Grundfos Australia Terms & Conditions of Sale
Except where GRUNDFOS and the Customer have entered into a contract or agreement signed by both parties, in which case the terms of that contract/agreement apply to the Purchase Order, the Customer acknowledges that these Terms and Conditions will apply to all Customer’s Purchase Orders and together constitute the entire Contract between the parties.
GRUNDFOS can change or amend these Terms and Conditions from time to time, in which case the version of Terms and Conditions current at the date of Purchase Order placement applies. Customer must familiarize itself with the version of Terms and Conditions current at the date of Purchase Order placement.
Australian Consumer Law means the law as set out in the Schedule 2 of the Competition and Consumer Act 2010.
Business Day means any day that is not a Saturday or Sunday or a public holiday or bank holiday in the place concerned.
Consumer Contract means a contract for the acquisition of Products and Services by a 'consumer' as that term is defined in the section 3 of the Australian Consumer Law.
Contract means a contract for sale by GRUNDFOS to the Customer of the Products and Services incorporating these Terms and Conditions.
Credit Claim is a claim raised by the Customer in relation to GRUNDFOS invoice.
Credit Limit means a maximum unpaid amount for Products sold and/or services rendered that GRUNDFOS allows to the Customer at any particular moment. Credit Limit is determined by GRUNDFOS based on Customer’s payment history and can be reduced or cancelled at GRUNDFOS’ discretion if Customer is in default of GRUNDFOS’ payment terms.
Custom Product means any Product which is not in GRUNDFOS Price Book.
Customer means the person or legal entity identified in GRUNDFOS’ Quotation, Purchase Order Confirmation or invoice.
Discount Code means a Product code which appears in GRUNDFOS Price Book.
Duty Point means the intersection between the pump performance curve and the system’s characteristics. More information about this can be found at GRUNDFOS’ web site or from GRUNDFOS staff.
Force Majeure means a credible threat of or act of terrorism, act of God, fire, explosion, atmospheric disturbance, lightning, flood, (other than any flood which should be reasonably anticipated), earthquake, war or warlike conditions,
maritime or aviation disaster, civil commotion or civil disturbance, political unrest and demonstrations, national strikes, embargoes, blockades, riots, epidemic, ionising radiation or contamination by radioactivity, all of which must be beyond the reasonable control of, and must not be caused by, the party claiming Force Majeure.
GRUNDFOS means GRUNDFOS Pumps Australia Pty Ltd ABN 90 007 920 765 of 515 South Road, Regency Park, South Australia 5010
GRUNDFOS Extranet means 24-hour online self service for browsing Products catalogue, ordering new Products, and checking the status of existing orders.
Place of Delivery means the place for delivery of Product designated by the Customer and agreed to by GRUNDFOS in Purchase Order Confirmation.
Price means the price as per GRUNDFOS Price Book, Quotation and Purchase Order Confirmation, and the latter will have precedence.
Price Book means GRUNDFOS’ published price list for Standard Products, as varied and updated from time to time.
Products means the Products as described in the Price Book, Quotation and/or Purchase Order Confirmation and may include Standard or Custom Products and Service offerings.
Purchase Order means a Customer-generated document that authorizes a purchase transaction as per GRUNDFOS Price Book or Quotation and indicates types, quantities, and prices for Products or Services. When accepted by GRUNDFOS via Purchase Order Confirmation, it becomes a Contract binding on both parties.
Purchase Order Confirmation means formal acknowledgement of Customer’s Purchase Order by GRUNDFOS.
Quotation means a formal statement of promise submitted by GRUNDFOS in response to Customer’s request for Quotation and setting out the estimated cost for Products of Service Offerings.
Service Offerings means the different service options offered by GRUNDFOS for the Products or any part of them and for varying periods, as described in GRUNDFOS’ Price Book, Quotations, and/or GRUNDFOS' Service Description.
Standard Product means a Product from GRUNDFOS Price Book.
Warranty means the warranty protection that comes standard with purchases from GRUNDFOS, as set out in clause 15 of these Terms and Conditions. Certain legislation in force in Australia at each given time may provide consumer guarantees or impose obligations on GRUNDFOS which cannot be excluded, restricted or modified, or
only to a limited extent. These Terms and Conditions are subject to such legislation, including, without limitation the Australian Consumer Law.
2. PRODUCT ORDERS AND CONTRACT
2.1 Publication of the Price Book by GRUNDFOS is a general invitation for Customers to make an offer to purchase Standard Products. Customer may at any time place a Purchase Order for Price Book products. If a Product is not in the GRUNDFOS Price Book Customer must submit a request for Quotation at email@example.com.
2.2. If the Customer wishes to accept an invitation made by GRUNDFOS through publication of the Price Book or submission of a Quotation and make an offer to purchase a Product or Service, it must submit a Purchase Order via GRUNDFOS Extranet or at firstname.lastname@example.org that is consistent with the terms of the Quotation or Price Book (as applicable) and these Terms and Conditions.
An order processing fee of $15 plus GST per Purchase Order applies if a Purchase Order is placed via email, fax or any means other than GRUNDFOS Extranet. Purchase Orders received via GRUNDFOS Extranet do not incur the Order processing fee.
2.3. Once a Purchase Order is submitted by the Customer it will be accepted by GRUNDFOS in its sole and absolute discretion by providing the Customer with a Purchase Order Confirmation. GRUNDFOS may reject the Purchase Order if the Customer has exceeded its Credit Limit or otherwise breached these Terms and Conditions. In the event that GRUNDFOS' Purchase Order Confirmation does not agree with the Purchase Order, the Customer must raise a complaint without delay. Failing that, the Customer will be bound by the contents of the Purchase Order Confirmation.
2.4. The Products sold and/or Services rendered are subject to these Terms and Conditions to the exclusion of any other terms and conditions stipulated or referred to by the Customer. Any promotions and bargains offered by GRUNDFOS to the Customers are subject to these Terms and Conditions.
2.5. The Customer acknowledges that it is aware of the contents of and agrees to be bound by these Terms and Conditions. If Customer seeks to amend these Terms and Condition, it has to provide its comments to GRUNDFOS within 5 business days after receiving a Purchase Order Confirmation. For any changes to become effective they must be accepted by GRUNDFOS, executed in writing and duly signed by both parties. Neither GRUNDFOS’ acknowledgement of a Purchase Order nor its failure to object to conflicting, different, or additional terms and conditions in a purchase order will be deemed an acceptance of such terms and conditions or a waiver of the provisions.
3. PRICE AND PAYMENT
3.1. All prices in the Price Book are current at the time of publication. However, GRUNDFOS reserves the right to vary these prices at any time with 7 days prior written notice.
3.2. Quotation is valid for a period of 30 calendar days from the date of issuance unless other is specified in the Quotation. GRUNDFOS reserves the right to alter any Quotations for which a Purchase Order has been placed after the expiry date.
3.3. Customer’s changes to specifications, after acceptance of a Purchase Order by GRUNDFOS, may incur additional costs.
3.4. The Customer must pay GST on all GRUNDFOS’ goods and services in addition to any other amount that is required to be paid by the Customer to GRUNDFOS under these Terms and Conditions. The GST payable by the Customer will appear as a separate line on the invoice.
3.5. The Customer must make payment for Products and Services within 30 calendar days after the end of the month in which the price for the Products and/or Services has been invoiced by GRUNDFOS to the Customer, unless other is specified in the invoice.
3.6. If specified in the invoice, settlement discount will apply to all pricing, when settled within the stated payment terms. No settlement discount, if applicable, shall be provided where the Customer has not paid the full invoice amount or has overdue amounts. Payments for overdue amounts or payments received after the last day of the payment period are not eligible for settlement discount. All received payments will be allocated to the oldest invoices first.
3.7. If Customer returns a Product as per clause 8.2 or has other claims with respect to GRUNDFOS invoice, it must inform GRUNDFOS not later than within 6 months after the date of invoice at email@example.com and provide a reason and supporting documents for a Credit Claim. Credit Claims raised after this period will not be considered by GRUNDFOS and will not affect Customer’s payment balance. GRUNDFOS, in its sole and absolute discretion, will examine the Credit Claim and inform the Customer of the outcome. Credit note will be issued to the Customer with respect to every accepted Credit Claim.
3.8 Any legal or collection costs incurred in the recovery of any overdue amounts will be recoverable from the Customer. If the Customer fails to pay GRUNDFOS any sum when due, GRUNDFOS shall be entitled to charge interest at the rate of 1.5% per month on the overdue amount for every day after the due date.
4. PURCHASE ORDER CANCELLATION
4.1. No Purchase Order may be cancelled by the Customer after Purchase Order Confirmation is issued, except with GRUNDFOS' consent in writing or as per clause 5.4 of these Terms and Conditions. Customer must notify GRUNDFOS in writing at firstname.lastname@example.org of any Purchase Order cancellations.
4.2. GRUNDFOS shall be permitted to cancel the Purchase Order Confirmation in case of delayed or faulty delivery from a sub-supplier or Force Majeure, and in the event of such incidents GRUNDFOS will not be liable to pay damages or any other form of compensation to the Customer. GRUNDFOS without delay will inform the Customer
about Purchase Order cancelation.
5.1. GRUNDFOS will deliver Products “Free In Store” (FIS) to the Place of Delivery indicated in the Purchase Order. Products supplied from overseas will be delivered DDP (Incoterms 2010) unless other is specified in a Quotation or Purchase Order Confirmation. Unloading of Products is Customer’s, or Customer’s agent’s, responsibility and at its expense.
5.2. Any dates provided by GRUNDFOS for the delivery of the Products are estimates only and will not form part of the Contract. Actual delivery date will be affected by factors such as clearance of payment, Customer's location and availability of parts for the Product. GRUNDFOS will issue Customer with the updated Purchase Order Confirmation if delivery is delayed. GRUNDFOS will not be liable for any damage or consequential loss caused by delay in delivery of the Products and/or Services.
5.3. For the efficiency of GRUNDFOS’ production and fulfilment procedures, it may be necessary for GRUNDFOS to deliver the Products by instalments in any sequence. Except as provided in clause 5.4, the Customer may not cancel the Contract where Products are delivered by instalments.
5.4. Customer may cancel a Purchase Order as per clause 4.1 if GRUNDFOS is unable to deliver the Products within a reasonable period from the estimated delivery date.
5.5. GRUNDFOS has a policy of on-going Product update and revision. As a result, GRUNDFOS may revise and/or discontinue Products at any time without notice. Where Products ordered under a Consumer Contract have been revised and/or discontinued, GRUNDFOS will supply revised or updated Products with the same or equal functionality and performance of the Products ordered. The Customer accepts that GRUNDFOS’ policy may result in differences between the specification of Products delivered to the Customer and the specification of Products ordered.
5.6. Where the Customer fails and/or are unable and/or refuse to accept Delivery on the Delivery Date, then the Products will be deemed delivered on the Delivery Date as per GRUNDFOS Purchase Order Confirmation, notwithstanding the Products still being on GRUNDFOS site.
5.7. Any changes to deliveries may be accepted at GRUNDFOS’ discretion but may incur an extra fee and/or delay of delivery.
5.8. GRUNDFOS may refuse to deliver Products where the Customer is in default of GRUNDFOS’ payment terms or has exceeded its Credit Limit, or otherwise is in breach of these Terms and Conditions.
5.9. All GRUNDFOS Products are subject to inspection and standard testing prior to dispatch from the factory. A test certificate can be supplied on demand and at a charge as per GRUNDFOS Quotation and comprises a proof that the Products are manufactured in accordance with GRUNDFOS specifications. Any other testing is performed upon Customer’s request as per GRUNDFOS Purchase Order Confirmation and subject to additional cost.
6. RISK AND OWNERSHIP
6.1 Risk in the Products will pass to the Customer upon delivery of the Products to the Customer or collection of the Products (if agreed by GRUNDFOS) by the Customer's agent or courier.
6.2 In the event of clause 5.6, all risks to pass to Customer on deemed delivery date and the Customer accepts that GRUNDFOS will charge reasonable storage costs until such time GRUNDFOS deliver the Products at the Delivery Place.
6.3. The Customer will insure the Products for their full replacement value from the time that risk in the Products passes to the Customer until the time that title to the Products passes to the Customer.
6.4. Title in and to any Products will pass to the Customer after all amounts owed by the Customer to GRUNDFOS in respect of those Products have been paid in full.
6.5. The Customer acknowledges that GRUNDFOS has a ’purchase money security interest’ for purpose of the Personal Property Security Act 2009(Cth) (the PPSA) in the Goods to the extent that it secures payment of the amount owing in relation to the Goods until the title passes to the Customer in accordance with clause 6.4. GRUNDFOS is entitled to take any actions, ensuring the security interest is enforceable, perfected and otherwise effective. GRUNDFOS do not need to give any notice under the PPSA (including the notice of a verification statement) unless notice is required under the PPSA and cannot be excluded. The parties agree that they are not required to disclose any information of the kind referred to in section 275(1) of the PPSA. In case of repeated supply, GRUNDFOS may make a single registration against the Customer, which will be valid for one or more security interests arising from all Goods supply under these Terms and Conditions.
7. FREIGHT CHARGES
7.1 Price in GRUNDFOS Quotations and Purchase Order Confirmations is based on delivery terms as per clause 5.1, unloading excluded, unless other is explicitly specified. Product Price is not subject to adjustment if a Product is collected from GRUNDFOS site (with GRUNDFOS consent) by the Customer or Customer’s agent.
7.2 A freight charge of 0.5% of the Product price will apply to the larger/ bulkier Product covered under discount codes A0, A4, A8, D2, D3, D4, D5, E1, E3, H1, H3, H4, L1, S2 and Z2.
7.3 A freight charge of 4% will apply for SQ Flex Products with a discount code of A2.
7.4 A freight charge of 1% of the Product price will apply to spare parts and service kits with a discount code of M2.
7.5 Additional airfreight charges will be applied to domestic and international deliveries depending on the weight and delivery location. Applied freight charges will be indicated in the invoices.
7.6 GRUNDFOS reserves the right to introduce other charges and fees and to vary these at any time with 7 days prior written notice.
8. ACCEPTANCE AND RETURN OF PRODUCTS
8.1 Unless the Customer notifies GRUNDFOS to the contrary on the day of delivery and such notification is confirmed in writing within 2 (two) Business Days, the Products is deemed to have been accepted by the Customer. The Customer will not be entitled to withhold payment of all or any of the Price of the Products whilst any claim is being investigated by GRUNDFOS.
8.2 Except to the extent GRUNDFOS is required to do so by the Australian Consumer Law:
(i) GRUNDFOS will not be under any obligation to accept Products of proper quality returned by a Customer later than specified in clause 8.2(ii) below.
(ii) GRUNDFOS will only consider the return of Standard Products (custom Products expressly excluded) listed in GRUNDFOS’ current published Price Book, and only where those Products are in their original packaging, unsoiled, undamaged and in an immediate resalable condition. Standard Products returned will be accepted if returned within 60 days from Delivery Date, and GRUNDFOS will charge the Customer $75 + 15% of invoice value for the returned Standard Products. Customer shall notify GRUNDFOS in writing at email@example.com of any Product return and await GRUNDFOS’ written consent accompanied by an official approval document number.
(iii) If GRUNDFOS accepts the return of a Standard Product, the Standard Products returned must be accompanied by GRUNDFOS official approval document number, the original invoice number, date of purchase, Purchase Order number and reason for return. Freight and insurance for Standard Products to be returned to GRUNDFOS must be pre-paid by the Customer. All Products must be returned to 515 South Road Regency Park SA 5010.
(iv) Products of proper quality which are not in the published Price Book are non-standard and non-returnable (Custom Products).
(v) Only Product returns compliant with this clause 8.2 provide a sufficient reason for Credit Claim as per clause 3.7. Incompliant returns will not be accepted by GRUNDFOS and will not affect Customer’s payment balance.
8.3. Nothing in this clause 8 affects Customer's right to claim against GRUNDFOS for a faulty Product under GRUNDFOS’ warranty or under the Australian Consumer Law.
9. FORCE MAJEURE
Neither party will be liable for any delay in performing any of its obligations under these Terms and Conditions if such delay is caused by Force Majeure, and such party will be entitled to a reasonable extension of time for the performance of such obligations. Parties must immediately inform each other if they are affected by Force Majeure.
10. COPYRIGHT AND DOCUMENTS
10.1 Grundfos is the exclusive owner of all of GRUNDFOS’ Intellectual Property in the Products. The Customer will not challenge or dispute GRUNDFOS’ ownership of the Intellectual Property. The Customer will not do anything or omit to do anything which could detrimentally affect the ownership of GRUNDFOS’ Intellectual Property.
10.2 All drawings and descriptions supplied to the Customer with or in relation to Products will remain the property of GRUNDFOS and may not be copied, reproduced, passed onto or in any other way communicated to a third party without GRUNDFOS writing permission. The ownership of drawings and descriptions necessary for the proper installation, starting, operation and maintenance of the supplier Products shall pass to the Customer together with Product’s ownership. However, GRUNDFOS may demand that these data are treated as confidential information.
10.3 Unless otherwise agreed upon by GRUNDFOS in writing, standard GRUNDFOS operating and manual documentation will be provided with all Products. A variation to standard operating documentation requires prior written approval and may be subject to additional costs.
10.4 Any information of weight, dimensions, price, technical and other data given on GRUNDFOS website or in catalogues, leaflets, circular letters, advertisements, pictures and pricelists is approximate and shall only be binding on GRUNDFOS when specific reference is made to a particular piece of information in contractual documents.
11.1 Unless specifically mentioned in GRUNDFOS Quotation and Purchase Order Confirmation, commissioning is not included in the Product Price. Commissioning can be requested from GRUNDFOS and will be charged at a fee.
11.2 Commissioning will be to determine the correct operation of the GRUNDFOS Products, not the whole hydraulic system where the Product is installed.
11.3 For warranty to be valid, installation and commissioning must be undertaken in accordance with GRUNDFOS installation-, operation-, maintenance- or service manual and good industry practice. Any commissioning is to be done after installation is complete, power and water is available and the specified duty can be achieved. Commissioning test equipment (gauges, flow meters etc.) is to be installed by the Customer before commissioning at its cost, and operational.
11.4 The Customer’s failure to meet these commissioning terms may incur an extra fee to the Customer.
12.1 If the Customer makes default in payment or otherwise fails to carry out its obligations under these Terms and Conditions or repudiates a contract for the purchase of Products, or if the Customer exceeds its Credit Limit, or if the Customer stops payment, calls a meeting of its creditors or becomes insolvent or subject to bankruptcy laws, or being a company calls a meeting for the purpose of or goes into liquidation or has a winding up summons presented against it or has a receiver, controller or administrator appointed, GRUNDFOS at its option and notwithstanding any waiver of such default or failure (and without prejudice to its rights under these terms), may suspend or cancel any Contract with the
customer, any Customer’s Purchase Order or Product delivery or require payment in cash before or on delivery.
12.2 If title has not passed to the Customer under the clause 6, GRUNDFOS may take possession of Products and dispose of them in its own interest, without prejudice to any claim it may have for any loss resulting from such re-sale, and the Credit Limit available to the Customer may be withdrawn by GRUNDFOS at any time thereafter.
13.1 Subject to clauses 13.2 and 13.3, if GRUNDFOS breaches its obligations under these Terms and Conditions, the Customer is entitled to claim damages in accordance with applicable law.
13.2 Subject to Clause 13.4, for Products and Service Offerings which are not supplied under a Consumer Contract GRUNDFOS’ total aggregate liability in respect of all losses or damages arising out of or in connection with the purchase, use or performance of Products or Services or in connection with these Terms and Conditions or a breach hereof, whether in contract, tort (including negligence), breach of statutory duty or otherwise, in respect of each event or series of connected events will not exceed the total price paid by the Customer for the purchase of Products/Services in dispute.
13.3. Subject to Clause 13.4, Grundfos shall not be liable, in contract, tort (including negligence), breach of statutory duty or otherwise, for loss of production, loss of turnover, loss of profit, loss of business opportunity, loss of data, loss of savings, loss of goodwill or any other indirect or consequential losses of any kind whatsoever arising under or in connection with the agreement or a breach hereof.
13.4 The limitations set out herein shall not apply in case of wilful misconduct or gross negligence.
13.5 GRUNDFOS shall not be held liable for damage caused by Products modified or in any other way changed by the Customer.
13.6 The Customer will indemnify GRUNDFOS and keep GRUNDFOS fully and effectively indemnified against any loss of or damage to any property or injury to or death of any persons caused by any negligent act or omission or wilful misconduct of the Customer, its employees, agents or sub-contractors or by any breach of its contractual obligations arising out of or in connection with Product/Service supply or execution of these Terms and Conditions.
13.7 In the event that GRUNDFOS is held liable to compensate a third party for any damage or loss which is exempted from GRUNDFOS’ liability, GRUNDFOS shall be indemnified by the Customer for any expenses hereto.
13.8. To the extent permitted by law, any delivery and service response times stated by GRUNDFOS are approximate only and GRUNDFOS will not be liable for any direct or indirect loss or damage arising from its failure to meet such response times.
13.9 Any typographical, clerical or other error or omission in sales literature, Quotation, Price List, Purchase Order Confirmation, invoice or other documents or information issued by GRUNDFOS will be subject to correction without any liability on the part of GRUNDFOS.
14. USE OF PRODUCTS
14.1 GRUNDFOS Products are designed for specific applications and purposes to work under certain operating conditions, including, but not limited to, site/environmental conditions (if any) and water quality (if applicable). The Customer agrees to only use the Product in accordance with Product manual and any specified operating conditions. Customer's use of the Product other than in accordance with GRUNDFOS installation-, operation-, maintenance- or service manual may damage the Product. Such use may adversely affect the Customer's rights.
14.2 GRUNDFOS is not responsible for the design of the hydraulic systems in which the Product is installed, and, therefore, cannot guarantee the Product will be able to meet its specifications in the actual application or its fitness for purpose. Any reference to the fitness for intended purpose or suitability with respect to Products or Services in any of contract documents shall be understood as compliance with GRUNDFOS specifications in stipulated operating conditions, including water quality (if applicable). Material compatibility is not the responsibility of GRUNDFOS. GRUNDFOS will supply standard material if material request is not specified by the Customer.
14.3. Customer warrants and represents that it understands what a 'duty point' is insofar as it relates to GRUNDFOS Products. If the Customer re-sells GRUNDFOS Products, it must explain what a 'duty point' is to its buyers. GRUNDFOS under no circumstances can be held responsible for the fitness for purpose of a re-sold Product, even if it has provided advice upon Customer’s request.
15.1 GRUNDFOS warrants that the Products are free from defects. A Product is defective if it is not delivered in accordance with the agreement of the parties due to faulty material, design or workmanship.
15.2 Not covered by the warranty is damage due to ordinary wear and tear; use of Product for applications for which they are not intended; modifications, alterations or repair of the Product undertaken by the Customer or a third
party (not acting on GRUNDFOS’ behalf); failure to follow GRUNDFOS’ instructions (whether oral or in writing); installation, commissioning, operation (e.g. use of the Product outside its specifications) or maintenance not in accordance with GRUNDFOS installation-, operation-, maintenance- or service manual; use of faulty or inadequate ancillary equipment in conjunction with the Product; the application of spare parts of poor quality (excluding the application of any GRUNDFOS original spare parts); accidental or wilful damage or misuse of the Product by Customer or third party (not acting on GRUNDFOS’ behalf); and Customer/end user’s or its own Product’s non-compliance with applicable law and regulation.
15.3 This is a limited manufacturer’s warranty of 24 (twenty-four) months from the date of delivery the Product to the Customer. If a Product is re-sold by the Customer, the manufacturer’s warranty period is 24 (twenty-four) months from the date of purchase by the end user however not exceeding 36 (thirty-six) months from the date of delivery the Product to the Customer. Any warranty exceeding the foregoing shall be Customer’s responsibility and at Customer’s
15.4 Customer must give notice to GRUNDFOS at firstname.lastname@example.org or in writing at 515 South Road, Regency Park SA 5010 of any defects without undue delay after the Customer became or should have become aware hereof. The notice shall include a description of the problem, Product number, serial number (if applicable) and a date of purchase.
GRUNDFOS must remedy defective (parts of) Products by - at its discretion
- repairing or replacing (in whole or part) the defective (part of the) Product
Product must be returned to GRUNDFOS workshop at 515 South Road, Regency Park SA 5010 with a proof of purchase if requested by GRUNDFOS. GRUNDFOS may decide - at its discretion - to repair or replace defective Products at Customer or a third party’s site. In this case, the Customer shall pay for a service visit to the site. Submersible pumps must be removed from wet wells and similar structures by the Customer/end user and at Customer/end user’s expense prior to inspection.
15.5 Repair or replacement will be at GRUNDFOS’ own cost, however:
i) All cost and expenses related to transport of (parts of) Products from place of delivery or from Customer’s or third party’s site to GRUNDFOS’ workshop as well as any costs and expenses for dismounting and mounting and de-/re-installation and transport of GRUNDFOS’ personnel to Customer’s or third party’s site shall be at Customer’s account.
ii) All cost and expenses related to transport of GRUNDFOS’ personnel and
(parts of) Products from GRUNDFOS’ workshop back to Customer’s or third party’s site shall be at Grundfos’ account if it shows that the Product subject to repair or replacement suffers from defects covered by GRUNDFOS warranty.
iii) All costs and expenses related to defect rectification and transport of GRUNDFOS’ personnel and (parts of) Products to and from GRUNDFOS’ workshop back to Customer or third party’s site shall be at Customer’s account, irrespective of who is the owner in fact of the Product, if it shows that the Product subject to repair or replacement did not suffer from any defects covered by GRUNDFOS warranty. In these circumstances, GRUNDFOS will await a Purchase Order from the Customer, which shall cover any costs and expenses related to defect rectification, prior to service. Such payment is to be based on GRUNDFOS’ pricelists and shall cover any costs and expenses related to such service.
15.6 The Product may not be disassembled prior to remedy. Any failure to comply herewith will render the warranty null and void. Customer must at its expense clean the Goods and inform GRUNDFOS about all poisonous media or other dangerous liquids which have been in contact with the returned Goods. GRUNDFOS reserves the right not to remedy Products polluted by poisonous media or other liquids injurious to the environment or people.
15.7 In case of remedy of defects, the warranty period related to the Product as such remains the same after remedy, however:
i) if part of a Product is repaired or replaced, the warranty period concerning such repaired/replacement parts is 12 (twelve) months from the date of repair or replacement, and
ii) if the whole Product as such (e.g. a pump) is replaced, a new warranty period of 24 (twenty-four) months from the date of replacement.
15.8 To the extent permitted by law, the remedy of repair or replacement is the sole and exclusive remedy of the Customer with respect to defective Products. Subject to GRUNDFOS’ obligations as regards GRUNDFOS liability, GRUNDFOS will have no other or further liability to the Customer whether for breach of agreement, negligence or otherwise in respect of any defect in a Product.
15.9 If GRUNDFOS breaches its obligations under the agreement, the Customer is entitled to claim damages in accordance with applicable law, subject to limitations in Clause 13 of these Terms and Conditions.
15.10 GRUNDFOS Products come with consumer guarantees that cannot be excluded under the Australian Consumer Law. Consumers under the Consumer Contracts are entitled to a replacement or refund for a major failure and compensation for reasonably foreseeable loss or damage. Consumers are also entitled to have Products repaired or replaced if Products fail to be of acceptable quality and the failure does not amount to a major failure. To the extent the Product is not of a kind ordinarily acquired for personal, domestic or household use or consumption, GRUNDFOS liability under this warranty is limited to repair or replacement of the Product in accordance with section 64A of the Australian Consumer Law.
15.11 Customer acknowledges that any warranty given by the Customer to its buyers in relation to the Products (other than the warranty provided in these Terms and Conditions) is not GRUNDFOS warranty and is full responsibility of the Customer. GRUNDFOS will not accept claims under any such warranty and will not be liable to the Customer or any third party with respect to any Customer warranty.
15.12 Where possible, the Customer must assist its buyers with respect to consumer guarantees and warranty. Customer must inform GRUNDFOS at email@example.com or in writing at 515 South Road, Regency Park SA 5010 of any claim received under consumer guarantees. Any actions with regard to consumer guarantees and this warranty requested by a third party can be undertaken by the Customer only after GRUNDFOS written approval. Customer is entitled to compensation if it has repaired or replaced a faulty Product at Customer’s cost under these warranty conditions or where it is required by Australian Consumer Law.
15.13 The terms of this warranty may be inconsistent with the warranty statement in the Product manual. To the extent of any inconsistency, the terms of these Terms and Conditions shall prevail.
16.1. Use of GRUNDFOS Extranet is subject to Extranet Terms and Conditions available at http://au.grundfos.com/nav/extranet.html. The Customer must accept Grundfos Extranet Contract before it starts using Grundfos Extranet. Customer is responsible for proper use of its Extranet account. Orders placed via Extranet under Customer’s account are considered to be duly placed by the Customer under these Terms and Conditions and must be paid in full.
16.2. Customer who wishes to use GRUNDFOS trademark for Products promotion at its website, instore or otherwise must sign and comply with Grundfos Trademark Agreement before GRUNDFOS trademark might be used by the Customer.
16.3. If Customer is involved in online sales of GRUNFDOS Products via Customer’s website with eCommerce capabilities or via third party/merchant shopping sites (e.g. EBay, Gumtree etc.), those sales are subject to Grundfos Online Selling Policy available at http://au.grundfos.com/navfooter/legal-issues.html. Grundfos, at its sole and absolute discretion, can revise Customer’s discounts (if applicable) and/or suspend Customer’s account in case of incompliance with Grundfos Online Selling Policy.
16.4. Customer who participates in GRUNDFOS Field Warranty Program must sign and comply with Field Warranty Agreement.
17. GOVERNING LAW
17.1. Any Contract made between GRUNDFOS and the Customer under these Terms and Conditions shall be deemed to have been made in South Australia and will be governed by the laws of South Australia. The parties submit to the exclusive jurisdiction of the courts of South Australia.
18. DISPUTE RESOLUTION
18.1. If any dispute or difference arises in connection with the Contract or these Terms and Conditions, then the parties will use their best endeavours to resolve the dispute or difference expeditiously, in accordance with this clause 18 before initiating any court or arbitration proceedings.
18.2. Any dispute or difference will be referred in writing to a senior representative appointed by each party who will attempt to meet and resolve the dispute by negotiation in good faith within 28 business days of one party notifying the other of the existence of the dispute.
18.3. If the senior representatives of the parties fail to resolve the dispute within 28 business day after the first meeting, the parties agree to refer the dispute to a mediator to be mutually agreed. If parties are in default of agreement within 28 business days of either party requesting the other to agree a mediator, the mediator shall be appointed by the President for the time being of the Law Society of South Australia. The mediation is to be held within 21 Business Days of the appointment of the mediator, and the parties will pay equal shares of the mediator's fees, unless otherwise agreed.
18.4. If the mediation does not proceed within the agreed timetable or is not successful in resolving the dispute, each party is free to commence legal proceedings to resolve the dispute.
18.5. Nothing in this clause 18 prevents a party from seeking urgent interlocutory relief.
19.1 The Customer must not assign or otherwise transfer any of its rights and obligations under these Terms and Conditions whether in whole or in part without the prior written consent of GRUNDFOS. Any such unauthorised assignment will be deemed null and void.
19.2 If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and Conditions and the remainder of the provisions in
question will not be affected.
19.3 No failure or delay on GRUNDFOS’ part in exercising any power or right under these Terms and Conditions operates as a waiver, nor does any single or partial exercise of any power or right preclude any other or further exercise, or the exercise of any other power or right.
19.4. The relationship between the Customer and GRUNDFOS is that of independent contractors.
19.5 In the interpretation of these Terms and Conditions or any part of it, no rule of construction shall apply to the disadvantage of the party on the basis that that the party: (a) prepared these Terms and Conditions or any part of it; or (b) seeks to rely on these Terms and Conditions or any part of it.
19.6 All notices, approvals, consents, requests or demands required or permitted to be given under these Terms and Conditions shall be in writing and shall be deemed sufficiently given three (3) business days after sent by registered mail or certified mail return receipt requested, or one (1) business day after transmitted by telefax, or the same business day if sent via email before 5.00pm on a business day, otherwise on the next business day.
20. EXPORT CONTROL
20.1. The Customer undertakes to comply with applicable export control and trade sanction laws and regulations, including but not limited to those of the European Union (EU) and the United States of America (U.S.) and delivery from GRUNDFOS is conditioned upon such compliance.
20.2. GRUNDFOS shall not have any direct or indirect liability whatsoever (in contract, tort (including negligence), breach of statutory duty or otherwise) , if and to the extent: i) GRUNDFOS due to any export control and trade sanctions rules (including any action executed as a consequence hereof) is prevented from doing business with
the Customer or any end-user or ii) any export control and trade sanctions rules (including any action executed as a consequence hereof) restricts or
delays GRUNDFOS’ delivery of the Products.