Terms of Trade
1. SUPPLY OF GOODS
CMTP and the Customer agree that CMTP will supply the Goods & Services to the Customer pursuant to these Terms of Trade and any approved Credit Application.
2. PURPOSE & APPLICATION
These Terms of Trade are incorporated into each and every:
1.2.1 contract for the supply of Goods & Services made between CMTP and the Customer;
1.2.2 Credit Application;
1.2.3 credit account opened in the Customer’s name with CMTP; and
1.2.4 invoice issued in relation to the supply of the Goods & Services.
1.3 If more than one person is the Customer those persons contract jointly and severally for themselves and each other.
1.4 Where the Customer, as trustee of a trust, incurs a liability to CMTP, the Customer incurs that liability personally as well as in its capacity as trustee.
3. CUSTOMER ACKNOWLEDGEMENT
The Customer acknowledges and agrees that
1. 5 CMTP is not, and does not purport in any way, to be an engineering company and the design of the Goods and performance of Services will not be performed by qualified engineers. CMTP may consider coordinating with qualified engineers at the request of and engaged by the Customer if an agreement can be reached between the Customer, CMTP and the engineer;
1.6 the Goods have been designed and prepared in consultation with the Customer and to reflect the Customer’s specifications and stated requirements;
1.7 CMTP makes no representation that the Customer’s specifications or stated requirements will be suit the Customer’s needs; and
1.8 it has satisfied itself of the adequacy and appropriateness of its specifications and stated requirements. CMTP is not responsible if the Customer’s specifications or requirements are inadequate or inappropriate.
4. GOVERNING LAW
1.9 These Terms of Trade are governed by and construed in accordance with the Laws of Victoria, Australia and the Customer and CMTP each submit to the exclusive jurisdiction of the courts of Victoria in respect of the interpretation of, or any dispute arising under, these Terms of Trade.
1.10 The supply of Goods & Services under these Terms of Trade to an individual who acquires the Goods & Services as a Consumer will be subject to the ACL and nothing in these Terms of Trade is intended to exclude, restrict or modify rights which the Customer may have under the ACL or any Law which cannot be excluded, restricted or modified.
1.11 If any provision of these Terms of Trade is invalid under the ACL or any other any Law, that provision is enforceable to the extent that it is not invalid, and if it is not possible to give that provision any effect at all, then it is to be severed from these Terms of Trade and the remainder of these Terms of Trade will continue to have full force and effect.
1.12Any Quotation for the provision of Services is an estimate only.
1.13 Quotations and Prices are given exclusive of all taxes (including GST), duties and government charges levied in respect of the Goods & Services except to the extent they are expressly included in the Price and the Customer is responsible for payment of such taxes, duties and government charges.
1.14 The Customer has no right of set-off in respect of any claims against CMTP.
6. PAYMENT & INTEREST ON OVERDUE AMOUNTS
1.15 A Customer who is not an Account Customer must pay the Price:
1.15.1 in the case of Goods, before delivery; and
1.15.2 in the case of Services, before Services begin.
1.16 An Account Customer must pay the Price within 30 days from the end of the month that the goods were invoiced unless otherwise agreed upon by the parties in writing.
1.17 CMTP may charge interest on overdue amounts at the rate provided in the Penalty Interests Rate Act 1983 (Vic), plus 2%, compounded daily from the date of due payment until the date of payment in full of the overdue amount, plus interest.
1.18 The Customer will pay to CMTP upon demand all costs and expenses incurred by CMTP as a result of any delay in payment.
7. RISK & TITLE
1.19 Risk of loss or damage to the Goods passes to the Customer at the time the Goods are despatched, whether or not CMTP arranges delivery.
1.20 Ownership of the Goods does not pass to the Customer until the Customer has paid CMTP for the Goods in full and has paid CMTP all other monies it owes CMTP.
1.21 In this clause 8, PPSA means the Personal Property Securities Act 2009 (Cth). If a term used in this clause has a particular meaning in the PPSA, it has the same meaning in this clause.
1.22 The Customer acknowledges and agrees that these Terms of Trade constitute a Security Agreement and CMTP may register a Security Interest in the Goods.
1.23 To the extent permitted by Law:
1.23.1 the Customer waives its rights to receive any notice under the PPSA or any other Law before or after CMTP exercises any right, power or remedy; and
1.23.2 CMTP need not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d),132(4) or 137(3) of the PPSA; and
1.23.3 sections 142 and 143 of the PPSA are excluded.
1.24 If the Customer cancels an order it has placed with CMTP, the Customer must pay CMTP on demand all reasonable out of pocket expenses CMTP incurs as a consequence of the cancellation.
1.25 If CMTP has reason to believe that it will be unable to supply the Goods & Services ordered by the Customer within a reasonable time or at all due to circumstances beyond its reasonable control, CMTP may, without penalty, cancel the order, in which case, CMTP will refund the Customer any amount of the Price already paid in respect of that order.
Any time quoted for delivery of the Goods or completion of the Services is an estimate and is not binding on CMTP.
To the extent permitted by Law and except in respect of any applicable Consumer Guarantees, all guarantees, warranties (including warranties in relation to merchantability, fitness for purpose or quality), undertakings and representations (express or implied), which are not given in these Terms of Trade are excluded.
12. LIMITATION OF LIABILITY
1.26 Where the Customer purchases Goods & Services from CMTP as a Consumer but the Goods & Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, CMTP’s liability under the Consumer Guarantees is limited, at the option of CMTP, to one or more of the following:
1.26.1 replacing or repairing the Goods;
1.26.2 reimbursing the Customer the cost of replacing or repairing the Goods; or
1.26.3 re-supplying the Services again; or
1.26.4 reimbursing the Customer the cost of having someone else supply the Services.
1.27 If the Customer is not a Consumer, to the full extent permitted by Law:
1.27.1 CMTP will not be liable in any circumstances for any loss or damage (including consequential loss or damage) to the Customer or any property or Person whatsoever arising out of or connected with: these Terms of Trade; the provision of the Goods & Services; the delay in delivery or non-delivery of the Goods; or the delay in completing or the non-completion of the Services; and
1.27.2 The Customer shall indemnify CMTP against any claims arising out of or connected with: these Terms of Trade; the provision of the Goods & Services; the delay in delivery or non-delivery of the Goods; or the delay in completing or the non-completion of the Services.
13. DISPUTE RESOLUTION
1.28 Any dispute arising in connection with these Terms of Trade which persists for more than 14 days, can be referred by either Party to mediation in accordance with the rules for the conduct of commercial mediation for the time being of the Institute of Arbitrators and Mediators Australia. The parties will share the costs of mediation equally.
1.29 Save for seeking urgent interlocutory or injunctive relief, neither party may issue court proceedings in relation to a dispute arising in connection with these Terms of Trade until resolution by mediation has been attempted.
A single or partial exercise or waiver of a right relating to these Terms of Trade will not prevent any other exercise of that right or another right.
Unless otherwise inconsistent with the context:
1.30 ACL means The Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth);
1.31 Account Customer means a Customer who is entitled to obtain Goods & Services on credit in accordance with the terms of their successful Credit Application.
1.32 CMTP means CMTP Pty Ltd (ACN 120 049 505) and/or its trustee and affiliated entities and companies;
1.33 Consumer has the meaning prescribed to it in the ACL;
1.34 Consumer Guarantees means the guarantees in relation to the Goods & Services that apply compulsorily under the ACL;
1.35 Credit Application means an application to purchase Goods & Services on credit which is made by the Customer in the form prescribed by CMTP from time to time;
1.36 Credit Provider and Credit Reporting Body have the definition given to them in the Privacy Act;
1.37 Credit-Related Information means Credit Reporting Information and Credit Eligibility Information as defined in the Privacy Act;
1.38 Customer means the Person to whom CMTP supplies Goods & Services pursuant to these Terms of Trade and, in the case of an applicant submitting a Credit Application, means the Person whose details appear in the Credit Application;
1.39 Goods & Services means the goods, products, materials and/or services supplied by CMTP to the Customer from time to time;
1.40 GST has the meaning prescribed to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended);
1.41 Law means any relevant federal, state or local statute, ordinance, rule, regulation or standard, and includes the ACL, as amended from time to time;
1.42 Person includes a corporation and any other legal entity;
1.43 Personal Information means personal information and sensitive information as defined in the Privacy Act;
1.44 Price means the price payable for the Goods & Services;
1.45 Privacy Act means the Privacy Act 1988 (Cth) (as amended);
1.46 Quotation means any written or verbal quotation given by CMTP for the supply of Goods & Services;
1.47 Terms of Trade means the standard terms and conditions for the supply of Goods & Services to Customers, as set out in this document, as amended from time to time;