Terms & Conditions
The following words shall have the meanings as set out herein:
PH: (08) 6142 7011
MOB: 0416 971 132
PO BOX: 1864, Malaga WA 6090
ABN: 77 619 629 953
1.1 “Agreement” shall mean this document and any written undertaking, agreement, and Order signed by the Supplier and where applicable shall mean any agreement between the Customer and the Supplier for the payment of the Price.
1.2 “Customer” means any person or corporation to whom Services are supplied by the Supplier, and includes any person acting on behalf of or with the actual or ostensible authority of the Customer and shall also include the person or entity named in the Order or this Agreement where the actual person to whom the Services or Goods are supplied may differ;
1.3 “Goods” shall mean all fixtures, fittings or chattels of the Supplier, supplied or delivered to the Customer of any nature whatsoever, including any materials used in connection with the Goods, and notwithstanding that the Goods are delivered to the Customer who takes possession thereof the Goods shall remain as a chattel of the Supplier until fully paid for by the Customer and shall not be fixed or deemed to be fixed permanently to any premises so as to form part of the land but shall remain to be removable irrespective of the manner of fixing.
1.4 “Guarantor” is the person(s), or entity, who by signing this document hereby agrees to be liable for the debts of the Customer in terms of this Agreement and who shall thereby be a party to this Agreement as being personally liable for the performance of all obligations of the Customer.
1.5 “Order” shall mean the written acceptance of a Quotation provided to the Customer by the Supplier, and such written acceptance maybe by an electronic message or e-mail and by a composite written or electronic set of communications;
1.6 “Price” shall mean the total amount stated in the Quotation and as invoiced to the Customer and shall be exclusive of GST and other taxes and statutory charges that may be due to any authority or body;
1.7 “Quotation” shall mean a written quotation of the Supplier for the supply of goods and services to be supplied to the Customer.
1.8 “Supplier” means Travis Robert Barham trading as At Temp Refrigeration Services Pty Ltd ABN 77 619 629 953;
1.9 “Services” shall mean the provision of services by the Supplier, his employee’s agents, or representatives as well as the provision of any goods related to the provision of services.
1.10 “Terms and Conditions” means the terms and conditions of supply set out in this Agreement and any special terms and conditions agreed to in writing by the Supplier.
2.1 These Terms and Conditions shall apply to the supply of all Services or Goods by the Supplier to the Customer and shall prevail over any other documentation or written or verbal communication between the Supplier and the Customer.
2.2 These Terms and Conditions together with the Supplier’s written Quotation and the Order shall form this Agreement
2.3 Any Order requested by the Customer is deemed to be an Order incorporating these Terms and Conditions and may not be varied or altered unless expressly agreed to by the Supplier in writing.
2.4 If an inconsistency exists and/or arises between these terms and any written communication between the Supplier and the Customer it is acknowledged that these Terms and Conditions will prevail.
3. PLACEMENT OF ORDERS
3.1 Orders placed by the Customer will be considered valid when the Order is placed with the Supplier in writing before the expiry of the Quotation.
3.2 The Customer must provide the Supplier with a duly signed Order before any Goods or Services are provided.
3.3 Any Quotation issued by the Supplier shall expire thirty (30) days after the date of issuing but shall be subject to any price variation in the costs of materials that may have occurred since the quotation was delivered to the Customer and before acceptance of the Offer, and the Supplier shall not be bound by the Quotation and may vary the price before acceptance of the quotation provided that the Supplier may withdraw any Quotation if it is not accepted in writing notwithstanding that 30 days have not expired;
3.4 All prices are based on manufacturer pricing, ruling taxes, and statutory charges current at the time of the acceptance of the Order. Should any taxes or statutory charges vary during the period from the date of the Quotation to the date of the invoice, the difference will become the responsibility of the Customer and the Customer will be invoiced for the extra charge of all manufacturer supply increases, taxes, and statutory charges due by the Supplier. Should the manufacturer’s price vary at the time of the placement of the Order then the Supplier shall be entitled to increase the price by the amount the manufacturer’s price has been increased, and if the Customer does not agree to the manufacturer’s increase in the price of supply then the Supplier may terminate this agreement and the Supplier shall not be liable to the Customer for any loss whatsoever.
3.5 Where an Order is placed by or on behalf of a third party, corporation, or entity then the person signing this Agreement shall assume responsibility and be bound personally as Guarantor for the performance of all obligations of the Customer under this Agreement.
4.1. At the Supplier’s sole discretion, the Price shall be either:
4.1.1. as detailed on invoices provided by the Supplier to the Customer in respect of Goods and or Services supplied; or
4.1.2. the Supplier’s quoted Price; or
4.1.3. in the event of any increase in taxes, statutory charges of the manufacture’s cost, the Price for the Order.
4.2. The Supplier reserves the right to change the Price in the event of a variation by the Customer to the Supplier’s Order, and a notice of any such variation will be provided in writing by the Supplier to the Customer before the rendering of the Service or supply of any Goods.
5. SUPPLY AND DELIVERY OF GOODS
5.1. The Supplier reserves their right to:
5.1.1. Decline requests for any Goods or services requested by the Customer.
5.1.2. Cancel or postpone the delivery of goods or services at the discretion of the Supplier.
5.2. Delivery of the Goods and services shall be deemed to be complete when the Goods or services are delivered to the Customer or to the place of installation or rendering of services or delivery of Goods as nominated by the Supplier and/or Customer.
5.3. Unless specified by the Supplier to the contrary in the Order, the Supplier does not warrant that it will be capable of providing the Goods or Services at specific times requested by the Customer during the term of this Agreement.
5.4. Subject to otherwise complying with his obligations under this Agreement, the Supplier shall exercise his independent discretion as to his most appropriate and effective manner of providing the Goods or Services and of satisfying the Customer’s expectations of those Goods or Services.
5.5. Nothing in this Agreement shall affect the Supplier’s right to exercise his own judgment and to utilize his skills as he considers most appropriate in order to achieve compliance with his obligations under this Agreement.
5.6. The Supplier may agree to provide, on request from the Customer, additional Goods or services not included or specifically excluded in the Quotation/Order and may vary the original Order and the Supplier shall be entitled to make additional charges or costs for such variations.
5.7. Additional Goods and services include but are not limited to alterations, amendments, and any additional services, quotations, evaluations, and site inspections by the Supplier after the provision of the Services or Goods at the request of the Customer.
5.8. The Customer is responsible for ensuring that the Goods are secured and accepts risk thereto once the Goods have been delivered to the Customer and the Customer accepts and warrants to be responsible for any loss, damage, or theft of the Goods delivered by the Supplier to the Customer; 5.9. Any variation to these Terms and Conditions shall be of no force or effect unless agreed in writing by the Supplier.
6. PRICE AND PAYMENT
6.1 Payment of the Price shall be due on the presentation of an invoice by the Supplier to the Customer.
6.2 Payment shall only be made in a manner as stipulated by the Supplier.
6.3 In the event of the Customer not paying the Price on presentation of the invoice, and notwithstanding that the Supplier may have permitted the delay in the payment of the Price or payment in installments, then notwithstanding any other rights of the Supplier to recover any amount due by the Customer, the outstanding amount that is in arrears and due to the Supplier will incur interest at a rate of 3% above the ruling overdraft rate of the Supplier’s bank; and
6.4 Ownership of all Goods shall remain that of the Supplier until all amounts owing by the Customer to the Supplier have been paid in full; and
6.5 The Customer agrees to pay all legal costs of the Supplier in any legal proceedings that may arise from or relate to this Agreement or the recovery of any amount due to the Supplier and the Customer agrees to pay such costs on demand at the rate charged by the Supplier’s lawyers on a client and lawyer scale of fees,
6.6 The Customer shall not be entitled to deduct or set off any amount against the Price or amount on the invoice due to the Supplier or to withhold payment for any reason whatsoever,
6.7 Where the Supplier renders any Goods or Services to the Customer then all amount due shall be paid by cash on presentation of an invoice provided that the Supplier may offer a facility to the Customer to pay the Price in installments and on such terms and on such conditions as the Supplier may from time to time agree to with the Customer; and
6.8 The granting of any indulgence to the Customer to pay the Price in installments shall be at the sole and absolute discretion of the Supplier,
6.9 Where an installment payment of the Price is granted by the Supplier to the Customer then in all such cases:
6.9.1 While the risk in Goods shall pass on delivery or supply to the Customer of the Goods and services, all legal and equitable title in the Goods shall remain with the Supplier until payment of all amounts due to the Supplier by the Customer have been paid in full.
6.9.2 Until full payment of all amounts due to the Supplier has been paid by the Customer to the Supplier then the Customer shall hold the Goods as bailee for the Supplier and shall immediately return the Goods to the Supplier if so required;
6.9.3 The Customer agrees to hold the Goods at the Customer’s risk and the Customer is liable to compensate the Supplier for all loss or damage sustained to the Goods while they are in the Customer’s possession and
6.9.4 The Customer shall be liable to the Supplier for loss in value resulting from the supply, depreciation, and wear and tear to the Goods;
6.9.5 The Customer hereby in return for the grant of a delay in the payment of the Price by the Supplier irrevocably authorizes the Supplier to enter the premises where Goods are held by the Customer without liability for trespass or any resulting damage in retaking possession of the Goods and to hold the Goods until all amounts due and owing to the Supplier have been paid in full by the Customer.
6.9.6 The Customer hereby irrevocably agrees that the Supplier has an interest and security in the Goods may produce this Agreement to register his legal and equitable interest of the Goods as a secured party in accordance with the provisions of the Personal Property Securities Act 2009 (Cth) (the PPS register).
6.9.7 In the event of the Supplier granting the Customer any indulgence for the payment of any monies due to the Supplier then that indulgence will not constitute a credit arrangement but shall be delayed payment of the Price to be paid as stipulated by the Supplier, provided that the Supplier shall at his sole and absolute discretion be entitled to grant the Customer an installment or delayed payment facility and the Supplier be entitled to register his interest in the PPS register and the Customer irrevocably grants to the Supplier consent to register his interest if all amounts due to the Supplier have not been paid by the Customer.
6.10 The granting of an installment or delayed payment facility to the Customer, such an arrangement shall not affect the rights of the Supplier under this Agreement or any right under the general law or equity and the granting of an installment payment shall be on the terms and conditions for the granting of payment of the Price as determined by the Supplier from time to time.
6.11 The Customer and Guarantor expressly agree that in granting an installment or delayed payment facility;
6.11.1 the Supplier shall be entitled to obtain a credit status report from a credit-reporting agency containing personal credit rating or information about the Customer and Guarantor/s in relation to any credit provided by any party to the Customer;
6.11.2 that the Supplier may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency;
6.11.3 and the Customer grants his / her or it’s irrevocable consent to the Supplier to give a consumer payment report for any overdue payment on any delayed or installment payment facility provided by the Supplier and to obtain information on their creditworthiness, credit history, and credit information in terms of the provisions of the Privacy Act 1988 (Cth) and Privacy (Credit Reporting) Code 2014.
6.12 The Customer is aware that the Supplier is not a credit provider and does not provide credit assistance as contemplated under the National Consumer Credit Protection Act 2009 (Cth) and National Credit Code, and the Supplier does not charge the Customer any fees or charges to provide a delayed or installment payment facility and the Supplier does not provide credit in the course of a business of providing credit or as part of, or incidental to, any other business of the Supplier, but is a supplier of goods and services and allows the Customer on agreed terms and conditions to pay its account in monthly or other agreed installments at no additional fees or charge and to pay the same Price as the cash price for the Goods and Services of the Supplier.
7. LIMITATION OF LIABILITY AND DELIVERY OF GOODS AND SERVICES
7.1 The Supplier shall not be liable for any direct loss or damage suffered by the Customer as a result of any negligence, breach of contract, or otherwise, and if any claim should arise that this will be limited and shall not be in excess of the Price of the Goods and Services.
7.2 The Supplier shall not be liable under any circumstances to the Customer or any third party for any indirect or consequential loss, including any loss of profit or other economic loss suffered by the Customer howsoever caused, or as a result of any negligence, breach of contract, misrepresentation or otherwise other than as provided for in terms of this agreement.
7.3 The Customer will ensure that electricity, water, and basic amenities are available to the Supplier in order to render the Services and the Customer shall bear the cost thereof.
7.4 The Customer shall ensure that there is free access to the premises where the Services are to be rendered or goods delivered and the Customer shall ensure that the premises are safe and free from any hazard that may cause injury or harm to the Supplier or his employees or agents.
7.5 The Customer shall be responsible to ensure that accurate details are given to the Supplier in order to render the services and provide the Goods to the Customer in terms of this Agreement.
7.6 The Supplier takes no responsibility if the specifications are wrong or inaccurate and the Customer will be liable in that event for the expenses incurred by the Supplier for any work required to rectify the Order due to incorrect information or details provided to the Supplier by the Customer.
7.7 The Supplier takes no responsibility and will not be liable for any damages or costs resulting in the Goods being faulty and causing any damages or loss as a consequence of insufficient or incorrect information provided by the Customer.
7.8 The Supplier shall not be responsible for representations made in relation to any Goods or any delay in the delivery of the Goods as made by the manufacturer or supplier of those Goods, and the Customer shall make sure that the Customer has read and accepted the terms of any warranty of the manufacturer or supplier before the Goods are handed over or delivered to the Customer.
7.9 The Customer or any person using the Goods for and on behalf of the Customer shall read and strictly adhere to any safety, operational or other specifications or operational requirements of the manufacturer or supplier of any Goods and shall accept the terms of supply of those goods stipulated by the manufacturer or supplier as is permitted under the consumer laws of the Commonwealth of Australia or any state laws applicable to Western Australia.
7.10 The Customer acknowledges that the Supplier shall not be liable for, and the Customer releases the Supplier from:-
7.10.1 Any claims in respect of any defective or faulty design of any Goods supplied based on information supplied by the Customer to the Supplier.
7.10.2 Any loss incurred as a result of the delay, or failure to provide the Goods, or to observe any of these conditions due to an event of force majeure, or any cause or circumstance beyond the Supplier’s reasonable control.
7.10.3 The Supplier does not represent that it will provide and/or deliver any services or Goods unless specified in the Quote.
7.11 The Customer accepts risk in relation to the Goods when the Goods are delivered to the appointed premises of the Customer.
7.12. The Customer warrants that the premises where the Goods are held are owned by the Customer and if not owned by the Customer that the Customer shall notify the owner of the premises in writing that the Goods are the property of the Supplier and provide the Supplier with a letter of confirmation from the owner of the premises that the owner is aware of the terms of this agreement and consents thereto.
Once a Customer has placed an Order and then cancels the Order, then the Supplier shall be entitled to charge the Customer for all costs and fees incurred by the Supplier in providing the Quotation, ordering of the Goods stipulated on the Order, costs of the cancellation of the Order including any costs or charges for the return of goods to the manufacturer or supplier of the Goods, and any loss in respect of lost income and the resultant cancellation of the Order. The Customer agrees that all such costs, charges, or fees shall be a liquidated debt owing to the Supplier and payable on the presentation of an invoice. In the event of the Customer not paying the invoice then the Supplier shall be entitled to recover the amount due by the Customer under this Agreement. The Customer shall be liable for all legal fees of the Supplier on a lawyer and client scale and the Customer shall have no right of set-off or deduction of any nature whatsoever.
9. FORCE MAJEURE / DELAY
The Supplier shall not be liable for any delay or failure to perform any of his obligations if the delay or failure results from events or circumstances outside his reasonable control, including but not limited to fortuitous events, force majeure, strikes, lockouts, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of Goods, or materials from any manufacturer or supplier, and the Supplier at his sole discretion shall be entitled to a reasonable extension of his obligations under this Agreement.
10.1. The Supplier warrants that the rights and remedies of the Customer against defects are in addition to other rights and remedies of the Customer under any consumer law in relation to the Goods and services supplied or rendered in terms of this Agreement.
10.2. The Supplier warrants that if any defect in any Service provided by the Supplier becomes apparent and is reported to the Supplier within fourteen (14) days of the provision of the Services then the Supplier will at the Supplier’s sole discretion remedy the defective Service.
10.3. If any Goods provided to the Customer are repaired, altered, or changed in any way by the Customer or caused to be repaired, altered, or tampered with in any way by the Customer, all warranties shall cease and the Supplier or manufacturer shall thereafter not be liable under the terms of the warranty or for any damages, loss or injury caused by the use of the products or any component thereof.
10.4. The Supplier shall not be liable to compensate the Customer for any delay in repairing, replacing, or fixing any Goods or remedying any Services or in properly assessing the Customer’s claim.
10.5. Where the Customer has complied with the conditions of any warranty for defective Services then the Supplier’s liability is limited to rectifying and/or remedying the defective Service or Goods.
10.6. The warranty for all Goods provided to the Customer by the Supplier shall be the current warranty provided by the manufacturer of the Goods. The Supplier 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.
10.7. The Customer agrees that any Goods which have been altered or modified in any way, either by the Customer and/or Supplier under the Customer’s direction will not be able to be returned and/or replaced or may not be covered by any warranty of the manufacturer as a result of that alteration or modification.
10.8. The Customer shall remain responsible for all amounts owing to the Supplier in the event that any Goods supplied may become faulty and are not able to be replaced, may not be covered under any warranty.
10.9. The Supplier warrants that Goods supplied to the Customer are supplied with guarantees that cannot be excluded under the Australian Consumer Law in terms of which the Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also 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.
10.10. A warranty for Goods shall only cover the cost of goods and the Customer acknowledges that additional costs incurred, such as labor, transport, installation, and removal costs must be borne by the Customer.
If any term or provision of these Terms and Conditions is held to be invalid, illegal, or unenforceable for any reason by any court of competent jurisdiction, then such provision shall be read down so as to be valid, legal, and enforceable, and if this is not possible any such term or provision shall then be severed from the Agreement and the remainder of the terms and provisions of the Agreement shall continue in full force after the relevant term or provisions have been read down or eliminated.
12.1 In the event that the Customer breaches any terms of this Agreement or the installment payment agreement then the Supplier may give the Customer notice of that breach re-default stating the nature of the default and the period in which the Supplier requires the Customer to remedy the default.
12.2 Should the Customer not remedy the breach or default as stated in the notice by the Supplier to the Customer and within the stated period then without further notice, the total amount of the Price shall become immediately payable to the Supplier or to the extent that it is not already due and the Supplier may sue the Customer for all amounts due by the Customer under this agreement and;
12.3 the Customer shall be liable to the Supplier for all legal and other costs including but not limited to court costs, enforcement costs, bailiff fees, tracing and other administrative charges or costs, and in respect of any legal costs the Customer agrees to pay the costs of the Supplier’s lawyers at a lawyer and client scale; and
12.4 the customer agrees that any legal notice or service of any documents or legal process shall be delivered shall be the address of the Customer as stated in this Agreement or on the Order and in the event that the address on the Agreement and the Order differ the address for service of documents under this Agreement shall be the address on this Agreement.
13. JURISDICTION / GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of Western Australia and the parties hereby submit to the exclusive jurisdiction of the courts of Western Australia.
14. ENTIRE AGREEMENT
14.1. The provisions of this Agreement shall constitute the whole Agreement made between the Customer and the Supplier and shall not be amended or varied unless duly signed by the Supplier.
14.2. Any discussions, negotiations, or representations made by the Supplier or any employee, agent, or representative of the Supplier not recorded herein shall be of no force or effect unless reduced to writing and signed by the Supplier.
14.3. Please confirm that you agree to the terms set out in this letter and our terms by signing, dating, and electronically returning this letter to us. Please note, however, we will treat you as having accepted our engagement if you continue to instruct us after you receive it.
If you have any questions. please contact this office on (08) 6142 7011 We look forward to working with you.
At Temp Refrigeration Services Pty Ltd.
Last updated: January 29, 2021
Please read these terms and conditions carefully before using Our Service.