Terms And Conditions
1.1 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting CNC to provide the Services as specified in any proposal, quotation, order, invoice, or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a partnership, it shall bind each partner jointly and severally; and
(c) if the Client is on behalf of or part of, a Trust, shall be bound in its own capacity as a trustee; and
(d) includes the Client’s executors, administrators, successors, and permitted assigns.
1.2 “CNC” means CNC Corporate IT Services Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of CNC Corporate IT Services Pty Ltd.
1.3 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.4 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.5 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using CNC’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
1.6 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
1.7 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between CNC and the Client in accordance with clause 8. below.
1.8 “Prohibited Content” means any content on any advertising media that:
(a) is, or could reasonably be considered to be, in breach of the Broadcast Services Amendment (Online Service) Act 1999 (Cth); the Competition and Consumer Act 2010 (Cth); or any other applicable law or applicable industry code; or
(b) contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered misleading or deceptive, likely to mislead or deceive or otherwise unlawful; or
(c) is, or could reasonably be considered to be, in breach of any person’s Intellectual Property Rights.
1.9 “Services” means all Goods or Services (which includes, but not limited to, any monitoring, data back-up or storage, content, files, information, printed or virtual material, data, hardware, software or applications (whether supplied from a third party software development company or where custom developed or programmed for the Client), brands, designs, images, graphics, pictures, trademarks, manuals, and other associated documentation and/or goods, accessories or parts) supplied by CNC 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).
1.10 “Software” shall mean the programs and other operating information (including documentation) used by a computer.
1.11 “Web Site” means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.
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 or Services provided by CNC.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 The Client acknowledges that the supply of Goods on credit shall not take effect until the Client has completed a credit application with CNC and it has been approved with a credit limit established for the account.
2.4 In the event that the supply of Goods requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, CNC reserves the right to refuse delivery.
2.5 These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on CNC’s Web Site. If there are any inconsistencies between the two documents, then the terms and conditions contained in this document shall prevail.
2.6 Once accepted by the Client, CNC’s quotation shall be deemed to correctly interpret the Client’s instructions, whether written or verbal. Where verbal instructions only are received from the Client, CNC shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.
2.7 Any advice, recommendation, information, assistance, or service provided by CNC in relation to Goods or Services supplied is given in good faith to the Client, or the Client’s agent and is based on CNC’s own knowledge and experience and shall be accepted without liability on the part of CNC. Where such advice or recommendations are not acted upon then CNC shall require the Client or their agent to authorise commencement of the Services in writing. CNC shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.
2.8 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Authorised Representatives
3.1 The Client acknowledges that CNC shall (for the duration of the Services) liaise directly with one (1) authorised representative, and that once introduced as such to CNC, that person shall have the full authority of the Client to order any Services, Goods and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to CNC for all additional costs incurred by CNC (including CNC’s profit margin) in providing any Services, Goods or variation/s requested thereto by the Client’s duly authorised representative.
4. Errors and Omissions
4.1 The Client acknowledges and accepts that CNC shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by CNC in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by CNC in respect of the Services.
4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of CNC; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
4.3 In circumstances where the Client is required to place an order for Goods, in writing, or otherwise as permitted by these terms and conditions, the Client is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order for Goods (whether they are made to order Goods or not). (“Client Error”). The Client must pay for all Goods it orders from CNC notwithstanding that such Goods suffer from a Client Error and notwithstanding that the Client has not taken or refuses to take delivery of such Goods. CNC is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Client Errors.
5. Change in Control
5.1 The Client shall give CNC 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, change of trustees, or business practice). The Client shall be liable for any loss incurred by CNC as a result of the Client’s failure to comply with this clause.
6. On-Line Ordering
6.1 The Client acknowledges and agrees that:
(a) CNC does not guarantee the website’s performance;
(b) display on the website does not guarantee the availability of any particular Goods; therefore, all orders placed through the website shall be subject to confirmation of acceptance by CNC;
(c) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades;
(d) there are inherent hazards in electronic distribution, and as such CNC cannot warrant against delays or errors in transmitting data between the Client and CNC including orders, and you agree that to the maximum extent permitted by law, CNC 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;
(e) when making a transaction through the website, the Client’s information will pass through a secure server using SSL (secure sockets layer) encryption technology or any other similar technology as disclosed by CNC and/or displayed on the website. The encryption process ensures that the Client’s information cannot be read by or altered by outside influences;
(f) if the Client is not the cardholder for any credit card being used to pay for the Goods, CNC shall be entitled to reasonably assume that the Client has received permission from the cardholder for use of the credit card for the transaction.
6.2 CNC reserves the right to terminate the Client’s order if it learns that you have provided false or misleading information, interfered with other users or the administration of CNC’s business, or violated these terms and conditions.
7. Credit Card Information
7.1 CNC will:
(a) keep the Client’s personal details, including credit card details for only as long as is deemed necessary by CNC;
(b) not disclose the Client’s credit card details to any third party;
7.2 The Client expressly agrees that, if pursuant to this Contract, there are:
(a) any unpaid charges;
(b) other amounts due and outstanding by the Client;
(c) any equipment (or any part of them) supplied on loan that are lost or damaged.
7.3 CNC is entitled to immediately charge the Client’s nominated credit card for these amounts and is irrevocably authorised to complete any documentation and take any action to recover from the credit card issuer any and all amounts which may be due by the Client pursuant to the terms of this Contract.
8. Price and Payment
8.1 At CNC’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by CNC to the Client; or
(b) the Price as at the date of Delivery of the Goods according to CNC’s current price list; or
(c) CNC’s quoted price (subject to clause (c)) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
8.2 CNC reserves the right to change the Price:
(a) where there is any variation to the accepted plan of scheduled Services (including, but not limited to, instructions, specifications or any additional work required due to hidden or unidentifiable difficulties that could not reasonably have been foreseen by CNC during the course of the Services), which will be charged for on the basis of CNC’s standard hourly rates (and double such rate for any Services provided outside CNC’s normal business hours); or
(b) where the performance of any contract with the Client requires CNC to obtain products and/or services from a third party, the contract between CNC and the Client shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to CNC, and the Client shall be liable for the cost in full including CNC’s margin of such products and/or services; or
(c) in the event of increases to CNC in the cost of labour or materials (including the increase in overseas transactions as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond CNC’s control.
8.3 Variations will be charged for on the basis of CNC’s quotation, and will be detailed in writing, and shown as variations on CNC’s invoice. The Client shall be required to respond to any variation submitted by CNC within ten (10) working days. Failure to do so will entitle CNC to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
8.4 At CNC’s sole discretion, a non-refundable deposit may be required.
8.5 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by CNC, which may be:
(a) on or before delivery of the Goods; or
(b) on completion of the Services; or
(c) by way of instalments/progress payments in accordance with CNC’s payment schedule;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by CNC.
8.6 Payment may be made by cash, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and CNC.
8.7 CNC may in its discretion allocate any payment received from the Client towards any invoice that CNC determines and may do so at the time of receipt or at any time afterwards. On any default by the Client CNC may re-allocate any payments previously received and allocated. In the absence of any payment allocation by CNC, payment will be deemed to be allocated in such manner as preserves the maximum value of CNC’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
8.8 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 CNC nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Client must notify CNC in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as CNC investigates the dispute claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in CNC placing the Client’s account into default and subject to default interest in accordance with clause 19.1.
8.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to CNC an amount equal to any GST CNC must pay for any supply by CNC 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.
9. Delivery of Goods
9.1 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 CNC’s address; or
(b) CNC (or CNC’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
9.2 At CNC’s sole discretion, the cost of Delivery is either included in the Price or is in addition to the Price.
9.3 CNC 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.
9.4 The Client must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery.
9.5 Any time specified by CNC for Delivery of the Goods is an estimate only and CNC will not be liable for any loss or damage incurred by the Client because of Delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. If CNC is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then CNC shall be entitled to charge a reasonable fee for redelivery and/or storage.
10. Provision of the Services
10.1 Each project is unique to a Client and the costings of a project are estimated and based on the requirements as defined by the Client at the initial meeting and shall include the hours and timeframe that CNC envisages it will take to complete, (subject to variations as per clause 8.2). The estimate covers the following:
(a) all technical, mandatory requirements and assumptions clearly itemised and disclosed by the Client prior to the initiation of the project to ensure all expected features and functionality have been correctly estimated; and
(b) any additional work requested or required outside of the original estimate/scope needs to be agreed that CNC is entitled to re-estimate the charges and timeframe without prejudice.
10.2 Any time specified by CNC for provision of the Services is an estimate only and CNC will not be liable for any loss or damage incurred by the Client as a result of provision being late. However, both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that CNC is unable to provide the Services as agreed solely due to any action or inaction of the Client, then CNC shall be entitled to:
(a) charge the Client additionally for re-providing the Services at a later time and date; or
(b) subject to clause 20., terminate the Contract.
11. Product Specifications
11.1 The Client acknowledges that all descriptive specifications, illustrations, drawings, data, dimensions, ratings and weights stated in CNC’s or manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the Contract, unless expressly stated as such in writing by CNC.
12.1 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.
12.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, CNC is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by CNC is sufficient evidence of CNC’s rights to receive the insurance proceeds without the need for any person dealing with CNC to make further enquiries.
12.3 If the Client requests CNC to leave Goods outside CNC’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.
12.4 The Client acknowledges and agrees that CNC shall not be held responsible or liable for:
(a) anything related to the Web Site, or any other services provided;
(b) any supplied content breaching any Acts, legislation or regulations, unless due to the negligence of CNC;
(c) any loss, corruption, or deletion of files or data (including, but not limited to software programmes) resulting from illegal hacking or Services provided by CNC. Whilst CNC will endeavour to restore the Web Site, files or data (at the Client’s cost), it is the sole responsibility of the Client to back-up any data which they believe to be important, valuable, or irreplaceable prior to CNC providing the Services. The Client accepts full responsibility for the Client’s Software and data and CNC is not required to advise or remind the Client of appropriate backup procedures (unless included as part of the Services);
(d) any loss or damage to the Client’s Software or hardware caused by any ‘updates’ provided for that Software.
12.5 CNC, its directors, agents or employees will not be liable in any way for any form of loss or damage of any nature whatsoever suffered, whether arising directly or indirectly, by the Client or any person related to or dealing with the Client out of, in connection with or reasonably incidental to the provision of the Services by CNC to the Client.
13.1 CNC and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid CNC all amounts owing to CNC; and
(b) the Client has met all of its other obligations to CNC.
13.2 Receipt by CNC 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.
13.3 It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 13.1:
(a) the Client is only a bailee of the Goods and must return the Goods to CNC on request;
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for CNC and must pay to CNC 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 CNC and must pay or deliver the proceeds to CNC 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 CNC and must sell, dispose of or return the resulting product to CNC as it so directs;
(e) the Client irrevocably authorises CNC to enter any premises where CNC believes the Goods are kept and recover possession of the Goods;
(f) CNC 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 CNC;
(h) CNC may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
14. Personal Property Securities Act 2009 (“PPSA”)
14.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
14.2 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 CNC to the Client, and the proceeds from such Goods.
14.3 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 CNC 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 14.3(a)(i) or 14.3(a)(ii);
(b) indemnify, and upon demand reimburse, CNC 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 CNC;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods or the proceeds of such Goods in favour of a third party without the prior written consent of CNC;
(e) immediately advise CNC of any material change in its business practices of selling the Goods which would result in a change in proceeds derived from such sales.
14.4 CNC 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.
14.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
14.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
14.7 Unless otherwise agreed to in writing by CNC, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
14.8 The Client must unconditionally ratify any actions taken by CNC under clauses 14.3 to 14.5.
14.9 Subject to any express provisions to the contrary (including those contained in this clause 14.), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
15. Security and Charge
15.1 In consideration of CNC 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, and the Client grants a security interest in all of its present and after-acquired property for the purposes of, including but not limited to registering CNC’s security interest over the Client on the PPSA, 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).
15.2 The Client indemnifies CNC from and against all CNC’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising CNC’s rights under this clause.
15.3 The Client irrevocably appoints CNC and each director of CNC as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15. including, but not limited to, signing any document on the Client’s behalf.
16. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
16.1 The Client must inspect the Goods on Delivery and must within forty-eight (48) hours of Delivery notify CNC 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 CNC to inspect the Goods.
16.2 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).
16.3 CNC acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
16.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, CNC makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. CNC’s liability in respect of these warranties is limited to the fullest extent permitted by law.
16.5 If the Client is a consumer within the meaning of the CCA, CNC’s liability is limited to the extent permitted by section 64A of Schedule 2.
16.6 If CNC is required to replace the Goods under this clause or the CCA, but is unable to do so, CNC may refund any money the Client has paid for the Goods.
16.7 If the Client is not a consumer within the meaning of the CCA, CNC’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 CNC at CNC’s sole discretion;
(b) limited to any warranty to which CNC is entitled, if CNC did not manufacture the Goods;
(c) otherwise negated absolutely.
16.8 Subject to this clause 16., returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause (d); and
(b) CNC 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 as close a condition to that in which they were delivered as is possible.
16.9 Notwithstanding clauses 16.1 to 16.8 but subject to the CCA, CNC 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;
(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 CNC;
(e) fair wear and tear, any accident, or act of God.
16.10 In the case of second hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Goods prior to Delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by CNC as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that CNC has agreed to provide the Client with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 16.10.
16.11 CNC may in its absolute discretion accept non-defective Goods for return in which case CNC may require the Client to pay handling fees of up to twenty-five percent (25%) of the value of the returned Goods plus any freight costs.
16.12 Notwithstanding anything contained in this clause if CNC is required by a law to accept a return, then CNC will only accept a return on the conditions imposed by that law.
16.13 Subject to clause 16.1, customised, or non-stocklist items or Goods made or ordered to the Client’s specifications are not acceptable for credit or return.
17. Intellectual Property
17.1 Where CNC has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of CNC. Under no circumstances may such designs, drawings and documents be used without the express written approval of CNC.
17.2 All Flash, PHP, Java Script, HTML and Dynamic HTML coding and other supplied code (if any) remains the intellectual property of CNC. Copying or disseminating the code for any purpose whatsoever is strictly forbidden and will be a breach of copyright.
17.3 Notwithstanding anything herein, the intellectual property rights in CNC’s Goods and CNC’s routines do not vest in the Client and there is no assignment of the intellectual property rights in CNC’s Goods or CNC’s routines to the Client. CNC may grant the Client a license to use the intellectual property referred to in clause 17.1 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 CNC unless express approval is given in advance by CNC. Such license shall terminate on default of payment or any other terms of this Contract by the Client.
17.4 The Client shall indemnify CNC against any claims by third parties for patent, trademark, design or copyright infringement, directly or indirectly arising out of the design, workmanship, material, construction, or use of the Goods or any other deficiency therein. Where the Client has supplied drawings, sketches, files, official insignia or logos to CNC, the Client warrants that the drawings, sketches, files, official insignia or logos do not breach any patent, trademark, design or copyright, and the Client agrees to indemnify CNC against any action taken by a third party against CNC.
17.5 The Client agrees that CNC may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which CNC has created for the Client.
18.1 The Client acknowledges and agrees that they will not divulge any information supplied by CNC that CNC has not made publicly available to any third party.
18.2 The Client agrees to protect all authorization details, including, but not limited to, usernames and passwords and agrees that these details shall not be written or stored in any manner which could result in their unauthorised disclosure.
18.3 In the event that CNC requests the change of any password or identifier relating to CNC’s system, the Client agrees to select a password or identifier meeting CNC’s specifications and will not to use commonly known details such as birthdays and or names.
19. Default and Consequences of Default
19.1 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 CNC’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
19.2 If the Client owes CNC any money, the Client shall indemnify CNC from and against all costs and disbursements incurred by CNC regarding legal costs on a solicitor and own client basis, internal administration fees, CNC’s contract fees owing for breach of these terms and conditions, including but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.
19.3 Further to any other rights or remedies CNC may have under this Contract, if a Client has made payment to CNC, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by CNC under this clause 19. where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
19.4 Without prejudice to CNC’s other remedies at law CNC shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to CNC shall, whether or not due for payment, become immediately payable if:
(a) any money payable to CNC becomes overdue, or in CNC’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by CNC;
(c) 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
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
20.1 Without prejudice to any other remedies CNC may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions CNC may suspend or terminate the supply of Goods to the Client. CNC will not be liable to the Client for any loss or damage the Client suffers because CNC has exercised its rights under this clause.
20.2 CNC 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 CNC shall repay to the Client any money paid by the Client for the Goods. CNC shall not be liable for any loss or damage whatsoever arising from such cancellation.
20.3 If the Client cancels Delivery of Goods, the Client shall be liable for all losses incurred (whether direct or indirect) by CNC as a direct result of the cancellation (including, but not limited to, any loss of profits).
20.4 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will not be accepted once production has commenced, or an order has been placed.
21.1 All emails, documents, images, or other recorded information held or used by CNC is Personal Information, as defined and referred to in clause 21.3, and therefore considered Confidential Information. CNC acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). CNC acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by CNC that may result in serious harm to the Client, CNC will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
21.2 Notwithstanding clause 21.1, privacy limitations will extend to CNC in respect of Cookies where the Client utilises CNC’s website to make enquiries. CNC agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to CNC when CNC sends an email to the Client, so CNC may collect and review that information (“collectively Personal Information”)
21.3 The Client agrees that CNC may exchange information about the Client with those credit providers and with related body corporates 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 including the Client’s repayment history in the preceding two (2) years.
21.4 The Client consents to CNC being given a consumer credit report to collect overdue payment on commercial credit.
21.5 The Client agrees that personal credit information provided may be used and retained by CNC for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
21.6 CNC may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
21.7 The information given to the CRB may include:
(a) Personal Information as outlined in 21.3 above;
(b) name of the credit provider and that CNC is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults (provided CNC is a member of an approved OAIC External Disputes Resolution Scheme), overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and CNC has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of CNC, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
21.8 The Client shall have the right to request (by e-mail) from CNC:
(a) a copy of the Personal Information about the Client retained by CNC and the right to request that CNC correct any incorrect Personal Information; and
(b) that CNC does not disclose any Personal Information about the Client for the purpose of direct marketing.
21.9 CNC will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
21.10 The Client can make a privacy complaint by contacting CNC via e-mail. CNC will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to reach a decision on the complaint within thirty (30) days of receipt of the complaint. If the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
22. Service of Notices
22.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
22.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
23.1 If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not CNC may have notice of the Trust, the Client covenants with CNC as follows:
(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
(b) the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Client will not without consent in writing of CNC (CNC will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Client as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
24.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.
24.2 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’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.
24.3 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 in that state. These terms prevail over all terms and conditions of the Client (even if they form part of the Client’s purchase order).
24.4 Subject to clause 16., CNC 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 CNC of these terms and conditions (alternatively CNC’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
24.5 CNC may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
24.6 The Client cannot licence or assign without the written approval of CNC.
24.7 CNC may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of CNC’s sub-contractors without the authority of CNC.
24.8 The Client agrees that CNC may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for CNC to provide Goods to the Client.
24.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party.
24.10 Both parties warrant that they have the power to enter this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
24.11 The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution and delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.