Terms and Conditions of Sale
1. INTERPRETATION
1.1 In this document, unless the context otherwise requires:
1.1.1 “ACL” means the Australian Consumer Law;
1.1.2 “Business Day” means any day other than a Saturday, Sunday or public holiday in Western Australia;
1.1.3 “Contract” has the meaning given in clause 3.2.
1.1.4 ‘Customer’ refers to the individual, business, partnership or company named on the Quotation that is entering into a Contract with Environex.
1.1.5 ‘Environex’ means Environex International Pty Ltd (ACN 159 887 117), and each related entity as defined in the Corporations Act 2001 (Cth) of Environex International Pty Ltd (ACN 159 887 117) now or at any time Goods and/or Services are supplied to the Customer in the future.
1.1.6 ‘Equipment Supply Agreement’ has the meaning stated in clause 5.9.
1.1.7 ‘Force Majeure Event’ means an event or circumstance:
1.1.7.1 that is beyond the reasonable control of a party and which that party is not reasonably able to prevent or overcome;
1.1.7.2 extreme weather event, fire or natural disaster;
1.1.7.3 act of war, riot, terrorism or vandalism;
1.1.7.4 civil unrest, sabotage, labour disputes or industrial action; embargo, blockade, government action (including increase in government tax, levy or duty);
1.1.7.5 restriction, failure or shortage of power supplies or other essential utility or any transport network;
1.1.7.6 pandemic, epidemic or other widespread threat to human health (including an outbreak or recurrence);
1.1.7.7 strike, embargo or industrial disturbance;
1.1.7.8 industry wide shortage of an input, raw material or ingredient; or
1.1.7.9 a change in a relevant law;
1.1.8 ‘Goods’ refers to any goods supplied by Environex to the Customer.
1.1.9 ‘Quotation’ means any written quotation, proposal, order, pricing schedule, statement of work or estimate issued by Environex to the Customer in respect of the supply of Goods and/or Services, including any specifications, assumptions and inclusions referred to in that document, as may be amended or withdrawn by Environex in accordance with these Terms and Conditions.
1.1.10 ‘Service’ refers to the provision of any service by Environex to the Customer which is expressly described in a Quotation (if any) and may include but is not limited to:
1.1.10.1 the transfer or pumping of chemicals from delivery vehicles into bulk storage tanks located at a site (including Customer sites and third party sites), including activities involving the handling of dangerous Goods;
1.1.10.2 on‑site validation of chemical efficacy, including testing and verification of chemical dosing levels to confirm suitability for the Customer’s processes (for example, disinfection of food manufacturing equipment);
1.1.10.3 optimisation of chemical usage, including analysis of usage patterns and recommendations to adjust or reduce consumption;
1.1.10.4 selection of appropriate chemicals and recommendations regarding dosing concentrations;
1.1.10.5 collection and removal of empty containers from a site (including Customer sites and third party sites);
1.1.10.6 provision, installation and maintenance of chemical safety, handling and compliance signage; and
1.1.10.7 training of site personnel in relation to the safe handling, storage, use and application of the Goods.
1.1.11 ‘Supplier Funded Equipment” means any plant or equipment that Environex supplies under an Equipment Supply Agreement for the purpose of the Customer dispensing Goods supplied by Environex, including but not limited to Goods or Services relating to delivery and metering pumps, foam delivery devices and systems, storage tanks and bunding, monitoring equipment, product dispensers, or pipe work.
1.1.12 ‘Terms and Conditions’ means these terms and conditions set out herein subject to any amendments expressly made by Environex pursuant to clause 19.
1.2 In these Terms and Conditions, unless the context otherwise requires:
1.2.1 the singular includes the plural and vice versa;
1.2.2 a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;
1.2.3 a reference to any gender includes all genders;
1.2.4 a reference to a recital, clause or schedule is to a recital, clause or schedule of or to these Terms and Conditions;
1.2.5 a reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions) as amended, novated, restated or replaced from time to time;
1.2.6 a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute;
1.2.7 a reference to a body, other than a party to the Contract (including, without limitation, an institute, association or authority), whether statutory or not:
1.2.7.1 which ceases to exist; or
1.2.7.2 whose powers or functions are transferred to another body, is a reference to the body which replaces it or which substantially succeeds to its powers or functions.
1.2.8 If a party comprises two or more persons, the covenants and Contracts on their part bind and shall be observed and performed by them jointly and each of them severally and may be enforced against any one or any two or more of them;
1.2.9 A reference to a party includes its executors, administrators, successors and permitted assigns;
1.2.10 No provision of these Terms and Conditions will be construed adversely to a Party solely on the ground that the Party was responsible for the preparation of these Terms and Conditions or that provision;
1.2.11 Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
1.2.12 All references to A$, $, dollar, $, or to currency are references to Australian dollars;
1.2.13 “Including” and similar expressions are not and must not be treated as words of limitation; and
1.2.14 Headings are for ease of reference only and do not affect the meaning of these Terms and Conditions.
2. APPLICATION
2.1 All requests made by the Customer for the supply of Goods and Services by Environex, and all quotations, offers for supply, all supplies of Goods and/or Services by Environex are subject to these Terms and Conditions. This is to the exclusion of all other terms and conditions that the Customer may attempt to introduce, including to the exclusion of all purchase terms, buyer’s terms and similar (and shall supersede all prior contracts).
3. ORDER, ACCEPTANCE, REFUSAL AND CANCELLATION
3.1 All requests for Quotations are made by the Customer subject to these Terms and Conditions. Any Quotation provided by Environex is not an offer to sell Goods or Services and no order given in pursuance of any Quotation will bind Environex until the Customer confirms or agrees to the Quotation and Environex accepts such confirmed Quotation by either confirming in writing or by the supplying the corresponding Goods or Services.
3.2 Each confirmed Quotation for Goods and/or Services that is accepted by Environex will, with these Terms and Conditions, constitute a separate and binding contract between Environex and the Customer (Contract).
3.3 An accepted Quotation may only be cancelled, varied or suspended with the written consent of Environex and, in the event of such cancellation, variation or suspension, the Customer undertakes to reimburse and indemnify Environex in respect of all Goods and Services loss (including loss of profits), costs, expenses and liabilities incurred in preparation for and all supplies made in respect of the cancelled Quotation (including Goods and Services manufactured or prepared and all costs incurred (including third party costs (including freight, carrier and warehouse costs)) must be paid for by the Customer).
4. SUPPLY OF GOODS AND/OR SERVICES
4.1 The Customer is solely responsible for ensuring the accuracy and completeness of all information, specifications and instructions provided to Environex. Environex will be entitled to rely on that information without reviewing such information or any independent verification. In this respect, Environex is not responsible for any loss, damage or liability arising from any failure by the Customer to comply with this clause.
4.2 Environex shall not incur any liability, nor shall any right accrue to the Customer by reason of:
4.2.1 any misrepresentation arising from either printing or clerical errors;
4.2.2 any inaccurate, incomplete or misleading information provided by or on behalf of the Customer (including in any enquiry, specification, order or instructions);
4.2.3 any oral statements or representations not confirmed by Environex in writing; and
4.2.4 any acts, omissions or representation of the Customer or any third party (including the Customer’s employees, agents, contractors or end users);
4.2.5 as Environex has a policy of continuous product improvement, product materials and specifications are subject to change without notice. Where such change may affect product performance customer liaison will occur.
4.3 To the full extent permitted by law, any prior representations, agreements and arrangements, including representations as to the suitability of the Goods and/or Services, and any descriptions, illustrations and material contained in any advertisement, website, catalogue, price list or brochure are excluded from, and do not form part of, the Contract unless, and only to the extent, explicitly stated in the Contract to the contrary.
4.4 Nothing in these Terms and Conditions (or in a Contract) excludes, restricts or modifies any consumer guarantee, right or remedy conferred on the Customer by the Australian Consumer Law.
4.5 Acts and omissions (including, without limitation, in relation to the placement or alteration of the Contract) of the Customer’s directors, employees, former directors, employees, contractors (except Environex), agents and/or any other person who purports to act on behalf of the Customer, shall be treated as the Customer’s acts and omissions even if the person who purports to act on behalf of the Customer acts outside their authority.
5. SUPPLIER FUNDED EQUIPMENT
5.1 Clauses 5.1 to 5.13 apply to any Supplier Funded Equipment supplied by Environex under a Contract. If there is an inconsistency between a provision of clauses 5.1 to 5.13 and another provision of a Contract in relation to the Supplier Funded Equipment, the relevant provision in clauses 5.1 to 5.13 shall prevail to the extent of the inconsistency.
5.2 Unless otherwise agreed in writing between the Customer and Environex, the Supplier Funded Equipment provided remains the property of Environex at all times.
5.3 The Customer must not sell, lease, hire, lend, transfer, dispose of, part with possession of, or otherwise permit any third party to use the Supplier Funded Equipment without the prior written consent of Environex.
5.4 The Customer must not create, or permit to exist, any mortgage, charge, lien, encumbrance or any other security interest over the Supplier Funded Equipment.
5.5 The Customer will use the Supplier Funded Equipment for the sole purpose of dispensing Goods supplied by Environex and must at all times:
5.5.1 use the Supplier Funded Equipment safely and with due care and skill;
5.5.2 operate the Supplier Funded Equipment strictly in accordance with all manufacturer specifications, instructions and guidelines, and any instructions (written or oral), directions, guidelines or safety requirements provided by or made available by Environex; and
5.5.3 comply with all applicable laws, regulations, codes and standards in connection with the use, operation and maintenance of the Supplier Funded Equipment;
5.5.4 be appropriately skilled, trained, qualified, experienced, and competent to deal with the hazardous nature of the Goods.
5.6 The Customer agrees to replace or pay for (at Environex’s discretion) any Supplier Funded Equipment that may be lost, stolen or damaged whilst in the Customer’s care (excluding fair wear and tear).
5.7 The Customer agrees that any repairs, alteration or modification to Supplier Funded Equipment may only be performed by the Customer with the prior written consent of Environex (at Environex’s discretion). Any repair, alteration or modification that damages, limits or changes the Supplier Funded Equipment with prior written consent must be paid for in full by the Customer (such amounts immediately due on issuance of an invoice for such item/s).
5.8 Should the Customer wish to discontinue the use of the Supplier Funded Equipment for any reason, or cease to maintain an active account with Environex:
5.8.1 the Customer will notify Environex in writing immediately; and
5.8.2 all Supplier Funded Equipment must be returned to Environex either by the Customer at the Customer’s expense or held for pickup by Environex (at Environex’s discretion). The Supplier Funded Equipment must be returned to Environex in reasonable condition, good repair and working order, and free from damage (subject to fair wear and tear) and alteration or modification (except to the extent the Customer has written permission from Environex). If the Supplier Funded Equipment is not returned to Environex in reasonable condition, good repair and working order, and free from damage within 5 days, the Customer will be liable to Environex for the full replacement value of the Supplier Funded Equipment and the Customer will indemnify Environex for the full costs of maintaining and repairing any damaged Supplier Funded Equipment or the full costs of replacing any Supplier Funded Equipment that (in the sole discretion of Environex) is damaged beyond repair.
5.9 Ownership of the Supplier Funded Equipment shall not transfer to the Customer unless the transfer is pursuant to a written agreement between the Customer and Environex. Any transfer of ownership of Supplier Funded Equipment will occur by way of a separate written supply of equipment agreement, or similar, in which timing and equipment values will be particularised and agreed upon (“Equipment Supply Agreement”).
5.10 If for any reason an Equipment Supply Agreement is terminated or a Supplier Funded Equipment is to be replaced, then the value of the Supplier Funded Equipment will be calculated on a straight line depreciation schedule over 3 years from the date of installation and the customer will be liable to reimburse Environex for the written down value.
5.11 If an Equipment Supply Agreement is in place, or if a Contract is in place between Environex and the Customer, and the supply of Supplier Funded Equipment forms part of that Contract, then:
5.11.1 the Supplier Funded Equipment must either be installed or installation near complete within 12 months of the date that the Equipment Supply Agreement or Contract is entered into; and
5.11.2 If the Supplier Funded Equipment is not installed or installation near complete within 12 months of the date that the Equipment Supply Agreement or Contract is entered into then the offer to supply the Supplier Funded Equipment will be deemed to have expired and installation of the Supplier Funded Equipment can not be called upon.
5.12 Any offer of Supplier Funded Equipment can not be converted to cash at any time.
5.13 Unless otherwise agreed in writing, maintenance of the Supplier Funded Equipment shall be the responsibility of Environex during the term of the Equipment Supply Agreement and will be subject to Environex charging its usual rates (for time and materials). The Customer will pay Environex for the full costs of maintaining and repairing the Supplier Funded Equipment (all time and materials at Environex’s then usual rates and pricing (and that of any third party)).
6. CUSTOMER OBLIGATIONS
6.1 The Customer must, at all times:
6.1.1 comply with all applicable laws, regulations, codes, standards, licences and approvals in connection with the ordering, delivery, storage, handling, transport, receipt and use of the Goods and/or Services;
6.1.2 ensure that all Customer personnel involved in the handling, storage, transport, receipt and use of the Goods are appropriately trained, qualified and competent, having regard to the nature of the Goods (including where the Goods comprise hazardous or dangerous substances);
6.1.3 handle, store, transport and use the Goods safely and strictly in accordance with all applicable laws and any instructions, guidelines, or recommendations provided by Environex or the relevant third party manufacturer or supplier;
6.1.4 ensure that the Goods are used only for their intended purpose and in accordance with any specifications, directions or limitations notified by Environex (whether in writing or oral);
6.1.5 ensure that all sites at which the Goods and/or Services are delivered, stored or used (including any third party sites) are compliant with all applicable health, safety and environmental laws and are safe and suitable for delivery, storage and use of the Goods and/or Services;
6.1.6 implement and maintain all necessary safety systems, procedures and controls to prevent injury, damage, contamination and loss arising from the Goods and/or Services;
6.1.7 where Environex arranges or undertakes delivery, ensure that all reasonable directions provided by Environex (or third party carriers or deliverers) in relation to delivery, unloading and site safety are complied with, and that safe access and working conditions are provided at the delivery location; and
6.1.8 promptly notify Environex of any incident, defect, risk or non‑compliance in connection with the Goods and/or Services, or their use.
7. QUOTATIONS AND TENDERS
7.1 Environex’s Quotation are valid for confirmation by the Customer for 30 days from date of the Quotation (unless otherwise stated), after which it may be withdrawn or varied by Environex at any time prior to confirmation by the Customer.
7.2 Any Quotations issued by Environex does not oblige Environex. The Customer is solely responsible for checking that the details in the Quotation are accurate in every aspect before acceptance. A Quotation issued by Environex to the Customer does not constitute an offer capable of acceptance (a Quotation confirmed or approved by the Customer constitutes an irrevocable offer by the Customer which Environex has 30 days to accept).
7.3 Environex is not bound by any Quotation unless and until a Contract is formed in accordance with clause 3.
8. PRICE AND PAYMENT
8.1 The Environex prices and charges to be charged to the Customer for the provision of Goods and/or Services will be the pricing and charges set out in the Quotation plus any fees described in clause 10.5 (if any), plus all third party fees and costs, taxes, credit card fees, freight, handling, delivery and insurance charges (whether set out in the Quotation or not), provided that the Customer places a written order within 30 days of the date of the Quotation.
8.2 If Environex is of the opinion (acting reasonably) that additional work must be carried out which is not covered by the Quotation, the further cost will be agreed in writing with the Customer prior to the commencement of such additional work, except in the event of such work being required on an urgent basis, or where, in Environex’s opinion, failure to carry out the work immediately would or may create or increase a site, safety or product risk, or create or increase a risk to life or property.
8.3 As a condition precedent to future supplies under the Contract pursuant to which the payments are due or under any other Contract, the Customer agrees that payment of all fees and charges (including third party fees and charges) must be received by Environex from the Customer by the last working day of the calendar month following the month of in which Environex issues its invoice, without any set off or deduction.
8.4 The Customer acknowledges and accepts that any credit provided by Environex or extension to payment terms may be withdrawn at any time.
8.5 Unless the Contract expressly states otherwise, payment terms are strictly 30 days from end of month in which the invoice is issue.
9. COSTS RECOVERABLE
9.1 If the Customer defaults in the payment of any monies due whether under an invoice, a Quotation, a payment plan or otherwise, then, without limiting any other rights of Environex:
9.1.1 all monies due to Environex shall immediately become due and payable; and
9.1.2 the Customer must pay those amounts within 7 days of the date that those amounts become immediately due and payable under clause 9.1.1.
9.2 If the Customer fails to pay any amount payable by the due date, the overdue amount will accrue interest daily from (and including) the due date until the date of actual payment (both before and after judgment) at a rate equal to the greater of 10% per annum and the Reserve Bank of Australia’s cash rate plus 5% per annum. Interest will be calculated daily and compounded monthly.
9.3 If any amount remains unpaid for more than 30 days after its due date, or if an event of default occurs, Environex may, at its discretion:
9.3.1 withhold, suspend or cease the supply of any Goods and/or Services under any Contract until all outstanding amounts are paid in full;
9.3.2 terminate any Contract on 7 days’ written notice to the Customer;
9.3.3 take possession of any Goods supplied (including entering the Customer’s premises or any third party premises where the Goods are located, to the extent permitted by law);
9.3.4 sell or dispose of any repossessed Goods and apply the proceeds towards any amounts owing by the Customer; and/or
9.3.5 take debt recovery action (including commencing legal proceedings) to recover all amounts owing, together with any interest, loss, damage or costs suffered or incurred by Environex as a result of the default.
9.4 Any expenses, costs or disbursements, including debt collection agency fees, commission and any legal fees (on an indemnity basis) incurred by Environex in recovering any outstanding monies shall be paid by the Customer on an indemnity basis.
10. DELIVERY
10.1 Environex may arrange delivery of the Goods and/or Services to the location agreed in the Contract. Delivery may be undertaken by Environex (including its employees, agents and contractors) or its third party carriers and providers.
10.2 The method of delivery and responsibility for freight, transport and associated costs will be as specified in the relevant Quotation or otherwise agreed between the parties in writing. Without limitation:
10.2.1 freight, transport and delivery are excluded from Environex’s fees and charges unless expressly stated in the Quotation (all deliveries are on an ex works basis unless the Quotation expressly states otherwise);
10.2.2 freight, transport and delivery will be charged separately to the Customer in addition to Environex’s fees and charges unless expressly stated in the Quotation;
10.2.3 the Customer may elect to arrange the collection of the Goods (on an ex works basis), in which case the Customer is responsible for all transport, handling, freight and associated costs and risks from the time of collection; and
10.2.4 Where the Customer arranges collection of the Goods:
10.2.4.1 if the Customer appoints a carrier, agent or contractor to do so, that party will be deemed to be acting on behalf of the Customer; and
10.2.4.2 if the Customer does not collect the Goods on time, Environex may charge the Customer Environex’s usual storage rate per day until collected.
10.3 Whilst Environex will use its best endeavours to ensure delivery of the Goods and/or Services by the date requested by the Customer, it does not guarantee delivery on that date and will not be liable for any damages, loss, costs or charges incurred by the Customer due to late delivery ensuing from any circumstances whatever, either within or beyond the control of Environex.
10.4 The Customer acknowledges and agrees that Environex’s standard hours of delivery of Goods and/or Services are only between the hours of 6:00am and 6:00pm on Business Days.
10.5 In the event that the Customer requests, and Environex agrees, to deliver the Goods and/or Services outside of the standard of hours of delivery specified in clause 10.4 above, Environex shall be entitled to charge and the Customer shall pay:
10.5.1 a fee of $400; plus
10.5.2 for every hour that the duration of Environex’s delivery exceeds 4 hours, fees of $100 per hour in addition to the fee described in clause 10.5.1
10.6 Environex may deliver Goods and Services in instalments. Each instalment may be invoiced separately and must be paid for in accordance with these Terms and Conditions.
10.7 In consideration of payment of all fees and charges by the Customer, Environex may arrange delivery of Goods and/or Services to the Customer’s nominated location in accordance with the Contract.
10.8 The Customer must accept delivery of the Goods and/or Services at the delivery location nominated by the Customer (regardless of whether the Customer or its personnel are present). The Customer must ensure that the delivery location:
10.8.1 is safe, suitable and accessible for delivery;
10.8.2 the required access, permissions, consents and authorisation (including from any third party site owner or operator) have been provided to Environex;
10.8.3 complies with all applicable work health and safety, dangerous goods, environmental and other laws and regulatory requirements;
10.8.4 has appropriate equipment, personnel and facilities available to safely receive, unload, store and handle the Goods (such personnel being sufficiently trained, skilled and experienced); and
10.8.5 is otherwise suitable for the nature of the Goods and/or Services being delivered.
10.9 Environex, its agents, contractors or carriers may delay, suspend or refuse delivery if, in their reasonable opinion:
10.9.1 the delivery location is unsafe or unsuitable;
10.9.2 safe access is not available;
10.9.3 the Customer has not complied with its obligations under the Contract; or
10.9.4 delivery would create an unacceptable health, safety, environmental or operational risk.
10.10 To the full extent permitted by law, once the goods are delivered they are at the Customer’s risk. Environex will not be liable for any loss, damage, cost, expense or charge suffered or incurred by the Customer arising from or in connection with any delay in delivery, whether caused by circumstances within or outside Environex’s control.
10.11 Subject to clause 10.11, the Goods are at the Customer’s risk immediately upon the earliest of the following:
10.11.1 collection by the Customer, or collection by the Customer’s carrier, agent or contractor, from Environex’s premises or warehouse;
10.11.2 delivery to the address nominated by the Customer (Environex may leave Goods at the location regardless of attendance on site by the Customer or the Customer’s site security);
10.11.3 delivery to the Customer, or into the Customer’s custody or control; or
10.11.4 delivery to any third party site or location nominated by or on behalf of the Customer.
10.12 All Goods dispatched by rail, sea or Customer’s carrier are Ex Works and at the Customer’s risk from the point of leaving Environex’s site. Environex will be under no obligation to insure Goods in transit to Customers. Environex shall not be liable for any loss or damage to Goods either after collection by Customer’s carriers from approved Environex warehouses, or where in transit between transport terminals, wharf or rail in regional centres and Customer’s premises where such is arranged by Customer.
10.13 Upon risk in the Goods supplied by Environex passing to the Customer, the Customer shall insure the Goods and/or Services for their full insurable value against loss or damage by fire, theft, accident and other such risks.
10.14 The Customer must inspect the Goods and/or Services immediately upon delivery and must notify Environex in writing of any alleged defect, shortage, damage or delivery issue in accordance with clause 14.
11. RETENTION OF TITLE
11.1 Until Environex has received full payment of all fees and charges for the Goods and all other sums owing by the Customer in relation to the supply of Goods (including any fees or costs in respect of Supplier Funded Equipment (including repairs and replacements):
11.1.1 the Customer shall have no right to sell or dispose of any or all of the Goods;
11.1.2 legal and equitable title to the Goods remains with Environex; and
11.1.3 the Customer takes custody of the Goods and shall retain them as the fiduciary agent and bailee of Environex.
11.2 Where any part of the fees and charges for Goods and/or Services supplied by Environex remains owing, the following provisions apply:
11.2.1 Environex shall retain legal title to all Goods supplied;
11.2.2 the Customer must store the Goods separately and in such a manner as to show clearly that they are the property of Environex;
11.2.3 if the Customer sells the Goods it shall do so as a fiduciary agent for Environex, all monies are held on trust for Environex’s benefit and the Customer shall account to Environex for all proceeds from any sale;
11.2.4 if such Goods and/or Services are used in some manufacturing process, construction process, or other process by the Customer or some third party, even with loss of identity, the legal title to the resultant Goods shall vest in Environex. The proceeds of the sale of the Goods and/or Services or resultant Goods shall be received by the Customer as agent of Environex and such proceeds are to be held on trust for Environex’s benefit, kept in a separate account, and are to be accounted for on demand.
12. SECURITY
12.1 These Terms and Conditions are a security agreement (for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA)) and Environex has a security interest in the Goods and in the proceeds of its sale.
12.2 The security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any time.
12.3 The Customer must do whatever is necessary in order to give a valid security interest over the Goods which is able to be registered by Environex on the Personal Property Securities Register as a purchase money security agreement.
12.4 The security interest arising under this clause attaches to the Goods when the Goods are delivered to the Customer.
12.5 The Customer must immediately upon Environex’s request:
12.5.1 do all things and execute all documents necessary to give effect to the security interest created under these Terms and Conditions; and
12.5.2 procure from any person considered by Environex to be relevant to its security position such agreements and waivers (including as equivalent to those above) as Environex may at any time require.
13. FORCE MAJEURE
13.1 Environex will not be liable for any delay or breach of the Contract due to a Force Majeure Event. Furthermore, Environex is excused from performing any term, covenant or condition required by the Contract during the time and to the extent that performance is prevented when such performance is prevented wholly or in part by circumstances beyond Environex’s control.
14. DEFECTS, RETURNS AND WARRANTIES
14.1 Inspections and notification
14.1.1 Within 7 days of Environex’s delivery of Goods or Services (as relevant), the Customer must:
14.1.1.1 inspect the Goods or Services (as relevant) and provide written notice of any alleged defects in the Goods and/or Services to Environex in writing; and
14.1.1.2 provide written notice of any alleged claims on Environex for returns due to alleged delivery errors or any other reasons, in writing to Environex.
14.2 Defective Goods and Services
14.2.1 Put generally, the consumer guarantees under the ACL will not apply to the Goods or Services Environex supplies where:
14.2.1.1 the Goods or Services are not for personal, domestic or household use or consumption; and/or
14.2.1.2 the purpose of using Environex Goods or Services are to use them up or transforming them, in trade or commerce (i) in the course of a process of production or manufacture or (ii) in the course of repairing or treating other goods or fixtures on land.
14.2.2 Nothing in these Terms and Conditions excludes, restricts or modifies any consumer guarantee, right or remedy conferred on the Customer by the ACL to the extent that the Customer is a consumer for the purposes of the consumer guarantees under the ACL.
14.2.3 To the extent that the Customer is a consumer for the purposes of the consumer guarantees under the ACL and a Good or Service supplied by Environex fails to comply with a consumer guarantee under the ACL, then Customer may be entitled to the remedies available under the ACL.
14.3 Where legislation (including the ACL) implies into a Contract any condition or warranty which cannot lawfully be excluded, Environex’s liability for a breach of such a condition or warranty is limited, at Environex’s option, to one or more of the following:
14.3.1 the replacement of the Goods or the supply of equivalent goods;
14.3.2 the repair of the Goods;
14.3.3 the payment of the cost of replacing the goods or of acquiring equivalent Goods; or
14.3.4 the payment of the cost of having the Goods repaired.
14.4 Returns will apply as follows.
14.4.1 The Customer must comply with the notification requirements in clause 14.1 to be eligible for a return. Unless the law prohibits such, all returns are for credits, not for cash.
14.4.2 Approval for all returns must be received in writing from Environex prior to any return being made. Freight costs of returns will be for the Customer’s account or pick up charge will be made by Environex for the approved collection of Goods.
14.4.3 All approved returns must be accompanied by a credit claim quoting invoice numbers and dates and reason including the name of the Environex representative who approved the return.
14.4.4 The Customer must allow Environex (or its nominee) reasonable access to inspect the Goods prior to return (the Customer must allow for reasonable inspection times and multiple site visits to confirm the nature of the Goods to be returned). The condition of all intended returns will be examined by Environex prior to return and/or crediting.
14.4.5 The Customer must ensure that all Goods made available for collection are properly sealed, labelled and free from contamination outside normal product residue. Environex may refuse collection of any incompletely filled, damaged, lost, unsafe or non‑compliant containers.
14.4.6 Where claims are not justified or the Goods are returned without express written authorisation from Environex, or the Goods are in unsuitable condition or contaminated through no fault of Environex, the Goods will be returned to the Customer at the Customer’s expense or not accepted for return by Environex (at Environex’s discretion).
14.4.7 If the inspection reveals that the alleged defect was not caused by any act or omission of Environex, then the Customer must pay all costs of Environex incurred in connection with the inspection and any attempted return.
14.5 The Customer acknowledges and agrees to pay a restocking charge equal to 10% of the fees and charges of the Goods and/or Services that are returned in accordance with this clause 14.
14.6 The Customer must allow a representative of Environex (including a third party engaged by Environex) the rights to inspect any alleged defect reported in accordance with clause 14.1.
15. WARRANTIES
15.1 Environex makes no warranties to the Customer, except those expressly set out in writing in the Contract and these Terms and Conditions.
15.2 Nothing in these Terms and Conditions excludes, restricts or modifies any consumer guarantee, warranty, condition, right or remedy conferred on the Customer by operation of the ACL (and only to the extent the Customer qualifies for the benefit of the consumer or small business provisions).
15.3 To the full extent permitted at law, Environex will not be liable in any circumstances for any loss, cost, expense or damage whatsoever in connection with or arising out of any:
15.3.1 condition, warranty or term implied by statute or general law or custom except any implied condition or warranty the exclusion of which would contravene statute or cause this clause to be void at law;
15.3.2 consequential, incidental, special, punitive, exemplary or indirect loss, damages, costs or expenses, or loss, damages, costs or expenses which do not naturally arise, in connection with or in respect of the Contract, any of the Goods and/or Services or the supply of such (whether under a Contract or not), whether in law, tort, equity or statute, even if Environex knew such loss, damages, costs or expenses were foreseeable, unforeseeable or possible, including, without limitation, lost profits, loss of business, loss of customers, loss of goodwill, loss of reputation, loss of use, business interruption or loss of use, and/or any damages suffered as a result of claims by a third party;
15.3.3 claims by the Customer in negligence for acts or omissions of Environex or its employees, Agents, or contractors arising out of or in connection with the Contract.
15.4 The Customer represents and warrants that:
15.4.1 all information, specifications and instructions provided to Environex are accurate, complete and up‑to‑date;
15.4.2 it has obtained and will maintain all licences, consent, permits, approvals and authorisations required to receive, handle, store, transport and use the Goods and/or Services;
15.4.3 it will use, handle, store and transport the Goods safely and in accordance with all applicable laws, regulations and Environex’s instructions and guidelines (whether written or oral);
15.4.4 it has the necessary expertise, systems, facilities and trained personnel to safely manage the Goods (including where the Goods comprise hazardous or dangerous substances); and
15.4.5 it will not rely on any representation, statement or warranty (oral or otherwise) which is not expressly set out in the Contract.
16. LIABILITY AND INDEMNITY
16.1 Notwithstanding anything else in a Contract, to the full extent permitted at law, Environex’s maximum aggregate liability under a Contract is limited to the total sum paid by the Customer under the affected Contract or for the affected supply.
16.2 To the full extent permitted at law and subject to clause 16.4, the Customer hereby releases and indemnifies and agrees to keep Environex indemnified from any and all costs (including all legal fees and costs) and any other legal or other expenses incurred by it in investigating or defending any action or threatened actions (on an indemnity basis), damages, liabilities, penalties, fines, expenses or losses including indirect, incidental, consequential, punitive or exemplary loss or damage (including, without limitation, lost profits, loss of business, loss of customers, loss of goodwill, loss of reputation, loss of use, business interruption or loss of use, and/or any damages suffered as a result of claims by a third party), whether resulting from breach of contract, tort, warranty, strict liability, statute or any other legal theory or otherwise that Environex may incur in relation to an act or omission of the Customer’s or any third party that is engaged by the Customer (to the extent that the cost, damage, liability, penalty, fine, expense or loss has not been caused by or contributed to by Environex).
16.3 To the full extent permitted at law and subject to clause 16.4, the Customer is liable for all costs and disbursements incurred by Environex and its appointed agents on an indemnity basis in enforcing its rights under the Contract, including, but not limited to all legal fees and costs and any other legal or other expenses incurred by it in investigating or defending any action or threatened actions.
16.4 Clauses 16.2 and 16.3 do not apply to the Customer to the extent that the Customer is a consumer or small business for the purposes of Chapter 2 Part 2-3 of the ACL.
17. CONTAINERS AND PALLETS
17.1 The Customer is responsible for and must pay all costs, charges, fees and expenses associated with any containers, pallets, crates, cages, stillages or other returnable packaging supplied by or on behalf of Environex in connection with the supply of Goods.
17.2 The Customer must return all such items in good condition (fair wear and tear excepted) within the time specified by Environex. The Customer is liable for the replacement cost of any containers, pallets or other returnable packaging that are lost, destroyed, not returned when required, or damaged beyond fair wear and tear. Environex may invoice the Customer for any such replacement costs and any associated handling, transport or administrative charges, and the Customer must pay those amounts in accordance with the payment terms of the Contract.
18. TERMINATION
18.1 Any request by the Customer to cancel or terminate a Contract or confirmed Quotation must be made in writing before purporting or alleging that the Contract or confirmed Quotation is cancelled or terminated. Environex may, at its discretion, accept or reject the request, and Environex may specify any terms and reasonable fees and charges upon which such request may be agreed to.
18.2 Environex may, in addition to any other rights under the Contract, terminate the Contract by written notice to the Customer if any one of the following events occurs:
18.2.1 Substantial damage to or interference with the provision of the unpaid Goods and/or Services by any cause beyond the control of Environex including if caused by or contributed to by a Force Majeure Event;
18.2.2 the Customer commits a material breach of the Contract or these Terms and Conditions and does not rectify that breach within 7 days of the date of written notice of such material breach and such notice sets out the details relevant to the breach;
18.2.3 the Customer misuses any Goods supplied to the Customer (including Supplier Funded Equipment);
18.2.4 the Customer does not have the ability to receive, keep or use any Goods or Services in a safe and compliant manner;
18.2.5 the Customer becomes insolvent or bankrupt, makes any assignment for the benefit of or enters into any arrangement or composition with its creditors, has a controller, administrator, receiver or liquidator appointed, commits an act of bankruptcy or if a sequestration order is made against the Customer’s estate, or is otherwise unable to pay its debts as they fall due;
18.2.6 the performance of the Contract is prevented or materially affected by a Force Majeure Event for a continuous period of 30 days; or
18.2.7 any failure by the Customer for 10 days after the due date hereof to pay any part of the Price.
18.3 The Customer may terminate the Contract by giving written notice to Environex if:
18.3.1 Environex commits a material breach of the Contract or these Terms and Conditions and does not rectify that breach within 30 days of the date of written notice of such material breach and such notice sets out the details relevant to the breach;
18.3.2 Environex becomes insolvent or bankrupt, makes any assignment for the benefit of or enters into any arrangement or composition with its creditors, has a controller, administrator, receiver or liquidator appointed, commits an act of bankruptcy or if a sequestration order is made against Environex’s estate, or is otherwise unable to pay its debts as they fall due.
18.4 Without limiting any other rights, Environex may, acting reasonably, suspend or withhold the supply of any Goods and/or Services (in whole or in part) if:
18.4.1 the Customer fails to pay any amount when due;
18.4.2 Environex reasonably considers that the Customer’s creditworthiness or financial position has materially deteriorated;
18.4.3 the Customer is in breach of these Terms and Conditions or a Contract; or
18.4.4 supply would create a material health, safety, environmental or legal risk.
18.5 On termination of a Contract:
18.5.1 all amounts owing by the Customer become immediately due and payable;
18.5.2 Environex may cease supply of Goods and Services; and
18.5.3 the Customer must return (or make available for collection) any Goods or Supplier Funded Equipment; and
18.5.4 the Customer shall pay Environex for all Services and Goods provided by Environex, all work done by Environex (including for incomplete work, and for Goods or Services yet to be delivered but worked on or the manufacturing or supply process had begun), all materials used or procured by Environex and chargeable to the date of termination, and all third party costs and expenses (including for all storage, carrier and freight costs, and all commitments that have been entered into for the Customer or the purposes of the Contract which cannot be avoided (regardless of whether it is past, present or future)).
19. AMENDMENT
19.1 From time to time, Environex may review and amend these Terms and Conditions and the Customer shall be bound by any amendment which shall apply to Terms and Conditions in place at the time of entering into a Contract for the supply of any Goods and/or Services.
20. ASSIGNMENT AND SUBCONTRACTING
20.1 A party may not assign or novate a Contract, or any of its rights, liabilities, or obligations under any Contract, without the prior written consent of the other party (such consent to not be unreasonably withheld).
21. PRIVACY
21.1 The Customer represents and warrants that it has all rights, consents and authorities required to provide all information to Environex for Environex to use for the purposes of each Contract.
21.2 Environex will collect, use, store and disclose personal information in accordance with its Privacy Policy.
21.3 Environex collects personal information from Customers to enable Environex to:
21.3.1 assess and process the Customer’s application for a trading account; and
21.3.2 provide Goods and Services to the Customer.
21.4 Environex may contact other people and organisations, such as credit reference agencies or referees to collect information about the Customer. Environex may also disclose the Customer’s personal information to relevant Environex staff, contractors and agents, credit providers and any credit reporting agency.
21.5 Environex relies on the Customer to ensure that the personal information provided to Environex is current and accurate, and has the required consents for collection and use.
21.6 Where the Customer provides personal information to Environex concerning other individuals, the Customer represents and warrants to Environex that the information has been provided with the agreement of those persons and that Environex is authorised by them to use it. Environex may also use personal information provided to it to keep the Customer informed about its Goods and Services.
21.7 By signing Environex’s Application to Open Credit Account, the Customer consents to Environex to:
21.7.1 obtain credit information about its personal, consumer and/or commercial credit worthiness from any bank or trade referee disclosed in any an application for commercial credit with Environex completed by it and provided to Environex and from any other credit provider or credit reporting agency for the purpose of assessing its application, or in connection with any guarantee given by the Customer;
21.7.2 use, disclose or exchange with other credit providers information about the Customer’s credit arrangements in order to assess its application for credit, monitor credit worthiness and collect overdue accounts; and
21.7.3 disclose the contents of any credit report on the Customer to its advisers, contractors and mercantile agents.
The Customer authorises Environex to carry out credit checks and obtain credit reports in respect of their creditworthiness in accordance with any relevant law in force from time to time and disclose to credit reporting agencies the details of any Contracts. The Customer agrees that Environex may give to and seek information about the Customer’s arrangements from any trade references or credit providers and any credit providers that may be named in a credit report issued by a credit reporting agency.
22. WAIVER AND SEVERANCE
22.1 Failure by Environex to enforce any right or remedy is not a waiver of any right or remedy, or a waiver in respect of a continuing breach.
22.2 Any waiver by Environex must be in writing signed by Environex and will only operate to the extent it is given in writing.
22.3 If any provision contained in these Terms and Conditions (or in a Contract) is held by a court to be unlawful, invalid or unenforceable, the validity and enforceability of the remaining provisions in these Terms and Conditions (and in the Contract) are not affected.
23. GOVERNING LAW AND JURISDICTION
23.1 These Terms and Conditions and all Contracts are governed and is to be construed in accordance with the laws in force in the State of Western Australia.
23.2 These Terms and Conditions and all Contracts are subject to the exclusive jurisdiction of the courts of Western Australia.
24. NOTICES
24.1 A notice to be given under these Terms and Conditions or the Contract must be given by a party in accordance with this clause 24.
24.2 A party must address a notice to the other party at its address set out in the Contract and must serve the notice at that address. A party may give notice of another address (within Australia) or electronic mail address to the other party and the new address or electronic mail address shall be the address for service of the party for the purposes of this clause.
24.3 A party may deliver a notice by hand, registered or express post, or by electronic mail. A party must give all notices in the English language and in writing.
24.4 If before 5 pm local time in the place of delivery, a party delivers a notice by hand or by electronic mail and the sending party completes the transmission, the notice will be taken to be given on the day of delivery or transmission, and in any other case on the next day.
24.5 If the party gives notice by post the notice will be taken as given on the 4th day in the place of delivery after the notice is posted.
25. RECEIPT AND ADVICE
25.1 The Customer hereby acknowledges receipt of these Terms and Conditions and agree to be bound by them. The Customer accepts these Terms and Conditions and acknowledge and agree that they are legally binding and enforceable. The Customer further acknowledges that they have had the opportunity of obtaining independent legal advice and that the Customer understands the Terms and Conditions above.
Last updated 1 July 2026
