Terms and Conditions
These terms and conditions (“Terms”) apply to all Goods purchased from, and all Services provided by, Aqua Cooler Pty Ltd ACN 151 215 351 (“Aqua Cooler”). Any references to “we”, “us” or “our” are references to Aqua Cooler. These Terms govern any (1) ordering, purchase, payment, delivery and return of Goods, and (2) ordering, purchase, payment, performance and re-performance of any Services, in each case which are purchased by a customer (“you” or “your”) from us.
1. Orders
1.1 You may request a Quote for Goods and Services from us at any time. The Quote will include a copy of these Terms and a proposed order form for your execution that reflects the details of the Quote (“Order Form”). Subject to clauses 1.2 and 1.3, you may accept our Quote by executing and returning the Order Form to us.
1.2 Unless we have agreed to set the charges for the Goods and Services for a specified period of time, all Quotes lapse 30 days after issue and may be withdrawn or changed by us at any time until such time as the Quote is accepted and the relevant Order Form executed by you.
1.3 We may, acting reasonably, accept or reject any Order Form for Goods and Services in whole or in part. An Order Form is only binding when executed by us in writing, subject to any rights we may have to cancel that Order Form under these Terms.
1.4 Once we have accepted an Order Form, you may not change or cancel an Order Form without our prior written consent.
1.5 We may cancel any, all or part of any Order Form (irrespective of whether it has been accepted or not) if an Insolvency Event occurs or if we reasonably believe that you will be unable to meet your payment obligations under these Terms.
1.6 Either party may terminate any, all or part of any Order Form (irrespective of whether it has been accepted or not) by written notice to the other party if the other party commits a material breach of these Terms or the Order Form and fails to remedy the breach within 30 days of receiving notice from the other party requiring it to do so, in which case the Order Form terminates immediately on giving the notice of termination.
1.7 If we are required to terminate an Order Form under clause 1.6 for your material breach, we will be entitled to retain and/or recover from you all costs, expenses and liabilities which are reasonably incurred by us in connection with the relevant Order Form up to and including the date of termination, including any amounts that we have committed to pay our third party suppliers in connection with the relevant Order Form.
2. Collection and Delivery
2.1 Subject to clause 2.2, you acknowledge and agree that:
(b) in accordance with clause 6, we are not responsible for the acts or omissions of any carrier engaged by you and you bear all risk associated with transportation of the Goods, including where the Goods are lost, delayed, stolen, damaged or otherwise affected in transit;
(c) you must ensure that all delivery and handling requirements notified by us (including packaging, loading and collection timeframes) are complied with, and you acknowledge and agree that any failure to do so may result in delay, loss of any applicable warranty, additional costs or damage to the Goods, for which we will not be responsible;
(d) you are responsible for all costs associated with collection and delivery of the Goods, including freight, insurance, customs, duties, taxes and any other charges incurred after the Goods are collected from us; and
(e) to the maximum extent permitted by law, we will not be liable for any losses, damages or expenses sustained by you, or any other person, arising out of or in connection with delivery of the Goods by you or on your behalf, including any delay or failure in delivery.
(b) you must ensure that someone is present at the Delivery Site to accept delivery of the Goods and the accompanying documents on your behalf, unless you authorise us to leave the delivery at the Delivery Site without someone present. Any such authority to leave must be provided by you at the time of making the Order Form unless we otherwise agree in writing;
(c) in accordance with clause 6, if we are responsible for the delivery of the Goods and you authorise us to leave the delivery at the Delivery Site, you accept liability and bear all risk of loss or damage to the Goods from the time they are delivered to the Delivery Site, including where the Goods are lost, stolen, damaged or otherwise affected after delivery;
(d) we reserve the right to install, supply and/or deliver the Goods by instalments (which may occur by way of partial shipment);
(e) delivery dates quoted by us are estimates only. While we will use our best endeavours to meet those estimated delivery dates, we do not guarantee to do so. We will notify you as soon as practicable if we are unable to meet any delivery dates or if we are required to cancel an Order Form;
(f) you are responsible for all costs associated with collection and delivery of the Goods, including freight, insurance, customs, duties, taxes and any other charges incurred after the Goods are collected from us; and
(g) to the maximum extent permitted by law, we will not be liable for any losses, damages or expenses sustained by you, or any other person, due to non-delivery of the Goods or a delay in delivery of the Goods.
3. Services
3.1 If an Order Form specifies that any one or more of the following Services are applicable:
(a) installation and commissioning;
(b) preventative maintenance; and
(c) reactive maintenance,
we will provide those Services to you in connection with the Goods in accordance with these Terms and the Order Form.
3.2 Details regarding procedures, checklists and other operational requirements relevant to the Goods or Services may be set out in separate guides, manuals or other documents that are included in the Quote, which we may update from time to time. For the avoidance of doubt and except as otherwise provided in these Terms, the guides, manuals and other documents that form part of the Quote are provided for informational purposes only and will not expand our obligations to you. These Terms will prevail to the extent of any conflict between these Terms and the Quote.
3.3 Our provision of the Services is subject to you (at your own cost):
(a) providing safe, clean, timely and unobstructed access to the Delivery Site for us and our personnel for the purpose of providing the Services;
(b) ensuring the Delivery Site is ready for the installation or servicing of the Goods (as the case may be) at the agreed time, which will include provision of a designated secure space where we can store materials, equipment and other tools while undertaking the Services (and you will be liable to us for any damaged or stolen materials, equipment and other tools while at the Delivery Site, except to the extent that we are responsible for such damage or loss);
(c) ensuring all required utilities, foundations, lifting equipment and other dependencies specified by us are available and compliant with the requirements of the relevant Order Form;
(d) ensuring that the Delivery Site complies with all applicable work health and safety laws; and
(e) providing us with such other information and assistance as is reasonably necessary to enable us to provide the Services.
3.4 We may suspend or reschedule Services where you fail to meet any one or more of the requirements in clause 3.3, or where the Delivery Site has otherwise not been suitably prepared for the provision of the Services. We may charge any additional costs incurred as a result to you..
3.5 Where the Order Form specifies that:
(a) installation and commissioning Services are to be provided, we will:
(i) install and commission the Goods in accordance with our then-current standard procedures, applicable technical requirements and any other requirements specified in the Order Form; and
(ii) following commissioning, we will issue a commissioning report setting out the checks performed and the results observed at the time of commissioning. The commissioning report is provided for information purposes only, reflects conditions existing at the commissioning date, and must not be relied upon as evidence of future performance or continued compliance;
(b) preventative maintenance Services are to be provided, we will:
(i) perform the preventative maintenance Services in accordance with the frequency specified in the relevant Order Form (and to the extent no frequency is identified, we will perform the preventative maintenance Services on an annual basis at such time to be agreed by us in writing);
(ii) perform the preventative maintenance Services in accordance with our then‑current maintenance checklists and service schedules and any other requirements specified in the Order Form; and
(iii) provide you with a copy of the maintenance completion record following completion of the preventative maintenance Service; and
(c) reactive maintenance Services are to be provided, we will perform the reactive maintenance Services on an ad hoc basis in response to any faults, breakdowns or operational issues with the Goods, upon receipt of a request in writing from you (which can be via email) for such reactive maintenance Services, provided always that the reactive maintenance Services will be subject to:
(i) the availability of our personnel and our applicable call-out rates at the relevant time; and
(ii) agreement in writing between the parties (which can be via email) at the relevant time, including as to those items identified in subparagraph (i) above and any additional terms applicable to those reactive maintenance Services.
3.6 If you purchase Goods from us but not Services for those Goods, then you may arrange for services equivalent to the Services to be provided by a third party, provided that where the services are not performed by us, or by a competent and professional technician that has been approved in writing in advance by an Authorised Person, then either:
(a) the Goods relevant to those Services will not be eligible for the warranty described in clause 10; or
(b) the warranty in clause 10 may be voidable at our discretion.
In this regard, we may request maintenance completion records in assessing warranty claims under clause 10, and failure by you to provide reasonable evidence of compliance with any installation, commissioning and maintenance requirements may result in your warranty under clause 10 being voidable at our discretion.
4. Charges and Payment
4.6 If we have not received payment within 30 days after the due date on the invoice, you must pay interest on the overdue amount at the Default Interest Rate per month (calculated daily, compounding monthly), from the due date on the invoice until payment is received in full.
4.7 Without prejudice to any of our other rights or remedies at law or under these Terms, if you fail to pay any amount owing to us in full by the due date for such payment, we may suspend your account with us and/or place on hold the processing, dispatch, manufacture, installation or supply of any Goods or the performance of any Services (including under any accepted Order Form) until all outstanding amounts are paid in full. To the maximum extent permitted by law, we will not be liable to you for any loss or damage arising from any related suspension or delay.
4.8 Where you purchase Goods and Services on a Credit Account, you acknowledge that any credit provided by us is offered solely for business purposes. You warrant that the Goods and Services are acquired wholly or predominantly for business use and not for personal, domestic or household purposes. We may require you to complete a business purpose declaration to confirm this.
5. GST
6. Title and Risk
6.2 Risk in the Goods passes to you at the time the Goods are collected from our Site or, if clause 2.2 applies, on delivery to the Delivery Site. Without prejudice to the foregoing, if we are responsible for providing installation and commissioning Services in respect of the Goods, then we will be responsible for the Goods during the performance of those installation and commissioning Services until such time as the installation has been completed.
7. PPSA
(b) you grant us a purchase money security interest (“PMSI”) under the PPSA in the Goods and their proceeds to secure all amounts that you owe to us;
(c) we may register the PMSI on the Personal Property Securities Register (“PPSR”);
(d) you will do all things necessary to provide us, on request, all information that we require to register a financing statement or financing change statement on the PPSR;
(e) you will not change the entity name that has entered into this agreement in any form or other details relevant to the registration on the PPSR without first notifying us in writing; and
(f) you will, if requested to by us, pay us the cost of registration and maintaining registration of your PMSI on the PPSR, within 14 days of the request.
7.3 Without limiting clause 7.2, if an amount owing to us is not paid when due and title to the Goods has not passed to you, you irrevocably authorise us, and any person authorised by us, to enter any premises where the Goods are located during office hours, as required to inspect and / or recover the Goods. You agree to provide such assistance as may be reasonably required by us in exercising the foregoing, including with respect to the provision of access, and the locating, inspecting and recovery of the Goods. We will not be liable to you for any loss, cost or damage arising from the exercise of our rights under clause 7.2, except to the extent caused by our wilful misconduct or negligence.
7.4 You waive the right to receive a copy of any verification statement in accordance with section 157 of the PPSA.
7.5 Neither party may disclose information of the kind referred to in section 275(1) of the PPSA (unless required by law) and you must not authorise the disclosure of such information.
7.6 You appoint us as your attorney to sign in your name all documents which we consider necessary to enforce and to protect our rights under the Terms.
7.7 You agree that to the maximum extent permitted by law:
(b) you waive any right to receive notices under sections 95, 118, 121(4), 127, 130, 132(3)(d), and 132(4) of the PPSA.
(b) create, or purport to create, any security interest in the Goods (or any proceeds derived from the sale of such Goods), nor register, nor permit to be registered, a financing statement or financing change statement in relation to the Goods in favour of any third party, unless title to the Goods has passed to you.
7.9 These Terms do not limit any other rights of ours, including those under Chapter 4 of the PPSA.
7.10 Unless otherwise defined in these Terms, the terms and expressions used in clauses 7.1 to 7.9 have the meanings given to them, or by virtue of, the PPSA.
8. Inspection, non-compliance and returns
(a) For major failures with the Services, 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.
(b) You are also entitled to choose a refund or replacement for major failures with Goods.
(c) 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 Services and obtain a refund of any unused portion.
(d) You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the Goods or Services.
8.8 Goods presented for repair may be replaced by refurbished goods of the same type rather than being repaired. Refurbished parts may be used to repair the Goods. Where we elect to repair the Non-Compliant Goods with refurbished Goods of the same type, we will issue you a repair notice indicating that we request permission from you to use refurbished parts to repair the Non-Compliant Goods.
8.9 You must comply with the requirements of any Goods recall program initiated by us or any Government Agency.
9. Your obligations
9.1 You must comply with:
(a) all applicable laws and industry standards relating to the handling, storage, and use of products, including any regulatory requirements; and
(b) any other of our reasonable instructions and requirements (including without limitation those identified at clause 3.3), in relation to the Goods and Services.
10. Warranties
10.1 Subject to your compliance with the Warranty Conditions, we warrant that:
(a) the Goods and Services comply with all applicable industry codes and relevant standards;
(b) the Goods are of acceptable quality at the time of collection from our Site;
(c) the Services will be performed with due care and skill; and
(d) we have all necessary licences, consents and authorisations required to supply the Goods and Services under these Terms.
10.2 Subject to clause 8.7, if through no fault or delay by you, or breach by you of these Terms or the Order Form, the Goods and Services do not conform to the warranties in clause 10.1, we will (at our discretion) either repair, replace or refund the charges in respect of, the non-conforming parts of the Goods or Services (as the case may be), provided that you notify us in writing of any such non-conformance prior to the expiry of the Warranty Period and allow us reasonable opportunity to inspect and remedy the non-conformance.
10.3 The parties acknowledge and agree that you, as the customer, have had an adequate opportunity to enquire about, and received enough information regarding, the Goods and Services to ensure their safe use, handling and storage.
10.4 To the extent permitted by law and subject to clause 14.1, all conditions and warranties that are not expressly set out in this clause 10 are excluded.
11. Confidentiality
11.1 Each party must keep the other’s Confidential Information secure and must not, without the prior written consent of the other party:
(a) disclose the Confidential Information to any other person; or
(b) use the Confidential Information for any reason other than to perform its obligations under these Terms, except where required by law or the listing rules of any stock exchange where that party’s securities are listed or quoted, or disclosure to that party’s legal, financial or other advisors.
11.2 Each party must, upon termination or expiration of these Terms, destroy or return to the other party all copies of Confidential Information of the other in the care or control of the first party.
12. Privacy
12.1 You acknowledge and agree that we may use and deal with any personal information provided by you during the process of purchasing Goods and providing Services in accordance with our Privacy Policy (available at request).
13. Intellectual Property Rights
13.1 Neither party transfers any right, title or interest in any right, title or interest in any Intellectual Property Rights in respect of the other party.
13.2 Each party is prohibited from using the other party’s Intellectual Property Rights (including but not limited to trademarks) unless authorised in writing by the party that owns those Intellectual Property Rights.
14. Liability
14.1 To the maximum extent permitted by law, our liability under or in connection with these Terms (including for breach of a consumer guarantee under the Australian Consumer Law) is limited to (at our election):
(a) in respect of the Goods, replacing the Goods, supplying equivalent Goods, repairing the Goods or paying the cost of replacing the Goods; or
(b) in respect of the Services, resupplying the Services or paying the cost of the resupply of the Services.
14.2 The limitation of liability in clause 14.1 does not apply to liability:
(a) that cannot by law be limited or excluded;
(b) for fraud;
(c) for unlawful acts or omissions; or
(d) for personal injury or death or loss or damage to property.
14.3 Each party’s liability to the other party under these Terms will be reduced to the extent that the relevant liability, loss or damage was caused or contributed to by the act or omission of the other party or its personnel, employees, officers, contractors, subcontractors or agents. For the avoidance of doubt and to the maximum extent permitted by law, our liability to you will be reduced under this clause 14.3 to the extent that you have caused or contributed to any loss or damage because of:
(a) your misuse of the Goods;
(b) your failure to follow instructions or specifications; or
(c) the incorrect, improper or unauthorised installation or maintenance of the Goods by any person other than ourselves or a person authorised on our behalf in accordance with these Terms.
14.4 A party is not liable to the other party for any indirect or consequential loss, being loss that does not arise naturally (that is, according to the usual course of things) from the event giving rise to the loss.
15. Force Majeure
Neither party is liable for any delay or failure in the performance of its obligations under these Terms (other than obligations in relation to payment) to the extent such delay or failure is caused by an act of God, natural disaster, terrorism, war or other occurrence beyond the affected party’s reasonable control.
16. Applicable law
16.1 These Terms are governed by the laws of the State of Queensland, Australia. Any action or proceeding arising out of or related to these Terms or your purchase of the Goods or Services must be brought in the courts of Queensland and you consent to the non-exclusive jurisdiction of such courts.
17. Dispute Resolution
17.1 To the extent permitted by law, if any dispute arises in connection with these Terms or the Goods or Services supplied, the parties must first use reasonable efforts to resolve the dispute through good faith negotiations. If the dispute is not resolved within 30 days, either party may refer the matter to mediation administered in Queensland by a recognised mediation body. Except for applications for urgent injunctive or other equitable relief, neither party may commence proceedings in a court or tribunal of competent jurisdiction until the process in this clause 17 has been followed. Nothing in this clause limits any rights a party may have under the Australian Consumer Law.
18. General
18.1 These Terms constitutes all the terms for the supply of the Goods and Services from us specified in the relevant Order Form and supersedes all previous written agreements about its subject matter, including any terms proposed by you.
18.2 These Terms (including the Order Form) may be executed in any number of counterparts and by electronic means. Each counterpart is an original, and all of which, collectively, constitute only one agreement. The parties acknowledge that electronic execution is valid and binding.
19. Definitions and interpretation
19.1 In these Terms, unless the contrary intention appears:
(a) references to a person includes an individual, partnership, joint venture, association, firm or a body, whether incorporated or unincorporated;
(b) a reference to a term, part, schedule or attachment is a reference to a term, part, schedule or attachment to these Terms;
(c) a reference to a legislation or other law includes delegated legislation and consolidations, amendments, re-enactments or replacements of any of them;
(d) a reference to any of the words “include”, “includes” and “including” is read as if followed by the words “without limitation”;
(e) a reference to a document includes all amendments, supplements, replacements or novations of that document; and
(f) a reference to any party includes that party’s executors, administrators, substitutes, successors and permitted assigns.
19.2 In these Terms, the words below have the following meanings:
Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Authorised Person means a person that is employed by us in a position of management and who is designated by us from time to time as having authority to approve third party services providers for the purposes of clause 3.6 or the Warranty Conditions.
Confidential Information means information of a party, however held or recorded:
(a) relating to this agreement;
(b) relating to the business and affairs of that party;
(c) relating to the customers, clients, employees, subcontractors or other persons doing business with that party;
(d) which is by its nature confidential;
(e) which is designated as confidential by that party; or
(f) which the other party knows or ought to know, is confidential,
and all trade secrets, knowhow, financial information and other commercially valuable information of that party.
Credit Account means an arrangement (if any) approved (and not withdrawn) by us that permits you to pay for Goods and Services after provision such as by way of the Credit Application Form.
Credit Application Form means the form which must be completed and submitted by you, and includes business details, financial information, trade references, declarations, and (if applicable) a Directors’ Guarantee, as required by us for the assessment and approval of a Credit Account.
Default Interest Rate means the daily buying rate displayed at or about 10.30am (Brisbane time) on the Reuters screen BBSW page for Australian bank bills of a 90-day duration (or if that daily buying rate is no longer published, such other daily rate as the parties may agree) plus 1%.
Delivery Site means your premises for delivery of the Goods and provision of the Services, as identified in the Order Form.
Extended Warranty Period means (if applicable) an additional warranty period of either one year or two years, commencing immediately after expiry of the Standard Warranty Period.
Goods means the physical items, products, equipment, materials, or components supplied by us under these Terms as identified in the Order Form.
Government Agency means any national, state, provincial, municipal or local government, administrative or regulatory body, agency or department, court, tribunal, arbitrator or any body that acts under authority of the law to exercise the function of a regulator.
GST means the products and services tax imposed in Australia by A New Tax System (Products and Services Tax) Act 1999 (Cth).
Insolvency Event means, in relation to a party, that a party is unable to pay their debts as and when they fall due, is placed in liquidation or is otherwise deemed or presumed by law or a court to be insolvent, voluntary administration, enters into a Deed of Company Arrangement, or is placed into bankruptcy either voluntarily or by sequestration order.
Intellectual Property Rights means all industrial and intellectual property rights including current and future registered and unregistered rights in respect of copyright, trade marks, designs, circuit layouts, domain names, trade secrets, know-how, confidential information, plant breeders rights, moral rights, patents, invention and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.
Non-Compliant Goods has the meaning given in clause 8.1.
Order Form has the meaning given in clause 1.1.
PPSA means the Personal Property Securities Act 2009 (Cth).
Quote means the suite of documents issued by us in connection with our quote for the Goods and Services, which may include our charges for the Goods and Services, these Terms, a proposed Order Form for your execution, installation guides, maintenance schedules, checklists, technical specifications, operating instructions, diagrams, images and warranty information, as updated or replaced by us from time to time.
Services means the services identified in clauses 3.1(a), 3.1(b) and 3.1(c), and any other services that we expressly agree in writing to provide you with, as identified in the Order Form.
Site means our manufacturing and warehouse facility located at 38-44 Relentless Court, Park Ridge QLD 4125.
Standard Warranty Period means a warranty period of one (1) year, commencing upon successful completion of any installation and commissioning Services where those Services are performed by us or by a competent and professional technician that has been approved in writing in advance by an Authorised Person, and otherwise upon the date that the Goods are made available by us for collection by you or a carrier.
Terms has the meaning given in the preamble.
Warranty Conditions means the conditions that must be met by you in order to be able to benefit from the warranty in clause 10.1 during the Warranty Period, which will be specified in the Quote and which will include those requirements at clauses 3.6 and 10.
Warranty Period means the Standard Warranty Period and where specified in the Order Form as being applicable, the Extended Warranty Period.
20. Contact us
20.1 If you have any queries in relation to these Terms, please contact us at:
Email: [email protected]
Phone: 1300 278 226