1 INTERPRETATION

In these terms and conditions: “the Client” means the person, firm or company named in this tax invoice “the Company” means Xsential Pty Ltd ACN: 15 101 469 774 “Equipment” means the equipment described in the tax invoice provided.

2 PAYMENT

The Client shall upon receipt of a tax invoice, pay at the Company’s address the total amount shown in the tax invoice in the allotted time frame.

3 DEFAULT

3.1 If the Client defaults in punctual payment of the tax invoice the Client shall pay the Company interest on all outstanding amounts at the rate of 12% per annum until full payment has been received or until the Company retakes or receives possession of the Equipment.

3.2 All costs and expenses incurred by the Company in obtaining possession of the Equipment (and whether or not any action or suit has been instituted) shall be recoverable from the Client in addition and without prejudice to the Company’s right to damages for breach of non payment of this tax invoice.

3.3 In the event of any default by the Client, further deliveries to the Client will not be made. If, despite any default by the Client, the Company elects to continue to make deliveries, its action shall not constitute a waiver of any default by the Client or in any way affect the Company’s legal remedies of any such default.

4 DELIVERY

Delivery dates are not guaranteed. The Company shall endeavour in good faith to meet estimated delivery dates. Delivery within the Perth Metropolitan area is free for goods above a total value of $200. A delivery fee will be incurred if the total cost of goods is less than $200.

5 SECURITY TITLE

Ownership of goods does not transfer to the Client until payment in full has been made to the Company.

6 SPECIFICATION AND PERFORMANCE

(a)Â The Company shall not be responsible for any failure of the Equipment to perform arising from causes beyond its control. These causes shall include, but shall not be restricted to fire, acts of God, explosions, accidents, labour disputes of any character, labour shortages or failure or delays in transportation, water quality, lack of service of the Equipment, out of stock due to market demand, acts of government or any agency thereof and judicial action.

(b) Production data, where given, is based on component manufacturer’s information and careful analyses and understanding of the limits of accuracy, which are dependent on water pressure, sediment in the water, total dissolve solid in the water, maintenance of the appliance, but is nonetheless an estimate only and is not guaranteed. In no event shall the Company be responsible for performance figures supplied by subcontractors or other cooperating parties. If the Equipment is to be subjected to acceptance tests before shipment, recourse under this clause must take place prior to shipment.

(c)Â The Client acknowledges and agrees that the water characteristics as suggested by the manufacturer of the Equipment may differ between the country of manufacture and that of Australia due to factors such as the water source, seasonality, and chemical treatments peculiar to the dams, underground wells, desalination plants or a various mixture of sources in Australia.

(d)Â The Client accordingly acknowledges and agrees that the Company cannot be held liable in relation to any corrosion or other issues arising as a result of such differentiation in water characteristics and the Client hereby indemnifies, releases, and holds harmless the Company from any such claims.

(e) The Client acknowledges that the document headed “Important Notice” accompanies these terms and conditions and forms a part of these terms and conditions and the Client undertakes to ensure that any of its customers to whom it on-sells the Equipment shall be made aware and agree to be bound by the provisions of this Clause 6 of the terms and conditions of sale and be handed the document headed “Important Notice” and the Client hereby indemnifies, releases and holds harmless the Company from any such claims as may be made by the customer of the Client directly against the Company arising out of any of the aforementioned matters.

7 WARRANTY – DISCLAIMER OF IMPLIED WARRANTIES

The warranties provided herein are the exclusive warranties made by the Company. There are no other warranties expressed or implied by law or usage which extend beyond the description on the face hereof and the Client waives all other warranties, expressed, implied or statutory. The Company makes no warranty of merchantability, and the description of the goods or repairs contained in this tax invoice is for the sole purpose of identifying them and is not a warranty.

a) As more specifically provided hereafter, the Company’s liability against defective components under the warranty shall be limited solely to repair or replacement or the issuance of credit or the refund of the purchase price upon the return of such appliances to the Company at the Client’s expense. The Company has no responsibility whatsoever for reimbursing the Client for repair or replacement costs incurred by the Client in connection with this appliance unless written authorization for such charges has been provided by the Company to the Client.

b)Â The Company provides 12 months return to base labour and parts warranty after delivery of the water treatment system (based on one eight-hour shift per 5 day work week operation of the system) for all water treatment systems. On-site attendance by the Company for warranty purposes will be charged to the Client. The Company will only provide 6 months parts warranty if the appliance is NOT serviced according to the recommended schedule. If the Company is given a timely request for service by the Client to correct a malfunction or failure of the appliance to perform in a normal way, which is caused by defective material or workmanship in the construction of the appliance, the Company will do one or both of the following:

i. Make a prompt investigation of the appliance relative to such request. If the Company determines in its sole judgment that such defects were caused by misuse, neglect, improper installation, repair, alteration or accident, the Company shall have no further responsibilities hereunder. The Client will be responsible for repairs and travel costs as per the prevailing service rates.

  ii. If after investigating the appliance, the Company finds in their sole judgment that the BASIC APPLIANCE (pumps, valves, gages, and accessories, etc) contains defective material or workmanship and is the cause of the malfunction or failure of the appliance to perform in the normal way, the Company will, at their expense, perform the required services and/or obtain the required replacement parts necessary to correct the malfunction or appliance failure. The Client will be responsible for returning to the Company defective parts supplied under this Parts and Service Warranty, and the Client’s failure to comply will render the Client liable for the cost of the replacement parts. The cost of freight and/of shipping charges for any parts supplied or returned under this Parts and Service Warranty will be borne by the Client.

c) The Company shall not be liable for any malfunction or failure of the Client’s water feed appliances due to water quality from the water filter systems provided by the Company.

d) Under no circumstances shall the Company be liable to the Client for damages resulting from any breach of warranty or any legal theory including loss of profits, loss of use, downtime, goodwill, damage to equipment or property, faulty workmanship or materials, including without limitation consequential and incidental damages incurred from the purchase, installation, use or inability to use the product.

e) This warranty extends only to the original “Client”, the warranty is not transferable to anyone who subsequently purchases the product from the original “Client”.

f) This warranty does not apply if the purchased product has been damaged by accident, abuse, misuse, negligence or failure to follow the correct installation and maintenance schedule for the device.

g) All appliances under warranty cannot be returned without a Return Authorization (RA) issued by the Company. The RA number must be clearly labelled on the box of the returned item. A 20% restocking fee applies.

h) All filter cartridges are consumables and are subject to wear and tear, therefore they are not covered by the Company’s Limited Warranty.

i) No warranty is provided for goods sold at no cost or as used items unless expressly stated in writing. Damage attributable to normal wear and tear, overload or improper handling and/or installation procedures are not covered by warranty.

j) Any system or component returned for repair that is not covered by warranty will incur a charge for labour and parts.

8 MODIFICATIONS TO XSENTIAL PTY LTD PRODUCTS

No modifications can be made to any of Xsential Pty Ltd products without the prior written permission of Xsential Pty Ltd.

9 INSTALLATION

The installation of the appliance, its assembly, and the provision of a plumber and other connections, etc. are to be the Client’s responsibility. It is the Client’s responsibility to ensure that the appliance is installed according to the attached instructions.

10 CANCELLATION

The Client will be held responsible for all charges including, but not limited to, any additional charges which may arise as a result of any cancellation.

11 LOSS OR DAMAGE IN TRANSIT

The Company’s liability for loss or damage to the appliance and equipment covered by this order is limited to events which in their sole judgment have occurred prior to its delivery to the Client. Any loss or damage subsequent to the delivery of the goods is to be at the risk of the Client.

12 MODIFICATION OF TERMS AND CONDITIONS

No addition to or modification of any of these provisions shall be binding upon the Company unless made in writing and signed by a duly authorized representative of the Company. These provisions constitute the agreement of the parties and any terms, oral or written, not specified herein, shall not be binding. The terms, conditions and warranties of sale contained herein shall take precedence in determining the legal relationship of the parties.

13 NO INDULGENCE

Any indulgence as to time or otherwise granted by the Company to the Client shall not affect the Company’s rights under this Agreement.

14 DELAY IN INSTALLATION

The Company must install the Equipment within a reasonable time but shall not be liable for any loss, injury, damage or expense of any nature arising out of any delay or failure to deliver the Equipment for whatever cause nor shall such delay or failure to deliver entitle the Client to cancel this Agreement or refuse to accept delivery and installation or the Equipment.

15 NO LIABILITY FOR NEGLIGENCE

The Company will not be liable to the Client for any loss or damage suffered by the Client howsoever caused including but not limited to loss or damages caused by the negligence of the Company, its employee, servants, or agents relating to the installation of the Equipment.

16 ACKNOWLEDGMENT AND DISCLAIMER

The Client acknowledges that the equipment has been selected by the Client from the range of the Company’s products offered to the Client in accordance with the Client’s requirements to the Company as to the cost. It is understood and accepted between the parties that:

  16.1 The Company is not an insurer and that any insurance against fire, theft, damage, injury, or other cause must be obtained by the Client at its own cost:

  16.2 The costs and fees payable by the Client are based solely on the value of the Equipment and the Services provided and are unrelated to the value of the Client’s property or the property of others located on the premises.

16.3 No representation is made or is implied that any act matter or thing to be performed or done by the Company shall be performed in any particular manner or in accordance with any standard or system or with due care or skill or without negligence and any implied obligation or term so to is hereby expressly excluded.

 16.4 Should the Company notwithstanding the provision of condition

14 hereof and the foregoing provision be found liable for any loss or damage sustained or suffered by the Client whether such loss or damage arises from the breach by the Company of any contractual provisions or is due to or arises from any negligence or act of commission or omission on the part of the company, its servants or agents in any respect the liability of the company here under and at common law shall be limited to a sum no exceeding $10,000 (which shall include legal costs in respect of the aggregate of all claims arising during any consecutive period of twelve months).

17 ASSIGNMENT

The Company may assign its interest under this Agreement to a third party without the consent of the Client.

18 PROPER LAW

18.1 This Agreement shall be construed and take effect in all respects in accordance with the laws of Western Australia

18.2 The parties agree to submit to the jurisdiction of the Courts of Western Australia in respect of any matter or thing arising out of this Agreement.

19 ACCESS TO THE PREMISES

The Client shall allow the Company, its employees, servants, or agents access to the premises at such times as may be necessary to effect installation or provide services. Such ties shall be subject to prior agreement between both parties.