Air Conditioning Maintenance Care Program – Terms & Conditions
1.1. The Supplier is Daniel John Holowaty ATF The A Grade Electrical Family Trust & Aaron Dallas Hockey ATF The Hockey Family Trust, trading as A Grade Trade Services, A Grade Electrical, A Grade Air, A Grade Lighting & A Grade Solar.
(ABN: 83 368 809 835) of Unit 9/20 Kenworth Place, Brendale, Queensland 4500.
1.2. The Customer is the party or any person acting on behalf of and with the authority of the Customer that the Order is provided for.
1.3. The Guarantor is the person(s), or entity, who agrees to be liable for the debts of the Customer.
1.4. The Order shall be defined as any request for the provision of Goods and/or Services by the Customer with the Supplier which has been accepted by the Supplier.
1.5. The Goods are the parts and or related products provided by the Supplier.
1.6. The Services are all the delivery and/or supply of Goods, installation and repairs done by the Supplier, including any advice or recommendations.
1.7. The Premises are the land or land and buildings where the Services are to be carried out.
1.8. The Price is the amount invoiced for Goods supplied or Services provided.
1.9. Indirect, Special or Consequential loss or damage includes i) any loss of income profit or business; ii) any loss of goodwill or reputation; iii) any loss of value of intellectual property.
1.10. Invoices include invoices for Goods supplied or for Services provided, or both.
1.11. GST refers to Goods and Services Tax under the Goods and Services Act 1999 (“GST Act”) and the terms used herein have meanings contained within the GST Act.
1.12. Major failure refers to Major failure as defined under the Competition and Consumer Act 2010 and the Fair Trading Acts in each of the States and Territories of Australia.
1.13. Security Interest as defined in Section 12 of the Personal Property Securities Act 2009 (Cth).
1.14. “Security Agreement”, “Commingled Goods”, “Collateral”, “Financing Statement”, “Financing Change Statement” is defined under Section 10 of the Personal Property Securities Act 2009 (Cth).
2.1. These Terms and Conditions together with the Supplier’s written or verbal quotation forms this Agreement and should be read in conjunction with the Supplier’s Credit Application Form.
2.2. Any Order requested by the Customer is deemed to be an Order incorporating these Terms and Conditions and may not be varied unless expressly agreed to by the parties in writing. In the event that an inconsistency exists and/or arises between these terms and the Order it is acknowledged between the parties that these Terms and Conditions will prevail.
2.3. No subsequent correspondence or document or discussion shall modify or otherwise vary these Terms and Conditions unless such variation is in writing and signed by the Supplier.
2.4. The Terms and Conditions are binding on the Customer, his heirs, assignees, executors, trustees and where applicable, any liquidator, receiver or administrator.
2.5. In these Terms and Conditions, the singular shall include the plural, the masculine shall include feminine and neuter and words importing persons shall apply to corporations.
2.6. Where more than one Customer completes this Agreement each shall be liable jointly and severally.
2.7. 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 and the offending provision shall be deemed as severed from these Terms and Conditions.
2.8. The Supplier may license or subcontract all or any part of its rights and obligations without the Customer’s consent but the Supplier acknowledges that it remains at all times liable to the Customer.
2.9. The failure by the parties to enforce any provision of these Terms and Conditions shall not be treated as a waiver of that provision, nor shall it affect the parties’ right to subsequently enforce that provision.
2.10. The Customer acknowledges that the Supplier may detail these Terms and Conditions on its website. In this event, the Terms and Conditions on the Supplier’s website shall apply to any future dealings as between the parties and the Customer is deemed to have notice of any such Terms and Conditions and/or amendments.
2.11. The Customer covenants that he is either the owner of the Premises or is acting with the authority of the Owner.
3. PLACEMENT OF ORDERS
3.1. Orders placed by the Customer with the Supplier will be considered valid when placing the Order by telephone and/or in writing and/or in person.
3.2. Any written Quotation given by the Supplier shall expire thirty (30) days after the date of the written quotation. Quotations may also be provided to the Customer by verbal communication over the telephone.
3.3. All prices are based on taxes and statutory charges current at the time of the Quotation. Should these vary during the period from the date of the Quotation to the date of the invoice, the difference will become the responsibility of the Customer and the Customer will be invoiced for the extra charge by the Supplier.
4.1. GST will be charged on the Goods and Services provided by the Supplier that attract GST at the applicable rate.
4.2. The Supplier reserves the right to change the Price to the Supplier’s Order in the event of a variation which was previously unknown or unforeseen by the parties at the time the Order was placed, and notice will be provided in writing or by verbal communication on site or over the telephone by the Supplier within a reasonable time.
4.3. At the Supplier’s sole discretion the Price shall be either as detailed on invoices provided by the Supplier to the Customer in respect of Goods and or Services supplied or the Supplier’s quoted Price as for the Order (subject to clause 4.2).
5. SUPPLY AND DELIVERY OF GOODS
5.1. At any time before payment is made by the Customer, the Supplier reserves their right to decline requests for any Goods requested by the Customer, cancel or postpone the delivery of Goods at their discretion.
5.2. Delivery of the Goods shall be deemed to be complete when the Goods are collected by the Customer or are delivered to the Customer or to the carrier as nominated by the Supplier and/or Customer.
5.3. If the Customer fails to make all arrangements necessary to take delivery of the Goods the Customer shall, at the discretion of the Supplier, be liable for a Non Delivery Fee charged the Supplier’s prevailing rate and the Supplier shall be entitled, also at its discretion, to charge a reasonable fee for redelivery and storage.
5.4. Unless specified by the Supplier to the contrary in the Order, the Supplier does not warrant that it will be capable of providing the Goods at specific times requested by the Customer during the term of this Agreement.
5.5. Subject to otherwise complying with its obligations under this Agreement, the Supplier shall exercise its independent discretion as to its most appropriate and effective manner of providing the Goods and of satisfying the Customer’s expectations of those Goods.
5.6. In the discharge of its duties, the Supplier shall comply with all reasonable directions of the Customer as to the nature and scope of the Goods to be provided.
5.7. Nothing in the above clause shall affect the Supplier’s right to exercise its own judgment and to utilise its skills as it considers most appropriate in order to achieve compliance with the said resolutions, regulations and directions or otherwise with its obligations under this Agreement.
5.8. The Supplier may agree to provide, on request from the Customer, additional Goods not included or specifically excluded in the Quotation/Order. In this event, the Supplier shall be entitled to make an additional charge. Additional Goods includes, but is not limited to, alterations, amendments, and any additional visits by the Supplier after provision of the Goods
at the request of the Customer.
6. PROVISION OF SERVICES
6.1. At any time before payment is made by the Customer, the Supplier reserves their right to decline requests for any Services requested by the Customer, cancel or postpone appointments at their discretion.
6.2. At the sole discretion of the Supplier, the Supplier may charge an attendance fee at the prevailing rate for any appointments made by the parties.
6.3. Unless specified by the Supplier to the contrary in the Order, the Supplier does not warrant that it will be capable of providing the Services at specific times requested by the Customer during the term of this Agreement.
6.4. Subject to otherwise complying with its obligations under this Agreement, the Supplier shall exercise its independent discretion as to its most appropriate and effective manner of providing the Services and of satisfying the Customer’s expectations of those Services.
6.5. In the discharge of its duties, the Supplier shall comply with all reasonable directions of the Customer as to the nature and scope of the Services provided.
6.6. Nothing in the above clause shall affect the Supplier’s right to exercise its own judgment and to utilise its skills as it considers most appropriate in order to achieve compliance with the said resolutions, regulations and directions or otherwise with its obligations under this Agreement.
6.7. The Supplier may agree to provide, on request from the Customer, additional Services not included or specifically excluded in the Quotation/Order. In this event, the Supplier shall be entitled to make an additional charge. Additional Services includes, but is not limited to, alterations, amendments, and any additional visits by the Supplier after provision of
the Goods and/or or Services at the request of the Customer.
6.8. The Customer grants full access to the Supplier its servants and agents to the Premises to enable it to carry out the Services.
6.9. The Customer is responsible to obtain all necessary permits and to mark out the site at the Premises for the provision of the Services.
6.10. The Customer is responsible for ensuring that the Goods are secured at the Premises and warrants to be responsible for any loss, damage or theft of the Goods delivered by the Supplier to the Premises.
7.1. Non-Account Customers must make the payment to the Supplier on the first day of each month. This payment is calculated by dividing the full year maintenance program cost by twelve to work out the monthly payment to be deducted automatically from the Customer’s credit card (VISA or Mastercard). This payment will be automatically deducted from the Customer’s nominated credit card by the Supplier via NAB Transact. The Customer must provide full credit card details to the Supplier and must update the Supplier with any changes to the nominated card’s details. This notification must occur within seven days of a change of account details. If the credit card deduction is dishonoured for any reason, then the Supplier will contact the Customer by telephone or in writing requesting immediate payment via another credit card. This new credit card number will become the account for the regular monthly payments to be deducted from by the Supplier. If the Customer does not have another valid credit card, then an invoice will be issued and payment must be made within 7 days.
7.2. Account Customers must make full payment to the Supplier within 14 days from the date of issue of invoice(s) for the Goods and/or Services.
7.3. Credit will only be granted at the sole discretion of the Supplier and upon submission of a completed Credit Application Form.
7.4. Any credit granted may be revised by the Supplier at any time and at its discretion.
7.5. The Supplier reserves the right to withdraw any credit facility upon any breach by the Customer of these Terms of Conditions or upon the Customer ceasing to trade and/or being subject to any legal proceedings and/or the Customer committing an act of insolvency.
7.6. The Customer agrees that upon such withdrawal, any and all monies owing on the account shall become immediately due and payable.
8. DISHONOUR OF CHEQUE
8.1. If any cheque issued by the Customer or by any third party in payment of the Price is dishonoured:
8.1.1. The Supplier may refuse to supply any further Goods until satisfactory payment is received in full, including bank fees and charges;
8.1.2. 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 from the Customer.
8.1.3. The Customer may be liable for a dishonoured cheque fee of $40.00.
9.1. Invoices issued by the Supplier shall be due and payable within 14 days of the date of issue for Account Customers (“Default Date”) depending on terms agreed with the Supplier.
9.2. If the Supplier does not receive the Outstanding Balance for the Price on or before the Default Date, the Supplier may, without prejudice to any other remedy it may have, forward the Customer’s outstanding account to a debt collection agency for further action. The Customer acknowledges and agrees that:
9.2.1. After the Default Date, the Outstanding Balance shall include, but not be limited to, all applicable fees and charges under this Agreement;
9.2.2. The Supplier may, in its discretion, calculate interest at the rate of 10 per centum (10%) per annum for all monies due by Customer to the Supplier.
9.2.3. In the event of the Customer being in default of his obligation to pay and the overdue account is then referred to a debt collection agency, and/or law firm for collection, the Customer shall be liable for the recovery costs incurred and if the agency charges commission on a contingency basis, the Customer shall be liable to pay as a liquidated debt, the commission payable by the Supplier to the agency, fixed at the rate charged by the agency from time to time as if the agency has achieved one hundred per cent recovery and the following formula shall apply: Commission = (Original Debt x 100) divided by (100 Commission % charged by the agency) (including GST)
9.2.4. In the event the agency is Prushka Fast Debt Recovery the applicable commission rate for the amount unpaid is as detailed on www.prushka.com.au.
9.2.5. In the event where the Supplier or the Supplier’s agency refers the overdue account to a lawyer, the Customer shall also pay as a liquidated debt the charges reasonably made or claimed by the lawyer on the indemnity basis.
10. RISK AND LIABILITY
10.1. The Customer will ensure when placing Orders that there is sufficient information to enable the Supplier to execute the Order.
10.2. The Supplier takes no responsibility if the specifications provided by the Customer are wrong or inaccurate and the Customer will be liable in that event for the expenses incurred by the Supplier for any work required to rectify the Order.
10.3. The Customer is responsible for ensuring that the Supplier is made aware of any special requirements pertaining to the Order and the Supplier relies upon the integrity of the information supplied to it.
10.4. The Supplier takes no responsibility and will not be liable for any damages or costs resulting in the Goods being faulty as a consequence of insufficient information provided by the Customer.
10.5. The Supplier takes no responsibility for representations made in relation to the Goods or any delay in the delivery of the Goods made by a third party or third party manufacturer which was organised by the Customer.
10.6. The Customer acknowledges that the Supplier shall not be liable for and the Customer releases the Supplier from any loss incurred as a result of delay or failure to provide the Goods and/or services or to observe any of these conditions due to an event of force majeure, being any cause or circumstance beyond the Supplier’s reasonable control.
10.7. The Supplier does not represent that it will provide and/or deliver any Goods unless it is included in the Quote.
10.8. Subject to Clause 11.1 and 11.2, the Customer accepts risk in relation to the Goods when the Goods pass to his care and/or control.
11.1. The Supplier warrants that the rights and remedies to the Customer in this Agreement for warranty against defects are in addition to other rights and remedies of the Customer under any applicable Law in relation to the goods and services to which the warranty relates.
11.2. The Supplier does not purport to restrict, modify or exclude any liability that cannot be excluded under the Competition and Consumer Act 2010 or the Fair Trading Acts in each of the States and Territories of Australia.
11.3. The Supplier provides one (1) year of warranty for the provision of its Services.
11.4. The Supplier warrants that if any defect in any Service provided by the Supplier becomes apparent and is reported to the Supplier preferably within fourteen (14) days of the provision of the Services, then the Supplier will (at the Supplier’s sole discretion) remedy the defective Service.
11.5. To the extent permitted by law, the Supplier’s liability in respect of defective services will be limited to:
11.5.1. The resupply of the Service; or
11.5.2. The payment of the cost of having the Services supplied again; or
11.5.3. The refund of the Price paid by the Customer in respect of the Service.
11.6. In respect of all claims the Supplier shall not be liable to compensate the Customer for any reasonable delay in remedying the defective Services or in assessing the Customer’s claim. The Customer warrants that it will use its best endeavours to assist the Supplier with identifying the nature of the defective Service claim.
11.7. The warranty for Goods supplied shall be the current warranty provided by the manufacturer of the Goods. The Supplier shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods. The Supplier will use its best endeavours to assist the Customer with any claim with respect of the Goods.
11.8. The Customer continues to be responsible for all amounts owing to the Supplier in the event that any Goods are supplied on the basis that a manufacturer’s warranty is in place and it subsequently becomes known to the parties that the warranty is void or inapplicable.
11.9. For Goods manufactured by the Supplier, the Supplier warrants: Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replace if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.
11.10. If the Good and Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the Supplier’s liability for a consumer guarantee under the Australian Consumer Law in relation to those Goods and Services is limited to, at the discretion of the Supplier:
11.10.1. The resupply of the Goods and Services;
11.10.2. The payment of the cost of providing the Goods and Services again.
11.11. Subject to clause 11.1 and 11.2 of this Agreement claims for warranty should be made by sending the claim in writing together with proof of purchase to the Supplier’s business address stated in clause 1.1 of this Agreement or by email to the Supplier on email@example.com or contact the Supplier on the Supplier’s business number 07 3205 3139.
11.12. Goods where a claim is made are to be returned to the Supplier or are to be left in the state and condition in which they were delivered until such time as the Supplier or its Agent has inspected the Goods. Such inspection is to be carried out within a reasonable time after notification.
12. RETENTION OF TITLE
12.1. Subject to clause 11.1 and 11.2 the risk in Goods shall pass on delivery and/or supply (including all risks associated with unloading), legal and equitable title in the Goods shall remain with the Supplier until full payment of all Goods supplied by the Supplier to the Customer is made. Pending such payment the Customer:
12.1.1. Shall hold the Goods as Bailee for the Supplier and shall return the Goods to the Supplier if so requested.
12.1.2. Agrees to hold the Goods at the Customer’s own risk and is liable to compensate the Supplier for all loss or damage sustained to the Goods whilst they are in the Customer’s possession.
12.1.3. The Customer should store the Goods separately and in such a manner that it is clearly identified as the property of the Supplier and keep the Goods insured to full replacement value.
12.1.4. The Customer must not allow any person to have or acquire security interest in the Goods whilst the Goods are in the Customer’s possession.
12.1.5. The Customer may sell and/or use the Goods in the ordinary course of business.
12.1.6. If the Goods are resold before all monies are paid to the Supplier, the Customer shall hold the proceeds of sale in a separate identifiable account on trust for the Supplier and promptly account the Supplier for those proceeds in payment of the Price for the Goods.
12.2. The Supplier is authorised to enter the Premises or the premises where the Customer stores the Goods without liability for trespass or any resulting damage in retaking possession of the Goods until the accounts owed to the Supplier by the Customer are fully paid.
12.3. Notwithstanding the provisions above, the Supplier shall be entitled to issue legal proceedings to recover the Price of the Goods.
13. PERSONAL PROPERTY SECURITIES ACT 2009 (CTH) (“PPSA”)
13.1. The Customer acknowledges that these Terms and Conditions will constitute a Security Agreement which creates a security interest in favour of the Supplier over all present and after acquired Goods and/or Services supplied by the Supplier to the Customer to secure the payment of the Price or any other amount owing under this agreement from time to time including future advances.
13.2. The Customer acknowledges that by accepting these Terms and Conditions and by virtue of the retention of title clause as provided for in Clause 13, the security interest is a purchase money security interest (“PMSI”) as defined under Section 14 of the PPSA for all present, after acquired Goods and/or Services including any Commingled Goods.
13.3. The security interest will continue to apply as an interest in the Collateral for the purposes of PPSA with priority over registered or unregistered security interest.
13.4. The Supplier may register the security interest as PMSI on the Personal Property Securities Register (“PPSR”) under the PPSA without providing further notice to the Customer.
13.5. The Customer agrees the Supplier is not required to disclose information pertaining to the Supplier’s security interest to an interest party unless required to do pursuant to PPSA or under the general law.
13.6. The Customer agrees and undertakes:
13.6.1. To sign any documents and/or provide further information reasonably required by the Supplier to register Financing Statement or Financing Change Statement on the PPSR;
13.6.2. To indemnify the Supplier for all expenses and/or costs incurred by the Supplier in registering a Financing Statement or Financing Change Statement on PPSR including the costs of amending, maintaining, releasing and enforcing any security interests in the Goods;
13.6.3. Not to register and/or make a demand to alter a Financing Statement in the Collateral without prior written consent of the Supplier;
13.6.4. To provide the Supplier with 7 days written notice of any change or proposed change to the Customer’s business name, address, contact details or other changes in the Customer’s details registered on the PPSR;
13.6.5. To waive any rights of enforcement under Section 115 of the PPSA for Collateral not used predominantly for personal, domestic or household purposes;
13.6.6. To waive any rights to receive Verification Statement in respect of any Financial Statement or Financing Charge Statement under Section 157 of the PPSA.
14. TERMINATION AND CANCELLATION
14.1. The Supplier may cancel any Order to which these Terms and Conditions apply or cancel delivery of Goods at any time before full payment is made by the Customer by giving written notice to the Customer. The Supplier shall not be liable for any loss or damage or consequential loss or damage whatever arising from such cancellation.
14.2. Without prejudice to the Supplier’s other remedies at law, the Supplier shall be entitled to cancel all or any part of any Order of the Customer which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable in the event that any money payable to the Supplier becomes overdue; or 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 a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
14.3. Any Order cannot be cancelled by the Customer unless expressly agreed to by the Supplier in writing.
14.4. In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by the Supplier (including, but not limited to, any loss of profits) up to the time of cancellation.
14.5. If the Customer places an Order with the Supplier and the Supplier places an Order with a third party Supplier to meet the Customer’s request, the Customer shall be liable for the Price of the Goods ordered if the Customer cancels the Order and the Goods have already been dispatched.
14.6. The Supplier acknowledges that in the event the Supplier contravenes any of the terms of this Agreement, then clauses 14.3, 14.4 and 14.5 will not apply.
15.1. The Customer shall have no right of setoff in any suit, claim or proceeding brought by the Supplier against the Customer for default in payment.
15.2. The Customer acknowledges that the Supplier can produce this clause in bar of any proceeding for setoff.
16.1. The Supplier is not liable to provide any insurance cover in relation to the provision of the Goods and Services. The Customer is responsible to effect whatever insurance cover he requires at his own expense.
17.1. The Customer shall, where relevant, ensure the Supplier has full and safe access to the Premises and any necessary essential services, resources, equipment, materials and information.
17.2. The Customer will be charged an additional fee if the Supplier’s work is interfered with or no proper or safe access is provided to the Supplier.
17.3. The Supplier will not be held responsible for any delay due to inclement weather, failure of the Customer to provide required Items or changes requested to be made by the Customer and/or in any circumstances beyond the Supplier’s reasonable control.
17.4. The Customer shall supply water and/or electricity to the Supplier to carry out the Order at no costs to the Supplier.
18. AGREED USE
18.1. The Customer acknowledges that the Customer may forfeit any rights if any, he may have against the Supplier if the Goods are applied for any other use to which the Goods are not intended for and/or not in accordance with any applicable manual or any alteration to the Goods is carried out other than in accordance with intended alterations and/or the Goods are not repaired by an authorised repairer.
18.2. The Customer further acknowledges sole responsibility for any damage or injury to property or person caused by using the Goods in any way and shall indemnify in full the Supplier, its servants and/or agents in relation to all such claims.
19.1. This Agreement is deemed to be made in the State of Queensland and all disputes hereunder shall be determined by the appropriate courts of Queensland.
20. PRIVACY ACT 1988
20.1. The Customer and/or the Guarantor/s agrees;
20.1.1. For the Supplier to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by the Supplier.
20.1.2. That the Supplier may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency.
20.1.3. The Customer consent to the Supplier being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
21. ENTIRE AGREEMENT
21.1. These Terms and Conditions as defined in Clause 2.1 constitute the whole Agreement made between the Customer and the Supplier.
21.2. This Agreement can only be amended in writing signed by each of the parties.
21.3. All prior discussions and negotiations are merged within this document and the Supplier expressly waives all prior representations made by him or on his behalf that are in conflict with any clauses in this document in any way.
21.4. Nothing in these Terms and Conditions is intended to have the effect of contravening any applicable provisions of the Competition and Consumer Act 2010 or the Fair Trading Acts in each of the States and Territories of Australia.