These Conditions shall govern and be incorporated into each contract for the purchase of Goods and/or Services by the Active Air-conditioning and Refrigeration Pty Ltd and may only be varied with the written agreement of the Active Air-conditioning and Refrigeration Pty Ltd. No terms or conditions put forward at any time by the Supplier shall form any part of this contract.
In these Terms of Purchase:
“Active Air-conditioning and Refrigeration Pty Ltd” or “Active Air” (ABN 19 001 045 021) of 32 Violet Street, Revesby, NSW 2212, on an order and its contractor’s successors and assigns.
“Agreement” means any agreement for the purchase of Goods and Services by Active Air from the Supplier.
“Date of Delivery” means the date that the Supplier is required to deliver the Goods and Services, and may be noted in the Order.
“Goods and Services” means any goods or services ordered by Active Air from the Supplier.
“GST” means the Goods and Services Tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (“Act”) as amended.
“Head Contract” means the contract that Active Air has with its customer;
“Order” means an official written Active Air order for Goods and Services being received by the Supplier either by post, fax or other electronic means;
“Supplier” means the vendor or subcontracted supplier (which deals directly with Active Air) of the Goods and Services and its permitted successors and assigns.
“Terms” means these terms and conditions of purchase.
2. Basis of Agreement
2.1 All quotations and tenders received by Active Air from the Supplier, whether in writing or not, will be deemed to be offers to sell Goods and Services to Active Air.
2.2 The receipt of an Active Air Order by the Supplier will constitute acceptance by the Supplier to supply the Goods and Services on these Terms.
2.3 In the event that the Order imposes additional terms on the Supplier, unless Active Air hear from the Supplier within seven days of receipt of the Order rejecting the additional terms, it will be deemed that the Supplier has accepted the Order.
2.4 Unless otherwise agreed in writing by Active Air, these Terms apply exclusively to every Agreement and cannot be varied or supplanted by any other terms or conditions.
2.5 To the extent the Supplier’s terms, variations, and conditions are supplied with the Goods or Services, those terms, variations, and conditions will be of no legal effect and will not constitute part of the purchase order.
2.6 The Supplier must not subcontract the whole or any part of their obligations or assign any Agreement to any other party without consent, in writing, from Active Air.
2.7 Active Air has the right to vary or amend Orders to impose additional terms into any Agreement, where those terms are contained in a Head Contract and relate to the Goods and Services required from the Supplier under the Agreement.
2.8 In addition to these Terms, Active Air will also rely on all implied conditions and warranties contained in the sale of goods acts and fair-trading Acts of the States and Building and Construction Industry Security of Payment Act 1999 (NSW); Building and Construction Industry Security of Payment Act 2002 (VIC); Building and Construction Industry Payment Act 2004 (QLD); Construction Contracts Act 2004 (WA).
3.1 Prices quoted by the Supplier are exclusive of GST, which must be shown as a separate component, and other duties and imports, insurance, and transportation and delivery charges.
3.2 Quotations provided by the Supplier to Active Air are valid from the date of the quote until such time as Active Air may place an order, unless written notice of cancellation is provided by the Supplier.
3.3 The Supplier may not increase any quoted prices after the date of an Order.
4.1 Active Air will make payment for Goods and Services, subject to Order compliance and the Goods and Services being delivered on the Delivery Date or such date as Active Air advises in writing, within 45 days from the later of:
a) the end of the month during which a tax invoice is received from the Supplier for the delivery of the Goods and Services; and
b) the end of the month during which the Delivery Date falls
4.2 The Supplier is not entitled to interest on unpaid monies, or for any other costs associated with recovery from Active Air for unpaid monies.
4.3 If partial delivery of the Goods and Services ordered are made by the Supplier, Active Air is not required to pay for any of the Goods and Services until all Goods and Services are received, in accordance with clause 5.1, unless otherwise agreed in writing by Active Air.
4.4 Active Air will not pay the Supplier for any additional Goods, Services, or variations to the Order, unless those additional Goods, Services, or variations were agreed in writing by Active Air.
4.5 The Supplier must provide, by any specified date, all drawings, operating and maintenance manuals, technical data with and as part of the Goods and Services so supplied. Active Air may withhold all or some of the payments until the Supplier has complied with this clause.
4.6 Active Air may offset any sums due to Active Air by the Supplier.
4.7 Active Air has no liability for payment for any Goods or Services if the Supplier cannot produce to Active a delivery receipt, signed by an authorised representative of Active Air. The signing of any delivery receipt on behalf of Active Air will not amount to an acceptance of the quality or quantity of the Goods or Services supplied.
5.1 The Supplier agrees to deliver the Goods and Services to Active Air, to the address specified by Active Air on its Order, or as otherwise directed by Active Air in writing from time to time.
5.2 Goods and Services must be delivered in accordance with the stated Date of Delivery. Time is of the essence.
5.3 Active Air reserves the right to alter the Date of Delivery or suspend the delivery of the Goods and Services, by a period of up to three months, at any time before the Date of Delivery, by way of notice to the Supplier.
5.4 Goods and Services must be contained and packaged to ensure their safety during transport and delivery, and for storage of the Goods and Services.
5.5 Active Air may refuse to accept delivery of Goods and Services that do not comply with an Order or the Terms.
5.6 All goods delivered must be tagged and labelled for ease of identification upon delivery.
6.1 Active Air may cancel an Order, or part thereof, at any time up to seven days before delivery without any liability or penalty.
6.2 Active Air may cancel an Order at any time until delivery without any liability or penalty by notice in writing to the supplier if:
a) the Supplier fails or is unable to comply with the terms of an Agreement;
b) where the Supplier is an individual and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
c) where the Supplier is a corporation and it enters into any scheme of arrangement, any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, has a liquidator, provisional liquidator, administrator, receiver or receiver and manager appointed, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Supplier.
6.3 Cancellation as a result of the failure of the Supplier to fulfil any part of an Agreement will not prejudice any claim that Active Air may have resulting from the Supplier’s failure.
The Supplier is liable for any loss or damage suffered by Active Air or any third party where the Supplier has failed to meet any delivery date, or cancels or suspends the supply of Goods and Services, including, but not limited to, liquidated damages claims, loss of turnovers, profits, business or goodwill or any liability to any other party.
Before providing any Goods and Services, the Supplier must have appropriate current and adequate insurance cover with regards to:
(i) WorkCover; Approved Workers Compensation Insurance
(ii) Public and Product Liability;
(iii) Transport, theft, loss, and damage;
(iv) Legionella in the case of water treatment suppliers; and
(v) Professional indemnity and Contractor’s Risk, if applicable.
The Supplier will be liable for any insurance premium excess payments caused by the Supplier and claimed by Active Air against its insurance policy. You must provide us with proof of your insurance upon request.
8. Property and Risk
Property in the Goods will pass to Active Air on delivery.
The risk in the Goods and Services and all insurance responsibility for theft, damage or otherwise remains with the Supplier until the time of delivery of the Goods or completion of the Services.
9. Intellectual Property
The intellectual property in all materials provided by Active Air to the Supplier being, but not limited to, drawings, specifications, designs, manuals, tenders remains with Active Air, and the Supplier must promptly return all such material to Active Air if requested by Active Air.
The Supplier warrants that it owns or is licensed to sell any Goods or provide any Services that are the subject of any patent, trademark, design, copyright or any other form of intellectual or industrial property.
The Supplier indemnifies Active Air against all liability, loss, damages, and expenses arising out of any claim in respect of infringement or alleged infringement, of any patent, trademark or design, copyright or any other form of intellectual or industrial property whether in Australia or overseas, relating to the Goods and Services.
The Supplier is liable for any direct, indirect or consequential losses or expenses suffered by Active Air or any third party arising from goods or services provided by the supplier.
11. Conformity of Goods and Services
The Supplier must deliver Goods and Services that are of the quantity, quality, and description detailed in an Order.
Goods and Services will not conform with an Order unless they:
a) are fit for the purposes for which Goods and Services of the same description would ordinarily be used:
b) are fit for a purpose expressly or impliedly made known to the Supplier at the time of the Order;
c) possess the qualities of Goods and Services which the Supplier has held out to Active Air by way of a sample or model; and
d) supplied in accordance with and comply with the architect and/or consulting engineer specifications and drawings regarding the project and any Head Contract.
11.1 All Goods and Services provided by the Supplier must comply with the provisions of all applicable occupation health and safety legislation and any other applicable laws or regulations that may apply to the Goods or Services. Services must be performed to a high standard of professional care and skill by appropriately trained and qualified personnel.
11.2 The Supplier must ensure that hazardous Goods have prominent and suitable warnings on all containers, packages and documents, and these warnings must comply with all statutory requirements and as otherwise reasonably required by Active Air.
11.3 Rejected goods may be returned to the Supplier at its risk and cost.
12. Warranty and Indemnity
12.1 The Supplier warrants:
a) the quality of materials and workmanship of the Goods and Services;
b) conformity of the Goods and Services to any Order for a period of 12 months, or such longer period as specified in the Order, or specification or as provided as a statutory requirement, from the date of practical completion of the Head Contract of the Goods and Services to Active Air.
12.2 The Supplier warrants that the Goods are free of any mortgage, lien or encumbrance whatsoever whereby the Purchaser could or might be liable to be dispossessed of the same.
12.3 The Supplier warrants to provide a full cash back guarantee and shall include reimbursement for any damages or costs associated with the failure and re-supply of the Goods and Services to Active Air.
12.4 The Supplier will indemnify and keep indemnified at all times, Active Air, its servants, agents, invitees or licensees against all loss, liability, damage, costs, actions, demands and suits of whatsoever kind or nature arising out of:
a) any claim for injury or death of any person, loss or damage caused in whole or in part by any act or omission whatsoever by the Supplier, its servant’s agents whilst executing an Order or making a delivery hereunder, and the Goods and Services it supplies;
b) any claim with respect to the Goods arising out of any latent or inherent defect in any of the Goods;
c) any litigation or arbitration from any claim referred to above.
13.1 Active Air is bound by the Privacy Act 1988 as amended and takes steps to ensure that all personal information obtained in connection with the Supplier will be appropriately collected, stored, used, disclosed, transferred and destroyed in accordance with the National Privacy Principles.
13.2 Active Air requires that the Supplier comply with the National Privacy Principles in connection with any personal information supplied to it by Active Air in connection with any agreement between the Supplier and Active Air.
14. Governing Law
14.1 The laws of NSW from time to time govern these Terms, and the parties agree to the exclusive jurisdiction of the courts and tribunals of NSW, the Federal Court of Australia, and of courts entitled to hear appeals from those courts and tribunals.
14.2 Active Air may elect to bring legal proceedings in any appropriate jurisdiction.
15.1 Waiver by Active Air of any specific default or defaults by the Supplier or failure by Active Air to cancel an Order or any part of it, will not constitute a waiver by Active Air of its rights arising out of any further default by the Supplier.
15.2 If any term or condition is unenforceable it shall be read down to be enforceable or, if it cannot be read down, the term or condition shall be severed from these Terms without affecting the enforceability of the remaining Terms.
15.3 A notice must be in writing and handed personally or sent by facsimile or prepaid mail to the last known address of the addressee. Notices sent by facsimile are deemed received on the facsimile machine confirming transmission.
15.4 The National Code of Practice for the Construction Industry (the Code) and the Australian Government Implementation Guidelines for the National Code of Practice for the Construction Industry, reissued June 2006 (the Guidelines), apply to this project. By agreeing to undertake the works, you will be taken to have read and to agree to comply with the Code and Guidelines.