Terms and Conditions – Non Account Customers

1.         Definitions

In this document:

Agreement means these terms and conditions and the documents set out in clause 2 as applicable.

Client means any person to whom or for whose benefit CSA makes a Supply.

Confidential Information means all business, financial, personal, customer and supplier information relating to either party (as defined by the Corporations Act 2001 (Cth)) and the terms of this Agreement and all services, costing and pricing arrangements or other information disclosed under or in connection with this Agreement which would generally or at Law be considered to be confidential information.

Consequential Loss means any loss, damage, cost, expense or liability suffered or incurred by any person (including under an indemnity) whether arising in contract, tort (including negligence), under statute or on any other basis in Law or equity which is direct or consequential including loss of profits and anticipated profits, loss of revenue, loss of contract, loss of production, loss of goodwill, loss of use, loss of business opportunity, wasted overheads, penalties, losses, damages or liquidated sums (including liquidated damages) under any other contract or agreement other than this Agreement or any similar loss or cost considered as being beyond the normal measure.

Defective Goods means any Goods delivered to the Site which, after inspection by the Client, are reasonably defective, faulty or inferior quality to the Goods to be Supplied under this Agreement.

Delay Event means an act or omission of either party in breach of this Agreement.

Deliver/Delivery means delivery of the Goods or performance of the Services in accordance with this Agreement.

Delivery Date means the date set out in the Order.

Goods means any goods to be provided by CSA as part of the Supply.

Governmental Agency means any government, any governmental ministry, department, administrative, fiscal, environmental or regulatory agency, utility, authority or commission including their officers.

GST means any tax implemented under any GST Law.

GST Law means A New Tax System (Goods and Services Tax) Act 1999, and all related, auxiliary, amending or replacement legislation.

Insolvency Event means the occurrence of any of the following events in relation to any person where:

(a)   the person becomes insolvent as defined in the Corporations Act, states that it is insolvent or is presumed to be insolvent under an applicable Law;

(b)   the person is wound up, dissolved or declared bankrupt;

(c)   a liquidator, provisional liquidator, Controller, administrator, trustee for creditors, trustee in bankruptcy or other similar person is appointed to, or takes possession or control of, any or all of the person's assets or undertaking;

(d)   the person suspends payment of its debts, ceases or threatens to cease to carry on all or a material part of its business or becomes unable to pays its debts when they fall due; or

(e)   anything occurs under the Law of any jurisdiction which has a substantially similar effect to any of the other paragraphs of this definition,

unless the event occurs as part of a solvent reconstruction, amalgamation, merger or consolidation that has been approved in writing by the other party.

Law includes legislation, regulations, by-laws, orders, permits, approvals or licences.

Loss means any loss, cost, damage, expense, claim, demand, action, proceeding or liability of any kind, (including legal costs on an indemnity basis) excluding Consequential Loss.

Order means a purchase order, quotation or acceptance for the Goods, Supply or Services that is issued by the Client excluding any standard terms and conditions which may be stated on the Order.

PPSA means the Personal Property Securities Act 2009 (Cth).

Representative means, in relation to a party, the officers, employees or agents of that party.

Scope means the agreed Goods and Services to be supplied by CSA under any written or verbal agreement or any requirement of any Governmental Agency.

Security Interest has the same meaning as under the PPSA.

Services means and services to be provided by CSA as part of the Supply.

Site means the site specified in the Order by the Client or any other place provided by the Client for CSA to Deliver the Goods, perform the Services or Supply.

Supply/Supplies means the supply of Goods and Services by CSA in accordance with the Scope.

2.         Entire Agreement

The agreement between CSA and the Client is set out in:

(a)   this document;

(b)   any quotation or or similar document setting out the Scope provided by CSA;

(c)   any non-excludable terms implied by Law;

(d)   any Order; and

(e)   any agreed written variation.

3.         Precedence

3.1.      This document will apply to all Supplies by CSA to the Client, despite any terms or conditions suggested or proffered by the Client in any Order or similar document and will only be varied to the extent that any provision of this document is inconsistent with any matter relating to the Scope, set out in writing and expressly agreed between CSA and the Client.

3.2.      This Agreement supersedes all previous agreements, communication, representation, negotiation, or discussion and acts as the entire Agreement.

4.         Acceptance

The Client will be deemed to have accepted the agreement with CSA if it or its authorised representative accepts the agreement in writing or consents to or authorises CSA to commence the Supply.

5.         Services

5.1.      CSA will provide Supply and Services in accordance with the Scope.

5.2.      CSA and the Client must obtain all necessary permits, approvals and licences required by Law for the Supply and perform the Services.

6.         Delivery and Completion

6.1.      Delivery or Completion will have occurred when CSA has:

(a)   delivered the Goods to the Site; or

(b)   completed the Services.

6.2.      All Delivery Dates are indicative only. CSA will use reasonable commercial endeavours to meet all Delivery Dates. The Client must extend the Delivery Date for any Delay Event. 

6.3.      CSA may engage a third-party contractor to Deliver the Goods to the Site without the prior written consent of the Client. 

7.         Defective Goods

7.1.      When Goods are Delivered to the Site, the Client must immediately inspect the Goods prior to use, and if the Client reasonably determines the Goods are Defective Goods, the Client must notify CSA in writing within three (3) days of Delivery.

7.2.      If CSA agrees that the Good are Defective Goods it will, at its discretion:

(a)   provide a replacement of the Defective Goods and arrange for collection of the Defective Goods;

(b)   repair the Defective Goods so that they comply with the Scope; or

(c)   refund the amount paid for the Defective Goods.

7.3.      Other than set out in this clause, CSA will not reimburse the Client any damages or loss it has suffered as a direct result of the Delivery of the Defective Goods. This clause does not limit any other the rights of the Client under this Agreement, at Law or in equity.

8.         Price

8.1.      The price for the Supply will be calculated by reference to:

(a)   any written quotation which has been provided to the Client by CSA; or

(b)   any price list which has been provided to the Client by CSA; or

(c)   the usual prices charged by CSA for similar Supplies to other customers.

8.2.      CSA may change the price for any part of the Supply from time to time by written notice to the Client. The Client must within five (5) days following such notice to vary the prices, provide written notice to CSA to cancel the Supply however, if the Client does not so cancel the Supply, it will be deemed to be confirmation that the new prices will apply.

9.         Invoicing and Payment

9.1.      The Client must pay the price for the Supply or Services to CSA on the terms agreed at the commencement of the project.

10.       Cancellation

The Client may cancel a Supply at any time upon not less than three (3) days’ written notice to CSA.  If a Supply is cancelled after the notice period has expired, the Client remains liable for the price of any Supply.

11.       Risk and Title

11.1.   Risk in any Goods will pass to the Client will pass to the Client upon delivery.

11.2.   Title to any Goods will pass to the Client when the Client has paid for those Goods.

12.       Access to Property

The Client must ensure that CSA is able and authorised to entre and remain on any premises or property or Site where any part of the Supply is to be provided.

13.       Confidential Information

13.1.   The Client must keep confidential all Confidential Information and not disclose it to any other person, except:

(a)    with the written consent of CSA;

(b)    to its professional advisers; or

(c)    to any of its workers who have a need to know in order to perform obligations under the Agreement,

provided that the recipient agrees to keep the Confidential Information confidential.

13.2.   Clause 13.1 does not apply to information that is required to be disclosed by Law or the requirements of a stock exchange, but only to the extent that the information is required to be disclosed.

14.       Intellectual Property

The Supply will not confer on the Client any license, express or implied, under any intellectual property rights of CSA.  The Client must not, without the prior written consent of CSA use any trade mark or trade name of CSA in connection with the Supply or re-supply the Goods to any person.

15.       Warranty of Client

The Client represents and warrants to CSA:

(a)   that the Supply is fully authorised by the Client and any Governmental Agency with which the Client is dealing in relation to the Supply.

(b)   that the Supply will not breach any term of any agreement or obligation including, without limitation, any lease or license or other agreement, relating to the occupation of or affecting access to any land on which any part of the Supply is to be provided. The Client continually indemnifies CSA and its Representatives (“Indemnified Parties”) against any Loss suffered by the Indemnified Parties as a result of any default by the Client under this clause.

16.       Limited Warranty by CSA

Where the Supply includes Goods provided by a third party (“Manufacturer”), CSA will provide a warranty in respect of those Goods which is co-extensive with any warranty it receives from the Manufacturer. CSA warrants that the Supply will comply with any non-excludable warranties implied by Law but otherwise does not provide any warranty in relation to the Supply.  If CSA is required to comply with such a warranty, its liability is limited to:

(a)   the re-supply of the Supply; or

(b)   the refund of the cost of that part of the Supply as is found to breach such a warranty.

17.       Limitation of Liability and Consequential Loss

Notwithstanding any other provision of this Agreement neither party shall have any liability whatsoever (whether for breach of contract, under indemnity, negligence or on any other legal or equitable basis) under or in connection with this Agreement for loss of use, profit, revenue, business, data, contract or anticipated benefit or saving, or for any delay, financing costs or increase in operating costs or for any special, indirect or Consequential Loss. Otherwise, each party’s maximum aggregate liability (whether for breach of contract, under indemnity, negligence or on any other legal or equitable basis) is limited to the amount paid under this Agreement.

18.       Termination

18.1.   Either party may terminate this Agreement on written notice with immediate effect if:

(a)   either party fails to pay any amount due to the other party on any account and such failure continues for thirty (30) days after the date for payment; or

(b)   either party has not complied with any of its obligations under this Agreement; or

(c)   an Insolvency Event occurs.

19.       Security

In addition to its other rights, CSA may require the Client at any time to provide it with security for the obligations of the Client.  This security may take any form which CSA reasonably requires including, for example, a deposit of money into a bank account nominated by CSA, a credit card payment or the provision of a bank guarantee.

20.       PPSA

20.1.   The Client must not register any Security Interest over the Goods.

20.2.   The Goods must be free of any Security Interests on Delivery.

21.       General

21.1.   Nothing in this document is intended to or will operate so as to create any agency relationship between CSA and the Client.  The Client will not have authority to bind CSA or to contract in its name or create any liability or obligation for CSA in any way with any person including, without limitation, any Governmental Agency.

21.2.   No variation of this document will be effective unless it is in writing and expressly agreed to by CSA.

21.3.   If any provision of the Agreement is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in the Agreement.

21.4.   No obligation in the Agreement is waived unless it is waived in writing and signed by the parties. A single or partial exercise of or waiver of the exercise of any right power or remedy does not preclude any other or further exercise of that or any other right, power or remedy.

21.5.   The rights and remedies expressed in this document are cumulative and additional to any rights or remedies which CSA may have at Law. This document and its terms and interpretation and any dispute or disagreement arising in relation to any Supply are governed by the laws of Victoria, Australia and the Client submits to the non-exclusive jurisdiction of the courts of that place.

21.6.   All CSA Quotes are valid for thirty (30) days from the submission date and any variances to the original project scope will be charged accordingly.