Terms & Conditions of Trade

1. Contract and Acceptance

  1. These terms and conditions (terms) constitute an agreement between Aqueous Motion Pty Ltd (ACN 126 791 624 (Aqueous Motion or we) and the customer (Customer or you) in relation to any goods and/or services to be provided to the Customer by Aqueous Motion. The Customer is taken to have accepted and be bound by these terms if it instructs Aqueous Motion to provide any goods and/or services, accepts such goods or services or accepts these terms in any other manner recognised by law. These terms may only be amended by written agreement between the parties.
     
  2. The Customer acknowledges and agrees that these terms and conditions shall be read together with any quote in relation to goods and/or services that may have been provided by Aqueous Motion to the Customer.

2. Definitions

  1. “Aqueous Motion” means Aqueous Motion Pty Ltd and includes any agents, contractors and employees of the company.
     
  2. “Customer” means the Customer or entity purchasing goods or services from Aqueous Motion, its successors and assigns or any person acting on behalf of and with the authority of the Customer, as described in any application, quote, work authorisation or other form.
     
  3. “Guarantor” means any person or persons, or entity, who agrees to be jointly and severally liable for the debts of the Customer in accordance with these terms.
     
  4. “Works” means any goods and/or services provided by Aqueous Motion to the Customer in accordance with these terms.

3. Price and Payment

  1. The price payable for the goods and/or services shall be either:
    1. the amount indicated on invoices provided to the Customer, or
    2. the price quoted by Aqueous Motion, provided the Customer accepts such quotation in writing within 30 days.
       
  2. Aqueous Motion requires a deposit to be paid in advance in respect of any goods and/or services. Unless agreed to the contrary in writing, deposits will be required for the full cost of any goods to be delivered to the Customer plus 10% (ten percent) of the price of any services to be provided, before any goods and/or services are delivered.
     
  3. In the event of the Customer not paying a deposit as indicated in clause 3 (b) above, payment in full shall be due on delivery of the goods and/or services, or in accordance with an written agreed plan for payments in instalments. Payments by credit card shall be subject to payment of any surcharge charged by the financial institution to Aqueous Motion.
     
  4. All goods and services are subject to payment of Goods and Services Tax (GST).
     
  5. Unless agreed to the contrary in writing, any amounts not paid within 14 days of due date shall be liable for payment of interest at the rate stipulated in terms of the Penalty Interest Rates Act (Vic), as varied from time to time, with effect from the due date. In the event of Aqueous Motion incurring any costs (including legal costs) in order to recover any amount owing in terms of these terms, or to enforce its rights in accordance with these terms, the Customer agrees that it will be liable for the legal costs of Aqueous Motion on a solicitor and own client basis and/or any collection agency costs.

4. Variations, Exceptions and Time Extensions

  1. In the event of a variation to the proposed goods and/or services, Aqueous Motion may change the price by either providing a new quotation, or providing a written variation notice. Aqueous Motion may charge a fee for additional administration costs.
     
  2. Aqueous Motion may charge an additional cost for delivering any goods to the Customer.
     
  3. Unless specifically included, the following items are excluded from any quote and will be subject to additional cost:
    1. any scaffolding or hoisting.
    2. reinstating any landscaping, paving or concreting.
    3. site cleanup, to the extent that any excess soil needs to be removed following excavation.
    4. any costs related to the removal of rock and reef, which are considered impenetrable material.
    5. rock excavation and supportive work such as piers and beams.
    6. the removal of any hazardous or toxic substance uncovered during excavation.
    7. the use of solid joists, as opposed to pozi joists in relation to any suspended stack work.
    8. Any unexpected or hidden complications arising during the course of providing the services, or
    9. Any services which may be provided outside of normal trading hours, which costs may include overtime rates.
       
  4. The Customer acknowledges and agrees that the completion date for any services may be extended, due to external factors over which Aqueous Motion may have no control, such as inclement weather, force majeure and/or the exclusions referred to in clause 4 (c) above.

5. Title and Risk

  1. Aqueous Motion and the Customer agree that ownership of any goods will not pass until the Customer has paid Aqueous Motion all amounts owing in relation to the goods and/or any services and the Customer has paid all or any other amounts owing to Aqueous Motion in respect of any other goods and/or services.
     
  2. The Customer may not grant an encumbrance or charge over the goods and/or services or transfer any interest in the goods and/or services while they remain the property of Aqueous Motion.
     
  3. Aqueous Motion may request return of the goods and in the event of the Customer failing to return the goods, then the Customer irrevocably authorises Aqueous Motion or its agent to enter land and premises owned, occupied or used by the Customer or its agent, when and where any goods may be situated and take possession of the goods. If Aqueous Motion is unable to recover the goods, then it may institute proceedings for the recovery of such goods.
     
  4. The Customer must provide Aqueous Motion with at least 3 working days’ notice in writing of any cancellation of works. In the event of the Customer failing to provide such notice, Aqueous Motion shall be entitled to retain any deposit paid, or to payment of 10% (ten percent) of the value of the goods or services, whichever amount is the higher.
     
  5. Although Aqueous Motion retains ownership of the goods until all goods and/or services have been paid in full, full risk for the goods passes to the Customer on delivery. Delivery shall be when the Customer takes possession of the goods at the Customer’s nominated address (where delivery is effected by Aqueous Motion or its nominated carrier), or when the goods are collected by the Customer or its agent from Aqueous Motion or its supplier. In the event of the Customer being unable to take delivery of any goods at a specified time, then Aqueous Motion shall be entitled to charge a fee for redelivery of the goods.

6. Customer’s Responsibilities

  1. The Customer shall be liable for:
    1. providing clear and free access to the worksite for Aqueous Motion and the provision of any utility services, at the cost of the Customer, to enable Aqueous Motion to carry out the Works, and
    2. obtaining and paying for all approvals, consents or permits required for the goods and/or services, prior to commencement of the Works.

7. Defects and Warranties

  1. The Customer shall inspect the Works on completion and report any defective Works or goods in writing to Aqueous Motion within seven working days. That report shall clearly specify any alleged defects, shortage in quantity or damage. The Customer shall afford Aqueous Motion an opportunity to inspect the alleged damage or defect within 14 working days from date of written notification and give Aqueous Motion the opportunity to make good any defective services or goods within 21 working days of the inspection by the Customer.
     
  2. To the extent required by statute and subject to clause 7(c) Aqueous Motion warrants that if any defect in the goods and/or services is apparent and is reported to Aqueous Motion within twelve (12) months of the date of delivery then the Aqueous Motion, in its sole discretion, will either:
    1. repair or replace the goods or supply equivalent goods, or
    2. resupply the services or equivalent services, or
    3. pay the cost of replacing the goods or acquiring equivalent goods, or
    4. pay the cost of repairing or replacing the goods or the resupply of the services, where payment in full has been made by the Customer.
       
  3. The warranty in this clause 7 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 Customer to properly maintain any Works; or (ii) failure on the part of the Customer to follow any instructions or guidelines provided by Aqueous Motion; or (iii) any use of any Works otherwise than for any application specified on a quote or order form; or (iv) the continued use of any Works 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.
     
  4. The warranty shall cease and Aqueous Motion shall thereafter in no circumstances be liable under the terms of the warranty if the goods and/or services are repaired, altered or overhauled without the consent of Aqueous Motion.
     
  5. In respect of all claims Aqueous Motion shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
     
  6. For goods not manufactured by Aqueous Motion the warranty shall be the current warranty provided by the manufacturer of the goods. Aqueous Motion shall be under no liability whatsoever, except for the express conditions as detailed and stipulated in the manufacturer’s warranty.
     
  7. Nothing in these terms is intended to have the effect of enabling Aqueous Motion to contract out of any applicable provisions of the Competition and Consumer Act 2010 (Cth), the Building Act 1993, or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.

8. Intellectual Property

  1. Where Aqueous Motion has designed, drawn or written plans or a schedule of Works for the Customer, then the copyright in those plans, schedules, designs and drawings shall remain the property of Aqueous Motion and shall not be used by the Customer for any purpose other than in relation to the Works, without the written consent of Aqueous Motion.
     
  2. The Customer warrants that all designs or instructions provided to Aqueous Motion will not cause Aqueous Motion to infringe any patent, registered design, trade mark or other intellectual property right in the execution of the Customer’s order.

9. Personal Property Securities Act, 2009 (PPSA)

  1. The Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and create a security interest in all goods that have previously been supplied and that will be supplied in the future by Aqueous Motion to the Customer.
     
  2. The Customer undertakes to:
    1. promptly sign any further documents and/or provide any further information (such as information to be complete, accurate and up-to-date in all respects) which Aqueous Motion may reasonably require to:
      1. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
      2. register any other document required to be registered by the PPSA; or
      3. correct a defect in a statement referred to in clause 9(b)(i)(a) or (b)
    2. indemnify, and upon demand reimburse, Aqueous Motion for all expenses incurred in registering a financing statement or financing charge statement on the Personal Property Securities Register established by the PPSA or releasing any goods and/or services charged thereby;
    3. not register a financing change statement in respect of a security interest without the prior written consent of Aqueous Motion;
    4. not register, or permit to be registered, a financing statement or financing charge statement in relation to the goods and/or services in favour of a third party, without the prior written consent of Aqueous Motion.
       
  3. Aqueous Motion and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
     
  4. The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
     
  5. The Customer waives their rights as a grantor and/or a debtor under section 142 and 143 of the PPSA.
     
  6. Unless otherwise agreed to in writing by Aqueous Motion, the Customer waives the right to receive a verification statement in accordance with section 157 of the PPSA.
     
  7. If it is held that section 125 of the PPSA must apply, the Customer agrees that at any time after any Security interest provided for by these terms and conditions has become enforceable, Aqueous Motion may delay taking action to retain the whole or part of the collateral, to the extent permitted by law.
     
  8. The Customers right to possession of goods still owned by Aqueous Motion shall cease if:
    1. the Customer being an individual, commits an act of bankruptcy;
    2. the Customer being a company, circumstances arise where a receiver, manager, administrator, liquidator or controller becomes entitled to take possession of any of its assets, any proceedings are instituted for winding up, or the Customer enters into a deed of arrangement ;
    3. the Customer ceases or threatens to cease conducting business in the normal manner, or applies for deregistration or receives a deregistration notice;
    4. any cheque the Customer provides to Aqueous Motion is dishonoured;
    5. the Customer fails to comply with any demand for payment issued by Aqueous Motion, or
    6. the Customer breaches any of these terms and conditions
       
  9. The Customer must unconditionally ratify any actions taken by in terms of this clause.
     
  10. Subject to any express provisions to the contrary, nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

10. Default

  1. If the Customer breaches the provisions of these terms and conditions, Aqueous Motion may suspend or terminate the supply of the goods and/or services to the Customer and Aqueous Motion will not be liable to the Customer for any loss or damage the Customer suffers, because Aqueous Motion has exercised its rights in terms of this clause.
     
  2. In the event of the Customer failing to pay any amount due in terms of these terms and conditions, the Customer becoming insolvent, convening a meeting with its creditors, entering into a deed of arrangement with creditors or making an assignment for the benefit of its creditors, or a receiver, manager, liquidator or similar person being appointed in respect of the Customer, then, without prejudice to any other remedies at law, Aqueous Motion will be entitled to cancel the agreement entered into in accordance with these terms and conditions and claim all amounts owing to Aqueous Motion.

11. Corporate Entity and Guarantee

  1. If the Customer is a corporate entity the person signing on behalf of that entity warrants that they are a duly authorised representative of the entity and that person hereby personally guarantees performance by the Customer of all its obligations as specified in these terms and conditions.

12. Limitation of liability

  1. In the event of any breach of these terms and conditions by Aqueous Motion, the remedies of the Customer shall be limited to damages, which shall not exceed the price of the goods and/or services under any circumstances. Aqueous Motion shall furthermore not be liable for any indirect loss and/or expense (including loss of profits) suffered by the Customer, as a result of a breach of these terms and conditions by Aqueous Motion.
     
  2. Neither party shall be liable for any breach of contract, or liable for any default, delays or failure to perform any of that party’s obligations in terms of these terms and conditions, due to any act of God, force majeure or other event beyond the reasonable control of that party.

13. Dispute

  1. If any dispute arises out of this agreement, the parties will attempt to resolve the dispute informally. If the parties have not resolved their dispute within 10 business days of one party notifying the other party in writing of the nature of the dispute, then the parties agree to:
    1. engage a mediator selected by agreement or, failing agreement within 5 business days after one party nominates a mediator in writing, selected by the President of the Law institute of Victoria; and
    2. conduct a mediation in respect of the dispute within 20 business days after the mediator is appointed.
       
  2. The parties agree to each pay half of the mediator's fees.
     
  3. A party must not commence court proceedings, except proceedings seeking interlocutory relief, in respect of a dispute arising out of these terms and conditions, unless it has complied with this clause.
     
  4. Notwithstanding any other provision of this clause 13, Aqueous Motion shall be entitled to exercise its statutory right to payment or progress payments in terms of the Building and Construction Industry Security of Payment Act 2002 (the SOP Act) and Aqueous Motion may exercise its rights in terms of the SOP Act at any relevant time, without being required to comply with the dispute resolution provisions of this clause 13.

14. General

  1. These terms and conditions and the agreement entered into between the parties shall be governed by the laws of the State of Victoria and each party submits to the non-exclusive jurisdiction of the courts of that state.
     
  2. In the event that any of these terms and conditions are found to be invalid, illegal or unenforceable, such validity, legality and enforceability shall not affect the validity of any other remaining provisions of these terms and conditions.
     
  3. Aqueous Motion reserves the right to alter these terms and conditions at any time.