Terms

1. DEFINITIONS

1.1 - “CDM Group” shall mean CDM Group Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of CDM Group Pty Ltd.

1.2 - “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by CDM Group to the Client.

1.3 - “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor basis.

1.4 - “Goods” shall mean all Goods supplied by CDM Group to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by CDM Group to the Client.

1.5 - “Services” shall mean all Services supplied by CDM Group to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).

1.6 - “Price” shall mean the Price payable for the Goods as agreed between CDM Group and the Client in accordance with clause 4 of this contract.

2. THE COMPETITION AND CONSUMER ACT 2010 (“CCA”) AND FAIR TRADING ACTS (“FTA”)

2.1 - Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.

2.2 - Where the Client buys Goods as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer’s statutory rights.

3. ACCEPTANCE

3.1 - Any instructions received by CDM Group from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by CDM Group shall constitute acceptance of the terms and conditions contained herein.

3.2 - Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.

3.3 - Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of CDM Group.

3.4 - The Client shall give CDM Group not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by CDM Group as a result of the Client’s failure to comply with this clause.

3.5 - Goods are supplied by CDM Group only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.

4. PRICE AND PAYMENT

4.1 - At CDM Group’s sole discretion the Price shall be either:

(a) as indicated on invoices provided by CDM Group to the Client in respect of Goods supplied; or

(b) CDM Group’s quoted Price (subject to clause 4.2) which shall be binding upon CDM Group provided that the Client shall accept CDM Group’s quotation in writing within thirty (30) days.

4.2 - CDM Group reserves the right to change the Price in the event of a variation to CDM Group’s quotation.

4.3 - At CDM Group’s sole discretion a deposit may be required.

4.4 - At CDM Group’s sole discretion payment shall be due on or before delivery of the Goods.

4.5 - CDM Group may submit detailed progress payment claims in accordance with CDM Group’s specified payment schedule. Such payment claims may include the reasonable value of authorised variations and the value of any materials delivered to the site but not yet installed.

4.6 - Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.

4.7 - Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to one and a half percent (1.5%) of the Price), or by direct credit, or by any other method as agreed to between the Client and CDM Group.

4.8 - GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

5. DELIVERY OF GOODS

5.1 - At CDM Group’s sole discretion delivery of the Goods shall take place when:

(a) the Client takes possession of the Goods at CDM Group’s address; or

(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by CDM Group or CDM Group’s nominated carrier).

5.2 - At CDM Group’s sole discretion the costs of delivery are in addition to the Price.

5.3 - The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then CDM Group shall be entitled to charge a reasonable fee for redelivery.

5.4 - Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.

5.5 - The failure of CDM Group to deliver shall not entitle either party to treat this contract as repudiated.

5.6 - CDM Group shall not be liable for any loss or damage whatsoever due to failure by CDM Group to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of CDM Group.

6. RISK

6.1 - If CDM Group retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.

6.2 - If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, CDM Group is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by CDM Group is sufficient evidence of CDM Group’s rights to receive the insurance proceeds without the need for any person dealing with CDM Group to make further enquiries.

6.3 - Where the Client expressly requests CDM Group to leave Goods outside CDM Group’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk and it shall be the Client’s responsibility to ensure the Goods are insured adequately or at all.

7. TITLE

7.1 - CDM Group and the Client agree that ownership of the Goods shall not pass until:

(a) the Client has paid CDM Group all amounts owing for the particular Goods; and

(b) the Client has met all other obligations due by the Client to CDM Group in respect of all contracts between CDM Group and the Client.

7.2 - Receipt by CDM Group of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then CDM Group’s ownership or rights in respect of the Goods shall continue.

7.3 - It is further agreed that:

(a) where practicable the Goods shall be kept separate and identifiable until CDM Group shall have received payment and all other obligations of the Client are met; and

(b) until such time as ownership of the Goods shall pass from CDM Group to the Client CDM Group may give notice in writing to the Client to return the Goods or any of them to CDM Group. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and

(d) if the Client fails to return the Goods to CDM Group then CDM Group or CDM Group’s agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated and take possession of the Goods; and

(e) the Client is only a bailee of the Goods and until such time as CDM Group has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to CDM Group for the Goods, on trust for CDM Group; and

(f) the Client shall not deal with the money of CDM Group in any way which may be adverse to CDM Group; and

(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of CDM Group; and

(h) CDM Group can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and

(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that CDM Group will be the owner of the end products.

8. PERSONAL PROPERTY SECURITIES ACT 2009 (“PPSA”)

8.1 - In this clause:

(a) financing statement has the meaning given to it by the PPSA;

(b) financing change statement has the meaning given to it by the PPSA;

(c) security agreement means the security agreement under the PPSA created between the Client and CDM Group by these terms and conditions; and

(d) security interest has the meaning given to it by the PPSA.

8.2 - Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions:

(a) constitute a security agreement for the purposes of the PPSA; and

(b) create a security interest in:

(i) all Goods previously supplied by CDM Group to the Client (if any);

(ii) all Goods that will be supplied in the future by CDM Group to the Client.

8.3 - The Client undertakes to:

(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which CDM Group may reasonably require to:

(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;

(ii) register any other document required to be registered by the PPSA; or

(iii) correct a defect in a statement referred to in clause 8.3(a)(i) or 8.3(a)(ii);

(b) indemnify, and upon demand reimburse, CDM Group for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;

(c) not register a financing change statement in respect of a security interest without the prior written consent of CDM Group;

(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of CDM Group; and

(e) immediately advise CDM Group of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

8.4 - CDM Group and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

8.5 - The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

8.6 - The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

8.7 - Unless otherwise agreed to in writing by CDM Group, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.

8.8 - The Client shall unconditionally ratify any actions taken by CDM Group under clauses 8.3 to 8.5.

9. SECURITY AND CHARGE

9.1 - Despite anything to the contrary contained herein or any other rights which CDM Group may have howsoever:

(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to CDM Group or CDM Group’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that CDM Group (or CDM Group’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.

(b) should CDM Group elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify CDM Group from and against all CDM Group’s costs and disbursements including legal costs on a solicitor and own client basis.

(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint CDM Group or CDM Group’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 9.1.

10. DEFECTS

10.1 - The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify CDM Group of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford CDM Group an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which CDM Group has agreed in writing that the Client is entitled to reject, CDM Group’s liability is limited to either (at CDM Group’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the Competition and Consumer Act 2010 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.

10.2 - Goods will not be accepted for return other than in accordance with 10.1 above.

11. WARRANTY

11.1 - Subject to the conditions of warranty set out in clause 11.2 CDM Group warrants that if any defect in any workmanship of CDM Group becomes apparent and is reported to CDM Group within twelve (12) months of the date of delivery/installation (time being of the essence) then CDM Group will either (at CDM Group’s sole discretion) replace or remedy the workmanship.

11.2 - The conditions applicable to the warranty given by clause 11.1 are:

(a) the warranty 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 Client to properly maintain any Goods; or

(ii) failure on the part of the Client to follow any instructions or guidelines provided by CDM Group; or

(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or

(iv) the continued use of any Goods 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.

(b) the warranty shall cease and CDM Group shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without CDM Group’s consent.

(c) in respect of all claims CDM Group shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.

11.3 - For Goods not manufactured by CDM Group, the warranty shall be the current warranty provided by the manufacturer of the Goods. CDM Group shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.

12. INTELLECTUAL PROPERTY

12.1 - Where CDM Group has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in CDM Group, and shall only be used by the Client at CDM Group’s discretion.

12.2 - The Client warrants that all designs or instructions to CDM Group will not cause CDM Group to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify CDM Group against any action taken by a third party against CDM Group in respect of any such infringement.

12.3 - The Client agrees that CDM Group may use any documents, designs, drawings or Goods created by CDM Group for the purposes of advertising, marketing, or entry into any competition.

13. DEFAULT AND CONSEQUENCES OF DEFAULT

13.1 - Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at CDM Group’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

13.2 - In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by CDM Group.

13.3 - If the Client defaults in payment of any invoice when due, the Client shall indemnify CDM Group from and against all costs and disbursements incurred by CDM Group in pursuing the debt including legal costs on a solicitor and own client basis and CDM Group’s collection agency costs.

13.4 - Without prejudice to any other remedies CDM Group may have, if at any time the Client is in breach of any obligation (including those relating to payment) CDM Group may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. CDM Group will not be liable to the Client for any loss or damage the Client suffers because CDM Group has exercised its rights under this clause.

13.5 - If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of fifty dollars ($50.00)) shall be levied for administration fees which sum shall become immediately due and payable.

13.6 - Without prejudice to CDM Group’s other remedies at law CDM Group shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to CDM Group shall, whether or not due for payment, become immediately payable in the event that:

(a) any money payable to CDM Group becomes overdue, or in CDM Group’s opinion the Client will be unable to meet its payments as they fall due; or

(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

14. CANCELLATION

14.1 - CDM Group may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice CDM Group shall repay to the Client any sums paid in respect of the Price. CDM Group shall not be liable for any loss or damage whatsoever arising from such cancellation.

14.2 - In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by CDM Group (including, but not limited to, any loss of profits) up to the time of cancellation.

14.3 - Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.

15. PRIVACY ACT 1988

15.1 - The Client and/or the Guarantor/s (herein referred to as the Client) agree for CDM Group to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by CDM Group.

15.2 - The Client agrees that CDM Group may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:

(a) to assess an application by the Client; and/or

(b) to notify other credit providers of a default by the Client; and/or

(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or

(d) to assess the creditworthiness of the Client.

The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.

15.3 - The Client consents to CDM Group being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

15.4 - The Client agrees that personal credit information provided may be used and retained by CDM Group for the following purposes (and for other purposes as shall be agreed between the Client and CDM Group or required by law from time to time):

(a) the provision of Goods; and/or

(b) the marketing of Goods by CDM Group, its agents or distributors; and/or

(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or

(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or

(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.

15.5 - CDM Group may give information about the Client to a credit reporting agency for the following purposes:

(a) to obtain a consumer credit report about the Client;

(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.

15.6 - The information given to the credit reporting agency may include:

(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number;

(b) details concerning the Client’s application for credit or commercial credit and the amount requested;

(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;

(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;

(f) information that, in the opinion of CDM Group, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Clients credit obligations);

(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;

(h) that credit provided to the Client by CDM Group has been paid or otherwise discharged.

16. UNPAID SELLER’S RIGHTS

16.1 - Where the Client has left any item with CDM Group for repair, modification, exchange or for CDM Group to perform any other Service in relation to the item and CDM Group has not received or been tendered the whole of the Price, or the payment has been dishonoured, CDM Group shall have:

(a) a lien on the item;

(b) the right to retain the item for the Price while CDM Group is in possession of the item;

16.2 - The lien of CDM Group shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.

17. BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 2002

17.1 - At the Seller’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payment Act 2002 may apply.

17.2 - Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 of Victoria, except to the extent permitted by the Act where applicable.

18. GENERAL

18.1 - If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

18.2 - If any provisions of these terms and conditions are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency.

18.3 - These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria and are subject to the jurisdiction of the courts of Bendigo, Victoria.

18.4 - CDM Group shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by CDM Group of these terms and conditions.

18.5 - In the event of any breach of this contract by CDM Group the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.

18.6 - The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by CDM Group nor to withhold payment of any invoice because part of that invoice is in dispute.

18.7 - CDM Group may license or sub-contract all or any part of its rights and obligations without the Client’s consent.

18.8 - The Client agrees that CDM Group may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which CDM Group notifies the Client of such change. The Client shall be under no obligation to accept such changes except where CDM Group supplies further Goods to the Client and the Client accepts such Goods.

18.9 - Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

18.10 - The failure by CDM Group to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect CDM Group’s right to subsequently enforce that provision.