1.1 “Supplier” means ABC Air Lic # L138061 its successors and assigns or any person acting on behalf of and with the authority of the Supplier.
1.2 “Customer” means the person/s or any person acting on behalf of and with the authority of the Customer requesting the Supplier to provide the Goods and/or Services as specified in any proposal, quotation, order, invoice or other documentation attached to these Terms, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally;
(b) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
(c) includes the Customer’s executors, administrators, successors and permitted assigns.
1.3 “Goods” means the goods supplied by the Supplier to the Customer at the Customer’s request, from time to time, as set out in any relevant proposal, quotation, order, invoice or other documentation attached to these Terms.
1.4 “GST” means Goods and Services Tax (GST) as defined within the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
1.5 “Latent Conditions” means any condition, event, circumstance, matter or thing in, on or around the Site or otherwise that could not have been reasonably been foreseen or anticipated at the date of the Supplier’s quote, and that would or would likely result in the Supplier, the Contractor or any third party suffering or incurring additional cost or delay, or would require a change to the quote, Goods, Services, Price and/or these Terms.
1.6 “Price” means the Price payable (plus any GST where applicable) for the Goods and/or Services as agreed between the Supplier and the Customer in accordance with any proposal, quotation, order, invoice or other documentation attached to these Terms.
1.7 “Services” means all the services to be supplied by the Supplier to the Customer at the Customer’s request, from time to time, as set out in any relevant proposal, quotation, order, invoice or other documentation attached to these Terms.
1.8 “Site” means the site or property as particularised in any proposal, quote, order, invoice or other documentation attached to these Terms.
2. WARNING: The Price, as particularised on the proposal, quote, order, invoice or other documentation attached to these Terms, may vary under these Terms. The reasons the Price may vary include:
(a) clause 3(a) – substitution of the Goods with comparable Goods;
(b) clause 2 – adjustment of price for additional goods and/or services as listed in clause 6.2;
(c) clause 3 – additional fees and charges for Delays caused or contributed to by the Customer or for After Hours Work;
(d) clause 4 – latent conditions;
(e) clause 2 – changes in the price of the Contract Plans based on CPI or industry price rises (to the maximum of 5%);
(f) clause 2 – variations to the Goods and Services;
(g) clause 8 – late payment administration fee;
(h) clause 3 – price of the delivery and amount of reasonable storage and/or redelivery fee; and
(i) clause 4 – additional charges for air balancing.
3. WARNING: To the extent that these Terms constitute an unsolicited consumer agreement under section 69 of the Australian Consumer Law, the Customer is entitled to and may, by notice in writing to the Supplier, terminate these Terms within the relevant period under section 82, being at least 10 days.
4.1The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by the terms and conditions contained within this document (including any documents referred to, or attached to, this document) (Terms) if the Customer places an order for, makes payment of any part of, or accepts delivery of the Goods or provision of the Services.
4.2 The Customer agrees that these Terms and any proposal, quotation, order, invoice or other documentation attached to these Terms form the entire agreement under which the Supplier will provide Goods and Services to the Customer. Please read these Terms carefully and contact the Supplier if there are any questions. Purchasing Goods and/or Services from the Supplier indicates
4.3 The Customer acknowledges and accepts that:
(a) the Supplier may provide the Goods and Services to the Customer using its employees, contractors and third party providers, and they are included in these Terms;
(b) where the Supplier is engaged only to supply the Goods, subject to clause 8, payment shall be due prior to the Goods leaving the Supplier’s premises and any costs associated with installation will be the responsibility of the Customer. Where the Supplier is only engaged to supply Goods, all quotations for services in respect of installation will be strictly between the Customer and the Customer’s third party tradesman and does not form part of these Terms, and the Supplier will have no liability;
(c) if the Supplier has been requested by the Customer to diagnose a fault that requires investigation, disassembly and/or testing, all costs involved will be charged to the Customer irrespective of whether or not the repair goes ahead; and
(d) once ductwork or other equipment is hung, it is reasonable for the Supplier to assume that it is approved by the builder and owner, however, capping will be required to travel into the roof for pipe work and exposed conduit drains, where work cannot be completed via the roof cavity.
4.4 These Terms may be meant to be read in conjunction with the Supplier’s care protection plans (as described in clause 7) and/or hire forms (Contract Plans) and if there are any inconsistencies between the two documents then these Terms shall prevail.
4.5 These Terms may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency, ambiguity or discrepancy in or between these Terms or any other document or Contract Plan between the Customer and the Supplier.
4.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
5. Errors and Omissions
5.1 Despite anything to the contrary, to the maximum extent permitted by law, the Customer acknowledges and accepts that the Supplier shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by the Supplier in the formation and/or administration of these Terms; and/or
(b) contained in or omitted from any literature (hard copy and/or electronic) supplied by the Supplier in respect of the Goods or Services.
5.2 Despite anything to the contrary, to the maximum extent permitted by law, in the event such an error and/or omission occurs in accordance with clause 5.1, and it is not attributable to the negligence and/or wilful misconduct of the Supplier, the Customer shall not be entitled to treat these Terms as repudiated nor render it invalid.
6.1 The Supplier agrees to provide the Customer the Goods and Services in accordance with:
(a) these Terms;
(b) the Building Code of Australia (to the extent required under the Environmental Planning and Assessment Act 1979 (NSW), including any regulation or other instrument made under that Act);
(c) all other relevant codes, standards and specifications that the Goods and Services are required to comply with under any law; and
(d) the conditions of any relevant development consent or comply development certificate.
6.2 Unless expressly stated by the Supplier, the Goods and/or Services shall not include (and the Price does not include):
(a) all gas points for ducted heaters (including gas cocks) being provided and installed prior to fit off;
(b) roof access lights and power points for both heaters and evaporative coolers being provided and installed prior to fit off;
(c) appropriately sized electrical supply isolator being provided at an outdoor location, (and indoor on 3 phase units). It is the Customer’s responsibility to contact the manufacturer for appropriate amperage ratings;
(d) installation of gas and water isolator cocks prior to requested fit off for gas ducted heaters and evaporative coolers;
(e) all required upgrades to the property’s electrical mains and switchboards;
(f) safe access being provided at the premises;
(g) where the Services are to be performed by a third party (which must be done to the Supplier’s satisfaction) including, but not limited to, fall protection, scaffolding and safety guard rails on all double story and roof top installations;
(h) installation of appropriate concrete support base or roof platforms for all outdoor units (condensers);
(i) making sure condensation is emitted from internal head units and external units (the Supplier will only drain to drainage points provided by others, i.e. tun dishes);
(j) boxing and framing of all duct work where required, bulk heads return and supply, air grills etc.;
(k) all penetration and coring for ducting and refrigeration piping, structural changes, and all builders work including control wiring and interfacing;
(l) installation and supply of access panels for unit, filter and branch box serving. If access cannot be provided in appropriate locations for servicing, plaster may need to be cut and replaced at the Customer’s expense. Furthermore, the manufacturer may refuse a warranty claim under its access terms and conditions of warranty (which are provided at the time of installation). In such an event the Supplier will liaise with the manufacturer to effect a favourable solution for the Customer;
(m) modification of any structural beams, roof trusses, stud etc., to allow structural support and access to the quoted equipment; and
(n) the use of cranes if required.
6.3 The Customer acknowledges and accepts that in the event that the provision of the Services runs behind any schedule timeframe described in the Services (Delay) and that Delay was caused or contributed to by the Customer, or in the event that any after-hour work is required as described in the Services (After Hour Work), the Customer agrees to pay for any additional costs arising from the Delay (including any penalty rates that will apply) and After Hour Work.
6.4 If the Supplier encounters any Latent Conditions during the performance of the Goods and Services, the Supplier will notify the Customer as soon as reasonably practicable. Any additional work, Goods, Services, materials, costs or delays that the Supplier may suffer or incur as a result of a Latent Condition will constitute a deemed variation. The Supplier will notify the Customer of all Latent Conditions as soon as reasonably practicable and any required changes to the Goods, Services, Price and/or these Terms to account for the Latent Condition. The Supplier will not be required to proceed with provision of the relevant Goods and Services until such time as the parties have reached agreement on the deemed variation, including changes to the Goods, Services, Price and/or these Terms.
7. Fixed Term Serviced Maintenance Membership Plans
7.1 The commencement date for any relevant Contract Plan shall be the date of the first delivery of the Services, or three (3) months from the date of signing the Contract Plan, whichever, is the earlier. The Contract Plan shall be for the period (Initial Term) as agreed between both parties in the relevant Contract Plan and shall continue automatically, thereafter, on a month to month basis or unless agreed otherwise, until terminated by either party by giving the required thirty (30) days’ written notice to the other party (as defined in the Contract Plan) prior to the expiration date of the Initial Term or any additional term.
7.2 The Customer acknowledges and accepts that the price stated within any Contract Plan will remain fixed for an initial period of twelve (12) months from the date of these Terms and will then be subject to revision on the basis of the movement in the Consumer Price Index (CPI) and industry price rises and standards (to the maximum amount of 5% per annum).
7.3 The Customer acknowledges and accepts that regular service checks are recommended to reduce premature breakdowns by identifying deficiencies early that may cause any impending issues with the installed Goods, which then requires an emergency service.
7.4 Despite anything to the contrary, to the maximum extent permitted by law, the Customer acknowledges and accepts that the services set out in the Contract Plan do not carry any guarantees, as the Supplier cannot guarantee that problems will not arise after the services set out in the Contract Plan has been completed. The Customer acknowledges and accepts that the environment the Goods (including air conditioning systems) are located in are beyond the Supplier’s reasonable control. The Customer acknowledges and accepts that the Goods (including air conditioning systems) are machines that have many moving parts and, despite anything to the contrary, and to the maximum extent permitted by law, it is out of the Supplier’s reasonable control when parts break down.
8. Price and Payment
8.1 At the Supplier’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by the Supplier to the Customer; or
(b)the Supplier’s quoted price (subject to clause 8.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
8.2 The Supplier reserves the right to change the Price if a variation to the Supplier’s quotation or these Terms is requested. Any variation from the plan of scheduled Goods or Services or specifications (including, but not limited to, any variation as a result of additional works required due to unforeseen circumstances such as limitation to Site accessibility or as a result of any increase to the Supplier in the cost of materials and labour) will be charged for on the basis of the Supplier’s quotation (or as reasonably determined by the Supplier) and will be shown as variations on the invoice. The Customer shall be required to respond to any variation submitted by the Supplier within ten (10) working days. The Supplier will not be required to proceed with provision of the relevant Goods and Services until such time as the parties have reached agreement on a variation. Payment for all variations must be made in full at the time of their completion or as otherwise required by the Supplier.
8.3 Subject to the remainder of these Terms, at the Supplier’s sole discretion, a non-refundable deposit may be required for the Goods and/or Services, including any variations described in clause 8.2.
8.4 Time for payment of the Goods and/or Services is an essential term of these Terms, subject to any provision of these Terms to the contrary, the Price will be payable by the Customer on the date/s determined by the Supplier, which may be:
(a) on delivery of the Goods;
(b) on completion of the Services;
(c) by way of installments/progress payments in accordance with the Supplier’s payment schedule, as being;
(i) 10% deposit due upon acceptance of the quotation. The Services will not commence until the Supplier is in receipt of this payment;
(ii) 40% shall be due three (3) days following order of, or upon booking confirmation for, the Goods by the Supplier (whichever occurs first); and
(ii) 40% shall be due three (3) days prior to installation of the Goods by the Supplier; and
(iv)10% shall be due upon installation of the Goods.
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Supplier.
8.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and the Supplier.
8.6 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 the Supplier nor to withhold payment of any invoice, except any invoice (or part of an invoice) that is in dispute.
8.7 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to the Supplier an amount equal to any GST the Supplier must pay for any supply by the Supplier under this or any other Contract for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, 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.
8.8 The Customer agrees to pay a late payment administration fee, as particularised in the Supplier’s quotation or otherwise notified by the Supplier to the Customer, if payment is not received by the relevant due date and agrees to reimburse the Supplier for all dishonoured cheques to the value of an administration fee plus any charges from the bank.
8.9 If payment of any amounts due to the Supplier are not paid by the relevant due date, the Supplier may engage debt collection services and/or commence legal proceedings in relation to any such amounts and the Customer shall be liable for all associated collection fees including court and reasonable solicitor’s fees.
8.10 In the occurrence where Supplier approves a payment structure different to that in clause 4(c) and there is a manufacturer’s fault with the Goods on completion of the Services (including installation), the Customer is required to pay any outstanding balance but the Supplier may, in its absolute discretion, allow the Customer to withhold up to 10% of the outstanding balance until the issue is rectified by the manufacturer.
8.11 Unless otherwise agreed between the Parties, a minimum of 10% deposit is required for the Supplier to process sales contract sheet, order equipment and book the Customer’s installation. Subject to any provision to the contrary and to the maximum extent permitted by law, the deposit is strictly non-refundable after the cooling off period (if applicable) unless cancellation of these Terms is due to the non-availability of the Goods or the Goods physically cannot be installed. Deposit monies can be credited against the Customer’s account for future purchases with the Supplier. This does not affect the Customer’s statutory rights. If a cooling off period applies, to the maximum extent permitted by law, the Supplier reserves the right to charge the Customer for any reasonable costs incurred by the Supplier under this Agreement up to the time of exercise of the cooling-off right by the Customer.
8.12 Unless otherwise agreed between the Parties, the Customer must upon demand by the Supplier, pay 95% (including prior amounts already paid) of the Price of the Goods and Services before final completion of the Services (including an installation of the Goods). The Supplier will not be required to commence final completion of an installation of the Goods until such payment is received by the Supplier from the Customer.
9. Delivery of Goods
9.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that the Customer or the Customer’s nominated representative takes possession of the Goods at the Supplier’s address or at the address nominated by the Customer.
9.2 The Supplier may notify the Customer if the cost of delivery is to be in addition to the Price.
9.3 Any time specified by the Supplier for delivery of the Goods, or supply of Services, is an estimate only and the Supplier will not be liable for any loss or damage incurred by the Customer as a result of any or supply delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that the Supplier is unable to supply the Goods or Services as agreed solely due to any action or inaction of the Customer, then the Supplier shall be entitled to charge a reasonable fee for redelivery and/or storage.
10.1 Risk of damage to, or loss of, the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery takes place.
10.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, the Customer acknowledges and accepts that the Supplier is entitled to receive all insurance proceeds payable for the Goods. The production of these Terms by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.
11. Location Unit and Register (Outlets)
11.1 The Supplier will use its best endeavours to ascertain the Customer’s preference as to the final location for installation of the Goods (Agreed Location)(which may include making enquiries during any visit to the Site prior to installation). If the Customer notifies the Supplier of an Agreed Location, the Supplier (or its agents, employees or contractors) may request, and the Customer must, sign a form confirming the Agreed Location. The Supplier will use its best endeavours to install the Goods at, or as close as possible to, the Agreed Location. Without limiting, and in addition to, any rights the Supplier may have under these Terms, if the Customer fails to confirm an Agreed Location prior to, or at the time of, the Supplier attending the Site to carry out the installation of the Goods (including where the Customer is not present when the Supplier attends Site to install the Goods) the Supplier may make a determination as to the location for installation of the Goods. If, after the Supplier makes a determination as to the location for installation of the Goods in accordance with this clause 11.1, the Customer requests that the Goods be re-located, the relevant works will constitute a variation, in accordance with clause 8.2.
11.2 In the event that electrical wiring is required to be re-positioned at the request of any third party contracted by the Customer then the Customer agrees to notify the Supplier immediately upon any proposed changes. The Customer agrees to pay the Supplier for any additional costs incurred for the relocation of electrical wiring that is undertaken by the Supplier. All such variations shall be invoiced in accordance with clause 8.2.
11.3 Where the Supplier is required to install the Goods as part of the Services, the Customer represents and warrants that the Site, and structure of the premises or equipment in, or upon, which the Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto. Despite any provision to the contrary, to the maximum extent permitted by law, the Supplier will not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising from a breach of the warranty provided by the Customer in accordance with this clause 11.3.
11.4 The Supplier shall upon installation use its best endeavours to ensure that all installed Goods meet current industry standards applicable to noise levels, however, despite any provision to the contrary, to the maximum extent permitted by law, the Supplier cannot guarantee that noise levels will remain constant post installation as the Goods may be impacted by many factors such as the weather, lack of maintenance, tampering etc.
11.5 Whilst the Supplier will take all due care when working in ceiling space/cavities as part of the Services, despite any provision to the contrary, to the maximum extent permitted by law, the Supplier will not be liable for any hairline cracks that may occur and/or where screws become dislodged due to general and normal movement within a ceiling, unless such hairline cracks or screw dislodgements are due to the negligence of the Supplier. The Customer acknowledges and accepts that it will be responsible for the costs of returning any affected surfaces to their original condition.
11.6 Despite any provision to the contrary, to the maximum extent permitted by law, in the event that any property experiences any movement that affects and causes damage to the Goods, the Supplier shall not be held liable for any such damage to the Goods and the Customer shall be responsible for the cost of rectification.
11.7 Despite any provision to the contrary, to the maximum extent permitted by law, in the event that the Site is disturbed due to adverse weather conditions, the Customer acknowledges that they shall be liable for the cost of rectification of the Goods and/or Services (including but not limited to roof leaks causes by storms, acts of God, earthquake, etc.) or any additional costs incurred by the Supplier in providing the Goods and/or Services.
11.8 The Customer acknowledges and agrees that the Supplier is not responsible for any damage caused to the Supplier’s Goods and/or Services due to the works of any other tradesmen during or after the provision of Goods and/or Services. The Customer acknowledges and agrees that any tradesmen engaged by the Customer is its responsibility and that the Supplier we not be responsible for any acts or omissions (including but not limited to any loss, damage, costs or delays caused or contributed to) by tradesmen engaged by the Customer.
11.9 The Customer acknowledges and agrees that:
(a) the provision of the Goods or Services may be contingent on, or impacted by, third parties, including customers, end users, suppliers, service providers, logistics providers or other subcontractors (Third Party Inputs); and
(b) despite anything to the contrary, to the maximum extent permitted by law, the Supplier will not be responsible, and will have no liability, for any default or breach of these Terms or law, if such default or breach was caused or contributed to by any Third Party Inputs.
This clause 11.9 will survive the termination or expiry of these Terms.
12. Specifications & Design
12.1 The Customer acknowledges and accepts that:
(a) despite any provision to the contrary, to the maximum extent permitted by law, all descriptive specifications, illustrations, drawings, data, dimensions and weights stated in the Supplier’s fact sheets, price lists or advertising material for the Goods and/or Services, are approximate only and are given by way of identification only. Despite any provision to the contrary, to the maximum extent permitted by law, the Customer shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of these Terms, unless expressly stated as such in writing by the Supplier;
(b) the Goods are specified based upon rated conditions. Rated test conditions are based on Australian Standards 1861. Condition A: indoor conditions, cooling dry bulb 27 degrees, wet bulb 19 degrees, outdoor dry bulb 35 degrees, 24 degrees wet bulb, heating conditions are based upon 21 degrees dry bulb, outdoor dry bulb 7 degrees, 6 degrees wet bulb;
(c) while the Supplier may have provided information or figures to the Customer regarding the performance of the Goods, the Customer acknowledges that the Supplier has given these in good faith, and are estimates based on Clean Energy Council (CEC) prescribed estimates. The energy generation may be less than estimates due to factors out of the Supplier’s reasonable control (including, but not limited to, hours of sunlight, cloud cover, weather patterns, the location (geographical or otherwise) of the Goods and the location of surrounding structures and flora); and
(d) some buildings may not have the optimum orientation for the installation of the Goods or components, and the Goods’ performance may be compromised in such situations.
12.2 The Customer shall be responsible for ensuring that the Goods ordered are suitable for their intended use. At no time shall the Goods purchased under this Contract by the Customer be subject of a sale by sample or description.
12.3 Where zoning is quoted as part of Goods described as ducted or multi head system, the Customer acknowledges and accepts that the Goods do not have capacity to heat and/or cool the Customer’s entire premises, and zones must be closed down to heat and/or cool to achieve rated conditions.
12.4 Air Balancing-With Goods that are described as ducted heating or cooling systems, the Supplier will use reasonable endeavours to balance the outlets as best as possible, however, precise balancing of air volumes is not possible. If the Customer requests the Supplier to rebalance air volumes after the provision of any Services (i.e. installation), the Customer acknowledges and accepts that this will be subject to an additional charge.
13.1 The Customer shall ensure that the Supplier has clear, unfettered and free access, free from harm or risk to health or safety, to the Site at all times to enable the Supplier to undertake the Services.
13.2 The Customer must ensure that it does not cause or contribute to any injury or death to the Supplier or its agents, employees or contractors or loss of, or damage to, any property of the Supplier.
13.3 The Customer warrants that it is responsible for any access, consents, licences and permissions from other parties necessary for the Goods and/or Services to be received, at its cost, and for providing the Supplier (and its employees, agents and contractors) with the necessary consents, licences and permissions.
13.4 The Customer warrants that the Site will comply with any work health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
13.5 Despite any provision to the contrary, to the maximum extent permitted by law, the Supplier shall not be liable for any loss or damage to the Site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless directly caused by the negligence of the Supplier.
14. Location of Services
14.1 Prior to the Supplier commencing any Services, the Customer must advise the Supplier of the precise location of all services on the Site and clearly mark the same. The services the Customer must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on Site.
14.2 Whilst the Supplier will take all care to avoid damage to any services, despite any provision to the contrary, to the maximum extent permitted by law, the Customer agrees to indemnify the Supplier in respect of any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 14.1.
15. Customer Responsibilities
15.1 The Customer warrants that:
(a) it will effect and maintain appropriate insurance for any Goods partly or completely installed on the Site, against theft or damage from the date of Delivery and insurance policies for the Site for the duration of the Goods and Services;
(b) there are no legal restrictions preventing it from agreeing to these Terms;
(c) it will cooperate with the Supplier, and provide the Supplier with all documentation, information, instructions and access necessary to enable the Supplier to provide the Goods and/or Services as requested from time to time, in a timely manner;
(d) the information the Customer provides to the Customer is true, correct and complete; and
(e) the Customer will not infringe any third party rights in working with the Supplier and receiving the Goods and/or Services.
15.2 The Customer acknowledges and agrees that;
(a) the Supplier does not guarantee any noise levels (external or internal) and despite any provision to the contrary, to the maximum extent permitted by law, the Supplier shall not be held liable for any loss, damages, or costs, however resulting from noise levels;
(b) the Supplier is only responsible for parts that are replaced by the Supplier as part of the Goods and/or Services and that in the event that other parts/materials subsequently fail, despite any provision to the contrary, to the maximum extent permitted by law, the Customer releases and excludes the Supplier from any liability against any loss or damage to the Goods and/or Services; and
(c) any timelines, schedules, milestones or dates provided by the Supplier or particularised in these Terms in relation to the Good and/or Services are estimates only, and the Supplier will not in any way be liable for any loss, cost, damage or expense arising from, or in connection with, any delay in the performance of the Goods and/or Services, for whatever reason.
15.3 The Customer agrees to remove any furniture, furnishings or personal goods from the vicinity of the Services and agrees despite any provision to the contrary, to the maximum extent permitted by law, the Supplier shall not be liable for any damage caused to those items through the Customer’s failure to comply with this clause.
15.4 Where the Customer has supplied materials for the Supplier to complete the Services, or existing materials are in place, the Customer acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. Despite any provision to the contrary, to the maximum extent permitted by law, the Supplier shall not be responsible for any defects in the Services, any loss or damage to the Goods (or any part thereof), howsoever arising from the use of materials supplied by the Customer.
15.5 The Customer acknowledges that Goods supplied may:
(a) fade or change colour over time;
(b) expand, contract or distort as a result of exposure to heat, cold, weather;
(c) mark or stain if exposed to certain substances; and
(d) be damaged or disfigured by impact or scratching.
15.6 The Supplier will be responsible for the removal of the Supplier’s packaging materials and minor rubbish from the Site on completion of the Services.
15.7 Where the Supplier requires that Goods, fittings and appliances, or plant and tools required for the Services be stored at the Site, the Customer shall supply the Supplier a safe area for storage and shall take all reasonable efforts to protect all items from possible destruction, theft or damage.
15.8 It is the Customer’s responsibility to:
(a)ensure that pets are secured safely and that children are supervised at the Site during the course of the Services;
(b) obtain the relevant approvals prior to installation of the Goods. In the event that any of the Goods needs to be relocated due to complaints from neighbours or local authorities (including but not limited to, strata rules & regulations, council or development application approval), then the Customer shall be responsible for any and all costs involved;
(c) new premises: provide all utilities to install the Goods (including but not limited to, gas supply and gas cock to gas ducted heaters, power points for gas ducted heater and evaporative coolers within one (1) metre of appliance, and appropriate electrical isolators for refrigerated condensing units including where applicable appropriate drainage);
(d) existing premises: provide gas ducted heating, evaporative coolers, refrigerated air-conditioning and other products. The Supplier shall only provide local connection only for gas, power and water where required to the Customer’s existing gas line, water line or power; and
(e) provide any electrical mains, gas or water upgrades.
16. Site Contamination
16.1 The Customer acknowledges and agrees that:
(a) in the course of the Supplier delivering the Goods and Services, the Site may suffer minor contamination (including but not limited to nails, wood shavings and dust etc); and
(b) while the Supplier will endeavour to clear the Site of such refuse, the Supplier will not be liable to the Customer in any such refuse or materials are left at the Site on completion of the Services.
17. Electrical Safety
17.1 All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the “Electrical Safety Regulations”. All of the cabling work will comply with all relevant “Australian and New Zealand Wiring” standards.
17.2 If during the course of the provision of the Services, including installation, when the Services are being conducted within and around switchboards, that if the same is found defective or deemed to be unsafe by the Supplier, then the Supplier shall notify the Customer immediately. The power, if isolated, will not be re-energised until such time as the existing condition has been rectified and made safe in accordance to the “Electrical Safety Regulations”. The Customer accepts and agrees that any costs associated with the rectification services including any goods and labour shall be at the Customer’s account.
17.3 Any live works or works undertaken near live conductors where it is safe to do so shall be dealt with in accordance with “Australian and New Zealand Wiring” standards being “Safe working on Low Voltage Electrical Installations, relevant Commonwealth and Statutory Acts and Work Place Regulations”. The Supplier’s live works procedures are designed to eliminate risk of injury to the Supplier’s employees, damage to the Customer’s installations and unexpected power disconnections. The Customer acknowledges and agrees that it may in some cases require disconnection and isolation of the installation to undertake such Services for which additional charges may be applicable which may be affected in accordance with clause 8.2.
18.1 The Supplier and the Customer agree that ownership of the Goods shall not pass until the Customer has paid the Supplier all amounts owing to the Supplier.
18.2 Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
18.3 It is further agreed that until ownership of the Goods passes to the Customer in accordance with clause 18.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to the Supplier on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand;
(d) the Customer irrevocably authorises the Supplier to enter any premises where the Supplier believes the Goods are kept and recover possession of the Goods;
(e) the Supplier may recover possession of any Goods in transit whether or not Delivery has occurred;
(f) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Supplier; and
(g) the Supplier may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
19. Personal Property Securities Act 2009 (“PPSA”)
19.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
19.2 Upon assenting to these Terms in writing the Customer acknowledges and agrees that these Terms constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by the Supplier to the Customer.
19.3 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 the Supplier may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 19.3(a)(i) or 19.3(a)(ii);
(b) not register a financing change statement in respect of a security interest without the prior written consent of the Supplier; and
(c) 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 the Supplier.
19.4 The Supplier and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these Terms.
19.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
19.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
19.7 Unless otherwise agreed to in writing by the Supplier, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
19.8 The Customer must unconditionally ratify any actions taken by the Supplier under clauses 19./3 to 19.5.
19.9 Subject to any express provisions to the contrary (including those contained in this clause 11) nothing in these Terms is intended to have the effect of contracting out of any of the provisions of the PPSA.
20. Defects, Warranties and Returns, Competition and Consumer Act 2010 (Cth) (CCA)
20.1 The Customer must inspect the Goods on delivery and must within five (5) days of delivery notify the Supplier in writing of any evident defect or damage (including a photo and description) caused by the Supplier’s breach of these Terms or shortage in quantity (Defect or Defective). Upon such notification, the Customer must allow the Supplier to inspect the Goods and/or Services supplied.
20.2 If the Customer provides notice under clause 20.1:
(a) the Customer must provide the Supplier with an opportunity to inspect the alleged Defect within five (5) business days from the of notice under clause 1; and
(b) where the Supplier determines that there is a Defect in the Goods and/or Services, the Supplier will at its own cost and at its sole discretion:
(i) repair, remedy or resupply the Defect; or
(ii) if the Supplier is unable to repair, remedy or resupply the Defect, offer the Customer a choice of a credit or a refund with respect to that part of the Price applicable to the Defect.
20.3 For the avoidance of doubt, subject to this clause 20, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 20.1;
(b) the Supplier has agreed that the Goods are Defective;
(c) if applicable, the Goods are returned within a reasonable time at the Customer’s cost; and
(d) the Goods are returned in the same condition at which they were delivered.
20.4 Despite anything to the contrary, to the maximum extent permitted by law, the Supplier’s aggregate liability for any fault, defect, error, omission or lack of functionality or suitability with respect to the Goods and Services will be limited to, and must not exceed, the costs the Supplier incurs in complying with clause 2 (as applicable).
20.5 For the avoidance of doubt, to the maximum extent permitted by law, the Supplier shall not be liable for any Defect which may be caused by or arise as a result of:
(a) the Customer failing to properly maintain or store any Goods;
(b) the Customer using the Goods for any purpose other than that for which they were designed;
(c) the Customer continuing the use of any Goods after any Defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Customer failing to follow any instructions or guidelines provided by the Supplier; and
(e) fair wear and tear, any accident, or events beyond the Supplier’s reasonable control.
20.6 Where the Customer fails to notify the Supplier of a Defect in accordance with clause 20.1, the Customer acknowledges and agrees that the Customer is deemed to have accepted that the Goods and Services are fit for purpose and in accordance with these Terms, and to the maximum extent permitted by law, the Supplier will have no further liability to the Customer in respect of the Goods and Services.
20.7 Warranty installations will be carried out during normal business hours 7.00am-3.00pm Monday-Friday, any calls outs outside this timeframe will be subject to an additional call out fee as notified by the Supplier to the Customer.
20.8 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 to the extent they cannot be lawfully excluded or limited by contract. In Australia, the Goods and Services may with guarantees which cannot be excluded under the Australian Consumer Law. Nothing in these Terms attempts to modify or exclude the conditions, warranties and undertakings, and other legal rights, under the CCA, or otherwise (Non-Excluded Guarantees). The Customer may be entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The Customer may also be entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.
20.9 The Supplier acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
20.10 Except as expressly set out in these Terms or in respect of the Non-Excluded Guarantees, the Supplier makes no warranties or other representations under these Terms, including but not limited to the quality or suitability of the Goods or Services. The Supplier’s liability in respect of these warranties is limited to the fullest extent permitted by law.
20.11 If the Customer is a consumer within the meaning of the CCA, the Supplier’s liability is limited to the extent permitted by section 64A of Schedule 2.
20.12 The Supplier may offer to the Customer a warranty with respect to the Goods or Services. The terms of any such warranty apply in addition to, and do not limit, the Non-Excluded Guarantees.
20.14 The Supplier may in its absolute discretion accept non-Defective Goods for return in which case the Supplier may require the Customer to pay handling fees of up to twenty percent (20%) of the value of the returned Goods plus any freight costs. Custom made or custom processed Goods or Goods acquired by Supplier specifically for the Customer will not be returnable. Notwithstanding anything contained in this clause if the Supplier is required by a law to accept a return then the Supplier will only accept a return on the conditions imposed by that law.
20.14 To the extent required under the Home Building Act 1989 (NSW), the Supplier warrants that:
(a) the Goods and Services will be provided with due care and skill and in accordance with any plans and specifications set out in Terms;
(b) all materials supplied will be good and suitable for the purpose for which they are used and that, unless otherwise stated in these Terms, those materials will be new;
(c) the Goods and Services will be provided in accordance with, and will comply with, the Home Building Act 1989 (NSW) or any other law;
(d) the Goods and Services will be provided with due diligence and within a reasonable time;
(e) if the Goods and Services consists of the construction of a dwelling, the making of alterations or additions to a dwelling or the repairing, renovation, decoration or protective treatment of a dwelling, the Goods and Services will result, to the extent of the work conducted, in a dwelling that is reasonably fit for occupation as a dwelling; and
(f) the Goods and Services will be provided and any materials used in doing the work will be reasonably fit for the specified purpose or result, if the Customer expressly makes it known to the Supplier the particular purpose for which the Goods and Services are required or the result that the Customer desires the Goods and Services to achieve, so as to show that the Customer relied on the Supplier’s skill and judgment.
21. Limited Liability
21.1 The Customer warrants that it has not relied upon any warranty, representation, statement, offer or documentation made or provided by or on behalf of the Supplier not expressly contained in these Terms.
21.2 Despite any provision to the contrary, to the maximum extent permitted by law, the Supplier will not accept any liability (including any claims, suits, actions and expenses, including but not limited to costs of litigation and reasonable legal costs), whether under statute, contract, equity, negligence or other tort, indemnity, or otherwise, for the following:
(a) any event or circumstance beyond the Supplier’s reasonable control;
(b) any act of omission of the Customer or any third party (including from the Customer’s provision of any information, documentation, specifications, directions, or instructions;
(c) any Latent Conditions;
(d) any design or specification prepared by or on behalf of the Customer;
(e) any plaster, render or other surfaces that may crack or collapse during or after the installation of the Goods;
(f) any weakening or collapse of the structure to which the Goods is affixed, occurring at any time after installation;
(g) any damage to or deterioration in the condition of the Goods at any time after installation;
(h) any damage to the product resulting from power failure;
(i) any minor scratches or dents caused to the Goods and/or the Customer’s property due to the normal course of the delivery and installation;
(j) any failure by the Customer to notify the Supplier of an Agreed Location, any determination by the Supplier as to the final location for the installation of the Goods, or any determination by the Supplier (acting reasonably) to install the Goods at a location other that the Agreed Location, under clause 1;
(k) any water damage due to the failure of the Customer having adequately maintained and/or functioning guttering/drainage system during or after the installation of the Goods; and
(l) exposed conduit, pipes and capping etc. where required in the installation process, and colour mismatch of same.
21.3 Despite any provision to the contrary, to the maximum extent permitted by law, the Supplier shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
21.4 Despite any provision to the contrary, to the maximum extent permitted by law, the Supplier’s maximum aggregate liability arising from or in connection with these Terms shall be limited to the Price of the Goods or Services the subject of the relevant claim.
22. Intellectual Property
22.1 Where the Supplier has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of the Supplier. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Supplier.
22.2 The Customer warrants that all materials (including designs, specifications or instructions) given to the Supplier will not cause the Supplier to infringe any patent, registered design or trademark, or any intellectual property rights of any third party, in the execution of the Customer’s order and the Customer agrees to indemnify the Supplier against any action taken by a third party against the Supplier in respect of any such infringement.
22.3 The Customer agrees that the Supplier may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Supplier has created for the Customer.
23. Default and Consequences of Default
23.1 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 Supplier’s sole discretion such interest shall compound monthly at such a rate).
23.2 If the Customer owes the Supplier any money the Customer shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Supplier’s Contract Plan default fee, and bank dishonour fees).
23.3 Further to any other rights or remedies the Supplier may have under these Terms, if a Customer has made payment to the Supplier, 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 Supplier under this clause 22 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under these Terms.
23.4 Without prejudice to the Supplier’s other remedies at law, to the maximum extent permitted by law, the Supplier shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Supplier becomes overdue;
(b) the Customer has exceeded any applicable credit limit provided by the Supplier; or
(c) the Customer becomes insolvent.
24.1 Without prejudice to any other remedies the Supplier may have, if at any time the Customer is in material breach of these Terms (including those provisions relating to payment) the Supplier may suspend or terminate the supply of Goods and/or Services to the Customer. The Supplier will not be liable to the Customer for any loss or damage the Customer suffers because the Supplier has exercised its rights under this clause.
24.2 The Supplier may cancel any quote to which these Terms apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice the Supplier shall repay to the Customer any money paid by the Customer for the Goods. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.
24.3 In the event that either party to these Terms wishes to cancel a Contract Plan for Services, then the party that wishes to exercise this right must do so by advising the other party in writing giving not less than the required notice defined in the Contract Plan or otherwise in accordance with clause 7.1.
24.4 If the Customer cancels delivery of Goods the Customer shall be liable for any costs and expenses reasonably suffered or incurred by the Supplier as a direct result of the cancellation.
24.5 These Terms may be cancelled by the Supplier, if the Customer is in breach of a material term of these Terms and that breach has not been remedied within five business days of being notified by the Supplier.
24.6 These Terms may be cancelled by the Customer, if the Supplier is in breach of a material term of these Terms and that breach has not been remedied or overcome within 5 business days of being notified by the Customer.
24.7 Reasonable notice must be given for any cancellation of Services (including scheduled service calls). Notice must be given to the Supplier not less than twenty-four (24) hours’ prior to the Customer’s appointment thus there is sufficient time for the Customer’s cancellation to be occupied by another customer. Failure to do so may be subject to a minimum cancellation fee, as notified by the Supplier to the Customer.
24.8 Despite any provision to the contrary, to the maximum extent permitted by law, cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
24.9 Upon cancellation of these Terms, the Customer is required to pay all amounts due and payable to the Supplier for Goods and Services provided, and any costs and expenses reasonably suffered or incurred by the Supplier, in accordance with these Terms up to and including the date of cancellation.
25. Privacy Act 1988
25.1 The Customer agrees for the Supplier to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by the Supplier.
25.2 The Customer agrees that the Supplier may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two years.
25.3 The Customer consents to the Supplier being given a consumer credit report to collect overdue payment on commercial credit.
25.4 The Customer agrees that personal credit information provided may be used and retained by the Supplier for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods;
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
25.5 The Supplier may give information about the Customer to a CRB for the following purposes:
(a) to obtain a consumer credit report; and
(b) allow the CRB to create or maintain a credit information file about the Customer including credit history.
25.6 The information given to the CRB may include:
(a) personal information as outlined in 25.1 above;
(b) name of the credit provider and that the Supplier is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and the Supplier has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of the Supplier, the Customer has committed a serious credit infringement; and
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
25.7 The Customer shall have the right to request (by e-mail) from the Supplier:
(a) a copy of the information about the Customer retained by the Supplier and the right to request that the Supplier correct any incorrect information; and
(b) that the Supplier does not disclose any personal information about the Customer for the purpose of direct marketing.
25.8 The Supplier will destroy personal information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
25.9 The Customer can make a privacy complaint by contacting the Supplier via e-mail. The Supplier will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at oaic.gov.au.
26. Unpaid Seller’s Rights
26.1 Where the Customer has left any item with the Supplier for repair, modification, exchange or for the Supplier to perform any other service in relation to the item and the Supplier has not received or been tendered the whole of any moneys owing to it by the Customer, the Supplier shall have, until all moneys owing to the Supplier are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
26.2 The lien of the Supplier shall continue despite the commencement of proceedings, or judgment for any moneys owing to the Supplier having been obtained against the Customer.
27. Building and Construction Industry Security of Payments Act 1999 (NSW)
27.1 At the Supplier’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 (NSW) may apply.
27.2 Nothing in these Terms is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 (NSW), except to the extent permitted by the legislation where applicable.
28. Service of Notices
28.1 Any written notice given under these Terms shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as last communicated by the party ;
(c) by sending it by registered post to the address of the other party as last communicated by the party ;
(d) if sent by facsimile transmission to the fax number of the other party as last communicated by the party (if any), on receipt of confirmation of the transmission; and
(e) if sent by email to the other party’s last known email address.
28.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
29. Customer Guaranteed or it’s Free Same Day Service
29.1 The same day service guarantee only applies to Goods or Services booked with the Supplier’s call centre before midday local office time.
29.1 If the Supplier is unable attend on the same day for Goods or Services booked before midday the standard callout fee will be waived, all other normal charges and fees will apply.
29.3 If the Supplier is unable to attend to the Goods or Services on the same day the Customer calls, the Supplier will use its best endeavours to offer the Customer the next available booking time on the next business day.
29.4 For calls received after midday local office time, the Customer will be offered a booking for the next available time and day and normal callout fees will apply.
29.5 The Supplier’s business working hours are 7am to 3pm Monday to Friday and 7am to midday Saturday. Saturday after midday, Sunday, Australian public holidays and state public holidays in effect in the state the Goods or Services are ordered are excluded from this offer.
29.6 This offer applies only to Sydney metro area that are also within the Supplier’s coverage areas.
20.1 If the Customer at any time upon or subsequent to entering in to these Terms is acting in the capacity of trustee of any trust (Trust) then whether or not the Supplier may have notice of the Trust, the Customer covenants with the Supplier as follows:
(a) these Terms extend to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
(b) the Customer has full and complete power and authority under the Trust to enter into these Terms and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity; and
(c) the Customer will not without consent in writing of the Supplier (the Supplier will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Customer as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv)any resettlement of the trust property.
30.1 These Terms are not intended to create a partnership, joint venture or agency relationship between the parties. Nothing in these Terms gives a party authority to bind the other party in any way.
30.2 If any provision (or part of it) under these Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of these Terms are valid and enforceable.
30.3 The failure by either party to enforce any provision of these Terms shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision.
30.4 If any provision of these Terms shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
30.5 These Terms (including any quote or Contract Plan) to which they apply shall be governed by the laws of New South Wales in which the Supplier has its principal place of business, and are subject to the jurisdiction of the courts in New South Wales.
30.6 The Customer shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by the Supplier as a result of the Customer’s failure to comply with this clause.
30.7 The Supplier may licence and/or assign all or any part of its rights and/or obligations under these Terms without the Customer’s consent. The Customer cannot licence or assign without the written approval of the Supplier.
30.8 The Supplier may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under these Terms by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of the Supplier’s subcontractors, contractors or employees without the authority of the Supplier.
30.9 The Customer agrees that the Supplier may amend these Terms by notifying the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes.
30.10 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
30.11 Both parties warrant that they have the power to enter into these Terms and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that these Terms creates binding and valid legal obligations on them.
30.12 These Terms contains the entire understanding between the parties, and supersedes al previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
30.13 These Terms are governed by the laws of New South Wales and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.