GENERAL TERMS & CONDITIONS OF TRADE
All dealings between the Customer and SOUTHCOAST REFRIGERATION are subject to these terms and conditions to the extent permitted by law.
1. Definitions
1.1 “SOUTHCOAST REFRIGERATION” means The Humiscope Group Investments Pty Ltd ACN 166 129 308T/A Bay Air Airconditioning Gold Coast, Southcoast Refrigeration, The or Calroy Refrigeration its successors and assigns or any person acting on behalf of and with the authority of The Humiscope Group Investments Pty Ltd.
1.2 “Customer” means the Customer (or any person acting on behalf of and with the authority of the Customer) named in any application or as described on any quotation, work authorisation or other form as provided by SOUTHCOAST REFRIGERATION to the Customer and all successors and assigns.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 “GST” has the same meaning as in the A New tax System (Goods and Services Tax) Act 1999 ( Cth)
1.5 “Goods” means goods and equipment supplied by SOUTHCOAST REFRIGERATION GROUP to the Customer (and where the context so permits includes any supply of Services).
1.6 “Services” means all services supplied by SOUTHCOAST REFRIGERATION GROUP to the Customer and includes any advice or recommendations and any supply and installation of Goods.
1.7 “Price” means the price payable for the Goods or Services as agreed between SOUTHCOAST REFRIGERATION GROUP and the Customer in accordance with these terms and conditions.
2. The Commonwealth Competition and Consumer Act 2010 (“CCA”) , Fair Trading Acts (“FTA”) and legislation
2.1 The CCA and FTA provide consumers with guarantees and rights and nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the CCA , the FTA or any relevant legislation in each of the States and Territories of Australia, except to the extent legally permitted by those Acts.
3. Acceptance
3.1 Any instructions received by SOUTHCOAST REFRIGERATION from the Customer for the supply of Goods, the Customer’s acceptance of Goods or Services supplied by SOUTHCOAST REFRIGERATION and acceptance by electronic means are acceptance of these terms and conditions and SOUTHCOAST REFRIGERATION and the Customer consents to communication and execution by electronic means.
3.2 Where more than one Customer has entered into this agreement, the Customers are jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended by written agreement.
3.4 The Customer acknowledges that for the commencement of the Services or delivery of Goods the Customer must supply a signed acceptance of SOUTHCOAST REFRIGERATION’s written application, quote, work authorisation, invoice or purchase order.
4. Price And Payment
4.1 The Price is as indicated on invoices provided by SOUTHCOAST REFRIGERATION to the Customer in respect of Goods supplied or Services rendered subject to SOUTHCOAST REFRIGERATION’s quoted Price which is binding upon SOUTHCOAST REFRIGERATION provided that the Customer accepts SOUTHCOAST REFRIGERATION’s quotation in writing within thirty (30) days.
4.2 A deposit is payable prior to delivery if included in the invoice or quotation.
4.3 Payment is due in accordance with the invoice or quotation which may include progress payments and if not specified then 7 days after the date of the invoice by cash, bank cheque, electronic funds transfer or credit card (subject to the addition of a surcharge of 2.5 % of the Price) to SOUTHCOAST REFRIGERATION’s nominated account and interest at 1% per month may be charged on overdue amounts until paid.
4.4 GST , delivery costs, any taxes and duties that may be applicable must be added to the Price except when they are expressly included in the Price.
5. Delivery Of Goods and Services
5.1 Delivery of the Goods and Services takes place when the Customer takes possession of the Goods in accordance with the quotation or invoice.
5.2 The costs of delivery are payable as included in the invoice or quotation and if not specified are in addition to the Price payable on delivery.
5.3 The Customer must make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then SOUTHCOAST REFRIGERATION may charge a reasonable fee for redelivery.
5.4 SOUTHCOAST REFRIGERATION is not liable for any loss or damage whatever due to failure by SOUTHCOAST REFRIGERATION to deliver the Goods or supply the Services promptly or at all, where due to circumstances beyond the control of SOUTHCOAST REFRIGERATION.
6. Risk
6.1 All risk for the Goods passes to the Customer on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, SOUTHCOAST REFRIGERATION is entitled to receive all insurance proceeds payable for the Goods.
6.3 To the fullest extent permitted by law any claim by the Customer is limited to repair, replacement or refund.
7. Title
7.1 Ownership of the Goods does not pass until the Customer has paid SOUTHCOAST REFRIGERATION the Price and all amounts owing for the particular Goods, the Customer is a mere bailee of the Goods, holds any proceeds from disposal on trust for SOUTHCOAST REFRIGERATION and SOUTHCOAST REFRIGERATION may enter the Customer’s premises and take possession of the Goods.
7.2 The Customer must not deal with, charge or give any interest in the Goods or any end product until the Customer has paid SOUTHCOAST REFRIGERATION the Price and all amounts owing for the particular Goods.
8. Personal Property Securities Act 2009 (“PPSA”)
8.1 In this clause the terms financing statement, financing change statement, security agreement, and security interest have the meanings defined by the PPSA.
8.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and create a security interest in all Goods that have previously been supplied and that will be supplied in the future by SOUTHCOAST REFRIGERATION to the Customer. For the avoidance of any doubt, the Customer agrees and acknowledges that the security interest created under this agreement is a Purchase Money Security Interest (“PMSI”) as defined in the PPSA, in goods supplied and is a continuing and subsisting security interest attaching to all Goods now or in the future supplied to the Customer by SOUTHCOAST REFRIGERATION.
8.3 The Customer must 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 SOUTHCOAST REFRIGERATION may reasonably require to register a financing statement or financing change statement or any other document in relation to a security interest on the Personal Property Securities Register and must 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 SOUTHCOAST REFRIGERATION.
8.4 SOUTHCOAST REFRIGERATION and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
8.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d), 132(4) and 135 of the PPSA.
8.6 The Customer waives their rights as a grantor or a debtor under sections 142 and 143 of the PPSA.
8.7 Unless otherwise agreed to in writing by SOUTHCOAST REFRIGERATION GROUP, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
8.8 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 of the PPSA.
9 Defects and Consents
9.1 The Customer must inspect the Goods on delivery and shall within two (2) days of delivery notify SOUTHCOAST REFRIGERATION of any alleged defect, or failure to comply with the quotation. The Customer shall afford SOUTHCOAST REFRIGERATION an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. For defective Goods, which SOUTHCOAST REFRIGERATION has agreed in writing that the Customer is entitled to reject, SOUTHCOAST REFRIGERATION’s liability is limited to either (at SOUTHCOAST REFRIGERATION’s discretion) replacing the Goods or repairing the Goodsexcept where the Customer has acquired Goods as a consumer within the meaning of the CCA or FTA, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9.2 Except as expressly set out in these terms and conditions SOUTHCOAST REFRIGERATION makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods or Services. SOUTHCOAST REFRIGERATION’s liability in respect of these warranties is limited to the fullest extent permitted by law.
9.3 The Customer must obtain any necessary consents and approvals for the installation of the Goods and Services.
10 Warranty
10.1 Subject to the conditions of warranty set out in this clauseSOUTHCOAST REFRIGERATION warrants that if any defect in Goods manufactured by, Services or any workmanship of SOUTHCOAST REFRIGERATION becomes apparent and is reported to SOUTHCOAST REFRIGERATION within twelve (12) months of the date of delivery then SOUTHCOAST REFRIGERATION may replace, repair or remedy the workmanship or refund.
10.2 The warranty shall not cover any defect or damage caused by the Customer failing to properly maintain any Goods, follow any instructions or guidelines or use other than for use supplied and fair wear and tear, accident or act of God. The warranty shall cease and SOUTHCOAST REFRIGERATION shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without SOUTHCOAST REFRIGERATION’s consent
10.3 For Goods not manufactured by SOUTHCOAST REFRIGERATION, the warranty shall be the current warranty provided by the manufacturer of the Goods. SOUTHCOAST REFRIGERATION is not bound by nor responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
11. Default & Consequences of Default
11.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of one and one half percent (1.5%) per calendar month and such interest shall compound monthly at such a rate before and after any judgment.
11.2 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify SOUTHCOAST REFRIGERATION from and against all costs and disbursements incurred by SOUTHCOAST REFRIGERATION in pursuing the debt including legal costs on a solicitor and own Customer basis and SOUTHCOAST REFRIGERATION’s collection agency costs.
11.3 Without prejudice to any other remedies SOUTHCOAST REFRIGERATION may have, if at any time the Customer is in breach of any obligation (including those relating to payment), SOUTHCOAST REFRIGERATION may sue for damages, loss of profits, terminate or SOUTHCOAST REFRIGERATION may suspend or terminate the supply of Goods and Services to the Customer and any of its other obligations under the terms and conditions. SOUTHCOAST REFRIGERATION will not be liable to the Customer for any loss or damage the Customer suffers because SOUTHCOAST REFRIGERATION has exercised its rights under this clause.
11.4 Without prejudice to SOUTHCOAST REFRIGERATION’s other remedies at law SOUTHCOAST REFRIGERATION shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to SOUTHCOAST REFRIGERATION shall, whether or not due for payment, become immediately payable in the event that:
11.4.1 any money payable to SOUTHCOAST REFRIGERATION GROUP becomes overdue, or in SOUTHCOAST REFRIGERATION GROUP’s opinion the Customer will be unable to meet its payments as they fall due; or
11.4.2 the Customer 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
11.4.3 a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
12. Security And Charge
12.1 Despite anything to the contrary in these terms and conditions or any other rights which SOUTHCOAST REFRIGERATION may have howsoever:
12.2 where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other assets capable of being charged, both the Customer and/or the Guarantor hereby mortgage and charge all of their joint and/or several interest in the said land, realty or any other asset to SOUTHCOAST REFRIGERATION or SOUTHCOAST REFRIGERATION’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that SOUTHCOAST REFRIGERATION (or SOUTHCOAST REFRIGERATION’s nominee) shall be entitled to lodge where appropriate a mortgage or caveat, which caveat shall be withdrawn and mortgage released once all payments and other monetary obligations payable have been met.
12.3 should SOUTHCOAST REFRIGERATION elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify SOUTHCOAST REFRIGERATION from and against all SOUTHCOAST REFRIGERATION’s costs and disbursements including legal costs on a solicitor and own Customer basis.
12.4 the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint SOUTHCOAST REFRIGERATION or SOUTHCOAST REFRIGERATION’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause.
13. Privacy Act 1988
13.1 The Customer agrees and consents to SOUTHCOAST REFRIGERATION obtaining from a credit reporting agency a credit report containing credit information about the Customer and exchanging information about the Customer with a credit reporting agency and credit provider named as trade referees for purposes of assessing credit applications credit worthiness, notification of defaults and to collect overdue payment.
13.2 The Customer consents to personal credit information, commercial and consumer information being collected, used , disclosed and retained including relating to identity, solvency or credit history for the supply of Goods and Services, marketing and operation of any credit account and SOUTHCOAST REFRIGERATION may refuse to grant or withdraw credit based on this information.
13.3 SOUTHCOAST REFRIGERATION will comply with its legal obligations in respect of the Privacy Act 1988.
14. Intellectual Property
14.1 All intellectual property of SOUTHCOAST REFRIGERATION remains the property of SOUTHCOAST REFRIGERATION and any intellectual property in the design, creation or delivery of the Goods or Services remains the property of SOUTHCOAST REFRIGERATION.
15. General
15.1 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.
15.2 These terms and conditions and any contract to which they apply shall be governed bythe laws of Queensland and are subject to the jurisdiction of the courts of
15.3 SOUTHCOAST REFRIGERATION shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by SOUTHCOAST REFRIGERATION of these terms and conditions.
15.4 In the event of any breach of this contract by SOUTHCOAST REFRIGERATION the remedies of the Customer are limited to damages which under no circumstances shall exceed the Price of the Goods or Services.
15.5 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 SOUTHCOAST REFRIGERATION.
15.6 SOUTHCOAST REFRIGERATION may assign, license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
15.7 Neither party is liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
15.8 The failure by SOUTHCOAST REFRIGERATION to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect SOUTHCOAST REFRIGERATION’s right to subsequently enforce that provision.
The accepted quotation, application, work authorisation, invoice or purchase order and these terms and conditions constitute the entire agreement between the parties and all previous negotiations, understandings or representations are merged in this Agreement and of no effect.
16. Guarantee & Indemnity
16.1 SOUTHCOAST REFRIGERATION may require another individual or legal entity as Guarantor to guarantee the Customer’s obligations, rights and debts under this Agreement on terms required by SOUTHCOAST REFRIGERATION.
16.2 Each party signing any Guarantee and Indemnity attached or under this Agreement:
16.2.1 Confirms its request to SOUTHCOAST REFRIGERATION to grant this Agreement;
16.2.2 Agrees to be bound as a party to the Agreement; and
16.2.3 Accepts and undertakes to all obligations of the Customer in the Agreement.
16.3 If there are two or more Guarantors, each Guarantor is liable for the obligations individually and together with each other Guarantor.