1.1 Application of these Terms and Conditions
The Customer agrees that prior to placing an order with the Supplier, the Customer has read and agreed to the terms and conditions as set out hereunder. For the purposes of this agreement, “Supplier” is TRI TECH AIRCONDITIONING PTY LTD A.B.N. 16 626 708 647 and the “Customer” is the applicant named on the account with the Supplier. In this Agreement “Goods” mean air conditioning and associated products.
Delivery of the Goods shall be made to the Customer’s nominated address. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. Delivery of Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purpose of this agreement. The failure of the Supplier to deliver shall not entitle either party to treat this contract as repudiated. The Supplier shall not be liable for any loss or damage whatever due to the failure by the Supplier to deliver the Goods (or any part of them) promptly or at all.
3.1 Time for Payment
The Account Customer must, within the account term given days of the Customer receiving the Supplier’s invoice, pay the Supplier the total amount set out in the invoice. The Supplier reserves the right to alter the time of payment at their discretion.
The Supplier may charge interest at 2.5% per calendar month or a $15 administration fee on amounts not paid within the time specified in clause 3.1.
The Supplier may require a deposit from the Customer, and if a deposit is so requested by the Supplier the Customer acknowledges the Supplier is under no obligation to start the contract period or undertake any works as requested by the Customer, until the Deposit is received by the Supplier in full and when all details pertaining to contract are finalised. In the event of default as to payment owing to the Supplier on the part of the Customer, the Supplier shall be entitled to forfeit the deposit and claim for the balance owing on the Order and for any other loss suffered by the Supplier by way of any remedy available to it as provided in these Terms and Conditions or at law or in equity generally.
The Customer must pay to the Supplier any costs, expenses or losses incurred by the Supplier as a result of the Customer’s failure to pay to the Supplier all sums outstanding as owed by the Customer to the Supplier including without limiting the generality of the forgoing any debt collection and legal costs incurred in enforcing payment on a Solicitor and own client basis.
3.5 Credit Card Payments
The Supplier accepts payment by Visa or MasterCard, all of which attract a 1.5% surcharge.
The risk in the Goods shall pass to the Customer upon delivery of the Goods to the Customer or its agent or to a third party nominated by the Customer.
5. RETENTION OF TITLE
Notwithstanding the delivery of the Goods or their installation, title in any particular Goods shall remain with the Supplier regardless of whether the Goods are
on-sold by the Customer until the Customer has paid and discharged any and all monies owing pursuant to any invoice issued by the Supplier for the Goods, including all applicable GST and other taxes, levies and duties. Any payment made by or on behalf of the Customer which is later avoided by the application of any Statutory Provisions shall be deemed not to discharge the Supplier’s title in the Goods nor the Customer’s indebtedness to the Supplier and, in such an event, the parties are to be restored to the rights which each respectively would have had if the payment had not been made.
The Customer acknowledges that it is in possession of the Goods solely as Bailee until payment of all invoices for the Goods is made pursuant to clause 6.1
and until that time:
(a) The Customer is not entitled to sell the Goods but only in the ordinary course of business.
(b) The Customer must not encumber or otherwise charge the Goods.
(c) The Customer shall be fully responsible for any loss or damage to the Goods whatsoever and howsoever caused following delivery or installation of the Goods to the Customer.
The Customer hereby irrevocably grants to the Supplier the right, at its sole discretion, to remove or repossess any Goods from the Customer and sell
or dispose of them, and the Supplier shall not be liable to the Customer or any person claiming through the Customer and the Supplier shall be entitled to retain the proceeds of any Goods sold and apply same towards the Customer’s indebtedness to the Supplier. If the Customer commits an act of bankruptcy, enters into any form of administration or liquidation, makes any composition or arrangement with its creditors, ceases to carry on business or breaches any fundamental clause of this agreement, then the Supplier may without prejudice to any other remedies it may have, repossess any Goods delivered to the Customer on any account which has not been paid in accordance with the terms and conditions herein and commence proceedings to recover the balance of any monies owing the Supplier by the Customer.
6.1 The Supplier does not warrant the quality, or the performance of any electrical Goods supplied by the Supplier.
It is the Customer’s responsibility to establish the warranty relationship with the manufacturer by ensuring that warranty cards or any other registration requirements of the manufacturer of any electrical Goods supplied by the Supplier are complied with.
6.2 The Supplier reserves the right to make null and void the warranty should the goods be modified, altered, damaged, or put to any undue stress other than in the way the goods were designed to perform.
6.3 In respect of all claims the Supplier shall not be liable to compensate the Customer for any delay in either replacing or repairing the Goods or in properly
assessing the Customer’s claim.
7. DEFECTS/RETURN OF GOODS
7.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery notify the Supplier of any alleged shortage in quantity, damage, or failure to comply with the description. The Customer shall afford the Supplier an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any damage. Should the Supplier agree to the return of Goods a 10% restocking fee may be applied.
8.1 Non-excludable Rights
The parties acknowledge that, under applicable State and Commonwealth law, certain conditions and warranties may be implied in these Terms and Conditions and there are rights and remedies conferred on the Customer in relation to the provision of the Goods or of services which cannot be excluded,
restricted or modified by the Agreement (“Non-excludable Rights”).
8.2 Disclaimer of Liability
The Supplier disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Customer, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non-excludable Rights. To the extent permitted by law, the liability of the Supplier for a breach of a Non-Excludable Right is limited, at the Supplier’s option,
to the supplying of the Goods and/or any services again or payment of the cost of having the Goods and/or services supplied again.
8.3 Indirect Losses
Notwithstanding any other provision of these Terms and Conditions, the Supplier is in no circumstances (whatever the cause) liable in contract, tort including without limitation, negligence, or breach of statutory duty or otherwise to compensate the Customer for:
(a) any increased costs or expenses;
(b) any loss of profit, revenue, business, contracts or anticipated savings;
(c) any loss or expense resulting from a claim by a third party; or
(d) any special, indirect or consequential loss or damage of any nature whatsoever caused by the Supplier’s failure to complete or delay in completing the Order or to deliver the Goods.
9.1 The Customer hereby authorises the Supplier to collect, retain, record, use and disclose personal information about the Customer, in accordance with the Privacy Act 1988, to persons and/or legal entities who are a Solicitor or any other professional consultant engaged by the Supplier, a Debt Collector, Credit Reference Organisation and/or any other individual or organisation which maintains credit references and/or default listings.
9.2 The Customer also authorises the Supplier to make enquiries with respect to the Customer’s credit worthiness; to exchange information with other Credit Providers in respect to previous defaults of the Customer and to notify other Credit Providers of a default by the Customer.
10. GENERAL MATTERS
Any provision in these Terms and Conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these Terms and Conditions or affecting the validity or enforceability of that provision in any other jurisdiction.
10.2 Governing Law and Jurisdiction
These Terms and Conditions are governed by the law in force in the State or Territory in which the Supplier’s premises are located and the parties submit to the non-exclusive jurisdiction of the courts of that State or Territory and any courts which may hear appeals from those courts in respect of any proceedings in connection with these Terms and Conditions.