1.Definitions

1. “JTP” means JTP Refrigeration & Air PTY LTD, its successors and assigns or any persons acting on behalf of and with the authority of JTP

2. “Client” means 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.

3. “Goods” means all Goods or Services supplied by JTP to the Client at the Client’s request from time to time (where the context so permits the term ‘Goods’ or ‘Services’ shall be interchangeable for the other).

4. “Documentation” means ant documents, designs, drawings or other materials provided, utilised or created incidentally by JTP in the course of it conducting, or providing to the Client, any Services.

5. “Price” means the Price payable for the goods as agreed between JTP and the Client in accordance with clause 4 Below.

 

2.Acceptance

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. These terms and conditions may only be amended with JTP’s consent ion writing and shall prevail to the extent of any inconsistency with any other document or agreement with the client and JTP

3. The client acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, JTP reserves the right to vary the Price with alterative Goods as per clause 4.2.

4. Notwithstanding clause 2.3 the Seller also reverses the right at their discretion to introduce additional new Goods as part of the goods to be supplied.

 

3.Change in Control

1. The Client Shall give JTP 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 JTP as a result of the Clients failure to comply with the clause.

 

4.Price and Payment

1. At JTP sole discretion the Price shall be either:

   1. as indicated on any invoice provided by JTP to the Client; or

   2. the price as at the date of delivery of the Goods according to JTP’s current price list; or

   3. JTP’s quoted price (subject to cluse 4.2) which will be valid for the period stated in the quotation or otherwise for a period of (30) days.

2. JTP reserves the right to change the price if a variation to JTP’s quotation is requested. Any variation from the plan of scheduled Services or specifications of the Goods (including, but not limited to, any variation as a result of increase to JTP in the cost of taxes, levies, materials and labour or where additional; services are required due to the discovery or hidden or unidentified difficulties including but not limited to, poor weather conditions, limitations to accessing the site, hard rock barries below the surface or iron reinforcing rods in concrete, obscured building defects, safety considerations, prerequisite work by any third party not being completed or hidden pipes and wiring in walls ect which are only discoverable on commencement of the services) will be charged for on the basis of JTP’s quotation and will be shown on as variations on the invoice.

3. At JTP’s sole discretion a non- refundable of may be required.

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 JTP which may be;

   1. On completion of the Services;

   2. Before delivery of the goods;

   3. By way of instalments/progress payment in accordance with JTP’s schedule;

   4. Fourteen (14) days following end of month in which a statement is posted to the Clients address or address for notice;

   5. The date specified on any invoice or other form as being the date for payment; or

   6. Failing any invoice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by JTP.

5. Payment may be mad e 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 methods agreed to between the Client and JTP.

6. Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to JTP an amount equal to any GST JTP must pay for any supply by JTP under this or any other agreement for the sale of the Goods. The Client must pay GST, without deductions or set off 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 the Price except where they are expressly included in the Price.

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5.Delivery

1. Subject to clause 5.2 it is JTP’s responsibility to ensure that the Services start as soon as it is responsibly possible.

2. The Services commencement date will be put back and/or the completion date extended by whatever date is reasonable in the event that JTP claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond JTP’s Control, including but not limited to any failure by the client to:

   1. Make a selection; or

   2. Have the site ready for the services; or

   3. Notify JTP that the site is ready

3. Delivery (“Delivery”) of the Goods is taken to occur at the time JTP (or JTP’s nominated carrier) delivers the Goods to the Clients nominated address even if the Client is not present at the address.

4. At JTP’s sole discretion the cost of delivery is either included in the price or is in addition to the Price.

5. 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 JTP shall be intitled to charge a reasonable fee for redelivery and/or storage.

6. JTP may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provision in these terms and conditions.

7. Any time or date given by JTP to the Client is an estimate only. The Client must still accept delivery of the goods even if late and JTP will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.

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6.Risk

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.

2. If any Goods are damage or destroyed following delivery but prior to ownership passing to the Client, JTP is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by JTP is sufficient evidence of JTP’s rights to receive the insurance proceeds without the need of any person dealing with JTP to make further inquiries.

3. If the Client request JTP to leave Goods outside JTP’s premises for collection or to deliver the Goods to an unattended location, then such goods shall be left at the Clients sole risk.

4. Where the Goods are to be installed on a tilled roof JTP gives no guarantee (expressed or implied) against crazing, cracking, chipping or scratching that may occur that is beyond JTP’s control due to the nature of the product at the time of installation of the Goods. JTP will repair any damage to the tiles to a reasonable standard therefore JTP recommends that the Client allows for extra tiles for such breakages. JTP will not be held accountable for obtaining replacement tiles.

5. All work will be tested to ensure that it is electrically safe and in accordance with the wiring rules and other standards applying to the electrical installation under the electrical safety regulations. All the cabling will comply with the Australian wiring standards

6. The Client warrants that any structures to which the Goods are to 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 cables) 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), JTP reasonably forms the option that the Client ‘s premises is not safe for the installation of Goods to proceed then JTP shall be entitled to delay installation of the Goods (in accordance with the provisions of clause 5.2 above) until JTP is satisfied that it is safe for installation to proceed.

7. Where the Client has supplied Goods for JTP to complete the Services, the Client acknowledges that he/she accepts responsibility for the suitability of purpose, quality and any faults inherent in the Goods. JTP shall not be responsible for any defects in the Goods, any loss or damage to the goods (or any part thereof), howsoever arising from the use of Goods supplied by the Client.

8. The Client acknowledges that JTP is only responsible for parts that are replaced by JTP, and in the event that parts other parts/Goods, subsequently fail, the Client agrees to indemnify JTP against any loss or dam age of the Goods, or caused by the Goods, or any part thereof howsoever arising.

9. Prior to JTP commencing any work the Client must advise JTP of the precise location of all underground services on the site and clearly mark the same. Whilst JTP will take all care to avoid damage to any underground services that the Client agrees to indemnify JTP 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.

 

7.Specifications

1. The Client acknowledges that:

   1. All descriptive specifications, illustrations, drawings, data, dimensions, and weights stated in JTP’s fact sheets, price lists or advertising material, are approximate only and are given by way of dentification only. The Client shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of a contract, unless expressly stated as such in writing by JTP;

   2. While JTP may have provided information or figures to the client regarding the performance of the Goods, the Client acknowledges that JTP have given these in good faith, and are estimated on Clean Energy Council (CEC) prescribed estimates. The energy generation may be less than estimates due to factors out of JTP’s control (including, but not limited to, hours of sunlight, cloud cover, weather pattens, the location (geographical or otherwise) of the goods and location of surrounding structures and flora;

   3. Some buildings may not have the optimum orientation for the installation of the Goods or components, and therefore understands and accepts that the Goods performance may be compromised in such situations

2. The Client shall be responsible for ensuring that the Goods ordered are suitable for their intended use.

3. JTP reserves the right to substitute comparable Goods (or components of the Goods), and in all such cases JTP will notify the Client in advance of any such substitution the Client acknowledges that some building may not have the optimum orientation for the installation of the Goods or Components and therefore understands and accepts that the Performance may be compromised.

 

1. The Client acknowledges that some buildings may not have the optimum orientation for the installation of the Goods or components and therefore understand and accepts that the goods performance may be compromised in such situation. Notwithstanding the former JTP will use Its best endeavours to install and position the Goods to maximise orientation and exposure to direct sunlight.

8Accuracy of Customers Plans and Measurements

1. JTP shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, JTP accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.

2. In the event the Client gives information relating to measurements and quantities of the Goods required to complete the Services, it is the Client's responsibility to verify the accuracy of the measurements and quantities, before the Client or A places an order based on these measurements and quantities. JTP accepts no responsibility for any loss, damages, or costs however resulting from the Client's failure to comply with this clause.

 

9.Access

1. The Client shall ensure that JTP has clear and free access to the work site at all times to enable them to undertake the Services. JTP 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 JTP.

 

10.Compliance with Laws

1. The Client and JTP 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.

2. The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services

3. The Client agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.

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11.Title

1. AA and the Client agree that ownership of the Goods shall not pass until:

   1. the Client has paid JTP all amounts owing to JTP; and

   2. the Client has met all of its other obligations to JTP.

2. Receipt by JTP 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.

3. It is further agreed that:

   1. until ownership of the Goods passes to the Client in accordance with clause 11.1 that the Client is only a bailee of the Goods and must return the Goods to JTP on request.

   2. The Client holds the benefit of the Client's insurance of the Goods on trust for AA and must pay to JTP the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.

   3. 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 JTP and must pay or deliver the proceeds to JTP on demand.

   4. 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 JTP and must sell, dispose of or return the resulting product to JTP as it so directs.

   5. the Client irrevocably authorises JTP to enter any premises where A believes the

   6. Goods are kept and recover possession of the Goods.

   7. A may recover possession of any Goods in transit whether or not delivery has occurred.

   8. 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 JTP.

   9. JTP may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

 

12Personal Property Securities Act 2009 ("PPSA")

1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

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 JTP to the Client.

3. The Client undertakes to:

   1. 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 JTP' may reasonably require to;

      1. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;

      2. register any other document required to be registered by the PPSA; or (if) correct a defect in a statement referred to in clause 12.3(a)(i) or 12.3(a) (i);

   2. indemnify, and upon demand reimburse, JTP 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;

   3. not register a financing change statemen t in respect of a security interest without the prior written consent of JTP;

   4. Not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of the third party without the prior written consent of JTP.

consent of JTP;

1. immediately advise JTP 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.

2. JTP 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.

3. The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

4. The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

5. Unless otherwise agreed to in writing by JTP, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.

6. The Client must unconditionally ratify any actions taken by JTP under clauses 12.3 to

7. Subject to an 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.

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13.Security and Charge

1. In consideration of JTP agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) In a land. realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment or any money).

2. The Client indemnifies JTP from and against all JTP's costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising JTP's rights under this clause.

3. The Client irrevocably appoints JTP and each director of JTP as the Client's true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Client's behalf.

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14.Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

1. The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify JTP 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 a s reasonably possible after any such defect becomes evident. Upon such notification the Client must allow JTP to inspect the Goods.

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).

3. JTP acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

4. Except as expressly set out in these terms and conditions or in respect of the Non- Excluded Guarantees, JTP makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. JTP's liability in respect of these warranties is limited to the fullest extent permitted by law.

5. if the Client is a consumer within the meaning. of the CCA, JTP's liability is limited to the extent permitted by section 64A of Schedule

6. If JTP is required to replace the Goods under this clause or the CCA, but is unable to do so, Ad may refund any money the Client has paid for the Goods.

7. If the Client is not a consumer within the meaning of the CCA, JTP's liability for any defect or damage in the Goods is

   1. Limited to the value of any express warranty or warranty card provided to the Client by JTP at JTP's sole discretion

   2. Limited to any warranty to which JTP is entitled, if JTP did not manufacture the Goods;

   3. otherwise negated absolutely.

8. Subject to this clause 14, returns will only be accepted provided that:

   1. the Client has complied with the provisions of clause 14.1; and

   2. JTP has agreed that the Goods are defective; and

   3. the Goods are returned within a reasonable time at the Client's cost (if that cost is not significant); and

   4. the Goods are returned in as close a condition to that in which they were delivered as is possible

9. Notwithstanding clauses 14.1 to 14.8 but subject to the CCA, JTP shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

   1. the Client failing to properly maintain or store any Goods;

   2. the Client using the Goods for any purpose other than that for which they were

   3. Fine Client continuing the use of any Goods after any defect became apparent or should

have become apparent to a reasonably prudent operator or user;

1. the Client failing to follow any instructions or guidelines provided by JTP;

2. fair wear and tear, any accident, or act of God.

3. Notwithstanding anything contained in this clause if JTP is required by a law to accept a return then JTP will only accept a return on the conditions imposed by that law.

 

15.Intellectual Property

1. Where JTP has designed, drawn oe developed Documentation for the Client (including but not limited to, reports, specifications, bills of quality, schedules, calculations and other documents), then the copyright in those designs, drawings and documentation shall remain the property of JTP.

 

1. If the Client is in breach of an obligation under these terms and conditions (including those relating to payment), JTP may revoke the licence referred to In clause 15.2.

2. Unless expressly agreed by JTP, no third party may rely upon any Documentation provided under this agreement for any other project, and the Client indemnifies JTP from an unlicensed use of, or reliance on, said Documentation for that purpose.

3. The Client warrants that all designs, specifications or instructions given to JTP will not cause JTP to infringe any patent, registered design or trademark in the execution of the Client's order and the Client agrees to indemnify JTP against any action taken by a third party against JTP in respect of any such infringement.

4. The client agrees that JTP may (at any cost), use for the purposes of marketing or entry into any competition, any Documentation which JTP has created for the Client. into any competition, any Documentation which A has created for the Client.

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16.Default and Consequences of Default

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 JTP's sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

2. If the Client owes JTP any money the Client shall indemnify JTP from and against all costs and disbursements incurred by JTP in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, JTP's contract default fees, and bank dishonour fees).

3. Without prejudice to any other remedies JTP may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions JTP may suspend or terminate the supply of Goods to the Client. JTP will not be liable to the Client for any loss or damage the Client suffers because JTP has exercised its rights under this clause.

4. Without prejudice to JTP’s other remedies at law JTP shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to JTP. shall, whether or not due for payment, become immediately payable if:

   1. any money payable to JTP becomes overdue, or in JTP's opinion the Client will be unable to make a payment when it falls due;

   2. 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

   3. a receiver. manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

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17.Cancellation

1. JTP 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 JTP shall repay to the Client any money paid by the Client for the Goods. JTP shall not be liable for any loss or damage whatsoever arising from such cancellation.

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 JTP as a direct result of the cancellation (including, but not limited to, any loss of profits).

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.

 

18.Dispute Resolution

1. If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:

   1. referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and

   2. conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.

 

19.Privacy Act 1988

1. The Client agrees for JTP to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by JTP.

2. The Client agrees that JTP may exchange information about the Client with those credit providers and with related body corporates for the following purposes:

   1. to assess an application by the Client; and/or

   2. to notify other credit providers of a default by the Client; and/or

   3. 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

   4. to assess the creditworthiness of the Client including the Client's repayment history in the preceding two years.

3. The Client consents to JTP being given a consumer credit report to collect overdue payment on commercial credit

4. The Client agrees that personal credit information provided may be used and retained by JTP for the following purposes (and for other agreed purposes or required by):

   1. the provision of Goods; and/or

   2. analysing, verifying and/or checking the Client's credit, payment and/or status in relation to the provision of Goods; and/or

   3. Processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client, and/or

   4. enabling the collection of amounts outstanding in relation to the Goods.

 

1. JTP may give information about the Client to a CRB for the following purposes:

   1. to obtain a consumer credit report;

   2. allow the CRB to create or maintain a credit information file about the Client including credit history.

2. The information given to the CRB may include:

1. personal information as outlined in 19.1 above;

2. name of the credit provider and that JTP is a current credit provider to the Client;

3. whether the credit provider is a licensee;

4. type of consumer credit;

5. details concerning the Client's application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested); advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and JTP has been paid or otherwise discharged and all.

 

20.General

1. The failure by JTP to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect JTP'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.

2. These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland in which JTP has its principal place of business, and are subject to the jurisdiction of the Brisbane Courts in that state.

3. Subject to clause 14 JTP shall be under no lability 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 JTP of these terms and conditions (alternatively JTP's liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).

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 JTP nor to withhold payment of any invoice because part of that invoice is in dispute.

5. JTP may license or sub-contract all or any part of its rights and obligations without the Client's consent.

6. The Client agrees that JTP may amend these terms and condition at any time. If JTP makes a change to these terms and conditions, then that change will take effect from the date on which JTP notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for JTP to provide Goods to the Client.

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.

8. The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorizations to allow it to do so. it is not insolvent and that this agreement creates binding and valid legal obligations on it.