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Terms & Conditions

TERMS & CONDITIONS OF SALE

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1. Neverfail 

These terms and conditions of sale (Terms) apply to Neverfail Springwater Limited ABN 43 003 559 519 located at Level 13, 40 Mount Street, North Sydney, NSW, 2060 (Neverfail).

2. Terms

This document sets out the Terms applicable to the agreement between the Customer and Neverfail under which Equipment may be rented by the Customer and/or Products may be purchased by the Customer from time to time.

3. Commencement Date

The commencement date of these Terms is the date the relevant Agreement Form is signed by the Customer, or the date in which the Products are purchased online by the Customer.

4. Term

(a)    The Agreement remains in force for the minimum term (Term) as stated on the relevant Agreement Form or if not specified, until the Customer or Neverfail terminates this Agreement with 14 days' notice.

(b)    If the Customer elects to return the Equipment prior to the end of the Term, the Customer is still liable to pay for all outstanding rentals, Invoices, reasonable overdue interest charges, reasonable debt collection fees, reasonable dishonour fees and any other reasonable charges, which may apply on demand as a debt due from the Customer to Neverfail.

(c)    Upon termination or expiry of the Agreement, refunds will not be provided for any unused Products, subject to clause 21.

 

Residential and Commercial Terms

Neverfail offers its Customers a subscription service to supply Products and associated Equipment to Residential and Commercial premises. The following Terms apply to the provision of these goods and services by Neverfail to the Customer:

 

5. Exclusive Usage

The Customer agrees that the Neverfail water coolers shall be used for the sole purpose of dispensing products supplied by Neverfail.

6. Warranty and Repairs

(a)    Neverfail warrants that the Equipment will remain in good operating condition throughout the Term and Neverfail will perform, without charge, all repairs necessary to keep the Equipment in good operating condition or, at its discretion, to replace it with equivalent Equipment.

(b)    Neverfail warrants that any water filtration Product will remain in good operating condition for 12 months from when it was sold to the Customer.

(c)    The Customer agrees to exercise due care to protect the Equipment and any water filtration Product, and acknowledges that Neverfail will have no obligations to repair or replace under the warranty in paragraph 6(a) or 6(b) if the failure of the Equipment is a result of extraordinary wear and tear, any alteration or tampering with the Equipment or Product, or misuse, loss or damage of the Equipment or Product.  In those cases, Neverfail is entitled to charge the Customer its reasonable charges for repairing or replacing the Equipment or Product.

(d)    To the full extent permitted by law, but subject to clause 21, Neverfail excludes all other guarantees, conditions and warranties that apply to the Equipment or a Product or that would be implied into these Terms (whether by statute, general law, customs or otherwise).

(e)    The Customer agrees to maintain the Equipment in a clean and hygienic condition and acknowledges that if Neverfail considers the Equipment to be in a substantially unclean or unhygienic condition, Neverfail reserves the right to clean and sanitise (or exchange) the Equipment on the Customer’s behalf at the Customer’s cost. Neverfail agrees to notify the Customer in advance of its intention to clean and sanitise the Customer’s Equipment.

(f)     The Customer acknowledges that use of the Equipment is at their own risk, subject to clause 21.  The Customer must ensure that the Equipment is insured against theft or loss.

7. Moving

The Customer agrees not to remove the Equipment from the premises where it is initially installed (or subsequently moved to under the provisions of this clause) without first notifying Neverfail in writing and only after receiving approval from Neverfail. Neverfail agrees not to unreasonably withhold its approval to move the Equipment.

8. Lost or Damaged Equipment

In the event of the Equipment being lost or damaged while in the care of the Customer, the Customer agrees to reimburse Neverfail in full for the reasonable costs of repair or replacement of the Equipment. This includes Neverfail’s right to charge for lost bulk spring water bottles.

9. Payment Terms

(a)    The Customer must make payment by:

  1. For Commercial Customers: on account within fourteen (14) days of Invoice date, or as per Agreement Form, by direct debit, credit card or EFT; or
  2. For Residential Customers: by direct debit deduction facility only. Neverfail may, in its own discretion, allow payment via a credit card in exceptional circumstances, such as clause 23(a)(i).

(b)    The Customer agrees that Neverfail will endeavour to allocate all payments received as per the Invoice number specified by the Customer or alternatively, if no Invoice number is specified, then to the oldest Invoice first, however, ultimately in  Neverfail’s own discretion.

(c)    Payment is required prior to any installation of Equipment.

(d)    The Customer agrees that Neverfail may require that direct debit deductions be facilitated via a credit card.

10. Overdue Payments

(a)    The Customer agrees that any payments dishonoured or reversed by the Customer’s bank (made by direct debit, EFT or credit card) will be reimbursed by the Customer to Neverfail including any fees or charges incurred by Neverfail as a result of the dishonoured or reversed payment.

(b)    The Customer agrees that any reasonable costs or disbursements incurred by Neverfail in recovering any outstanding monies including Equipment pick up fees, debt collection agency fees, solicitor’s costs plus overdue interest charges calculated daily from due date, shall be paid by the Customer.

(c)    The Customer agrees that at the conclusion of the Agreement, Neverfail may set-off the amount of the Bottle Deposit against any amount owing to Neverfail under the Agreement which has not been paid by the Customer within a reasonable timeframe.

11. Pricing

(a)    The Customer agrees to pay for the Products and Equipment supplied by Neverfail on a monthly or annual basis, including GST where applicable, at the price specified on the relevant Agreement Form or at the revised price specified by Neverfail according to clauses 11(d) and (f).

(b)    The Customer agrees that the total initial payment as set out in the relevant Agreement Form is payable before or on the installation of the Equipment or Products (as applicable).

(c)    The Customer agrees that any Water Filtration Installation Charge is non- refundable.

(d)    Neverfail reserves the right to adjust the price of Products during the Term, acting reasonably taking into account increases in the costs of Products to Neverfail and the Consumer Price Index, by giving 28 days’ notice to the Customer of the price increase. If Neverfail exercises this right, the Customer may terminate this Agreement for the reason of the price rise on 14 days' written notice.

(e)    If renting certain Neverfail spring water bottles, Neverfail may require the Customer to pay a Bottle Deposit amount (as notified by Neverfail to the Customer), which will be refunded by Neverfail to the Customer at the conclusion of the Agreement, subject to clause 10(c) above.

(f)     Neverfail will provide the agreed number of replacement cartridges per annum as set out on the relevant Agreement Form for each filtered water cooler at no additional cost to the Customer. The Customer agrees to pay for any additional replacement cartridges.

(g)    Neverfail reserves the right to charge the Customer an “un-plumb” fee if the Agreement is terminated by either party and the Customer requests that Neverfail removes pipes from or repairs walls in the Customer’s premises. Neverfail agrees that the un-plumb fee will be a reasonable amount which reflects the costs incurred by Neverfail in removing pipes and/or repairing walls and this will be agreed with the Customer prior to removing any pipes/repairing walls.

(h)    For Products which are subject to any container deposit scheme (or similar scheme) in any relevant state or territory (CDS) or which become subject to any CDS after the date of this Agreement, Neverfail may increase the Customer pricing in response to any direct or indirect costs which may be incurred from time to time in connection with the CDS (including, for example, container deposit costs and handling fees) (CDS Fees). Any discounts, rebates or other incentives under this Agreement are to be calculated from a base that is exclusive of CDS Fees.

12. Delivery

(a)    Neverfail will deliver the Equipment and Products to the Customer’s nominated premises and thereafter will deliver Products on a regular scheduled delivery cycle. In the event Neverfail require a modification to the delivery cycle, Neverfail will contact the Customer and provide reasonable notice of, the revised delivery cycle.

(b)    Neverfail reserves the right to charge the Customer a delivery fee. This delivery fee will be exclusive of the Purchase Price and will sit separately in the applicable Invoice. The delivery fee may be reviewed and revised annually in line with price rises.

(c)    Should the Customer require delivery outside of the regular delivery cycle, additional charges will apply, as set out on https://www.neverfail.com.au/about-us/faqs/ (as updated by Neverfail from time to time).

(d)    The Customer acknowledges and agrees that Neverfail may impose minimum delivery quantities for certain Products as set out on https://www.neverfail.com.au/about-us/faqs/ (as updated by Neverfail from time to time), and subject to Neverfail notifying the Customer 30 days in advance of any minimum delivery quantities which may apply.

(e)    The Customer agrees to provide Neverfail’s representative reasonable and safe access to its premises to allow the efficient delivery of Equipment and Products, and where applicable to use its best endeavours to have its empty bottles available for collection on its scheduled delivery day.

13. Transfer of ownership

A party, other than the Customer, may take full responsibility for all liabilities and obtain all rights under the Agreement Form subject to duly executing the Neverfail Transfer of Ownership Form.

 

Direct to Consumer Terms

Neverfail offers its Customers the opportunity to purchase a variety of Products from The Coca-Cola Company and its Related Entities   through its website and other available channels. The following Terms (clauses 14 and 15) apply to the supply of these Products by Neverfail to the Customer.

 14. Supply of Products

(a)    The Customer's order for Products is an offer by the Customer to Neverfail, which Neverfail may accept or reject, in its absolute discretion. A quotation by Neverfail is not an offer.  

(b)    Any:

(1)    quotation by Neverfail;

(2)    response by Neverfail to a Customer enquiry; or

(3)    order made by a Customer and accepted by Neverfail,

is not effective unless made in writing, and will be subject to these Terms.

(c)    The Customer is responsible for correctly entering all information required to place an order for the Products. If Neverfail accepts the Customer's order for Products, Neverfail will sell, and the Customer will acquire and pay for, the Products in accordance with these Terms, current at the date the order was placed by the Customer. The price for the Products is calculated at the time of payment. Any changes to pricing will be in accordance with Neverfail's price list.

(d)    For the avoidance of doubt, if Neverfail has entered into a separate written agreement with the Customer for sale of the Products: 

(1)    unless that other agreement specifies otherwise, these Terms apply in addition to the terms of that other agreement; and 

(2)    the terms of that other agreement prevail over these Terms to the extent of any inconsistency.

15. Delivery of Products

(a)    Neverfail will take reasonable steps to deliver the Products by the Delivery Date to the Customer Premises. If Neverfail is unable to do so, we will work with you to minimise any impact to the Customer.

(b)    Neverfail may deliver the Products in instalments.

(c)    Delivery occurs when the Products are unloaded from Neverfail's transport at the Customer Premises.

(d)    If the Customer has not paid for delivered instalments in accordance with these Terms, Neverfail may refuse to deliver any further instalments.

General Terms

The following Terms apply to all Customers in relation to the provision of Equipment, Products and services from Neverfail to the Customer.
                                                                                                                                        

16. Ownership of Products (excluding Equipment)

(a)    Ownership of the Products will pass to the Customer once the Customer has paid Neverfail the Purchase Price and any other monies that may be payable to Neverfail, in accordance with these Terms.

(b)    Risk in the Products will pass to the Customer on delivery.

(c)    Until ownership passes to the Customer.

(1)    the Customer must:

(A)   hold the Products as fiduciary and bailee for Neverfail;

(B)   only deal with the Products as fiduciary (but not agent) of Neverfail and in the ordinary course of the Customer's business; and

(C)   hold any debts owing from sales under clause 16(c)(1)(B) for Neverfail and assign such debts to Neverfail. 

(2)    Neverfail may retake possession of the Products if an Event of Default by the Customer occurs and may, for that purpose, enter any premises occupied by the Customer where those Products are held and remove those Products.

(d)    If, at any time, Neverfail wishes, or is required to, take any further step to protect its interest in the Products under this clause 16, for example by registering its interest, the Customer agrees to provide any reasonable assistance which may be required by Neverfail for that purpose.

 17. Goods and Services Tax

(a)    Terms defined in the GST Law have the same meaning in this clause 17 unless the context otherwise requires.

(b)    Unless expressly provided otherwise, all amounts and other consideration payable under or in connection with these Terms (including the Purchase Price) are exclusive of GST.

(c)    If GST is payable on a taxable supply made by Neverfail to the Customer, Neverfail may recover from the Customer the amount of that GST (GST Amount) in addition to any consideration otherwise payable or provided for the supply.

(d)    The Customer must make payment of the GST Amount to Neverfail at the same time and in the same manner as it provides the consideration, or any part of it, for the relevant supply subject to the Customer receiving a tax invoice on or before the due date for payment.

(e)    If there is an adjustment event in relation to a supply which results in the amount of GST on a supply being different from the GST Amount, Neverfail must issue an adjustment note to the Customer, and

(1)    may recover from the Customer, by giving 7 days written notice, the amount by which the GST on the supply exceeds the GST Amount; or

(2)    must refund to the Customer, within 7 days of becoming aware of the adjustment event, the amount by which the GST Amount exceeds the amount of GST on the supply.

(f)     If a party is entitled to be reimbursed or indemnified under these Terms for an amount, the amount reimbursed or indemnified is reduced by the amount of GST for which the party has an entitlement to claim an input tax credit.  For Business Customer, it is to be assumed that there is an entitlement to a full input tax credit on an acquisition associated with the reimbursement or indemnity, unless the party to be reimbursed or indemnified demonstrates otherwise before the date the payment is to be made.

18. Customer rights and obligations regarding Defective Products

(a)    The Customer must inspect the Products on or promptly after delivery.

(b)    If the Customer becomes aware that any Products are Defective as at the time the Products are delivered, the Customer may make a claim against Neverfail within 7 days of delivery.

(c)    To the maximum extent permitted by law, and subject to clause 21, the Customer is deemed to have accepted the Products if it does not make a claim against Neverfail in accordance with clause 18(b).  Nothing in this clause excludes any requirement for Neverfail to repair or replace Equipment or a Product under warranty.

19. If there is a Force Majeure Event

(a)    If a party is, or is likely to be, affected in the performance of any obligation (other than an obligation to pay money) under these Terms by a Force Majeure Event and promptly gives the  other party notice of that fact, then the first party is relieved of that obligation until the Force Majeure Event ends.  In particular, where Neverfail is the party affected, Neverfail may:

(1)    suspend delivery for so long as the Force Majeure Event continues; or

(2)    reduce the quantity of the Products to be delivered.

(b)    If the Force Majeure Event continues for more than one calendar month and an order for Products made under these Terms remains undelivered, either party may cancel that order.

(c)    Neither party will have any claim against the other party for any Loss suffered as a result of any failure to fulfil an obligation relieved under this clause 19, including any delay or cancellation of orders.

20. Neverfail's liability

Subject to clause 21, to the maximum extent permitted by law:

(a)    Neverfail's liability for any Loss arising from any Defect, or non-compliance with a guarantee, condition or warranty, applicable to the Equipment or Products or any other goods or services supplied under these Terms is excluded.

(b)    Neverfail will not be liable to the Customer, whether under contract, tort, statute or in equity, arising out of or in connection with these Terms for any Consequential Loss.

(c)    Neverfail is not liable to the Customer for any Loss to the extent caused or contributed to by the act or omission of the Customer or the Customer's Personnel.

21. Consumer Rights

(a)    Nothing in this Agreement is intended to exclude or limit any rights of the Customer under the Competition and Consumer Act 2010 (Cth) that cannot legally be excluded or limited.

(b)    If the Competition and Consumer Act 2010 (Cth) or any other legislation provides that there is a guarantee in relation to any good or service supplied by Neverfail in connection with these Terms and Neverfail’s liability for failing to comply with that guarantee cannot legally be excluded then clauses 20 (a) and (b) do not apply to that liability. 

(c)    If Neverfail’s liability for failing to comply with that guarantee cannot legally be excluded but may be limited, then Neverfail’s liability for such failure is limited (at Neverfail’s election) to:

(1)    in the case of a supply of goods, Neverfail replacing the goods or supplying equivalent goods, repairing the goods, paying the cost of replacing the goods or of acquiring equivalent goods or paying the cost of having the goods repaired; or

(2)    in the case of a supply of services, Neverfail supplying the services again or paying the cost of having the services supplied again.

22. Customer indemnifies Neverfail 

(a)    The Customer indemnifies the Indemnified Parties against, and must pay the Indemnified Parties on demand, the amount of any Loss which the Indemnified Parties suffer or incur arising out of or in connection with third party claims in relation to the Products which arise out of a breach by the Customer of these Terms.

(b)    The liability of the Customer to indemnify the Indemnified Parties will be reduced proportionally to the extent that a negligent act or omission of the Indemnified Parties contributed to the Loss.

23. If there is an Event or Default

(a)    In these Terms, Event of Default means the Customer:

                         i.         fails to pay any amount that is due and payable by it under these Terms;

                        ii.         commits a breach of these Terms which is capable of remedy but does not remedy the breach within 10 Business Days of notice by Neverfail;

                       iii.         commits a material breach of these Terms which is not capable of remedy;

                       iv.         becomes, threatens to become or is in jeopardy of becoming Insolvent;

                        v.         does anything that materially damages, or is likely to materially damage, the reputation, brand or goodwill of Neverfail or its Related Entities;

                       vi.         or any Customer Personnel endangers Neverfail Personnel by engaging in conduct that would reasonably be considered as aggressive or threatening; or

                      vii.         creates or permits to exist any security interest over any of the Products , unless Neverfail is the secured party or the security interest is created by a security over all present and after acquired property of the Customer in circumstances where Neverfail will have the first priority security interest over the Products .

(b)    If an Event of Default occurs, Neverfail may, in addition to any other rights it may have at law and under other relevant clauses:

(1)    cancel any orders for Products under these Terms which remain undelivered;

(2)    terminate this Agreement in whole or in part by written notice to the Customer;

(3)    require the Customer to immediately pay all monies payable under these Terms;

(4)    enforce its security interest in any Collateral by exercising all or any of its rights under clause 16 (d) and this clause 23.

(5)    withdraw any credit facility provided by Neverfail to the Customer, vary the Period of Credit, or vary the Credit Limit.

24. The Customer's right to cancel orders

The Customer may terminate this Agreement or an order for Products if Neverfail: 

(a)    commits a breach of these Terms which is capable of remedy but does not remedy the breach within 10 Business Days of notice by the Customer;

(b)    commits a material breach of these Terms which is not capable of remedy; or

(c)    becomes, threatens to become or is in jeopardy of becoming Insolvent.

Where the Customer terminates an order for Products, it may only do so prior to those Products being delivered.

25. Equipment

The Customer:

(a)    acknowledges that the placement of Equipment at the Customer’s Premises under this Agreement is a bailment and title to the Equipment remains with Neverfail at all times;

(b)    accepts the risk of loss or damage to the Equipment upon placement at the relevant Customer Premises;

(c)    acknowledges that use of the Equipment by any person at a Customer Premises is at the Customer’s risk and responsibility (subject to clause 21);

(d)    must provide any assistance reasonably required by Neverfail for Neverfail to take steps to protect its interest in the Equipment, including by registering its interest on the Personal Property Securities Register;

(e)    must only use the Equipment to in relation to the dispensing and/or refrigeration of Neverfail’s Products ;

(f)     must not:

  1. modify or alter the Equipment in any way or remove any asset plates, trade marks or other markings;
  2. allow any person other than Neverfail’s authorised personnel to remove or relocate the Equipment,

except with Neverfail’s prior written consent, or in the case of an emergency, provided the Customer has given Neverfail as much notice of such action as is possible in the circumstances;

(g)    must do all things reasonably necessary to protect Neverfail’s ownership of the Equipment and not do anything which might adversely affect Neverfail’s ownership;

(h)    must not part with possession or control of the Equipment at any time, or attempt to sell it;

(i)     must provide at its own cost any services/utilities (e.g., power, water, or drainage supply) required for the Equipment to operate at the relevant Customer Premises and maintain those services/utilities in safe working condition in accordance with all applicable laws;

(j)     must use the Equipment safely, in accordance with all applicable Laws and Neverfail’s reasonable directions;

(k)    must take reasonable care of the Equipment and protect it against theft, vandalism or unauthorised interference;

(l)     must maintain the Equipment in a clean and hygienic condition;

(m)   must inform Neverfail, as soon as reasonably practicable, of any damage, defect, interference, fault or breakdown in performance of the Equipment;

(n)    must insure the Equipment for full value against loss, damage, destruction, theft, accident or malicious damage, of any kind and however caused;

(o)    must give Neverfail or its nominees access to the Equipment upon reasonable notice, including to place, maintain, repair or remove the Equipment; and

(p)    must give Neverfail at least 30 days’ prior written notice if the Customer intends to change ownership, change or vacate the Customer Premises, or sell or otherwise dispose of its business, so that Neverfail may remove the Equipment.

(q)    The Customer must allow Neverfail to remove the Equipment where Neverfail has the right to remove the Equipment under these Terms, or at any time where Neverfail has given that Customer 14 days’ written notice.

(r)     The Customer may request removal of Equipment by giving Neverfail 28 days’ written notice.

(s)    The Customer must cooperate with Neverfail during the removal of Equipment and ensure that it does not prevent removal in any way.

(t)     The Customer acknowledges that nothing in this Agreement obliges Neverfail to place any Equipment in any Customer Premises.

(u)    In the event that any Equipment is lost or damaged while in the possession of or at the premises of the Customer, the Customer agrees to reimburse Neverfail in full for the reasonable costs of the repair or replacement of the Equipment.

(v)    If the Customer requests removal of the Equipment prior to the end of the Term, the Customer acknowledges and agrees that it will remain liable to pay for any and all outstanding invoiced amounts, any amounts payable by the Customer during the Term pursuant to this Agreement and the costs of collecting any such amounts from the Customer, which may be demanded as a debt due from the Customer to Neverfail. This shall be in addition to any other right of Neverfail pursuant to this Agreement or at law.

26. Personal Property Securities Act 

(a)    If a term used in this clause 26 or elsewhere in these Terms has a particular meaning in the PPSA, it has the same meaning in these Terms.

(b)    The Customer acknowledges that Neverfail may register one or more financing statements in relation to any security interest provided for by these Terms. If permitted by the PPSA, the Customer waives its right under section 157 of the PPSA to receive notice of any verification statement relating to the registration of any such financing statement or any related financing change statement.

(c)    The Customer must:

(1)    do or cause to be done anything that Neverfail reasonably considers necessary or desirable to perfect and protect any security interest Neverfail may have under these Terms;

(2)    provide Neverfail with all information Neverfail requires in order to ensure that any registration of any security interest that may be granted in favour of Neverfail under these Terms is, and remains, fully effective and with the priority that Neverfail requires.

(d)    The Customer undertakes, if it disposes of any Collateral, that it will receive proceeds at least equal to the market value of the Collateral, and that it will not allow any other security interest to exist over those proceeds if that security interest could rank ahead of Neverfail's security interest. If such a security interest does arise despite the previous sentence, the Customer must ensure that it receives cash proceeds for the security interest at least equal to the market value of the proceeds, and must immediately pay those proceeds to Neverfail in reduction of the amount owing.

(e)    If permitted by the PPSA, the Customer waives its right under section 157 of the PPSA to receive notice of any verification statement relating to the registration of any such financing statement or any related financing change statement.

(f)     The Customer and Neverfail agree with each other not to disclose information of the kind mentioned in section 275(1) of the PPSA, except in the circumstances required by sections 275(7)(b) to (e) of the PPSA.

(g)    The agreement not to exercise rights to make any request of Neverfail under section 275 of the PPSA includes an agreement not to authorise the disclosure of any information under that section or to waive any duty of confidence that would otherwise permit non-disclosure under that section (but this does not limit rights to request information other than under section 275 of the PPSA).

(h)    To the extent the law permits, with respect to Business Customers:

(1)    for the purposes of sections 115(1) and 115(7) of the PPSA:

                         i.         Neverfail does not need to comply with sections 95, 118, 121(4), 125, 130, 132(3)(d) or 132(4) of the PPSA; and

                        ii.         sections 142 and 143 of the PPSA are excluded;

(2)    for the purposes of section 115(7) of the PPSA, Neverfail does not need to comply with sections 132 and 137(3) of the PPSA; and

(3)    if the PPSA is amended after the date of this Agreement to permit either party to agree to exclude other provisions of the PPSA, Neverfail may notify the Customer that it need not comply with any of those provisions as notified by Neverfail to the Customer.

27. Privacy

(a)    Neverfail will ensure that all of its dealings with Personal Information in connection with these Terms comply with applicable Privacy Laws and Neverfail’s  privacy policy available at https://www.neverfail.com.au/about-us/privacy-policy/ (as updated by Neverfail from time to time).

(b)    Neverfail will use personal information about you which you or others have provided at any time in order to manage Neverfail’s relationship with you. You agree to receive communications from Neverfail (including by email and SMS) in connection with the supply of Products or services and operation of your account and, unless you opt out, also any other communications from Neverfail, including business updates, reminders, surveys and marketing.

28. General

(a)    The Customer will not assign its rights under these Terms without Neverfail's prior consent.

(b)    If any part of these Terms is or becomes illegal, void or unenforceable, this does not invalidate the rest of the Terms.

(c)    If an amount is payable by the Customer to Neverfail, Neverfail is entitled to set off that amount against any amount payable by Neverfail to the Customer.

(d)    Clauses 16 (Ownership will pass on payment and risk will pass on delivery), 17 (Goods and Services Tax), 20 (Neverfail's liability), 21 (Consumer Rights), 22(Customer indemnifies Neverfail), 26 (Personal Property Securities Act) and this clause 28 (General) survive the expiry or termination of this Agreement or the cancellation of orders under these Terms.

(e)    These Terms are governed by and construed in accordance with the law of New South Wales and the parties submit to the jurisdiction of the Courts of New South Wales. The United Nations Convention on Contracts for the International Sale of Goods (Vienna 1980) is excluded.

(f)     Neverfail may subcontract its obligations without the Customer's prior consent.

(g)    No claim or right of a party under these Terms shall be deemed to be waived or renounced in whole or in part unless confirmed in writing by the other party.

(h)    The Customer will assist Neverfail as reasonably required in the event of a product recall over Products the Customer has acquired from Neverfail.

(i)     Neverfail and the Customer are independent contractors and not employees, partners or joint venturers.

(j)     The Customer acknowledges and agrees that Neverfail’s supply of the Products to the Customer Premises is for provision at no cost and/or retail sale at the Customer Premises. The Customer must only supply the Products to customers of the Customer Premises who are the end consumers of the Products and not at any time supply the Products to any person who will, or may, on-sell the Products to any other person.

 29. Definitions

The following definitions apply in these Terms:

Agreement means the Agreement Form and these Terms.

Agreement Form means the form signed by the Customer

Approval means any permit, consent, authorisation, registration, filing, lodgement, notarisation, certificate, endorsement, permission, licence (including process licences), approval, authority or exemption by, or with, an Authority and including any condition or requirement imposed under any of the foregoing.

Authority means any government department, local government, governmental or statutory authority, or other party which has a right under a law to impose a requirement or whose consent is required in relation to these Terms.

Bottle Deposit means a refundable amount payable by the Customer to Neverfail as set out in the Agreement Form, for the use of certain Neverfail spring water bottles.

Business Day means any day other than a Saturday, Sunday or a public holiday in New South Wales.

Collateral means the Products , any proceeds of the Products , and any product or mass that the Products may be or become part of.

Commercial means for the supply of Products and installation of Equipment for commercial use by a company with an Australian Business Number (ABN).

Consequential Loss means any loss of profits, loss of revenue, loss of any contract value, loss of anticipated profit or damages for lost opportunity, or cost of finance.

Contact Sales Agreement has the meaning given to it under the Victorian Fair Trading Act (1999).

Corporations Act means the Corporations Act 2001 (Cth).

Credit Limit means the amount of credit set out in the terms of the relevant agreement for a credit facility between Neverfail and the Customer (if any).

Customer means any person who submits an order for Equipment or Products to Neverfail.

Customer Premises means the premises of the Customer at which Products are to be delivered (and, where applicable, Equipment is to be installed) as specified by the Customer.

Customer Representative means an individual director, officer or employee of the Customer named in the Agreement Form.

Defect means an aspect of the Products that is Defective.

Defective, in relation to the Products , means that they: (a) do not comply with the requirements of these Terms; or (b) have an error, defect, fault, omission or malfunction.

Delivery Date means the date provided by Neverfail to the Customer on which Neverfail predicts it will deliver the goods.

Equipment means returnable spring water bottle/s, spring water cooler/s, filtered water cooler, water vaporisation equipment, bottle rack/s, pallets and other materials rented by the Customer from Neverfail under brands including Neverfail and Aqua Vital, as identified in the relevant Agreement Form.

Force Majeure Event means an event which is beyond the reasonable control of, and without the fault or negligence of the affected party and/or its Personnel, and which results in the affected party being unable to observe or perform on time an obligation under these Terms, but specifically excludes: (a) lack of available shipping or transport; (b) failures of Personnel, suppliers, subcontractors, public utilities or carriers; (c) any industrial action or labour disturbance; or (d) any event or circumstances which would have been avoided or substantially mitigated by normal planning and prudent business management or the relevant party exercising that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced party engaged in the same type of undertaking under the same or similar circumstances.

GST is defined in the GST Law.

GST Amount is defined in clause 6(c).

GST Law is defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Indemnified Parties means Neverfail, its Personnel and any Related Entities of Neverfail and each of their respective Personnel.

Insolvent is defined in the Corporations Act.

Invoice means the document provided by Neverfail to the Customer upon delivery of the Products describing those Products and the Purchase Price.

Late Payment Fee means an amount calculated on a daily basis at a rate equal to 5% plus the Reserve Bank of Australia cash rate as at that day, for the period from delivery of the Products until the Purchase Price is paid and compounded daily.

Loss means any loss, damage, liability or obligation, tax, compensation, fine, penalty, charge, payment, cost or expense (including any legal cost and expense on a full indemnity basis) however it arises and whether it is present or future, fixed or unascertained, actual or contingent.

Period of Credit means the number of days within which, from the date of delivery of Products , the Customer is to pay for the Products , as set out in the terms of the relevant agreement for a credit facility between Neverfail and the Customer (if any).

Personal Information is defined in the Privacy Laws.

Personnel means officers, employees, agents, contractors and consultants engaged by each party (but does not include the other party) and, in the case of the Customer, includes its subcontractors and any employee of those subcontractors.

PPSA means the Personal Property Securities Act 2009 (Cth).

Premises means the premises of the Customer at which Products are to be delivered (and, where applicable, Equipment is to be installed) from time to time during the Term

Privacy Laws means: (a) the Privacy Act 1988 (Cth); (b) any legislation (to the extent that such legislation applies to Neverfail or the Customer or any other recipient of Personal Information) from time to time in force in any: (i) Australian jurisdiction (which includes the Commonwealth of Australia and any State or Territory of Australia); or (ii) non-Australian jurisdiction (to the extent that Neverfail, the Customer or any Personal Information is subject to the laws of that jurisdiction), affecting privacy, personal information or the collection, handling, storage, processing, use or disclosure of data; and (c) any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments having the force of law, made or issued thereunder, as amended from time to time.

Products means any goods Neverfail make available for sale and includes spring water, coffee, filter cartridges, water filtration systems, jugs, cups and other consumables or products and items, and includes bottled alcoholic and non-alcoholic beverages sold to the Customer by Neverfail.

Purchase Price means the price to be paid for the Products calculated by reference to Neverfail's price list current at the time of delivery for the region in which the Customer's Premises are located and is the price stated as the Purchase Price in the Agreement Form or as later updated in accordance with these Terms. The Purchase Price includes, unless otherwise agreed or required by law, for any State or Territory which has a container deposit scheme in place, the amount of container deposits.

Related Entity means each person that is a subsidiary, holding company or related body corporate of a party.

Residential means for the supply of Products and installation of Equipment for private use.

Water Filtration Installation Charge means an amount payable by the Customer for installation of water filtration products, as set out in the Agreement Form.

 

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