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McKinnon Heating & Cooling Pty Ltd – Terms & Conditions of Trade

1. Definitions
1.1 “McKinnon” shall mean McKinnon Heating & Cooling Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of McKinnon Heating & Cooling Pty Ltd.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by McKinnon to the Client.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by McKinnon to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by McKinnon to the Client.
1.5 “Services” shall mean all Services supplied by McKinnon to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the price payable for the Goods as agreed between McKinnon and the Client in accordance with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3. Acceptance
3.1 Any instructions received by McKinnon from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by McKinnon shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of McKinnon.
3.4 The Client shall give McKinnon not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by McKinnon as a result of the Client’s failure to comply with this clause.
3.5 Goods are supplied by McKinnon only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
4. Price And Payment
4.1 At McKinnon’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by McKinnon to the Client in respect of Goods supplied; or
(b) McKinnon’s quoted Price (subject to clause 4.2) which shall be binding upon McKinnon provided that the Client shall accept McKinnon’s quotation in writing within sixty (60) days.
4.2 McKinnon reserves the right to change the Price in the event of a variation to McKinnon’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation due to unforeseen circumstances, or as a result of increases to McKinnon in the cost of materials and labour) will be charged for on the basis of McKinnon’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 McKinnon may submit a detailed payment claim at intervals not less than one week for work performed up to the end of each week. The value of work so performed shall include the reasonable value of authorised variations and the value of materials delivered to the site but not yet installed.
4.4 At McKinnon’s sole discretion a deposit may be required. The commencement of installation is dependant on McKinnon receiving the deposit.
4.5 At McKinnon’s sole discretion payment shall be due on delivery of the Goods.
4.6 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
4.7 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to five percent (5%) of the Price), or by direct credit, or by any other method as agreed to between the Client and McKinnon.
4.8 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Delivery Of Goods
5.1 At McKinnon’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at McKinnon’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by McKinnon or McKinnon’s nominated carrier).
5.2 At McKinnon’s sole discretion the costs of delivery are:
(a) included in the Price; or
(b) in addition to the Price; or
(c) for the Client’s account.
5.3 The Client shall make all arrangements necessary to take delivery 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 McKinnon shall be
entitled to charge a reasonable fee for redelivery.
5.4 The failure of McKinnon to deliver shall not entitle either party to treat this contract as repudiated.
5.5 McKinnon shall not be liable for any loss or damage whatsoever due to failure by McKinnon to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of McKinnon.
6. Risk
6.1 If McKinnon retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prir to ownership passing to the Client, McKinnon is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by McKinnon is sufficient evidence of McKinnon’s rights to receive the insurance proceeds without the need for any person dealing with McKinnon to make further enquiries.
6.3 Where the Client expressly requests McKinnon to leave Goods outside McKinnon’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 and it shall be the Client’s responsibility to ensure the Goods are insured adequately or at all.
6.4 Where the Client has supplied materials for McKinnon to complete the Services, or existing materials are in place, the Client acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults inherent
in the Materials. McKinnon shall not be responsible for any defects in the works, any loss or damage to the Materials (or any part thereof), howsoever arising from the use of Materials supplied by the Client.
6.5 The Client acknowledges and agrees that pictures and photos in McKinnon’s brochures and advertising material may not represent the actual Goods, and the dimensions and features of the Goods may vary. McKinnon shall not be liable for any loss, damages, or costs however resulting from such variations to the Goods.
6.6 In the event that the property experiences any movement that effects and causes damage to the Goods, the Client accepts and agrees that McKinnon shall not be held liable for any such damage and that the Client shall be responsible for the cost of rectification.
6.7 In the event that the worksite is disturbed due to adverse weather conditions, the Client acknowledges that they shall be liable for the cost of rectification (including but not limited to roof leaks causes by storms, acts of God,
earthquake, etc).
6.8 The Client agrees to indemnify McKinnon from any damage caused by any other tradesman during and after the completion of the Services. If the Client instructions McKinnon to rectify any damage caused by any other tradesman, this will become a variation to the original quotation and will be charged at McKinnon’s normal hourly
rate per clause 4.2.
7. Access
7.1 The Client shall ensure that McKinnon has clear and free access to the work site at all times to enable them to undertake the works. McKinnon shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and interior features) unless due to the negligence of McKinnon. Any claims for damage to the works site must be given in to McKinnon within forty eight (48) hours of the damage occurring.
8. Title
8.1 McKinnon and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid McKinnon all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to McKinnon in respect of all contracts between
McKinnon and the Client.
8.2 Receipt by McKinnon 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 McKinnon’s ownership or rights in respect of the Goods shall continue.
8.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until McKinnon shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from McKinnon to the Client McKinnon may give notice in
writing to the Client to return the Goods or any of them to McKinnon. Upon such notice the rights of the Client to
obtain ownership or any other interest in the Goods shall cease; and
(c) McKinnon shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to McKinnon then McKinnon or McKinnon’s agent may enter upon and into
land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where
the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as McKinnon has received payment in full for the
Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the
amount the Client owes to McKinnon for the Goods, on trust for McKinnon; and
(f) the Client shall not deal with the money of McKinnon in any way which may be adverse to McKinnon; and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while
they remain the property of McKinnon; and
(h) McKinnon can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the
Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products,
the parties agree that McKinnon will be the owner of the end products.
9. Defects
9.1 The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the
essence) notify McKinnon of any alleged defect, shortage in quantity, damage or failure to comply with the
description or quote. The Client shall afford McKinnon an opportunity to inspect the Goods within a reasonable time
following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with
these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which
McKinnon has agreed in writing that the Client is entitled to reject, McKinnon’s liability is limited to either (at
McKinnon’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods as
a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant
state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the
purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
10. Returns
10.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 9.1; and
(b) McKinnon has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
(d) McKinnon will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures
and instruction material in as new condition as is reasonably possible in the circumstances.
10.2 McKinnon may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of up
to twenty five percent (25%) of the value of the returned Goods plus any freight costs.
10.3 Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit
or return.
11. Warranty
11.1 Subject to the conditions of warranty set out in clause 11.2 McKinnon warrants that if any defect in any
workmanship of McKinnon becomes apparent and is reported to McKinnon within six (6) years of the date of
delivery (time being of the essence) then McKinnon will either (at McKinnon’s sole discretion) replace or remedy
the workmanship.
11.2 The conditions applicable to the warranty given by clause 11.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by McKinnon; or
(iii)any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv)the continued use of any Goods after any defect becomes apparent or would have become apparent to a
reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and McKinnon shall thereafter in no circumstances be liable under the terms of the
warranty if the workmanship is repaired, altered or overhauled without McKinnon’s consent.
(c) in respect of all claims McKinnon shall not be liable to compensate the Client for any delay in either replacing or
remedying the workmanship or in properly assessing the Client’s claim.
11.3 For Goods not manufactured by McKinnon, the warranty shall be the current warranty provided by the
manufacturer of the Goods. McKinnon shall not be bound by nor be responsible for any term, condition,
representation or warranty other than that which is given by the manufacturer of the Goods.
12. Default & Consequences of Default
12.1 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 one half percent (2.5%) per calendar month (and at McKinnon’s sole discretion such
interest shall compound monthly at such a rate) after as well as before any judgment.
12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees
incurred by McKinnon.
12.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify McKinnon from and against all
costs and disbursements incurred by McKinnon in pursuing the debt including legal costs on a solicitor and own
client basis and McKinnon’s collection agency costs.
12.4 Without prejudice to any other remedies McKinnon may have, if at any time the Client is in breach of any obligation
(including those relating to payment) McKinnon may suspend or terminate the supply of Goods to the Client and
any of its other obligations under the terms and conditions. McKinnon will not be liable to the Client for any loss or
damage the Client suffers because McKinnon has exercised its rights under this clause.
McKinnon Heating & Cooling Pty Ltd – Terms & Conditions of Trade
© Copyright – EC Credit Control Pty Ltd - 2009
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten
percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for
administration fees which sum shall become immediately due and payable.
12.6 Without prejudice to McKinnon’s other remedies at law McKinnon shall be entitled to cancel all or any part of any
order of the Client which remains unfulfilled and all amounts owing to McKinnon shall, whether or not due for
payment, become immediately payable in the event that:
(a) any money payable to McKinnon becomes overdue, or in McKinnon’s opinion the Client will be unable to meet
its payments as they fall due; or
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client
or any asset of the Client.
13. Security And Charge
13.1 Despite anything to the contrary contained herein or any other rights which McKinnon may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortga ge and/or charge all of their joint and/or several interest in the said land, realty or any other asset to McKinnon or McKinnon’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that McKinnon (or McKinnon’s nominee) shall be entitled to lodge where appropriate a
caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should McKinnon elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify McKinnon from and against all McKinnon’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint McKinnon or McKinnon’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.1.
14. Cancellation
14.1 McKinnon 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 McKinnon shall repay to the Client any sums paid in respect of the Price. McKinnon shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by McKinnon (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.
15. Privacy Act 1988
15.1 The Client and/or the Guarantor/s agree for McKinnon to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by McKinnon.
15.2 The Client and/or the Guarantor/s agree that McKinnon may exchange information about the Client and the Guarantor/s 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:
(a) to assess an application by Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) 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
(d) to assess the credit worthiness of Client and/or Guarantor/s.
15.3 The Client consents to McKinnon being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by McKinnon for the following purposes and for other purposes as shall be agreed between the Client and McKinnon or required by law from time to time:
(a) provision of Goods; and/or
(b)marketing of Goods by McKinnon, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods;
and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(e) 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.
15.5 McKinnon may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
16. Building and Construction Industry Security of Payment Act 2002
16.1 At McKinnon’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payment Act 2002 may apply.
16.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 of Victoria, except to the extent permitted by the
Act where applicable.
17. General
17.1 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.
17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria and are subject to the jurisdiction of the courts of Victoria.
17.3 McKinnon 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 McKinnon of these terms and conditions.
17.4 In the event of any breach of this contract by McKinnon the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
17.5 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 McKinnon nor to withhold payment of any invoice because part of that invoice is in dispute.
17.6 McKinnon may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7 The Client agrees that McKinnon may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which McKinnon notifies the Client of such change.
17.8 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.
17.9 The failure by McKinnon to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect McKinnon’s right to subsequently enforce that provision.

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