CityMx Pty Ltd A.C.N. 637399190 (“CityMx “Us”, “We”, “Our””) agrees to supply the Customer (“You”, “Your”) goods and/or services subject to the terms and conditions set out below.
“You in placing an order with “Us” for the goods and/or services specified on the order agrees to the said terms and condition as set out below.
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PLACEMENT OF ORDERS
1.1 “You” shall order goods from “Us” in writing and each order will specify:
(a) The date of the placement of the order;
(b) The goods ordered;
(c) A preferred delivery date for the goods;
(e) Sales tax exemption details (if applicable); and
(f) Courier details (“Our”’ or Customer nominated).
1.2 “You” shall order services from “Us” and each order shall specify the details of services required.
Acceptance of Orders
- “We” may decline any order received from “You” either verbally or by written notice where “You” have not complied with the verbal arrangement between our two parties when taking an order by telephone, or “You” have not correctly submitted sales tax exemption details (9.2) where the order is for goods or where supplying goods and service to “You” would breech Australian local, State or Federal Laws.
Cancellation of orders
3.1 If “You” requests “Us” to cancel an order for goods or services or postpone delivery of the ordered goods or services, “We” may agree to the requested cancellation or postponement if “You” pay to “Us” a cancellation/postponement fee for all direct or indirect loss or expenses that “We” would suffer as a result of the cancellation or postponement including without limitation:
(a) the costs and expenses incurred by “Us” in processing the order up to the date that “We” receive “Your” request for cancellation or postponement of the order for goods;
(b) monies paid or payable by “Us” to third parties for goods or services ordered and/ or received from third parties on behalf of the “You” for the purpose of filling the order;
(c) any penalties or cancellations or other fees payable to third parties for cancellation and/or postponement of delivery for goods or services ordered by “Us” on behalf of “You”;
(d) any claims for losses or expenses made by third parties from “Us” for cancelled orders or postponement of goods or services ordered on behalf of “You”;
(e) pre-production and production cost incurred by “Us” up to the date “We” receive the request for cancellation of the goods or services ordered or postponement of the delivery of the goods or services.
3.2. “We” shall be entitled to cancel or suspend an order for goods or services, without liability to “You”, by giving “You” notice in writing or verbally based on how the order was received.
3.3 “We” shall not be liable in any way for any loss or damage (including loss of trade or profit and economic loss) incurring to “You” in the event that delivery or supply of the goods or service ordered is frustrated or delayed by, strikes, riots, disasters, trade disputes, acts of restraint of Governments, the imposition of export restrictions, default of suppliers and subcontractors unavailability or shortage of supply of components used in the manufacture of the goods or any other circumstances beyond “Our” reasonable control.
Packing of Orders
- “We” shall ensure each order is safely and securely packed for transportation to “Your” nominated destination having regard to:
(a) The fragility of the goods;
(b) The distance the goods are likely to travel; and
(c) The method of transportation used to transport the goods.
Delivery of Orders
- Goods shall be delivered in accordance with “Our” ‘Delivery and Shipment Policy’ Goods shall be ex-factory. “We” shall notify “You” if required when the goods are available for collection by the “You” or “Your” nominated carrier from “Our” premises.
If requested by “You”, “We” may arrange delivery to “Your” address using “Our” carrier/s. The cost of delivery of the goods and of any special packing and packing materials used in relation to the goods shall be at your expense, notwithstanding that such costs may have been omitted from any original quotation by “Us”.
- “You” shall notify “Us” within five (5) working days of delivery of the goods to “You” of any missing items or goods which were ordered but were not in the package/s at the time of opening the package upon delivery.
Loss or Damage in Transit
- “We” are not responsible for any loss or damage:
(a) to the goods during loading and unloading of the goods by the carrier or “You” or “Your” agent, whilst the goods are in transit;
(b) suffered by “You” due to a delay in delivery of the goods “Our” nominated carrier or “Your” nominated carrier.
Freight insurance for loss and damage to the goods during loading/unloading and whilst in transit or otherwise is “Your” responsibility. “we” shall at “Your” request provide “You” with copies of all documents evidencing proof of collection by the nominated carrier.
8.1 Unless “You” have been granted credit facilities by “Us”, payment terms in respect of each order are strictly Cash Before Delivery (“CBD”) or Cash On Delivery (“COD”) which shall be agreed before accepting to process “Your” order . For COD and CBD Customers, “We” shall issue “You” with a payment request upon order placement and an invoice upon delivery of the goods.
8.2 To apply for credit facilities with “Us”, “You” must complete a “Our” Trading Account Application Form. The granting of credit facilities to “You” and the determining of payment terms and limit of credit to “You” is at “Our” sole discretion and will be confirmed in writing. “We” reserves the right to cancel credit facilities granted to “You” without notice and for any reason whatsoever.
8.3 Where credit facilities have been granted by “Us” to “You”, “We” shall invoice the “You” for goods and services delivered and “You” shall pay each invoice issued within the trading terms as agreed in writing.
9.1 The price of the goods shall be the price published in “Our” published price list issued from time to time by “Us” unless the parties have agreed otherwise in writing.
9.2 Unless otherwise stated, all prices quoted by “Us” are exclusively of sales tax. The cost of the sales tax will be added to the invoice price unless the order is for a Customer who is exempted from sales tax. To claim sales tax exemption, “You” must:
(a) provide a written order to “Us”; and
(b) submit a sales tax exemption certificate quoting “Your” sales tax exemption number written on a declaration to the Commissioner of Taxation and signed by the “Your” public officer; or
(c) submit a signed declaration claiming sales tax exemption in a form acceptable to the Commissioner of Taxation; or
(d) in the case of exempt sales (as in Government bodies) submit a copy of the original exempt order supplied to “You”.
Ownership of Goods
10.1 Ownership of the goods only passes to “You” when “We” have been paid in full by “You” in cash, bank cheque or cleared bank funds. Until such payment is made by “You” to “Us” for the goods, the relationship between the parties is a fiduciary relationship and “You” hold the goods as bailee and is authorised by “Us” to sell the goods in the ordinary course of its business. “You” shall pay the proceeds of the sale into a identifiable bank account and keep separate sales records of the said goods, pending payment to “Us” for the goods.
10.2 If payment for the goods is not received by “Us” within seven (7) days of the due date for accounts, or “You” becomes insolvent, “You” licence “Us” or its agent to enter any premises owned, occupied, leased or controlled by “You” or any associated company or agent to repossess the goods. “We” shall apply towards satisfying the outstanding indebtedness of “You” to “Us”;
(a) the value of any goods repossessed; or
(b) if the repossess goods are sold by “Us”, the proceeds of sale less the cost of repossession (including legal costs on a solicitor/client basis) and sale.
Passing of Risk
- Risk of loss or damage of the goods shall pass to “You” upon delivery of the goods to “You” or “Your” agent.
12.1 Requests for return must obtain a Return Material Authorisation (RMA) from “Us” in accordance with “Our” ‘Refund, Repair and Replacement Policy’, before returning any goods The RMA reference must appear on the outer packing of the goods being returned.
12.2 Goods may not be returned to “Us” without “Our” prior consent. “We” may grant your request subject to condition including the payment by “You” to “Us” of a re-stocking fee. “We”, in calculating the amount of the re-stocking fee shall have regard to the following:
(a) When the original goods had been invoiced to “You”;
(b) The condition of the returned goods including the original packing and merchandisability; and
(c) Whether the goods are part of “Our” current product range or have been specifically procured or manufactured for “You”.
13.1 The benefits conferred by the warranties set out in “Our”, ‘Refund, Repair and Replacement Policy’ and in ‘in sub-clause.
13.2 below are in addition to all other rights and remedies that the Customer has in respect of the goods and services under the ‘Australian Consumer Law’ and any other laws applicable to these terms and conditions which may not be modified or excluded.
13.2 “We” warrant the goods manufactured and supplied by “Us” to “You” are free from defects in material and workmanship of the period specified by the Original Equipment Manufacturer (‘OEM’).
13.3 The warranty referred to in sub-clause 13.2 does not extend to or include:
(a) defects that have been caused by misuse, mishandling, neglect, adjustments, damage caused by accident, non-adherence to operating and maintenance instructions and/or improper voltage;
(b) failure resulting from use of the goods under arduous or unreasonable climatic or operating conditions.
(c) the goods have been serviced by unauthorised personnel;
(d) failure resulting from installation errors or incorrect installation procedure;
(e) failure caused by consumables not complying with manufacturer’s recommendation or acceptable industry standards;
(f) goods that have had identifications marks and numbers altered or removed;
(g) normal maintenance and service adjustment as part of goods operating instructions;
(h) consumables, such as specific event access;
(i) perishable items, such as food;
(j) goods that have been returned to “Us” in inadequate or unsuitable packaging.
13.4 “We” do not warrant that where the goods comprise of or include software or services that the software or services will be completely error free.
13.5 Warranty repairs of goods shall be undertaken by “Us” or on “Our” behalf by an authorised Service Centre in accordance with the “Our” equipment service and maintenance requirements.
13.6 Where applicable “You” may purchase from “Us” additional hardware maintenance, such as extended warranty, for particular goods. The hardware maintenance terms and conditions for such an agreement shall be contained in a separate contract document.
13.7 “We” warrant that the service will be rendered with due care and skill and that any material supplied in connection with those services will be reasonably fit for the purpose for which they are supplied.
13.8 “We” give no express warranties other than those set out in clause 13.2 above and our ‘Refund, Repair and Replacement Policy’.
13.9 Except where:
(a) conditions or warranties are implied into these terms and conditions for the supply of goods or services by “Us” to “You”, under Australian Consumer Law “ACL” which came into force on 1 January 2011, and previous Commonwealth, state and territory consumer protection legislation. It is contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (CCA) and is applied as a law of each state and territory by state or territory legislation.
(b) such implied conditions or warranties cannot lawfully be excluded. “We” excluded all implied condition and warranties, including, but not limited to, implied conditions or warranties with respect to merchantability or fitness for particular purpose.
Limitation of Liability
14.1 Subject to the provisions of clause 14.2 and where such limitation of liability is not prohibited or avoided by the ‘ACL’ 2011 as amended, other similar laws of the States and Territories of the Commonwealth of Australia or any other applicable laws the liability of CityMx for:
(a) any breach of any implied or express conditions and warranties (other than implied conditions and warranties as to title, encumbrances and quite enjoyment of the goods supplied by “Us”); and/or
(b) any loss or damage (including economic loss and special and consequential damages) arising out of or in relation to the supply of any goods or services by “Us” to “You” shall be limited, at “Our” option to any one or more of the following:
(a) in the case of goods –
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods;
(iv) the payment of the cost of having the goods repaired; or
(b) in the case of services –
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
14.2 “You” agree that to the extent that such liability may be limited under the ‘ACL’ 2011 as amended, other similar laws of the states and Territories of the Commonwealth of Australia or and any other applicable laws, “We” shall not be liable for any special, direct or indirect incidental and/or consequential damages or loss including but not limited to economic loss, loss of use of goods or loss of data or information of any kind arising out of the supply of the goods and/or services or the negligence of “Us”, “Our” employees or agents or however otherwise caused or failure of the goods to work or perform in any way or any liability to End Users, Dealers or third parties except as set out in clause 14.1.
“We” reserves the right to change this policy from time to time and such changes will take effect once published and publicly available on the websites the SPS service is administered and delivered from on behalf of the “Us”.
Registered account holders shall be notified by email of updates to this policy.