must notify any other alleged defect in the Materials/Works as soon as reasonably possible after any such defect becomes evident. Upon such notification, the Customer must allow the Contractor to inspect the Materials or to review the Works provided.
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 (NonExcluded Guarantees).
16.3 The Contractor 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, the Contractor makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. The Contractor’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, the Contractor’s liability is limited to the extent permitted by section 64A of Schedule 2.
16.6 If the Contractor is required to replace any Materials under this clause or the CCA, but is unable to do so, the Contractor may refund any money the Customer has paid for the Materials.
16.7 If the Contractor is required to rectify, re-supply, or pay the cost of re-supplying the Works under this clause or the CCA, but is unable to do so, then the Contractor may refund any money the Customer has paid for the Works but only to the extent that such refund shall take into account the value of Works and Materials which have been provided to the Customer which were not defective.
16.8 If the Customer is not a consumer within the meaning of the CCA, the Contractor’s liability for any defect or damage in the Materials is:
(a) limited to the value of any express warranty or warranty card provided to the Customer by the Contractor at the Contractor’s sole discretion;
(b) limited to any warranty to which the Contractor is entitled, if the Contractor did not manufacture the Materials;
(c) otherwise negated absolutely.
16.9 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) the Contractor has agreed that the Materials are defective; and
(c) the Materials are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d) the Materials are returned in as close a condition to that in which they were delivered as is possible.
16.10 Notwithstanding clauses 16.1 to 16.9 but subject to the CCA, the Contractor 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 Materials;
(b) the Customer using the Materials for any purpose other than that for which they were designed;
(c) where running time of the Materials is greater than nine (9) hours of daily running unless the recommended maximum running time is stated otherwise;
(d) the Customer continuing to use any Materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(e) interference with the Works by the Customer or any third party without the Contractor’s prior approval;
(f) the Customer failing to follow any instructions or guidelines provided by the Contractor;
(g) fair wear and tear, any accident, or act of God.
16.11 The Contractor may in its absolute discretion accept non-defective Materials for return in which case the Contractor may require the Customer to pay handling fees of up to twenty percent (20%) of the value of the returned Materials plus any freight costs.
16.12 Notwithstanding anything contained in this clause if the Contractor is required by a law to accept a return then the Contractor will only accept a return on the conditions imposed by that law.
17. Intellectual Property
17.1 Where the Contractor has designed, drawn, written plans or a schedule of Works, or created any products for the Customer, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in the Contractor, and shall only be used by the Customer at the Contractor’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Contractor.
17.2 The Customer warrants that all designs, specifications or instructions given to the Contractor will not cause the Contractor to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Contractor against any action taken by a third party against the Contractor in respect of any such infringement.
17.3 The Customer agrees that the Contractor may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which the Contractor has created for the Customer.
18. Default and Consequences of Default
18.1 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 the Contractor’s sole discretion such interest shall compound monthly at such a rate) after as
well as before any judgment.
18.2 If the Customer owes the Contractor any money the Customer shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Contractor’s contract default fee, and bank dishonour fees).
18.3 Further to any other rights or remedies the Contractor may have under this contract, if a Customer has made payment to the Contractor, 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 the Contractor under this clause 18 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.
18.4 Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable if: