1.1 In these Terms and Conditions:
1.1.1 ‘The Company’ means Grapeworks Pty Ltd ACN 073 461 177; ABN 17 073 461 177 or Tanium Pty Ltd ACN 609 366 252; ABN 50 609 366 252 relating to the respective invoice issued.
1.1.2 ‘Purchaser’ means the person to whom these Terms and Conditions are provided;
1.1.4 ‘Order’ means an order for Goods submitted by the Purchaser to The Company from time to time;
1.1.5 ‘Invoice’ means the invoice provided by The Company after the Purchaser places the Order;
1.1.6 ‘Purchase Price’ means the amount stipulated by The Company in the Invoice.
2. Offer and Acceptance
2.1 The Purchaser must place an Order with The Company and each Order must specify:
2.1.1 the quantity and description of the goods the Purchaser wishes to purchase; and
2.1.2 a preferred date of delivery of the Goods.
2.2 The Company reserves the right to accept or reject in whole or in part any order placed by the Purchaser.
3. Offer and Acceptance
3.1 The Purchaser must pay the Purchase Price in Australian dollars and free of any exchange rate charges within thirty (30) days of the date of the Invoice.
3.2 The Company may charge interest on any overdue payment at 2% per annum above the rate fixed by the Penalty Interest Rates Act of 1983 applicable at the time of the payment.
3.3 The Purchaser must not withhold payment of any amount due on account of any claim against The Company whether admitted or disputed.
4.1 The Purchaser must pay the cost of delivery, which is included in the Purchase Price.
4.2 Delivery takes place on the date and time the Goods leave the premises of The Company.
4.3 Despite that an approximate date is stipulated in the Order, the time for the delivery of the Goods shall not be regarded as being of the essence.
4.4 Each carrier used by The Company for the delivery of the Goods shall be the agent of the Purchaser.
5. Property and Risk
5.1 The Purchaser accepts risk of loss, damage or deterioration to the Goods upon delivery.
5.2 The Company reserves the following rights until the Purchase Price is paid by the Purchaser:
5.2.1 ownership of the Goods;
5.2.2 the right to enter the Purchaser’s premises (or the premises of any associated company or agent of the Purchaser where the Goods are held) without liability for trespass or any resulting damage, and retake possession of the goods; and
5.2.3 the right to keep or re-sell goods repossessed under clause 5.2.2.
5.3 If the Goods are resold, or products manufactured using the Goods are sold by the Purchaser, then the Purchaser must hold such part of the proceeds of any such sale as represents the Purchase Price in a separate identifiable account as the beneficial property of The Company and must pay such amount to the The Company on request.
5.4 Despite clause 5.3, The Company shall be entitled to maintain an action against the Purchaser for the Purchase Price.
5.5 If the Purchaser fails to pay the Purchase Price, then in addition to any other rights or remedies to which it may have be entitled, The Company may in its absolute discretion:
5.5.1 withhold supply and delivery of any further Goods;
5.5.2 enter upon the Purchaser’s premises and remove the Goods which are still the property of the The Company; or
5.5.3 withhold Delivery or further deliveries as the case may be.
6.1 Each clause in these Terms and Conditions is severable the one from the other and if any clause is found to be defective or unenforceable for any reason by any competent court, the remaining clauses shall be of full force and effect.
6.2 This clause 6.2 is in substitution for and excludes all express and implied conditions, warranties or liabilities of any kind relating to the Goods sold and, except as expressly provided in this clause, The Company shall be under no liability in contract or otherwise for any injury, loss or damage of any kind or by anything done or omitted to be done in connection with the Goods.
6.3 If the Goods are supplied to the Purchaser as a ‘consumer’ of goods or services, within the meaning of ‘consumer’ in the Trade Practices Act 1974 as amended or similar state legislation, nothing in these Terms and Conditions excludes, restricts or modifies any condition, warranty, right or remedy conferred by the Trade Practices Act 1974 as amended or similar legislation.
6.4 If the Goods are goods not ordinarily acquired for personal, domestic or household use or consumption for the purposes of the Trade Practices Act 1974 as amended or similar legislation, The Company liability is limited to payment of an amount equal to the lowest of:
6.4.1 the cost of replacing the Goods;
6.4.2 the cost of repair of the Goods; or
6.4.3 the cost of having the Goods repaired or replaced.
6.5 Subject to clauses 6.3 and 6.4, The Company will not be liable for any default or failure in performance of its obligations under these Terms and Conditions which results directly from acts of God, civil or military authority, acts of public enemy, war, accidents, riot, political or civil disturbances, fire, explosions, earthquakes, floods, the elements, strikes, labour disputes, shortage of labour, material or components, delay in transport, stoppage or break down of machinery, accident of any kind, any default or delay by any of The Company suppliers or sub-contractors, any act of any State or Government or any authority or any other cause beyond The Company control.
6.6 Despite anything else in these Terms and Conditions, the Purchaser accepts and acknowledges:
6.6.1 all risk and responsibility for the nce of the Goods and their being sufficient and suitable for their intended purpose;
6.6.2 that The Company will not be liable for any consequential damages or loss of any nature in any circumstances; and
6.6.3 that The Company will not be liable for any loss suffered by the Purchaser or for damage to the Goods after Delivery.
6.7 Each clause in these Terms and Conditions is severable from the other and if any clause is found to be defective or unenforceable for any reason by any competent court, the remaining clauses shall be of full force and effect.
7.1 The Company may claim and recover from the Purchaser on demand, in addition to any other amount payable under these Terms and Conditions, all losses, costs and expenses incurred by The Company in consequence, directly or indirectly, of any breach of the Terms and Conditions by the Purchaser and including any legal costs on a solicitor and own client basis, and any costs of retaking possession of the Goods.
7.2 In the event of The Company remaining in possession of the Goods after delivery as a result of the Purchaser’s unwillingness or inability to collect or accept the Goods, then The Company:
7.2.1 may charge the Purchaser interest as in clause 3.2; and
7.2.2 has the right to resell the Goods and claim from the Purchaser any losses it may have sustained as a result.
8. Purchaser’s Acknowledgement
8.1 The Purchaser acknowledges that: 8.1.1 prior to ordering the Goods it conducted a thorough examination of the Goods and is satisfied as to the condition of the Goods and their suitability for the Purchaser’s purpose; and
8.1.2 The Company has made no express warranty, condition or representation about the Goods’ quality, fitness for purpose, safety, suitability or otherwise.
9.1 Subject to clause 9.2, The Company agrees to insure the Goods (except where the Goods are being delivered ) against loss, theft or damage provided that the Purchaser pays The Company insurance excess on any claim.
9.2 In the event that the cost of the Goods exceeds $100,000, The Company will not insure the Goods and the Purchaser agrees to:
9.2.1 insure and keep the Goods insured against fire, accident and theft for an amount equal to full insurable value of the Goods;
9.2.2 insure and keep The Company insured against all liability with a reputable insurer in the name of The Company as owner and the name of the Purchaser as customer for their respective interests; and
9.2.3 hand to The Company all policies of insurance and to pay promptly all premiums and stamp duty associated with those policies of insurance and to permit The Company to receive all insurance monies.
10. Goods and Services Tax
10.1 All amounts or other consideration payable by any party pursuant to these terms and conditions represents the value of any taxable supply for which payment is to be made.
10.2 Subject to clause 10.4, if a party makes a taxable supply under or in connection with these Terms and Conditions for a consideration, which under clause 10.1 represents its value, then the recipient of the taxable supply must also pay at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.
10.3 If this agreement requires a party (‘the First Party’) to pay, reimburse or contribute to an amount paid or payable by the other party in respect of any acquisition from the third party for which the other party is entitled to claim an input tax credit, the amount required to be paid, reimbursed or contributed by the First Party will be the value of the acquisition by the other party plus, if the other party’s recovery from the first party is a taxable supply, any GST payable under clause 10.2.
10.4 A party’s right to payment under clause 10.2 is subject to a valid tax invoice being delivered to the party liable to pay for the taxable supply.
11.1 In the event of any inconsistency between any other document and these Terms and Conditions, then the latter shall prevail.
11.2 The laws of the State of Victoria shall govern the validity, interpretation and performance of these Terms and Conditions.
11.3 These conditions apply to all Goods supplied by The Company to the Purchaser unless expressly varied in writing by The Company.