Terms and Conditions of Sale

1. 1.        DEFINITIONS AND INTERPRETATION

1.1   Challenge Pumps means the entity stated on the Quote issued to the Customer being either of Challenge Pumps Pty Ltd ABN 21 114 578 415 or Challenge Pumps Australia Pty Ltd ABN 49 141 485 547,  but if not stated or uncertain then the entity Challenge Pumps Pty Ltd ABN 21 114 578 415.

1.2   “Contract” means the contract entered into between Challenge Pumps and the Client consisting of Challenge Pumps’ quotation, the Client’s acceptance of the quotation, whether written or verbal, the diagrams and drawings (if any) provided with the quotations, and these Standard Conditions of Sale (‘Conditions’). In the event of any inconsistency between the Client’s acceptance and the terms of the Contract, the terms of the Contract shall prevail.

1.3   “Client” means the party purchasing or offering to purchase Goods from Challenge Pumps pursuant to this Contract (including any successors, nominees and any Insolvency Administrator appointed to take control of the Client’s business), and where there is more than one Client, the Client’s covenants and obligations are joint & several.

1.4   “Date of Delivery” means the date of delivery of the Goods as stated in the Contract, and if no date is stated in the Contract, is the date on which the Goods are made available for collection at the premises of Challenge Pumps.

1.5   “Goods” means the Goods manufactured, imported, supplied and / or delivered by Challenge Pumps to the Client or as the Client may direct pursuant to this Contract.

1.6   “Invoice” means the invoice rendered to the Client by Challenge Pumps.

1.7 “Price” means the price of the Goods and any other fees or charges payable to Challenge Pumps by the Client as stated in the Contract.

1.8 Incorporation:  These Standard Conditions of Sale (‘Conditions’) apply to and are incorporated in the Contract.  In the event of any inconsistency between a term of the Contract and a term of these Standard Conditions of Sale, then the other Contract term shall prevail over these Standard Conditions of Sale.

1.9 Severance: Any provision hereof prohibited by or rendered unlawful or unenforceable under any applicable law actually applied by any court of competent jurisdiction shall, to the extent required by such law, be severed from these Conditions rendered ineffective so far as is possible without modifying the remaining provisions of these Conditions.

1. 2.        PAYMENT

2.1   Payment of the Price is due at the stages or in the manner specified in the Contract, and if not so specified then on the Date of Delivery of the Goods and for capital purchases the Client shall pay a deposit of 10% within 14 days of the Contract.

2.2   Time shall be of the essence in respect of payment of the Price under the Contract.

2.3   The Client shall pay any Invoice within 30 days from the date of the invoice.  If the Client fails to pay the Invoice when due then Challenge Pumps may charge interest at the rate of 7% per annum, calculated and charged monthly and the Client shall pay all legal or other costs incurred by Challenge Pumps in attempting to recover the outstanding payment owed by the Client and  Challenge Pumps may, without prejudice to any other remedy, suspend supply or delivery of any Goods to the Client until such payment is made.  If any Invoice or charge is in dispute the Client shall pay for all other Invoices or charges outstanding pending an investigation.

1. 3.        GOODS  & SERVICES TAX

3.1   Unless otherwise stated in the Contract, all prices and amounts expressed or described by Challenge Pumps in the Contract, verbally or in writing are GST exclusive prices.

3.2   The price for the supply of the Goods and any other things by Challenge Pumps to the Client is increased by the amount of the GST liability that Challenge Pumps incurs in making the supply and that amount is payable at the same time as the consideration that is payable in respect of that supply before that increase.  

3.3   Challenge Pumps will provide the Client with a tax invoice at the time the Goods are delivered under the Contract, or on request

3.4     In this clause:

a. “GST” means GST under the GST Act;

b. “GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (as amended); and

1. c.  “Supply” & “Tax Invoice” have the meanings specified in the GST Act.
2. 4.        SUPPLY AND DELIVERY OF GOODS

4.1   In consideration of the payment of the Price as provided in the Contract, Challenge Pumps shall manufacture and supply the Goods to the Client in accordance with the Contract.

4.2   Challenge Pumps shall use its best endeavours to deliver the Goods on the Date of Delivery stated in the Contract, but shall not be responsible for any loss or damage including without limitation loss of revenue, profits, goodwill, or opportunities or loss of anticipated savings howsoever arising as a result of any delay or failure to deliver the Goods.  Where the Contract does not specify a Date of Delivery, Challenge Pumps shall deliver the Goods within a reasonable time and shall give the Client reasonable notice of the Date of Delivery.  Lead times quoted and reflects the anticipated time required, at the placement o the Client’s acceptance of the Contract, for Challenge Pumps to deliver the Goods and are subject to any intervening sale of quoted parts to other buyers. 

            4.3   Where any delay or failure to deliver the Goods is due to or arises as a result of any occurrence reasonably beyond Challenge Pumps’ control, Challenge Pumps shall within 30 days of  becoming aware of any such occurrence notify the Client in writing of Challenge Pumps’ inability to deliver and Challenge Pumps may at its absolute discretion extend the due Date of Delivery until the occurrence ceases or terminate the Contract.

            4.4   Unless otherwise specified in the Contract, the place of delivery of the Goods is Challenge Pumps yard at the address specified in the quotation. 

5.     PROPERTY IN THE GOODS

        5.1   Title to the Goods delivered by Challenge Pumps to the Client will not pass to the Client until Challenge Pumps receives payment in full of the Price.

5.2     Risk in the Goods shall pass to the Client at the Date of Delivery.

6.     CANCELLATIONS AND RETURNS

        6.1   Orders cancelled by the Client will only be accepted with the prior written approval of Challenge Pumps and, if Challenge Pumps does so approve, the Client shall pay for any costs incurred by Challenge Pumps in relation to the order and its cancellation, including the cost of any materials, labour or transport.

7.     WARRANTIES AND LIMITATION

        7.1   Subject to clause 7.2, Challenge Pumps warrants that the Goods will be free from defects in materials and workmanship for the following periods:

        (a) Pump – the earlier of 2 years from date of commissioning or 25 months after the Date of Delivery;

        (b) Flexible Drive Shaft – the earlier of 3 years from date of commissioning or 37 months after the Date of Delivery;

        (c) Ancillary Equipment – in accordance with the original Manufacturer’s warranty period and terms.  

        7.2 The warranty in clause 7.1 does not apply:

        (a) to defects arising from ordinary wear and tear, neglect or accidental damage due to corrosion, erosion or chemical attack, or

        (b) to defects arising from any modification or repair (attempted or otherwise) of the Goods made without the written consent of Challenge Pumps under cl7.6; or

        (c) if the Buyer has failed to provide suitable protection of the Goods during storage; or

        (d) if the Buyer has failed to employ competent staff with the requisite expertise for the assembly, use and application of the Goods, or

        (e) if the Goods are incorrectly installed or abused in use.

        7.3   Challenge Pumps warrants that all metals and resilient synthetics forming part of or the whole of the Goods shall be of the material specified in the Contract.

        7.4   Challenge Pumps warrants that the Goods shall conform to the description shown on the Contract.

        7.5 Challenge Pumps warrants that the Goods will be fit for the purpose made known by the Client to Challenge Pumps provided that the Client has provided Challenge Pumps with all relevant information and data relevant to the Client’s purpose.

        7.6 If the Client claims for a breach of any warranty then the Client shall notify Challenge Pumps in writing within ten days of the appearance of the defect or failure and shall make the Goods available for inspection by Challenge Pumps either on site or at Challenge Pumps premises, otherwise the Client shall not be entitled to make any claim under this Warranty.  The Client cannot initiate or incur any costs relating to any repair of the Goods, or perform any repair or modification of the Goods, without Challenge Pumps’ written consent and an authorisation number.  Any claim for repair costs which does not have an authorisation number issued prior to the cost being incurred will not be reimbursed by Challenge Pumps.   Challenge Pumps may repair or replace the Goods or any component or part of the Goods, at Challenge Pumps’ discretion, at no cost to the Client.    

        7.7 Challenge Pumps’ liability for breach of this warranty is limited to the repair or replacement of the Goods, or component or part of the Goods as set out herein and Challenge Pumps is not liable for any other loss or damage arising out of or in connection with a breach of this warranty howsoever arising including without limitation loss of revenue, profits, goodwill, property damage, opportunities or loss of anticipated savings.   

        7.8 Except as set out in in the Contract, Challenge Pumps does not make any warranties or representations regarding the Goods.  All warranties, conditions, rights and guarantees implied by any statute or other law are expressly excluded.    Where Challenge Pumps’ liability cannot be excluded by operation of any statute including the Competition and Consumer Act 1974 (as amended) and the Australian Consumer Law, Challenge Pumps’ liability shall be limited to the cost of replacing defective Goods, the cost of obtaining equivalent Goods, or the cost of repairing the Goods, at Challenge Pumps’ discretion provided that in all such cases freight costs and costs of dismantling and reassembly shall be borne by the Client. 

        7.9   Challenge Pumps’ is not liable for any loss or damage arising out of or in connection with the supply, resupply, use or reuse of the Goods, howsoever arising and whether for Challenge Pumps’, breach of contract, negligence or otherwise, including without limitation loss of revenue, profits, goodwill, property damage, opportunities or loss of anticipated savings or other loss or damage or otherwise.  Challenge Pumps is not liable for any representation, warranty, condition or term whether express or implied or written or verbal unless it is specified in the Contract.

8.     ADVICE AND REPRESENTATION

        Any advice, recommendation, representations, information, assistance or service provided by Challenge Pumps in relation to Goods supplied or manufactured by it in respect of their use or application is given in good faith and shall be accepted without liability on the part of the Client and Challenge Pumps is not liable for any loss claim damage or expense arising therefrom except as warranted in clause 7.5. 

9.     FORCE MAJEURE

        Challenge Pumps is not liable to the Client for default or delay in performing its obligations under the Contract caused by any event which could not be avoided by the taking of reasonable precautions including, without limitation, fire, strike, industrial disturbance, riot, war, act of God and governmental order or regulation (whether known to the party at the time of contract or not), PROVIDED THAT Challenge Pumps gives written notice thereof to the Client within 7 days of Challenge Pumps becoming aware of the commencement of that occurrence.  The obligations of Challenge Pumps are suspended for the period that the Force Majeure event prevents the performance of its obligations under the Contract.  If the Force Majeure event continues for more than three (3) months then the Contract comes to an end, then unless otherwise agreed prior to the expiry of the three month period, both parties are relieved from further performance and the Client is only obliged to pay for those Goods which have been delivered.

10.   PERSONAL PROPERTY SECURITIES ACT

        10.1 The Personal Property Securities Act (Cth) (‘PPSA’) applies to the Contract except where excluded thereby or by a term of the Contract and the Client acknowledges that Challenge Pumps may register a purchase money security interest in respect of the Goods and exercise its rights under the PPSA.   Challenge Pumps’ rights under these Conditions are in addition to and not limitation of Challenge Pumps’ rights under the PPSA.

        10.2 The Client shall sign further documents and do further things necessary to perfect and protect Challenge Pumps’ rights under the PPSA.

        10.3 The parties agree to exclude the operation of ss. 95, 121(4), 129, 130, 132(3)(d), 132(4), 135, 137, 142 and 143 of the PPSA.  The Client waives its right under s.157 of the PPSA to receive notice of any verification of any registration. 

        10.4 Words and phrases defined in the PPSA have the same meaning in these Conditions.

11.   GENERAL

        The Client warrants that in entering into and performing this Contract it complies with all applicable laws of Australia and without limiting this clause the Client indemnifies Challenge Pumps against all costs claims, expenses or other liability arising out of or in connection with a breach of this clause.

12. CHANGES AND VARIATIONS

        If after the completion of plans the Client directs Challenge Pumps to make any change, alteration or variation to the Goods then Challenge Pumps shall provide the Client with a quote for the cost of such variation.  If the Client does not accept the quote then Challenge Pumps shall not be required to perform the variation.  If the Client accepts the quote then Challenge Pumps shall perform the variation and the Client shall pay for the variation in the manner set out in the quote.

13.  INTELLECTUAL PROPERTY

        Challenge Pumps holds various patents in the Goods, design rights, the copyright in all plans, diagrams and drawings relating to the Goods and in all other documents provided with the Quotation or under the Contract and confidential information in relation to the design, fabrication, assembly and operation of the Goods (‘Intellectual Property’).  Nothing in the Contract operates as an assignment of any of the Intellectual Property.  Provided that the Client accepts the Quotation and enters into the Contract with Challenge Pumps, Challenge Pumps grants the Client an exclusive royalty free licence to use the Intellectual Property for the purposes only of the Contract and for no other purpose.  The Client shall not disassemble, reverse engineer, copy or manufacture the Goods nor exploit, commercialise or licence the Intellectual Property.  . 

14. APPLICABLE LAW

        This Contract is governed by the law of the State of Western Australia and the Commonwealth of Australia.  The parties agree to submit to the exclusive jurisdiction of the courts of Western Australia and the Commonwealth of Australia.