1. Interpretation
“ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) as amended.
“Agreement” has the meaning given in clause 3a.
“Anti-Corruption Law” means any law prohibiting or relating to bribery, corruption, kickbacks, secret commissions, or money laundering, including the Foreign Corrupt Practices Act 1977 (US), the Bribery Act 2010 (UK), the Criminal Code Act 1995 (Cth), the Crimes Act 1961 (NZ), the Secret Commissions Act 1910 (NZ), and any anti-corruption regulations applicable in the EU or other locations of Supplier business.
“Approvals” means all authorisations, permits, and licences required to permit the Supplier’s performance under this Agreement.
“Claim” means any actual, contingent, present, or future claim, demand, action, suit, or proceeding for any Liability, restitution, or remedy of any nature.
“Confidential Information” means any information relating to the Supplier or any related entity, including business plans, products, operations, and techniques.
“Consumer” means a consumer as defined in the ACL.
“Delivery” means delivery of Products or Services at or to a Site.
“GST” means the Products and Services Tax as defined in A New Tax System (Goods and Services Act) 1999 (Cth).
“Indirect Damage” means loss of use, production, revenue, income, business savings, profit, opportunity, goodwill, reputation, business interruption, or increased financing costs.
“Intellectual Property” means all proprietary rights including business names, trademarks, patents, inventions, trade secrets, designs, and copyright.
“Liability” means any loss, cost, payment, damages, debt, or expense.
“Modern Slavery” means any activity constituting an offence in relation to slavery, forced labour, debt bondage, or human trafficking.
“Order” means a request by the Customer to purchase Products or obtain Services.
“PPSA” means the Personal Property Securities Act 2009 (Cth).
“Products” means any Products which the Supplier sells or provides to the Customer.
“RBA” means the Reserve Bank of Australia.
“Related Bodies Corporate” has the meaning in the Corporations Act 2001 (Cth).
“Standard Prices” means the prices for Products and Services charged from time to time by the Supplier.
“Services” means any services provided by the Supplier, including Delivery.
“Site” means any location requested for delivery or performance of Services.
“Special Orders” means custom-made Products or items not usually sold by the Supplier sourced specifically for an Order.
“Supplier” means Cubis Systems Pty Ltd trading as Cubis Systems (ABN 19 067 462 337).
“Working Documentation” means drawings, specifications, and schedules provided to the Supplier.
2. Entire Agreement
The agreement between the Customer and the Supplier is constituted by these Conditions, any credit agreement (“Credit Terms”), and accepted Orders. This Agreement applies to any supply of Products and Services and supersedes any of the Customer’s terms. All Orders are subject to this Agreement and the Supplier objects to additional terms in any invoice or purchase order.
The Supplier may vary the Agreement by notice in writing. For Consumer Contracts or Small Business Contracts, the Customer may elect not to proceed if the variation is unacceptable. For other contracts, the Customer agrees that Products delivered after notice of variation will be subject to the varied terms.
3. Supply of the Products and Services
The Customer may order Products and Services as prescribed by the Supplier. Quotations are estimates only and not offers to sell. Orders are only accepted upon notification from the Supplier. The Supplier retains absolute discretion to refuse any Order.
The Customer is not entitled to cancel any Order or Agreement and must pay reasonable costs associated with any purported cancellation, including the value of unpaid Products supplied and the cost of manufactured or materials ordered. Delivery dates are estimates only; the Supplier is not liable for delays.
The Customer must arrange to take delivery when tendered. If delivery is delayed by the Customer for more than 30 days from the original date, the Supplier may invoice for the Products. Upon payment, the Products become the property of the Customer and will be stored separately and labelled accordingly.
4. Site Requirements and Delivery
The Customer must provide suitable and safe access to the Site. If the Site is unsafe, the Supplier may refuse delivery and charge for expenses incurred. The Customer must advise of any hazards like narrow roads or electrical wires in advance. Delivery is kerbside unless otherwise agreed. If delivery is requested beyond the kerbside, the Customer accepts all responsibility for damage or injury.
Risk in the Products and all insurance responsibility passes to the Customer immediately upon Delivery or collection. The Supplier is not obliged to obtain a signed receipt at Delivery, but a signed acknowledgment is conclusive evidence of Delivery and compliance.
5. Pricing and Payment
Unless a written fixed quote is provided, the Customer will be charged at the Supplier’s Standard Prices. Quotes are valid for 30 days. Payment terms are 20 business days from receipt of invoice without deduction or set-off. Time is of the essence for payments.
Interest is payable on outstanding amounts at the RBA cash rate plus 7% per annum. All prices are in AUD and exclusive of GST and other taxes unless stated otherwise. If GST is imposed, the recipient must pay an additional amount equal to the GST.
6. Special Orders
The Customer warrants that all Working Documentation for Special Orders is accurate. Products made for Special Orders are not returnable unless required by law. These Orders cannot be cancelled or varied after placement unless agreed in writing by the Supplier.
7. Retention of Title and PPSA
Title to Products remains with the Supplier until full payment is received. Until then, the Customer holds the Products as a bailee and must store them separately and keep them insured. The Customer grants a security interest to the Supplier in all Products supplied.
The Customer undertakes to do anything required to ensure the Supplier maintains a perfected security interest under the PPSA. The Customer waives the right to receive a copy of the verification statement under section 157 of the PPSA and agrees to contract out of various PPSA enforcement provisions to the extent permitted by law.
8. Returns
For Consumers: Products come with guarantees that cannot be excluded under the ACL. Customers are entitled to a replacement or refund for a major failure and compensation for other foreseeable loss.
For Non-Consumers: The Supplier will not accept returns unless agreed in writing. Claims for shortfall, defect, or incorrect delivery must be made in writing on the delivery docket. If the site is unattended, notice must be given within seven days.
9. Liability
To the extent permitted by law, the Supplier’s Liability is limited to the Price paid by the Customer as of the date of the Claim under the proximate Agreement. Neither party will be liable for Indirect Damage if the Customer is a Consumer or Small Business. If the Customer is not a Consumer or Small Business, the Supplier is not liable for any Indirect Damage.
10. General
Force Majeure: No party is liable for failure to perform due to causes beyond their reasonable control, excluding payment obligations.
Termination: A party may terminate immediately for liquidation, bankruptcy, or material breach. The Supplier may also terminate if the Customer engages in conduct damaging to its reputation.
Intellectual Property: All designs and documents created by the Supplier remain its property.
Modern Slavery: The Customer warrants it will not engage in Modern Slavery and will comply with all relevant laws.
Silica: Customer acknowledges concrete products may contain silica, a dangerous good, and will obtain handling advice.
Jurisdiction: This Agreement is governed by the laws of Victoria.