Terms of Trade
FDSA PTY LTD A.C.N. 608 858 126 trading as FIRST DEGREE COMMERCIAL REFRIGERATION TERMS AND CONDITIONS OF TRADE
1. In these terms and conditions “we”, “our” and “us” means FDSA PTY LTD A.C.N. 608 858 126 trading as First Degree Commercial Refrigeration (First Degree).
2. “Customer” means the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work order or other form as provided by us to the Customer.
3. In these terms and conditions reference to a person includes a corporation, and the singular includes the plural and vice versa.
4. If more than one, the persons comprising the Customer shall be jointly and severally bound by these terms and conditions.
5. “Australian Consumer Law” means the Competition and Consumer Act 2010 (Cth).
6. “Contract” means these terms and conditions of trade and all the terms are binding on the parties.
7. “PPSA” means the Personal Property Securities Act 2009 (Cth).
8. “Goods” means any goods supplied by us to the Customer (or ordered by the Customer but not yet supplied) including, and in no way limited to air conditioning, refrigeration and commercial kitchen products.
9. The price for the Goods and/or services is the price contained in our quotation, work order or other form as agreed by the parties.
10. We will be entitled to vary our price for the Goods and/or services for any unforeseen site conditions not obvious to us upon a reasonable inspection of the site at the time of the quotation, work order or other form.
11. Any instructions received by us from the Customer for the supply of Goods and/or services, and/or the Customer’s acceptance of Goods supplied and the services provided by us shall constitute acceptance of these terms and conditions of trade.
12. Our Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.
13. All Goods and services supplied by us shall have the benefit of any warranty given by the Goods respective manufacturer. Subject to your rights under the Australian Consumer Law and to the fullest extent permitted by law, you agree that we will not be liable to you for loss of profit or other economic loss, direct or indirect or consequential, loss or other costs arising out of a breach of contract or any common law duty (including negligence) by us, our agents or employees.
14. You agree that our liability to you for any breach of any implied terms may, subject to the Australian Consumer Law be limited to the replacement, or repair or payment of the cost of replacement or repair of the relevant goods.
15. You acknowledge that (at our option): a. Goods repaired may be replaced by refurbished goods of the same type rather than being repaired. b. Refurbished parts may be used to repair goods.
16. The Customer is responsible for any return freight charges for goods returned under warranty.
17. We will not be liable for any damage to materials or the works caused by the customer or third parties including but not limited to:
a. External causes including natural disaster, misuse, fire, power surge, accident, neglect or vandalism;
b. The use with or connection of the Goods to item or items not approved by us;
c. The use of the goods for other than their intended purpose;
d. The performance of maintenance or attempted repair by person or persons other than us or as authorised by us; and
e. Any configuration or reconfiguration by the Customer.
18. We will not be liable for any delays caused by others.
19. Payment must be made in full within 14 days of the completion of the works unless otherwise agreed by us in writing.
20. Cheque payments will be subject to clearance by our financial institution and the customer will be responsible for payment of all dishonour fees. A $50 dishonour fee will be payable for the first default and $100 for each subsequent default thereafter.
21. The Customer is not entitled to any retention or to otherwise retain any amount due to us. All payments are to be made without deduction or equitable or other set off whatsoever.
22. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment or judgment, at a rate of 10% per annum.
23. If the Customer defaults in payment of any invoice when due, the Customer shall indemnify us from and against all costs and disbursements incurred by us in pursuing the debt including legal costs on a solicitor and own client basis and our collection agency costs.
24. Without prejudice to any other remedies we may have, if at any time the Customer is in breach of any obligation (including those relating to payment); we may suspend or terminate the supply of Goods and/or services to the Customer and any of our other obligations under these terms and conditions of trade. We will not be liable to the Customer for any loss or damage the Customer suffers because we have exercised our rights under this clause.
25. Without prejudice to our other remedies at law we shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to us shall, whether or not due for payment, become immediately payable in the event that:
a. any money payable to us becomes overdue, or in our opinion the Customer will be unable to meet its payments as they fall due; or
b. the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
c. A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
26. The Customer assumes the risk for Goods at the time of delivery, whether the Goods are delivered to the Customer’s premises or other site nominated by the Customer and whether the Customer (or the Customer’s representative) is at the delivery site to acknowledge receipt of delivery. The Customer agrees to pay standard delivery charges as billed.
27. Ownership of the Goods will only pass to the Customer when all monies owed to us by the Customer are paid in full.
28. Until we have received payment in full for all monies owed by the Customer, we reserve the following rights: a. legal and equitable ownership of the Goods; b. the right to enter the delivery site and retake possession of the Goods; c. the right to keep or resell any Goods repossessed under sub-clause (b); and d. any other rights it may have at law or under the PPSA;
29. Until we receive payment for all monies owed to us, the Customer acknowledges that we have a Purchase Money Security Interest (PMSI) which attaches over the Goods and their proceeds and a Security Interest in relation to other amounts owed by the Customer to us.
30. The Customer acknowledges that the Contract constitutes a Security Agreement for the purposes of the PPSA.
31. The Customer undertakes to do anything (such as obtaining consents, producing documents or getting documents completed or signed) which we consider reasonably necessary for the purposes of ensuring that a PMSI and/or Security Interest is enforceable, perfected and effective.
32. To the extent permitted by law, the Customer waives its rights to:
a. receive notices or statements under sections 95, 121(4), 125, 130, 132(3)(d) and 135 of the PPSA;
b. redeem the Goods under section 142 of the PPSA;
c. reinstate the Security Agreement under section 143 of the PPSA; or d. Receive a Verification Statement.
33. Nothing in this clause prevents us from taking collection or legal action to recover any monies owed to it from time to time
35. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood or other event beyond the reasonable control of either party.
36. The failure by us to enforce any provision of these terms and conditions of trade shall not be treated as a waiver of that provision, nor shall it affect our right to subsequently enforce that provision.
37. These terms and conditions of trade form part of any quotation, work order or other form as provided by us to the Customer.
38. We may sub-contract all or any part of our rights and obligations without the Customer’s consent.
39. Any previous dealings shall not affect these terms and conditions of trade or be deemed to do so nor will any term or condition set out in your order forms or other documentation.
40. The laws of South Australia govern these terms and conditions and any legal action relating to them shall be brought in the South Australian Courts.
41. Each transaction is to be on the above terms and conditions of trade. However, we may change the above terms and conditions and upon written notice to you, you will be bound by such changed terms and conditions in respect of subsequent transactions.
Unless the contrary is proved, such notice shall be deemed served on you two business days after it is posted.
Issue Date December 2015
Authorised by B. Donnelly Issue No￼ 1 ￼
Policy Number FD25