AQUION PTY LTD.

STANDARD TERMS AND CONDITIONS OF SALE

DEFINITIONS

1. “Aquion” means Aquion Pty Ltd, ABN 57 094 985 136 in these Standard Terms and Conditions of Sale.
2. “Customer” means the person, reseller, business or company that is the purchaser of the Products and/or Services;
3. “PPSA” means the Personal Property Securities Act 2009 (Cth).
4. “Products” means any goods (including software and maintenance) supplied to Customer by Aquion and described in Aquion’s invoice.
5. “Services” means any services supplied to Customer by Aquion and described in Aquion’s invoice.

PAYMENT AND CREDIT TERMS

6. If credit is granted, payment terms are strictly seven (7) days or as shown on the invoice for the purchase. Aquion reserves right to review, change and cancel payment terms with written notification.
7. Payment is to be by direct deposit to Aquion’s nominated account with cleared funds available on the due date. Credit Card payments attract an additional fee.
8. Credit limits granted may not be exceeded without the written prior consent of Aquion.
9. Customer may cancel an order which has been accepted by Aquion if Aquion has breached a material obligation of the agreement under which the order was made.
10. All sales are considered to be final. All goods sold including software licenses and maintenance are NOT returnable or refundable, unless required under law or as agreed in writing by Aquion or there has been an event in accordance with clause 9
11. Account for deposit: Westpac Banking Corporation BSB: 032-097 Account No: 23-2321 SWIFT Code: WPACAU2S.
12. The Customer hereby acknowledges that, if any amount is not paid on the due date, the entire balance then outstanding shall immediately become due and payable without any notice of whatsoever nature.   The Customer agrees that a service charge of 0.05% per day on overdue balances may be charged to the Customer’s account at Aquion’s discretion.
13. In the event of Aquion pursuing the collection of an overdue amount all legal fees and collection charges shall be borne by the Customer.
14. Aquion may, in its sole discretion, suspend the provision of credit to Customer until all amounts owing are paid for in full and from time to time and at any time, vary or cancel any credit facility it makes available to Customer.

DELIVERY, TITLE AND RISK

15. Shipments will be made to Customer’s identified “Ship to” address as specified on Customer’s purchase order or carrier, subject to Aquion’s written approval prior to shipment. Unless specified in an accepted purchase order, Aquion will select the carrier.
16. All risk of loss of or damage to the Products will pass to Customer upon delivery to the carrier, or Customer, whichever occurs first (ex-Works). In the case of Software notification by email constitutes delivery.
17. Unless Customer provides Aquion with express instructions to the contrary prior to shipment, Aquion may make partial shipments on account of Customer’s purchase orders, to be separately invoiced and paid for when due. Any delay in the delivery of any instalment will not relieve Customer of its obligation to accept the remaining deliveries.
18. Aquion will use its commercially reasonable efforts to meet the delivery dates specified in Aquion written acceptance of Customer’s purchase orders, but in no event will Aquion be liable for any losses, damages or penalties resulting from any delay in shipment or delivery. Customer must inspect all Products promptly upon receipt, and may reject any defective item by requesting a Return Merchandise Authorisation number from Aquion pursuant to Aquion’s then current return policy.  Any Products not rejected within 7 days of receipt by Customer will be deemed accepted by Customer.
19. Title in the Products supplied by Aquion to Customer will not pass to Customer and will remain the absolute property of Aquion until such time as Aquion has been paid by Customer all monies due and owing to it by the Customer in relation to any account.

WARRANTIES, LIABILITY AND INDEMNITIES

20. All Products purchased from Aquion are covered by the applicable Supplier’s warranty. Customer must refer to the warranty details and specified repair period stated on the Product or in associated documentation. Aquion does not provide any warranties in addition to the Supplier’s warranties for that Product. Software Products are also warranted in accordance with the relevant licence agreements that govern their use issued by the relevant Supplier.
21. Both parties to this Agreement agree to indemnify the other parties, employees, agents and subcontractors against all losses, damages, expenses and costs (on a full indemnity basis and whether incurred by or awarded against any of them) that any of them may sustain or incur as a result, whether directly or indirectly, of any claim.
22. Subject to rights under the Competition and Consumer Act 2010 (Cth) or other similar legislation that cannot be excluded, Aquion has no liability in respect of any claim by the Customer (whether under contract, tort, statute or otherwise, including for any special, incidental, indirect or consequential damages or injury including any loss of profits, revenue or data however arising).
23. Aquion’s maximum liability under these Terms will not exceed the total amount paid the Customer under these Terms in the 12 month period prior to the date of the relevant breach or negligent act or omission.
24. If the Competition and Consumer Act 2010 (Cth) (or similar legislation) permits the limitation of liability for breach of warranty implied by statute, Aquion’s liability is limited, at Aquion’s option, in the case of goods to the replacement, resupply or repair of those goods (or paying the costs of the replacement, resupply repair), and in the case of services to resupplying the services or paying the costs to have those services resupplied.
25. Terms which limit or exclude any term, condition or warranty, or the liability of Aquion will apply to the extent permitted by law and will not be construed as excluding, qualifying or limiting the Customer’s statutory rights or remedies where such exclusion, qualification or limitation would be prohibited by law.

PPSR

26. The Products are personal property, and Customer agrees that these Terms create a purchase money security interest (“PMSI”) in the Products (and their proceeds) supplied presently and in the future by Aquion to the Customer.
27. The Customer must do all things necessary and execute all documents reasonably required to register the PMSI granted by the Customer under these Terms and to ensure that Aquion acquires a perfected security interest in the Products under the PPSA.
28. Until ownership of the Products passes to the Customer, to the extent permitted by law the Customer waives its rights under sections 95, 118, 121(4), 129, 130, 132(1), 132(4), 135(2), 137(3), 142, 143, 157(1) and 157 (3) of the PPSA.
29. The Customer’s right to possession of Products still owned by Aquion under these Terms immediately ceases if the Customer is subject to an insolvency event.

MISCELLANEOUS

30. If the performance of Aquion’s obligations under these Terms or any relevant sales contract is prevented, restricted or affected by force majeure including strike, or any other cause beyond the reasonable control of Aquion, Aquion will give notice of such cause to Customer and after 14 days from the receipt by Customer of such notice, either party may terminate the relevant sales contract without penalty.
31. Customer agrees that Aquion may obtain information about Customer from any business which provides information about the commercial creditworthiness of persons for the purposes of assessing Customer’s application to purchase the Products on credit and collecting any overdue amounts.
32. Customer agrees to Aquion collecting, using and disclosing information about Customer including Customer’s name and address, credit limits on Customer’s accounts, the amount of any payments which are overdue for at least 60 days, any method of payment which have been dishonoured and information that Aquion has ceased to supply the Products and services to Customer.
33. These Terms are governed by the laws of New South Wales. The parties submit to the non-exclusive jurisdiction of its courts and courts of appeal from them.
34. Aquion will not be bound by any terms attaching to Customer’s order and, unless those terms are expressly agreed to in writing by Aquion, Customer agrees that those terms are hereby excluded.
35. Either party must not assign or novate any of its rights or obligations under these Terms to any person, including any credit approval or outstanding amount due (including in the context of a transfer of business ownership) without the other parties prior written consent.