- 1. Definitions
1.1 “Leading Air” means Leading Air, its successors and assigns or any person acting on behalf of and with the authority of Leading Air.
1.2 “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.
1.3 “Goods” means all Goods or Services supplied by Leading Air 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).
1.4 "GST" means GST as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended (GST Act or any replacement or any other relevant legislation and regulation);
1.5 “Price” means the Price payable for the Goods as agreed between Leading Air and the Client in accordance with clause 4 below.
- 2. Acceptance
2.1 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.
2.2 These terms and conditions may only be amended with Leading Air’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Leading Air.
2.3 None of Leading Air’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the management of Leading Air in writing nor is Leading Air bound by any such unauthorised statements.
- 3. Change in Control
3.1 The Client shall give Leading Air 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 Leading Air as a result of the Client’s failure to comply with this clause.
- 4. Price and Payment
4.1 At Leading Air’s sole discretion the Price shall be either:
as indicated on any invoice provided by Leading Air to the Client; or
as indicated on charge sheets provided by Leading Air to the Client in respect of Goods supplied; or
the Price as at the date of Delivery of the Goods according to Leading Air’s current price list; or
Leading Air’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 Leading Air reserves the right to change the Price:
if a variation to the Goods which are to be supplied is requested; or
if a variation to the services originally scheduled (including any applicable plans or specifications) is requested; or
where additional services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, safety considerations, prerequisite work by any third party not being completed, change of design etc) which are only discovered on commencement of the Services; or
in the event of increases to Leading Air in the cost of labour or materials which are beyond Leading Air’s control.
4.3 At Leading Air’s sole discretion a deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods and shall become immediately due and payable.
4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Leading Air, which may be:
on Delivery of the Goods;
before Delivery of the Goods;
by way of instalments/progress payments in accordance with Leading Air’s payment schedule;
seven (7) 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 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 Leading Air.
4.5 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 Leading Air.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Leading Air an amount equal to any GST Leading Air must pay for any supply by Leading Air 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.
- 5. Delivery of Goods
5.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
the Client or the Client’s nominated carrier takes possession of the Goods at Leading Air’s address; or
Leading Air (or Leading Air’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
5.2 At Leading Air’s sole discretion the cost of Delivery is either included in the Price or is in addition to the Price.
5.3 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 Leading Air shall be entitled to charge a reasonable fee for redelivery and/or storage.
5.4 Leading Air 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.
5.5 Subject to clause 5.6 below it is Leading Air’s responsibility to ensure that the services start as soon as it is reasonably possible.
5.6 The services commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Leading Air claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Leading Air’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 Leading Air that the site is ready.
5.7 Any time or date given by Leading Air to the Client is an estimate only. The Client must still accept Delivery of the Goods even if late and Leading Air will not be liable for any loss or damage incurred by the Client as a result of the Delivery being late.
- 6. Risk
6.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
6.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, Leading Air is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Leading Air is sufficient evidence of Leading Air’s rights to receive the insurance proceeds without the need for any person dealing with Leading Air to make further enquiries.
6.3 If the Client requests Leading Air to leave Goods outside Leading Air’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
6.4 The Client acknowledges that Leading Air is only responsible for parts that are replaced by Leading Air and that in the event that other parts/Goods, subsequently fail, the Client agrees to indemnify Leading Air against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising.
6.5 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, and electrical cable) 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) that Leading Air, its employees or Leading Air’s reasonably form the opinion that the Client’s premises is not safe for the installation of Goods to proceed then Leading Air shall be entitled to delay installation of the Goods (in accordance with the provisions of clause 5.6 above) until Leading Air is satisfied that it is safe for the installation to proceed.
6.6 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 4.2, if the Client requests the unit to not be located adjacent to the external wall, due to the underground piping required.
6.7 The final location of the wall, window or floor unit must be determined on site by the Client.
6.8 Leading Air shall upon installation ensure that all installed Goods meet current industry standards applicable to noise levels, however Leading Air 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.
6.9 In the event that any of the Goods need to be relocated due to complaints from neighbours or local authorities, then the Client shall be responsible for any and all costs involved.
6.10 The Client acknowledges and agrees that it is their responsibility to insure any Goods, partly or completely installed on site, against theft or damage.
6.11 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 Leading Air immediately upon any proposed changes. The Client agrees to indemnify Leading Air against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 4.2.
- 7. Access
7.1 The Client shall ensure that Leading Air has clear and free access to the work site at all times to enable them to undertake the services. Leading Air 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 Leading Air.
- 8. Underground Locations
8.1 Prior to Leading Air commencing any work the Client must advise Leading Air 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.
8.2 Whilst Leading Air will take all care to avoid damage to any underground services the Client agrees to indemnify Leading Air 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 8.1.
- 9. Title
9.1 Leading Air and the Client agree that ownership of the Goods shall not pass until:
the Client has paid Leading Air all amounts owing to Leading Air; and
the Client has met all of its other obligations to Leading Air.
9.2 Receipt by Leading 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.
9.3 It is further agreed that:
until ownership of the Goods passes to the Client in accordance with clause 9.1 that the Client is only a bailee of the Goods and must return the Goods to Leading Air on request.
the Client holds the benefit of the Client’s insurance of the Goods on trust for Leading Air and must pay to Leading Air 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 Leading Air and must pay or deliver the proceeds to Leading Air 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 Leading Air and must sell, dispose of or return the resulting product to Leading Air as it so directs.
the Client irrevocably authorises Leading Air to enter any premises where Leading Air believes the Goods are kept and recover possession of the Goods.
Leading Air 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 Leading Air.
Leading Air may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
- 10. Personal Property Securities Act 2009 (“PPSA”)
10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
10.2 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 that have previously been supplied and that will be supplied in the future by Leading Air to the Client.
10.3 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 Leading Air may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii);
- b. indemnify, and upon demand reimburse, Leading Air 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;
- c. not register a financing change statement in respect of a security interest without the prior written consent of Leading Air;
- d. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Leading Air;
- e. immediately advise Leading Air 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.
10.4 Leading Air 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.
10.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
10.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
10.7 Unless otherwise agreed to in writing by Leading Air, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
10.8 The Client must unconditionally ratify any actions taken by Leading Air under clauses 10.3 to 10.5.
10.9 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.
- 11. Client’s Disclaimer
11.1 The Client hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to him by any servant or agent of Leading Air and the Client acknowledges that he buys the Goods relying solely upon his own skill and judgement and that Leading Air shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given in Clause 9 which warranty shall be personal to the Client and shall not be transferable to any subsequent Client.
- 12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
12.1 The Client must inspect the Goods on Delivery and must within thirty (30) days of Delivery notify Leading Air in writing 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 Leading Air to inspect the Goods.
12.2 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).
12.3 Leading Air acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Leading Air makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Leading Air’s liability in respect of these warranties is limited to the fullest extent permitted by law.
12.5 If the Client is a consumer within the meaning of the CCA, Leading Air’s liability is limited to the extent permitted by section 64A of Schedule 2.
12.6 If Leading Air is required to replace the Goods under this clause or the CCA, but is unable to do so, Leading Air may refund any money the Client has paid for the Goods.
12.7 If the Client is not a consumer within the meaning of the CCA, Leading Air’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 Leading Air at Leading Air’s sole discretion;
limited to any warranty to which Leading Air is entitled, if Leading Air did not manufacture the Goods;
otherwise negated absolutely.
12.8 Subject to this 12, returns will only be accepted provided that:
the Client has complied with the provisions of clause 12.1; and
Leading Air 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.
12.9 Notwithstanding clauses 12.1 to 12.8 but subject to the CCA, Leading Air 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 Leading Air;
fair wear and tear, any accident, or act of God.
12.10 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 Leading Air 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 Leading Air 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 12.10.
- 13. Intellectual Property
13.1 Where Leading Air has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Leading Air.
13.2 The Client warrants that all designs, specifications or instructions given to Leading Air will not cause Leading Air to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Leading Air against any action taken by a third party against Leading Air in respect of any such infringement.
13.3 The Client agrees that Leading Air may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Leading Air has created for the Client.
- 14. Default and Consequences of Default
14.1 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 Leading Air’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 If the Client owes Leading Air any money the Client shall indemnify Leading Air from and against all costs and disbursements incurred by Leading Air in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Leading Air’s contract default fee, and bank dishonour fees).
14.3 Without prejudice to any other remedies Leading Air may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Leading Air may suspend or terminate the supply of Goods to the Client. Leading Air will not be liable to the Client for any loss or damage the Client suffers because Leading Air has exercised its rights under this clause.
14.4 Without prejudice to Leading Air’s other remedies at law Leading Air shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Leading Air shall, whether or not due for payment, become immediately payable if:
any money payable to Leading Air becomes overdue, or in Leading Air’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.
- 15. Compliance with Laws
15.1 The Client and Leading Air 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.
15.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
15.3 The Client agrees that the site will comply with any work health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
- 16. Cancellation
16.1 Leading Air 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 Leading Air shall repay to the Client any money paid by the Client for the Goods. Leading Air shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.2 In the event that the Client cancels Delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by Leading Air as a direct result of the cancellation (including, but not limited to, any loss of profits).
16.3 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.
- 17. Privacy Act 1988
17.1 The Client agrees for Leading Air to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Leading Air.
17.2 The Client agrees that Leading Air may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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 The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
17.3 The Client consents to Leading Air being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
17.4 The Client agrees that personal credit information provided may be used and retained by Leading Air for the following purposes (and for other purposes as shall be agreed between the Client and Leading Air or required by law from time to time):
the provision of Goods; and/or
the marketing of Goods by Leading Air, its agents or distributors; 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 daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
17.5 Leading Air may give information about the Client to a credit reporting agency for the following purposes:
to obtain a consumer credit report about the Client;
allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
17.6 The information given to the credit reporting agency may include:
personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
details concerning the Client’s application for credit or commercial credit and the amount requested;
advice that Leading Air is a current credit provider to the Client;
advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
information that, in the opinion of Leading Air, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);
advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
that credit provided to the Client by Leading Air has been paid or otherwise discharged.
- 18. Unpaid Seller’s Rights
18.1 Where the Client has left any item with Leading Air for repair, modification, exchange or for Leading Air to perform any other service in relation to the item and Leading Air has not received or been tendered the whole of any moneys owing to it by the Client, Leading Air shall have, until all moneys owing to Leading Air are paid:
a lien on the item; and
the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
18.2 The lien of Leading Air shall continue despite the commencement of proceedings, or judgment for any moneys owing to Leading Air having been obtained against the Client.
- 19. Construction Contracts Act 2004
19.1 At Leading Air’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Construction Contracts Act 2004 may apply.
19.2 Nothing in this agreement is intended to have the effect of contracting out of any provisions of the Construction Contracts Act 2004 of Western Australia, except to the extent permitted by the Act where applicable.
- 20. General
20.1 The failure by Leading Air to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Leading Air’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.
20.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the State of Western Australia in which Leading Air has its principal place of business, and are subject to the jurisdiction of the courts in that state.
20.3 Subject to clause 14 Leading Air 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 Leading Air of these terms and conditions (alternatively Leading Air’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
20.4 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 Leading Air nor to withhold payment of any invoice because part of that invoice is in dispute.
20.5 Leading Air may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
20.6 The Client agrees that Leading Air may amend these terms and conditions at any time. If Leading Air makes a change to these terms and conditions, then that change will take effect from the date on which Leading Air notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Leading Air to provide Goods to the Client.
20.7 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.
20.8 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.
