Terms & Conditions (products)
These Terms and Conditions applies to all supplies of Products by Global Pipe Australia Pty Ltd ACN 126 981 931 (in its capacity as trustee for the Global Pipe Australia Unit Trust) and its successors and assignees (“Supplier”) to the Customer. The Order Form, these Terms and Conditions (and any attachments, annexures or exhibits) contains, and is deemed to be a conclusive record of, the entire agreement and understanding between the Supplier and the Customer with respect to the subject matter to which it relates. This Agreement may not be amended or varied unless agreed in writing by the parties.
In this Agreement unless inconsistent with the subject or context:
1.1 “Customer” means: (a) the person named on the Order Form as the customer; (b) any person who accepts an invoice as customer; and (c) the successors in title, legal personal representatives, assigns, employees, servants and agents of any person referred to in (a) or (b) of this definition. Where more than one person is included in the term “Customer” they will be jointly and severally liable.
1.2 “Order Form” means the front page of this Agreement.
1.3 “Delivered” means that the Products have been, as directed by the Customer or as specified in the Order Form, either: (i) delivered to the Customer; or (ii) removed from the premises of the Supplier. The receipt by the Supplier of a delivery acknowledgment signed by the Customer is sufficient evidence of delivery.
1.4 “Insolvency Event” means any of the following events: (a) a person becomes insolvent (or insolvent under administration) as defined in the Corporations Act 2001 (Cth), states that it is insolvent or is presumed insolvent under an applicable law; (b) a person is wound up, dissolved or declared bankrupt or commits an act of bankruptcy; (c) a liquidator, provisional liquidator, Controller, administrator, receiver, receiver and manager, encumbrancer, trustee for creditors, trustee in bankruptcy or other similar person (“Insolvency Practitioner”) is appointed to, or takes possession or control of, any or all of a person’s assets or undertakings (“Insolvency Commencement”); (d) an application or order is made (and, in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), a meeting is called, resolution passed, proposal put forward, or any other action taken which is preparatory to or could result in an Insolvency Event; or (f) a person is taken, under Section 459F(1) of the Corporations Act 2001 (Cth), to have failed to comply with a statutory demand, unless the event occurs as part of a solvent reconstruction, amalgamation, merger or consolidation that has been approved in writing by the Supplier.
1.5 “Products” means any goods supplied, or to be supplied, by the Supplier to the Customer as set out in the Order Form.
2.1 The Customer must pay the deposit set out on the Order Form to the Supplier on the date that the parties execute this Agreement.
2.2 The deposit is not refundable.
3 PAYMENT FOR PRODUCTS
3.1 The Supplier will provide the Customer with an invoice in respect of Products when they have been Delivered. The Customer must pay to the Supplier the total cost of the Products identified in the Order Form (or where relevant the instalment amount under clause 3.4) (“Product Price”) in Australian Dollars within 30 days from the end of the calendar month in which the Product is Delivered, or in accordance with the payment terms set forth in the Suppliers initial quote for the supply of the Product.
3.2 If the Product Price is not paid in full in accordance with clause 3.1, the Customer must pay the Supplier a late payment fee calculated on the unpaid amount from the date that the unpaid amount became due and payable to the date that the Product Price is paid in full at a monthly rate of interest equal to the 2% per annum.
3.3 If Products are Delivered in instalments the Supplier may issue an invoice on a pro rata basis as and when delivery of an instalment has been made, and payments shall be due in respect of the Products Delivered notwithstanding that other instalments have not been, or will not be, Delivered.
4 DELIVERY OF PRODUCTS
4.1 The Customer acknowledges that any delivery date is an estimate only and that, whilst the Supplier shall use reasonable endeavours to deliver the Products on or before the delivery date, the Supplier does not warrant nor represent that the Products will be delivered on the delivery date. The Supplier will not be liable under any circumstances for any loss, damage or delay occasioned to the Customer arising from late or non-delivery nor shall the Customer be entitled to treat this Agreement between the Supplier and the Customer as repudiated if Products are not delivered on or before the delivery date.
4.2 The Customer agrees that if it fails or refuses to take delivery of Products then the Supplier may, in its sole discretion and without prejudice to any of its other rights, store those goods at the risk and expense of the Customer.
4.3 The Customer shall give the Supplier not less than 2 weeks notice prior to the delivery date for any change in delivery address from the address stated in the Order Form. The Customer agrees that it must pay for all additional carriage charges and expenses including cartage and insurance, unless otherwise agreed by the Supplier in writing incurred as a result of the new delivery address.
4.4 Where Products are placed with an independent carrier, the carrier will be deemed to be an agent of the Supplier and not of the Customer for the purposes of Sections 50, 51 and 52 of the Goods Act 1958 (VIC).
5 LIABILITY AND INDEMNITY
5.1 Any claims by the Customer in respect of Products must be notified in writing by the Customer to the Supplier within seven days after Delivery and if the Customer does not do so, the Customer is deemed to forever release and discharge the Supplier from all actions, suits, charges, claims and demands which relate directly or indirectly to the Products or the Services (as the case may be).
5.2 Subject to clause 5.5, the Customer acknowledges and agrees with the Supplier that any term, warranty, condition, representation or obligation whether express or implied and whether as to quality, fitness for any particular purpose or otherwise relating to Products which is not expressly stated herein is expressly excluded from this Agreement, to the extent permitted by law.
5.3 The Customer agrees that the Supplier, to the extent permitted by law, accepts no responsibility or liability whether in contract or tort (including negligence or breach of statutory duty) or otherwise for any loss, damage, cost or expense of any kind whether direct, indirect or consequential (including for loss of profits, business or anticipated savings): (a) arising directly or indirectly out of or in respect of the use or custody of the Products or the supply of Products; or (b)caused directly or indirectly by the inadequacy of Products for any purpose or any defect in the Products, and the Customer releases and forever discharges the Supplier from all such responsibilities and liabilities and any claims, demands or causes of action in respect thereof.
5.4 The Customer hereby indemnifies the Supplier against any liability, loss, damage, cost or expense suffered or incurred by the Supplier as a result of the Supplier taking any action or exercising any of its rights under this Agreement, including but in no way limited to any debt collection costs and related legal costs.
5.5 The Customer shall, to the extent permitted by law, indemnify and keep indemnified the Supplier against any actions, proceedings, claims or demands for loss, damage, cost or expense whether direct, indirect or consequential (including for loss of profits, business or anticipated savings) brought, made or threatened against the Supplier by any third party arising directly or indirectly out of or in respect of the use or custody of the Products or the purchase and supply of Products or Services (as the case may be).
5.6 Nothing in this Agreement, whether express or implied, shall be taken to exclude, restrict or modify any non excludable conditions, warranties or rights contained in any applicable State or Commonwealth legislation.
5.7 If the Supplier is held liable in respect of Products or Services for a breach of a condition or warranty implied by Division 2 of Part V of the Trade Practices Act 1974 (Cth) or the Goods Act 1958 (VIC) or equivalent statutes of any relevant jurisdiction, any liability for such breach will be limited at the Supplier’s option to any of the following as determined in the sole discretion of the Supplier: (a) the replacement of those goods or services or the supply of equivalent goods or services; (b) the payment of the value of the goods or services or of replacing the goods or services or of acquiring equivalent goods or services; (c) the repair or restoration of the goods; or (d) the payment of the cost of having the goods repaired or restored.
6 RETENTION OF OWNERSHIP
6.1 Upon Products being Delivered to the Customer, those Products shall be at the Customer’s risk.
6.2 Notwithstanding clause 6.1, property in, and ownership of, Products will remain with the Supplier and not pass to the Customer until the Customer has paid the Supplier for those Products in full and has also paid the Supplier all other amounts owing on any account whatsoever by the Customer.
6.3 When property in, and ownership of, Products has not passed to the Customer, the Customer will, from the time those goods are Delivered, take custody of the Products and retain custody of them as the fiduciary agent and bailee of the Supplier. The Customer will ensure that the Products do not lose their identity as, and are clearly identifiable as, the property of the Supplier and are properly stored, protected and insured.
6.4 When the Customer has custody of Products as the fiduciary agent and bailee of the Supplier under clause 6.3, the Customer may re-sell such Products but only as the fiduciary agent of the Supplier. The Customer cannot, however, incur any liability for or on behalf of the Supplier to any third party by contract or otherwise. Any re-sale of Products under this clause 6.4 must be at arms length, on market terms, and in the ordinary course of the Customer’s business.
6.5 Where the Customer re-sells Products under clause 6.4, then, with respect to the proceeds of the goods re-sold (“the Proceeds”), the Customer will hold on trust for the Supplier:
- (a)the Proceeds, up to an amount equal to the amount owed to the Supplier in respect of those goods (“the Unpaid Purchase Price”); and
- (b)where the Proceeds are less than the Unpaid Purchase Price, such part of the debt or other property received by the Customer as a result of the re-sale that equals in value the Unpaid Purchase Price minus the Proceeds.
The receipt on trust of the Proceeds, debt and other property in respect of Products re-sold under clause 6.4 discharges, by an amount equal in dollar terms to that received on trust, the Customer’s debt to the Supplier in respect of those goods.
6.6 The Customer will maintain records to ensure that trust money and trust property are clearly identifiable as being held on trust for the Supplier. Moneys held on trust for the Supplier will be kept separate until they are paid to the Supplier.
6.7 If: (a) the Customer fails to pay the Product Price for Products or any part thereof in full by the due date for payment; (b)an Insolvency Event occurs in relation to the Customer; (c) the Customer parts with possession of Products held under clause 6.3 otherwise than by way of sale in the ordinary course of the Customer’s business; or (d) the Customer breaches any of the other provisions of this Agreement, the Supplier shall have the immediate right to: (a) demand that the Customer immediately account to the Supplier for any money or property (including, but not restricted to, any Products and any debt) held on trust for the Supplier; (b) demand that the Customer immediately account to the Supplier for any money owed to the Supplier as a result of a breach of this Agreement; (c) re-take possession of Products held by the Customer under clause 6.3 without notice to the Customer and for that purpose the Supplier may enter upon any premises occupied by the Customer or any other place where such Products are stored free from trespass; (d) sell Products held by the Customer under clause 6.3 or not yet Delivered and apply the proceeds after defraying expenses of sale and enforcement in or towards reduction of amounts due and payable on any account whatsoever to the Supplier; and (e) be indemnified by the Customer from and against (and the Customer must pay on demand to the Supplier) all loss, damage, costs or expenses which the Supplier may suffer or incur in exercising its rights under this clause 6.7.
6.8 The Customer must allow representatives of the Supplier, free from trespass, to enter any premises where Products are held under clause 6.3 are stored and inspect such goods at any time.
6.9 If an Insolvency Commencement occurs in relation to the Customer, the Insolvency Practitioner must immediately conduct a stocktake of all property (including trust property) belonging to the Supplier in the Customer’s custody and provide the Supplier with access to the results of that stocktake.
6.10 The Customer irrevocably appoints the Supplier as its true and lawful attorney to recover any proceeds of Products re sold under clause 6.4 to any person and to exercise the Customer’s rights against such person, including, without limitation, the right to re-take possession of those goods.
7 CONFIDENTIAL INFORMATION
7.1 Each party acknowledges and agrees any information (that is marked confidential or which is proprietary and treated as confidential by that party) is proprietary and confidential to that other party. Neither party may disclose any such information of the other party to any person or entity without the prior written consent of the other party.
8.1 The Product Price and any other sums payable by the Customer under or in relation to this Agreement (including any sums payable under clauses 3, 4 and 5) are exclusive of all national, federal, state, local, or other taxes and assessments of any jurisdiction, including sales or use taxes, property taxes, withholding taxes as required by international tax treaties, customs or other import or export taxes, value added taxes, goods and services tax and amounts levied in lieu thereof based on charges set, services performed or to be performed or payments made or to be made under this Agreement (“Taxes”), and Taxes will be payable by the Customer in addition to those sums. In particular, all Product Prices and Service Fees do not include Goods and Services Tax, sales tax or other government imposts unless otherwise indicated.
9 PATENTS, TRADE MARKS, COPYRIGHT AND INTELLECTUAL PROPERTY RIGHTS
9.1 The Customer acknowledges that any and all of the trademarks, trade names, copyright, patents and other intellectual property and proprietary rights, whether registered or unregistered, and whether arising by legislation, law or any other manner in or arising out of, the Products shall be and remain the sole property of the Supplier.
10 OTHER TERMS
10.1 The Customer must immediately notify the Supplier of any alteration to the ownership or effective control of the Customer.
10.2 The Customer may not assign its rights contained in any agreement between the Supplier and the Customer to supply and purchase Products or Services without the prior written consent of the Supplier.
10.3 The Supplier will have the right to suspend deliveries of Products where the Supplier in its absolute discretion considers the amount owing by the Customer at that time (whether actually due for payment or not) is the limit to which the Supplier is prepared to allow the Customer credit.
10.4 If any provision of this Agreement, or the application of these Terms and Conditions to any person or circumstance, is found to be invalid or unenforceable this will not affect the validity or enforceability of the other provisions of this Agreement which will remain in full force and effect.
10.5 The headings in this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning and interpretation of any of the terms and conditions of this Agreement.
10.6 Notices or other communications to be given under these Terms and Conditions will be deemed to have been given if they are in writing and signed by, or on behalf of, any of the respective parties and served upon the other party by being delivered by hand or sent by ordinary post or by being transmitted by facsimile. Any such notice or communication will be deemed to have been received at the time at which it is left at the recipient’s address or at the expiration of 48 hours from the time of posting or upon receipt by the sender of the facsimile transmission report.