1.1 “CBD Joinery” shall mean ‘The Trustee for CBD JOINERY TRUST’ and/or CBD Joinery Pty Ltd ABN 95 327 692 291 its successors and assigns or any person acting on behalf of and with the authority of CBD Joinery Pty Ltd.
1.2 “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by CBD Joinery to the Customer.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by CBD Joinery to the Customer (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 CBD Joinery to the Customer.
1.5 “Services” shall mean all Services supplied by CBD Joinery to the Customer 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 CBD Joinery and the Customer in accordance with clause 3 of this contract.
2.1 Any instructions received by CBD Joinery from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by CBD Joinery shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of CBD Joinery.
2.4 The Customer shall give CBD Joinery not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by CBD Joinery as a result of the Customer’s failure to comply with this clause.
2.5 Goods are supplied by CBD Joinery only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
3.1 At CBD Joinery’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by CBD Joinery to the Customer in respect of Goods supplied; or
(b) CBD Joinery’s quoted Price (subject to clause 3.2) which shall be binding upon CBD Joinery provided that the Customer shall accept CBD Joinery’s quotation by signing and dating a written quote or invoice within thirty (30) days. (Note: a deposit does not guarantee commencement of works. Works may not begin until documents are signed).
3.2 CBD Joinery reserves the right to change the Price in the event of a variation to CBD Joinery’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation due to fluctuations in the currency exchange rate, or as a result of increases to CBD Joinery in the cost of materials and labour) will be charged for on the basis of CBD Joinery’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
3.3 CBD Joinery may submit a detailed payment claim at intervals not less than weekly for work performed up to the end of each week. The value of work so performed shall include the reasonable value of authorised variations and the value of materials delivered to the site but not yet installed.
3.4 A 50% non-refundable deposit is required on or before any works to be carried out.
3.5 25% of the remaining balance is to be paid upon delivery of the Goods, subject to any other arrangement between CBD Joinery and the customer.
3.6 The final 25% is to be paid upon completion subject to any other arrangement between CBD Joinery and the customer.
3.7 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 fourteen (14) days following the date of the invoice.
3.8 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card or by direct credit, or by any other method as agreed to between the Customer and CBD Joinery with the Customer to pay any processing fees and charges upon their method of choice.
3.9 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.
4.1 At CBD Joinery’s sole discretion delivery of the Goods shall take place when:
(a) the Customer takes possession of the Goods at CBD Joinery’s address; or
(b) the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by CBD Joinery or CBD Joinery’s nominated carrier); or
(c) the Customer’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Customer’s agent.
4.2 At CBD Joinery’s sole discretion the costs of delivery are:
(a) included in the Price; or
(b) in addition to the Price; or
(c) for the Customer’s account.
4.3 The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then CBD Joinery shall be entitled to charge a reasonable fee for redelivery.
4.4 All hotplates, sinks and basins are to be on site before the installation date. CBD Joinery shall be entitled to charge a reasonable revisit fee if these appliances are not onsite and available for installation.
4.5 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
4.6 The failure of CBD Joinery to deliver shall not entitle either party to treat this contract as repudiated.
4.7 CBD Joinery shall not be liable for any loss or damage whatsoever due to failure by CBD Joinery to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of CBD Joinery.
5.1 CBD Joinery and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid CBD Joinery all amounts owing for the particular Goods; and
(b) the Customer has met all other obligations due by the Customer to CBD Joinery in respect of all contracts between CBD Joinery and the Customer.
5.2 Receipt by CBD Joinery 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 CBD Joinery’s ownership or rights in respect of the Goods shall continue.
5.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until CBD Joinery shall have received payment and all other obligations of the Customer are met; and
(b) until such time as ownership of the Goods shall pass from CBD Joinery to the Customer CBD Joinery may give notice in writing to the Customer to return the Goods or any of them to CBD Joinery. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
(c) CBD Joinery shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Customer fails to return the Goods to CBD Joinery then CBD Joinery or CBD Joinery’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods; and
(e) the Customer is only a bailee of the Goods and until such time as CBD Joinery has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to CBD Joinery for the Goods, on trust for CBD Joinery; and
(f) the Customer shall not deal with the money of CBD Joinery in any way which may be adverse to CBD Joinery; and
(g) the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of CBD Joinery; and
(h) CBD Joinery can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
(i) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that CBD Joinery will be the owner of the end products.
6.1 If CBD Joinery retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, CBD Joinery is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by CBD Joinery is sufficient evidence of CBD Joinery’s rights to receive the insurance proceeds without the need for any person dealing with CBD Joinery to make further enquiries.
6.3 Where the Customer expressly requests CBD Joinery to leave Goods outside CBD Joinery’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk and it shall be the Customer’s responsibility to ensure the Goods are insured adequately or at all.
7.1 Subject to the conditions of warranty set out in clause 7.2 CBD Joinery warrants that if any defect in any workmanship of CBD Joinery becomes apparent and is reported to CBD Joinery within 1 week of the date of delivery (time being of the essence) then CBD Joinery will either (at CBD Joinery’s sole discretion) replace or remedy the workmanship.
7.2 The conditions applicable to the warranty given by clause 7.1 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 Customer to properly maintain any Goods; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by CBD Joinery; 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 CBD Joinery shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without CBD Joinery’s consent.
(c) in respect of all claims CBD Joinery shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
7.3 For Goods not manufactured by CBD Joinery, the warranty shall be the current warranty provided by the manufacturer of those Goods. CBD Joinery 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 those Goods.
8.1 CBD Joinery 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 Customer. On giving such notice CBD Joinery shall repay to the Customer any sums paid in respect of the Price. CBD Joinery shall not be liable for any loss or damage whatsoever arising from such cancellation.
8.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by CBD Joinery (including, but not limited to, any loss of profits) up to the time of cancellation.
8.3 Cancellation of orders for Goods tailor made to the Customer’s specifications will not be accepted once production has commenced.
9.1 Returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 10.1; and
(b) CBD Joinery has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Customer’s cost within seven (7) days of the delivery date; and
(d) CBD Joinery will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 CBD Joinery may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of up to ten percent (10%) of the value of the returned Goods plus any freight costs.
9.3 Non-stocklist items or Goods made to the Customer’s specifications are under no circumstances acceptable for credit or return.
10.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify CBD Joinery of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford CBD Joinery an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage.
10.2 For defective Goods, which CBD Joinery has agreed in writing that the Customer is entitled to reject, CBD Joinery’s liability is limited to either (at CBD Joinery’s discretion) replacing the Goods or repairing the Goods except where the Customer has acquired Goods as a consumer within the meaning of the’ Fair Trading Acts’ of Victoria, 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.
11.1 Despite anything to the contrary contained herein or other rights that CBD Joinery may retain:
(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer 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 CBD Joinery or CBD Joinery’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that CBD Joinery (or CBD Joinery’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 CBD Joinery elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify CBD Joinery from and against all CBD Joinery’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint CBD Joinery or CBD Joinery’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 11.1.
11.2 Notice of Intention to Exercise Lien, Notice of Claim as per Victorian Building & Construction Industry Security of Payment Regulations 2013.
12.1 At CBD Joinery’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Victorian Building and Construction Industry Security of Payments Act 2002 may apply.
12.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 2002, except to the extent permitted by the Act where applicable.
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 CBD Joinery’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 Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by CBD Joinery.
13.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify CBD Joinery from and against all costs and disbursements incurred by CBD Joinery in pursuing the debt including legal costs on a solicitor and own client basis and CBD Joinery’s collection agency costs.
13.4 Without prejudice to any other remedies CBD Joinery may have, if at any time the Customer is in breach of any obligation (including those relating to payment) CBD Joinery may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. CBD Joinery will not be liable to the Customer for any loss or damage the Customer suffers because CBD Joinery 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 two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
13.6 Without prejudice to CBD Joinery’s other remedies at law CBD Joinery shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to CBD Joinery shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to CBD Joinery becomes overdue, or in CBD Joinery’s opinion the Customer will be unable to meet its payments as they fall due; or
(b) the Customer 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 Customer or any asset of the Customer.
14.1 The Customer shall ensure that CBD Joinery has clear and free access to the work site at all times to enable them to undertake the works. CBD Joinery shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of CBD Joinery.
14.2 Prior to CBD Joinery commencing any work the Customer must advise CBD Joinery of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Customer must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
14.3 Whilst CBD Joinery will take all care to avoid damage to any underground services the Customer agrees to indemnify CBD Joinery in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 14.1.
15.1 Where CBD Joinery has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in CBD Joinery, and shall only be used by the Customer at CBD Joinery’s discretion.
15.2 The Customer warrants that all designs or instructions to CBD Joinery will not cause CBD Joinery to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify CBD Joinery against any action taken by a third party against CBD Joinery in respect of any such infringement.
15.3 The Customer hereby authorises CBD Joinery to utilise images of the Goods designed or drawn by CBD Joinery in advertising, marketing, or competition material by CBD Joinery.
16.1 The Customer and/or the Guarantor/s agree for CBD Joinery to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by CBD Joinery.
16.2 The Customer and/or the Guarantor/s agree that CBD Joinery may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the credit worthiness of Customer and/or Guarantor/s.
16.3 The Customer consents to CBD Joinery being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Customer agrees that personal credit information provided may be used and retained by CBD Joinery for the following purposes and for other purposes as shall be agreed between the Customer and CBD Joinery or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by CBD Joinery, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and/or
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
16.5 CBD Joinery may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
17.1 The Customer and CBD Joinery shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the works.
17.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the works.
17.3 The Customer agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
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 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 Victoria.
18.3 CBD Joinery shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by CBD Joinery of these terms and conditions.
18.4 In the event of any breach of this contract by CBD Joinery the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
18.5 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by CBD Joinery nor to withhold payment of any invoice because part of that invoice is in dispute.
18.6 CBD Joinery may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
18.7 The Customer agrees that CBD Joinery 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 CBD Joinery notifies the Customer of such change.
18.8 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.
18.9 The failure by CBD Joinery to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect CBD Joinery’s right to subsequently enforce that provision.
