1.1 “Cadia Group” means Cadia Group Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Cadia Group Pty Ltd.
1.2 “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Goods” means all Goods or Services supplied by Cadia Group to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between Cadia Group and the Client in accordance with clause 5 below.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with Cadia Group’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Cadia Group.
2.3 The Client acknowledges and accepts that Cadia Group at their discretion, reserves the right not to supply Goods if, for any reason (including but not limited to, where the Goods are not or cease to be available, account disputes or conditions placed on Cadia Group by their suppliers. Cadia Group shall not be liable to the Client for any loss or damage the Client suffers due to Cadia Group exercising its rights under this clause.
2.4 The Client acknowledges that any advice or recommendations by Cadia Group are provided
on the basis of Cadia Group’s industry knowledge and experience only and shall not be deemed as specialist advice
2.5 These terms and conditions are meant to be read in conjunction with the Terms and Conditions of Use as posted on Cadia Group’s website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
- CHANGE IN CONTROL
3.1 The Client shall give Cadia Group not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by Cadia Group as a result of the Client’s failure to comply with this clause.
- ELECTRONIC TRANSACTIONS ACT 2000
4.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
- PRICE AND PAYMENT
5.1 At Cadia Group’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Cadia Group to the Client; or
(b) Cadia Group’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 Cadia Group reserves the right to change the Price if a variation to Cadia Group’s quotation is requested. Any variation from the plan of scheduled Services or specifications (including, but not limited to, any variation as a result of additional Services required due to unforeseen
circumstances such as overseas transactions that may increase as a consequence of variations
in foreign currency rates of exchange and/or international freight and insurance charges, requests from the Client in quantity amounts to be supplied, handling fees or as a result of any increase
to Cadia Group in the cost of materials and labour) will be charged for on the basis of Cadia Group’s quotation and will be shown as variations on the invoice
5.3 At Cadia Group’s sole discretion a non-refundable deposit may be required.
5.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Cadia Group, which may be:
(a) on delivery of the Goods;
(b) by way of instalments/progress payments in accordance with Cadia Group’s payment schedule;
(c) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(d) thirty (30) days following the date of the invoice;
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Cadia Group.
5.5 Payment may be made by cash, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two and a half (2.5%) percent of the Price), or by any other method as agreed to between the Client and Cadia Group.
5.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Cadia Group an amount equal to any GST Cadia Group must pay for any supply by Cadia Group under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
- DELIVERY OF GOODS
6.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Goods at Cadia Group’s address; or
(b) Cadia Group (or Cadia Group’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
6.2 At Cadia Group’s sole discretion the cost of delivery is in addition to the Price.
6.3 The Client must take delivery by receipt or collection 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 Cadia Group shall be entitled to charge a reasonable fee for redelivery and/or storage.
6.4 Cadia Group may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.5 Any time or date given by Cadia Group to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and Cadia Group will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
- ONLINE ORDERING
7.1 The Client acknowledges and agrees that:
(a) Cadia Group do not guarantee the websites performance or availability of any of its Goods; and
(b) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades; and
(c) there are inherent hazards in electronic distribution and as such Cadia Group cannot warrant against delays or errors in transmitting data between the Client and Cadia Group including orders, and you agree that to the maximum extent permitted by law, Cadia Group will not
be liable for any losses which the Client suffers as a result of online-ordering not being available or for delays or errors in transmitting orders.
7.2 Cadia Group reserve the right to terminate your order if it learns that you have provided false or misleading information, interfered with other users or the administration of Cadia Group Services, or violated these terms and conditions.
8.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
8.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Cadia Group is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Cadia Group is sufficient evidence of Cadia Group’s rights to receive the insurance proceeds without the need for any person dealing with Cadia Group to make further enquiries.
8.3 If the Client requests Cadia Group to leave Goods outside Cadia 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.
8.4 Cadia Group will make every effort to match batches of Goods supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur between batches of Goods or sale samples and the final Goods supplied.
9.1 Cadia Group and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Cadia Group all amounts owing to Cadia Group; and
(b) the Client has met all of its other obligations to Cadia Group.
9.2 Receipt by Cadia 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.
9.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 9.1 that the Client is only a bailee of the Goods and must return the Goods to Cadia Group on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Cadia Group and must pay to Cadia Group the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Cadia Group and must pay or deliver the proceeds to Cadia Group on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Cadia Group and must sell, dispose of or return the resulting product to Cadia Group as it so directs.
(e) the Client irrevocably authorises Cadia Group to enter any premises where Cadia Group believes the Goods are kept and recover possession of the Goods.
(f) Cadia Group may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Cadia Group.
(h) Cadia Group may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
- PERSONAL PROPERTY SECURITIES ACT 2009 (“PPSA”)
10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
10.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by Cadia Group to the Client.
10.3 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 Cadia 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 10.3(a)(i) or 10.3(a)(ii);
(b) indemnify, and upon demand reimburse, Cadia 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 Cadia 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 Cadia Group;
(e) immediately advise Cadia 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.
10.4 Cadia 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.
10.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
10.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
10.7 Unless otherwise agreed to in writing by Cadia Group, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
10.8 The Client must unconditionally ratify any actions taken by Cadia Group under clauses 10.3 to 10.5.
10.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
- SECURITY AND CHARGE
11.1 In consideration of Cadia Group agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
11.2 The Client indemnifies Cadia Group from and against all Cadia Group’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Cadia Group’s rights under this clause.
11.3 The Client irrevocably appoints Cadia Group and each director of Cadia Group as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Client’s behalf.
- DEFECTS, WARRANTIES AND RETURNS, COMPETITION AND CONSUMER ACT 2010 (CCA)
12.1 The Client must inspect the Goods on delivery and must within fourteen (14) days of delivery notify Cadia Group in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Cadia Group to inspect the Goods.
12.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
12.3 Cadia Group acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Cadia Group makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Cadia Group’s liability in respect of these warranties is limited to the fullest extent permitted by law.
12.5 If the Client is a consumer within the meaning of the CCA, Cadia Group’s liability is limited to the extent permitted by section 64A of Schedule 2.
12.6 If Cadia Group is required to replace the Goods under this clause or the CCA, but is unable to do so, Cadia Group may refund any money the Client has paid for the Goods.
12.7 If the Client is not a consumer within the meaning of the CCA, Cadia Group’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by Cadia Group at Cadia Group’s sole discretion;
- b) limited to any warranty to which Cadia Group is entitled, if Cadia Group did not manufacture the Goods;
(c) otherwise negated absolutely.
12.8 Subject to this clause 12, delivered goods may not be returned unless defective or damaged in transit, and:
(a) the Client has complied with the provisions of clause 12.1; and
(b) Cadia Group has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Goods are returned in identical condition to that in which they were delivered
12.9 Notwithstanding clauses 12.1 to 12.8 but subject to the CCA, Cadia Group shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed (including but not limited to misuse, abuse, neglect, electrical or other overload, non-suitable lubricant, improper installation);
(c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by Cadia Group;
(e) fair wear and tear, any accident, or act of God.
12.10 Cadia Group may in its absolute discretion accept non-defective Goods for return in which case Cadia Group may require the Client to pay handling fees of up to twenty percent (20%) of the value of the returned Goods plus any freight costs.
12.11 Custom made goods and special orders may not be returned.
12.12 Notwithstanding anything contained in this clause if Cadia Group is required by a law to accept a return then Cadia Group will only accept a return on the conditions imposed by that law.
- FORCE MAJEURE
Cadia Group is not liable for any delay or the failure to perform any obligation in the Customer’s favour arising as a result of any event beyond the control of Cadia Group.
- INTELLECTUAL PROPERTY
14.1 Where Cadia Group has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Cadia Group.
14.2 The Client warrants that all designs, specifications or instructions given to Cadia Group will not cause Cadia Group to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Cadia Group against any action taken by a third party against Cadia Group in respect of any such infringement.
14.3 Cadia Group may grant the Client a non-transferable licence to use the Intellectual Property referred to in clause 13.1 in relation solely to the operation of the Client’s business however, the
Client shall not use nor make copies of such Intellectual Property in connection with any work or business other than the work or business specified in writing to Cadia Group unless express approval is given in advance by Cadia Group. Such licence shall terminate on default of payment or any other terms of this agreement by the Client.
14.4 The Client further agrees that they shall not without Cadia Group’s prior written consent:
(a) allow any third party to have access to any designs, drawings or developed Goods; or.
(b) alter, modify, reverse engineer the software associated with the development of the Goods or tamper with any trademark marked on any finished Goods; or
(c) combine the software with any other software.
14.5 The Client agrees that Cadia Group may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Cadia Group has created for the Client.
- DEFAULT AND CONSEQUENCES OF DEFAULT
15.1 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 Cadia Group’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
15.2 If the Client owes Cadia Group any money the Client shall indemnify Cadia Group from and against all costs and disbursements incurred by Cadia Group in recovering the debt (including
but not limited to internal administration fees, legal costs on a solicitor and own client basis, Cadia Group’s contract default fees, and bank dishonour fees).
15.3 Without prejudice to any other remedies Cadia Group may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Cadia Group may suspend or terminate the supply of Goods to the Client. Cadia Group will not be liable to the Client for any loss or damage the Client suffers because Cadia Group has exercised its rights under this clause.
15.4 Without prejudice to Cadia Group’s other remedies at law Cadia Group shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Cadia Group shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Cadia Group becomes overdue, or in Cadia Group’s opinion the Client will be unable to make a payment when it falls due;
(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.
16.1 Cadia 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 Cadia Group shall repay to the Client any money paid by the Client for the Goods. Cadia Group shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by Cadia Group as a direct result of the cancellation (including, but not limited to, any loss of profits).
16.3 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items and/or indent orders, will definitely not be accepted once production has commenced, or an order has been placed.
- PRIVACY ACT 1988
17.1 The Client agrees for Cadia Group to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Cadia Group.
17.2 The Client agrees that Cadia 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.
17.3 The Client consents to Cadia Group being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
17.4 The Client agrees that personal credit information provided may be used and retained by Cadia Group for the following purposes (and for other purposes as shall be agreed between the Client and Cadia Group or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Cadia 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.
17.5 Cadia 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.
17.6 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;
(c) advice that Cadia Group is a current credit provider to the Client;
(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 Cadia Group, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s 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 Cadia Group has been paid or otherwise discharged.
18.1 The failure by Cadia Group to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Cadia Group’s right to subsequently enforce that provision. 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 New South Wales in which Cadia Group has its principal place of business, and are subject to the jurisdiction of the courts of Orange in that state.
18.3 Subject to clause 12 Cadia 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 Cadia Group of these terms and conditions (alternatively Cadia Group’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
18.4 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 Cadia Group nor to withhold payment of any invoice because part of that invoice is in dispute.
18.5 Cadia Group may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
18.6 The Client agrees that Cadia Group may amend these terms and conditions at any time. If Cadia Group makes a change to these terms and conditions, then that change will take effect from the date on which Cadia Group notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Cadia Group to provide Goods to the Client.
18.7 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.
18.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.