- “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this contract.
- “Supplier” means Sackett Services PTY LTD, its successors and assigns or any person acting on behalf of and with the authority of Sackett Services PTY LTD.
- “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting the Supplier to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
- if there is more than one Customer, is a reference to each Customer jointly and severally; and
- if the Customer is a partnership, it shall bind each partner jointly and severally; and
- if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
- includes the Customer’s executors, administrators, successors and permitted assigns.
- “Goods” means all Goods or Services supplied by the Supplier to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
- “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
- “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between the Supplier and the Customer in accordance with clause 5
- “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
- The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
- In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
- Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
- The Supplier has the right to postpone or refuse to provide Services where:
- Unsafe or unsanitary conditions exist; or
- The Supplier deems the equipment under contract is no longer economically repairable. The Supplier will provide the Customer with a proposal to replace such equipment; or
- The access to the equipment is not accessible including but not limited to, having adequate crawl space, attic and roof space to provide dry access to service equipment and assets.
- The Customer accepts that the cost of any consents, fees or inspections by engineers or council shall be the responsibility of the Customer.
3.Errors and Omissions:
- The Customer acknowledges and accepts that the Supplier shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
- resulting from an inadvertent mistake made by the Supplier in the formation and/or administration of this Contract; and/or
- contained in/omitted from any literature (hard copy and/or electronic) supplied by the Supplier in respect of the Services.
- In the event such an error and/or omission occurs in accordance with clause 3.1 and is not attributable to the negligence and/or wilful misconduct of the Supplier; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.
4.Change In Control:
- The Customer shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change in trustees, or business practice). The Customer shall be liable for any loss incurred by the Supplier as a result of the Customer’s failure to comply with this clause.
5.Price and Payment:
- At the Supplier’s sole discretion, the Price shall be either:
- As indicated on any invoice provided by the Supplier to the Customer; or
- The Supplier’s quoted price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
- The Supplier 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, availability of machinery, safety considerations, obscured site defects which require remedial work, prerequisite work by any third party not being completed, hidden pipes and wiring/cabling etc.) which are only discovered on commencement of the Services; or
- In the event of increases to the Supplier in the cost of labour or materials which are beyond the Supplier’s control
Variations will be charged for on the basis of the Supplier’s quotation, and will be detailed in writing, and shown as variations on the Supplier’s invoice. The Customer shall be required to respond to any variation submitted by the Supplier within thirty (30) days. Failure to do so will entitle the Supplier to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.At the Supplier’s sole discretion, a thirty percent (30%) deposit may be required.
- Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by the Supplier, which may be:
- By way of instalments/progress payments in accordance with the Supplier’s payment schedule;
- Thirty (30) days in which a statement is delivered to the Customer’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 Customer by the Supplier.
- Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and the Supplier.
- The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute.
- Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to the Supplier an amount equal to any GST the Supplier must pay for any supply by the Supplier under this or any other Contract for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer 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.
- Delivery (“Delivery”) of the Goods/Services is taken to occur at the time that:
The Customer or the Customer’s nominated carrier takes possession of the Goods at the Supplier’s address; or
The Supplier (or the Supplier’s nominated carrier) delivers the Goods to and/or performs the Services at the Customer’s nominated address even if the Customer is not present at the address.
- At the Supplier’s sole discretion, the cost of delivery is included in the Price.
- Subject to clause 4 it is the Supplier’s responsibility to ensure that the Services start as soon as it is reasonably possible.
- The Services commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that the Supplier claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond the Supplier’s control, including but not limited to any failure by the Customer to:
Make a selection; or
Have the site ready for the Services; or
Notify the Supplier that the site is ready.
- Any time specified by the Supplier for delivery of the Goods is an estimate only and the Supplier will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that the Supplier is unable to supply the Goods as agreed solely due to any action or inaction of the Customer, then the Supplier shall be entitled to charge a reasonable fee for redelivery and/or storage.
- Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
- If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Supplier is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.
- If the Customer requests the Supplier to leave Goods outside the Supplier’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Customer’s sole risk.
- The Customer acknowledges that the Supplier is only responsible for parts that are replaced by the Supplier and that in the event that other parts/Goods, subsequently fail, the Customer agrees to indemnify the Supplier against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising.
- The Customer 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 the Supplier, its employees or the Supplier’s reasonably form the opinion that the Customer’s premises is not safe for the installation of Goods to proceed then the Supplier shall be entitled to delay installation of the Goods (in accordance with clause 4) until the Supplier is satisfied that it is safe for the installation to proceed.
- The Supplier shall be entitled to rely on the accuracy of any designs, specifications, measurements and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, the Supplier accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate designs, specifications, measurements or other information.
- The Customer acknowledges that all descriptive specifications, illustrations, drawings, data dimensions, and weights stated in the Supplier’s fact sheets, price lists or advertising material are indicative only and that they have not relied on such information.
- The Customer acknowledges that they shall:
- Fully disclose any information in writing, prior to the scheduled installation, that may affect the Supplier’s installation procedures; and
- Remove all fragile items such as glassware, crockery, pot plants, furniture and ornaments. Breakages and damages are the responsibility of the Customer. All care taken but no responsibility accepted by the Supplier in this regard; and
- Supply electricity, temporary lighting, toilet, eating and first aid facilities if so required.
8.Air Conditioning Risk:
- Whilst the final location of the condensing unit is at the discretion of the Customer, a charge will apply as a variation as per clause 2, if the Customer requests the unit to not be located adjacent to the external wall, due to the underground piping required.
- The final location of the wall, window or floor unit must be determined on site by the Customer.
- The Supplier shall upon installation ensure that all installed Goods meet current industry standards applicable to noise levels, however the Supplier 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.
- In the event that any of the equipment needs to be relocated due to complaints from neighbours or local authorities, then the Customer shall be responsible for any and all costs involved.
- The Customer acknowledges and agrees that it is their responsibility to ensure any equipment partly or completely installed on site, against theft or damage.
- In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Customer then the Customer agrees to notify the Supplier immediately upon any proposed changes. The Customer agrees to indemnify the Supplier against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 2.
9.Access/Damage to Customer Property:
- The Customer shall ensure that the Supplier has clear and free access to the worksite at all times to enable them to undertake the Services. The Supplier 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 the Supplier.
- While the Supplier undertakes to take all reasonable care in the installation of the Goods, the Customer acknowledges that damage to property may occur during the installation process. The Supplier shall not accept any liability for such damage unless it brought to the Supplier’s attention within seven (7) days of installation.
10.Compliance With Laws
- The Customer and the Supplier 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.
- All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Regulations.
- The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Services.
- The Customer agrees that the site will comply with any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.
- The Supplier and the Customer agree that ownership of the Goods shall not pass until:
- The Customer has paid the Supplier all amounts owing to the Supplier; and
- The Customer has met all its other obligations to the Supplier.
- Receipt by the Supplier 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.
- It is further agreed that:
Until ownership of the Goods passes to the Customer in accordance with clause 1 that the Customer is only a bailee of the Goods and must return the Goods to the Supplier on request.
The Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
- The Customer 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 Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand.
- The Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Supplier and must sell, dispose of or return the resulting product to the Supplier as it so directs.
- The Customer irrevocably authorises the Supplier to enter any premises where the Supplier believes the Goods are kept and recover possession of the Goods.
- The Supplier may recover possession of any Goods in transit whether or not delivery has occurred.
- The Customer 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 the Supplier.
- The Supplier may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.