These terms and conditions govern the supply of goods and services by SSA to the customer, as further described below. Version: September 2023.
1. Definitions
In these Terms and Conditions capitalised terms have the meaning given to them in context, or otherwise as set out below:
Agreement means these Terms and Conditions, with any annexures, read together with each Purchase Order.
Australian Consumer Law means the law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Commencement Date means the date on which a Customer Credit Application is executed or the date on which the first Purchase Order is agreed between the parties, whichever is earlier.
Confidential Information means the terms of an Agreement and all information of a confidential or sensitive nature (including any Intellectual Property, trade secrets, and know-how), whether in writing or otherwise, of or concerning a party to an Agreement or its related entities that is provided or made accessible by one party to or for the other in contemplation of or in connection with an Agreement. Confidential Information will not include any information that is in the public domain or enters into the public domain through the performance of this Agreement or otherwise (other than through a breach of an Agreement).
Customer means any person SSA supplies with a System and/or Services. The Customer may be the party identified as such in a Purchase Order, Customer Credit Application, or any other document or agreement between the parties, any person to whom SSA is directed to deliver the System or Services, and any person who pays the Fees (jointly and severally).
Customer Background IP means any information, data or other item or thing which the Customer provides to SSA for inclusion as part of any Works or for SSA to evaluate when producing any Works.
Customer Credit Application means any agreement between SSA and the Customer that provides for the supply of the System and/or Services on credit, and any other document executed by the Customer or its agent, representative, officer, or director in connection with that agreement.
Customer Material means any and all Material in the Customer’s possession or control that is relevant to providing, or reasonably requested by SSA for the purpose of providing, the Services, and as relevant to the Customer’s performance obligations includes all accesses, permissions, and approvals required to enable SSA to access and make use of the Customer Material.
Defect means, as the context requires: (a) a failure to deliver Systems or Services in accordance with the requirements of a Purchase Order; or (b) a defect or error in the System or Services that means they do not comply with a Purchase Order or any Warranty because of faulty material or workmanship, but does not include anything disclosed by SSA as a feature or limitation of the System or Services prior to acceptance of a Purchase Order, or anything trivial, insubstantial, or otherwise caused by the Customer.
Event of Default means when a party: (a) is unable to pay its debts when they are due; (b) is bankrupt or insolvent; (c) has a receiver, administrator, official manager or liquidator or any similar official appointed over it or any of its assets; (d) has an order or resolution passed for its winding up, bankruptcy or dissolution; or (e) ceases to trade or exist, or is subject to any similar event.
Fees means the fees and charges payable by the Customer under this Agreement or the Customer Credit Application including but not limited to the fees and charges (including any required deposit) set out in any Purchase Order.
Intellectual Property Rights means all intellectual property and associated rights whatsoever throughout the world including, without limitation, all present, future, registered, and unregistered rights that subsist in copyright, trademarks, patents, designs, and circuit layouts.
Losses means any direct costs, losses, damages, or expenses of any nature whatsoever, and any claims, actions, or demands in relation to any of the foregoing, howsoever caused, and includes consequential or indirect loss (including but not limited to loss of income, profits or reputation) unless indicated otherwise in context.
Material means all information, data, documents, records, designs, manuals, images, content, and other material whatsoever, including without limitation logos, pictures, photographs, video, text, designs, data, Confidential Information, or personal information.
PPSA means the Personal Properties Securities Act 2009 (Cth).
Purchase Order means any document agreed between the parties in writing which describes the System and/or Services to be supplied by SSA and the Fees to be paid by the Customer as consideration for those Systems and/or Services and may (without limitation) be in the form of an invoice or quote provided by SSA and accepted by the Customer, or emails exchanged between the parties.
Services means, generally, any services provided by SSA to or on behalf of the Customer under these Terms and Conditions and, specifically, the services described in a Purchase Order.
Special Condition means any special condition agreed in writing between the parties under a Purchase Order, which is intended to modify or override a provision of these Terms and Conditions.
SSA means Septic Systems Australia Pty Ltd (ACN 110 263 208).
System means any Works, goods, parts, equipment, plans and various related materials to be supplied by SSA to the Customer from time to time, as described in a Purchase Order.
Term means, in respect of a Purchase Order, the period from the acceptance of that Purchase Order to its completion or termination in accordance with this Agreement and, in respect of this Agreement, the period from the Commencement Date to termination under clause 0.
Warranty means any written additional warranty against defects provided by SSA in relation to any Goods or Services.
Warranty Conditions means any terms and conditions which SSA imposes in relation to a Warranty (in addition to those imposed hereunder).
Warranty Period means the warranty period which SSA specifies from time to time in writing which applies to a Warranty.
Works means any designs, recommendations, advices, or other items or things created or delivered by SSA to the Customer as part of the Services.
2. APPOINTMENT
2.1 The Customer appoints SSA to provide the System and Services during the Term. Subject to payment of the Fees, SSA agrees to provide the System and Services in accordance with this Agreement.
2.2 The particulars of the System and Services that SSA will provide are as described in a Purchase Order. The parties may have any number of Purchase Orders in place at the same time, and each Purchase Order will be read together with these Terms and Conditions, together forming this Agreement. A Purchase Order will take effect when agreed in writing by the parties, or when submitted by the Customer to SSA and accepted in writing by SSA. The Customer agrees that SSA may refuse to agree to a Purchase Order and may refuse to provide any requested System or Services for any reason whatsoever.
2.3 The Customer may raise a Purchase Order with SSA to request the supply of a System and/or Services at any time during the Term. A Purchase Order will not be binding until accepted in writing by SSA. SSA will respond to a Purchase Order promptly and in accordance with any time frame otherwise agreed between the parties.
2.4 The Customer acknowledges and agrees that the appointment is non-exclusive and that SSA may be engaged by other Customers to provide goods or services (including goods or services similar to the System and Services) during the period of the appointment.
2.5 The Customer acknowledges that unless specifically agreed in a Purchase Order that SSA will obtain any permits or authorities, it is the Customer’s responsibility, and SSA will not be responsible for any delay due to a failure to obtain or delay in obtaining such permits or authorisations, or any Losses sustained by the Customer.
3. PAYMENT
3.1 Where SSA has provided a quote to the Customer, the quote remains valid for a period of 30 days from the date it was issued. The Customer acknowledges that the quote will remain valid only if the Services can commence within 6 months of the Customer’s acceptance of the quote, and any amounts paid up until this date are non-refundable.
3.2 Where SSA supplies the System and/or Services to the Customer under a Customer Credit Application, SSA will invoice the Customer on a monthly basis for the sale of all Systems and Services for the calendar month. All Fees so invoiced must be paid by the Customer by the 20th day of the following calendar month.
3.3 Where SSA does not supply the System to the Customer under a Customer Credit Application, or terminates any Customer Credit Application then in force, the Customer agrees to pay SSA the Fees by the due date and method specified in any invoice (or within 7 days of the date of any invoice if no due date is specified), or in accordance with any payment terms otherwise agreed in a Purchase Order. Where up-front payment is required by SSA, SSA may (in its sole discretion) elect not to commence production of or provide the System or Services until payment in full is received and will not be liable for any resulting delay or Losses sustained by any person.
3.4 The Customer acknowledges that the Customer may be required under a Purchase Order to make an up-front payment of a minimum of 10% relating to production job estimate, and that any such amount paid to SSA is a genuine pre-estimate of Fees and/or Losses likely to be incurred by SSA and is non-refundable (save to the extend any refund may be required by law). The Customer acknowledges that the Customer will be required to make a 50% progress payment within 30 days prior to commencement of Services on-site. Final payment must be paid on completion of Services prior to SSA obtaining Permit to Use from the council.
3.5 SSA may incur expenses that are directly attributable to providing the Services (including without limitation travel, accommodation, equipment or other administrative expenses) (Expenses). If the Fees are agreed in the Purchase Order to exclude Expenses, the Customer agrees to pay all properly incurred Expenses, provided that individual Expense items over $1,000 are approved by the Customer prior to being incurred.
3.6 The Customer agrees to provide SSA with all necessary information to enable the issuing of an invoice and/or taking of payment, and to inform SSA promptly of any change to that information.
3.7 SSA may increase the Fees or alter or terminate a Customer’s credit limit from time to time on notice to the Customer (Fee Notice). The Fee Notice will apply to future Purchase Orders provided by the Customer. SSA may specify that a Fee Notice applies to an existing Purchase Order, however where this occurs, the Customer will have 30 days from the date of any Fee Notice to provide SSA with written notice terminating the affected Purchase Order. A failure by the Customer to terminate a Purchase Order in accordance with the foregoing will be deemed as acceptance of the increased Fees or altered credit facility.
3.8 The Customer agrees that all Fees not paid in full on the due date are debts due and payable immediately. The Customer agrees to pay all of SSA’s costs of recovering such debts on a full indemnity basis (which may include debt collection or legal fees). SSA reserves the right to charge, and the Customer agrees to pay, interest on any overdue debt owed by the Customer under this Agreement, at a rate of 2% above the Commonwealth Bank of Australia’s commercial lending rate at the time of charging.
3.9 The Customer acknowledges that it may be required under a Purchase Order to pay a deposit (or a number of deposits) in respect of the Fees and that any such deposit paid to SSA is non-refundable (save to the extent any refund may be required by law).
3.10 Where SSA states in a Purchase Order at any time that the Building and Construction Industry Security of Payment Act 2002 (Vic) applies to that Purchase Order, then the provisions of that Act apply in respect of the payment of Fees under that Purchase Order, and will apply to the extent of any inconsistency with the terms of the relevant Agreement.
3.11 Without limiting the effects of clause 0, if the delivery of a System or Services is rescheduled by Customer within 7 days of the scheduled date, a rescheduling Fee outlined in the Purchase Order or notified at the time may apply.
3.12 SSA may incur significant costs at the beginning of SSA’s engagement; SSA’s Fees and rates are calculated in anticipation of the completion of the specific scope of Services and are generally averaged out over the term of SSA’s engagement. The Customer agrees that termination costs (if any) cited in a Purchase Order will:
(a) represent a genuine pre-estimate of the Losses SSA will suffer if the Customer ends SSA’s engagement before completion of the agreed scope; and
(b) will be paid by the Customer if the Customer terminates an Agreement early (as outlined in the termination costs section of the Purchase Order).
4. GST
4.1 Except where this Agreement states otherwise, each amount payable by a party under this Agreement in respect of a taxable supply by the other party is expressed as a GST exclusive amount and the recipient of the supply must, in addition to that amount, and at the same time, pay to the supplier the GST payable in respect of the supply.
4.2 A party’s obligation to pay an amount under this clause 0 is subject to a valid tax invoice being delivered by the other party.
4.3 “GST” and other terms used in this clause 0 have the same meaning as under the A New Tax System (Goods and Goods Tax) Act 1999 (Cth) or replacing or amending legislation applicable from time to time.
5. Title and risk
5.1 Risk in the System will pass to the Customer on delivery unless otherwise agreed in writing between the parties. The Customer is responsible for ensuring the security of the site and/or delivery location against theft of or damage to the System.
5.2 Title in the System will remain with SSA and pass to the Customer only on payment of the Fees, as well as all other amounts owing to SSA by the Customer (under this Agreement or otherwise). The Customer shall hold the System (or the proceeds of any sale, supply, or conversion of or relating to the System, including where they have been incorporated into a building, structure or works) as bailee and agent for SSA up until payment of the Fees in full is received by SSA.
5.3 Until title to the System passes to the Customer in accordance with clause 5.2, the Customer must:
(a) store the System separately and in such a manner that it is clearly identified as the property of SSA; and
(b) ensure that the System is properly stored, protected, readily identifiable, and insured.
5.4 In addition to any rights SSA may have under Chapter 4 of the PPSA, SSA is entitled at any time until title in and to the System passes to the Customer to demand the return of the System and will be entitled without notice to the Customer and without liability to the Customer to enter, or cause SSA’s agent to enter, any premises occupied by the Customer (or any other premises where the Customer is holding the System) in order to search for and remove the System.
5.5 For the purpose of clause 0 above, the Customer:
(a) irrevocably grants a license to SSA to enter such premises (including via an agent); and
(b) indemnifies SSA from and against all Losses suffered or incurred by SSA as a result of exercising its rights under this clause 0.
6. PPSA
6.1 The Customer acknowledges and agrees that this Agreement is an accepted and adopted security agreement between the parties. Unless otherwise stated, a term contained in clauses 0 and 0 of this Agreement that is defined in the PPSA (but not otherwise defined in this Agreement) has the meaning given to it in the PPSA.
6.2 The Customer acknowledges and agrees that this Agreement creates, that the Customer grants to SSA, and that SSA has a registrable security interest for the purposes of the PPSA in: (a) all Systems (and any proceeds of the sale supply, or conversion of such Systems) previously supplied by SSA to the Customer; (b) all Systems (and any proceeds of the sale supply, or conversion of such Systems) that will be supplied in the future by SSA to the Customer; and (c) respect of all present and after-acquired property of the Customer, to secure payment of all applicable Fees and performance of all of the Customer’s obligations under this Agreement. In respect of the subject matter identified in clauses 0(a) and 0(b), the security interest granted to SSA must be a first-ranking security interest.
6.3 Without limiting any other provision of this Agreement, the Customer grants to SSA where and when applicable, a purchase money security interest (PMSI) to the extent that it secures payment of the amounts owing in relation to the relevant System in accordance with, and to the extent prescribed by, section 14 of the PPSA.
6.4 The Customer acknowledges and agrees the security interest is a continuing and subsisting interest in the System with priority over any registered or unregistered general (or other) security interest and any unsecured creditor.
6.5 The Customer acknowledges that the security interest over the System or their proceeds arising under this clause 0 is a PMSI under the PPSA to the extent that it secures payment of the amounts owing in relation to the Goods.
6.6 The Customer will do everything reasonably required of it by SSA to enable SSA to register its security interest with the priority SSA requires and to maintain those registrations including:
(a) signing any documents and/or providing any information which SSA may reasonably require to register a financing statement or a financing change statement in relation to a security interest; or
(b) correcting a defect in a statement referred to in paragraph (a).
6.7 The security interests arising under this Agreement will be perfected by SSA prior to or when the Customer obtains possession of the System and the parties confirm they have not agreed that any security interest arising under this Agreement attaches at any later time.
6.8 SSA does not need to give the Customer any notice under the PPSA (including notice of the financing statement or verification statement) unless the notice is required by the PPSA and that requirement cannot be excluded.
6.9 If Chapter 4 of the PPSA would otherwise apply to the enforcement of the security interests created under this Agreement, the Customer agrees that sections 95, 96, 120, 121(4), 123, 125, 128, 129, 130, 132(3)(d), 132(4), 134(1), 135, 142 and 143 of the PPSA will not apply to the enforcement of the security interest(s).
6.10 The Customer agrees not to disclose to an ‘Interested person’ (as defined in section 275(9) of the PPSA) or any other person, any Information of the kind described in section 275(1) of the PPSA including the security agreement between SSA and the Customer.
6.11 The Customer agrees to keep and maintain all Systems free of any charge, lien, or security interest except as created under this Agreement and not otherwise to deal with the System in a way that will, or may, prejudice the rights of SSA under this Agreement or the PPSA.
6.12 The Customer must notify SSA immediately in writing if the Customer changes its name and address for service, contact details or if there are any changes to data required to register a financing statement under the PPSA in respect of this Agreement.
7. WORKS – Intellectual Property Rights
7.1 Subject to clause 0, the Customer agrees that as between the parties, SSA is and will remain the owner at all times of all Intellectual Property Rights in the Works. The Customer must make no claim on or to such Intellectual Property Rights. Subject to any express licence terms to the contrary specified in a Purchase Order or as part of any Special Conditions, SSA grants the Customer a royalty free, perpetual, irrevocable licence to use the Works in Australia, solely for the purposes of using, maintaining, and repairing the System and/or Services or any more narrow purpose contemplated in an applicable Purchase Order.
7.2 As between the parties, the Customer shall retain all Intellectual Property Rights in the Customer Background IP and nothing in clause 0 will effect an assignment of such Intellectual Property Rights to SSA.
8. DELIVERY
8.1 Any time quoted for delivery of the System or Services in a Purchase Order is an estimate only. The Customer is not relieved of any obligation to accept or pay for the System or Services because of any delay in delivery.
8.2 If a Purchase Order requires SSA to provide Services or a System, then SSA will use all reasonable endeavours to deliver those Services:
(a) subject to the other provisions of this clause 0, by the dates and times specified in the Purchase Order; and
(b) in accordance with the requirements specified in the Purchase Order.
8.3 SSA may specify (under a Purchase Order or by any separate written notice) additional conditions which apply to the delivery of Services or Systems as part of a Purchase Order, including any information, assistance, equipment/facility, or access reasonably required from the Customer prior to commencement of Services.
8.4 If the Customer is notified by SSA that exclusive possession of the intended installation site (or any portion of that site) is necessary the delivery of the System and/or Services, then the Customer must ensure that SSA has exclusive access to that site for the period on which the System and/or Services will be delivered unless otherwise agreed. Prior to the System and/or Services being delivered, the Customer must notify SSA of any safety policies or procedures that apply to the site, including providing the details of the person in control or possession of the site for the purposes of applicable construction and/or health and safety law, and the Customer is and remains responsible for ensuring that the site can be safely accessed and used for the purposes of delivery and installation (as applicable).
8.5 SSA will make all reasonable efforts to deliver the System to the Customer’s nominated delivery address at the time and on the date agreed. However, time is not of the essence under this Agreement and, except where SSA has an obligation under the Australian Consumer Law, SSA is not liable for any failure to deliver, any failure to deliver within the time quoted for delivery in a Purchase Order, or delay in delivery for any reason including, without limitation, where an incorrect delivery address has been provided to SSA, or where an event beyond SSA’s reasonable control occurs in accordance with clause 0.
8.6 If for any reason beyond the control of SSA (including without limitation as a result of any strike, trade dispute, fire, tempest, theft, breakdown, shortage of stock, a failure of a third party to fulfil their related obligations to SSA, or similar) a Purchase Order cannot be filled at the time stipulated by the Customer or quoted for delivery in a Purchase Order, SSA shall be entitled to delay or cancel delivery and fulfilment of the Purchase Order, and the Customer agrees that SSA will not be liable to the Customer for any Losses arising out of such cancellation.
8.7 The Customer agrees to promptly provide all Customer Material and agrees to bring to SSA’s attention any matters about which the Customer is uncertain. SSA will not independently verify the accuracy or appropriateness of such Customer Material or instructions. The Customer agrees that SSA will not be liable for any Losses arising from reliance on, or inaccuracy or defect in, any Customer Information or instructions supplied by or on behalf of the Customer.
8.8 The Customer will promptly perform its obligations under an Agreement, including satisfying any requirements for performance, disclosure, or delivery by the Customer that are specified in a Purchase Order, and provide SSA with all assistance reasonably required by SSA to enable SSA to provide the Services.
8.9 The Customer is and remains liable to SSA for all reasonable costs and/or charges incurred by SSA in respect of delayed delivery of Systems or Services where caused by an action or omission of the Customer or any event or factor otherwise beyond the reasonable control of SSA. The calculation of such a delay period will commence upon the time for delivery stipulated in any Purchase Order or otherwise notified by SSA (provided SSA will only deliver during ordinary business hours or site hours of operation, unless otherwise agreed between the parties).
8.10 Any labour required to install, load, or unload the System (and any related Losses, including in relation to the hire or use of specialised equipment) is the responsibility of the Customer, unless otherwise agreed in an applicable Purchase Order.
9. ACCEPTANCE & DEFECTS
9.1 To the extent permitted by law, SSA does not warrant, and expressly excludes any representation that the System and/or Services will be fit for any particular purpose. It is the Customer’s sole responsibility to ensure that the requirements and acceptance criteria (if any) specified in a Purchase Order are complete and sufficient, and that the specifications provided by SSA for the System and/or Services meet its needs.
9.2 On delivery of System, if the Customer considers that the System fails to meet the requirements of a Purchase Order, then the Customer has 7 days to notify SSA in writing of the alleged Defect and the Customer must preserve the System as delivered and either return them to SSA or (if agreed by SSA) allow SSA (or a nominated agent) access to the Customer’s premises for the purpose of inspecting the System. If, upon inspection, SSA agrees that the System has a Defect, the remedies set out in clause 0 will be provided. If no notice of Defect is given by the Customer within 7 days of the delivery of the System, the Customer is deemed to have accepted the System (and that they are free from any Defect as delivered).
9.3 If a Defect arises in any System or Services during their Warranty Period (if applicable), then SSA may elect to provide any of the remedies specified in clause 0 in respect of any Defect reported by the Customer, and accepted by SSA, during the Warranty Period. The forgoing may, however, be overridden by any Warranty Conditions separately notified by SSA together with the supply of any System or Services.
9.4 For the purposes of evaluating a Warranty claim, the Customer at the time of lodging the claim must provide details of the Warranty claim, reasonable evidence of the claim required by SSA, and proof of purchase. The Customer further agrees to preserve the System or Works which are alleged to be affected by a Defect and either return them to SSA or (if agreed by SSA) allow SSA (or a nominated agent) access to the Customer’s premises for the purpose of inspecting the System or Works.
9.5 If the Customer notifies SSA of a Defect other than in accordance with this clause 0, or the System or Services are affected by an error or defect other than a Defect (including due to ordinary wear and tear or Customer or third party fault, or other exceptions specified in the Warranty Conditions), SSA may impose a Fee on the Customer (in SSA’s sole discretion) to provide the remedies set out in clause 0.
10. TERM & TERMINATION
10.1 This Agreement will commence on the Commencement Date and continue in effect unless terminated in accordance with this clause 0. A Purchase Order will commence on the start date specified in that Purchase Order and continue in effect for the whole of the Term of that Purchase Order, unless terminated earlier in accordance with this clause 0 or in accordance with any additional rights of termination, as specified in clause 0.
10.2 Any right of termination provided in a Special Condition applies in addition to this clause 0 and does not have the effect of replacing any right herein, unless expressly agreed between the parties.
10.3 Either party may terminate this Agreement and/or any one or more Purchase Orders immediately upon written notice to the other party (the Relevant Party) if:
(a) the Relevant Party commits a material breach of this Agreement which is incapable of being remedied or, if the breach is capable of being remedied, the Relevant Party fails to remedy the breach within 7 days after being required in writing to do so; or
(b) the Relevant Party is or is reasonably likely to be subject to an Event of Default.
10.4 SSA may terminate, or suspend the supply of the System and Services under, this Agreement and/or any one or more Purchase Orders immediately upon written notice to the Customer if the Customer:
(a) fails to pay any Fees, or other amounts on or by the due date for payment and otherwise in accordance with this Agreement;
(b) ceases or fails to provide within a reasonable time any information or assistance reasonably necessary for SSA to provide any part of the System and Services; or
(c) acts fraudulently or dishonestly or otherwise in breach of any relevant law.
10.5 Either party may terminate this Agreement on 30 days’ written notice if no Purchase Order has been in force for a period of at least 30 days prior to the date of the notice.
10.6 For the avoidance of doubt, termination of this Agreement under clauses 0 or 0 will result in the termination of any Purchase Order in force at the date of termination, but termination of a Purchase Order alone will not affect the operation of this Agreement in respect of any other then current or future Purchase Order.
10.7 If the supply of the System or Services is suspended in whole or in part under clause 0, SSA may, at its sole election:
(a) end that suspension if and when the relevant breach is cured and SSA has the resources available to re-commence supply of the System and Services;
(b) continue the suspension until such time as SSA has the resources available to again supply the System and Services; or
(c) provide notice of termination at any time if the issue constituting grounds for suspension under clause 0 has not been remedied,
and the Customer agrees that SSA will not incur any liability in respect of the failure to supply the System and Services during any period in which those Systems and Services are suspended.
10.8 If this Agreement or a Purchase Order is terminated by either party, SSA will cease providing the relevant System and Services and the Customer must immediately pay SSA all Fees due or incurred up to the date of termination in connection with those Systems and Services, including the unpaid balance of any credit account maintained by SSA for the Customer under the Customer Credit Application.
11. WARRANTIES
11.1 SSA warrants that:
(a) SSA will exercise reasonable due care and skill and comply with all applicable laws (including the Privacy Act 1988 (Cth) and Competition and Consumer Act 2010 (Cth)) in providing the Services; and
(b) SSA will keep confidential all of the Customer’s Confidential Information, except where SSA makes a disclosure on a confidential basis to its advisors, subcontractors, and other persons as necessary to the supply of the Services, or in compliance with the Customer’s instructions, or as required by law.
11.2 The Customer warrants that:
(a) The Customer has the right to provide SSA with Customer Material and that SSA or its subcontractors’ use of Customer Material in accordance with the Agreement will not infringe the rights of any person, or breach any applicable law (including the Privacy Act 1988 (Cth) and Competition and Consumer Act 2010 (Cth)); and
(b) The Customer will keep SSA’s Confidential Information confidential, except where the Customer makes a disclosure with prior written consent from SSA or as required by law.
12. LIABILITY & INDEMNITY
12.1 Except as expressly set out in this Agreement, to the maximum extent permitted by law, SSA provides the System and Services on an “as is” basis and excludes any and all conditions, warranties, representations, implied terms and/or liability for any Losses howsoever caused (including by negligence) arising in connection with the System and Services or this Agreement.
12.2 In respect of any liability of SSA which cannot be excluded in accordance with clause 0, SSA limits its liability to the Customer as follows:
(a) under any applicable consumer guarantees in the Australian Consumer Law in relation to the supply of the System or Services to either, at SSA’s sole discretion: (i) replacing the System or part thereof; or (ii) supplying equivalent goods; or (iii) repairing the System or part thereof; (iv) paying the cost of replacing or repairing the System; or (v) re-performing Services or part thereof.
(b) for breach of agreement, negligence, breach of statutory duty, or any other cause of action other than a breach of an applicable consumer guarantee (regardless of how that liability is caused) arising under this Agreement or related to any System or Services, in aggregate, to payment of an amount equal to the total Fees paid by the Customer for the relevant System or Services.
12.3 Neither party will be liable for any consequential, collateral, special, incidental, indirect, exemplary or punitive damages, including, without limitation, loss of profits or revenue, loss of opportunity or loss or destruction of data, costs of cover, costs of delay, however caused and based on any theory of liability, for any claims or causes of action arising out of or related to this Agreement or the System or Services.
12.4 SSA’s Systems come with guarantees that cannot be excluded under the Australian Consumer Law. Nothing in this Agreement limits or excludes any right, guarantee, or entitlement that the Customer may have at law, to the extent that such right, guarantee, or entitlement cannot be limited or excluded. The Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable Losses (not including consequential, indirect, or exemplary loss or damages). The Customer is also entitled to have the System repaired or replaced if the System fail to be of acceptable quality and the failure does not amount to a major failure.
13. DISPUTE RESOLUTION
13.1 A party must not commence court proceedings in relation to a dispute arising under an Agreement until it has exhausted the procedures in this clause 0 unless the party seeks urgent injunctive or interlocutory relief.
13.2 If a dispute arises between the parties, either party may give notice of the dispute (Dispute Notice) to the other party. If a Dispute Notice is given:
(a) SSA’s representative and the Customer’s representative must negotiate as soon as possible in an effort to resolve the dispute;
(b) if the dispute is not resolved within 7 days of the Dispute Notice being given, the Managing Directors (or equivalent) of the parties must meet in Melbourne, Victoria (or in any other place or by any other means agreed between the parties) to resolve the dispute within 14 days; and
if the dispute is not resolved within 21 days of the Dispute Notice being given, the parties must instruct the Resolution Institute (or any other person agreed between the parties) to appoint an independent mediator to attempt to resolve the dispute by mediation and the parties must participate in the mediation in good faith. The costs of the mediation must be equally shared by the parties. The Customer may attend the mediation in person or by video or telephone conference.
14. GENERAL
14.1 Subcontractors: The Customer agrees that SSA may without notice engage subcontractors to assist SSA in providing the System and Services. SSA will remain liable for the actions or omissions of any subcontractor to the same extent SSA would be liable under this Agreement if the subcontractor were an employee of SSA.
14.2 No employment: Nothing contained in this Agreement constitutes the relationship of joint venture, partnership, or employment between the parties and it is the parties’ express intention to deny such relationships.
14.3 Assignment: SSA may by written notice to the Customer assign, transfer, subcontract or otherwise dispose of, in whole or in part, its rights under this Agreement. The Customer must not assign or novate this Agreement without SSA’s prior written consent, such consent not to be unreasonably withheld.
14.4 Variation: This Agreement may only be amended or modified in writing signed by the parties, save that any standard terms of the Customer are expressly excluded and will not have the effect of varying or replacing this Agreement unless (regardless of the point in time at which such terms are notified to SSA).
14.5 Notices: Any notice or demand to be given or made under this Agreement must be in writing signed by a party’s authorised representative. A notice will be deemed to be received (a) in the case of a notice given by hand, on delivery; (b) in the case of a notice sent by pre-paid post, 3 business days following the date of postage; (c) in the case of a notice sent by facsimile, on the date the notice was sent provided that the sending facsimile machine confirms by a printed report that the facsimile was successfully sent; and (d) in the case of a notice sent by email, upon the recipient or their mail server confirming receipt of the email.
14.6 Entire agreement: The Terms and Conditions set out in this Agreement contain the entire agreement concluded between the parties, and this Agreement supersedes any and all prior agreements, representations, or understandings between the parties, whether written or oral, in respect of the same subject matter. To the extent that any inconsistency arises between these Terms and Conditions, Special Conditions, Purchase Order and a Customer Credit Application, then those documents will be read in the following order of priority: (a) the Special Conditions; (b) the Customer Credit Application; (c) the Purchase Order; and (d) these Terms and Conditions.
14.7 Survival: Clauses 0, 0, 0, 0 will continue in force notwithstanding the termination or expiration of a Purchase Order or this Agreement in its entirety for any reason.
14.8 Governing law: This Agreement is governed by and must be construed in accordance with the laws of Victoria, Australia, and the parties irrevocably consent to the jurisdiction of the courts there and their courts of appeal.
SEPTIC SYSTEMS AUSTRALIA PTY LTD
We can be contacted via:
Email: info@septicsystemsaustralia.com.au
Phone: 1800 800 333; Post: PO Box 432, Montrose VIC 3765