1. In these Terms and Conditions:
a) ACL means the Australian Consumer Law under the Competition and Consumer Act 2010 (C’th).
b) Agreement means an agreement entered into between CQ Pump & Irrigation Services and the Customer to which these Terms and Conditions apply. For the avoidance of doubt, each time CQ Pump & Irrigation Services accepts an Order, a separate Agreement is formed incorporating the Order and these Terms and Conditions. Any other terms or conditions do not form part of an Agreement unless expressly agreed to in writing.
c) Application for Credit means a form of application for Credit completed by the Customer.
d) Collateral, Financing Statement, Financing Change Statement, Security Agreement and Security Interest have the same meanings as in the PPSA.
e) Consequential Loss means any one or more of the following: loss of bargain; loss of revenues; loss of reputation; indirect loss; loss of profits; consequential loss; loss of actual or anticipated savings; lost opportunities, including opportunities to enter into arrangements with third parties; and loss or damage in connection with claims against the Customer by third parties.
f) Construction Work has the same meaning as in the Building and Construction Industry Payments Act 2004 (Qld).
g) Credit means the Customer’s deferred debt to CQ Pump & Irrigation Services for the purchase of Goods and Services in connection with a business carried on by the Customer.
h) Customer means the purchaser of Goods and Services from CQ Pump & Irrigation Services, as specified in any invoice, Application for Credit, Order or other documents.
i) Delivery means: (i) in the case of Goods, delivery by CQ Pump & Irrigation Services to the Customer at the location or place specified in an Order; or (ii) in the case of Services, the date of completion of those services; and includes such other place or date (as the case may be) as the parties may agree or as CQ Pump & Irrigation Services may, without Obligation and at its sole discretion, consider reasonable in the circumstances.
j) Descriptive Matter means and includes without limitation, Specifications, descriptions, pictures, drawings, diagrams, particulars of varieties/weights/dimensions or any other form of description or measurement submitted with or prior to any Order or Quote, or contained in its website, catalogues, price lists or advertising matter.
k) Dispatched means Goods have been moved from the premises of CQ Pump & Irrigation Services for the purpose of Delivery to the Customer, or any third party, pursuant to an Order and Dispatch has a corresponding meaning.
l) Due Date means, where CQ Pump & Irrigation Services has agreed to provide credit to the Customer, the date is at the end of the month following the month of the invoice issued by CQ Pump & Irrigation Services’ for the Goods and Services; or as otherwise specified on the Application for Credit or Order.
m) Goods means all products sold or supplied (whether gratuitously or not) by CQ Pump & Irrigation Services to the Customer as specified in the Quote or Order or as otherwise agreed between CQ Pump & Irrigation Services and the Customer.
n) Grantor refers to the Customer and has the same meaning as in the PPSA.
o) GST has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999(C’th).
p) Intellectual Property means any intellectual or industrial property, including (without limitation): (i) any patent, trademark or service mark, copyright, registered design, unregistered design, trade secret or confidential information; or (ii) any licence or other Right to use or to grant the use of any of the above or to be the registered proprietor or user of any of them;
q) Interest Rate means the rate which is 2% per annum above the rate charged by CQ Pump & Irrigation Services’ bank from time to time on unsecured overdrafts of $100,000 or more, conclusive evidence of which will be confirmation in writing by CQ Pump & Irrigation Services’ bank.
r) Non-Excludable Condition means any condition, warranty or guarantee provided or implied by any state, territory or commonwealth law, including but not limited to the statutory consumer guarantees described in the ACL, and the provisions of any state or territory legislation which cannot be lawfully excluded.
s) Obligation means any express or implied legal, equitable, contractual, statutory or other obligation, agreement, covenant, commitment, duty, undertaking or liability.
t) Order means any purchase order or other request by the Customer for the supply of Goods and Services by CQ Pump & Irrigation Services, whether that supply is to the Customer or to any third party and whether the request amounts to an offer or an invitation to treat from the Customer, or is constituted by the acceptance by the Customer of a Quote.
u) PMSI means a Purchase Money Security Interest within the meaning of section 14 of the PPSA.
v) PPSA means the Personal Property Securities Act 2009 (C’th).
w) PPSR means the Personal Property Securities Register established pursuant to the PPSA.
x) Price means the price payable for Goods and Services as agreed between CQ Pump & Irrigation Services and the Customer in accordance with clause 6 of these Terms and Conditions.
y) Quote means any quotation form or other document provided by CQ Pump & Irrigation Services to the Customer detailing the Goods and Services to be provided.
z) Rates means the hourly rates set out in the Schedule of Hourly Rates for CQ Pump & Irrigation Services as stated in the relevant Quote.
aa) Right includes any legal, equitable, contractual, statutory or other right, power, authority, benefit, privilege, remedy, discretion or cause of action.
bb) Services means the services to be performed by CQ Pump & Irrigation Services as specified in the Quote or Order or as otherwise agreed between CQ Pump & Irrigation Services and the Customer.
cc) Specifications means any written specification relating to Goods that details the quantities, processes and/or conditions required for the correct use of the Goods.
dd) Terms and Conditions means these Terms and Conditions and any subsequent or updated version of these Terms and Conditions.
ee) CQ Pump & Irrigation Services means CQ Pump & Irrigation Services Pty Ltd ACN 143 716 634, trading as CQ Pump & Irrigation Services Pty Ltd.
ff) Where the context requires, a reference to “Goods and Services” will mean and include a reference to “Goods” or “Services” or “Goods and/or Services”.
gg) Singular includes plural and vice versa.
hh) A reference to a person includes corporations, trusts, associations, partnerships, a government authority and other legal entities, and where necessary, include successor bodies.
ii) References to sections of statutes or terms defined in statutes refer to corresponding sections or defined terms in amended, consolidated or replacement statutes.
jj) Headings and the table of contents are used for convenience only and are to be disregarded in the interpretation of these Terms and Conditions.
kk) A reference to a party includes that party’s executors, administrators, substitutes, successors and permitted assigns.
ll) Nothing in these Terms and Conditions may be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, Right or remedy implied by law (including the ACL and the PPSA) and which by law cannot be excluded, restricted or modified.
Terms of Sale
2. Goods and Services sold or supplied by CQ Pump & Irrigation Services are sold or supplied strictly on these Terms and Conditions, which can only be waived or varied in writing by CQ Pump & Irrigation Services. To the extent of any inconsistency, these Terms and Conditions will prevail.
3. 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 Goods and Services.
4. Goods and Services to be sold or supplied by CQ Pump & Irrigation Services to the Customer are as described on the Order and the description of Goods and Services on the Order as accepted (modified only as may be agreed in writing) will prevail over all other descriptions including any prior enquiry by the Customer.
5. CQ Pump & Irrigation Services reserves the right to update from time to time the Terms and Conditions which will apply to an Agreement. If CQ Pump & Irrigation Services makes a change to these Terms and Conditions, that change will take effect from the date on which CQ Pump & Irrigation Services provides reasonable notification to the Customer of such change. The Customer confirms that notification on CQ Pump & Irrigation Services’ website of the updated Terms and Conditions or reference to the updated Terms and Conditions in any material provided to the Customer will be reasonable steps taken by CQ Pump & Irrigation Services to inform the Customer. The Customer will be taken to have acknowledged and accepted such change if the Customer makes a subsequent request for CQ Pump & Irrigation Services to provide Goods and Services to the Customer. CQ Pump & Irrigation Services declares and the Customer acknowledges that the most up-to-date version of the Terms and Conditions which form part of the Agreement can be found on CQ Pump & Irrigation Services’ website, currently located at www.cqpump.com.au
Price and Payment
6. At CQ Pump & Irrigation Services’ sole discretion the Price shall be: (a) as indicated on any invoice provided by CQ Pump & Irrigation Services to the Customer; or (b) CQ Pump & Irrigation Services’ quoted prices (subject to clause 7) which will be valid for the period stated in the Quote or otherwise for a period of Thirty (30) days, unless earlier withdrawn. CQ Pump & Irrigation Services reserves the Right to refuse any Order based on any Quote within 30 days after the date of receipt of the Order.
7. CQ Pump & Irrigation Services reserves the Right to change the Price if a variation to the Quote is requested or if there is a change in the Order. CQ Pump & Irrigation Services will be entitled to payment of an additional amount which is reasonable in the circumstances. In particular, but without limitation, if Goods are returned as defective but are not in fact defective after testing, then CQ Pump & Irrigation Services is entitled to charge the Customer for all relevant additional freight and handling costs and for the costs of CQ Pump & Irrigation Services’ labour in investigating the alleged defects in the Goods. Any additional Goods and Services required by the Customer will be charged to the Customer on the basis of a further Quote.
8. At CQ Pump & Irrigation Services’ sole discretion, a non-refundable deposit may be required prior to acceptance of an Order.
9. Time for payment for Goods and Services will be of the essence and unless otherwise agreed by CQ Pump & Irrigation Services in response to any Application for Credit, the Price must be paid by the Customer on or before Delivery of the Goods and Services or by such other date determined by CQ Pump & Irrigation Services in its sole discretion. If CQ Pump & Irrigation Services has agreed to provide Credit, then payment must be made by cleared funds on the Due Date.
10. Payment may be made by cash, bank cheque, electronic/on-line banking, credit card (plus the maximum credit card bank fee, merchant fee and administration surcharge permitted by law), or by any other method as agreed to in writing by CQ Pump & Irrigation Services.
11. CQ Pump & Irrigation Services may charge interest at the Interest Rate on all moneys due and owing by the Customer to CQ Pump & Irrigation Services from time to time for the period from the Due Date until the date upon which payment is ultimately received.
12. Should CQ Pump & Irrigation Services become a creditor of the Customer, the Customer authorises CQ Pump & Irrigation Services to collect, retain, use, record, and disclose credit information about the Customer for the purpose of assessing and reporting matters related to the Customer’s credit-worthiness.
13. If the Customer breaches the payments terms, CQ Pump & Irrigation Services may, as its discretion, terminate the Agreement and report the breach to any credit provider or credit reference organisation. The Customer understands that this may affect its credit rating.
14. Unless otherwise stated the Price as charged includes GST. 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.
15. The cost of any permits, licence fees and/or toll charges incurred by CQ Pump & Irrigation Services, and any special packing and packing materials used in relation to Goods and Services, will be charged to the Customer despite that such cost may have been omitted from any Quote.
Descriptive Matter, etc
16. The descriptions, illustrations and performances contained in any Descriptive Matter do not form part of the Agreement for sale or supply of Goods and Services or of the description applied to any Goods and Services. The Customer acknowledges that it has not relied upon any Descriptive Matter as an inducement to enter into any Agreement. The Customer must determine whether the Goods and Services are adequate for the purpose intended by the Customer. CQ Pump & Irrigation Services is not capable of determining all of the Customer’s objectives in relation to the Goods and Services and relies on the Customer as to whether the Goods and Services are adequate to achieve the Customer’s purpose and objectives.
17. Any performance standards, figures or representations as to quality given by CQ Pump & Irrigation Services are estimates only. CQ Pump & Irrigation Services makes no representation and is under no liability for damages for failure of any Goods and Services to attain such quality standards, figures or quality unless specifically represented and warranted in writing. Any such warranties are subject to recognised tolerances applicable to such standards, figures or quality.
18. CQ Pump & Irrigation Services will not be liable for any loss, damage or delay occasioned to the Customer, its customers or any other person, arising from:(a) late Delivery or non-Delivery, or late utilisation of any Goods and Services; or(b) any actions or Obligations conducted or incurred by the Customer in reliance on any expected Delivery date.
19. The Customer is responsible for making arrangements to receive Goods and Services Delivered in accordance with any Order failing which CQ Pump & Irrigation Services may, without Obligation, Deliver in any other manner it considers reasonable in the circumstances.
20. If the Customer fails to accept Delivery of Goods and Services, the Customer will be liable for loss of or damage to the Goods and Services and for any costs or damages incurred by CQ Pump & Irrigation Services on account of such failure to accept Delivery.
21. Should the Customer fail to provide sufficient instructions to enable Delivery of Goods to the Customer, CQ Pump & Irrigation Services may, without Obligation, arrange for suitable storage and insurance until such Goods are Dispatched. Charges for storage, insurance, transport and other incidental costs, including interest at the Interest Rate may be charged by CQ Pump & Irrigation Services to the Customer.
22. Delivery of Goods and Services to a third party nominated by the Customer is deemed to be Delivery to the Customer.
23. CQ Pump & Irrigation Services may deliver Goods and Services in separate instalments. Each separate instalment may be invoiced and paid in accordance with these Terms and Conditions.
24. The risk in, and all attached liability for damage to, Goods passes to the Customer at the point of Dispatch of the Goods even if CQ Pump & Irrigation Services Delivers Goods itself or CQ Pump & Irrigation Services’ premises are the intended Delivery location. The Customer must make its own arrangements for insurance of the Goods on or before Dispatch.
25. If any Goods are damaged or destroyed following Dispatch but prior to ownership passing to the Customer, CQ Pump & Irrigation Services is entitled to receive all monies owing in relation to the Goods, including all insurance proceeds payable for the Goods. The production of these Terms and Conditions by CQ Pump & Irrigation Services will be sufficient evidence of CQ Pump & Irrigation Services’ Right to receive the insurance proceeds without the need for any person dealing with CQ Pump & Irrigation Services to make further enquiries.
Loss or damage in transit
26. CQ Pump & Irrigation Services is not responsible to the Customer or any person claiming through the Customer for any loss or damage to Goods in transit caused by any event of any kind by any person (whether or not CQ Pump & Irrigation Services is legally responsible for the person who caused or contributed to that loss or damage).
Defects, Warranties and Returns
27. The Customer must inspect Goods and Services on Delivery and within seven days of Delivery must notify CQ Pump & Irrigation Services in writing of any evident defect/damage, shortage in quantity, or failure to comply with the Descriptive Matter, Order or quote or other grounds for rejection of the Goods and Services. Upon such notification the Customer must:(a)provide all supporting evidence; and (b) allow CQ Pump & Irrigation Services the opportunity to inspect the Goods and Services.
28. Under applicable State, Territory and Commonwealth law (including, without limitation, the ACL), certain Non-Excludable Conditions may be implied into these Terms and Conditions. Nothing in these Terms and Conditions purports to modify or exclude the Non-Excludable Conditions.
29. Except as expressly set out in these Terms and Conditions, the Quote or the manufacturer specifications in relation to the Goods, CQ Pump & Irrigation Services makes no warranties or other representations under these Terms and Conditions or the Agreement generally including, without limitation, as to the quality, merchantability or suitability of any Goods and Services. CQ Pump & Irrigation Services’ liability in respect of any such warranties is limited to the fullest extent permitted by law.
30. If ACL applies, CQ Pump & Irrigation Services’ liability in relation any loss or damage, suffered by the Customer in connection with these Terms and Conditions and the Goods and Services is limited to: (a) either replacing or repairing Goods or reimbursing the Customer for the repair or replacement of the Goods (at the election of CQ Pump & Irrigation Services); (b) either re-supplying Services or reimbursing the Customer for paying someone else to supply the Services (at the election of CQ Pump & Irrigation Services); or is otherwise limited to the extent permitted by section 64A of Schedule 2 of the ACL or to similar remedies under any applicable state or territory fair trading legislation.
31. If the ACL does not apply, CQ Pump & Irrigation Services’ liability for any loss or damage, suffered by the Customer in connection with these Terms and Conditions and defect or damage in any Goods and Services is limited to: (a) the value of any express warranty provided to the Customer by CQ Pump & Irrigation Services, at CQ Pump & Irrigation Services’ sole discretion;(b) the extent of the benefit of any warranty to which CQ Pump & Irrigation Services is entitled; or (c) otherwise negated absolutely.
32. Subject to these Terms and Conditions, returns will only be accepted provided that: (a) the Customer has complied with the provisions of clause 27;(b) CQ Pump & Irrigation Services has agreed that the Goods are defective and the Goods are returned to CQ Pump & Irrigation Services within seven days of this agreement; and (c) the Goods are returned at the Customer’s cost in as close a condition to that in which they were Delivered.
33. Despite clauses 27 to 32 but subject to the ACL, CQ Pump & Irrigation Services will not be liable for any defect or damage which may be caused or partly caused by or may arise as a result of: (a) the Customer failing to properly maintain or store any Goods; (b) the Customer using Goods for any purpose other than that for which they were intended; (c) the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a prudent operator or user; (d) any failure by the Customer to follow any Specifications, instructions or guidelines provided by CQ Pump & Irrigation Services Pty Ltd; or (e) fair wear and tear, any accident, or act of God.
34. In the case of second hand Goods, unless the Customer is a consumer under the ACL the Customer acknowledges that: (a) it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults; (b) to the extent permitted by law no warranty is given by CQ Pump & Irrigation Services as to the quality or suitability of the Goods for any purpose and any implied warranty, statutory or otherwise, is expressly excluded; (c) CQ Pump & Irrigation Services has agreed to provide the Customer with the second hand Goods, and has calculated the Price of the second hand Goods, in reliance on this clause 34.
35. CQ Pump & Irrigation Services may in its absolute discretion accept non-defective Goods for return in which case CQ Pump & Irrigation Services may require the Customer to pay handling fees not exceeding twenty-five percent (25%) of the invoiced value of the returned Goods, plus any freight costs and supplier restocking charges.
36. Despite anything contained in these Terms and Conditions, if CQ Pump & Irrigation Services is required by a law to accept a return then CQ Pump & Irrigation Services will only accept a return on, and to the extent only, of the conditions imposed by that law.
37. Except as provided in these Terms and Conditions, the Quote or the manufacturer specifications in relation to the Goods and to the maximum extent permitted by law, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of Goods and Services for any purpose or as to design, application of Goods and Services, materials or workmanship or otherwise are expressly excluded.
38. CQ Pump & Irrigation Services is not liable for any loss or damage, loss of income, loss of profits, loss of markets, loss of reputation, loss of buyers, loss of use, loss of opportunity, loss of business, loss of reputation or goodwill, loss of value or use of Intellectual Property or other proprietary Rights even if CQ Pump & Irrigation Services had knowledge that such loss or damage might arise or for any other indirect, incidental, special or Consequential Loss or damage howsoever arising out of the manufacture, sale or supply of the Goods and Services or in connection with the Agreement including, without limitation, CQ Pump & Irrigation Services’ breach of contract, negligence, wilful act or omission or other default including to the extent that such conduct or default is outside the “four corners” of the Agreement, or deviates from it or defeats its main object.
Rights in relation to Goods
39. While Goods remain the property of CQ Pump & Irrigation Services (or of any other supplier on behalf of whom CQ Pump & Irrigation Services is selling the Goods): (a) the Customer has no Right or claim to any interest in Goods to secure any liquidated or unliquidated debt or Obligation CQ Pump & Irrigation Services owes to the Customer; (b) the Customer cannot claim any charge or lien over any Goods;(c) the Customer will not create any absolute or defeasible interest in Goods in relation to any third party except as may be authorised by CQ Pump & Irrigation Services.
40. Where the Customer is in actual or constructive possession of Goods: (a) the Customer will not deliver the Goods nor any document of title to the Goods to any person except as directed by CQ Pump & Irrigation Services; and (b) it is in possession of the Goods as a bailee of those Goods and owes CQ Pump & Irrigation Services the duties and liabilities of a bailee.
41. CQ Pump & Irrigation Services and the Customer agree that: a) the property in Goods does not pass to the Customer until CQ Pump & Irrigation Services has been paid in full for the Goods; (b) the Customer is a bailee of Goods until such time as property in the Goods passes to the Customer and that this bailment continues in relation to all Goods until the price of those Goods has been paid in full; (c) pending payment in full for any Goods, the Customer: (i) must not supply any Goods to any person outside its ordinary or usual course of business; (ii) must not allow any person to have or acquire any Security Interest in any Goods.
42. Despite clause 41(c), if the Customer supplies any Goods to any person before all moneys payable by the Customer have been paid to CQ Pump & Irrigation Services, the Customer agrees that: (a) it holds the proceeds of re-supply of those Goods on trust for and as agent for CQ Pump & Irrigation Services; (b) it must pay the amount of the proceeds of re-supply to CQ Pump & Irrigation Services immediately when they are received; (c) if the Customer fails to pay for any Goods and Services within the period of Credit (if any), CQ Pump & Irrigation Services may at any time and with reasonable force enter any site owned, possessed, occupied or controlled by the Customer and recover possession of the Goods and the Customer agrees that CQ Pump & Irrigation Services has an irrevocable licence to do so.
43. CQ Pump & Irrigation Services may recover possession of any Goods in transit whether or not Delivery has occurred.
44. CQ Pump & Irrigation Services may commence proceedings to recover the Price of Goods sold notwithstanding that property in those Goods has not passed to the Customer.
45. The Customer acknowledges and agrees that: (a) unless the Customer provides express prior notification to CQ Pump & Irrigation Services to the contrary, all Goods are acquired in the course or furtherance of an enterprise by the Customer, and are commercial property as defined in s.10 of the PPSA; (b) each Agreement constitutes a Security Agreement in writing and a PMSI for the purposes of the PPSA which will subsist in all Goods that have been supplied, and that will be supplied until those Goods have been paid for in full.
46. 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 CQ Pump & Irrigation Services 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 or document referred to in clause 46(a)(i) or 46(a)(ii); (b) indemnify, and upon demand reimburse, CQ Pump & Irrigation Services for all expenses incurred in registering a Financing Statement or Financing Change Statement on the PPSR 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 CQ Pump & Irrigation Services; (d) not grant a Security Interest nor register, nor permit to be registered, a Financing Statement or a Financing Change Statement in relation to any Goods in favour of a third party without the prior written consent of CQ Pump & Irrigation Services; (e) immediately advise CQ Pump & Irrigation Services of any material change in its business practices of on-supply of Goods which would result in a change in the nature of proceeds derived from such supply.
47. CQ Pump & Irrigation Services and the Customer agree that sections 96 and 125 of the PPSA do not apply to the Security Agreement created by an Agreement.
48. The Customer waives its Rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
49. The Customer waives its Rights as a Grantor and/or a debtor under sections 142 and 143 of the PPSA.
50. Unless otherwise agreed in writing by CQ Pump & Irrigation Services, the Customer waives its Right to receive a verification statement or other notice in accordance with section 157 of the PPSA.
51. The Customer must unconditionally ratify any actions taken by CQ Pump & Irrigation Services under clauses 46 to 50.
52. The Customer acknowledges and agrees that if: (a) title to Collateral has not passed to the Customer; and (b) where CQ Pump & Irrigation Services has seized such Collateral as contemplated by Division 2 of Part 4.3 of the PPSA (or has seized such Collateral in another manner); then: (c) to the extent permissible under the PPSA, nothing in s.125 or in s.134(1) or in other sections of the PPSA is to be taken to prevent CQ Pump & Irrigation Services from retaining such Collateral, without any obligation to take any further step in relation to disposal of the Collateral or any obligation to give notice to the Customer in connection with such Collateral.
53. Subject to any express and permitted provisions to the contrary, nothing in these Terms and Conditions is intended to have the effect of contracting out of any other provisions of the PPSA.
Security and Charge
54. In consideration of CQ Pump & Irrigation Services agreeing to supply the Goods and Services, the Customer charges (and grants a Security Interest over) all of its Rights, title and interest (whether joint or several) in any land, realty or other assets owned by the Customer either now or in the future and capable of being charged, to secure the performance by the Customer of its Obligations under an Agreement (including, without limitation, the payment of all moneys owed by the Customer to CQ Pump & Irrigation Services from time to time).
55. CQ Pump & Irrigation Services may cancel an Agreement or any Delivery at any time before Delivery occurs by giving written notice to the Customer. On giving such notice CQ Pump & Irrigation Services will repay to the Customer any money paid by the Customer for Goods and Services not yet Delivered. CQ Pump & Irrigation Services will not be liable for any loss or damage whatsoever arising from such cancellation.
56. Cancellation of Orders will not be accepted once production of those Goods and Services has commenced.
57. Cancellation of Orders will not be accepted once Dispatch has commenced.
58. In the event that the Customer cancels Delivery of any Goods and Services the Customer will be liable for any and all loss or damage incurred (whether direct or indirect) by CQ Pump & Irrigation Services as a direct result of the cancellation (including, without limitation, any loss of profits).
Confidentiality and Intellectual Property
59. The Customer must keep strictly confidential all financial, technological, strategic and other business information of CQ Pump & Irrigation Services which has been divulged to or become known by the Customer in the course of its dealings with CQ Pump & Irrigation Services and which is not generally known outside CQ Pump & Irrigation Services’ and the
Customer’s respective organisations. The Customer must only use such confidential information for the purpose for which it was disclosed, and only disclose the confidential information to those in its organisation who need to know in connection with the purpose for which it was disclosed. No disclosure may be made to anyone else without the written consent of CQ Pump & Irrigation Services (with the exception of disclosure required by law, in which case prior notice of the disclosure must be given to CQ Pump & Irrigation Services).
60. CQ Pump & Irrigation Services retains ownership in all Intellectual Property created by CQ Pump & Irrigation Services in providing the Goods and Services. Provided that the Customer pays all amounts due to CQ Pump & Irrigation Services under the Agreement, CQ Pump & Irrigation Services grants the Customer an irrevocable and royalty-free non-exclusive license to the extent only to use such relevant Intellectual Property for the purpose of obtaining the benefit of the Goods and Services only (but not to further exploit the Intellectual Property).
61. The Customer acknowledges and agrees that where any Goods and Services supplied by CQ Pump & Irrigation Services to the Customer relate to Construction Work, each invoice or other payment claim rendered by CQ Pump & Irrigation Services to the Customer will be a payment claim made under the Building and Construction Industry Payments Act 2004 (Qld).
62. Any formal notice by one party to the other required by these Terms and Conditions or an Agreement must be in writing, and sent to the address for a party with which it normally deals (or to such other address for service of notices that a party has advised to the other). Notices are taken to be received: (a) if hand delivered, at the time of delivery; (b) if posted, on the 3rd day after posting within Australia or the 5th day after posting for international mail; (c) in the case of email or facsimile transmission, at the time of successful transmission.
63. The failure by CQ Pump & Irrigation Services to enforce any provision of these Terms and Conditions will not be treated as a waiver of that provision, nor will it affect CQ Pump & Irrigation Services’ Right to subsequently enforce that provision. If any provision of these Terms and Conditions is invalid, void, illegal or unenforceable the validity, then it be severed from these Terms and Conditions without affecting the validity of other provisions of these Terms and Conditions.
64. These Terms and Conditions and the Agreement will be governed by the laws of the State of Queensland, Australia, and are subject to the exclusive jurisdiction of the courts in that State.
65. 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 CQ Pump & Irrigation Services nor to withhold payment of any invoice because part of that invoice is in dispute.
66. CQ Pump & Irrigation Services may assign, license or sub-contract all or any part of its Rights and Obligations without the Customer’s consent.
67. Neither party will be liable for any default due to any act of God, war, terrorism, strike, lockout, industrial action, fire, flood, storm or other event beyond the reasonable control of that party.
68. The Customer warrants that it has the power to enter into the Agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that the Agreement creates binding and valid legal Obligations on it.
69. Neither these Terms and Conditions nor an Agreement based on them will be interpreted, construed or applied adversely to CQ Pump & Irrigation Services by reason of their having been drafted by or on behalf of CQ Pump & Irrigation Services.