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AIR CHANGE AUSTRALIA PTY LTD TERMS & CONDITIONS for the SALE AND SUPPLY OF PRODUCTS
1.1 These terms and conditions apply to the sale and/or supply and delivery (if applicable) of Products by Air Change Australia Pty Ltd (“ACA”) and supersede any terms and conditions of the Purchaser unless agreed in writing by ACA.
2.1 “Act” means for Product(s) incorporated in construction works in:
(a) New South Wales, the Building and Construction Industry Security of Payment Act 1999; (b) Victoria, the Building and Construction Industry Security of Payment Act 2002;
(c) Queensland, the Building Industry Fairness (Security of Payment) Act 2017.
2.2 “Contract” means any and all agreements and notifications in writing for the sale and/or supply and delivery (if applicable) of Products(s) which must include each of the following documents signed by the Purchaser:
(a) the Order Confirmation;
(b) general arrangement drawings of the Products (where applicable) and
(c) the Purchasers purchase order.
2.3 “Order Confirmation” means a document prepared by ACA detailing:
(a) the quantity, price and description of Product(s) and services to be supplied;
(b) the delivery instructions (if applicable);
(c) these Terms and Conditions of Sale;
(d) any special terms and conditions of sale;
(e) ACA warranty policy.
2.4 “Parties” means ACA and the Purchaser(s) jointly.
2.5 “Price” means the amount to be paid by the Purchaser to ACA for the supply of Product(s) excluding any Goods and Services Tax (GST) or other Tax.
2.6 “Product” means the product(s) as detailed in the Order Confirmation.
2.7 “Purchaser” means the party or parties entering into a Contract with ACA for the design, manufacture and delivery of Product(s).
2.8 “Quotation” means an offer by ACA to the Purchaser for the sale / supply and delivery (if applicable) of Product(s) in accordance with these Terms and Conditions and any special conditions noted therein.
2.9 “Warranty Period” means 12 months from the delivery date of the Product(s).
3. Quotations & Drawings
3.1 Unless previously withdrawn, a Quotation is open for submission of an offer to purchase by the Purchaser within 45 days only from the date of Quotation.
3.2 The Purchaser can accept the Quotation by returning documents (a) & (c) of the Contract documents (“Quotation Acceptance”)
3.3 If ACA has not received a Quotation Acceptance within 45 days from the date of the Quotation, ACA reserve the right to amend or cancel the Quotation even if a Quotation Acceptance is subsequently received.
3.4 Upon receipt of a Quotation Acceptance, ACA shall prepare and issue Product(s) drawings for Purchaser’s approval.
3.5 The Quotation price is based on:
(a) acceptance by the Purchaser of these Terms and Conditions as amended by any special condition noted therein;
(b) Product(s) manufactured to ACA specification and standards; and
(c) Product(s) delivered (if applicable) on a flatbed truck in single delivery excluding unloading at any time during normal business hours; ACA reserve the right to amend or withdraw any Quotation if the Purchaser does not accept these Terms and Conditions.
4.1 No contractual obligation shall arise between the Parties until ACA has received all documents comprising the Contract signed by the Purchaser.
4.2 If the Purchaser issues a purchase order with terms that are contradictory to these Terms and Conditions, these ACA Terms and Conditions shall prevail unless otherwise accepted in writing by ACA.
4.3 The Contract, once established, cannot be cancelled without payment of all costs incurred by ACA up to the time of cancellation.
4.4 If the ACA Order Confirmation includes a delivery service and charge, then this delivery service shall constitute a separate supply to the supply of Product(s).
4.5 The Contract between ACA and the Purchaser for the documentation design, manufacture, testing and delivery of Product(s) is governed by the applicable Act.
4.6 ACA reserves the right to impose payment terms on a Purchaser provided these payment terms are notified in writing in the Order Confirmation
5. Price and Payment
5.1 All ACA tax invoices are payment claims made in accordance with the Act.
5.2 In addition to the quoted Price, the Purchaser shall pay all taxes, duties and charges imposed by any authority on the sale and delivery of the Product(s).
5.3 ACA shall be entitled to issue a payment claim for: (a) Product(s) if they are manufactured, tested and delivered; (b) Product(s) that are ready for delivery and the date of the payment claim is after the Purchaser’s indicated delivery date; and (c) for freight once the freight service is completed.
5.4 If ACA have agreed to provide credit to the Purchaser, payment of all invoices is due and payable, without deduction, set-off or counterclaim, in immediately available funds within 30 days from the end of the month in which the Product(s) are invoiced. If ACA do not provide credit to the Purchaser, a deposit payment of 50% is due with the purchase order with the balance due at completion of production. ACA accepts payments by Visa, Master Card, Eftpos, & Direct Deposits.
5.5 If the Purchaser requests changes or modification to the Product(s) specified in the Contract, ACA shall be entitled to:
(a) increase the Price and notify a new delivery date;
(b) refuse the change and supply the Product(s) as originally specified; or
(c) cease manufacture and invoice for the design and manufacture completed.
6. Manufacture and Delivery
6.1 Unless otherwise agreed in writing, ACA shall design, manufacture and/or supply the Product(s) in accordance with its own specifications and standards using parts, processes and techniques solely at its discretion.
6.2 ACA will use its best endeavours to meet the Purchasers delivery schedule but any delivery date advised is an estimate only and subject to change.
6.3 ACA will not accept any charges, costs or liquidated damages incurred by the Purchaser for late delivery unless agreed in writing.
6.4 If the Purchaser is unable to accept delivery when manufacturing is complete, the Purchaser shall remain liable for payment under clause 5 and unless agreed in writing there shall be no extension of the due date for payment.
6.5 If the Purchaser notifies ACA that delivery is to be delayed and manufacture has not commenced, ACA may, at its sole discretion, postpone completion of manufacture thereby deferring any payment claim for the Product(s) until manufacture is complete.
6.6 Insurance of the Product(s) is up to the point of delivery and does not cover any damage incurred during unloading at the delivery site which shall be under the Purchasers supervision.
7. Passing of Property and Risk
7.1 Passing of title to the Product(s) to the Purchaser occurs when ACA has received full payment in cleared funds for each item of Product(s).
7.2 The Product(s) are at the Purchaser’s risk from the occurrence of:
(a) the loading on truck if the Purchaser arranges its own delivery;
(b) the physical delivery of the Product(s) on truck to the Purchaser at the nominated delivery address, or
(c) the physical delivery to the Purchaser’s carrier or other bailee ACA shall be under no obligation to give the Purchaser the notice referred to in section 35(3) of the Sale of Goods Act 1923.8.
8. Retention of Title
8.1 Notwithstanding the delivery of the Product(s) or any part thereof the property and title in the Product(s) shall remain with ACA until the Purchaser has paid all amounts due to ACA in cleared funds.
8.2 ACA may register and do all things necessary to perfect a security interest over the Product(s) under the Personal Property Securities Act 2009 which shall be removed within 10 days of receipt of full payment in cleared funds.
9.1 If during the Warranty Period any product or part manufactured or supplied is found by ACA to have proved defective in design, material or workmanship under normal use and service and if the Product has been properly installed, connected and commissioned, ACA will supply replacement part(s) free of charge to the Purchaser provided that the Purchaser has complied with the Warranty Conditions and made full payment for the Product(s).
9.2 The Warranty Conditions are specified in the warranty policy provided with the Product(s) and contained on the website www.airchange.com.au.
9.3 Labour warranty is excluded unless agreed to in writing by ACA.
10. Limitation of Liability
10.1 Except as expressly provided in clause 9, ACA shall have no obligations or liabilities whatsoever to the Purchaser in respect of the Product(s) or any part thereof. Consequently, without limiting the generality of the above, ACA shall under no circumstances be liable for liquidated damages, loss of production, loss of profit, loss of revenue, loss of use, cost of capital, or any other costs connected with interruption of operation or other consequential or indirect loss or damages arising out of or in connection with the use of any Product(s).
11. Force Majeure
11.1 If ACA fails to fulfil the Contract due to any circumstances beyond its reasonable control or which it could not have reasonably expected and taken reasonable action to avoid (including but not limited to fire, flood, power blackout, earthquake, war or delays in deliveries by sub-contractors and suppliers), it shall be regarded as a case for relief and the delivery date shall be extended or ACA may terminate the Contract without liability to damages or any other relief or remedies.
12. Intellectual Property
12.1 No right or licence is granted to the Purchaser under any patent, copyright, registered design or other intellectual property right except the right to use or resell the Product(s).
12.2 If the Product(s) is manufactured or incorporates any design or specification of the Purchaser, ACA shall not be liable for any infringement of any intellectual property rights caused by the Product(s) or its use or sale by the Purchaser.
13.1 If any provision herein shall be found in any jurisdiction to be invalid or unenforceable, such finding shall not invalidate any other provision herein, and such provision shall be deemed amended to the minimum extent required to comply with the law of such jurisdiction.
13.2 Unless otherwise expressly agreed in writing, the Contract and these terms and conditions shall be governed by the laws of New South Wales, Australia.
V 4 01/11/18