1. Definitions
    • “CAC” means Chek Air Conditioning Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Chek Air Conditioning Pty Ltd.
    • “Client” means the person/s buying the Goods 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.
    • “Goods” means all Goods or Services supplied by CAC to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
    • “Price” means the Price payable for the Goods as agreed between CAC and the Client in accordance with clause 5
  1. Acceptance
    • 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 the Goods. All verbal orders must be confirmed in writing and where the confirmation varies from that which CAC initially recorded, then the initial order that CAC recorded shall prevail.
    • These terms and conditions may only be amended with CAC’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and CAC.
    • Goods are supplied by CAC only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
    • The Client acknowledges that the supply of Goods on credit shall not take effect until the Client has completed a credit application with CAC and it has been approved with a credit limit established for the account. The Client also accepts that CAC may request from the Client financial information from time to time to assess current and future credit limits. All such information shall be treated in strict confidence and any permission for CAC to obtain information shall be in line with the requirements of clause 19.
    • In the event that the supply of Goods request exceeds the Client’s credit limit and/or the account exceeds the payment terms, CAC reserves the right to refuse delivery.
    • The Client accepts that CAC’s Price is based on the presumption that all existing installation complies with all relevant laws, regulations, codes, compliance and Australian Standards. Where additional Services 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 2 and charged accordingly.
  1. Electronic Transactions (Queensland) Act 2001
    • Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions (Queensland) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.
  1. Change in Control
    • The Client shall give CAC 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 CAC as a result of the Client’s failure to comply with this clause.
  1. Price and Payment
    • At CAC’s sole discretion the Price shall be either:
      • as indicated on any invoice provided by CAC to the Client; or
      • CAC’s quoted price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
    • CAC reserves the right to change the Price if a variation to CAC’s quotation is requested. Any variation from the plan of scheduled Services or specifications (including, but not limited to, any variation as a result of additional Services required due to unforeseen circumstances such as poor weather conditions, limitations to accessing the site and/or crawl spaces, availability of machinery, units and parts, safety considerations including the discovery of asbestos or synthetic mineral fibres, pre-existing structural integrity, prerequisite work by any third party not being completed, or as a result of any increase to CAC in the cost of Goods (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) and labour) will be charged for on the basis of CAC’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
    • The Client acknowledges and accepts that unless otherwise stated to the contrary, the Price pertaining to equipment only, may be cost adjusted by the percentage change in cost calculated from the Consumer Price Index (CPI) or other applicable industry related index rate published by the Australian Bureau of Statistics for the period between the date of quotation and the date of delivery.
    • The Client acknowledges and accepts that unless otherwise stated to the contrary, the Price pertaining to site services will be subject to cost adjustment based on the percentage change in the hourly rate (including fringe benefits and allowances) based on the Average Weekly Ordinary Time Earnings (AWOTE) rate published by the Australian Bureau of Statistics.
    • The Client accepts that where a settlement discount applies, it shall only be approved provided the Client pays all account monies within the terms of this agreement.
    • At CAC’s sole discretion a deposit may be required. For special orders (being Goods outside CAC’s normal stock lines or Goods that are specifically modified to the Client’s requirements) a deposit of fifty percent (50%) shall be required and will become due and payable upon the receipt of an order from the Client or on the Client’s acceptance of a quotation.
    • Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by CAC, which may be:
      • on completion of the Services;
      • on delivery of the Goods;
      • by way of instalments/progress payments in accordance with CAC’s payment schedule;
      • thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
      • the date specified on any site specific conditions, invoice or other form as being the date for payment; or
      • failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by CAC.
    • Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by any other method as agreed to between the Client and CAC.
    • Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to CAC an amount equal to any GST CAC must pay for any supply by CAC under this or any other agreement for the sale of the Goods. 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.
  1. Delivery
    • Subject to clause 2 it is CAC’s responsibility to ensure that the Services start as soon as it is reasonably possible.
    • The Services’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that CAC claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond CAC’s control, including but not limited to any failure by the Client to:
      • make a selection; or
      • have the site ready for the Services; or
      • notify CAC that the site is ready.
    • At CAC’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
    • Delivery shall occur within normal working hours. Where delivery is required outside these hours, CAC reserves the right to charge additionally for providing this service.
    • The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then CAC shall be entitled to charge a reasonable fee for redelivery and/or storage which exceeds four (4) weeks.
    • CAC may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
    • The Client shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
      • such discrepancy in quantity shall not exceed five percent (5%); and
      • the Price shall be adjusted pro rata to the discrepancy.
    • Any time or date given by CAC to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and CAC will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
  1. Risk
    • If CAC retains ownership of the Goods under clause 12 then:
      • where CAC is supplying Goods only, all risk for the Goods shall immediately pass to the Client on delivery and the Client must insure the Goods on or before delivery. Delivery of the Goods shall be deemed to have taken place immediately at the time that either;
        • the Client or the Client’s nominated carrier takes possession of the Goods at CAC’s address; or
        • the Client or the Client’s nominated carrier takes possession of the Goods at the manufacturer’s address; or
        • the Client or the Client’s nominated carrier takes possession of the Goods at the point of entry into Australia where the Goods are shipped from overseas; or
        • the Goods are delivered by CAC or CAC’s nominated carrier to the Client’s nominated delivery address even if the Client is not present at the address. If the Client or the Client’s representative is unavailable to sign for the Goods then the driver’s signature denoting time, date and place of delivery shall be deemed to be acceptance of delivery of the Goods for the purposes of this agreement.
      • where CAC is to both supply and install Goods then CAC shall maintain a contract works insurance policy until the Services are completed. Upon completion of the Services all risk for the Services shall immediately pass to the Client.
    • Notwithstanding the provisions of clause 1 if the Client specifically requests CAC to leave Goods outside CAC’s premises for collection or to deliver the Goods to an unattended location then such Goods shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Goods are insured adequately or at all. In the event that such Goods are lost, damaged or destroyed then replacement of the Goods shall be at the Client’s expense.
    • CAC reserves the right to substitute comparable Goods (or components of the Goods), and in all such cases CAC will notify the Client in advance of any such substitution of a major nature that may impact on the Client’s contractual responsibilities.
    • 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 2, if the Client requests the unit to not be located adjacent to the external wall, due to the underground piping required.
    • The final location of the wall, window or floor unit must be determined on site by the Client.
    • CAC shall upon installation ensure that all installed Goods meet current industry standards applicable to noise levels, however CAC cannot guarantee that noise levels will remain constant post installation as the Goods may be impacted by many factors such as the weather, lack of maintenance, tampering etc.
    • 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.
    • The Client acknowledges and agrees that it is their responsibility to insure any equipment partly or completely installed on site, against theft or damage.
    • In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Client then the Client agrees to notify CAC immediately upon any proposed changes. The Client agrees to indemnify CAC against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 2.
    • 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.
    • The Client warrants that any structures to which the Goods are to be affixed are able to withstand the installation of the Goods and that any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, pipes, cabling, etc.) are of suitable capacity to handle the Goods once installed. If, for any reason (including the discovery of asbestos, defective or unsafe wiring, or dangerous access to roofing, crawl spaces or inspection points), CAC reasonably forms the opinion that the Client’s premises is not safe for the installation of Goods to proceed then CAC shall be entitled to delay installation of the Goods (in accordance with the provisions of clause 2 above) until CAC is satisfied that it is safe for the installation to proceed.
    • Where the Client has supplied materials for CAC to complete the Services, the Client acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. CAC shall not be responsible for any defects in the materials, any loss or damage to the Goods (or any part thereof), howsoever arising from the use of materials supplied by the Client.
    • The Client acknowledges that CAC is only responsible for parts that are replaced by CAC and that in the event that other parts/Goods, subsequently fail, the Client agrees to indemnify CAC against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising (including, but not limited to, loss of perishables, flooding and/or damage to clothing).
    • The Client acknowledges and agree that where CAC has performed temporary repairs that:
      • CAC offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
      • CAC will immediately advise the Client of the fault and shall provide the Client with an estimate for the full repair.
    • The Client acknowledges that Goods supplied may:
      • fade or change colour over time; and
      • expand, contract or distort as a result of exposure to heat, cold, weather; and
      • mark or stain if exposed to certain substances; and
      • be damaged or disfigured by impact or scratching.
  1. Specifications
    • The Client acknowledges that all descriptive specifications, samples, illustrations, drawings, data, dimensions, ratings and weights stated in CAC’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 CAC.
    • The Client shall be responsible for ensuring that the Goods ordered are suitable for their intended use.
  1. Access
    • The Client shall ensure that CAC has clear and free access to the work site at all times to enable them to undertake the Services. CAC 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 CAC.
  1. Underground Locations
    • Prior to CAC commencing any work the Client must advise CAC 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.
    • Whilst CAC will take all care to avoid damage to any underground services the Client agrees to indemnify CAC 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 1.
  1. Compliance with Laws
    • The Client and CAC shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services including testing of pipes prior to commencement of the Services.
    • The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
    • The Client agrees that the site will comply with any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.
  1. Title
    • CAC and the Client agree that ownership of the Goods shall not pass until:
      • the Client has paid CAC all amounts owing to CAC; and
      • the Client has met all of its other obligations to CAC.
    • Receipt by CAC 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.
    • It is further agreed that:
      • until ownership of the Goods passes to the Client in accordance with clause 1 that the Client is only a bailee of the Goods and must return the Goods to CAC on request.
      • the Client holds the benefit of the Client’s insurance of the Goods on trust for CAC and must pay to CAC the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
      • the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for CAC and must pay or deliver the proceeds to CAC on demand.
      • the Client should not convert or process the Goods 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 CAC and must sell, dispose of or return the resulting product to CAC as it so directs.
      • the Client irrevocably authorises CAC to enter any premises where CAC believes the Goods are kept and recover possession of the Goods.
      • CAC may recover possession of any Goods in transit whether or not delivery has occurred.
      • the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of CAC.
      • CAC may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
  1. Personal Property Securities Act 2009 (“PPSA”)
    • In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
    • 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 Goods and/or collateral (account) – being a monetary obligation of the Client to CAC for Services – that have previously been supplied and that will be supplied in the future by CAC to the Client.
    • The Client undertakes to:
      • 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 CAC 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; or
        • correct a defect in a statement referred to in clause 3(a)(i) or 13.3(a)(ii);
      • indemnify, and upon demand reimburse, CAC 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 Goods charged thereby;
      • not register a financing change statement in respect of a security interest without the prior written consent of CAC;
      • not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of CAC;
      • immediately advise CAC of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
    • CAC 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.
    • The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
    • The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
    • Unless otherwise agreed to in writing by CAC, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
    • The Client must unconditionally ratify any actions taken by CAC under clauses 3 to 13.5.
    • 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.
  1. Security and Charge
    • In consideration of CAC agreeing to supply the Goods, 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).
    • The Client indemnifies CAC from and against all CAC’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising CAC’s rights under this clause.
    • The Client irrevocably appoints CAC and each director of CAC 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.
  1. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
    • The Client must inspect the Goods immediately on delivery and must within twenty-four (24) hours of delivery notify CAC by phone (and confirmed in writing within seven (7) days of delivery) 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 Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow CAC to inspect the Goods.
    • 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).
    • CAC acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
    • Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, CAC makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. CAC’s liability in respect of these warranties is limited to the fullest extent permitted by law.
    • If the Client is a consumer within the meaning of the CCA, CAC’s liability is limited to the extent permitted by section 64A of Schedule 2.
    • If CAC is required to replace the Goods under this clause or the CCA, but is unable to do so, CAC may refund any money the Client has paid for the Goods.
    • If the Client is not a consumer within the meaning of the CCA, CAC’s liability for any defect or damage in the Goods is:
      • limited to the value of any express warranty or warranty card provided to the Client by CAC at CAC’s sole discretion;
      • limited to any warranty to which CAC is entitled, if CAC did not manufacture the Goods;
      • otherwise negated absolutely.
    • Subject to this clause 15, returns will only be accepted provided that:
      • the Client has complied with the provisions of clause 1; and
      • CAC has agreed that the Goods are defective; and
      • the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
      • the Goods are returned in as close a condition to that in which they were delivered as is possible.
    • Notwithstanding clauses 1 to 15.8 but subject to the CCA, CAC shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
      • the Client failing to properly maintain or store any Goods;
      • the Client using the Goods for any purpose other than that for which they were designed;
      • the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
      • the Client failing to follow any instructions or guidelines provided by CAC;
      • the Client failing to adhere to the maintenance schedule recommended by CAC or any of the maintenance work being carried out by a third party other than CAC;
      • corrosion caused by chemicals;
      • excess noise or vibration of the Goods;
      • fair wear and tear, any accident, or act of God.
    • In the case of second hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by CAC as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that CAC has agreed to provide the Client with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 10.
    • CAC may in its absolute discretion accept non-defective Goods for return in which case CAC may require the Client to pay handling fees of up to twenty percent (20%) of the value of the returned Goods plus any freight costs.
  1. Intellectual Property
    • Where CAC has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of CAC.
    • The Client warrants that all designs, specifications or instructions given to CAC will not cause CAC to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify CAC against any action taken by a third party against CAC in respect of any such infringement.
    • The Client agrees that CAC may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which CAC has created for the Client.
  1. Default and Consequences of Default
    • 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 CAC’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    • If the Client owes CAC any money the Client shall indemnify CAC from and against all costs and disbursements incurred by CAC in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, CAC’s contract default fee, and bank dishonour fees).
    • Further to any other rights or remedies CAC may have under this contract, if a Client has made payment to CAC, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by CAC under this clause 17 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.
    • Without prejudice to any other remedies CAC may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions CAC may suspend or terminate the supply of Goods to the Client. CAC will not be liable to the Client for any loss or damage the Client suffers because CAC has exercised its rights under this clause.
    • Without prejudice to CAC’s other remedies at law CAC shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to CAC shall, whether or not due for payment, become immediately payable if:
      • any money payable to CAC becomes overdue, or in CAC’s opinion the Client will be unable to make a payment when it falls due;
      • the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
      • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
  1. Cancellation
    • CAC may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice CAC shall repay to the Client any money paid by the Client for the Goods. CAC shall not be liable for any loss or damage whatsoever arising from such cancellation.
    • In the event that the Client cancels delivery of Goods, by giving written notice, the Client shall be liable for any and all loss incurred (whether direct or indirect) by CAC as a direct result of the cancellation (including, but not limited to, any loss of profits).
    • Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
  1. Privacy Act 1988
    • The Client agrees for CAC 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 CAC.
    • The Client agrees that CAC may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
      • to assess an application by the Client; and/or
      • to notify other credit providers of a default by the Client; and/or
      • 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
      • to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two years.
    • The Client consents to CAC being given a consumer credit report to collect overdue payment on commercial credit.
    • The Client agrees that personal credit information provided may be used and retained by CAC for the following purposes (and for other agreed purposes or required by):
      • the provision of Goods; and/or
      • analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
      • processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
      • enabling the collection of amounts outstanding in relation to the Goods.
    • CAC may give information about the Client to a CRB for the following purposes:
      • to obtain a consumer credit report;
      • allow the CRB to create or maintain a credit information file about the Client including credit history.
    • The information given to the CRB may include:
      • personal information as outlined in 1 above;
      • name of the credit provider and that CAC is a current credit provider to the Client;
      • whether the credit provider is a licensee;
      • type of consumer credit;
      • 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);
      • 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 CAC has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
      • information that, in the opinion of CAC, the Client has committed a serious credit infringement;
      • advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
    • The Client shall have the right to request (by e-mail) from CAC:
      • a copy of the information about the Client retained by CAC and the right to request that CAC correct any incorrect information; and
      • that CAC does not disclose any personal information about the Client for the purpose of direct marketing.
    • CAC 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.
    • The Client can make a privacy complaint by contacting CAC via e-mail. CAC 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 oaic.gov.au.
  1. Confidentiality
    • Each party agrees to treat all information and ideas communicated to it by the other confidentially and agree not to divulge it to any third party, without the other party’s written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party.
  1. Dispute Resolution
    • 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:
      • referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
      • conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
  1. Building and Construction Industry Payments Act 2004
    • At CAC’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Payments Act 2004 may apply.
    • Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Payments Act 2004 of Queensland, except to the extent permitted by the Act where applicable.
  1. General
    • The failure by CAC to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect CAC’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.
    • These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland in which CAC has its principal place of business, and are subject to the jurisdiction of the courts of Ipswich, Queensland.
    • Subject to clause 15, CAC 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 CAC of these terms and conditions (alternatively CAC’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
    • 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 CAC nor to withhold payment of any invoice because part of that invoice is in dispute.
    • CAC may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
    • The Client agrees that CAC may amend these terms and conditions at any time. If CAC makes a change to these terms and conditions, then that change will take effect from the date on which CAC notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for CAC to provide Goods to the Client.
    • 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.
    • 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.
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    ChekAir service and maintain the air conditioning systems for Bendigo and Adelaide Bank in Ipswich

    — Bendigo and Adelaide Bank Ipswich