Terms & Conditions
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CME Standard Terms and Conditions for the Supply of Services and Goods
1. Definitions and Interpretation
1.1 In these terms and conditions "we", "our" and "us" means
CME Group Pty Ltd as the trustee for CME Group Trust trading
as CME Group, CME Service, CME Projects, CME Energy and
CME Sports Lighting.
1.2 Customer means the Customer (or any person acting on
behalf of and with the authority of the Customer) as described on
any quotation, work authorisation, or other form provided by us to
the Customer.
1.3 Australian Consumer Law means the Competition and
Consumer Act 2010 (Cth).
1.4 Contract Price; means the amount as appears in the
quotation, this agreement or price of the schedule plus any
additional costs payable to us.
1.5 Contract means this signed agreement and all the terms are
binding on the parties.
1.6 Goods means any goods supplied by us to the
Customer (or ordered by the Customer but not yet supplied)
including, and in no way limited to, electrical or communication
products.
1.7 Latent Conditions means any unforeseen site condition not
obvious to us upon a reasonable inspection of the site at the time
of the quotation, work authorisation, tender or other form.
1.8 Travel Time means the distance from our premises to the
customer and return.
1.9 Works means the works described in this agreement or our
quotation, work authorisation, tender or other form.
1.10 CME means CME Pty Ltd (ABN 12 234 057 338) described
in Item 1 of the Contract Particulars or if no description has been
provided, the entity named in the CME Invoice.
1.11 CME Invoice means an invoice setting out the Services
and/or Goods supplied to the Client by CME and claiming
payment for the provision of those Services and/or Goods.
1.12 Works means the scope of works being tendered for as
detailed in CME offer which is inclusive of the Goods and/or
Services.
2. Validity Period
Our offer is open for acceptance for a period of thirty (30) days
from the date of tender submission or such time as the parties
agree in writing.
3. Deemed Acceptance
3.1 In the absence of written acknowledgement, the performance
of any of the Works by CME will be deemed acceptance of the
Contract.
3.2 Only these terms (not other terms and conditions which may
be attached to or incorporated in a purchase order) form part of
the agreement between us and the Customer. Our acceptance of
a purchase order will not be acceptance of any such terms or
conditions.
4. Price
4.1 The rates are as per our charges at the time the services are
engaged, unless otherwise agreed.
4.2 The rates do not include any allowance for latent conditions
and we will be entitled to vary our price for the works for any such
latent conditions.
4.3 We are entitled to be reimbursed for any and all costs and
charges levied by any statutory or other authority with respect to
the Works we perform for the customer.
4.4 Unless otherwise stated, the Contract Price quoted is net and
exclusive of Goods and Services Tax (GST).
5. Payment
5.1 Except as otherwise agreed by CME in writing, the Client,
shall pay all invoiced amounts in Australian dollars, without right
of set off, within thirty (30) days from the date of the CME
Invoice.
5.2 The following forms of payment are accepted: Visa,
MasterCard, EFTPOS, cash, cheque or direct deposit.
5.3 All payments to be by Australian Dollars unless stated
otherwise.
5.4 A surcharge of one point five percent (1.5%) may apply to
credit card payments.
5.5 Cheque payments will be subject to clearance from the
Contractor's bank and the customer will pay all dishonour fees.
5.6 The Customer is not entitled to any retention or otherwise
retain any amount due to us. All payments are to be made
without deduction or equitable or other set off whatsoever.
5.7 Your payment terms are as stipulated on your quote/invoice
or as agreed. Where you have not been otherwise notified, terms
of trade are a maximum of 30 days from date of invoice
5.8 We reserve the right to suspend the Works if payment is
overdue until such time as payment is made.
5.9 If the Client fails to pay CME the full amount stated in the
CME Invoice in accordance with this clause, then CME will
charge interest on the amount unpaid by the Client at a rate of
2% over CME commercial bank overdraft rate. Any debt recovery
costs including any legal costs incurred by CME is recoverable
from the Client.
6. Access to Site
The Client must provide CME access to the Site and possession
of a sufficient portion of the Site to enable CME to properly
perform the Works without interference. CME will be entitled to
claim an extension of time and costs incurred as a result of any
delay caused due to any interference of the Client or others on
Site and/or delay in access to the Site.
7. Latent Conditions
Latent Conditions are physical conditions affecting the Site
including artificial things but excluding weather conditions which
differ materially from the physical conditions which CME
reasonably anticipated at the time of submitting its offer.
CME will be entitled to claim an extension of time and reasonable
costs directly incurred as a result of a Latent Condition.
8. Limitation of Liability
Notwithstanding any other provision of this Contract and to the
full extent permitted at law, the total liability of CME to the Client
arising out of or in connection with this Contract for all loss,
damage, cost or expense suffered or incurred whether in contract
or tort (including negligence), in equity, in restitution, by way of
warranty or indemnity or under statute shall be limited to no more
than fifty percent (50%) of the Contract Price.
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9. Consequential Loss
Notwithstanding any other provision of this Contract and to the
full extent permitted at law, neither party is liable for any indirect,
special, contingent or consequential type losses or damages
which includes but is not limited to loss of actual or anticipated
profits, loss of opportunity, loss of goodwill or loss of revenue.
10. Proportionate Liability
Subject to clauses 8 and 9 above, CME shall be proportionately
liable to the extent that CME caused or contributed to such claim,
demand, proceeding, cost, expense, loss, liability or damage
under the Contract.
11. Delays
The Client shall reimburse CME all reasonable costs including
but not limited to overheads incurred by CME for any delays
except for delays caused by no fault of CME.
12. Returned Goods
CME is not under any duty to accept Goods returned by the
Client. If CME agrees to accept returned Goods from the Client,
the Client must return the Goods to CME at any place directed by
CME and on such other terms as CME directs.
13. Storage
CME reserves the right to make a reasonable charge for storage
of the Goods or any component of the Client to be used in
manufacture or supply of the Goods if delivery instructions are
not provided by the Client within 14 days of a request by CME.
14. Title and Risk
14.1 CME will deliver the Goods on the date as set out in Item 7
of the Contract Particulars to the place nominated in Item 8 of the
Contract Particulars.
14.2 On the Client’s receipt of the Goods, all risk relating to the
Goods passes to the Client. However, if the Client provides any
components to CME for inclusion in the Goods the risk of those
components remains with the Client at all times. CME will use all
reasonable care to provide suitable storage of the Client’s
components but will not be liable for any loss or damage.
14.3 It is acknowledged by the Client that CME fulfils all of its
obligations under this Contract once the Goods are delivered by
CME and received by the Client or collected by the Client,
whichever the earlier.
14.4 Title in the Goods remains with CME until all sums due and
owing by the Client to CME are paid in full notwithstanding the
delivery, receipt, collection or passing of risk to the Client.
14.5 Until title of the Goods passes, CME reserves and retains
the following rights in relation to the Goods until all accounts
owed by the Client to CME are fully paid;
14.5.1 to enter the Client’s premises, or the premises of any
associated entity or agent of the Client where the Goods are
located, without liability for trespass or any resulting damage and
retake possession of the Goods; and
14.5.2 to keep or resell the Goods repossessed under this
clause.
15. Personal Properties Securities Act
15.1 In this clause 15 words and expressions which are not
defined in these conditions but which have a defined meaning in
the PPSA have the same meaning as in the PPSA.
15.2 The Client acknowledges that CME has a purchase money
security interest in the Goods including, but not limited to, where
the Client has not paid for the Goods in full prior to delivery.
15.3 The Client acknowledges that if CME has rights and interest
in proceeds derived from the Goods such rights and interests
constitute a security interest in such proceeds.
15.4 CME may register any security interest on the PPSA
register in any manner it chooses (including by registering one or
more financing statements in relation to its interest in the Goods,
with such expiry dates as CME determines in its absolute
discretion). The Client must provide CME with any
information it requires for the purposes of giving effect to such
registration.
15.5 For the purposes of section 157(3) of the PPSA, the Client
irrevocably and unconditionally waives its right to receive any
notice from CME in connection with the registration of a financing
statement or a financing change statement in respect of the
Goods.
15.6 If section 95 or chapter 4 of the PPSA would otherwise
apply to the enforcement of any security interests then those
provisions are excluded, to the extent possible.
15.7 The Client must take any steps (including provide
information) CME reasonably requires to perfect or otherwise
ensure the enforceability and priority of any security interest.
15.8 Neither the Client nor CME will disclose information of the
kind described in PPSA section 275(1), unless section 275(7) of
the PPSA applies.
15.9 Until CME security interest (whether perfected or not) is
satisfied, the Client agrees not to cause or allow a security
interest of higher priority to be created in the Goods. If the Client
breaches this subclause, the Client shall indemnify CME for any
cost, expense, loss or damage suffered.
16. Warranty – General
16.1 CME warrants that:
16.1.1 the Goods will be of merchantable quality and be free from
substantial defect in workmanship;
16.1.2 All goods and services supplied by us shall have the
benefit of any warranty given by the goods respective
manufacturer. Subject to your rights under the Australian
Consumer Law and to the fullest extent permitted by law, you
agree that we will not be liable to you for loss of profit or other
economic loss, direct or indirect or consequential, special,
general or other damages or other expenses or costs arising out
of a breach or contract or any common law duty (including
negligence) by us, our agents or employees.
16.1.3 CME warrants the Goods for the period of 3 months
following receipt of the Goods and only insofar as the defect is a
result of faulty workmanship of CME or the use of substandard
materials by CME. If the Client finds a defect with the Goods or
Services the Client must notify CME in writing of the defect within
seven (7) days of discovery of the defect and must take all
reasonable precautions to prevent the use of the Goods;
16.1.4 CME will be responsible for the costs of actual
rectification/replacement works only and any associated costs
(including removal or transportation costs) shall be borne by the
Client; and
16.1.5 if CME uses a subcontractor or supplier or other person to
perform any work under the Contract (Other Person), any work,
labour and services carried out by the Other Person shall only be
warranted by CME to the degree that the Other Person
indemnifies CME.
16.2 All Goods and services supplied by us shall have the benefit
of any warranty given by the Goods' respective manufacturer.
However, subject to the Australian Consumer Law, we will not be
liable for any damage, direct or consequential, arising out of any
faults or defects including, but not limited to, those caused by:
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16.2.1 External causes including natural disaster, fire, water,
lightning, power surge or spike, accident, neglect, misuse,
vandalism.
16.2.2 The use of the goods for other than its intended purpose.
16.2.3 The use with or connection of the goods to item/s not
approved by us.
16.2.4 The performance of maintenance or attempted repair by
person/s other than us or as authorised by us.
16.2.5 Any configuration or reconfiguration by the Customer.
17. Defects Liability Period
17.1 The defects liability period will commence from the
Completion Date or upon issue of the certificate of practical
completion for the Works whichever is earlier and shall be for a
period of 12 months, unless otherwise stated in the Contract. Any
additional warranty provided by a manufacturer for Goods which
CME has supplied will be passed on to the Client on agreement
with the manufacturer.
17.2 During the defects liability period, CME will make good or
replace (as the case may be) defective Goods and/or Services,
excluding;
17.2.1 any interfacing between the Client’s equipment, Site, plant
or design (unless expressly included as part of Services under
the Contract);
17.2.2 ordinary wear and tear; and
17.2.3 any damage which has been caused or contributed by the
Client’s negligence or acts or omissions.
18. Intellectual Property
18.1 CME retains all intellectual property and ownership rights of
such in any Intellectual Property and other information relating to
the Works which is created or modified by CME during the
Contract.
18.2 The Client acknowledges that CME will not be responsible
for any infringement of any intellectual property of the Client that
the Client has in any components, material or additional
documents and CME will not be liable for any claim whatsoever
due to CME use of the Client’s intellectual property.
18.3 The Client shall indemnify and hold harmless CME against
and from any claim alleging an infringement of all intellectual
property rights, moral rights and ownership rights in any
information provided by the Client to CME.
19. Variations and changes to cost of materials
19.1 The Customer shall be entitled to direct that we undertake a
variation and such direction shall be in writing and if we are
delayed, then the Customer will grant us an extension of time
and reimburse us our reasonable delay costs and the Contract
Price shall be adjusted accordingly.
19.2 We shall be entitled to be reimbursed any additional costs
as a consequence of any increase in material costs that exceed
5% of the original cost of such materials at the time of the award
of the Contract.
20. Confidentiality
The Client acknowledges and agree that any information
submitted by CME in its offer which includes but is not limited to
pricing, technical specifications and other information is
commercial in confidence and submitted solely for evaluation by
the Client. Such information must at all times remain confidential
and shall not be disclosed to any third party without CME prior
written consent.
If such information is disclosed to a third party with CME prior
consent, the Client must ensure that as a condition precedent to
the passing of such information that the third party accepts and
acknowledges to be bound by confidentiality obligations.
21. Asbestos and other hazardous materials
The Client is responsible for ensuring Works being performed on
the Client’s Site is in an asbestos and hazardous free
environment. The Client is responsible for all costs arising as a
result of the presence of asbestos, asbestos contaminated
material or any other hazardous material in or on the Client’s Site
where the Works are required to be performed.
22 Site and Safety
22.1 The Customer shall be responsible for the site.
22.2 The Customer shall ensure that all legislation and standards
applicable to workplace safety are adhered to on the site.
22.3 We shall comply with all legislation and standards in the
maintaining of safe work practices.
23. Excavations & Existing Underground Services
23.1 The Contract is based on any excavation required in
performance of the works being in soil or clay and free of rock.
The Customer acknowledges that should it be necessary for us
to excavate in other material, including but not limited to rock and
shale, then such shall be a latent condition and the Customer will
pay to us a reasonable extra price.
23.2 We shall ring "Dial Before You Dig" prior to any excavation.
23.3 We shall be entitled to rely on the "Dial Before You Dig"
report being conclusive and binding on the parties.
23.4 If the Customer requires us to excavate by hand:
23.4.1 we shall be entitled to an extension of time;
23.4.1 our reasonable costs for any resulting delay;
23.4.3 payment for such excavation at our hourly rates.
23.5 If the Customer fails to give us relevant site information and
we, through no fault of our own, causes damage to any services,
then the Customer shall indemnify and forever hold harmless us
from any and all claims for damages made against us.
24. Inconsistency
To the extent of any inconsistencies, the Conditions prevail over
any other document.
25. Cancellation
Either party has the right to cancel this Contract because of any
event beyond the reasonable control of either party which alters
the ability of the cancelling party to fulfil the terms of this
Contract. If CME cancels this Contract, the Client agrees and
acknowledges that it will not prosecute any claim in law or in
equity against CME. The Client agrees if the Client cancels this
Contract, it will pay to CME all outstanding CME Invoices and for
all Goods and/or Services provided to the Client up to the date of
cancellation including any orders placed that cannot be cancelled
or a restocking fee if applicable. The Client will also indemnify
CME against any losses incurred by CME as a result of the
termination.
26. Force Majeure
26.1 If performance by CME of any obligation under the Contract
is prevented, restricted or delayed by Force Majeure then CME
shall be excused from and shall not be liable for failure in
performance to the extent of that prevention, restriction or delay
and the time for performance shall be extended accordingly,
subject to the terms of clause
26.2. Force Majeure Events shall include but not limited fire,
tempest, government intervention, epidemic or pandemic
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infectious diseases, shortages of material/ equipment, labour or
utilities.
26.2 If supply is delayed for more than four (4) months by Force
Majeure and the parties have not agreed upon a revised basis for
continuing the supply at the end of the delay, then either party
may after that period and while the cause of non-performance
still exists terminate the Contract by not less than 30 days’ notice
in writing to the other party.
27. Dispute Resolution
If a difference or dispute between the parties arises in connection
with the subject matter or interpretation of this Contract, including
a dispute concerning a claim in tort, under statute, or on any
other basis in law or equity available under the law governing the
Contract (‘Dispute’), either party may by hand or registered post
give the other party written notice of the dispute identifying and
providing details of the dispute and entitled Dispute Notice
(‘Dispute Notice’).
Within seven (7) days of receipt of Dispute Notice
representatives of the parties having authority to bind the parties
shall confer to seek to resolve the Dispute or agree on a method
of doing so and whether that method shall be binding. If a
resolution or method of resolution has not been agreed within
twenty one (21) days of the receipt of Dispute Notice, the
General Manager of the parties shall confer for the same purpose
as the parties' representatives. All aspects of such conference(s)
shall be privileged.
Neither party may institute legal proceedings in respect of any
Dispute unless a Dispute Notice in respect thereof has first been
given and then only after a period of twenty eight (28) days from
receipt of such Dispute Notice has elapsed.
28. General
28.1 The Contract is governed by the law as stipulated in Item 11
of the Contract Particulars and the parties submit to the non-
exclusive jurisdiction of those Courts. Where there is no
jurisdiction stipulated in Item 11 the jurisdiction is Western
Australia.
28.2 Any waiver partly or whole of the terms of the Contract will
be valid only if in writing and signed by CME.
28.3 Any provision of the Contract that is prohibited or
unenforceable, such unenforceability shall not invalidate
the remaining provisions of the Contract nor affect the validity or
enforceability of that provision.
28.4 These conditions (which can only be waived in writing and
signed by an authorised representative of CME) prevail over all
conditions of the Client’s order or other documents.
28.5 If additional terms and/or conditions are attached to,
incorporated into or accompany the Client’s order, those terms
and/or conditions are not accepted by CME and do not form part
of the Contract unless expressly accepted in writing or signed by
an authorised representative of CME.
28.6 Nothing in these conditions shall be read or applied so as to
exclude, restrict or modify any condition, warranty, guarantee,
right or remedy implied by law and which by law cannot be
excluded, restricted or modified.
29. Anti-Bribery and Corruption
29.1 CME is committed to operating in a manner consistent with
the laws of the jurisdiction in which it operates, including laws
relating to anti-bribery and anti corruption.
29.2 The Client represents and warrants it complies with Anti-
Bribery and Anti-Corruption Legislation and that it has and
maintains reasonable and effective anti-bribery and anti-
corruption policies and procedures, such policies and procedures
to be made available to CME for inspection on demand.
29.3 The Client represents and warrants it has not and will not
breach any Anti-Bribery and Anti-Corruption Legislation in
connection with the Contract.
29.4 If the Client becomes aware of any breach or suspects a
breach of Anti-Bribery and Anti-Corruption Legislation in
connection with the Contract it must immediately notify CME in
writing and provide reasonable details of such breach or
suspected breach and provide reasonable access to information,
books and records relevant to such breach.
29.5 If CME, acting reasonably, believes the Client has breached
Anti-Bribery and Anti-Corruption Legislation in connection with
the Contract, CME must give the Client written notice of such. If
the Client, within 30 days of that written notice, fails to show there
is no reasonable basis to conclude a breach has occurred, CME
may terminate the Contract without further notice to the Client.
30. Building Code
30.1 Where applicable the Subcontractor must comply with the
Building Code under the Fair Work (Building Industry) Act 2012
(“the Code”). Copies of the Code are available at
www.fwbc.gov.au/what-building-code.
30.2 The Subcontractor shall permit the Commonwealth,
including a person occupying a position in the Office of the
Australian Building and Construction Commissioner, full access
to construction sites or places covered by the Code to:
30.2.1 inspect any work, material, machinery, appliance, article
or facility;
30.2.2 inspect and copy any record relevant to the Works the
subject of this Contract;
30.2.3 interview any person;
30.2.4 request a party to this Contract to produce a specified
document within a specified period, being not less than 14 days
in person, by fax or by post; as is necessary to allow validation of
its progress in complying with the Code.
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