Terms & Conditions

1. GENERAL

(a) All dealings between any Customer (Customer) and FDPI Flow Technology (FDPI) relating to any goods (Goods) or services (Services), including quotations for either and all subsequent dealings between the parties, are subject to the following Terms and Conditions of Trade (these Terms) unless otherwise agreed in writing.

(b) These Terms are governed by and is to be construed in accordance with the laws of the State of Victoria, Australia. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria, Australia and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.

2. QUOTATIONS, INVOICES AND PAYMENT

(a) Quotations must be in writing.

(b) FDPI shall not be bound by any quotation if an order is placed outside the period of the quotation’s validity period and in the absence of such period being noted, 30 days from the date of the quotation.

(c) Prior to receipt of any order, FDPI may amend the quotation.

(d) FDPI shall not be bound by any quotation if:

(i) it forms the view that the subject matter of the quotation is to form part of a larger transaction or series of transactions with the Customer and those circumstances have materially changed; or

(ii)the Customer is in breach of these Terms.

(e) The Customer must pay any reasonable charges FDPI claims for holding any Goods referred to in any quotation, pending placement of an order.

(f) If not accepted in writing but the Goods or Services are requested by the Customer, the terms of the quotation and these Terms will apply.

(g) All prices quoted are subject to market fluctuations. The price charged will be that applied at the date of despatch of the Goods or delivery of the Services. Prices are subject to revision without notice.

(h) Goods and Services Tax will be charged where applicable and all information required in a tax invoice for the purposes of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act).

(i) Terms of payment for invoices are strictly 30 days.

(j) Payment must be received by FDPI by the last working day of the calendar month following the month of the invoice.

(k) If the Customer fails to pay any invoice when due, interest at the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic) will accrue from the date the amount falls due, plus all reasonable costs associated with non-payment, including a monthly service fee of $100 and suspension of any credit facilities in the Customer’s favour.

(l) FDPI reserves the right to vary the terms of payment at its discretion or to require payment in full prior to delivery.

(m) The Customer is liable to pay all freight charges for the return of goods. Goods incorrectly ordered will only be credited if the source supplier will accept same for credit. Goods must be in original condition and may be subject to both a handling charge and minimum restocking fee of 15% of the invoiced value of the goods.

3. DELIVERY

(a) Whilst FDPI will use its best endeavours to ensure delivery of the Goods by the date/time requested, it will not be liable for any costs or charges due to late or non-delivery.

(b) All Goods despatched by road, rail or the Customer’s carrier are at the Customer’s risk and FDPI will be under no obligation to insure any Goods in transit.

(c) Delivery of the Goods occurs when the Goods have been delivered to the Customer’s requested delivery point (Delivery Point).

(d) A document (including a consignment note or delivery docket) signed by the Customer, FDPI or on its or their behalf will be conclusive evidence of delivery.

4. TITLE IN AND RISK TO GOODS

(a) Words and phrases used in clause 4 that have defined meanings in the Personal Property Securities Act 2009 (Cth) (PPSA).

(b) Title to any Goods delivered to the Customer will not pass to the Customer until the Customer has paid all amounts that it owes to FDPI in full (including the purchase price for the Goods).

(c) FDPI only consents to the Customer selling or otherwise disposing of the Goods in the ordinary course of the Customer’s ordinary business to bona fide customers and unrelated third parties on arm’s length terms, while no default is subsisting.

(d) The Customer must keep the Goods separately stored and marked as the property of FDPI.

(e) The Customer must not do any of the following in relation to any of the Goods except where expressly permitted by these Terms:

(i) create or allow any interest in, or dispose or part with possession of, the Goods.

(ii)allow the Goods to be taken outside Australia.

(iii)  allow the Goods to become an accession to or commingled with any other property; or

(iv)  grant any security interest in respect of accounts owed to it in relation to the Goods, without FDPI’s prior written consent.

(f) If the Customer sells or disposes of any Goods, the Customer will hold the proceeds of sale or disposal on trust for FDPI to secure payment of any amounts the Customer owes FDPI for the Goods. The Customer must pay all monetary proceeds, up to the amount owed, into a separate account until they are paid over to FDPI and must not mix them with any other amount or use them to pay a debt.

(g) The Customer grants FDPI and its representatives an irrevocable licence to enter any land or premises for the purpose of inspecting, seizing or otherwise enforcing FDPI’s rights in respect of Goods and indemnifies FDPI for any claims for damage to property or personal injury as a result of exercising those rights. If FDPI seizes or retakes possession of any Goods, it may deal with them as it thinks fit.

(h) Risk in the Goods will pass to the Customer when the Goods are delivered to the Customer’s Delivery Point.

5. PERSONAL PROPERTY SECURITIES ACT 

(a) The Customer acknowledges that these Terms create a security interest under the PPSA in favour of FDPI in all goods supplied by it to the Customer (and all goods previously supplied by FDPI to the Customer), and for avoidance of doubt, the proceeds of sale of the Goods.

(b) The Customer consents to FDPI effecting a registration on the PPSA register (in any manner it considers appropriate) in relation to any security interest contemplated by these Terms (including but not limited to an interest in relation to retention of title) and further agrees:

(i) to do all things necessary and required by FDPI to make sure that the security interest is a perfected “purchase money security interest” under the PPSA; and

(ii)not to allow any third party to acquire a security interest in the Goods.

(c) To the extent that the goods are for the Customer’s business use, the Customer agrees to the extent permitted under the PPSA, that the Customer has no right:

(i) to receive notice of removal of an accession under the PPSA;

(ii)under Chapter 4 of the PPSA; or

(iii)  under the PPSA to receive a copy of any verification statement of financing change statement under the PPSA.

(d) Without in any way limiting this clause, the Customer agrees that to the extent permitted under the PPSA, it hereby waives its rights under sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 132, 134, 135, 142 and 143 of the PPSA.

(e) Unless otherwise agreed to in writing by FDPI, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.

(f) The Customer must not assign or grant a security interest in respect of any accounts owed to it in relation to the goods without FDPI’s prior written consent.

(g) Without limiting any other provision of these Terms, if the Customer makes a payment to FDPI at any time whether in connection with the supply of goods or otherwise, FDPI may, at its absolute discretion, apply that payment to first satisfy obligations that are not secured, then obligations that are secured, but not by a purchase money security interest, in the order in which those obligations were incurred, and then obligations that are secured by a purchase money security interest in the order in which those obligations were incurred.

(h) Everything the Customer is required to do under this clause is at the Customer’s expense. The Customer agrees to pay or reimburse FDPI’s costs and expenses in connection with anything FDPI does under this clause.

6. RETURNS 

To the extent permissible at law (including under the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law) and without purporting to limit its obligations:

(a) any claims for return of goods must be in writing within 7 days of the Goods being delivered.

(b) all claims must state the Invoice Number/Delivery Docket Number /date of return and reason for return;

(c) FDPI will not accept any Goods returned for credit without prior approval;

(d) if FDPI agrees to a return of the Goods, the Goods must be in as new and saleable condition and upon terms agreed and a re-stocking fee will apply;

(e) any Goods which are accepted by FDPI as being defective may be returned and will be replaced free of charge or be the subject of a credit for the invoiced value. “Free of charge” does not include labour, transport or material costs which may be charged to the Customer accordingly.

(f) the following Goods cannot be returned for credit:

(i) Goods specially cut to size, made, plated or otherwise treated for the Customer;

(ii)custom made or custom processed Goods or Goods acquired by FDPI specifically for the Customer; or

(iii)  Goods damaged or altered in any way by the Customer;

(g) acceptance of delivery of Goods returned for credit does not signify an agreement to issue a credit note; and

(h) all Goods are covered by warranty and trading terms as is specified by the manufacturer.

7. DISCLAIMER 

(a) FDPI does not act as a consultant in the use of Goods not manufactured by FDPI nor does FDPI accept responsibility for advice and information contained in its published literature or given by its staff for the result obtained by the Customer in relation to such Goods.

(b) In respect of such advice or information or results the Customer is referred to and should verify all information with the actual manufacturer. If the Customer relies upon such advice or information it is entirely at the Customer’s own risk and FDPI will not be liable for any loss or damage suffered, notwithstanding any want or care on its part in compiling or giving any advice or information and in no circumstances will a claim against FDPI be allowed for any indirect or consequential loss or damage or for any expenses incurred in the use of any goods supplied by FDPI to the Customer or in accordance with the Customer’s direction.

8. LIMITATION OF LIABILITY 

To the extent permissible at law (including under the Schedule 2 to the Australian Consumer Law and without purporting to limit its obligations thereunder and subject to clause 9:

(a) FDPI will not be liable for any claim arising after 7 days from delivery of Goods or performance of Services (or at all once Goods have been unpacked, modified, on- sold or otherwise used or applied) after which there will be deemed to be unqualified acceptance.

(b) FDPI will not be liable in any way for any contingent, consequential, direct, indirect, special or punitive damage arising whether due to FDPI’s negligence or otherwise and the Customer acknowledges this limitation of liability and agrees to limit any claim accordingly.

(c) no other term, condition, agreement, warranty, representation or understanding whether express or implied in any way extending to or otherwise relating to or binding upon FDPI is made or given; and

(d) FDPI will not be liable for any claim relating to or arising from any alleged fault or defect, whether caused or contributed to by FDPI, the Customer, any third party or otherwise.

9. AUSTRALIAN CONSUMER LAW WARRANTY

(a) This clause 9 is subject to any contrary provisions of any applicable law (including without limitation the Australian Consumer Law, the operation of which cannot be excluded.

(b) Except as provided in subclause (c), FDPI’s liability for a breach of these Terms, a condition, warranty or a guarantee of supply or in relation to defective Goods and Services is limited to (at FDPI’s election):

(i) in the case of Goods FDPI supplies:

1. the replacement of the Goods or the supply of equivalent goods.
2. the repair of the Goods; or
3. the payment of the cost of replacing the Goods or of acquiring equivalent goods.

(ii)in the case of Services FDPI supplies, the supplying of the Services again, and the Customer will limit any claim upon FDPI accordingly.

(c) If Goods or Services FDPI supplies are of a kind ordinarily acquired for personal, domestic or household use or consumption, and there is a “major” failure of the Goods or Services to meet any consumer guarantee under the Australian Consumer Law then the Customer may choose one of the following remedies:

(i) in the case of Goods FDPI supplies:

1. ask for a refund.
2. return the Goods and ask for an identical replacement, or one of similar value if reasonably available; or
3. keep the Goods and ask for compensation for the drop in value caused by the problem; or

(ii)in the case of Services FDPI supplies:

1. cancel the contract and pay a reasonable amount for the work done, or seek a refund; or
2. for money already paid, keep the contract and negotiate a reduced price for the drop in value of the Service — this may mean asking for some of the money back the Customer has already paid.
3. PRODUCT RECALL

(a) If the Customer is the subject of a request, court order or other directive of a Government Agency to recall or withdraw any of the Goods from the market (Recall Notice), it must immediately notify FDPI in writing and enclose a copy of the Recall Notice.

(b) Unless required by law, the Customer may not undertake any recall or withdrawal of the Goods from the market without the written permission of the FDPI.

(c) If any Goods are the subject of a Recall Notice, or FDPI has other reasonable grounds to recall or withdraw the Goods from the market, the Customer must comply strictly with:

(i) any requirements set out in the relevant Recall Notice; and

(ii)FDPI’s instructions about the process to implement the recall or withdrawal.

(d) For the purposes of clause 10(c), reasonable grounds for FDPI to recall or withdraw the Goods include, but are not limited to where:

(i) supply or use of the Goods infringes, or may infringe, a third party’s Intellectual Property Rights.

(ii)the Goods are, or may be, unsafe; or

(iii)  a defect in the Goods may cause harm to FDPI’s reputation or brand.

(e) For the purposes of this clause Intellectual Property Rights means all intellectual property rights at any time recognised by law, including all present and future copyright, all proprietary rights in relation to inventions (including patents), registered and unregistered trademarks, trade secrets and know-how, registered designs, recipe formulations, and all other proprietary rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

11. DISPUTES

(a) If any dispute arises under or in connection with these Terms or a purchase order contract (Dispute), either party may at any time give written notice to the other (Dispute Notice) requesting that a meeting take place to seek to resolve the Dispute.

(b) The parties’ representatives must, within 5 days of the date of service of a Dispute Notice, meet to discuss the Dispute in good faith with a view to resolving the Dispute.

(c) If the Dispute has not been resolved within:

(i) 14 days from the date of service of a Dispute Notice or such later date as the parties may agree, it will escalate to the nominated senior executive officer (or equivalent) of each of the Customer and FDPI, who will promptly meet and discuss the Dispute in good faith with a view to resolving the Dispute; and

(ii)21 days of the date of service of a Dispute Notice or such later date as the parties may agree, the Dispute is referred to mediation (Mediation) in accordance with clauses 11(d) and 11(e).

(d) The mediator will be selected by mutual agreement. If the parties have not reached agreement on a mediator within 3 days of the date that the Dispute was referred to Mediation (or such other time frame agreed between the parties), the mediator will be selected by the President of the Law Institute of Victoria.

(e) Each party must bear its own costs in relation to the Mediation and the costs of the mediator will be shared equally by the parties.

(f)If the parties do not settle the Dispute in accordance with clauses 11(d) and 11(e), either party may submit the Dispute for resolution to the non-exclusive jurisdiction of the Courts of Victoria, Australia.

(g) The parties to a Dispute will continue to perform their respective obligations under these Terms pending the resolution of the Dispute under this clause 11.

(h) Nothing in this clause 11 restricts or limits the right of either party to obtain urgent interlocutory or injunctive relief, or to immediately terminate these Terms where these Terms provide such a right.

12. TERMINATION

12.1 Grounds for immediate termination

Either party may terminate these Terms and any or all purchase order contracts with immediate effect (or with effect from a specified date) by giving notice in writing to the other party if that other party:

(a) breaches any provision of these Terms or a purchase order contract that is not capable of remedy.

(b) any of its personnel involved in the supply of the goods is guilty of fraud, dishonesty or any other serious misconduct; or

(c) suffers from an insolvency event.

12.2 Termination for failure to remedy Breach Event

(a) These Terms or any purchase order contract may be terminated by either party if the other party commits a Breach Event or is otherwise in breach of any of the terms and conditions of these Terms or the purchaser order contract and the defaulting party fails to remedy the Breach Event or other breach in accordance with the terms of the Breach Notice.

(b) A Breach Event occurs if:

(i) a party is in breach of these Terms or the purchase order contract; or

(ii)the representative of the party (where applicable) commits a breach of these Terms or the purchase order contract.

12.3 Recovery of unpaid amounts

(a) Any unpaid amount under these Terms or any invoice or purchase order contract is recoverable as a liquidated debt due to FDPI and the following provisions will apply to that liquidated debt.

(b) In the event of the Customer defaulting in making payment of any amount payable to FDPI, the Customer agrees that it, and its directors and shareholders (Guarantors) will be jointly and severally liable with each other to pay the balance owing to FDPI and the following provisions will apply.

(c) The Customer and the Guarantors irrevocably consent to judgment being entered against it, him, her or them for the unpaid amount, together with FDPI’s costs (which legal costs component is to be assessed on a solicitor and own client basis or full indemnity basis, whichever is the higher) of entering judgment plus interest at the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic), accruing from the date the amount falls due.

(d) The Customer and the Guarantors further agree that these Terms may be exhibited to an affidavit relied upon by FDPI as evidence of its and/or his, her or their consent to judgment being entered against it, him, her or them in the amount of any default in payment of the amount unpaid.

(e) The Customer and the Guarantors agree that the affidavit referred to in clause 12.3 (d):

(i) may be sworn by the lawyer acting for FDPI; and

(ii)will be sufficient evidence of the failure to pay the amount unpaid.

(f) The application of clause 12.3 is without prejudice to the application of clause 11(h) in its entirety or any other rights of FDPI at law or under these Terms.

(g) Clause 12.3 is not the sole remedy for the breach of these Terms available to FDPI.

(h) FDPI may elect to exercise or pursue any other right or remedy that it may have, or may have had but for clause 12.3 under or in relation to these Terms, including the right to damages for breach of these Terms.