Terms & Conditions of Sale – COLDCOAST Pty Ltd
COLDCOAST Pty Ltd ABN 22162678293 (“COLDCOAST”) agrees to supply to you, the party to whom the attached quotation is addressed (“Customer”), with the services and/or materials/equipment to be supplied, as set out in the attached quotation (the “Work”), given the following terms and conditions are adhered to:
- Any reference in these terms and conditions to the “Work”, includes:
- any part of the Work;
- any material, equipment or product supplied as part thereof; and/or
- any order, work or services which the Customer requests be supplied by COLDCOAST following the provision of these terms and conditions to the Customer.
- The Customer is taken to have accepted and is immediately bound, jointly and severally, by these terms and conditions on the placement of any order or acceptance of delivery of any Work.
- COLDCOAST may amend these terms and conditions from time to time by notifying the Customer in writing. These changes are deemed to take effect from the date on which the Customer accepts such changes or makes a further request for COLDCOAST to provide Work to the Customer.
Customer Warranties and Release
- The Customer warrants as follows:
- the area or premises where the Work is to be supplied or delivered (the “Site”) complies with any relevant occupational health and safety laws and any other relevant safety standards or legislation;
- if the Customer is a tenant, that it has obtained full consent of the owner of the land to install any materials or have any of the Work supplied at or delivered to the Site;
- that it will remove any furniture, furnishing or personal items from the vicinity of the Site;
- that it will provide COLDCOAST with clear and free access to the Site at all times to provide the Work; and
- where COLDCOAST is required to install materials or equipment, that the structure of the Site upon which the materials or equipment is to be installed or erected, is sound and will sustain the installation and incidental work to this.
- The Customer releases COLDCOAST from any and all liability for any demands, damage, claims, expenses and/or losses as a result of the Customer’s breach of these terms and conditions, including the Customer warranties contained herein.
- Any prices quoted in relation to Work will remain current for 30 days after the date of the quotation. COLDCOAST reserves the right to amend quotations if the quotation is not accepted during the applicable period.
- Unless otherwise stated, all prices are quoted exclusive of any government or council taxes, levies or charges. The Customer must pay:
- an amount equal to any GST COLDCOAST must pay for the supply under this or any other terms and conditions for supply of its service; and
- any other taxes and duties which may be applicable,
in addition to any amount quoted or set out on any invoice, at the same time and on the same basis as the Customer pays for any Work or invoice.
- COLDCOAST reserves the right to amend any quotation if:
- the Customer requests a variation to the Work or part thereof;
- the Customer requests a variation to the materials or equipment required to supply the Work;
- any additional work is required due to the discovery of hidden or unidentifiable difficulties (including but not limited to poor weather conditions, problems accessing the Site, availability of materials or equipment, hidden pipes or wiring, change of design, third party works not being completed etc.) which are only discovered after the quotation is provided; and/or
- there are any increases to the cost of labour or materials which are beyond COLDCOAST’s control.
- The Customer must respond to any variation or additional quote submitted by COLDCOAST within 5 business days. Should the Customer not respond, COLDCOAST shall be entitled to add the additional costs of the variation to the relevant quote or invoice.
- COLDCOAST is not bound to comply with any additions, alterations, extras or variations to the quotation or the Work unless COLDCOAST agrees in writing to the changes.
- Both parties endeavour to enable the Work to be supplied at the time and place agreed by the parties. However, the time specified for delivery of any materials, equipment or the Work in any quotation or agreed by COLDCOAST is an estimate only and COLDCOAST will not be liable for any loss, expense or damage incurred by the Customer as a result of any delay on the part of COLDCOAST or its subcontractors and/or agents.
- Invoices for the supply of Services and/or Equipment may be submitted to the Customer either:
- prior to commencing the Work;
- at the completion of the Work;
- at the discretion of COLDCOAST;
- on a monthly basis; or
- at any other time at the discretion of COLDCOAST.
- Payment must be made in full (including any variation or additional costs) on or before the date stated on the invoice, or if no date is nominated, on the earlier of:
- seven (7) days of the date of the invoice;
- delivery of the Work; or
- the completion of the Work.
- the agreed terms as per quote
- COLDCOAST may in its complete discretion apply any payment received from the Customer to any amount owing by the Customer to COLDCOAST.
- COLDCOAST reserves the right to suspend work if an invoice is not paid on or before the due date for payment.
- COLDCOAST may in its absolute discretion, require that a non-refundable deposit, upfront payment or part payment of the cost of any the Work, services or invoice (or part thereof) is paid in advance including, but not limited to, upfront payment of any parts or products which are required for the the Work.
- Where a quotation or the Work exceeds $1,000, the Customer is required to make an upfront, non-refundable payment of 30% of the quotation for the Work.
- COLDCOAST are not required to commence providing any services, the Work or any parts or products required to provide the services until it receives any deposit amount or upfront payments requested. In such event COLDCOAST is not liable for any delays to the supply of the Work caused by the Customer’s non-compliance with these terms and conditions.
- If any Work is rescheduled by the Customer or required to be rescheduled as a result of the Customer’s acts or omissions, COLDCOAST is entitled to charge a reasonable fee for re-supplying the Work at a later time and date and/or for storage of the materials and equipment.
- All cancellation requests by the Customer must be submitted in writing to COLDCOAST.
- 22. Where the Work is cancelled less than 30 days prior to the scheduled supply by COLDCOAST, the Customer is liable for, and indemnifies COLDCOAST against, any and all losses incurred by COLDCOAST as a result of the cancellation. This includes, but is not limited to, any loss of profit from the Work or other work foregone as a result of the scheduling of the Work which is subsequently cancelled.
- COLDCOAST is entitled to charge interest at the rate of fifteen (15) percent per day on all overdue amounts from the due date, calculated daily on all monies due but unpaid. Payments received from the Customer will be credited first against any interest charge.
- The Customer indemnifies COLDCOAST for and will pay or reimburse to COLDCOAST all costs, disbursements, debt collection agency fees and commissions, search fees and legal costs (on a full indemnity basis) incurred by COLDCOAST as a result of attempts and/or actual recovery of any overdue payment or interest.
- The Customer indemnifies, and shall keep indemnified COLDCOAST, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Customer) against COLDCOAST or, for which COLDCOAST is liable, in connection with any loss arising from or incidental to:
- any breach of any warranty or obligation under these terms and conditions; and
- any wilful or negligent act or omission of the Customer or any of its officers or employees in relation to the performance of its obligations under these terms and conditions.
- Subject to these terms and conditions, the Customer:
- releases and forever discharges COLDCOAST, and each of its officers, employees and agents, from all claims under or in relation to these terms and conditions; and
- indemnifies COLDCOAST, and each of its officers, employees and agents in respect of all loss, damages and expenses relating to, or arising out of, any claim.
- The indemnities set out in this clause include, but are not limited to, any legal costs incurred by COLDCOAST in relation to meeting any claim or demand or any legal costs for which COLDCOAST is liable in connection with any such claim or demand.
- This provision remains in force after the completion of the Work.
Limit of Liability
- Any advice, recommendation, information, assistance or service given by COLDCOAST in relation to the Work, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. It is provided without any warranty or accuracy, appropriateness or reliability. COLDCOAST does not accept any liability or responsibility for any loss suffered as a result of the Customer’s reliance on such advice, recommendation, information, assistance or service.
- To the fullest extent permissible at law, COLDCOAST is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide the Work , or otherwise arising out of the provision of the Work whether based on these terms and conditions, negligence, strict liability or otherwise, even if COLDCOAST has been advised of the possibility of damages.
- Where COLDCOAST has a deemed liability under Australian legislation, COLDCOAST’s liability is limited to damages which shall not exceed the price payable for the relevant Work or invoice by the Customer.
- Australian consumer law may give to the Customer certain guarantees. Where liability for breach of any such guarantee can be limited, COLDCOAST’s liability (if any) arising from any breach of those guarantees is limited with respect to the supply of Work or part thereof, to the replacement or repair of the relevant part of the Work or the costs of resupply or replacement of the relevant part of the Work.
- COLDCOAST is not responsible for any claims made in relation to its Work which are notified to COLDCOAST more than fourteen (14) days after the Work is conducted.
Personal Property and Securities Act
- The Customer acknowledges and agrees:-
- that COLDCOAST may register on the Personal Property Securities Register (“PPS Register”) a security or purchase money security interest (“PMSI”) in the Work including (if applicable) any intellectual property supplied or developed by COLDCOAST to the Customer and any proceeds of the sale of such Work (together the “Collateral”) as security for the Customers obligations to pay COLDCOAST for the Work;
- that it will reimburse COLDCOAST for all costs and expenses incurred by COLDCOAST in relation to registering, maintaining or releasing any financing statement or financing change statement (each as defined in the Personal Property Security Act 2009 (“PPSA”)) in respect of any security interest or PMSI under these terms and conditions.
- The Customer undertakes:
- promptly to do all things, sign any further documents and provide any further information (which information the Customer warrants to be complete, accurate and up-to-date in all respects) which COLDCOAST may reasonably require, to enable COLDCOAST to perfect, and maintain the perfection of its security interest or PMSI (including by registration of a financing statement or financing change statement on the PPS Register);
- not to register, or allow to be registered, a financing statement or financing change statement in respect of the Collateral without COLDCOAST’s prior written consent; and
- to give COLDCOAST no less than 14 days’ prior written notice of any proposed change in the Customer’s name or any other change in the Customer’s details (including, but not limited to, changes in its address, facsimile number or trading name).
- The Customer waives its right to receive a copy of any financing statement or any financing change statement relating to the security interest or PMSI.
- The Customer agrees that pursuant to section 115(1) of the PPSA and, to the maximum extent permitted by law, the Customer waives its rights and, with COLDCOAST’s terms and conditions, contracts out of sections 95, 125, 128(2), (4) and (6), 129(2) and (3), 130, 132(3)(d), 132(4) and 135 of the PPSA in so far as the Collateral is predominately used for or relates to personal, domestic or household purposes.
- a PPS Law applies or commences to apply to these terms and conditions or any transaction contemplated by them, or COLDCOAST determines (based on legal advice) that this is the case; and
- in COLDCOAST’s opinion, the PPS Law:
COLDCOAST may give notice to the Customer requiring the Customer to do anything (including amending these terms and conditions or execute any new terms and conditions) that in COLDCOAST’s opinion is necessary, to the maximum possible extent, to overcome the circumstances contemplated in paragraph 41(b)(i) above or improve the security position as contemplated in paragraph 41(b)(ii) above. The Customer must comply with the requirements of that notice within the time specified in the notice.
- If, having completed everything reasonably practicable as required under paragraph 41 above, in COLDCOAST’s opinion, COLDCOAST’s security position or obligations under or in connection with these terms and conditions have been or will be materially adversely affected, COLDCOAST may by further notice to the Customer terminate these terms and conditions. If this occurs, the Customer must pay to COLDCOAST any money owed to COLDCOAST by the Customer immediately.
Retention of Title
- COLDCOAST and the Customer agree that:
- property to and title in all Work supplied to the Customer does not pass to the Customer until COLDCOAST has received payment in full for all amounts due and payable to COLDCOAST by the Customer and the Customer has met all of its other obligations to COLDCOAST;
- the Customer is a bailee of the Work and/or materials until such time as property and title to the Workt and/or materials passes to the Customer;
- the risk in the Work will pass to the Customer on the delivery to the Customer of the Work or completion of the Work, if applicable.
- Where Work is supplied or delivered by COLDCOAST to the Customer without payment in full, the Customer:
- is a bailee of the Work until property in them passes to the Customer;
- irrevocably appoints COLDCOAST to be its attorney to do all acts and things necessary to ensure the retention of title to the Work including the registration of any security interest in favour of COLDCOAST with respect to the Work under applicable law;
- must be able upon demand by COLDCOAST to separate and identify as belonging to COLDCOAST, Work or part thereof supplied by COLDCOAST from other work or products held by the Customer;
- must not allow any person to have or acquire any security interest in the Work;
- agrees that COLDCOAST may repossess the Work, including any New Products, if payment is not made in full prior within the timeframe set out under these terms and conditions (or such longer time as COLDCOAST may, in its complete discretion, approve in writing); and
- the Customer grants an irrevocable licence to COLDCOAST or its agent to enter the Customer’s premises in order to recover possession of Work, including any New Products, pursuant to these terms and conditions. The Customer indemnifies COLDCOAST for any damage to property or personal injury which occurs as a result of COLDCOAST entering the Customer’s premises.
- Where COLDCOAST supplies the Work to the Customer without payment in full of all moneys payable in respect of the Work provided by COLDCOAST, and:
- the Customer makes a new object from the Work, whether finished or not;
- the Customer mixes the Work with other products; or
- the Work becomes part of other products
the Customer agrees with COLDCOAST that the ownership of the New Products immediately passes to COLDCOAST. The Customer will hold the New Products on trust for COLDCOAST until payment of all sums owing to COLDCOAST whether under these terms and conditions or any other contract have been made. COLDCOAST may require the Customer to store the New Products in a manner that clearly shows the ownership of COLDCOAST.
- For the avoidance of doubt, the ownership of the New Products passes to COLDCOAST at the beginning of the operation or event by which the Work is converted into, are mixed with or become part of other products.
- In the event that the Customer:
- is in breach of these terms and conditions;
- In the case of an individual, commits an act of bankruptcy or has a trustee in bankruptcy appointed in respect of the Customer’s property or assets; or
- in the case of a company, passes a resolution for its winding up, enters into liquidation, has an application for winding up filed against it, or has a receiver, receiver and manager, voluntary liquidators, controller or voluntary administration appointed over any of the Customer’s property or assets.
the Customer authorises COLDCOAST to:
- recover possession of and use the Work in whatever manner the company sees fit;
- personally or through its agents or servants enter upon any land, building or vehicle or any other property where the Work is reasonably thought to be situated for the purpose of removing the Work, including Work already installed, in whatever manner it thinks fit and, for the removal of doubt, the Customer grants COLDCOAST, its agents or servants an irrevocable license to do so without incurring any liability to the Customer or any person claiming through the Customer; and
- re-sell the Work and apply the proceeds to the amount owing from the Customer to COLDCOAST in relation to the Work or any other services supplied by COLDCOAST.
- These terms and conditions will prevail over all other conditions of the Work whether written or oral and to the extent of any inconsistencies.
- The Customer undertakes to immediately notify COLDCOAST of any changes to the Customer’s ownership, name or trading style immediately upon such changes occurring.
- In the event that credit facilities are supplied by COLDCOAST to the Customer, the Customer grants permission to COLDCOAST or its agents to enquire into the credit worthiness of the Customer and to record, report, check or refer any information on the Customer to any person, company, government department or credit reporting agency.
- In the event that the Customer is a company, all directors of the company agree to personally guarantee the obligations of the Customer and, if requested by COLDCOAST, agree to sign the personal guarantee annexed to these terms and conditions.
- COLDCOAST may subcontract out any part of its services or the Work.
- A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
- COLDCOAST will not be liable for any default due to any event beyond its reasonable control.
- If any provision of these terms and conditions at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
- These terms and conditions are governed by the laws of Queensland and each party irrevocably submits to the non-exclusive jurisdiction of the courts of that State.