DKM Industries Pty. Ltd. Trading as Custom Trolleys Australia
Terms & Conditions of Trade
1.1 'CTA' means D.K.M. Industries Pty Ltd T/A Custom Trolleys Australia, its successors and assigns or any person acting on behalf of and with the authority of D.K.M. Industries Pty Ltd T/A Custom Trolleys Australia.
1.2 'Customer' means the person/s or any person acting on behalf of and with the authority of the Customer requesting CTA to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
(c) includes the Customer's executors, administrators, successors and permitted assigns.
1.3 'Goods' means all Goods or Services supplied by CTA 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 (plus any GST where applicable) for the Goods as agreed between CTA and the Customer in accordance with clause 5 below.
1.5 'GST' means Goods and Services Tax as defined within the 'A New Tax System (Goods and Services Tax) Act 1999' (Cth).
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 the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or contract between the Customer and CTA.
2.3 These terms and conditions may be meant to be read in conjunction with CTA's Hire Form, and:
(a) where the context so permits, the terms 'Services' shall include any supply of Equipment, as defined therein; and
(b) if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.
2.4 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions (Queensland) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
3.1 The Customer acknowledges and accepts that CTA shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by CTA in the formation and/or administration of this contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by CTA in respect of the Services.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of CTA; the Customer shall not be entitled to treat this contract as repudiated nor render it invalid.
4. Change in Control
4.1 The Customer shall give CTA 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, and contact phone or fax number/s, change of trustees or business practice). The Customer shall be liable for any loss incurred by CTA as a result of the Customer's failure to comply with this clause.
5. Price and Payment
5.1 At CTA's sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by CTA to the Customer; or
(b) the Price as at the date of delivery of the Goods according to CTA's current price list; or
(c) CTA's quoted price (subject to clause 5.2 which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 CTA reserves the right to change the Price if a variation to CTA'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 change of plans/design, or as a result of increases to CTA in the cost of labour, materials or overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond CTA's control and will be charged for on the basis of CTA's quotation and will be shown as variations on the invoice. The Customer shall be required to respond to any variation submitted by CTA within ten (10) working days. Failure to do so will entitle CTA to add the cost of the variation to the Price. Payment for all variations must be made in full at their time of completion.
5.3 At CTA's sole discretion, a non-refundable deposit of up to fifty percent (50%) may be required.
5.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by CTA, 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 CTA's payment schedule;
(d) thirty (30) days following the end of the month in which a statement 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 thirty (30) days following the date of any invoice given to the Customer by CTA.
5.5 Payment may be made by cash, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and CTA.
5.6 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 CTA nor to withhold payment of any invoice because part of that invoice is in dispute.
5.7 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to CTA an amount equal to any GST CTA must pay for any supply by CTA under this or any other contract 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.
6. Delivery of Goods
6.1 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 CTA's address; or
(b) CTA (or CTA's nominated carrier) delivers the Goods to the Customer's nominated address even if the Customer is not present at the address.
6.2 At CTA's sole discretion, the cost of delivery is in addition to the Price.
6.3 Any time specified by CTA for delivery of the Goods is an estimate only. The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. CTA will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. In the event that the Customer is unable to take delivery of the Goods as arranged then CTA shall be entitled to charge a reasonable fee for redelivery and/or storage. Storage fees shall be at the rate specified on the CTA's documentation and shall apply one (1) month after notification that the Goods are ready for collection.
6.4 CTA 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.
7.1 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.
7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, CTA is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by CTA is sufficient evidence of CTA's rights to receive the insurance proceeds without the need for any person dealing with CTA to make further enquiries.
7.3 If the Customer requests CTA to leave Goods outside CTA'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.
7.4 Where the Customer is to supply CTA with any design specifications the Customer shall be responsible for providing accurate data. CTA shall not be liable whatsoever for any errors in the Goods that are caused by incorrect or inaccurate data being supplied by the Customer
7.5 The Customer shall be liable for any loss or damage whatsoever caused in the event that the Goods are fitted, serviced or operated incorrectly, or adapted for use other than the purpose that the Goods were intended for, or any part thereof however arising.
7.6 The Customer acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. CTA will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
7.7 The Customer acknowledges that where an anodised surface finish has been selected, slight colour variation may occur between the main unit frame and any installation trims used due to the difference in aluminium alloys available and manufacturing standards and tolerances shall not deemed to be a defect in the Goods.
7.8 The Customer acknowledges and agrees that where CTA has performed temporary repairs or welding of joins or metal tears, that:
(a) CTA offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
(b) CTA will immediately advise the Customer of the fault and shall provide the Customer with an estimate for the full repair; and
(c) CTA shall not be held liable for any losses or damages resulting from the welding being misused.
7.9 The Customer acknowledges that Goods supplied may:
(a) fade or change colour over time; and
(b) expand, contract or distort as a result of exposure to heat, cold, weather; and
(c) mark or stain if exposed to certain substances; and
(d) be damaged or disfigured by impact or scratching.
7.10 The Customer warrants they will not exceed any specified weights/load limits of the Goods. CTA shall not be liable for any damage caused to the Goods as a result of the Customer exceeding any specified weights/load limits.
7.11 The Customer agrees that CTA shall not be liable for any damage or loss including personal injury, death, (including but not limited to the failure of the Customer to follow CTA's safety, operation or maintenance instructions, or where the Customer has not received any formal instruction or training from CTA in relation to the Goods) or property loss due to any event beyond CTA's control.
8. Accuracy of Customer's Plans and Measurements
8.1 CTA shall be entitled to rely on the accuracy of any plans, specifications (including, but not limited to CAD drawings) 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, CTA accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
8.2 All customary industry tolerances shall apply to the dimensions and measurements of the Goods unless CTA and the Customer agree otherwise in writing.
10.1 Each party agrees to treat all information and ideas communicated, (including, but not limited to designs, plans, drawings or documents) to it by the other confidentially and agree not to divulge it to any third party, without the other party's written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party.
11.1 CTA and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid CTA all amounts owing to CTA; and
(b) the Customer has met all of its other obligations to CTA.
11.2 Receipt by CTA 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.
11.3 It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 11.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to CTA on request.
(b) the Customer holds the benefit of the Customer's insurance of the Goods on trust for CTA and must pay to CTA 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 CTA and must pay or deliver the proceeds to CTA 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 CTA and must sell, dispose of or return the resulting product to CTA as it so directs.
(e) the Customer irrevocably authorises CTA to enter any premises where CTA believes the Goods are kept and recover possession of the Goods.
(f) CTA 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 CTA.
(h) CTA may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
12. Personal Property Securities Act 2009 ('PPSA')
12.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
12.2 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 and/or collateral (account) - being a monetary obligation of the Customer to CTA for Services - that have previously been supplied and that will be supplied in the future by CTA to the Customer.
12.3 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 CTA 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 12.3(a)(i) or 12.3(a)(ii);
(b) indemnify, and upon demand reimburse, CTA 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 CTA;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of CTA;
(e) immediately advise CTA 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.
12.4 CTA 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.
12.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
12.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
12.7 Unless otherwise agreed to in writing by CTA, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
12.8 The Customer must unconditionally ratify any actions taken by CTA under clauses 12.3 to 12.5.
12.9 Subject to any express provisions to the contrary (including those contained in this clause 12) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
13. Security and Charge
13.1 In consideration of CTA 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).
13.2 The Customer indemnifies CTA from and against all CTA's costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising CTA's rights under this clause.
13.3 The Customer irrevocably appoints CTA and each director of CTA as the Customer's true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Customer's behalf.
14. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
14.1 The Customer must inspect the Goods at the time of Delivery and immediately notify CTA 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 CTA to inspect the Goods.
14.2 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).
14.3 CTA acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
14.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, CTA makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. CTA's liability in respect of these warranties is limited to the fullest extent permitted by law.
14.5 If the Customer is a consumer within the meaning of the CCA, CTA's liability is limited to the extent permitted by section 64A of Schedule 2.
14.6 If CTA is required to replace the Goods under this clause or the CCA, but is unable to do so, CTA may refund any money the Customer has paid for the Goods.
14.7 If the Customer is not a consumer within the meaning of the CCA, CTA'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 CTA at CTA's sole discretion;
(b) limited to any warranty to which CTA is entitled, if CTA did not manufacture the Goods;
(c) otherwise negated absolutely.
14.8 Subject to this clause 14, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 14.1; and
(b) CTA 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.
14.9 Notwithstanding clauses 14.1 to 14.8 but subject to the CCA, CTA 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 CTA;
(e) fair wear and tear, any accident, or act of God.
14.10 CTA may in its absolute discretion accept non-defective Goods for return in which case CTA may require the Customer to pay handling fees of up to thirty percent (30%) of the value of the returned Goods plus any freight costs.
14.11 Notwithstanding anything contained in this clause if CTA is required by a law to accept a return then CTA will only accept a return on the conditions imposed by that law.
15. Intellectual Property
15.1 Where CTA has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of CTA. Under no circumstances may such designs, drawings and documents be used without the express written approval of CTA.
15.2 Further to clause 15.1, CTA shall reserve the right to charge a licence fee for any plan, design or drawings designed by CTA for the Customer which is subsequently provided by the Customer or used by any third party at the Customer's request without the approval of CTA being sought or given.
15.3 The Customer warrants that all designs, specifications or instructions given to CTA will not cause CTA to infringe any patent, registered design or trademark in the execution of the Customer's order and the Customer agrees to indemnify CTA against any action taken by a third party against CTA in respect of any such infringement.
15.4 The Customer agrees that CTA may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which CTA has created for the Customer.
16. Default and Consequences of Default
16.1 At CTA's sole discretion, interest on overdue invoices may 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 CTA's sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 If the Customer owes CTA any money the Customer shall indemnify CTA from and against all costs and disbursements incurred by CTA in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, CTA's contract default fee, and bank dishonour fees).
16.3 Further to any other rights or remedies CTA may have under this contract, if a Customer has made payment to CTA, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by CTA under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer's obligations under this contract.
16.4 Without prejudice to CTA's other remedies at law CTA shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to CTA shall, whether or not due for payment, become immediately payable if:
(a) any money payable to CTA becomes overdue, or in CTA's opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by CTA;
(c) 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
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
17.1 Without prejudice to any other remedies CTA may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions CTA may suspend or terminate the supply of Goods to the Customer. CTA will not be liable to the Customer for any loss or damage the Customer suffers because CTA has exercised its rights under this clause.
17.2 CTA 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 CTA shall repay to the Customer any money paid by the Customer for the Goods. CTA shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.3 In the event that the Customer cancels delivery of standard Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by CTA as a direct result of the cancellation (including, but not limited to, any loss of profits) and may, at CTA's sole discretion, be subject to an administration fee of up to thirty percent (30%) of the value of those Goods.
17.4 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.
18. Privacy Act 1988
18.1 The Customer agrees for CTA to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by CTA.
18.2 The Customer agrees that CTA may exchange information about the Customer with those credit providers and with related body corporates 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 including the Customer's repayment history in the preceding two (2) years.
18.3 The Customer consents to CTA being given a consumer credit report to collect overdue payment on commercial credit.
18.4 The Customer agrees that personal credit information provided may be used and retained by CTA for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Customer's credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
18.5 CTA may give information about the Customer to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Customer including credit history.
18.6 The information given to the CRB may include:
(a) personal information as outlined in 18.1 above;
(b) name of the credit provider and that CTA is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer's application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and CTA has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of CTA, the Customer has committed a serious credit infringement;
(h) advice that the amount of the Customer's overdue payment is equal to or more than one hundred and fifty dollars ($150).
18.7 The Customer shall have the right to request (by e-mail) from CTA:
(a) a copy of the information about the Customer retained by CTA and the right to request that CTA correct any incorrect information; and
(b) that CTA does not disclose any personal information about the Customer for the purpose of direct marketing.
18.8 CTA will destroy personal information upon the Customer's request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the law.
18.9 The Customer can make a privacy complaint by contacting CTA via e-mail. CTA will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
19. Unpaid Seller's Rights
19.1 Where the Customer has left any item with CTA for repair, modification, exchange or for CTA to perform any other service in relation to the item and CTA has not received or been tendered the whole of any monies owing to it by the Customer, CTA shall have, until all monies owing to CTA are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
19.2 The lien of CTA shall continue despite the commencement of proceedings, or judgment for any monies owing to CTA having been obtained against the Customer.
20. Service of Notices
20.1 Any written notice given under this contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this contract;
(c) by sending it by registered post to the address of the other party as stated in this contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party's last known email address.
20.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
21.1 If the Customer at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust ('Trust') then whether or not CTA may have notice of the Trust, the Customer covenants with CTA as follows:
(a) the contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
(b) the Customer has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
(c) the Customer will not without consent in writing of CTA (CTA will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
(i) the removal, replacement or retirement of the Customer as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
22.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party'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.
22.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland, the state in which CTA has its principal place of business, and are subject to the jurisdiction of the Beenleigh courts in Queensland.
22.3 Subject to clause 14 CTA 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 CTA of these terms and conditions (alternatively CTA's liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
22.4 CTA may licence and/or assign all or any part of its rights and/or obligations under this contract without the Customer's consent.
22.5 The Customer cannot licence or assign without the written approval of CTA.
22.6 CTA may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of CTA's sub-contractors without the authority of CTA.
22.7 The Customer agrees that CTA may amend these terms and conditions by notifying the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for CTA to provide Goods to the Customer.
22.8 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.
22.9 Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.