Terms & Conditions
1.1 These Terms and Conditions of Sale (“Terms”):
1.1.1 apply to the sale and supply of products (“Products”) from Cleanaway Equipment Services Pty Ltd (ABN 88 001 576 889) (“Cleanaway”) through the Cleanaway online store accessible via the following website https://store.cleanaway.com.au/ (“Website”);
1.1.2 will prevail over all other conditions of any order for Products (“Order”) to the extent of any inconsistency (except where otherwise agreed by Cleanaway in writing);
1.1.3 may be changed at any time except where they already apply to a particular Agreement (defined below), in which event these Terms may only be changed by agreement between Cleanaway and the Customer; and
1.1.4 will not be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010) and which by law cannot be excluded, restricted or modified.
2.1 Prices are as advertised on the Website or as provided in a written quotation. Unless otherwise specified in these Terms, Cleanaway may change the prices for Products at any time without notice. If Cleanaway changes the prices after receiving an Order, Cleanaway will specify the price increase in the relevant Order confirmation, in which case the Customer is entitled to terminate the Order within 5 business days without charge. If the Customer does not terminate within that time period, the Customer will be taken to have accepted the increase in price.
2.2 Where Cleanaway provides a written quotation (addressed to the Customer) for the supply of Products to the Customer, such quotation will be non-transferrable, valid for 14 days and subject to re-quotation thereafter.
2.3 Unless otherwise agreed in writing, all prices quoted exclude the cost of delivery to the Customer and the Products are offered subject to stock availability at the time the Customer accepts the quotation. An Order Processing Fee of 0.8% applies in addition to any Product pricing.
2.4 Quoted prices are exclusive of any taxes, or duties. Any applicable taxes or duties arising from the sale of Products under an Agreement will be borne by the Customer.
2.5 All Orders for Products must be placed in the manner and form required by Cleanaway.
2.6 Cleanaway may determine the minimum order quantity for each Order of Products to be supplied.
2.7 All Orders are subject to acceptance by Cleanaway, by way of an Order confirmation. Cleanaway may decline or accept an Order in whole or in part in its absolute discretion (acting reasonably). If Cleanaway accepts an Order, it does not imply Cleanaway will accept any future Orders.
2.8 Once the Customer has received an Order confirmation (and subject to the Customer’s right to terminate under clause 2.1), a separate agreement (“Agreement”) for the purchase of the relevant Products will be formed, comprising:
(i) the relevant Order and Order confirmation; and
(ii) these Terms.
2.8 If after the Customer has placed an Order and the Customer decides not to purchase the Products in accordance with the Order (and notifies Cleanaway accordingly), Cleanaway may charge the Customer a $50 restocking fee. The Customer also agrees to reimburse Cleanaway for reasonable costs incurred in complying with the Order (including but not limited to, payments made to suppliers for materials) which after using reasonable endeavours, Cleanaway cannot recover or redeploy. Where the Customer has paid for all or part of an Order before the Customer decides not to purchase the Products in accordance with the Order, Cleanaway will offer the Customer a refund if the Order has not been fulfilled or the Customer returns the Products to Cleanaway within 14 days of delivery, provided that Cleanaway may reduce the amount paid to the Customer as part of any refund by an amount equal to any reasonable costs Cleanaway has incurred which, after using reasonable endeavours, Cleanaway cannot recover or redeploy. Cleanaway will substantiate any fees claimed under this clause.
2.9 The Products returned under clause 2.8 must be new, unused, not worn or opened, and have all original packaging, labels and tags intact (including any seals being unbroken), and the Products are in resalable condition.
3.0 TERMS OF PAYMENT
3.1 If the Customer seeks any variation to an Order after Cleanaway has issued an Order confirmation then Cleanaway may (acting reasonably):
3.1.1 accept the variation, and if reasonably necessary advise the Customer of any increases in the quoted prices required to comply with the variation (in which case the Customer may terminate the Order within 5 business days of being advised of the increased pricing); or
3.1.2 decline to accept the variation, and terminate the Order.
If either party terminates under this clause 3.1, and the variation is sought at any time after Cleanaway has incurred reasonable labour costs, purchased goods or materials or commenced production in respect of the Order then the Customer must reimburse Cleanaway for those costs promptly following a request from Cleanaway. Cleanaway will use reasonable endeavours to recover or redeploy those costs before seeking to invoice the Customer.
3.2 Unless otherwise agreed by Cleanaway, payment for Products is to be made by the Customer by clear funds:
3.2.1 at the time of delivery or collection of the Products where Cleanaway provides a valid tax invoice at the time of delivery or collection; or
3.2.2 within 5 business days of Cleanaway providing a valid tax invoice after the time of delivery or collection.
3.3 Cleanaway may in its absolute discretion require payment of a deposit at the time of the Customer placing an Order as a condition to providing an Order confirmation.
3.4 If credit is given the settlement of any given tax invoice is payable within 30 days of the date of delivery or collection of the Products.
3.5 The Customer agrees that all payments are to be made without retention.
3.6 In the event of any payments or part thereof remaining unpaid after such period of 30 days Cleanaway in its absolute discretion may charge interest thereon at the rate of 2 per cent per annum above the rate set out pursuant to Section 2 of the Penalty Interest Rates Act 1983 during the period such unpaid balance remains unpaid and such interest will be added to the said balance due from the Customer to Cleanaway and calculated on a daily basis.
3.7 Notwithstanding the imposition of interest charges pursuant to this Condition 3.0, such interest charges will not be regarded as allowing any time for payment of any amount owing but are agreed as constituting compensation payable to Cleanaway because of the delay in payment and all such outstanding monies will remain immediately due and payable to Cleanaway and Cleanaway will be entitled to take legal proceedings at any time for recovery of any monies bearing interest charges pursuant to this Condition 3.0.
3.8 In addition to Cleanaway’s other rights set out in this Condition 3.0, the Customer agrees that Cleanaway will have the right (although it will not be bound to do so) to suspend delivery to the Customer of all or any outstanding Orders if the Customer is in default of these Terms.
4.0 RISK AND SECURITY FOR PRODUCTS
4.1 Words and phrases used in this Clause 4.0 which are defined in the Personal Property Securities Act 2009 (“Cth”) (“the PPS Act”) have the same meanings as the meanings set out in that Act.
4.2 Legal ownership of Products supplied by Cleanaway will not pass to the Customer until the Customer has paid all monies owing to Cleanaway for those particular Products.
4.3 The risk in the Products (including, but not limited to, loss or damage to the Products) will pass to the Customer upon delivery of the Products by Cleanaway to the Customer, its agent or its carrier.
4.4 The Customer hereby grants a security interest to Cleanaway over all Products supplied by Cleanaway pursuant to these Terms until the Customer has made payment of all monies owing to Cleanaway for those particular Products and these Terms constitute a Security Agreement for the purposes of the PPS Act.
4.5 The security interest held by Cleanaway includes an interest in Products that become an accession to other Products.
4.6 Until such time as the Customer has made payment of all monies owing for Products supplied by Cleanaway:
4.6.1 Cleanaway grants the Customer a licence to use, fix or install the Products;
4.6.2 The Customer may on-sell the Products to a third party, in which event the Customer will hold any part of the proceeds of such sale as relates to the Products upon trust for and as fiduciary of Cleanaway and the Customer will immediately remit such monies to Cleanaway to be applied toward any outstanding monies owed to Cleanaway;
4.6.3 The Customer will not otherwise deal with the Products in any way which may be adverse to Cleanaway;
4.6.4 The Customer will not charge the Products in any way nor grant or otherwise give any interest in the Products to any other person except in accordance with this Clause 4.0;
4.6.5 If payment for the Products is not made within 30 days of the due date for payment, Cleanaway may give notice in writing to the Customer to return the Products or any part of them to Cleanaway, in which event the Customer will forfeit any rights to obtain ownership of the Products, the licence granted pursuant to sub-clause 4.6.1 will be terminated and any monies partly paid by the Customer will be forfeited to Cleanaway; and
4.6.6 If the Customer fails to comply with a request to return the Products to Cleanaway, or if the Customer commits any act of bankruptcy or insolvency, or if an administrator or liquidator is appointed to the Customer (but not a receiver or a receiver and manager), then Cleanaway (or its agents) may enter upon and into land and premises owned, occupied or used by the Customer where the Products are situated and take possession of the Products.
4.7 The Customer must do all things necessary to assist Cleanaway to perfect and enforce its security interest to the fullest extent available at law, including enabling Cleanaway to gain first priority for its security interest. Accordingly, the Customer must not grant a security interest in the equipment to any other party without Cleanaway’ prior written consent.
4.8 The parties agree that Sections 96, 125, 142 and 143 of the PPS Act shall not apply to these Terms.
4.9 The Customer waives its rights to receive any notifications, verifications, statements, disclosures, proposals and any other documentation specified under Sections 95, 121(4), 130, 132(3)(d), 132(4), 135, 157 of the PPS Act.
4.10 For the purposes of Section 275 of the PPS Act, the Customer agrees not to disclose any information provided by Cleanaway under that Section to any third party without Cleanaway’ prior consent in writing (unless required by law or the information has entered the public domain).
4.11 If the Customer changes its company or business name or relocates its principal place of residence outside of Australia, it must promptly give notice to Cleanaway of such a change.
4.12 The Customer indemnifies Cleanaway for any costs, fees and expenses Cleanaway incurs in the enforcement of the security interest.
4.13 Receipt by Cleanaway of any form of payment for Products other than cash will not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the security interest will continue to apply in relation to those Products.
5.1 Unless otherwise specified by Cleanaway, delivery will be made by courier and will be charged to the Customer on a reasonable basis in addition to the price payable for the Products.
5.2 The delivery times made known to the Customer are estimates only and Cleanaway is not liable for any loss, damage or delay occasioned to the Customer arising from late or non-delivery of the Products, provided that if the actual date for delivery is longer than 90 days after the delivery time advised to the Customer, the Customer is entitled to a refund.
5.3 The Customer will within 5 business days from the date of delivery give written notice to Cleanaway to allege that the Products are not in accordance with its Order. If the Customer does not give such notice then subject to the extent permitted by law, the Products will be deemed to have been accepted by the Customer.
5.4 If the Products do not comply with the relevant Order, the Customer must promptly allow Cleanaway to inspect the Products and provide Cleanaway with any reasonably required information. Subject to the Customer’s compliance with this clause 5.4, Cleanaway must notify the Customer in writing (within 10 business days of receiving notice from the Customer) whether or not Cleanaway has determined (acting reasonably) that the Products do not comply with the Order. If Cleanaway determines the Products do not comply with the Order, Cleanaway must offer the Customer a refund.
5.5 Cleanaway is not responsible to the Customer or any person claiming through the Customer for any loss or damage to Products in transit caused by any event of any kind by any person (whether or not the Customer is legally responsible for the person who caused or contributed to that loss or damage), unless such loss or damage is caused or contributed to by Cleanaway, its employees or contractors.
6.0 WARRANTIES, LIABILITY AND TERMINATION
6.1 Cleanaway does not limit or exclude the application of any provision of any statute (including the Competition and Consumer Act 2010 (Cth) if the Customer is a ‘consumer’ as defined, or any similar law) where to do so would contravene that statute or cause any part of this clause to be void.
6.2 Subject to clause 6.1, Cleanaway’s liability under these Terms or any Agreement is limited, at Cleanaway’s option to:
6.2.1 replacing the Products or supplying equivalent Products;
6.2.2 fixing the Products;
6.2.3 paying to replace the Products or acquiring equivalent Products; or
6.2.4 paying to have the Products repaired.
6.3 Upon receiving a request from the Customer, Cleanaway agrees to use reasonable endeavours to assign the benefit of any warranty or entitlement to the Products that the manufacturer has granted to Cleanaway under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
6.4 In particular, and without limiting the generality of the limited liability set out in this Condition 6.0, the Customer acknowledges that:
6.4.1 Cleanaway is not liable for any delays in supplying the Products where those delays are caused by circumstances beyond Cleanaway’s control, including but not limited to delays in the supply of Products to Cleanaway from its third party suppliers; and
6.4.2 the Customer purchases, uses, distributes and sells the Products at its own risk and Cleanaway is not liable to the Customer or any clients of the Customer for any claims, losses (whether direct or consequential), costs or damages of whatsoever nature and howsoever arising and whether claimed or incurred by the Customer or any third party (including for damage caused to any property as a result of using the Products), provided only that such limitation of liability will not apply in the event of there being any proven breach of any statutory warranty.
6.5 The Customer indemnifies Cleanaway from and in respect of all loss, damage, liabilities or claims caused directly or indirectly by the Customer or its employees, contractors or agents, to any person or property by, through or in connection with the Products or for the Customer’s breach of these Terms or any Agreement. This indemnity is reduced to the extent that Cleanaway has caused or contributed to such loss, damage, liability or claim.
6.6 Neither party is liable to the other for any special, exemplary, punitive or consequential loss or damage (including without limitation, any loss of profit, loss of opportunity and loss of goodwill) in connection with these Terms or any Agreement.
6.7 A party can terminate these Terms or any Agreement if the other party is in breach and that breach has not been remedied within 14 days of receiving a notice to do so.
6.8 If the Customer is in breach of these Terms or any Agreement, and that breach has not been remedied within 14 days of receiving a notice to do so, Cleanaway may cancel any incomplete Orders, terminate these Terms and/or any Agreement(s) and retain any monies paid by the Customer.
6.9 A party can terminate these Terms or any Agreement immediately if the other party dies, becomes insolvent or bankrupt, or any court action is commenced (or resolution proposed or passed) to place that party under any form of bankruptcy, insolvency, administration, receivership or liquidation.
Note: to make a warranty claim as please contact your Cleanaway customer service team on email@example.com.
7.1 Any delay in or failure by a party to enforce any term, warranty or condition of these Terms or any Agreement will not be deemed a waiver thereof or of any rights the party may have and no express waiver will be deemed a waiver of any subsequent breach of any term, warranty or condition.
7.2 All intellectual property rights in connection with the Products is owned by Cleanaway and the Customer must not reverse engineer, replicate, copy or commercialise any of Cleanaway’s intellectual property rights. The parties agree to keep confidential all information (whether of a technical, industrial, engineering, scientific, business or financial nature or otherwise) disclosed by one party to the other.
7.2 If any provision of these Terms is determined by any statute or any court having jurisdiction in relation thereto to be illegal, invalid, void, voidable or unenforceable the legality validity or enforceability of the remainder of these Terms will not be affected and the illegal, invalid, void, voidable or unenforceable provision will be deemed deleted from these Terms to the same extent and effect as if never incorporated herein and the remainder of these Terms will continue in full force and effect.
7.3 These Terms will survive any accepted repudiation or other termination of the contract to supply to goods or services existing between Cleanaway and the Customer.
7.4 These Terms will be governed and interpreted according to the laws of Victoria and the parties agree to submit to the non-exclusive jurisdiction of the courts of Victoria.
7.5 These Terms and each Agreement together supersede all prior arrangements, understandings and agreements between the parties and represent the entire complete and exclusive understanding and agreement between the parties relating to the subject matter of these Terms and each Agreement. For the avoidance of doubt, nothing in these Terms or any Agreement is intended to exclude liability for fraud or fraudulent misrepresentation or any other representations which cannot be excluded by law.