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Standard Terms of Sale

1. Applicable Terms

These Terms govern the sale by Evoqua Water Technologies Pty Ltd (ABN 52 165 060 168) ('We', 'Our' or 'Us') of equipment, products, related services, and media goods if any (collectively herein 'Work'), referred to in Our proposal or acknowledgement, as the case may be ('Our Documentation') and the delivery of any Work to any person, firm or company which enters into an agreement with Us ('You' or 'Your'). Whether these terms are included in an offer or an acceptance by Us, such offer or acceptance is expressly conditioned on Your assent to these terms.  We reject all additional or different terms in any of Your forms or documents.

2. Payment

You shall pay Us the full purchase price as set forth in Our Documentation.  Unless Our Documentation provides otherwise, any costs associated with or arising from freight, storage, insurance and all taxes, GST, levies, duties, tariffs, permits or license fees or other governmental charges relating to the Work or any incremental increases thereto shall be paid by you.  If We are required to pay any such charges, You shall immediately reimburse Us.  Unless otherwise agreed between the parties in writing, payment will be due thirty (30) days from the date of invoice.  We may provide credit facilities in Our discretion and reserve our right to withdraw credit facilities at any time prior to delivery. Payments shall become due immediately upon You suffering an insolvency event. If You default in the payment of any money due to Us pursuant to these Terms, then in addition to any other rights (including the right to defer or cancel delivery of the Work) which may be conferred upon Us by law.  We will be entitled to be paid interest by You on such money at the rate, prescribed in Rule 36.7 of the Uniform Civil Procedure Rules 2005 (NSW) from the date of such default until full payment to Us and shall pay all of Our reasonable costs (including attorneys’ fees) of collecting amounts due but unpaid. In this Agreement 'GST' means the goods and services tax or similar value added tax levied or imposed in Australia under the GST Act and includes any replacement or subsequent similar tax; 'GST Act' means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and 'Taxable Supply' and 'Tax Invoice' have the same meaning as in the GST Act Payment shall become due immediately upon You suffering an insolvency event.

3. Delivery

Delivery of the Work shall be in material compliance with the schedule in Our Documentation.  Unless Our Documentation provides otherwise, delivery terms are Ex works Our factory (Incoterms 2010) with risk of loss of all Work passing to You in accordance with such term. Title to all Work shipped by Us to You shall pass upon receipt of payment in full for the Work under the respective invoice. We are not responsible for the cost of packaging, crating, etc. of the Work.  Unless otherwise agreed to in writing by Us, shipping dates are approximate only and We shall not be liable for any loss or expense (consequential or otherwise) incurred by You or Your customer if We fail to meet the specified delivery schedule.

4. Ownership of Materials and Licences

All devices, designs (including drawings, plans and specifications), estimates, prices, notes, electronic data, software and other documents or information prepared or disclosed by Us, and all related intellectual property rights, shall remain Our property.  We grant You a non-exclusive, non-transferable licence to use any such material solely for Your use of the Work.  You shall not disclose any such material to third parties without Our prior written consent.  You grant Us a non-exclusive, non-transferable licence to use Your name and logo for marketing purposes, including but not limited to, press releases, marketing and promotional materials, and web site content. 

5. Variations

You may request Us to vary the Work to be performed by Us under the contract of which these Terms form part, subject to such variation being contemplated by, and capable of being carried out under, the provisions of the contract.  We shall as soon as practicable after receiving such request provide to You an offer specifying the following ('Variation Offer'):

  • whether the requested variation can be effected; and
    if it can be effected:
    • Our offer including our quote for the cost of performing the proposed variation, including any delay or disruption costs and payment terms; and
    • Our estimate of the impact of the variation on the delivery date.

If You accept Our Variation Offer ('Variation'), We shall perform the Variation and the cost shall be added to or deducted from the purchase price. The delivery date shall be extended as a result of any delay incurred by Us due to the performance of the Variation.

6. Force Majeure Events and Delays

Neither You nor We shall have any liability for any breach or delay (except for breach of payment obligations) caused by a Force Majeure Event.  If a Force Majeure Event exceeds six (6) months in duration, We shall have the right to terminate the Agreement without liability, upon fifteen (15) days written notice to You, and shall be entitled to payment for work performed prior to the date of termination.  'Force Majeure Event' shall mean events or circumstances that are beyond the affected party’s control and could not reasonably have been easily avoided or overcome by the affected party and are not substantially attributable to the other party.  Force Majeure Event may include, but is not limited to, the following circumstances or events: pandemic, war, act of foreign enemies, terrorism, riot, strike, or lockout by persons other than by Us or Our sub-suppliers, natural catastrophes or (with respect to on-site work), unusual weather conditions.

If We are delayed in delivering the Work by the delivery date due to circumstances that are caused solely by Us and You suffer loss as a result of the delay, You may, for each complete week of delay claim a refund of the price payable for the delayed Work or equipment as applicable at the rate of 0.5% per week of the value of the delayed Work or the value of the delayed equipment, but not more in aggregate than a total of 5.0% of the price payable for the portion of the Work or delayed equipment (as applicable) which in consequence of such delay cannot be commercially and effectively used. Such payment shall, subject to any claims which You may have under applicable legislation, be the sole remedy and in full satisfaction of loss suffered by You due to any delay in the Work or equipment (as applicable) and shall be in lieu of any other right You may have against Us.

7. Australian Consumer Law and Consumer Guarantees

7.1 Our goods and services may come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

  • to cancel your service contract with us; and
  • to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time.  If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion.  You are also entitled to be compensated for any other reasonable foreseeable loss or damage from a failure in the goods or service.

7.2 For the purposes of these Terms, a Consumer Guarantee means a right or guarantee that You may have under the Australian Consumer Law or other rights in relation to the supply of goods or services (such terms as implied into a contract) that cannot be lawfully excluded.

7.3 Subject to clause 4. Our liability in respect of any breach of or a failure to comply with any Consumer Guarantee is limited to the following:

  • In the case of goods, to:
    • the replacement of the goods or the supply of equivalent goods;
    • the repair of the goods;
    • the payment of the cost of replacing the goods or of acquiring equivalent goods; or
    • the payment of the cost of having the goods repaired.
  • In the case of services, to:
    • the supplying of the services again; or
    • the payment of the cost of having the services supplied again.

7.4 Our liability in respect of a breach of or a failure to comply with a Consumer Guarantee will not be limited in the way set out in clause 3 if:

  • the goods or services supplied are goods or services 'of a kind ordinarily acquired for personal, domestic or household use or consumption', as that expression is used in section 64A of the Australian Consumer Law;
  • it is not 'fair or reasonable' for Us to rely on such limitation in accordance with section 64A (3) of the Australian Consumer Law; or
  • the relevant Consumer Guarantee is a guarantee pursuant to sections 51, 52 or 53 of the Australian Consumer Law.

7.5 For any claim under the Consumer Guarantees please notify Us in writing at the following address:

Evoqua Water Technologies Pty Ltd (ABN 52 165 060 168), 
Unit 2A, Building 14, Showground Business Park, 
12-20 Anella Avenue, Castle Hill NSW 2154.

We will pay Your reasonable, direct expenses of claiming under this clause 7.5.  You shall submit details and proof of its expense claim to Us for consideration.

8. Defects Warranty

8.1 In addition to the Consumer Guarantees that may apply to certain of Our goods and services and for all Our other goods and services We shall, subject to clause 4 rectify any faulty material or workmanship ('Defects') which occur during the Defects Liability Period as defined under clause 8.4. We shall rectify the Defect at Our option, by repair, replacement or supply of equivalent goods (or by payment of the cost of doing so), provided always that:

  • You notify Us of the Defect in writing as soon as You become aware of or should have become aware of the Defect;
  • the Work which was carried out has been properly handled, used, operated and maintained in accordance with instructions issued by Us or if no instructions were issued, in accordance with good industry practice;
  • such Defects are not caused by incorrect use of operating material or lubricants, faulty civil or mechanical work, or/and any chemical;
  • the Work, including spares (as applicable), are not consumables, not liable to deterioration or do not have a low rated service life;
  • no unauthorized repair or alteration to the Work has been made (as applicable);
  • such Defects are not caused by the use of equipment and/or material supplied by You; and
  • such Defects are not due to fair wear and tear, improper storage, excessive heating, mechanical vibration, overloading or contravention of the rules established in standard electrical practice.

8.2 Where You have notified Us of an alleged Defect in accordance with clause 1, You shall, at Our request:

  • promptly return to Us the part which is subject to the Defect ('Defective Part') for repair; or
  • do anything necessary to enable Us to repair or replace the Defective Part on behalf of You (including giving Us access to any premises where the Defective Part is located). Unless otherwise agreed between the parties or as required by law, under this Defects Warranty, the removal of and return of a Defective part and the installation of any repaired, replacement or equivalent parts shall be performed by You at Your risk and expense. Where any Defective part has been replaced, that Defective Part shall become the property of Us upon its removal. All replacement parts shall become Your property upon installation.

8.3 To the extent permitted by law and subject to clause 4:

  • Our obligation to rectify Defects in accordance with this clause 8 shall be Your sole and exclusive remedy and represents the full extent of Our liability for Defects under this warranty; and
  • all representations, other warranties and conditions of any kind, whether express or implied relating to the Work that are not contained in these Terms are excluded.

8.4 Unless Our Documentation provides otherwise, the Defects Liability Period shall be the earlier of

  • eighteen (18) months from delivery of the Work; or
  • twelve (12) months from initial operation of the Work or ninety (90) days from the performance of services (the 'Defects Liability Period').

8.5 Claims with regard to software under this Defects Warranty are excluded

  • in case of insignificant deviation of the software from the agreed characteristics,
  • as long as the defect cannot be reproduced by You in the presence of Us,
  • for errors or restrictions of use originating after the transfer of risk to You, in particular resulting from improper operation, usage or handling,
  • for errors or restrictions of use resulting from modifications, performance of maintenance not approved by Us, or improper interconnection with and/or integration into third party equipment unless such modifications, maintenance, or interconnection and integration was performed by Us or Our subcontractors, and
  • for defects in freeware, shareware or open source software.

8.6 For any claims under this Defects Warranty, please notify Us in writing at the following address:

Evoqua Water Technologies Pty Ltd (ABN 52 165 060 168), 
Unit 2A, Building 14, Showground Business Park, 
12-20 Anella Avenue, Castle Hill NSW 2154.

9. Indemnity

We shall indemnify, defend and hold You harmless from any claim, cause of action or liability incurred by You as a result of third-party claims for personal injury, death or damage to tangible property, to the extent caused by Our negligent act or negligent omission.  We shall have the sole authority to direct the defence of and settle any indemnified claim. Our indemnification is conditional on You:

  • promptly, within the Defects Liability Period, notifying Us of any claim, and
  • providing reasonable cooperation in the defence of any claim. Our obligation to indemnify You under this clause 9 shall be reduced to the extent that:
    • any act or omission of You or Your employees, contractors or agents has contributed to the loss, damage, death or injury; and/or
    • You have failed to mitigate your loss.

10. Assignment

Neither party may assign the contract of which these Terms form part, in whole or in part, nor any rights or obligations hereunder without the prior written consent of the other party; provided, however, We may assign Our rights and obligations under these terms to Our affiliates or in connection with the sale or transfer of Our business and We may grant a security interest in the Agreement and/or assign proceeds of the agreement without Your consent.

11. Termination

Either party may terminate the contract of which these Terms form part, if:

the other party fails duly and punctually to carry out the obligations on its part to be performed or observed pursuant to these Terms; and the failure continues and persists for a continuous period of thirty (30) days after service of written notice on that other party by the party specifying the nature of the failure and directing the party to whom the notice is addressed to remedy the failure within such thirty (30) day period; or
the other party is subject to an insolvency event.

12. Dispute Resolution

We and You shall negotiate in good faith to resolve any dispute relating hereto.  If, despite good faith efforts, the parties are unable to resolve a dispute or claim arising out of or relating to this Agreement or its breach, termination, enforcement, interpretation or validity, the parties will first seek to agree on a forum for mediation to be held in a mutually agreeable site. If the parties are unable to resolve the dispute through mediation, then any dispute shall be finally settled by binding arbitration by the Resolution Institute Australia ('RI') pursuant to the then current edition of the rules for the conduct of commercial arbitrations of RI. If the parties are unable to agree upon the arbitrator within twenty (20) days, then the President for the time being of the New South Wales Chapter of the RI shall appoint the arbitrator. The seat of arbitration shall be Sydney, New South Wales, and the governing language shall be English. The governing law shall be the state of New South Wales. Nothing in this clause 12 is intended to, or shall operate so as to, limit or restrict the ability of a party to seek or obtain urgent interlocutory or equitable relief.

13. Export Compliance

You acknowledge that We are required to comply with applicable export laws and regulations relating to the sale, exportation, transfer, assignment, disposal and usage of the Work provided under these Terms, including any export licence requirements.  You agree that such Work shall not at any time directly or indirectly be used, exported, sold, transferred, assigned or otherwise disposed of in a manner which will result in non-compliance with such applicable export laws and regulations.  It shall be a condition of the continuing performance by Us of Our obligations hereunder that compliance with such export laws and regulations be maintained at all times. You agree to indemnify and hold Us harmless from any and all costs, liabilities, penalties, sanctions and fines related to non-compliance with applicable export laws and regulations. 

14. Limitation of Liability

Subject always to Our liability under Australian Consumer Law and to the extent that liability cannot be legally limited or excluded:

Our total aggregate liability arising out of or in connection with the contract of which these Terms form part, shall be limited to the price paid of the Work under the Contract per event and in the aggregate; and
We shall under no circumstances be liable for economic loss; loss of contract; loss of profit or revenue; business interruption; loss of production; production stoppage; loss of information or data; loss of power, replacement power; cost of capital; loss of interest, damages based on Your third party contracts; indirect or consequential loss or damage, whether or not such loss was foreseeable.
Subject to law, this limitation and exclusion of liability shall apply whether the liability claim is based on breach of contract, tort (including negligence or strict liability), in equity or otherwise.

15. Personal Property Securities Act 2009 ('PPSA')

15.1 Unless the context requires otherwise, terms and expressions used in this clause have the meanings given to them in the PPSA.

15.2 You acknowledge and agree that pursuant to these Terms and the PPSA You grant to Us a security interest or purchase money security interest ('PMSI') in all Work to which We retain title under these Terms.

15.3 You acknowledge and agree that We may do anything We consider reasonably necessary, including but not limited to, the registration under the PPSA of any security interest which We may have over the Work or any part thereof including the registration of a PMSI in the Work or any part thereof in order to protect Our security interest as a first priority interest under the PPSA. You further acknowledge and agree to do all things which We reasonably require, including signing any documents and providing further information to assist Us to protect Our security interest and You hereby waive Your right to receive any notice which under section 157(3) of the PPSA, You are permitted to waive.

15.4 You agree that any time You make a payment to Us, irrespective of whether the payment is made for a particular part of the Work, We may apply that payment in any manner and order as We determine.

15.5 You acknowledge and agree that sections 96 and 125 of the PPSA do not apply to the security agreement created by these Terms.

15.6 You waive Your rights to receive

A verification statement in accordance with section 157 of the PPSA; and
Notices under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), and 135 of the PPSA and Your rights as a grantor and debtor under sections 142 and 143 of the PPSA.
15.7 You agree that where We have rights in addition to those in chapter 4 of the PPSA, those rights will continue to apply and will not be limited by section 123 of the PPSA.

16. Miscellaneous

These terms, together with any Contract Documents issued or signed by Us, comprise the complete and exclusive statement of the agreement between the parties (the 'Agreement') and supersede any terms contained in Your documents, unless separately signed by Us.  No part of the Agreement may be changed or cancelled except by a written document signed by Us and You. No course of dealing or performance, usage of trade or failure to enforce any term shall be used to modify the Agreement.  The Agreement shall be governed by the laws of the State of New South Wales, Australia without regard to its conflict of law provisions. Both You and Us reject the applicability of the United Nations Convention on Contracts for the international sales of goods to the relationship between the parties and to all transactions arising from said relationship.