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CHS Group of Companies comprises of the following: CHS Group Australia Pty. Ltd. ABN: 89 006 724 385 ACN 006 724 385, CHS Projects Pty. Ltd. ABN 17 108 948 983 ACN 108 948 983, CHS Trucks Pty. Ltd ABN 64 081 039 732 ACN 081 039 732, CHS Construction Pty. Ltd. ABN 71 615 555 167 ACN 615 555 167.
(Materials and Services)
Pursuant to these Terms and Conditions, the Company shall supply, and the Customer shall accept, the Materials and/or Services.
These Terms and Conditions supersede all previous Terms and Conditions.
Materials are each and every article or thing specified in the Purchase Order and/or Quotation as to be purchased by the Customer.
Business Day means any day that is not a Saturday, Sunday or public holiday in Victoria.
Completion Date, where indicated on the Purchase Order or as requested by the Customer via other means (e.g. email, verbally or otherwise), is an estimate only, and no damage will arise if the Materials and/or Services are not completed by the Completion Date.
Company means CHS Group Australia Pty. Ltd. which is contracted to supply the Materials and/or Services indicated in the Purchase Order and/or Quote.
Contract means the agreement formed by these Terms and Conditions, together with the Company’s quotation, the Customer’s Purchase Order, and any credit approval or guarantee that the Customer is required to provide to the Company.
Customer means any individual or entity with whom the Company has entered a contract for the provision of Materials and/or Services in accordance with these Terms and Conditions.
Delivery Address means the delivery address as stipulated on any Purchase Orders or Quotations.
Event of Force Majeure means any event or circumstance beyond the reasonable control of the affected Party that prevents or delays the performance of its obligations under this Contract, including but not limited to:
“GST”, “Taxable Supply” and “Tax Invoice” have the same meanings as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Party means the Customer or Company, and Parties means both of them.
Purchase Order means a document entitled “Purchase Order” or “Service Order” which is issued by the Customer to the Company.
Services means the services specified in the Purchase Order, together with any materials and equipment required to enable or facilitate the proper performance of those services.
Site means the site which the Company may be required to perform the work/services.
In these Terms and Conditions, headings are for convenience only and shall not affect its interpretation. Except to the extent that the context otherwise requires:
This Contract is governed by and construed in accordance with the laws of Victoria and each of the Parties submits to the non-exclusive jurisdiction of the courts exercising jurisdiction there.
At the Company’s sole discretion, if there are any disputes or claims for unpaid Materials and/or Services then the provisions of the Building and Construction Industry Security of Payment Act 2002 15/2002 Version 012 may apply.
Nothing in this Contract is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 15/2002 Version 012 of Victoria.
Orders may not be altered or cancelled without the written consent of the Company. If the Company agrees to alter or cancel the order, the Customer shall indemnify the Company against any loss, damage and expense incurred by the Company in relation to the cancellation or alteration of that order including the cost of return freight, return shipping to factory of origin, items purchased from third parties for inclusion in Materials and all labour and engineering costs incurred by the Company in the execution or part execution of the Materials and including compensation payable to any supplier of the Company and loss of profit.
If the Company is asked to carry out additions or modifications to the Materials and/or perform additional Services or more frequent Services than those set out in either the Company’s quotation or the Customer’s Purchase Order (whichever is dated later), these will be deemed a variation and the quotation will be adjusted accordingly. Any variation will take into consideration the nature and extent of such additions or modifications and the cost the Company incurs in performing these, but (subject to this) all other conditions of the Contract will continue to apply.
Changes to the Quotation or Purchase Order (e.g. seeking an increase in quantity or additional services) at the Customer’s request after the formation of a Contract, will only be accepted at the Company’s discretion and will only take effect when agreed in writing and signed by a duly authorised signatory of the Customer.
Cancellation of orders for Materials made to the Customer’s specifications, or for non-stockist items, will definitely not be accepted once production has commenced, or an order has been placed.
Should the Customer fail to make due payment for any Materials supplied by the Company or commit a breach of any term of the sale, or being a natural person commit an act of bankruptcy, or being a corporation by act or omission enables the appointment of an administrator, scheme manager, trustee, official manager, receiver, receiver and manager, liquidator or any other person authorised to enter into possession or assume control of any property of the Customer pursuant to a mortgage or other security, the Company may, without prejudice to any other rights it may have, do any or all of the following:
A certificate, signed by the Director, Accountant, Credit Controller or other authorised person of the Company, stating the sum due and payable by the Customer under the contract at the date mentioned in that certificate, will be prima facie evidence that the sum so stated is the sum due and payable by the Customer to the Company under the contract at that date. The cost of collection of any monies due and payable, including but not exclusively the fees of any mercantile agent, debt collection agency or solicitor engaged by the Company will be recoverable on a full indemnity basis against the Customer.
The Parties agree to attempt to resolve any dispute arising under these Terms and Conditions through good faith negotiations. If the dispute is not resolved within fourteen (14) days of written notice by either Party, either Party may initiate legal proceedings.
These Terms and Conditions represent the entire understanding and agreement between the Parties concerning the subject matter of this Contract, and supersede all prior negotiations, representations, or agreements, whether written or oral.
All prior negotiations, understandings, representations, warranties, memoranda, or commitments relating to the subject matter of this Contract are superseded by these Terms and Conditions and shall have no force or effect. Neither Party shall be liable to the other in respect of any such prior matters.
Where there is more than one Customer then the liability of each shall be joint and several.
The contract shall be binding on the heirs, successors and assigns of the parties.
No variation, waiver or cancellation of the contract will be effective unless such variation, waiver or cancellation is expressly accepted and is in writing.
If any term or condition is unenforceable it shall be read down so as to be enforceable or, if it cannot be read down, the term or condition shall be severed from these Terms without affecting the enforceability of the remaining Terms.
Any additions to these Terms and Conditions shall be in writing and included as Special Conditions in the Purchase Order. In the event of any inconsistency between these Terms and Conditions and any Special Conditions, the latter shall prevail.
These Terms do not create an exclusive relationship between the Company and the Customer in respect of the provision of the Materials and/or Services.
Neither Party shall be liable for any delay or default in the performance of its obligations under this Contract caused by an Event of Force Majeure. That Party shall, for the duration of such event, be relieved of any obligation under this Contract that is affected by the event provided that that Party shall use its best efforts to cure such event (if curable) and to comply with each of its obligations as soon as any such event ceases to affect the performance of each of its obligations.
Unless expressly stated otherwise, all prices are exclusive of Goods and Services Tax (GST).
In addition to the price of the Materials and any other applicable charges, the Company may charge the Customer for any GST, sales tax, excise, value-added tax, or other duties or levies payable by the Company in relation to the Materials or Services, whether or not such amounts are itemised on the invoice.
The Company shall maintain appropriate insurance coverage for the duration of its obligations under these Terms and Conditions.
All intellectual property rights, including copyright, in any designs, drawings, documents, or products created, developed, or prepared by the Company for the Customer shall remain the exclusive property of the Company.
The Customer may only use such materials with the prior written consent of the Company and strictly in accordance with any terms or conditions specified by the Company.
The Customer warrants that all designs, specifications or instructions given to the Company will not cause the Company to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Company against any action taken by a third party against the Company in respect of any such infringement.
The Customer acknowledges and agrees that the Company may, at no cost, use any documents, designs, drawings, plans, or products created by the Company for the Customer for the purposes of marketing, promotional activities, or entry into industry awards or competitions.
Other than to the extent expressly set out as a separate component(s) in a Purchase Order and/or Quotation, pricing quoted in a Quotation is exclusive of GST, and inclusive of other indirect taxes and all other applicable taxes, duties, imports, insurance costs, fees or costs imposed by governmental authorities, transportation and delivery charges, in each case relating to the Purchase Order and/or Quotation.
Within five (5) Business Days of delivering the Materials and/or providing the Services, the Company will invoice the Customer for all Materials delivered and Services supplied by the Company to the Customer under this Contract.
The Company’s payment terms are:
Title to the Materials shall remain with the Company and will not pass to the Customer until the Company has received full payment for the Materials and/or Services, including all other monies owing by the Customer. Until such payment is made, the Company’s interest in the Materials constitutes a “security interest” under the Personal Property Securities Act 2009 (Cth), and the Customer agrees that the Company may register this security interest on the Personal Property Securities Register.
To protect the Company’s security interest in the Materials until payment, the Company may choose to register the Contract between the Company and the Customer under the Personal Property Securities Act 2009. The Customer agrees to do all things necessary to facilitate such registration.
The Company reserves the following rights in relation to the Materials until all amounts owed by the Customer to the Company are fully paid:
The Customer must, so long as the Company is entitled to the property in the Materials, store the Materials so that they are clearly identifiable as the property of the Company.
The full purchase price of the Materials and/or Services and any additional charges will become immediately due and payable if the Customer takes or has taken against it any action or proceeding, whether voluntary or compulsory, which could result in the winding up of the Customer.
In the event that the Materials are resold, or Materials manufactured using the Materials are sold, by the Customer, the Customer holds on trust such part of the proceeds of any such sale as represents the invoice price of the Materials sold or used in the manufacture of the Materials sold in a separate identifiable account as the beneficial property of the Company and must pay such amount to the Company upon request.
If payment is not made by the Customer by the due date specified in the invoice, the Customer shall return the Materials to the Company upon demand. If the Customer does not return the Materials to the Company within 48 hours of receipt of the demand, the Company shall be entitled to enter upon the Customer’s premises at any time to do all things necessary to recover the Materials. The Customer shall be liable for all costs associated with the exercise by the Company of its rights under this clause.
Should the Customer sell the Materials to any sub-purchaser, the Customer must obtain a specific acknowledgement from the sub-purchaser that property and ownership in the Materials will not pass to the sub-purchaser but will remain with the Company until payment in full of the purchase price of the Materials by the sub-purchaser to the Customer.
Interest is payable on any amounts owing by the Customer from the due date until the date of payment. Interest shall accrue daily and be compounded monthly at the rate prescribed under the Penalty Interest Rate Act 1983 (Vic), currently 10% per annum calculated daily and compounded monthly.
The Customer shall pay all legal and administrative costs and expenses incurred by the Company, its legal advisers, agents and others in respect of overdue accounts or anything instituted or being considered against the Customer, whether for debt or otherwise.
The Customer acknowledges that the Company shall not be liable—whether in contract, tort (including negligence), statute, or otherwise—for any indirect or consequential loss, including but not limited to loss of profit, revenue, opportunity, goodwill, data, or anticipated savings.
The Company shall not be liable for any breach of warranty or claim arising from environmental extremes, normal wear and tear, or any other cause beyond the Company’s reasonable control.
Nothing in this clause excludes or modifies any condition, warranty, or right implied by law (including under the Australian Consumer Law) where such exclusion or modification would be unlawful or render this clause void.
To the maximum extent permitted by law, the Company excludes all implied conditions and warranties and limits its liability, at its discretion, to:
For Materials: repairing the Materials; paying the cost of repair; replacing the Materials or supplying equivalent Materials; or paying the cost of replacement or supply of equivalent Materials.
For Services: resupplying the Services; or paying the cost of resupplying the Services.
The Company’s total liability under these Terms and Conditions shall not exceed the total amount paid by the Customer for the Materials and/or Services under the relevant contract.
The Company reserves the right to issue progress claim invoices as Materials are supplied and certain Services are completed and will issue a final invoice on completion of the work. Such progress claims will clearly define work completed or Materials made available. Payment is to be made by the Customer in accordance with these Terms and Conditions.
The Company reserves the right to make reasonable modifications in Materials of any kind without notice and to deliver revised designs or models of Materials against any order unless the right is specifically waived by the Company in writing. Prior to making modifications of a major nature which may affect the Customer in its contractual responsibilities, such modifications will be referred to the Customer for acceptance.
No quotation given by the Company to the Customer shall constitute an offer.
Prices given in any quotation by the Company are applicable to that quotation only and will not apply in any other instance.
Quotations issued by the Company remain valid for fourteen (14) days from date of issue (unless otherwise specified in the quotation). After this time the Company reserves the right to revise the quotation.
Completion and/or Delivery Dates, where indicated on the Quotation or any other document, are an estimate only, and no damages will arise if the Materials and/or Services are not delivered and/or completed by the Delivery and/or Completion Dates.
The Customer shall request Materials and/or Services from the Company via a Purchase Order, stipulating a requested Delivery Date and specifying a Delivery Address.
Any Purchase Order from the Customer to the Company for the supply of Materials and/or Services shall not be binding upon the Company until accepted by the Company.
A contract shall only be or be deemed to have been entered into between the Company and the Customer for the supply of Materials and/or Services when the Customer’s Purchase Order has been accepted by the Company in writing or where the Company starts performing the works.
These Terms and Conditions apply to the Customer and to the Company in respect of Materials and/or Services ordered by the Customer, and any terms and conditions set out in the Customer’s Purchase Order deviating from or inconsistent with these Terms and Conditions will not bind the Company notwithstanding any statement by the Customer in its Purchase Order that its terms and conditions shall prevail over these Terms and Conditions.
All quoted delivery or consignment dates are estimates only.
If the Company becomes aware of the likelihood of delay in delivery and/or provision of the Materials that are the subject of a Quotation/Purchase Order beyond the Delivery Date, the Company will notify the Customer of the delay and when delivery and/or provision is anticipated.
Should the Customer delay delivery of the Materials, the Company reserves the right to store the Materials and to obtain payment as though the Materials had been delivered and to recover storage, insurance and handling costs incurred due to the delay. The Company shall be entitled to make progress claims when Materials and/or Services are required ahead of scheduled delivery dates or when payment in full for the Materials and/or Services will be delayed.
Risk in the Materials and/or Services and all insurance responsibility for theft, damage or otherwise passes to the Customer at the time of delivery to the Delivery Address.
Acceptance of the Materials must take place immediately following delivery and is established if the Customer signifies by words or conduct that the Materials are conforming or that the Customer retains them in spite of their nonconformity or deals with them in a way inconsistent with its ownership.
The quoted price may be varied due to any of the following:
GST or Import Duty (if any) or any other taxes or duties included in the quotation are based on the rate applicable on all the items as at the date of the quotation. All variations, whether due to amendments of the relevant Acts or changes in interpretations of classifications, will be payable by the Customer and will be added to the quoted price.
Variations to rates of exchange, freight, insurance, primage and cartage on imported equipment or components, affecting the amount paid by the Company for the actual Materials or components supplied will also be payable by the Customer and will be added to the quoted price.
The Company shall advise the Customer of any such variation arising from this clause that may affect the value of any incomplete work to which the variation has been applied.
Subject to the terms of this Contract and unless otherwise agreed in writing, the Company warrants that all labour services provided shall be free from defects in workmanship for a period of thirty (30) days from the date of completion of the relevant services.
Unless otherwise agreed in writing, any parts supplied by the Company in connection with the services shall be warranted against defects for a period of thirty (30) days from the date of installation.
Where the Materials are manufactured by a third party or incorporate components supplied by a third party, the Company provides no warranty beyond the extent to which the benefit of any applicable third-party manufacturer’s warranty is passed on to the Customer. This limitation shall apply unless expressly agreed otherwise in writing by the Company.