Terms and Conditions

1 Definitions

1.1 Definitions

In this document, the following definitions will apply:

Australian Consumer Law or ACL means Schedule 2 to the Competition and Consumer Act 2010 (Cth).

Company means Vivacity Engineering Pty Ltd ACN 001 666 557 ATF Vivacity Engineering Trust ABN 78 305 545 664.

Customer means the party placing an Order with or purchasing Products from the Company.

Order means an offer by a Customer to purchase Products from the Company.

Made to Order or MTO includes any Product that has been specially ordered for a Customer (whether locally or from overseas) or which is specially manufactured for the Customer or is not a stocked item.

PPS Act means the Personal Property Securities Act 2009 (Cth) as varied from time to time.

PPSR refers to the Personal Property Securities Register established under the PPS Act.

Products means the products described in the Order and includes MTO goods and any other goods and if the context allows, services, ordered by the Customer from the Company or supplied by the Company to the Customer.

Ts&Cs means these Terms & Conditions of Trade as varied and applicable from time to time.

2 Sale Terms

2.1 The Ts&Cs shall apply to all supplies between the Company and the Customer including all Orders or other sales and will prevail over all prior conditions previously agreed between the parties and anything proffered by the Customer to which the Company has not expressly agreed in writing.

2.2 The Ts&Cs may be varied from time to time by the Company with variation effected by the Company publishing amended Ts&Cs at megapoxy.com.

.2.3 The Ts&Cs as published on the website, at the time of placing an Order or part of an Order shall apply to such Orders.

3 Order and Acceptance

3.1 Any Order submitted to the Company by a Customer shall be deemed to be made pursuant to the terms of the Ts&Cs.

3.2 The Company may, in its sole discretion, accept any Order in whole or in part by providing confirmation of the Order. Acceptance may be oral or in writing at the Company’s discretion. Accepted Orders may not be varied or cancelled by the Customer without the Company’s written consent and (subject to the conditions set out herein) there is no right of return. Where consent is provided, the Customer may be subject to an Order Cancellation Charge of 20% of the value of the Products Ordered.

4 Price

4.1 The price of the Products (excluding MTOs) shall be as set out in the Price List applicable as at the date of the Order.

4.2 The price of any MTOs will be notified by the Company to the Customer at the time of the Order.

4.3 The Company may charge in addition to the price of the Products an amount for delivery, freight, demurrage and handling at rates dependent on distance and volume of Products supplied.

5 Credit granting and payment

5.1 The Company may accept an Order and allow credit for part or all of its value or may accept an Order and require a deposit or pre-payment as a condition of delivery.

5.2 Credit approval once granted may be withdrawn at any time. Where credit approval has not been granted, or is withdrawn, payment for all Products supplied is required before delivery (cash or cleared funds).

5.3 Where credit has been approved for the Customer, all invoices issued by the Company are due and payable by the date for payment agreed in writing by the Customer and the Company but if no agreement in writing is made then the last business day of the month following the date of the invoice.

6 Credit Policy and Default

6.1 In the event that the Customer fails to make any payment payable pursuant to the Ts&Cs within the payment terms or breaches any of the warranties, obligations or agreements, the Customer shall be in default.

6.2 The Company may charge interest on all amounts not paid by the Customer within the term for payment at a rate of 1.5% per calendar month calculated from the due date and accruing monthly therefrom until the date of payment. If the Customer is in default the Customer must reimburse and indemnify the Company from and against all expenses, costs and disbursements incurred by the Company in pursuing the debt including all reasonably charged legal costs on a ‘solicitor and own client’ basis and the fees charged to the Company by any mercantile agency. If the Customer fails to pay the price by the due date, the Company may at its sole discretion: cancel any provision of credit to the Customer; reverse any rebates and discounts allowed; change credit payment terms including require cash pre-payment for any further Products ordered; provide to a credit reporting agency details of the payment default; commence legal proceedings against the Customer (and any guarantors) for all outstanding amounts, interest and costs; decline to supply Products to the Customer and terminate any other agreement with the Customer; and exercise any other rights at law including pursuant to the PPS Act.

6.3 A certificate of debt signed by a representative of the Company shall be prima facie evidence and proof of money owing by the Customer to the Company at the time of certificate.

7 GST

7.1 The Company reserves the right, on production of a tax invoice, to recover from the Customer any Goods and Services Tax (GST) payable in respect of supply of Products as an additional amount.

7.2 Unless expressly included all amounts expressed or described in any quotation or agreement are GST-exclusive.

8 Delivery

8.1 Delivery of the Products shall be deemed to have taken place when:

(a) the Customer takes possession of the Products at the Company’s address if the Products are collected; or

(b) the Products are delivered at the Customer’s nominated address (in the event that the Products are delivered by the Company or the Company’s nominated carrier). Delivery to any person reasonably appearing to be an employee or agent of the Customer shall be deemed effective; or

(c) the Customer’s nominated carrier takes possession of the Products in which event the carrier shall be deemed to be the Customer’s agent.

8.2 The Company’s nominated address shall be the address specified in the Commercial Account Application Form or agreed in writing by the Company.

8.3 Delivery of Products may not be refused by the Customer after an Order has been accepted by the Company. Where prices are stated as inclusive of delivery, delivery is to the delivery point accepted by the Company.

8.4 The Customer shall make all arrangements necessary to accept delivery of the Products whenever they are tendered for delivery.

8.5 Delivery of Products to a third party or place nominated in any way by the Customer is deemed to be delivery to the Customer pursuant to these Ts&Cs.

8.6 The Company shall not be liable for any loss or damage or expense arising from failure by the Company to deliver the Products at a specified time, promptly or at all and the failure of the Company to deliver at a specific time or at all shall not entitle either party to treat this contract as repudiated.

9 Passing of Risk

The Risk (but not title) in respect of Products sold passes to the Customer immediately on delivery to the Customer, the Customer’s agent or courier as the case may be.

10 Retention of Title to the Products Pending Payment

10.1 Ownership of the Products shall remain with the Company and shall not pass to the Customer until the Company has received in full (cash or cleared funds) all sums due to it in respect of the Products and all other sums which are or which become due to the Company from the Customer on any credit or other account with the Company or pursuant to these Ts&Cs.

10.2 Until ownership of the Products has passed to the Customer, the Customer shall keep the Products in question as fiduciary agent and bailee for and on behalf of the Company and shall store them so that they are separately identifiable from any other goods held by the Customer. The Customer must notify the Company of all premises at which it holds any Products supplied under these Ts&Cs. The Customer must allow the Company to enter on its premises to inspect the Products in its possession on reasonable notice from time to time.

10.3 If:

(a) the Customer fails to pay any amount (whether in part or whole) payable in respect of any Products by the time required for payment; or

(b) the Customer is the subject of an insolvency event (such as receivership, administration or liquidation);

the Company may, without notice to the Customer, enter at any reasonable time any premises where Products are located (or believed by the Company to be located) and take possession of those Products not paid for and any other Products to the value of the amount owing. The Company’s permission to enter the Customer’s premises for that purpose is irrevocable. The Company is not liable to the Customer in contract, tort or otherwise, for any costs, damages, expenses or losses incurred by the Customer as a result of any action taken by the Company under this clause.

11 PPS Act

11.1 Words in italic shall have the meaning and definitions set out in the PPS Act.

11.2 The Customer acknowledges that by virtue of these Ts&Cs the Company has a security interest in the Products for the purposes of the PPS Act and the proceeds of sale of such Products and to the extent applicable, the PPS Act applies to any agreement pursuant to these Ts&Cs.

11.3 The Customer acknowledges that the Company may do anything reasonably necessary, including but not limited to registering any security interest which the Company has over the Products or the purchase money security interest (PMSI) in the Products on the PPSR in order to perfect the security interest and comply with the requirement of the PPS Act. The Customer agrees to do all things reasonably necessary to assist the Company to undertake the matters set out above.

11.4 The Customer waives pursuant to section 157(3)(b) of the PPS Act the right to receive notice of a financing statement, financing change statement or a verification statement in relation to any registration on the PPSR.

11.5 The rights of the Company under these Ts&Cs are in addition to and not in substitution for the Company’s rights under other law (including the PPS Act) and the Company may choose whether to exercise rights under these Ts&Cs, and/or under such other law, as it sees fit.

11.6 The following provisions of the PPS Act do not apply and, for the purposes of section 115 of the PPS Act are ‘contracted out’ of these Ts&Cs in respect of goods that are not used predominantly for personal, domestic or household purposes: (a) sections 95 (notice of removal of accession to the extent it requires Company to give a notice to the Customer), 96 (retention of accession), 125 (obligations to dispose of or retain collateral); (b) section 130 (notice of disposal to the extent it requires Company to give a notice to the Customer); (c) section 132(3)(d) (contents of statement of account after disposal); (d) section 132(4) (statement of account if no disposal; (e) section 135 (notice of retention); (f) section 142 (redemption of collateral); and (g) section 143 (re-instatement of security agreement).

11.7 The following provisions of the PPS Act: (a) section 123 (seizing collateral); (b) section 126 (apparent possession); (c) section 128 (secured party may dispose of collateral); (d) section 129 (disposal by purchase); and (e) section 134(1) (retention of collateral), confer rights on the Company. The Customer agrees that in addition to those rights, the Company shall, if there is default by the Customer, have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any goods, not only under those sections but also, as additional and independent rights, under these Ts&Cs and the Customer agrees that the Company may do so in any manner it sees fit including (in respect of dealing and disposal) by private or public sale, lease or licence.

11.8 The parties agree not to disclose information of the kind that can be requested under section 275(1) of the PPS Act. The Customer must do everything necessary on its part to ensure that section 275(6)(a) of the PPS Act continues to apply. The agreement in this sub-clause is made solely for the purpose of allowing to the Company the benefit of section 275(6)(a) and the Company shall not be liable to pay damages or any other compensation or be subject to injunction if the Company breaches this sub-clause.

11.9 The Customer agrees:

(a) promptly to do all things including signing any further documents and providing any further information which the Company may reasonably require to enable it to perfect and maintain the perfection of its security interest or PMSI (including by registration of a financing statement or financing change statement on the PPSR and the Customer warrants that any such information the Customer provides will be complete, accurate and up-to-date in all respects);

(b) to give the Company not less than 14 days prior notice of any proposed change in the Customer’s name or any other change in the Customer’s details (including, but not limited to, changes in its address, phone or facsimile number and trading name).

11.10 The Customer must not without the Company’s consent specify an order of application of payments made to the Company different to that set out in section 14 of the PPS Act or different to any other order specified by the Company at any time.

12 Intellectual property

The Customer agrees acknowledges that:

(a) The Company owns and retains, and the Customer must not assert any right of any kind to any intellectual property rights in respect of the Products, their design or anything used to make, design or manufacture them.

(b) Nothing in this document transfers any intellectual property rights to the Customer or confers any licence to use any intellectual property rights.

13 Defects, Claims and Returns

13.1 Subject to clause 15:

(a) the Customer accepts that minor defects in the Products do not constitute grounds for a claim or return;

(b) the Customer accepts that MTO Products may not be returned; and

13.2 The Customer will inspect and check all Products received and within 2 days of receipt notify the Company in writing of any shortage in quantity, defect, incorrect specification, damage or Products not in accordance with the Customer’s Order. The Customer is responsible for checking that Products comply with those Ordered prior to use. After use or expiry of the time stated herein the Product shall be deemed to be free from any defect or damage at delivery.

13.3 Subject to clause 15, no credit or replacement will be given unless and until Products returned have been verified as being valid for return or are defective and are returned with a valid RA number. The Company reserves the right to recover its costs where the returned Products prove not to be valid for return or are not defective. Returned Products must be returned to the Company at the Company’s Address stated at the beginning of these Ts&Cs or another address agreed by the Company.

13.4 All freight, handling and other charges in relation to returning Products (other than Products defective or not ordered) are the responsibility of the Customer.

13.5 Subject to clause 15, the Customer shall be liable for a fee on all Products accepted for return (Restocking Fee). The Restocking Fee shall not apply to Products returned for being defective, damaged or for failing to comply with the Order. The current Restocking Fee is 20% of the price of the Products returned.

14 Disputed Charges

14.1 Subject to clause 15, the Customer accepts that minor defects in the Products do not constitute grounds to dispute an invoice or part thereof and the Customer accepts that incomplete installation does not constitute grounds to dispute an invoice or part thereof.

14.2 If the Customer objects to any invoiced item or amount, the Customer may withhold payment of the disputed amount, but only if on or before payment or the due date for payment (whichever occurs first), the undisputed amount of the invoice is paid in full and notice in writing of the dispute is given to the Company, setting out the details of the amount disputed, the reasons for the dispute, and the basis for calculating the disputed amount.

14.3 The Company will investigate all disputes. If the amount is found to be payable (in whole or in part) then the Customer must pay the due amount within 7 days of receiving notice and the basis of the decision. Invoiced amounts that are not objected to in writing within 30 days of the due date will be deemed to be correctly charged and accepted by the Customer and the Customer waives all claims against the Tax Invoice.

15 Warranties, Limitation of Liability and the ACL

15.1 The ACL provides consumers with guarantees that cannot be excluded, restricted or modified. These Ts&Cs does not affect any rights the Customer has under the ACL or any other legal rights which cannot be excluded or modified. However, to the extent permitted by the ACL and subject to any other legal restriction, the Company excludes:

(a) any terms, conditions, warranties, guarantees or other liability that might apply in respect of these Ts&Cs, any Product or anything done under it; and

(b) any liability for any indirect, special, consequential or economic loss or damage whether or not arising from default or negligence by the Company or its employees or agents.

15.2 For goods other than those of a kind ordinarily acquired for personal, domestic or household use or consumption, the Company limits its liability, as permitted by the ACL, at its option to:

(a) the replacement of the goods or the supply of equivalent goods;

(b) the cost of replacing the goods or the cost of acquiring equivalent goods;

15.3 For services other than those of a kind ordinarily acquired for personal, domestic or household use or consumption the Company limits its liability, as permitted by the ACL, at its option, to the re-supply of the services or the payment of the cost of having the services supplied again.

15.4 Subject to this clause 15, the Customer acknowledges and agrees that in entering into an agreement the subject of the Ts&Cs it has not relied in any way on the Company’s representations and that it has satisfied itself as to the suitability of the Product for the Customer’s purposes.

16 Privacy consent

16.1 The Company may give information to third parties about the Customer, its guarantors, directors or proprietors for the following purposes:

(a) to obtain a consumer credit report about the Customer, its guarantors, directors or proprietors;

(b) to allow the credit reporting agency to create or maintain a credit information file containing information about the Customer, its guarantors, directors or proprietors;

(d) to obtain commercial credit information about the Customer, its guarantors, directors or proprietors from a credit reporting agency.

17 General provisions

17.1 These Ts&Cs represents the entire agreement between the parties and no agreement or understanding varying or extending the terms of these Ts&Cs shall be legally binding on either party unless in writing and signed by both Parties or allowed by these Ts&Cs.

17.2 The failure or indulgences by the Company to exercise, or delay in exercising, any right, power or privilege available to it under an agreement the subject of the Ts&Cs will not operate as a waiver thereof or preclude any other or further exercise thereof or the exercise of any right or power and the Company shall be entitled to require strict compliance at all times.

17.3 The Company may serve any notice or Court document on the Customer by hand or by forwarding it by post to the address of the Customer last known to the Company, or where a fax number or an email address has been supplied by the Customer, by sending it to that number or address.

17.4 If any term of an agreement the subject of the Ts&Cs shall be invalid, void, illegal or unenforceable, they shall be severed from the agreement and the remaining provisions shall not be affected, prejudiced or impaired by such severance.

17.5 The Customer may not assign or subcontract any contract for the purchase of Products or its rights or obligations under an agreement the subject of the Ts&Cs.

17.6 The Company may assign, novate or licence or subcontract all or any parts of its rights and obligations hereunder without the Customer’s agreement or consent to any person it sees fit.

17.7 In the event that the Customer sells or otherwise disposes of its business (or any part thereof), the Customer shall be responsible to immediately notify the Company in writing of such sale to enable the account to be closed. If the Customer fails to so notify then the Customer shall be jointly and severally liable with the third party acquiring the business (or part thereof) to the Company for the payment of Products subsequently sold to the third party on the Customer’s account before the Company received such notice as if the Customer had ordered the Products itself.

17.8 An agreement the subject of the Ts&Cs is governed by and will be construed in accordance with the laws of the State of New South Wales, Australia.

17.9 The parties agree to submit to the non-exclusive jurisdiction of the Courts of the State of NSW if the Local Court has jurisdiction the parties consent to the exclusive jurisdiction of the Local Court closest to the Company’s place of business.

17.10 The Company will have no liability to the Customer in relation to any loss, damage or expense caused by the Company’s failure to complete an Order or delivery or contract as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lock out, war or the inability of the Company’s suppliers to supply necessary materials or any other matter beyond the Company’s control or constituting force majeure.