terms & conditions

To the fullest extent legally possible, all dealings between MANNIX ELECTRICAL PTY LTD ABN 24007695758 (& each of its subsidiaries, divisions, affiliates, associated & related entities & its successors & assigns) (“Airware Sales”) & any Customer (” Customer”) relating to any goods or services are subject to the following Terms & Conditions of Trade (“these Terms”) unless otherwise agreed in writing.

1.Payments: (a) Unless otherwise agreed by Airware Sales in writing, payment must be made without deduction, retention or set-off of any kind, upon collection of goods (or such other payment terms notified by Airware Sales) and Airware Sales reserves the right to require a deposit (of any amount it deems fit) to be paid at the time of the Customer placing its order; (b) Airware Sales may apply a payment received from the Customer to any amounts owed by the Customer (including interest, part payment of an invoice, administration, collection and other costs) in any order; (c) Airware Sales is entitled to set-off or deduct any amount payable by Airware Sales to the Customer.

2. Interest: Interest is payable on overdue accounts at the rate prescribed under the Penalty Interest Rates Act 1983 (Vic) plus an additional 3% and a monthly admin fee of $25 will apply.
3. Property: (a) Property in goods will not pass until payment in full of all monies owed to Airware Sales on any basis (“Full Payment”); (b) Airware Sales reserves the right to take possession and dispose of goods as it sees fit at any time until Full Payment and the Customer grants permission to Airware Sales to enter any property where any goods are, in order to do so and with such force as necessary; (c) Immediately upon delivery the Customer accepts liability for the good; (d) A certificate signed by an officer of Airware Sales identifying goods and certifying that monies are owing to Airware Sales will be conclusive evidence of Airware Sales’ title thereto; (e) Upon sale or disposition of goods prior to Full Payment the Customer agrees to hold all proceeds Upon Trust for Airware Sales in a separate bank account, agrees not to mix proceeds with any other monies and will immediately account to Airware Sales therefore even if Airware Sales may have granted any credit facility and/or time to pay; (f) Until Full Payment the Customer agrees: (i) to keep all goods as fiduciary for Airware Sales and store them in a manner which shows Airware Sales as owner; (ii) only to sell goods in the usual course of business; (iii) sale on terms, at cost or less than cost will not be “in the usual course” (g) Clause 3 is not intended to create a charge and must be read down to the extent necessary to avoid being a charge; (h) If the Customer uses or incorporates any goods in any production, process or manufacture or combines them with anything to create a finished or combined new thing for disposition then upon such disposition prior to Full Payment, the Customer agrees to hold such part of the proceeds thereof (and until payment is received by the Customer, that part of any applicable book debt) as equals the costs of the goods used and/or incorporated therein (at the prices invoiced by Airware Sales to the Customer) Upon Trust for Airware Sales until Full Payment.
4. Limitation of Liability: Subject always to the operation of clause 40: (a) The Customer must limit any claim upon Airware Sales relating to goods, to the cost of replacement of goods or the supply of equivalent goods and relating to services, to the cost of having services supplied again; (b) Airware Sales will not be liable for any claim arising after 7 days from delivery of goods or performance of services (or at all once goods have been unpacked, modified, on-sold or otherwise used or applied) after which there will be deemed to be unqualified acceptance; (c) Airware Sales will not be liable in any way for any contingent, consequential, direct, indirect, special or punitive damage arising whether due to Airware Sales’s negligence or otherwise and the Customer acknowledges this limit of liability and agrees to limit any claim accordingly; (d) No other term, condition, agreement, warranty, representation or understanding whether express or implied in any way extending to or otherwise relating to or binding upon Airware Sales is made or given; (e) Airware Sales will not be liable for any claim relating to or arising from any alleged fault or defect, whether caused or contributed to by Airware Sales, the Customer or any 3rd party or otherwise.
5. Returns: (a) If Airware Sales elects to take back product it must be in as new and saleable condition and upon terms agreed and a re-stocking fee of not less than 15% of invoice value will apply. (b) Custom made or custom processed goods or goods acquired by Airware Sales specifically for the Customer will not be returnable. (c) Any goods which are accepted by Airware Sales as defective may be returned and will be replaced free of charge or be the subject of a credit for the invoiced value. “Free of charge” does not include labour, transport or material costs.
6. Placement of Orders: (a) If any dispute arises concerning any order (and including any measurement quality quantity identity or authority or any telephone facsimile e-mail or computer generated order) the internal records of Airware Sales will be conclusive evidence of what was ordered; (b) Each order placed will be and be deemed to be a representation made by the Customer at the time that it is solvent and able to pay all of its debts as and when they fall due. (c) Failure to pay in accordance with these Terms will be and be deemed to be conclusive evidence that the Customer had no reasonable grounds for making the representation referred to in 7(b) and that the representations were unconscionable, misleading and deceptive. (d) When any order is placed, the Customer must inform Airware Sales of any material facts which would or might reasonably affect the commercial decision by Airware Sales to accept the order and/or grant credit in relation thereto. Any failure to do so will create and be deemed to create an inequality of bargaining position and will constitute and be deemed to constitute the taking of an unfair advantage of Airware Sales and to be unconscionable, misleading and deceptive. (e) Where the Customer has not signed a credit application, quotation or other order with Airware Sales binding it to these Terms and Conditions, the Customer acknowledges and agrees that by placing an order with Airware Sales and/or engaging Airware Sales to provide goods and/services, the Customer agrees to be bound by these Terms and that these Terms will govern the Customer’s dealings with Airware Sales.
7. Delivery: (a) Airware Sales accepts no responsibility for delivery but may elect to arrange delivery at its discretion and without any liability and at the Customer’s costs and responsibility in all things; (b) Airware Sales reserves the right to charge for any delivery. (c) The Customer will be deemed to have accepted delivery and liability for the goods immediately Airware Sales notifies that they are ready for collection or when they are delivered to a carrier or to the Customer’s business premises or site whether attended or not. (d) A certificate purporting to be signed by an officer of Airware Sales confirming delivery will be conclusive evidence of delivery as will any signed delivery docket. (e) Airware Sales will not be liable for delay, failure or inability to deliver any goods. (f) Once the Customer has been notified that goods are ready for collection, the Customer agrees to pay all costs of holding or handling goods. (g) Frustrated Delivery: If time spent delivering exceeds 30 minutes or requires more than one attempt, the Customer agrees to pay all costs relating thereto plus a loading of 10% to cover administration costs. (h) Delivery and installation times agreed to or notified by Airware Sales are estimates only and Airware Sales may vary such delivery or installation times without notice. The Customer is not entitled to terminate its order or agreement with Airware Sales as a result of a delivery or installation time so varied.
8. Variation: Variation or cancellation of any order, dealing or arrangement must be agreed in writing.
9. Exclusions: (a) No dealing with the Customer will be or be deemed to be a sale by sample or description; (b) If Airware Sales publishes material about its goods and prices, any part which is incompatible with these Terms is expressly excluded; (c) The Customer will rely on its own knowledge and expertise in choosing any product for any purpose; (d) Any advice or assistance given for or on behalf of Airware Sales must be accepted at the Customer’s risk and must not be or be deemed given as expert or adviser nor to have been relied upon.
10. On-Sale: The Customer agrees that upon on-sale of any goods to inform any third party involved of these Terms and in particular the provisions of Clause 3 and especially Clause 3(h).
11. Severability: Any part of these Terms can be severed without affecting any other part.
12. Purchase Price: (a) All sales are made by Airware Sales at its ruling price at the time of delivery’ (b) Government imposts and any GST will be to the Customer’s account.
13. Default: Default or breach by the Customer of these Terms or in any dealings with Airware Sales will entitle Airware Sales to retain all monies paid, call-up all monies due or owing (whether currently due and owing or not), cease further deliveries and recover from the Customer all loss of profits without prejudice to any other of its rights under these Terms or at law.
14. Products and Services: (a) Airware Sales disclaims any responsibility or liability whatsoever relating to suitability for any particular purpose or process; (b) The Customer agrees to check all goods prior to use alteration or any application thereof whether in relation to suitability for any particular purpose, process or otherwise; (c) the Customer agrees to check and test all goods for compliance with all relevant applicable standards and regulatory bodies before use, installation, on-sale or application and to use or apply same in accordance with all applicable standards, regulations and guidelines, with all manufacturers and/or Airware Sales recommendations and directions as well as with good commercial practice; (d) Airware Sales may update modify make substitution or alter any of its goods or any component or raw material incorporated in or used in forming any part of any goods as part of its ongoing business. The Customer agrees to accept current goods in substitution for any goods ordered provided they are not materially different; (e) Airware Sales disclaims any responsibility or liability relating to any goods: (i) processed or made to designs, drawings, specifications or measurements etc. or with materials which are provided or approved (whether in part or fully) by or on behalf of the Customer; and/or (ii) utilised, stored, handled or used incorrectly or inappropriately.
15. Other Terms and Conditions and Notice: (a) Terms and/or conditions sought to be imposed by the Customer upon Airware Sales will not apply unless agreed in writing by Airware Sales (b) The Customer will be deemed to have notice of any change to these Terms, immediately Airware Sales adopts them.
16. Recovery Costs: The Customer will pay all costs and expenses of Airware Sales, its legal advisers, mercantile agents and others acting on its behalf in respect of anything instituted or being considered as a result of any breach of these Terms or breach of any dealings with Airware Sales.
17. Attornment: To give effect to its obligations arising under in these Terms (and especially clause 22) the Customer hereby irrevocably appoints any solicitor for Airware Sales from time to time, as its attorney.
18. Customer Restructure: The Customer will notify Airware Sales of any change in its structure or management including any change in director, shareholder, management, partnership or trusteeship or sale of any material part of its business within 7 days of any such change.
19. Jurisdiction: All contracts made with Airware Sales must be deemed to be made in South Australia and Victoria and the parties submit to the jurisdiction of the appropriate Courts in or nearest Adelaide or Melbourne respectively.
20. Credit Line: Airware Sales can vary or withdraw any credit facility or limit at any time at its discretion and without any liability to the Customer or any other party.
21. Waiver: If Airware Sales elects not to exercise any rights arising as a result of breach of these Terms it will not constitute a waiver of any rights relating to any subsequent or other breach.
22. Security For Payment: The Customer: (a) if it is a company, agrees that on written request, it must charge in favor of Airware Sales: (i) by way of a fixed charge, all its books of account goodwill documents of title and current and later acquired real and intellectual property; (ii) by way of a floating charge the whole of the Customer’s other undertaking property and assets with Full Payment; (b) if it is a natural person (or more than one natural person), hereby charges for the due and punctual payment and performance of his/her obligations under these Terms, all of his/her legal and equitable interest (both present and future) of whatsoever nature held in any current and later acquired real property; (c) grants a lien to Airware Sales over any of its property in the possession or control of Airware Sales until Full Payment; (d) agrees, on request by Airware Sales to execute any documents and to do all things requested by Airware Sales to register a mortgage security over any current or later acquired real property he/she has an interest; (e) consents unconditionally to Airware Sales lodging a caveat noting its interest in any current or later acquired real property the Customer has an interest in; (f) agrees that Airware Sales may exercise its rights under clause 17 to effect compliance with this clause 22 where the Customer fails to do so.
23. Force Majeure: Airware Sales will not be in default or breach of any dealing with the Customer as a result of Force Majeure (i.e.: anything beyond Airware Sales’ reasonable control).
24. Specifications: (a) Any illustration drawing or specification supplied by Airware Sales (“Specs”) are drafts and approximates; (b) Any tangible or intellectual property rights in Specs remain the property of Airware Sales and may be recalled at any time; (c) Specs are to be treated at all times as confidential and not made use of without the prior written consent of Airware Sales.
25. No Set-Off: No Set-off or counterclaim will be made or applied by the Customer until payment in full of all bona fide invoices raised by Airware Sales (whether current or overdue) and this clause may be pleaded as a bar to any action taken prior to such payment in full. 26. Stock Discretion: Airware Sales has a continuing discretion to allocate available stock and gives no warranty as to certainty of supply unless expressly agreed in writing in advance.
26. Partial Delivery/Forward Orders: If the Customer places forward orders or requests partial or installment delivery, the Customer agrees: (a) to pay for so much of any order as is from time to time delivered by Airware Sales; (b) that no delay or failure to fulfill any part of any order will entitle the Customer to cancel or vary any order or delay or reduce any payment.
27. Indemnity: The Customer indemnifies Airware Sales against any claim or loss arising from or related in any way to any contract or dealing between Airware Sales and the Customer or anything arising there from or arising as a result of or subsequent to any breach of these Terms.
28. Insolvency: (a) If the Customer commits or is involved in any act of insolvency, it will be deemed in default under these Terms. (b) An act of insolvency includes bankruptcy, liquidation, receivership, administration or the like and failure to pay in accordance with these Terms.
29. Quotations: The Customer agrees: (a) quotations must be in writing; (b) Airware Sales shall not be bound by any quotation if an order is placed later than 28 days from the date of quote; (c) prior to receipt of any order Airware Sales may amend a quote; (d) Airware Sales shall not be bound by any quote if it forms the view that the subject matter of the quotation is to form part of a larger transaction or series of transactions with the Customer and those circumstances have materially changed; (d) Airware Sales shall not be bound by any quote if it forms the view that the subject matter of the quotation is to form part of a larger transaction or series of transactions with the Customer and those circumstances have materially changed; (e) to pay any reasonable charges Airware Sales claims for holding any goods referred to in any quote pending placement of an order. (f) Airware Sales reserves the right to cancel an order or withdraw a quote (even if it has been accepted by the Customer) at anytime. Payment of a deposit by a Customer is not to be deemed acceptance of a quote.
30. Recalls: In the event of a product recall (“Recall”), the Customer must give Airware Sales such assistance as Airware Sales reasonably requires in relation to that Recall.
31. Non derogation: The rights, powers and remedies available to Airware Sales under these Terms are in addition to and are not in derogation of Airware Sales’s powers, rights and remedies existing at common law, or given by any law at any time in force (including but not limited to the Building and Construction Industry Security of Payment Act 2002 (Vic)).
32. Protection of works and safety of personnel: The Customer agrees that: (a) it is responsible for keeping the site at which the goods and services will be delivered, secure, safe (for the provision of the services by Airware Sales and its personnel) and free from contamination; (b) any damage to, or loss from the site of, goods due to theft, vandalism or otherwise, or injury to Airware Sales personnel, resulting from a failure in whole or in part by the Customer to keep the site safe and secure, will be at the risk and cost of the Customer.