1.1 “Climate Master” means Climate Master (Australia) Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Climate Master (Australia) Pty Ltd.
1.2 “Client” means the person/s ordering the Works as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Works” means all Works or Materials supplied by Climate Master to the Client at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Works as agreed between Climate Master and the Client in accordance with clause 5 below.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of any Works.
2.2 These terms and conditions may only be amended with Climate Master’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Climate Master.
2.3 In the event that the Materials and/or Works provided by Climate Master are the subject of an insurance claim that the Client has made, then the Client shall be responsible for the payment of any monies payable to the insurance company and agrees to honour their obligation for payment for such transactions invoiced by Climate Master and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful.
2.4 The Client accepts that Climate Master’s Price is based on the presumption that all existing installation complies with all relevant laws, regulations, codes, compliance and Australian Standards. Where additional Works are required to bring existing installations up to standard to meet relevant laws, regulations, codes, compliance and Australian Standards shall be treated as a variation as per clause 5.2 and charged accordingly.
3. Electronic Transactions Act
3.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 (NSW), or Section 9 of the Electronic Transactions Act 2001 (ACT) or any other applicable provisions of that Act or any Regulations referred to in that Act.
4. Change in Control
4.1 The Client shall give Climate Master not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by Climate Master as a result of the Client’s failure to comply with this clause.
5. Price and Payment
5.1 At Climate Master’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Climate Master to the Client in respect of Works performed or Materials supplied; or
(b) Climate Master’s quoted Price (subject to clause 5.2) which shall be binding upon Climate Master provided that the Client shall accept Climate Master’s quotation in writing within thirty (30) days.
5.2 Climate Master reserves the right to change the Price:
(a) if a variation to the Materials which are to be supplied is requested; or
(b) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site and/or crawl spaces, availability of machinery, safety considerations including the discovery of asbestos or synthetic mineral fibres, pre-existing structural integrity, prerequisite work by any third party not being completed, hard rock barriers below the surface or iron reinforcing rods in concrete,, or hidden pipes and wiring in walls etc) which are only discovered on commencement of the Works; or
(d) in the event of increases to Climate Master in the cost of labour or materials which are beyond Climate Master’s control.
5.3 At Climate Master’s sole discretion a non-refundable deposit may be required.
5.4 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by Climate Master, which may be:
(a) on completion of the Works; or
(b) on delivery of the Materials; or
(c) by way of progress payments in accordance with Climate Master’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the site but not yet installed; or
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Climate Master.
5.5 Payment may be made by cash, cheque, electronic/on-line banking, or by any other method as agreed to between the Client and Climate Master.
5.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Climate Master an amount equal to any GST Climate Master must pay for any supply by Climate Master under this or any other agreement for the sale of the Materials. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6. Delivery of the Works
6.1 Subject to clause 6.2 it is Climate Master’s responsibility to ensure that the Works start as soon as it is reasonably possible.
6.2 The Works commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Climate Master claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Climate Master’s control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the site ready for the Works; or
(c) notify Climate Master that the site is ready.
6.3 At Climate Master’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
6.4 The Client shall take delivery of the Materials tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
(a) such discrepancy in quantity shall not exceed five percent (5%); and
(b) the Price shall be adjusted pro rata to the discrepancy.
6.5 Any time or date given by Climate Master to the Client is an estimate only. Climate Master shall not be liable for any loss or damage whatsoever due to failure by Climate Master to deliver the Works (or any part of them) promptly or at all, where due to circumstances beyond the reasonable control of Climate Master.
7.1 If Climate Master retains ownership of the Materials under clause 12 then:
(a) where Climate Master is supplying Materials only, all risk for the Materials shall immediately pass to the Client on delivery and the Client must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that either;
(i) the Client or the Client’s nominated carrier takes possession of the Materials at Climate Master’s address; or
(ii) the Materials are delivered by Climate Master or Climate Master’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).
(b) where Climate Master is to both supply and install Materials then Climate Master shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Client.
7.2 The Client acknowledges that pipes affected by root growth and or blockages are generally damaged as a result of interference. The removal of root growth and/or blockage alone carries no warranty that similar problems will note recur unless permanent repairs are made to the affected pipework. Climate Master shall provide the Client with an estimate for the full repair of the damaged pipe work.
7.3 Whilst the final location of the condensing unit is at the discretion of the Client, a charge will apply as a variation as per clause 5.2, if the Client requests the unit to not be located adjacent to the external wall, due to the underground piping required.
7.4 The final location of the wall, window or floor unit must be determined on site by the Client.
7.5 Climate Master shall upon installation ensure that all installed Materials meet current industry standards applicable to noise levels, however Climate Master cannot guarantee that noise levels will remain constant post installation as the Materials may be impacted by many factors such as the weather, lack of maintenance, tampering etc.
7.6 In the event that any of the equipment needs to be relocated due to complaints from neighbours or local authorities, then the Client shall be responsible for any and all costs involved.
7.7 The Client acknowledges and agrees that it is their responsibility to insure any equipment partly or completely installed on site, against theft or damage.
7.8 In the event that the electrical wiring or plumbing is required to be re-positioned at the request of any third party contracted by the Client then the Client agrees to notify Climate Master immediately upon any proposed changes. The Client agrees to indemnify Climate Master against any additional costs incurred with such a relocation of electrical wiring or pipes. All such variances shall be invoiced in accordance with clause 5.2.
7.9 All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Act, Regulations and Codes of Practice. All of the cabling work will comply with the Australian and New Zealand Wiring standards.
7.10 The Client warrants that any structures to which the Materials are to be affixed are able to withstand the installation of the Materials and that any electrical or plumbing connections (including, but not limited to, meter boxes, main switches, circuit breakers, pipes, cabling, etc.) are of suitable capacity to handle the Materials once installed. If, for any reason (including the discovery of asbestos, defective or unsafe wiring or plumbing, or dangerous access to roofing, crawl spaces or inspection points), Climate Master reasonably forms the opinion that the Client’s premises is not safe for the installation of Materials to proceed then Climate Master shall be entitled to delay installation of the Materials (in accordance with the provisions of clause 6.2 above) until Climate Master is satisfied that it is safe for the installation to proceed.
7.11 Where the Client has supplied materials for Climate Master to complete the Works, the Client acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. Climate Master shall not be responsible for any defects in the materials, any loss or damage to the Materials (or any part thereof), howsoever arising from the use of materials supplied by the Client.
7.12 The Client acknowledges that Climate Master is only responsible for parts that are replaced by Climate Master, and in the event that other parts/Materials, subsequently fail, the Client agrees to indemnify Climate Master against any loss or damage to the Materials, or caused by the Materials, or any part thereof howsoever arising.
7.13 The Client acknowledges and agree that where Climate Master has performed temporary repairs that:
(a) Climate Master offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
(b) Climate Master will immediately advise the Client of the fault and shall provide the Client with an estimate for the full repair.
7.14 The Client acknowledges that Materials supplied may:
(a) fade or change colour over time; and
(b) expand, contract or distort as a result of exposure to heat, cold, weather; and
(c) mark or stain if exposed to certain substances; and
(d) be damaged or disfigured by impact or scratching.
8.1 The Client acknowledges that:
(a) all descriptive specifications, illustrations, drawings, data, dimensions, ratings and weights stated in Climate Master’s or the manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by Climate Master;
(b) while Climate Master may have provided information or figures to the Client regarding the performance of the Materials, the Client acknowledges that Climate Master has given these in good faith, and are estimates based on Clean Energy Council (CEC), Water Efficiency Labelling and Standards (WELS) scheme or industry prescribed estimates. The water efficiency may be less than estimates due to factors out of Climate Master’s control (including, but not limited to, water pressure, water source, the mineral content of water based on geographical location, etc.) of the Materials.
8.2 The Client shall be responsible for ensuring that the Materials ordered are suitable for their intended use.
8.3 Climate Master reserves the right to substitute comparable Materials (or components of the Materials), and in all such cases Climate Master will notify the Client in advance of any such substitution.
9.1 The Client shall ensure that Climate Master has clear and free access to the work site at all times to enable them to undertake the Works. Climate Master shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Climate Master.
10. Underground Locations
10.1 Prior to Climate Master commencing any work the Client must advise Climate Master of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
10.2 Whilst Climate Master will take all care to avoid damage to any underground services the Client agrees to indemnify Climate Master in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 10.1.
11. Compliance with Laws
11.1 The Client and Climate Master shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works including testing of pipes or gas fittings prior to commencement of the Works.
11.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.
11.3 The Client agrees that the site will comply with any works health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.
12.1 Climate Master and the Client agree that ownership of the Materials shall not pass until:
(a) the Client has paid Climate Master all amounts owing to Climate Master; and
(b) the Client has met all of its other obligations to Climate Master.
12.2 Receipt by Climate Master of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
12.3 It is further agreed that:
(a) until ownership of the Materials passes to the Client in accordance with clause 12.1 that the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to Climate Master on request.
(b) the Client holds the benefit of the Client’s insurance of the Materials on trust for Climate Master and must pay to Climate Master the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.
(c) the production of these terms and conditions by Climate Master shall be sufficient evidence of Climate Master’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with Climate Master to make further enquiries.
(d) the Client must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for Climate Master and must pay or deliver the proceeds to Climate Master on demand.
(e) the Client should not convert or process the Materials or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Climate Master and must sell, dispose of or return the resulting product to Climate Master as it so directs.
(f) unless the Materials have become fixtures the Client irrevocably authorises Climate Master to enter any premises where Climate Master believes the Materials are kept and recover possession of the Materials.
(g) Climate Master may recover possession of any Materials in transit whether or not delivery has occurred.
(h) the Client shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of Climate Master.
(i) Climate Master may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.
13. Personal Property Securities Act 2009 (“PPSA”)
13.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
13.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Materials and/or collateral (account) – being a monetary obligation of the Client to Climate Master for Works – that have previously been supplied and that will be supplied in the future by Climate Master to the Client.
13.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Climate Master may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 13.3(a)(i) or 13.3(a)(ii);
(b) indemnify, and upon demand reimburse, Climate Master for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Materials charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Climate Master;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of Climate Master;
(e) immediately advise Climate Master of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.
13.4 Climate Master and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
13.5 The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
13.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
13.7 Unless otherwise agreed to in writing by Climate Master, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
13.8 The Client shall unconditionally ratify any actions taken by Climate Master under clauses 13.3 to 13.5.
13.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
14. Security and Charge
14.1 In consideration of Climate Master agreeing to supply the Materials, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
14.2 The Client indemnifies Climate Master from and against all Climate Master’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Climate Master’s rights under this clause.
14.3 The Client irrevocably appoints Climate Master and each director of Climate Master as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Client’s behalf.
15. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
15.1 The Client must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify Climate Master in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Materials/Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Climate Master to inspect the Materials or to review the Works provided.
15.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
15.3 Climate Master acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
15.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Climate Master makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. Climate Master’s liability in respect of these warranties is limited to the fullest extent permitted by law.
15.5 If the Client is a consumer within the meaning of the CCA, Climate Master’s liability is limited to the extent permitted by section 64A of Schedule 2.
15.6 If Climate Master is required to replace any Materials under this clause or the CCA, but is unable to do so, Climate Master may refund any money the Client has paid for the Materials.
15.7 If Climate Master is required to rectify, re-supply, or pay the cost of re-supplying the Works under this clause or the CCA, but is unable to do so, then Climate Master may refund any money the Client has paid for the Works but only to the extent that such refund shall take into account the value of Works and Materials which have been provided to the Client which were not defective.
15.8 If the Client is not a consumer within the meaning of the CCA, Climate Master’s liability for any defect or damage in the Materials is:
(a) limited to the value of any express warranty or warranty card provided to the Client by Climate Master at Climate Master’s sole discretion;
(b) limited to any warranty to which Climate Master is entitled, if Climate Master did not manufacture the Materials;
(c) otherwise negated absolutely.
15.9 Subject to this clause 15, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 15.1; and
(b) Climate Master has agreed that the Materials are defective; and
(c) the Materials are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Materials are returned in as close a condition to that in which they were delivered as is possible.
15.10 Notwithstanding clauses 15.1 to 15.9 but subject to the CCA, Climate Master shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Materials;
(b) the Client using the Materials for any purpose other than that for which they were designed;
(c) the Client continuing to use any Materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) interference with the Works by the Client or any third party without Climate Master’s prior approval;
(e) the Client failing to follow any instructions or guidelines provided by Climate Master;
(f) fair wear and tear, any accident, or act of God.
15.11 Climate Master may in its absolute discretion accept non-defective Materials for return in which case Climate Master may require the Client to pay handling fees of up to ten percent (10%) of the value of the returned Materials plus any freight costs.
15.12 Notwithstanding anything contained in this clause if Climate Master is required by a law to accept a return then Climate Master will only accept a return on the conditions imposed by that law.
16. Intellectual Property
16.1 Where Climate Master has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in Climate Master, and shall only be used by the Client at Climate Master’s discretion.
16.2 The Client warrants that all designs, specifications or instructions given to Climate Master will not cause Climate Master to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Climate Master against any action taken by a third party against Climate Master in respect of any such infringement.
16.3 The Client agrees that Climate Master may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which Climate Master has created for the Client.
17. Default and Consequences of Default
17.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Climate Master’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
17.2 If the Client owes Climate Master any money the Client shall indemnify Climate Master from and against all costs and disbursements incurred by Climate Master in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Climate Master’s contract default fee, and bank dishonour fees).
17.3 Without prejudice to any other remedies Climate Master may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Climate Master may suspend or terminate the supply of Works to the Client. Climate Master will not be liable to the Client for any loss or damage the Client suffers because Climate Master has exercised its rights under this clause.
17.4 Without prejudice to Climate Master’s other remedies at law Climate Master shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Climate Master shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Climate Master becomes overdue, or in Climate Master’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client becomes insolvent or bankrupt, 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 Client or any asset of the Client.
18.1 Climate Master may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Client. On giving such notice Climate Master shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to Climate Master for Works already performed. Climate Master shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.2 In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by Climate Master as a direct result of the cancellation (including, but not limited to, any loss of profits).
19. Privacy Act 1988
19.1 The Client agrees for Climate Master to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by Climate Master.
19.2 The Client agrees that Climate Master may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two years.
19.3 The Client consents to Climate Master being given a consumer credit report to collect overdue payment on commercial credit.
19.4 The Client agrees that personal credit information provided may be used and retained by Climate Master for the following purposes (and for other agreed purposes or required by):
(a) the provision of Works; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Works; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Works.
19.5 Climate Master may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
19.6 The information given to the CRB may include:
(a) personal information as outlined in 19.1 above;
(b) name of the credit provider and that Climate Master is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and Climate Master has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of Climate Master, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
19.7 The Client shall have the right to request (by e-mail) from Climate Master:
(a) a copy of the information about the Client retained by Climate Master and the right to request that Climate Master correct any incorrect information; and
(b) that Climate Master does not disclose any personal information about the Client for the purpose of direct marketing.
19.8 Climate Master will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
19.9 The Client can make a privacy complaint by contacting Climate Master via e-mail. Climate Master will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
20. Unpaid Seller’s Rights
20.1 Where the Client has left any item with Climate Master for repair, modification, exchange or for Climate Master to perform any other service in relation to the item and Climate Master has not received or been tendered the whole of any monies owing to it by the Client, Climate Master shall have, until all monies owing to Climate Master are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
20.2 The lien of Climate Master shall continue despite the commencement of proceedings, or judgment for any monies owing to Climate Master having been obtained against the Client.
21. Dispute Resolution
21.1 If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
22. Building and Construction Industry Security of Payments Act 1999 (where applicable)
22.1 At Climate Master’s sole discretion, if there are any disputes or claims for unpaid Materials and/or Works then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
22.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.
23. Building and Construction Industry (Security of Payment) Act 2009 (where applicable)
23.1 At Climate Master’s sole discretion, if there are any disputes or claims for unpaid Materials and/or Goods then the provisions of the Building and Construction Industry (Security of Payment) Act 2009 may apply.
23.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry (Security of Payment) Act 2009 of the Australian Capital Territory, except to the extent permitted by the Act where applicable.
24.1 The failure by Climate Master to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Climate Master’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
24.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, and are subject to the jurisdiction of the Queanbeyan courts in New South Wales.
24.3 Subject to clause 15, Climate Master shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Climate Master of these terms and conditions (alternatively Climate Master’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
24.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Climate Master nor to withhold payment of any invoice because part of that invoice is in dispute.
24.5 Climate Master may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
24.6 The Client agrees that Climate Master may amend these terms and conditions at any time. If Climate Master makes a change to these terms and conditions, then that change will take effect from the date on which Climate Master notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Climate Master to provide any Works to the Client.
24.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
24.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.