Terms & Conditions

TERMS AND CONDITIONS OF TRADE (6/2009)

To the fullest extent legally possible, all dealings between COLDFLOW AIRCONDITIONING PTY LTD ACN 095 808 129 (& each of its subsidiaries, divisions, affiliates, associated & related entities & its successors & assigns) (“Coldflow”) & any Customer (” Customer”) relating to any goods or services are subject to the following Terms & Conditions of Trade (“these Terms”) unless otherwise agreed in writing.

1.Payments: (a) Unless otherwise agreed by Coldflow in writing, payment must be made without deduction, retention or set-off of any kind, upon completion of installation (or such other payment terms notified by Coldflow) and Coldflow reserves the right to require a deposit (of any amount it deems fit) to be paid at the time of the Customer placing its order; (b) Coldflow may apply a payment received from the Customer to any amounts owed by the Customer (including interest, part payment of an invoice, administration, collection and other costs) in any order; (c) Coldflow is entitled to set-off or deduct any amount payable by Coldflow to the Customer.

2. Interest: Interest is payable on overdue accounts at the rate prescribed under the Penalty Interest Rates Act 1983 (Vic) plus an additional 3% and a monthly admin fee of $25 will apply.

3. Property: (a) Property in goods will not pass until payment in full of all monies owed to Coldflow on any basis (“Full Payment”); (b) Coldflow reserves the right to take possession and dispose of goods as it sees fit at any time until Full Payment and the Customer grants permission to Coldflow to enter any property where any goods are, in order to do so and with such force as necessary; (c) Immediately upon delivery the Customer accepts liability for the good; (d) A certificate signed by an officer of Coldflow identifying goods and certifying that monies are owing to Coldflow will be conclusive evidence of Coldflow’ title thereto; (e) Upon sale or disposition of goods prior to Full Payment the Customer agrees to hold all proceeds Upon Trust for Coldflow in a separate bank account, agrees not to mix proceeds with any other monies and will immediately account to Coldflow therefore even if Coldflow may have granted any credit facility and/or time to pay; (f) Until Full Payment the Customer agrees: (i) to keep all goods as fiduciary for Coldflow and store them in a manner which shows Coldflow as owner; (ii) only to sell goods in the usual course of business; (iii) sale on terms, at cost or less than cost will not be “in the usual course” (g) Clause 3 is not intended to create a charge and must be read down to the extent necessary to avoid being a charge; (h) If the Customer uses or incorporates any goods in any production, process or manufacture or combines them with anything to create a finished or combined new thing for disposition then upon such disposition prior to Full Payment, the Customer agrees to hold such part of the proceeds thereof (and until payment is received by the Customer, that part of any applicable book debt) as equals the costs of the goods used and/or incorporated therein (at the prices invoiced by Coldflow to the Customer) Upon Trust for Coldflow until Full Payment.

4. Limitation of Liability: Subject always to the operation of clause 40: (a) The Customer must limit any claim upon Coldflow relating to goods, to the cost of replacement of goods or the supply of equivalent goods and relating to services, to the cost of having services supplied again; (b) Coldflow will not be liable for any claim arising after 7 days from delivery of goods or performance of services (or at all once goods have been unpacked, modified, on-sold or otherwise used or applied) after which there will be deemed to be unqualified acceptance; (c) Coldflow will not be liable in any way for any contingent, consequential, direct, indirect, special or punitive damage arising whether due to Coldflow’s negligence or otherwise and the Customer acknowledges this limit of liability and agrees to limit any claim accordingly; (d) No other term, condition, agreement, warranty, representation or understanding whether express or implied in any way extending to or otherwise relating to or binding upon Coldflow is made or given; (e) Coldflow will not be liable for any claim relating to or arising from any alleged fault or defect, whether caused or contributed to by Coldflow, the Customer or any 3rd party or otherwise.

5. Returns: (a) If Coldflow elects to take back product it must be in as new and saleable condition and upon terms agreed and a re-stocking fee of not less than 15% of invoice value will apply. (b) Custom made or custom processed goods or goods acquired by Coldflow specifically for the Customer will not be returnable. (c) Any goods which are accepted by Coldflow as defective may be returned and will be replaced free of charge or be the subject of a credit for the invoiced value. “Free of charge” does not include labour, transport or material costs.

6. Placement of Orders: (a) If any dispute arises concerning any order (and including any measurement quality quantity identity or authority or any telephone facsimile e-mail or computer generated order) the internal records of Coldflow will be conclusive evidence of what was ordered; (b) Each order placed will be and be deemed to be a representation made by the Customer at the time that it is solvent and able to pay all of its debts as and when they fall due. (c) Failure to pay in accordance with these Terms will be and be deemed to be conclusive evidence that the Customer had no reasonable grounds for making the representation referred to in 7(b) and that the representations were unconscionable, misleading and deceptive. (d) When any order is placed, the Customer must inform Coldflow of any material facts which would or might reasonably affect the commercial decision by Coldflow to accept the order and/or grant credit in relation thereto. Any failure to do so will create and be deemed to create an inequality of bargaining position and will constitute and be deemed to constitute the taking of an unfair advantage of Coldflow and to be unconscionable, misleading and deceptive. (e) Where the Customer has not signed a credit application, quotation or other order with Coldflow binding it to these Terms and Conditions, the Customer acknowledges and agrees that by placing an order with Coldflow and/or engaging Coldflow to provide goods and/services, the Customer agrees to be bound by these Terms and that these Terms will govern the Customer’s dealings with Coldflow.

7. Delivery: (a) Coldflow accepts no responsibility for delivery but may elect to arrange delivery at its discretion and without any liability and at the Customer’s costs and responsibility in all things; (b) Coldflow reserves the right to charge for any delivery. (c) The Customer will be deemed to have accepted delivery and liability for the goods immediately Coldflow notifies that they are ready for collection or when they are delivered to a carrier or to the Customer’s business premises or site whether attended or not. (d) A certificate purporting to be signed by an officer of Coldflow confirming delivery will be conclusive evidence of delivery as will any signed delivery docket. (e) Coldflow will not be liable for delay, failure or inability to deliver any goods. (f) Once the Customer has been notified that goods are ready for collection, the Customer agrees to pay all costs of holding or handling goods. (g) Frustrated Delivery: If time spent delivering exceeds 30 minutes or requires more than one attempt, the Customer agrees to pay all costs relating thereto plus a loading of 10% to cover administration costs. (h) Delivery and installation times agreed to or notified by Coldflow are estimates only and Coldflow may vary such delivery or installation times without notice. The Customer is not entitled to terminate its order or agreement with Coldflow as a result of a delivery or installation time so varied.

8. Variation: Variation or cancellation of any order, dealing or arrangement must be agreed in writing.

9. Exclusions: (a) No dealing with the Customer will be or be deemed to be a sale by sample or description; (b) If Coldflow publishes material about its goods and prices, any part which is incompatible with these Terms is expressly excluded; (c) The Customer will rely on its own knowledge and expertise in choosing any product for any purpose; (d) Any advice or assistance given for or on behalf of Coldflow must be accepted at the Customer’s risk and must not be or be deemed given as expert or adviser nor to have been relied upon.

10. On-Sale: The Customer agrees that upon on-sale of any goods to inform any third party involved of these Terms and in particular the provisions of Clause 3 and especially Clause 3(h).

11. Severability: Any part of these Terms can be severed without affecting any other part.

12. Purchase Price: (a) All sales are made by Coldflow at its ruling price at the time of delivery’ (b) Government imposts and any GST will be to the Customer’s account.

13. Default: Default or breach by the Customer of these Terms or in any dealings with Coldflow will entitle Coldflow to retain all monies paid, call-up all monies due or owing (whether currently due and owing or not), cease further deliveries and recover from the Customer all loss of profits without prejudice to any other of its rights under these Terms or at law.

14. Products and Services: (a) Coldflow disclaims any responsibility or liability whatsoever relating to suitability for any particular purpose or process; (b) The Customer agrees to check all goods prior to use alteration or any application thereof whether in relation to suitability for any particular purpose, process or otherwise; (c) the Customer agrees to check and test all goods for compliance with all relevant applicable standards and regulatory bodies before use, installation, on-sale or application and to use or apply same in accordance with all applicable standards, regulations and guidelines, with all manufacturers and/or Coldflow recommendations and directions as well as with good commercial practice; (d) Coldflow may update modify make substitution or alter any of its goods or any component or raw material incorporated in or used in forming any part of any goods as part of its ongoing business. The Customer agrees to accept current goods in substitution for any goods ordered provided they are not materially different; (e) Coldflow disclaims any responsibility or liability relating to any goods: (i) processed or made to designs, drawings, specifications or measurements etc. or with materials which are provided or approved (whether in part or fully) by or on behalf of the Customer; and/or (ii) utilised, stored, handled or used incorrectly or inappropriately.

15. Other Terms and Conditions and Notice: (a) Terms and/or conditions sought to be imposed by the Customer upon Coldflow will not apply unless agreed in writing by Coldflow (b) The Customer will be deemed to have notice of any change to these Terms, immediately Coldflow adopts them. 16. Recovery Costs: The Customer will pay all costs and expenses of Coldflow, its legal advisers, mercantile agents and others acting on its behalf in respect of anything instituted or being considered as a result of any breach of these Terms or breach of any dealings with Coldflow.

17. Attornment: To give effect to its obligations arising under in these Terms (and especially clause 22) the Customer hereby irrevocably appoints any solicitor for Coldflow from time to time, as its attorney.

18. Customer Restructure: The Customer will notify Coldflow of any change in its structure or management including any change in director, shareholder, management, partnership or trusteeship or sale of any material part of its business within 7 days of any such change.

19. Jurisdiction: All contracts made with Coldflow must be deemed to be made in Victoria and the parties submit to the jurisdiction of the appropriate Courts in or nearest Melbourne.

20. Credit Line: Coldflow can vary or withdraw any credit facility or limit at any time at its discretion and without any liability to the Customer or any other party.

21. Waiver: If Coldflow elects not to exercise any rights arising as a result of breach of these Terms it will not constitute a waiver of any rights relating to any subsequent or other breach.

22. Security For Payment: The Customer: (a) if it is a company, agrees that on written request, it must charge in favor of Coldflow: (i) by way of a fixed charge, all its books of account goodwill documents of title and current and later acquired real and intellectual property; (ii) by way of a floating charge the whole of the Customer’s other undertaking property and assets with Full Payment; (b) if it is a natural person (or more than one natural person), hereby charges for the due and punctual payment and performance of his/her obligations under these Terms, all of his/her legal and equitable interest (both present and future) of whatsoever nature held in any current and later acquired real property; (c) grants a lien to Coldflow over any of its property in the possession or control of Coldflow until Full Payment; (d) agrees, on request by Coldflow to execute any documents and to do all things requested by Coldflow to register a mortgage security over any current or later acquired real property he/she has an interest; (e) consents unconditionally to Coldflow lodging a caveat noting its interest in any current or later acquired real property the Customer has an interest in; (f) agrees that Coldflow may exercise its rights under clause 17 to effect compliance with this clause 22 where the Customer fails to do so.

23. Force Majeure: Coldflow will not be in default or breach of any dealing with the Customer as a result of Force Majeure (i.e.: anything beyond Cold flow’s reasonable control).

24. Specifications: (a) Any illustration drawing or specification supplied by Coldflow (“Specs”) are drafts and approximates; (b) Any tangible or intellectual property rights in Specs remain the property of Coldflow and may be recalled at any time; (c) Specs are to be treated at all times as confidential and not made use of without the prior written consent of Coldflow.

25. No Set-Off: No Set-off or counterclaim will be made or applied by the Customer until payment in full of all bona fide invoices raised by Coldflow (whether current or overdue) and this clause may be pleaded as a bar to any action taken prior to such payment in full. 26. Stock Discretion: Coldflow has a continuing discretion to allocate available stock and gives no warranty as to certainty of supply unless expressly agreed in writing in advance.

27. Partial Delivery/Forward Orders: If the Customer places forward orders or requests partial or installment delivery, the Customer agrees: (a) to pay for so much of any order as is from time to time delivered by Coldflow; (b) that no delay or failure to fulfill any part of any order will entitle the Customer to cancel or vary any order or delay or reduce any payment.

28. Indemnity: The Customer indemnifies Coldflow against any claim or loss arising from or related in any way to any contract or dealing between Coldflow and the Customer or anything arising there from or arising as a result of or subsequent to any breach of these Terms.

29. Insolvency: (a) If the Customer commits or is involved in any act of insolvency, it will be deemed in default under these Terms. (b) An act of insolvency includes bankruptcy, liquidation, receivership, administration or the like and failure to pay in accordance with these Terms.

30. Quotations: The Customer agrees: (a) quotations must be in writing; (b) Coldflow shall not be bound by any quotation if an order is placed later than 28 days from the date of quote; (c) prior to receipt of any order Coldflow may amend a quote; (d) Coldflow shall not be bound by any quote if it forms the view that the subject matter of the quotation is to form part of a larger transaction or series of transactions with the Customer and those circumstances have materially changed; (d) Coldflow shall not be bound by any quote if it forms the view that the subject matter of the quotation is to form part of a larger transaction or series of transactions with the Customer and those circumstances have materially changed; (e) to pay any reasonable charges Coldflow claims for holding any goods referred to in any quote pending placement of an order. (f) Coldflow reserves the right to cancel an order or withdraw a quote (even if it has been accepted by the Customer) at anytime. Payment of a deposit by a Customer is not to be deemed acceptance of a quote.

31. Recalls: In the event of a product recall (“Recall”), the Customer must give Coldflow such assistance as Coldflow reasonably requires in relation to that Recall.

32. Non derogation: The rights, powers and remedies available to Coldflow under these Terms are in addition to and are not in derogation of Coldflow’s powers, rights and remedies existing at common law, or given by any law at any time in force (including but not limited to the Building and Construction Industry Security of Payment Act 2002 (Vic)).

33. Subcontracting: The Customer agrees that Coldflow may subcontract all or any part of the provision of goods and/or services.

34. Protection of works and safety of personnel: The Customer agrees that: (a) it is responsible for keeping the site at which the goods and services will be delivered, secure, safe (for the provision of the services by Coldflow and its personnel) and free from contamination; (b) any damage to, or loss from the site of, goods due to theft, vandalism or otherwise, or injury to Coldflow personnel, resulting from a failure in whole or in part by the Customer to keep the site safe and secure, will be at the risk and cost of the Customer.

35. Site contamination: The Customer acknowledges and agrees that: (a) in the course of Coldflow delivering the services and goods, the site may suffer minor contamination from such things including, but not limited to, nails, wood shavings, dust etc; (b) while Coldflow will endeavor to clear the site of refuse caused by it, Coldflow will not be liable to the Customer in any way for such refuse or materials left behind.

36. Works to be done by others: The Customer is responsible (at its sole cost) for (unless otherwise agreed in writing by Coldflow): (a) all gas points for ducted heaters (including gas cocks) being provided and installed prior to fit off; (b) roof access lights and power points for both heaters and evaporative coolers being provided and installed prior to fit off;  (c) appropriately sized electrical supply isolator being provided at an outdoor location, (and indoor on 3 phase units). It is the Customer’s responsibility to contact the manufacturer for appropriate amperage ratings; (d) installation of gas and water isolator cocks prior to requested fit off for gas ducted heaters and evaporative coolers; (e) all required upgrades to the property’s electrical mains and switch boards; (f) safe access being provided at the place(s) where the works are to be performed (to Coldflow’s satisfaction). This includes (but is not limited to) fall protection, scaffolding and safety guard rails on all double story and roof top installations; (g) installation of appropriate concrete support base or roof platforms for all outdoor units (condensers); (h) making sure condensate is emitted from internal head units and external units (Coldflow will only drain to drainage points provided by others, i.e. tun dishes) (i) boxing and framing of all ductwork where required, bulkheads return and supply air grills etc.; (j) all penetration and coring for ducting and refrigeration piping, structural changes, and all builders work including control wiring and interfacing; (k) installation and supply of access panels for unit, filter and branch box serving. If access cannot be provided in appropriate location for servicing, plaster may need to be cut and replaced at Customer’s expense. Also the manufacturer may refuse warranty under its access terms and conditions for warranty; (l) modification of any structural beams, roof trusses, stud etc. to allow structural support and access to the quoted equipment. 37. Locating unit and registers (outlets): If the Customer is not at home at the time of installation, Coldflow will install the unit and registers (outlets) at a location determined by Coldflow. The Customer acknowledges and agrees that limiting structural factors may lead to Coldflow deviating from any planned installation location. The Customer must pay Coldflow’s costs and expenses for any change of location of installed components done at the Customer’s request. The Customer will be responsible for the costs of returning the affected surfaces to their original condition, such as, but not limited to rendering, painting and plastering. 38. Design Conditions: (a) Design conditions are based on the Customer installing appropriate roof and wall insulation, and external blinds on glass, particularly north/west facing. (b) Equipment is specified based upon rated conditions. Rated test conditions are based on Australian Standards 1861. Condition A: indoor conditions, cooling dry bulb 27 degrees, west bulb 19 degrees, outdoor dry bulb 35 degrees, 24 degrees wet bulb, heating conditions are based upon 21 degrees dry bulb, outdoor dry bulb 7 degrees, 6 degrees wet bulb. (c) The Customer must notify Coldflow in writing (when placing its order) of any specific installation requirements or restrictions (including for the avoidance of doubt, heritage overlays) that may impact on the installation location of goods. 39. Air Balancing: With ducted heating or cooling systems, Coldflow attempts to balance the outlets as best as possible, however precise balancing of air volumes is not possible, due to structural reasons. If the Customer requests Coldflow to rebalance air volumes after the day of installation, this will be charged at Coldflow’s then current rates plus materials. 40. Manufacturer’s Warranty: (a) The Customer agrees that Coldflow is not the manufacturer of any goods and Coldflow shall not be liable to any party as a manufacturer. (b) Goods are sold subject to any manufacturer’s trading terms and conditions and are covered (if at all) by any manufacturer’s warranty applicable thereto. (c) Coldflow is an installation company only and the job is considered complete at the time the installation process is finished. This is irrespective of whether the goods are fully functional or in need of servicing under the manufacturer’s warranty, and the Customer agrees not to withhold any payment if servicing is required under the warranty agreement. 41. Zoned Heating and Cooling Systems: Where zoning is quoted as part of a ducted system, it is taken that the system does not have capacity to heat and or cool the Customer’s entire premises, and zones must be closed down to heat and or cool to achieve rated conditions. 42. Final Commissioning: The Customer must upon demand by Coldflow, pay 95% (including prior amounts already paid) of the total price of the job (e.g. 95% of the total price for the provision of the goods and services) before final commissioning of an installation being carried out. Coldflow will not be required to commence final commissioning until such payment is received from the Customer.

43. Other matters: Once ductwork or other equipment is hung, it is taken that this is approved by builder and owner. The Customer acknowledges and agrees that capping will be required to travel into the roof pipe work and exposed conduit drains, where work cannot be completed via cavity.