Terms and Conditions
These terms and conditions are the contract between you and Capital Air Heating and Cooling. By visiting or using Our Website, you agree to be bound by them. In this document, “Capital Air” or “we” or “us” refers to Capital Air Heating and Cooling ABN 85 029 174 112 as a business registered in the Commonwealth of Australia. Our address level 9 / no 2 Philip Law St Acton 2601. You are: Anyone who uses Our Website. Please read this agreement carefully and save it. If you do not agree with it, you should leave Our Website and stop using the site immediately.
|“Content”||means the textual, visual or aural content that is encountered as part of your experience on Our Website. It may include, among other things: text, images, sounds, videos and animations.|
|“Intellectual Property”||means intellectual property owned by us, of every sort, whether or not registered or registrable in any country, including intellectual property of kinds coming into existence after today; and including, among others, patents, trade marks, unregistered marks, designs, copyrights, software, domain names, discoveries, creations and inventions, together with all rights which are derived from those rights.|
|“Our Website”||means any website or service designed for electronic access by mobile or fixed devices which is owned or operated by us.|
|“Services”||means the service provided from Our Website.|
2. Children on Our Website
2.1 Whatever the age of consent in your country, we are anxious that they should be protected from unsuitable Content. To protect your children, you should know our policy, which is as follows:
2.2 We do not market to children, nor do we sell products or services for purchase by children. We do sell products and services for end use by children, but for purchase by adults. If you are under 18, you may use our site only with consent from a parent or guardian.
2.3 We do not knowingly collect personal information from any person under the age of 18 years.
2.4 Any person of any age may freely access any page of Our Website. We do not check identities nor moderate Content.
2.5 It is you, not we, who provide access to Our Website for the children in your care. It is for you to check that the Content your children might see is suitable for them.
2.6 Where links are concerned, you may like to check the privacy policies of those sites where your children might visit frequently to see how they collect and use information.
2.7 Filter software may also be useful to you.
2.8 You acknowledge that we are not responsible for Content that anyone has placed on Our Website for the Content of site accessible by a link from Our Website.
2.9 You now agree to waive any claim you may otherwise have against us on account of age-related suitability of Content and to indemnify us against any claim made by any person on behalf of a child in your care.
3. Intellectual Property
You agree that at all times you will:
3.1 not do anything which does or might reduce the value of our Intellectual Property or challenge our ownership of it. 3.2 notify us of any suspected infringement of the Intellectual Property;
3.3 so far as concerns our work provided or made accessible by us to you, you will not:
3.3.1 copy, or make any change to any part of its code;
3.3.2 use it in any way not anticipated by this agreement;
3.3.3 give access to it to any other person than you, the licensee in this agreement;
3.3.4 in any way provide any information about it to any other person or generally.
3.4 not use the Intellectual Property except directly as intended by this agreement or in our interest.
4. Disclaimers and limitation of liability
4.1 The law differs from one country to another. This paragraph applies so far as the applicable law allows.
4.2 All implied conditions, warranties and terms are excluded from this agreement.
4.3 You are advised that Content may include technical inaccuracies or typographical errors. This is inevitable in any large website. We would be grateful if you bring to our immediate attention, any that you find.
4.4 The Site contains links to other Internet websites. We have neither power nor control over any such website. You acknowledge and agree that we shall not be liable in any way for the Content of any such linked website, nor for any loss or damage arising from your use of any such website or from your buying services or goods via such a website.
4.5 The Capital Airwebsite and Capital Air Heating and CoolingServices are provided “as is”. We make no representation or warranty that Our Website will be:
4.5.1 useful to you;
4.5.2 of satisfactory quality;
4.5.3 fit for a particular purpose;
4.5.4 available or accessible, without interruption, or without error.
4.6 We claim no expert knowledge in any subject. We disclaim any obligation or liability to you arising directly or indirectly from information you take from Our Website.
4.7 We accept no responsibility for third party advertisements which are posted on Our Website or through the Services;
4.8 We shall not be liable to you for any loss or expense which is:
4.8.1 indirect or consequential loss; or
4.8.2 economic loss or other loss of turnover, profits, business or goodwill even if such loss was reasonably foreseeable or we knew you might incur it.
4.9 This paragraph (and any other paragraph which excludes or restricts our liability) applies to our directors, officers, employees, subcontractors, agents and affiliated companies as well as to ourselves.
5. Miscellaneous matters
5.1 If any term or provision of this agreement is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms.
5.2 No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor indicate any intention to reduce that or any other right in the future.
5.3 Any communication to be served on either of the Parties by the other shall be delivered by hand or sent by first class post or by e-mail.
- It shall be deemed to have been delivered:
- if delivered by hand: on the day of delivery;
- if sent by post to the correct address: within 72 hours of posting;
Note: e-mail to the address from which the receiving party has last sent e-mail is NOT considered deemed to have been delivered.
- Sale of Goods and Services Terms and Conditions
5.4 The validity, construction and performance of this agreement shall be governed by the laws of the State of ACT and the parties agree that any dispute arising from it shall be litigated only in the State of ACT.
Standard Sale of Goods and Services Terms and Conditions for Capital Air Pty Ltd (“Capital Air”) ACN 602 389 239 a company registered in the Commonwealth of Australia.
1. Incorporation These terms and conditions:
(a) govern every contract for the sale of goods and/or the provision of services by Capital Air to the Customer, and
(b) constitute all the terms and conditions agreed among the parties hereto pertaining to the subject matter dealt with herein, to the exclusion of all the previous written or oral terms and conditions. No modification to these terms and conditions, whether put forward in the Customer’s purchase order or otherwise shall bind Capital Air unless agreed to in writing by Capital Air’s authorised employee.
2. Payment The terms of payment to Capital Air are as follows:
a) for the supply and installation of air conditioning units, payment is strictly on Cash On Delivery (CoD) basis, unless otherwise agreed, to a maximum of net 7 (seven) days from the date of invoice;
b) for the provision of service, payment is strictly on Cash On Delivery (CoD) basis, unless otherwise agreed to a maximum of net 7 (seven) days from the date of invoice.
3. Default & Consequences of Payment Default
(a) Failure to pay within the agreed credit terms will automatically create Stop Credit, and will not be re-commenced until payment is received for all amounts outstanding beyond agreed credit terms.
(b) Interest on overdue invoices shall accrue daily from the date when payment becomes due and runs until the date of payment, at a rate of 3% per calendar month; and such interest shall compound monthly at such a rate after as well as before any judgement.
(c) If the Customer defaults in payment of any invoice when due, the Customer shall indemnify Capital Air from and against all costs and disbursements incurred by Capital Air in pursuing the debt, including legal costs, on a solicitor and own client basis, and Capital Air Collection Agency costs.
(d) Without prejudice to any other remedies Capital Air may have, if at any time the Customer is in breach of any obligation (including those relating to payment), Capital Air may suspend or terminate the supply of goods and services to the Customer. Capital Air will not be liable to the Customer for any loss or damage the Customer suffers because Capital Air exercised its rights under this clause.
(e) If any account remains for after seven (7) days or more, then an amount of the greater of $35 or 10% of the amount overdue (up to a maximum of $200) shall be levied for administration fees, which sum shall become immediately due and payable.
(f) Without prejudice to Ideal Air’s other remedies at law, Capital Air shall be entitled to cancel all or any part of any order of the Customer, which remains unperformed and all amounts owing to Capital Air shall, whether or not due for payment, become immediately payable in the event that:
(i) any money payable to Capital Air becomes overdue, or in Ideal Air’s opinion, the Customer will be unable to meet its payment obligations as they become due; or
(ii) the Customer 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
(ii) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
(a) The Customer agrees for the Company to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by the Company.
(b) The Customer agrees that the Company may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(i) to assess an application by Customer; and/or
(ii) to notify other credit providers of a default by the Customer; and/or
(iii) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(iv) to assess the credit worthiness of Customer.
(c) The Customer consents to the Company being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
(d) The Customer agrees that personal credit information provided may be used and retained by the Company for the following purposes and for other purposes as shall be agreed between the Customer and Company or required by law from time to time:
(i) provision of Services and/or Goods; and/or
(ii) marketing of Services and/or Goods by the Company, its agents or distributors in relation to the Services and/or Goods; and/or
(iii) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Services and/or Goods; and/or
(iv) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and/or (v) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Services and/or Goods.
(e) The Company may give information about the Customer to a credit reporting agency for the following purposes:
(i) to obtain a consumer credit report about the Customer; and/or
(ii) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
5. Quotations and Prices
(a) Any quotation given by Capital Air is a mere invitation to treat and does not constitute a contractual offer. All quotations shall be valid for 30 (thirty) days after issue, however Capital Air may withdraw a quotation at any time.
(b) Prices included in the quotation are based on the specification, drawings and/or requests by the Customer. Should the specification or Customer’s request change, then Capital Air reserves the right to vary the quotation price.
(c) All quoted prices are exclusive of GST unless otherwise stated.
(a) The times quoted for delivery are estimates only and Capital Air accepts no liability for failure or delay in delivery of Goods. The Customer is not relieved of any obligation to accept or pay for Goods by reason of any delay in delivery. Goods may be delivered by instalments at the discretion of Ideal Air.
(b) Risk in the Goods passes to the Customer on delivery.
7. Capital Air Warranty and Claims
(a) Service under warranty shall only be available between the hours of 9am to 4.30pm Monday to Friday, and excludes public holidays, and warranty does not include routine maintenance service including filter cleaning, rectification of faults arising from power failure, misuse of equipment, lack of routine maintenance or operator error.
(b) Warranty for the purpose of this clause is either:
(i) Installation warranty; a guarantee of workmanship and associated duct work and materials on new installations for a period of 12 (twelve) months, whereby Capital Air will repair the product in the event of any defect,
(ii) Service warranty; a guarantee of workmanship for service repair work for a period of 3 (three) months, where the works will be performed again in the event of any defects associated with the initial service work.
(c) All costs of freight and travelling expenses associated with making a claim under this warranty are to be paid by the Customer.
(d) The Goods come with guarantees that cannot be excluded under the Australian Consumer Law. The Customer is entitled to a replacement or refund for a “major failure” and for compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a “major failure”.
(e) The benefits to you given by Capital Air warranty are in addition to other rights and remedies that you may have under law in relation to the products to which this warranty relates.
(f) If a Customer wishes to make a claim under this warranty, they should:
- contact: (02) 6280 6266 or
- email: s[email protected] or
- Write to:
Warranties & Claims Capital Air Heating and Cooling level 9 / no 2 Philip Law St Acton 2601.
(g) This Clause 7 shall be read in conjunction with Clause 11.
(h) Warranty on new air conditioning units and new parts are subject to the manufacturer’s warranty. However, where permissible by law, the customer must pay for all work undertaken in carrying out a repair if the manufacturer’s assessment determines the claim does not fall within the manufacturer’s warranty terms.
(i) The Customer must provide proof of purchase to make a claim under any warranty.
8. Retention of Title
(a) All equipment supplied and installed by Capital Air remains the property of the Capital Air until all monies outstanding to Capital Air in connection with these Terms and Conditions have been paid.
(b) It is the intention of Capital Air and agreed to by the Customer that ownership of Materials & Goods shall not pass until the Customer has met all other obligations due by the Customer to Capital Air in respect of all contracts between Capital Air and the Customer.
(c) In the event of a default by the Customer, then without prejudice to any other rights which Capital Air may have at law or under this contract:
(i) Capital Air or its agents may without notice to the Customer enter the Customer’s premises or any premises under the control of the Customer for the purposes of recovering the Goods.
(ii) Capital Air may recover and resell the Goods; i. If the Goods cannot be distinguished from similar Goods which the Customer has or claims to have paid for in full, Capital Air may in its absolute discretion seize all Goods matching the description of the Goods and hold same for a reasonable period so that the respective claims of Capital Air and the Customer may be ascertained. Capital Air must promptly return to the Customer any Goods the property of the Customer and Capital Air is in no way liable or responsible for any loss or damage to the Goods or for any loss, damage or destruction to the Customer’s business howsoever arising from the seizure of the Goods.
ii. In the event that the Customer uses the Goods in some manufacturing or construction process of its own or some third party, then the Customer must hold such part of the proceeds of sale of such manufacturing or construction process as relates to the Goods in trust for Ideal Air. Such part will be an amount equal in dollar terms to the amount owing by the Customer to the Capital Air at the time of the receipt of such proceeds. The Customer will pay Capital Air such funds held in trust upon the demand of Ideal Air.
(d) Receipt by Capital Air 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 and until then the Ideal Air’s ownership or rights in respect of Materials and/or Goods shall continue.
(e) It is further agreed that:
(i) where practicable, the Materials and/or Goods shall be kept separate and identifiable until Capital Air shall have received payment and all other obligations of Capital Air are met; and
(ii) until such time as ownership of the Materials and/or Goods shall pass from Capital Air to the Customer, Capital Air may give notice in writing to the Customer to return the Materials and/or Goods or any of them to Ideal Air. Upon such notice, the rights of the Customer to obtain ownership or any other interest in the Materials and/or Goods shall cease; and
(iii) Capital Air shall have the right of stopping the Materials and/or Goods in transit whether or not delivery has been made; and
9. Personal Properties and Securities Act 2009 (Cth) (“PPSA”)
a) Defined terms in this clause have the same meaning as given to them in the PPSA.
b) Capital Air and the Customer acknowledge that these Terms and Conditions constitute a Security Agreement and gives rise to a Purchase Money Security Interest (PMSI) in favour of Capital Air over the Goods supplied or to be supplied to the Customer as Grantor pursuant to these Terms and Conditions.
c) The Goods supplied or to be supplied under these Terms and Conditions fall within the PPSA classification of ”Other Goods” acquired by the Customer pursuant to these Terms and Conditions.
d) Capital Air and the Customer acknowledge that Ideal Air, as Secured Party, is entitled to register its interest in the Goods supplied or to be supplied to the Customer, as Grantor, under these Terms and Conditions on the PPSA Register as Collateral.
e) The Customer waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer, as Grantor, to Ideal Air.
f) The Customer agrees to indemnify Capital Air on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the;
(i) registration or amendment or discharge of any Financing Statement registered by or on behalf of Ideal Air; and
(ii) enforcement or attempted enforcement of any Security Interest granted to Capital Air by the Customer.
g) The Customer agrees:
(i) that, to the extent permitted at law, nothing in sections 130 to 143 of the PPSA will apply to these Terms and Conditions or the Security under these Terms and Conditions;
(ii) to waive its right to do any of the following under the PPSA:
(A) receive notice of removal of an Accession under section 95;
(B) receive notice of an intention to seize Collateral under section 123;
(C) receive notice of disposal of Collateral under section 130;
(D) receive a Statement of Account if there is no disposal under section 130(4);
(E) receive notice of retention of Collateral under section 135;
(F) redeem the Collateral under section 142;
(G) reinstate the Security Agreement under section 143;
(H) object to the purchase of the Collateral by the Secured Party under section 129; and
(I) receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.
10. Retention Money Unless otherwise provided in writing, the Customer shall not be entitled to retain any part of the purchase price by way of retention monies to guarantee satisfactory operation of the equipment supplied and installed.
a) Capital Air liability in respect of a breach of a consumer guarantee for any Goods not of a kind ordinarily acquired for personal, domestic or household use is limited, to the extent permissible by law and at Capital Air option;
(i) in relation to the Goods:
A. the replacement of the products or the supply of equivalent products;
B. the repair of the products;
C. the payment of the cost of replacing the products or of acquiring equivalent products; or
D. the payment of the cost of having the products repaired.
(ii) in relation to the services:
A. the supply of the services again; or
B. the payment of the cost of having the services supplied again.
b) To the extent permitted by law, all other warranties whether implied or otherwise, not set out in these Terms and Conditions are excluded and Capital Air is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Customer for:
(i) any increased costs or expenses;
(ii) any loss of profit, revenue, business, contracts or anticipated savings;
(iii) any loss or expense resulting from a claim by a third party; or
(iv) any special, indirect or consequential loss or damage of any nature whatsoever caused by Capital Air failure to complete or delay in completing the order to deliver the Goods.
c) Any claims to be made against Capital Air for short delivery of Goods must be lodged with Capital Air in writing within 7 (seven) days of the delivery date. Send to: Warranties & Claims Capital Air Heating and Cooling level 9 / no 2 Philip Law St Acton 2601.
12. Indemnity To the full extent permitted by law, the Customer will indemnify Capital Air and keep Capital Air indemnified from and against any liability and any loss or damage Capital Air may sustain, as a result of any breach, act or omission, arising directly or indirectly from or in connection with any breach of any of these Terms and Conditions by the Customer or its representatives.
13. Exclusions The price agreed herein does not include any expense covering damage arising from hidden or unknown contingencies found at the job site: example – faults or deteriorations of the building structure, pre-existing conditions of the site, heritage or preservation orders, finding of hazardous substances and the like, unless specifically noted in the tender price. This tender shall exclude the following items and it shall be the responsibility of the Customer to provide the same unless otherwise agreed in writing:
- the performing of any building work including (but not limited to) cutting holes, patching, painting, flashing, boxing in;
- furring in, plinths or platforms;
- metered electrical mains brought to a point adjacent to the equipment as required;
- alterations to the switchboard or existing mains supply;
- condensate drains brought to a point adjacent to the equipment as required.
a) This Agreement shall, in all respects, be governed by, and construed and interpreted in accordance with, the Laws of the Australian Capital Territory without giving effect to any conflicts of law principles of such Territory that might refer the governance, construction or interpretation of this Agreement to the Laws of another jurisdiction. a) These Terms and Conditions contain all of the terms and conditions of the contract between the parties and may only be varied by agreement in writing between the parties.
b) Any conditions found to be void, unenforceable or illegal may, to that extent be severed from these Terms and Conditions.
c) No waiver of any of these Terms and Conditions or failure to exercise a right or remedy by Capital Air will be considered to imply or constitute a further waiver by Capital Air of the same or any other term, condition, right or remedy.