Legal

1. Payments

Payments to be within 30 days of invoice date without deduction, unless otherwise agreed.

2. Interest

Interest is payable on overdue accounts at ESS’ election at the rate prescribed under the Penalty Interest Rates Act 1983 (Vic) plus an additional 3% per month.

3. Property

1. a.Property in products shall not pass until payment in full of all monies owed to ESS on any basis
2. b.ESS reserves the right to take possession & dispose of products as it sees fit at any time until full payment & the Customer grants permission to ESS to enter any property where any product is in order to do so with such force as necessary
3. c.Immediately upon delivery the Customer accepts liability for the safe custody of products
4. d.A certificate signed by an officer of ESS identifying ESS products & certifying that monies are owing to ESS shall be conclusive evidence of ESS’ title thereto
5. e.Upon sale or disposition of products prior to payment in full the Customer agrees to hold all proceeds Upon Trust for ESS in a separate bank account agrees not to mix proceeds with any other monies & will upon request immediately account to ESS therefore even if ESS may have at any time granted any credit facility &/or time to pay
6. f.Until full payment the Customer agrees
   1. i.to keep all products as fiduciary and Bailee for ESS & store them in a manner which shows ESS as owner
   2. ii.only to sell products in its usual course of business
   3. iii.sale on terms, at cost or less than cost shall not be “in the usual course”
7. g.Clause 3 is not intended to create a charge & shall be read down to the extent necessary to avoid being a charge
8. h.if the Customer uses or incorporates any products in any production, process, manufacture or construction or combines them with anything to create a finished or combined new thing for disposition by the Customer then upon such disposition prior to payment in full of all monies owing, the Customer agrees to hold such part of the proceeds thereof (& until payment is received by the Customer, that part of any applicable book debt of the Customer) as equals the costs of the products used and/or incorporated therein (at the prices invoiced by ESS to the Customer for them) Upon Trust for ESS until payment in full of all monies.

4. Limitation of Liability

1. a.The Customer will limit any claim upon ESS relating to products, to the cost of replacement of products or the supply of equivalent products and relating to services, to the cost of having services supplied again
2. b.ESS will not be liable in any way for any contingent consequential direct indirect special or punitive damage arising whether due to ESS’s negligence or otherwise & the Customer acknowledges this limit of liability & agrees to limit any claim accordingly
3. c.No other term condition agreement warranty representation or understanding whether express or implied in any way extending to or otherwise relating to or binding upon ESS is made or given
4. d.ESS will not be liable for any claim re any alleged fault or defect caused or contributed to by the Customer or any 3rd party nor for any transport installation rectification labour or other cost.

5. Returns

1. a.Any products which are accepted by ESS as defective may be returned and
   1. i.be replaced free of charge or
   2. ii.be the subject of a credit for the invoiced value. Replacement free of charge does not include labour transport or material costs.

6. Specific Orders

Customer specific orders may be rejected by ESS at its election, unless accompanied by a non-refundable deposit of at least 50% of the total order price.

7. Placement of Orders

1. a.if any dispute arises concerning any order (& including any measurement quality quantity identity or authority or any telephone facsimile e-mail or computer generated order) the internal records of ESS will be conclusive evidence of what was ordered
2. b.each order placed shall be & be deemed to be a representation made by the Customer at the time that it is solvent & able to pay all of its debts as & when they fall due
3. c.failure to pay in accordance with these Terms shall be & be deemed to be conclusive evidence that the Customer had no reasonable grounds for making the representation referred to in 7.b) & that the representations were unconscionable, misleading and deceptive
4. d.when any order is placed, the Customer shall inform ESS of any material facts which would or might reasonably affect the commercial decision by ESS to accept the order &/or grant credit in relation thereto. Any failure to do so shall create & be deemed to create an inequality of bargaining position shall constitute & be deemed to constitute the taking of an unfair advantage of ESS & to be unconscionable, misleading and deceptive.

8. Delivery

1. a.ESS accepts no responsibility for delivery but may elect to arrange delivery at its discretion & without any liability & at the Customer’s costs & responsibility in all things
2. b.ESS reserves the right to charge for any delivery
3. c.the Customer shall be deemed to have accepted delivery & liability for the products immediately ESS notifies that they are ready for collection or when they are delivered to a carrier or to the Customer’s business premises or site whether attended or not
4. d.a certificate purporting to be signed by an officer of ESS confirming delivery shall be conclusive evidence of delivery as shall any signed delivery docket
5. e.ESS will not be liable for delay, failure or inability to deliver any products
6. f.once the Customer has been notified that products are ready for collection, the Customer agrees to pay all costs of holding or handling products
7. g.Frustrated Delivery: If the time spent in attempting to or effecting delivery exceeds 30 minutes or requires more than one attempt, the Customer agrees to pay all costs relating thereto together with a loading of 10% to cover administration costs.

9. Variation or Cancellation

Variation or cancellation of any order dealing or arrangement must be agreed in writing

10. Purchase Price

1. a.All sales are made by ESS at its quoted price at the time of order placement
2. b.government imposts and any GST (“imposts”) will be to the Customer’s account
3. c.ESS’s price lists exclude imposts unless expressly noted thereon.

11. Exclusions

1. a.No dealing with the Customer shall be or be deemed to be a sale by sample or description
2. b.If ESS publishes material about its products & prices, any part which is incompatible with these Terms is expressly excluded
3. c.the Customer will rely on its own knowledge & expertise in choosing any product for any purpose
4. d.Any advice or assistance given for or on behalf of ESS shall be accepted at the Customer’s risk & shall not be or be deemed given as expert or adviser nor to have been relied upon.

12. Default

Default or breach by the Customer of these Terms or in any dealings with ESS will entitle ESS to retain all monies paid, call-up all monies owing, cease further deliveries & recover from the Customer all loss of profits without prejudice to any other of its rights.

13. Severability

Any part of these Terms can be severed without affecting any other part.

14. Products

1. a.ESS may update modify make substitution or alter any of its products or any component or raw material incorporated in or used in forming any party of any products as part of its ongoing business. The Customer agrees to accept current products in substitution for any products ordered provided they are not materially different
2. b.ESS disclaims any responsibility or liability relating to any products
   1. i.processed or made to designs drawings specifications or measurements etc or with materials which are provided or approved (whether in part or fully) by or on behalf of the Customer
   2. ii.utilised stored handled or used incorrectly or inappropriately
3. c.The Customer agrees to check products for compliance with all applicable Standards & regulatory bodies before use, on-sale or application & only to use on-sell or apply products in accordance therewith and with any manufacturer’s or ESS’ recommendations & directions as well as with sound commercial practice.

15. Other Terms & Conditions & Notice

No terms &/or conditions sought to be imposed by the Customer upon ESS shall apply unless agreed in writing by ESS.

16. Recovery Costs

The Customer will pay all costs & expenses of ESS, its legal advisers, mercantile agents & others acting on its behalf in respect of anything instituted or being considered as a result of any breach of these Terms or of any dealings with ESS.

17. Attornment

To give effect to its obligations arising under in these Terms the Customer hereby irrevocably appoints any solicitor for ESS from time to time, as its attorney.

18. Customer Restructure

The Customer will notify ESS of any change in its structure or management including any change in director shareholder management partnership or trusteeship or sale of any material part of its business within 7 days of any such change.

19. Jurisdiction

All contracts made with ESS shall be deemed to be made in Victoria & the parties submit to the jurisdiction of the appropriate Courts in or nearest Melbourne.

20. Credit Limit

ESS can vary or withdraw any credit facility or limit at any time at its discretion & without any liability to the Customer or any other party.

21. Waiver

If ESS elects not to exercise any rights arising as a result of breach of these Terms it shall not constitute a waiver of any rights relating to any subsequent or other breach.

22. Notice

The Customer will be deemed to have notice of any change to these Terms, immediately they are adopted by ESS in its business.

23. Security for Payment

The Customer

1. a.agrees on written request to charge in favour of ESS
   1. i.by way of a fixed charge, all its books of account goodwill documents of title & current & later acquired real & intellectual property &
   2. ii.by way of a floating charge the whole of the Customer’s other undertaking property & assets with payment of all monies owed to ESS
2. b.grants a lien to ESS over any of its property in the possession or control of ESS for any monies due and owing to ESS under these Terms or otherwise.

24. Force Majeure

ESS will not be in default or breach of any dealing with the Customer as a result of Force Majeure (ie: anything beyond ESS’ reasonable control).

25. Patents etc

If ESS utilises any design patent or intellectual property or follows any instruction provided by or on behalf of the Customer the Customer indemnifies ESS against any claim proceeding damages or liability for any loss cost or expense arising as a result whether for any alleged infringement of any intellectual property or otherwise.

26. Specifications

1. a.Any illustration drawing or specification supplied by ESS (“Specs”) are drafts and approximates
2. b.Any tangible or intellectual property rights in Specs shall remain the property of ESS and may be recalled at any time
3. c.Specs to be treated at all times as confidential and not made use of without the prior written consent of ESS.

27. Materials

All materials supplied by the Customer must be shipped by the Customer to the factory or site nominated by and in accordance with ESS instructions & at the cost and risk of the Customer. Such materials will remain at the Customers risk at all times.

28. Stock Discretion

ESS has a continuing discretion to allocate available stock and gives no warranty as to certainty of supply unless expressly agreed in writing in advance.

29. Partial Delivery / Forward Orders

If the Customer places forward orders or request partial or instalment delivery, the Customer agrees

1. a.to pay for so much of any order as is from time to time delivered by ESS
2. b.that no delay or failure to fulfil any part of any order shall entitle the Customer to cancel or vary any order or delay or reduce any payment.

30. On-Sale

The Customer agrees that upon on-sale of any products to inform any third party involved of these Terms and in particular the provisions of clause 4 and sub-clause 4.

Indemnity

The Customer indemnifies ESS against any claim or loss arising from or related in any way to any contractor dealing between ESS & the Customer or anything arising therefrom or arising as a result of or subsequent to any breach of these Terms

Insurance

The Customer agrees to insure ESS from any liability claim or damage arising in any way; whether directly or indirectly under part VA of the Trade Practices Act, these Terms, which insurance will note the insured interest of ESS

1. What we collect

We collect personal information only when you give it to us or when it is generated by your use of our websites:

1. a.Enquiries and quotations: your name, company or organisation, email address, phone number, role and country; the instruments you ask about and the quantities; anything you tell us about your application, site and timeline; and any files you attach, such as drawings, tender documents or specifications.
2. b.Support requests: the details above, plus the instrument, serial number and site involved, a description of the problem, how urgent it is, and any files you attach.
3. c.Contact messages: your name, email address, phone number, company and the message you send.
4. d.Orders and accounts: delivery and billing details, purchase history and correspondence about an order, where we supply products or services to you.
5. e.Website logs: the standard information every browser sends — your IP address, browser type and language, the pages you view, the files you download, the time of your visit and the site that referred you.

You can browse our websites, read articles and download manuals, data sheets and software without giving us any personal information.

2. How we use it

We use personal information to:

1. a.answer your enquiry, prepare and follow up a quotation, and route it to the ESS division and engineer best placed to help;
2. b.supply, deliver, install, calibrate, service and support the products you buy from us;
3. c.keep the records a business must keep of its quotations, orders, invoices and support history;
4. d.operate, secure and improve our websites — website logs are analysed in aggregate, for statistics such as which pages and files are used, and are not used to identify individual visitors except as described under Disclosure below;
5. e.meet our legal obligations.

We do not sell personal information, and we do not use the contact details you give us in an enquiry to send marketing you have not asked for. The use of the postal addresses, telephone numbers and email addresses published on our websites for marketing purposes is prohibited.

3. Cookies

Our websites use a small number of cookies that are necessary for them to work: one that holds the instruments in your enquiry basket between pages, and one that remembers a site preference. They identify your browser session, not you, and they carry no advertising or tracking purpose.

On essearth.com we also use Google Analytics, loaded through Google Tag Manager, to understand how the site is used — which pages and downloads are popular, and how visitors reach an enquiry. It runs only if you accept it in the banner shown on your first visit; until you do, and if you choose "Essential only", no analytics cookie is set and nothing is sent to Google. Your choice is remembered in your browser and you can change it by clearing the site's stored data. What is measured is the use of the site, never the contents of a form: we do not pass your name, email address, company or message to Google. We use no advertising cookies.

The contact and about pages on our websites embed a map from Google Maps so you can see where our offices are. The map loads from Google when the page opens, which tells Google your IP address and the page you are on, and may set Google's own cookies in your browser under Google's privacy policy rather than ours. We send Google nothing you have typed, and we do not use the map to follow you around our sites.

4. Where your information is kept and who can see it

Enquiries, support requests, contact messages, orders and the files you attach are stored on servers ESS owns and operates in Melbourne, Australia. Access is limited to ESS staff who need it to answer you, and is protected by individual accounts with two-factor authentication.

Some processing involves service providers outside Australia, each engaged for one purpose:

1. a.Email delivery: the confirmation we send you, and the alert we send our own staff, travel through Resend, an email delivery service in the United States. They carry your name, contact details and the content of your enquiry; attachments never leave our own systems by email.
2. b.Network protection: our websites are served through Cloudflare, which routes and protects the traffic to them and, in doing so, sees the same website logs we do, from edge locations around the world.
3. c.Backups: copies of our databases and files are stored with Google in an encrypted form. They are encrypted on our own server before upload and the key never leaves ESS, so Google cannot read them.
4. d.Maps: the office maps on our contact and about pages are served by Google Maps in the United States. Loading one tells Google your IP address and which page it is on. It carries nothing you have entered into a form.

We take reasonable steps to ensure that each of these providers protects your information to a standard consistent with Australian law.

5. Disclosure

We disclose personal information only to the service providers named above, to the ESS division and staff handling your matter, to a manufacturer or carrier where that is necessary to supply or service what you have ordered, and where the law requires it. Website logs and stored records may be produced to a law enforcement agency exercising a warrant, or where ESS is required to produce documents to fulfil its obligations to third parties, including statutory organisations under local law.

6. How long we keep it

We keep enquiries, quotations, orders and support records for as long as we need them to deal with you and to meet our record-keeping obligations, which for financial records is seven years. Website logs are kept for a short period for security and statistics and then discarded. Backups are retained on a rolling schedule and overwritten. If you ask us to delete information we no longer need, we will.

7. Access, correction and complaints

You may ask us what personal information we hold about you, ask us to correct it, or ask us to delete it, by contacting us using the details below. We will respond within a reasonable time and will not charge you for making a request.

If you believe we have handled your personal information in a way that breaches the Australian Privacy Principles, please tell us first so we can put it right. If you are not satisfied with our response, you may complain to the Office of the Australian Information Commissioner (oaic.gov.au).

8. Security

Our websites are served only over encrypted connections. The systems that hold your information sit on a private network that is not reachable from the internet, behind a single protected entry point, with staff access by individual account and two-factor authentication, and with encrypted off-site backups. No system is perfectly secure; if we become aware of a breach that is likely to cause you serious harm, we will notify you and the Commissioner as the law requires.

9. Links to other sites

Our websites link to manufacturers, partners and other organisations. Their privacy practices are their own, and this policy does not cover them.

10. Changes to this policy

We may update this policy as our websites and services change. The current version is always published at essearth.com/legal with the date it took effect, and the version in force when you gave us your information is the one that applies to it.

11. Contact us

ESS Earth Sciences, 141 Palmer Street, Richmond VIC 3121, Australia. Telephone +61 3 8420 8999. Email [email protected].

Referrals & links

No responsibility is taken for any contents linked or referred to from our site. ESS takes no responsibility for any damage that may occur by the use of information presented on our site.

Copyright

The copyright for any material created by the author is reserved. Any duplication or use of content such as images, diagrams, sounds or texts in other electronic or printed publications is not permitted without the author’s agreement.