STANDARD TERMS AND CONDITIONS – SUPPLY OF GOODS

  1. Definitions and interpretation
    • In these Terms:
      • ACL means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent State or Territory legislation.
      • Agreement has the meaning given in clause 2.2.
      • Ausmeter means Ausmeter Pty Ltd ACN 155 282 581 of 1 Contour Close, Research VIC 3095
      • Business Day means any day except a Saturday, Sunday or public holiday in the State of Victoria.
      • Consequential Loss means loss beyond the normal measure of damages and includes indirect loss, loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain and loss of opportunity.
      • Consumer has the meaning provided to it in section 3 of the ACL.
      • Credit Application means a credit application, if any, You have submitted to Ausmeter, which Ausmeter has approved (which approval has not been revoked).
      • Default Rate means the rate which is fixed from time to time under section 2 of the Penalty Interest Rate Act 1983 (Vic).
      • Delivery Costs means the costs payable by You to Ausmeter for delivery of Goods to You, set out in a Quote.
      • Due Date has the meaning given in clause 5.4.
      • Force Majeure Event means any event arising from, or attributable to, acts, events, omissions or accidents which are beyond the reasonable control of a party including any fire, failure or shortage of power supplies or components, abnormally inclement climate or weather conditions, flood, lightning, storm, explosion, earthquake, subsidence, structural damage, epidemic, pandemic or other natural physical disaster, riot, disease, civil commotion, insurrection, political instability, armed conflict, war, terrorist action, strike or other labour difficulty or shortage, unavailability of transport providers, failure or inability to obtain any licence or approval or the threat of any of the foregoing.
      • Goods means goods supplied by Ausmeter.
      • GST has the meaning given in the GST Act.
      • GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
      • Insolvency Event means, in relation to a body corporate, a liquidation or winding up or the appointment of a voluntary administrator, receiver, manager or similar insolvency administrator to that body corporate or any substantial part of its assets; or in relation to an individual or partnership, the act of bankruptcy, or entering into a scheme or arrangement with creditors; or in relation to a person, the inability of that person to pay its debts as and when they fall due; or the occurrence of any event that has substantially the same effect to any of the above events.
      • Intellectual Property Rights means any and all intellectual and industrial property rights anywhere in the world, including but not limited to the rights comprised in any patent, copyright, design, trade mark, eligible layout or similar right whether at common law or conferred by statute, rights to apply for registration under a statute in respect of those or like rights and rights to protect trade secrets and know how.
      • Loss means any loss, liability, cost, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and includes direct loss and Consequential Loss.
      • Order means a written order for Goods that You submit to Ausmeter.
      • PPSA means the Personal Property Securities Act 2009 (Cth).
      • PPSR means the Personal Property Securities Register established under the PPSA.
      • Price means the price for Goods supplied to You, as set out in an Order, which has been accepted by Ausmeter [HH note: Ausmeter to confirm process followed when amending / correcting Orders where Price is incorrect].
      • Price List means Ausmeter’s standard price list for Goods, as updated by Ausmeter from time to time.
      • Quote means a quotation provided by Ausmeter to You for the supply of Goods to you.
      • Relevant Proportion has the meaning given to it in clause 6.6.
      • Sale Proceeds has the meaning given to it in clause 6.5.
      • Tax Invoice has the meaning given in the GST Act.
      • Terms means these Standard Terms and Conditions – Supply of Goods, as updated by Ausmeter from time to time.
      • You means a person who submits an Order to Ausmeter.
      • The singular includes the plural and vice versa.
      • The word person includes a firm, a body corporate, an unincorporated association, body or organisation established pursuant to international treaty, intergovernmental body, or government authority and other official authority.
      • A reference to a document or legislation includes a reference to that document or legislation as varied, amended, novated or replaced from time to time.
      • A reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and permitted assigns.
      • If a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning.
      • Headings are inserted for convenience and do not affect the interpretation of these Terms.
      • No provision will be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Terms or the inclusion of the provision in the Terms.
      • All monetary amounts are in Australian dollars and a reference to payment means payment in Australian dollars.
  1. Formation of Agreement
    • Each Order is an offer to Ausmeter to supply Goods to You on the terms of:
      • the Order;
      • the Quote;
      • the Credit Application; and
      • these Terms.

In the event of any inconsistency, these documents will be interpreted in the priority in which they are listed above.

  • An Order will be accepted by Ausmeter, and an agreement will only be formed, upon Ausmeter confirming acceptance of the Order to You in writing (Agreement). Until such acceptance, Ausmeter is not bound by Your Order and may refuse to accept Your Order at Ausmeter’s discretion.
  • Each Order must be consistent with the Price and Delivery Costs set out in the relevant Quote. If the Quote does not specify a Price, the Price will be as set out in Ausmeter’s Price List published at the time Ausmeter accepts your Order.
  • If Your Order includes Your standard terms, those terms will not bind Ausmeter, and will not form part of the Agreement.
  1. Price and Payment
    • Unless otherwise stated, the Price and Delivery Costs are exclusive of all taxes, including GST. You are responsible for all taxes (including GST) payable in relation to the supply of Goods to You.
    • You must pay the Price and Delivery Costs, plus any applicable taxes (including GST), as set out in each Tax Invoice.
    • Ausmeter will invoice You after acceptance of Your Order.
    • Subject to clause 5, unless otherwise agreed in writing by Ausmeter, the due date for payment of each Tax Invoice is:
      • if a Credit Application is in place – [30] days from the date of that Tax Invoice; or
      • if no Credit Application is in place – before delivery or collection (as appliable) of the Goods the subject of that Tax Invoice,

(Due Date).

  • If:
    • an amount owed by You has not been paid by the relevant Due Date, and that amount remains outstanding at the time you submit a subsequent Order to Ausmeter;
    • Ausmeter revokes its approval of Your Credit Application; or
    • Ausmeter considers that, in its sole discretion, Your creditworthiness is or has become unsatisfactory;

Ausmeter may require payment of a Tax Invoice in full prior to delivery or collection of the relevant Goods.

  • If You fail to make a payment by the Due Date or You are the subject of an Insolvency Event, then, without prejudice to any other right or remedy available to Ausmeter, Ausmeter may, in its sole discretion:
    • suspend any further deliveries to You;
    • cancel the supply of any Goods, in respect of which Ausmeter has accepted Your Order, but which have not yet been supplied to You;
    • enter Your property in order to repossess Goods;
    • charge You interest on the unpaid amount at the Default Rate, which interest will accrue and be chargeable from the first day on which such amounts become overdue until the day on which Ausmeter receives payment of all such amounts (including all interest); and
    • cancel any credit account facilities (including revoking a Credit Application) previously granted to You.
  1. Delivery and Collection
    • If an Order accepted by Ausmeter specifies that Goods be delivered to You, Ausmeter will deliver the Goods to you in the manner determined by Ausmeter, unless otherwise agreed by You and Ausmeter in writing.
    • Ausmeter will not be bound to deliver Goods by a specific delivery date. Ausmeter will not be liable for any delay or Loss You incur if delivery does not occur by a date specified in an Order, or otherwise communicated by You.
    • Ausmeter may deliver Goods the subject of a single Order in multiple deliveries.
    • If you are not available or refuse to accept delivery of Goods, Ausmeter will retain the Delivery Costs for that delivery attempt, and you will be liable for any Loss incurred by Ausmeter in respect of subsequent delivery attempts. This clause does not limit Ausmeter’s right to cancel an Agreement under clause 14.1.
    • You acknowledge that any proof of delivery documentation provided by Ausmeter is conclusive evidence of delivery of the relevant Goods.
    • If an Order accepted by Ausmeter specifies that Goods are to be collected, You may collect Goods from Ausmeter at the time determines by Ausmeter, unless otherwise agreed by You and Ausmeter in writing.
  2. Returns
    • This clause 5 is subject to clause 8.
    • Subject to the ACL, You may only return Goods to Ausmeter if:
      • the Goods do not meet the description (excluding minor variations or deviations) in the Order accepted by Ausmeter;
      • You provide Ausmeter with written notice of your claim; and
      • the Goods were not specifically ordered or manufactured by Ausmeter for You.
    • Subject to the ACL, a written notice under clause 7.2 must:
      • note the Tax Invoice number and date for those Goods; and
      • be submitted to Ausmeter within 7 days of delivery or collection of those Goods.
    • Subject to the ACL, if Ausmeter determines, at its sole discretion, that the Goods do not meet the description in the Order accepted by Ausmeter, Ausmeter may, at its sole discretion:
      • supply replacement Goods to You; or
      • provide You with a credit in respect of those Goods.
    • Subject to the ACL, You are responsible for the costs of returning the Goods to Ausmeter.
  3. Title and Risk
    • Risk in Goods passes to You upon delivery of those Goods to, or collection by, You.
    • Title to Goods passes to You upon full payment to Ausmeter for all amounts owed by You to Ausmeter.
    • If You return Goods to Ausmeter, risk in those Goods remains with you until Ausmeter confirms receipt of those Goods.
    • Until title to Goods passes to You in accordance with clause 6.2:
      • subject to clause 6.5, You must hold the Goods as Ausmeter’s fiduciary agent and bailee and must not sell, lease, dispose of or otherwise deal with the Goods in any way without Ausmeter’s prior written consent or as otherwise permitted by these Terms;
      • You must insure the Goods for their full replacement value and must store the relevant Goods separately from any other goods and in a way that enables the Goods to be clearly identified as Ausmeter’s and referrable to a particular Tax Invoice;
      • If a payment is overdue past the Due Date, Ausmeter may require You to deliver up the all Goods to Ausmeter. If You fail to immediately deliver up those Goods, Ausmeter may enter Your premises or any third party premises where the Goods are stored and repossess them and You:
        • authorises and grants Ausmeter an irrevocable licence to enter the Your premises or relevant third party premises to remove or arrange for the removal of the Goods; and
        • indemnify Ausmeter against any Loss that may be incurred or sustained by Ausmeter, its employees or agents, as a result of the entry of those premises where the Goods are stored; and
      • You must not pledge or grant a security interest in or in any way charge by way of security for any indebtedness, any of the Goods which remain Ausmeter’s property. If You do, You must remove the pledge, charge or security interest immediately and all moneys owing by You to Ausmeter will (without prejudice to any other right or remedy of Ausmeter) immediately become due and payable to Ausmeter.
    • Despite clause 2, the You may resell the Goods, and may deliver any such Goods to the buyer of those Goods, but only in the ordinary course of Your business and on terms which will not prejudice Ausmeter’s ability to obtain the sale proceeds for those Goods and:
      • any amount paid by the buyer of such Goods to You (Sale Proceeds) must be held by You on trust for Ausmeter, and will be paid to Ausmeter as soon as possible; and
      • if and when the full amount due to Ausmeter in respect of the Goods has been received by Ausmeter, You may retain any further Sale Proceeds.
    • If You incorporate the Goods into any building, or other goods manufactured or produced by You or a third party, then, until all moneys You owe to Ausmeter have been paid in full, You must hold a proportion of any payment (Relevant Proportion) You receive for such building or goods on trust for Ausmeter. You acknowledge that the Relevant Proportion must be not less than the dollar value of the portion of the incorporated Goods.
    • If an Insolvency Event occurs in relation to You, You acknowledge that any sale or purported sale of the Goods will not be in the ordinary course of Your business and the proceeds of any Goods sold in such circumstances will, to the extent of any money owing by You to Ausmeter, be held on trust for Ausmeter by the administrator, controller or similar officer as the case may be, or if there is no such officer, by You.
  4. PPSA
    • If Goods are supplied to you on credit terms, You acknowledge that:
      • the Agreement for the supply of those Goods is a security agreement for the purposes of the PPSA, under which You grant a security interest in the Goods to secure amounts You owe to Ausmeter;
      • where Ausmeter has other enforcement rights in addition to the enforcement rights provided for in the PPSA, those other enforcement rights will continue to apply; and
      • Ausmeter is not obliged to act in any way to dispose of or to retain any Goods which have been seized by Ausmeter (or any person nominated by Ausmeter under the PPSA).
    • You:
      • consent to Ausmeter registering its security interest created by or arising under or in connection with an Agreement, including in relation to Goods supplied to You, on the PPSR;
      • agree to promptly do all things necessary to ensure that any security interest created under these Terms is perfected and remains continuously perfected, Ausmeter’s priority position is preserved or secured and any defect in any security interest, including registration, is overcome;
      • must indemnify and pay on demand to Ausmeter all expenses incurred in registering a financing statement or financing change statement on the PPSR, and for enforcement of Ausmeter’s rights arising out of any of its security interests created by or arising under or in connection with these Terms;
      • must not change your name, address, or contact details without providing prior written notice to Ausmeter;
      • must not register a financing change statement without Ausmeter’s written consent;
      • to the extent permitted by the PPSA, waive your rights to receive a copy of any verification statement or financing change statement; to receive any notice required under the PPSA, including notice of a verification statement; to reinstate the security agreement by payment of any amounts owing or by remedy of any default; and under sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 127, 128, 129, 130, 132, 134(2), 135, 136(3), (4) and (5), 137, 142 and 143 of the PPSA; and
      • may only disclose information or documents of a kind referred to in section 275(1) of the PPSA with Ausmeter’s written consent.
  1. Warranties and Liability
    • To the maximum extent permitted by law, any express or implied condition, warranty, representation or assurance in connection with the Goods which is not expressly stated in these Terms is excluded.
    • If You acquire Goods as a Consumer, our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
    • Subject to the non-excludable guarantees under the ACL, if You acquire Goods as a Consumer, our liability to You for any Loss you incur in respect of those Goods is limited to the amount (determined by Ausmeter, acting reasonably) equal to the lower of:
      • the cost of replacing the Goods;
      • the cost of obtaining equivalent Goods; or
      • the cost of having the Goods repaired.
    • If:
      • You do not acquire Goods as a Consumer; or
      • the ACL does not apply,

to the extent permitted by law, Ausmeter’s liability to you for any Loss you incur in respect of Goods supplied to You will be limited to the Price for the relevant Goods.

  • Ausmeter is not liable to You for any Loss suffered as a result of improper use of the Goods, including use other than in accordance with the ordinary use of those Goods, or instructions provided in relation to the use of those Goods.
  1. Indemnity
    • You indemnify Ausmeter, and hold Ausmeter harmless, from and against all Losses (including all legal costs, and any other associated fees and costs) Ausmeter incurs as a direct or indirect result of:
      • recovering any amounts You owe to Ausmeter (including any fees paid to a debt collector or similar);
      • Your breach of an Agreement; or
      • any negligent or wilful act or omission by You, Your employees, agents, servants, contractors or others for whom You are legally responsible.
  1. Intellectual Property
    • Nothing in these Terms shall be construed as an implied or express transfer from Ausmeter to the You of the ownership of, or title to, any of the Intellectual Property Rights in the Goods, or any other Intellectual Property Rights owned by or licensed to Ausmeter, and You agree that You must not infringe Ausmeter’s Intellectual Property Rights which exist in the Goods or use Ausmeter’s Intellectual Property Rights for anything other than for the sole purpose of using the Goods.
  2. Representations
    • You acknowledge and agree that You have not relied on any representations, inducements or statements made to You by Ausmeter regarding the supply of the Goods, and You have satisfied Yourself that the Goods are fit for Your required purpose.
    • If Ausmeter accepts an Order, You acknowledge that the Order was accepted on the basis of, and in reliance upon, information, statements and documents provided by You, including the Credit Application.
    • Ausmeter’s Price List, Quotes, catalogues and other similar documents provided by Ausmeter do not constitute an offer by Ausmeter to supply Goods in those documents at the prices set out in them. Ausmeter’s Price List and Quotes may be changed by Ausmeter at any time, without notice.
  3. Force Majeure
    • A party will not be liable for any failure to perform or delay in performing its obligations (other than an obligation to pay money) under an Agreement if that failure or delay is due to a Force Majeure Event.
    • If a Force Majeure Event under clause 1 exceeds 20 Business Days, Ausmeter may immediately terminate an Agreement by written notice to You.
  4. Termination
    • Without limiting Ausmeter’s other rights under these Terms, Ausmeter may terminate any and all Agreements with You and any credit account facility under a Credit Application with immediate effect by written notice to You:
      • if You are the subject of an Insolvency Event (subject to any provision of the Corporations Act 2001 or any related subordinate legislation that may prevent or restrict the exercise of a right of termination or other right under this contract);
      • if You have breached any material term of these Terms; or
      • in accordance with clause 12.2.
    • On termination of an Agreement, You must, at Your cost and within 10 Business Days of the date of termination, return to Ausmeter all Goods (other than any Goods which have been fully paid for).
    • Each party retains any rights, entitlements or remedies it has accrued before termination, including the right to pursue all remedies available to either party at law or in equity.
  5. Cancellation
    • Ausmeter may cancel or suspend any Agreement (in part or in full) by providing written notice to You, where Ausmeter reasonably believes that it will be unable to provide the Goods to You as agreed, subject to Ausmeter refunding any amounts You have already paid to Ausmeter for Goods not yet supplied to You. A refund is Your sole remedy against Ausmeter in respect of cancellation of an Agreement.
    • You may not cancel an Agreement, except with Ausmeter’s prior written consent, and without prejudice to any rights Ausmeter may have for Loss it incurs in connection with that cancellation.
  6. General
    • These Terms are governed by the laws of the State of Victoria, and each party submits to the non-exclusive jurisdiction of the courts of that State.
    • The relationship between the parties is and will remain that of independent contractors, and expect as expressly provided for in these Terms, nothing in an Agreement constitutes the parties as partners or joint venturers or constitutes any party as the agent of another party or gives rise to any other form of fiduciary relationship between the parties.
    • You must not assign or otherwise deal with Your rights or obligations under these Terms without Ausmeter’s prior written consent. Ausmeter may assign, subcontract or deal with any of its rights or obligations under these Terms at any time by giving written notice to You.
    • Ausmeter may vary these Terms from time to time by giving written notice of the variation to You. If You submit an Order to Ausmeter after receipt of notice of the variation, you will be deemed to have accepted the variation. Otherwise, an Agreement (including any document forming part of an Agreement) may not be varied unless the parties have expressly agreed to that variation in writing.
    • A failure to exercise or delay in exercising any right under these Terms does not constitute a waiver and any right may be exercised in the future. Waiver of any of these Terms must be in writing and is only effective to the extent set out in that written waiver.
    • If any provision of these Terms is void, unenforceable or illegal and would not be so if words were omitted, then those words are to be severed and if this cannot be done, the entire provision is to be severed from these Terms without affecting the validity or enforceability of the remaining provisions.
    • Each Agreement constitutes the entire agreement between You and Ausmeter in respect of the supply of the Goods the subject of that Agreement and supersedes all previous communications, representations, understandings or agreements.