Background

1. CM Furniture Design Pty Ltd (ACN 628 632 57) trading as CM Furniture Design (“CM Furniture Design”) supplies custom furniture pieces to Customers.
2. These terms and conditions are between the Customer and CM Furniture Design. Please read this Agreement carefully as CM Furniture Design will provide the Products to the Customer on the following terms and conditions.
   
   
   

    

1.  Definitions and interpretation

1.1  Definitions

In this Agreement, unless the context otherwise requires:

Agreement means these terms and conditions, including the schedules (if any), and the Quotation.

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Business Day means Monday to Friday excluding public holidays in Victoria.

Claim includes actions, proceedings, suits, causes of action, arbitrations, verdicts and judgments either at law or in equity or arising under a statute, debts, dues, demands, claims of any nature, costs and expenses.

Consequential Loss means any loss or damage suffered by a party or any other person which is indirect or consequential, including but not limited to loss of revenue, loss of income, loss of business, loss of profits, loss of goodwill or credit, loss of business reputation, loss of data or data use, future reputation or publicity, loss of use, loss of interest, loss of value of intellectual property, damage to credit rating or loss or denial of opportunity.

Consumer Guarantee has the meaning given to it in the Australian Consumer Law or guidance provided by the Australian Competition and Consumer Commission.

Customer means:

(a) the person or entity to whom a Quotation, order confirmation or invoice is issued by CM Furniture Design, including their successors and assigns; or

(b) if no Quotation, order confirmation or invoice has been issued, “Customer” means the person or entity (including their successors and assigns) to whom services and/or Products are supplied or are to be supplied by CM Furniture Design.

Date of Commencement means the date the Quotation is signed or otherwise authorised in writing by the Customer or the date a Deposit is paid by the Customer, whichever is the latter.

Delivery Date is as specified in the Quotation or as otherwise agreed between the parties.

Delivery Point is as specified on the Quotation or as otherwise agreed between the parties in writing.

Deposit means the sum specified as such in the Quotation.

Event of Default means any of the following events:

(c) the Customer fails to pay for the Products;  

(d) the Customer is in breach of this Agreement;

(e) if the Customer is a company:

(i) an order is made or a resolution is effectively passed for winding up of the Customer;

(ii)  thae Customer resolves to appoint a receiver or provisional liquidator or an administrator, or a receiver or provisional liquidator or an administrator is appointed;

(iii) the Customer goes into liquidation or makes an assignment or an arrangement or composition with its creditors; or

(iv) the Customer stops payment or is deemed unable to pay its debts within the meaning of the Corporations Act 2001(Cth);

(f)  if the Customer is a natural person:

(i)  an order is made for the Customer’s bankruptcy;

(ii) the Customer dies or becomes mentally or physically incapable of managing his or her affairs;

(iii) an order is applied for or made to place the assets and affairs of the Customer under administration;

(iv)  the Customer ceases or threatens to cease carrying on business; or

(v) CM Furniture Design forms an opinion, on a reasonable basis, that the Customer is in financial difficulties.

Force Majeure Event means an event or cause outside the reasonable control of the affected party (other than an obligation to pay money) and includes, but is not limited to:

(a) act of God, lightning, storm, flood, fire, earthquake, explosion, cyclone, landslide or adverse weather conditions;

(b) strike, lockout or other labour difficulty;

(c) act of public enemy, war (declared or undeclared), sabotage, blockade, revolution, terrorism, cyber attack, riot, insurrection, civil commotion, epidemic, global pandemic;

(d) the effect of any applicable laws, orders, rules or regulations of any government or other competent authority; and

(e) embargo, inability to obtain any necessary materials, equipment, facilities or qualified employees, power or water shortage, lack of transportation.

Goods means any goods and/or materials forming part of the Products.

Intellectual Property Rights means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Loss means any loss, Claim, liability, damage, charge, payment, cost or expense (whether direct or Consequential Loss and whether accrued or paid) including legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties.

Invoice means invoices for services or Products provided by CM Furniture Design, including any disbursements.

PPSA means the Personal Property Securities Act 2009 (Cth).

Price means the price for the Products quoted by CM Furniture Design in a Quotation or, otherwise, as set out in CM Furniture Design’s then current price list.

Products means all Goods and/or services supplied or to be supplied by CM Furniture Design to the Customer as set out in a Quotation.

Quotation means the document issued by CM Furniture Design confirming the Price.

Variation means:

(a) the inclusion of additional Products to be supplied by CM Furniture Design under an existing Quotation;

(b) a change in the character or quality of the Products to be supplied by CM Furniture Design under a Quotation;

(c) an increase or decrease in the quantity of Products to be supplied by CM Furniture Design under a Quotation;

(d) a change to the Delivery Point specified in a Quotation; or

(e) a change to the Delivery Date specified in a Quotation.

1.2   Interpretation

In this Agreement, unless the context requires otherwise:

(a) a reference to a person includes a corporation;

(b) a reference to a person includes the permitted assigns of that person;

(c) words importing the singular include the plural and vice versa;

(d) no provision of this Agreement will be construed to the disadvantage of a party merely because that party was responsible for the preparation of the agreement or the inclusion of the provision in the agreement;

(e) the use of the word includes or including is not to be taken as limiting the meaning of the words preceding it; and

(f) if a word or phrase is defined cognate words and plurals have corresponding meaning.

2.  Summary of pre-manufacturing stages

2.1  Pre-design stage

CM Furniture Design offers a complimentary pre-design service to all Customers. This initial stage is conducted remotely and is intended to explore the Customer’s needs, preferences, and the overall scope of the proposed project. The pre-design stage allows CM Furniture Design to determine project suitability, provide general advice, and outline the recommended next steps prior to any formal engagement. Following the completion of the pre-design stage, Customers may proceed with the design stage.

2.2 Design stage

(a)  Following completion of the pre-design stage, CM Furniture Design will invoice the Customer for a design fee and this invoice must be paid in full prior to any design appointment with CM Furniture Design (Design Fee). The amount of the invoice is non-refundable (subject to clause 2.2(e)) and will be charged on a fixed rate for each individual specified in CM Furniture Design’s price list or as otherwise advised by CM Furniture Design.

(b) The Design Fee covers:

(i)  the cost of one onsite consultation;

(ii)  detailed production drawings of agreed furniture (up to 3 iterations), which will be sent to the Customer via email subject to CM Furniture Design receiving payment in full.

(c) If the Customer chooses to vary the scope of the proposed Product or chooses to add more designs or items to technical drawings of a proposed piece of furniture, CM Furniture Design will issue a revised invoice, which will include a revised design fee (Revised Design Fee) and that Revised Design Fee must be paid within 3 clear business days from the date the revised invoice is issued. CM Furniture Design is under no obligation to agree to change technical drawings of a proposed piece of furniture.

(d)  Cancellation will only be accepted within 3 clear business days after date of invoice. A 20% fee may apply after this date. Any cancellations or fees after this time will be at the sole discretion of CM Furniture Design. The Customer acknowledges and agrees that each technical drawing may take 2 weeks to complete and any re-iteration can take up to 5 business days to prepare.

(e)  If the Customer proceeds to request the manufacturing of the Product within 60 days from the date of the invoice for the Design Fee or Revised Design Fee, as the case may be, then CM Furniture Design agrees to apply that fee toward the Price for the manufactured Product set out in a Quotation. 

2.3 No guarantee

(a) During the consultation process set out above, Customers will be provided with an estimate of the price and indicative lead times in connection with the manufacturing of their Product but CM Furniture Design makes no guarantee regarding any estimated price or lead time advised during the pre-design stage or design stage. 

(b)  The Customer acknowledges that performance of the pre-manufacturing services does not guarantee that CM Furniture Design will manufacture any Product for a Customer.

3. Quotation

(a) Following the consultation process referred to in the immediately proceeding paragraph, if the Customer accepts the drawings for a Product in accordance with clause 2.2 and if that Customer wishes to purchase Products from CM Furniture Design, CM Furniture Design will provide the Customer with a quote for the manufacture and installation of the accepted designs for a Product. The Customer  must sign and forward the Quotation to CM Furniture Design. CM Furniture Design has sole discretion to accept or reject a Quotation. CM Furniture Design is under no obligation to provide any Products to a Customer unless it has accepted a Quotation in writing.  

(b)  Acceptance of a Quotation may be in whole or in part, by delivery of the relevant Products or in such other manner communicated by CM Furniture Design to the Customer in writing.

(c) The Customer is responsible for ensuring the accuracy of any order under a Quotation, including any applicable specifications. CM Furniture Design reserves the right to make any reasonable modification to update and/or amend any design, specification or construction method as required to prepare the Products. For the avoidance of doubt, technical drawings of Products are provided as a guide only.

4. Deposit

(a) The Customer understands that all pieces are made to order, and the Customer agrees that CM Furniture Design will invoice the Customer for the Deposit on the Date of Commencement. The Customer must pay the Deposit within 7 days of receiving that invoice. The Customer acknowledges and agrees that CM Furniture Design is under no obligation to perform any obligation under this Agreement until it has received the Deposit.

(b) CM Furniture Design may draw on the Deposit to pay for any costs, expenses, debts or damages which CM Furniture Design has incurred as a consequence of any act or omission of the Customer which is in breach of this Agreement.

(c) CM Furniture Design is entitled to retain the Deposit to cover any outstanding Claim reasonably alleged by CM Furniture Design against the Customer under or in connection with this Agreement.

5. Prices and payment

(a) All prices other than as set out in this section are as detailed in a Quotation or as set out in CM Furniture Design’s current price list. Prices for Products in a Quotation are open for the period of time specified in the quotation, or, 30 days, whichever is the lesser. 

(b)  CM Furniture Design may charge the Customer delivery fees and storage fees for the Products as well as any fee for Installation Services, if selected under a Quotation. These fees are in addition to the Price and must be paid within 7 days of an invoice being issued.

(c)  The Price, less any Deposit already paid, must be paid to CM Furniture Design as soon as CM Furniture Design confirms that a Product is ready for dispatch. The Customer acknowledges and agrees that the Products will only be dispatched after the Customer has paid all outstanding fees owing under this Agreement, including the Price and any fee for delivery and/or installation and assembly (as applicable).

(d)   If the Customer disputes payment of an invoiced amount it must:

(i) pay any undisputed amount whilst the dispute is being resolved; and

(ii) attempt to resolve the dispute in accordance with this Agreement.

(e)  If it is resolved by the parties that some or all of the amount in dispute ought to have been paid when due at the time it was invoiced, then the Customer will pay the amount finally resolved, together with interest, which will be charged in accordance with this Agreement. 

(f)  CM Furniture Design is entitled to charge the Customer interest on amounts not paid within the specified credit period at a rate equivalent to the reference rate charged by CM Furniture Design’s principal bankers, from invoice date until payment of the overdue debt. The Customer also agrees that CM Furniture Design is entitled to charge all costs associated with debt collection on an indemnity basis.

6. Variation

(a)  CM Furniture Design is under no obligation to accept a Notice of Variation and no Notice of Variation will be accepted by CM Furniture Design once production of the Product has commenced.

(b)  Subject to the above paragraph, the Customer may, on giving reasonable notice to CM Furniture Design, issue a notice to vary an order acknowledgment or Quotation (Notice of Variation) to CM Furniture Design requesting that CM Furniture Design perform a Variation.

(c) Within 10 Business Days of receiving a Notice of Variation, CM Furniture Design may provide the Customer with a quote (Variation Order) setting out details of:

(i)  any delay to the Delivery Date for the delivery of the Products;

(ii)  the cost of the Variation; and

(iii) an adjusted Price.

(d) The Customer must notify CM Furniture Design within 3 Business Days of receipt of the Variation Order of its acceptance or rejection.  If such acceptance is not received by CM Furniture Design within the specified period, it will be taken that the Customer has rejected the Variation Order such that CM Furniture Design will commence work on the production of the Product set out in the Quotation within 5 Business Days of the deemed rejection of the Variation Order.

(e) If the Customer accepts the Variation Order, CM Furniture Design will use reasonable endeavours to perform the Variation within the timeframe specified in the Variation Order or updated Quotation and invoice the Customer for those costs in accordance with this Agreement and the Variation Order. If the Variation Order specifies that an additional sum needs to be paid as a Deposit, then the Customer acknowledges and agrees that CM Furniture Design is under no obligation to commence work on a Variation Order until such payment is received from the Customer.

7.  Cancellation and refunds

(a)  A Quotation can only be cancelled within 3 Business Days after Date of Commencement. CM Furniture Design may decline to accept any request for cancellation after that period has elapsed. CM Furniture Design may make its acceptance of a cancellation request conditional on such terms and conditions as it reasonably sees fit.

(b)  Should a Quotation be cancelled after work on a Customer’s Product has commenced, CM Furniture Design reserves the right to retain the full Deposit, and, depending on the status of production and how far the order for the Product has progressed, the Customer may also be required to pay the remainder of the Price for the Product. The Customer acknowledges and agrees that such fee will be fair and reasonable given that CM Furniture Design may suffer loss of productivity and may have increased its workforce, worked extended hours, placed orders on other suppliers (whether those orders have been received or not), arranged air freight or taken any other measures necessary to design and build the Product set out in the Quotation.

(c) No refund will be given if a Customer has changed their mind.

8.  Production time

Production time for a Customer’s Product will typically take 6 – 12 weeks after CM Furniture Design receives the Deposit and such timing depends on the materials selected.   Please note that lead times on the production of the Products are indicative only and may vary depending on the Products, the design of the Product, the suppliers turnaround times and delivery.  CM Furniture Design will endeavour to have the Product delivered within the specified time frame set out in the Quotation.  Should there be a delay in the lead time, CM Furniture Design will notify the Customer and keep the Customer updated of any delays.  CM Furniture Design will not be liable for any Losses arising out of late delivery. 

9.  Delivery

(a)  Products will only be dispatched to a Customer after payment of the Price and all other outstanding fees pursuant too this Agreement have been received by CM Furniture Design.

(b) Unless otherwise agreed in writing, CM Furniture Design will arrange for the delivery of the Products to the Customer in accordance with the Quotation.

(c)  The Customer acknowledges and agrees that CM Furniture Design uses a number of different third party couriers and specialist delivery services who are used to handling items similar to the Products. Delivery times are determined by those third parties and the Customer cannot arrange for delivery themselves. Freight to all locations will be charged separately based on volume, timing, delivery location, ease of access, number of persons required to deliver the Products and whether or not an assembly or installation service is required. 

(d)  All delivery costs in a Quotation or otherwise advised are based on a ground floor/front door basis unless stated otherwise and documented as such in a Quotation. The Customer acknowledges and agrees that they must specify their delivery requirements and access restrictions at the Date of Commencement.

(e)  The Customer is responsible for ensuring that there is adequate access and entry to the Delivery Point to allow the delivery of Products. The Customer must notify CM Furniture Design about any vehicle height restrictions in underground car-parks and any other impediments which may impede delivery of the Products. In addition, the Customer is responsible for ensuring that the items ordered pursuant to a Quotation are capable of being delivered and can fit through doors and in lifts (as applicable) and the Customer must advise CM Furniture Design if access is limited (e.g. staircases or narrow passages) as that will require additional time and effort and will require delivery surcharges and/or alternative Product selections.

(f)  For the avoidance of doubt, the Customer is liable for payment of all delivery charges, including any additional charges incurred as a result of difficulties with access to a Delivery Point. 

(g)  CM Furniture Design will not be liable for failure to deliver any of the Products arising from any cause not within CM Furniture Design’s control. The Customer will not be relieved of any obligation to accept or pay for the Products by reason of any delay in delivery. 

(h)  If the Customer fails to accept delivery of the Products or give proper instructions to CM Furniture Design for the delivery within 7 days after notification in writing that the Products are ready for delivery, the Customer may be liable to pay to CM Furniture Design all reasonable costs for storage, protection and insurance of the Products after expiration of the 7day period.

(i)   No defect or Claim in respect of Products delivered will entitle the Customer to reject delivery of other Products, which are not subject to any defect or Claim, delivered as part of the agreed Quotation.

(j)  If a delivery is booked and needs to be re-scheduled a re-delivery fee may apply. 

(k)  Delivery personnel will not make any deliveries they believe are unsafe. Be aware that delivery personnel are not to remove shoes while lifting furniture due to occupational health and safety issues.

(l)  Products will only be delivered if a person aged over 18 years is able to accept delivery at the Delivery Point. Should an adult not be available to accept delivery on the pre-arranged Delivery Date, the Customer will be charged for transport and re-delivery costs.

(m) CM Furniture Design requires a Customer to inspect the Products on taking delivery or at the maximum within 72 hours of delivery or collection and a Customer must immediately report any shortage, discrepancy, defect, wrong specification or similar problem to CM Furniture Design as soon as the Customer becomes aware of it. This inspection must also be prior to installation, otherwise, CM Furniture Design may not be liable for the issue. If the Product is obviously damaged, reject the delivery and take clear photos of the damage, including the consignment note number and email orders@cmfurnituredesign.com.au. For any deliveries where damage is suspected but not obvious, sign the proof of delivery (”POD”) as damaged subject to check (“STC”) before proceeding with inspection of the Products. In relation to any orders in which CM Furniture Design can provide a clean carrier POD, without a damaged STC notation, CM Furniture Design reserves the right to reject any transit damage claim made.

10. Installation

(a)  If a Quotation specifies that the Product will be assembled and/or installed (“Installation Service”), the Customer must procure access rights for the installation personnel to access the Delivery Point such that they will have unrestricted access to the Delivery Point to perform the Installation Service on the Delivery Date.

(b) If the Customer fails give the installation personnel access to the Delivery Point, the Customer acknowledges and agrees that due to that delay, CM Furniture Design may suffer loss of productivity and will charge an additional fee proportionate to the loss suffered. 

(c)  If Installation Services have been specified in a Quotation and, upon the installation personnel attending the Delivery Point on the Delivery Date, the installation personnel are advised that such service is no longer required, there will be no refund of any fees in relation to the provision of the Installation Service. Any return trip required to provide such Installation Service will be for an additional charge to be advised by CM Furniture Design.

(d)  The Customer must ensure that the Delivery Point at which the Installation Services are performed is safe. Installation personnel will not perform the Installation Services if they reasonably believe the Delivery Point to be unsafe and no refund of the fee for the visit will be given. An additional sum will be payable if the installation personnel need to return to the Delivery Point to perform the Installation Services.

11.   No Guarantee

(a)  The Customer is responsible for determining the suitability of the Products for their intended purposes.

(b) Each Product is handcrafted and one-off pieces which has imperfections. The Customer acknowledges and agrees that timber requires care and maintenance and, the Customer must maintain the Product as instructed by CM Furniture Design. Variations in timber should be expected and no two pieces will ever be the same. Timber has imperfections and a range of natural features. Accordingly, each individual Product is not flawless in look or colour. CM Furniture Design will do its best to match timber colour and textures but variations may occur and exact matches are not guaranteed. CM Furniture Design do not see this as a fault or defect of the Product and any work to rectify, exchange or returns the Product will not be permitted on this basis

(c)   Environmental factors can also cause changes or reactions to timber colour and texture, exposure to direct sunlight or wet weather will cause premature deterioration of a Product.

(d)  When choosing Products made of timber please also be aware that timber continues to warp and move and cracks or splits should be expected as the Product responds to the environment it is in. In addition, such changes are not to be considered a fault or defect in the Product and any work to rectify, exchange or return the Product will not be permitted on this basis.

12. Intellectual Property

(a)  CM Furniture Design retains all Intellectual Property Rights in respect of the Products, including any design and pre-design works and ideas.

(b)  The Customer warrants that it must not, in any way, infringe or allow any other party to infringe CM Furniture Design’s Intellectual Property Rights.

(c)  Subject to payment in full for the relevant services provided by CM Furniture Design, CM Furniture Design grants the Customer a non-exclusive, non-transferable licence to use the Intellectual Property Rights which have been incorporated into any design created by CM Furniture Design for the Customer, as necessary for the Customer to utilise that design for the purposes of which it was delivered to the Customer pursuant to this Agreement. This licence shall terminate and the Customer must immediately cease all use of CM Furniture Design’s Intellectual Property Rights in the event of termination due to the Customer’s breach of its obligations under this Agreement.

(d) CM Furniture Design accepts furniture designs from Customers on the basis that the Customer warrants that all designs or instructions provided to CM Furniture Design will not cause CM Furniture Design to infringe any Intellectual Property Rights in supplying the Products and the Customer indemnifies and holds CM Furniture Design harmless against any and all Loss incurred or suffered as a result of such infringement.

(e)  This clause will survive the termination or expiry of this Agreement.

13. Passing of title and risk

(a)  Risk of loss passes to the Customer on the earliest to occur of collection of the Products by the Customer at a CM Furniture Design branch or other specified location; delivery of the Products to the Customer or third party site designated by the Customer; or, delivery of the Products by CM Furniture Design to a carrier for the purpose of delivering the Products to the Customer or third party site. 

(b)  Title and ownership of the Products will not pass to the Customer until all moneys owing to CM Furniture Design pursuant to this Agreement have been paid in full.

(c)   Until payment of all such moneys, the Customer:

(i)  holds the Products as fiduciary bailee and agent for CM Furniture Design;

(ii)   must keep the Products physically separate from all other goods of the Customer; and

(iii)  clearly identified as owned by CM Furniture Design.

(d)  If an Event of Default occurs, then without prejudice to CM Furniture Design’s other rights, CM Furniture Design may, on providing 72 hours’ notice to the Customer, enter any premises occupied by the Customer or any other place where the Products may be, and recover possession of them. If the Products are on a third party site, the Customer must procure access rights for CM Furniture Design from the controller of the third party site such that CM Furniture Design may enter onto the site and recover and retake possession of them on reasonable notice.

(e)  If the Customer sells any of the Products while money is owed to CM Furniture Design, the Customer holds the proceeds on trust for CM Furniture Design. Such proceeds will be deemed to equal in dollar terms such corresponding part of the amount owed by the Customer to CM Furniture Design at the time of receipt.

(f)  If the Customer uses the Products in some manufacturing or construction process of its own or of some third party, then the Customer must hold such part of the proceeds of such manufacturing or construction process as relates to such Products in trust for CM Furniture Design. Such proceeds will be deemed to equal in dollar terms the corresponding amount owing by the Customer to CM Furniture Design at the time of receipt.

(g)  Until payment of all moneys owing to CM Furniture Design, any proceeds referred to above received by the Customer must be held in a separate account and not mixed with any other funds.

(h)  The rights of CM Furniture Design under this section do not limit or exclude any other rights of CM Furniture Design against the Customer.

14.  Charge over Customer’s property

As security for payment of all moneys payable to CM Furniture Design by the Customer, the Customer charges in favour of CM Furniture Design the whole of the Customer’s undertaking, property and assets (including, without limitation, all of the Customer’s interests both legal and beneficial in freehold and leasehold land) both current and later acquired. The Customer irrevocably appoints each director, secretary, manager and authorised representative of CM Furniture Design as its attorney to do all things necessary to register each such charge.

15.  Security interest

(a)  Terms that are defined in the Personal Property Securities Act 2009 (Cth) (“PPSA”) have the same meaning in this clause.

(b) The Customer agrees and acknowledges that, for the purposes of the PPSA, CM Furniture Design has a security interest in the Products and in any right in relation to or derived from the Products and such other undertaking, property and assets of the Customer.

(c)  CM Furniture Design may register its security interests under this section, including as a purchase money security interest. 

(d)  The Customer waives the right to receive a verification statement under the PPSA.

(e)  The Customer agrees that, if Chapter 4 of the PPSA applies to the enforcement of CM Furniture Design’s security interests, the following provisions of the PPSA will not apply to that enforcement:

(i)  section 95 to the extent that it requires CM Furniture Design to give a notice to the Customer;

(ii)  section 96;

(iii)  section 130, to the extent that it requires CM Furniture Design to give a notice to the Company;

(iv) subsection 132(3)(d);

(v)   subsection 132(4);

(vi)   section 135;

(vii)  section 142; and

(viii)  section 143.

(f)  The Customer agrees that CM Furniture Design may allocate any payment that it receives from the Customer in any manner CM Furniture Design determines (despite any purported allocation or appropriation by the Customer) including to satisfy obligations that are not secured; then to satisfy obligations that are secured, but are not secured by a purchase money security interest, in the order in which those obligations were incurred and then to satisfy any obligations secured by a purchase money security interest in the order in which those obligations were incurred.

(g) Subject to subsection 275(7) of the PPSA, neither party may disclose information of the kind referred to in subsection 275(1) of the PPSA.

16. Insurance

(a)  The Customer must keep the Products insured against all risks for Products of that kind from the time the risk in the Products passes to the Customer until the time that title in the Products passes to the Customer in accordance with the section of this Agreement titled ‘Passing of title and risk’.

(b)  The Customer holds the proceeds of that insurance on trust for CM Furniture Design up to the amount it owes CM Furniture Design in respect of the Products and must keep such proceeds in a separate account until the liability to CM Furniture Design is discharged and must immediately pay that amount to CM Furniture Design.

17.  GST

(a)  In this clause words that are defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning as their definition in that Act.

(b)  Each amount payable by the Customer under this Agreement and/or a Quotation in respect of a Taxable Supply by CM Furniture Design is a GST exclusive amount and the Customer must, in addition to that amount and at the same time, pay the GST payable in respect of that supply.

18.  Liability

(a)   To the fullest extent permitted by law, CM Furniture Design excludes all liability for any Loss whatsoever suffered by the Customer as a result of any act, omission or statement made by CM Furniture Design, its employees, contractors or agents whether negligent or not, except that nothing in this Agreement limits any liability imposed by any statute unless or to the extent that it is lawful to do so. 

(b)  All Consumer Guarantees and any other implied statutory conditions or warranties are excluded to the fullest extent permitted by law and CM Furniture Design’s only obligation resulting from a breach of a Consumer Guarantee is limited, at CM Furniture Design’s option, to:

(i)   where the Product is a consumer good under Australian Consumer Law:

(A)  replacement of the good or supply of equivalent good;

(B) repair of the good;

(C)  payment of the cost of replacing the good or acquiring equivalent good; or

(D) payment of the cost of having the good repaired.

(ii)  Where the Product is a consumer service under Australian Consumer Law:

(A)  supplying the services again; or

(B) payment of the cost of having the services supplied again. 

(c)  Notwithstanding any other provision of this Agreement, the total cumulative liability of CM Furniture Design for any Loss suffered by the Customer due to any act or omission of CM Furniture Design under or in connection with this Agreement (whether in tort (including negligence) for breach of contract (including under any warranty or indemnity) or breach of statute or otherwise) is limited to the Price actually paid to CM Furniture Design.

(d)  Under no circumstances will either party be liable to the other for any Consequential Loss.

(e) This clause will survive the termination or expiry of this Agreement.

19.  Indemnity

(a)  The Customer must fully indemnify, and keep indemnified, CM Furniture Design from and against any all Loss, Claims or liability (whether criminal or civil) suffered by CM Furniture Design, including but not limited to, any legal fees and costs incurred by CM Furniture Design resulting from or in connection with:

(i)  a breach of this Agreement by the Customer or anyone else authorised to represent the Customer;

(ii)  the Customer’s use of the Product, including any wrongful, intentional or negligent act or omission by the Customer; or

(iii)  the Customer’s communications or interactions with CM Furniture Design, but the Customer’s liability under this indemnity will be reduced to the extent CM Furniture Design, its employees, contractors or agents contributed to such Loss, Claims or liability.

(b)  Subject to the paragraph immediately below, the Customer’s aggregate liability to CM Furniture Design under or in connection with this Agreement (whether in tort (including negligence) for breach of contract or breach of statute or otherwise) is limited to Price (Liability Cap).

(c)  The Liability Cap does not limit the Customer’s liability to the extent that the Claim or Loss:

(i)  arises as a result of fraud, wilful misconduct (including wilful default) or criminal conduct by the Customer or its personnel;

(ii)  is the result of the Customer’s abandonment (whether wholly or substantially) of the Customer’s obligations under this Agreement;

(iii)  is in connection with any property or injury to, illness or death of any person; or

(iv)  cannot be limited at law.

(d)  This clause will survive the termination or expiry of this Agreement.

20.  Force Majeure

(a)  If a party is unable to perform an obligation under this Agreement due to a Force Majeure Event, that party is excused from performing that obligation while those circumstances continue.

(b)  If a Force Majeure event continue for an unreasonable period of time or if the delay in the party’s performance of its obligation has a material adverse effect on the other party, then the party adversely affected may terminate this Agreement on giving written notice to the other party.

(c)  The parties agree that the inability of a party to pay any amounts owing under this Agreement is not a Force Majeure Event and this section will not apply in that circumstance.

21.  Termination

(a)   Notwithstanding any other provision of this Agreement, CM Furniture Design may terminate this Agreement immediately on giving written notice to the Customer, without compensation, if the Customer commits an Event of Default.

(b)  Either party may terminate this Agreement by written notice if the other party commits a breach of this Agreement:

(i)  where the breach is incapable of remedy; or

(ii)   where the breach is capable of remedy but the other party fails to rectify the breach within 14 days of a request to do so from the non-defaulting party.  

(c)  Within 30 days of termination of this Agreement (unless termination occurs due to a material breach by CM Furniture Design that cannot be remedied) the Customer will pay CM Furniture Design for all Products ordered by the Customer in respect to which CM Furniture Design has not received payment in full together with all other fees owing pursuant to the terms of this Agreement.

22.  Dispute resolution

(a)   A party must not start court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute arising out of this Agreement unless that party has complied with this section.

(b)  A party claiming that a dispute has arisen in respect of this Agreement must notify the other party’s representative. During the 10-day period after notice is given (or such longer period as agreed to in writing by the key contacts) the parties must use all reasonable endeavours to resolve the dispute.

(c)  If the parties cannot resolve the dispute between themselves the parties to the dispute expressly agree to endeavour to settle the dispute by mediation administered by the Australian Disputes Centre (or its successor at law) (“ADC”) before having recourse to litigation. The mediation must be conducted in accordance with the ADC Guidelines for Commercial Mediation (“Guidelines”) which are operating at the time the matter is referred to the ADC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the Guidelines are incorporated into this Agreement.

(d)   During the period in which the dispute is being resolved, the parties must continue to perform all of their obligations under this Agreement, which are not under dispute and which are able to be performed by the parties.

(e)  Nothing in this clause prevents either party from obtaining any injunctive or other urgent interlocutory relief from a court of appropriate jurisdiction.

23. Notices

A notice given by a party to the other party under this Agreement must be in writing and:

(a)  delivered personally;

(b)  sent by post; or

(c)  sent by e-mail, to that party’s address or email address set out in this Agreement or as last notified by the intended recipient. A notice given in accordance with this section is deemed to be received if:

(d)  personally delivered, on delivery;

(e)  mailed within Australia, on the expiration of 2 Business Days after posting; or

(f)  sent by e-mail, on delivery

24. Miscellaneous

24.1  Severance

If it is held by a court of competent jurisdiction that:

(a)  any part of this Agreement is void, voidable, illegal or unenforceable; or

(b) this Agreement would be void, voidable, illegal or unenforceable unless any part of this Agreement was severed, then that part will be severable from and will not affect or denigrate from the enforceability or validity of the parties’ rights or obligations or the continued operation of the rest of this Agreement.

24.2   Privacy

We collect, use, disclose, store and handle a Customer’s Personal Information, in accordance CM Furniture Design’s Privacy Policy, which can be found here: https://cmfurnituredesign.com.au/privacy-policy/ . By engaging CM Furniture Design to perform services or otherwise dealing with CM Furniture Design, you agree that you have read and understood the Privacy Policy and agree to be bound by its provisions.

24.3   Waiver

The non-exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other or further exercise of it or the exercise of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.

24.4   Further Assurances

Each party will do, sign, execute and deliver and will procure that each of their employees and agents does, signs, executes and delivers, all deeds, documents, instruments and acts reasonably required of it by notice from another party to effectively carry out and give full effect to this Agreement and the rights and obligations of the parties under it.

24.5  Governing Law

This Agreement will be governed and construed in accordance with the laws of Victoria, Australia and the parties agree to submit to the exclusive jurisdiction of the courts of Victoria, Australia.

24.6   Assignment

The Customer must not assign or transfer any of its rights or obligations under this document without the prior written consent of CM Furniture Design.

24.7   No Reliance

Each of the parties acknowledge that, in entering into the Agreement, it does not do so in reliance on any representation, warranty or other provision except as provided in writing. Any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.

24.8   Changes

CM Furniture Design reserves the right to vary this Agreement at its reasonable discretion by providing 30 days’ written notice to the Customer. For the avoidance of doubt, CM Furniture Design may vary any price in its price list at any time and CM Furniture Design will use reasonable endeavours to notify the Customer if it makes significant changes to its price list.

24.9  Expenses

The Customer must pay to CM Furniture Design any costs, charges and expenses (including legal fees calculated on a full indemnity basis) incurred by CM Furniture Design in connection with the exercise or attempted exercise of any power, right or remedy under this Agreement, and the failure of the Customer to comply with this Agreement.