AIRGEN AUSTRALIA PTY LTD

TERMS AND CONDITIONS OF SALE AND SERVICES

Version 1.1  |  ABN 24 610 564 924

 

1. DEFINITIONS AND APPLICATION

1.1 Definitions

In these Terms: “AirGen” means AirGen Australia Pty Ltd (ABN 24 610 564 924); “Customer” means the person or entity purchasing Goods or Services from AirGen; “Goods” means equipment, products, parts, consumables and materials supplied by AirGen; “Services” means installation, commissioning, servicing, maintenance, repairs, inspections, testing, certification, consultancy and other services supplied by AirGen; “Contract” means the agreement formed under clause 2; “Quotation” means a quotation, proposal or estimate issued by AirGen; “Purchase Order” means an order issued by the Customer; “Site” means the place where Goods are delivered or Services are performed; “PPSA” means the Personal Property Securities Act 2009 (Cth); and “ACL” means Schedule 2 to the Competition and Consumer Act 2010 (Cth).

1.2 Application

These Terms apply to every supply of Goods or Services by AirGen unless AirGen expressly agrees otherwise in writing. They form part of each Contract and prevail over inconsistent terms proposed by the Customer, including terms in a Purchase Order or procurement portal, unless AirGen expressly accepts those terms in writing.

1.3 Interpretation

Headings do not affect interpretation; the singular includes the plural and vice versa; “including” means “including without limitation”; and references to legislation include amendments and replacements. If a provision is invalid or unenforceable, it is severed to the minimum extent necessary and the remaining provisions continue.

2. QUOTATIONS, ORDERS AND CONTRACT FORMATION

2.1 Quotations

Unless stated otherwise, a Quotation is valid for 30 days and is based on the information, specifications, access conditions and assumptions available when issued. AirGen may withdraw or amend a Quotation before acceptance. Non-standard, imported or specially procured Goods may be subject to supplier, freight, exchange-rate or regulatory cost changes before AirGen accepts the order; AirGen will notify the Customer of any material price change before proceeding.

2.2 Formation of Contract

A Contract is formed when AirGen accepts a Purchase Order or other instruction, the Customer accepts a Quotation and AirGen confirms acceptance, AirGen commences supply at the Customer’s request, or the Customer accepts delivery. An accepted Quotation, any accepted Purchase Order and these Terms comprise the Contract. AirGen is not bound by a Purchase Order until it accepts it.

2.3 Acceptance

A Customer may accept a Quote or otherwise authorise AirGen to supply Goods or perform Services:

(a)     in writing, including by signing a Quote or other document;

(b)     electronically, including by email, electronic signature, text message or other electronic communication;

(c)     verbally, including by telephone or verbal instruction to AirGen's personnel;

(d)     by issuing a purchase order or other instructions to proceed; or

(e)     by conduct, including by permitting AirGen to commence or continue the Services, accepting delivery of Goods, or paying a deposit or other amount in connection with the Goods or Services.

An acceptance or authorisation given by a director, employee, representative, site contact or other person who the Customer has represented, or who reasonably appears to have authority to act on the Customer's behalf may be relied upon by AirGen.

 2.4 Scope, exclusions and reliance

AirGen’s obligations are limited to the Goods and Services expressly included in the Contract. Unless specifically included, civil, structural, electrical or builder’s works, permits, hazardous-material removal, crane or traffic management, and work by other trades are excluded. AirGen may rely on information supplied by the Customer. Nothing in this clause excludes liability for misleading or deceptive conduct or any other liability that cannot lawfully be excluded.

2.5 Variations

A change to scope, quantity, specification, Site condition, access requirement or Customer instruction may constitute a variation. AirGen will, where reasonably practicable, obtain approval before performing a material variation and may adjust the price and completion time accordingly. If immediate work is reasonably necessary to protect persons or property or prevent further equipment damage, AirGen may carry out that work and charge its reasonable cost.

2.6 Confidential quotations

Quotations, designs, drawings, calculations and technical documents prepared by AirGen remain AirGen’s confidential information and intellectual property. The Customer must not provide them to a third party for the purpose of obtaining competing quotations without AirGen’s written consent, except where disclosure is required by law or reasonably required for internal procurement approval.

3. PRICE, GST AND PAYMENT

3.1 Price and GST

The Customer must pay the price stated in the Contract plus any approved variations, freight, agreed charges and GST. Unless expressly stated otherwise, prices are exclusive of GST.

3.2 Payment terms

(a)  where AirGen supplies Goods or Services on credit, payment is due 30 days from the end of the month in which he invoice is issued;

(b)  where Goods or Services are not supplied on credit, payment must be made before delivery, on collection, or immediately upon completion of the Services, as applicable.

Unless otherwise agreed in writing by AirGen, the above payment terms apply. Time for payment is of the essence.

3.3 Extension of credit

AirGen may, at its discretion, supply Goods or Services on credit without requiring a Credit Account Application. Extending credit for a transaction does not establish an ongoing credit account, vary these Terms or oblige AirGen to extend credit in future. AirGen may subsequently require a Credit Account Application, financial information, security, a deposit or full or partial payment in advance before further supply.

3.4 Deposits, progress and separate invoices

AirGen may require deposits for special-order, imported, manufactured or project Goods and may issue progress, milestone or separate invoices for Goods, Services, freight and variations. Unless otherwise agreed, special-order Goods may require a deposit of up to 50% and may not be cancellable once ordered from the supplier.

3.5 Overdue amounts and recovery costs

Overdue amounts accrue interest daily at the Reserve Bank of Australia Cash Rate Target plus 4% per annum from the due date until paid. The Customer must reimburse AirGen for reasonable debt recovery costs actually incurred because of the Customer’s payment default, including reasonable legal, court and debt collection costs. AirGen may suspend further supply while an undisputed amount remains overdue, after giving the Customer reasonable notice where practicable.

3.6 Invoice disputes

The Customer should notify AirGen promptly of any genuine invoice dispute and must pay the undisputed portion by the due date. A failure to dispute an invoice within 14 days does not remove any right that cannot lawfully be excluded.

 4. DELIVERY, RISK AND STORAGE

4.1 Delivery and freight

Unless otherwise agreed, freight is payable by the Customer. AirGen may arrange carriage on the Customer’s behalf. Delivery dates are estimates and AirGen will use reasonable endeavours to meet them. Delivery of Goods may occur before installation or commissioning.

4.2 Risk

Risk in Goods passes to the Customer on delivery to the Customer, collection by the Customer, or collection by the Customer’s nominated carrier, whichever occurs first. If AirGen stores Goods at the Customer’s request after they are ready for delivery, risk passes when the Goods are set aside and the Customer is notified that they are ready.

4.3 Inspection

The Customer should inspect Goods promptly and notify AirGen within 7 days of visible shortage, transit damage, incorrect Goods or delivery error so AirGen can investigate. This notification period does not limit any rights under the ACL or other law.

4.4 Storage

If delivery, collection or further work is delayed at the Customer’s request or because the Customer has not provided reasonable instructions or access, AirGen may charge reasonable storage and handling costs actually incurred.

5. RETENTION OF TITLE AND PPSA

5.1 Retention of title

Title to Goods supplied by AirGen does not pass to the Customer until AirGen has received payment in full of all amounts then due and payable by the Customer to AirGen. Until title passes, the Customer holds the Goods as bailee for AirGen, must keep them identifiable and in good condition where reasonably practicable, and must not create or permit a security interest over them that prejudices AirGen’s interest.

5.2 Resale and proceeds

Before title passes, the Customer may resell Goods in the ordinary course of its business. To the extent permitted by law, the Customer must account to AirGen from identifiable proceeds of sale for the unpaid amount owing for those Goods.

5.3 Recovery

If an undisputed payment is overdue or an insolvency event occurs, AirGen may, to the extent permitted by law and after reasonable notice where practicable, recover Goods in which it retains title. The Customer must provide reasonable assistance and lawful access for that purpose. AirGen will take reasonable care when exercising any recovery right.

5.4 PPSA security interest

The Customer acknowledges that these Terms constitute a security agreement and that AirGen has a security interest in Goods supplied by AirGen and their proceeds, including a purchase money security interest to the extent the PPSA permits. The Customer authorises AirGen to register, maintain and amend financing statements reasonably required to protect that interest and must promptly provide information and assistance reasonably requested for that purpose.

5.5 PPSA notices and costs

To the extent the PPSA permits, the Customer waives the right to receive a verification statement or other notice that may lawfully be waived. The Customer must reimburse AirGen for reasonable PPSR registration and enforcement costs incurred because of the Customer’s default. Nothing in this clause excludes a PPSA right that cannot lawfully be excluded.

6. SITE WORK, INSTALLATION, SERVICE AND REPAIRS

6.1 Customer responsibilities

The Customer must provide AirGen with safe and timely access to the Site and equipment, disclose known hazards, and provide available operating information, drawings, service history and relevant permits or approvals. Unless included in the Contract, the Customer is responsible for ensuring required utilities, isolation, access equipment and works by other trades are available when needed.

 6.2 Safety

AirGen may stop or refuse work where its personnel reasonably consider the Site, equipment or proposed work unsafe. AirGen will notify the Customer of the issue where practicable. If the unsafe condition or lack of access is within the Customer’s control, reasonable additional attendance, delay or standby costs may be charged.

6.3 Existing and customer-supplied equipment

AirGen is not responsible for pre-existing defects or failures in equipment not supplied by AirGen, or for faults caused by prior repairs, modifications, corrosion, contamination, misuse, fair wear and tear or inadequate maintenance, except to the extent AirGen causes or contributes to the loss by its own breach, negligence or unlawful conduct.

6.4 Diagnostics and additional repairs

Diagnostic work is performed with reasonable care and skill but may not reveal every fault during the initial inspection. If dismantling or testing reveals additional defects, AirGen will seek approval before material additional work where reasonably practicable. The Customer remains liable for authorised diagnostic, inspection and repair work completed even if the equipment is ultimately uneconomical or impractical to repair.

6.5 Commissioning and completion

Where included in the Contract, AirGen will carry out reasonable commissioning and operational checks. Services are complete when the agreed work has been substantially performed and the equipment is available for its intended use, notwithstanding minor items that do not materially affect operation. Use of equipment does not waive a genuine defect or warranty claim.

7. TESTING, INSPECTION AND CERTIFICATION

7.1 Scope and results

Any inspection, pressure relief valve testing, air quality or breathing-air testing, calibration or certification is limited to the equipment, sample and scope identified in the Contract. A report or certificate records the condition or result at the time of testing and does not guarantee future condition, service life or performance.

7.2 Customer obligations

The Customer must provide safe access and relevant information and must maintain, operate, inspect and re-test equipment at appropriate intervals after AirGen’s work. Results may be affected by later contamination, adjustment, modification, operating conditions or work by others.

8. WARRANTIES AND AUSTRALIAN CONSUMER LAW

8.1 ACL rights preserved

Nothing in these Terms excludes, restricts or modifies any consumer guarantee, right, remedy or liability that cannot lawfully be excluded, restricted or modified under the ACL or any other law. Consumer guarantees may continue for a reasonable period after any express warranty has expired.

8.2 Manufacturer warranties

Where Goods are supplied with a manufacturer’s warranty, AirGen will provide reasonable assistance with a valid claim. A manufacturer’s warranty is additional to, and does not replace, any rights the Customer has against AirGen that cannot lawfully be excluded.

8.3 AirGen 30-day workmanship warranty

In addition to any non-excludable legal rights, AirGen warrants the specific workmanship performed by AirGen for 30 days from completion of the relevant Services. If a defect in that workmanship appears within 30 days, the Customer should notify AirGen as soon as reasonably practicable and give AirGen a reasonable opportunity to inspect. If AirGen accepts the claim, AirGen will rectify the defective workmanship or re-perform the affected Services within a reasonable time at no additional labour charge.

This workmanship warranty does not cover existing equipment or components not worked on by AirGen, or defects caused by misuse, accidental damage, fair wear and tear, corrosion, contamination, inadequate maintenance, operation contrary to manufacturer instructions, or modifications or repairs by others, except to the extent those matters do not legally affect the Customer’s ACL rights.

 8.4 Workmanship warranty claims and expenses

Warranty claims may be made to AirGen Australia Pty Ltd, 1/67 Windsor Road, Wangara WA 6065, telephone 08 9409 9623, email service@airgenaustralia.com.au. The Customer should provide the invoice or job number, equipment details and a description of the problem. AirGen bears the reasonable cost of rectifying an accepted workmanship warranty claim. Any transport or attendance expense will be allocated as required by law and otherwise as reasonably agreed having regard to the circumstances of the claim.

Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

• to cancel your service contract with us; and
• to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to choose a refund or replacement for major failures with goods.

If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion.

You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

9. RETURNS AND CANCELLATION

9.1 Change-of-mind and incorrectly ordered Goods

AirGen is not required to accept a return because the Customer changes its mind or orders incorrectly. If AirGen agrees to a return, Goods must be unused, undamaged and saleable and may be subject to a reasonable restocking fee of up to 25% to reflect actual handling, supplier and administration costs. Freight is payable by the Customer unless AirGen agrees otherwise. This clause does not apply where the Customer has a statutory right to return or reject Goods.

9.2 Special-order Goods

Specially manufactured, modified, imported or non-stock Goods are not cancellable or returnable after AirGen has committed to the supplier, except where required by law or agreed in writing. If AirGen accepts cancellation, the Customer must pay reasonable non-recoverable costs actually incurred by AirGen because of the cancellation.

9.3 Cancellation of Services

The Customer may request cancellation of Services. If AirGen accepts the cancellation, the Customer must pay for Services performed, Goods and materials supplied or irreversibly committed, and reasonable demobilisation or other non-recoverable costs incurred up to cancellation. AirGen will not charge amounts that would constitute a penalty or an unfair contract term.

10. LIABILITY AND INDEMNITY

10.1 Non-excludable liability

Clauses 10.2 to 10.4 apply only to the maximum extent permitted by law and do not limit liability for fraud, fraudulent misrepresentation, death or personal injury caused by negligence, or any other liability that cannot lawfully be excluded or limited.

10.2 ACL limitation where permitted

Where section 64A of the ACL permits AirGen to limit liability for failure to comply with a consumer guarantee, AirGen’s liability is limited, at AirGen’s option: for Goods, to replacement, equivalent supply, repair, or payment of the reasonable cost of replacement, equivalent supply or repair; and for Services, to supplying the Services again or payment of the reasonable cost of having the Services supplied again.

10.3 Consequential and business loss

Subject to clauses 8 and 10.1, AirGen is not liable for indirect or consequential loss, loss of profit, revenue, production, business opportunity or anticipated savings arising from the Contract, except to the extent such liability cannot lawfully be excluded. This exclusion does not apply to loss caused by AirGen to the extent a court determines it would be unfair or unlawful to exclude that loss in the circumstances.

10.4 Customer indemnity

The Customer indemnifies AirGen against third-party claims, losses and reasonable costs to the extent caused by the Customer’s negligent or unlawful acts, misuse of Goods, breach of Site safety obligations or material breach of the Contract. The indemnity is reduced to the extent AirGen or another person caused or contributed to the loss and does not apply where prohibited by law.

11. DEFAULT, SUSPENSION AND TERMINATION

11.1 Default

If the Customer fails to pay an undisputed amount when due, materially breaches the Contract and does not remedy a remediable breach within a reasonable period after notice, or becomes subject to an insolvency event, AirGen may suspend further supply, require payment in advance or terminate the affected Contract. Any action must be proportionate to the default and is subject to rights that cannot lawfully be excluded.

11.2 Effect of termination

Termination does not affect accrued rights. The Customer must pay amounts properly due for Goods supplied, Services performed and reasonable non-recoverable commitments made before termination. Clauses concerning payment, title, PPSA, confidentiality, intellectual property and liability survive to the extent necessary to give them effect.

11.3 Force majeure

Neither party is liable for delay or failure caused by an event beyond its reasonable control, including natural disaster, fire, flood, industrial action, war, government action, transport interruption, utility failure or material supply interruption. The affected party must notify the other where practicable, take reasonable steps to minimise the effect and resume performance as soon as reasonably possible. If the event substantially prevents performance for more than 90 days, either party may terminate the affected part of the Contract without penalty, subject to payment for Goods and Services already supplied.

12. INTELLECTUAL PROPERTY, PRIVACY AND GENERAL

12.1 Intellectual property

AirGen retains ownership of its pre-existing and independently developed intellectual property, including drawings, methods, documents, know-how and technical materials. The Customer may use documents supplied by AirGen as reasonably necessary to operate and maintain the Goods and Services, but must not commercially reproduce or distribute them without consent.

12.2 Privacy and credit information

AirGen may collect, use and disclose personal and credit-related information as reasonably necessary to supply Goods and Services, administer accounts, assess credit, obtain trade references, recover debts and comply with law. AirGen will handle personal information in accordance with applicable privacy law and its privacy practices.

12.3 No waiver and variations

A failure or delay in enforcing a right is not a waiver. A variation to a Contract must be agreed in writing or by another electronic method accepted by the parties. AirGen’s decision to allow additional time, extend credit or accept late performance on one occasion does not amend these Terms for future transactions.

12.4 Assignment and subcontracting

The Customer must not assign a Contract without AirGen’s prior written consent, which will not be unreasonably withheld. AirGen may use suitably qualified subcontractors to perform Services but remains responsible for its obligations under the Contract to the extent required by law.

12.5 Notices

Notices may be delivered by hand, prepaid post or email to the address last notified by the recipient. An email is taken to be received when sent unless the sender receives an automated delivery-failure notice, subject to any contrary rule that cannot lawfully be excluded.

12.6 Governing law

The Contract is governed by the laws of Western Australia. The parties submit to the non-exclusive jurisdiction of the courts of Western Australia.