Terms of Sale
1.1 Unless otherwise inconsistent with the context the word “person” shall also mean corporation;
1.2 Words importing the singular number shall be deemed to include the plural and vice versa. Words importing the male gender shall be deemed to include the female and neuter gender and vice versa.
1.3 “Seller” shall mean Actron Engineering Pty Ltd its successors and assigns.
1.4 “Customer” shall mean the Customer named and described in the Account Application.
1.5 “goods” shall include goods, products, materials and services supplied by the Seller.
1.6 “Accession” has the meaning given by s.10 of the Personal Property Securities Act 2009 (“PPSA”).
1.7 “PMSI” has the meaning of the term “Purchase Money Security Interest” in the PPSA.
1.8 “PPS Register” has the meaning in clause 6.4 (c).
1.9 “Proceeds” has the meaning given by s.31 of the PPSA.
1.10 “Security Interest” has the meaning given by s.12 of the PPSA.
1.11 “Sellers Security Interest” has the meaning defined in clause 6.4 (a)-(c).
1.12 “Supply” means the supply of goods under these Terms and Conditions of Sale.
2 Quotations, orders and agreement
2.1 A written quotation issued by the Seller to the Customer is an offer to sell and overrides the Seller’s prevailing price list, if any. A written quotation expires on the date specified as an expiry date. If no expiry date is specified, the written quotation expires 30 days after the date of the written quotation.
2.2 The Seller may withdraw, revoke or vary a written quotation at any time prior to the Customer submitting an order which accepts the offer to sell comprised by the written quotation.
2.3 The price quoted is subject to the Customer ordering all of the goods described in the quotation. If the Customer does not order all of the goods described in the quotation then the Seller reserves the right to revise the pricing of the goods ordered, and the Customer shall pay the revised price as invoiced by the Seller.
2.4 An agreement for the sale of the goods is made when the Customer communicates (by writing or conduct) to the Seller its acceptance of a written quotation.
The price of the goods in the agreement may be increased or changed by the Seller if:
(a) supply of the quoted goods does not start within 30 days after acceptance of the quotation,
(b) supply under the agreement is stopped or suspended for more than 30 days,
(c) supply under the agreement is changed in any way before, during or after commencement of supply, including but not limited to re-design of the project, the start date of supply, the completion date of supply and the agreed rate of supply, or
(d) supply under the agreement has not been completed within 12 months of the date of the quotation.
2.6 Where in the period between acceptance of the quotation and delivery of the goods, the Seller incurs an increase in the cost of producing and/or delivering the goods, the Seller may increase the quoted price of those goods at any time prior to delivery.
2.7 Unless otherwise agreed in writing the price of goods ordered by the Customer is the price applying at the time of despatch. Any price indications or price lists are subject to change at any time.
2.8 These terms and conditions shall be deemed to be incorporated into any agreement between the Seller and the Customer. Any terms and conditions contained in any order, offer, acceptance or other document of the Customer and all representations, statements, terms and conditions and warranties (whether implied by statute or otherwise) not embodied herein are expressly excluded to the fullest extent permitted by law.
2.9 The agreement herein constitutes the entire agreement between the Seller and the Customer and all prior negotiations, proposals and correspondence are superseded by this agreement.
2.10 Unless agreed otherwise in writing, the Seller may, by written notice, terminate the agreement constituted by the acceptance of any quotation 12 months after the date of the first delivery of the goods.
3 Specifications and Working Documentation
- 3.1 If the Customer’s order refers to a Specification or Working Documentation then:
(a) the Customer represents and warrants to the Seller that any such Specification or Working Documentation does not and any goods produced by the Seller pursuant to such Specification or Working Documentation will not breach or infringe upon the rights or property of any third party including, without limitation, patent, design, copyright or other intellectual property rights and the Customer indemnifies and hold harmless the Seller from and against any loss, damage, liability or costs suffered or incurred by the Seller arising out a breach by the Customer of the representations and warranties made by it pursuant to this clause;
(b) the Customer releases the Seller from and waives any rights or causes of action it may at any time have had against the Seller in relation to any default or defect in any Goods made pursuant to the Customer’s Specification or Working Documentation provided by the Customer to the Seller; and
(c) the Customer indemnifies the Seller and must hold it harmless from and against any loss, damage, liability or cost suffered or incurred by the Seller attributable, whether directly or indirectly to the terms of any Specification or Working Documentation provided by the Customer to the Seller.
3.2 Unless otherwise stated on a quotation, Goods will be supplied by the Seller within the tolerances in regard to quantity, weight, dimension and chemical composition as specified in the relevant order, if not specified, as consistent with usual industry practice. Where the total mass or length of any item supplied includes a fraction of a tonne, the Customer must pay for that fraction on a pro rata basis.
3.3 Unless otherwise agreed the Customer must deliver all working documents without charge to the Seller prior to commencement of the supply of the goods. Where the Customer submits electronic copies of working documents to the Seller then the Seller reserves the right to charge for the printing costs associated with those working documents.
4.1 Any date quoted for delivery is an estimate only unless a guarantee shall have been given by the Seller in writing. The Customer shall accept and pay for goods if and when tendered notwithstanding any failure by the Seller to deliver by the quoted date. Written advice to the Customer that goods are ready for delivery whether in whole or in part shall constitute tendering of the goods.
4.2 The Seller reserves the right to deliver by instalments and if delivery is made by instalments the Customer shall not be entitled to terminate or cancel the agreement.
4.3 The Seller may cancel the order if it determines that it will be unable to deliver the goods within a reasonable time.
4.4 The Customer shall take delivery of the goods within 7 days of notification from the Seller that the goods are ready for delivery.
4.5 Where the Customer does not accept delivery of goods when the goods are ready for delivery by the Seller, the Customer shall be liable for additional charges at the Seller’s current rates for storage and/or double handling or if there is no current rate then at a rate determined by the Seller in its absolute discretion.
4.6 Any quotation containing a provision to supply goods “ex stock” is subject to fulfilment of prior orders at the date of receipt of the Customer’s order.
4.7 If the Seller quotes the price as “ex factory” the Customer shall take delivery of the goods at the premises of the Seller.
4.8 The Customer bears the sole responsibility for and the risk of unloading the goods.
4.9 The Seller, its officers, employees and agents shall not be liable to the Customer or any other party for any loss or damage including direct or indirect or consequential injury loss or damage whatsoever by reason of any delay in delivery or non delivery whether the same is due to the negligence of the Seller or any other party, actions constituting fundamental breach of contract, strike or any other industrial action, or any other cause whatsoever.
5 Price and Payment
5.1 Unless otherwise agreed in writing payment terms are net 30 days from the end of the month in which the goods are invoiced to the Customer.
5.2 In addition to the provisions of clause 2 the Seller may increase the price of goods and/or services where it incurs an increase in its costs of supplying the goods.
5.3 The Seller may apply any monies paid to it by the Customer in such manner and at such times as the Seller, in its absolute discretion, determines.
5.4 Amounts due to the Seller by the Customer must be paid without deduction, retention or set-off of any kind and for any reason.
5.5 This term as to the payment shall be of the essence of the agreement.
6.1 Notwithstanding the delivery of the goods or part thereof the goods remain the sole and absolute property of the Seller as full legal and equitable owner until such time as the Customer shall have paid the Seller the full purchase price together with the full price of any other goods the subject of any other agreement with the Seller.
6.2 The Customer acknowledges that it receives possession of and holds goods delivered by the Seller solely as bailee for the Seller until such time as the full price thereof is paid to the Seller together with the full price of any other goods then the subject of any other agreement with the Seller and that a fiduciary relationship exists between the Seller and the Customer.
6.3 Until such time as the Customer becomes the owner of the goods, it will;
(a) store them on the premises separately;
(b) ensure that the goods are kept in good and serviceable condition;
(c) secure the goods from risk, damage and theft; and
(d) keep the goods fully insured against such risks that are usual or common to insure against in a business of a similar nature to that of the Customer.
(d) if the Goods are processed or commingled with or made an accession to other goods by the Customer, the Customer shall record and make available to the Seller on request the record of the date of the processing, or commingling or accession and hold the product, or mass or whole in a way that clearly indicates the Seller’s title to the product, or mass or whole.
(e) the Customer shall not deal with the Goods, either in their original state or as part of a product, mass or whole, for a consideration of less value than the amount necessary to discharge the Customer’s liability to the Seller in full for or in relation to the Goods and shall retain the consideration or other Proceeds of the Goods separate from all other property of the Customer and in a manner, which clearly identifies it as such consideration or other Proceeds of the Goods, product, mass or whole (unless otherwise agreed in writing by the Seller).
6.4 By accepting the Supply the Customer agrees that:
(a) a Security Interest is created in favour of the Seller within the meaning of the PPSA in:
(ii) the Proceeds of sale of the Goods;
(iii) any other property, to which the Goods become an accession or with which they are commingled;
(iv) any product or mass, of which the Goods become a part by manufacture, process, assembly or commingling.
(b) the Security Interest secures:
(i) the Customer’s obligation to pay for the Goods, and
(ii) any and all other obligations of the Customer to pay money or money’s worth (including costs, expenses, damages or losses) for the benefit of the Seller now or in the future or from time to time under this agreement.
(c) to the extent the Seller’s Security Interest secures the Customers obligation to pay for any of the Goods, it constitutes as a PMSI;
6.5 With respect to the Seller’s Security Interest while it is retained by the Seller, the Customer:
(a) will when called upon by the Seller sign any further documents or provide any further information which the Seller may reasonably require to register a financing statement or financing change statement on the Personal Properties Security Register (“PPS Register”), or in connection with the issue of a verification statement;
(b) will not register or apply to register a financing statement or financing change statement which is in any way connected with the Goods (or any accession, mass or product, of which they form part) without the Seller’s prior written consent, which may be given or withheld at the Seller’s absolute discretion;
(c) will pay any costs or, expenses or losses incurred by the Seller and keep the Seller indemnified against any loss, damage or liability to third parties incurred in relation to:
(i) registering or seeking the release of any document relating to the Seller’s Security Interest on the PPS Register; or
(ii) enforcing the Seller’s security Interest (including its legal costs, on a solicitor-client basis);
(d) will give the Seller at least 14 days written notice of any proposed change in its name, contact details, place of incorporation, address, location, nature of business, ownership, or business practice; and
(e) it irrevocably appoints the Seller to be the Customer’s attorney to do anything which the Customer agrees to do under these Terms and Conditions and anything which the attorney thinks desirable to protect the Sellers Security Interest and the Customer will take all steps required to ratify anything done by the attorney under this clause.
6.6 To the extent permitted by law, the Customer waives its right to notices as a grantor under section 157 of the PPSA; acknowledging, that the collateral, subject of the Seller’s Security Interest is properly described as commercial property. To the extent that they impose any obligation on the Seller or grant any right to the Customer and section 115(1) of the PPSA allows them to be excluded: sections 95, 118, 121(4), 125, 130, 132 (3), 132 (4), 135, 142, and 143 of the PPSA do not apply to this agreement or the Seller’s security interest in the Goods. To the extent, that Part 4.3 of the PPSA imposes any obligation on the Seller or grants any right to the Customer and s.115(7) permits, its application pursuant to s.116(2) is excluded.
6.7 Notwithstanding the payment by the customer of part or all of the price relating to the Goods, any proceeds or other property in which the Seller’s Security Interest will continue to exist in the Goods, any Proceeds of the Goods or other property, in which the Sellers Security Interest may apply (by operation by operation of these Terms and Conditions or statute) until the Sellers Security Interest is discharged in writing by the Seller.
6.8 The Customer will not do, or omit to do, nor allow to be done or omitted to be done, anything which might adversely affect the Sellers Security Interest.
6.9 If the Customer sells the Goods, either in their original state or as part of a product, mass or whole to its customers, the Customer, in its position as a fiduciary, assigns to the Seller and authorises the Seller to sue in its name to recover the benefit of any claim against its customers for the price of the Goods, the product, mass or whole, and, in addition to its obligations under the PPSA, it shall hold on trust for the Seller and account to the Seller for the consideration and all Proceeds received in relation to the Goods, product, mass or whole.
6.10 This clause shall apply even though the Seller may give credit to the Customer.
6.11 Without limiting the rights or remedies available to the Seller under these Terms and Conditions, statute (including under the PPSA) or other law, if the Customer;
(a) (being a natural person) commits an act of bankruptcy;
(b)(being a corporation) does anything which entitles anyone to apply to wind up the Customer or is subject to the appointment of an administrator or receiver and manager; or
(c) breaches any of these “Terms and Conditions”, (each of which is hereafter referred to as ‘an act of default’), the Seller may take possession of and retain, resell or otherwise dispose of the Goods or any product, mass or whole, of which they form part.
6.12 To the extent permitted by law, in the event of any such act of default, the Customer authorises the Seller to enter premises where the Goods may be located to take possession of the Goods or any product, mass or whole, of which they form part without notice to the Customer. The Customer shall indemnify the Seller against all claims arising out of the entry by the Seller into premises to take possession of the Goods or any product, mass or whole, of which they form part.
Unless otherwise agreed in writing, risk in the goods shall pass to the Customer at the time when the goods have been placed on the vehicle which is to effect delivery from the Seller’s store or warehouse or delivery to the Customer whichever is the sooner. The goods shall remain at the Customer’s risk at all times unless and until the Seller retakes possession of the goods pursuant to these terms and conditions.
8 Claims, Shortages and Defects
8.1 The Customer agrees to check all goods received immediately upon delivery and all services immediately upon completion. The Customer will not make any claim after the expiry of 7 days from the date of delivery of the goods or the completion of the provision of services, for shortages or improper or defective or damaged goods or defective or improper services.
8.2 The Seller will not be liable for any shortages or improper or defective or damaged goods or defective or improper services unless a written claim is made by the Customer within 7 days of the delivery of the goods or the completion of the provision of the services.
8.3 Except to the extent to which conditions and warranties implied by law are not at law able to be excluded, all implied conditions and warranties are hereby excluded.
8.4 Insofar as goods or services supplied by the Seller are not of a kind ordinarily acquired for personal domestic or household consumption, and unless the Customer establishes that reliance on this provision would not be fair and reasonable, the liability for breach of a condition or warranty; implied into this agreement by the Competition and Consumer Act 2010 is limited:
(a) in the case of goods to any one of the following as determined by the Seller ;
(i) the replacement of the goods or the supply of equivalent goods; or
(ii) the repair of the goods; or
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired;
(b) in the case of services to any one of the following as determined by the Seller;
(i) the supplying of the services again, or
(ii) the payment of the cost of having the services supplied again.
8.5 The Seller shall not be liable in any circumstances for any;
(i) defects or damages caused in whole or in part by misuse, abuse, neglect, electrical or other overload, unsuitable lubricant, improper installation repair or alteration or accident.
(ii) any transport freight charges installation removal labour or other costs;
(iii) defects in goods not manufactured by it but will endeavour to pass on to the Customer the benefit of any claim made by the Seller and accepted by the manufacturer of such goods under a warranty given by the manufacturer of such goods provided that nothing contained in this subparagraph shall limit the rights of the Customer to proceed against the Seller pursuant to the Competition and Consumer Act 2010.
(iv) technical advice or assistance given or rendered by it to the Customer in connection with the manufacture construction or supply of goods for or to the Customer.
8.6 Subject to clause 8.4 herein, the Seller, its officers, employees or agents shall not be liable for any loss or damage whatsoever and howsoever arising whether direct indirect special or consequential or in respect of any claim whenever and however made for any loss or damage deterioration deficiency or other fault or harm in the goods supplied, work executed or services provided by or on behalf of or in any arrangement with the Customer or occasioned to the Customer or any third or other party or to his or their property or interest and whether or not due to the negligence of the Seller its officers, employees or agents or actions constituting fundamental breach of contract.
8.7 The Customer releases the Seller, its officers, employees and agents, from all sums, money, actions, proceedings, accounts, claims, demands,costs and expenses whatsoever arising from or in relation to this Agreement.
8.8 The Customer indemnifies the Seller, its officers, employees and agents, in respect of all loss, damages, and expenses arising from or in relation to any claim, actions, proceedings, accounts, or demands.
9 Force Majeure
If by reason of any fact, circumstance, matter or thing beyond the reasonable control of the Seller, the Seller is unable to perform in whole or in part any obligation under this agreement, the Seller shall be relieved of that obligation under this agreement to the extent and for the period that it is so unable to perform and shall not be liable to the Customer in respect of such inability.
Upon the occurrence of default by the Customer in compliance with these terms or any other agreement with the Seller;
10.1 The Seller may at its discretion withhold further supplies of goods or cancel this agreement, or vary the terms of this agreement without prejudice to its rights hereunder PROVIDED HOWEVER that the Seller may at any time and from time to time upon such terms as it may determine waive any of its rights under this Clause, but without prejudice to its rights thereafter of any of the events hereinbefore referred to or upon the continuation after any such waiver of any state of affairs the subject of such waiver.
10.2 The Seller may at its discretion cancel any credit facility provided to the Customer and by reason of the cancellation all monies due on all invoices issued to the Customer but not paid shall be due and payable forthwith. The Seller need not give any notice of the cancellation of the credit facility to the Customer.
10.3 The Customer shall pay to the Seller interest at the rate of 15% per year on daily balances in respect of any amounts as may from time to time be overdue until paid and such money together with all interest shall be recoverable forthwith from the Customer.
10.4 Without prejudice to any other right or remedy the Customer shall indemnify the Seller against any costs fees charges and disbursements charged by any solicitor engaged for the purpose of the collection or recovery of moneys due and payable by the Customer to the Seller on an indemnity basis and any fees, charges, disbursements or commissions charged by any mercantile agency or debt collecting firm.
10.5 The Customer shall pay to the Seller an administration fee of $50.00 on the occurrence of every event of default.
11 Charge and Security Interest
11.1 The Customer hereby charges with payment of any indebtedness to the Seller all legal and beneficial interest (freehold or leasehold) in land and property, other than Personal Property to which the Personal Property Securities Act 2009 applies, held now or in the future by the Customer and upon non-payment of any monies due to the Seller pursuant to this agreement the Seller may take possession of such land or property and exercise and do all or any acts, powers and authorities vested in or given to mortgagees by any statutory provision or at common law or in equity. The Customer agrees that if demand is made by the Seller, the Customer receiving such a demand will immediately execute a mortgage (incorporating the covenants contained in Memorandum No.Q860000 registered at the Land Titles Office in Sydney) or other instrument of security, or consent to a caveat, as required, and against the event that the Customer fails to do so within a reasonable time of being so requested, the Customer hereby irrevocably and by way of security, appoints any credit manager or solicitor engaged by the Seller to be its true and lawful attorney to execute and register such instruments. Notwithstanding any other provision in this clause and in addition thereto the Seller may lodge a caveat noting the interest given by this charge on the title of any property of the Customer whenever it so wishes.
11.2 The Customer grants a security interest to the Seller in all of its present and after acquired property and in all of its present and future rights in relation to any personal property as defined in the Personal Property Securities Act 2009.
The Customer must pay to the Seller any amount which is payable by the Seller in respect of any supply to the Customer on account of GST. Each charge or fee for a supply rendered by the Seller does not include an amount to cover the liability of the Seller for GST on any supplies made under this agreement which are taxable supplies within the meaning of the GST Act. In relation to taxable supplies made under this agreement the Seller agrees to issue the Customer with a tax invoice in accordance with the GST Act or a document satisfying the minimum information requirement set out in GSTR 2000/2003 to entitle a recipient of a taxable supply to claim an input tax credit without holding a tax invoice. “GST” means GST as defined in a New Tax System (Good and Services Tax Act 1999). “Supply” means supply as defined in a New Tax System (Goods and Services Tax Act 1999).
13.1 This clause applies if the Customer is a trustee and whether or not the Seller has notice of the Trust.
13.2 Where the Customer comprises two or more persons and any of those persons is a Trustee this clause applies to such Trustee.
13.3 The Customer agrees that even though the Customer enters into this Agreement as Trustee of the Trust, the Customer also shall be liable personally for the performance and observance of every covenant to be observed and performed by the Customer expressed or implied in this Agreement.
13.4 The Customer warrants its complete, valid and unfettered power to enter into this Agreement pursuant to the provisions of the Trust including power to obtain the credit facility from the Seller and to enter into the covenants to be observed and performed by them expressed or implied in this Agreement and warrants that its entry into this Agreement is in the due administration of the Trust.
13.5 The Customer covenants that the rights of indemnity which it may have against the property of the Trust have not been, and in the future will not be, excluded, modified, released, lost or diminished (whether by agreement, breach of trust or otherwise).
13.6 The Customer shall not, without the Seller’s prior written consent:
(i) resign or be removed as Trustee of the Trust or appoint or allow the appointment of a new or additional Trustee of the Trust;
(ii) amend or revoke any of the terms of the Trust;
(iii) vest or distribute the property of the Trust or advance or distribute any capital of the Trust to a beneficiary or resettle any of the property of the Trust;
(iv) permit a beneficiary to have the use, occupation, employment or possession of the property of the Trust;
(v) do or permit or omit to do an act or thing in breach of the Trust or which would permit the Trustee to be removed as Trustee of the Trust;
(vi) exercise or permit or allow to be exercised a power to change the vesting date of the Trust or provide for an early determination of the Trust;
(vii) lend any money, give any guarantee or incur any debt other than in the ordinary course of business of the Trust; or
(viii) pay any of the income of the Trust to any beneficiary of the Trust if such payment will prejudice or affect the Customer’s ability to pay all monies due to the Seller.
The parties agree that service of any notices, demands, proceedings summons suits or actions (“process”) upon the Customer may be effected by the Seller or its solicitors sending such process by prepaid post to the address given in the Credit Application as the address of the Customer. Service shall be deemed to have been effected two business days after the posting of the process.
The parties agree that the terms and conditions applying to any credit account opened in the name of the Customer and any other agreement between the Seller and the Customer shall be governed by the laws of the State or Territory nominated by the Seller, in its absolute discretion, or failing any nomination the laws of the State of New South Wales in force for the time being and from time to time, and the parties irrevocably submit generally and unconditionally to the jurisdiction of the Courts of the State or Territory nominated or failing nomination the Courts of the State of New South Wales in respect of claims, proceedings and matters arising out of or in respect of the said credit account or any said agreement.
16.1 Nothing in these Terms and Conditions is intended to exclude, restrict or modify rights which the Customer may have under the Competition and Consumer Act 2010 or any other legislation which may not be excluded, restricted or modified by agreement.
16.2 A party waives a right under these Conditions only if it does so in writing. 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 waiver of one breach of a term of these conditions does not operate as a waiver of another breach of the same term or any other term.
16.3 If a provision in these Terms Conditions is wholly or partly invalid or unenforceable in any jurisdiction, that provision or the part of it that is invalid or unenforceable must, to the extent of its invalidity or unenforceability in that jurisdiction be severed from this agreement. All the remaining provisions shall be enforceable between the Seller and the Customer.
16.4 The Seller may assign or otherwise deal with the benefit of any agreement made pursuant to these Terms and Conditions without the consent of the Customer.
17.1 Any user of ActronSelect must be approved by the Seller prior to use of ActronSelect. An application will be available for those that wish to use that application.
17.2 Once approved the user will be provided with access and a password.
17.3 ActronSelect is designed to obtain information from users as to the air conditioning job they are to undertake or provide a quote upon. On entry of that information ActronSelect will recommend which configuration of the Seller’s products can be used for the job.
17.4 The user may print a copy of the recommendation, however, the recommendation is for the use of the user only and cannot be shared or disclosed to any third party.
17.5 Once the recommendation is made the user then can contact a representative of the Seller to make an order.
17.6 The Seller does not:
(i) warrant that the information obtained from the user is accurate;
(ii) guarantee that the Seller’s products recommended are available at any time after the recommendation is made; and
(iii) guarantee that the prices of the products recommended will not increase at any time after the recommendation is made.
17.7 The recommendation made by the ActronSelect will be retained in the Seller’s database for a period of 6 months after which it will be deleted.
17.8 The Seller, its officers, employees or agents shall not be liable for any loss or damage whatsoever and howsoever arising whether direct indirect special or consequential or in respect of any claim whenever and however made for any loss or damage deterioration deficiency or other fault or harm, arising from or related to the use of or provision by ActronSelect of a recommendation, occasioned to the user or any third or other party or to his or their property or interest and whether or not due to the negligence of the Seller its officers, employees or agents or actions constituting fundamental breach of contract.