Terms and Conditions of Sales - Australia

THIS TRANSACTION IS EXPRESSLY CONDITIONED UPON AND SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS, WHICH FORM PART OF THE QUOTATION, STATEMENT, INVOICE OR DELIVERY DOCKET UNLESS ANY OF THEM ARE EXCLUDED OR MODIFIED IN WRITING BY WATERS. THE PLACEMENT OF AN ORDER SHALL BE DEEMED TO BE ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS: WHERE YOU HAVE PURCHASED A SERVICE PLAN, IT IS SUBJECT TO THE APPLICABLE TERMS AND CONDITIONS SUPPLIED IN CONJUNCTION WITH THE QUOTATION FOR THAT PLAN.

DISCLOSURES: In this Document:

• Waters excludes its liability to the Buyer for any delay in delivery, indirect loss, loss of profit, loss of revenue, loss of data, loss of goodwill or loss of opportunity;
• to the extent not prohibited by law, Waters' liability in respect of the consumer guarantees under the Australian Consumer Law, is limited at its option to:
  • in the case of goods, any one or more of the following: (a) the replacement or repair of the goods or the supply of equivalent goods; or (b) the payment of the cost of replacing or repairing the goods or of acquiring equivalent goods; or
  • in the case of services, any one or more of the following: (a) the supplying of the services again; or (b) the payment of the cost of having the services supplied again;
• the prices for the Products and Services will be amended by Waters every year effective 1 January;
• cancellation of an order by a Buyer requires the Buyer to indemnify Waters for any loss or damages caused or contributed to by the cancellation and may also require the Buyer to pay a 15% restocking fee.

1. Acceptance- Buyer`s acceptance of the offer to purchase the products and/or services set forth, made by Waters Australia Pty Limited (ABN 49 065 444 751) (“Waters”) by this document (“Document”) shall create a contract subject to and expressly limited by the terms and conditions contained on this Document. Acceptance of these terms and conditions set forth shall be final and binding on the parties: if additional or different terms are proposed by Buyer, such additional or different terms shall not become a part of the contract formed by Buyer`s acceptance, unless they are expressly agreed in writing by Waters. Receipt of the goods sold hereunder (“Products”) or commencement of the services provided hereunder (“Services”) shall constitute acceptance of the terms and conditions of this Document. However, Waters may accept or reject Buyer’s order in whole or in part. Prices quoted in quotation are firm for a period of thirty (30) days unless otherwise specified and quotation is subject to termination by Waters’ notice within that period. Notwithstanding any contrary language in this quotation, but subject always to clause 16, Waters expressly reserves the right to unilaterally adjust the prices effective as of January 1 every year. In the event that the Expiration Date stated in the quotation falls on a date later than January 1 of the following year, the prices will be deemed to have expired on January 1 of that year and will be replaced by the prices newly quoted by Waters, unless agreed otherwise with Waters.

2. Payment - Time for payment shall be of the essence. Unless otherwise agreed with Waters, any tax, duty, custom or other fee of any nature imposed upon this transaction by any governmental authority shall be paid by Buyer in addition to the price quoted in the quotation/invoice. Unless expressly stated otherwise, all fees are expressed exclusive of GST (as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth)). In the event Waters is required to prepay any such tax or fee, Buyer agrees to reimburse the same to Waters accordingly. All Quotes and estimates used by Waters are, unless otherwise stated, based on the existing costs and are subject to amendment with notice to the Buyer before acceptance of the Buyer's order by Waters, to meet any rise in such costs. If after placing an order, the Buyer is informed of a price increase, the Buyer may withdraw their order.

2.1 Payment advice should have the necessary information about the order and/or Quote.  All the bank charges shall be charged to Buyer's account.
2.2 Unless otherwise agreed with Waters, payment terms shall be strictly Net Cash 30 days from the invoice date after delivery of the Products or Services (as reasonably determined by Waters), provided Buyer's credit has been approved or specified in the Quote; if the Buyer's credit had not been established with Waters, terms are 100% cash in advance or 100% by Irrevocable Letter of Credit (L/C) payable at sight, as instructed by Waters. All payments made by Buyer shall be made without any deduction of deferment in respect of any disputes or claims whatsoever.

Ordering Information:

Purchase Orders to be addressed to:
Waters Australia Pty Ltd
Unit 3/38-46 South Street, Rydalmere NSW 2116
Email: Australia_customer_service@waters.com

Payments and L/C opening details shall be as under:
Name of Bank: HSBC Bank Australia Limited
Account Name: Waters Australia Pty Ltd
Account Number: 165412001
BSB: 342011
Bank Swift Code: HKBAAU2S
Branch Address: 333 George Street Sydney NSW 2000
Email: accounts_aus@waters,.com

2.3 Time for payment shall be of the essence. In case of any delay in payment, an interest charge equal to 2 % interest per month will be added to invoice and will be charged for any delayed payment, if the payment is not settled within the agreed timeline. 
2.4 Prices quoted are exclusive of all taxes and duties. Duties, levies and taxes (including any GST) will be charged additionally at the prevailing rates at the time of invoicing of Products or Services. If the concessions exemptions in the duties or taxes are claimed, the evidence thereof from the authority should be furnished along with the purchase order.
2.5 Unless otherwise indicated, prices quoted herein include freight and handling charges, and if inspection, testing and/or installation is included in the Quote, installation and commission charges.

3. Delivery and Shipment– Unless otherwise specified, DDP (Incoterms 2020) will apply. Identification of the Products shall occur when they leave Waters’ distribution point at which time title and risk of loss shall pass to Buyer. Waters will make reasonable commercial efforts to ship the Products or provide the Services hereunder in accordance with the delivery date agreed with Buyer, provided that Waters accepts no liability for any losses (direct or indirect) or for general, special or consequential damages arising out of delays in delivery. The period of delivery will commence only from the date of receipt of the technically and commercially clear order subject to delay caused by or any manner of Force Majeure (as detailed hereinafter), or any other reason caused beyond Waters’ reasonable control.  

Inspection and testing and/or installation of the goods is not provided by Waters unless otherwise agreed by Waters. When Waters has agreed to install at Buyer’s request, Buyer shall provide at no cost to Waters, access to the premises (free from health and safety risks), all utility services required and, when necessary, special handling equipment.

4. Australian Consumer Law - Nothing in this Document operates to exclude, restrict or modify any rights and remedies available to the Buyer under the Australian Consumer Law. Waters' goods and services come with guarantees that cannot be excluded under the Australian Consumer Law.

To the extent covered by the Australian Consumer Law; for major failures with the service, the Buyer is entitled: to cancel the service contract with Waters; and to a refund for the unused portion, or to compensation for its reduced value. The Buyer is also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, the Buyer is entitled to have the failure rectified in a reasonable time. If this is not done the Buyer is entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. The Buyer is also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

5. Warranty and Limitation of Liability- The Products and/or Services shall be covered by the applicable Waters` standard warranty, a copy of which is supplied with the Products and/or Services and upon request. TO THE FULLEST EXTENT NOT PROHIBITED BY LAW AND SUBJECT TO PARAGRAPH 4, NO OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, IS MADE WITH RESPECT TO THE PRODUCTS AND/OR SERVICES. TO THE FULLEST EXTENT NOT PROHIBITED BY LAW AND SUBJECT TO PARAGRAPH 4, WATERS EXPRESSLY EXCLUDES ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. Any model or sample furnished to Buyer is merely illustrative of the general types and quality of goods and does not represent that the Products will conform to the model or sample. To the fullest extent not prohibited by law and subject to paragraph 4, Buyer`s remedies under Waters` warranty shall be limited to repair or replacement of the Product or component which failed to conform to Waters’ standard warranty or the resupply of the Services which have failed to confirm with Waters' standard warranty. TO THE FULLEST EXTENT NOT PROHIBITED BY LAW AND SUBJECT TO PARAGRAPH 4, WATERS SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE LOSS OR DAMAGE; OR ANY LOSS OF PROFIT, LOSS OF REVENUE, LOSS OF DATA, LOSS OF GOODWILL, OR LOSS OF OPPORTUNITY, SUSTAINED BY BUYER OR ANY THIRD PARTY.

To the fullest extent permitted by law and subject to paragraph 4, Buyer hereby releases Waters from all actions, claims, demands, suits and liability whatsoever which it may have or claim to have, or, but for this release might have had against Waters (a) arising out of any representation, warranty covenant or term or provision not set out or referred to herein; or (b) arising out of or in conjunction with the Products or Services not being suitable for Buyer's purposes or operating site. Where Waters is legally entitled to do so, Waters' liability in respect of the consumer guarantees under the Australian Consumer Law, is limited at its option to: in the case of goods, any one or more of the following: (a) the replacement or repair of the goods or the supply of equivalent goods; or (b) the payment of the cost of replacing or repairing the goods or of acquiring equivalent goods; or in the case of services, any one or more of the following: (a) the supplying of the services again; or (b) the payment of the cost of having the services supplied again.

To the fullest extent permitted by law, Waters' liability to the Buyer in contract (including under an indemnity), tort, negligence, strict liability in tort, under statute or otherwise will be reduced by the extent, if any, to which the Buyer contributed to the loss or damage, including any failure to mitigate that loss or damage.

6. Returned Products- Waters may, in its sole discretion, authorize Product returns in appropriate circumstances, subject to such conditions as Waters may specify. Any such return shall be subject to the express prior authorization of Waters, payment of a restocking charge by Buyer, and in accordance with Waters’ Return Policy. However, (subject to paragraph 4) no returns will be authorized after ninety (90) days following shipment to Buyer. The Waters' Return Policy is in addition to the Buyer's rights under the Australian Consumer Law.

7. Technical Advice- Waters may, at Buyer`s request furnish technical assistance, advice and information with respect to the Products, if and to the extent that such advice, assistance and information is conveniently available. It is expressly agreed that there is no obligation to provide such information which is provided without charge at Buyer`s risk, and which is PROVIDED WITHOUT WARRANTY OF ANY KIND AND IS SUBJECT TO THE WARRANTY DISCLAIMERS AND LIMITATION OF LIABILITY SET FORTH IN PARAGRAPH 5 ABOVE.

8. Waters` Right of Possession, etc.– Buyer hereby grants Waters a security interest in any goods offered by way of this Quote to secure the due and punctual payment of the purchase price specified in this Quote. The Buyer acknowledges that Waters is free to register any security interest it has. The Buyer must not create or allow another interest in the Product or dispose, or part with possession of the Product until the purchase price has been paid in full. In the event of default by Buyer in any payment due or in the event Buyer declares bankruptcy or becomes insolvent, Waters shall have the right, in addition to any other remedies it may have at law or in equity, to cancel the contract and in its discretion, sell the Products to any other third party if shipment has not occurred, withhold shipment, recall Products in transit and retake the same, or repossess any Products or goods which may be stored with Waters for Buyer`s account without the necessity for Waters to initiate any other proceedings. The costs of retaking and repossessing the Products or goods shall constitute additional charges payable by Buyer to Waters.

9. Agents, etc.- No agent, employee or other representative has the right to modify or expand Waters` standard warranty applicable to the Products and/or Services or to make any representations as to the Products and/or Services other than those set forth in the applicable user or operator`s guide delivered with the Products.

10. Modifications, Waiver, Termination- The contract formed by Buyer`s acceptance of this Document may be modified, and any breach thereunder may be waived only in writing signed by both parties.

11. Additional Terms and Conditions- These terms and conditions may also be subject to any “Special Terms and Conditions” applicable to the Products or Services specified by Waters under the Quote, invoice, or any other document. Any variance from the terms and conditions of this Document or other written notification from Buyer, will be of no effect in the absence of a written approval by authorized personnel of both parties.

12. Governing Law/ Disputes – These terms and conditions are governed and construed in accordance with laws of New South Wales, Australia. Each of the parties submits to the jurisdiction of a court where Waters is located.

13. Export– Buyer hereby undertakes to comply fully with all applicable provisions of the Export Control Laws as may be in effect for any of the Products and/or Services and shall seek, whenever required, at its own expense, export licenses prior to any export of the Products and shall further assure compliance with all re-export restrictions under Export Control Laws.

14. Intellectual Property/Software - The sale of the Products or Services by Waters to Buyer does not confer any right or license upon Buyer to use, exploit or otherwise utilize any intellectual property rights subsisting in or relating to the goods of which Waters is a proprietor or to which Waters is otherwise entitled. To the extent there is any software included with the Products, the software is being licensed on a non-exclusive, non-transferable, non-sublicensable basis to Buyer, and not sold. All rights, titles and interests therein shall remain with Waters. Use of the software shall be in accordance with the applicable software license agreement/terms and conditions delivered with the Products. 

15. Claims - To the fullest extent permitted by law and subject to paragraph 4, claims for shortages, non-conformity with specification, error or deficiency or for damages in transit or delivery, or for other causes shall be deemed waived or released by buyer unless received in writing within seven (7) days of delivery of Products or the installation thereof by Waters’ representative, whichever is earlier.

16. Cancellation - Once placed with and accepted by Waters, an order may be cancelled only with Waters’ consent. If the Buyer requests to cancel the order, Buyer shall indemnify and hold Waters harmless against any reasonable loss or damages directly caused or contributed to by the cancellation. A 15% restocking charge of the order value may be charged to Buyer for any cancellation by Buyer. The Buyer agrees that such restocking charge is a genuine pre-estimate of Waters' loss in the event of cancellation. Waters reserves the right to cancel the order in whole or in part based on reasonable grounds such as product unavailability or inability to verify or identify Buyer, and Waters will refund the Buyer on a pro-rata basis any amount paid for undelivered Products and/or unperformed Services. Cancellation or termination of the contract shall not affect the accrued rights of the parties arising in any way out of such contract as of the date of cancelation or termination.

17. Force Majeure- Neither party shall have any liability to the other party for failure to perform, or delay in performance, or in the case of Waters the delivery of any and all Products and/or Services, including equipment manufactured or sold by Waters including instruments, supplies, components, systems, chemistry, accessories, replacement spare parts, or any and all services provided by Waters, caused by circumstances beyond its reasonable control including, but not limited to, acts of God, acts of nature, floods, fire, explosions, war or military mobilization, riots, epidemic, pandemic, quarantine, landslides, lightning, earthquakes,  Governmental action or inaction, request of governmental authority, delays of any kind in transportation or inability to obtain material or equipment, acts of other governments, strikes, or labor disturbances.

18. Other Agreements – If there is any inconsistency between these terms and any order submitted by Buyer (whether in writing, verbally or otherwise) or any other arrangements between the parties, these terms prevail unless otherwise agreed in writing by the parties, save that as between these terms and any valid, binding and current written agreement signed by Buyer and the seller, such formal written agreement shall prevail to the extent of any inconsistency. For the avoidance of doubt, in the event of a conflict between these terms and conditions and the conditions of Buyer, the following order of precedence shall apply: Waters Special Terms and Conditions; Waters General Terms and Conditions, Buyer Purchase Order, any other relevant contract or documents between the parties.

19. Assignment – Buyer shall not transfer, assign or otherwise deal with in any way its rights under these terms without Waters’ prior consent in writing. Waters may assign or transfer any of its rights or obligations under these terms with notice to the Buyer but without Buyer’s consent. Each assignee or transferee is to have the same rights against Buyer under these terms as if named as Waters’.

20. Severability – If a provision (or part thereof) of the foregoing terms is or becomes legally invalid, the validity of the remainder of the provisions (or part thereof) shall not be affected thereby.

21. Software as a Service (SaaS) – Notwithstanding any other term of this Document to the contrary, all purchases of and access to Waters’ SaaS offerings contained within this Document are governed solely by the terms and conditions of the Software as a Service (SaaS) Agreement located at: https://waters.policytech.com/dotNet/documents/?docid=1178&public=true. The terms and conditions of the Software as a Service (SaaS) Agreement are hereby incorporated into this Document by reference. No other terms or conditions (including, without limitation, the other Waters general sales terms and conditions in this Document above, any terms in Buyer’s purchase order, nor any license agreement) will apply to Buyer’s order of Waters’ SaaS offerings, unless expressly stated otherwise in the Software as a Service (SaaS) Agreement. By issuing a purchase order in response to this quotation or otherwise receiving, accessing, or using any of Waters’ SaaS offerings, Buyer confirms acceptance of the Software as a Service (SaaS) Agreement as the exclusive document governing Buyer’s access and use of the Waters SaaS offering and the parties’ relationship with regard to the same, without modification. Additional or different terms contained in Buyer’s purchase order, any other Buyer document, or Waters’ invoice will not be binding on the parties, are void and of no force or effect, and the parties hereby reject such additional or different terms. These conditions form part of the contract to the exclusion of all other terms and conditions (including any terms or conditions which Buyer purports to apply under any purchase order, confirmation of order, specification or other document) unless expressly stated otherwise in the Software as a Service (SaaS) Agreement.