Terms of Use

1. Definitions

1.1. “JCA” means Joe Cools Air Conditioning Pty Ltd trading as Joe Cools Air Conditioning (ABN 58 645 958 998) (JCA), its successors and permitted assigns, and any person acting on its behalf and with its authority (including its employees, officers, agents and subcontractors).

1.2. “Client” means:

1.2.1. The legal entity or person receiving Services and/or Goods from JCA;
1.2.2. The party contracting to be supplied the Services and/or Goods under this Agreement;
1.2.3. Any person who signs this Agreement (whether on their own behalf or the behalf any other person or legal entity);
1.2.4. Any person named and described as the Client, or any person purporting to be the named and described Client;
1.2.5. The executors, representatives, administrators and/or assigns of any person deemed to be a Client; and
1.2.6. Any person/s buying the Goods or Services as specified in any invoice, quote, document or order, and if there is more than one, Client is a reference to each Client jointly and severally.

1.3. “Quote” means each written quotation, proposal, scope of works, job order, estimate or similar document provided by JCA to the Client describing the Services, Goods and/or work to be undertaken for the Client, including any assumptions, exclusions, conditions, access requirements and Site readiness requirements stated in that document;

1.4. “Service” includes (without limitation) the selling, supplying, diagnosing, troubleshooting, designing, installing, commissioning, maintaining, servicing, cleaning, testing, repairing, decommissioning, replacing or otherwise working on air conditioning and refrigeration equipment, ventilation components, controls, electrical isolators (where permitted), pipework, ductwork, grills, registers, condensate drainage, mounting systems and associated materials, and carrying out air conditioning and refrigeration services and works supplied by JCA for the Client at the Client’s request from time to time, including:

1.4.1.    split system air conditioning supply and installation;

1.4.2.    ducted air conditioning supply, design and installation;

1.4.3.    multi-split / multi-head systems;

1.4.4.    reverse cycle heating and cooling systems;

1.4.5.    evaporative cooling systems (where applicable);

1.4.6.    commercial packaged systems and light commercial systems;

1.4.7.    air conditioning servicing, maintenance, filter cleaning and scheduled maintenance;

1.4.8.    fault finding, diagnostics and repairs;

1.4.9.    refrigerant leak detection and rectification;

1.4.10.  refrigerant recovery, re-gas and commissioning (where lawful);

1.4.11.  condenser / outdoor unit mounting and anti-vibration solutions;

1.4.12.  indoor unit mounting, penetrations, pipe runs and cable concealment;

1.4.13.  roof-space ducting, registers and zoning controls;

1.4.14.  condensate drainage installation, pumps and overflow management; and

1.4.15.  decommissioning and removal of redundant air conditioning equipment.

1.5.  “Goods” includes any tangible items, Good(s), product(s) or material(s) required to undertake the Service(s) or incidental to the Service(s), including those goods described in a Quote;

1.6. “Price” means the price payable for the Services and/or Goods as set out in a Quote and/or Invoice, as adjusted by any variation approved under clause 2.6 and/or charged in accordance with clause 9;

1.7.  “Site” means the designated place, address, premises or location at which the Services are to be provided and/or the Goods are to be delivered or installed;

1.8. “Progress Payments” means and includes a payment claim under the Building and Construction Industry Security of Payment Act 2009 (SA) and payment claims under the Building Work Contractors Act 1995 (SA);

1.9.  “Agreement” means this Service Agreement, together with any Quote accepted by the Client, any variation agreed under clause 2.6 and/or clause 9.2, and any Invoice issued by JCA for Services and/or Goods supplied under this Agreement.

1.10. “Business Day” means a day other than a Saturday, Sunday or public holiday in South Australia.

1.11. “After-Hours” means any time outside 8:00am to 5:00pm Monday to Friday (excluding public holidays), unless otherwise stated in a Quote.

1.12. “Call-Out Fee” means the attendance fee (if any) specified in a Quote, Invoice, price list, booking confirmation or otherwise notified by JCA to the Client.

1.13. “Minimum Charge” means the minimum billable time or minimum amount payable per attendance, as specified in a Quote, invoice, price list, booking confirmation or otherwise notified by JCA to the Client.

1.14. “Diagnostic Services” means fault-finding, testing, investigation, leak detection, commissioning checks, inspection, reporting, and/or advice provided by JCA (including use of specialised tools and equipment) to identify an issue, cause, scope, compliance position, or recommended rectification.

1.15. “Make Safe Works” means work JCA reasonably considers necessary to remove an immediate safety risk, prevent imminent property damage, or stabilise a failure to enable the Site to be left in a safe condition (including temporary isolation, shut-down, capping, containment, bypass, temporary drainage, or temporary repair).

1.16. “Latent Condition” means any concealed, hidden, unforeseen, non-visible or non-apparent condition at the Site or in existing equipment/infrastructure that could not reasonably have been identified from a visual inspection or information provided by the Client, including (without limitation) non-compliant prior work, inaccessible or unsafe wiring, brittle or aged components, asbestos-containing materials, damaged ducting, blocked returns, concealed structural members, unforeseen pipe runs, insufficient clearances, vermin, water ingress, roof fragility, and any condition requiring third-party access equipment or specialist works.

1.17. “Reattendance” means a further attendance required due to (without limitation) no access, Client not present, Site not ready, power unavailable, other trades not complete, unsafe conditions, or the Client requesting a new time after booking.

1.18. “ACL” means the Australian Consumer Law in Schedule 2 to the Competition and Consumer Act 2010 (Cth).

1.19. “Invoice” means any tax invoice or invoice issued by JCA to the Client for Services and/or Goods supplied under this Agreement.

1.20. “Premises” (if used) has the same meaning as Site.

1.21.  “Representative” means, in respect of a party, its employees, officers, agents, contractors and subcontractors.

1.22.  “Personnel” means a party’s Representatives.

INTERPRETATION

1.23.     Words importing the singular shall include the plural and vice versa;

1.24.     Words importing any gender include all genders;

1.25.     Any reference to any person includes that person’s executors, administrators, agents, assigns or, being a company, its successors or permitted assigns;

1.26.     Words describing individuals include companies and bodies corporate and vice versa;

1.27.     The headings in this Agreement are for convenience only and do not affect their construction;

1.28.     JCA accepts no liability for the consequences of any changes in any law which may affect the Services or the supply of Goods; and

1.29.     This Agreement is not to be interpreted against the interests of a Party merely because that Party proposed this document or some provision of it or because that Party relies on a provision of this document to protect itself.

2. Acceptance and Basis of Contract

2.1.        Any legal entity or person signing this Agreement on behalf of the Client hereby covenants that he or she has the authority to sign on behalf of and bind the Client to these conditions, it is not insolvent, and that this Agreement creates binding and valid legal obligations on it

2.2.        Where the Client is a tenant (and therefore not the owner of the land and premises where Services are to be undertaken or Goods installed) then the Client warrants that full consent has been obtained from the owner of the land (or the owner’s authorised agent) for JCA to enter and undertake services on the land and premises;

2.3.        The Client acknowledges and agrees that they shall be personally liable for full payment of the Price for all works provided under this Agreement and agree to indemnify JCA against any claim made by the owner of the premises (howsoever arising) in relation to the supply and/or installation of Goods or supply of any Service(s) and the provision of any related Service(s) including variation(s) by JCA except where such claim has arisen due to the negligence of JCA;

2.4.        The Client agrees that, upon request, they will provide proof of ownership of the land for proposed Service or that they are a tenant with the express consent of the owner of such land;

2.5.        This Agreement may only be amended with JCA consent in writing and shall prevail to the extent of any inconsistency with any other document or Agreement between the Client and JCA;

Variations

2.6.        In the event that:

2.6.1.    the Client requests a variation (requiring written details from the Client);

2.6.2.    an unforeseeable problem occurs or is discovered, requiring a variation; or

2.6.3.    a variation becomes necessary

JCA will give to the Client a written variation document detailing the Service, the Price, the estimated time to undertake the variation, and the likely delay, if any and require written acceptance of the variation before commencing work on the variation.

2.7.        Despite clause 2.6, the Client authorises JCA to carry out Make Safe Works without prior written acceptance where JCA reasonably considers it necessary, provided that (unless otherwise stated in a Quote) the cost of such Make Safe Works does not exceed $750.00 + GST in aggregate per attendance. JCA will notify the Client as soon as reasonably practicable and provide a written variation for any further rectification work required beyond Make Safe Works.

2.8.        The Client agrees to supply power, temporary lighting, toilet and first aid facilities to JCA, as required;

2.9.        The Client agrees it will ensure its premises are safe for JCA to enter and will restrain any pets or animals before JCA attends to carry out services;

2.10.     Every Quote is an estimate only and is subject to withdrawal, correction or alteration at any time prior to JCA’s acceptance of the quote;

2.11.     Services will be performed by JCA during business hours Monday to Friday 8.00am to 5.00pm unless otherwise stated in the Client’s quote. Prices are quoted on the basis that Service(s) will be performed during business hours referred to in this clause. Work required by the Client or otherwise needed outside of these hours, may increase the quoted price and be subject to after-hour / emergency call-out rates and the Client is solely responsible for notifying councils or appropriate authorities in relation to works done by JCA for the Client.

2.12.     The Client acknowledges that any scope, assumptions, exclusions, access requirements, and Site readiness requirements stated in a Quote form part of this Agreement and (to the extent of any inconsistency) prevail over general terms in this Agreement.

Incorporated Documents

2.13.     Any privacy policy and website terms of use published by JCA and notified to the Client are incorporated by reference to the extent they relate to collection and handling of information and communications with the Client, provided they do not override the agreed Price, scope, or warranty rights in this Agreement.

3. Underground Services

3.1.        In relation to any concealed services, roof/ceiling cavities, wall cavities, subfloors, and any works where building fabric may need to be penetrated (including but not limited to core holes, wall penetrations, roof penetrations, eave penetrations, and mounting works), JCA may be required to first engage a third-party to ensure the safety of such activity. JCA reserves the right to engage a third-party provider (including but not limited to a service locator, scanner, electrician, roofer, engineer, scaffold contractor, or access contractor) and on-charge the client for that service. Such an event will constitute a variation as detailed in clause 2.6 above. The Client will be consulted before any such engagement is made;

3.2.        Prior to Service(s) commencing, the Client must advise JCA of the precise location of any concealed or existing services and clearly mark the same where possible. These services include, but are not limited to, electrical wiring, switchboards, solar PV cabling, gas, water, sewer, stormwater, data and communications cabling, fibre optic cabling, alarms, sprinkler pipework, structural members, asbestos containing materials, and any other services that may be on that location; and

3.3.        Whilst JCA will take all reasonable care to avoid damage to any concealed or existing services, the Client accepts and agrees to indemnify JCA in respect of any and all claims, loss, damage, costs and fines incurred as a result of damage to services not precisely located and notified, as per the clauses herein.

3.4.        Where any Latent Condition is encountered, JCA may suspend work, revise method, engage a third party, and/or propose a variation under clause 2.6 and clause 9.2. Any additional time/cost arising from a Latent Condition is payable by the Client.

4. Access, Heights, Roof Work and Hazardous Areas

4.1.        Unless otherwise stated in writing by JCA, the Price or quoted price is based on the Site being safely accessible, including safe access to ceilings, roof spaces, subfloors, plant rooms, risers, balconies, and external mounting locations.

4.2.        If JCA encounters restricted access, unsafe access, height risks, brittle roofs, steep pitches, fragile materials, confined spaces, heat stress risks, vermin, unsafe wiring, unsafe ladders, missing edge protection, or any other WHS risk whilst undertaking the Services, then JCA may at its discretion:

4.2.1.    delay or extend the date that Services are due to be completed; and

4.2.2.    charge an added fee or cost to cover the cost in respect of the additional work and time required to undertake the Services by providing the Client with a variation.

4.3.        If JCA reasonably considers the Site unsafe to access or work upon, JCA may refuse or cease work until the Site is made safe (including by the Client engaging an appropriate specialist), and the Client remains liable for Call-Out Fees, Minimum Charges, and any time/cost incurred up to cessation.

5. Excavation Works & Concrete works

5.1.        Unless otherwise stated in writing by JCA, the Price does not include the cost to undertake:

5.1.1.    scaffolding, elevated work platforms, boom lifts, scissor lifts, crane lifts, rigging, traffic management, or special access equipment;

5.1.2.    roof anchor points, static lines, temporary edge protection, fall arrest systems or other height safety systems not already present and certified;

5.1.3.    structural engineering certification or reports;

5.1.4.    asbestos testing, hazardous materials testing, or specialist removal;

5.1.5.    builder’s works including (without limitation) carpentry, plastering, painting, brickwork, rendering, cabinetry modifications, roofing repairs, roof re-sheeting, flashing works beyond incidental sealing, or waterproofing;

5.1.6.    electrical works requiring a licensed electrician (unless expressly included);

5.1.7.    concrete cutting or drilling or similar works (Concrete Works); or

5.1.8.    reinstatement of ceilings, cornices, walls, roof tiles/sheets, insulation, paving, gardens, landscaping, or similar areas, which (unless expressly included in a Quote) will be additional to the Price and treated as a variation;

5.2.        Any quoted price in respect of Concrete Works is based on a concrete thickness of 150mm; and

5.3.        If JCA encounters a concrete thickness of greater than 150mm whilst undertaking Concrete Works then JCA may (in its sole discretion) charge an additional fee or cost to cover the cost in respect of the additional work, equipment or time required to undertake such Concrete Works.

5.4.        Unless expressly itemised in a Quote, all “make good”, patching, painting, tiling, waterproofing, cabinetry, carpentry, roof repairs, landscaping and similar reinstatement are excluded and (if requested) will be treated as a variation.

6. Existing Systems, Ducting, Roof Spaces and Concealed Conditions

6.1.        The Client acknowledges that:

6.1.1.    the presence of ageing equipment, non-compliant previous installations, undersized ducting, damaged ductwork, crushed ducts, blocked returns, inadequate ventilation, poor condensate drainage, or electrical defects may indicate that the existing system is damaged or unsuitable;

6.1.2.    existing defects and concealed conditions cannot be permanently fixed by cleaning, minor adjustments, or partial repairs where replacement or redesign is reasonably required;

6.1.3.    the Client is liable to pay JCA in the event that JCA (acting reasonably) is unable to repair or recommission an existing system due to faults, prior workmanship, non- compliance, lack of access, unavailable parts, or unsafe conditions; and

6.1.4.    JCA provides no warranty in respect of Services undertaken on existing damaged, non- compliant or deteriorated equipment, including (but not limited to), future faults, performance issues, or breakdowns in components JCA has not supplied and installed.

6.2.        The Client further acknowledges that:

6.2.1.    Specialised diagnostic equipment, leak detectors, commissioning tools, duct testing tools, thermal cameras and other inspection equipment may or may not be used by JCA in its sole discretion in an attempt to locate the cause of any fault;

6.2.2.    should specialised equipment be used the Client acknowledges that additional charges may be imposed; and

6.2.3.    should any of JCA’s equipment become lodged, damaged or lost within the Client’s roof space, ceiling cavity, subfloor, plant area or system, it will be removed & / or repaired at the Client’s expense (includes materials, parts & labour) or monetary compensation to the total replacement of same or higher quality value will become payable to JCA within 24 hours.

6.3.        Diagnostic Services are chargeable regardless of whether the Client proceeds with any recommended repair, replacement or upgrade, unless a Quote expressly states otherwise.

7. Roof Penetrations, Weatherproofing and Made-Good

7.1.        Unless specifically included in written quotes &/or estimates, roof penetrations, flashing upgrades, tile replacement, roof sealing, specialist waterproofing, or works to non-standard roof types will be charged out as a variation to the original price;

7.2.        Quotation is based on safe access and standard installation conditions only, unless otherwise specifically stated in writing;

7.3.        Existing materials shall be returned to the affected areas where possible & the area shall be left reasonably tidy;

7.4.        Landscaping and concrete works are not included in the Quote unless specified be in writing; and

7.5.        All building repair works (including plastering, painting, tiling, brickwork, roof repairs, waterproofing and similar) will be treated as a variation unless expressly included.

8. Change in Control

8.1.        Where the Client is a business or company, the Client shall give JCA not less than seven (7) days of 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 numbers, email addresses or business practice) (Change in Control Notice); and

8.2.        The Client shall be liable for any loss incurred by JCA as a result of the Client’s failure to comply with this clause.

9. Price and Payment

9.1.        At JCA’s sole discretion, the Price shall be either:

9.1.1.    as indicated in the Quote provided by JCA (and valid for the period stated in the Quote, or otherwise thirty (30) days);

9.1.2.    on any invoice provided by JCA to the Client; or

9.1.3.    $185.00 + GST per hour.

9.1         A Unless a Quote states a fixed price “all inclusive”, Services are charged on an attendance/time basis and may include (as applicable) Call-Out Fees, Minimum Charges, After-Hours loadings, Diagnostic Services, travel/parking/tolls, and third-party costs, as notified by JCA to the Client.

Variations

9.2.        JCA reserves the right to change the Price if a variation to JCA’s Quote is requested. Any variation from the plan of scheduled Services or specifications of the Service (including, but not limited to, any increases to JCA in the cost of taxes, levies, materials and labour or where additional Services are required due to the discovery of hidden or unidentifiable difficulties including, but not limited to, obscured building defects, safety considerations, change in specifications or prerequisite work by any third party not being completed, etc. which are only discovered on commencement of the Services) will be charged for on the basis JCA’s Quote and will be shown as variations on the invoice.

9.2         A If the cost of materials/equipment increases between Quote and supply (including supplier price rises, discontinued models, availability constraints, or freight increases), JCA may propose a variation under clause 2.6 and clause 9.2 to pass through the increase, or propose an equivalent substitute product.

Return of Goods

9.3.        If Goods cannot be returned, JCA reserves the right to claim the full costs of the Goods from the Client. If Goods can be returned, JCA reserves the right to on-charge any restocking fee applied to such returns, and additionally any reasonable costs of time and travel incurred to undertake such returns.

Time for Payment

9.4.        Time for payment for the Service and Goods being of the essence, the Price will be payable by the Client, in full, upon completion of the Service or on delivery of the Goods (whichever is later). At JCA’s sole discretion, time for payment may alternatively be:

9.4.1.    7 days from the date of any invoice provided;

9.4.2.    Payments by weekly instalments may be required where any job requires two (2) or more attendances by JCA;

9.4.3.    failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by JCA; and / or

9.4.4.    By way of Progress Payments.

Payment Method

9.5.        Payment may be made by cash, Stripe, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to three percent (3%) of the Price) or by any other method as agreed to between the Client and JCA; and

9.6.        Receipt by JCA 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, and until then JCA’s rights and ownership in relation to the Service and Goods, and this Agreement, shall continue.

GST

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

Discharge of Obligations

9.8.        JCA and the Client agree that the terms of this Agreement will not be finalised until:

9.8.1.    the Client has paid JCA all amounts owing to JCA; and

9.8.2.    the Client has met all of its other obligations to JCA.

Made to Order or Pre-ordered Goods

9.9.        The Client agrees to pay a fifty percent (50%) deposit to JCA for custom design, fabrication or made to order goods;

9.10.     The Client agrees to pay for the full purchase price of any Goods that are required before the Services can be provided; and

9.11.     If JCA cannot access the Client’s property or access is otherwise obscured, the Client agrees to pay a fee of $100.00 to JCA in addition to any Call-Out Fee/Minimum Charge.

Reattendance

9.12.     If a further attendance is required due to Reattendance reasons (as defined), the Client must pay the applicable Call-Out Fee and Minimum Charge for each attendance, and any wasted time/material handling/storage costs reasonably incurred.

No Sale by Description

9.13.     Any description of the Goods or Services provided in a Quote or Invoice is given by way of identification only and does not constitute a contract of sale by description.

10. Progress Payments Claims

10.1.     At JCA’s sole discretion, if there are any disputes or claims for unpaid Goods or Services, then the provisions of the Building and Construction Industry Security of Payment Act 2009 (SA) and/or the Building Work Contractors Act 1995 (SA) may apply (to the extent applicable to the relevant work and contract);

10.2.     Progress Payments are calculated according to JCA terms and conditions including but not limited to Quotes, variations, or proposals;

10.3.     Unless a Quote (or written variation) states otherwise, the reference date for the purposes of a payment claim is the last Business Day of each calendar month during which JCA has carried out the relevant work or supplied the relevant Goods and Services under this Agreement; and

10.4.     If the Client does not pay any invoice and or progress payment claim, JCA reserves the right to:

10.4.1.  halt any further work until such time as the outstanding payment is forthcoming without incurring any penalty;

10.4.2.  charge interest at a rate of 2.5% per month on any outstanding amount;

10.4.3.  exercise a lien over unfixed plant and materials supplied by JCA;

10.4.4.  recover the unpaid portion of a claimed amount as a debt due in Court;

10.4.5.  make an adjudication application; or

10.4.6.  serve notice on the Client of JCA’s intention to suspend carrying out construction works or supply Goods and Service.

10.5.     Nothing in this Agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2009 (SA); and

10.6.     The Client accepts that email is a valid format to receive payment claims made under the Building and Construction Industry Security of Payment Act 2009 (SA) and the Uniform Civil Rules 2020 (SA).

11. Performance of Services

11.1.     Service is taken to have occurred at the time that:

11.1.1.  JCA (or their nominated carrier) deliver the Goods to the Client’s nominated address, even if the Client is not present at the address (as may be agreed between the parties);

11.1.2.  JCA undertakes the Service at the Client’s nominated address, either in full or in part over one or more days, even if the Client is not present at the address (as may be agreed between the parties); or

11.1.3.  Any other method of service occurring, as agreed in writing by the parties to this Agreement.

11.2.     At JCA’s sole discretion, the cost of Goods is not included in the Price;

11.3.     The time, date and location for Service is to be agreed between the parties. In the event that the Client is unable to receive Service as arranged then JCA shall be entitled to charge a reasonable fee for reattendance and/or storage of Goods;

11.4.     JCA may undertake the Services in separate instalments. Each instalment may be invoiced and must be paid in accordance with this Agreement (including clause 9); and

11.5.     Any time or date given by JCA to the Client is subject to change. JCA will not be liable for any loss or damage incurred by the Client as a result of Service being late.

11.6.     Unless a Quote states a firm time, booked attendances are estimates only and may occur within a reasonable window. The Client must ensure access for the full window, otherwise clause 9.12 (Reattendance) applies.

12. Risk

12.1.     Risk in Goods supplied by JCA passes to the Client upon delivery to the Site (or other nominated delivery point), unless otherwise stated in a Quote. Risk in the Site, existing structures, and existing equipment remains with the Client at all times, subject to clause 25 (Damage to Property).

Insurance, Damage to & Return of Goods

12.2.     If any Goods are damaged or destroyed following Service but prior to ownership passing to the Client, JCA is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by JCA is sufficient evidence JCA rights to receive the insurance proceeds without the need for any person dealing with JCA to make further enquiries;

12.3.     The Client agrees that JCA may at their discretion refuse to provide the Service and or any Goods unless the Client has taken out appropriate insurance policies (as determined by JCA in its absolute discretion) and provides JCA with certificates of currency of such insurance policies;

12.4.     The Client has rights conferred on it by consumer protection legislation, including guarantees of the quality of provided Service and Goods. It is the Client’s sole responsibility to be aware of their rights. Beyond these statutory rights, JCA provides no other guarantees or warranties regarding the Goods or Service; and

12.5.     If the Client requests JCA to leave Goods outside their own premises, or outside JCA’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.

Discovery of Toxic Substances

12.6.     The Client acknowledges that in the event any toxic substances are discovered at the Site, it is the Client’s responsibility to ensure the safe identification and removal of the same; and

12.7.     If such removal is required, JCA will provide the Client with a written variation outlining the price to remove the substance(s) and seek client approval, in writing, prior to commencing work. The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Service.

12.7A. Without limiting clause 12.6 – 12.7, if asbestos (or suspected asbestos) or other hazardous materials are present or discovered, JCA may immediately cease work and require the Client to arrange licensed testing/removal. Any resulting delay/cost is a variation under clause 2.6 and clause 9.2.

Clear & Safe Access is Required

12.8.     The Client shall ensure that JCA has clear and free access to the place of work at all times to enable them to undertake the Services. JCA shall not be liable for any loss or damage to the site unless due to the negligence of JCA.

Suitability for Premises for the Service(s)

12.9.     Where JCA is required to provide Services or Goods, the Client warrants that the structure of the area in or upon which they are to be installed or erected is safe, sound and will sustain the installation and work incidental thereto and JCA shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the area be unable to accommodate the installation.

Where the Client Provides Goods

12.10.   Where the Client has supplied Goods for JCA to complete the Services, the Client acknowledges and accepts responsibility and liability for the suitability of purpose, quality and any faults inherent in those Goods. JCA shall not be liable for any defects in Goods, any loss or damage to property (or any part thereof), howsoever arising from the use of Goods supplied by the Client. Goods supplied by the Client must be available onsite prior to the commencement of Services.

Wear & Tear

12.11.   The Client acknowledges that the Goods supplied may fade, change or lose colour, expand, contract or distort due to weather and age, mark or stain or be damaged or disfigured by impact. Whilst JCA will make every effort to match samples supplied in order to minimise such variations, JCA shall not be liable in any way for such variations.

No Advice is Given

12.12.   Any recommendation or information provided by JCA is general in nature and is based on the information available to JCA at the time (including Site conditions reasonably observable and information provided by the Client). The Client remains responsible for deciding whether to proceed with any recommended works, upgrades or replacements; and

12.13.   If JCA provides recommendations (including to replace or upgrade equipment, rectify non-compliance, improve drainage/ventilation, or address a Latent Condition) and the Client chooses not to follow them, JCA is not liable for any resulting performance issues, recurring faults or losses to the extent caused by the Client’s decision not to follow the recommendation.

Goods Require Maintenance

12.14.   The Client accepts and acknowledges that Goods supplied and installed by JCA require reasonable maintenance. JCA reserves the right to not accept liability for such Goods where they may have become negatively affected, or unusable, due to the Client’s failure to reasonably maintain such Goods and/or, follow instructions, guidelines, advice or recommendations provided by JCA in regard to the proper maintenance of the Goods.

Dirt, Dust & Noise

12.15.   The Client accepts that machinery and tools used by JCA in the undertaking of Services may generate dust, smoke or dirt. JCA recommends that any property or equipment belonging to the Client is covered and windows and doors are opened whilst such machinery is in use; and

12.16.   The Client acknowledges that JCA will make all reasonable efforts to clean a work area, however the Client accepts that JCA may not remove all dirt, dust or other rubbish. JCA does not accept liability for such removal.

Site Readiness

12.17.   The Client must ensure (at no cost to JCA) that the Site is reasonably ready for the booked Services, including clear access to work areas, roof/ceiling access where required, sufficient clearance around units, available power supply, and that other prerequisite trades/works are complete. If not, clause 9.12 (Reattendance) and clause 9.2 (Variations) apply.

13. Dimensions, Design, Plans and Specifications

13.1.     JCA shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client;

13.2.     If the giving of a Quote for the supply of Service involves the Client estimating measurements and quantities, it shall be the responsibility of the Client to verify the accuracy of the Client’s estimated measurements and quantities in the preparation of quotes and sales proposals;

13.3.     JCA reserves the rights to make changes to the measurements after the Agreement has been signed to comply with regulations and requirements for installation, such charges constitute a variation; and

13.4.     All information, specifications and samples provided by JCA in relation to the Goods or Services are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect the services provided to the Client’s use of the Goods or Services will not entitle the Client to reject the Goods or Services upon Delivery or Installation, or to make any claim in respect of them.

14. Compliance with Laws and Safety Standards

14.1.     The Client and JCA shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable, including any work health and safety (WHS) laws relating to the relevant industry and any other relevant standards or legislation;

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

14.3.     The Client is solely responsible for any fines or other notices incurred by them, relating to the Services during and after installation or delivery.

14.4.     Without limiting clause 14.1, JCA performs regulated refrigeration and air conditioning work in reliance on its authorisations and licences including ARC Authorised No: AU 54227 and relevant building licences as applicable.

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

15.1.     The Client must inspect all Goods on delivery (or Services on completion) and must within three (3) days of delivery notify JCA, in writing, of any evident defect/damage, shortage in quantity or failure to comply with the description or quote. The Client must notify JCA of any other alleged defect in the Goods/Services as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow JCA to inspect the relevant Goods or Services;

15.2.     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”) ;

15.3.     JCA acknowledges that nothing in these terms and conditions purports to modify or exclude the Non- Excluded Guarantees;

15.4.     Subject to clause 15.2, clause 15.3, clause 15.5 and the ACL, JCA warrants that it will perform the Services with due care and skill and that:

15.4.1.  any workmanship warranty for Services is for a period of ten (10) years from completion of the relevant Services, unless a Quote states otherwise;

15.4.2.  any warranty for Goods is as provided by the manufacturer and/or supplier of those Goods (if any);

15.4.3.  JCA is not responsible for defects or failures caused by Client-supplied Goods, Client-supplied tools/equipment, third party workmanship or third party materials not engaged by JCA; and

15.4.4.  to the extent permitted by law, JCA may notify the Client in a Quote of any additional warranty exclusions or limitations specific to the Site or scope, before commencing the relevant Services.

15.5.  JCA liability in respect of these warranties is limited to the fullest extent permitted by law;

15.6.     If the Client is not a consumer within the meaning of the CCA, JCA’s liability is limited to the extent permitted by this Act;

15.7.     If the Client requests a return visit and JCA determines (acting reasonably) that the issue is not caused by JCA’s workmanship (including where caused by a Latent Condition, existing system defects, Client-supplied Goods, manufacturer defects, misuse, lack of maintenance, power supply issues, access issues, or third- party works), the Client must pay JCA’s Call-Out Fee, Minimum Charge, and time/materials for investigation and/or rectification.

15.8.     If JCA is required under the ACL to remedy a failure, JCA’s liability is limited to the remedies required by the ACL and, where the ACL permits JCA to choose a remedy, JCA may choose the remedy (including re- supplying the Services or paying the cost of having the Services supplied again, and/or repairing or replacing Goods or paying the cost of repair or replacement), as applicable.

15.9.     Subject to this clause 15, returns and refunds will only be accepted provided that:

15.9.1.  the Client has complied with the provisions of clause 15;

15.9.2.  JCA has agreed that the Services are defective;

15.9.3.  If relating to the return of Goods, the relevant Goods are returned within a reasonable time at the Client’s cost; and

15.9.4.  If relating to the return of Goods, the relevant Goods are returned in as close a condition to that in which they were delivered as is possible.

15.10.   Notwithstanding clauses 15.1 to 15.8 but subject to the CCA, JCA shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

15.10.1.  the Client failing to properly maintain the Serviced area or store the Goods;

15.10.2. the Client using the Services or Goods for any purpose other than that for which they were designed;

15.10.3. the Client continuing use or attempting to repair after any defect became apparent or should have become apparent to a reasonably prudent operator or user;

15.10.4. the Client failing to follow relevant procedures;

15.10.5.  the Client failing to follow instructions or guidelines provided by JCA; or

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

15.11.   Notwithstanding anything contained in this clause if JCA is required by a law to accept a return then JCA will only accept a return on the conditions imposed by that same law; and

15.12.   Unless otherwise stated or agreed in writing, demolished materials remain the property of the Client and materials which JCA bring to the location where Services are undertaken which are surplus, remain the property of JCA, unless such materials or Goods have been paid for by the Client.

16. Intellectual Property

16.1.     Where JCA has designed, drawn, written plans or a schedule or developed a Service for the Client, or created any products for the Client, then the copyright in any designs, drawings, plans, schedules, products and documents shall remain vested in JCA, and shall only be used by the Client at JCA discretion;

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

16.3.     The Client agrees that JCA may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Service which JCA has created for the Client;

16.4.     The Client agrees that JCA may also display the Client’s company or business name, logo, images or other media as part of JCA and/or other marketing materials relating to JCA’s Website, Social Media and Print Media, except where the Client have explicitly requested that JCA refrains from doing this in writing; and

16.5.     The Client acknowledges that JCA may use the Client’s name and/or trading name in a public description of the works performed for the Client for marketing and related purposes, subject to any written direction by the Client to the contrary.

17. Default and Consequences of Default

17.1.     Where an invoice has remained unpaid for seven (7) business days, JCA may charge a reasonable administration fee of $130 + GST per reminder issued (maximum 2 reminders), plus interest under clause 17.3/10.4.2;

17.2.     If the invoice remains unpaid after the reminder has been provided, solicitors or collection agents will be engaged, and the Client agrees to indemnify JCA for any legal and/or collection costs;

17.3.     Interest on overdue amounts accrues daily from the due date until payment in full at a rate of 2.5% per month, calculated monthly on the outstanding balance, and is payable on demand (including after judgment);

17.4.     If the Client owes JCA any money the Client shall indemnify JCA from and against all costs and disbursements incurred by JCA in recovering the debt (including but not limited to collection fees, legal costs on a solicitor and own client basis, JCA’s contract default fee, Court or any other institution filing fees and bank dishonour fees);

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

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

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

17.6.2.  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

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

18. Title

18.1.     JCA and the Client agree that ownership of the Goods shall not pass until:

18.1.1.  the Client has paid JCA all amounts owing to JCA; and

18.1.2.  the Client has met all of its other obligations to JCA.

18.2.     It is further agreed that until ownership of the Goods passes to the Client:

18.2.1.  the Client is only a bailee of the Goods and unless the Goods have become fixtures must, return the Goods to JCA on request;

18.2.2.  the Client holds the benefit of the Client’s insurance of the Goods on trust for JCA and must pay to JCA the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;

18.2.3.  the production of this Agreement by JCA shall be sufficient evidence of JCA’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with JCA to make further enquiries;

18.2.4.  the Client must not sell, dispose of, 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 JCA and must pay or deliver the proceeds to JCA on demand;

18.2.5.  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 JCA and must sell, dispose of or return the resulting product to JCA as it so directs;

18.2.6.  the Goods, whether as separate chattels or as components, and the proceeds from the use or sale of the Goods, shall be stored in such a manner as to be clearly identifiable and traceable as the property of JCA until title has passed to the Client;

18.2.7.  unless the Goods have become fixtures the Client irrevocably authorises JCA to enter the Client’s premises or any other premises where the Goods are known to be stored without notice (and the Client must ensure that JCA has the right to enter such premises at all times) to repossess the Goods and for this purpose the Client shall grant reasonable access rights and JCA, shall be entitled to do all things required to secure repossession or render inoperative such Goods or associated equipment by the removal of some component, part or device there from;

18.2.8.  JCA may recover possession of any Goods in transit whether or not delivery has occurred;

18.2.9.  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 JCA; and

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

19. Guarantee

19.1.     As security for the due and punctual payment and performance of the Client’s obligations under this Agreement, the Client may be required to (at JCA’s discretion), prior to the undertaking of Services by JCA, provide to JCA a guarantor (the “Guarantor”) to enter into this Agreement and guarantee and indemnify JCA on any or all of the following terms:

19.1.1.  The Guarantor unconditionally guarantees full Payment of all money owed by the Client under this Agreement and any ancillary documents and the observance and performance of all of the Client’s obligations as specified in or implied by this Agreement;

19.1.2.  The Guarantor indemnifies and must keep indemnified JCA against any costs, expenses, claims, liabilities, losses and damaged incurred by JCA in respect of any default by the Client under this Agreement, or arising out of any claim by any third-party relating to the terms of this Agreement;

19.1.3.  This guarantee covers all Services undertaken by JCA, including Variations;

19.1.4.  This guarantee is in favour of JCA and its employees, successors, assigns and agents;

19.1.5.  This guarantee extends to JCA’s reasonable costs and expenses of enforcing it (including legal costs on a solicitor and own client basis); and

19.1.6.  JCA may require the Guarantor under this guarantee to pay to JCA any outstanding amounts, or any other amount to compensate JCA for any loss or damage incurred under this Agreement, without JCA being required to institute any proceedings against the Client in respect of such claims or breaches;

19.2.     JCA’s rights against the Guarantor are not affected by:

19.2.1.  the death, bankruptcy or winding up of the Client or Guarantor;

19.2.2.  the Client’s liability under this Agreement, any variation or any other ancillary documents, assignments or extensions of the Agreement between the Parties; or

19.2.3.  any release of the Client or any Guarantor.

19.3.     This Guarantee is to be a continuing Guarantee and will be irrevocable and will remain in full force and effect until the whole of the money payable or which may become payable pursuant to the provisions of this Agreement has been paid and until all obligations of the Client, pursuant to this Agreement, have been duly and properly observed and performed or satisfied.

20. Security and Charge

20.1.     In consideration of JCA agreeing to supply the Services under this Agreement, the Client charges all of its rights, title and interest (whether joint or several) in any 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 of any money) or otherwise arising from the carrying out of the works;

20.2.     The Client acknowledges and agrees that JCA has a caveatable interest in the land from upon execution of this Agreement and that JCA is entitled to lodge and maintain a caveat on the title to the Land notifying JCA’s interested created by this Agreement;

20.3.     The Client agrees that upon execution of this Agreement to deliver to JCA, a caveat in registerable form with the consent to caveat signed by the Client to lodge and maintain a caveat on the title to the land notifying JCA in this Agreement together with a cheque in favour of the Lands Title Office for registration fee on the caveat;

20.4.     The Client agrees that JCA is entitled to register and a lodge a caveat on the Client’s property in JCA’s favour and that JCA will withdraw the caveat once all moneys owing to JCA by the Client pursuant to this Agreement are paid in full to JCA;

20.5.     The Client indemnifies JCA from and against all JCA’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising JCA’s rights under this clause;

20.6.     The Client irrevocably appoints JCA and each director and or Trustee of JCA as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 20 including, but not limited to, signing any document on the Client’s behalf;

20.7.     The Client acknowledges that JCA is entitled to apply to a Court for the sale of the property for the purpose of recovering any debt that may be outstanding under this Agreement relating to building works; and

20.8.     The Client acknowledges it has had the opportunity to obtain independent legal advice in relation to this clause 20 and enters into this Agreement voluntarily.

21. Cancellation

21.1.     JCA may cancel any contract to which these terms and conditions apply or cancel Service at any time before the Service is provided or delivered by giving notice to the Client. On giving such notice JCA shall invoice the Client for any work completed up to that point and any materials purchased. The Client will have the option to purchase those materials from JCA at cost value plus any fees charged by JCA for delivery of those materials to an address nominated by the Client. JCA shall not be liable for any loss or damage whatsoever arising from such cancellation.

21.2.     The Client may cancel any contract to which these terms and conditions apply. For Services in excess of

$1,000.00 (excluding GST), to the extent of costs reasonably incurred (including labour allocation, scheduling capacity, supplier restocking, and travel), the following cancellation fees apply, which the Client acknowledges are a reasonable estimate of loss likely to be suffered by JCA:

21.2.1.  Within 72 hours – 15% of the total cost of the Service;

21.2.2.  Within 48 hours – 25% of the total cost of the Service;

21.2.3.  Within 24 hours – 50% of the total cost of the Service; or

21.2.4.  on the day – the applicable Call-Out Fee and Minimum Charge plus any non-cancellable third-party costs already incurred (including restocking fees, freight, and hire/access equipment) and any travel already undertaken.

21.2.5.  Otherwise, for Services less than $300.00 (exclusive of GST), the Client may cancel any contract to which these terms and conditions apply by giving 48 hours notice to JCA.

21.2.6.  If less than 24 hours of notice is given, JCA reserves the right to charge an administration fee, and any reasonable costs for time and travel incurred by JCA.

21.3.     JCA reserves the right not to refund any deposit where the Client has cancelled or terminated a contract.

21.4.     If the Client cancels or terminates this Agreement, JCA reserves the right to charge an administrative fee of up to $250.00 to the Client.

21.5.     Cancellation or termination will only be accepted by JCA if provided in writing. The Client remains liable for amounts properly payable under this clause 21, for work performed up to cancellation, and for any non- cancellable third-party costs reasonably incurred by JCA prior to cancellation.

21.6.     Cancellation of orders for Service or goods made to the Client’s specifications, or for non-stock list items, will not be accepted once production has commenced, or an order has been placed and any payment (including a deposit) will be forfeited at the sole discretion of JCA.

21.7.     If the Client requests to reschedule after JCA has allocated labour/materials/booking capacity, JCA may charge a reasonable rescheduling fee and/or apply clause 9.12 (Reattendance), depending on timing and costs incurred.

22. General

22.1.     If any one or more of the provisions contained in this Agreement must, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability must not affect any other provisions of this Agreement, but this Agreement must be construed as if such invalid, illegal or unenforceable provisions had never been contained in this Agreement, unless the deletion of such provision or provisions would result in such a material change so as to cause completion of the transactions contemplated in this Agreement to be unreasonable.

22.2.     These terms and conditions and any contract to which they apply shall be governed by the laws of South Australia, the state in which JCA has its principal place of business and are subject to the jurisdiction of the courts in that state;

22.3.     To the maximum extent permitted by law and subject to the ACL, JCA is not liable to the Client for any indirect or consequential loss (including loss of profit, loss of revenue, loss of opportunity, business interruption, or loss arising from delay). To the extent JCA is liable for any claim arising out of or in connection with this Agreement (including negligence), JCA’s aggregate liability is capped at the Price actually paid by the Client to JCA for the specific Services giving rise to the claim, unless a Quote states a higher cap or the ACL requires otherwise.

22.4.     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 JCA nor to withhold payment of any invoice because part of that invoice is in dispute;

22.5.     Any amendment applies only to future Services requested after the notice and does not vary an accepted Quote or agreed Price/scope for work already booked or underway;

22.6.     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;

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

22.8.     Each Party to this Agreement must at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce;

22.9.     A failure by a party to this Agreement to give notice to any other party or to take any steps in exercising any right, or in respect of the breach of or non-compliance with any provision of this Agreement, is not to be construed as a waiver of that right, breach or provision nor will any single or partial exercise of any right preclude any other or future exercise of that right or the exercise of any other right, whether in law or otherwise.

22.10.   This Agreement does not and is not intended to confer any rights or remedies upon any person other than the parties;

22.11.   Each party must not make, express, transmit, speak, write, verbalise or otherwise communicate in any way (directly or indirectly, in any capacity or manner) any remark, comment, message, information, declaration, communication or other statement of any kind (whether verbal, in writing, electronically transferred or otherwise) that might reasonably be construed to be critical of, or derogatory or negative towards, any other party or any Representative of any other party, or cause, further, assist, solicit, encourage or knowingly permit any other person to do so, or support or participate in any other person doing so and must take all reasonable steps to prevent its Representatives from doing so. However, this clause 22.11 shall not prohibit any party from making any statement or disclosure as required by law or court order, provided that such party must promptly notify the other party in writing in advance of any such statement or disclosure, if reasonably practicable and reasonably assist the other party in obtaining confidential treatment for, or avoiding or minimising the dissemination of, such statement or disclosure to the extent reasonably requested by any party;

22.12.   Termination of this Agreement will not affect any rights or liabilities that the parties have accrued under it prior to such termination;

22.13.   The parties agree that time is of the essence except where delay is caused by the act or default of a third party or where it results from factors outside the control of the parties.

22.14.   The obligations of the parties relating to confidentiality, non-disparagement, payment and intellectual property will survive the termination of this Agreement;

22.15.   Each party warrants to the other party that it does not, and will ensure that its personnel do not, have a conflict of interest when performing their duties under this Agreement. A party must promptly inform the other party of any matter which may give rise to an actual, potential or perceived conflict of interest and comply with any reasonable directions given by the other party in terms of dealing with that conflict. The failure by a party to comply with this clause will constitute a breach of a material term of this Agreement; and

22.16.   For the purposes of clause 22.15, a conflict of interest means circumstances in which, due to a direct or indirect relationship (commercial or otherwise, including any potential relationship, opportunity or inducement, whether existing at commencement or arising later), a party is unable to discharge its obligations to the other party in an objective and independent manner and to the best of its ability.

23. Training

23.1.     The Client agrees and acknowledges that it has received adequate instructions (including manuals) from JCA regarding the correct and safe use of the goods, which may include a demonstration or verbal or written instructions.

24. Relationship of Parties

24.1.     Nothing in these terms, or any other materials relating to this Agreement, imply any agency of JCA on the Client. At all times JCA and the Client are considered separate parties to this Agreement; and

24.2.     The Client may not enter any Agreement on JCA’s behalf.

25. Damage to Property

25.1.     JCA may need to cut, drill, penetrate, remove or disturb building fabric, linings, insulation, tiles, ducting, ceilings, roofs, walls, paving or similar to access, install or service equipment. Unless expressly included in a Quote, any “make good”/reinstatement is excluded and treated as a variation under clause 2.6 and clause 9.2.

25.2.     If JCA causes damage to the Client’s property by failing to take reasonable care in performing the Services (negligence), JCA will (at its option) either repair the damage (or pay the reasonable cost of repair) up to the liability cap in clause 22.3, subject to the Client:

25.2.1.  notifying JCA in writing within a reasonable time (and in any event within 7 days of becoming aware);

25.2.2.  allowing JCA a reasonable opportunity to inspect before repairs are undertaken (unless urgent safety reasons require immediate repair); and

25.2.3.  taking reasonable steps to mitigate further loss.

25.3.     JCA is not responsible for:

25.3.1.  damage arising from Latent Conditions, pre-existing defects, non-compliant prior work, fragile/brittle materials, hidden services not disclosed as required by clause 3.2, or unsafe Site conditions; or

25.3.2.  cosmetic imperfections reasonably incidental to the work, unless a Quote expressly includes cosmetic restoration.

26. Proper Use of Equipment

26.1.     The Client may not use the Goods or Service for any purpose other than that agreed to between the parties; and

26.2.     The Goods or Service provided will not be used by the Client, or any other person, for any illegal purpose, or to convey, carry manufacture, or load any illegal substances or materials.

27. Assembly / Installation

27.1.     If the parties agree that JCA shall assemble/install the Goods or provide Service(s) to the Client, the Client is responsible to JCA for performing correctly and enabling provisions and/or conditions necessary for the erection or installation goods or equipment and/or for the correct operation of the Good in assembled/installed state on time. This shall not apply if and insofar this performance is done by (order of) JCA according to data and/or drawings made or presented by (order of) the Client;

27.2.     Without prejudice to the provisions in clause 27.1, the Client shall, if the parties have agreed that JCA shall assemble/install the Goods to be delivered, in any case see to it at its own expense and risk that:

27.2.1.  The employees of JCA can commence and continue their work during normal working hours from the moment they arrive at the place of assembly/installation and, moreover, if JCA deems it necessary, outside of normal working hours provided that the Client has been notified in time;

27.2.2.  suitable accommodation and/or all provisions under law and relevant standards, the Agreement and common use will be available to the employees of JCA;

27.2.3.  the access routes to the place of installation are suitable for the required transport;

27.2.4.  the assigned site for installation or providing services is suitable;

27.2.5.  the required lockable storage areas for materials, tools and other items are made available;

27.2.6.  the necessary and usual workmen, ancillary tools, auxiliary and industrial materials (fuels, oils and greases, cleaning and other small materials, gas, water, compressed air, electricity, steam, heating, lighting, etc. included), and the usual measuring and testing instruments of JCA are in the right place at the disposal of the Client on time and free of charge;

27.2.7.  all necessary safety and precautionary measures have been taken and shall be maintained, and that all measures have been taken and shall be maintained in order to satisfy the appropriate legislation, regulations and relevant standards with respect to assembly/installation;

27.2.8.  any dispatched Goods are at the right place at the beginning of and during the assembly/installation; and

27.2.9.  Damages and costs that arise because the conditions stated in this clause 27 have not been fulfilled on time or at all are the liability of the Client.

28. Marketing

28.1.     The Client grants to JCA the right to:

28.1.1.  Take photographs, film, videotape or other images of the works completed in or otherwise located at the Client’s premises, and to use, reproduce, publish, edit, modify, dispose of or otherwise deal with those images; and

28.1.2.  Reproduce and publish the Client’s name and trademarks and disclose the fact that JCA has provided Services or Goods to the Client.

28.2.     JCA may collect and use the Client’s personal information for providing Services, invoicing, warranty administration, and related communications. JCA may share necessary information with suppliers/manufacturers/subcontractors for these purposes.

29. Subcontracting

29.1.     JCA may subcontract and/or engage subcontractors for all or any part of the Services without the Client’s consent;

29.2.     The Client agrees and understands that they have no authority to give any instruction to any of JCA’s contractors or sub-contractors without the authority of JCA;

29.3.     JCA will endeavour to notify the Client of such license or sub-contracting; however, it is not obliged to do so;

29.4.     Any fees incurred by sub-contractors in relation to services or goods provided to the Client must be paid by the Client according to the terms of this Agreement;

29.5.     JCA remains responsible for the performance of subcontracted Services to the extent required by law (including the ACL); and

29.6.     To the extent permitted by law, JCA is not liable for loss caused by a third party not engaged by JCA (including other trades, the Client’s contractors, utility providers, or manufacturers where the manufacturer is responsible under its warranty), and clause 22.3 applies.

30. Consumer Credit Protection

30.1.     The Client warrants that the Goods are supplied by JCA to the Client for the purposes of a business, and that the National Credit Code contained in the National Consumer Credit Protection Act 2009 (Cth) does not apply;

30.2.     If the Client purchases any Goods from JCA for resupply as, or to incorporate any of JCA’s Goods into goods ordinarily acquired for personal household or domestic use (Consumer Goods) the Client warrants that:

30.2.1.  if a Client supplies the Consumer Goods for resupply, the Client will ensure that its terms and conditions of supply require the Client’s customers (and each person in the distribution chain) to include in their supply agreements or conditions of sale obligations requiring their customers to also exclude liability for any claims under the National Credit Code;

30.2.2.  if the Client supplies the Consumer Goods directly to an end user/consumer the Client will do so using terms and conditions of supply which exclude liability for claims under the National Credit Code, but only where the end user/customer acquires the Consumer Goods for business purposes; and

30.3.     Where the Client purchases the Goods for resupply, the Client indemnifies JCA to the maximum extent of the law for all claims arising from the resale and use by the Client’s purchaser.

31. Personal Property Securities Act 2009 (“PPSA”)

31.1.     In this clause, “financing statement”, “financing change statement”, “security agreement” and “security interest” have the meanings given in the Personal Property Securities Act 2009 (Cth) (PPSA);

31.2.     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 and/or collateral (account) – being a monetary obligation of the Client to JCA for services – that have previously been supplied and that will be supplied in the future by JCA to the Client;

31.3.     Client further undertakes to 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 JCA may reasonably require to:

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

31.3.2.  register any other document required to be registered by the PPSA; or

31.3.3.  correct a defect in a statement;

31.3.4.  indemnify, and upon demand reimburse, JCA 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;

31.3.5.  not register a financing change statement in respect of a security interest without the prior written consent of JCA;

31.3.6.  not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of JCA; and

31.3.7.  immediately advise JCA 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.

31.3.8.  Immediately advise JCA of any change in the Client’s grantor details.

31.4.     JCA 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;

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

31.6.     The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA;

31.7.     Unless otherwise agreed to in writing by JCA, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA; and

31.8.     The Client unconditionally ratifies any actions taken by JCA under clause 31 subject to any express provisions to the contrary (including those contained in this clause 31) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

32. Advice

32.1.     The Client agrees and acknowledges that it has received adequate instructions from JCA; and

32.2.     The Client acknowledges it has not relied on any service involving skill and judgment, or on any advice, recommendation, information or assistance provided by JCA in relation to the goods or services or their use or application.

33. Dispute Resolution

33.1.     If a dispute arises between the parties in relation to this Agreement, JCA may deal with the dispute in accordance with this clause 33;

33.2.     Any party claiming that a dispute exists must notify the other party to the dispute (Second Party) in writing of the nature of the dispute;

33.3.     If the dispute is not resolved by Agreement within five working days of the Second Party receiving the notice referred to in clause 33.2 above, either party may refer the matter to mediation conducted by a mediator agreed between the parties within a further five working days or failing Agreement within that period, as appointed by the executive director for the time being of the Australian Commercial Disputes Centre Limited.

33.4.     The costs of the mediator must be borne equally between the disputing parties. The chosen mediator must determine the procedures for the mediation. The chosen mediator will not have the power or authority to make any other determination in relation to the dispute; and

33.5.     If the parties have not mediated a resolution of the dispute within 14 days of the selection of a mediator, neither party must be obliged to continue any attempt at mediation under this clause, and either party may then commence such legal proceedings as it thinks fit in relation to the dispute.

34. Time for Payment of the Essence

34.1.     The parties agree that time is of the essence for payment to JCA for any money arising out of or in connection with this service Agreement.

35. Consumer Contracts

35.1.     If a contract constituted by this Agreement is a ‘consumer contract’ or ‘small business contract’ (each as defined in the Australian Consumer Law in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (ACL) and a term of that contract would, but for this clause be ‘unfair’ (as defined in section 24(1) of the ACL), JCA may only apply or rely upon that term to the extent that doing so is reasonably necessary to protect JCA’s legitimate interests.

36. Novation

36.1.     JCA may assign, transfer, novate, and otherwise deal in any manner with, all or any part of the benefit of this Agreement and any of its rights, remedies, powers, duties and obligations under this Agreement to any person, without the consent of the Client.

Recovery of the Goods & Right of Entry

36.2.     JCA may recover possession of any Goods in transit whether or not delivery has occurred;

36.3.     JCA may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client;

36.4.     The Client agrees to be liable for all costs incurred by JCA in the recovery of outstanding amounts, or withheld Goods;

36.5.     Without prejudice to the rights of JCA to recover any money owed by the Client, for payment of fees or for damages for breach of this Agreement, the Client irrevocably authorises JCA to enter any premises where JCA believes the Goods are kept and recover possession of the Goods; and

36.6.     The Client agrees to indemnify JCA in respect of any claims, damages, expenses, or costs arising out of any action taken as a result of this clause.

37. Legal Fees and Collection Costs.

37.1.     To the extent not prohibited by applicable law, the Client must pay to JCA on demand all reasonable costs, charges and expenses incurred by JCA in connection with the enforcement of this Agreement or recovery of any overdue amounts, including (without limitation) collection costs, legal costs on a solicitor and own client basis, court filing fees, process server fees, and costs incurred in insolvency or bankruptcy proceedings.

38. Reasonable Endeavors

38.1.     Each party must promptly do all things reasonably necessary to give effect to this Agreement and to facilitate the timely performance of the Services, including providing information and access reasonably required by the other party.

39. Counterparts & Electronic Exchange

39.1.     This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same Agreement. No counterpart shall be effective until each party has executed at least one counterpart;

39.2.     Delivery of an executed counterpart of this Contract by facsimile, or by email in PDF or other image format, will be equally effective as delivery of an original signed hard copy of that counterpart; and

39.3.     If the Client delivers an executed counterpart of this Agreement under clause 39.2, it need not also deliver an original signed hard copy of that counterpart, and any failure to provide a hard copy will not affect the validity, enforceability or binding effect of this Agreement.

40. Entire Agreement

40.1.     This Agreement constitutes the entire Agreement between the parties relating to in any way to its subject matter, unless otherwise agreed by JCA and the Client in writing.

Agreement

If you agree to terms of this Service Agreement, please sign below. Please return a copy of the signed document to us, and keep a copy for your own records.

Signed:…………………..………………………………………………….

Name:

Date:

Witness:…………………………………………………………………….

Name:

Date:

[OR]

Executed by the Director of……………………………………………………………………. in their capacity as Director in accordance with

Section 127(1) of the Corporations Act 2001 (Cth):

Signed………………………………………………………………………

Name:

Date:

Guarantor (if required):

Signed:…………………..………………………………………………….

Name:

Date:

Witness:…………………………………………………………………….

Name:

Date: