1.       DEFINITIONS AND INTERPRETATION

1.1.    In this Contract, unless the context otherwise requires capitalised terms have the meaning set out below:

(a)      “Confidential Information” means any information:

(i)      Relating to this Contract;

(ii)     Relating to a proposal or quotation or its contents;

(iii)    Relating to a Customer of Genius You;

(iv)     Disclosed by either party to the other party on the express basis that such information is confidential; or

(v)     Which might reasonably be expected by either party to be confidential in nature.

Provided that, where information relates exclusively to one party, nothing in this Contract will require that party to maintain confidentiality in respect of that information.

(b)     “Connectiv” means Moco Investments Pty Ltd trading as CONNECTIV, its successors, and assigns.

(c)      “Customer” means the person/s, entities (including but not limited to, partnerships and/or a trust and where applicable shall include the Customer’s executors, administrators, successors and permitted assigns) or any person with written consent given by the Customer to act on the Customer’s behalf to request Connectiv to provide Good and Services as specified in any quotation, purchase order or other documentation.

(a)      “Days” means calendar days in Australia, including weekends/public holidays.

(b)     “Goods” means any Goods or Services (including any documentation, advice, consultancy, or recommendations and where these terms and conditions give allowance to, the terms ‘Goods’ or ‘Services’ may be identified and substitutable for the other) provided to the Customer as specified in any Contract, quotation, proposal, order, or any other documentation.

(c)      “Personal Information” means information about an identifiable individual by ways of their name, address, D.O.B., occupation, driver’s licence details, electronic contact type details, such as, email, IP Address, Facebook, or Twitter, or next of kin and any other contact information (if applicable) and were deemed relevant shall include any previous credit applications or credit history details.  By the nature of such information, it shall always be considered Confidential Information.

(d)     “Price” means the Price due under this Contract for the supply of Goods and/or Services, as agreed between Connectiv and the Customer and (if applicable) shall include any Goods and Services Tax (“GST”) payable, in accordance with clause 2.

 

2.       PAYMENT TERMS

2.1.    The Price payable by the Customer shall be the date/s determined by Connectiv, which shall be:

(a)      30 Days from the date of invoice, prior to the supply of Goods or Services by Connectiv; or

(b)     By instalment for the supply of the Goods or Services as agreed, charged on a weekly/monthly cycle on the same day on which the booking of Services was initially made.

2.2.    Receipt for payment can be made through direct bank transfer, bank card (Mastercard or Visa, however, bank-imposed charges may apply per transaction) as acceptable payment methods. Outside of these options, Connectiv must be contacted first before the supply of any Goods or commencement of any Services will occur.

2.3.    Apart from where Connectiv states otherwise, GST is included in the Price, for all relevant Goods and Services supplied (including but not limited to, all stock, Services, costs, duties, fees, and freight charges) except where GST is explicitly not shown as included in the Price. 

 

3.       DELIVERY

3.1.    If Connectiv is only to supply Goods (no installation) then Delivery (“Delivery”) and/or (“Return”) relating to any Goods are understood to have taken place when:

(a)      The Goods are picked-up at Connectiv’s address by the Customer or the Customer’s representative; or

(b)     When a signed Delivery docket is obtained by Connectiv’s designated courier at the Customer’s given Delivery address; or

(c)      Connectiv is in receipt of the signed Delivery docket if Goods are returned to Connectiv’s address by the Customer.

3.2.    Any Delivery costs associated with the supply of Goods or Services (if applicable) shall be covered as such in the quotation and will be stated on the invoice issued to the Customer by Connectiv.  Additional travel charges will apply where the Services are to be provided outside of a 25km radius of Connectiv’s base.

3.3.    Delivery dates for the supply of the Goods and/or Services will only always be an estimate, as delays may occur beyond Connectiv’s control i.e., Third Party Contractors, Force Majeure, etc (including Government imposed lockdowns effecting Connectiv’s suppliers and employees, if a worksite is closed and all tradespeople are required to, self-isolate). Where circumstances are beyond Connectiv’s control, Connectiv does not accept any liability should any loss or damage be incurred by the Customer because of a late Delivery, however, Connectiv will at every opportunity liaise with the Customer to ensure Delivery does take place, as soon as reasonably possible.

3.4.    Notwithstanding clauses 3.2 and 3.3, Connectiv reserves the right to pass on a fair and reasonable charge to the Customer, if the Goods need to be stored or delivered again at a later stage, if the Customer is unable to take Delivery of the Goods as arranged.

 

4.       DEFECTS GOODS/SERVICES & RETURNS

4.1.    The Customer agrees to examine the Goods (Services on completion) on Delivery and shall satisfy itself that they conform with the quote, description, purchase order or any other document applicable to this Contract, that the Goods are of merchantable quality, fit for purpose and in a useable condition.

4.2.    If the Customer discovers a defect in the quality, or a shortage in the quantity of the Goods, or a failure to comply with Connectiv’s quote and these terms and conditions, they must immediately notify Connectiv of that defect.  If no notice is received by Connectiv within 5 Days from the time of delivery, then the Goods and Services shall be assumed to be accepted and clear from any defect or fault.

4.3.    Where any Goods or Services are found to be defective and Connectiv has confirmed in writing that the Customer is entitled to reject, Connectiv’s liability (subject to clause 10.3 and the Competition and Consumer Act 2010, if applicable) is limited to either (at Connectiv’s discretion) replacing or repairing the Goods and/or rectifying the defective Services.

4.4.    Returned Goods will only be accepted by Connectiv, provided that:

(a)      The Customer has complied with the provisions of clause 4.1;

(b)     Connectiv has confirmed in writing, that they are willing to accept the return of the Goods; and

(c)      The Goods for return are done so (at the Customer’s expense) within 30 Days of the Delivery date, or any other date as agreed with Connectiv; and

(d)     Returned Goods are still in good condition (as reasonable possible) together with all the original packaging materials, brochures, and instructions.

4.5.    Warranties: If a warranty is applicable, all conditions pertaining to said warranty over the Goods supplied by Connectiv shall be contained in the Warranty Documentation that will be supplied with the Goods at the point of Delivery and/or installation.  Connectiv recommends that the Customer familiarises themselves with this information, prior to making any claim against a warranty offered on the Goods.

 

5.       TITLE

5.1.    Title in the Goods and/or Services passes to the Customer only when payment in full (including any interest or additional charges under these Terms of Trade) has been received in cleared funds, and the Customer’s obligations have been fully satisfied. Until that time, Connectiv retains title, and the Customer acknowledges that Connectiv may have a security interest in the Goods under the Personal Property Securities Act 2009 (Cth) as outlined in the main Terms of Trade.

 

6.       LATE PAYMENT, DEFAULT AND DEBT RECOVERY

Default Interest

6.1.    If payment is not received within 30 Days of the invoice date, default interest may be charged at the rate of 2% per month, compounded monthly (equivalent to approximately 26.82% per annum). Interest may be charged both before and after the entry of any judgment by a court.

Recovery Costs

6.2.    In addition to default interest, the Customer agrees to indemnify Connectiv for all costs and expenses incurred in recovering any overdue amounts. This includes (but is not limited to) dishonour fees, chargeback fees, legal costs on a solicitor-client basis, in-house administration fees, and fees charged by any third-party debt collection agency engaged by Connectiv.

 

7.       CANCELLATION

7.1.    By Connectiv:

(a)      At any time before the Services are carried out upon provided the Customer 7 Days’ notice in writing; and

(b)     Connectiv agrees to refund the Customer any funds paid by the Customer in respect of the Goods or Services, less any amounts owing to Connectiv for any Goods purchased on the Customer’s behalf where credits or refunds cannot be obtained from Connectiv’s third- party suppliers; and

(c)      Connectiv will not be liable to the Customer for any loss or damage the Customer suffers because Connectiv has relied on its rights covered in this clause.

7.2.    By the Customer:

(d)     Upon written notice, giving no less than 7 Days prior to the commencement of the manufacture of the Goods. The Customer remains liable for any costs incurred by Connectiv (including, but not limited to, loss of profit) up to the time of cancellation; or

(e)      Where the Customer cancels an order that has commenced:

(i)      The initial notification may be by telephone but must be confirmed in writing or email within 7 Days; and

(ii)     The Customer shall be invoiced for all work completed up until the date of cancellation.  Any deposit paid prior to the commencement of the Services will be forfeited in lieu of monies due, however, the Customer remains liable for any monies due over and above any deposit paid; or

(iii)    At Connectiv’s discretion, where failure of clause (a)(e)(i) occurs, the Customer may be required to pay the full quoted Price.

(f)      Cancellation is not accepted by Connectiv, if the new Goods have been used, if the Customer later changes their mind, unless the cancellation is subject to the Competition and Consumer Act 2010.

 

8.       PRIVACY POLICY

8.1.    In accordance with the Privacy Act 1988 (Cth) including Part IIIC of the Act being the Privacy Amendment (Notifiable Data Breaches) Act 2017 (“NDB”) and any statutory requirements if related to an European Economic Area (EEA), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”) full disclosure has been made by Connectiv to the Customer that Personal Information will be collected, handled, used, and stored about the Customer during the business relationship and thereby, the Customer grants consent to Connectiv to proceed with any inquiries with any third party (including the likes of Telstra, thus allowing Connectiv’s to meet their obligations under their authorised dealer arrangement) necessary for the following purposes:

(a)      Assessing the Customer’s credit risk (if any);

(b)     Administering the Customer orders;

(c)      Receiving information from one or more credit reference agencies, relating the credit record and repayment history of the Customer;

(d)     Disclosing credit-related information to, and using the credit services of, one or more credit reference agencies, on a continuing basis at any time and entirely at its discretion concerning the Customer’s credit worthiness.

8.2.    For the avoidance of doubt, all authorities given above are continuing authorities, to apply throughout the duration of the term of Connectiv and Customer’s trading relationship and Connectiv confirms that no Personal Information about the Customer that is collected, handled, used, or stored is at no time disclosed to any third party for the purpose of direct marketing, unless consent has been obtained first from the Customer.

8.3.    Connectiv agrees to destroy Personal Information upon the Customer’s request in writing (or email) or if the Personal Information is no longer required unless it is required to fulfill the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.

8.4.    If any Customer believes their privacy has been breached in any way, then a privacy complaint can be made to Connectiv’s Privacy Officer via email, contact details can be found on Connectiv’s website – www.connectiv.com.au.  Connectiv will respond to that complaint within 7 days of its receipt and should more time be needed to investigate the complaint then Connectiv will undertake to decide on a resolution as to the complaint within 30 days of the original date of receipt.  If the Customer is not satisfied with the resolution provided by Connectiv, the Customer can make a complaint to the Office of the Australian Information Commissioner at www.oaic.gov.au.

8.5.    For the purposes of this clause 8 , Personal Information has the meaning given to it in the Privacy Act 1988 (Cth).

 

9.       CONFIDENTIALITY

9.1.    Each party agrees to treat all information and ideas communicated by the other party confidential and both parties agree not to divulge any such information to any third-party, without the other party’s written consent.

9.2.    All proposals or quotations, together with any expert information contained therein, provided by Connectiv to the Customer is done so on a ‘commercial in confidence’ basis.  The Customer agrees not to reproduce or provide any said information in any manner to any third-party without first seeking, prior written approval from Connectiv.

 

10.     JURISDICTION AND INDEMNITY

10.1.  If any term or obligation of this Contract is at any time held by any jurisdiction to be negated, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms and conditions.

10.2.  The legality, construction and performance of this Contract shall be governed by the laws of Australia. The Customer agrees that any dispute arising from the Contract between the two parties that cannot reasonably be resolved by mediation shall then be litigated only, by the jurisdiction of the Courts of Western Australia.

10.3.  CONNECTIV WILL NOT BE LIABLE FOR ANY LOSS CAUSED BY A FAILURE BY THE CUSTOMER TO COMPLY WITH THE CUSTOMER’S OBLIGATIONS UNDER THIS CONTRACT.  FURTHER, CONNECTIV’S TOTAL LIABILITY WILL NOT, UNDER ANY CIRCUMSTANCES, EXCEED THE PRICE OF THE GOODS OR SERVICES SUPPLIED OR PERFORMED, PURSUANT TO THIS CONTRACT.