| 11.3.2 indemnify, and upon demand reimburse, CW Mechanical for all expenses incurred in registering a financing statement or financing change statement on the PPSR established by the PPSA or releasing any Goods charged thereby; 11.3.3 not register a financing change statement in respect of a security interest without the prior written consent of CW Mechanical; 11.3.4 not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of CW Mechanical; and 11.3.5 immediately advise CW Mechanical of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales. 11.4 CW Mechanical and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these Terms & Conditions. 11.5 The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d), 132(4) and 135of the PPSA. 11.6 The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA. 11.7 Unless otherwise agreed to in writing by CW Mechanical, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA. 11.8 The Customer will unconditionally ratify any actions taken by CW Mechanical under clauses 11.3, 11.4 and 11.5. Warranties To the extent permitted by law, CW Mechanical does not warrant the following: any of the Goods that are not manufactured or produced by CW Mechanical; or defects or deterioration in or of the Goods which, in the opinion of CW Mechanical, have been caused by careless or improper handling, negligence, misuse, non-adherence to care, operating, cleaning or maintenance instructions, alterations or repairs carried out by anyone other than CW Mechanical’s authorised representatives, or by fair wear and tear; or that the Goods are fit for use. The Customer acknowledges and agrees that they have had the opportunity to review the variety of Goods offered by CW Mechanical together with their specifications and quality. CW Mechanical will not be liable to the Customer in any way for any costs or Loss of any kind whatsoever (including, without limitation, liability for Consequential Loss) incurred or sustained by the Customer or any third party arising from or in connection with the Goods and any damage caused. The Customer must take reasonable steps to mitigate any Loss it suffers or incurs. Where a Good or any part of a Good is not manufactured or produced by CW Mechanical, CW Mechanical will use reasonable endeavours to assign to the Customer the benefit of any warranty in respect of that part of the Good. Any warranty of CW Mechanical cannot be assigned or transferred to any third party. Returns Where the Goods delivered are short or there is other loss and damage that the Customer believes CW Mechanical is responsible for, the Customer may, at its cost, make a claim in writing to CW Mechanical. Any such claim must be received by CW Mechanical within 14 days of delvery of the Goods. For the purpose of making any claim under this clause 13, the Customer must: immediately upon becoming aware of circumstances giving rise to a claim, notify CW Mechanical in writing setting out full details of the claim and providing the Customer’s contact details and not later than forty-eight (48) hours after delivery of the Goods; provide CW Mechanical with a descriptopm of the defect and proof of purchase of the Goods in relation to which the claim is made; allow CW Mechanical, its employees and/or agents full and free access to the Goods in relation to which the claim is made and to the place where the Goods are located for the purpose of conducting any inspection and tests that CW Mechanical may in its absolute discretion consider necessary to determine whether to admit the claim. Any return of Goods by the Customer will only be accepted by CW Mechanical provided that: CW Mechanical has agreed in writing to accept a return of the Goods (which is may or may not do in its sole discretion and on terms and conditions specified by CW Mechanical); the Goods are returned to CW Mechanical by the Customer within seven (7) days of receipt of the Goods by the Customer; the Goods together with all packaging material, brochures and instruction materials are returned in the condition in which they were delivered; any freight charges that are incurred in the return of the Goods are paid by the Customer. If CW Mechanical accepts a return of the Goods, CW Mechanical may elect to repair or replace the Goods or grant a credit to the Customer in its absolute discretion. CW Mechanical will not be liable for Goods which have not been stored, used, handled or cared for in a proper manner. Default Interest on any monies owed by the Customer to CW Mechanical will accrue daily from the date when payment becomes due, until the date payment is made, at a rate of 1.5% per month (and at CW Mechanical’s sole discretion such interest will compound daily at such a rate). In the event that the Customer’s payment is dishonoured for any reason the Customer will be liable for any dishonour fees incurred by CW Mechanical. If the Customer defaults in payment of any monies due and payable to CW Mechanical by the Customer, the Customer indemnifies CW Mechanical from and against all costs and disbursements incurred by CW Mechanical in pursuing the debt, including: CW Mechanical’s collection agency costs actually incurred; and CW Mechanical’s Solicitor and Client Legal Costs, which the parties agree are to be recoverable on an indemnity basis. A statement in writing signed by an authorised officer of CW Mechanical setting out the moneys due or owing to CW Mechanical at the date of the statement shall be sufficient evidence of the amount so due or owing. Without prejudice to any other rights or remedies CW Mechanical may have against the Customer, if at any time the Customer is in breach of any obligation (including those relating to payment) CW Mechanical may suspend or terminate the supply of Goods to the Customer and any of its other obligations under these Terms & Conditions. CW Mechanical will not be liable to the Customer for any Loss the Customer suffers because CW Mechanical has exercised its rights under this clause. In the event monies are outstanding at any time, CW Mechancial may appropriate any payment made by the Customer to such of the Goods supplied under any agreement with the Customer as CW Mecahncial in its sole discretion thinks fit Without prejudice to CW Mechanical’s other remedies at law CW Mechanical will be entitled to suspend or cancel all or any part of any Order of the Customer that has not been delivered and all monies owing to CW Mechanical will, whether or not due for payment, become immediately payable in the event that: any money payable to CW Mechanical becomes overdue, or in CW Mechanical’s opinion the Customer will be unable to meet its payments as they fall due; or 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 a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer; or |
