| 14.7.4 the Customer dies or ceases to be of legal capacity or otherwise becomes incapable of managing the Customer’s own affairs for any reason. Indemnity & Release Subject to the limited warranty provided by CW Mechanical, the Customer shall indemnify CW Mechanical against all Loss including but not limited to Loss for claims of death, personal injury and damage to property which made be made against CW Mechanical as a result of or in connection with the Customer’s use of the Goods. Subject to these Terms and Conditions, the Customer releases and holds harmless, CW Mechanical from all Loss that the Customer may or has incurred as a result of or in connection with the Customer’s use of the Goods.. CW Mechanical warrants that the Goods, to the extent that they are manufactured by CW Mechanical, are free from defects in workmanship and materials for the period described in the Quote. Cancellation Notwithstanding any other clause in these Terms & Conditions, CW Mechanical may cancel any supply or delivery of Goods to which these Terms & Conditions apply at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice CW Mechanical will repay to the Customer any sums paid in respect of the Price for Goods not delivered. CW Mechanical will not be liable for any Loss whatsoever arising from such cancellation. Any Order cancellations by a Customer must be made in writing in the same manner required by clause 3.1. In the event that the Customer cancels any Order the Customer will be liable for any Loss incurred by CW Mechanical (including, but not limited to, any loss of profits) up to the time of cancellation. Cancellation of Orders for Goods made to the Customer’s specifications or non-catalogue items will not be accepted once an Order Confirmation has been delivered to the Customer. In the event that an Order is cancelled by a Customer, the Customer may request that CW Mechanical endeavour to onsell the Goods to third party customers which request may be granted or declined in CW Mechanical’s absolute discretion. The Price of any Goods successfully onsold shall be offset against any monies owed by the Customer to CW Mechanical pursuant to clause 16.2 provided that the Customer pays to CW Mechanical an administrative fee equal to fifteen percent (15%) of all Goods onsold. Privacy Act 1988 The Customer and/or the Guarantors (in this clause referred to as the Customer) agree for CW Mechanical to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by CW Mechanical. The Customer agrees that CW Mechanical may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes: to assess an application by the Customer; to notify other credit providers of a default by the Customer; to exchange information with other credit providers, where the Customer is in default with other credit providers; and/or to assess the creditworthiness of the Customer. The Customer understands and agrees that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988 (Cth). The Customer consents to CW Mechanical being given a consumer credit report to collect overdue payment on commercial credit (section 18K(1)(h) Privacy Act 1988 (Cth)). The Customer agrees that personal credit information provided may be used and retained by CW Mechanical for the following purposes (and for other purposes as will be agreed between the Customer and CW Mechanical or required by law from time to time): the provision of Goods; the marketing of Goods by CW Mechanical, its agents or distributors; analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods. CW Mechanical may give information about the Customer to a credit reporting agency for the following purposes: to obtain a consumer credit report about the Customer; allow the credit reporting agency to create or maintain a credit information file containing information about the Customer. The information given to the credit reporting agency may include: personal particulars (including the Customer’s name, address, previous addresses, date of birth, name of employer and driver’s license number); details concerning the Customer’s application for credit or commercial credit and the amount requested; advice that CW Mechanical is a current credit provider to the Customer; advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started; that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed; information that, in the opinion of CW Mechanical, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customers credit obligations); advice that cheques drawn by the Customer for one hundred dollars ($100.00) or more, have been dishonoured more than once; 17.7.8 that credit provided to the Customer by CW Mechanical has been paid or otherwise discharged. Force Majeure Notwithstanding any other provision of these Terms & Conditions, no default or failure to perform on the part of CW Mechanical will be considered to be a breach of these Terms & Conditions if such default, delay or failure to perform is due to causes beyond the reasonable control of CW Mechanical including but not limited to causes such as strikes, lock-outs or other labour disputes, civil disturbance, action of government authorities or suppliers, storms, floods, fires, earthquakes, acts of God, unavailability or delay in availability of materials, equipment or transport and default of a carrier. Limitation of Liability Any descriptive information or other advice, recommendation, information, assistance or service provided by CW Mechanical is intended as a general guide only and should not be relied upon and is provided without liability or responsibility (including for negligence) on the part of CW Mechanical. No liability will be accepted by CW Mechanical for any inaccuracy in the information provided or the quality and performance of any Goods. CW Mechanical will replace or resupply any damaged or defective Goods manufactured by CW Mechanical that do not comply with the Quote, without charge, so long as the damage or defect was not caused by the Customer and does not arise from: any modification of Goods which was not authorised in writing by CW Mechanical; and/or |
| 19.3.2 any improper use or misuse of the Goods; and/or 19.3.3 inadequate or incorrect site preparation and/or installation and/or on-site reinstatement of the Goods; and/or 19.3.4 inadequate or improper maintenance of the Goods. 19.4 Such replacement or resupply will constitute the Customer’s sole remedy in respect of the damaged or defective Goods or Goods which do not comply with the Quote. 19.5 To the extent that the Goods are not manufactured by CW Mechanical, any guarantee of any manufacturer of those goods is accepted by the Customer and is the only guarantee given to the Customer in respect of the Goods not manufactured by CW Mechanical. Customer Obligations Customers who have ordered any plant cuttings from CW Mechanical will only use the cuttings for cut flower or pot production and shall not engage in any type of propogation or reproduction of these plants. The Customer is liable for any Loss incurred by CW Mechanical for a breach of this clause. General These Terms & Conditions are governed by the laws of the State of Queensland, Australia and the Customer irrevocably submit to the exclusive jurisdiction of the courts of that State. Reference to any amount of money is a reference to the amount of lawful currency of the Commonwealth of Australia. If any provision of these Terms & Conditions is deemed to be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired. If any provisions of these Terms & Conditions are inconsistent with the PPSA or CCA, the PPSA or the CCA (as the case may be) will prevail to the extent of that inconsistency. The Customer will not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by CW Mechanical nor to withhold payment of any invoice because part of that invoice is in dispute. CW Mechanical is entitled to set off against any sums owed or claimed to be owed to CW Mechanical. CW Mechanical may assign, license or sub-contract all or any part of its rights and obligations without the Customer’s consent. Neither party will be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party. The failure by CW Mechanical to enforce any provision of these Terms & Conditions will not be treated as a waiver of that provision, nor will it affect CW Mechanical’s right to subsequently enforce that provision. These Terms & Conditions supersede all prior representations, arrangements, understandings and agreements between CW Mechanical and the Customer and represents the entire and exclusive agreement between the parties. |
