech shall thereafter in no circumstance be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Liquitech’s consent.
- 10.2.3 In respect of all claims Liquitech shall not be liable to compensate the Customer for any delay in either replacing or repairing theworkmanship/Goods or in properly assessing the Customer’s claim
- 10.3 For Goods not manufactured by Liquitech the warranty shall be the current warranty provided by the manufacturer of the Goods. Liquitech shall be under no liability whatsoever except for the express conditions as detailed and stipulated in the manufacturer’s warranty.
- 10.4 In the case of second hand Goods the Customer acknowledges that he/she has had full opportunity to inspect the same and that he/she accepts the same with all faults and that no warranty is given by Liquitech as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. Liquitech shall not be responsible for any loss or damage to the Goods,or caused by the Goods, or any part thereof however arising.
11. Export Policy
- 11.1 All Goods sold or supplied under these terms are packed and labeled in accordance with Australian regulatory requirements.
- 11.2 All export orders must be paid for prior to the Goods being shipped.
- 11.3 In the event that the Goods are exported, delivery of the Goods may be subject to either FOB Contract or CIF Contract.
- 11.4 In the event of a FOB Contact the following shall apply:
- 11.4.1 The Goods shall be delivered to the Customer by delivery on board the agreed upon mode of transport on the delivery date.Liquitech shall promptly notify the Customer that the Goods have been delivered. Title to and risk in the Goods shall pass to the Customer upon such delivery being affected. Liquitech shall promptly provide the Customer with a clean shipped bill of loading in respect of the Goods.
- 11.4.2 The Customer shall reserve the necessary space on board the agreed upon mode of transport and give Liquitech due notice of the loading berth and any revised delivery dates. The Customer shall bear any additional costs caused due to the failure of the agreed upon mode of transport to be available to load the Goods on the delivery date.
- 11.5 In the event of a CIF Contact the following shall apply:
- 11.5.1 The Goods shall be delivered to the customer by delivery on board the agreed upon mode of transport on or before the delivery date. Liquitech shall procure a contract of carriage and insure the Goods from dispatch until delivery on terms current in the trade for the benefit of the Customer. The Goods shall be at the risk of the Customer as they are loaded on board. Liquitech shall promptly tender to the Customer a clean shipped bill loading, the insurance policy and an invoice in respect of the Goods.
- 11.5.2 The Customer shall accept the documents tendered by Liquitech if they correspond to this contract and take delivery of the Goods at the port of destination and bear all other costs and charges arising out of shipment of the Goods to the port of destination.
- 12.1 All quotations, invoices, statements or other documents issued by Liquitech to the Customer are in Australian currency unless otherwise expressly stated.
- 12.2 All payments by the Customer to Liquitech must be made in Australian currency unless otherwise specifically agreed.
13. Intellectual Property
- 13.1 Where Liquitech has designed or drawn Goods for the Customer, then the copyright in those designs and drawings shall remain vested in Liquitech, and shall only be used by the Customer at Liquitech’s discretion
- 13.2 Conversely, in such a situation, where the Customer has supplied drawings,Liquitech in its sales conditions may look for an indemnity (the specifications and design of the Goods, including the copyright, design right or other intellectual property in them, shall as between the parties be the property of Liquitech).Where any design or specifications have been supplied by the Customer for manufacturer by or to the order of Liquitech then the Customer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party.
14. Governing Laws
- 14.1 These Terms shall be construed and the rights and obligations of the Customer and Liquitech determined according to the law in force in the State of the Liquitech office at which the order was placed and the Customer and Liquitech submit to the non-exclusive jurisdiction of the Courts of the State
- 14.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
- 15.1 Any clause headings contained herein are for convenience only and shall not affect the construction of these Terms.
- 15.2 If any of the provisions of these Terms are for any reason held by a court of competent jurisdiction to be unlawful or invalid under any application statute or rule of law, then that provision or part of a provision shall be deemed to be severable and omitted from these Terms and the validity and enforceability of the remainder of these Terms shall be in no way affected.
16. Incorporation in other dealings
- 16.1 Subject to any express contrary agreement in writing signed by Liquitech, these Terms shall, so far as is applicable and making all changes necessary having regard to the context be incorporated in any contract arising from future orders placed by the Customer with Liquitech.
17. Amendment and Entire Agreement
- 17.1 No variation, modification or alteration of any of these Terms shall be of any effect unless agreed to in writing and signed by Liquitech.
- 17.2 Subject to any such written variation, modification or alteration, these are the whole of the Terms applicable to all contrary which may appear on any documents issued by the Customer.
- 17.3 Subject to the provisions of the Trade Practices Act, Liquitech and the Customer expressly agree that all conditions and warranties implied or otherwise incorporated in contracts by statute, common law, equity, custom or usage or otherwise shall not apply and, to the maximum extent permitted by law, are excluded.
18. Claims, Limit of Liability
- 18.1 Paragraph 17.3 does not apply where the Customer is a consumer within the meaning of the Trade Practices Act 1974. Without derogating from any other term or condition in the agreement.
- 18.1.1 The Customer shall inspect the Goods immediately upon their delivery in accordance with clause 5.5. The Goods are deemed to be accepted by the Customer unless the Customer gives notice to Liquitech of any alleged defects in the goods, unfitness for the particular purpose for which they were supplied (if any),unmerchantable quality, or failure to meet specifications within 48 hours of delivery of goods.
- 18.1.2 In default of such notice, the goods shall be deemed to be suitable for the purpose for which they were supplied, of merchantable quality, in accordance with specifications, and otherwise free of any defect and Liquitech shall not recognize any claim in any of these regards
- 18.2 The liability of Liquitech, if any, for faulty workmanship, unsuitability,unmerchantable quality, failure to meet specifications, loss or damage in transit or whatever shall (expect in the case where the Goods are of a kind that might ordinarily be acquired for personal, domestic or household use or consumption) be limited to:
- 18.2.1 Replacement of the Goods or supply of equivalent Goods;
- 18.2.2 Repair of the Goods;
- 18.2.3 Payment to the Customer of the cost of replacing the Goods or of acquiring equivalent Goods.
- 18.2.4 Payment of the Customer of the cost of having the Goods repaired (if applicable)
- 18.3 Without derogating from the generality of the foregoing, Liquitech shall not be liable for any consequential loss. The customer shall notify Liquitech immediately upon the Customer, its employees or agents becoming aware of any alleged fault or defect in the Goods, unsuitability or unfitness for the proposed use of the Goods,failure to comply with or to meet specifications, loss or damage in transit, or any other alleged cause of action in relation to the Goods arising out of the delivery or failure to deliver the Goods, and shall bring any action and/or commence any proceedings in relation thereto within six (6) months of the date of delivery of the Goods or the date that the Goods ought to have been delivered and not thereafter.
19. Security and Charge
- 19.1 Notwithstanding anything to the contrary contained herein or other rights which Liquitech may have howsoever;
- 19.1.1 Where the Customer and/or the Guarantor (if any) is the owner of the land, reality or 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 Liquitech or Liquitech’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Customer and/or the Guarantor acknowledge and agree that Liquitech (or Liquitech’s nominee) shall be entitled to lodge, where appropriate, a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
- 19.1.2 Should Liquitech elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify Liquitech from and against all Liquitech’s costs and disbursements, including legal costs on a solicitor and own client basis.
- 20.1 Liquitech may cancel these terms and conditions or cancel delivery of Goods at anytime before the Goods are delivered by giving written notice. Liquitech shall not be liable for any loss or damage whatsoever arising from such cancellations.
21. Privacy Act
- 21.1 The Customer and/or the Guarantor/s agree for Liquitech to obtain from a creditreporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by Liquitech.
- 21.2 The Customer and/or the Guarantor/s agree that Liquitech may exchange information about Customer and Guarantor/s with those credit providers named in the application for Credit Account or named in a consumer credit report issued by a reporting agency for the following purposes:
- 21.2.1 To assess an application by Customer
- 21.2.2 To notify other credit providers of a default by the Customer;
- 21.2.3 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
- 21.2.4 To assess the credit worthiness of customer and or Guarantor/s
- 21.3 The Customer consents to Liquitech being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)PrivacyAct 1988).
- 21.4 The Customer agrees that Personal Data provided may be used and retained by Liquitech for the following purposes and for other purposes as shall be agreed between the Customer and Liquitech or required by law from time to time:
- 21.4.1 Provision of Service & Goods;
- 21.4.2 Marketing of Services and/or Goods by Liquitech, its agents or distributors in relation to the Services and Goods;
- 21.4.3 Analyzing, verifying and/or checking the Customer’s credit,payment and/or status in relation to the provision of Service/Goods;
- 21.4.4 Enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Services and Goods
- 21.5 Liquitech may give information about the Customer to a credit reporting agency forthe following purposes:
- 21.5.1 To obtain a consumer credit report about the Customer; and/or
- 21.5.2 Allow the credit reporting agency to create or maintain a credit information file containing information about the Customer
22. Customers Disclaimer
- 22.1 The Customer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of Liquitech and the Customer acknowledges that he/she buys the goods relying solely upon his/her own skill and judgment and that Liquitech shall not be bound by nor responsible for any terms, condition,representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Customer and shall not be transferable to any subsequential Customer.
- 23.1 All Services/Goods supplied by Liquitech are subject to the laws of the relevant state and Liquitech takes no responsibility for changes in the law which affect the services/Goods supplied
- 23.2 Liquitech shall be under no liability whatsoever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of the breach by Liquitech of these terms and conditions
- 23.3 In the event of any breach of this contract by the Service Provider the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of the service Provider exceed the Price of the Services.
- 23.4 The Customer shall not set off against the Price amounts due from Liquitech
- 23.5 Liquitech may license or sub-contract all or any part of these rights and obligations without the Customers consent
- 23.6 Neither party shall be liable for any default due to any act of God, war, strike,lock out, industrial action, fore, flood, drought, storm or other event beyond the reasonable control of either party.