Terms & Conditions of Sale where a corporation, if under administration, provisional 12. liquidation or liquidation as if a ‘controller’ (as defined in the Corporations Act) has been appointed; or (iii) if an individual, being an ‘insolvent under administration’ (as defined in the Corporations Act). (e) The customer acknowledges that Grundfos has a security interest (for the purposes of the PPSA, and as defined in the PPSA) in the goods and any proceeds described in sub-clause 8(c) until title passes to the customer in accordance with clause 8(a). (f) The customer acknowledges that each security interest over the goods (or their proceeds) arising under this clause 8 is a “purchase money security interest” under the PPSA to the extent that it secures payment of the amounts owing in relation to those particular goods. The security interests arising under this clause 8 attach to the goods when the customer obtains possession of the goods. (g) The customer agrees, at its cost, to do anything (such as obtaining consents, signing and producing documents, getting documents completed and signed and supplying information) which Grundfos 13. asks and considers required for the purposes of: (i) ensuring that the security interest is enforceable, perfected and otherwise effective, including, if applicable, as a purchase money security interest; (ii) enabling Grundfos to apply for any registration, complete any financing statement or give any notification, in connection with the security interest, so that Grundfos has the priority it requires; or (iii) enabling Grundfos to exercise rights in connection with the security interest. The customer agrees to pay or reimburse the reasonable costs of Grundfos in connection with anything required to be done under this clause 8. (h) The customer agrees to pay or reimburse the reasonable costs of Grundfos in connection with anything required to be done under this clause 8. (i) Grundfos does not need to give any notice under the PPSA (including notice of a verification statement) unless notice is required under the PPSA and cannot be excluded. (j) The parties agree that they are not required to disclose any information of the kind referred to in section 275(1) of the PPSA. (k) If there is any inconsistency between the rights of Grundfos under this clause 8 and Grundfos’ rights under the PPSA, this clause 14. prevails. (l) Terms used in this clause 8 that are not defined in this document but are specifically defined in the PPSA have the same meaning as in the PPSA. Passing Risk Risk in the goods will pass to the customer upon delivery of the goods to the customer or collection of the goods by the customer’s agent or courier. The customer will insure the goods for their full replacement value from the time that risk in the goods passes to the customer until the time that title to the goods passes to the customer. The customer will hold the goods as bailee but shall not be entitled to receive any remuneration in respect of that bailment. Unloading of goods is the customer’s, or the customer’s agent’s responsibility. Default If the customer makes default in payment or otherwise fails to carry out its obligations under the terms or repudiates a contract for the purchase of goods or any other contract with Grundfos, or if the customer stops payment, calls a meeting of its creditors or becomes insolvent or subject to bankruptcy laws, or being a company calls a meeting for the purpose of or goes into liquidation or has a winding up summons presented against it or has a receiver, controller or administrator appointed, Grundfos at its option and notwithstanding any waiver of such default or failure (and without prejudice to its rights under these terms), may suspend or cancel any contract with the customer or require payment in cash before or on delivery. If title has not passed under clause 8(a), Grundfos may take possession of goods and dispose of the same in its own interest, without prejudice to any claim it may have for any loss resulting from such resale, and all credit facilities available to the customer may be withdrawn by Grundfos at any time thereafter. Cancellation No order for goods that has been accepted by Grundfos may be cancelled by the customer except with Grundfos’ consent in writing and on terms which will indemnify Grundfos against all losses. Grundfos will be entitled to cancel any order that it has accepted and the resultant contract created as a result of acceptance by notifying the customer in writing if fulfillment is impossible within a reasonable period of time because of war, strike, lockout, political conditions or other incidents of force majeure beyond Grundfos’ control. The same applies in the case of delayed or faulty delivery from a sub-supplier, and in the event of such incidents Grundfos will not be liable to pay damages or any other form of compensation to the customer. (ii) Privacy Act The customer acknowledges that credit information may be given to a credit reporting agency, on the customer’s understanding that the Privacy Act allows Grundfos to give a credit reporting agency certain information about the customer. To enable Grundfos to assess the customer’s application for commercial credit, the customer authorises Grundfos to obtain from a credit reporting agency a credit report containing personal and commercial credit information about the customer. In accordance with the Privacy Act, the customer authorises Grundfos to give and receive from any credit provider information in Grundfos’ possession or the credit provider’s possession about the customer’s credit worthiness, credit standing, credit history and credit capacity. The customer understands that the information may be used to assess an application for credit by the customer and assess the customer’s credit worthiness. Terms used in this clause 12 that are not defined in this document but are specifically defined in the Privacy Act have the same meaning as in the Privacy Act. Returns Except to the extent Grundfos is required to do so by the ACL: (i) Grundfos will not be under any obligation to accept goods returned by a customer. Prior approval must be obtained by a customer from Grundfos before any goods will be accepted for return. (ii) Grundfos will only consider the return of standard goods listed in Grundfos’ current published Price Book, and only where those goods are in their original packaging, unsoiled, undamaged and in an immediate resalable condition. Standard goods returned will be accepted if returned within 60 days from date of delivery, and Grundfos will charge the customer $75 + 15% of invoice value for the goods. (iii) If Grundfos accepts the return of goods, the goods returned must be accompanied by a Goods Return Advice (GRA) stating the original invoice number, date of purchase, customer order number and reason for return. Freight and insurance for goods to be returned to Grundfos must be pre-paid by the customer. (iv) Goods not in the published Price Book are non standard and are non returnable. (v) Requests for exemptions to the above must be agreed jointly between Grundfos’ Market Segment Manager and its Manufacturing Manager (or equivalent position from time to time), and confirmed in writing supplied to the customer. Liability To the extent that these terms and conditions provide for a supply of goods or services to a consumer (as defined in the ACL), that supply will be subject to consumer guarantees which are not excluded, restricted or modified by Grundfos in any way through these terms. However, to the extent permissible under the ACL, Grundfos limits its liability as follows (a) in the case of goods - replacement of the goods or the supply of equivalent goods, repair of the goods, payment of the cost of replacing the goods or acquiring equivalent goods, or payment of the costs of having the goods repaired; and (b) in the case of services - the supply of the services again, or payment of the cost of having the services supplied again. In all other respects and to the extent permitted by the law: (c) all terms, conditions, warranties and representations, express or implied by statute or otherwise, as to the description, acceptable quality or fitness for any purpose of goods supplied under these terms are excluded (except such as may be provided for under these terms); (d) Grundfos excludes all liability in statute, equity or common law (including, but not limited to, liability in negligence) and any loss and damage consequential or otherwise arising in any way from the supply of, delay in supplying or failure to supply goods or any services under these terms; (e) any liability of Grundfos which cannot be lawfully excluded in relation to the supply of goods is limited to: (i) the replacement of the goods or supply of equivalent goods to those that gave rise to the liability; (ii) the repair of the goods that gave rise to the liability; or (iii) the payment of the cost of replacing the goods that gave rise to the liability; (f) any liability of Grundfos which cannot be lawfully excluded in relation to the supply of services, including those supplied under clause 16, is limited to: (i) the supply of the services again; or (ii) payment of the cost of having the services supplied again (g) Grundfos will not accept claims for liquidated damages; and 9. 10. 11.
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