Terms and Conditions - Coolworx Sydney

TERMS AND CONDITIONS OF TRADE – COOLWORX SYDNEY PTY LTD

Introduction
- These terms and conditions are for customers of COOLWORX SYDNEY PTY LTD (ABN 63 635 889 404) (‘Coolworx’). Coolworx provides Airconditioning and Refrigeration Products, Services and Installation (the ‘Products and Services‘).
- Please read these terms and conditions (the ‘Terms‘) carefully. By ordering, collecting, using or agreeing to the installation of any Products and Services, this signifies that you have read, understood and agree to be bound by the Terms.
- Coolworx reserves the right to review and change any of these Terms by document at its sole discretion. Any changes to the Terms take immediate effect from the date of the change. We recommend you keep a copy of the Terms for your records.

Acceptance of the Terms
- You are taken to have accepted the Terms by the use of, ordering of or agreeing to the installation or delivery of any Products and Services from Coolworx.

Payment
- At Coolworx’s sole discretion the costs for any Products and Services (‘Price’) shall be either;
  - As indicated on invoices provided by Coolworx to you in respect of any Products and Services provided; or
  - Coolworx’s quoted Price, which shall be binding on Coolworx (subject to 3.2 below) provided that you accept the quotation in writing within thirty (30) days of the quotation being given to you.
- Coolworx reserves the right to change the Price:
  - If there is a variation to any of the Products and Services to be provided;
  - Where additional labour is required to provide the Products and Services; and
  - In the event that the costs incurred by Coolworx in providing the Products and Services increase, and this increase is beyond Coolworx’s control.
- Coolworx may require a non-refundable deposit at its sole discretion to provide any Products and Services.
- When making any payment in relation the Products and Services, you warrant that you have read, understood and agree to be bound by these Terms and any agreements that we provide to you for signing.
- Coolworx will require payment for the Products and Services at a date determined by Coolworx which may be:
  - At the completion of Coolworx providing the Products and Services;
  - By way of progress payments for any stage of Products and Services completed as agreed between you and Coolworx;
  - The date specified on any invoice for Products and Services, or if no date is specified, within 7 days of the issued date of the invoice; and/or
  - Within 7 days from the end of a month in which a statement is provided to you for Products and Services.
- You acknowledge and agree that where a request for the payment of the Products and Services is returned or denied, for whatever reason, by your financial institution or is unpaid by you for any other reason, then you are liable for any costs, including banking fees and charges, associated with the Products and Services.
- You agree and acknowledge that if you fail to provide payment to Coolworx for any Products and Services provided, Coolworx may stop work, or not provide any additional Products and Services until such payment is made. If you do not pay, then you are liable for all losses suffered by Coolworx due to the failure to pay.

Delivery of Products and Services
- You agreed that the Completion Date is an estimate only and can change subject to the following:
  - You not making a selection when asked by Coolworx;
  - You not having any worksite ready before the installation or delivery of Products and Services; and/or
  - Due to your failure to notify Coolworx that the worksite is ready.
- You agree that Coolworx will not be liable for any cost or delay due to the change in Completion date or for any other delay unless such delay is unreasonably caused by Coolworx.

Risk
- If Coolworx retains ownership of the Products and Services under clause 8, then:
  - Where Coolworx is delivering Products and Services only (without installation), all risk for the Products and Services immediately pass to the Client on delivery and you must insure the materials on or before delivery. Delivery shall be deemed to have occurred either when you or your nominated carrier takes possession of the Products and Services or they are delivered to your nominated delivery address, even if you are not present.
  - Where Coolworx is also installing the Products and Services, Coolworx shall maintain a contract works insurance policy until any work or installation is complete. Once installed, all risk immediately passes to you.
- Coolworx will charge an additional fee if you decide to move any of the Products and Services due to not liking the placement after work is complete.
- If any electrical wiring or additional materials or work is required by a third party in relation to the Products and Services any additional costs associated with making the changes shall be incurred by you and added to the Price.
- You agree to indemnify Coolworx for any damage caused to the Products or Services or to your property by any third party tradesmen during and after the installation of the Products and Services.

Your Acknowledgements
- You acknowledge and agree that:
  - You have disclosed all relevant information relating to the worksite for the installation of Products and Services and that this information includes all information regarding water pipes, gas pipes and other utilities to ensure that no damage occurs to these services. You acknowledge that Coolworx will not be liable for any damage to these services if they were not disclosed to Coolworx before the installation or delivery of any Products and Services;
  - You will clear all space and allow access to the worksite free of all encumbrances and that Coolworx will not be liable for any damage caused to any of your property due to the installation of the Products and Services;
  - If Coolworx uses any existing materials in the installation or delivery of any Products and Services, that Coolworx is not liable due to any fault or failure of the existing materials whatsoever;
  - Coolworx does not guarantee noise levels (external or internal) and Coolworx shall not be held liable for any damage, loss and costs associated with any noise; and
  - You are responsible for maintaining insurance over any Products and Services which are either partly or wholly installed on your property.

Compliance with Laws
- Coolworx agrees that in the installation or deliver of any Products and Services it shall comply with all applicable laws, regulations and statutes that apply.
- You agree to obtain all necessary approvals from state, local or any other government authority for any work that is to be completed if such approval is necessary for the installation and deliver of the Products and Services.

Title
- Coolworx and you agree that ownership of the Products and Services shall not pass until:
  - You have paid Coolworx all amounts owing for any Products and Services; and
  - You have met all other obligations to Coolworx.
- Receipt of any form of payment, other than cash, will not be deemed to have been accepted until the payment has cleared.
- It is further agreed that until the ownership of the Products and Services passes to you:
  - You are only a bailee of the Products and Services unless they have become fixtures and they then must be returned to Coolworx on request;
  - You hold the proceeds of any insurance claim over any Products and Services on trust to be delivered to Coolworx in the event the Products and Services are lost, damaged or destroyed;
  - You must not sell or otherwise dispose of the Products and Services;
  - Coolworx reserves the right to remove all Products and Services and any other associated materials from the worksite if you fail to pay any amount owing to Coolworx;
  - Unless the materials in relation to the Products and Services have become fixtures, you will do all things necessary to assist Coolworx to enter any premises to recover all materials and related Products and Services if you fail to pay any amount owing to Coolworx; and
  - Coolworx may commence proceedings to recover the Price of the Products and Services not withstanding that the ownership of the Products and Services has not passed to you.

Personal Property Securities Act 2019 (NSW) (‘PPSA’)
- In this clause financing statement, financing change statement, security agreement and security interest have the meaning given to them by the PPSA.
- Upon agreeing to these Terms you acknowledge and agree that these Terms constitute a security agreement for the purposes of the PPSA and creates a security interest in all Property and Services and/or collateral (account) – being a monetary obligation of you to Coolworx for the Products and Services – that have been previously supplied and that will be supplied in the future by Coolworx to you.
- You undertake to:
  - Promptly sign and further documents and/or provide any further information (such information to be complete, accurate and up to date in all respects) which Coolworx may reasonably require to:
    - Register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
    - Register any other document required to be registered by the PPSA; and/or
    - Correct a defect in a statement referred to in the above clauses.
  - Indemnify, and upon demand reimburse Coolworx 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 Products and Services charged thereby;
  - Not register a financing change statement in respect of a security interest without the prior written consent of Coolworx;
  - Not register, or permit to be registered, a financing statement or a financing change statement in relation to the Products and Services and/or collateral (account) in favour of a third party without written consent of Coolworx.
  - Immediately advise Coolworx of any material change in its business practices of selling the Products and Services which would result in a change in the nature of proceeds derived from such sales.
- Coolworx and you agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these Terms.
- You hereby waive your rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
- You waive your rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
- Unless otherwise agreed to in writing by Coolworx, you waive your right to receive a certification statement in accordance with section 157 of the PPSA.
- You shall unconditionally ratify any actions taken by Coolworx under the proceeding clauses of this Agreement.
- Subject to any express provisions to the contrary (including those contained in this clause), nothing in these Terms is intended to have the effect of contracting out of any of the provisions of the PPSA.

Security and Charge
1. In consideration of Coolworx agreeing to supply the Products and Services, you charge all of your rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by you either now or in the future, to secure the performance by you of your obligations under these Terms.
1. You indemnify Coolworx from and against all costs and disbursements, including legal costs of a solicitor incurred in exercising Coolworx’s rights under this clause.
1. You irrevocably appoint Coolworx and each director of Coolworx as your true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause including, but not limited to, signing any document on your behalf.

Building and Construction Industry Security of Payments Act 1999
1. At the sole discretion of Coolworx, if there are any disputes or claims of unpaid Products and Services, then the provisions of the Building and Construction Industry Security of Payments Act 1999 (NSW) (“the Act”) may apply.
1. Nothing in this Agreement is intended to have the effect of contracting out of any applicable provisions of the Act except to the extent permitted by the Act where applicable.

Refund Policy
1. You must notify Coolworx within seven (7) days of delivery or installation of the Products and Services of any default or defect.
1. Coolworx will only provide you with a refund of any fees paid for Products and Services Fee in accordance with any agreements with you or if Coolworx makes a decision, at its absolute discretion, that it is reasonable to do so under the circumstances (the ‘Refund‘).
1. If any of the Products and Services provided to you are faulty or do not work as intended due to any fault caused by Coolworx, then Coolworx agrees, at their sole discretion, to provide you with replacement Products and Services with the costs to be incurred by Coolworx.

General Disclaimer
1. Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
1. Subject to this clause, and to the extent permitted by law:
  1. all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and
  1. Coolworx will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Products and Services or these Terms (including as a result of not being able to use the Products and Services or the late supply of the Products and Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
1. Use of the Products and Services is at your own risk. The risk passes to you on either delivery of the Products and Services, or on the completion of any installation associated with the Products and Services. Any information provided about the Products and Services and the Products and Services themselves are provided to you “as is” and “as available” without warranty or condition of any kind unless stipulated otherwise in agreement. None of the affiliates, directors, officers, employees, agents, contributors and licensors of Coolworx make any express or implied representation or warranty about the Products and Services referred to by Coolworx, including (but is not restricted to) loss or damage you might suffer as a result of any of the following:
  1. failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, harmful component, unlawful third-party conduct, or theft, destruction, alteration or unauthorised access to the Products and Services;
  1. the incorrect use of any of the Products and Services;
  1. any damage, or the inability of Coolworx to provide the Products and Services due to any adverse weather, or damage to any construction site of any kind caused by either you or by a natural weather event that was unforeseen;
  1. the accuracy, suitability or currency of any information, the Products and Services, or any of its Products and Services related products (including third party material and advertisements);
  1. costs incurred as a result of your use of the Products and Services; and
  1. Any advice, recommendation, information, assistance, provided in relation to any Products and Services provided by Coolworx.

Limitation of Liability
1. Coolworx’s total liability arising out of or in connection with the Products and Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Products and Services to you.
1. You expressly understand and agree that Coolworx, its affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.

Termination of Contract
1. The Terms will continue to apply until terminated by either you or by Coolworx as set out below.
1. If you want to terminate the Terms, you may do so by:
  1. providing Coolworx with 7 days’ notice of your intention to terminate; and
  1. closing your accounts for all of the Products and Services which you use, where Coolworx has made this option available to you.

Your notice should be sent by writing to Coolworx.

Coolworx may at any time, terminate the Terms with you if:
1. you have breached any provision of the Terms or intend to breach any provision;
1. Coolworx is required to do so by law; and/or
1. the provision of the Products and Services to you by Coolworx is, in the opinion of Coolworx, no longer commercially viable.
1. Termination shall not relieve you of the obligation to pay the Price to Coolworx.

Indemnity
1. You agree to indemnify Coolworx, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
  1. all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with the Products and Services; and/or
  1. any breach of the Terms by you.

Governing Law

The Terms and the Products and Services are governed by the laws of New South Wales, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of New South Wales.

Severance

If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed, and the rest of the Terms shall remain in force.