Geomotion (Australia) Pty Ltd
ABN 15 109 816 846
Last Updated: 4 December 2023
1. BASIS OF CONTRACT
The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions of Sale, Supplier Quotation and any other document referred to in that Quotation to form the Contract between Supplier and Customer.
The Contract constitutes the entire agreement between the parties and supersedes all previous communications, whether oral or written, relating to the subject matter of the Contract. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier that is not set out in the Contract.
The Supplier Conditions of Sales apply to the exclusion of any other agreement or conditions of purchase or other terms that the Customer may submit with an Order or otherwise to the Supplier. For the avoidance of doubt, any terms or conditions contained in, issued with or printed on any order (including the Order), letter of acceptance or the like issued by the Customer do not form part of the Contract and are of no effect whatsoever. The Supplier may amend these Conditions at any time at its discretion.
Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified. Special terms may apply in respect of software support services and/or other specific services if agreed between the parties (Special Terms).
Prices are subject to changes, the Price applies to the scope of supply specified or referenced by the Client. Any changes to the scope of supply requires written approval by both parties. The Supplier may by written notice increase the Price (including all prices specified in any Schedule of Rates) once per annum on the anniversary of the agreement, by increases in the CPI (all groups, eight capital cities) since the later of the date of the Suppliers submission and the last CPI increase.
Any quotation given by the Supplier shall not constitute an offer capable of acceptance until confirmed in writing by the Supplier. It is only valid for a period of 30 days from the date of issue unless the Supplier agrees in writing to extend that period.
The price for the Goods shall be the price set out in the valid quotation. The price of the Goods is exclusive of all costs and charges of packaging, insurance, transport of the Goods, unless specifically quoted.
The charges for Services shall be on a time and materials basis as agreed between the Customer and Supplier prior to any Services bring provided:
a) The charges shall by calculated in accordance with the Supplier’s standard daily fee rates, as set out in the quotation;
b) The number of hours in one working day shall be 10 hours or as otherwise agreed in writing between the Customer and Supplier;
c) If the number of agreed hours is exceeded, the Supplier shall be entitled to charge overtime rates on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours as follows:
- An addition 100% on the standard daily fee rate for work carried out on week days or week nights (Monday to Friday).
- An addition 100% on the standard daily fee rate for work carried out on Saturday or Sunday.
The Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
In respect of Goods and/or Services, the Supplier shall invoice the Customer on or at any time after completion of delivery or the Goods and/or Services.
The Customer shall pay each invoice submitted by the Supplier:
(a) within 30 days of the date of the invoice;
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier; and
(c) time for payment shall be of the essence of the Contract.
The price for the Goods and/or charges for the Services shall be inclusive of all taxes in connection with the supply of the Goods and/or Services imposed in the country of Supplier (excluding GST (or any sales or value added tax or goods and services tax or the like), which will be added to the price for the Goods or charges for the Services). The Customer shall be responsible for all taxes in connection with the supply of Goods and/or Services imposed in the country of the Customer (if different country from that of Supplier) and shall reimburse Supplier accordingly.
If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount. The interest rate shall be the rate of overdraft facilities for that amount of moneys determined by the Westpac Banking Corporation on the date the moneys become outstanding plus 3%. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
5. DELIVERY OF GOODS
Delivery of the Goods shall be completed on fulfilment of the Supplier’s obligation under the INCOTERM referred to in the quotation. In absence of a written agreement the Goods are made available EXW (Ex Works) under INCOTERMS 2010.
Any dates quoted for delivery of the Goods are approximate only and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
If the Customer fails to accept or take delivery of the Goods within 7 Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:
a) delivery of the Goods shall be deemed to have been completed at 9:00 am on the 10th Business Day following the day on which the Supplier notified the Customer that the Goods were ready and the Supplier shall be entitled to raise an invoice in respect of the Goods deemed delivered; and
b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including, without limitation, insurance, unloading and additional transportation). The Supplier shall have the right to charge at least 0.5% of the invoiced value of the stored Goods monthly for storage at the Supplier’s premises. If storage at third party’s premises is required, the costs incurred shall be borne by the Customer.
If 28 Business Days after the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods for which the Customer will be liable to pay as a debt immediately due and payable.
Delivery shall in every case be deemed to be delivered to the Customer and accepted by Customer, whether or not the Customer is present at the time of delivery to sign a receipt for such goods.
Where goods need packing for transportation, that packing will be suitable for transportation of the goods by road. Special packing such as fumigated cases will only be provided where quoted and ordered.
7. QUALITY OF GOODS
The Suppler warrants that on delivery, and for a period of 12 months from the date of delivery (Warranty Period) the Goods shall conform in all material respects with their description and be free from material Defects in design, material and workmanship (the Warranty).
The Customer must give notice in writing during the warranty period, within a reasonable time of discovery that some or all of the Goods do not comply with the Warranty. The Supplier must be given a reasonable opportunity of examining such Goods. The Customer (if asked to do so by the Supplier) must return such Goods to the Supplier’s place of business at the Customer’s cost for testing. If in the reasonable opinion of the Supplier, the Goods do not comply with the Warranty, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full and refund the costs of returning the Goods to the Supplier.
Despite any provision to the contrary, to the maximum extent permitted by law, the Supplier shall not be liable for any defect in the Goods if:
a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 7.
b) the defect arises because the Customer failed to follow the Supplier’s instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
c) the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer;
d) the Customer alters or repairs (or engages a third party to alter or repair) such Goods without the written consent of the Supplier;
e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
f) the Customer has failed to make payment in full for the Goods.
Any warranties (or guarantees) that may be implied by any laws are excluded to the extent permitted by law. However, nothing herein shall limit those provisions of the Australian Consumer Law or other applicable laws which imply warranties (or guarantees) which cannot be excluded, restricted or modified. If these laws apply then to the extent Supplier is entitled to do so, its liability under those provisions is limited at its option in the case of Goods to replacement or repair of the Goods (or paying the cost of doing so) and in the case of Services to resupply of the Services (or payment of the cost of doing so).
If the Customer is acquiring Goods or Services as a “consumer” as defined in the Australian Consumer Law, then the following mandatory consumer guarantee text applies subject to the above paragraph:
Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failure with the service, you are entitled:
- to cancel your services with us; and
- to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or services does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund for any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or services.
8. TITLE AND RISK
Unless otherwise agreed in writing, risk in the Goods shall pass to the Customer on delivery in accordance with the INCOTERM referred to in the Quotation (in the absence of written agreement to the contrary) or, if none are specified, when the Goods are passed to a carrier for delivery irrespective of any duties which the Supplier may have undertaken with regard to packing, delivery, erection, installation or assembly.
Title, interest and all right to the Goods shall not pass to the Customer until the earlier of the Supplier receiving payment in full (in cleared funds) for the Goods and any other goods and services that the Supplier has supplied to the Customer, in which case title to the Goods shall pass at the time of payment of all such sums.
The Customer hereby acknowledges that the Contract constitutes a security agreement which creates a security interest in favour of the Supplier in all goods or services supplied by the Supplier to the Customer (if any) and all after acquired goods and/or services supplied by the Supplier to the Customer (or for the Customer’s account) to secure the Customer’s payment obligations to the Supplier from time to time and at any time, including future advances. The Customer agrees that this security interest constitutes a “Purchase Money Security Interest” under the PPSA . The Supplier may register its “Purchase Money Security Interest” under the PPSA. The Customer must provide the Supplier with all reasonable assistance to enable the Supplier register its interest under the PPSA and to maintain and perfect its interest.
To the extent permitted by law, the following provisions of the PPSA do not apply, and for the purposes of s115 of the PPSA are contracted out of this Agreement: Section 95 (notice of removal of accession, to the extent that it otherwise requires Supplier to give a notice to the Customer), section 130 (notice of disposal, to the extent that it otherwise requires Supplier to give a notice to the Customer), section 132(3)(d) (statement of account), section 132(4) (statement of account if no disposal), section 135(1)(a) (notice of retention, to the extent that it otherwise requires Supplier to give notice to the Customer), and section 143 (reinstatement).
9. SUITABILITY OF SUPPLIES
Any description of Supplies given by the Supplier is for the purposes of identification only and the Customer acknowledges that any sale of Supplies under these terms is not a sale by description.
The Customer acknowledges that it relies entirely upon its own knowledge, skill and judgment and that of its agents and employees in selecting and ordering Supplies from the Supplier. The Seller will not provide any advice, express or implied, as to whether particular supplies are fit for any purpose, unless expressly agreed in writing signed by the Supplier. This includes, but not limited to, suitability, compatibility and integration of various technologies.
10. SUPPLY OF SERVICES
The Supplier shall provide the Services to the Customer in accordance with the Service Specification in all material respects.
The Supplier shall use reasonable endeavours to meet any performance dates for the Services, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event. The Customer acknowledges and agrees that where the Services are varied or changed the costs of providing the Services increase, the Customer must pay the Supplier the additional costs and expenses it suffers or incurs as a debt due and immediately payable to the Supplier.
The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
If within 24 hours after completion of the Services, the Customer have notified us in writing of any fault, defect or error in the Services, which is caused by a breach of these Conditions by us (Omission), along with a description of the relevant Omission, we will at our own cost:
a) remedy the Omission;
b) if we are unable to remedy the Omission, offer the Customer a choice of a credit or a refund with respect to that part of the price applicable to the Omission.
The Supplier shall be entitled to a reasonable extension of time for the performance of its obligations under the Contract in the following circumstances:
a) any change or variation to or in the Goods or Services to be supplied under the Contract;
b) change in law or any delays of any government or statutory authorities;
c) any act or omission of the Customer or any of its contractors, consultants, representatives or agents;
d) any Force Majeure Event;
e) any obstruction or site conditions that could not have been expected by an experienced contractor performing the Services;
f) any unusual weather conditions affecting the performance the Services; or
g) any delay in the performance of the Services due to the Customer’s failure to comply with the Contract .
The Customer may not vary the Goods and/or Services and the Supplier shall not be obliged to carry out any variation, unless the Supplier agrees to such variation in writing. Unless otherwise agreed, any variation to the Goods and/or the Services shall be valued in accordance with any applicable rates or prices set out in the Contract or, if these are not applicable to the work the subject of the variation, the rates or prices usually charged for similar work as advised by the Supplier.
Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 7 days after receipt of notice in writing to do so.
Without limiting its other rights or remedies, the Customer may terminate the Contract on 30 days’ notice by giving such notice in writing to the Supplier, if the Supplier commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 21 days after receipt of notice in writing to do so.
Without limiting its other rights or remedies, the Supplier may, at its discretion; terminate the Contract; suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier with immediate effect by giving written notice to the Customer if:
a) the Customer fails to pay any amount due under this Contract on the due date for payment.
b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
c) the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
d) the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
On termination of the Contract for any reason the following shall survive termination of the contract:
a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
b) the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
c) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry;
d) immediately return to the Supplier all property, including confidential information and intellectual property belonging to the Supplier or its agents, employees or contractors, in the Customer’s (or its agents, employees or contractors) possession; and
e) not disparage or otherwise make any unfavourable statements or comments regarding the Supplier (or its agents, employees or contractors) regarding the Supplier (or its agents, employees or contractors) either directly or by implication, verbally or in writing.
15. FORCE MAJEURE EVENT
For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, pandemic, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
If the Force Majeure Event prevents the Supplier from providing any of the Services and/or Goods for more than 12 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
The Customer will at all times indemnify the Supplier, and the Supplier’s officers, employees and agents (“those indemnified”) from and against any loss or liability, including legal costs and expenses, suffered or incurred by any of those indemnified arising from any claim against those indemnified where the claim if referable to:
a) A breach by the Customer of its obligations under these Terms and Conditions
b) Any wilful, unlawful, or negligent act or omission of the Customer; or
c) Loss or damage of a type for which the Supplier would not have been liable to the Customer had a claim for Defective supplies been made by the Customer under these Terms and Conditions.
The total aggregate liability of the Supplier to the Customer is limited to the amount equal to the price paid by the Customer under the Contract for the Goods and/or Services from which the claim arises. In addition, the Supplier shall not be liable for any Consequential Loss.
17. GOVERNING LAW
These terms shall be governed by and construed in accordance with the laws of New South Wales, Australia and the Customer submits to the jurisdiction of the courts of New South Wales, Australia.
18. NOVATION & ASSIGNMENT
The Supplier reserves the right to assign any or all of our rights and obligations under this Agreement. The Customer must not assign their rights under this Agreement without prior written consent of the Supplier.
Any performance figures given by the Supplier are based on information supplied to the Supplier by the manufacturers or distributors of various goods or equipment. The Supplier shall be under no liability for damages for failure to attain such figures unless the Supplier has specifically guaranteed them in writing subject always to recognised tolerances applicable to them and any variances based on differing inputs, loads, installation or usage requirements being applied to them.
20. INTELLECTUAL PROPERTY
All intellectual property (including without limitation any trade marks (registered or unregistered), designs, layouts and confidential information copyright in all plans, drawings, designs and text) which are disclosed to the Customer by the Supplier shall be solely owned by the Supplier and shall be delivered up to the Supplier by the Customer immediately on the Supplier’s request. The Customer acknowledges no intellectual property licence is granted by these Terms and Conditions.
The Customer is prohibited from reverse engineering any of the supplies.
The Customer will immediately notify the Supplier of any actual or potential infringement of the Suppliers’ intellectual property rights which comes to the Customer’s attention.
In these Conditions, the following definitions apply:
Australian Consumer Law: Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 as amended from time to time. Where a particular section or term from the ACL is used in this Agreement, it is deemed to be that section or term as amended, renumbered or replaced from time to time.
Business Day: a day other than a Saturday, Sunday or Public Holiday in New South Wales, Australia.
Commencement Date: The date the Customer formally (in writing – by Purchase Order or other) accepts the quotation.
Consequential Loss: means any indirect or consequential loss or damage including but not limited to loss of product or production, loss arising from interruption of production, loss of profit, loss of revenue, loss of data, loss of goodwill, loss of reputation, loss of business opportunities and loss of anticipated savings.
Contract: The contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Customer: The person or firm who purchases the Goods and/or Services from the Supplier as specified in the Quotation.
Defect: means non-compliance with this Contract as a result of the Supplier’s default.
Goods: the goods (or any part of them) set out in the Goods Specification.
Goods Specification: any specification for the Goods, including any relevant plans or drawings that are agreed in writing by the Customer and the Supplier as set out in the Quotation.
INCOTERM means Incoterm 2010 as published by the International Chamber of Commerce.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
PPSA: Means the Personal Property Securities Act 2009 (Cth) as amended from time to time. Where a particular section or term from the PPSA is used in this Agreement, it is deemed to be that section or term as amended, renumbered or replaced from time to time.
Quotation: the Supplier’s quote issued to the Customer.
Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification below.
Service Specification: the description or specification for the Services provided by the Supplier to the Customer as set out in the Quotation.
Supplier: Geomotion (Australia) Pty Ltd, ABN 15 109 816 846, Unit 2, 34 Millrose Drive, Malaga, Western Australia.
End of Conditions
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