In this Agreement:
AllPAAP means an all present and after acquired property security interest under the PPSA. Agreement means:
(a) these standard terms and conditions of sale;
(b) Price List;
(c) Quote (where applicable); and (d) invoice issued by PIP ANZ.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Confidential Information means all information learnt, obtained or accessed by a Party, or that is disclosed (whether orally, in writing or in any other form) by one Party (Disclosing Party) to the other Party (Receiving Party), in connection with this Agreement, including all copies, notes and records and all related information based on or arising out of any such disclosure which is not:
(a) in the public domain (otherwise than as a result of a breach of this Agreement);
(b) independently developed or known by the Receiving Party; or
(c) obtained by the Receiving Party from a third-party source that is entitled to have the information.
Dispute means a dispute between the parties which has arisen in connection with the subject matter or interpretation of the Agreement, including a dispute concerning a claim in tort, under statute, or on any other basis in law or equity available under the law governing the Agreement.
Dispute Notice means written notice of the Dispute given by one party to another party identifying and providing details of the Dispute.
Early Settlement Discount means a discount on the invoice amount offered by PIP ANZ at its discretion to the Customer in return for payment within a specified time frame from the date of invoice.
Event of Default means any of the following:
(a) the Customer’s failure, or intimation that it will fail, to make payment for any Products in accordance with clause 8 of these terms & conditions or any monies (including interest payable) owed under the Agreement;
(b) any other creditor seizes or intimates that it intends to seize the Products supplied to the Customer by PIP ANZ;
(c) the Customer becomes insolvent, is put into liquidation, has a receiver appointed or enters into a scheme of arrangement in relation to the Customer or any of the Customer's assets or a landlord proceeds against the Customer or any of its assets;
(d) a court judgment is entered against the Customer and remains unsatisfied for seven (7) days or more; or
(e) any material adverse change in the financial position of the Customer which, in the opinion of PIP ANZ, will or is likely to affect the performance of the Customer’s obligations under this Agreement.
Intellectual Property means any intellectual or industrial property whether protected by statute, at common law or in equity, including any trademark, patent, invention, copyright, or design right (whether or not registrable), in any design, specification, process, technique, software, know how, trade secret, technical information, financial information, business method and confidential information.
Loss means any loss (including but not limited to direct loss, indirect loss, consequential loss, loss of anticipated profits or loss of business opportunity or both loss of anticipated profits and loss of business), liability, damage (including but not limited to any damages or compensation or any damage to reputation and damage to property), cost or expense (including legal costs on a full indemnity basis) of whatever kind and however it arises.
Mixed Products means where: (a) the Customer makes a new object from the Products, whether finished or not; or (b) the Customer mixes or otherwise comingles the Products with other articles, goods or products; or (c) the Products become part of another product.
Order means acceptance by the Customer of the Quote and the direction of the Customer to PIP ANZ to supply a specific quantity of the Product for the Price or, where the Customer does not require a Quote, any verbal or written direction of the Customer to PIP ANZ to supply a specific quantity of the Product for the Price.
Party means PIP ANZ or the Customer (as the context requires) and Parties means both PIP ANZ and the Customer.
Payment Date means the payment date specified on the invoice issued for the Products supplied by PIP ANZ or, if no payment date is specified, within 30 days from the end of month that an invoice is issued by PIP ANZ to the Customer.
PIP ANZ means PIP ANZ Pty Ltd (ACN 608 776 816) or PIP ANZ (New Zealand) Limited (NZBN 9429047707351) or any of their Related Bodies Corporate.
PPSA means the Personal Property Securities Act 2009 (Cth) or the Personal Property Securities Act 1999 (NZ) (as may be amended or replaced from time to time). Any reference to any particular part or section of the Personal Property Securities Act 2009 (Cth) shall be taken to refer to the equivalent part or section of the Personal Property Securities Act 1999 (NZ).
PPSR means the Personal Property Securities Register as specified under the PPSA.
Products means the product supplied by PIP ANZ to the Customer under these terms and conditions of sale.
Price means the price of the Product as set out in the Quote or the Price List provided by PIP ANZ and, where applicable, as varied in accordance with clause 6.1.
Price List means any price list issued by PIP ANZ, as amended from time to time.
Customer means the entity or person who purchases Products PIP ANZ.
Quote means any indication of pricing for any Product provided to the Customer by any authorised representative of PIP ANZ.
Related Bodies Corporate is as defined in Section 9 of the Corporations Act 2001 (Cth) or has the same meaning as “related company” as defined in Section 2 of the Companies Act 1993 (NZ) (as may be amended or replaced from time to time), as applicable.
RMA means Return Material Authority issued by PIP ANZ for any return of the Products.
Warranty means the Products will be free from material defects and will be of the kind and quality stipulated in the Agreement. Warranty Period means 12 months from the date of purchase of the Products.
2.1 Upon acceptance of this Agreement and subject to clause 3, PIP ANZ agrees to supply the Products to the Customer.
2.2 In consideration of PIP ANZ’s promise to supply the Products, the Customer agrees to pay PIP ANZ the Price.
2.3 The Parties agree that the terms of this Agreement shall supersede any other agreement between the Parties in respect of the Products and that this Agreement shall govern the sale of the Products from PIP ANZ to the Customer.
2.4 This Agreement incorporates the terms of any credit application agreement entered into between PIP ANZ and the Customer. Where there is any conflict, the terms of this Agreement shall prevail.
2.5 The Customer agrees that:
(a) it will only sell, resell of distribute the Products to end users of the Products through its own official website(s) (to which PIP ANZ has been notified) or physical store(s); and
(b) it will not sell, resell or distribute the Products to other resellers, or through any third party of marketplace websites without the prior written approval of PIP ANZ.
3.1 The Customer may accept a Quote in writing, by actions or by conduct, including but not limited to issuing an Order.
3.2 By accepting the Quote in accordance with clause 3.1, or by directing PIP ANZ to supply a specific quantity of the Products, the Customer shall be deemed to have accepted the terms of this Agreement.
3.3 These terms and conditions of sale apply to the provisions of any Products and form part of the Agreement between PIP ANZ and the Customer. They supersede any previously issued terms and conditions of sale.
3.4 The Customer acknowledges and accepts that any additional or different terms and conditions to these terms and conditions of sale provided in any communication from the Customer are not accepted by PIP ANZ (whether before or after these terms and conditions of sale are provided) and shall not be effective or binding on PIP ANZ unless expressly agreed to by PIP ANZ’s authorised representative in writing.
4.1 If PIP ANZ is unable to fulfil an Order, it shall notify the Customer as soon as reasonably practicable and may, at its discretion, cancel that Order. The Customer agrees that cancellation of an Order by PIP ANZ under this clause shall not give rise to any right to claim any costs, charges or penalties against PIP ANZ.
4.2 Any request to vary or amend an Order by the Customer must be in writing and subject to the written consent of PIP ANZ. PIP ANZ may, at its discretion, pass on any costs of such variation or amendment to the Customer.
4.3 The Customer agrees that it may only cancel an Order by providing written notice to PIP ANZ. PIP ANZ does not accept any cancellation unless the Products are in the same condition as when delivered to the Customer. If PIP ANZ approves a cancellation of an Order by the Customer: (a) the Customer shall pay for the costs of returning the Products;
(b) PIP ANZ shall be entitled to charge a restocking fee.
5.1 While PIP ANZ will use reasonable endeavours to notify the Customer of any change in Price, the Customer agrees that the Price of the Product may be changed without notice by PIP ANZ. Such changes in Price shall be limited to changes in the cost of supply of the Products beyond the control of PIP ANZ including but not limited to changes in labour, materials, services and exchange rates.
5.2 PIP ANZ may, at its discretion, offer an Early Settlement Discount to the Customer in respect of an Order. All Early Settlement Discounts offered will only apply if payment is made by the Customer via by bank transfer and will not apply if payment is made by credit card.
5.3 The Price is exclusive of GST, taxes, duties and other imposts which, if chargeable, are payable by the Customer.
6.1 The Customer must pay the Price in full by the Payment Date without any deduction or right of set-off or counter claim.
6.2 Time is of the essence for payment of the Products.
6.3 If payment in full is not received by PIP ANZ by the Payment Date, then:
(a) an interest on the outstanding amount at the Reserve Bank of Australia cash rate plus three (3) per cent for Products supplied in Australia; or at the current cash investment rate plus three (3) per cent as published by the Reserve Bank of New Zealand for Products supplied in New Zealand shall apply;
(b) the Customer will indemnify PIP ANZ against all collection costs incurred by PIP ANZ, including but not limited to legal expenses on an indemnity basis and any debt collection costs and commissions;
(c) PIP ANZ may refuse any further orders from the Customer and cancel any Orders that are not yet
fulfilled; and
(d) the Customer’s outstanding balance and any other monies owing under this Agreement will be come due and payable immediately.
6.4 All payments made shall firstly be allocated towards such collection costs, thereafter to accrued interest and finally to invoice amount.
7.1 Delivery is deemed to have been made at the earlier of the following:
(a) when the Customer or its agent, representative or contractor is given possession of the Products; or
(b) when the Products arrives at the Customer’s premises or nominated premises.
7.2 Unless otherwise agreed, all shipments are ‘Ex Works’ (EXW) (as defined in INCOTERMS 2020 published by the International Chamber of Commerce as revised from time to time) at PIP ANZ’s premises. All risks to the Products shall pass to the Customer upon delivery.
7.3 Unless otherwise agreed to in writing by PIP ANZ, PIP ANZ will choose the carrier and method of transportation of the Products.
7.4 PIP ANZ shall fulfil the Order in one delivery or in instalments. Failure to deliver any instalment will not entitle the Customer to refuse to accept delivery for any remaining instalments.
7.5 Where the Customer requests a particular method of delivery and PIP ANZ agrees to it in writing, the Customer will cover the cost of delivery by that method from the point of dispatch of the Products by PIP ANZ.
7.6 Any delivery times agreed by PIP ANZ are estimates only and not commitments. No delay in delivery will entitle the Customer to refuse delivery, cancel its Order or to claim any costs or compensation.
8.1 The Customer agrees that all legal and equitable title to and property in all Products is and remains vested in PIP ANZ until full payment of the Order and all other moneys owing by the Customer in respect of the Oder has been received by PIP ANZ.
8.2 Until the Customer has paid PIP ANZ in full for any Products sold to the Customer, the Customer must not sell (unless such sale is in the ordinary course of the Customer’s business), dispose of, do anything that would render any Product liable to be seized or distrained and must not grant a security interest or lien over such Product.
8.3 If any Products is sold in the ordinary course of the Customer’s business, the Customer must, if the Customer has not already paid PIP ANZ for such Products, hold the proceeds of sale of such Products on trust for PIP ANZ and immediately pay such proceeds to PIP ANZ on or before the Payment Date.
8.4 The Customer undertakes to store all Products in such a way that it is clearly identified as the property of PIP ANZ and keep them in good order and condition.
8.5 The Customer irrevocably agrees and undertakes that PIP ANZ (including its servants or agents) will have the right to enter the Customer’s premises or such other premises where the Products are stored without notice to the Customer and reclaim possession and remove such Products in the possession or control of the Customer. The Customer agrees that PIP ANZ shall not be required to distinguish between the Products which have been paid for and the Products which have not been paid for.
8.6 Where any Product has been mixed or sold, PIP ANZ’s rights under this Agreement shall still apply insofar as the proceeds of the sale can be traced.
9.1 PIP ANZ’s liability for shortfall in the quantity of the Products delivered is limited to making good such shortfall.
9.2 The Customer shall not claim for any shortfall in quantity unless the Customer gives written notification of the shortage within 48 hours of delivery as determined in accordance with clause 7.1.
10.1 The Customer will have 48 hours after delivery to inspect the Products and notify PIP ANZ in writing as to any defect.
10.2 The Customer will need to contact PIP ANZ’s service department to request a RMA for all returns. This will need to be securely attached to the exterior of any returned carton for the return to be accepted by PIP ANZ. If there is no visible RMA the return will be rejected by PIP ANZ. The Customer is responsible for costs of return postage or carriage.
10.3 The Customer shall allow PIP ANZ the opportunity to inspect the allegedly defective Products.
10.4 After PIP ANZ has inspected the Products, it will confirm whether the Products are defective. The Customer agrees that PIP ANZ’s decision will be conclusive as to the state of the Products.
10.5 Subject to the Customer returning any defective Product, PIP ANZ may, at its discretion:
(a) issue to the Customer a credit for the value of the defective Product;
(b) repair the Product; or
(c) replace the defective Product with identical Product or similar product with the same if not more superior performance.
10.6 The liability of PIP ANZ shall be subject to clause 15 and shall not extend to any other claims for loss or damage occurring in respect to the supply of the Products.
10.7 Unless the Customer strictly complies with this clause 10, the Products shall be deemed to be supplied in accordance with this Agreement and free from any defect or damage.
11.1 In addition to any rights and remedies that the Customer may be entitled to under any applicable law, PIP ANZ provides to the Customer the Warranty. During the Warranty Period, if PIP ANZ is in breach of the Warranty, the Customer is entitled to return the Product to PIP ANZ.
11.2 Where the Customer makes a Warranty claim, clause 11.4 will apply.
11.3 Where the Product is supplied to a “consumer” as defined under the Australian Consumer Law:
(a) the following will apply to the Product and the Customer:
(i) ‘Our Products 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.
(ii) You are also entitled to have the Products repaired or replaced if they fail to be of acceptable quality and the failure does not amount to a major failure’.
(b) in order to make a Warranty claim, the Customer must return the Products, together with proof of purchase, to one of PIP ANZ’s offices as stated in PIP ANZ’s website. The Customer must bear the expense of making the Warranty claim first, but may can claim such expenses by forwarding the documents evidencing the expenses to PIP ANZ. If PIP ANZ finds that:
(i) the Warranty applies to the Customer’s claim; and
(ii) the expenses are reasonably incurred,
PIP ANZ will reimburse the Customer for such expenses. PIP ANZ’s decision is final.
11.4 The Warranty does not apply if:
(a) a defect is not reported to PIP ANZ within the Warranty Period;
(b) the defect is caused by the Customer;
(c) the Customer or other party did not comply with all operating and maintenance instructions in relation to the Products;
(d) where the Product has been repaired or otherwise tampered with by any person other than a person authorised by PIP ANZ to make repairs; or
(e) the damage is due to normal wear and tear.
11.5 The Customer warrants that:
(a) the Customer is not bankrupt or insolvent, and has not committed any act of bankruptcy, traded whilst insolvent or taken steps to come to an arrangement or composition with its creditors;
(b) the Customer has full capacity and is duly authorised to sign this Agreement.
12.1 The terms in this clause have the same meaning as given to them in the PPSA.
12.2 The Customer acknowledges and agrees that these terms and conditions of sale constitute a security agreement for the purposes of the PPSA and creates a security interest in favour of PIP ANZ against the Customer:
(a) in all Products, Mixed Products or collateral or any combination of the same - being a monetary obligation of the Customer to PIP ANZ for the Products that have previously been supplied and that will be supplied in the future by PIP ANZ to the Customer; and
(b) in all of the Customer’s right, title and interest in all of the Customer’s present and after acquired property as continuing security for the Customer’s obligations under these terms and conditions of sale.
12.3 The Customer grants:
(a) a PMSI in favour of PIP ANZ over any Products supplied (including Mixed Products) by PIP ANZ; and
(b) an AllPAAP security interest in favour of PIP ANZ over any account which remains outstanding after the due date for payment.
12.4 The Customer consents to PIP ANZ creating and maintaining a registration on the PPSR in any required form, in relation to any security interests contemplated or created pursuant to clause 12.3. The Customer waives its rights to receive written notification of such registration by PIP ANZ.
12.5 In the event that the Agreement is subject to Chapter 4 of the PPSA:
(a) PIP ANZ and Customer agree that, pursuant to Section 115(1) of the PPSA, the Customer waives sections 95, 96, 118, 121(4), 125, 130, 132(3)(d), 134, 135, 142 and 143 of the PPSA; and
(b) PIP ANZ and Customer agree that, pursuant to Section 115(7) of the PPSA, sections 127, 129(2), 129(3), 130(1), 132, 134(2), 135, 136(3), 136(4), 136(5) and 137 of the PPSA do not apply to the Agreement.
12.6 The value of the security interest is the total amount due and payable by the Customer from time to time.
12.7 The Customer will not enter into any security agreement that permits any other person or entity to register any security interest in respect of the Products or the proceeds of the Products.
12.8 The Customer agrees to pay any charges of and incidental to registration of the security interest created by this Agreement pursuant to the PPSA on the PPSR. The Customer agrees to do anything that PIP ANZ reasonably requires to ensure that PIP ANZ has a perfected security interest in all the Products and a PMSI in each part of the Products to the extent of the Price for that part.
12.9 If PIP ANZ has cause to exercise any of its rights under the PPSA, the Customer shall indemnify PIP ANZ in relation to any claims made against PIP ANZ by any third parties as a result of such exercise.
13.1 Any Intellectual Property owned or created by PIP ANZ, its employees, representatives or agents (including Intellectual Property in all Products supplied by PIP ANZ under this Agreement) shall remain the sole and exclusive property of PIP ANZ.
13.2 The Customer must not register or claim ownership of any Intellectual Property owned or created by PIP ANZ, its employees, representatives or agents, under common law or statute (including but not limited to any Intellectual Property in respect of the Products). PIP ANZ may grant to the Customer a non-exclusive licence to use and distribute the Intellectual Property to use or sell the Products only.
14.1 Each party agrees to keep the other party's Confidential Information confidential and must not disclose it to any third party without the prior written consent of the Disclosing Party, except as required by law or as necessary to perform obligations under this Agreement. Each party must take all reasonable measures to protect the confidentiality of the other party's Confidential Information in its possession or control.
15.1 The Customer agrees that PIP ANZ’s liability to the Customer for any claim made in relation to an Order, whether under statute, common law (including negligence) or in equity, shall to the extent permitted by law, limited to the value of that Order.
15.2 PIP ANZ will not be liable for any indirect, consequential or incidental loss or damage or any other loss or damage of the same nature (including loss of profit or revenue and loss of opportunity or savings) howsoever caused, arising out of or in connection with this Agreement or the Order.
15.3 The Customer agrees to indemnify PIP ANZ from and against:
(a) any and all Loss arising from the injury or death of any person;
(b) any Loss caused to PIP ANZ howsoever arising; except to the extent that such Loss was caused by the default of or negligence on the part of PIP ANZ.
15.4 The indemnity in clause 15.3 survives the termination of this Agreement.
16.1 If a Dispute arises, either party may give the other party a Dispute Notice by email or by registered post.
16.2 Within seven (7) days of receipt of a Dispute Notice, representatives of the parties having authority to bind the parties shall confer to seek to resolve the Dispute. In the event of any doubt, the representatives who have the authority to bind the party shall be the Chief Executive Officers (or equivalent) of the parties. All aspects of such conference(s) shall be subject to “without prejudice” privilege.
16.3 Neither party may commence any court proceedings prior to complying with clauses 16.1 and 16.2, except for an application for urgent injunctive relief.
16.4 Notwithstanding the existence of a Dispute, each party must continue to perform its obligations under this Agreement.
17.1 PIP ANZ may terminate this Agreement at any time without cause by giving the Customer seven (7) days’ written notice.
17.2 PIP ANZ may terminate this Agreement immediately if the Customer is in breach of any material term of this Agreement, including but not limited to clause 6 (payment), 11.5 (warranties by Customer), 13 (Intellectual Property) or 14 (Confidential Information).
17.3 Upon termination, all payments owed by the Customer shall be considered due and payable by the date of termination.
17.4 Termination under this clause 17 or any other clause of this Agreement does not prejudice:
(a) PIP ANZ’s right to seek any injunctive relief or damages arising out of the act or omission of the Customer; and (b) the rights of PIP ANZ accruing prior to termination.
17.5 The Customer may terminate this Agreement by settling its account in full and providing reasonable notice to the Company.
18.1 The Customer may not assign any or all of its rights or obligations under the Agreement without the prior written consent of PIP ANZ.
18.2 Neither party shall be liable for any failure to perform or delay in performance of this Agreement to the extent that any such failure arises from acts of God, war, riots, new or amended law or policy, strikes, lockouts, labour disruption or any cause beyond the reasonable control of such party.
No relaxation or indulgence granted by PIP ANZ to the Customer shall be deemed as a waiver of any rights of PIP ANZ in terms of this Agreement and such relaxation or indulgence shall not be deemed a variation of any terms and condition of this Agreement.
To the extent permitted by law, this Agreement constitutes the entire agreement between the Parties in respect of the Order. In the event that any provision of this Agreement is held to be invalid by a court or tribunal of competent jurisdiction, the remaining provisions of this Agreement will remain in full force and effect.
18.5 This Agreement shall be governed by and construed in accordance with the laws in force in:
(a) New South Wales, Australia, where the delivery of Products takes place in Australia; and
(b) New Zealand, where the delivery of Products takes place in New Zealand
and the parties submit to the exclusive jurisdiction of the above courts respectively. In the event of any doubt as to the governing law or applicable jurisdiction, and in all other circumstances, the laws of New South Wales, Australia and the courts of New South Wales shall apply.
18.6 PIP ANZ shall have no liability to the Customer in respect of any matter in connection with the Agreement unless the claim together with full particulars thereof is lodged with PIP ANZ within fourteen (14) days of the occurrence of the event(s) or circumstance(s) on which the claim is based.
18.7 PIP ANZ may, by at least 14 days’ written notice to the Customer alter, amend, revise or change any terms of the Agreement (including changes in Price). If the Customer proceeds to accept the supply of the Products, the Customer shall have accepted such alteration, amendment, revision or change in the terms of the Agreement.
18.8 No provision of the Agreement shall be construed adversely against one party solely on the basis that that party was responsible for the drafting of that provision.