Terms & Conditions
1. DEFINITIONS
In these Conditions, unless the contrary intention appears:
“Agreement” means the agreement formed pursuant to Clause 3 below. It shall include the Quotation, the Purchase Order, the acceptance by Airlement Air Conditioning Solutions and Refrigeration of the purchase order, these Terms and Conditions and any Special Conditions;
“Change in Law” means any change in regulation or legislation enacted by any government authority or delegated government authority.
“Conditions” means these Terms and Conditions and any Special Conditions agreed in writing by Airlement Air Conditioning Solutions and Refrigeration;
“Goods” means all or any part of the Goods the subject of a Purchase Order and includes Goods supplied as part of an Agreement for the supply of Services;
“Intellectual Property” means all trademarks, patents, registered designs, copyright, logos, designs, drawings and software;
“Price” means the price of the Goods or Services as agreed by the Purchaser and Airlement Air Conditioning Solutions and Refrigeration at the time the Agreement is formed pursuant to Clause 3 below. The Price shall be set pursuant to Clause 6 below;
“Purchase Order” means an offer by the Purchaser for the purchase of Goods or Services in accordance with any Quotation issued by Airlement Air Conditioning Solutions and Refrigeration, and includes any specifications or drawings attached or referred to in any such Purchase Order;
“Purchaser” means the Purchaser on the Purchase Order;
“Quotation” means any quotation issued by Airlement Air Conditioning Solutions and Refrigeration to a Purchaser for the supply of the Goods and/or Services stipulated in Australian dollars (or in the case of New Zealand, New Zealand dollars) including the specifications for the Goods and/or Services;
“Services” means all or any part of the services to be provided by Airlement Air Conditioning Solutions and Refrigeration pursuant to the Agreement.
“Special Conditions” means the special conditions referred to in Clause 6 below.
2. APPLICATION OF THESE TERMS AND CONDITIONS
These Conditions apply to all Agreements entered into by Airlement Air Conditioning Solutions and Refrigeration and a Purchaser except as varied in writing by Airlement Air Conditioning Solutions and Refrigeration.
3. QUOTATION AND FORMATION OF AGREEMENT
(a) All Airlement Air Conditioning Solutions and Refrigeration Quotations are an invitation to treat only and, subject to price variation pursuant to Clause 6 below, are valid for 30 days from the Quotation date or as varied in writing by Airlement Air Conditioning Solutions and Refrigeration prior to the formation of an Agreement.
(b) The Agreement shall be formed by the acceptance of Airlement Air Conditioning Solutions and Refrigeration of a Purchase Order submitted within the valid time frame of the Airlement Air Conditioning Solutions and Refrigeration Quotation. Any Agreement shall be subject to these Terms and Conditions, the Airlement Air Conditioning Solutions and Refrigeration Quotation and any Special Conditions.
4. COMPONENTS
(a) If Goods require components and a specific brand is not requested by the Purchaser in the Purchase Order then Airlement Air Conditioning Solutions and Refrigeration in its sole and absolute discretion shall use such components as it deems necessary.
(b) In the event the Purchase Order specifies a specific brand of components and Airlement Air Conditioning Solutions and Refrigeration has accepted the Agreement on this basis, any delay in obtaining the specified component shall result in corresponding extension of time for Airlement Air Conditioning Solutions and Refrigeration to provide the Goods or Services.
(c) Airlement Air Conditioning Solutions and Refrigeration reserves the right to make reasonable modifications of any kind to the Goods without prior notice to the Purchaser.
5. INTELLECTUAL PROPERTY RIGHTS
(a) Provided no monies are owing by the Purchaser to Airlement Air Conditioning Solutions and Refrigeration, Airlement Air Conditioning Solutions and Refrigeration shall protect and indemnify the Purchaser from and against all claims, damages, judgments and losses arising from any of infringements or alleged infringements by Airlement Air Conditioning Solutions and Refrigeration of any Intellectual Property rights by any of the Goods delivered or provided under the Agreement, provided always that the Purchaser provides written notification of any such claims to allow Airlement Air Conditioning Solutions and Refrigeration sufficient time to conduct any litigation, and cooperates with Airlement Air Conditioning Solutions and Refrigeration in the conduct of any litigation. Where the Purchaser fails to provide such notice or cooperation, the indemnity shall not apply.
(b) Property, right and title in all Intellectual Property relating to the Goods shall remain with Airlement Air Conditioning Solutions and Refrigeration and the Purchaser shall be entitled to a non exclusive license for so much of the Intellectual Property that is required for the proper use and performance of the Goods.
(c) All Intellectual Property created during the course of the supply of the Goods or as a result of work done in connection with the supply of the Goods shall be the property of Airlement Air Conditioning Solutions and Refrigeration. The Purchaser shall execute all documents evidencing ownership of the Intellectual Property as Airlement Air Conditioning Solutions and Refrigeration may reasonably require.
(d) All plans, drawings, dimensions and quantities submitted by Airlement Air Conditioning Solutions and Refrigeration with any Quotation are approximate, for Quotation purposes only and must not be used for construction purposes. The Purchaser must check all plans, drawings, dimensions, quantities and other specifications submitted by Airlement Air Conditioning Solutions and Refrigeration prior to installation of any Goods. Airlement Air Conditioning Solutions and Refrigeration shall not be responsible for any loss, damage or delay caused by or as a consequence of the Purchaser’s failure to check all plans, drawings, dimensions, quantities and other specifications provided by Airlement Air Conditioning Solutions and Refrigeration.
6. PRICE
(a) Subject to clause 6(b), the Price for which Airlement Air Conditioning Solutions and Refrigeration provides the Goods (“The Price”) pursuant to the Agreement shall be fixed from the date of formation of the Agreement.
(b) If there is a Change in Law since the formation of this Agreement which causes Airlement Air Conditioning Solutions and Refrigeration to incur additional cost for the supply of the Goods and Services, Airlement Air Conditioning Solutions and Refrigeration shall adjust the Price to reflect the change in cost, using reasonable endeavours to minimise any increase.
(c) Up until formation of this Agreement (ie acceptance by Airlement Air Conditioning Solutions and Refrigeration of a valid Purchase Order and subject to these terms and conditions) the Airlement Air Conditioning Solutions and Refrigeration Quotation is subject to exchange rate variations. Once the Agreement is formed, the Price is not subject to exchange rate variations.
7. GOODS AND SERVICES TAX
In this Clause:
(a) “GST” refers to goods and services tax under A New Tax System (Goods and Services) Act 1999 (“GST Act”) and the terms used have the meanings as defined in the GST Act.
(b) The Price and all other amounts agreed to be paid by the Purchaser to Airlement Air Conditioning Solutions and Refrigeration shall be exclusive of GST.
(c) In respect of any liability of Airlement Air Conditioning Solutions and Refrigeration for GST under this Agreement, and any variation for any taxable supplies, the Purchaser shall pay to Airlement Air Conditioning Solutions and Refrigeration, at the same time as any payment is made involving Airlement Air Conditioning Solutions and Refrigeration in GST liability, the additional amount of GST, together with the payment to which it relates.
(d) The Purchaser’s liability under this Clause is to reimburse the full amount of GST, disregarding and excluding Airlement Air Conditioning Solutions and Refrigeration’s entitlement to input tax credits or other credit or reimbursements for GST.
(e) In respect of each payment by the Purchaser under this Agreement Airlement Air Conditioning Solutions and Refrigeration agrees to deliver to the Purchaser tax invoices in a form which complies with the GST Act and the applicable regulations.
8. SUPPLY OF INFORMATION
(a) The Purchaser warrants the accuracy of all information provided by it, and Airlement Air Conditioning Solutions and Refrigeration shall not be responsible for any loss or damage in the event that the Purchaser’s information is incorrect in any respect.
(b) Any additional costs incurred by Airlement Air Conditioning Solutions and Refrigeration as a result of incorrect information or delay in supply of information by the Purchaser, including storage and transport costs, shall be payable by the Purchaser to Airlement Air Conditioning Solutions and Refrigeration in addition to the Price. Any such delays shall result in a corresponding extension of time for Airlement Air Conditioning Solutions and Refrigeration to supply the Goods.
9. DELIVERY OF THE GOODS
(a) Delivery dates are estimates only unless the Agreement clearly specifies an agreed delivery date and that time is of the essence.
(b) The Purchaser may only reschedule the delivery date if Airlement Air Conditioning Solutions and Refrigeration is notified in writing. Any additional costs or losses of Airlement Air Conditioning Solutions and Refrigeration as a result of any change in delivery date (including storage) shall be at the Purchasers cost and paid in addition to the Price.
(c) The Price agreed by Airlement Air Conditioning Solutions and Refrigeration under any Agreement is for Goods delivered free on truck from Airlement Air Conditioning Solutions and Refrigeration premises (excludes deliveries more than 50km outside the metropolitan area) unless otherwise agreed by Airlement Air Conditioning Solutions and Refrigeration in writing at the time of entering in to the Agreement. The Goods shall be deemed delivered once loaded onto the Purchasers nominated carrier at Airlement Air Conditioning Solutions and Refrigeration’s premises or at the nominated address of the Purchaser, at which time risk in the Goods passes to the Purchaser.
(d) All deliveries shall occur in normal working hours. Any additional costs for delivery outside normal working hours shall be at the cost of the Purchaser.
(e) The Purchaser shall inspect the Goods on delivery, and report in writing any damage to the Goods or shortage in delivery to Airlement Air Conditioning Solutions and Refrigeration within three (3) working days of delivery. Unless Airlement Air Conditioning Solutions and Refrigeration receives such written notification within this time, the Goods shall be deemed delivered and accepted in all respects in accordance with the Agreement, free from damage and shortage.
Failure to comply with this Clause shall be a bar to any claim against Airlement Air Conditioning Solutions and Refrigeration.
(f) The Purchaser shall indemnify and keep indemnified Airlement Air Conditioning Solutions and Refrigeration against any loss or damage which occurs during removal of the Goods from the truck and installation, unless Airlement Air Conditioning Solutions and Refrigeration installs the Goods in which case such indemnity shall apply once the installation is complete.
10. FORCE MAJEURE
(a) Should Airlement Air Conditioning Solutions and Refrigeration be prevented from delivering any of the Goods to the Purchaser or performing any Services in accordance with the Agreement by reason of any event beyond Airlement Air Conditioning Solutions and Refrigeration’s control, including but not limited to industrial disputes, an intervention during shipping, acts of parliament, embargo, litigation, Court Orders, civil strife, fires, floods, Acts of God and Airlement Air Conditioning Solutions and Refrigeration’s inability to procure materials or components from its usual sources of supply, Airlement Air Conditioning Solutions and Refrigeration shall be entitled at its own option:
(i) to delay delivery of the Goods and/or Services; or
(ii) to terminate the Agreement
The Purchaser will not be entitled to recover any damage or loss as a result of such delay or termination.
11. ACCESS AND EQUIPMENT FOR DELIVERY OF GOODS
(a) For delivery of the Goods, the Purchaser shall provide Airlement Air Conditioning Solutions and Refrigeration with adequate and safe entry and access to the premises when required, and with all necessary equipment and services required, for the removal of the Goods from the truck, at the Purchaser’s cost.
(b) Airlement Air Conditioning Solutions and Refrigeration shall not be liable for any loss or damage arising from or related to any failure or delay in providing entry, access, equipment or services as required. Any additional costs incurred by Airlement Air Conditioning Solutions and Refrigeration arising from or related to any issue with access or equipment shall be borne by the Purchaser.
(c) Any delays arising under this clause shall result in a corresponding extension of time for Airlement Air Conditioning Solutions and Refrigeration to deliver the Goods/and or Services.
12. PASSING OF PROPERTY AND RISK
(a) Except where Airlement Air Conditioning Solutions and Refrigeration is storing the Goods on behalf of the Purchaser, Airlement Air Conditioning Solutions and Refrigeration shall bear all risks for the Goods until delivery to the Purchaser’s address or collection by the Purchaser from Airlement Air Conditioning Solutions and Refrigeration’s premises. The Purchaser shall be on risk for the Goods where Airlement Air Conditioning Solutions and Refrigeration stores the Goods on behalf of the Purchaser.
(b) Ownership and property in the Goods shall pass upon receipt of full payment by the Purchaser.
(c) Airlement Air Conditioning Solutions and Refrigeration shall, at the Purchaser’s written request and where practicable, arrange transit insurance, and all costs in relation thereto shall be borne by the Purchaser.
13. TESTS
(a) The cost of any tests required by the Purchaser to determine the performance of the Goods shall be borne by the Purchaser.
(b) If witness testing is required by the Agreement, the Purchaser shall attend to such testing within 2 working days from the date of notification of commissioning of the Goods, failing which an invoice shall be issued for the Goods and payment will be required in accordance with these Conditions.
14. LIMITATION OF LIABILITY
(a) Airlement Air Conditioning Solutions and Refrigeration’s liability (whether arising under this Agreement, breach of statute, tort or howsoever arising) up to delivery or commissioning is limited to any one or more of the following as determined by Airlement Air Conditioning Solutions and Refrigeration in its absolute discretion:
(i) in the case of supply of Goods;
(1) the replacement or repair of the Goods; or
(2) the supply of equivalent Goods; or,
(3) 100% of the Price
(ii) in the case of supply of Services;
(1) the supplying of the Services again; or
(2) the payment of the cost of having the Services supplied again; or
(3) 100% of the Price
(b) Airlement Air Conditioning Solutions and Refrigeration’s liability (whether arising under this Agreement, breach of statute, tort or howsoever arising) after delivery or commissioning of the Goods (ie during the warranty period) is limited to any one or more of the following as determined by Airlement Air Conditioning Solutions and Refrigeration in its absolute discretion:
(i) in the case of supply of Goods;
(1) the replacement or repair of the Goods; or
(2) the supply of equivalent Goods; or,
(3) 10% of the Price
(ii) in the case of supply of Services;
(4) supplying of the Services again; or
(5) the payment of the cost of having the Services supplied again; or
(6) 10% of the Price
(c) In no circumstance is Airlement Air Conditioning Solutions and Refrigeration liable for loss of profit, loss of revenue or business, loss of opportunity or any consequential or special damages.
(a) Airlement Air Conditioning Solutions and Refrigeration shall be under no liability to the Purchaser for any loss or damage suffered or incurred by the Purchaser arising from its acts or omission (or its servants, agents, employees, tenants and guests).
(b) Airlement Air Conditioning Solutions and Refrigeration shall not be liable for liquidated damages or any damages for delay unless agreed in writing by Airlement Air Conditioning Solutions and Refrigeration.
15. INDEMNITY
The Purchaser shall indemnify and keep indemnified Airlement Air Conditioning Solutions and Refrigeration and its successors and assigns from and against all actions, suits, claim, loss, damage, expense and demands and costs, arising out of or in relation to the actions or omissions of the Purchaser or its servants, agents, employees, tenants and guests.
16. WARRANTY
(a) Unless expressly provided by Airlement Air Conditioning Solutions and Refrigeration in writing, Airlement Air Conditioning Solutions and Refrigeration does not warrant any Goods are suitable or fit for purpose.
(b) Unless expressly provided by Airlement Air Conditioning Solutions and Refrigeration in writing, in respect of any Goods supplied pursuant to the Agreement and subject to the following:
(i) Airlement Air Conditioning Solutions and Refrigeration actually undertakes the service and maintenance of the Goods during the Warranty period; and
(ii) the Goods are not supplied and installed more than 50km outside of the metropolitan area of each capital city
Airlement Air Conditioning Solutions and Refrigeration warrants that, for a period of 18 months from the date of shipment from factory or 12 months after the Goods are commissioned (whichever occurs first), the Goods shall be free from defective materials and workmanship under normal use and service. If commissioning is delayed (not through the fault of Airlement Air Conditioning Solutions and Refrigeration) then the Purchaser may purchase from Airlement Air Conditioning Solutions and Refrigeration delayed commencement warranty.
(c) Unless expressly stated in writing by Airlement Air Conditioning Solutions and Refrigeration, where the Goods are supplied and installed more than 50km outside the metropolitan area, the warranty excludes the cost of accommodation and travel expenses.
(d) Where the Agreement does not provide for the installation of the Goods by Airlement Air Conditioning Solutions and Refrigeration, this warranty shall not apply in respect of Goods installed improperly, in a dangerous or unsafe manner, not in accordance with any applicable building codes, standards or any other applicable industry codes or standards, or contrary to Airlement Air Conditioning Solutions and Refrigeration’s instructions regarding installation of the Goods whether verbal or written.
(e) This warranty shall not apply to Goods subjected from the date of delivery to: abuse, neglect, or damage by fire, flood, abrasion, erosion, corrosion, or deterioration or the like due to changes in temperature; exposure to foreign matter, chemicals, energy, water, steam or other similar cause or failure to comply with any instruction or manual for the Goods (“Abuse”). To the fullest extent permitted by law, Airlement Air Conditioning Solutions and Refrigeration shall not be liable in any way to the Purchaser for any damage to the Goods arising from or related to Abuse, and shall not be responsible for replacing or repairing the Goods so damaged. To the extent permitted by law, Airlement Air Conditioning Solutions and Refrigeration shall not be liable for, and this warranty shall not apply to, damage to the Goods arising from work conducted or materials supplied to the Goods other than by a person authorized in writing by Airlement Air Conditioning Solutions and Refrigeration, or arising from the Purchaser’s failure to notify Airlement Air Conditioning Solutions and Refrigeration of any defects within a reasonable time after those defects are first noticed by the Purchaser.
(f) Resetting of equipment faults without first notifying, receiving advice or an inspection from Airlement Air Conditioning Solutions and Refrigeration may void the equipment warranty.
(g) Any replacement part supplied by Airlement Air Conditioning Solutions and Refrigeration pursuant to this warranty shall be covered by that warranty for the unexpired portion of the warranty period in respect of the Goods or for a period of 90 days, whichever period expires last. The cost of labour for fitting of replacement parts will be at the expense of the Purchaser.
(h) This warranty does not extend to the replacement of refrigerant loss caused by defects in the Goods or performance of the Works except in packaged liquid chillers and complete refrigerant systems (such as self-contained packaged air conditioning units) or where specifically agreed in writing by Airlement Air Conditioning Solutions and Refrigeration.
(i) Where Airlement Air Conditioning Solutions and Refrigeration attends to rectification of defects pursuant to the warranty provisions of this contract and Airlement Air Conditioning Solutions and Refrigeration later determines that the defects are not covered under the warranty or resulted from the acts, omissions or materials of a party other than Airlement Air Conditioning Solutions and Refrigeration, then the Purchaser shall pay to Airlement Air Conditioning Solutions and Refrigeration within 30 days of demand the cost of such services and materials.
This cost shall be determined by Airlement Air Conditioning Solutions and Refrigeration at its sole discretion.
(j) Nothing in this Clause will exclude, restrict or modify any condition, warranty, right or liability implied by law where to do so would render this Clause void.
17. NOISE AND VIBRATION
Any information provided by Airlement Air Conditioning Solutions and Refrigeration concerning noise and vibration is given for the assistance of the Purchaser but the Purchaser shall not rely upon such information nor upon the skill or judgment of Airlement Air Conditioning Solutions and Refrigeration in respect of such information. Airlement Air Conditioning Solutions and Refrigeration shall not be responsible for noise and/or vibration except where such responsibility has been specifically requested by the Purchaser and agreed in writing by Airlement Air Conditioning Solutions and Refrigeration.
18. RETURNS
Goods may not be returned except with the written consent of Airlement Air Conditioning Solutions and Refrigeration, and when Goods are so returned all monies payable to Airlement Air Conditioning Solutions and Refrigeration will remain due and payable, subject only to such discount, rebate, reimbursement or other condition as is stated in the written consent.
19. TERMS OF PAYMENT
(a) Subject to the Purchaser obtaining credit approval prior to the ordering and delivery of the Goods, payment shall be made by the Purchaser within 30 days of invoice by Airlement Air Conditioning Solutions and Refrigeration
(b) Where any monies due and payable by the Purchaser to Airlement Air Conditioning Solutions and Refrigeration remain outstanding:
(i) such amount will be subject to an interest rate of 5% per calendar month until payment;
(ii) the charging or payment of interest shall be without prejudice to all other rights and remedies Airlement Air Conditioning Solutions and Refrigeration may have to recover any amount due pursuant to the Agreement.
(c) Should the Purchaser fail to take delivery of the Goods within 7 days of notification by Airlement Air Conditioning Solutions and Refrigeration that the Goods are ready for dispatch (or delivery) from Airlement Air Conditioning Solutions and Refrigeration’s premises, Airlement Air Conditioning Solutions and Refrigeration reserves the right to arrange storage of the Goods and to obtain payment for the Goods as though the Goods had been delivered in accordance with the Agreement, and further to recover the storage and handling costs together with any other additional costs and loss incurred by Airlement Air Conditioning Solutions and Refrigeration.
(d) Where any monies due and payable by the Purchaser to Airlement Air Conditioning Solutions and Refrigeration remain outstanding, or if the Purchaser is in breach of the Agreement, Airlement Air Conditioning Solutions and Refrigeration may suspend performance of this Agreement, until those moneys are paid to Airlement Air Conditioning Solutions and Refrigeration or the breach is rectified. In the event the breach is not rectified within 30 days, Airlement Air Conditioning Solutions and Refrigeration may terminate the Agreement, in which case Clause 21 shall apply. Airlement Air Conditioning Solutions and Refrigeration shall in no way be liable for any loss or damage of any kind arising from any such suspension or termination, and the Purchaser shall be responsible for any costs or loss incurred by Airlement Air Conditioning Solutions and Refrigeration arising from such suspension or termination.
(e) If Airlement Air Conditioning Solutions and Refrigeration terminates the Agreement or takes possession of the Goods pursuant to the Agreement, Airlement Air Conditioning Solutions and Refrigeration may resell the Goods concerned or the undelivered balance thereof.
(f) In the event the Purchaser contracts a third party to undertake any services during any warranty period provided by the Agreement, then all warranties provided by Airlement Air Conditioning Solutions and Refrigeration under the Agreement shall be null and void and Airlement Air Conditioning Solutions and Refrigeration shall be at liberty to terminate the Agreement in which case Clause 21 shall apply,
(g) To the fullest extent permitted by law, the obligations of Airlement Air Conditioning Solutions and Refrigeration to warrant the Goods pursuant to Clause 16 shall be suspended insofar as any monies which are due and payable by the Purchaser to Airlement Air Conditioning Solutions and Refrigeration remain outstanding. The warranty period provided by Clause 16 shall remain unchanged notwithstanding that pursuant to this Clause 19(g) the warranty has not applied for part of that period.
(h) The Purchaser shall not be entitled to deduct or withhold from any invoice any moneys by way of retention, set-off, counter claim, or otherwise.
(i) If money is not paid on completion of a work without previous approval from Streamline Air Conditioning and Refrigeration an immediate late fee of 5% will apply, further late fees of 5% will be added to the total bill at the end of each calendar month until all outstanding money has been paid in full.
20. RETENTION OF TITLE
(a) Risk passes to the Purchaser upon delivery but property and title in the Goods remains with Airlement Air Conditioning Solutions and Refrigeration until full payment for the Goods is received.
(b) Until the Goods have been paid in full and ownership remains with Airlement Air Conditioning Solutions and Refrigeration, the Purchaser must:
(i) hold the Goods as a bailee, and store them separately from all other goods clearly showing they are the property of Airlement Air Conditioning Solutions and Refrigeration (including by not removing any serial numbers or identification of Airlement Air Conditioning Solutions and Refrigeration’s);
(ii) take out and maintain with a reputable insurance company comprehensive insurance of the Goods against any loss or damage to the Goods, howsoever caused
(iii) only sell the Goods in its ordinary course of business by a bona fide sale at full market value, in its own name, and not as the agent of Airlement Air Conditioning Solutions and Refrigeration;
(iv) maintain a separate account holding the payment in trust and account to Airlement Air Conditioning Solutions and Refrigeration for the proceeds of any sale in a separate bank account, allowing Airlement Air Conditioning Solutions and Refrigeration to inspect these records upon request; and,
(v) provide Airlement Air Conditioning Solutions and Refrigeration access to any premises to inspect the Goods upon demand;
(c) If:
(i) the Purchaser fails to pay any monies due and payable pursuant to the Agreement; or
(ii) the Purchaser breaches, repudiates or terminates the Agreement; or
(iii) winding up proceedings are commenced against the Purchaser; or
(iv) a Liquidator, Administrator, Receiver, Manager or Controller (as defined by the Corporations Act 2001) are appointed to the Purchaser or any part of its assets; or
(v) the Purchaser commits an act of bankruptcy (as defined by the Bankruptcy Act 1966); or
(vi) Airlement Air Conditioning Solutions and Refrigeration has a reasonable belief that a party may attempt to levy any form of execution against the Goods; or
(vii) the Purchaser suspends, or threatens to suspend, the conduct of its business; or
(viii) the Purchaser becomes unable to pay its debts as and when they fall due; then Airlement Air Conditioning Solutions and Refrigeration may terminate the agreement, in which case Clause 21 shall apply, and without notice to the Purchaser Airlement Air Conditioning Solutions and Refrigeration may elect (at its discretion) not to continue performance of the Agreement or may enter upon any premises at which the Goods are or may be stored and repossess them.
(d) Where any of the events referred to in paragraph (c) occurs, and where Goods delivered by Airlement Air Conditioning Solutions and Refrigeration to the Purchaser are used either in the manufacture or construction of new goods or are otherwise mixed with other objects to create new goods (“New Goods”), then Airlement Air Conditioning Solutions and Refrigeration shall be entitled to enter any premises at which the New Goods are stored and recover from those premises the Goods or the New Goods.
(e) The Purchaser indemnifies Airlement Air Conditioning Solutions and Refrigeration from any costs of removal, claims, suits and causes of action of any kind from any person or entity in respect of such entry and the removal of the Goods or New Goods.
(f) The affixing of Goods or New Goods to any part of any building in any manner whatsoever shall not have the effect of making the Goods a fixture of the building.
(g) The Purchaser must not assign any book debt represented the amount due and payable by any third party to the Purchaser for the Goods until the Purchaser’s liability to Airlement Air Conditioning Solutions and Refrigeration under the Agreement has been discharged.
21. TERMINATION AND CANCELLATION
In the event that the Purchaser purports to terminate and/or repudiate or cancel the Agreement, or if Airlement Air Conditioning Solutions and Refrigeration terminates the Agreement pursuant to the Agreement, then, without prejudice to its other rights and remedies, Airlement Air Conditioning Solutions and Refrigeration may recover from the Purchaser all costs and expenses incurred by Airlement Air Conditioning Solutions and Refrigeration in its performance of the Agreement, and all loss and damages arising from or related to the termination or repudiation.
22. CHOICE OF LAW
The Agreement shall be governed and construed according to the laws of the State of New South Wales or in the case of New Zealand the laws of New Zealand.
23. ARBITRATION
Any dispute (that cannot be resolved between the parties) shall be referred to an arbitrator appointed by mutual agreement or, failing agreement, by the Institute of Arbitrators & Mediators Australia. Airlement Air Conditioning Solutions and Refrigeration shall have the right to commence proceedings in a court of competent jurisdiction the event the value of the dispute is $100,000 or greater or where the matter is not resolved by arbitration.
24. NOTICES
Notices shall be delivered or posted to Airlement Air Conditioning Solutions and Refrigeration at its head office in New South Wales and to the Purchaser at its last known address.
25. GENERAL PROVISIONS
(a) No consent or waiver, express or implied, of any breach by the Purchaser of the Agreement will be construed as a consent to or waiver of any other breach of the Agreement.
(b) If any clause or provision of the Agreement is invalid, void or unenforceable, all other provisions which are capable of separate enforcement are and will continue to be of full force and effect in accordance with their terms.
(c) Airlement Air Conditioning Solutions and Refrigeration’s Quotation, A Purchase Order and these terms constitutes the entire Agreement between the Par ties and all prior Agreements, representations or warranties, save those expressly incorporated by the Conditions, and all local, general or trade customs, are hereby excluded.
(d) Unless otherwise agreed in writing by a director of Airlement Air Conditioning Solutions and Refrigeration these Conditions prevail over any other terms and conditions of sale sought to be imposed by the Purchaser, to the fullest extent permitted by law.