1. Definitions
In these terms and conditions unless the context requires otherwise:
Contract means a contract for the sale of Goods to the Customer, which arises in accordance with
clause 2 of these Terms
Infrastructure Products Australia means Infrastructure Products Australia Pty Ltd (ACN 108 71 350)
trading as Infrastructure Products Australia
Customer means the customer whose details appear in the Purchase Order and/or the Invoice
Financing Statement has the meaning given to it by the PPSA
Financing Change Statement has the meaning given to it by the PPSA
Goods means goods which the Customer has agreed to purchase from Infrastructure Products Australia,
details of which are contained in an Invoice
Invoice means a tax invoice describing the Goods which Infrastructure Products Australia is selling
to the Customer
Price means the price payable in respect of the Goods, as specified in the Invoice
Purchase Acknowledgement means a written communication from Infrastructure Products Australia to
the Customer which confirms that Infrastructure Products Australia accepts the Customer’s order for
the Goods
Purchase Order means an order for the Goods provided by the Customer to Infrastructure Products
Australia
PMSI means a “purchase money security interest” as that phrase is defined in the PPSA
PPSA means the Personal Properties Securities Act 2009 (Cth)
PPSR means the Personal Properties Securities Register
Related Entity has the meaning given to it in the Corporations Act 2001 (Cth)
Terms means these terms and conditions of sale
Terms of Credit means Infrastructure Products Australia’s Commercial Credit Application and Terms
and Conditions of Credit
Warranty means any manufacturer’s warranty provided to the Customer by Infrastructure Products Australia in relation to the Goods
Website means the Infrastructure Products Australia website at http://www.infrastrucutureproducts.com.au
2. Contract
2.1 These Terms, together with the Terms of Credit (if applicable), form the agreement between
Infrastructure Products Australia and the Customer in relation to the supply by Infrastructure
Products Australia of Goods to the Customer. If the Customer has its own terms and conditions of
trade, the Customer agrees that these Terms and the Terms of Credit (if applicable) shall prevail.
2.2. In the event of any inconsistency between these Terms and the Terms of Credit, these Terms
shall prevail.
2.3. The Customer may order Goods from Infrastructure Products Australia from time to time by
providing a Purchase Order to Infrastructure Products Australia, or in any other manner agreed to
from time to time by Infrastructure Products Australia.
2.4. Following receipt of a Purchase Order or order for Goods in a form approved by
Infrastructure Products Australia, Infrastructure Products Australia will send a Purchase
Acknowledgement to the Customer. Upon Infrastructure Products Australia sending the Purchase
Acknowledgement, or otherwise indicating to the Customer its agreement to supply the Goods for the
Price, a contract arises between Infrastructure Products Australia and the Customer for the supply
of the Goods at the Price on these Terms, and if applicable, the Terms of Credit.
2.5. The Customer agrees that in the event of any inconsistency between a Purchase Order and
these Terms, these Terms shall prevail.
2.6. The Customer is deemed to have adopted and accepted these Terms upon submitting an order
for Goods to Infrastructure Products Australia.
3. Price
3.1. The Customer must pay the Price in the manner set out in the Invoice.
3.2. If the Customer requests to vary or amend an order, including but not limited to a
variation or amendment that requires Infrastructure Products Australia to amend or prepare
additional drawings, Infrastructure Products Australia may increase the Price to account for the
variation or amendment and issue an amended Invoice.
3.3. Where there is any increase in the costs incurred by Infrastructure Products Australia in
relation to an order that is outside the control of Infrastructure Products Australia,
Infrastructure Products Australia may vary the Price by issuing an amended Invoice to the Customer.
3.4. In the event of any inconsistency between a Purchase Order and an Invoice, the terms of the
Invoice shall prevail.
3.5. If the Customer fails to make payment of any amount of the Price on the due date, the
Customer must pay to Infrastructure Products Australia interest on the full amount outstanding at
the rate equal to 1.5% per month or part thereof as at the date on which the relevant payment is
due to be paid, calculated monthly for the period from the due date until payment is received.
3.6. The Customer may not set off against the Price any amounts due from Infrastructure Products
Australia.
4. Delivery and Force majeure
4.1. The Customer may arrange to take delivery of the Goods at its cost from Infrastructure
Products Australia’ premises. Alternatively, Infrastructure Products Australia will deliver (or
arrange for delivery of) the Goods to the Customer’s address at the Customer’s cost as specified in
the Purchase Order and/or the Invoice . The Customer must make all arrangements necessary to take
delivery of the Goods whenever they are tendered for delivery. Infrastructure Products Australia is
not responsible for any loss or damage to the Goods during delivery.
4.2. If a delivery is cancelled by the Customer within 24 hours of the agreed delivery date, a
delivery cancellation fee of $600 plus GST will be charged to the Customer.
4.3. If deliveries are not accepted as agreed and the Goods are required to be returned to
Infrastructure Products Australia for storage pending redelivery, additional delivery charges will
be payable by the Customer at a rate of $220.00 per hour or part thereof plus GST calculated from
the time the Goods are loaded for delivery until the time they are returned to Infrastructure
Products Australia and offloaded for storage.
4.4. Sixty (60) minutes on site has been allowed in the Price for each delivery. Any time on
site, including waiting time or offloading time, in excess of 60 minutes will be charged at $220 +
GST per hour or part thereof.
4.5. Unless specified otherwise in the Invoice, delivery and freight charges are not included in
the Price, and are payable by the Customer at the same time as the Price is due to be paid.
4.6. Notwithstanding anything to the contrary in these Terms, no order may be cancelled, varied
or suspended and no Goods may be returned by the Customer without the prior written consent of
Infrastructure Products Australia. Infrastructure Products Australia may withhold its consent in
its absolute unfettered discretion. Should Infrastructure Products Australia agree to the return of
any Goods, the Customer shall pay to Infrastructure Products Australia a restocking fee equal to
25% of the Price of the Goods, plus all transport costs incurred by Infrastructure Products
Australia in relation to the Goods (including the initial costs to deliver the Goods and any costs
to return the Goods to Infrastructure Products Australia).
4.7. Infrastructure Products Australia does not guarantee supply of Goods or the time of supply
and will not be liable to the Customer or any third party for any inability to fulfil all or part
of any order. If Infrastructure Products Australia is unable to supply the Customer with the Goods
or the quantity of the Goods which the Customer requires or in the time that the Customer requires
then, as soon as reasonably practicable after it becomes aware of this, Infrastructure Products
Australia will notify the Customer specifying the details and/or quantity of the Goods that
Infrastructure Products Australia is unable to supply and/or the estimated date for delivery.
4.8. Infrastructure Products Australia will use all reasonable endeavors to comply with the
Customer’s particular delivery requirements. Where changes are made to the manufacturing processes
or specifications of any Goods, however, the Customer may not cancel the whole or part of an order
or claim compensation due to Infrastructure Products Australia’ failure to comply with its delivery
requirements or minor variations to the Goods.
4.9. If the Customer does not accept delivery of the Goods on the agreed date for delivery,
then the Customer acknowledges that Infrastructure Products Australia will store the Goods at the
Customer’s risk (outside if necessary) and the Customer agrees to pay the Invoice for the Goods
within the terms of that Invoice plus storage at the rate of $10 per storage pallet per calendar
day calculated from the date the Goods are ready for delivery.
4.10. Other than as described in any quotation given by Infrastructure Products Australia to the
Customer, Infrastructure Products Australia is not required to provide to the Customer any
documentation or information relating to the Goods and/or to demonstrate their compliance with any
standards or specifications of any kind.
4.11. If for any reason beyond the control of Infrastructure Products Australia, including
without limitation, strike, trade dispute, fire, flood, accident, tempest, death, war declared or
undeclared, blockade, governmental or quasi-governmental restraint, unavailability of Goods, loss
or destruction of the Goods, delays in transport, pandemic or epidemic, or an act of God, an order
cannot be filled at the time required by the Customer or at all, Infrastructure Products Australia
is not required to supply the Goods to the extent and for the period that it is so unable to supply
the Goods, and Infrastructure Products Australia is not liable to the Customer or any third party
in respect of any inability on its part to perform its obligations.
5. Withholding Supply
5.1. Infrastructure Products Australia reserves the right to withhold or refuse supply of Goods
to the Customer, or to suspend production of Goods for the Customer on any account or order, where:
5.1.1. Infrastructure Products Australia has insufficient goods to fill an order;
5.1.2. the goods specified in the Invoice have been discontinued;
5.1.3. the Customer has failed to take delivery of any Goods on the agreed date for delivery;
5.1.4. the Customer or any Related Entity of the Customer has unpaid invoices; or
5.1.5. the Customer or any Related Entity of the Customer is in breach of these Terms or the
Terms of Credit.
5.2. If Infrastructure Products Australia withholds or refuses supply in accordance with clause
5.1, it shall not be liable for any losses or expenses (including but not limited to direct or
consequential loss) suffered by the Customer or any third party, howsoever caused, including but
not limited to loss of turnover, profits, business or goodwill or any liability to any other party,
as a result of or in connection with that action.
6. Return of Goods
Subject to the terms of any Warranty and the Customer’s rights (if any) under the Australian
Consumer law:
6.1. the Customer must notify Infrastructure Products Australia if any Goods delivered under a
Contract are defective or are otherwise in breach of these Terms within three (3) days of delivery.
If the Customer does not give the requisite notice to Infrastructure Products Australia within this
time frame, the Customer is deemed to have waived its rights in respect of such Goods; and
6.2. if Infrastructure Products Australia accepts a notice from the Customer in accordance with
clause 6.1, Infrastructure Products Australia’ sole obligation is, at its option, either:
6.2.1. to replace the Goods with non-defective Goods; or
6.2.2. to refund to the Customer such part of the Price paid by the Customer which is referable
to the defective Goods.
7. Retention of Title
7.1. The Customer acknowledges and agrees that property in and title to any Goods remains with
Infrastructure Products Australia and does not pass to the Customer until Infrastructure Products
Australia receives payment in full of all money owing by the Customer to Infrastructure Products
Australia on any account.
7.1.1. Infrastructure Products Australia and the Customer further agree that until property in
and title to the Goods pass to the Customer:
7.1.2. the Customer must hold the Goods as the bailee of Infrastructure Products Australia;
7.1.3. if required by Infrastructure Products Australia, the Goods must be kept separate and
identifiable;
7.1.4. if the Customer fails to make any payment in accordance with the Contract, Infrastructure
Products Australia may give notice in writing to the Customer to return the Goods to Infrastructure
Products Australia and, if the Customer fails to return the Goods, Infrastructure Products
Australia is hereby authorised to enter the Customer’s premises or the premises of any agent at
which the relevant Goods are located, without liability for trespass or any resulting damage, and
retake possession of the Goods, and either keep or resell the Goods;
7.1.5. the Customer may sell the Goods to a third party in the ordinary course of the Customer’s
business, provided that:
7.1.5.1. the Customer must hold all proceeds from the sale or disposal of the Goods on trust for
Infrastructure Products Australia in a separate account from the Customer’s own money; and
7.1.5.2. the Customer must account to Infrastructure Products Australia for the proceeds of the
sale or disposal of the Goods until the Customer’s total indebtedness to Infrastructure Products
Australia is discharged;
7.1.6. in the event that the Customer has sold the Goods to a third party and has defaulted in
payment to Infrastructure Products Australia for such Good, the Customer;
7.1.6.1. agrees to provide full details of the third party to Infrastructure Products Australia;
You are required to Initial each page to confirm you have read and understood the information on
each page
7.1.6.2. consents to Infrastructure Products Australia seeking paymentdirectly fromthe third
party,or Infrastructure Products Australia entering into a separate contract with the third party
for the sale of the Goods;
7.1.6.3. forgoes any beneficial right to payment for the Goods from the third party, and will do
all such things necessary to direct the third party to make payment for the Goods directly to
Infrastructure Products Australia; and
7.1.6.4. will remain liable for the entire payment of the Goods until such time as the full debt
is paid to Infrastructure Products Australia, including being liable for any shortfall in payment
by the third party.
7.1.7. in the event that the Goods are converted into or intermingled with other products,
property in and title to the end products vest in Infrastructure Products Australia; and
7.1.8. the Customer may not charge the Goods in any way nor grant or otherwise give any interest
in the Goods.
7.2. If Infrastructure Products Australia takes possession of any Goods in accordance with
clause
7.2.3, the Customer remains liable to pay the Invoice.
8. Personal Properties Securities Act 2009
8.1. The Customer acknowledges that these Terms together with any Purchase Order and Invoice:
8.1.1. constitute a security agreement for the purposes of the PPSA; and
8.1.2. create a Security Interest in all Goods described in the Purchase Order and/or Purchase
Acknowledgement and/or the Invoice and/or all current and after acquired accounts as original
collateral of the Customer.
8.2. The Customer acknowledges and agrees that Infrastructure Products Australia may affect a
registration on the PPSR in relation to any Security Interest arising under or in connection with
these Terms, any Contract, or the Terms of Credit. The Customer acknowledges and agrees that
Infrastructure Products Australia Security Interest in the Goods and proceeds is a PMSI to the
extent that it secures payment of the amounts owing in relation to the Goods on any account.
8.3. The Customer agrees that it must:
8.3.1. promptly sign any further documents and/or provide any further information which
Infrastructure Products Australia may reasonably require to:
8.3.1.1. register a Financing Statement or Financing Change Statement in relation to a Security
Interest on the PPSR;
8.3.1.2. register any other document required to be registered by the PPSA; and
8.3.1.3. correct a defect in a statement referred to in clause 8.3.1.1or 8.3.1.2;
8.3.2. indemnify, and upon demand reimburse, Infrastructure Products Australia for all expenses
incurred in registering a Financing Statement or Financing Change Statement on the PPSR or
releasing any Goods or accounts charged thereby;
8.3.3. not register a Financing Change Statement in respect of any Security Interest without
Infrastructure Products Australia’ prior written consent; and
8.3.4. not register, or permit to be registered, a Financing Statement or a Financing Change
Statement in relation to the Goods or its accounts in favor of a third party without Infrastructure
Products Australia’ prior written consent.
8.4. For the avoidance of doubt, the Security Interest extends to the Customer’s present and
after acquired accounts as original collateral. Section 55(4) of the PPSA applies in the event that
any subsequent interest is registered in by any third party in respect of the Goods, or the
Customer’s accounts.
8.5. The Customer hereby waives its right to receive any notice under the PPSA (including notice
of a verification statement) unless such notice is required by the PPSA and cannot be excluded
8.6. If chapter 4 of the PPSA applies to the enforcement of a Security Interest arising under or
in connection with this Agreement, the Customer agrees that the following provisions of the PPSA
will not apply to the enforcement of that Security Interest:
8.6.1. section 95 (notice of removal of accession), to the extent that it requires Infrastructure
Products Australia to give the Customer a notice;
8.6.2. section 96 (when a person with an interest in the whole may retain an accession);
8.6.3. section 121(4) (enforcement of liquid assets – notice to grantor);
8.6.4. section 125 (obligation to dispose of or retain collateral);
8.6.5. section 130 (notice of disposal), to the extent that it requires Infrastructure Products
Australia to give the Customer a notice;
8.6.6. section 132(3)(d) (contents of statement of account after disposal);
8.6.7. section 132(4) (statement of account if no disposal);
8.6.8. section 142 (redemption of collateral);
8.6.9. section 143 (reinstatement of security agreement).
8.7. Where a person is a controller in relation to the Goods, Part 4.3 of the PPSA does not
apply to the enforcement of any Security Interest in the Goods by that controller.
8.8. Expressions used in these Terms and in the PPSA have the same meanings as when used in the
PPSA.
9. Risk
9.1. Risk in the Goods passes to the Customer upon the Goods being dispatched for delivery. The
Customer accepts all risk involved in the use and/or possession of the Goods.
9.2. The Customer must insure Goods against all loss or damage, and Infrastructure Products
Australia’ interest must be noted on such insurance policy.
10. Cancellation
Infrastructure Products Australia may cancel any Contract or cancel delivery of Goods at any time
before the Goods are delivered by giving written notice to the Customer. Infrastructure Products
Australia is not liable for any loss or damage whatever arising from such cancellation.
11. Exclusion of Warranties
11.1. This clause 11 only applies if the Australian Consumer Law does not apply to the Contract,
for example if:
11.1.1. the Goods are purchased for the purpose of resupply or for the purpose of being used up
or transformed in trade or commerce; or
11.1.2. the Goods are not of a kind ordinarily acquired for personal, domestic or household use
or consumption; or
11.1.3. the Price is higher than $40,000.00.
Nothing in these Terms is intended to have the effect of excluding or limiting any consumer
guarantees given by Infrastructure Products Australia under the Australian Consumer Law.
11.2. Subject to clause 11.1, except as provided in these Terms and any Warranty and to the
extent permitted by law, all implied conditions, guarantees and warranties (including guarantees or
warranties as to merchantability and fitness for purpose) are expressed excluded.
11.3. Subject to clause 11.1, Infrastructure Products Australia makes no representation or
warranty in relation to any Goods not manufactured by Infrastructure Products Australia, all of
which (to the extent permitted by law) are sold to the Customer “as is”. The Customer agrees to
look solely to the Warranty (if any).
11.4. Warranties in relation to Goods are void if the Goods are not handled in accordance with
Infrastructure Products Australia’ recommended
handling and installation guidelines which are available on the Website.
12. Limitation of Liability
12.1. This clause 12 only applies if and to the extent that the Australian Consumer Law does not
apply to the Contract. Clause 11.1 describes Contracts to which the Australian Consumer Law does
not apply. Nothing in these Terms is intended to have the effect of limiting Infrastructure
Products Australia’ liability under the Australian Consumer Law.
12.2. Subject to clause 12.1, Infrastructure Products Australia accepts no responsibility and is
not liable for any direct or indirect, special or consequential loss or damage or injury to any
person, corporation or other entity in connection with a Contract or the Goods, howsoever caused.
12.3. Infrastructure Products Australia accepts no responsibility and is not liable for any loss
incurred in connection with the storage of any goods by Infrastructure Products Australia.
12.4. To the fullest extent permissible by law and subject to clause 12.1 and the terms of any
Warranty, Infrastructure Products Australia’ liability to the Customer is limited to the lesser
amount of:
12.4.1. the cost of replacing the Goods; and
12.4.2. the cost of repairing the Goods, provided always that Infrastructure Products Australia’ liability will not exceed the amount paid
or payable by the Customer under the relevant Contract.
12.5. The Customer agrees to handle the Goods only in accordance with Infrastructure Products
Australia’ recommended handling and installation guidelines which are available on the Website.
Infrastructure Products Australia accepts no responsibility and is not liable for any damage caused
to the Goods whether caused directly or indirectly as a result of the Customer, or its
representatives, officers, agents, employees or subcontractors failing to handle or install the
Goods in accordance with the recommended handling and installation guidelines.
13. Intellectual Property
13.1. The Customer acknowledges that no rights to any intellectual property in the Goods or any
documentation, designs, drawings, or specifications prepared by Infrastructure Products Australia
(including, without limitation, patent, trademark, design, copyright or plant breeder’s rights) are
transferred to the Customer.
13.2. The Customer must notify Infrastructure Products Australia immediately if the Customer’s
use of the Goods results in an actual or alleged infringement of a third party’s intellectual
property rights.
13.3. The Customer is solely responsible for any infringement of the intellectual property
rights of any third party resulting from the Customer’s use of the Goods, and the Customer must
indemnify Infrastructure Products Australia for any costs, expenses, damages or liability incurred
by Infrastructure Products Australia arising from any such infringement.
14. Enforcement Expenses and Costs
Any costs incurred by Infrastructure Products Australia in demanding or collecting outstanding
debts and/or enforcing its rights against the Customer (including, without limitation, the fees of
any mercantile agents or solicitors appointed by Infrastructure Products Australia, on a full
indemnity basis) and any loss and damage suffered by Infrastructure Products Australia as a result
of a breach by the Customer of these Terms and/or the Terms of Credit is
deemed to be a debt due from the Customer to Infrastructure Products Australia and is payable in
full by the Customer.
- Jurisdiction
Any Contract between Infrastructure Products Australia and the Customer is governed by the laws of
the state of Victoria. The parties submit to the non- exclusive jurisdiction of the courts of the
State of Victoria and any courts which may hear appeals from those courts in respect of any
proceedings in
connection with any Contract. - Severability
If any of these Terms is invalid or unenforceable in any jurisdiction, that Term must be read down
for the purposes of that jurisdiction, if possible, so as to be valid and enforceable, and is
otherwise capable of being severed to the extent of the invalidity or unenforceability, without
affecting the remaining
Terms or affecting the validity or enforceability of that Term in any other jurisdiction. - Waiver
The non-exercise of or delay in exercising any power or right of a party does not operate as a
waiver of that power or right, nor does any single exercise of a power or right preclude any other
or further exercise of it or the exercise of any other power or right. A power or right may only be
waived in
writing, signed by the party to be bound by the waiver. - Assignment
Infrastructure Products Australia may assign any rights or benefits under these Terms and the Terms
of Credit at any time. The Customer may not assign any rights or benefits under these Terms or the
Terms of Credit without the prior written consent of Infrastructure Products Australia, which may
be withheld
in its absolute unfettered discretion. - Entire Agreement
These Terms are to be read in conjunction with the Invoice, and Terms of Credit and these documents
constitute the entire agreement between the
parties. In the event of a conflict between these Terms and the Invoice, the Invoice will prevail. - Agreement Binding on Successors
These Terms are binding on the Customer, its successors, and legal personal representative.
Amendments
Infrastructure Products Australia may amend these Terms at any time. All amendments will be posted
to the Website without prior or separate notification. The Customer agrees to be bound by any
amendments to these terms and conditions from the date they are posted to the Website.
Infrastructure Products
Australia recommends that the Customer refers to the Website regularly to review the current terms
and conditions of sale.