Carpets On The Move Queensland Pty Ltd – Terms & Conditions of Trade
1.1 “COTM” means Carpets On The Move Queensland Pty Ltd ATF The BA Enterprises Trust T/A Carpets On The Move Queensland Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Carpets On The Move Queensland Pty Ltd ATF The BA Enterprises Trust T/A Carpets On The Move Queensland Pty Ltd.
1.2 “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Goods” means all Goods or Services supplied by COTM to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between COTM and the Customer in accordance with clause 4 below.
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with COTM’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and COTM.
2.3 The Customer acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, COTM:
(a) will advise the Customer of the next scheduled production date, and the Customer may (at their discretion) choose to wait; or
(b) may (upon mutual agreement with the Customer) supply alternative Goods (and this may vary the Price as per clause 4.2); and
(c) COTM reserves the right to halt all Services until such time as COTM and the Customer agree to such alternative under this clause 2.3.
2.4 The Customer accepts and acknowledges that a minimum fee may apply for any Services performed by COTM after hours or if the Services are completed in more than one stage.
3. Change in Control
3.1 The Customer shall give COTM not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by COTM as a result of the Customer’s failure to comply with this clause.
4. Price and Payment
4.1 At COTM’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by COTM to the Customer; or
(b) COTM’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 COTM reserves the right to change the Price if a variation to COTM’s quotation is requested. Any variation from the plan of scheduled Services or specifications (including, but not limited to, any variation as a result of additional services required due to unforeseen circumstances such as limitations to accessing the site, adjustments to the sub-floor, the requirement for trims, prerequisite work by any third party not being completed or as a result of any increase to COTM’s in the cost of materials and labour) will be charged for on the basis of COTM’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 At COTM’s sole discretion a fifty percent (50%) deposit will be required. Payment of the deposit by the Customer
and receipt of payment by COTM is a precondition of COTM’s responsibility to supply the Goods and must be paid prior to commencement of the ordering of the Goods. The deposit amount due will be stipulated at the time of the quotation. Subject to clause 18.2 in the event of cancellation, the Customer shall be liable all costs incurred up to the time of cancellation (including but not limited to, any re-stocking fee imposed on COTM by their supplier for non-stocklist and/or imported items).
4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by COTM, which may be:
(a) on delivery of the Goods;
(b) before delivery of the Goods;
(c) by way of instalments/progress payments in accordance with COTM’s payment schedule;
(d) thirty (30) days following the date in which an invoice is posted to the Customer’s address or address for notices;
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by COTM.
4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two and a half percent (2.5%)of the Price), or by any other method as agreed to between the Customer and COTM.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to COTM an amount equal to any GST COTM must pay for any supply by COTM under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5. Delivery of Goods
5.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at COTM’s address; or
(b) COTM (or COTM’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
5.2 At COTM’s sole discretion the cost of delivery is in addition to the Price.
5.3 COTM may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.4 Any time or date given by COTM to the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and COTM will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
6.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, COTM is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by COTM is sufficient evidence of COTM’s rights to receive the insurance proceeds without the need for any person dealing with COTM to make further enquiries.
6.3 If the Customer requests COTM to leave Goods outside COTM’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
6.4 Where the Customer has supplied materials for COTM to complete the Services, the Customer acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. COTM shall not be responsible for any defects in the works, any loss or damage to the materials (or any part thereof), howsoever arising from the use of materials supplied by the Customer.
6.5 The Customer acknowledges that variations of colour, shade and grain are inherent in all natural products and dye lots. While every effort will be taken by COTM to match colour, shade or grain of product, COTM shall not be liable for any loss, damages or costs howsoever arising resulting from any variation in colour, shading or grain between batches of product or sale samples and the final product supplied.
6.6 The Customer acknowledges that some installations of cut-pile carpeting develop irregular light and dark areas. These are caused by some pile yarns changing their original direction of lay, and thereby changing the way light is reflected or absorbed from their surface. The occurrence of permanent pile reversal is related to location of the carpet. It is not a manufacturing fault or defect, and apart from affecting appearance, has no detrimental effect on the performance of the carpet.
6.7 The Customer acknowledges and agrees that hardboard underlay joins may show through highly polished or very smooth resilient floor coverings under certain light conditions.
6.8 The Customer acknowledges that any damage to floor coverings by an outside agent is the responsibility of the Customer. Any requests to COTM to make any repair not caused by COTM will be charged at the normal current rates.
6.9 In the event COTM has provided Goods to the Customer on a ‘supply-only’ basis, COTM shall not be liable for the installation of the Goods. It is the Customer’s sole responsibility to follow the manufacturer’s installation recommendations.
6.10 Any advice, recommendation, information, assistance or service provided by COTM in relation to Goods or Services supplied is given in good faith, is based on COTMs own knowledge and experience and shall be accepted without liability on the part of COTM and it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Goods or Services.
7. Accuracy of Customer’s Plans and Measurements
7.1 COTM shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, COTM accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
7.2 In the event the Customer gives information relating to measurements and quantities of the Goods required to complete the Services, it is the Customer’s responsibility to verify the accuracy of the measurements and quantities, before the Customer or COTM places an order based on these measurements and quantities. COTM accepts no responsibility for any loss, damages, or costs however resulting from the Customer’s failure to comply with this clause.
8. Carpet Clauses
8.1 The Customer acknowledges and accept that;
(a) whilst carpet manufacturers make every effort to match dye lots, colours or shade may vary between batches of product and/or between sales samples and actual product supplied; and
(b) carpet manufacturers cannot guarantee to produce perfectly uniform patterned product, therefore there is no guarantee that patterned product will match perfectly when installed; and
(c) the installation process for carpet may require seams and cross-joins and that the appearance of these may be affected by light source and in particular the construction of the chosen product.
9. Flooring Risk
9.1 The Customer acknowledges and agrees that COTM shall not be liable for any loss, damages or costs however arising in the event that:
(a) a heavy or sharp object is dropped or falls on the finished flooring, as some Goods supplied will show scratches and will get cut due to the soft and flexible surface; or
(b) an object is dragged across the flooring can rip and tear; or
(c) any discolours or bubbles in areas due to exposure to extreme heat (including, but not limited to, conservatories and floor to ceiling windows).
9.2 COTM does not recommend vinyl to be installed over a floor that is a combination of wood and concrete, or expansion joints in concrete floors, as any movement, joint, seams in bison board, or thin line board will show through the vinyl.
9.3 The Customer acknowledges and agrees that vinyl will not fully seal a floor around the edges particularly around showers or baths; the Customer also agrees water can get underneath and therefore bubble and/or discolour the vinyl. COTM shall not be held liable for any loss, damages or costs however arising due to the same.
9.4 The Customer acknowledges that while all care is taken during installation, scratches on skirting are at times unavoidable.
9.5 COTM will not be responsible for the adjustment of any doors to allow for the new flooring height due to the Customer’s selection of the Goods.
9.6 Where the Goods supplied include a directional pattern the Customer shall advise COTM at the time of the quotation should they have a preference as to the direction in which the pattern should run. If no preference is given to COTM by the Customer then COTM will install at their discretion.
9.7 Should the sub floor require any preparation (including but not limited to, levelling, removal of existing floors etc) this will be in addition to the Price. Any variations will be charged for on the basis of COTM’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
9.8 COTM shall advise the Customer if COTM believes that there are any issues with the sub floor (including, but not limited to, moisture problems which may cause the Goods distort, bubble and discolour) however the Customer acknowledges that it is not always possible to identify such problems therefore the Customer agrees that COTM shall not be held liable in any way whatsoever should any such issue go undetected causing damage to the Goods.
9.9 The Customer acknowledges that whilst floor levelling compound and floor preparation may help smooth out rough floors; this will not necessarily level a floor.
10.1 The Customer shall ensure that COTM has clear and free access to the work site at all times to enable them to undertake the Services. COTM shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of COTM.
11. Location of Services
11.1 Prior to COTM commencing any work the Customer must advise COTM of the precise location of all under floor services on the site and clearly mark the same. The underground mains & services the Customer must identify include, but are not limited to, electrical services, gas services, sewer services, telephone cables, fibre optic cables, and any other services that may be on site.
11.2 Whilst COTM will take all care to avoid damage to any services the Customer agrees to indemnify COTM in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 11.1.
12. Customer’s Responsibilities
12.1 It is the Customer’s responsibility to:
(a) make the premises available on the agreed date and time. If installation is interrupted by the failure of the Customer to adhere to the installation schedule agreed to between COTM and the Customer, any additional costs will be invoiced to the Customer as an extra; and
(b) provide a clean and clear area to enable scheduled work to be completed and where the Goods can be stored and cut to size during the installation process; and
(c) fully disclose any information that may affect COTM’s installation procedures (including, but not limited to, disclosing known breaks or tears in the membrane, extensions of existing slabs, thickened beams, curing compounds that may have been used, or the use of concrete over 25mpa); and
(d) ensure the sub-floor is adequately ventilated and is structurally sound; and
(e) ensure that the levels of the sub-floor are satisfactory as the floor coverings can only follow the contours of the sub-floor and will not correct unevenness; and
(f) remove all fragile items such as glassware, crockery, pot plants, furniture and ornaments. Breakages and damages are the responsibility of the Customer. All care taken but no responsibility accepted by COTM in this regard; and
(g) extinguish all naked flames prior to installation including, but not limited to, pilot lights, heaters etc; and
(h) supply power to within eight (8) metres of the project; and
(i) inspect the installation of the Goods following the completion of the Services before the installer leaves the site or as soon as possible after the Services have been completed; and
(j) vacuum or clean the floor after the Services however COTM will remove all waste products associated with the installation
12.2 COTM is not insured to remove furniture or fittings and will not do so, nor is COTM licensed to move gas or electrical appliances. COTM hereby requests the Customer to remove any and all appliances in the installation area prior to the commencement of any Services. The Customer acknowledges and agrees that COTM shall not be held liable for any loss, damages or costs arising due to the Customer’s failure to comply with this clause.
13.1 COTM and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid COTM all amounts owing to COTM; and
(b) the Customer has met all of its other obligations to COTM.
13.2 Receipt by COTM of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
13.3 It is further agreed that:
(a) until ownership of the Goods passes to the Customer in accordance with clause 13.1 that the Customer is only a bailee of the Goods and must return the Goods to COTM on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for COTM and must pay to COTM the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for COTM and must pay or deliver the proceeds to COTM on demand.
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of COTM and must sell, dispose of or return the resulting product to COTM as it so directs.
(e) the Customer irrevocably authorises COTM to enter any premises where COTM believes the Goods are kept and recover possession of the Goods.
(f) COTM may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of COTM.
(h) COTM may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
14. Personal Property Securities Act 2009 (“PPSA”)
14.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
14.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by COTM to the Customer.
14.3 The Customer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which COTM may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii)correct a defect in a statement referred to in clause 14.3(a)(i) or 14.3(a)(ii);
(b) indemnify, and upon demand reimburse, COTM for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of COTM;
(d) 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 COTM;
(e) immediately advise COTM 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.
14.4 COTM and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
14.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
14.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
14.7 Unless otherwise agreed to in writing by COTM, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
14.8 The Customer must unconditionally ratify any actions taken by COTM under clauses 14.3 to 14.5.
14.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
15. Security and Charge
15.1 In consideration of COTM agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
15.2 The Customer indemnifies COTM from and against all COTM’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising COTM’s rights under this clause.
15.3 The Customer irrevocably appoints COTM and each director of COTM as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Customer’s behalf.
16. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
16.1 The Customer must inspect the Goods on delivery and must within forty eight (48) hours of delivery notify COTM in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow COTM to inspect the Goods.
16.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
16.3 COTM acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
16.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, COTM makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. COTM’s liability in respect of these warranties is limited to the fullest extent permitted by law.
16.5 If the Customer is a consumer within the meaning of the CCA, COTM’s liability is limited to the extent permitted by section 64A of Schedule 2.
16.6 If COTM is required to replace the Goods under this clause or the CCA, but is unable to do so, COTM may refund any money the Customer has paid for the Goods.
16.7 If the Customer is not a consumer within the meaning of the CCA, COTM’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Customer by COTM at COTM’s sole discretion;
(b) limited to any warranty to which COTM is entitled, if COTM did not manufacture the Goods;
(c) otherwise negated absolutely.
16.8 Subject to this clause 16, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 16.1; and
(b) COTM has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
16.9 Notwithstanding clauses 16.1 to 16.8 but subject to the CCA, COTM shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Customer failing to properly maintain or store any Goods;
(b) the Customer using the Goods for any purpose other than that for which they were designed;
(c) the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Customer failing to follow any instructions or guidelines provided by COTM;
(e) fair wear and tear, any accident, or act of God.
16.10 Notwithstanding anything contained in this clause if COTM is required by a law to accept a return then COTM will only accept a return on the conditions imposed by that law.
17. Default and Consequences of Default
17.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at COTM’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
17.2 If the Customer owes COTM any money the Customer shall indemnify COTM from and against all costs and disbursements incurred by COTM in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, COTM’s contract default fee, and bank dishonour fees).
17.3 Without prejudice to any other remedies COTM may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions COTM may suspend or terminate the supply of Goods to the Customer. COTM will not be liable to the Customer for any loss or damage the Customer suffers because COTM has exercised its rights under this clause.
17.4 Without prejudice to COTM’s other remedies at law COTM shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to COTM shall, whether or not due for payment, become immediately payable if:
(a) any money payable to COTM becomes overdue, or in COTM’s opinion the Customer will be unable to make a payment when it falls due;
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the
Customer or any asset of the Customer.
18.1 COTM may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice COTM shall repay to the Customer any money paid by the Customer for the Goods. COTM shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by COTM as a direct result of the cancellation (including, but not limited to, any loss of profits or insufficient notice given to COTM by the Customer).
18.3 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
19. Privacy Act 1988
19.1 The Customer agrees for COTM to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by COTM.
19.2 The Customer agrees that COTM 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:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer. The Customer understands 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.
19.3 The Customer consents to COTM being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
19.4 The Customer agrees that personal credit information provided may be used and retained by COTM for the following purposes (and for other purposes as shall be agreed between the Customer and COTM or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by COTM, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer;
(e) 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.
19.5 COTM may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
19.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
(b) details concerning the Customer’s application for credit or commercial credit and the amount requested;
(c) advice that COTM is a current credit provider to the Customer;
(d) 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;
(e) 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;
(f) information that, in the opinion of COTM, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customer’s credit obligations);
(g) advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Customer by COTM has been paid or otherwise discharged.
20. Other Applicable Legislation
20.1 At COTM’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 (New South Wales) or the Building and Construction Industry Payments Act 2004 (Queensland) may apply.
20.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the any of the Acts listed in clause 20.1 (each as applicable), except to the extent permitted by the Act where applicable.
21.1 The failure by COTM to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect COTM’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
21.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland in which COTM has its principal place of business, and are subject to the jurisdiction of the Tweed Heads Courts in Queensland.
21.3 Subject to clause 16 COTM shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by COTM of these terms and conditions (alternatively COTM’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
21.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by COTM nor to withhold payment of any invoice because part of that invoice is in dispute.
21.5 COTM may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
21.6 The Customer agrees that COTM may amend these terms and conditions at any time. If COTM makes a change to these terms and conditions, then that change will take effect from the date on which COTM notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for COTM to provide Goods to the Customer.
21.7 Neither party shall 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 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.