Terms and Conditions of Trade
Hunter Lake Air Conditioning
ABN 18 629 693 77
1.1 “HLA” means Hunter Lake Air Conditioning, its successors and assigns or any person acting on behalf of and with the authority of Hunter Lake Air Conditioning.
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 HLA 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 HLA and the Client in accordance with clause 4 below.
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 HLA’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and HLA.
3. Change in Control
3.1 The Client shall give HLA 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 HLA as a result of the Client’s failure to comply with this clause.
4. Price and Payment
4.1 At HLA’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by HLA to the Client; or
(b) HLA’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 HLA reserves the right to change the Price if a variation to HLA’s quotation is requested. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation due to unforeseen circumstances, or as a result of increases to HLA in the cost of materials and labour) will be charged for on the basis of HLA’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 At HLA’s sole discretion a non-refundable deposit may be required.
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 HLA, which may be:
(a) on delivery of the Goods;
(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 thirty (30) days following the date of any invoice given to the Client by HLA.
4.5 Payment may be made by, direct deposit via electronic/on-line banking, bank cheque, paypal, or by any other method as agreed to between the Client and HLA.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to HLA an amount equal to any GST HLA must pay for any supply by HLA 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:
(a) the Client or the Client’s nominated carrier takes possession of the Goods at HLA’s address; or
(b) HLA (or HLA’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
5.2 At HLA’s sole discretion the cost of delivery is either included in the Price or is in addition to 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 HLA shall be entitled to charge a reasonable fee for redelivery and/or storage.
5.4 Any time or date given by HLA to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and HLA will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
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, HLA is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by HLA is sufficient evidence of HLA’s rights to receive the insurance proceeds without the need for any person dealing with HLA to make further enquiries.
6.3 If the Client requests HLA to leave Goods outside HLA’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.
7.1 The Client shall ensure that HLA has clear and free access to the work site at all times to enable them to undertake the works. HLA 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 due to the negligence of HLA.
8. Underground Locations
8.1 Prior to HLA commencing any work should the client deem necessary the Client must advise HLA of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client 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.
8.2 Whilst HLA will take all care to avoid damage to any underground services the Client agrees to indemnify HLA in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 8.1.
9.1 HLA and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid HLA all amounts owing to HLA; and
(b) the Client has met all of its other obligations to HLA.
9.2 Receipt by HLA 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 HLA on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for HLA and must pay to HLA 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 HLA and must pay or deliver the proceeds to HLA 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 HLA and must sell, dispose of or return the resulting product to HLA as it so directs.
(e) the Client irrevocably authorises HLA to enter any premises where HLA believes the Goods are kept and recover possession of the Goods.
(f) HLA 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 HLA.
(h) HLA may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
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 HLA 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 HLA 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 HLA 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, HLA makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. HLA’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, HLA’s liability is limited to the extent permitted by section 64A of Schedule 2.
12.6 If HLA is required to replace the Goods under this clause or the CCA, but is unable to do so, HLA 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, HLA’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 HLA in HLA’s sole discretion;
(b) limited to any warranty to which HLA is entitled, if HLA did not manufacture the Goods;
(c) otherwise negated absolutely.
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) HLA has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); 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, HLA 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 HLA;
(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 HLA 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 HLA 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 HLA may in its absolute discretion accept non-defective Goods for return in which case HLA may require the Client to pay handling fees of up to fifteen percent (15%) of the value of the returned Goods plus any freight costs.
12.12 Notwithstanding anything contained in this clause if HLA is required by a law to accept a return then HLA will only accept a return on the conditions imposed by that law.
13. Intellectual Property
13.1 Where HLA has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of HLA.
13.2 The Client warrants that all designs, specifications or instructions given to HLA will not cause HLA to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify HLA against any action taken by a third party against HLA in respect of any such infringement.
13.3 The Client agrees that HLA may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which HLA 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%) per calendar month (and at HLA’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 HLA any money the Client shall indemnify HLA from and against all costs and disbursements incurred by HLA in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, HLA’s collection agency costs, and bank dishonour fees).
14.3 Without prejudice to any other remedies HLA may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions HLA may suspend or terminate the supply of Goods to the Client. HLA will not be liable to the Client for any loss or damage the Client suffers because HLA has exercised its rights under this clause.
14.4 Without prejudice to HLA’s other remedies at law HLA shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to HLA shall, whether or not due for payment, become immediately payable if:
(a) any money payable to HLA becomes overdue, or in HLA’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. Compliance with Laws
15.1 The Client and HLA shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the works.
15.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the works.
15.3 The Client agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
16.1 HLA 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 HLA shall repay to the Client any money paid by the Client for the Goods. HLA shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.2 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 HLA as a direct result of the cancellation (including, but not limited to, any loss of profits).
16.3 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.
17. Privacy Act 1988
17.1 The Client agrees for HLA to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by HLA.
17.2 The Client agrees that HLA 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 reporting agency 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.
17.3 The Client consents to HLA being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
17.4 The Client agrees that personal credit information provided may be used and retained by HLA for the following purposes (and for other purposes as shall be agreed between the Client and HLA or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by HLA, 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.
17.5 HLA 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.
17.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, 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;
(c) advice that HLA is a current credit provider to the Client;
(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 HLA, 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 HLA has been paid or otherwise discharged.
18. Unpaid HLA’s Rights
18.1 Where the Client has left any item with HLA for repair, modification, exchange or for HLA to perform any other service in relation to the item and HLA has not received or been tendered the whole of any moneys owing to it by the Client, HLA shall have, until all moneys owing to HLA 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.
18.2 The lien of HLA shall continue despite the commencement of proceedings, or judgment for any moneys owing to HLA having been obtained against the Client.
19.1 The failure by HLA to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect HLA’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 HLA has its principal place of business, and are subject to the jurisdiction of the courts in that state.
19.3 Subject to clause 12 HLA 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 HLA of these terms and conditions (alternatively HLA’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 HLA nor to withhold payment of any invoice because part of that invoice is in dispute.
19.5 HLA 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 HLA may amend these terms and conditions at any time. If HLA makes a change to these terms and conditions, then that change will take effect from the date on which HLA notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for HLA 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.