|Terms and Conditions|
Unit 3, 33 Steel Street Capalaba QLD
|These Terms and Conditions apply to the sale of Goods to the Customer by CW Mechanical.|
| 1. Definitions|
1.1 CCA means the Competition and Consumer Act 2010 (Cth) as amended;
1.2 Consequential Loss means loss of expected savings, lost sales, loss of use, loss of opportunity, loss of profit, loss of revenue, increased financing costs, loss arising from delay, or any consequential, special or indirect loss or damage, whether or not the possibility or potential extent of the loss or damage was known or foreseeable, and whether arising from a claim under indemnity, contract, tort (including negligence, statute or otherwise;
1.3 Customer means the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any Order or other form provided by the Customer to CW Mechanical together with their successors and assigns;
1.4 CW Mechanical means CW Mechanical , its related body corporates and successors and assigns or any person acting on behalf of and with the authority of CW Mechanical;
1.5 Delivery Date means the estimated date of delivery of the Goods as specified in the Order Confirmation;
1.6 Deposit means the portion of the Price specified in the Order Confirmation payable by the Customer prior to dispatch of the Goods for delivery;
1.7 Goods mean all goods supplied by CW Mechanical to the Customer from time to time and are as described on any order, invoices, quotation or
any other forms as provided by CW Mechanical to the Customer;
1.8 Guarantor means that person (or persons) who agrees to be liable for the debts of the Customer on a principal debtor basis as set out in the Purchase Order;
1.9 Loss means any loss, expense, cost, liability or damage of any kind and includes Consequential Loss and any fine or penalty imposed by a statutory or other authority and whether aririnsg from a claim under indemnity, contract, tort (including negligence), statute or otherwise;
1.10 Order Confirmation means a confirmation of a Purchase Order in writing issued by CWMechanical to the Customer;
1.11 PPSA means the Personal Property Securities Act 2009(Cth) as amended;
1.12 PPSR means the Personal Property Securities Register;
1.13 Price means the price pay able for the Goods as agreed between CWMechanical and the Customer in accordance with clause 3 of the Terms& Conditions;
1.14 Purchase Order means an order placed in writing by the Customer specifying the type and quantity of Goods required (including details of any special requirements);
1.16 Solicitor and Client Legal Costs means all legal costs and disbursements incurred by CW Mechanical in pursuing any debt arising from any default in payment of the Price or any invoice when due, except for those of an unreasonable amount or unreasonably incurred, unless approved by the Customer; and
1.17 Terms & Conditions means these terms and conditions, the Application (if applicable), any invoice and any other documentation relating to the supply of the Goods and attached to these Terms & Conditions.
2. Acceptance of Terms and Conditions
2.1 These Terms & Conditions apply and are incorporated into each and every Order for the supply of Goods or the Customer’s acceptance of Goods and all Goods are sold on these Terms and Conditions. All other representations, terms or other agreements are expressly excluded.
2.2 Where more than one (1) Customer has entered into these Terms & Conditions, the Customers will be jointly and severally liable for all payments of the Price.
2.3 The Customer will give CW Mechanical not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, telephone number, or business practice). The Customer will be liable for any Loss incurred by CW Mechanical as a result of the Customer’s failure to comply with this clause.
2.4 If CW Mechanical varies these Terms & Conditions and provides reasonable notice to the Customer of the variation, these Terms & Conditions are varied and incorporated into each and every contract for the supply of Goods made between CW Mechanical and the Customer after the date of such notice.
2.5 Goods are supplied by CW Mechanical only on these Terms & Conditions to the exclusion of anything to the contrary in the terms of the Customer’s Order notwithstanding that any such Order is placed on terms that purport to override these Terms & Conditions unless such terms and conditions have been agreed in writing by CW Mechanical.
3. Quotes and Purchase Orders
3.1 On request by the Customer, CW Mechanical may but is not obligted to provide a Quote for the supply of Goods.
3.2 The Customer may accept the Quote by delivering a Purchase Order to CW Meachnical. All Purchase Orders are to be made in writing as prescribed by CW Mechanical from time to time. Any Purchase Order which purports to alter or amend the Quotation will not be a Purchase Order unless CW Mechanical agrees to the alteration or amendment.
3.3 Variations, changes, briefing updates or amendments in the Purchase Order or otherwise requested by the Customer (Variation) are deemed to not form part of the Quote or Purchase Order unless CW Mechanical agrees to part or all of the Variation to the Customer in writing. The Customer shall be liable for any costs, expenses, and liabilities incurred by CW Mechanical in connection with any such change order.
3.4 Purchase Orders are not accepted until an Order Confirmation is issued to the Customer by CW Mechanical.
3.5 CW Mechanical has the right to substitute Goods ordered by the Customer for another type or quantity of goods (provided that such substituted goods are of similar nature and quality), unless the Customer specifically advises CW Mechanical in writing prior to the Goods being dispatched
that substituted goods will not be accepted.
4. Price, Payment & Taxes
4.1 The Price will be the amount in the Quotation or as varied by a Variation to the Quote and notifed to the Customer in the Order Confirmation.
4.2 The Price indicated to the Customer for the Purchase Order is current at the time it is issued to the Customer and subject to change. CW Mechanical has a right to increase the price of the Goods to reflect any increases in materials, insurances, labour, overheads, freight and cartage costs occurring after the date of the Quotation or agreed Variation (Varied Price). The Customer agrees that the delivery of Goods after the date of a notice of Variation will be deemed to be an acceptance of the Varied Price.
4.3 CW Mechanical may request payment by the Customer of a non-refundable Deposit prior to the supply or delivery of the Goods. CW Mechanical is under no obligation to commence the manufacture or supply of the Goods until the deposit has been paid. Despite any other clause in these Terms and Conditions, CW Mechanical may at any time require the Customer to pay an invoice for the Goods prior to the manufacture or supply of the Goods.
4.4 CW Mechanical may invoice the Customer for the Goods as it deems fit.
4.5 CW Mechanical may, in its sole discretion, require payment of the Price by the Customer either prior to or on delivery of the Goods. If pre-payment of the Price is required, payment must be received by CW Mechanical by 12pm the day prior to dispatch of the Goods.
4.6 Payment of the Price will be as stated on the invoice or any other form provided by CW Mechanical to the Customer. If no time for payment of the Price is stated then payment of the Price will be twenty-one (21) days following the date of the relevant invoice or statement (as the case may be) unless some other time is otherwise agreed to in writing before the issue of the invoice.
4.7 Payment of the Price must be made by cash, personal cheque, bank cheque, credit card, direct credit, or by any other method as agreed to between the Customer and CW Mechanical. Any payment of the Price by credit card may incur a surcharge of up to three percent (3%) of the Price.
4.8 Unless otherwise stated, GST, federal taxes, local taxes and other taxes, imposts and duties that may be applicable to the supply of the Goods by CW Mechanical will be added to the Price and invoiced with the Order or may be invoiced separately with the Order or at some other time.
4.9 CW Mechanical shall charge any sales tax applicable to the Goods to the Customer, unless a signed sales tax exemption form is receved in the approved manner prescribed by the Australian Taxation Office (Exemption). The Exemption must be received before CW Mechanical issues the Order Confirmation.
4.10 Prices may be varied without notice to the Customer at any time.
5. Delivery of Goods & Inspection
5.1 The Customer acknowledges that Orders of Goods are subject to the lead times determined by manufacturing, packaging and delivery and other conditions, many of which are outside the control of CW Mechanical.
5.2 The Customer acknowledges that the Delivery Date specified on the Order Confirmation is an estimate only. Delivery in all circumstances occur during 9am to 4.30pm Monday to Friday. Delivery outside of these times and days are at the cost of the Customer.
5.3 At CW Mechanical’s sole discretion, delivery of the Goods is deemed to have taken place when:
5.3.1 the Goods are delivered to the Customer’s address as specified in the Order (in the event that the Goods are delivered by CW Mechanical or CW Mechanical’s nominated carrier); or
5.3.2 the Customer’s nominated carrier takes possession of the Goods in which event the carrier will be deemed to be the Customer’s agent.
5.4 The cost of delivery of the Goods will be either:
5.4.1 included in the Price; or
5.4.2 in addition to the Price;
and will be advised to the Customer prior to delivery of any Goods.
5.5 The Customer is liable to pay CW Mechanical for the costs of any special packing or packing materials used for the Goods.
5.6 The Customer will make all arrangements necessary to take delivery of the Goods on the day and time nominated by CW Mechanical. In the event that the Customer is unable to take delivery of the Goods at the nominated day and time or in the event that there is a delay in the delivery of the Goods:
5.6.1 the Customer acknowledges and agrees that the quality and standard of the Goods may be affected or diminished and CW Mechanical
accepts no responsibility for the same; and
5.6.2 CW Mechanical will be entitled to charge a reasonable fee for redelivery of the Goods; and
5.6.3 the late delivery will not relieve the Customer of its obligations to accept delivery of the Goods.
5.7 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of these Terms & Conditions.
5.8 CW Mechanical may, in its sole discretion, deliver the Goods by partial deliveries or separate installments in any amounts it determines. Each separate installment will be invoiced by CW Mechanical and paid by the Customer in accordance with these Terms & Conditions and each separate installment will be a separate contract to which these Terms & Conditions apply.
5.9 The Customer will take delivery of the Goods notwithstanding that the quantity so delivered may be either greater or lesser than the Order Confirmation provided that:
5.9.1 such discrepancy in quantity does not exceed five percent (5%); and
5.9.2 the Price is adjusted pro rata to the extent of the discrepancy.
5.10 Where the Customer expressly requests CWMechanical to either deliver the Goods to an unattended location, such Goods are at the Customer’s sole risk.
5.11 Any failure or delay in delivery of the Goods by CWMechanical will not entitle either party to treat the Terms&Conditions as repudiated.
5.12 CWMechanical will not be liable for any Loss whatsoever due to any failure by CWMechanical to deliver the Goods (or any part of them) promptly or at all, where such failure is due to circumstances beyond the control of CW Mechanical.
5.13 IntheeventthataneventoutsidethereasonablecontrolofCWMechanicaldelaystheproductionoftheGoodsresultinginCWMechanicalbeing unable to fulfill the Order, CW Mechanical may cancel the Order without any liability to the Customer save CW Mechanical’s obligation to return to the Customer any money received by CW Mechanical for that Order at that time.
5.14 Under no circumstances shall CW Mechanical be liable to the Customer or any other person for any Loss and whether arisiging out of breach of waranty, breach of contract, negligence or otherwise arising from late or non-delivery of the Goods.
5.15 ItistheresponsibilityoftheCustomertoinspectthegoodsandsatisfyitselfastothecondition,qualityandfitnessforpurposeoftheGoodsprior to use, sale or re-sale at the time the Goods are delivered. If the Customer fails to inspect the Goods, the Customer is not entiteled to make any claim for the return of the Goods.
5.16 The Customer will provide CW Mechanical’s nominated deliver with adequate and safe entry and access to the place for delivery. CW Mechanical is not liable for any loss or damage arising out of any failure or delay in providing access necessary for supply and delivery of the Goods.
5.17.1 the Customer extends any delivery date beyond the relevant target delivery; or
5.17.2 delivery instructions are not proved by the Customer within 7 days of a written request by CW Mechanical for such instructions,
CWMecahnical reserves the right to:
5.17.3 charge a reasonable fee for storage; and/or
5.17.4 require the Customer to pay the invoice for the Goods prior to the Goods leaving CW Mechanical.
6. Customer Documents
6.1 If the Customer submits documents, drawings or specifications (Documents) to CW Mechanical in connection with the supply CW Mechanical is
entitled to rely on the Documents but CW Mechanical is under no duty to:
6.1.1 inspect the documents or check them for errors or omissions; or
6.1.2 notify the Customer of any error or omission in the Documents.
6.2 CW Mechanical will not be liable to the Customer for failing to detect errors, omissions or non-compliances in the Documents.
6.3 The receipt, review or comment on any Documents submitted by the Customer will not relieve the Customer from responisibi8lity for its own errors or omissions in the Documents.
6.4 CW Mechanical is not liable for and the Customer releases CW Mechanical from any claims in respect of faulty or defective design of the Goods supplied.
7.1 CW Mechanical reserves the right to sub-contract the manufacture and/or supply of the Goods to a third party.
8.1 The Customer agrees that title in and to the Goods will not pass to the Customer until:
8.1.1 the Customer has paid CW Mechanical all amounts owing for any Goods supplied by CW Mechanical; and
8.1.2 the Customer has met all other obligations due by the Customer to CW Mechanical in respect of all invoices and contracts as and between CW Mechanical and the Customer.
8.2 The parties acknowledge and agree as follows:
8.2.1 Where practicable, the Customer will keep the Goods separate and identifiable until CW Mechanical has received payment in full of all outstanding monies the Customer owes CW Mechanical and all other obligations of the Customer have been complied with.
8.2.2 Until such time as title in and to the Goods passes from CW Mechanical to the Customer pursuant to these Terms & Conditions, CW Mechanical may give notice in writing to the Customer to return the Goods or any of them to CW Mechanical.
8.2.3 CW Mechanical will have the right of stopping the Goods in transit whether or not delivery has been made.
8.2.4 If the Customer fails to return the Goods to CW Mechanical then CW Mechanical or CW Mechanical’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated and take possession of the Goods.
8.2.5 The Customer is only a bailee of the Goods and until such time as CW Mechanical has received payment in full of all outstanding monies the Customer owes CW Mechanical and the Customer will hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to CW Mechanical for the Goods, on trust for CW Mechanical. The Customer will not deal with the money of CW Mechanical in any way which may be adverse to CW Mechanical’s interests.
8.2.6 The Customer will not charge the Goods in any way nor grant nor otherwise give any interest (including any security interest) in the Goods until title in the Goods pass to the Customer.
8.2.7 CW Mechanical may issue proceedings to recover any monies owing by the Customer, notwithstanding that title to or in the Goods may not have passed to the Customer.
8.2.8 Until such time as title to or in the Goods passes to the Customer by the operation of this clause 6, if the Goods are converted into other products, the parties agree that CW Mechanical will be the owner of any end products comprising the Goods.
9. Risk & Loss
9.1 Notwithstanding anything else in these Terms & Conditions, all risk in the Goods passes to the Customer at the time of delivery and the Customer must insure the Goods from that time.
9.2 If any of the Goods are damaged or destroyed after delivery of the Goods but prior to title in the Goods passing to the Customer, CW Mechanical is entitled to receive all insurance proceeds received by the Customer for the Goods.
9.3 The production of these Terms and Conditions by CW Mechanical is sufficient evidence of CW Mechanical’s rights to receive the insurance proceeds without the need for any person dealing with CW Mechanical to make further enquiries.
9.4 CW Mechanical is not responsible for any loss or damage to the Goods in transit. CW Mechanical will render the Customer, at is own discretion such assistance as may be necessary for claims associated with the loss provided the Customer shall have notified CW Mechanical and the particular carrier in writing immeadiately when the loss or damage is discovered on reciept and shall file a claim with the carrier or its insurer within 3 days of the receipt of the Goods
10.1.1 CW Mechanical’s liability for a breach of a condition or warranty implied by Pt 3–2 Div 1 of the CCA is limited to any one (1) or more of the following:
(i) the replacement of the Goods or the supply of equivalent goods;
(ii) the repair of the Goods;
(iii) the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the Goods repaired.
10.1.2 Subject to CW Mechanical’s statutory obligations under the CCA and except as provided in these Terms & Conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded.
10.1.3 CW Mechanical is not liable to the Customer for any physical or financial injury, Loss or Consequential Loss of any kind arising out of the supply, layout, assembly, installation or operation of the Goods or arising out of negligence or in any way whatsoever.
10.1.4 CW Mechanical’s liability under section 274 of the CCA is expressly limited to a liability to pay the Customer an amount equal to:
(i) the cost of replacing the Goods;
(ii) the cost of obtaining equivalent goods; or
(iii) the cost of having the Goods repaired,
whichever is the lowest amount.
11.1.1 financing statement has the meaning given to it by the PPSA;
11.1.2 financing change statement has the meaning given to it by the PPSA;
11.1.3 security agreement means the security agreement under the PPSA created between the Customer and CW Mechanical by the Terms & Conditions; and
11.1.4 security interest has the meaning given to it by the PPSA.
11.2.1 constitute a security agreement for the purposes of the PPSA; and
11.2.2 create a security interest in:
(i) all Goods previously supplied by CW Mechanical to the Customer (if any); and
(ii) all Goods that will be supplied in the future by CW Mechanical to the Customer.
11.3 The Customer under takes to:
11.3.1 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 CW Mechanical may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the PPSR;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 11.3.1(i) or clause 11.3.1(ii);
11.3.2 indemnify, and upon demand reimburse, CW Mechanical for all expenses incurred in registering a financing statement or financing change statement on the PPSR established by the PPSA or releasing any Goods charged thereby;
11.3.3 not register a financing change statement in respect of a security interest without the prior written consent of CW Mechanical;
11.3.4 not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of CW Mechanical; and
11.3.5 immediately advise CW Mechanical of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
11.4 CWMechanical and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these Terms & Conditions.
11.5 The Customer here by waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d), 132(4) and 135 of the PPSA.
11.6 The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
11.7 Unless otherwise agreed to in writing by CW Mechanical, the Customer waives its right to receive a verification statement in accordance with
section 157 of the PPSA.
11.8 The Customer will unconditionally ratify any actions taken by CWMechanical under clauses 11.3, 11.4 and 11.5.
12.1 To the extent permitted by law, CWMechanical does not warrant the following:
12.1.1 any of the Goods that are not manufactured or produced by CW Mechanical; or
12.1.2 defects or deterioration in or of the Goods which, in the opinion of CW Mechanical, have been caused by careless or improper handling, negligence, misuse, non-adherence to care, operating, cleaning or maintenance instructions, alterations or repairs carried out by anyone other than CW Mechanical’s authorised representatives, or by fair wear and tear; or
12.1.3 that the Goods are fit for use. The Customer acknowledges and agrees that they have had the opportunity to review the variety of Goods offered by CW Mechanical together with their specifications and quality.
12.2 CWMechanical will not be liable to the Customer in anyway for any costs or Loss of any kind whatsoever (including, without limitation, liability for Consequential Loss) incurred or sustained by the Customer or any third party arising from or in connection with the Goods and any damage caused. The Customer must take reasonable steps to mitigate any Loss it suffers or incurs.
12.3 Where a Good or any part of a Good is not manufactured or produced by CW Mechanical, CW Mechanical will use reasonable endeavours to assign to the Customer the benefit of any warranty in respect of that part of the Good.
12.4 Any warranty of CWMechanical cannot be assigned or transferred to any third party.
13.1 WheretheGoodsdeliveredareshortorthereisotherlossanddamagethattheCustomerbelievesCWMechanicalisresponsiblefor,theCustomer may, at its cost, make a claim in writing to CW Mechanical. Any such claim must be received by CW Mechanical within 14 days of delvery of the Goods.
13.2 For the purpose of making any claim under this clause 13, the Customer must:
13.2.1 immediately upon becoming aware of circumstances giving rise to a claim, notify CW Mechanical in writing setting out full details of the claim and providing the Customer’s contact details and not later than forty-eight (48) hours after delivery of the Goods;
13.2.2 provide CW Mechanical with a descriptopm of the defect and proof of purchase of the Goods in relation to which the claim is made;
13.2.3 allow CW Mechanical, its employees and/or agents full and free access to the Goods in relation to which the claim is made and to the place where the Goods are located for the purpose of conducting any inspection and tests that CW Mechanical may in its absolute
discretion consider necessary to determine whether to admit the claim.
13.3.1 CW Mechanical has agreed in writing to accept a return of the Goods (which is may or may not do in its sole discretion and on terms and conditions specified by CW Mechanical);
13.3.2 the Goods are returned to CW Mechanical by the Customer within seven (7) days of receipt of the Goods by the Customer;
13.3.3 the Goods together with all packaging material, brochures and instruction materials are returned in the condition in which they were delivered;
13.3.4 any freight charges that are incurred in the return of the Goods are paid by the Customer.
13.4 If CWMechanical accepts a return of the Goods,CWMechanical may elect to repair or replace the Goods or grant a credit to the Customer in its absolute discretion.
13.5 CWMechanical will not beliable for Goods which have not been stored, used, handled or cared for in a proper manner.
14.1 Interest on any monies owed by the Customer to CW Mechanical will accrue daily from the date when payment becomes due, until the date payment is made, at a rate of 1.5% per month (and at CW Mechanical’s sole discretion such interest will compound daily at such a rate).
14.2 In the event that the Customer’s payment is dishonoured for any reason the Customer will be liable for any dishonour fees incurred by CW Mechanical.
14.3 If the Customer defaults in payment of any monies due and payable to CWMechanical by the Customer, the Customer indemnifies CWMechanical from and against all costs and disbursements incurred by CW Mechanical in pursuing the debt, including:
14.3.1 CW Mechanical’s collection agency costs actually incurred; and
14.3.2 CW Mechanical’s Solicitor and Client Legal Costs, which the parties agree are to be recoverable on an indemnity basis.
14.4 A statement in writing signed by an authorised officer of CWMechanical setting out the moneys due or owing to CWMechanical at the date of the
statement shall be sufficient evidence of the amount so due or owing.
14.5 Without prejudice to any other rights or remedies CWMechanical may have against the Customer, if at anytime the Customer is in breach of any obligation (including those relating to payment) CW Mechanical may suspend or terminate the supply of Goods to the Customer and any of its other obligations under these Terms & Conditions. CW Mechanical will not be liable to the Customer for any Loss the Customer suffers because CW Mechanical has exercised its rights under this clause.
14.6 In the event monies are outstanding at any time, CW Mechancial may appropriate any payment made by the Customer to such of the Goods supplied under any agreement with the Customer as CW Mecahncial in its sole discretion thinks fit
14.7 Without prejudice to CW Mechanical’s other remedies at law CW Mechanical will be entitled to suspend or cancel all or any part of any Order of the Customer that has not been delivered and all monies owing to CW Mechanical will, whether or not due for payment, become immediately payable in the event that:
14.7.1 any money payable to CW Mechanical becomes overdue, or in CW Mechanical’s opinion the Customer will be unable to meet its payments
as they fall due; or
14.7.2 the Customer 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
14.7.3 a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer; or
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.
15. Indemnity & Release
15.1 SubjecttothelimitedwarrantyprovidedbyCWMechanical,theCustomershallindemnifyCWMechanicalagainstallLossincludingbutnotlimited 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.
15.2 SubjecttotheseTermsandConditions,theCustomerreleasesandholdsharmless,CWMechanicalfromallLossthattheCustomermayorhas incurred as a result of or in connection with the Customer’s use of the Goods..
15.3 CWMechanicalwarrantsthattheGoods,totheextentthattheyaremanufacturedbyCWMechanical,arefreefromdefectsinworkmanshipand materials for the period described in the Quote.
16.1 NotwithstandinganyotherclauseintheseTerms&Conditions,CWMechanicalmaycancelanysupplyordeliveryofGoodstowhichtheseTerms & 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.
16.2 AnyOrdercancellationsbyaCustomermustbemadeinwritinginthesamemannerrequiredbyclause3.1.IntheeventthattheCustomercancels 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.
16.3 CancellationofOrdersforGoodsmadetotheCustomer’sspecificationsornon-catalogueitemswillnotbeacceptedonceanOrderConfirmation has been delivered to the Customer.
16.4 IntheeventthatanOrderiscancelledbyaCustomer,theCustomermayrequestthatCWMechanicalendeavourtoonselltheGoodstothirdparty 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.
17. Privacy Act 1988
17.1 TheCustomerand/ortheGuarantors(inthisclausereferredtoastheCustomer)agreeforCWMechanicaltoobtainfromacreditreportingagency a credit report containing personal credit information about the Customer in relation to credit provided by CW Mechanical.
17.2 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:
17.2.1 to assess an application by the Customer;
17.2.2 to notify other credit providers of a default by the Customer;
17.2.3 to exchange information with other credit providers, where the Customer is in default with other credit providers; and/or
17.2.4 to assess the creditworthiness of the Customer.
17.3 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).
17.4 TheCustomerconsentstoCWMechanicalbeinggivenaconsumercreditreporttocollectoverduepaymentoncommercialcredit(section18K(1)(h) Privacy Act 1988 (Cth)).
17.5 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):
17.5.1 the provision of Goods;
17.5.2 the marketing of Goods by CW Mechanical, its agents or distributors;
17.5.3 analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods;
17.5.4 processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
17.5.5 enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to
17.6.1 to obtain a consumer credit report about the Customer;
17.6.2 allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
17.7.1 personal particulars (including the Customer’s name, address, previous addresses, date of birth, name of employer and driver’s license number);
17.7.2 details concerning the Customer’s application for credit or commercial credit and the amount requested;
17.7.3 advice that CW Mechanical is a current credit provider to the Customer;
17.7.4 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;
17.7.5 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;
17.7.6 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);
17.7.7 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.
18. Force Majeure
18.1 NotwithstandinganyotherprovisionoftheseTerms&Conditions,nodefaultorfailuretoperformonthepartofCWMechanicalwillbeconsidered 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.
19. Limitation of Liability
19.1 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.
19.3 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:
19.3.1 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.
20. Customer Obligations
20.1 CustomerswhohaveorderedanyplantcuttingsfromCWMechanicalwillonlyusethecuttingsforcutflowerorpotproductionandshallnotengage 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.
21.1 TheseTerms&ConditionsaregovernedbythelawsoftheStateofQueensland,AustraliaandtheCustomerirrevocablysubmittotheexclusive jurisdiction of the courts of that State.
21.3 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.
21.4 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.
21.5 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.
21.7 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.
21.8 ThefailurebyCWMechanicaltoenforceanyprovisionoftheseTerms&Conditionswillnotbetreatedasawaiverofthatprovision,norwillitaffect CW Mechanical’s right to subsequently enforce that provision.
21.9 TheseTerms&Conditionssupersedeallpriorrepresentations,arrangements,understandingsandagreementsbetweenCWMechanicalandthe Customer and represents the entire and exclusive agreement between the parties.