Empire Air Conditioning Services Pty Ltd

Terms & Conditions of Trade

Please note that a larger print version of these terms and conditions is available from the Contractor on request. © Copyright – EC Credit Control Pty Ltd 1999 – 2011

1. Definitions

1.1 “Contractor” means Empire Air Conditioning Services Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Empire Air Conditioning Services Pty Ltd.

1.2 “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.

1.3 “Goods” means all Goods or Services supplied by the Contractor to the Client at the Client‟s request from time to time (where the context so permits the terms „Goods‟ or „Services‟ shall be interchangeable for the other).

1.4 “Price” means the Price payable for the Goods as agreed between the Contractor and the Client in accordance with clause 4 below.

2. Acceptance

2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.

2.2 These terms and conditions may only be amended with the Contractor‟s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Contractor.

2.3 The Client acknowledges and agrees that the following shall be excluded from any agreed quote;

(a) any rectification work, patching, making good or painting any existing wall if the existing aperture is larger than that required to install the new replacement unit; and

(b) the installation of any power supply unit from the Client‟s switchboard to the air conditioning unit; and

3. Change in Control

3.1 The Client shall give the Contractor not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client‟s details (including but not limited to, changes in the Client‟s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by the Contractor as a result of the Client‟s failure to comply with this clause.

4. Price and Payment

4.1 At the Contractor‟s sole discretion the Price shall be either:

(a) as indicated on any invoice provided by the Contractor to the Client; or

(b) the Contractor‟s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

4.2 The Contractor reserves the right to change the Price if a variation to the Contractor‟s quotation is requested. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties such as building obstructions or defects embedded in the installation site that couldn‟t have reasonably been identified by the initial visual inspection, or as a result of increases to the Contractor in the cost of materials and labour) will be charged for on the basis of the Contractor‟s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.

4.3 The Client acknowledges and agrees that a call out fee will be charged to the Client according to the Contractor‟s current scale of charges, from the time the Contractor‟s technician commences travel to the job site. The Client further agrees that this shall be binding regardless of the length of time spent by the technician at the job site and also irrespective of when the Client notifies the Contractor of job cancellation, unless such notification is received by the Contractor prior to the technician leaving.

4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by the Contractor, which may be:

(a) by way of instalments/progress payments in accordance with the Contractor‟s payment schedule;

(b) the date specified on any invoice or other form as being the date for payment; or

(c) failing any notice to the contrary, the date which is fourteen (14) days following the date of any invoice given to the Client by the Contractor.

4.5 No allowance has been made in the Price for the deduction of retentions. In the event that retentions are made, the Contractor reserves the right to treat retentions as placing the Client‟s account into default.

4.6 Payment may be made by cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to five percent (5%) of the Price), or by any other method as agreed to between the Client and the Contractor.

4.7 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Contractor an amount equal to any GST the Contractor must pay for any supply by the Contractor under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client 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.

5. Delivery of Goods

5.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that the Contractor or the Contractor‟s nominated carrier delivers the Goods to the Client‟s nominated address even if the Client is not present at the address.

5.2 Any delivery costs incurred by the Contractor shall be included in the Price.

5.3 The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then the Contractor shall be entitled to charge a reasonable fee for redelivery and/or storage.

5.4 The Contractor may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

5.5 Any time or date given by the Contractor to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and the Contractor will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.

6. Risk

6.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.

6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the Contractor is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Contractor is sufficient evidence of the Contractor‟s rights to receive the insurance proceeds without the need for any person dealing with the Contractor to make further enquiries.

6.3 If the Client requests the Contractor to leave Goods outside the Contractor‟s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client‟s sole risk.

7. Air Conditioning Risk

7.1 Whilst the final location of the condensing unit is at the discretion of the Client, a charge will apply as a variation as per clause 4.2, if the Client requests the unit to not be located adjacent to the external wall, due to the underground piping required.

7.2 The final location of the wall, window or floor unit must be determined on site by the Client.

7.3 The Client acknowledges and agrees that the Contractor does not guarantee any noise levels (external or internal) and the Contractor shall not be held liable for any loss, damages, or costs, however resulting from noise levels.

7.4 In the event that any of the equipment needs to be relocated due to complaints from neighbours or local authorities, then the Client shall be responsible for any and all costs involved.

7.5 The Client acknowledges and agrees that it is their responsibility to insure any equipment partly or completely installed on site, against theft or damage.

7.6 In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Client then the Client agrees to notify the Contractor immediately upon any proposed changes. The Client agrees to indemnify the Contractor against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 4.2.

8. Client Responsibilities

8.1 It is the intention of the Contractor and agreed by the Client that it is the responsibility of the Client to provide and have erected scaffolding to enable the works to be undertaken (where in the Contractor‟s opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licensed.

8.2 The Client agrees to remove any furniture, furnishings or personal goods from the vicinity of the works and agrees that the Contractor shall not be liable for any damage caused to those items through the Clients failure to comply with this clause.

8.3 The Client shall ensure that the Contractor has clear and free access to the worksite in order for the Contractor to undertake the works.

9. Title

9.1 The Contractor and the Client agree that ownership of the Goods shall not pass until:

(a) the Client has paid the Contractor all amounts owing to the Contractor; and

(b) the Client has met all of its other obligations to the Contractor.

9.2 Receipt by the Contractor 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.

9.3 It is further agreed that:

(a) until ownership of the Goods passes to the Client in accordance with clause 9.1 that the Client is only a bailee of the Goods and must return the Goods to the Contractor on request.

(b) the Client holds the benefit of the Client‟s insurance of the Goods on trust for the Contractor and must pay to the Contractor the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.

(c) the Client 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 Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for the Contractor and must pay or deliver the proceeds to the Contractor on demand.

(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of the Contractor and must sell, dispose of or return the resulting product to the Contractor as it so directs.

(e) the Client irrevocably authorises the Contractor to enter any premises where the Contractor believes the Goods are kept and recover possession of the Goods.

(f) the Contractor may recover possession of any Goods in transit whether or not delivery has occurred.

(g) the Client 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 Contractor.

(h) the Contractor may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

10. Personal Property Securities Act 2009 (“PPSA”)

10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

10.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions 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 Contractor to the Client.

10.3 The Client 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 Contractor 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 10.3(a)(i) or 10.3(a)(ii);

(b) indemnify, and upon demand reimburse, the Contractor for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;

(c) not register a financing change statement in respect of a security interest without the prior written consent of the Contractor;

(d) 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 Contractor;

(e) immediately advise the Contractor of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

10.4 The Contractor and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

10.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

10.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

10.7 Unless otherwise agreed to in writing by the Contractor, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.

10.8 The Client must unconditionally ratify any actions taken by the Contractor under clauses 10.3 to 10.5.

10.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.

11. Security and Charge

11.1 In consideration of the Contractor agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

11.2 The Client indemnifies the Contractor from and against all the Contractor‟s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Contractor‟s rights under this clause.

11.3 The Client irrevocably appoints the Contractor and each director of the Contractor as the Client‟s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Client‟s behalf.

12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

12.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify the Contractor in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Contractor to inspect the Goods.

12.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).

12.3 The Contractor acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Contractor makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. The Contractor‟s liability in respect of these warranties is limited to the fullest extent permitted by law.

12.5 If the Client is a consumer within the meaning of the CCA, the Contractor‟s liability is limited to the extent permitted by section 64A of Schedule 2.

12.6 If the Contractor is required to replace the Goods under this clause or the CCA, but is unable to do so, the Contractor may refund any money the Client has paid for the Goods.

12.7 If the Client is not a consumer within the meaning of the CCA, the Contractor‟s liability for any defect or damage in the Goods is:

(a) limited to the value of any express warranty or warranty card provided to the Client by the Contractor in the Contractor‟s sole discretion;

(b) limited to any warranty to which the Contractor is entitled, if the Contractor did not manufacture the Goods;

12.8 Subject to this clause 12, returns will only be accepted provided that:

(a) the Client has complied with the provisions of clause 12.1; and

(b) the Contractor has agreed that the Goods are defective; and

(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.

12.9 Notwithstanding clauses 12.1 to 12.8 but subject to the CCA, the Contractor shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

(a) the Client failing to properly maintain or store any Goods;

(b) the Client using the Goods for any purpose other than that for which they were designed;

(c) the Client 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 Client failing to follow any instructions or guidelines provided by the Contractor;

(e) fair wear and tear, any accident, or act of God.

12.10 In the case of second hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by the Contractor as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that the Contractor has agreed to provide the Client with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 12.10.

12.11 The Contractor may in its absolute discretion accept non-defective Goods for return in which case the Contractor may require the Client to pay handling fees of up to forty-five percent (45%) of the value of the returned Goods plus any freight costs.

12.12 Notwithstanding anything contained in this clause if the Contractor is required by a law to accept a return then the Contractor will only accept a return on the conditions imposed by that law.

13. Intellectual Property

13.1 Where the Contractor has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of the Contractor.

13.2 The Client warrants that all designs, specifications or instructions given to the Contractor will not cause the Contractor to infringe any patent, registered design or trademark in the execution of the Client‟s order and the Client agrees to indemnify the Contractor against any action taken by a third party against the Contractor in respect of any such infringement.

13.3 The Client agrees that the Contractor may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Contractor has created for the Client.

14. Default and Consequences of Default

14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Contractor‟s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

14.2 If the Client owes the Contractor any money the Client shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Contractor‟s collection agency costs, and bank dishonour fees).

14.3 Without prejudice to any other remedies the Contractor may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Contractor may suspend or terminate the supply of Goods to the Client. The Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has exercised its rights under this clause.

14.4 Without prejudice to the Contractor‟s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable if:

(a) any money payable to the Contractor becomes overdue, or in the Contractor‟s opinion the Client will be unable to make a payment when it falls due;

(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

15. Cancellation

15.1 The Contractor may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice the Contractor shall repay to the Client any money paid by the Client for the Goods. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation.

15.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Contractor as a direct result of the cancellation (including, but not limited to, any loss of profits).

15.3 Cancellation of orders for Goods made to the Client‟s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

16. Privacy Act 1988

16.1 The Client agrees for the Contractor to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by the Contractor.

16.2 The Client agrees that the Contractor may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reportingagency for the following purposes:

(a) to assess an application by the Client; and/or

(b) to notify other credit providers of a default by the Client; and/or

(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or

(d) to assess the creditworthiness of the Client. The Client understands that the information exchanged can include anything about the Client‟s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.

16.3 The Client consents to the Contractor being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

16.4 The Client agrees that personal credit information provided may be used and retained by the Contractor for the following purposes (and for other purposes as shall be agreed between the Client and Contractor or required by law from time to time):

(a) the provision of Goods; and/or

(b) the marketing of Goods by the Contractor, its agents or distributors; and/or

(c) analysing, verifying and/or checking the Client‟s credit, payment and/or status in relation to the provision of Goods; and/or

(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or

(e) enabling the daily operation of Client‟s account and/or the collection of amounts outstanding in the Client‟s account in relation to the Goods.

16.5 The Contractor may give information about the Client to a credit reporting agency for the following purposes:

(a) to obtain a consumer credit report about the Client;

(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.

16.6 The information given to the credit reporting agency may include:

(a) personal particulars (the Client‟s name, sex, address, previous addresses, date of birth, name of employer and driver‟s licence number);

(b) details concerning the Client‟s application for credit or commercial credit and the amount requested;

(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;

(e) that the Client‟s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;

(f) information that, in the opinion of the Contractor, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client‟s credit obligations);

(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;

(h) that credit provided to the Client by the Contractor has been paid or otherwise discharged.

17. Unpaid Contractor’s Rights

17.1 Where the Client has left any item with the Contractor for repair, modification, exchange or for the Contractor to perform any other service in relation to the item and the Contractor has not received or been tendered the whole of any moneys owing to it by the Client, the Contractor shall have, until all moneys owing to the Contractor 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.

17.2 The lien of the Contractor shall continue despite the commencement of proceedings, or judgment for any moneys owing to the Contractor having been obtained against the Client.

18. Building and Construction Industry Security of Payments Act 1999

18.1 At the Contractor‟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 may apply.

18.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.

19. General

19.1 The failure by the Contractor to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Contractor‟s right to subsequently enforce that provision. 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.

19.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which the Contractor has its principal place of business, and are subject to the jurisdiction of the courts in that state.

19.3 Subject to clause 12 the Contractor shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Contractor of these terms and conditions (alternatively the Contractor‟s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).

19.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Contractor nor to withhold payment of any invoice because part of that invoice is in dispute.

19.5 The Contractor may license or sub-contract all or any part of its rights and obligations without the Client‟s consent.

19.6 The Client agrees that the Contractor may amend these terms and conditions at any time. If the Contractor makes a change to these terms and conditions, then that change will take effect from the date on which the Contractor notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for the Contractor to provide Goods to the Client.

19.7 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.

19.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.