1.1 -These terms and conditions (Conditions) shall apply to and form part of any contract created for the supply of goods, products and materials (Goods) and the provision of related installation and other services (Services) by Ultra Air Conditioning Pty Ltd ABN (“Ultra”) and its agents,
servants and employees, to a purchaser, who shall include the person, persons, company or business entity to whom Ultra sells or supplies, or proposes to sell or supply, the said Goods and/or Services (Purchaser).
2.1– All quotations, tenders, offers, orders and contracts are made or accepted and all Goods and/or Services are subject to acceptance by Ultra and, if accepted, are supplied subject to these Conditions and any special terms and conditions which are imposed or agreed to by Ultra from time to time, strictly unless varied in writing.
2.2 – Ultra may withdraw, revoke or vary a written quotation at any time.
2.3 – Ultra reserves the right to accept or decline, in whole or in part, any order for Goods and/or Services placed by a Purchaser.
2.4 – The contract to supply Goods and/or Services to the Purchaser commences from the date Ultra agrees to supply the Goods and/or Services to the Purchaser.
2.5 – Where in the period between acceptance of a quote and delivery of the relevant Goods and/or Services, Ultra incurs an increase in the cost of producing and/or delivering the Goods and/or Services, Ultra reserves the right to increase the quoted price of those Goods and/or Services any time prior to delivery (a ‘price escalation’). The Purchaser shall accept any such price escalation. Otherwise, official quotes issued by Ultra are valid for a maximum of thirty (30) days from the date of issue.
2.6 – All quoted prices are based on the quantity of work indicated in any quotation, tender, offer, order or contract documents. Ultra reserves the right to increase the price should the amount of work change due to factors outside Ultra’s control including but not limited to if quantities
originally quoted are varied, if all specifications do not meet those represented by the Purchaser, if any relevant representation made by the Purchaser is incorrect, incomplete or otherwise deficient and the Purchaser shall accept any such price escalation.
2.7 – If a delivery date is specified in any quotations, tenders, offers, orders or contracts, this date is an estimate only and Ultra is not liable for any delay in delivery. 2.8 – These Conditions prevail over any terms and conditions of trade of the Purchaser whether or not any inconsistency arises.
2.9 – Each of the provisions of any contract formed is severable from the others in that if at any time one or more of such provisions is or becomes void, invalid, illegal or unenforceable for any reason the remaining provisions of said contract will not be affected.
2.10 – Failure by any third party to make payment to the Purchaser for Goods and/or Services supplied by Ultra shall not be valid grounds for non-payment by the Purchaser.
2.11 – Any Goods ordered on behalf of the Purchaser are payable by the Purchaser in full if the Purchaser decides to cancel or amend the order for any reason, at any time.
2.12 – The Purchaser may not cancel an order, nor delay delivery, following acceptance unless Ultra agrees in writing and payment of Goods supplied up to that time is made by the Purchaser in full and cleared funds.
2.13– The Purchaser acknowledges that Ultra has a no refund policy. Once terms are accepted and a deposit is paid, such deposit is not refundable in the absolute discretion at all times of Ultra.
3.1 – Any quotation or statement of price provided is an invitation to treat only and is not an obligation to sell or offer to supply. Any quotation given on price is an estimate only.
3.2 – Acceptance of a quotation by the Purchaser is a contract only for the work detailed in that quotation. Reference in the Purchaser’s acceptance to any matter whatsoever not mentioned in the initial enquiry by the Purchaser (if any) and/or not detailed in Ultra’s quotation, is to be deemed to be a notification of additional items for which the Purchaser requires a further quotation. Any such additional Goods and/or Services must be agreed in writing.
3.3 – Any quotation is made on the basis that the addressee is the Purchaser, and that any order authorisation or contract, formal or informal, will be binding on the addressee or on the basis that the addressee is the agent of a third party with lawful authority to bind its client in a contract for the quoted Goods and/or Services.
4.1 – The price for the supply of Goods and/or Services may be subject to any price escalation made before or after the acceptance of quotation, order or contract and also during the currency of any order or contract, either made orally or in writing, unless otherwise stated in writing. Unless otherwise indicated, all prices for Goods and/or Services are exclusive of all applicable taxes and charges.
4.2 – All prices are based on the quantity of Goods and/or Services indicated by the Purchaser. Ultra reserves the right to change the price where the quantity of Goods and/or Services changes for any reason.
4.3 – Within Australia, the price or other amounts quoted exclude GST unless otherwise specified. The Purchaser shall be liable for all excise, sales, GST or any other tax, charge or government impost (domestic or foreign) upon the Goods and/or Services or any part of the Goods and/or
Services, or upon the manufacture, use, sale or delivery of the Goods and/or Services, in addition to the purchase price. Where Goods and/or Services are subject to GST, the Purchaser must pay GST at the same time as payment for the Goods and/or Services is made.
4.4 – Unless otherwise agreed, prices do not include the cost of delivery of Goods, including but not limited to costs incurred by Ultra arising out of late notification by the Purchaser of a change to agreed delivery schedule and storage charges where Goods are not collected immediately upon being made available.
4.5 – If for any reason the Goods ordered are unavailable, Ultra reserves the right to substitute
alternative goods provided that they are reasonably equivalent in all respects (unless agreed otherwise, in writing).
4.6 – These Conditions may be altered by Ultra on written notice.
4.7 – All quotations compiled in reliance on documentation provided by the Purchaser or any third party is subject to amendment where the said documentation proves to be deficient in any way.
- Offer and Acceptance
5.1– A quotation by Ultra is not an offer, and an order given pursuant to any quotation shall not bind Ultra until accepted by it in writing or by the commencement of the supply of Goods and/or Services. Unless otherwise agreed in writing these Conditions shall be deemed to be incorporated in any contract between Ultra and the Purchaser.
Any terms and conditions contained in any order offer acceptance or other document of the Purchaser which are inconsistent with these Conditions are expressly excluded.
5.2 – Any date quoted by Ultra for completion is an estimate only and unless a written guarantee has been given by Ultra, it shall not be liable to the Purchaser for any loss or damage (even if arising out of the negligence of Ultra) caused by the failure to complete the supply of Goods and/or Services on or before the quoted date.
- Retention of Title to Goods and PPSA:
6.1 – Legal and equitable title to Goods and/or Services sold by Ultra to the Purchaser will not pass from Ultra to the Purchaser until the later of:
a) unconditional payment in full to Ultra for those Goods and/or Services; and
b) unconditional payment in full of any and all other amounts owing or unpaid by the Purchaser to Ultra on any account, including but not limited to in respect of Goods and/or Services previously or subsequently supplied to the Purchaser.
6.2 – Payment in full will not be regarded as having been received by Ultra unless and until payment is made in cleared funds.
6.3 – Until such time as title to Goods passes to the Purchaser under this clause:
a) the Purchaser will hold the Goods as bailee for Ultra and will be responsible for any loss, damage or conversion of the Goods;
b) the Purchaser must store the Goods physically separate from the other goods of the Purchaser and in such a manner as to identify the Goods and show clearly that they are owned by and remain Ultra’s property;
c) Ultra may enter any premises owned or occupied by the Purchaser or its agents to take possession of any Goods to which title has not passed and where payment on any account is overdue, or inspect the Goods or inspect the Purchaser’s books and records regarding the Goods at any time (at its discretion);
d) the Purchaser must ensure that the Goods are not and will not be subject to any encumbrance or other security interest (including a lien) granted or created in favour of any third party (whether under contract, statute or common law) without Ultra’s prior written consent.
6.4 – Despite this clause 6, Ultra is entitled to maintain an action against the Purchaser for payment of the purchase price of Goods and/or Services.
6.5 – The Purchaser agrees that this clause creates a security interest (including, where applicable, a purchase money security interest, as defined in the PPSA) in Goods (and their proceeds, as defined in section 31 of the PPSA) supplied by Ultra to the Purchaser from time to time.
6.6 – The Purchaser agrees to do all things necessary and execute all documents required by Ultra to register each security interest in the Goods, and ensure that Ultra acquires a perfected security interest in the Goods, under the PPSA.
6.7 – Until title to Goods passes, the Purchaser waives its rights under the relevant sections of the PPSA, to the extent that is permitted by law.
6.8 – The Purchaser agrees that repossession and retention of Goods pursuant to the PPSA will only satisfy so much of the amounts owing by the Purchaser to Ultra as is equivalent to Ultra’s estimation of the net realisable value of the Goods, or their cost price (whichever is the lower) as at the date of repossession, and the repossession and retention will immediately extinguish any rights or interest the Purchaser has in the Goods.
6.9 – Until title to Goods passes to the Purchaser under this clause the Purchaser must not give to Ultra a written demand, or allow any other person to give to Ultra a written demand, requiring Ultra to register a financing change statement under the PPSA in respect of or affecting any Goods,or enter into or allow any other person to enter into the personal property securities register a financing change statement under the PPSA in respect of or covering the Goods.
6.10 – The Purchaser will be responsible for payment of any fees (and any other costs) that Ultra incurs in relation to investigating, perfecting or registering Ultra’s security interest in the Goods,
and those fees and costs may be added as a charge on invoices issued by Ultra to the Purchaser.
- Warranty and Ultra’s Liability on Breach:
7.1-No conditions, descriptions, representations, statements or warranties on the part of Ultra given or implied or deduced to be given or to be implied from anything said or written in the negotiations between the parties and their representatives, and any and all statutory or other
warranties, conditions, descriptions or representations, expressed or implied by law as to the state, quality, condition or fitness of the Goods are hereby expressly excluded, and are not binding on Ultra unless set out in these Conditions or unless they cannot by law be excluded from the contract between Ultra and the Purchaser in which case they are declared to apply without restriction, limit or modification notwithstanding anything inconsistent with these Conditions. The only conditions and warranties that are binding on Ultra in respect of the state, quality, condition or fitness of the Goods supplied by it to the Purchaser, are those imposed and required to be binding by statute. For the avoidance of any doubt, Ultra provides no warranties, and shall not be liable, for the Goods where the Goods incorporate material that has been supplied by the Purchaser. To the extent permitted by statute, Ultra’s liability, if any, for breach of a warranty referred to in this clause (whether express or implied by law) shall be limited to and completely discharged by (at the sole discretion of Ultra):
7.2 – the replacement of the Goods or the supply of equivalent Goods (where the Goods supplied are defective); or
7.3 – the repair of the Goods (where the Goods are defective); or
7.4 – the payment of the costs of replacing the Goods or of acquiring equivalent Goods (where the Goods are defective); or
7.5 – the payment of the costs of having the Goods repaired where the Goods are defective. The Purchaser acknowledges that it does not rely, and it is unreasonable for the Purchaser to rely, on the skill or judgment of Ultra as to whether the Goods supplied are reasonably fit for any purpose for which they are being acquired, and that the sale is not a sale of Goods by description or sample. The Purchaser shall take the Goods at its own risk as to their state, quality, condition or sufficiency and fitness for any purpose. Under no circumstance will Ultra’s liability exceed the purchase price. To the extent possible, Ultra will pass on to the Purchaser any manufacturer’s or supplier’s warranty in respect of the Goods.
8.1 – If Ultra is prevented from delivering Goods and/or Services for any cause beyond its control it shall be entitled to cancel the contract or the balance of the contract between it and the Purchaser by notice in writing to the Purchaser and the Purchaser shall not have any claim whether in contract, tort or otherwise, for damages against Ultra in respect of any such cancellation and the Purchaser shall be liable to pay the reasonable charges of Ultra up to the time of such cancellation. If either party is prevented from or delayed in complying with any obligation (other than to pay money or any obligation already covered in this clause) by an event beyond its control, performance by it of that obligation is suspended during the time, but only to the extent that compliance is prevented or delayed, and where such delay continues for a consecutive period exceeding 6 months, or otherwise by mutual agreement, the parties may terminate the affected contract.
- Cancellation by Ultra:
9.1-In addition to any rights of Ultra which are implied by legislation (which shall apply to these Conditions) Ultra shall be entitled to cancel the contract or the balance of the contract between it and the Purchaser where the Purchaser has not complied with the applicable terms of payment.
- Payment of Price and Failure to Pay:
10.1 – Unless an account is held with Ultra, payment terms are cash or electronic funds transfer upon delivery or collection of Goods or revision of Services. Where an account is held and if not specified in Ultra’s special terms and conditions, payment of a Ultra invoice must be made in full as specified in any quote or invoice, even if any Goods have not been installed or commissioned or Services rendered in full.
10.2 – If the Purchaser does not pay Ultra on time, Ultra may:
– require that all future dealings be on the basis of cash payments upon placing an order;
– without notice to the Purchaser, withdraw or vary any credit facilities Ultra previously provided (if any); and/or
– where delivery is by instalment, Ultra may withhold indefinitely any further instalments until full payment for prior instalments has been made.
In this clause, the words “cash payments” exclude cheques which have not been cleared by a bank prior to the delivery of Goods.
10.3 – If the Purchaser does not pay Ultra on time it will not be entitled to use any credit facility Ultra extended to it (if any) until the Purchaser makes a new application for credit, which application may be refused.
10.4 – Payments by credit card attract a surcharge of 1.5% added for each payment transaction.
10.5 – If the Purchaser fails to make payment when due pursuant to these Standard Terms and Conditions of Sale, the amount unpaid will incur compound interest at the rate of 1.5% per cent per month on the amount outstanding, compounding daily, in respect of each day that the amount
outstanding remains unpaid (Interest) until the date payment is received. Interest calculated daily will accrue at such a rate after, as well as before, any judgment.
10.6 – If the Purchaser fails to pay any amount that is due and payable pursuant to these Conditions, Ultra reserves the right to suspend or cancel undelivered orders. Ultra is also entitled to appoint a debt collector or debt collection agency/agencies and/or initiate legal action seeking recovery of all monies as well as Interest on the unpaid amount (both before and after judgment, where applicable) and the Purchaser agrees that it will have to pay Ultra any and all costs it incurs associated with enforcing its rights under these Standard Terms and Conditions of Sale, including –but without limitation – recovery of the unpaid amount, legal costs, administration costs and all other costs relating to debt collection including the cost of appointing, and fees charged by, debt collectors or debt collection agencies.
10.7 – Notwithstanding any other remedies available to Ultra (either pursuant to these Conditions or at law) to recover any amount due and payable to it, if:
– the Purchaser defaults in payment of the price (or any part thereof) for the supply of Goods and/or Services,
– in Ultra’s opinion the Purchaser will be unable to meet its payment obligations to Ultra as they fall due,
– a receiver, manager, administrator or controller becomes entitled to take possession of any of the Purchaser’s assets,
– any proceedings are instituted for the Purchaser’s winding up,
– the Purchaser enters into a deed of company arrangement,
– the Purchaser becomes an externally-administered body corporate,
– the Purchaser becomes insolvent,
– a change occurs in the ownership of the Purchaser or the ownership of the Purchaser’s business
or in its directors, or
– otherwise upon any default or breach of these Conditions,
then, without prejudice to the other rights of Ultra:
– all amounts owing to Ultra will, whether or not due for payment, become immediately payable by the Purchaser,
– the Purchaser’s right to possess, use up, sell or otherwise deal with Goods in respect of which title
has not passed to the Purchaser will cease,
– Ultra may immediately cease or suspend the supply of further Goods and/or Services and/or
terminate or suspend any orders accepted by Ultra that have not been performed and
– Ultra may initiate proceedings for recovery, at its complete discretion and without incurring any liability to the Purchaser, without mediating,
without giving the Purchaser notice and without affecting any other rights or remedies available to Ultra. Ultra may also enter onto any premises where the Goods in respect of which title has not passed to the Purchaser are stored, and take immediate possession of and re-sell any Goods for
which payment remains outstanding. Ultra is not liable to the Purchaser if it takes any such action.
The Purchaser indemnifies Ultra in respect of any claims or actions against, and costs, expenses and other liabilities incurred by Ultra in relation to:
– The removal, repossession, transportation, storage and sale of Goods pursuant to these Conditions, including without limitation any claims brought by third parties; and
– Any of the matters set in this clause.
The Purchaser is not entitled to any retention from any amount due to Ultra.
10.8 – Ultra reserves the right to set off against, or deduct from, any monies it at any time owes to the Purchaser on any account, any monies the Purchaser owes to it, but shall not be obliged to do
so. The Purchaser is not entitled to set off against or retain any monies from monies owed by the Purchaser to Ultra.
- Use of Goods, Purchaser Specifications and Technical Advice and Assistance:
11.1– Where Goods are supplied by it, it is not Ultra’s practice to recommend or warrant that the Goods are suitable for a particular purpose or use and the Purchaser acknowledges that:
– it does not rely upon nor is it reasonable for it to rely upon any opinion of Ultra in this regard; and
– in choosing the Goods the Purchaser has relied entirely on its own knowledge and expertise.
11.2– Ultra shall not be liable for any error, omission or inaccuracy in any drawings or specifications provided or approved by the Purchaser.
11.3– Ultra shall not be liable in any circumstances for any technical advice or assistance given or rendered by it to the Purchaser in connection with the supply of Goods save as provided in these Conditions.
- Law of New South Wales:
12.1-The contract between Ultra and the Purchaser shall be construed and take effect in accordance with and be governed by the laws in force in the State of New South Wales and each party submits to the jurisdiction of the courts of New South Wales in relation to any dispute arising
out of any contract.
13.1-Any dispute or difference between Ultra and the Purchaser which cannot be settled between
the parties by direct negotiation, must be referred to an arbitrator of mutual agreement and,failing agreement, to the Australian Commercial Disputes Centre whose decision in all respects shall be final and binding.
14.1 – “GST” means Goods and Services Tax or other tax that substitutes or replaces the Goods and Services Tax from time to time;
14.2 – “PPSA” means the Personal Property Securities Act 2009 (Cth) as amended from time to time;