Terms of Trade
[Last update 22 June 2020]
When you read words that refer to the names of our website, “ACD Trade”, “us”, “our” or “we”, it means Airconditioning Direct Pty Ltd ABN 48 100 354 461 trading as ACD Trade, PO Box 35, North Lakes Queensland, 4509.
Thank you for ordering through ACD. These are the terms and conditions upon which we supply the products, services or goods you have ordered (‘order’).
1 Binding Agreement
1.1 This agreement, together with any of our other terms (for example finance terms, credit terms or guarantee terms), is the entire agreement between us. Any other material, including terms and conditions attached to a customer purchase order we receive from you, are expressly rejected and will have no force or effect.
1.2 This agreement may be entered into electronically or in hard copy.
1.3 The agreement is with the account holder, with no requirement on us to ensure that the person completing the order through the account has the authority to do so.
1.4 By entering into this agreement, you warrant you have the authority to do so.
1.5 This agreement is binding on you when you:
(a) electronically check a box agreeing to these terms; or
(b) proceed with your order (after being provided with the terms of this agreement) by paying to us the deposit amount or full amount for your products, or by applying for credit or finance.
2.1 Any quote or price list provided by us will be valid for 30 days only. You may accept a price or quote by paying to us the deposit or the full amount during that period. Orders placed after that time will be invoiced in accordance with the most up to date price list or will require a new quote.
2.2 Unless otherwise stated, amounts shown are in AUD$ and are exclusive of GST and you agree to pay an additional amount for GST at the rate currently prescribed by law.
2.4 You agree to pay our invoices or credit statements when due.
2.5 You agree we may on-charge to you and you will pay any credit card surcharge amount charged to us by your payment provider for payments made by credit card.
2.6 If you hold a credit account with us, payment of your end of month credit balance in full is due 30 days from the end of month.
2.7 If you are in default in payment under the terms of this agreement, you agree to pay:
(a) interest on the overdue amount from the due date at a rate that is equivalent to the then current Bank of Queensland Overdraft Other Security Base Rate plus 2%; and
(b) our costs of enforcing our rights under this agreement including debt collection fees and legal costs (on a solicitor and own client basis) if we need to enforce payment by you of the amounts you owe.
3 Risk and Delivery
3.1 Your order is available for collection from the warehouse where you place your order or as nominated by you in your order online. We will ask you to acknowledge receipt of your order by paper or electronic signature.
3.2 Products are provided on a “ex-works” basis. Risk in your order passes to you upon collection from our warehouse premises, whether by you or a third-party delivery service if you ask us to arrange delivery. This means that any damage caused in the loading, transit or unloading process is your responsibility.
3.3 Delivery may be arranged at an additional cost.
3.4 Where you have asked us to arrange delivery:
(a) We provide an estimated delivery date only. The actual delivery date may be beyond our control and we are not liable for any delays that may occur.
(b) We are not liable to you or your customer for any loss or consequential loss you or your customers may suffer because of non-delivery or delayed delivery.
(c) If you want to change the delivery address from the one provided when you placed your order, you must advise of this change in writing at least 14 days before the estimated delivery date or you may incur additional delivery fees.
(d) If you ask us to delay the delivery date past the estimated delivery date, we may be able to accommodate your request, however you may incur additional fees for us to store your order before delivery.
(e) To allow for a safe and smooth delivery, you must provide clear access for delivery purposes at the delivery address and, at your expense, all necessary assistance for unloading of the order. If the delivery site is not suitable or unloading capacity not sufficient, you may incur additional delivery fees for re-delivery.
(f) If you or your nominated representative are not at the site at the time of delivery, then the signature of the transport driver, or any other person at the site accepting delivery on your behalf, will be sufficient evidence of delivery of the complete order.
(g) If you or your nominated representative are not at the site at the time of delivery, or access to the site is limited (in the opinion of the driver), then the delivery driver will return the order to the depot unless you have previously completed an Authorisation to Leave request. You agree you will accept this decision.
4 Shortages, Errors, and Damage
4.1 It is your responsibility to carefully check the order when it is collected or delivered to make sure it is complete and undamaged. We will ask you to acknowledge receipt of your order by paper or electronic signature.
4.2 You have a period of 48 hours from collection to notify us in writing if the order or any part of the order is damaged, missing or incorrect. If you do not notify us within that time, you are deemed to have accepted the order as is.
4.3 Where you claim a product is damaged, we will only accept responsibility for damage occurring before collection, which may not be obvious until opening the packaging and pre-installation. We are not responsible for damage occurring during installation.
4.4 We reserve the right to check and rely on our warehouse CCTV footage or other image recordings for evidence of the condition of any product pre-collection if we dispute your claim, and will rely on your signed acknowledgment of receipt to demonstrate that you received everything you paid for.
4.5 Refunds and Returns
4.6 You may return a product, other than a special order (non-stock) product, in its original packaging within 7 days for a refund. You will be refunded the purchase price paid for the product, less a 10% restocking fee.
4.7 Any other product may only be returned for refund or replacement in accordance with clauses 8 and 9 below.
4.8 If you have placed an order and paid a deposit then change your mind, you may cancel the order before collection or delivery and where the product:
(a) was a special order of something we do not usually keep in stock, you will forfeit the deposit and incur any restocking charge levied on us by our supplier should this be in excess of the deposit; or
(b) is a product we usually keep in stock we will refund the deposit less a 10% restocking fee.
5 Title of goods and Personal Property Securities Act (PPSA)
5.1 In this clause 7:
(a) PPSA means the Personal Property Securities Act 2009 (Cth).
(b) PPSR means the Personal Property Security Register https://www.ppsr.gov.au/.
(c) Security interest, financing statement, financing charge, control and all have the meaning given to them in the PPSA.
(d) Ownership in the products purchased does not pass to you (or your customer) until you have paid in full all amounts owing by you under this agreement including the purchase price, delivery fees, interest and other charges, including enforcement costs if applicable.
5.2 When you enter into a credit arrangement with us, you acknowledge and agree that these terms and conditions form a security agreement for the purpose of the PPSA and create our security interest in:
(a) all products previously provided by us to you; and
(b) all products that will be supplied by us to you in the future.
(c) You agree we may protect our right to payment in full for the products provided to you, and any other amounts due from you to us pursuant to this agreement, by registering our security interest on the PPSR over “all present and after acquired property - exceptions - HVAC and electrical products”, or in any other way we register our interest.
5.3 You agree to promptly do anything (such as obtaining consents, signing and producing documents, getting documents completed and signed and supplying information) we ask for which is reasonably necessary for the purpose of:
(a) ensuring that our security interest is effective, enforceable and perfected; or
(b) enabling us to apply for any registration, or give any notification in connection with the security interest so that the security interest has the priority for payment required by us; or
(c) enabling us to exercise rights in connection with our security interest.
(d) You agree:
(e) to provide at least 10 business days’ notice of any change to your business name, or any other information which might affect the details recorded by us in an application for PPSR registration; and
(f) not to change your place of business to a jurisdiction outside of Australia.
(g) Each party must pay their own costs of fulfilling their obligations under this clause 7, and neither party will be responsible for any costs or expenses incurred or payable by the other party in relation to registering, maintaining or releasing any security interest, financing statement or financing change statement or giving any notice in relation to a security interest. For avoidance of doubt, this clause specifically excludes any interest or enforcement costs incurred by us, which we are entitled to seek from you.
5.4 The parties agree that to the extent they may be excluded by law:
(a) we do need give you the notices referred to in sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4) or other provision of the PPSA notified to you by us after the date of our credit arrangement; and
(b) neither we nor any receiver need give any notice required under any provision of the PPSA except as required under section 135.
(c) This clause applies despite any other clause in this agreement or related agreement.
5.6 All products are supplied subject to the manufacturer’s warranty only and are limited in time as specified by the manufacturer. We do not offer any extended warranty. We can refer you to the supplier’s warranty team if there is a problem.
5.7 All ACD Trade branded products are supplied with a 12-month defects warranty.
5.8 Clauses 8.1and 8.2 are warranties against defects and those warranties cannot be excluded under the Australian Consumer Law (ACL). You are entitled:
(a) to a replacement or refund for a major failure, and compensation for any other reasonably foreseeable loss or damage; and
(b) 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 Limitation of Liability
6.1 If you order goods on behalf of your customer, your relationship with your customer is your responsibility. Your customer has no agreement with us, and we have no obligations to your customer.
6.2 Notwithstanding clause 8.3, we limit our liability for major or minor failures in any product provided to you (at our election as allowed by section 64A of the ACL) to:
(a) replacement of the product or part of the product; or
(b) refund to you of the unit cost of the product or part of the product.
(c) In all other circumstances, to the fullest extent permitted by law, and without limiting the application of the ACL, you agree the total aggregate liability to us for any claim(s) by you in respect of any product or service we provide to you, together with any other claim arising out of this agreement, is limited to the total amount paid by you to us for that product or service.
6.3 This limitation of liability survives any termination or expiration of this agreement, or your use of our services or goods.
6.5 Jurisdiction - This agreement if governed by the laws of the State or Territory from which these terms are sent from by ACD Trade and each party irrevocably submits to the exclusive jurisdiction of the courts of that State or Territory.
6.6 Validity - If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed replaced by a valid, enforceable provision that most closely matches the intent of the original provision, and the remainder of the terms and conditions will continue in effect.
6.7 Clerical errors – If we make a mistake in the typing or otherwise on the quote, acceptance offer, emails, delivery note or specifications, you agree that we may correct the error.
6.8 Force majeure – We will not be liable for any delay or failure to perform all or part of our obligations under this agreement where the delay or failure is caused by or contributed to by an event or cause beyond our reasonable control.
6.9 Relationship - We are providing services to you as an independent contractor and nothing in this agreement should be interpreted to suggest otherwise.
6.10 Assignment – we may assign our interests under this agreement without prior notice to you. You may not assign your interests under this agreement without our prior written permission.
6.11 No Waiver – Any time or other indulgence granted by us will not in any way amount to a waiver of any of our rights or remedies under this agreement.