“Kolda” means Kolda Pty Ltd ACN 609 018 457 as Trustee for the McKee Family Trust ABN 28 493 986 254 trading as Kolda.
“Customer” means the individual or entity that has contracted with Kolda for Goods and/or Services.
“Goods” means any goods supplied by Kolda to the Customer (or ordered by the Customer but not yet supplied) including, and in no way limited to, air conditioning products.
“Price” means the cost of the Goods and/or Services as agreed between Kolda and the Customer and includes all out of pocket expenses Kolda incurs on the Customer’s behalf subject to clause 5 of this contract.
“Services” means any services provided by Kolda to the Customer including but not limited to air-conditioning installation and services as well as refrigeration installation, repairs and services.
ACCEPTANCE & DEPOSIT
Any instructions received by Kolda from the Customer for the supply of Goods and Services shall constitute a binding contract and acceptance of the terms and conditions contained herein.
Notwithstanding clause 2.1, it is a condition of acceptance that the Customer make a 50% deposit or payment of the Price prior to the commencement of supply of Goods and/or Services. Failure to make this deposit/payment will not constitute a refusal to be bound by the terms and conditions contained herein.
The Customer acknowledges that these Terms and Conditions take precedence over any terms and conditions contained in any document provided by the Customer.
PRIVACY ACT 1988 (CTH) (AS AMENDED)
The Price shall, at Kolda’ sole discretion, be:
as stated on any invoice provided by Kolda to the Customer; or
Kolda’ quoted price (subject to clause 7).
Unless otherwise agreed in writing, all accounts must be paid in full within seven (7) days from the date in which Kolda invoices the Goods and Services to the Customer.
Payment for any amount outstanding shall be deemed immediately due and payable in any of the following circumstances:
there is non-payment of any sum by the due date;
Kolda forms the view that the Customer will not pay any sum by its due date;
the Customer is bankrupted or enters administration, liquidation or receivership;
a Court judgment is entered against the Customer and remains unsatisfied for seven (7) days;
any material adverse change in the financial position of the Customer.
Interest accrues on any amount owing after the due date at the rate of 15% per annum, calculated daily from the first day overdue until payment.
All payments to be made by the Customer will be made without set-off (whether arising at law or in equity) or counterclaim (whether arising at law or in equity) and free and clear of any withholding or deduction whatsoever, unless prohibited by law.
The Customer shall pay (on a full indemnity basis) any and all expenses, disbursements, collection costs and legal costs which Kolda has incurred or is liable to pay, in connection with the enforcement of any rights and/or preservation of any rights contained in this contract.
For the purposes of clause 6.5, the Customer acknowledges that collection costs may be calculated on a commission basis at a percentage rate of the amount due (as agreed by Kolda and the collection agent) and the Customer expressly agrees to pay for those expenses as liquidated damages on demand, irrespective of whether (a) Kolda is not liable to pay the collection agent the commission, until the Customer has made payment of the Customer’s overdue debt (or any portion thereof) and/or (b) the amount of work actually performed by the collection agent before the Customer makes a payment for an overdue debt.
Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until it results in Kolda receiving cleared funds for the entire amount of the negotiable instrument.
Where a quotation is given by Kolda for Goods and Services:
unless otherwise agreed, is not an offer to sell or provide Goods and Services;
unless otherwise agreed the quotation shall be valid for 30 days from date of issue;
Kolda will not be bound by any order given until accepted in writing;
Kolda reserves the right to alter the quotation because of circumstances beyond its control including and, in no way limited to, increases in the price charged by its suppliers for products and/or services.
Where Goods and Services are required in addition to the quotation, the Customer agrees to pay for the additional cost of such Goods and Services.
RISK TO GOODS AND DELIVERY
Risk in any Goods shall pass to the Customer at the time when the Goods have been delivered to the Customer;
Any date quoted for delivery by Kolda is an estimate only;
Unless a guarantee is given by Kolda in writing, providing for liquidated damages for failure to deliver by the date quoted for delivery or completion, Kolda will not be liable to the Customer for any loss or damage howsoever arising even if arising out of the negligence of Kolda for failure to deliver or complete the relevant Services on or before the date quoted for same;
Kolda reserves the right to deliver the Goods to the Customer by instalments. If delivery is made by instalments the Customer is not entitled to:
terminate or cancel the order following its acceptance by Kolda;
terminate these Terms and Conditions;
any claim, loss or damage howsoever arising from the failure of Kolda to deliver any instalments on or before the date quoted for delivery/completion.
Where special freight requirements are requested by the Customer such charges for freight will be paid by the Customer.
TITLE AND PERSONAL PROPERTY SECURITIES ACT 2009 (CTH) (PPSA)
Whilst risk in the Goods passes on delivery, legal and beneficial title in the Goods shall remain with Kolda until it has received payment in full for all monies owed by the Customer.
Until Kolda has received payment in full for all monies owed by the Customer, Kolda reserves the following rights:
legal and beneficial ownership of the Goods;
the right to enter the Customer’s premises and retake possession of the Goods;
the right to keep or resell any Goods repossessed under sub-clause 9.2.2; and
any other rights it may have at law or under the PPSA.
Where, pursuant to sub-clause 9.2.3:
Kolda resells the Goods repossessed, it is agreed that Kolda may credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs); or
Kolda retains possession of the repossessed Goods, it is agreed that Kolda may credit the Customer’s account with the invoice value less such sum as Kolda reasonably determines on account of wear and tear, depreciation, obsolescence, loss of profit and costs.
Kolda shall not be liable for any costs, damages, expenses, or losses incurred by the Customer or any third party as a result of any action taken to repossess the Goods.
If the Goods are attached, fixed, or incorporated into any property of the Customer, title in the Goods shall remain with Kolda until the Customer has made payment for all monies owed to Kolda and where those Goods are mixed with other property so as to be part of or a constituent of any new product, title to these products shall be deemed to be assigned to Kolda as security for the full satisfaction by the Customer of the full amount owing between Kolda and the Customer.
Until Kolda receives payment for Goods in full, the Customer acknowledges that Kolda has a Purchase Money Security Interest (“PMSI”) which attaches over the Goods and their proceeds and a Security Interest in relation to other amounts owed by the Customer to Kolda.
Upon assenting to these Terms and Conditions, the Customer acknowledges and agrees that these Terms and Conditions constitute a Security Agreement for the purposes of the PPSA.
The Customer undertakes to do anything (such as obtaining consents, producing documents, producing receipts, and getting documents completed and signed) which Kolda asks and considers reasonably necessary for the purposes of:
ensuring that a PMSI and/or Security Interest is enforceable, perfected and effective;
enabling Kolda to apply for any registration, or give any notification, in connection with the Security Interest created under this Agreement so that the PMSI and/or Security Interest has the priority required by Kolda.
To the extent permitted by law, the Customer irrevocably waives its right to:
receive notices or statements under sections 95, 121(4), 125, 130, 132(3)(d), 132(4) and 135 of the PPSA;
redeem the Goods under section 142 of the PPSA;
reinstate the Agreement under section 143 of the PPSA;
receive a Verification Statement.
Nothing in clause 9 prevents Kolda from taking collection or legal action against the Customer to recover any monies owed from time to time.
No claim relating to Goods or Services will be considered unless made in writing within 7 days of delivery or completion of the air conditioning installation, air conditioning service, commercial refrigeration installation, commercial refrigeration repair, commercial refrigeration service, or other service as provided by Kolda to the Customer.
All implied conditions, warranties and undertakings other than are expressly excluded to the extent permitted by law.
Where the Goods are of a kind other than goods ordinarily acquired for personal, domestic, or household use, then Kolda’s liability is limited, at its option, to anyone or more of the following:
the replacement or supply of the equivalent of the Goods;
the repair of the Goods;
the payment of the costs of replacing the Goods or acquiring their equivalent; or
the payment of the costs of having the Goods repaired.
Subject to the Customer’s rights under Schedule 2 of the Competition and Consumer Act 2010 (“CCA”), Kolda shall not be liable for:
any loss or damage of any kind whatsoever, arising from the Goods, including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from the Goods; and
the Customer shall indemnify Kolda against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Kolda or otherwise, brought by any person in connection with any matter, act, omission, or error by Kolda, its agents or employees in connection with the Goods.
Manufacturer’s warranty applies to the Goods where applicable.
The Customer hereby charges in favour of Kolda all of the Customer’s estate and interest in any land, freehold or leasehold, in which the Customer now has or which it may later acquire any such interest in, with payment of all monies owing by the Customer to Kolda from time to time and hereby consents to Kolda lodging a caveat or caveats which note Kolda’s interest.
These terms and conditions and all matters concerning the business relationship between Kolda and the Customer shall be governed by the law of the State of Queensland and the parties submit to the non-exclusive jurisdiction of the Courts of Queensland for the conduct of any litigation.
The Customer cannot assign these terms and conditions without the prior written consent of Kolda.
Kolda can assign these terms and conditions to a third party without the consent of the Customer.
If by reason of any fact, circumstance, matter or thing beyond the reasonable control of Kolda, Kolda is unable to perform in whole or in part any obligation under these terms and conditions, including delay in delivery, Kolda shall be relived of that obligation under these terms and conditions to the extent and for that period that it is so unable to perform and shall not be liable to the Customer in respect of such inability.
Failure by Kolda to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of its rights or obligations under this contract.
If any provision of this contract shall be invalid, void or illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected.
The Customer will notify Kolda in writing of any change of ownership of the Customer or its business, or of directorships in the case of a corporate Customer, or of any other change whatsoever affecting these terms and conditions within seven (7) days from the date of such a change.
The Customer indemnifies Kolda from and against any loss or damage incurred by it as a result of the Customer’s failure to notify Kolda of any change in ownership.
Any variation of the terms and conditions contained in this contract must be agreed to in writing by Kolda for it to have any legal effect.
Electronic Signatures: Pursuant to section 14 of the Electronic Transactions (Queensland) Act 2001, the parties to this Agreement consent to the use of an electronic signature as a means of executing this Agreement and as defined in that Act.
Sending Material Electronically: Pursuant to sections 11 and 12 of the Electronic Transactions (Queensland) Act 2001, the parties to this Agreement consent to both give and receive information by electronic communication as defined in that Act. We are able to send and receive documents electronically. However, as such transmission is not secure it may be copied, recorded, read or interfered with by third parties while in transit. If you ask us to transmit any document electronically (or you accept any document electronically), you release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document, for any delay or non-delivery of any document and for any damage caused to your system or any files.