Reticulation Services in Perth
Terms & Conditions of Trade
1.1 “Civic” shall mean Civic Reticulation, its successors and assigns or any person acting on behalf of and with the authority of Civic Reticulation.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Civic to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Equipment” shall mean all Equipment including any accessories supplied on hire by Civic to the Client (and where the context so permits shall include any supply of services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by Civic to the Client.
1.5 “Goods” shall mean all Goods supplied by Civic to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Civic to the Client.
1.6 “Services” shall mean all Services supplied by Civic to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.7 “Price” shall mean the Price payable for the Goods as agreed between Civic and the Client in accordance with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”) and application of these terms and conditions to consumers
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
2.2 Clause 11 (Defects), and clause 12 (Warranty) may NOT apply to the Client where the Client is purchasing Goods or Services not for resale or hire where the Price of the Goods or Services does not exceed $40,000, or where the Price of the Goods or Services does exceed $40,000 and are of a kind ordinarily acquired for personal, domestic or household use or consumption, or where the Client is in any other way a consumer within the meaning of the TPA or the FTA of the relevant state or territories of Australia.
3.1 Any instructions received by Civic from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by Civic shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Civic.
3.4 The Client shall give Civic not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Civic as a result of the Client’s failure to comply with this clause.
3.5 Goods are supplied by Civic only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
4. Price and Payment
4.1 At Civic’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Civic to the Client in respect of Goods supplied; or
(b) Civic’s quoted Price (subject to clause 4.2) which shall be binding upon Civic provided that the Client shall accept Civic’s quotation in writing within thirty (30) days.
4.2 Civic reserves the right to change the Price in the event of a variation to Civic’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties such as hard rock barriers below the surface or iron reinforcing rods in concrete, or as a result of increases to Civic in the cost of materials and labour) will be charged for on the basis of Civic’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 At Civic’s sole discretion a non-refundable deposit may be required.
4.4 At Civic’s sole discretion payment shall be due on completion of the Services.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to two percent (2%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Civic.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Delivery of Goods
5.1 At Civic’s sole discretion delivery of the Goods shall take place when the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by Civic or Civic’s nominated carrier).
5.2 At Civics’ sole discretion the costs of delivery are included in the Price.
5.3 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5.4 The failure of Civic to deliver shall not entitle either party to treat this contract as repudiated.
5.5 Civic shall not be liable for any loss or damage whatsoever due to failure by Civic to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Civic.
6.1 If Civic retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Civic is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Civic is sufficient evidence of Civics’ rights to receive the insurance proceeds without the need for any person dealing with Civic to make further enquiries.
6.3 Where the Client expressly requests Civic to leave Goods outside Civics’ premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk and it shall be the Client’s responsibility to ensure the Goods are insured adequately or at all.
6.4 The Client acknowledges and agrees that any damage caused to the system whether in progress or finished, caused by any other person, shall not be the responsibility of Civic and shall be at the Client’s expense.
6.5 Bores are quoted on estimated groundwater depths only, in the event that additional drilling is required over the quoted depth, then a meterage rate will apply. No guarantee can be made to the quality or quantity of groundwater obtained. The Client agrees that if the supply of groundwater is insufficient to be economically pumped, drilling charges per metre will still apply.
6.6 The Client acknowledges and agrees that unless otherwise specified, no allowance has been made for the removal of spoils from site, resulting from the installation of wells, bores, and rubble from reticulation installations.
6.7 Civics’ guarantee specifically excludes any existing works, such as wells, bores, pumping systems, reticulation and associated electrics and is strictly limited to that part of the work carried out by Civic.
7.1 The Client shall ensure that Civic has clear and free access to the work site at all times to enable them to undertake the works. Civic shall not be liable for any loss or damage to the site unless due to the negligence of Civic.
8. Underground Locations
8.1 Prior to Civic commencing any work the Client must advise Civic of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
8.2 Whilst Civic will take all care to avoid damage to any underground services the Client agrees to indemnify Civic in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 8.1.
9.1 Civic and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Civic all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Civic in respect of all contracts between Civic and the Client.
9.2 Receipt by Civic of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Civic’s ownership or rights in respect of the Goods shall continue.
9.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Civic shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Civic to the Client Civic may give notice in writing to the Client to return the Goods or any of them to Civic. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Civic shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Civic then Civic or Civic’s agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Civic has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to Civic for the Goods, on trust for Civic; and
(f) the Client shall not deal with the money of Civic in any way which may be adverse to Civic; and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Civic; and
(h) Civic can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Civic will be the owner of the end products.
10. Personal Property Securities Act 2009 (“PPSA”)
10.1 In this clause:
(a) financing statement has the meaning given to it by the PPSA;
(b) financing change statement has the meaning given to it by the PPSA;
(c) security agreement means the security agreement under the PPSA created between the Client and Civic by these terms and conditions; and
(d) security interest has the meaning given to it by the PPSA.
10.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions:
(a) constitute a security agreement for the purposes of the PPSA; and
(b) create a security interest in:
(i) all Goods previously supplied by Civic to the Client (if any);
(ii) all Goods that will be supplied in the future by Civic to the Client.
10.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Civic may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii);
(b) indemnify, and upon demand reimburse, Civic for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Civic;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Civic; and
(e) immediately advise Civic of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
10.4 Civic and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
10.5 The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
10.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
10.7 Unless otherwise agreed to in writing by Civic, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
10.8 The Client shall unconditionally ratify any actions taken by Civic under clauses 10.3 to 10.5.
11.1 The Client shall inspect the Goods on delivery and shall within three (3) days of delivery (time being of the essence) notify Civic of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Civic an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Civic has agreed in writing that the Client is entitled to reject, Civic’s liability is limited to either (at Civic’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
11.2 Goods will not be accepted for return other than in accordance with 11.1 above.
12.1 Subject to the conditions of warranty set out in clause 12.2 Civic warrants that if any defect in any workmanship of Civic becomes apparent and is reported to Civic within twelve (12) months of the date of delivery (time being of the essence) then Civic will either (at Civic’s sole discretion) replace or remedy the workmanship.
12.2 The conditions applicable to the warranty given by clause 12.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Civic; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Civic shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Civic’s consent.
(c) in respect of all claims Civic shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
12.3 For Goods not manufactured by Civic, the warranty shall be the current warranty provided by the manufacturer of the Goods. Civic shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
13. Intellectual Property
13.1 Where Civic has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in Civic, and shall only be used by the Client at Civic’s discretion.
13.2 The Client warrants that all designs or instructions to Civic will not cause Civic to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Civic against any action taken by a third party against Civic in respect of any such infringement.
13.3 The Client agrees that Civic may use any documents, designs, drawings or Goods created by Civic for the purposes of advertising, marketing, or entry into any competition.
14. Default and Consequences of Default
14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Civic’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by Civic.
14.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Civic from and against all costs and disbursements incurred by Civic in pursuing the debt including legal costs on a solicitor and own client basis and Civic’s collection agency costs.
14.4 Without prejudice to any other remedies Civic may have, if at any time the Client is in breach of any obligation (including those relating to payment) Civic may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Civic will not be liable to the Client for any loss or damage the Client suffers because Civic has exercised its rights under this clause.
14.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
14.6 Without prejudice to Civic’s other remedies at law Civic shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Civic shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Civic becomes overdue, or in Civic’s opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
15. Security and Charge
15.1 Despite anything to the contrary contained herein or any other rights which Civic may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Civic or Civic’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that Civic (or Civic’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should Civic elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Civic from and against all Civic’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Civic or Civic’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 15.1.
16.1 Civic may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Civic shall repay to the Client any sums paid in respect of the Price. Civic shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Civic (including, but not limited to, any loss of profits) up to the time of cancellation.
16.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.
17. Privacy Act 1988
17.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Civic to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Civic.
17.2 The Client agrees that Civic may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
17.3 The Client consents to Civic being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
17.4 The Client agrees that personal credit information provided may be used and retained by Civic for the following purposes (and for other purposes as shall be agreed between the Client and Civic or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Civic, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
17.5 Civic may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
17.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Civic is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of Civic, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by Civic has been paid or otherwise discharged.
18. Unpaid Civic’s Rights
18.1 Where the Client has left any item with Civic for repair, modification, exchange or for Civic to perform any other Service in relation to the item and Civic has not received or been tendered the whole of the Price, or the payment has been dishonoured, Civic shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while Civic is in possession of the item;
(c) a right to sell the item.
18.2 The lien of Civic shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.
19. Equipment Hire
19.1 The Equipment shall at all times remain the property of Civic and is returnable on demand by Civic. In the event that the Equipment is not returned to Civic in the condition in which it was delivered Civic retains the right to charge the Price of repair or replacement of the Equipment.
19.2 The Client shall;
(a) keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to lien over the Equipment.
(b) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment.
(c) keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by Civic to the Client.
19.3 The Client accepts full responsibility for the safekeeping of the Equipment and the Client agrees to insure, or self insure, Civic’s interest in the Equipment and agrees to indemnify Civic against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
20.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.2 If any provisions of these terms and conditions are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency.
20.3 These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia and are subject to the jurisdiction of the courts of Western Australia.
20.4 Civic shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising during the course of the works whether out of a breach by Civic of these terms and conditions or not.
20.5 In the event of any breach of this contract by Civic the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
20.6 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Civic nor to withhold payment of any invoice because part of that invoice is in dispute.
20.7 Civic may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
20.8 The Client agrees that Civic may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Civic notifies the Client of such change.
20.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
20.10 The failure by Civic to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Civic’s right to subsequently enforce that provision.