Terms and Conditions
The following terms and conditions shall apply to each agreement for the sale of Goods and/or the supply of Services
Interpretations
- “Seller” shall mean Climat identity identified on the contract.
- “Buyer” shall mean the Buyer named on any quotation, invoice, purchase order, or any other documentation produced in relation to an agreement for the supply of Goods and/or Services, or any person acting on behalf of and with the authority of the Buyer.
- “Price” shall mean the cost of the Goods/Services as agreed between the Seller and the Buyer subject to clause 4 herein.
- “Goods” shall mean all Goods supplied by the Seller to the Buyer as described on any accepted quotation or ordered by the Buyer but not yet supplied by the Seller.
- “Services” shall mean all Services supplied by the Seller to the Buyer as described on any accepted quotation, including any recommendations and advice.
Jurisdiction
- Unless otherwise agreed between the Buyer and the Seller, all transactions shall be governed by and construed in accordance with the laws of South Australia and Victoria.
Offer and Acceptance
- Any request from the Buyer to the Seller for the supply of Goods/Services however made shall constitute acceptance of the terms and conditions contained herein.
- Where two or more entities constitute the buyer, all such entities shall be jointly and severally liable for all payments of the price.
- These terms become binding upon acceptance, and may thereafter only be altered or revoked with the written consent of the Seller.
- Any changes to the Buyerʼs details, including name, address, telephone, email, or any changes in ownership structure of the Buyer requires written notice from the Buyer within (10) days of any such changes taking place.
Price
- The Buyer agrees to pay the Seller the price of the Goods/Services as specified by the Seller.
- The Price will be determined by the Sellerʼs quotation, or indicated on invoices, order forms, or any other documentation provided by the Seller to the Buyer.
- The Sellerʼs contracted price shall be binding upon the Seller for a maximum period of six (6) months after the date of acceptance of the quotation, or while stocks remain available if less than 6 months.
- Unless otherwise specified in writing all quotations are supplied on the basis that:
- Existing electricity, gas, and water supplies are adequate to service the equipment supplied.
- Quotes for new or upgraded services are based on the service running in the most direct route.
- Characteristics of the building and or site, including but not limited to, clearance, access, load bearing walls and trusses, insulation and window treatments are suitable for the equipment supplied.
- Costs associated with modification of structure, earthworks, drainage, disposal of waste products, penetration or removal or disposal of hazardous materials are explicitly not addressed or included.
- In the event that unforeseen costs are necessarily incurred, or unquoted additional work is required, to complete installation, including but not limited to work associated with the discovery of hazardous or potentially hazardous materials or situations, any additional costs shall be the responsibility of the Buyer.
Payment Terms
- The Buyer agrees to pay all amounts in full at the time of installation, as defined in clause 11 (e) herein.
- Progress payments will be required if installation is carried out over a period of three (3) days or more and all progress payment claims must be paid in full prior to any further work commencing.
- In the event that the seller will not be suppling installation services, payment will be required for all goods upon acceptance of the quotation.
- A non-refundable deposit will be required before the supply of any Goods or Services.
Delivery
- The Buyer shall be responsible for making any necessary arrangements to take delivery of the Goods, including preparation, security, and access to the site.
- The provisions of Clause 16 herein apply irrespective of whether goods are delivered to a site which is, or is not, attended.
- The Buyer shall ensure that the site remains accessible to the Seller for the purpose of carrying out any further work deemed necessary by the Seller.
- Delivery of the Goods to any third party nominated by the Buyer (including carriers) is deemed to be delivery to the Buyer.
- Should the Seller need to reschedule the delivery of any Goods/Services, the Seller shall not be liable for any loss or damage incurred by the Buyer, or any of the Buyers’ agents, customers, related companies, or contractors.
Notification of Defects
- The Buyer shall inspect the Goods and/or services upon delivery and notify the Seller immediately of any alleged defects, or failure to fulfil the quotation. The Seller will be given access to any Goods within a reasonable time after delivery in order to inspect any alleged defects in the Goods.
- The Buyer shall notify the Seller within seven (7) days of operating the system of any defects in performance, or failure to comply with the quotation.
- Should the Buyer fail to give such notification, the Goods/Services will be deemed to be in compliance with those ordered, and free from any defects whatsoever.
Warranties
- Goods not manufactured by the Seller are supplied to the Buyer on an “as is” basis without warranty of any kind. The Seller shall assign the Buyer, in so far as it is able to do so, the benefit of any condition, warranty or guarantee, express or implied, in the Seller’s contract with its own supplier.
- The Seller hereby warrants that subject to the conditions of warranty as specified in clause 9 herein, all installations are covered by a one hundred and twenty (120) month warranty against defects arising from workmanship.
- All Goods are supplied with warranty cards and instructions which outline the conditions of warranty. It is the responsibility of the Buyer to notify the Seller if upon installation any such documentation is missing.
- The Buyer shall be responsible for completing and returning all warranty documentation to the manufacturer and failure to do so may result in the warranty being void.
- Where the Seller has agreed that the Buyer is entitled to claim under warranty, the Sellerʼs liability is limited to (at the Sellerʼs discretion), replacing or repairing the Goods or arranging for a third party to replace or repair the Goods.
- The Seller accepts no liability whatsoever for the performance or reliability of any system where existing and/or second hand components have been utilised. The Buyer accepts full responsibility for any remedial work required (not limited to balancing, adjustment and repairs or replacement) to ensure correct operation.
Conditions of Warranty
- Any warranty shall become void in a situation where:
- The Goods have not been properly maintained.
- The Buyer has any outstanding invoices for monies payable to the Seller.
- Installation of the Goods has not been carried out by persons recognised by the Seller as being trained and accredited to install the Goods.
- The Goods continue to be used after any fault or defect would reasonably have become known to the Buyer.
- The defect or fault occurred from reasonable wear and tear.
- The defect or fault occurred as a result of circumstances beyond the control of either the Buyer or the Seller.
- Maintenance or alteration is made to the Goods without the Sellerʼs knowledge and written consent.
- To qualify for the 10 year installation warranty the buyer must have the Goods serviced by a qualified technician a minimum of every two (2) years.
- The Seller accepts no responsibility for loss or damage to the Buyer, financial or otherwise, arising from a delay in the time taken for the Seller to replace or repair any Goods covered by the warranty.
Buyerʼs Disclaimer
- The Buyer disclaims any right to cancel the contract, or to seek compensation for loss or damages arising from any innocent misrepresentation made to the Buyer by the Seller, or any related corporations of the Seller, and their respective officers, employees, agents and contractors.
- The buyer acknowledges discussing with the seller all things which will possibly affect or possibly be affected by the installation or operation of the air conditioning equipment stipulated in this contract. These include but are not limited to possible defects and deficiencies in relation to existing water, electricity and gas supplies or connections or fixtures or other associated elements of these things, insulations, window treatments, service access, ventilation, space and support adequate for equipment, aesthetic impact, drainage, compliance with government requirements (including but not limited to noise & heritage compliances), and the performance of existing components.
(Buyerʼs Disclaimer ) continued
- In any event, at all times the Buyer agrees to be responsible for all costs not specifically included in writing in this contract associated with but not limited to, modifications, relocations, replacements, upgrades and repairs of any kind, to or of, anything referred to in 10b or in fact the equipment stipulated in this contract and always without any recourse against the Seller whatsoever.
Installation
- The Buyer shall be responsible for making all necessary arrangements to ensure installation may be carried out on the specified date.
- Should the Buyer fail to comply with clause 11(a) herein, any additional costs associated with the installation shall be the responsibility of the Buyer.
- Whilst all due care will be taken, the Seller accepts no responsibility for damages to any of the Buyerʼs property or impeded performance of any audio, visual, or data equipment as a result of delivery and/or installation, other than the statutory obligations imposed upon it as outlined in clause 22 herein.
- Unless specified otherwise in writing or at the Sellerʼs absolute discretion, the Buyer shall be responsible for the disposal of all unwanted surplus equipment, materials and rubbish.
- Installation shall be deemed to be complete when all components are fitted.
Registered Security
- All of the Buyerʼs estate and interest in any land and in any other assets, whether tangible or intangible, in which the Buyer at any time has a legal or beneficial interest shall be charged with payment of all monies owed by the Buyer to the Seller and the Seller shall be entitled to lodge a caveat or caveats which note its interest in any such property.
Default
- If the Buyer should:-
- As an individual, commit an act of bankruptcy; or
- As a company, pass a resolution for winding up or have a summons to wind up issued against it; or
- Become subject to any form of external administration; or
- Enter into an arrangement regarding outstanding payment with any of its creditors; or
- Allow any invoice to remain in arrears for a period of over thirty (30) days; all monies currently owed to the Seller shall become due and payable immediately, and the Seller shall have the right to terminate the supply of any further Goods and or Services to the Buyer.
- Should the Buyer fail to pay any invoice when due, the Buyer will be responsible for any additional costs associated with recovery of all outstanding amounts, including but not limited to the costs of a solicitor, and any cost incurred by the Seller to its nominated collection agency.
- Interest on overdue accounts may be charged at a rate of 2% per month, or at a rate not exceeding the prevailing bank overdraft rate, whichever is the higher, and continue to accrue on a monthly basis until the Buyer has paid all monies owed to the Seller, and the Buyer shall be liable to pay all such interest d The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its rights under this clause.
Retention of Title
- Ownership, Property, and Title in all Goods shall remain vested in the Seller until the Buyer has paid all monies owing to the Seller for all Goods and/or Services provided
- The Goods shall be kept separate and clearly identifiable as property of the Seller until property in the Goods has passed to the Buyer.
- Until such time as property in the Goods passes to the Buyer, the Buyer shall hold the Goods as Bailee for the Seller, and hereby assigns all legal and equitable right and title to the proceeds of sale of the Goods to the Seller. d The Seller may request in writing that the Buyer return the Goods or any part of them at any time until property in the Goods has passed to the Buyer.
- Should the Buyer fail to return the Goods to the Seller upon such notice the Seller, without prejudice to any of its other rights and remedies under this agreement, reserves the right of entry to the Buyerʼs premises or any other premises where the Goods may be stored, by its servants or agents for the purpose of recovering or re selling the Goods, and any cost incurred as a result of such action will be the responsibility of the Buyer.
Unpaid Sellersʼ Rights
- If payment has not been received by the Seller when due, and the Seller has made a verbal or written demand for payment, and the Goods are in possession or control of the Seller, the Seller reserves the right to dispose of the Goods, and claim from the Buyer any loss arising as a result of such disposal.
Risk
- Notwithstanding retention of title as specified in clause 15 hereof, all risk passes to the Buyer upon delivery.
- If any of the Goods are stolen, damaged or otherwise rendered less valuable than when they were supplied prior to title in them passing to the Buyer, the Seller is entitled without prejudice to any of its other rights and remedies under any agreement, to any/all possible or actual insurance proceeds payable for the Goods.
Cancellation
- The Seller may cancel further delivery of any Goods/Services by giving notice to the Buyer, and the Buyer shall be responsible for any costs incurred by the Seller up to the time of cancellation.
- The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
- At the Sellerʼs sole discretion, the Buyer may cancel delivery of Goods/Services.
- In the event that the Buyer cancels delivery of Goods or Services, the Buyer shall be liable for any costs incurred by the Seller up to the time of cancellation, including but not limited to any re stocking fees incurred by the Seller.
Limitation of Liability.
- The liability of the Seller to the Buyer for any reason related to the performance of the Goods/Services under this agreement shall be limited to the amount paid or payable by the Buyer to the Seller for such Goods/Services.
- The Seller accepts no liability for Goods supplied based on measurements and specifications supplied by the Buyer or any other third party, and the Buyer shall be responsible for any additional costs associated with subsequent alteration of the Goods or installation.
Privacy Act 1988
- The Seller shall be entitled to obtain a personal credit report to collect overdue payment on commercial or consumer credit (Section 18K (1) (h) Privacy Act 1988).
- The Buyer agrees that Individual Data provided may be used and retained by the Seller for the following purposes and for other purposes as agreed to between the Buyer and Seller or required by law from time to time:
- Provision of Goods/Services
- Providing instruction to subcontractors.
- Marketing of Goods/Services by the Seller, its agents, distributors, or contractors.
- Assessing the credit worthiness of the buyer in relation to extending credit.
- Exchanging of information with a credit reporting agency or trade reference named by the Buyer.
- Processing of any payment instructions, direct debit facilities and/or credit facilities requested by buyer.
- Collection of amounts outstanding in the Buyerʼs account by the Sellerʼs nominated Collection agent or solicitor.
Government Approvals
- The Buyer is responsible, at the Buyerʼs own cost, for arranging all licences, permits, government and or landlords consents, and approvals which may be required for the performance of any works under any agreement.
The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
- The warranties, conditions, rights and remedies of the Buyer as outlined in the Commonwealth Trade Practices Act
- 1974 and the relevant Fair Trading Act of South Australia are not intended to be compromised as a result of anything contained in these terms and conditions, except to the degree permitted by those Acts.
General
- The Seller assumes no responsibility for changes in the laws of South Australia, or the Commonwealth of Australia which may affect the supply of Goods/Services.
- The Seller may sub-contract part or all of its obligations under this agreement without the Buyerʼs consent.
- The Seller reserves the right to review these terms and conditions at any time, and if any changes are deemed necessary, the Buyer will be advised of such changes upon them being made and they shall thereupon immediately become binding upon the Buyer.
- Neither the Seller nor the Buyer shall be liable for any breach of any provisions of any contract arising from an act of God, natural disaster, terrorism, war, or any other occurrence beyond the control of either party.
- If any Terms or Conditions contained in this document are found to be not legal or unenforceable for reasons of invalidity or any other reason, the remaining provisions shall stand and not be affected in any way whatsoever.
- It is essential that the ceiling be insulated with at least “R2” insulation.
- For design basis refer to manufacturer specifications in accordance with AS/NZS3823.1.2.
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