Definitions
These general terms and conditions of sale apply where Waterproofing Technologies Pty. Ltd. t/a
Envirosystems ( “Envirosystems” ) supplies products or services to a Customer under a contract where for
the purpose of these terms and conditions and unless the context otherwise requires:
“Amounts Outstanding” means, at any time, all amounts owed by the Customer to Envirosystems at
that time whether arising under the Contract or otherwise;
“Conditions” means these Terms and Conditions of Sale;
“Contract” means the contract formed in accordance with clause 2, consisting of Envirosystems’
proposal (if any), the relevant order and these Conditions;
“Contract amount” means the monetary value of the works good and/or services provided under
the Contract payable by the Customer to Envirosystems;
“Customer” means the person (including its successors, personal representatives, and permitted
assigns) acquiring Goods from Envirosystems as named in the credit application or an Invoice, and
where this consists of more than one person the obligations in the Contract are deemed to be joint
and several;
“Goods” means all goods and/or services described in a Purchase Order/ Invoice;
“GST” means the tax imposed by the A New Tax System (Goods & Services) Act 1999 (Cth).
“Intellectual Property” means any patent, registered design, trademark, copyright or any other
industrial or intellectual property rights;
“Invoice” means a written invoice from Envirosystems to the Customer for the Goods;
“Loss or Damage” includes all types of property, pecuniary or other loss or expense or damage,
including direct indirect consequential loss or damage and loss of profits or revenue or production
capacity.
“Purchase Order” means a purchase order or alternative form of order or offer to purchase provided
by the Customer to Envirosystems;
Contract and Formation
Subject to clause 2.2 a binding contract will form between the Customer and Envirosystems;
if these Conditions form part of an Envirosystems proposal to the Customer then on receipt by
Envirosystems of the Customer’s unconditional acceptance of the proposal, evidenced by the
Customer’s purchase order referencing the proposal; or
on Envirosystems written acceptance of Customer’s purchase order where if any counter
terms and conditions are presented will immediately be negated in their entirety and
superseded by these Conditions.
The Contract will constitute the entire contract between the parties in connection with the sale of any
products and services and all prior written correspondence or material, representations or discussions
shall have no effect.
No waiver modifications or variation of the Contract shall be valid or accepted or bind Envirosystems
unless expressly agreed to in writing by an authorised representative of Envirosystems.
Unless otherwise stated in a proposal by Envirosystems any offer to supply products is valid for 30
days from the date of the offer.
Envirosystems reserves the right to vary the offer to reflect any change in cost to Envirosystems
between the date of offer and the date of Contract.
Envirosystems reserves the right to vary the Contract sum at any time to include the costs of site
allowances or changes to industrial conditions.
Envirosystems reserves the right to suspend any and all inactive accounts who have not purchased
over a period of six months. The Customer who was previously on account will revert to Cash On
Delivery (COD) until another application has been submitted and approved.
Quotations, Purchase Orders and Forecasts
Any quotation made by Envirosystems is not an offer to sell and no Purchase Order given in
pursuance of any quotation will bind Envirosystems unless and until such Purchase Order is
accepted by Envirosystems in its absolute discretion. All quotations are subject to withdrawal or
variation by Envirosystems at any time prior to acceptance of a Purchase Order. If the Customer has
provided Envirosystems with a forecast of future requirements it acknowledges that Envirosystems
will be entitled to rely on the accuracy of such forecast(s) for the purpose of ordering raw materials
and arranging its resources to be able to meet those forecast requirements. If any such forecast is
materially inaccurate Envirosystems shall be entitled to invoice the Customer for all costs, expenses or
losses which result from Envirosystems having relied on the inaccurate forecast. Such invoice will be
subject to the normal terms of payment applying to the Customer. Envirosystems shall also be entitled
to invoice the Customer for all finished Goods made to forecast and not taken by the Customer within
2 months of manufacture. Such invoice will be subject to the normal terms of payment applying to the
Customer.
Cancellation
Any request by the Customer for cancellation of a Purchase Order must be in writing and may be
delivered by post, hand delivery, or email. The Customer is liable to reimburse Envirosystems for the
costs it has incurred for labour and materials in fulfilling the Purchase Order up to the date the request
for cancellation is received by Envirosystems, together with Envirosystems’s loss of profit resulting
from the cancellation of the Purchase Order.
The Customer may only cancel the Contract with Envirosystems’ consent and only on the basis that
the Customer meets all Loss or Damage incurred by Envirosystems as a result of the cancellation of
the Contract in the timeframe specified by Envirosystems.
Envirosystems may suspend delivery, cease manufacturing or cancel any Contract without any liability
whatsoever if the Customer at any time and as deemed by Envirosystems;
breaches any terms or conditions of the contact;
commits an act of bankruptcy, resolves to or goes into liquidation, has a receiver or manager
appointed, enters into a scheme of arrangement or other composition with its creditors or
otherwise becomes insolvent and is unable to pays it debts; or
refuses or neglects to take delivery of the products described in the Contract.
Price Variation
Unless otherwise stated by Envirosystems in the Contract Envirosystems may vary the prices stated in
the Contract to reflect any change in costs to Envirosystems after the date of the Contract.
Where a list price applies to the products supplied by Envirosystems under the Contract all prices
listed are (i) subject to alteration without notice, (ii) applicable to all deliveries on or after the effective
date of any price alteration and (iii) do not include GST or any other government impost.
Variations to Contract
The Contract amount is based on the scope of work as detailed in the information provided by
the Customer to Envirosystems for the purpose of the Contract including where applicable plans,
specifications (including standards and finishes), schedules and nominated quantities.
Any variations to the scope of the works or delivery arrangements or Contract shall be a variation to
the Contract entitling Envirosystems to varying the Contract amount as stated and any other term or
condition.
Specifications
Where Envirosystems manufactures or supplies products according to the Customer’s specification
the Customer shall provide to Envirosystems accurate information to the extent required by
Envirosystems to enable Envirosystems to provide the products as specified.
The Customer warrants to Envirosystems that the information and any products to be manufactured
by Envirosystems under the Contract does not breach any copyright, registered design, patent or
other rights of any third party and the Customer shall indemnify and hold harmless Envirosystems in
relation to any such alleged or actual breach.
Whilst every effort is made to ensure their accuracy the descriptions, illustrations and material
contained in any catalogue, price list, brochure, leaflet, specification sheets, electronic
communications or other descriptive matter provided by or on behalf of Envirosystems represent the
general nature of the items described therein and shall not form a part of any order or agreement or
amount to any representation or warranty.
The Customer warrants that any goods or other material, including any packaging or artwork
manufactured, constructed, or supplied by Envirosystems which incorporate or are otherwise based
in whole or in part upon designs, drawings, specifications or other information or material supplied to
Envirosystems by or on behalf of the Customer shall not infringe any Intellectual Property rights of a
third party or breach any law. The Customer indemnifies Envirosystems from and against any action
that may be brought against or Loss suffered by Envirosystems because of a breach of that warranty.
Envirosystems reserves the right to make any changes to designs, drawings or specifications supplied
to Envirosystems by the Customer, and/or Goods ordered by the Customer, which are required to
comply or conform with any applicable safety or statutory requirements or which do not materially
affect the quality or usage of the Goods by the Customer.
Envirosystems does not warrant or guarantee that any Goods manufactured, constructed, or supplied
by Envirosystems which incorporate or are otherwise based in whole or in part upon any designs,
drawings, specifications or other information or material supplied to Envirosystems by or on behalf of
the Customer will achieve any standard or performance or any capacity whatsoever.
Envirosystems will not be liable for any defect in the Goods arising from any designs, drawings,
specifications or other information or material supplied to Envirosystems by the Customer. Where the
Customer approves any artwork or proofs submitted by Envirosystems, Envirosystems will not be
liable for any errors or inaccuracies subsequently discovered.
Any advice, recommendation, information, or assistance provided by Envirosystems in relation to
the Goods or their use or application is given in good faith and is believed by Envirosystems to be
appropriate and reliable. Any such advice, recommendation, information, or assistance is provided
without liability or responsibility on the part of Envirosystems.
In addition to any right of lien which Envirosystems may be entitled to by law, Envirosystems will have
a general lien over any designs, drawings, specifications, or tooling supplied to Envirosystems by or on
behalf of the Customer which is in Envirosystems’s possession until all monies owing by the Customer
to Envirosystems on any account has been paid in full.
Payments
Time for payment of the amount due from the customer to Envirosystems shall be of the essence.
The amount due includes the Contract sum , any variations to the Contract sum and any additional
charges which Envirosystems is entitled to apply.
Subject to subclauses 8.3 and 8.4 below the customer shall pay the full amount due in accordance
with the credit arrangements (if any) as agreed with Envirosystems.
Where no credit arrangements have been previously agreed to by Envirosystems but credit has
been agreed by Envirosystems as a condition of a particular contract the Customer shall pay the full
amount due with the month following the month of invoice.
Where no credit arrangements have been agreed by Envirosystems the Customer shall pay the full
amount due before any delivery of the products.
The customer shall pay interest at the rate of 20% per annum calculated monthly on any amount not
paid by the due date.
Products may be returned, provided the products are in good order being in the same or substantially
same condition as initially delivered, within 7 days of delivery, after which time a re-stocking and
handling fee of 15% of the Contract amount will be incurred and payable by the Customer. Freight
charges will be payable by the Customer at cost on all pick ups. No returns will be accepted after
6 weeks.
Notwithstanding any other provisions herein the Customer hereby grants Envirosystems the right to
lodge a caveat for any property that the Customer has any form of interest in in relation to any debt
owing to Envirosystems.
Delivery
Subject to subclause 9.2 delivery shall be on reasonable notice from the Customer to Envirosystems
and the Customer shall not be relieved from any obligation to accept or pay for products by reason of
any delay in delivery.
Where the Contract includes a delivery schedule delivery shall be in accordance with the dates
contained therein.
Envirosystems shall not be liable for failure to deliver or for delay in delivery arising from any cause
whatsoever beyond Envirosystems control.
Envirosystems reserves the right to delivery by instalments and failure to deliver any instalment shall
not entitle the Customer to terminate the Contract.
Delivery is deemed to occur at either (i) the place and time the Customer appropriates the products
or (ii) in the absence of the Customer at site the time theproducts are deposited at the site for delivery
nominated by the Customer as certified by the delivery docket/manifest signed by the cartage
contractor.
Upon delivery the Customer shall become solely liable for any Loss or Damage to the delivered
products by Envirosystems where the Customer requests delivery of those products to a specific site.
Nothing in this clause shall be construed as altering the transfer of title as specified in clause 9 and in
the event of any inconsistency clause 9) will take precedence.
Title and Risk
Title in the products shall pass to the Customer upon payment of the amount due in full together with
any interest due.
Risk in the products shall pass to the Customer upon delivery as deemed in clause 9.
Defective Products
The Customer shall immediately inspect the products at the point of delivery or collection.
Notice of any defects shall be given by the Customer to Envirosystems in writing on the delivery
docket/manifest signed by the Customer and immediately returned with the cartage contractor.
Where the point of delivery or collection is unattended the Customer shall give notice in writing
to Envirosystems within 24 hours before the intended time of delivery or collection and prior to
installation or application, of any defects in the products.
If the notice in accordance with clauses 11.1 and 11.2 is not given the products shall be deemed to be in
good order and condition and in accordance with the Contract and accepted by the Customer.
Envirosystems shall have the right to inspect on site any products notified by the Customer as being
defective and until such inspection is completed the product should not be installed or applied.
Should the Customer fail to cease the product installation or application under subclause 11.5 then the
Customer waives all rights and discharges Envirosystems from any further obligations.
Express Warranty
If a product is defective and the Customer advises Envirosystems of that defect in accordance with
subclauses 10.1 and 10.2 Envirosystems shall resupply the product but will not be liable for the removal
of any defective products or the re-installation or re-application of any products or for any Loss or
Damage.
The Customer shall take all reasonable steps to inform itself (including the reading and understanding
of any relevant material safety data sheets or like documentation), its employees and agents in the
use, handling, treatment and application of the products. Envirosystems shall not be liable for any
Loss of Damage or injury arising in connection with or from the use of the products or by method of
application.
Any design or description of use, capacity, durability, colour, manner of installation or application,
information, details contained in drawings, data sheets, technical brochures or other illustrative
documents (including directions for use and brochures) provided by Envirosystems are given
as a general guide only and the Customer hereby acknowledges that is has satisfied itself as
to the suitability of the products for the Customer’s particular purposes, use of application and
Envirosystems shall not be liable in any and all of these aspects.
Where consumer legislation implies warranties in respect of products or services and the products or
services are of a kind not ordinarily acquired for personal, domestic or household use or consumption
then the Customer’s remedies shall be limited to those set out in clause 12.1.
Other than as expressly provided herein Envirosystems provides no other implied or express warranty
to the Customer in relation to the products or services.
Envirosystems shall have no obligation under this warranty herein until the full payment by the
Customer of any and all monies owed to Envirosystems is received and/or Customers are within and
under any current applicable Customer credit limit as approved by Envirosystems.
Envirosystems does not warrant in any form any products produced by Envirosystems for the
Customer under any form of toll manufacturing arrangement (i.e where Envirosystems manufactures
the Customer’s products in accordance with the specifications and full information provided by the
Customer to Envirosystems).
Further the Customer hereby accepts any and all warranties in relation to the toll manufactured
products (in connection with clause 12.7) and shall hold Envirosystems harmless from any action,
claims, liability of loss in respect of any toll manufacturing.
Samples
Any sample product or sample colour is provided to indicate only the general nature of the product.
Envirosystems provides no warranty or guarantee that the product supplied shall correspond in colour
texture or blend with any sample or with any previous of future product supplied.
Lien
The Customer agrees that Envirosystems has a lien over any products supplied by Envirosystems
under Contract for the price payable or any amount due from the Customer to Envirosystems until all
amounts have been paid in full.
In the event of default of payment by the Customer, Envirosystems may sell such products after notice
to the Customer as Envirosystems sees fit including disposal of the products. Any additional Loss or
Damage incurred by Envirosystems in exercising its rights under this clause shall be a debt due and
payable on demand from the Customer.
Force Majeure
Envirosystems shall not be liable for any delay Loss or Damage or injury arising by reason of any
event beyond its control and without limiting the generality of the foregoing such events including
industrial disputes, the unavailability of equipment materials or labour, fire, flood, machinery
breakdown, civil disturbance, acts of God or government or similar statutory or regulatory action.
Intellectual Property
Subject to the remainder of this clause 16, all right, title and interest in and to any goods, materials
or developments in which copyright or other Intellectual Property subsist created by or on behalf
of Envirosystems, created jointly with the Customer, or otherwise supplied by Envirosystems to the
Customer, shall vest absolutely in and remain the sole property of Envirosystems.
The supply of Goods shall imply a licence to the Customer to use the same but for no other purpose.
The Customer undertakes not to utilise, copy, reproduce or disclose or permit others to utilise,
copy, reproduce or disclose any such Intellectual Property without the prior written consent of
Envirosystems.
Envirosystems acknowledges that the Customer retains all right, title and interest in and to Intellectual
Property of the Customer supplied to Envirosystems under any Contract.
The Customer grants Envirosystems a perpetual, irrevocable, royalty free licence under such
Intellectual Property for the purpose of making all supplies contemplated by any Contract.
Envirosystems makes no representation or warranty that the Goods supplied or the use of such
Goods or items made from the Goods either alone or in conjunction with other goods will not infringe
any Intellectual Property right.
The Customer will notify Envirosystems of any claim or suit involving the Customer in which such
infringement is alleged and if Envirosystems considers itself to be affected it will be entitled to control
the defence of such infringement allegation.
Artwork, Printing
Without limiting clause 17, the Customer indemnifies Envirosystems from and against all claims,
demands, suits and costs to which Envirosystems may become wholly or partially liable by reason
of any artwork required to be done in accordance with the Customer’s specifications involving an
infringement or alleged infringement of any Intellectual Property and any Loss that results therefrom.
If the Customer supplies Envirosystems with any artwork for use on or in conjunction with packaging
supplied by Envirosystems, then use or reproduction by Envirosystems of that artwork is not to be
construed as a warranty or representation that it complies with the relevant legislation (in Australia or
elsewhere) in relation to labelling, and the Customer hereby indemnifies Envirosystems in relation to
any Loss arising as a result of the use or reproduction of such artwork.
The Customer is responsible for providing the correct Global Trade Item Number (GTIN) in writing to
Envirosystems where this is applicable.
If the Customer supplies the copy/artwork for the GTIN symbol, then the Customer must ensure
substantial compliance with the specifications for such symbols contained in the most recent edition
of the applicable Industry Guidelines for the Numbering and Barcoding of Trade Items.
Envirosystems will exercise reasonable care in printing the GTIN symbol but does not guarantee the
accuracy or scannability of these symbols.
No GTIN symbol can be considered defective if it is commercially scannable or is in substantial
compliance with GTIN specifications at the time of manufacture.
Envirosystems’s liability for manufacturing defects in GTIN symbols is limited to, at Envirosystems’s
discretion, replacement of the packaging bearing the defective symbol or rectification of the symbol,
with the manner of rectification at Envirosystems’s discretion.
Tooling, Moulds, Dies, Designs etc.
All dies, designs, sketches, negatives, photographs, plates, moulds, stereos, tooling, blocks, and
engravings commissioned or made available by Envirosystems in connection with the supply of any
Goods shall remain the property of Envirosystems notwithstanding that a charge may be made for
their recovery, creation, use, maintenance, and storage.
Quantity and Quality Tolerances
Each Purchase Order must satisfy the minimum run-size requirements of Envirosystems. The quantity
of the Goods delivered by Envirosystems under the Purchase Order can vary by up to 10% of the
quantity specified by the Customer in the Purchase Order (and by up to 30% on order quantities of
less than 1000).
Where the Customer does not supply detailed colour specifications, Envirosystems shall develop
colour specifications and print the product accordingly to the Customer’s general instructions.
The Customer shall then either attend Envirosystems’s premises to view the production run and
approve the colour specifications developed or alternatively the Customer shall be forwarded samples
by mail for approval.
In either case the Purchaser shall initial the samples approved. Subsequent production runs shall be
based on the standards and specifications approved.
Failure by the Customer to approve colour specifications will deny the Customer the right of objection
in relation to the limits of colour variation developed by Envirosystems for that run.
Where the Customer has selected colour specifications for light, nominal and dark standards
specifying the nominal colour reproduction and associated light and dark limits, the Customer will
only have the right of objection to the nominal colours selected by him if such colours have been
nominated using a colour system accepted by Envirosystems.
Where the Customer supplies specifications to Envirosystems, any Goods not varying in the
specification stipulated by the Purchaser by more than the established industry tolerance shall be
accepted by the Customer as complying with the Contract.
Pallets
All pallets delivered with the products remain the property of Envirosystems and shall be returned
in good order and conditions to Envirosystems within 30 days of the delivery or on demand by
Envirosystems.
Any pallet not returned by the said date shall be deemed rented by the customer at a rate as
determined by Envirosystems
Assignment
Any contract incorporating these terms and conditions cannot be assigned by the Customer in whole
or in part unless agreed in writing by Envirosystems and on any terms and conditions Envirosystems
sees fit.
Measurement and Payment
Unless otherwise stated in the Contract the measurement of quantities for the purpose of calculating
payments due to Envirosystems shall be on the basis of the quantities shown on the delivery docket
receipt/manifest.
Unanticipated and Latent Conditions
Should Envirosystems encounter physical and/or latent conditions on the site or its surrounding
which Envirosystems considers could not reasonably have been anticipated at the date of the offer
then;
Envirosystems shall advise the Customer of the existence of such changed conditions and the
measure necessary to deal with the conditions; and
all additional work carried out by Envirosystems or any Loss or Damage incurred by
Envirosystems as a result of the unanticipated or latent conditions shall be at the Customer’s
expense.
Delay in Installation
Unless otherwise stated in the Contract the installation of products shall be carried out in accordance
with the program of works as agreed between the Customer and Envirosystems.
Where the program of works is delayed or suspended for any reason or cause outside the control of
Envirosystems all additional Loss or Damage incurred by Envirosystems by reason of such delay or
suspension shall be borne by the Customer.
Envirosystems shall not be liable for any Loss or Damage incurred by the customer arising out of
delay or suspension of the work under the Contract howsoever caused.
Installation or Application of Products
Where Envirosystems installs or applies products or provides services (including toll manufacturing)
according to the Customer’s designs, plans, specifications or directions (the “information”) the
Customer warrants to Envirosystems that the information is correct accurate and sufficient for the
specified purpose.
Envirosystems shall not be liable for any Loss or Damage or injury howsoever arising in connection
with the installed, applied or manufactured products as a result of the information supplied by the
Customer.
Acceptance of Installation or Application
At the completion of any installation or application works Envirosystems shall notify the Customer
within 7 days of such notification and the Customer shall provide to Envirosystems a list of any items
or work which the Customer considers to be outstanding or defective.
Envirosystems shall not be liable for any outstanding work or defects which are not notified with this
clause or clause 10.
Statutory Requirements
Should any such term or condition be deemed by legislation to be void, voidable or unenforceable
then that term or condition shall be severed and the remaining terms and conditions shall continue
with full force and effect.
Notices
All notices given under or in connection with a contract shall be in writing and given or delivered to
the recipient at its address as specified in the contract or at its registered offices.
Dispute Resolution
The Customer and Envirosystems hereby agree that any and all claims (contractual, statutory,
common law or otherwise), disputes, or suits that in any way, directly or indirectly, arise out of or relate
to the contract shall first be submitted to non-binding mediation before a neutral mediator jointly
selected by the parties.
In the absence of resolution by mediation, all such claims shall be settled by arbitration in accordance
with the Australian Centre for International Commercial Arbitration’s rules current at the date of the
reference of the dispute to arbitration. Any such mediation and/or arbitration shall take place in
Sydney, Australia.
Any claims, disputes or suits between the parties hereto shall be governed by, and construed and
enforced in accordance with, the laws and courts of the New South Wales and the courts competent
to determine appeals from those courts.
Governing Law
The contract is governed by and subject to the laws of New South Wales and any competent court
within that State.
Confidential Information
If at any time Envirosystems disclosures to the Customer or the Customer becomes aware of
confidential information of Envirosystems including information relating to products, formula,
recipe, materials, systems, procedures, processes, tests or equipment or information that by its very
appearance and content is of a commercial or confidential nature or can be reasonably construed
as being of a commercial or confidential nature the Customer shall not use the information for any
purpose not approved by Envirosystems and shall not disclose that confidential information to any
person without Envirosystems’ written approval.
Should the Customer be in possession of any such confidential information the Customer warrants
that it will on discovery of the confidential information contact and inform Envirosystems of the
information in the Customer’s possession and take all action necessary to maintain the confidential
nature of the information.
Limitation of Liability
Envirosystems and its directors, employees, consultants, contractors and agents shall not be liable
to the Customer (i) under or in connection with the contract (ii) in tort for negligence or otherwise
(iii) otherwise at law (including by statute to the extent it is possible to exclude liability) and in equity
generally including without limitation for restitution for unjust enrichment for any Loss or Damage
which is not expressly provided for by contract. To the extent that Envirosystems is liable under
contract then Envirosystems liability to the Customer will be reduced to the extent the Customer
contributed to the Loss or Damage and in any event and in the aggregate is limited to the Contract
sum.
PPS Law
In this clause PPSA means the Personal Property Securities Act 2009 (Cth) and terms defined in the
PPSA have the same meaning in this clause (unless otherwise defined in this clause).
The Customer agrees that these Conditions constitute a security agreement for the purposes of the
PPSA.
The Customer grants to Envirosystems, and each of its Related Bodies Corporate (each a “Secured
Party”), a security interest in all Unpaid Goods and equipment supplied to the Customer by
Envirosystems and any proceeds in respect of those Unpaid Goods and equipment (“Proceeds”) to
secure the Amounts Outstanding.
The Customer acknowledges that such security interest shall be held jointly and severally by the
Secured Parties and agrees that such security interest may be enforced by any one or more of
the Secured Parties. To the extent that any Secured Party is not a party to these Conditions, these
Conditions shall take effect as a deed poll by the Customer in favour of that Secured Party and shall
be enforceable by that Secured Party.
The Customer agrees that a Secured Party may register, in any manner it considers appropriate,
any security interest on the Personal Property Securities Register which in its opinion is created by
or contemplated under these Conditions and, for the avoidance of doubt, may include any or all the
Secured Parties as the secured party in such registration.
The Customer agrees not to lodge any Amendment Demand with respect to any registration made by
a Secured Party.
The Customer agrees, at its own cost, to do anything (such as obtaining consents, signing and
producing documents and supplying information) which a Secured Party reasonably requires for the
purposes of;
ensuring that any security interest is enforceable, perfected with the highest priority and
otherwise effective; or
enabling a Secured Party to apply for any registration, or give any notification, in connection
with a security interest; or
enabling a Secured Party to exercise rights in connection with a security interest.
The Customer agrees that until ownership of the Unpaid Goods has passed to the Customer under
clause 6, it will not enter into any agreement or arrangement which gives rise to, or permits any other
person to register, any security interest in respect of the Unpaid Goods or the Proceeds without
Envirosystems’s prior written consent, and will not otherwise deal with the Unpaid Goods or Proceeds
in a way that will or may prejudice any rights of a Secured Party under these Conditions.
To the maximum extent permitted by law, the Customer waives: (a) its rights to receive any notice or
statement that is required by:
any provision of the PPSA (including a notice of a verification statement); or
any other law before a secured party exercises a right, power, or remedy; and
any time period that must otherwise lapse under any law before a Secured Party exercises a
right, power, or remedy.
If the law which requires a period of notice or a lapse of time cannot be excluded, but the law provides
that the period of notice or lapse of time may be agreed, that period or lapse of time is one day or the
minimum period the law allows to be agreed (whichever is the longer).
However, nothing in this clause prohibits a Secured Party from giving a notice under the PPSA or any
other law.
Miscellaneous
Any of these Conditions may be varied in writing by Envirosystems at any time by notice to the
Customer.
The Customer may not exercise any right of withholding, deduction, or setoff.
The Customer may not assign or novate any of its rights or obligations under the Contract without the
prior written consent of Envirosystems.
The Customer agrees that Envirosystems may apply payments to Amounts Outstanding as it sees fit,
notwithstanding any contrary appropriation by the Customer.
Failure by Envirosystems to insist on strict performance of any of these Conditions shall not be
deemed a waiver thereof. The waiver by Envirosystems of any provision, or breach of any provision,
of the Contract is not to be construed as a waiver of any other provision or a breach of any other
provision, or of any further breach of the same or any other provision of the Contract.
If any provision of the Contract is unenforceable or void either in whole or in part for any reason,
then that provision (or part) is deemed to be deleted without in any way affecting the validity or
enforceability of any other provision.
The Contract (including the details appearing on the accepted Purchase Order and any credit
application and Invoice) constitutes the entire agreement between the Customer and Envirosystems
and no modification is binding in relation to the Contract unless agreed to in writing by Envirosystems.
Any dispute arising out of the Contract is governed by the laws of the State or Territory of Australia
where the Purchase Order was received by Envirosystems and the Customer submits to the
jurisdiction of and agrees to be bound by the Federal Courts of Australia and of that State.
All costs and expenses incurred by Envirosystems to remedy any breach by the Customer of the
Contract or to enforce Envirosystems’s rights under the PPSA or the Contract shall be recoverable
from the Customer in addition and without prejudice to Envirosystems’s right to damages for breach
of the Contract.
