Terms and Conditions of Sale – Single Transaction
1. Definitions and interpretation
In this document:
Metering Dynamics Business Services Pty Ltd trading as Metering Dynamics (58 087 082 764) or any relevant subsidiary, division, affiliate, associated company or related entity of it which owns the Goods acquired by, the Customer, and, where the context permits, includes any agent, employee, successor or assign of them.
Customer means a person who has requested the supply of Goods or Services from Metering Dynamics and, where the context permits, includes employees, agents, successors and assigns of a Customer.
(a) ACL means Schedule 2 (The Australian Consumer Law) to the Competition and Consumer Act 2010 (Cth).
(b) Goods means the goods included on the MeterShop Website as amended by Metering Dynamics from time to time.
(c) Insolvent includes the commencement of any process to make a person bankrupt or to enter into any arrangement under the Bankruptcy Act 1966 (Cth), or (in the case of a corporation) liquidation, provisional liquidation, receivership, administration or the occurrence of any presumption of insolvency.
(d) MeterShop Website means https://www.meteringdynamics.com.au/products/metershop/
(a) The following terms apply to the sale of any Goods by Metering Dynamics to a Customer, unless the parties sign a different formal agreement, or Metering Dynamics notifies the Customer that it has revised, replaced or discontinued use of this document.
(b) Any agreement between Metering Dynamics and the Customer for the purchase or acquisition by the Customer of will be taken to be governed solely by these terms despite any term of any purchase order or other document from the Customer (with the exception of any alternative terms expressly agreed to by Metering Dynamics in writing). For clarification, mere correspondence or supply of an order by Metering Dynamics following receipt of a document from the Customer, including, without limitation, signing an acknowledgement in respect of that document, does not amount to an agreement to any alternative terms and these terms override any alternative terms completely.
(c) Metering Dynamics may at any time decline to provide Goods, whether or not part of a contract to supply them has been performed, where the Goods are unavailable for any reason, a non complying order is received or the Customer has defaulted under Metering Dynamics’ terms of credit.
(d) Quotations, designs and specifications for Goods supplied by Metering Dynamics may be revised or withdrawn by Metering Dynamics at any time prior to Metering Dynamics’ written acceptance of an order by a Customer.
(e) An order for Goods must identify the Goods ordered, the quantity and specifications required and refer to any quotation pursuant to which the order is made. Metering Dynamics may supply Goods that vary from the Goods ordered by the Customer, and the Customer must accept them provided that such variations are not material.
(f) Any variation of an order or cancellation of any order by the Customer will only be effective if agreed in writing by Metering Dynamics.
(g) Metering Dynamics is not bound by clerical errors or omissions (in computation or otherwise) and any document produced by Metering Dynamics will be subject to correction by it.
(h) Metering Dynamics will not be bound by any contract for the provision of Goods to a Customer until:
(i) Metering Dynamics notifies in writing the Contractor of Metering Dynamics’ acceptance of the Customer’s order; or
(ii) Metering Dynamics otherwise gives effect to the supply of the Goods to the Customer under these terms, despite Metering Dynamics providing any quotation for the Goods.
(a) Subject to clause 3(b), unless an alternate price for any particular Goods is agreed in writing by both parties, the price of Goods will be Metering Dynamics’ current standard price for the Goods last published or notified to the Customer by Metering Dynamics prior to the date of delivery.
(b) Where Metering Dynamics quotes a fixed price, and expressly states that that price will remain valid for a specified period (for example, 90 days), that price will only apply to an order by the Customer for the relevant Goods placed during that period.
(c) Unless Metering Dynamics otherwise notifies the Customer in writing (for example, by quoting a delivered cost, which would therefore include delivery), all prices for Goods do not include:
(ii) handling or packing;
(v) loading, unloading, transportation or delivery;
(vi) or goods and services tax, excise or any other tax or duty.
Should any costs, expenses, charges or taxes associated with the above be incurred by Metering Dynamics, or should Metering Dynamics be obliged to charge them, in respect of the provision of Goods, the Customer must pay them to Metering Dynamics with the purchase price for the Goods, as an additional amount.
(d) Delivery charges may be negotiated and agreed on a Customer by Customer basis.
4. Payment terms
The Customer must pay Metering Dynamics in full for the Goods at the time of purchasing Goods from Metering Dynamics.
5. Warranties and liability limited
(a) All express and implied terms, conditions, guarantees and warranties on the part of Metering Dynamics which might otherwise apply to or arise out of the sale or supply (or failure to supply) Goods by Metering Dynamics to the Customer are excluded to the maximum extent permitted by law.
(b) To the maximum extent permitted by law, Metering Dynamics will not be liable (whether under contract, in tort (including, without limitation, negligence), in equity, under statute or otherwise) for any:
(i) damage to or loss of any property;
(ii) injury or death of any person;
(iii) or any other liability, loss, damages or compensation (including, without limitation, loss of prospective profits or production, loss of revenue, loss of opportunity, business interruption, loss of business reputation, damage to credit rating, increased costs of production, wasted overheads or expenses or special, indirect or consequential loss or damages), (together Loss) arising out of or in connection with the supply of Goods or failure to supply Goods to the Customer including, without limitation, any Loss arising from or in connection with:
(iv) any defect in the Goods (including, without limitation, in their design);
(v) the Goods not being fit for the Customer’s purpose (whether or not disclosed to Metering Dynamics) or any other purpose; or
(vi) the Goods failing to conform to their description or meet any specification (whether provided by Metering Dynamics or the Customer).
6. Not used
7. Delivery times
(a) Subject to the terms of this document, Metering Dynamics will make reasonable efforts to have Goods supplied to the Customer on the date agreed between them as the delivery commencement date.
(b) Any date specified or agreed by Metering Dynamics for completion, delivery, dispatch, shipment or arrival of Goods, is an estimate only and does not constitute a condition of the contract for supply or part of the description of the Goods.
(c) Metering Dynamics shall be under no liability of any kind should delivery or installation not be made on such date and shall not be liable for any Loss arising from or in connection with failure or delay in delivery.
The risk in Goods purchased by the Customer from Metering Dynamics will, unless otherwise agreed by all parties in writing, pass to the Customer upon delivery of the Goods to the Customer or its agent or to a carrier commissioned by the Customer; or
9. Retention of Title
Metering Dynamics will retain title to all Goods until Metering Dynamics receives payment in full for those Goods and all other debts owed by the Customer to Metering Dynamics (whether due or not) have been paid in full.
10. Remedies of Customer
(a) Despite any other term of this document:
(i) the exclusions of terms, conditions, guarantees and warranties and the limitations and exclusions of liability in clause 5 and this clause 10 are subject to any law (including the ACL) to the extent that it does not permit such terms, conditions, guarantees and warranties to be excluded or such liability to be excluded or limited;
(ii) if the Customer has the benefit of any consumer guarantee under the ACL (or an equivalent statutory provision), this document does not exclude, restrict or modify that guarantee or any statutory remedy arising from that guarantee or provision but, to the maximum extent permitted by law, Metering Dynamics’ liability for breach of any consumer guarantee (or equivalent statutory provision) is limited to:
- replacement of the Goods or the supply of equivalent goods;
- repair of the Goods;
- payment of the cost of replacing the Goods or of acquiring equivalent goods; or
- payment of the cost of repairing the Goods, as determined by Metering Dynamics in its absolute discretion, but Metering Dynamics may not rely on this limitation of liability to the extent that it:
- is not fair or reasonable pursuant to sections 64A(3) and (4) of the ACL or any similar applicable Commonwealth or State legislation;
- relates to a guarantee contained in sections 51, 52 or 53 of the ACL; or
- relates to Goods of a kind ordinarily acquired for personal, domestic or household use or consumption.
(b) The Customer agrees to:
(i) inspect any Goods immediately upon delivery;
(ii) carry out any tests that a reasonable and prudent customer would carry out on the Goods to ensure they are acceptable to the Customer.
(c) The Customer must give written notice to Metering Dynamics of any alleged irregularity in quantity or description, any damage or defects or any other claim in relation to Goods provided to the Customer by Metering Dynamics within five working days from the delivery or supply of those Goods.
(d) Subject to the Customer’s rights (if any) under the ACL, the Customer agrees that it cannot reject or claim any remedy of any kind in relation to Goods supplied to it by Metering Dynamics that were:
(i) produced and manufactured on the Customer’s instructions;
(ii) damaged in transit;
(iii) classified by Metering Dynamics as non-returnable; or
(iv) in any way altered or damaged by the Customer.
11. Goods and Services Tax
(a) If a party (“Supplier”) makes a Taxable Supply on which GST is imposed, where the Consideration payable is not described as GST inclusive, the Consideration payable or to be provided for that Taxable Supply but for the application of this clause (“GST exclusive consideration”) is increased by, and the recipient of the supply (“Recipient”) must also pay to the Supplier, an amount equal to the GST payable by the Supplier on that Taxable Supply. However, the Recipient need not pay any amount referable to GST unless they have received a valid Tax Invoice (or valid Adjustment Note) for that Taxable Supply.
(b) Words or expressions used in this clause which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and related imposition and amending Acts have the same meaning in this schedule.
(c) These clauses 11(a), 11(b) and 11(c) will continue to apply after expiration or termination of this Agreement.
13. Force Majeure
(a) Metering Dynamics may, without liability of any kind, totally or partially suspend the supply of Goods during any period in which Metering Dynamics is prevented or hindered from supplying them due to any circumstances outside its reasonable control, including but not limited to strikes, lockouts, raw material shortages, accidents or breakdowns of plant or machinery.
(b) To the extent that Metering Dynamics is not performing its obligations under this document because of a cause referred to in paragraph (a), the Customer may purchase replacement Goods elsewhere, at its own cost and risk, as may be necessary to cover any urgently needed requirements during such period in substitution for the Goods not supplied by Metering Dynamics and may by notice in writing to Metering Dynamics terminate the contract for the replaced Goods from Metering Dynamics under this document.
(c) Metering Dynamics will not be liable to the Customer for any Loss arising from or in connection with such suspension, and in particular Metering Dynamics will be under no obligation to deliver at any future date, any Goods not delivered during the period of suspension (although it may elect to do so to the extent that the Customer has not exercised its rights under clause 13(b)).
If any term in this document cannot be given effect for any reason, that term or the part which cannot be given effect, shall be taken to be deleted or read down restrictively, and the remaining terms will remain valid and binding on the parties.
Any failure by Metering Dynamics at any time to enforce any of these terms or any terms of any other contract with Metering Dynamics, or any forbearance, delay or indulgence granted by Metering Dynamics, will not constitute a waiver of Metering Dynamics’ rights. No term of any of these terms or any terms of any other contract with Metering Dynamics will be waived or deemed to be waived unless that waiver is in writing and signed by Metering Dynamics. No waiver by Metering Dynamics of a term of this document or otherwise in any contract will be construed as a continuing waiver by it of the term or provision.
16. Law and Jurisdiction
All contracts between Metering Dynamics and the Customer to which this document applies shall be governed by and construed in accordance with the laws of Queensland. The Customer submits to the jurisdiction of courts in Brisbane in respect of any litigation relating to the supply (or non-supply) of Goods.