Policies

Aqua Cooler Pty Ltd

Terms and Conditions of Sale

These terms and conditions of sale (“Terms”) apply to all Goods purchased from Aqua Cooler Pty Ltd ACN 151 215 351 (“Aqua Cooler”). Any references to “we”, “us” or “our” are references to Aqua Cooler. These Terms govern any ordering, purchase, payment, delivery, and return of Goods purchased by a customer (“you” or “your”) from us. These Terms may be updated from time to time. We suggest you regularly check this page to ensure you are aware of the most recent Terms, including before placing any new Order for any Goods.

These Terms form part of every agreement for the supply of Goods, except where a separate written supply agreement has been executed by the parties.

1. Orders and delivery
Orders
1.1 You may order Goods from us by submitting a purchase order by email or by requesting a quote through our online portal and executing or otherwise confirming written acceptance of that quote (“Order”). For the avoidance of doubt, if you reorder Goods previously provided under another Order (whether in writing or otherwise), that act of reordering will also constitute an Order for the purposes of these Terms.
1.2 Unless we have agreed to set prices for a specified period of time, all quotations lapse 30 days after issue and may be withdrawn or changed by us at any time until such time the quote is accepted.
1.3 We may, acting reasonably, accept or reject any Order for Goods in whole or in part. An Order is binding when accepted by us in writing subject to any rights we may have to cancel that Order under these Terms.
1.4 Once we have accepted an Order, you must not change or cancel an Order without our prior written consent.
1.5 We may cancel any, all or part of any Order (irrespective of whether it has been accepted or not) if an Insolvency Event occurs or if we reasonably believe that you will be unable to meet your payment obligations under these Terms.

Delivery
1.6 You must provide clear delivery instructions on your Order. We will seek to deliver the Goods to you in accordance with the delivery terms outlined in the Order.
1.7 You must ensure that someone is present to accept delivery of the Goods and the accompanying documents on your behalf, unless you authorise us to leave the delivery at the premises without someone present. Any such authority to leave must be provided by you at the time of making the Order unless we otherwise agree in writing.
1.8 Subject always to clause 4, if we are responsible for the delivery of the Goods and you authorise us to leave the delivery at the premises in accordance with clause 1.7, you accept liability and bear all risk of loss or damage to the Goods from the time they are delivered to those premises, including where the Goods are lost, stolen, damaged or otherwise affected after delivery.
1.9 We reserve the right to install and/or supply or deliver the Goods by instalments (which may occur by way of partial shipment).
1.10 Delivery dates quoted by us are estimates only. While we will use our best endeavours to meet those estimated delivery dates, we do not guarantee to do so. We will notify you as soon as practicable if we are unable to meet any delivery dates or if we are required to cancel an Order.
1.11 To the maximum extent permitted by law, we will not be liable for any losses, damages or expenses sustained by you, or any other person, due to non-delivery of the Goods or a delay in delivery of the Goods.

2. Price and Payment
2.1 The prices for all Goods advertised in any form are in Australian dollars and are exclusive of GST, unless otherwise expressly stated.
2.2 If, after an Order is accepted and before delivery of the Goods, there is a material increase in the cost to us of raw materials, freight, duties, taxes, tariffs, insurance, currency exchange, utilities or other external costs beyond our reasonable control, we may adjust the price of the Goods by giving written notice to you at least 30 days’ prior to delivery of the relevant Goods which will include a description of the reason for the adjustment in price. Any adjustment to the price must be reasonable and proportionate in order to reflect the increase we have incurred. If you disagree with any price adjustment you may cancel the relevant Order without penalty by providing written notice to us within 30 days of receipt of our notice under this clause 2.2. If we do not hear from you within this time frame, then any such price adjustment will be deemed accepted by you. Any adjusted price will be payable by you as a condition of delivery of the relevant Goods.
2.3 You must pay us the price for the Goods in accordance with the Order and these Terms without deductions or setoff.
2.4 If you request a delayed delivery date or fail to collect the Goods within the timeframe originally agreed, we may charge reasonable storage fees for holding the Goods. Storage fees will accrue at the greater of AUD $100 per calendar month or a rate of 1.5% of the Order amount (exclusive of GST) per month (calculated daily, compounding monthly) that the Goods are held in storage, whichever is the greater.
2.5 Except where the Goods are purchased by you on a Credit Account, Orders are to be paid in advance with an pro-forma invoice issued on dispatch of the Order (or as requested).
2.6 Unless otherwise agreed to during the credit application process, or for a specific project, you must pay each valid invoice within 30 days of the date on which the invoice is received by you.
2.7 If we have not received payment within 30 days after the due date on the invoice, you must pay interest on the overdue amount at the Default Interest Rate per month (calculated daily, compounding monthly), from the due date on the invoice until payment is received in full.
2.8 Without prejudice to any of our other rights or remedies at law or under these Terms, if you fail to pay any amount owing to us in full by the due date for such payment, we may suspend your account with us and/or place on hold the processing, dispatch, manufacture, installation or supply of any Goods (including under any accepted Order) until all outstanding amounts are paid in full. To the maximum extent permitted by law, we will not be liable to you for any loss or damage arising from any related suspension or delay.
2.9 Where you purchase Goods on a Credit Account, you acknowledge that any credit provided by us is offered solely for business purposes. You warrant that the Goods are acquired wholly or predominantly for business use and not for personal, domestic or household purposes. We may require you to complete a business purpose declaration to confirm this.

3. GST
3.1 All consideration to be paid or provided under these Terms are exclusive of GST, unless otherwise expressly stated. If GST applies to a supply made under these Terms and the consideration for that supply is expressed exclusive of GST, you must pay us an additional amount equal to the GST payable on the supply (“GST Amount”). The GST Amount is payable at the same time that the first part of the consideration for the supply is to be provided. Terms used in this clause 3.1 that are not defined in these Terms have the same meaning as given in the A New Tax System (Products and Services Tax) Act 1999 (Cth).

4. Title and Risk
4.1 Title to the Goods remains with us until full, unconditional payment for those Goods has been received in accordance with these Terms.
4.2 Risk in the Goods passes to you once we have delivered the Goods to you, unless you have elected to use a courier for delivery, in which case the risk in the Goods passes to you once the courier has collected the Goods from us. Without prejudice to the foregoing, if we are responsible for the installation of the Goods, then we will be responsible for the Goods during the installation and until such time as the installation has been completed.

5. PPSA
5.1 If we have supplied you with the Goods and title in the Goods has not yet passed to you, you acknowledge and agree that:
(a) these Terms constitute a security agreement for the purposes of the PPSA;
(b) you grant us a purchase money security interest (“PMSI”) under the PPSA in the Goods and their proceeds to secure all amounts that you owe to us;
(c) we may register the PMSI on the Personal Property Securities Register (“PPSR”);
(d) you will do all things necessary to provide us on request all information that we require to register a financing statement or financing change statement on the PPSR;
(e) you will not change the entity name that has entered into this agreement in any form or other details relevant to the registration on the PPSR without first notifying us in writing; and
(f) you will, if requested to by us, pay us the cost of registration and maintaining registration of your PMSI on the PPSR, within 14 days of the request.
5.2 You agree that we have the power to retain, deal with or dispose of any Goods seized by us in the manner specified in Sections 123, 125, 126, 128, 129 and 134(1) of the PPSA and in any manner we deem fit.
5.3 Without limiting clause 5.2, if an amount owing to us is not paid when due and title to the Goods has not passed to you, you irrevocably authorise us, and any person authorised by us, to enter any premises where the Goods are located during office hours, as required to inspect and / or recover the Goods. You agree to provide such assistance as may be reasonably required by us in exercising the foregoing, including with respect to the provision of access, and the locating, inspecting and recovery of the Goods. We will not be liable to you for any loss, cost or damage arising from the exercise of our rights under clause 5.2, except to the extent caused by our wilful misconduct or negligence.
5.4 You waive the right to receive a copy of any verification statement in accordance with section 157 of the PPSA.
5.5 Neither party may disclose information of the kind referred to in section 275(1) of the PPSA (unless required by law) and you must not authorise the disclosure of such information.
5.6 You appoint us the Supplier as its attorney to sign in your name all documents which we consider necessary to enforce and to protect its rights under the Terms.
5.7 You agree that to the maximum extent permitted by law:
(a) sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 132(1), 132(4), 134, 135, 142 and 143 of the PPSA do not apply and are hereby contracted out of; and
(b) you waive any right to receive notices under sections 95, 118, 121(4), 127, 130, 132(3)(d), and 132(4) of the PPSA.
5.8 You agree that you will not undertake the following without our prior written consent:
(a) register a financing change statement in respect of a security interest in favour of us; or
(b) create, or purport to create, any security interest in the Goods (or any proceeds derived from the sale of such Goods), nor register, nor permit to be registered, a financing statement or financing change statement in relation to the Goods in favour of any third party, unless title to the Goods has passed to you.
5.9 These Terms do not limit any other rights of ours, including those under Chapter 4 of the PPSA.
5.10 Unless otherwise defined in these Terms, the terms and expressions used in clauses 5.1 to 5.7 have the meanings given to them, or by virtue of, the PPSA.

6. Inspection, non-compliance and returns
6.1 You must inspect the Goods on delivery. You can only return Goods to us if the Goods fail to meet any of the consumer guarantees under Australian Consumer Law, as applicable (“Non-Compliant Goods”) in accordance with this clause 6. You must notify us in writing if you reasonably believe that we have delivered Non-Compliant Goods within 48 hours of delivery of the relevant Goods.
6.2 You must comply with any reasonable request from us in relation to the Non-Compliant Goods and provide us the opportunity to inspect the Non-Compliant Goods.
6.3 Where we agree that we have provided Non-Compliant Goods (such agreement not to be unreasonably withheld, conditioned or delayed), you may return the Non-Compliant Goods to us. You must comply with all reasonable directions provided by us, including which delivery service you must use. All returns will be handled in accordance with our published Return Policy.
6.4 We will pay transportation costs associated with the return of Non-Compliant Goods. You will be responsible for costs associated with the return of Goods if you return the Goods for any other reason not covered under clause 6.2.
6.5 Where Goods are returned for any reason other than as permitted under clause 6.1, we may charge a reasonable restocking fee to cover handling, inspection, repackaging and administrative costs. Any restocking fee may be deducted from any refund otherwise payable or charged to you separately.
6.6 To the maximum extent permitted by law and subject to clause 6.7, our liability to you in respect of any Non-Compliant Goods is limited in accordance with clause 12.1.
6.7 In addition to our Returns Policy, if you are a ‘consumer’ under the Australian Consumer Law, our Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are 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.
6.8 Where the failure is not major, we may choose to repair, replace, or refund the Goods within a reasonable time period.
6.9 Goods presented for repair may be replaced by refurbished goods of the same type rather than being repaired. Refurbished parts may be used to repair the Goods. Where we elect to repair the Non-Compliant Goods with refurbished Goods of the same type, we will issue you a repair notice indicating that we request permission from you to use refurbished parts to repair the Non-Compliant Goods.
6.10 You must comply with the requirements of any Goods recall program initiated by us or any Government Agency.

7. Your obligations
7.1 You must comply with all applicable laws and industry standards relating to the handling, storage, and use of products, including any regulatory requirements applicable to the Goods.

8. Warranties
8.1 We warrant that:
(a) the Goods comply with all applicable industry codes and relevant standards;
(b) the Goods are of acceptable quality at the time of delivery;
(c) we have all necessary licences, consents and authorisations required to supply the Goods under these Terms.
8.2 The parties acknowledge and agree that you, as the Customer have had an adequate opportunity to enquire about, and received enough information regarding, the Goods to ensure their safe use, handling and storage.
8.3 To the extent permitted by law and subject to clause 12.1, all conditions and warranties that are not expressly set out in clause 8 are excluded.

9. Confidentiality
9.1 Each party must keep the other’s Confidential Information secure and must not, without the prior written consent of the other party:
(a) disclose the Confidential Information to any other person; or
(b) use the Confidential Information for any reason other than to perform its obligations under these Terms,
except where required by law or the listing rules of any stock exchange where that party’s securities are listed or quoted, or disclosure to that party’s legal, financial or other advisors.
9.2 Each party must, upon termination or expiration of these Terms, destroy or return to the other party all copies of Confidential Information of the other in the care or control of the first party.

10. Privacy
10.1 You acknowledge and agree that we may use and deal with any personal information provided by you during the process of purchasing Goods in accordance with our Privacy Policy (available at request).

11. Intellectual Property Rights
11.1 Neither party transfers any right, title or interest in any right, title or interest in any Intellectual Property Rights in respect of the other party.
11.2 Each party is prohibited from using the other party’s Intellectual Property Rights (including but not limited to trademarks) unless authorised in writing by the party that own’s those Intellectual Property Rights.

12. Liability

12.1 To the maximum extent permitted by law, our liability under or in connection with these Terms (including for breach of a consumer guarantee under the Australian Consumer Law) is limited to (at our election):
(a) replacing the Goods;
(b) supplying equivalent Goods; or
(c) repairing the Goods.
12.2 The limitation of liability in clause 12.1 does not apply to liability:
(a) that cannot by law be limited or excluded; or
(b) for fraud; or
(c) for unlawful acts or omissions; or
(d) for personal injury or death or loss or damage to property.
12.3 Each party’s liability to the other party under these Terms will be reduced to the extent that the relevant liability, loss or damage was caused or contributed to by the act or omission of the other party or its personnel, employees, officers, contractors, subcontractors or agents. For the avoidance of doubt and to the maximum extent permitted by law, our liability to you will be reduced under this clause 12.3 to the extent that you have caused or contributed to any loss or damage because of:
(a) your misuse of the Goods;
(b) your failure to follow instructions or specifications; or
(c) the incorrect, improper or unauthorised installation of the Goods by any person other than ourselves or a person authorised on our behalf.
12.4 A party is not liable to the other party for any indirect or consequential loss, being loss that does not arise naturally (that is, according to the usual course of things) from the event giving rise to the loss.

13. Force Majeure
Neither party is liable for any delay or failure in the performance of its obligations under these Terms (other than obligations in relation to payment) to the extent such delay or failure is caused by an act of God, natural disaster, terrorism, war or other occurrence beyond the affected party’s reasonable control.

14. Applicable law
14.1 These Terms are governed by the laws of the State of Queensland, Australia. Any action or proceeding arising out of or related to these Terms or your purchase of the Goods must be brought in the courts of Queensland and you consent to the non-exclusive jurisdiction of such courts.

15. Dispute Resolution
To the extent permitted by law, if any dispute arises in connection with these Terms or the Goods supplied, the parties must first use reasonable efforts to resolve the dispute through good faith negotiations. If the dispute is not resolved within 30 days, either party may refer the matter to mediation administered in Queensland by a recognised mediation body. Except for applications for urgent injunctive or other equitable relief, neither party may commence proceedings in a court or tribunal of competent jurisdiction until the process in this term 15 has been followed. Nothing in this clause limits any rights a party may have under the Australian Consumer Law.

16. General
16.1 These Terms constitutes all the terms for the supply of the Goods from us and supersedes all previous written agreements about its subject matter, including any terms proposed by you.
16.2 We reserve the right to vary these Terms from time to time by providing at least thirty (30) days’ written notice to you. Any variation of these Terms will not apply to Orders placed prior to the effective date of the variation. If you do not agree to the variation, you may elect to not place further Orders for Goods.

17. Definitions and interpretation
17.1 In these Terms, unless the contrary intention appears:
(a) references to a person includes an individual, partnership, joint venture, association, firm or a body, whether incorporated or unincorporated;
(b) a reference to a term, part, schedule or attachment is a reference to a term, part, schedule or attachment to these Terms;
(c) a reference to a legislation or other law includes delegated legislation and consolidations, amendments, re-enactments or replacements of any of them;
(d) a reference to any of the words “include”, “includes” and “including” is read as if followed by the words “without limitation”;
(e) a reference to a document includes all amendments, supplements, replacements or novations of that document; and
(f) a reference to any party includes that party’s executors, administrators, substitutes, successors and permitted assigns.

17.2 In these Terms, the words below have the following meanings:
Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Confidential Information means information of a party, however held or recorded:
(a) relating to this agreement;
(b) relating to the business and affairs of that party;
(c) relating to the customers, clients, employees, subcontractors or other persons doing business with that party;
(d) which is by its nature confidential;
(e) which is designated as confidential by that party; or
(f) which the other party knows or ought to know, is confidential,
and all trade secrets, knowhow, financial information and other commercially valuable information of that party.

Credit Account means an arrangement (if any) approved (and not withdrawn) by us that permits you to pay for Goods after delivery such as by way of the Credit Application Form.

Credit Application Form means the form which must be completed and submitted by you, and includes business details, financial information, trade references, declarations, and (if applicable) a Directors’ Guarantee, as required by us for the assessment and approval of a Credit Account.

Default Interest Rate means the daily buying rate displayed at or about 10.30am (Brisbane time) on the Reuters screen BBSW page for Australian bank bills of a 90-day duration (or if that daily buying rate is no longer published, such other daily rate as the parties may agree) plus 1%.

Goods means the physical items, products, equipment, materials, or components supplied by us under these Terms.

Government Agency means any national, state, provincial, municipal or local government, administrative or regulatory body, agency or department, court, tribunal, arbitrator or any body that acts under authority of the law to exercise the function of a regulator.

GST means the products and services imposed in Australia by A New Tax System (Products and Services Tax) Act 1999 (Cth).

Insolvency Event means, in relation to a party, that a party is unable to pay their debts as and when they fall due, is placed in liquidation or is otherwise deemed or presumed by law or a court to be insolvent, voluntary administration, enters into a Deed of Company Arrangement, or is placed into bankruptcy either voluntarily or by sequestration order

Intellectual Property Rights means all industrial and intellectual property rights including current and future registered and unregistered rights in respect of copyright, trade marks, designs, circuit layouts, domain names, trade secrets, know-how, confidential information, plant breeders rights, moral rights, patents, invention and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World
Intellectual Property Organisation 1967.

Non-Compliant Goods has the meaning given in clause 6.1.

Order has the meaning given in clause 1.1.

PPSA means the Personal Property Securities Act 2009 (Cth).

18.Contact us
18.1 If you have any queries in relation to these Terms, please contact us at:
Email: [email protected]
Phone: 1300 278 226