CIVIQ PTY LTD (ACN 626 744 367) (“CIVIQ™”)
Trading Terms and Conditions For Sale of Goods
These Trading Terms & Conditions (“Terms”) apply (unless otherwise previously agreed in writing) to the supply of Goods by CIVIQ™ to a Customer from time to time. Any supply of Goods by CIVIQ™ to the Customer made after the date of acceptance of these Terms is a supply pursuant to the supply agreement constituted by these Terms and the relevant order accepted by CIVIQ™ and any such supply does not give rise to a new or separate agreement. Attachment of or reference to these Terms in an email from CIVIQ™ to the Customer to which the Customer sends an email in response thereto is deemed acceptance of these Terms.
In these Terms unless the contrary intention appears:
“Additional Charges” includes all delivery, handling and storage charges, goods and services tax, stamp duty, interest, legal and other costs of recovery of unpaid money and all other government imposts and all money, other than the Purchase Price, payable by the Customer to CIVIQ™ arising out of the sale of the Goods.
“Customer” means the person to or for whom the Goods are to be supplied by CIVIQ™.
“Goods” means the goods sold to the Customer by CIVIQ™ and includes any services provided by CIVIQ™ to Customer
“CIVIQ™” means CIVIQ PTY LTD (ACN 626 744 367)
“PPSA” means the Personal Property Securities Act 2009 (Cth)
“Purchase Price” means the list price for the goods as charged by CIVIQ™ at the date of delivery or such other price as may be agreed by CIVIQ™ and the Customer prior to delivery of the Goods.
- Quotation and Order for Goods
2.1 Any quotations given by CIVIQ™ are subject to acceptance within 30 days of being given. After then, they will not be binding on CIVIQ™.
2.2 An order given to CIVIQ™ is binding on CIVIQ™ and the Customer, if:
- 2.2.1 CIVIQ™ has sent a sales confirmation to the Customer; or
- 2.2.2 the Goods are supplied by CIVIQ™ in accordance with the order
2.3 An acceptance of the order by CIVIQ™ is then to be an acceptance of these Terms by CIVIQ™ and the Customer and these Terms will override any conditions contained in the Customer’s order. CIVIQ™ reserves the right to accept a part only of any order by notifying the Customer in writing or by delivering the Goods to the Customer. No order is binding on CIVIQ™ until accepted by it.
2.4 An order which has been accepted in whole or in part by CIVIQ™ cannot be cancelled by the Customer without obtaining the prior written approval of CIVIQ™, which it may refuse in its absolute discretion.
2.5 Any variation in the order details, sizes and quantities, location of installation of works, delivery instructions or any other specification on which the quotation or order is determined, CIVIQ™ reserves the right to amend the price accordingly.
2.6 If any variations are made pursuant to clause 2.5, the Customer agrees to pay the variation in price and any additional costs and fees including an administration fee of $200.00 and any other payment resulting out of the variation of works.
3.1 CIVIQ™ does not warrant the accuracy of any information contained in its Safety Data Sheets.
3.2 CIVIQ™’s liability is limited to, to the extent permissible by law and at CIVIQ™’s option;
3.2.1 in relation to the Goods:
i. the replacement of the products or the supply of
ii. the repair of the products
iii. the payment of the cost of replacing the products or of acquiring equivalent products; or
iv. The payment of the cost of having the products repaired
3.2.2 Where the Goods are services:
i. The supply of service again; or
ii. The payment of the cost of having the services supplied again
3.3 Any claims to be made against CIVIQ™ for short delivery of Goods must be lodged with CIVIQ™ in writing within 7 days of the delivery date.
3.4 To the extent permitted at law, all other warranties whether implied or otherwise, not set out in these Terms are excluded and CIVIQ™ is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate Customer for:
3.4.1 any increased costs or expenses;
3.4.2 any loss of profit, revenue, business, contracts or anticipated savings;
3.4.3 any loss or expense resulting from a claim by a third party; or
34.4 any special, indirect or consequential loss or damage of any nature whatsoever caused by CIVIQ™’s failure to complete or delay in completing the order to deliver the Goods
3.5 CIVIQTM’s warranty does not extend to any claim arising out of damages caused by the act, omission or negligence of the Customer or any third party.
4.1 The times quoted for delivery are estimates only and CIVIQ™ accepts no liability for failure or delay in delivery of Goods. The Customer is not relieved of any obligation to accept or pay for Goods by reason of any delay in delivery. Goods may be delivered by instalments at the discretion of CIVIQ™.
4.2 Risk in accepting the Goods passes on delivery to the Customer. Where the Customer arranges its own transportation of the Goods, risk in the Goods passes upon collection by the Customer’s agent from CIVIQ™.
4.3. All Additional Charges are payable by the Customer in addition to the Purchase Price of the Goods.
4.4. CIVIQ™ is entitled to charge for any returnable containers and the Customer will be responsible for making those containers available for collection by CIVIQ™ within a reasonable time, being no later than 6 months, after their delivery to the Customer
4.5 Return of Goods will not be accepted by CIVIQ™ except by prior agreement in writing with CIVIQ™. Any Goods returned will be subject to a restocking charge of 20% of the Purchase Price of those Goods. The restocking charge is payable by the Customer.
- Price and Payment
5.1 The Customer must pay the Purchase Price and the Additional Charges to CIVIQ™.
5.2 The Customer must pay part payments or a deposit of the Purchase Price in accordance with the quotation for the goods to CIVIQ™.
5.2 If the Customer is in default or fails to make payment when a deposit or balance of the invoice is due and payable, CIVIQ™ may at its sole and discretionary option, do one or more of the following:
5.2.1 withhold deliveries to the Customer;
5.2.2 cancel a contract without prejudice to any of its existing rights.;
5.2.3 charge interest on the outstanding balance at a rate of 1.5% per month or part of a month from the due date for payment until full payment is received by CIVIQ™;
5.2.4 lodge a caveat over any charged property of the Customer pursuant to clause 5.4;
5.2.5 lodge a caveat over any charged property or security pursuant to any guarantee or Credit Application provided to CIVIQ™; and/or
5.2.6 Charge any additional charges to the Customer.
5.3 Unless otherwise agreed in writing, payment of the goods is required prior to delivery.
5.4 The Customer expressly agrees that if the Customer is in default of any payments owing to CIVIQ™ pursuant to clause 5.2, this creates an equitable interest over all real and/or personal property in the Customer’s name (held in its name or jointly). The Customer expressly authorises CIVIQ™ to lodge a caveat over any real and/or personal property in the Customer’s name.
5.5 All amounts payable by the Customer under these Terms must
be paid without set-off or counter claim of any kind.
- Retention of Title
6.1 Ownership, title and property of the Goods remains with CIVIQ™ until payment in full for the Goods and all sums due and owing by the Customer to CIVIQ™ on any account has been made. Until the date of payment:
6.1.1 the Customer has the right to sell the Goods in the ordinary course of business;
6.1.2 until the Goods have been sold by the Customer in the ordinary course of the Customer’s business, the Customer holds the Goods as bailee for CIVIQ™;
6.1.3 the Goods are always at the risk of the Customer.
6.2 The Customer is deemed to be in default immediately upon the happening of any of the following events:
6.2.1 if any payment to CIVIQ™ is not made promptly before the due date for payment;
6.2.2 if the Customer ceases to carry on business or stops or suspends payment or states its intention of so doing or is unable to pay its debts as they fall due or if any cheque or bill of exchange drawn by the Customer payable to CIVIQ™ is dishonoured;
6.3 In the event of a default by the Customer, then without prejudice to any other rights which CIVIQ™ may have at law or under this agreement:
6.3.1 CIVIQ™ or its agents may without notice to the Customer enter the Customer’s premises or any premises under the control of the Customer for the purposes of recovering the Goods.
6.3.2 CIVIQ™ may recover and resell the Goods;
6.3.3 if the Goods cannot be distinguished from similar Goods which the Customer has or claims to have paid for in full, CIVIQ™ may in its absolute discretion seize all goods matching the description of the Goods and hold same for a reasonable period so that the respective claims of CIVIQ™ and the Customer may be ascertained. CIVIQ™ must promptly return to the Customer any goods the property of the Customer and CIVIQ™ is in no way liable or responsible for any loss or damage to the Goods or for any loss, damage or destruction to the Customer’s business howsoever arising from the seizure of the Goods.
6.3.4 In the event that the Customer uses the Goods in some manufacturing or construction process of its own or some third party, then the Customer must hold such part of the proceeds of sale of such manufacturing or construction process as relates to the Goods in trust for CIVIQ™. Such part will be an amount equal in dollar terms to the amount owing by the Customer to CIVIQ™ at the time of the receipt of such proceeds. The Customer will pay CIVIQ™ such funds held in trust upon the demand of CIVIQ™.
7.1 Defined terms in this clause have the same meaning as given to them in the PPSA.
7.2 CIVIQ™ and the Customer acknowledge that these Terms constitute a Security Agreement and entitle CIVIQ™ to claim a Purchase Money Security Interest (“PMSI”) in favour of CIVIQ™ over the Collateral supplied or to be supplied to the Customer as Grantor pursuant to these Terms.
7.3 The goods supplied or to be supplied under these Terms fall within the PPSA classification of ”Other Goods” acquired by the Customer pursuant to these Terms.
7.4 CIVIQ™ and the Customer acknowledge that CIVIQ™, as Secured Party, is entitled to register its Security Interest in the Collateral supplied or to be supplied to Customer pursuant to these Terms on the PPS Register.
7.5 To the extent permissible at law, the Customer:
7.5.1. waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer to CIVIQ™.
7.5.2 agrees to indemnify CIVIQ™ on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the;
126.96.36.199 registration or amendment or discharge of any Financing Statement registered by or on behalf of CIVIQ™; and
188.8.131.52 enforcement or attempted enforcement of any Security Interest granted to CIVIQ™ by the Customer;
7.5.3 agrees that nothing in sections 130 and 143 of the PPSA will apply to these Terms or the Security under these Terms;.
7.5.4 agrees to waive its right to do any of the following under the PPSA:
184.108.40.206 receive notice of removal of an Accession under section 95;
220.127.116.11 receive notice of an intention to seize Collateral under section 123;
18.104.22.168 object to the purchase of the Collateral by the Secured Party under section 129;
22.214.171.124 receive notice of disposal of Collateral under section 130;
126.96.36.199 receive a Statement of Account if there is no disposal under section 132(4);
188.8.131.52 receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.
184.108.40.206 receive notice of retention of Collateral under section 135;
220.127.116.11 redeem the Collateral under section 142; and
18.104.22.168 reinstate the Security Agreement under section 143.
7.5.5 All payments received from the Customer must be applied in accordance with section 14(6)(c) of the PPSA.
The Customer agrees that upon the on-sale of any Goods to third parties, it will:
8.1 inform any third party involved of these Terms;
8.2 inform any third party of CIVIQ™’s product warranties if any; and
8.3 not make any misrepresentations to third parties about the Goods.
8.4 be liable for any claim arising out of the Customer breaching clause 8.3 above which includes but is not limited to any loss of future income or damage to the Customer’s goodwill.
To the full extent permitted by law, the Customer will indemnify CIVIQ™ and keep CIVIQ™ indemnified from and against any liability and any loss or damage CIVIQ™ may sustain, as a result of any breach, act or omission, arising directly or indirectly from or in connection with any breach of any of these Terms by Customer or its representatives.
- Electronic Communications and Terms Acceptance
10.1 The Customer agrees to electronically receive and be contractually bound by any and all documents from CIVIQ™.
10.2 CIVIQ™ may provide these Terms to the Customer in physical or electronic form (including but not limited to PDF, word and/or excel) to the Customer’s email address.
10.3 The Customer is deemed to have electronically accepted these Terms if the Customer sends a reply email to CIVIQ™’s email (set out in Clause 10.2) with any content that does not include express instructions that the Customer wishes to cancel the Order.
11.1 These Terms are to be construed in accordance with the laws from time to time in the State of New South Wales and the Commonwealth of Australia. The parties submit to the nonexclusive jurisdiction of the Courts of New South Wales, Australia and any courts which may hear appeals from those courts in respect to any proceedings in connection with these Terms.
11.2 These Terms contain all of the terms and conditions of the contract between the parties and may only be varied by agreement in writing between the parties.
11.3 Any conditions found to be void, unenforceable or illegal may, to that extent be severed from the Agreement.
11.4 No waiver of any of these Terms or failure to exercise a right or remedy by CIVIQ™ will be considered to imply or constitute a further waiver by CIVIQ™ of the same or any other term, condition, right or remedy.