Terms & Conditions

 

Realcold Pty Ltd

ABN: 40 089 846 873

TERMS & CONDITIONS OF SALE

 

1.    INTERPRETATION

Unless inconsistent with the context: "the Agreement" shall mean and include the terms and conditions contained herein and on the face hereof; "the Company" shall mean and include Realcold Pty Ltd; "the Customer" means and includes any natural person, company, partnership or other entity which enters into this Agreement with the Company; "the Goods" means the goods and/or services supplied by the Company pursuant to this Agreement; including the hire of gas cylinders; "Contract" means the contract between the Company and the Customer for the sales and purchase of goods and/or services, including the hire of gas cylinders; "Terms" means these Terms &Conditions of Sale and in the case of a contract for the hire of gas cylinders also mean Realcold's Terms and Conditions of Hire of Cylinders provided that in the case of any inconsistency Realcold's Terms and Conditions of Hire of Cylinders shall prevail.

 

2.    EXCLUSION OF INCONSISTENT TERMS

To the fullest extent legally permissible all dealings between Realcold and any Customer relating to any Goods are subject to these Terms.  Any terms and conditions of the Customer's order deviating from or inconsistent with these Terms (including any statement by the Customer that the Customer terms and conditions shall prevail) are expressly excluded.

 

3.    FORMATION OF CONTRACT

A Contract shall only be or be deemed to have been entered into between the Company and the Customer for the sale of Goods or the hire of gas cylinders when, upon an order having been placed with the Company for Goods, that order has been accepted by the Company either in writing or by conduct.

 

4.    PRICES

4.1     Prices set out or referred to are recommended prices only and there is no obligation to comply with the recommendation.

4.2     All prices are ex-warehouse, freight and handling are extra. GST is not included in our prices and will be charged as applicable.

4.3     All prices may be varied by the Company without notice.

 

5.    FORWARDING INSTRUCTIONS

The Customer should state its preferred method of transport on orders.  If the Company cannot comply with the Customer' preference, or if none is stated, the Company will forward goods by the method the Company considers best.   All goods travel from the Company's warehouse at the Customer's risk.   If the Customer wishes to have its goods insured, please advise the Company.

 

The Company will not accept liability or responsibility for any direct or consequential loss or damage caused directly or indirectly by delay arising for any reason whatsoever, including failure from any cause whatever to deliver the whole or any part of the goods. Without restricting the generality of the foregoing, the Company shall not be liable for any loss or damaged caused directly or indirectly by war, strikes, lockouts, perils of the sea, or any other cause beyond its control.

 

6.    ORDERS

Orders are accepted to our ability to fulfill.  The Company does not accept responsibility for delays.

 

8.    COMPRESSORS

All hermetically sealed motor compressors are sold without guarantee.

9.    SPECIFICATIONS

All care has been taken in the compilation of any catalogue, literature, promotional material, document or media distributed by the Company in respect to Goods.  The Company will not accept responsibility for any error in the technical data, or for any financial loss incurred by a customer due to an error in any catalogue literature, promotional material, document or media distributed by the Company in respect to Goods.

 

10.  PAYMENT                                                                 

10.1       Unless otherwise agreed by the Company in writing, payment for all Goods shall be made prior to the end of the month following that in which the goods are invoiced. Punctual payment is agreed to be of the essence of the contract.

10.2       Non-payment for any or all Goods by the due date will be considered by the Company to be a breach of these terms & conditions of sale and, in addition to any other rights this Company may have, the Company may undertake to:

(i)      cancel the Customer's right to operate a commercial credit account with the Company;

(ii)    charge interest on any outstanding amount, calculated from the day following the date upon which payment should have been made, at a rate equal to the Company's then current overdraft rate, as varied from time to time;

(iii)   commence legal proceedings in a court of competent jurisdiction for the recovery of any unpaid sums from the Customer;

(iv)   add to any outstanding amount/s any debt collection expenses incurred, or to be incurred, as a consequence of actions taken by the Company to recover non-payment/s by the Customer, including legal costs on an indemnity basis;

(v)    retake physical possession of the Goods.

10.3       Any credit extended to the Customer by the Company under the Agreement will be deemed due and payable immediately upon the commencement of any action or proceeding in which the Customer's solvency is placed in issue.

10.4       The Customer will not be entitled to withhold any payments or make any deductions in respect of any set offs, counterclaims or cross demands claimed by the Customer against the Company for whatever reason.

10.5   The Customer undertakes to pay all Bank Charges incurred by the Company in respect of any cheques not met upon first presentation to the Bank.

 

11.  TITLE

11.1   Property in any goods sold by the company shall not pass from the Company to the Customer until the Customer has paid for the goods (including any interest) in full and all cheques and other negotiable instruments have been cleared (ROT).  The risk of loss or of damage to the Goods shall be entirely at the risk of the Customer immediately upon the Goods leaving the premises of the Company, in the course of the delivery of the Goods to the Customer.

11.2  The Company reserves the right to retake physical possession of the Goods if any of the following occurs:

               (i)    payment for any Goods sold to the customer by the Company is overdue;

(ii)    the Customer pays the Company by cheque (in full or in part) and such cheque is not met on presentation by the Company;

               (iii)   the Customer commits an act of bankruptcy as defined by the Bankruptcy Act 1966, as amended, or in the case of a corporation, commits an act of insolvency as defined by the Corporations Act 2001 as amended;

(iv)   a receiver, manager, controller or trustee is appointed to the Customer's property;

(v)    the Customer's affairs become subject to external administration.

11.3   The Customer agrees that a certificate purporting to be signed by an officer of Realcold identifying Goods as unpaid for shall be conclusive evidence that Products have not been paid for and of Realcold's title to those Products.

For this purpose the Customer hereby consents to the Company, or its agents or servants, entering upon the Customer's premises in order to effect recovery of the Goods and to use any reasonable means of force in order to effect recovery, without incurring liability for trespass or any resulting damage. The Company will have the right to resell or otherwise dispose of the Goods without further reference to the Customer.

11.4       If any of the goods are incorporated into or used by the Customer as parts, components or materials in respect of any other product/s of the Customer                   before the Customer has made payment in full for the goods, the subsequently transformed product/s of the Customer will become those of the                Company and remain the property of the Company until such time as payment in full for the goods has been made by the Customer.

11.5       The Customer acknowledges that until the Customer's total indebtedness to the Company is discharged, the Customer holds the goods as bailee of the Company and that a fiduciary relationship comes into existence between the Company and the Customer.

11.6       In the event that the Customer sells the Goods or any product/s in which the Goods have become consumed or a component of to any third party before making full payment for the Goods, then the Customer, in a position of fiduciary:

(i)      assigns to the Company the benefit of any claim against the third party;

(ii)    is required to account to the Company for the proceeds of the sale of the Goods or product/s sold or any part thereof until the Customer's total indebtedness to the Company is discharged.

11.7   The Customer agrees to indemnify the company against all expenses, losses and damages incurred or sustained by the Company as a result or in relation to the exercise of the Company's right under these conditions.

11.8     The Customer acknowledges and agrees that the ROT is a security interest within the meaning of thePersonal Property Securities Act 2009(Cth)("PPSA") and that the Company may register a security interest in the Goods at any time before or after delivery of the Goods including a purchase money security interest;

11.9       If the Company registers a security interest under the PPSA, the Company may exercise any and all remedies afforded to the Company as a secured party under it without prejudice to any other rights or remedies arising out of a breach by the Customer of any agreement with the Company.

11.10    The Customer agrees the Company can apply amounts it receives from the Customer towards amounts owing to it in such order as the Company chooses.

11.11    The Customer agrees that sections95, 118, 121(4), 125, 130, 132(3) (d), 132(4), 135, 138B (4), 142 and 143of the PPSA will have no application to the agreement between the Company and the Customer in respect of these Terms and Conditions and the Customer waives its rights under section 157 of the PPSA to receive a notice under that section.

11.12    The Customer agrees to promptly do anything required by the Company to ensure the Company acquires a perfected security interest in all Goods (tangible and intangible) supplied by the Company to the Customer and has priority over all other security interests in the Goods

 

12.  CHARGE

The Customer hereby charges in the Company's favour with payment of all monies owed to the Company by the Customer and/or any of them all of his, her or its estate and interest in any land and/or in any other assets whether tangible and/or intangible in which the Customer now has any legal and/or beneficial interest and/or in which the Customer later acquires any such interest, and the Customer agrees to execute on request, a registrable instrument and/or any other necessary documents, transferring to the Company such estate and interest by way of security.

 

13.  RETURN OF GOODS

Realcold will give credit for stock items returned within 14 days of purchase provided the following criteria is met:

(i)    Prior approval is given by an authorised Realcold representative.

(ii)   Proof of purchase is provided via an invoice, receipt or bank/card statement.

(iii)  It is a standard Realcold stocked item, not custom made or acquired for the Customer.

(iv)  Item is unused and returned in original condition with undamaged packaging.

(v)   For gas cylinders, no product has been removed or added, no contamination has occurred, and shrink wrapping on valve is intact and not tampered with.

Any costs incurred returning goods is at the Customer's expense, and a restocking fee of 15% of the gross value of returned items will be charged.

This does not apply to returned goods that are faulty, defective, unsafe, do not match sample or description, do not do what Realcold said it would or what the customer asked for, or incorrectly supplied.

 

14.  SHORTAGES

Realcold shall not be liable for any shortages, loss or expense arising after seven days from delivery (or at all once Goods have been unpacked, affixed and/or otherwise used or applied) after which there shall be deemed to be unqualified acceptance;

 

15.  SAMPLES

Any Sample, catalogue or brochure shown to the Customer is solely for the purpose of enabling the customer to judge the normal commercial quality and finish of the Company's products and not so as to constitute a sale by sample or a sale by description nor does the Company warrant or agree that the bulk of the Goods will conform with any such Sample or description.

 

16.  CHANGES TO THE PARTICULARS OF THE PROPRIETORS OR THE BUSINESS

The Customer is to notify the Company, in writing within seven (7) days, of any proposed or actual change in:

(i)       the address of the business and the address at which the Goods will be located (if it differs to the business address);

(ii)      the trading name of the business;

(iii)     the person(s), the Directors, the Trustees, or the partnership conducting the business;

(iv)     the proprietorship of the business in that the business is converted into a trust or company or is sold to a trust or company.

Upon being notified by the Customer of any of the above proposed or actual changes the Company may require the Customer to complete a new application for a commercial credit account and enter into a new credit agreement including personal guarantees by directors and/or trustees of any company or trust conducting the business.

The Customer agrees to indemnify the Company against any damage or loss incurred by it as a result of the Customer's failure to notify the Company of any such changes.

 

17.  PROPER LAW

The Contract between the Company and the Customer shall be governed by and construed in accordance with the laws for the time being enforced in

Queensland and the parties hereby submit to the jurisdiction of the courts in Brisbane in the State of Queensland.

 

18.  INDEMNITY

The Customer shall indemnify and keep indemnified the Company from and against all losses, claims, proceedings, damages, costs and expenses in respect of or arising directly or indirectly from the Goods or their use of from any advice given to the Customer by the Company.  This includes the fitment of incorrect goods as the onus is clearly with the Customer to ensure the Goods supplied are correct for the particular job.

 

19.  SEVERANCE

If for any reason any part of these terms and conditions would render the Agreement ineffective, void, voidable, illegal or unenforceable, that part shall without in any way affecting the validity of the remainder of the Agreement, be severable here from and the Agreement shall be read and construed and take effect for all purposes and if that part were not contained herein.

 

20.  WAIVER

The waiver by the Company of any breach by the Customer of any term of this Agreement shall not prevent the subsequent enforcement of that term and shall not be deemed a waiver of any other or subsequent breach.

 

21.  IMPLIED TERMS

21.1 Except as required by statute all implied conditions and warranties are hereby excluded. Subject to the extent that such conditions and warranties cannot be excluded under statute the Customer's sole and exclusive remedy for any breach of a condition, warranty or undertaking hereunder (whether direct, indirect, special or consequential) shall be limited at the sole discretion of the Company to any of one of the following:-

(a) in the case of Goods:-

(i)    the replacement of the relevant goods or supply of equivalent goods;

(ii)   the repair of the relevant goods;

(iii)  the payment of the cost of replacing the relevant goods or of acquiring equivalent goods; or

(iv)  the payment of the cost of having the relevant goods repaired

within a limited period of 12 calendar months after despatch from the Company's works shall have proved defective (fair wear and tear excepted)

provided the goods have been properly erected assembled and maintained.

21.2 Any warranty shall not apply to any goods or components manufactured by a person other than the Company even though such goods or components may be included in equipment sold by the Company.  In lieu of any warranty, condition or liability express or implied by law or statute in respect of such goods or components the Company's obligation shall be limited to passing on to the purchaser such guarantee restitution as the Company shall actually receive from the manufacturer in respect of such goods or components.

21.3 Except as required by statute the Company does not accept any liability for any direct, indirect or consequential

loss or damage caused to the Customer or any other person which arise out of the negligence or carelessness of the Company or any of its employees, servants or agents.  For the purpose of the foregoing, "consequential loss" shall include, but not be limited to, loss of profit or goodwill (or similar financial loss), any payment made or due to any third party and any loss or damage caused by delay in the supply of goods or services.

21.4 Nothing in this agreement shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of any goods or services pursuant to this Agreement of all or any of the provisions of any provision of any relevant Act or legislation which by law cannot be excluded, restricted or modified.

 

22.  NOTICES

All notices between the Company and the Customer shall be considered to have been sufficiently delivered if mailed in the ordinary course of post to the last known address of the Company or the Customer, whichever may apply. Notices shall be deemed to have been delivered two (2) days after mailing.

 

23.  CREDIT REFERENCE AGENCY

23.1 To the extent that it is not inconsistent with thePrivacy Act1988 the Customer hereby authorises the Company to obtain a credit report containing personal information:

(a)  about the Customer for the purpose of assessing this application;  and

(b) about the Customer for the purposes of collecting payments from the Customer in relation to any credit provided to the Customer.

23.2 The Customer further acknowledges that  the Company is hereby authorised to give and obtain information from another credit provider any record that has any bearing on, and for the purpose of assessing the Customer's credit worthiness, standing or history. The Customer acknowledges that the Customer understands and accepts that the information contained in this application may be given to a credit reporting agency.

 

24   CHANGE OF TERMS

                      The Customer agrees that it shall be deemed to have notice of any change to these Terms and be bound by any subsequent versions of these Terms upon advice by notice by Realcold to the Customer pursuant to these Terms. A copy of any subsequent versions of these Terms may also be obtained by request at any Realcold branch.

 

25   CREDIT LIMIT

 The grant of any credit facility or nomination of any credit limit is an indication only of Realcold's intention at the time.  Realcold may vary and/or withdraw any credit facility at any time at its discretion and without any liability to the Customer or any other party.

 

 

26   FORCE MAJEURE

Realcold shall not be or be deemed to be in default or breach of any contract as a result of Force Majeure.  Force Majeure shall include any cause beyond the reasonable control of Realcold including strikes and lockouts.

 

27   POWER OF ATTORNEY

For the purpose of giving effect to the Customer's obligations under these Terms (in particular clause 12. of these Terms) the Customer hereby irrevocably appoints the National Credit Manager (or like equivalent) for the time being of Realcold as the Customer's attorney in all things.

 

28   DISPUTES

The Customer agrees to pay into an interest-bearing trust account in the joint names of Realcold and the Customer any amount claimed by Realcold as a condition precedent to any dispute by the Customer of any such claim on the basis that upon resolution of the dispute the trust fund and any interest shall be dispersed according to the resolution.  This clause shall operate as a bar to any defence or claim by the Customer until fully complied with.

 

29   GOODS AND SERVICES TAX [GST]

All monies payable to Realcold and any other consideration for any other "taxable supply" (within the meaning ofA New Tax System (Goods and Services Tax) Act 1999(Cth) and associated legislation as amended from time to time) shall unless Realcold otherwise directs be deemed at all times to be exclusive of GST and/or any other applicable taxes, government charges, levies and/or imposts of any kind whatsoever - any and all of which must be paid by the Customer to Realcold as and when and in such manner as Realcold reasonably requires.

 

 

 

 

TERMS AND CONDITIONS OF HIRE OF CYLINDERS

Cylinder Deposits

  1. Unless otherwise agreed amongst all parties, the refund of a cylinder deposit goes to the customer who originally placed the deposit with Realcold, rather than to any other party who may return the empty cylinder. When returned, the cylinder must be in good condition and complete with cap.

 

Payment

  1. Payment of an invoice for hire of Realcold Cylinders is deemed conclusive evidence of the customers holding at the date of such invoice of the number and type of cylinders on hire from Realcold as shownon such invoice.

 

  1. If a Cylinder transaction or notification by the customer indicates a cylinder holding different to that recorded, Realcold reserves the right to amend its records and charge the customer rental accordingly.

 

  1. Unless otherwise agreed in writing, Realcold will charge and the customer will pay a monthly charge at Realcold's rates applicable, for each cylinder on the customer's cylinder holding as shown in Realcold's records at the beginning of the rental period.  If a cylinder holding is increased during a rental period, rental will be charged on the extra cylinders at the rates then current for that Customer.

 

Use, Maintenance and Repair

  1. Cylinders supplied by Realcold are for the Customer's sole use in the Commonwealth of Australia only unless Realcold specifically agrees in writing to use elsewhere. The customer shall not use the cylinders at any time for any purpose other than for which they were supplied by Realcold.

 

  1. The Customer shall use the Cylinder in a safe and appropriate manner and shall comply with and conform to all national, state, municipal, and other laws, audits and regulations in any way relating to the possession, use or maintenance of the Cylinder.

 

  1. From the time of delivery, the customer shall be responsible for keeping the cylinders in good condition, in safe custody and properly used along with any ancillary equipment until it is returned to Realcold in accordance with these Terms.  Any loss or damage shall be reported to Realcold promptly.  The customer shall hold Realcold indemnified against the cost of replacing a Cylinder or the cost of repairing same upon any loss, destruction or damage occurring to a Realcold Cylinder from any cause or reason whatsoever.   The customer shall            not remove or deface or alter any identification marks affixed to, impressed in or painted on the cylinders.

 

  1. If for any reason, cylinders need to be repaired, the customer shall forthwith return them to Realcold premises and under no circumstance repair or attempt to repair them itself.

 

Return

  1. Cylinder hire is offered to the Customer to facilitate the regular supply of gases distributed in rental cylinders to the Customer.  The customer shall return all hired Cylinders to any Realcold Branch (freight prepaid by customer) within the State or Territory of delivery as soon as they are empty.  Cylinders must be in good repair, condition and working order, ordinary wear and tear excepted.  No allowance will be made for residual refrigerant in the returned Cylinders.  Identified serial numbers on the returned cylinders must match serial number provided on original invoice of supply.

 

  1. For the purpose of these Terms, a Cylinder shall be deemed not to have been returned to Realcold until it has been received by Realcold staff and a Realcold Rental Cylinder return docket or similar document has been duly issued, dated and signed by the customer and Realcold staff.  Realcold accepts no liability for cylinders placed at premises without documentation completed.

 

  1. If the customer fails to return cylinders on demand, Realcold shall be entitled to charge and the customer shall pay by way of liquidated damages, the value of the cylinders demanded;

 

  1. Realcold shall be entitled to enter upon the premises where the cylinders are thought to be and repossess the cylinders if:

 

  1. The customer breaches any of these  Terms;
  2. The cylinders are refilled other than by Realcold or the customer ceases to accept refills from Realcold;
  3. The customer being a company there is the commencement of any action or proceeding in which the Customer's solvency is placed in issue.
  4. The customer being a person is convicted of an indictable offense or is sentenced to imprisonment or commits an act of bankruptcy;
  5. Judgment is entered against the customer for an amount in excess of $500 and is not satisfied within seven days.

 

  1. Upon any repossession of cylinders supplied by Realcold the customer shall be required to pay on demand to Realcold a fee for the cost of collection and repossession of those cylinders;

 

  1. For the purpose of these Terms the customer shall allow Realcold full and free access to the cylinder supplied by Realcold without any liability on the part of Realcold for any loss or damage suffered as a consequence of retaking possession of same and the customer shall be responsible for and indemnify Realcold against all such loss and damage and/or claims relating to same.

 

Title

  1. The Cylinder is, and shall at all times be and remain the sole and exclusive property of Realcold as owner or hirer from a third party and the Customer shall have no right, title or interest therein or thereto except as expressly set forth in this Contract.

 

Assignment

  1. The Customer shall not assign this Contract without the prior written consent of Realcold which may be given or withheld at Realcold's absolute discretion.

 

Loss and Damage

  1. The Customer hereby assumes and shall bear the entire risk of loss and damage to the Cylinder from any and every cause whatsoever.

 

  1. In the event of loss or damage of any kind whatsoever to the Cylinder the Customer shall advise Realcold and pay to Realcold the replacement cost of the Cylinder.

 

  1. The customer shall be responsible for any and all loss damage or injury to property or to persons caused by a cylinder supplied by Realcold for any reason whatsoever, during the period of    hire (except loss, damage or injury directly arising out the negligence of Realcold, its agents or employees) and the customer shall indemnify Realcold in respect of all such claims, damages and expenses in relation thereto.

 

Insurance

  1. The customer is required to insure cylinders supplied by Realcold.  This is to cover their full replacement cost against loss, damage and destruction and against any death, injury, loss or damage the cylinder(s) may cause including public liability and maintain such other insurance as required by law or Realcold.  If requested by Realcold, the customer will provide proof of any such insurance within 7 days.

 

Registration under the Personal Properties Securities Act 2009 (PPSA)

  1. In the event that this Contract is a personal property security lease under the PPSA  or a security interest arises or is created from the dealings between the Customer as grantor  and Realcold as a secured party then the Customer consents to Realcold effecting a registration on the Person Property Security Register (in any manner Realcold considers appropriate) and the Customer will do all things necessary to enable the security interest to be registered and perfected and will comply with all requirements of the PPSA.