Agreement for the supply, delivery, and installation of Products
1. Key terms
(a) When we talk about ’us’, ’our’ or ’we’, it means Lowe Air Pty Ltd (ACN
641 797 524).
(b) When we talk about ‘you’, ‘your’ or ‘my’, it means the person or entity named in the Quote.
(c) Collectively, lets call us the “parties” or “party” when we refer to either us or you.
(d) Quote means a quote prepared by us for you.
(e) Total Costs means the price payable by you in accordance with clause 5 of this Agreement.
(a) You acknowledge receipt of the Quote.
(b) You understand that the Quote provided to you constitutes an offer from us on the terms and conditions contained below and by accepting this offer, you enter into a legal binding agreement with us, referred to as this Agreement.
3. Scope of Agreement
(a) This Agreement covers the:
- purchase from us of the product(s) named in the Quote, referred to as Products; and
- the delivery and installation of the Products at the address specified in the Quote (the Premises).
4. When does the Agreement commence and end?
(a) We have already provided you with a Quote to supply, deliver and install the Products for the Total Costs.
(b) This Agreement commences when you accept our Quote on or before the expiry date, which can be done:
- by clicking the “Accept” button in the email we sent you;
- by accepting in writing by email to email@example.com or by a text message to a representative of Lowe Air Pty Ltd, please include the Quote number, or
- by accepting in person to a representative of Lowe Air Pty Ltd, and when you pay us the deposit amount specified in the Quote (the Deposit), unless otherwise agreed.
(c) Subject to full payment of the Total Costs by you, this Agreement ends on the delivery and installation of the Products, unless you or we end it earlier in accordance with this Agreement. However, as set out in clause 20(j), certain clauses survive the completion or termination of this Agreement.
5. What are my costs under this Agreement?
(a) Subject to clause 5(c), the Quote provided details the Total Costs payable by you under this Agreement, unless otherwise specified in the Quote.
(b) The Total Costs are exclusive of GST unless otherwise stated.
(c) The Total Costs may vary:
- where on inspection of the Premises or installation of the Products, we encounter things which were not known or disclosed at the time of the Quote or were concealed; or
- if you subsequently vary your requirements or specifications.
We will advise of any additional costs before proceeding.
6. Payment terms
(a) You must pay us the Deposit at the same time as you accept the Quote.
(b) Payment of the balance (including any monies owing) of the Total Costs is payable within 7 days of the delivery and installation of the Products.
(c) Failure to make full payment will void all the warranties provided in connection with this Agreement.
(d) All payments under this Agreement, can be made by bank cheque, cash, debit card, credit card or direct deposit.
(e) For late payments, we reserve the right to claim interest on any overdue amount at a rate of 2.0% per annum.
7. Title in the Products
(a) Title in the Products, including warranties, passes to you once all monies owing to us in connection with this Agreement have been paid.
(b) In the event of non-payment, or only partial payment, we reserve the right, without notice, to enter your Premises or any premises under your control for the purposes of recovering the Products.
(c) The risk of loss or theft of, or damage to the Products passes to you on delivery of the Products to the Premises.
8. Personal Properties and Securities Act 2009 (Cth) (PPSA)
(a) The defined terms in this clause have the same meaning as given to them in the PPSA.
(b) You acknowledge that the terms and conditions in this Agreement constitute a Security Agreement and gives rise to a Purchase Money Security Interest (PMSI) in favour of us over the Products supplied to you as Grantor pursuant to this Agreement.
(c) You acknowledge, that Lowe Aire Pty Ltd, as Secured Party, is entitled to register its interest in the Products supplied to you, as Grantor, under these Terms and Conditions on the PPSA Register as Collateral.
(d) To the extent permitted by at law, you agree to waive your right to receive any notification or Statement of Account relating to a Security Interest granted by you, as Grantor, to us.
(e) You agree to indemnify us on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the:
- registration or amendment or discharge of any Financing Statement registered by or on behalf of us; and
- enforcement or attempted enforcement of any Security Interest granted to us by you.
9. Installation Date
We will use reasonable endeavours to delivery and install the Products by the installation date provided in the Quote, subject to reasonable delays or any delays that are reasonably attributable to factors outside of our control (amongst other things, this is our Covid-19 alert).
10. Our commitment to you….
- We will ensure all Products are of merchantable quality, free from any defects and fit for their purpose(s).
- We will provide all necessary technical documents, operating and service manuals and warranty documents relating to the Products, collectively Maintenance Documents.
- We will obtain and give you any certificate or similar document required by law with respect to the installation of the Products where we use our employees or contractors. This includes, where necessary a certificate of compliance from a plumber and a certificate of electrical safety from an electrician.
(b) Delivery and Installation
- The delivery and installation of the Products will be provided using reasonable care, skill and technical expertise, and where required by appropriately qualified and/or registered tradespersons.
- We will take reasonable steps to avoid loss or damage to the Products or Premises.
- We will follow any special instructions set out in the Quote.
11. Your commitment to us…
(a) You own the Premises or have a lawful right to use or occupy the Premises. This right includes the ability to authorise and arrange the installation of the Products.
(b) You or your representative must be present at the Premises for any site inspection and for the delivery and installation of the Products.
(c) You must ensure we and our contractors have convenient and safe access to all parts of the Premises necessary to conduct any required site inspections or to deliver and install the Products.
(e) It is your responsibility to use, maintain and regularly service the Products in accordance with the Maintenance Documents.
(a) Subject to clause 12(b), we guarantee:
- our workmanship, and the workmanship of our contractors, in installing the Products; and
- the operation and performance of the Products, will be free from fault or defect,
for a period of 12 months commencing on the date the Products are installed (Guarantee Period), and we will repair any such default or defect notified to us in writing within the Guarantee Period, including by replacing all or part of the Products where necessary, within a reasonable timeframe at no cost to you.
collectively referred to as our Guarantee.
(b) The Guarantee will not apply where:
- the fault or defect is not notified to us within the Guarantee Period; or
- the fault or defect is a result of:
(i) something done by you or someone else, and not us or our contractors;
(ii) something outside of our or your control (e.g., extreme weather);
(iii) the Products being misused, abused, neglected or damaged after installation;
(iv) the Products being maintained other than in accordance with the Maintenance Documents or any guidance provided by the relevant manufacturer; or
(v) the Product being repaired, modified, reinstalled or repositioned by someone other than us.
(d) During the Guarantee Period, we will provide reasonable assistance to you in making any guarantee or warranty claim against the manufacturer of the Products, including by acting as your liaison with the manufacturer.
(f) With respect to any query or claim made under the Guarantee, please contact us using the contact details provided below:
Call: 0423 912 499
We will maintain the following insurances during the term of this Agreement and with respect to
- public liability insurance, also for a period of 6 years following the termination or completion of this Agreement: public liability insurance policy for $10,000,000 per event;
- workers compensation insurance for our employees; and
- comprehensive motor vehicle insurance in relation to any vehicle used by us or our employees in performing this Agreement.
(a) We or you may terminate this Agreement by providing five (5) business days’ notice in writing.
(b) If you terminate this Agreement for any reason and regardless of the notice period, we reserve the right to retain any Deposit paid.
(c) If this Agreement is terminated, on termination, you must pay us for all work completed by us under this Agreement, and for our reasonable disbursements incurred or commitments undertaken up to the date you or us, as the case may be, provide notice of termination. The amount payable under this sub-clause will be reduced by any amount retained by us under clause 14(b).
If a dispute arises between you and us, the complainant must not commence any court or arbitration proceedings, except where that party seeks urgent interlocutory relief, unless it has first complied with this clause:
The complainant must inform the respondent in writing of the following:
- The nature of the dispute;
- The outcome the complainant desires, and
- The action the complainant believes will settle the dispute.
(b) Endeavour to resolve dispute
On receipt of the complaint by the respondent, both parties will make every effort to resolve the dispute by mutual negotiation within 14 business days.
Any unresolved dispute or difference whatsoever arising out of or in connection with this Agreement shall be submitted to mediation under the Mediation Rules of the Resolution Institute.
The Products and any services provided under this Agreement come with guarantees that cannot be excluded under the Australian Consumer Law.
17. What happens if a Guarantee under the Australian Consumer Law is not met?
(a) If the problem is minor, we can choose to remedy the problem as follows:
- in the case of Products supplied by us, we can choose to provide a refund of all or part of the Total Costs paid under this Agreement, replace, or repair the Products (or pay you the cost to replace or repair the Products); or
- in the case of a service supplied by us (e.g., the installation of the Products), we can choose to re-supply the service or pay you the cost to have the service re-supplied.
(b) If the problem is major or cannot be fixed, you can choose how to remedy the problem as follows:
- in the case of Products supplied by us, you can choose to either reject the Product(s) and obtain a full refund or replacement; or keep the Products and seek compensation for the reduction in value of the Product(s); and
- in the case of a service supplied by us, you can choose to either terminate this Agreement and receive a full refund; or seek compensation for the difference between the value of the services provided compared to the price paid.
18. Limitation on liability
(a) Except as provided for under the paragraph headed “Guarantee” or as required by law (including without limitation, the Australian Consumer Law), our liability to you or any other person (including without limitation, your employees, officers, agents or representatives) for any loss, cost, damage, expense, injury or death arising from or in connection with this Agreement whether arising in contract, tort (including negligence), equity, restitution, under statute or regulation, or otherwise, is limited to the Total Costs paid by you under this Agreement.
(b) Neither party is liable to the other party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other party of an indirect or consequential nature including any economic loss or other loss of turnover, reputation, profits, business or goodwill.
(c) Notwithstanding clause 18(a), you agree to release us (to the maximum extent permitted by law) and where necessary, indemnify us or keep us indemnified, from and against any loss, liability or damage to the Premises (including but not limited to, walls, skirting boards, floors and roof titles) which may occur in the course of our performance under this Agreement.
Subject to clause 18(b), to the full extent permitted by the law, you will indemnify us or any other person (including without limitation, our employees, officers, agents or representatives) and keep us or any other person indemnified from any loss, omission, cost, damage, expense, injury or death arising from or in connection with this Agreement whether arising in contract, tort (including negligence), equity, restitution, under statute or regulation, or otherwise.
(a) You grant us and our contractors’ permission to enter your Premises for the purposes of installing the Products.
(b) This Agreement is governed by the law in force in the State of Victoria, Australia. The parties submit to the jurisdiction of the courts of that State and any court competent to hear appeals from those courts.
(c) We may use independent contractors to deliver and/or install the Products.
(d) You or we may assign any rights or benefits under this Agreement at any time.
(e) This Agreement is the entire agreement and understanding between you and us regarding the subject matter of this Agreement, and supersedes any prior understanding, arrangement, representation or agreements between you and us.
(f) An amendment or variation to this Agreement is not effective unless it is in writing and signed by you and us.
(g) No delay in exercising, or omission to exercise, any right, power or remedy available to either party under the Agreement upon any default shall impair any such right, power or remedy or be construed to be a waiver thereof or an acquiescence in such default. No action of such party in respect of any default, or any acquiescence by it in any default, shall affect or impair any right, power or remedy of such party in respect of any other or subsequent default.
(h) Neither party shall be liable to the other party for any loss caused by any failure to observe the terms and conditions of this Agreement, where such failure is occasioned by causes beyond its reasonable control including but not limited to by fire, flood, riot, strike, war, restrictions and prohibitions or any other actions by any government or semi government authorities.
(i) If anything in this Agreement is unenforceable, illegal or void, it is severed, and the rest of the Agreement remains in force.
(j) As reasonably required and as per any limitations in the relevant clause, clauses 6, 12 to 20 survive the completion or termination of this Agreement.