Effective: 11 October 2022

1 Definitions used in these Terms

1.1 Definitions

(a) “Business Day” means a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the Services are to be performed.

(b) “CMA” means the Condition Monitoring Australia Pty Ltd as Trustee for the Bowles Family Trust (ABN 63 477 805 176).

(c) “Confidential Information” in relation to a Party, means all information and material, irrespective of its form, which is proprietary or confidential, which is marked ‘confidential’ or which a reasonable person would consider as being (or would assume is) confidential.

(d) “Customer” means the recipient of the Services, being the entity set out in the Quotation.

(e) “Fees” means the amounts payable by the Customer to CMA as consideration for the provision of the Services, as set out in the Quotation.

(f) “GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(g) “GST” means goods and services tax payable under the GST Act.

(h) “Intellectual Property” means all know-how, copyright and all rights in relation to inventions, registered and unregistered trade marks (including service marks), registered designs and circuit layouts, Confidential Information, trade secrets and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

(i) “Invoiced Amount” means the amount set out in a Tax Invoice for the relevant Services, having regard to the Fees and including any charges set out in clause 7.

(j) “Party” means CMA or the Customer.

(k) “Payment Term” means fourteen (14) days from the date of the relevant Tax Invoice, unless otherwise stated in the Quotation.

(l) “Quotation” means the quotation issued by CMA to a Customer setting out the Services and the Fees.

(m) “Quoted Price” means the price quoted by CMA in a Quotation, as varied in accordance with these Terms.

(n) “Services” means the services as described in a Quotation.

(o) “Tax Invoice” has the same meaning as in the GST Act.

2 Application of Terms

2.1 These standard terms and conditions (“Terms”) apply to all Services performed by CMA for a Customer.

2.2 The contract with the Customer (“the Contract”) will consist of:

(a) these Terms;

(b) the Quotation; and

(c) the Customer’s acceptance of that Quotation (whether in writing or by its conduct).

2.3 The Contract will constitute the entire agreement between CMA and the Customer and, to the extent permitted by law, all other terms, including warranties that may be implied by law or otherwise, are excluded.

2.4 If there is any inconsistency in the Contract documents, the Quotation will prevail.

3 Quoting and Pricing

3.1 Subject to the balance of these Terms, a Quotation given by CMA to the Customer will remain open for acceptance by the Customer for thirty (30) days from its date unless otherwise stated in the Quotation.

3.2 The Customer is required to make a 50% pre-payment of the Quoted Price at the time the Quotation is accepted, prior to CMA performing the Services, unless otherwise agreed in writing by CMA.

3.3 The Customer must pay a cancellation fee to CMA in the following circumstances:

(a) if the Customer cancels a booking within 5 Business Days of the scheduled work to be performed by CMA: 25% of the Quoted Price.

(b) if the Customer cancels a booking within 2 Business Days of the scheduled work to be performed by CMA: 50% of the Quoted Price.

4 Acceptance of Quotation and provision of Services

4.1 If the Customer has accepted a Quotation issued by CMA for the performance of Services, CMA must provide the Services to the Customer in accordance with the Quotation.

4.2 The Services provided by CMA as stipulated in a Quotation must be:

(a) provided with acceptable care, skill and technical knowledge, and taking all necessary steps to avoid loss and damage;

(b) fit for their intended purpose; and

(c) delivered within a reasonable time when there is no agreed end date.

4.3 CMA may be required to make certain assumptions in connection with the provision of the Services in accordance with sound professional practice, and CMA will promptly disclose all assumptions to the Customer after they are made.

5 Changes to the Services

5.1 CMA will be entitled to a reasonable adjustment to the Quoted Price if:

(a) CMA provides varied or additional Services at the request of or with the approval of the Customer;

(b) CMA experiences a change in the program or the date for completion of the Services, either at the request of the Customer or due to some other reason outside of CMA’s control; or

(c) new or varied legal requirements are introduced which increase CMA’s costs to provide the Services.

5.2 If there is a change to the Services to be provided by CMA to the Customer, CMA will:

(a) advise the Customer in writing that CMA will be claiming an adjustment to the Quoted Price due to a change in the Services; and

(b) agree with the Customer on the amount or basis for calculating the adjustment,

as soon as practicable after CMA becomes aware of the variation, the change in program, or the new or changed legal requirements or charges.

5.3 If CMA and the Customer fail to agree on the amount or basis for calculation of the adjustment to the Quoted Price, the adjustment will be calculated on the basis of CMA’s standard pricing practices (including any standard profit and overhead margins).

6 The Customer’s use of the Services

6.1 The Customer must: 

(a) only use the Services in accordance with any purpose which is agreed with CMA, having regard to:

(i) the application limitations of the Services (including the specific purposes for which the Services are expressly provided); and

(ii) disclosed qualifications or assumptions relating to the Services; and

(b) ensure that any person who the Customer allows to rely on the Services is notified of and accepts in writing:

(i) any qualifications and assumptions disclosed by CMA to the Customer in writing; and

(ii) that CMA’s liability to that person is limited to the same extent that CMA’s liability to the Customer is limited under these Terms.

6.2 The Customer indemnifies and holds harmless CMA from any loss or liability incurred by CMA as a result of the Customer’s failing to comply with this clause 6.

7 Invoicing and Payment

7.1 In consideration for the provision of the Services, the Customer will pay to CMA the Fee. The Fee may be charged by one or more invoices having regard to the nature and extent of the Services.

7.2 If the Fees has been adjusted due to an adjustment in the Services to be provided, CMA must separately note the nature and the amount of the adjustment on the relevant Tax Invoice.

7.3 The Invoiced Amount may include additional charges for the following (regardless of whether or not they formed part of any Quotation or Quoted Price), unless the Quotation states that such charges are included in the Quoted Price or otherwise not to be charged:

(a) normal travel and subsistence costs incurred by CMA in performing the Services;

(b) service fees or charges determined by CMA from time to time;

(c) any charge, duty or impost of any kind in connection with the Services;

(d) GST and all other statutory taxes and charges; and

(e) any other out-of-pocket costs and expenses specified in a Quotation.

7.4 The Customer must pay to CMA the Invoiced Amount on its due date as stated on the Tax Invoice.

7.5 Payment by the Customer under these Terms must be made in cleared funds to CMA’s nominated bank account.

7.6 If the Customer fails to pay an amount to CMA when it is due under this Contract:

(a) such failure constitutes a material breach of the Contract;

(b) the Customer must pay interest equal to 1.5% per month for each month (or part thereof) on overdue amounts from the Due Date until paid;

(c) the Customer must pay to CMA all expenses incurred by CMA in collecting or attempting to collect any moneys due and payable by the Customer to CMA as well as preserving CMA’s rights under these Terms, including the cost of debt collectors and legal fees on a full indemnity basis, commercial agents’ commission, bank fees, registration costs, enforcement costs, and loss of profit; and

(d) CMA is entitled to suspend performance of the Services until such time as the Customer makes payment of the outstanding Invoiced Amount, accrued interest, and all additional expenses incurred by CMA as applicable.

7.7 The Customer further agrees that:

(a) The Customer must make all payments to CMA without deduction or set off;

(b) CMA may apply and allocate payments received by, or on behalf of, the Customer in a manner in CMA’s absolute discretion; and

(c) CMA’s provision of a Tax Invoice is prima facie evidence of delivery of the provision of the Services identified in that Tax Invoice.

7.8 The Customer hereby:

(a) grants to CMA a security interest over all of its present and after acquired property; and 

(b) charges, as beneficial owner, all of its freehold and leasehold interest in real property (including land acquired in future),

in favour of CMA as security for payment of all moneys owing by the Customer to CMA at any time, and as security for the performance of the Customer’s obligations under the Contract.

8 Site and Access

8.1 CMA will provide the Services at the locations designated by the Customer.

8.2 The Customer must provide CMA with sufficient access to all locations reasonably necessary for CMA to provide the Services. CMA must adhere to any reasonably directions provided by the Customer in relation to location and site access.

9 Information Provided to CMA

9.1 CMA may rely on the following in providing the Services:

(a) the information contained in this Contract; and

(b) any other information provided by on behalf of the Customer at any time.

9.2 If CMA relies upon information or other services provided directly to CMA by a third party who is not a subcontractor, CMA will not be responsible or liable for the adequacy of any information or services provided by those third parties.

10 Time for Provision of Services

10.1 CMA will provide the Services diligently and in accordance with any timeframe or period agreed in writing with the Customer on a Quotation.

10.2 CMA will comply with any reasonable program or date for completion requested by a Customer and confirmed in a Quotation, however such program or completion date will be adjusted for any period that:

(a) CMA is delayed due to any situation or circumstance beyond its reasonable control; or

(b) CMA suspends the Services due to a material breach by the Customer of the Contract.

10.3 CMA will endeavour to notify the Customer of the occurrence of a delay, and any corresponding changes to the program of date for completion of the Services, as soon as practicable after a delay occurs. If there is no program or date of completion stipulated in the Quotation, CMA will complete the Services as soon as practicable after the delay event.

10.4 CMA is not liable for the cancellation or delay of the provision or completion of any Services if CMA’s provision of the Services is prevented or delayed directly or indirectly by any cause beyond CMA’s reasonable control including by an event of force majeure, whether such cause existed or was foreseeable at the date of the issue of the Quotation or not.

11 Intellectual Property

11.1 As between CMA and the Customer, CMA will at all times retain ownership of and all interest in all Intellectual Property relating to the Services, including copyright in all documents, drawings and specifications produced by CMA or on CMA’s behalf in connection with the Services. Any Intellectual Property provided to CMA by the Customer to enable it to perform the Services will remain the exclusive property of the Customer.

11.2 The Customer must not reproduce, modify, amend or publish, or allow to be reproduced, modified, amended or published, CMA’s registered or unregistered trademarks, names or logos without first obtaining CMA’s prior written consent.

12 Warranty and Indemnity

12.1 Warranties and provisions that may be implied by the Competition and Consumer Act 2010 (Cth) and any other legislation are expressly excluded except to the extent that exclusion is prohibited by the legislation.

12.2 To the extent permitted by law, CMA’s liability for:

(a) any claim that the Customer has or may have against CMA in relation to Services provided by CMA, whether that claim is based in contract, common law, tort, statute or otherwise; or

(b) any implied term, condition or warranty which cannot be excluded,

is limited, at the option of CMA, to a refund of an amount commensurate with the defective Services provided (not exceeding the Quoted Price) or the rectification of the Services by CMA at no additional cost to the Customer. 

12.3 CMA will not be liable for any economic loss, including loss of profits or consequential loss arising out of or connected to the supply (or non-supply) of the Services by CMA.

12.4 Except as otherwise expressly provided in these Terms, the Customer releases CMA from all actions, claims, demands, losses, liability, damages and expenses arising from or in relation to the supply of the Services and indemnifies CMA for any loss or liability that CMA may suffer (including the legal costs on an indemnity basis in defending or prosecuting any claim) arising from a breach of the Contract by the Customer.

13 Breach and Termination

13.1 CMA or the Customer may immediately terminate this Contract by written notice to the other party if:

(a) that other party breaches the Contract and has not remedied that breach within 14 days of written notice to do so; or

(b) that other party commits an act of bankruptcy or insolvency or enters into external administration or has a receiver appointed (to the extent permitted by law).

13.2 If CMA validly terminates this Contract, any amounts owing to CMA by the Customer then unpaid, whether or not due under the Contract, will become immediately due and payable.

13.3 This clause 13 survives termination of the Contract.

14 GST

14.1 Any consideration or payment obligation under the Contract is exclusive of GST unless expressly stated otherwise.

15 Subcontracting

15.1 CMA may subcontract the provision of any of the Services with the Customer’s prior written consent (which the Customer must not unreasonably withhold).

15.2 If CMA subcontracts the provision of any of the Services, CMA remains fully responsible for the Services.

16 Confidentiality

16.1 Neither CMA nor the Customer is permitted to disclose to third parties or use for any purpose (other than providing or benefiting from the Services) any Confidential Information provided by the other Party unless:

(a) the disclosure is required by law;

(b) the information is already generally known to the public (by reasons other than a breach of this clause 16); or

(c) the other party provides written consent to the disclosure.

16.2 Any documentation and materials containing Confidential Information provided by one party to the other during the provision of the Services must be returned upon request by the party who provided the Confidential Information.

17 Representatives

17.1 The Customer must appoint a representative who is authorised to do the following on the Customer’s behalf while the Services are being provided:

(a) receive any notices;

(b) give any directions or notices; and

(c) exercise any discretions or make any determinations to be exercised or made as required by the Contract.

18 Disputes

18.1 If a party believes a dispute has arisen between the parties, that party will notify the other of this in writing with reasonable details of the matters in dispute.

18.2 Within 14 days of receiving a notice of dispute, the parties must convene at a mediation and attempt to resolve the dispute in good faith.

18.3 If the parties are unable to resolve the dispute in good faith using reasonable endeavours within 30 days after convening at a mediation, either party may at any time commence court proceedings in respect of the dispute. 

19 General

19.1 All prices provided or advertised by CMA are in Australian dollars unless otherwise expressly stated.

19.2 These Terms will be governed by and construed in accordance with the laws of New South Wales, unless otherwise stated in the Quotation.

19.3 CMA does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy.

19.4 If any of the Contract terms are or later become illegal or unenforceable, the illegal or unenforceable part of the Contract are taken to be severed from the Contract, but all other terms of the Contract remain in place.

20 Products

20.1 Warranties and provisions that may be implied by the Competition and Consumer Act 2010 (Cth) and any other legislation are expressly excluded except to the extent that exclusion is prohibited by the legislation, and such prohibition overrides these Terms.

20.2 Any products supplied to the Customer as part of the Services come with the original manufacturer’s warranty. To the extent permitted by law, CMA gives no other warranty other than defective product supplied by CMA will be replaced by CMA without additional cost to the Customer.

20.3 Ownership of, and title in, the Goods will not pass to the Customer until the Customer has paid to the Company the Invoiced Amount payable in respect of those products. Until title in the products passes to the Customer:

(a) CMA has the right to call for or recover the products at its option and the Customer must deliver up the products if so directed by CMA;

(b) the Customer must keep the Goods fully insured; and

(c) the Customer holds the products in a fiduciary capacity for CMA;

20.4 At all times the Customer will allow CMA (including its officers, employees, contractors and agents) access to the Customer’s premises, to any other premises where the products are stored during normal business hours and to the products themselves in order to inspect the products and retake possession of the products under clause 20.3(a), and the Customer grants to CMA an irrevocable licence to enter the aforementioned premises for this purpose. The Customer acknowledges that this access shall be full, free and unhindered and shall not be or constitute trespass by CMA. The Customer indemnifies CMA for any liability or loss it suffers seeking to exercise its rights of access and retaking possession of the products.

20.5 If the Customer becomes bankrupt or enters into external administration or has a receiver appointed to it, the Customer’s right to sell the products in the ordinary course of business and any other rights of the Customer in respect of the products immediately cease (to the extent permitted by law) and the Customer must immediately return to CMA the products in which title has not passed.