EFFECTIVE: 1 July 2011
GENERAL CONDITIONS OF SALE
These General Conditions of Sale apply to all contracts for the supply of goods and/or services by GILBARCO AUSTRALIA PTY LTD ABN 93 000 020 799 (Gilbarco) of 20 Highgate Street, Auburn NSW 2144, PO Box 6804 Silverwater NSW 2188, to the buyer (the Customer). These General Conditions of Sale must be read in conjunction with any Special Conditions of Sale notified to the Customer, which prevail over these General Conditions of Sale to the extent of any inconsistency. Except as Gilbarco may otherwise agree in writing, these General Conditions of Sale together with any Special Conditions of Sale (together, this Contract) apply to the exclusion of any other terms of contract which the Customer may submit in or with a purchase order or request for quotation or other document or communication.
2 LIMITATION OF OFFER
Any offer made by Gilbarco is expressly conditional upon Gilbarco, in its sole discretion, being satisfied with the Customer’s credit worthiness.
3 TERMS OF PAYMENT
a) The Customer must pay the invoice in full net cash within 30 days from the invoice date.
b) Progress claims will be issued monthly, covering up to 90% of the value of the service completed and/or the goods supplied. The Customer must pay each invoice in full, without deduction, set-off or retention of any money.
c) Gilbarco will, from time to time, issue to the Customer statements for the relevant goods and services.
d) The Customer, by its acceptance of delivery of the goods and/or services, adopts and accepts the terms of this Contract.
4 POINT OF SALE
The quoted price for all goods is ex State capital city stores. Handling, packing, delivery and freight charges will apply to all goods, unless otherwise specified, for delivery to premises, rail, air, or transport terminals in addition to freight charges from such points.
5 QUOTED PRICE
Prices quoted are based on costs at the date of quotation and are subject to vary as a result of any change in labour, materials, equipment (including pipes, pipe fitting valves, pumps, electric motors, hoses and other finished metallic, plastic and rubber products) and/or sub-contractors costs arising between the date of quotation and date the service and goods are provided.
a) In the case of all goods the quoted price is subject to variation at the rate of 100% of all changes in the relevant costs of the:
- i) suppliers' wholesale price;
- ii) tariff duty or local taxation or imports levies;
- iii) exchange rate of the Australian dollar, based on the date of quotation; and
- iv) freight, insurance and landing charges.
b) Installation, reconditioning and fabrication prices are subject to change in accordance with variations to the Federal Metal Trades Award, over-award payments, site or area allowances involved during the contract period, workers' compensation, payroll tax, superannuation guarantee legislation, or any other wage costs and conditions imposed by any award or statutory requirement.
a) In this clause the expressions "GST", "tax invoice", "recipient" and "taxable supply" have the meanings given to those expressions in the, A New Tax System (Goods and Services Tax) Act 1999.
b) Under this clause 6, where any supply is made under this Contract, the recipient of the taxable supply must pay the supplier an amount inclusive of GST for the taxable supply, subject to the provisions of a tax invoice.
7 TERMS OF QUOTATION
Gilbarco may withdraw or revise a quotation if the Customer does not accept it within thirty 30 days from the date of quotation.
8 RETURN OF GOODS
Except as otherwise provided with respect to warranty defects in clause 21, return of goods for credit are subject to Gilbarco’s prior agreement and payment by the Customer of a handling charge equal to 20% of the original invoice value. An additional charge will apply where reconditioning is necessary to return the goods to saleable condition.
Gilbarco is not obliged to consider a cancelation request if the Customer does not provide a written undertaking to Gilbarco to reimburse it for all expenses incurred under this Contract.
10 CHANGE OF SPECIFICATION
Gilbarco reserves the right to change specifications to goods or services without notice or liability.
11 DISPUTE RESOLUTION
If a dispute arises relating to this Contract, Gilbarco and the Customer agree to endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes (ACDC) before having recourse to arbitration or litigation. The mediation will be conducted in accordance with the ACDC Guidelines for Commercial Mediation operating at the time the matter is referred to ACDC (Guidelines). The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved and the terms of those Guidelines are deemed incorporated into this Contract. This clause survives termination of this Contract.
12 STATUTORY REQUIREMENTS
The Customer acknowledges that Gilbarco is not aware of the precise purpose for which the Customer proposes to use the goods and it is the Customer's responsibility to ensure that the goods comply with any applicable legal requirements in respect of its use.
13 DELIVERY SCHEDULE
Delivery dates or completion dates are approximate. Gilbarco is not liable for any failure to deliver or complete by the relevant date due to any cause whatsoever beyond its reasonable control. The Customer must not withhold payment of any invoice, or make any deduction or set-off, notwithstanding late delivery or completion. Delivery may be made either in one parcel or from time to time in separate parcels. Each parcel will be accepted and paid for by the Customer notwithstanding late delivery or non-delivery of any other parcel. The Customer must make available reasonable and unobstructed access to the delivery point for prompt unloading. If for any reason the Customer delays taking delivery, the relevant goods will be retained by Gilbarco entirely at the risk and expense of the Customer and Gilbarco will be entitled to invoice the Customer for such goods in the month of sale.
14. RETENTION OF TITLE
a) Risk in the goods passes to the Customer on delivery of the goods to the Customer or into custody on the Customer’s behalf provided that if the Customer does not accept delivery or requests a delay in delivery, then risk in the goods is borne by the Customer from the time of such non-acceptance or request (as the case may be). The Customer indemnifies Gilbarco from any claim, loss or expense whatsoever arising from, and releases Gilbarco from any liability relating to, the Customer’s decision to not accept delivery or to delay delivery.
b) Property in and title to the goods remains with Gilbarco until the Customer has paid Gilbarco the purchase price for the goods and any other money that the Customer may owe Gilbarco at any time on any account, and has otherwise fulfilled its obligations under this Contract.
c) Subject to this clause 14 the Customer may dispose of the goods in the ordinary course of the Customer’s business.
d) Where the Customer disposes of the goods before making payment to Gilbarco, the sale proceeds from such disposal are the property of Gilbarco and the Customer holds the proceeds on trust for Gilbarco. Further, in disposing of the goods before making payment to Gilbarco, the Customer does so as Gilbarco’s fiduciary agent.
e) Gilbarco may, without notice to the Customer, enter the Customer’s premises or elsewhere within business hours and seize any goods which have not been paid for by the due date and the Customer waives the right to receive any statutory or Personal Property Securities Act (PPSA) notice.
f) While the goods remain the property of Gilbarco, the Customer agrees:
- i) to store the goods separately at the Customer’s premises so that they can be easily identified;
- ii) to only dispose of the goods in the ordinary course of the Customer’s business.
- iii) to not cause the goods to lose their identifiable character or be intermingled with other goods in any way by any process of its own or by a third party;
- iv) other than disposal of the goods in the ordinary course of the Customer’s business, that it has no right or claim to any interest in the goods to secure any liquidated or unliquidated debt or obligation that Gilbarco owes to the Customer;
- v) that it cannot claim any lien over the goods;
- vi) to not create any absolute or defeasible interest in the goods in relation to any third party; and
- vii) to provide Gilbarco with access to the premises where the goods are stored to enable Gilbarco to inspect and/or seize the goods.
a) The Customer acknowledges and agrees that this Contract is a security agreement for the purposes of the PPSA and that Gilbarco may register its security interest in the goods and their proceeds as a purchase money security interest on the PPSA register. The Customer agrees to do all such things, and execute all such documents as Gilbarco may reasonably require to register the security interest.
b) Where the PPSA applies to action taken by Gilbarco in relation to the goods, the Customer waives its right to receive any notices required under section 95, 118, 121, 130, 132 or 135 of the PPSA.
c) The Customer waives its rights under section 157 of the PPSA to receive notice of a verification statement.
All deliveries will be at the Customer's risk, unless Gilbarco is instructed to insure (which will be at the Customer’s cost).
Where the price includes the installation of tanks, hoists or pipework, the Customer acknowledges that Gilbarco has allowed costs to excavate in clay or loam and to provide at least 600 mm of cover. If the excavation encounters rock, shale, water, silt, loose or shifting earth, or hard filling (e.g building rubble) Gilbarco will charge an additional amount based on extra costs incurred by it. Such extra costs may include additional labour and equipment hire, timbering or de-watering the excavation, re-excavation due to subsidence or collapse of the excavation walls (where such collapse or subsidence is not due to Gilbarco’s failure to provide adequate labour and machinery or to take all reasonable precautions) the anchoring of the tank by water filling (and any subsequent cleaning of the tank which may be required) or any other permanent or temporary method. Any material which cannot be removed by hand is to be treated as rock. Excavation pricing is based on reasonable access at all times. If access cannot be maintained, the Customer is liable for any extra costs. Breaking and replacement of additional hardstanding (in excess of the area which can be assessed by surface inspection) will be charged to the Customer.
18 CONTINUITY OF WORK
All installations tenders are based on continuity of work service at the site. The Customer is liable for any extra costs directly related to broken work or service schedules.
Gilbarco or the applicable third party licensor to Gilbarco, retain all rights of ownership and title in software incorporated into the goods (the Software), including all rights of ownership and title in any copies of such Software. Except as otherwise provided in this Contract, the Customer is granted a non-exclusive, non-transferable royalty free license to use the Software solely for using the goods for the purpose for which they have been manufactured and provided. If required by Gilbarco, all other software will be furnished to, and used by the Customer only after execution of Gilbarco’s (or the licensor’s) applicable standard license agreement, the terms of which are incorporated in this Contract by reference.
20 STATUTORY WARRANTIES AND CONDITIONS
In the event that the supply of goods or services pursuant to this Contract is a supply of goods and services to a consumer as defined in the Competition and Consumer Act 2010 (CCA), the CCA expressly includes certain consumer guarantees in this Contract. Subject to the qualifications contained in Schedule 2 Section 64A of the CCA, in the case of a contract for the supply by Gilbarco of goods or services other than goods and services of a kind ordinarily acquired for personal, domestic or household use or consumption, should Gilbarco be liable for a failure to comply with a consumer guarantee (other than a guarantee under Schedule 2 Section 51, 52 or 53 of the CCA), Gilbarco’s liability for such breach is limited to:
a) In the case of goods, at Gilbarco’s discretion:
- i) the replacement of the goods or the supply of equivalent goods;
- ii) the repair of the goods;
- iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- iv) the payment of the cost of having the goods repaired.
b) In the case of services, at Gilbarco’s discretion
- i) the supplying of the service again; or
- ii) the payment of the cost of having the services supplied again.
21 GILBARCO WARRANTY
The benefits conferred by the Gilbarco warranty in this clause are in addition to and not in derogation of all other rights and remedies in respect of the goods or services which the Customer has under the CCA. To the fullest extent permitted by law, and subject to the foregoing:
a) Gilbarco equipment (other than exported equipment), installation work/service work and spare parts are warranted for the respective periods and terms as detailed in the attached document titled Gilbarco Warranty Terms effective 1 July 2011.
b) Gilbarco equipment which is exported is warranted for 3 months from the date of installation (provided installation is within 9 months of invoice date) against defects adjudged by Gilbarco to be faulty materials and/or workmanship during manufacture (Export Warranty). Defective goods are to be immediately returned to Auburn, Sydney NSW, freight paid and at the risk of the Customer. To the fullest extent permitted by law, Gilbarco is not liable under the Export warranty unless:
- i) the installation and commissioning of the goods is carried out strictly in accordance with instructions and recommendations issued by Gilbarco;
- ii) if required, the defective parts are returned immediately to Gilbarco freight paid and at the risk of the Customer together with all evidence available to the Customer as to the cause of the alleged defect;
- iii) the goods are used solely for the purpose specified by Gilbarco and are not modified or repaired in any way except as previously authorised by Gilbarco in writing;
- iv) the goods are serviced only by authorised and suitably qualified Gilbarco personnel;
- v) the Customer has paid all monies due under this Contract; and
- vi) the Customer furnishes Gilbarco with full written details of the claim under the Export Warranty no later than one month after the expiration of the period of the Export Warranty.
22 LIMITATION OF LIABILITY
a) All express or implied warranties, representations, statements, terms and conditions relating to the goods or this Contract, not contained in this Contract, are excluded to the extent permitted by law.
b) Subject to clauses 20 and 21, and to the fullest extent permitted by law, the maximum aggregate liability of Gilbarco under or in connection with this Contract or its subject matter whether in contract, tort (including negligence), equity, under state or on any other basis, is limited to an amount equal to the cost of the relevant goods or services.
c) Subject to clauses 20 and 21, and to the fullest extent permitted by law, Gilbarco is not liable for and no measure of damages will under any circumstances include any special, indirect, consequential, incidental or punitive losses or damages whether in contract, tort (including negligence), equity, under statute or on any other basis, and whether or not such loss or damage was foreseeable. The term “consequential damages” includes economic loss including loss of actual or anticipated profits, business interruption, loss of use, revenue, reputation and/or data, costs incurred, including, for capital, fuel and power, and loss or damage to property or equipment.
Any quotation provided by Gilbarco is conditional upon all necessary statutory approvals being obtained by the Customer prior to Gilbarco commencing providing the services and the Customer’s order to carry out the services will be deemed to confirm that all such approvals have been obtained. Gilbarco accepts no liability for the Customer’s failure to obtain such approvals.
New goods will be stored at Gilbarco premises at the Customer's risk. Undercover storage is not guaranteed and Gilbarco’s storage capacity is limited to approximately 3 months installation requirements.
25 EXCUSE OF PERFORMANCE
a) Gilbarco is not liable for delays in performance under this Contract or for non-performance due to acts of God; acts or omissions of the Customer; war; fire; flood; weather; sabotage; strikes or labour disputes; civil disturbances or riots; governmental requests, restrictions, allocations, laws, regulations, orders or actions; unavailability of or delays in transportation; default of suppliers; or unforeseen circumstances or any events or causes beyond Gilbarco’s reasonable control. Deliveries or other performance may be suspended for an appropriate period of time or canceled by Gilbarco upon notice to the Customer in the event of any of the foregoing, but the balance of this Contract will otherwise remain unaffected.
b) If Gilbarco determines that its ability to supply the total demand for the goods, or to obtain material used directly or indirectly in the manufacture of the goods, is hindered, limited or made impracticable due to causes set out in the preceding paragraph, Gilbarco may allocate its available supply of the goods (without obligation to acquire other supplies of any such goods or material) among its purchasers on such basis as Gilbarco determines to be equitable without liability for any resulting failure of performance.
26 DEFAULT AND TERMINATION
Without prejudice to any other rights Gilbarco may have under this Contract or at law, Gilbarco may on 7 days written notice terminate this Contract with the Customer, if the Customer is in breach of any Contract term.
27 GENERAL PROVISIONS
a) No waiver of any breach of this Contract will be effective unless the waiver is in writing and signed by the party against whom the waiver is claimed.
b) This Contract is governed by the law in force in that State or Territory of Australia in which the quotation is issued. Each party submits to the non-exclusive jurisdiction of the courts of that State or Territory.
c) The Customer must not assign its rights or interests or delegate its duties under this Contract without Gilbarco’s prior written consent.
d) This Contract and any quotation or order acknowledge or confirmation from Gilbarco regarding the goods or services and any documents incorporated by specific reference therein, contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by these documents and has no further effect.
e) Any provision of this Contract which is illegal, void or unenforceable will be severed without prejudice to the balance of the provisions of this Contract.