Terms and Conditions
Definitions
In this Agreement –
Agreement means the agreement for supply of Equipment and/or Services between
CAC and the Customer which “Terms and Conditions” form part.
Charges includes all monies payable by the Customer to CAC in relation to the supply
of Equipment or Services.
Confirmation of Order means any written document which sets out a description of
the Equipment, the Services, the Charges and other necessary terms and which may
include details of the Customer’s offer to purchase the Equipment and/or Services.
Customer includes the Customer’s, directors, shareholders and principals.
CAC means Celltec Air Conditioning Pty Ltd, its successors and assigns.
Equipment means the goods agreed to be supplied and includes parts and supplies
which may subsequently be supplied under any warranty given in relation the
Equipment.
Manufacturer means the manufacturer of the Equipment or any parts thereof, its
agents and assigns.
Person{s) includes corporations, partnerships and unincorporated associations.
Proposal means the Proposal for the service and maintenance or supply of
Equipment to which these terms and conditions are attached.
Services means the services agreed to be supplied in the Agreement;
Words importing the singular number shall included the plural and vice versa.
2 Conditions
2.1 These Terms and Conditions apply to all agreements for the supply of Equipment
and/or Services by CAC and are varied or excluded only where such variation or
exclusion is in writing and signed by a director or general manager of CAC.
2.2 Where the Customer has agreed to purchase Equipment and/or Services from CAC
upon the basis of these Terms and Conditions, these Terms and Conditions shall be
incorporated into every subsequent agreement for purchase of Equipment (including
all purchases of consumables by the Customer for use with the Equipment in so far
as applicable) and/or Services by the Customer from CAC unless specifically varied
or excluded in the manner prescribed by Condition 2.1.
3 Quotations I Proposals
3.1 Any representations made by CAC whether in writing or not, shall only constitute an
invitation by CAC to the Customer to do business. Any purchase order placed by the
Customer with CAC constitutes only an offer to purchase Equipment and/or Services.
There shall be no obligation by CAC to accept an offer to purchase Equipment and/or
Services made by a Customer.
3.2 In the event of any inconsistency between the Proposal and these Terms and
Conditions, these Terms and Conditions shall prevail.
3.3 No price, quotation or other invitation to do business published by CAC constitutes a
representation by CAC to the Customer that the Equipment and/or Services detailed
therein shall be available the Customer. Any quotation or other publication may be
altered or withdrawn by CAC at any time.
4 Return of Equipment
4.1 If any Equipment is delivered to the Customer which patently does not comply with
the Customer’s order, it shall be deemed to have been accepted by the Customer
unless notice of non – compliance is received by CAC within 48 hours of delivery.
5 Functionality and Performance – Equipment/ Services
5.1 Equipment
All information, specifications or other data provided by CAC in relation to the
Equipment are approximations only and are not be used for construction purposes.
All drawings and specifications remain the sole property of CAC and must not be
copied or divulged to any third party without CAC”s prior consent. Minor deviations or
variations from such specifications or data which do not substantially affect the
functionality of the Equipment will not entitle the Customer to reject the Equipment or
make any claim in respect thereof.
5.2 Any information provided by CAC in relation to the performance of Equipment is
intended as a guide only to the performance of the Equipment under standard
operating conditions.
5.3 CAC reserves the right to make reasonable modifications of any kind to the
Equipment and to the scope of the Services prior to delivery.
5.4 CAC does not warrant that the Equipment supplied by CAC will, as installed, comply
with the Building Code of Australia or any other similar standard or code. The
Customer is solely responsible for ensuring that the Equipment, as installed, complies
with any relevant code or standard. Unless excluded by law, any fault or defect in the
Equipment is the sole responsibility of the manufacturer and not CAC.
5.5 Provision of Services – applicable where the Agreement is for the provision of
ongoing service and maintenance for a fixed term.
(a) If required under the Agreement, CAC will furnish a report as to the general
condition of the plant and recommendations as to the repair or replacement of
parts or equipment within 21 days of each maintenance service inspection.
(b) Work performed between 8.00am and 4.00pm Monday to Friday shall be
charged at the normal time rate. Work performed on Sundays and Public
Holidays shall be charged at the double time rate and work performed at any
other time shall be charged at the time and a half rate for the first two hours and
then at the double time rate thereafter.
(c) The Customer acknowledges and agrees that the cost of repair works,
repair/replacement parts, refrigerants and oils are not included in the Services
and all such Charges are to be paid in accordance with these Terms and
Condition.
(d) It is an essential term of the Agreement that the Customer must –
(i) permit access to the site and the use of existing building services;
(ii) supply ladders or special scaffolding over two metres in height;
(iii) operate all equipment per CAC and manufacturer’s specifications;
(iv) notify CAC within 24 hours of any unusual operating conditions;
(v) retain all information and records relating to the mechanical services in
the building required by legislation;
{vi) provide a safe work environment to allow CAC to carry out the Services
in a safe and efficient manner. This includes a site specific induction and
the communication of all applicable occupational heath and safety
policies.
6 Charges
6.1 Customers shall pay CAC all Charges within 30 days from date of invoice time being
of the essence, without reduction, counterclaim or setoff.
The Customer acknowledges that the cost of transportation and freight for the
Equipment is not included in the Charges and the Customer shall pay an additional
fee for such costs together with duty and other related expenses.
If the Customer fails to pay any amount when due to CAC, the Customer shall be
liable to pay to CAC without demand interest thereon at the rate of 15% per annum
calculated daily. Interest payable hereunder shall be compounded monthly and
calculated from the due date for payment to the date upon which payment is actually
made.
Despite anything else in the Agreement, all Charges shall immediately become due
if the Customer fails to make any payment when due, becomes subject to the
bankruptcy laws or enters into any composition with its creditors or enters into
liquidation or suffers a receiver or receiver and manager to be appointed to all or part
of its assets.
Where the Customer is a corporation, the Customer understands and accepts that
CAC has agreed to supply Equipment and/or Services to the Customer on the basis
that its directors and principal shareholders have read and understood these Terms
and Conditions and expressly authorised the Customer’s representative to sign
and/or enter into the Agreement with CAC on their behalf. In consideration of CAC
entering into the Agreement with the Customer, the Customer’s directors and principal
shareholders jointly and severally guarantee the performance of the Customer”s
obligations under the Agreement and charge with the payment of all monies due to
CAC all freehold interests in land held by each director and/or principal shareholder.
Property in Equipment Purchased
No legal or equitable title to the Equipment shall pass to the Customer until payment
in full has been received by CAC for all Charges for all Equipment and/or Services
provided hereunder or previously by CAC.
Until legal and equitable title to the Equipment passes to the Customer, the Customer
holds the Equipment as bailee of CAC returnable at will and on demand by CAC.
Upon such demand, the Customer shall immediately deliver up the Equipment to CACI
and hereby authorises CAC to enter upon the premises upon which the Equipment
are stored or located for the purpose of taking possession thereof.
The Customer shall be liable for any damage arising from or in connection with the
recovery of possession of the Equipment by CAC.
Delivery and Risk
The Equipment is sold on an ex works basis. Delivery of the Equipment will occur
when the Equipment is placed at the disposal of the Customer at CAC premises and
risk of loss or damage to the Equipment then passes to the Customer.
Delivery dates are an estimate only and are not binding on CAC. Time is not of the
essence of the Agreement unless expressly stated by CAC.
If CAC determines that it is or may be unable to deliver the Equipment and/or Services
within a reasonable time or at all, CAC may at is sole discretion terminate the
Agreement without penalty.
CAC has the right to deliver the Equipment by instalments and to invoice the
Customer for each instalment of Equipment delivered where, in the opinion of CAC,
it is reasonable to do so.
Failure by the Customer to pay any instalment, or any other amount when due, shall
entitle CAC to withhold or delay delivery of any remaining Equipment.
If CAC is commissioning the Equipment, commissioning will be deemed to be
completed successfully when CAC so certifies to the Customer at which time the
Customer will be deemed to accept the Equipment.
Equipment Warranty and Limitation of Liability
The Customer understands and accepts that –
(a) it is only entitled to the rights that by the Trade Practices Act, 1974 (or other
State or Territory law having a similar purpose) cannot be lawfully excluded
from the Agreement, to the extent those rights cannot be excluded; and
(b) where equipment fails due to a faulty workmanship or materials covered by a
manufacturer’s warranty, the Customer will be responsible for any labour or
service provided by CAC in connection with the removal and reinstallation of
any such equipment.
Subject to clause 9.1, all warranties in connection with the Equipment and Services
are excluded to the fullest extent permitted by law.
Termination
CAC may terminate the Agreement upon 30 days written notice or immediately on the
occurrence of any of the following events –
{a) failure by the Customer to perform any obligation of this Agreement where such
failure is not rectified within seven (7) days of notice from CAC.
{b) A receiver or receiver and manager of the Customer’s assets, income or
business or any part thereof is appointed or a mortgagee goes into possession
thereof.
{c) The Customer fails to pay its debts as they shall fall due or ceases or threatens
to cease to carry on business.
{d) The Customer purports to assign its rights under the Agreement.
{e) Any event occurs outside the reasonable control of CAC which in CAC’s
estimate makes it impracticable or impossible to for CAC to fulfil its obligations
under the Agreement.
Force Majeure
CAC shall not be liable for any default due to any act of God, terrorism, war,
strike, lock out, industrial action, fire, flood, drought, storm or other event
beyond its control.
Miscellaneous
Any indulgence, latitude or extension of time which CAC may show towards the
Customer in relation to any of the provisions of the Agreement or any matter or
thing relating thereto or arising therefrom shall not in any way prejudice or
interfere with CAC’s rights under the Agreement and shall not be claimed to
constitute a waiver thereof.
No oral terms or representations form part of the Agreement unless they have
been reduced to writing prior in the Agreement.
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.
This agreement is subject to the laws of New South Wales.
CAC reserves the right to review these terms and conditions at any time and
from time to time. If, following any such review, there is to be any change in
such terms and conditions, that change will take effect from the date on which
CAC notifies the Customer of such change.
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