TERMS AND CONDITIONS FOR THE PROVISION OF GOODS AND SERVICES
The Supplier: SOUTH EASTERN AIRCONDITIONING PTY LTD Trading as SEAC air conditioning division (ACN 110 843 519)
A) The Supplier is SOUTH EASTERN AIRCONDITIONING PTY LTD
Trading as SEAC air conditioning division(ACN 110 843 519)
B) The Customer is the Persons or Company detailed above.
C) The Goods and Services include the supply and installation of air conditioning equipment, air conditioning components and or units in accordance with a signed Quotation, Tender Form or Order.
D) Tender Form is a written document containing the description of the Goods and Services provided by the Supplier to the Customer.
E) Quotation is a written document provided by the Supplier to the Customer specifying the Goods and Services to be supplied to the Customer and the Price of those Goods and Services.
F) The Price is the purchase or Quotation and or Tender price of the Goods and Services.
G) Indirect, Special or Consequential loss or damage includes i) any loss of income profit or business; ii) any loss of good will or reputation; iii) any loss of value of intellectual property.
1. These Terms and Conditions together with the Suppliers written Tender and Quotation forms this agreement.
withstanding any inconsistencies which may be introduced in the Customer orders or acceptance unless expressly agreed to by the Supplier in writing.
3. Notwithstanding clause 4, SEAC cannot unilaterally alter these T&Cs whilst there is an order on foot-, only before a new order is agreed to.
4. The Supplier may vary the Terms and Conditions by giving fourteen (14) days notice in writing to the Customer.
5. These Terms and Conditions are binding on the Customer his heirs, assigns, executors and trustees or other successor in title and where applicable liquidators, receivers and administrators.
6. In these Terms and Conditions, the singular shall include the plural, words importing persons shall apply to corporations, and the masculine shall include feminine and neuter.
7. Where more than one Customer completes this agreement each shall be liable jointly and severally.
8. Any Orders and request for Goods and Services placed by the Customer with the Supplier will be considered valid when placing the order by telephone.
9. Any written tender/quotation given by the Supplier shall expire thirty (30) days after the date of the written tender/quotation.
10. All prices are based on taxes and statutory charges current at the time of tender/quotation, should these vary during the period from date of tender/quotation to the date of invoice the difference will become the responsibility of the Customer and the Customer will be invoiced for the extra charge by the Supplier.
11. The price quoted on the written tender covers all installation work listed in the tender. The Customer will be additional charged for work that is not specified in the tender.
12. A contract for the supply of Goods and Services is made when the Customer communicates by writing or by conduct to the Supplier its acceptance of the written tender/quotation or verbal quotation.
PLACEMENT OF ORDERS
13. The Customer will ensure when placing orders that there is sufficient information to enable the Supplier to execute the Order and the Supplier shall ensure it requests any information it may require from the Customer.
14. The Supplier takes no responsibility if the specifications given by the Customer are wrong or inaccurate and the Customer will be liable for the expenses incurred by the Supplier for any work required to rectify the Goods and Services.
15. The Supplier would only be liable for the costs or replacement and rectification, if its own specification or drawings are wrong or inaccurate or if its services were not performed to a reasonable standard.
16. The Customer is responsible to ensure that the Supplier is made aware of any special requirements pertaining to the order. The Supplier takes no responsibility and will not be liable for any damage or costs resulting in the Goods being faulty as a consequence of insufficient information provided by the Customer.
17. All prices for Goods and Services are based on the whole of the work being carried out as one continuous project devoid of delay in the provision by third parties of Goods, material, Services or Structures.
GOODS AND SERVICES
18. The Supplier shall supply or otherwise provide the Goods and Services within the time frame specified in the written tender/ quotation.
19. Unless otherwise agreed in writing, all works to be carried out by the Supplier will be performed during normal business hours of 8:00 am to 4:30 pm.
20. Subject to complying with its obligations under this agreement, the Supplier shall exercise its independent discretion as to the most appropriate and effective manner of providing the Goods and Services and satisfying the Customer’s expectations of those Goods and Services, provided that the supplier act at all times in a manner consistent with the highest professional and industry standard.
21. The Supplier takes no responsibility for representations made in relations to the Goods or in any delay in delivery of the Goods made by a third party or third party manufacturer.
22. The Customer shall, where relevant, ensure that the Supplier has full and safe access to the Customer’s premises and any necessary equipment and materials.
23. The Customer will be additional charged for the removal or isolation of any hazardous material (asbestos etc) that has not been specified in the written tender.
24. The Goods and Services to be provided under any order shall not include those tasks not included in or specifically excluded from the written tender/quotation unless the Supplier has agreed in writing to the contrary.
25. The Supplier may agree to provide, on request in writing from the Customer, additional Goods and Services not included in or specifically excluded from the written tender/quotation. In the event, the Supplier shall be entitled to make a further charge for additional Goods and Services provided.
LIABILITY OF THE SUPPLIER
26. The Supplier will not be liable for any loss incurred as a result of delay, or failure to make any supply of Goods or Services or to observe any of these conditions due to an event of force majeure, being any cause or circumstances beyond the Supplier’s reasonable control.
27. All Goods sold are subject to the applicable manufacturer’s warranty, guarantee and trading terms. The Supplier provided no additional warranties or guarantees on Goods sold.
28. The Customer acknowledges and agrees that any warranty or guarantee claims must be made against the manufacturer of the Goods.
29. The Customer further acknowledges that the matters set out in the definitions above are a true description of the purpose for which the Goods purchased herby are to be applied and that the Customer may forfeit any rights if any he may have against the Supplier if the Goods are applied for any other use
30. Except as provided in these conditions all express and implied warranties, guarantees and conditions under Statute or general law as to the merchantability, description, quality, suitability or fitness of the Goods and Services for any purpose or as to design, assembly, installation, material or workmanship or otherwise expressly excluded.
31. Customer is to pay invoice to Supplier for completed works, unless otherwise agreed to in writing; the Customer shall pay the price of the Goods from the date of the invoice (“the due date”).
32. Any extension of credit shall be at the absolute discretion of the Supplier.
33. The Customer agrees that the Supplier shall be entitled to use the services of a credit agency from time to time to obtain information concerning the Customer (and where the Customer is a company, its Directors) in order top assess the Customers credit worthiness.
34. Subject to Clause 41, If the Supplier is not paid in full for the Goods and Services by the due date, the Supplier reserves the right to forward the Customers outstanding balance account to a debt collection agency for further action. The Customer acknowledges and agrees that:
a) After the Due Date, the Outstanding Balance shall include, but not be limited to, all applicable fees and charges under this agreement;
b) The Supplier may incur commission costs charged by the debt recovery agency on the Aggregate Sum (as defined in sub-clause (c))
at an applicable rate agreed between the Supplier and the debt recovery agency (“Commission Rate”);
c) The Customer will be responsible for payment of the aggregate of the Outstanding Balance on the Customer’s account and all commission costs incurred by the Supplier (“Aggregate Sum”), the intention of the parties being that the supplier will receive the whole outstanding balance after the deduction of commission costs and other expenses;
d) The Aggregate Sum will be calculated as follows:
Aggregate Sum = Outstanding Balance
(100 – Commission Rate)
e) The Aggregate Sum may be referred to a debt collection agency for further action;
35. The Aggregate Sum will be payable as a liquidated debt on demand;
36. The Customer is also responsible for all expenses in relation to the collection of the aggregate sum including, but not limited to, all charges and fees, legal costs on an indemnity basis, and disbursements.
GOODS AND SERVICES TAX
A. GST refers to goods and services tax under the Goods and Services Act 1999 (“GST Act”) and terms used herein have the meanings contained within the GST Act.
B. It is hereby agreed between the Customer and the Supplier that the consideration for the Supplier expressed in this agreement is exclusive of the Supplier’s liability of GST.
C. On sale:
(i) The Customer will pay to the Supplier, in addition to the total purchase price, the amount payable by the Supplier of GST on the taxable supply made by the Supplier under this agreement;
(ii) The Supplier shall deliver to the Customer a Tax Invoice for the supply in a form which complies with the GST Act and Regulations.
DISHONOUR OF CHEQUE
38. If any cheque issued by the Customer or by any third party in payment for goods is dishonoured:
(a) The Supplier may refuse to supply any further goods (whether or not the Supplier is to make any further deliveries of the goods), until satisfactory payment is received in full;
(b) The Supplier is entitled to treat the dishonour of the Customer’s cheque as a repudiation of this agreement and to elect between terminating this agreement or affirming this agreement, and in each case claiming and recovering compensation for loss or damage suffered as a result of the dishonoured cheque.
RESERVATION OF TITLE
39. The legal and equitable title in the Goods shall remain with the Supplier until full payment for all Goods and Services supplied by the Supplier to the Customer is made. Pending such payment, the Customer shall hold the Goods as bailee for the Supplier and shall return the Goods to the Supplier if so requested unless payment is being withheld due to a genuine dispute in which case title shall transfer upon notification of the dispute to the supplier.
40. The Supplier reserves the following rights in relation to the Goods until the accounts owed to the Supplier by the Customer are fully paid:
(A) Ownership of the Goods:
(i) To enter the Customer’s premises (or the premises of any associated Company or Agent where the Goods are located) without liability for trespass or any resulting damage in retaking possession of the goods; and
(ii) To keep or resell any Goods repossessed pursuant to above. If the Goods are resold, or Products manufactured using the Goods are sold, by the Customer, the Customer shall hold such part of the proceeds of any such sale as represents the invoiced price of the Goods sold or used in the manufacture of the Goods sold in a separate identifiable account as the beneficial property of the Supplier and shall pay such amount to the Supplier upon request. Notwithstanding the provision above the Supplier shall be entitled to maintain an action against the Customer for the Purchase price and the risk of the Goods shall pass to the Customer upon delivery.
(B) This agreement is not to be amended except in writing signed by each the parties.
41. The Customer shall have no right of set-off in any suit, claim or proceeding brought by the Supplier against the Customer for default in payment.
42. A party does not waive a right simply because it fails to exercise the right, delays exercising the right or only exercises part of the right. A party waives a right under these Terms and conditions only if it does so in writing.
43. A waiver of one breach of a term of these conditions does not operate as a waiver of another breach of the same terms or any other term, nor does it invalidate these Terms and Conditions.
44. If a provision in these Terms and Conditions is wholly or partly invalid or unenforceable in any jurisdiction, that provision or that part of it that is invalid or unenforceable must, to the extent in that jurisdiction, be treated as deleted from these conditions. This does not affect the validity of enforceability of remaining provisions in that jurisdiction, or of the deleted provision in any jurisdiction.
45. No statement or recommendation made or advice, supervision or assistance given by the Supplier, its employees, agent or representatives whether oral or written must be construed as or constitutes a warranty or representation by the Supplier or waiver of any clause in these conditions.
46. Nothing in these conditions is intended to exclude, restrict or modify rights which the Customer may have under the Trade Practices Act 1974 or any other legislation which may not be excluded, restricted or modified by agreement.
47. The contract is personal to the Customer and the Customer shall not assign its rights or delegate its performance hereunder without the consent in writing of the Supplier. The Supplier may in its discretion and with notification to the Customer, subcontract the whole or any part of the services to be rendered but takes full responsibility and liability for the subcontractor and its services as if it had provided the services itself.
48. The Customer is responsible to effect whatever insurance cover he requires at his own expense. The Supplier must take out adequate insurance to cover it’s obligations under these terms and conditions and must provide the customer with evidence of such insurance when requested
49. Without prejudice to any other rights the Supplier might have, the Customer shall indemnify the Supplier for any loss, damage or expense incurred by the Supplier, should the Customer breach any term of the contract or cancel any order or part thereof after acceptance by the Supplier.
50. The Supplier must make good any damage caused during installation or servicing
51. The Supplier shall clean up after providing services (including after servicing or installation)
52. If, after having the necessary information available to it, the Supplier makes a mistake as to the choice of size, location and position of any air conditioning or other unit, the supplier must relocate, reposition or upgrade the unit at the Suppliers Cost (other than any cost differential of the purchase price of a more expensive unit)
AGREEMENT CONSTITUTE WHOLE AGREEMENT
53. The conditions set out in this agreement constitute the whole agreement made between the Customer and the Supplier and no officer, servant or agent of the Supplier has any authority to vary, omit or add any terms or conditions to it.
54. All dispute relating to or arising out of this Agreement:
(a) Shall be governed by the law of Victoria.
(b) Shall be resolved by the Victorian Courts with the appropriate jurisdiction.