TERMS AND CONDITIONS

RJ Ventilation Services Pty Ltd – Terms and Conditions

1. DEFINITIONS AND INTERPRETATION

1.1. Definitions

“Agreement” shall mean the Sales Order and these terms and conditions.

“Goods” shall mean all goods supplied, or to be supplied, to the Purchaser by the Supplier pursuant to the Agreement.

“Goods and Services” shall mean all Goods and any products, services, and advice provided by, or to be provided by, the Supplier to the Purchaser pursuant to the Agreement and shall include, without limitation, the design, manufacture, development, sale, installation, repair and maintenance of ventilation equipment and the supply of componentry and parts.

“Installation Site” shall mean the building, premises or building site where the Goods and Services shall be delivered and installed (as applicable).

“Price” shall mean the cost of the Goods and Services as agreed between the Supplier and the Purchaser as recorded in the Sales Order, subject to clause 4.

“Purchaser” shall mean the party described as such in the Sales Order.

"Sales Order” shall mean the product request form to which these terms and conditions are attached.

“Subcontractor” shall mean any third party (e.g., qualified electrician) engaged by either party to provide supplementary services in respect of the Agreement.

“Supplier” shall mean the party described as such in the Sales Order.

“Supplier’s Privacy Policy” means the privacy policy of the Supplier from time to time available at [insert].

1.2. Interpretation

Nothing in the Agreement excludes, restricts or modifies, or has the effect of excluding, limiting or modifying, any condition, warranty, guarantee, right or remedy implied by law (including the consumer guarantee provisions in the Australian Consumer Law (“ACL”)) and which by law cannot be excluded, restricted or modified.

2. INCONSISTENCY

Except as otherwise provided in these terms and conditions, these terms and conditions (which can only be waived in writing and signed by the Supplier and the Purchaser) will prevail over all conditions of the Sales Order to the extent of any inconsistency.

3. QUOTATION

3.1. Where the Supplier gives a quotation for the Goods and Services to the Purchaser:

3.1.1. unless otherwise agreed, the quotation shall be valid for thirty (30) days from the issue date; and

3.1.2. unless otherwise stated, all prices quoted by the Supplier are exclusive of GST.

3.2. The Supplier reserves the right to alter the quotation price because of circumstances beyond its control.

3.3. Where Goods and Services are required in addition to the Goods and Services which are subject to the quotation, the Purchaser agrees to pay for the additional costs of such additional Goods and Services.

4. PRICE

4.1. Where no Price is stated in writing or agreed to orally, the Goods and Services shall be deemed to be sold at the current amount as such Goods and Services are sold by the Supplier at the time of the Sales Order.

4.2. The Price may be increased following consultation with the Purchaser by the amount of any reasonable increase in the cost of supply of the Goods and Services that is beyond the control of the Supplier between the date of the Sales Order and delivery of the Goods and Services.

5. PAYMENT

5.1. Payment of the Price shall be made as follows:

5.1.1. where the Installation Site is under construction or not yet started, a deposit equivalent to 50% of the Price is to be paid immediately after the Purchaser signs the Agreement or, in all other cases, a deposit equivalent to 20% of the Price is to be paid immediately after the Purchaser signs the Agreement; and

5.1.2. the balance of the Price is to be paid immediately on delivery or (where applicable) installation (“Payment Due Date”).

5.2. The Supplier may waive the deposit in clause 5.1.1 where the installation of the Goods and Services will take place within two (2) weeks of the Agreement being signed, in which case the Purchaser must pay the full amount of the Price on the Payment Due Date.

5.3. If the Purchaser is a third-party real estate property manager or agent, the Purchaser warrants, and will procure, that the landlord complies with the payment terms as set out in the Agreement.

5.4. The Purchaser must pay interest on any outstanding amount not paid by the Payment Due Date. Interest will be calculated at the Reserve Bank of Australia Official Cash rate, as published occasionally, plus 2.5%. Interest will accrue daily from the Payment Due Date until the outstanding amount is paid in full.

5.5. Expenses, disbursements, and legal costs incurred by the Supplier in enforcing any rights contained in the Agreement due to default by the Purchaser shall be paid by the Purchaser, including any solicitor’s fees or debt collection agency fees.

5.6. Receipt of a cheque, bills of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.

5.7. The Supplier and the Purchaser each acknowledge and agree that the Agreement is not a consumer credit contract for the purposes of the Consumer Credit Code.

6. INSTALLATION

6.1. If the Installation Site is under construction or not yet started, the parties agree that:

6.1.1. the Supplier will undertake the installation of the Goods and Services within two onsite installation bookings; and

6.1.2. if the Supplier cannot undertake the installation of the Goods and Services within two such bookings because of delays at the Installation Site, further visits will incur an additional $500 call-out fee for each installation booking exceeding the two onsite visits.

6.2. Where a power supply is required for any installation of the Goods and Services, either party may engage a Subcontractor to provide this service.

6.3. Where the Supplier engages a Subcontractor pursuant to clause 6.2:

6.3.1. the Supplier will procure that the Subcontractor provides a certificate of compliance for any works undertaken; and

6.3.2. the cost of the works will be included in the Price unless otherwise agreed.

7. RISK

7.1. The Goods and Services remain at the Supplier’s risk until delivery to the Purchaser.

7.2. Delivery of the Goods and Services shall be deemed complete when the Supplier gives possession of the Goods and Services directly to the Purchaser or possession of the Goods and Services is given to a carrier, courier, or other bailee for purposes of transmission to the Purchaser.

8. TITLE AND SECURITY

8.1. Title in any Goods and Services supplied by the Supplier passes to the Purchaser only when the Purchaser has made payment in full for all Goods and Services provided by the Supplier and any other sums due to the Supplier by the Purchaser on any account whatsoever. Until all sums due to the Supplier by the Purchaser have been paid in full, the Supplier has a security interest in all Goods and Services.

8.2. If the Goods and Services are attached, fixed, or incorporated into any property of the Purchaser, by way of any manufacturing, installation, or assembly process, title in the Goods and Services shall remain with the Supplier until the Purchaser has made payment for all Goods and Services.

8.3. The Purchaser gives irrevocable authority to the Supplier to enter any premises occupied or owned by the Purchaser, or on which Goods and Services are situated, at any reasonable time after default by the Purchaser or before default if the Supplier believes a default is likely, and to remove and repossess any Goods and Services and any other property to which Goods and Services are attached or in which Goods and Services are incorporated. The Supplier shall not be liable for any costs, damages, expenses or losses incurred by the Purchaser or any third party as a result of this action, nor liable in contract or in tort or otherwise in any whatsoever unless by statute such liability cannot be excluded. The Supplier may either resell any repossessed Goods and Services and credit the Purchaser’s account with the net proceeds of the sale (after deduction of all repossession, storage, selling and other costs) or may retain any repossessed Goods and Services and credit the Purchaser’s account with the invoice value less such sum as the Supplier reasonably determines on account of wear and tear, depreciation, obsolescence, loss of profits and costs.

8.4. The following shall constitute defaults by the Purchaser, without limitation:

8.4.1. non-payment of any sum by the due date; and

8.4.2. before the Purchaser makes full payment of the Price, any Goods and Services being seized by any other creditor of the Purchaser or any other creditor intimating that it intends to seize any Goods and Services, or the Purchaser being bankrupted or put into liquidation or a receiver being appointed to any of the Purchaser’s assets or a landlord detraining against any of the Purchaser’s assets, or a Court judgment being entered against the Purchaser and remaining unsatisfied for seven (7) days.

9. PERSONAL PROPERTY SECURITIES ACT 2009 (CTH) (“PPSA”)

9.1. Expressions defined in the PPSA have the same meaning when used in the Agreement.

9.2. The Agreement is a security agreement. The interest of the Supplier in the Goods and Services and all proceeds from the sale of the Goods and Services by the Purchaser to a third party is a security interest.

9.3. The Purchaser consents to the Supplier registering its security interest on the Personal Property Securities Register and agrees to provide all assistance reasonably required by the Supplier to facilitate registration.

9.4. Until title in the Goods and Services has passed to the Purchaser as contemplated by clause 8, the Purchaser agrees not to in any way assign, charge, lease or otherwise deal with the Goods and Services in such a manner as to create a security interest over the Goods and Services in favour of the Purchaser or any third party. The parties agree that this clause will not prohibit the Purchaser from selling the Goods and Services in the ordinary course of business.

9.5. The Purchaser waives its rights to receive any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.

9.6. The Supplier and the Purchaser agree that the Agreement and all related information and documents are confidential (“Confidential Information”) and will not be disclosed to unauthorised representatives or third parties, except to the extent disclosure is permitted by the Agreement or required by law. The Supplier and the Purchaser agree that the Supplier will not disclose the Confidential Information pursuant to a request under section 275(1) of the PPSA.

9.7. Unless the Goods and Services are used predominantly for personal, domestic or household purposes, the Supplier and the Purchaser agree that each of the following requirements or rights under the PPSA does not apply to the enforcement of the Supplier’s security interest in the Goods and Services or otherwise under the Agreement:

9.7.1. any requirement for the Supplier to give the Purchaser a notice of removal of accession;

9.7.2. any requirement for the Supplier to give the Purchaser a notice of the Supplier’s proposed disposal of the Goods and Services;

9.7.3. any requirement for the Supplier to include in a statement of account, after disposal of the Goods and Services, the details of any amounts paid to other secured parties;

9.7.4. any requirement for the Supplier to give the Purchaser a statement of account if the Supplier does not dispose of the Goods and Services;

9.7.5. any right the Purchaser has to redeem the Goods and Services before the Supplier exercises a right of disposal; and

9.7.6. any right the Purchaser has to reinstate the Agreement before the Supplier exercises a right of disposal of the Goods and Services.

10. RETURN OF GOODS

10.1. All Goods and Services to be supplied by the Supplier to the Purchaser are as described in the Sales Order and the description in such Sales Order prevails over all other descriptions of the Goods and Services including any specification or enquiry of the Purchaser.

10.2. All Goods and Services are received subject to inspection of the Goods and Services within 30 days after delivery or (where applicable) installation. No claim relating to the Goods and Services will be accepted unless made within 30 days after delivery or (where applicable) installation.

10.3. Except for any provisions to the contrary contained in the Agreement, the Supplier is not under any duty to accept Goods and Services returned by the Purchaser. The Supplier will do so only on terms to be agreed in writing in each individual case.

10.4. If the Supplier agrees to accept returned Goods and Services from the Purchaser under clause 10.3, the Purchaser must return the Goods and Services to the Supplier at the Supplier’s place of business referred to in the Sales Order.

11. PRODUCT WARRANTY

11.1. The Supplier warrants that the Goods and Services:

11.1.1. are fit for the purpose for which Goods and Services of the same kind are commonly supplied;

11.1.2. are of merchantable quality; and

11.1.3. carry an applicable manufacturer’s warranty.

11.2. A 5-year warranty for major defects in the Goods and Services is provided by the Supplier to the Purchaser from the date of delivery or (where applicable) installation.

11.3. To the fullest extent permitted by law, except as expressly set out in the Agreement, the Supplier disclaims all other warranties, whether express or implied, oral or written, with respect to the Goods and Services or any part of the Goods and Services.

12. SYSTEM PERFORMANCE

12.1. Any performance figures given by the Supplier in respect of the Goods and Services are estimates only. The Supplier is under no liability for damages for failure of the Goods and Services to attain such figures unless specifically guaranteed in writing. Any such written guarantees are subject to the recognised tolerances applicable to such figures.

12.2. The Purchaser acknowledges and agrees that:

12.2.1. certain factors which are outside the control of the Supplier may reduce the performance of the Goods and Services. Such factors could include sufficient indoor heating, the Purchaser’s lack of adherence to the published instruction manual, the features of the property where the Goods and Services are installed, such as its layout, building materials and design, climatic conditions, and other factors such as weather;

12.2.2. in addition to installing the Goods and Services, reducing condensation requires sufficient heating, ventilation, and insulation. If ventilation alone is being used to control internal temperature without additional heating or adequate insulation, moisture already present within the building envelope may result in condensation during cold periods. Even in ventilated properties, condensation can still appear during very cold periods, and

12.2.3. the Goods and Services alone may not be enough to maintain a comfortable indoor environment and additional heating may be required.

HRV System-Specific Clauses:

12.3. The Purchaser further acknowledges and agrees that:

12.3.1. if inadequate ventilation or dampness is present in part of the Purchaser’s home, including either or both the roof cavity or sub-floor (“Factors”), the performance of the Goods and Services and any accessories may be negatively impacted, and

12.3.2. the Factors are outside the Supplier’s control and can limit the performance of the Goods and Services. Whether the Purchaser will be affected by the Factors will depend on the property where the Goods and Services are installed.

12.4. Before purchase, the Supplier may:

12.4.1. inspect the property to identify whether any Factors are present;

12.4.2. discuss the Factors detected as present or possible with the Purchaser;

12.4.3. explain how the Factors could potentially reduce the performance of the Goods and Services; and

12.4.4. if applicable, suggest ways to mitigate the Factors.

12.5. Should the Purchaser purchase the Goods and Services following notification that the Factors may apply to the relevant property, the Purchaser will not hold the Supplier responsible for any reduced performance of the Goods and Services due to these Factors unless the Purchaser has acted on any mitigation advice given by the Supplier to the Supplier’s satisfaction.

12.6. The Purchaser acknowledges that any advice given by the Supplier is based on the conditions of the property at the time of the Supplier’s inspection and that property conditions can change. The Purchaser will hold harmless the Supplier from any further action, demand, or responsibility about the performance of the Goods and Services to the extent that this results from changes in the condition of the property that, in the reasonable opinion of the Supplier, negatively influence the Factors.

13. LIABILITY

13.1. The Supplier’s liability for a breach of a condition or warranty implied by Chapter 3, part 3-2, division 1 of the ACL is limited to:

13.1.1.  in the case of Goods, any one or more of:

13.1.1.1. the replacement of the Goods or the supply of equivalent goods;

13.1.1.2. the repair of the Goods;

13.1.1.3. the payment of the cost of replacing the Goods or acquiring equivalent goods; and

13.1.1.4. the payment of the cost of having the Goods repaired; or

13.1.2. in the case of any services:

13.1.2.1. the supplying of the services again; or

13.1.2.2. the payment of the cost of having the services supplied again.

13.2. Except as otherwise provided by clause 13.1, the Supplier shall not be liable for any loss or damage of any kind whatsoever arising from the supply of (or delay in supplying or failure to supply) the Goods and Services by the Supplier to the Purchaser, including consequential loss whether suffered or incurred by the Purchaser or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly from the Goods and Services provided by the Supplier to the Purchaser.

13.3. The Purchaser shall indemnify the Supplier against all claims and loss of any kind whatsoever, however caused or arising, and without limiting the generality of this clause, or arising as a result of the negligence of the Supplier or otherwise, brought by any person in connection with any matter, act, omission, or error by the Supplier, its agents or employees in connection with the Goods and Services.

13.4. The parties acknowledge that the Supplier would be indemnified by the manufacturer under section 274 of the ACL if the Supplier:

13.4.1. is liable to pay damages under section 259(4) of the ACL to the consumer for loss or damage suffered by the consumer; and

13.4.2. the manufacturer is or would be liable under section 271 of the ACL to pay damages to the consumer for the same loss or damage.

14. COPYRIGHT

The Supplier owns and has copyright in all designs, specifications, documents, work and software produced by the Supplier in connection with the Goods and Services provided pursuant to the Agreement. The Purchaser may use the Goods and Services only if paid for in full and only for the purpose for which they were intended and supplied by the Supplier.

15. COLLECTION AND USE OF INFORMATION

15.1. The Purchaser authorises the Supplier to collect, retain and use any information about the Purchaser to assess the Purchaser’s creditworthiness, enforce any rights under the Agreement, or market any Goods and Services provided by the Supplier to any other party in accordance with the Supplier’s Privacy Policy.

15.2. The Purchaser authorises the Supplier to disclose any information obtained to any person for the purposes set out in clause 15.1.

15.3. Where the Purchaser is a natural person, the authorities under clauses 15.1 and 15.2 are authorities or consents for the purposes of the Privacy Act 1998 (Cth) and the Australian Privacy Principles.

16. PERSONAL GUARANTEES

If the Purchaser is a company or trust, or if the Agreement is signed by an agent of the Purchaser, the director(s) or trustee(s) or other person signing the Agreement for or on behalf of the Purchaser, in consideration for the Supplier agreeing to supply the Goods and Services to the Purchaser at their request, also sign the Agreement in their personal capacity and jointly and severally personally guarantee as principle debtors to the Supplier the payment of any and all monies payable to the Supplier under the Agreement. They also jointly and severally indemnify the Supplier against non-payment by the Purchaser. Personal liability as a signatory shall not exclude the Purchaser in any way whatsoever from the liabilities and obligations contained in the Agreement. The signatories and the Purchaser shall be jointly and severally liable under the Agreement for payment of all sums due.

17. MISCELLANEOUS

17.1. Failure by the Supplier to enforce any of the terms and conditions contained in the Agreement shall not be deemed to be a waiver of any of the rights or obligations the Supplier has under the Agreement.

17.2. If any provision of the Agreement shall be invalid, void, or illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

17.3. The Agreement is governed by the laws of Victoria. Each party irrevocably and unconditionally:

17.3.1. submits to the non-exclusive jurisdiction of the courts of Victoria; and

17.3.2. waives any claim or objection based on the absence of jurisdiction or inconvenient forum.

Copyright © 2019 RJ Ventilation Services Pty Ltd - All Rights Reserved