ABN 97 156 445 653
Office Address: 169 Grange Road, Beverley, South Australia, 5009, Australia
Postal Address: PO Box 1224, Flinders Park, South Australia, 5025, Australia
Tel: +61 8 8240 5585
In this document (Terms and Conditions):
a) Application means the application (if any) by the Customer to FMT for commercial credit;
b) Australian Consumer Law means the Australian Consumer Law applying to the State and includes the Competition and Consumer Act 2010 (Cth));
c) Business Day means a day other than a Saturday, Sunday or public holiday in the State;
d) Collection Costs means all costs incurred in the recovery of monies owing by the Customer to FMT or in otherwise enforcing FMT’s rights against the Customer under the Contract (including legal and debt collection costs on a full indemnity basis) and includes default interest hereunder;
e) Contract means the contract formed between FMT and the Customer by an Order accepted by an Order Acknowledgment;
f) Customer means the person placing the Order with FMT;
g) Credit Limit means the amount approved in writing by FMT;
h) Deposit is defined in Clause 8(a);
i) Domestic Sales means any supply of Goods within the customs territory of Australia;
j) Due Date for Payment means the date specified for payment in Clause 9(d) as applicable to the Customer;
k) Excluded Charges means customs duty, sales tax, freight, insurance or any other taxes, fees, costs or charges levied or incurred because of exportation of the Goods, installation and maintenance costs and any other costs connected with or resulting from these Terms and Conditions or FMT’s performance of its obligations hereunder (even if FMT is to pay freight carriage and/or insurance);
l) Export Sales means any supply of Goods outside the customs territory of Australia;
m) FMT means Fluid Management Technology Pty Ltd A.C.N. 156 445 653 (ABN 97 156 445 653);
n) Goods means the supply of New Goods, OEM Goods, and services (including installations) by FMT;
o) Intellectual Property means all industrial and intellectual property rights and confidential information owned by FMT from time to time including but without limiting the generality of the foregoing, rights to, or arising from, patents, designs, trade marks, copyrights, designs, rights to or arising from circuit or semi conductor designs, computer programmes, trade secrets, confidential information, valuable technology, inventions and the right to apply for the grant of any form of industrial or intellectual property rights;
p) New Goods means Goods which are at their original operational level from the manufacturer (including OEM Goods), supplier or FMT but may have been quality control tested or tested prior to sale.
q) OEM Goods means any equipment, product or component acquired from the original equipment manufacturer to either be directly resold to a Customer or incorporated by FMT into one of its Goods;
r) OEM Warranty means the warranty for OEM Goods which shall be passed on by FMT to the Customer for a maximum of 12 months, with such OEM Goods to be returned to base, at the Customer’s cost, unless specified otherwise;
s) Order is defined in Clause 5(a);
t) Order Acknowledgment is defined in Clause 5(c);
u) Party means FMT or the Customer as the context requires;
v) Period of Credit means the period approved in writing by FMT;
w) Product Warranty means the warranty for the Goods referred to in Clauses 20, 21 and 22.
x) PPSA means Personal Property Securities Act 2009 (Cth);
y) Scope of Work means the scope of work (if any) as advised by FMT to the Customer;
z) State means South Australia and the Commonwealth of Australia as the context requires;
aa) Territory means the territory and territories in which the Customer carries on business;
bb) Transaction Tax includes any goods and services tax, value added tax and sales tax as well as any identified or new transaction taxes that come into existence after the effective date of these Terms and Conditions, and, unless otherwise stated, an expression used or defined in the Corporations Act 2001(Cth) has the same meaning in the Terms and Conditions.
In this agreement, except where the context otherwise requires:
a) if there is an inconsistency between the documentation provided by FMT in relation to the Goods, these Terms and Conditions and any other relevant documents, these Terms and Conditions will prevail, then the documentation provided by FMT in relation to the Goods, and then any other relevant documentation provided by FMT in relation to the Goods;
b) the singular includes the plural and vice versa, and a gender includes other genders;
c) another grammatical form of a defined word or expression has a corresponding meaning;
d) a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this agreement, and a reference to this agreement includes any schedule or annexure;
e) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
f) a reference to time is to Adelaide, Australia time;
g) a reference to a party is to a party to this agreement, and a reference to a party to a document includes the party’s executors, administrators, successors and permitted assigns and substitutes;
h) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
i) a word or expression defined in the Corporations Act 2001 (Cth) has the meaning given to it in the Corporations Act 2001 (Cth);
j) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it; and
k) headings are for ease of reference only and do not affect interpretation.
3. SALE AND PURCHASE
FMT agrees to sell, and the Customer agrees to purchase, the Goods on the terms of these Terms and Conditions.
a) Unless otherwise indicated on the quote, written quotations provided by FMT shall automatically expire 30 days after the date appearing on the quotation unless the Customer receives and accepts the quotation, by issuing an Order, within that period.
b) Prior to the expiration date any quotation is subject to change by FMT at any time upon verbal or written notice to the Customer.
5. ORDERS, ORDER ACKNOWLEDGMENTS AND CONTRACT
a) An order or an offer to purchase Goods (each, an Order) may be made by the Customer in writing or verbally.
b) The Customer acknowledges that the placing of an Order means that the Customer has had proper and adequate notice of these Terms and Conditions and that the Customer has read and accepted (and has had proper and adequate opportunity to do the same) these Terms and Conditions before providing the Order.
c) An Order is accepted when the Customer receives from FMT an acknowledgement of that Order (Order Acknowledgment) in writing or if writing is not received, acknowledgment verbally or delivery, whichever first occurs.
d) When an Order is accepted by an Order Acknowledgment, the Contract will be wholly documented by (in descending order of precedence) any specific term(s) agreed in writing (including the Scope of Work), the Order Acknowledgment and these Terms and Conditions.
e) Previous dealings between FMT and the Customer shall not have any effect on the Contract.
f) Trade custom and/or trade usage is superseded by the Contract and shall not be applicable in the interpretation of the Contract.
g) A Contract constitutes the entire agreement between FMT and the Customer with respect to the Goods supplied under the Contract, all prior negotiations, proposals and correspondence are superseded by that Contract and these Terms and Conditions will in all circumstances prevail over the Customer’s terms and conditions of purchase (if any).
a) Unless otherwise agreed in writing, the price charged for the Goods shall be:
i. exclusive of any Transaction Tax; and
ii. as per the price determined by FMT at the date of delivery. Any price indications or price lists issued or released by FMT from time to time are subject to alteration in accordance with the price determined by FMT as at that date of delivery.
b) Where a Transaction Tax applies to any supply made under these Terms and Conditions, FMT may recover from the Customer an additional amount on account of that Transaction Tax.
c) Unless otherwise stated, the price charged for the Goods in a tax invoice issued by FMT to the Customer does not include the Excluded Charges. The Customer acknowledges that the Customer is responsible for the payment of the Excluded Charges.
d) The Customer acknowledges that the costs of any additional inspections or tests other than those normally carried out by FMT in respect of the Goods will be charged to the Customer, and the Customer agrees to pay for the same.
e) FMT may recover Collection Costs from the Customer without notice or provision of any evidence thereof to the Customer and such amounts shall without notice form part of, and be due and payable at the same time and in the same manner as, the price charged for the Goods.
f) Notwithstanding any provision in the Contract, FMT may increase the price of Goods after an Order Acknowledgment and prior to delivery of the Goods if the price increase results from an increase in the price of any inputs which comprise part of the Goods.
g) The Parties acknowledge and agree that any anticipated prices, fees or amounts stated by FMT to the Customer for the Goods during the term of the Contract are estimates only and not quotes (unless explicitly stated otherwise by FMT). Where the Goods relate to the provision of services, FMT’s prices are function of time spent to complete the Order. These prices may be affected by factors beyond FMT’s control and therefore cannot be ascertained or taken into account at the commencement of the Contract.
a) FMT will make all reasonable efforts to have the Goods delivered to the Customer or its designated agent as agreed between the Parties (or if there is no specific agreement then at FMT’s reasonable discretion), but FMT shall not be liable for:
i. any failure to deliver or delay in delivery for any reason; or
ii. any damage or loss due to unloading or packaging; or
iii. damage to property caused upon entering premises to deliver the Goods.
b) Any costs incurred by FMT due to any failure by the Customer to accept the Goods at time of delivery will be reimbursed by the Customer to FMT. Except as required by law or the Terms and Conditions, FMT will be under no obligation to accept Goods returned for any reason.
c) The Customer acknowledges and agrees that time is not of the essence in relation to delivery of the Goods and that it must accept and pay for the Goods even if they are delivered after a requested time.
d) The Customer acknowledges that the Customer must not cancel any Contract:
i. without the prior written consent of FMT; or
ii. on terms that will indemnify FMT for all costs, expenses and losses and damages incurred by FMT as a result of the cancellation of the Contract.
e) The Customer acknowledges that:
i. FMT may in its absolute discretion charge a restocking fee if the Customer cancels an Order after it has been accepted by FMT and an Order Acknowledgement has been issued;
ii. the restocking fee will be a minimum of 10% of the total value of the Order, but subject to Clause 7(e)(iii) may be up to 40% of the total value of the Order;
iii. the restocking fee charged will depend on how far the Order has progressed through FMT’s procurement, production and delivery processes.
f) Subject to a Product Warranty claim, the Customer acknowledges that FMT is not under any obligation to accept Goods returned by the Customer.
8. DEPOSIT AND SECURITY
a) FMT may request the Customer for an amount of money or other security (including a credit card reservation) to be held as a deposit (Deposit) for payment for the Goods (or part thereof).
b) The Customer shall forfeit the Deposit to FMT if the Customer for any reason cancels its Order for the Goods.
c) If the Deposit provided by the Customer is a credit card reservation, the Customer unconditionally authorises FMT to debit the Deposit from the Customer’s nominated credit card without notice pursuant to this Clause 8.
a) Subject to Clause 15, payment for the Goods must be made in full (without any set off except as made by FMT) and received by FMT by the Due Date for Payment unless otherwise identified by FMT on any statement of account or invoice.
b) Payment is only received by FMT when it receives cash or when the proceeds of other methods of payment are credited and cleared to FMT’s bank account.
c) All payments must be made in the currency specified by FMT. Where a currency is not specified in the invoice to the Customer, the default currency for payment will be Australian Dollars ($AUD).
d) All payments will be:
i. For Domestic Sales to Customers whom FMT have approved a credit account under Clause 15 – by cash or electronic funds transfer within 30 days from the end of the month in which the Goods are delivered to the Customer; or
ii. For Domestic Sales to Customers whom FMT have not approved a credit account under Clause 15, and all Export Sales – by electronic funds transfer prior to the Goods being dispatched by FMT, unless otherwise agreed between the parties in writing.
e) If the Customer has provided its credit card details to FMT, the Customer unconditionally authorises FMT to debit the Customer’s credit card without notice for the amount of payment of the Goods.
f) The Customer must advise FMT of all payment disputes relating to faulty Goods or Goods “not fit for purpose” in writing by email at email@example.com within 7 days from delivery of the Goods, unless otherwise agreed in writing by FMT. Payments disputes after this time will not be accepted by FMT.
10. TITLE AND RELATED MATTERS
a) The legal and equitable title to the Goods will only be transferred from FMT to the Customer when the Customer has met and paid all that is owed to FMT on any account whatsoever.
b) The Customer acknowledges that until the Customer has met and paid all that is owed to FMT on any account whatsoever, the Customer holds the Goods as bailee for FMT and that a fiduciary relationship exists between the Customer and FMT.
c) Until FMT receives full payment of all monies due to it from the Customer, the Customer shall keep the Goods separate and in good condition as fiduciary of FMT, clearly showing FMT’s ownership of the Goods and shall keep books recording FMT’s ownership of the Goods and the Customer’s sale or otherwise of them in accordance with Clauses 10(e) and 10(f). The Customer, if required, shall deliver the Goods up to FMT.
d) If the Customer breaches these Terms and Conditions, in addition to its remedies set forth in Clause 12(b), FMT may take possession of the Goods (at the cost and risk of the Customer) wherever the Goods are located and the Customer agrees that representatives of FMT may enter upon the Customer’s premises for that purpose.
e) Despite Clause 10(a), the Customer may sell as fiduciary (but not agent) for FMT the Goods to a third party in the normal course of the Customer’s business provided that where the Customer is paid by that third party, the Customer holds the proceeds of sale to the extent of the amount owing by the Customer to FMT at the time of receipt of such proceeds on trust for FMT. The Customer must keep those proceeds separately on trust for FMT and not mix those proceeds with any other monies. Where the Customer has not been paid for the Goods by the third party, the Customer holds the debt owing to it by the third party in respect of the sale of the Goods upon trust for FMT and must assign that debt to FMT at the direction of FMT.
f) If the Customer uses the Goods in some manufacturing or construction process of its own or some third party, then the Customer shall hold such part of the proceeds of such manufacturing or construction process as related to the Goods on trust for FMT. Such part shall be deemed to equal in dollar terms the amount owing by the Customer to FMT at the time of the receipt of such proceeds. The Customer must keep that part of the proceeds separate on trust for FMT and not mix those proceeds with any other monies.
g) Notwithstanding the above, the Customer is still required to pay FMT for Goods already delivered and for Goods manufactured or ordered to specification and not yet delivered.
h) If, at any time, FMT wishes or is required to take any further steps to protect its interest in the Goods under this Clause, for example by registering its interest, the Customer agrees to provide any assistance which may be required by FMT for that purpose.
i) Until FMT receives payment in full for the Goods from the Customer, FMT may, in its absolute discretion and without notice, limit the functionality of the Goods (including withdrawing software support, and restricting access to FMT’s online portal and other online services, notwithstanding that the Customer may have installed or delivered the Goods to a third party). FMT agrees to provide to the Customer the necessary codes to unlock and restore functionality to the Goods within 5 Business Days of receipt of full payment for the Goods.
a) This Clause applies to the extent that this Agreement comprises a PPS Security.
b) FMT may register any PPS Security which arises under this Agreement.
c) The Customer must do all things (such as obtaining consents and signing documents), which FMT requires in writing, for the purposes of:
i. ensuring that such PPS Security is enforceable, perfected and otherwise effective under the law (including the PPSA);
ii. ensuring that FMT has first ranking priority (or such other priority required by FMT) in respect of such PPS Security; and
iii. ensuring that FMT is able to exercise its rights in connection with such PPS Security.
d) The Customer must reimburse FMT for, and pay on demand to FMT, FMT’s cost of doing anything under this Clause.
e) The rights of FMT under this Clause are in addition to and not substitution for FMT’s rights under any law (including the PPSA).
f) This Agreement does not limit FMT’s rights under the law (including the PPSA) in any manner.
g) FMT may choose whether to exercise its rights under this Agreement and/ or under any law and the manner of such exercise in its absolute discretion.
h) To the extent that the PPSA applies to this Agreement and to the extent that this Agreement is not in respect of a PPS Security in collateral that is not used predominantly for personal, domestic or household purposes, the following provisions of the PPSA do not apply to this Agreement and for the purposes of s 115 of the PPSA are contracted out of by this Agreement, to the following extent:
i. s 95 PPSA, but only to the extent that it requires FMT to give a notice to the Customer;
ii. s 96 PPSA, but only to the extent that it would permit a person to retain an accession (as defined in the PPSA) in priority to the rights of FMT;
iii. if the Customer has granted an encumbrance over an interest in land in favour of FMT, s 117 PPSA, but only to the extent that it requires FMT to act reasonably and take into account the matters described in s 117(3) PPSA;
iv. if the Customer has granted an encumbrance over an interest in land in favour of FMT, s 118, but only to the extent that it requires FMT to give notice to the Customer;
v. s 121(4) PPSA, but only to the extent that it requires FMT to give notice to the Customer;
vi. s 125 PPSA, but only to the extent that it requires FMT to dispose of or retain collateral;
vii. s 129(2) PPSA, but only to the extent that FMT is required to comply with the procedure therein;
viii. s 129(3) PPSA, but only to the extent that FMT is required to comply with the procedure therein;
ix. s 130 PPSA, but only to the extent that it requires FMT to give notice to the Customer;
x. s 132(3)(d) PPSA, but only to the extent FMT is required to give a statement of account under s 132(1) PPSA;
xi. s 132(4) PPSA, but only to the extent that it requires FMT to give a statement of account;
xii. s 135 PPSA, but only to the extent that it requires FMT to give a notice under that section;
xiii. s 123(4) PPSA, but only to the extent that section limits the right of FMT to enter land or a water source (as defined in the PPSA);
xiv. s 142 PPSA, but only to the extent that a person may redeem collateral secured by a PPS Security in favour of FMT; and
xv. s 143 PPSA, but only to the extent that a person may reinstate a PPS Security against the Owner.
i) For the avoidance of doubt, the provisions of s 120, s 123, s 126, s 128, s 129 and 134(1) of the PPSA apply to this Agreement to the extent they grant rights to FMT:
j) If there is a default by the Customer, FMT may, in its absolute discretion, seize, purchase, take possession of, take apparent possession of, retain, deal with or dispose of any personal property under this Agreement (in addition to, and independent of, any rights of FMT under any law (including the PPSA)). FMT may exercise such powers in any manner (at the Owner’s absolute discretion) including by private sale, public sale, lease or licence.
k) The Customer waives its right to receive a verification statement (as defined in the PPSA) for registration events (as defined in the PPSA) for commercial property (as defined in the PPSA) under s 157 PPSA.
l) FMT and Customer agree that the matters which might be required to be disclosed under s 275 (1) PPSA is confidential information of FMT and the Customer will not disclose such confidential information:
i. except with the written consent of FMT;
ii. to perform the Customer’s obligations under this Agreement;
iii. for the limited purpose of obtaining advice from an accountant, legal practitioner or similar advisor; or
iv. as otherwise required by law (except s 275(1) PPSA to the extent excluded by this Clause).
m) The Customer must use best endeavours to ensure that s 275(6)(a) PPSA continues to apply in favour of the Owner. The Agreement in this Clause is made solely for the purposes of allowing FMT the benefit of s 275(6)(a) and FMT shall not be liable to pay damages or any other compensation or be subject to injunction if FMT breaches this Clause.
a) The Customer will be in default if:
i. the Customer fails to perform in whole or in part any of its obligations under, or is in breach in whole or in part of any of, the Terms and Conditions;
ii. payment for the Goods has not been received by FMT by the Due Date for Payment;
iii. the Customer being an individual commits an act of bankruptcy, dies or becomes permanently incapacitated or becomes an insolvent under administration;
iv. the Customer being a body corporate becomes insolvent, an externally-administered body corporate or has an application for winding up filed against it;
v. FMT forms the opinion that the Customer’s credit worthiness or credit standing alters from that indicated in its Application.
b) If the Customer defaults, in addition to any other rights at law FMT may have, FMT may take one or more of the following actions:
i. treat the whole of the Contract and any other contract with the Customer as repudiated and sue for breach of contract; and/or
ii. refuse to supply any Goods to the Customer (including suspending any further deliveries of Goods to the Customer); and/or
iii. claim the return of any Goods in the Customer’s possession where title has not passed to the Customer. (FMT, for that purpose, may without notice enter any premises occupied by the Customer where those Goods are held and remove those Goods); and/or
iv. without notice to the Customer suspend or withdraw any credit facility FMT has provided to the Customer entirely, or exclude one or more Contracts from the benefit of the credit facility, or vary the Period of Credit for one or more Contracts, or vary the Credit Limit; and/or
v. without notice to the Customer, claim the Deposit (if any) and for this purpose the Customer hereby releases and forfeits such Deposit to FMT absolutely; and/or
vi. without notice to the Customer, require the Customer to pay default interest to FMT pursuant to Clause 27; and/or
vii. without notice to the Customer require the immediate payment by the Customer of all monies owing by the Customer to FMT under any Contract or on any account.
c) Termination of a Contract shall not affect rights and remedies accrued or accruing to a Party prior to the termination.
13. RIGHT OF ENTRY
The Customer grants to FMT the right to enter the Customer’s premises or site where the Goods are located during Business Hours throughout the term of the Contract for the sole purpose of:
a) carrying out any assessment of, or undertaking a Product Warranty repair or replacement; or
b) recovery of Goods pursuant to Clauses 10(d) or 12(b); or
c) at the request of the Customer.
a) Risk in the Goods (including all risks associated with unloading) passes to the Customer upon delivery or upon title in the Goods passing to the Customer, whichever is the earlier.
b) For the purposes of Clause 14(a). delivery will be deemed to occur on the earlier of:
i. for Domestic Sales – Free In Store (FIS) basis; or
ii. for Export Sales – Ex Works FMT, FCA Australian airport or FOB Australian Airport, (all INCOTERMS 2010) unless otherwise agreed between the Parties; or
iii. the Customer taking possession of the Goods from FMT’s premises; or
iv. completion of the loading of the Goods onto the relevant transportation vehicle provided by the Customer.
c) The Customer shall bear any duties and taxes that may be levied by reason of delivery of the Goods in the jurisdiction of the Customer.
a) FMT may grant the Customer credit upon the Terms and Conditions on the basis of the Application and such other documents and information as may be required by FMT.
b) If FMT grants the Customer credit by notice in writing, the Customer must pay the purchase price of the Goods in full (without any set off except as made by FMT) within the Period of Credit.
c) The granting of credit does not oblige FMT to extend any particular amount of credit to the Customer, unless specified as the Credit Limit.
d) The Customer agrees:
i. to charge in favour of FMT all beneficial interests (freehold and leasehold) in real estate held now or in the future by it as security for payment of all and any moneys payable by the Customer to FMT;
ii. that if requested by FMT the Customer will execute a mortgage or other instrument of security in form requested by FMT.
e) The Customer acknowledges that FMT may at any stage during the continuance of the credit terms granted under this Clause 15, impose as a condition precedent to the grant of further credit, that the Customer give such security or additional security as FMT requires in its absolute discretion. FMT shall be entitled to withhold supply of Goods or further credit until such security or additional security is obtained.
f) The Customer and, if the Customer is a body corporate, for and on behalf of its directors, hereby authorises and unconditionally grants its consent to FMT obtaining from a credit reporting agency or other person or company, information and/or reports concerning the Customer from time to time during the continuance of any credit terms so as to assist FMT in deciding whether to grant credit or to continue to grant credit to the Customer.
16. INTELLECTUAL PROPERTY – CUSTOMER
a) The Customer warrants to FMT that all documents provided by the Customer are accurate and that FMT is entitled to use all such documents for the purposes of the Contract and that such use does not infringe any third party’s intellectual property rights.
b) The Customer indemnifies FMT against all claims and all losses and damages incurred by FMT as a result of documents provided by the Customer to FMT for the purposes of or in the course of the supply of the Goods breaching a third party’s intellectual property rights.
c) If the Customer receives any confidential information from FMT the Customer may not use or disclose such information unless it receives the prior written consent of FMT, such information enters the public domain (other than as a result of a breach of this paragraph) or the use or disclosure is required by law.
17. INTELLECTUAL PROPERTY – OWNERSHIP
a) The Customer acknowledges that all of the Intellectual Property used in or in relation to the Goods are the property of FMT and the Customer will take all such steps as are practicable to ensure that the Intellectual Property vests in and remains vested in FMT in the jurisdiction of the Customer.
b) The Customer shall not:
i. take register or assert any ownership or proprietary right in any Intellectual Property (or any concept similar thereto); or
ii. without the prior written consent of FMT permit any trademark, symbol, brand or other intellectual property of the Customer to be combined or associated with any Intellectual Property; or
iii. exploit, apply, copy, record, take advantage of, or otherwise use any Intellectual Property in any way, whether or not for the Customer’s own advantage or use, or the advantage or use of another, either during the life of this Contract or upon its termination.
c) Where it is or becomes advisable for an application to be made for the registration of any trade mark in the jurisdiction of the Customer, the Customer will render all reasonable assistance to FMT to facilitate registration. Should it be desirable that any such application should be made in the name of the Customer, application shall be made by the Customer at the expense of the Customer and any registration so obtained shall be promptly assigned at no cost to FMT together with any goodwill associated with the Goods in the Territory gained by the Customer.
d) In any catalogue, price list or similar publication issued by the Customer in which any reference is made to the Goods and to the Intellectual Property relating thereto, there shall be included in legible type a statement informing the reader of the ownership of FMT in the Intellectual Property, the form of which shall be approved by FMT.
e) If the Customer becomes aware of any infringement or potential infringement of the rights of FMT in Intellectual Property in the Territory the Customer will promptly inform FMT and render any assistance FMT reasonably requests to challenge such actual or potential infringement.
f) The Customer agrees to assign to FMT all existing and future intellectual property rights of the Customer that arise in any way as a result from, or in connection with, the use of the Goods by the Customer.
18. FORCE MAJEURE
FMT is not liable for failure to perform the Contract to the extent and for so long as its performance is prevented or delayed because of:
a) circumstances outside FMT’s control;
b) failure of FMT’s machinery; or
c) failure of a supplier to FMT.
19. REPRESENTATIONS AND FITNESS FOR PURPOSE
a) Except as expressly provided to the contrary in the Contract, all representations, warranties, terms and conditions in relation to the Goods (whether implied or otherwise) are hereby excluded to the maximum extent permitted by law.
b) The Customer agrees that if it is aware (or should be aware) that the Goods, the subject of an Order, are for a particular purpose (including, but not limited to, use as a component part of another product) or are required to possess special or uniform characteristics, the Customer will clearly specify that purpose or those characteristics in any such Order.
a) FMT shall provide to the Customer a warranty for all Goods against defects in materials and workmanship for a one year period (the Warranty Period) commencing on the sale date to the Customer (the Warranty Commencement Date) of the relevant Goods.
b) The Product Warranty only applies to the Customer who originally purchased the Goods. It is personal and may not be assigned or transferred without the prior written consent of FMT.
c) Subject to Clause 21, FMT (at its option) will replace or repair for the Customer, free of charge, any part or parts, found upon examination by FMT, to be eligible for this Product Warranty. If any Goods or part is replaced or repaired under this Product Warranty, that Goods or part will carry the remainder of the Product Warranty from the Warranty Commencement Date.
d) The Product Warranty is in addition to any consumer guarantees existing available to the Customer at law and the Product Warranty does not exclude such consumer guarantees.
e) All enquiries regarding the Product Warranty may be directed to FMT on +61 8 8240 5585.
21. WARRANTY CLAIM PROCEDURE
a) In order to make a claim under the Product Warranty, the Customer must notify FMT in writing of any defect in the Goods discovered during the Warranty Period as soon as the Customer becomes aware of the alleged defect specifying in reasonable detail the nature of the defect. Such notice may be made by any one or more of the following methods:
i. By Post addressed to: Fluid Management Technology Pty Ltd, PO Box 1224, Beverley, South Australia, 5009, Australia
ii. By Email to: firstname.lastname@example.org.
b) Upon FMT verifying the validity and currency of the Product Warranty in respect of the Customer’s claim, the Customer must upon request by FMT send the Goods to FMT.
c) The Customer must ensure that the Goods are properly packaged so as to ensure that no damage occurs to the Goods during transit. The Customer is responsible for all posting, shipping, freight and insurance charges in respect of the Goods returned to FMT. Whilst in transit, the Goods remains at the Customer’s risk.
d) FMT may, in its absolute discretion reimburse the Customer for the Customer’s cost to undertake such repairs to the Goods, provided that the Customer has first provided to FMT a written quote as to the estimated costs of the Customer undertaking such repair, and FMT has approved (in writing) the Customer to proceed with such repairs up to that agreed estimated cost.
e) Upon receiving the Customer’s written quote, the Customer acknowledges that FMT shall have sole discretion as to whether FMT engages its own contractors to undertake the required repairs, or if the Customer may undertake such repairs.
f) The Customer agrees that FMT shall have no obligation or liability to reimburse the Customer for the costs of any repairs undertaken by the Customer that have not been agreed in writing with FMT beforehand.
g) FMT reserves the right at its sole discretion to determine whether to replace or repair, free of charge, any part or parts, or the entire Goods.
h) The Customer is responsible for all packaging, posting, shipping, freight and insurance charges in respect of any Goods returned by FMT to the Customer. The Customer agrees to pay such charges upon the same payment terms as apply to FMT’s sales of Goods current at the time of the Product Warranty claim. Whilst in transit, the Goods remains at the Customer’s risk.
22. GENERAL EXCLUSIONS AND LIMITATIONS OF THE WARRANTY
a) The Product Warranty is limited to replacement or repair of defective parts or defects in workmanship and does not include any labour costs (whether such labour costs are supplied by FMT or the Customer).
b) In the event that no identical parts are available to repair the defective Goods, FMT has the right to replace the Goods with similar Goods of equal age and condition as the defective Goods, or offer the Customer the choice to upgrade the defective Goods. These may incur additional costs to the Customer and the Customer in those circumstances agrees to pay those additional costs upon the same payment terms as apply to FMT’s sales of Goods current at the time of the Product Warranty claim.
c) Replacement Goods or parts may include remanufactured or refurbished parts or components. Repaired or replaced Goods will continue be warranted for the remainder of the Product Warranty from the Warranty Commencement Date.
d) The Product Warranty does not cover consumables, including but not limited to batteries and surge protectors.
e) The Warranty will not apply, and FMT will be under no obligation or liability whatsoever if, in the opinion of FMT, the Goods have been:
i. installed and maintained other than in compliance with FMT’s product specifications, instructions and directions;
ii. installed or used other than in a manner approved by FMT as suitable for the Goods;
iii. handled in a manner which contravenes any direction, instruction or warning issued by FMT from time to time;
iv. misused, abused, altered or damaged in any way;
v. tampered with, including if any factory applied serial number has been altered or removed from the Goods;
vi. damaged through normal wear and tear including exposure to the elements (on both exposed and unexposed surfaces), exposure to abnormally corrosive conditions, rust, or entry by any insect, vermin or foreign object in the Goods; or
vii. damaged as a result of connection to irregular voltage sources, voltage supply problems, power surges and dips, thunderstorm activity, result of a natural disaster, or acts of God (including fire, flood, lightning).
23. LIMITATION OF LIABILITY
a) Subject to Clause 19(a), FMT’s liability to the Customer (and any party claiming through the Customer against FMT) for any claim for loss or damages (including legal expenses) made in connection with the Contract for contract, tort (including negligence), under statute, in equity or otherwise shall be as follows:
i. if the Customer is a consumer (as defined in the Australian Consumer Law) and:
A. FMT is in breach of a guarantee in the Australian Consumer Law (other than a guarantee in section 51, 52 or 53 of Schedule 2 of the Australian Consumer Law) in connection with the supply of goods (other than goods of a kind ordinarily acquired for personal, domestic or household use or consumption), FMT may (in its absolute discretion):
1. replace those goods;
2. supply equivalent goods;
3. repair those goods;
4. pay the cost of replacing those goods;
5. pay the cost of acquiring equivalent goods; or
6. pay the cost of having those goods repaired, and FMT’s liability is limited to that extent;
B. FMT is in breach of the guarantee in the Australian Consumer Law in connection with the supply of services (other than services of a kind ordinarily acquired for personal, domestic or household use or consumption) FMT may (in its absolute discretion):
1. supply those services again; or
2. pay the cost of having those services supplied again, and FMT’s liability is limited to that extent.
ii. if FMT is in breach of a Contract (other than a breach referred to in Clause 23(a)(i)), FMT’s liability is strictly limited to:
A. for goods, products or materials – the cost of replacement of the defective Goods as soon as reasonably practicable, or the supply of equivalent Goods, or the repair of the defective Goods or the repayment (or allowance) of the invoice price of the defective Goods at the option of FMT;
B. for services – to the provision of the services again or payment of the cost of having the relevant services provided again at the option of FMT;
iii. FMT’s liability for breach of a Contract does not extend beyond the defective Goods to any other Goods that are part of an Order or otherwise;
iv. where loss or damage is not covered by Clauses 23(a)(i) or 23(a)(ii), FMT is not liable to the Customer under statute, in equity or in tort (including negligence or otherwise) for any loss or damage to person or property arising from or caused in any way by the Goods (except to the extent that FMT’s conduct is deliberate, is illegal, is fraudulent or constitutes a criminal offence);
v. subject to Clauses 23(a)(i) and 23(a)(ii), FMT shall not be liable for any indirect, special or consequential loss resulting from or caused in any way by FMT, its officers, employees or agents arising out of or in connection with the supply of the Goods;
vi. indirect, special or consequential loss or damage includes:
A. any loss of income, profit or business;
B. any loss of goodwill or reputation;
C. any loss of value of intellectual property.
b) Any claim under Clause 23(a)(ii) by the Customer in respect of defective Goods and/or damaged Goods must be made in writing within 14 days of the delivery of the Goods.
c) FMT shall not be responsible for any non delivery of the Goods or failure to supply the Goods on the date agreed between FMT and the Customer, and the Customer shall not be entitled to cancel any Order as a result of that non delivery or failure to supply.
d) If any OEM Goods are supplied as part of the Goods, the Customer agrees that the OEM Warranty shall apply and will be limited to FMT’s right of redress (if any) against the third party vendor that sold the OEM Goods to FMT.
e) The provisions of the United Nations Convention on Contracts for the International Sale of Goods are expressly excluded from all Contracts.
The Customer indemnifies FMT against any action, claim, proceeding, demand, damages, loss, liability, cost or expense (including Collection Costs and other costs on a solicitor/ client basis) which FMT may suffer or incur arising out of or connected with the Terms and Conditions, any Contract or the Goods (including claims by the Customer and other third parties in the event that FMT restricts the functionality of the Goods under Clause 10(i)).
a) Any and all statements made by FMT as to weight, length, quantity or other characteristics of Goods are approximate and FMT may supply Goods on an actual or calculated basis.
b) A calculated basis will be in accordance with the applicable Australian standards.
c) FMT’s statements as to weight, length, quantity or other characteristics are final and FMT is not liable for any errors in such statements unless the Customer gives FMT:
i. written notice of any error within 14 days of delivery;
ii. a reasonable opportunity to examine and re-test the Goods before they are used or dealt with.
a) The Customer must inspect the Goods on or immediately after delivery. In the event that the Customer discovers that all or any portion of the Goods as delivered differs, in quantity or kind, from the description in the invoice or are damaged (other than due to an act or omission of the Customer), the Customer must notify in writing, and make an immediate claim, against FMT. No claim by the Customer for shortages of Goods may be made unless such claim is notified to FMT:
i. for Domestic Sales – within 7 days of delivery; or
ii. for Export Sales – within 7 days of arrival of the Goods at the port of destination.
b) In the event that the Customer does not make a claim in accordance with this Clause, the Goods shall be deemed to be in conformity with the Contract and the Customer shall be deemed to have accepted them. The Customer will be deemed to have absolutely and unconditionally waived such claim.
c) FMT will endeavour to rectify any shortages as soon as practicable after receiving notice but will not suffer any liability from or in respect of such rectification.
27. DEFAULT INTEREST
Any amounts due to FMT and unpaid or any other payments made by FMT in default of payment by the Customer under a Contract shall be regarded as cash advances made on the due date or the date of payment by FMT respectively, repayable on demand and shall, until repayment to FMT, bear interest calculated on the daily balances of such advances at a rate equal to 12% per annum calculated daily and paid on written demand or as instructed by FMT.
28. DISPUTE RESOLUTION
a) All disputes or differences which shall at any time hereafter arise between two or more of the Parties (the Disputants) in respect of the construction or effect of this Agreement or the rights, duties and liabilities of the Disputants hereunder or any matter or event connected with or arising out of this Agreement shall be initially referred on notice to each other Party.
b) Each Disputant may give notice to the other that the provisions of this Clause 28 are to apply to any dispute arising between the Disputants as to any matter arising out of or in connection with this Agreement.
c) The notice referred to in Clause 28(b) shall include a summary of the issues in dispute and notification of a time within a period of 10 Business Days beginning 4 Business Days after the service of the notice, and a place in the capital city of the State at which the representatives of the Disputants (which may include a Disputant) are to meet to try to resolve the dispute.
d) The representatives of the Disputants shall meet at the time and place specified in the notice to try to resolve the dispute and shall, if necessary, continue to negotiate for 2 consecutive Business Days unless they otherwise agree to reconvene.
e) If the dispute has not been resolved by the representatives of the Disputants by the end of the meeting then either Party may within 10 Business Days thereafter apply to the Law Society of the State to appoint a neutral adviser to assist in a further attempt by the Parties in good faith to resolve the dispute by structured negotiations. Such person shall act as an expert not as an arbitrator and will be entitled to appoint such technical expert or experts as he considers necessary to assist him in seeking to resolve the matter referred to him.
f) If the Parties fail to appoint a neutral adviser within the 10 Business Days period referred to in Clause 28(e) above or the Parties fail to reach agreement in the structured negotiations within 20 Business Days of the neutral adviser being appointed, then any dispute may be referred to a court of competent jurisdiction. Neither Party shall be deemed to be precluded from taking such interim formal steps as may be considered necessary to protect such party’s position while the mediation or other procedure is pending or continuing.
g) Each party to a Dispute must pay its own costs of complying with this Clause 28. The costs of the neutral adviser shall be borne equally by the Parties in dispute.
h) Any information or documents disclosed by a Party under this Clause 28:
i) must be kept confidential; and
i. may only be used to attempt to resolve the dispute.
ii. Clauses 28(g) and 28(h) survive termination of the dispute resolution process.
29. NO PARTNERSHIP, AGENCY OR TRUSTEESHIP
Nothing in this Agreement or in the execution or performance of its terms shall constitute any Party the partner or agent of any other Party and no trusteeship shall be implied as between any of the Parties.
FMT waives a right under a Contract only by written notice that it waives that right. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.
If a provision of a Contract would, but for this Clause, be unenforceable:
a) the provision must be read down to the extent necessary to avoid that result;
b) if the provision cannot be read down to that extent, it must be severed without altering the validity and enforceability of the remainder of the Contract.
a) FMT may vary the Terms and Conditions without notice to the Customer.
b) If FMT varies the Terms and Conditions, FMT will publish the same on its website at www.fluidmt.com and the Customer agrees to have received proper and adequate notice of the same on and from the date of such publication. Unless the Customer notifies FMT that it objects, FMT will receipt of any Order thereafter as the Customer’s acceptance of the new Terms and Conditions.
Clauses 1, 7, 10,9, 10, 11, 12, 16, 17, 19, 20, 23, 24, 27, 28, 33, 34, 35, 37, 38 and 39 survive the termination or expiry of the Contract.
34. SET OFF
FMT may at any time apply and set off any money that the Customer may owe FMT towards the satisfaction of any sum of money that FMT owes the Customer. The Customer may not set off any amounts.
The Customer must pay to FMT, and indemnify FMT for, all costs and expenses incurred by FMT in connection with the Contract including legal expenses (on a solicitor-client basis), stamp duty and Collection Costs incurred in the recovery of monies owing by the Customer to FMT or in otherwise enforcing FMT’s rights against the Customer under the Contract.
a) FMT may assign to any person this document and any Contract.
b) The Customer shall not assign, transfer, encumber or declare trusts in respect of this document or any Contract.
37. APPLICABLE LAW
This document is governed by the law of the State and the courts of that State have non-exclusive jurisdiction in connection with this document.
38. PRIVACY STATEMENT AND CONSENT
FMT collects the Customer’s information in order to determine whether to supply Goods to the Customer and in, ordering Goods from FMT, the Customer agrees that FMT may:
a) use the personal information about the Customer which the Customer or others have provided at any time to FMT in order to manage FMT’s relationship with the Customer and, where required, to comply with legislative and regulatory requirements; and
b) disclose that information to FMT’s related bodies corporate, regulatory and law enforcement bodies, debt collection agencies, any organisation proposing to fund the acquisition of, or acquire, any interest in any obligation the Customer may owe FMT, and to any person to the extent necessary, in FMT’s view, to carry out any instruction the Customer give to FMT or to enforce any rights of FMT against the Customer.
The Customer acknowledges that, subject to the provisions of the Privacy Act 1988 (Cth), the Customer may access the information which FMT holds about the Customer at any time by writing to FMT.
Any notice to be given by one party to the other must be signed by the party giving the notice or by one of its officers or its duly authorized lawyer or agent and must be hand delivered or sent by prepaid post or sent by facsimile or electronic mail to the address, facsimile number or electronic mail address (as the case may be) shown at the commencement of this Agreement (or any other address, facsimile number or electronic mail address that a party may notify to the other) and will be deemed sufficiently given:
a) in the case of hand delivery, on the date of delivery; or
b) in the case of prepaid post, 2 Business Days after being sent by prepaid post; or
c) in the case of facsimile, on receipt by the sender of a successful transmission answerback; or
d) in the case of electronic mail, on day of transmission provided that the sender can give evidence of transmission.
40. UNFAIR CONTRACT TERMS
To the extent that these Terms and Conditions are a consumer contract (within the meaning of the Australian Consumer Law) and a standard form contract (within the meaning of the Australian Consumer Law), any term of these Terms and Conditions which would be void because the term is unfair:
a) must be read down to the extent necessary to avoid that result; and
b) if the provision cannot be read down to that extent, it must be severed without altering the validity and enforceability of the remainder of the Contract.