Terms & Conditions of Sale

Terms & Conditions 

 

1.1    Application

These Standard Trading Terms are attached to a Proposal made by PIVOD Technologies Pty Ltd (ABN 42 058 500 584) for the supply of Goods and/or Services. Upon agreement of the Customer to such Proposal in accordance with Term 0 below, these Terms shall become an integral part of the Contract so created.

1.2    Definitions

In these Terms, including the Term listed before and the Terms listed after this Term, unless the contrary intention appears, the words and phrases detailed in the table below have the meaning as stated in the table below.

Word or Phrase
Definition
these Terms  
These Standard Trading Terms contained herein.
PIVOD TECHNOLOGIES
PIVOD Technologies Pty Ltd
the Customer 
The person to whom the Proposal is directed.
Proposal  
The document offering Goods or Services to the Customer, by whatever name called, to which these Terms are attached.
the Contract  
The Contract created by the Customer's agreement to the Proposal and these Terms in accordance with Term 0 below.
Goods 
Any item of a material nature required to be delivered by PIVOD Technologies to the Customer by the Contract, including but not limited to:
·         Computers,
·         Electronic and mechanical devices,
·         Copies of computer software, and
·         Specifications and manuals relating to computer hardware and software.
Services   
The same meaning as "services" in clause 68A (1) (b) of the Trade Practices Act 1974 (Commonwealth of Australia).
Acceptance 
In relation to the supply of Goods and/or Services, the event described in Term 7.9.
Fixed Price  
Any instance where PIVOD Technologies is to supply Goods and/or Services for a predetermined and fixed consideration specified the Proposal.
Time and Materials  
Any instance where PIVOD Technologies is to supply Goods and/or Services for a consideration which is a product of the number of hours of Service actually supplied and an hourly rate specified in the Proposal plus remuneration for materials used in conjunction with supplying the Service.
Estimate
Any advice by PIVOD Technologies to the Customer containing the word "estimate" and concerning the cost or duration of a development project, or the future performance of a system to be developed, or any other item or value.
Failure
An instance when Goods have failed to operate in accordance with their written specification or an instance when the provision of Services has been other than in accordance with any written specifications for the supply of the Services or in contravention of the Code of Ethics described in Term 7.11 below.
Fault Report 
A Fault Report issued by the Customer to PIVOD Technologies in accordance with Term 7.12 below.
Notice
A communication from PIVOD Technologies to the Customer or visa versa given in accordance with Term 7.19 below.

1.3    Agreement

 The Proposal and these Terms shall be deemed accepted by the Customer if the Customer issues to PIVOD Technologies any one or more of:

1)  A purchase order for the Goods and/or Services described in the Proposal,
2)  A letter, e-mail or facsimile message accepting the Proposal,
3)  A letter, e-mail or facsimile message instructing PIVOD Technologies to supply the Goods and/or Services described in the Proposal, and/or
4)  The payment of a deposit for the Goods and/or Services described in the Proposal, and thereupon, the Proposal, these Terms and the purchase order, letter, e-mail, facsimile message or deposit record shall represent a valid Contract between PIVOD Technologies and the Customer.  In the instance where something in such purchase order, letter or facsimile message conflicts with these Terms and/or the Proposal these Terms and then the Proposal shall have greater precedence. 
 

1.4     Fixed Price Contract

Where PIVOD Technologies has offered to supply Goods and/or Services at a Fixed Price:
1)       Any prices in the Proposal for Goods shall be F.O.B. road, rail, sea or air transport (whichever is requested by the Customer) at the location(s) specified;
2)       Any prices in the Proposal for Services shall be for provision of the Services in the locations specified;
3)       Unless otherwise stated in the Proposal, prices for supply of Goods and/or Services to a destination in Australia shall include all Australian taxes and duties; but
4)       If the Goods and/or Services are to be exported out of Australia, the price shall exclude all duties, taxes or imposts payable to foreign governments.  Any such duties, taxes or imposts shall be separately payable by the Customer.  Such export prices also exclude any Australian taxes or duties which would otherwise be payable if the Goods and/or Services were not to be exported.
5)       Unless otherwise stated in the Proposal, prices shall remain fixed for 30 days from the date of the Proposal, but if the Proposal is not accepted by the customer  within thirty days from its date, PIVOD Technologies  may at its sole discretion vary any prices therein or withdraw the Proposal altogether.
 

1.5        Time and Materials Contract

 

1.5.1     Application

Where PIVOD Technologies has offered to supply Goods and/or Services on a Time and Materials basis, such offer and any Contract ensuing from it shall be subject to Terms 7.5.1 thru 7.5.4.
 

1.5.2            Meaning

The essence of the supply of Goods and/or Services on a Time and Materials basis is that PIVOD Technologies will supply a certain number of hours of a suitably skilled person's time in return for a fee payable by the Customer per hour of Service supplied by PIVOD Technologies at the rate specified in the Proposal.
 

1.5.3           Number of Hours to be supplied

Under a Contract for the supply of Goods and/or Services on a Time and Materials basis, PIVOD Technologies will continue to supply suitably skilled man-hours until the earlier of:
An agreed objective is achieved;
6)       An agreed limit on the number of man-hours to be supplied is reached; or
7)       The Customer gives Notice to PIVOD Technologies to cease supplying man-hours.
8)       Upon termination of the supply of Service as specified above, the Contract for supply of Goods and/or Service shall be deemed satisfactorily completed.
 

1.5.4           Materials

All components, materials and third party services used by PIVOD Technologies in supplying time and materials services shall be paid for by the Customer to PIVOD Technologies at the rate of PIVOD Technologies purchase cost plus a commission.  The amount of the commission shall be as specified in the Proposal or if not specified therein, twenty percent of PIVOD Technologies purchase cost.
 
PIVOD Technologies shall give Notice to the Customer of the requirement to incur costs in relation to components, materials and/or third party services before any such costs are actually incurred on behalf the Customer.
 

1.6 Operations Outside the Location(s) Specified

The Customer shall reimburse PIVOD Technologies for all additional expenses incurred by PIVOD Technologies as a consequence of supplying Goods and/or Services outside the Perth, Melbourne or Sydney Metropolitan Areas.  Such expenses shall include but are not limited to travelling, accommodation, meals, drinks, communications, and delivery and transportation expenses.
 

1.7 Estimate

Any Estimate made by PIVOD Technologies will be prepared taking into account when available historical data and forecasts of future events.  However such Estimate will only be an opinion and PIVOD Technologies will not be liable for any expenses, loss or damages however incurred as a result of the inaccuracy of the Estimate.  The Customer specifically accepts that the typical accuracy of estimates of the cost of computer software development is -50% to +100%.
 

1.8 Delivery and Completion Dates

All delivery and completion dates quoted by PIVOD Technologies shall be Estimates only

 

1.9 Acceptance of Goods and/or Services

 

1.9.1           Application

Acceptance of Goods and/or Services shall occur as follows:
 

1.9.2           Goods without Installation Service

Where PIVOD Technologies is to supply Goods only without installation Service, Acceptance of the Goods shall be deemed to occur when the goods have passed from PIVOD Technologies to the Customer or its agent and then 7 consecutive days have elapsed in which no valid Fault Report on the Goods has been received by PIVOD Technologies
 

1.9.3           Goods with Installation Service

Except as otherwise specified below, where PIVOD Technologies is to supply Goods in conjunction with an installation Service for the Goods, Acceptance of the Goods and installation Service shall occur when installation of the Goods is completed and then 7 consecutive days have elapsed in which no valid Fault Report on the Goods or installation Service has been received by PIVOD Technologies
 
In instances where PIVOD Technologies is ready to install Goods but the Customer has not provided the necessary environment for installation or has not authorised PIVOD Technologies to perform the installation, PIVOD Technologies will give Notice to the Customer of this fact.  If the necessary environment for installation or Customer's authorisation is not provided by the Customer within 30 days of issue of such Notice, Acceptance of the Goods and installation Service shall be deemed to have occurred.
 

1.9.4           Non-Installation Services

Acceptance of Services other than services for installation of Goods also supplied by PIVOD Technologies shall occur upon completion of supply of the Service by PIVOD Technologies and then the elapse of 7 consecutive days in which no valid Fault Report on the Service is received by PIVOD Technologies
 

1.9.5           Lost or Damaged Goods

Notwithstanding the above Terms, in the event Goods are lost or damaged after the risk of loss or damage has passed to the Customer in accordance with Term 7.17 below but before Acceptance has occurred by way of one of the above Terms, Acceptance of the Goods shall be deemed to have occurred at the time of the loss or damage.
 

1.10 Warranty

1.10.1       Goods

PIVOD Technologies warrants that where Goods supplied by PIVOD Technologies fail to operate or perform in accordance with their written specifications in the period 12 months following Acceptance of the Goods, and the Customer has provided PIVOD Technologies with a valid Fault Report on the Failure, the Goods will be, at PIVOD Technologies discretion, modified and/or replaced so as to rectify the Failure.
 
PIVOD Technologies also warrants that standard manufacturer’s warranties remain in effect unless through the installation the manufacturers warrantee is voided.
 
The above warranty shall be immediately void should:
1)       The Customer allow any person not authorised by PIVOD Technologies in writing to modify or otherwise tamper with the Goods excepting application of critical updates to approved operating systems, anti-virus, firewall or other security software in accordance with the normal methods of the original software manufacturer;
2)       If the Goods are used in an environment (both software and physical) or in conjunction with consumables not approved by PIVOD Technologies ;
3)       If the Goods are not Technologies in accordance with the instructions contained in their specifications and users manuals; or
4)       If the users of the goods artificially contrive circumstances which might jeopardise the normal operation of the Goods.
 

1.10.2       Services

PIVOD Technologies warrants that Services supplied by PIVOD Technologies shall be provided in accordance with the Code of Ethics described in Term 7.11 below.
 

1.11 Code of Ethics

 

1.11.1       Provision of Services

PIVOD Technologies shall use its best endeavours to provide Services efficiently and without unnecessary impact on the normal operation of the Customer's business activities.
 

1.11.2       Unqualified Opinion

PIVOD Technologies shall not offer an opinion on any matter for which it is not qualified.
 

1.11.3       Incorrect Estimate

If, during the operation of a Contract created under these terms, it becomes evident to PIVOD Technologies that an Estimate given by PIVOD Technologies to the Customer under the Contract is inaccurate by more than 20%, PIVOD Technologies will give Notice to the Customer of such inaccuracy within 7 days of it becoming so evident.
 

1.11.4       Conflict of Interest

PIVOD Technologies shall give Notice to the Customer within 7 days of it becoming evident of any conflict of interest which may arise during the supply of Services to the Customer.
 

1.11.5       Confidentiality

Both PIVOD Technologies and the Customer shall hold any information relating to the business and operations of the other in confidence and secrecy.
 

1.11.6       Dress Standards

PIVOD Technologies and its employees and agents will recognise and maintain any reasonable standards of dress and presentation in effect at the Customer's premises.
 

1.12 Fault Reports

These Terms require the Customer to make Fault Reports to PIVOD Technologies in certain circumstances.  Fault Reports must refer to a Failure which actually occurred, be made to PIVOD Technologies within 7 days of the occurrence of the Failure, be given in accordance with the requirements for Notice and must contain:
      1)       The name of the Customer,
2)       The identity of the Goods or Service in which the Failure has occurred,
3)       The date of occurrence of the Failure,
4)       Documentary evidence of the Failure such as copies of screen displays or printed reports,
5)       A description of the events leading up to the Failure.
Fault Reports not made in accordance with this Term may be disregarded by PIVOD Technologies and will not delay Acceptance of any Goods and/or Services nor create a valid warranty claim under Term 7.10
 

1.13 Limitation of Liability

 Notwithstanding anything to the contrary, PIVOD Technologies liability shall be ultimately limited in accordance with section 68 of the Trade Practices Act 1974 (Commonwealth of Australia) to, at PIVOD Technologies discretion:
1)       In the case of goods:
a)       The replacement of the goods or the supply of equivalent goods;
b)       The repair of the goods;
c)       The payment of the cost of replacing the goods or of acquiring equivalent goods; or
d)       The payment of the cost of having the goods repaired.
2)       In the case of services:
a)       The supplying of the services again; or
b)       The payment of the cost of having the services supplied again.
So that to the greatest extent permitted by Law, PIVOD Technologies shall not be liable for any special, indirect or consequential loss or damage whether caused by the negligence of PIVOD Technologies or its agents or any of its employees or agents howsoever caused.
 

1.14 Payment Terms

 

1.14.1       Fixed Price

The payment schedule for the supply of Goods and/or Services on a Fixed Price basis shall be as specified in the Proposal.  PIVOD Technologies may invoice the Customer for any deposits or progress claims for the final or only payment at any time after the time such payments fall due under the terms specified in the Proposal.
 

1.14.2       Time and Materials

PIVOD Technologies may invoice the Customer for payment of service fees and/or materials charges accrued on a Time and Materials basis during a calendar month any time after the end of the calendar month in which the service fees and/or materials charges were incurred and/or, at PIVOD Technologies option, at any time after the completion of the Contract as described in Term 7.5.3 above.
 

1.14.3       Payment of Invoices

The Customer will pay PIVOD Technologies for Goods and/or Services within 14 days of the issue of an invoice for the Goods and/or Services by PIVOD Technologies
 

1.14.4       Default

In the event the Customer fails to pay PIVOD Technologies within 14 days of the issue of an invoice PIVOD Technologies may:
1)       Suspend or terminate the supply of further Goods and/or Services including Goods and/or Services required by the warranties described in 7.10 above;
2)       Issue Notice to the Customer demanding immediate payment or return of any Goods relating to the payment and within 14 days of receipt of such Notice the Customer shall either return to PIVOD Technologies all Goods the property of PIVOD Technologies , notwithstanding that the Goods may have been incorporated into some other product and/or may be necessary for the operation of the Customer's business and including any and all copies of PIVOD Technologies software made by the Customer; and/or
3)       Pursue and affect any other remedies which may be available to PIVOD Technologies to recover the debt.
4)       Recover all costs incurred in the collection of outstanding amounts.
 

1.14.5       Interest on Overdue Amounts

The Customer will pay PIVOD Technologies interest on overdue amounts at the then current prime lending rate of the ANZ Banking Group Limited plus two percent per annum.
 

1.15 Development Risk

The Customer and PIVOD Technologies acknowledge the significant risks involved in attempting to develop and modify software and hardware products and in this context:
1)       PIVOD Technologies agrees that the price for supply of Goods and/or Services on a Fixed Price basis, includes designing, producing and supplying the Goods and/or Services including any unexpected overruns of the same; and
2)       The Customer agrees to accept all other risks including but not limited to:
a)       Disruption to the normal operation of the Customer's business during the supply of Goods and/or Services and the rectification of any Failures in the Goods and/or Services;
b)       The consequences of any unintended Failure of the Goods and/or Services;
c)       Notwithstanding that PIVOD Technologies shall use its best endeavours to supply Goods and/or Services in a timely fashion, the consequences of late delivery of the Goods and/or Services; and
d)       Overruns in additional expenses incurred by PIVOD Technologies as a consequence of supplying Goods and/or Services outside the location(s) specified in accordance with Term 7.6 above
 

1.16 Title


1.16.1       Goods

The title in all Goods supplied by PIVOD Technologies and all copies of software made by the Customer from Goods supplied by PIVOD Technologies shall be the sole and exclusive property of PIVOD Technologies until such time as full payment for the Goods is received by PIVOD Technologies
 

1.16.2       Copyright

Unless otherwise agreed to in writing, all copyright in software and documentation developed or produced by PIVOD Technologies shall remain the property of PIVOD Technologies
 

1.16.3       Licence to Use

If PIVOD Technologies has not agreed in writing to transfer to the Customer a copyright in software in Goods supplied by PIVOD Technologies , PIVOD Technologies shall by way of this Term grant to the Customer a licence to use such software upon receipt of full payment for the Goods.
 

1.16.4       Transfer of Copyright

If PIVOD Technologies has agreed in writing to transfer a copyright to the Customer, then notwithstanding anything to the contrary, such transfer shall not occur until payment for such copyright and any Goods holding the copyright material is received in full.
 

1.16.5       On-Sale of Goods

In instances where the Customer has on-sold Goods the property of PIVOD Technologies to a third party, the proceeds of such sale shall be held in trust by the Customer for PIVOD Technologies until such time as the title in the Goods is properly relinquished by PIVOD Technologies under these Terms.
 

1.17 Risk of Goods

The risk of loss or damage to Goods shall pass from PIVOD Technologies to the Customer upon passage of the Goods from PIVOD Technologies to the Customer or its agent.
Upon request by the Customer, PIVOD Technologies will use its best endeavours to supply such information as may be required by the Customer to properly insure Goods.
 

1.18 Insolvency

Both the Customer and PIVOD Technologies may, should the other party become insolvent, without prejudice to any other legal remedies available to the party, immediately terminate any Contract ensuing from these Terms by Notice to the other party.
For the purpose of this Term, insolvent shall mean "not able to pay all its debts as and when they become due" and shall carry the same interpretation as that phrase in section 556 of the Companies (Western Australia) Code.
 

1.19 Notice

Any Notice required to be given under these Terms shall be duly given when:
1)       Passed to an agent of the party where such agent has acknowledged receipt of the Notice in writing; or
2)       Sent by facsimile to the last known facsimile receiver of the party where such transmission is shown on the activity report of the transmitting facsimile machine as transmitted without error to the telephone number of the destination facsimile machine.
3)       If the Notice is transmitted by facsimile, the activity report of the transmitting facsimile machine containing the entry for the error free transmission of the Notice shall be prima facie evidence of the proper issue of the Notice.
Notwithstanding that the above satisfies all the requirements for Notice under these Terms, a party issuing Notice shall use its best endeavours to ensure that the party to whom Notice is being given has not only received the Notice but also understands the meaning and consequences of the Notice.
 

1.20 Force Majure

 Neither PIVOD Technologies nor the Customer shall be responsible for delays or failures resulting from acts beyond the reasonable control of such party.  Such acts shall include but are not limited to acts of God, strikes, lock-outs, riots and civil commotions, acts of war, epidemics, government rules and regulations imposed after the fact, fire, accident, theft, break-in, interruption in the normal supply of materials and components, communication line failure and death or disabling of key employees.
 

1.21 Modification  

Any modification to these Terms shall not be binding nor effective unless agreed to in writing signed by a director of PIVOD Technologies .
 

1.22 Carrier of Goods is an Agent of Customer

Where PIVOD Technologies has supplied Goods on an F.O.B. basis, the Carrier of the Goods shall be deemed to be an agent of the Customer.
 

1.23 Expiry of Proposal

The Proposal shall expire 30 days from the date thereupon.  PIVOD Technologies may at its own discretion accept or reject any Customer's agreement to the Proposal made after the expiry of the Proposal.
 

1.24 Jurisdiction

These Terms and any Contract ensuing from them shall be governed and construed in accordance with the law in force in the State of Western Australia.