Terms and Conditions

INTERPRETATION

In these Terms:

• “Agreement” means any agreement between the Company and the Customer for the sale of Goods and/or provision of Services pursuant to the Quote and these Terms.
• “Company” means Thermal Installations Pty Limited ABN 93 135 275 400.
• “Company’s Premises” means the Company’s principal place of business as shown in the records of the Australian Securities and Investments Commission from time to time.
• “Confidential Information” means information in whatever form that is by nature confidential; is designated by these Terms or the Customer as confidential, is provided in circumstances inferring confidentiality; or where the parties know or ought to know it is confidential.
• “Consequential Loss or Damage” means loss of profits, revenue, use or opportunity, re-installation costs, removal costs and any remote or indirect form of loss or damage.
• “Customer” means the customer engaging the Company to provide Services and/or supply Goods.
• “Excluded Services” means the services that are excluded from an associated Quote by being listed as Excluded services on the Quote.
• “Goods” means all equipment and goods including consumables sold and/or delivered by the Company to the Customer from time to time.
• “GST” means the Goods and Services Tax imposed by A New Tax System (Goods & Services Tax) Act 1999 and any related act and/or regulations.
• “Parties” means the Company and the Customer.
• “PPSA” means Personal Property Securities Act 2009 (Cth)
• “Services” means all installation, commissioning, maintenance, repair and on-site technical support services provided by the Company to the Customer from time to time.
• “Service Charges” means the moneys charged by the Company for the provision of the Services.
• “Terms” means these Terms and Conditions of Trade.
• “Quote” means any document or agreement describing the scope of work and price for any Goods or Services to be provided by the Company to the Customer.

2. APPLICATION

• These Terms and the provisions in the Quote apply to and from the agreement for the sale of Goods and/or the provision of Services to the Customer by the Company.
• No amendment, alteration, waiver or cancellation of these Terms is binding on the Company unless confirmed in writing by the Company.
• The Customer acknowledges and agrees that:
  1. No employee or agent of the Company may make, and the Customer has not relied on, any representation, warranty or promise in relation of the Goods and/or the Services other than as contained in these Terms;
  2. The Customer has determined that the Goods and/or the Services are fit for the purpose for which they are required;
  3. The Customer has not relied on the skill and judgment of the Company in selecting the Goods and/or the Services; and
  4. The Customer has checked the Goods and/or Services for suitability, functionality, completeness, and any performance values or specifications given by the Company.
  5. Where the Company determines it appropriate it shall have the right to sub-contract any of the services provided under these Terms, but shall remain fully liable for the due performance of its obligations under these Terms.

3. QUOTE

• The work to be undertaken pursuant to these Terms is limited to the scope of work described in the Quote.
• Any work completed, at the Customer’s request, in addition to the scope of work described in the Quote or for Excluded Services, is additional work for which additional fees are chargeable.
• The Quote has been prepared on the basis of information and instructions provided by the Customer, including the Warranty by the Customer set out in these Terms. The Company may change the Quote at any time until it has been accepted by the Customer or if any of the information, instructions or warranties provided change.
• Prices quoted are subject to change if:
  1. There is any delay by the Customer in the performance of any of the Customer’s obligations resulting in additional costs; or
  2. There is any variation in the cost price to the Company by the manufacturer between the date of the quotation and the date of delivery of the Goods to the Company by the manufacturer.
• The Quote shall be valid for thirty (30) days from the date of the quotation.

4. WARRANTY BY THE CUSTOMER

• To allow the Company to determine the scope of work for the Quote and completion of the scope of work the Customer warrant and agree to provide:
  1. full and accurate instructions as to its requirements and knowledge of any issue relevant to the scope of work an the Quote;
  2. any information, documents and particulars in relation to the Customer’s requirements and the scope of work;
  3. appropriate access to any goods, land and buildings as requested by the Company, including a designated exclusive area for storage of the Company’s plant, equipment, tools and material;
  4. prompt notification of any change relevant to the scope of work and any knowledge, information or documents in the Customer’s possession or knowledge;
• In addition to the preceding provision the Customer warrant and agree:
  1. that the Customer contact person listed on the Quote shall be the appointed contact person, who shall have the authority and power to make decisions or agree to variations on the Customer’s behalf and the Company may rely on this appointment in all its dealings with the Customer, unless the Customer provides to the Company a variation of the nomination in writing;
  2. to co-operate and assist where requested and must not interfere with or obstruct the performance of work being completed by the Company.
  3. to pay the price pursuant to the Quote and any fees and charges pursuant to these Terms by the due date for payment.

5. TERMS OF PAYMENT

• Prices quoted are strictly ex the Company’s premises, and do not include costs for packaging, delivery, freight, insurance, installation and/or commissioning unless specifically included in the Quote.
• Payments must be made in full, without any deduction or discount other than as stated in these Terms or in the relevant tax invoice or statement to the Customer.
• Payments must be made in cash or cleared funds on delivery, the date of payment specified on any tax invoice or within thirty (30) days of the date of the tax invoice whichever is the earlier.
• The Company may at its discretion determine which tax invoice to credit with any part payment received from the Customer.

6. DELIVERY

• Any delivery or availability dates provided by the Company are estimates only. While the Company will use its best endeavours to maintain the respective estimated date of delivery, all warranties of delivery dates are excluded.
• The Company reserves the right to deliver the Goods in whole or by instalments, as well as to deliver prior to the date for delivery and in such event the Customer must not refuse to take delivery of the Goods.
• Where the Goods are delivered by instalments, each instalment constitutes a separate Agreement and the Company shall be entitled to invoice the separate instalments separately. Where the Company has provided a single Quote the Company shall be entitled to split and separate such Quote into separate tax invoices for instalments delivered.
• Any failure on the part of the Company to deliver instalments within any specified time does not entitle the Customer to repudiate the Agreement with regard to the balance remaining undelivered.
• Unless the Customer has inspected the Goods and given written notice to the Company within seven (7) days after delivery that the Goods are defective, do not comply with the relevant specifications or descriptions, or that the Goods are faulty or damaged, the Goods are deemed to have been accepted in good order and condition and compliant with those specifications and descriptions.

7. PROPERTY IN GOODS / RETENTION OF TITLE

• Legal and beneficial ownership of the Goods will not pass to the Customer until such time as the Goods so supplied have been paid for in full in cash or cleared funds.
• Until the amount payable in respect of the Goods has been paid in full in cash or cleared funds:
  1. the Customer will hold the Goods as bailee only for the Company;
  2. any monies received or income generated by the Customer (up to the amount owing to the Company) through the use of such Goods will be deemed to be received on trust for the Company; and
  3. The Goods must be stored in such manner that they are readily distinguishable from other goods owned by the Customer or other persons, so as to clearly show that they are the property of the Company.

8. GOODS AT CUSTOMER’S RISK

• The Goods are entirely at the risk of the Customer from the moment the Goods leave the Company’s Premises even though property in, and title to, the Goods have not passed to the Customer.
• The Customer must, at its own expense, maintain the Goods and insure them for the benefit of the Company for their full replacement value against theft, destruction, fire, water and other risks, as from the moment of collection by the Customer until property of and title to the Goods have passed to the Customer.
• The Customer must take all reasonable measures to ensure that the Company’s title to the Goods is in no way prejudiced. If any of the Goods are lost, destroyed or damaged, any insurance proceeds relating to the Goods in respect of such event that are received by the Customer, must be paid to the Company immediately on receipt.

9. RE-SALE OF GOODS SUBJECT TO RETENTION OF TITLE

• The Customer has the right to sell the Goods which are subject to retention of title, in its own name only at full market value and in the ordinary course of business.
• Any sale by the Customer of Goods subject to a retention of title, whether in their original condition or incorporated into other goods, will only be effected by the Customer as trustee for the Company and the proceeds of such sale and the rights of the Company’s Customer against its Customer arising from such sale will be held on trust for the Company. The said proceeds must be held in a separate account or otherwise clearly identified in the books and records of the Customer.
• If the Customer resells any Goods then, unless the Goods are clearly identifiable by serial numbers or other distinguishing marks, the Customer is deemed to have disposed of the Goods in the chronological order of supply by the Company to the Customer (oldest to the most recent).

10. CANCELLATION OF ORDER AND RETURN OF GOODS

• No order may be cancelled, modified or deferred without the prior written approval of the Company in accordance with clause 10.2 and if such approval is given and the Customer paid a cancellation and restocking fee (being not less than 10% of the invoice value of the Goods).
• Subject to clauses 3 and 10.4, the Company will only accept the return of any Goods to it by the Customer, if:
  1. The Customer has applied to the Company for approval to return the Goods with seven (7) days of delivery;
  2. The Company has given written approval for the return of the Goods; and
  3. The Customer has returned the Goods to the Company’ premises (or such premises as are specified by the Company in its approval referred to in clause 2 b) within fourteen (14) days from the date the approval is granted.
• If the Company agrees to the return of Goods:
  1. The Goods, when received by the Company, must be unsoiled, undamaged and in a resalable condition as determined by the Company;
  2. The Customer must pay for the delivery, freight, customs, duties, levies and/or insurance in respect of the return of the Goods to the Company; and
  3. The Customer must bear the risk of loss or damage of the Goods in transit until arrival of the Goods at the return address as advised by the Company.
• The Company will not allow a credit or return of Goods if the Goods are:
  1. Imported especially for the Customer or comprise non-standard equipment made to special order; or
  2. Marked on the Company’s invoices as “NOT RETURNABLE”.

11. DEFAULT

• The Customer shall be in default, if:
  1. The Goods are not paid for in accordance with these Terms or any other applicable written agreement; or
  2. The Customer is in breach of any provision of these Terms and such breach is not remedied with fourteen (14) days of a request by the Company to do so; or
  3. The Customer breaches any of its warranties specified in these Terms or the Quote; or
  4. The Customer fails to make any payment o the price or any fees or charges, expenses or disbursements owing pursuant to these Terms within the payment
  5. The Company receives notice that, or reasonably believes that a third party may attempt to take possession of the Goods or attach the Goods pursuant to a writ of execution; or
  6. Any other event occurs which is likely to adversely affect the Customer’s ability to pay for the Goods (including but not limited to the appointment of a receiver, administrator, liquidator or similar person [each an “insolvency representative”] to the Customer’s undertaking).
• If the Customer is in default the Company:
  7. may at any time without notice to the Customer and without prejudice to any other rights which it may have against the Customer, terminate any Agreement relating to the Goods and the bailment referred to in clause 7.2. The Customer or its insolvency representative shall be obliged to return the Goods to the Company immediately.
  8. shall be entitled to charge any or all of the following agreed reasonable charges as agreed reasonable compensation for its cost:
     • interest at the agreed rate of three percent (3%) per calendar month on any amount outstanding, such interest shall compound monthly after as well as before any judgment;
     • an Administration Fee of $15.00 for each letter, Reminder or Re-Render Notice issued;
     • a monthly administration account keeping fee in the amount of $25.00 per month or part thereof, for any accounts that remain outstanding after the due date;
     • the cost of lodging any caveat or registering or recording any PPSA Security Interest granted herein.

• The Company shall further be entitled to claim as reimbursement all legal costs incurred by the Company on a solicitor/client basis for any work associated with the default, breach of agreement or collection of overdue funds.

12. RIGHT TO ENTER PREMISES

• In any of the circumstances referred to in clause 11.1, the Customer:
  1. authorises the Company by itself, its agents or representatives at all reasonable times, without notice, to enter onto and at all necessary time(s), to remain in and on any premises where the Goods are located in order to collect the Goods, without being guilty of any manner of trespass;
  2. assigns to the Company all the Customer’s rights to enter onto and remain in and on such premises until all the Goods have been collected; and
  3. must bear or reimburse the Company on a full indemnity basis for all costs and expenses of collecting the Goods and returning the Goods to the Company’s Premises or such other location as the Company determines.

13. SECURITY INTEREST

• Charge:
  1. The Customer charges all its interest in any Real Property, Water Rights, Intellectual Property, Goods or Chattels with the payment of the price and all other fees, charges or disbursements incurred pursuant to these Terms.
  2. In relation to any work involving installation of Goods in or improvement of Real Property belonging to the Customer it is agreed that the Company shall be entitled to register a caveat over the Real Property for the security of payment of the price and all other fees, charges or disbursements incurred pursuant to these Terms.
• PPSA:
  1. The Customer and any Guarantors grants as security for the payment of the price and all fees, charges or disbursements (including any default charges and interest) incurred pursuant to these Terms, a Security Interest in all of the Customer’s Present an After-Acquired Property in which the Customer has rights and in all the Goods supplied pursuant to these Terms and agree to sign, execute or complete any documents necessary to complete a registration of such interest.
  2. The Customer hereby waives its rights under the following sections of the PPSA; section 123 (right to seize collateral); section 125 (obligation to dispose of or retain collateral); section 126 (apparent possession); section 128 (secured party may dispose of collateral); section 130 (notice of disposal) to the extent that it requires the secured party to give notice to the grantor; section 132(3)(d) (contents of statement of account after disposal); section 132(4) (statement of account if no disposal); section 134(1) (retention of collateral); section 135 (notice of retention); section 142 (redemption of collateral); and section 143 (reinstatement of security agreement).
• Guarantee:
  1. Any Guarantor listed on the Quote or associated with these Terms, in consideration of the Company agreeing to contract with the Customer, agree, guarantee and undertake to perform all the Customer’s obligations and to pay any the price and all fees, charges, interest or disbursements now or hereafter owed by the Customer to the Company pursuant to these Terms, in the event the Customer defaults. The Guarantor agrees to indemnify the Company against any loss suffered by reason of the Customer’s default.
  2. The Guarantor warrant and agree to execute the attached Guarantee in favour of the Company.

14. ADMINISTRATION, RECEIVERSHIP ETC.

• In any of the circumstances referred to in clause 11 neither the Customer nor its insolvency representative is entitled to sell, charge, remove, dispose of, use or otherwise deal with the Goods in any way inconsistent with the Company’s ownership or Security Interest in the Goods, without the Company’s prior written approval.

15. CUSTOMER’S PROPERTY

• All Customer’s property in or under the Company’s custody and control is and will remain entirely at the risk of the Customer from the moment the Customer’s property is left at the Company’s Premises until its collection by the Customer.
• The Customer must, at its own expense, maintain the Customer’s property and insure it for its full replacement value against theft, destruction, fire, water and other risks.

16. GOODS AND SERVICES TAX

• GST is not included in the Quote or price unless stated otherwise in the relevant Quote, tender, tax invoice or the like.
• Where GST is imposed on the Company in respect of the supply of the Goods and/or the provision of the Services then the Customer must pay the Company the amount of such GST in addition to the quoted price unless stated otherwise.
• The Company must give the Customer written notice of the amount of any GST payable in respect of the supply of the Goods and/or the provision of the Services and provide a tax invoice showing the amount of GST payable.

17. COMPANY’S LIABILITY LIMITED

• Subject to clauses 17.2 to 17.4 and clause 18.7 these Terms do not affect any rights conferred by the Competition and Consumer Act 2010.
• The Customer indemnifies and keeps the Company indemnified from and against all losses, expenses, claims and demands (including but not limited to legal fees and disbursements on a solicitor/client basis), incurred, suffered or made against the Company in connection with:
  1. Any conduct by the Company or its employees or agents, or
  2. Any representation, description, undertaking, warranty or promise in relation of the Goods and/or the Services, whether express or implied, other than as contained in these Terms, unless the Customer has specifically notified the Company in writing before the date of the Agreement of such conduct, representation, description, undertaking, warranty or promise and the Customer’s reliance on it.
• The Company is not subject to, and the Customer releases the Company from any liability (including but not limited to Consequential Loss or Damage) arising from any delay in delivery or provision or fault or defect in the Goods and/or the Services. The Customer acknowledges that the Company is not responsible if the Goods and/or Services do not comply with any applicable safety standard(s) or similar regulation(s), and that the Company is not liable for any claim, cost, damage or demand resulting from such non-compliance.
• If any statutory provisions under the Competition and Consumer Act 2010 or any other statute(s) apply to the Agreement then, to the extent to which the Company is entitled to do so, the Company’s liability under the statutory provisions is limited, at the Company’s option, to:
  1. Replacement or repair of the Goods; or
  2. Supply of equivalent Goods; or
  3. Providing the Services again; or
  4. Payment of the costs of having a third party provide the Services, and in any case, the Company will not be liable for any Consequential Loss or Damage or any other direct or indirect loss or damage.

18. WARRANTY

• The Company warrant that the Goods will be supplied new (except in the sale of second hand Goods) and in an undamaged condition.
• If the Goods are properly and skilfully used by trained operators for the applications for which the Goods are designed, are housed and operated in a suitable location, are regularly serviced in accordance with the manufacturer’s specifications and are not programmed, repaired or otherwise interfered with by any person not approved by the Company then for a period of twelve (12) months, the Company further warrants that the Goods will be free of any construction defects caused by faulty workmanship or materials.
• The Customer acknowledges and agrees that:
  1. All technical data supplied by the Company in relation to the Goods are approximates only unless advised otherwise and are subject to alterations by the Company without notice;
  2. It is satisfied from its own enquiries that the specification of the Goods is correct and appropriate for the purpose required by the Customer; and
  3. Any performance values or specifications given by the Company are estimates only and the Company is under no liability for damages for failure of the Goods to attain such values or meet such specifications.
• Subject to clause 6.5, on discovery of any defect in the Goods, the Customer must immediately notify the Company in writing of such defect. The Customer must not carry out any remedial work to the Goods that is alleged to be defective without first obtaining the written consent of the Company to do so.
• The Company warrant that the Services will be provided in a professional and workmanlike manner.
• The above warranty extends only to the Customer and to no other person and does not apply to electrical components of the Goods which includes the motors and lighting.
• The provisions of any act or law (including but not limited to the Competition and Consumer Act 2010) implying terms, conditions and warranties, or any other terms, conditions and warranties which might otherwise apply to or arise out of the Agreement in relation to the Goods and/or the Services are hereby expressly negated and excluded to the full extent permitted by law.
• The Customer expressly acknowledges and agrees that it has not relied on, and the Company is not liable for any advice given by the Company, its servants, agents, representatives or employees in relation to the suitability of the Goods and/or the Services for any purpose.
• All service labour work carried out by the company shall have a warranty period of ninety (90) days from date of completion; all parts used shall be covered as per manufacturer’s warranty subject to the manufacturer’s acceptance of liability. The Company shall not be liable for the manufacturer’s warranty.
• In the event that the manufacturer’s warranty does not cover transport and labour associated with a warranty repair the Customer shall pay the Company for any transport and labour costs associated with the installation of the new part.

19. PROVISON OF SERVICES

• The Customer must pay the Service Charges.
• The Customer acknowledges and agrees that, if the Services are repair services to Customer’s property:
  1. While the Company will use its best endeavours to repair all Customers’ property, the Company will not be responsible if the Services are not successful and the Customer’s property cannot be repaired;
  2. The Customer will be liable to pay the Service Charges even if the Services are not successful; and
  3. Any time and cost estimate for the completion of the Services is based on the assumption that any spare parts required for the Services are held in stock at the Company’s Premises.
• The Customer acknowledges and agrees that, if the Services are maintenance services to Customer’s property, any time and cost estimate for the completion of the Services is based on the assumption that:
  1. Any spare parts required for the Services are held in stock at the Company’s Premises; and
  2. All previous maintenance services have been completed in accordance with the manufacturer’s specifications and manuals.

20. INSTALLATION

• If the Company installs and/or commissions the Goods then:
  1. Site preparation, electrical, pneumatic and exhaust connections must be provided by the Customer;
  2. Positioning of the Goods is the responsibility of the Customer;
  3. The Customer agrees to provide assistance when needed during installation, commissioning and/or training; and
  4. Any training is limited to an explanation of the specific utilisation of features of the Goods and does not extend to skill training such as provided by colleges and apprentice schemes for machine operation.

21. DUTY AND EXCHANGE RATES

• Customs duties and charges are included in the quoted price at the prevailing rate(s) at the date of the Agreement where applicable.
• Imported products or components are calculated at the exchange rate at the date of offer and included in the quoted price.
• If any of the duties, charges and/or rates referred to in clauses 21.1 and 21.2 vary between the date of offer and date of the Agreement, the Quote will be adjusted in accordance with the variation.

22. CATALOGUES AND INTELLECTUAL PROPERTY

• Particulars in leaflets, catalogues, drawings, brochures and other printed material are illustrations only, form no part of the Agreement between the Company and the Customer, and are not binding on the Company.
• All technical documents such as drawings, illustrations, descriptions, etc., are the exclusive property of the Company. They must not be made available to third parties, or copied, duplicated or used to reproduce any part of the Goods.
• All information, material and documents created or produced by or for the Company in relation to work undertaken pursuant to these Terms shall remain the property of the Company and all copyright and intellectual property rights are reserved and retained by the Company in all material, document, data, graphics, images and forms.
• At the expiration or earlier termination of the Agreement, the Customer shall return all documents and materials belonging to the Company to them, other than the Contractual documents which create this Agreement or which the Company is obliged to provide pursuant to this Agreement (subject to any Security Interest).
• Each of the Parties to these Terms, their employees, agents or contractors shall not disclose any information received in confidence and shall keep Confidential all information, documents and material relating to these Terms, the associated Quote and the scope of work unless permission is granted for the release, where it is necessary to obtain required permits set out in the Quote or where required to do so by a court of law.

23. FORCE MAJEURE

• The Company will not be liable for any breach of contract due to any matter or thing beyond the Company’s control (including but not limited to transport stoppages, transport breakdown, fire, flood, earthquake, acts of God, strikes, lock-outs, work stoppages, wars, riots or civil commotion, intervention of public authority, explosion or accident).

24. WAIVER OF BREACH

• No failure by the Company to insist on the strict performance of any of the terms in these Terms is a waiver of any right or remedy which the Company may have, and is not a waiver of any subsequent breach or default by the Customer.

25. NO ASSIGNMENT

• Neither the Agreement nor any rights arising under the Agreement may be assigned by the Customer without the prior written consent of the Company which is at the Company’s absolute discretion.

26. SEVERABILITY

• If any provision contained in these Terms is held by a court to be unlawful, invalid or unenforceable, the validity and enforceability of the remaining provisions are not affected.

28. CONTRACT / GOVERNING LAW

• The terms of contract between the parties are wholly contained in these Terms and any other writing signed by both parties. The Agreement is deemed to have been made at the Company’s Premises in Port Kennedy WA and any cause of action is deemed to have arisen there.

27. INDULGENCE AND SET-OFF

• Any indulgence or failure by the Company to enforce any terms or rights pursuant to these Terms or any associated agreement will not constitute a waiver of such terms and the Company shall be entitled to require strict compliance with these Terms at all times.
• The Customer cannot set-off or deduct from any payment any sum owed or claimed to be owed to the Customer by the Company.