Terms & Conditions

License Number 182572C

1. Definitions

In these Terms the following terms have the meanings indicated:

Ultrafan is a trading name of xchange air Pty Ltd and “xchange air” means xchange air Pty Ltd (ACN 101 595 224, ABN 96 101 595 224) together with its agents, servants and employees.

‘Contract’ means any agreement for the sale of Goods entered into between xchange air and the Purchaser.

‘Goods’ means Equipment sold by xchange air.

‘Order’ shall include any acceptance by the Purchaser of a tender, quotation or offer made by xchange air.

‘Offer’ means any formal offer made by xchange air to the purchaser including tenders or quotations.

‘Purchaser’ means any person who acquires or agrees to acquire Goods from xchange air and any successor in title to those Goods.

‘Terms’ means these terms and conditions of sale.

‘GST’ means the goods and services tax imposed by a government in which the Purchaser resides.

2. Introduction

2.1 Xchange air has set out in this document our basic terms of business (the “Terms”), which, together with our Offer, when accepted by the Purchaser constitutes a Contract of Sale. If there is any conflict between these Terms of Business and xchange air’s offer then the Offer shall prevail.

3. Formation and Scope of the Contract

3.1 Unless there is express written agreement to the contrary, xchange air contracts upon terms that any Contract is subject to the Terms and Conditions of Sale. Any Order placed by the Purchaser shall be conclusively deemed to have been made subject to the Terms and Conditions in force as at the date the Order is received by xchange air, irrespective of any contrary terms printed on or accompanying the Purchaser’s order documentation, and such contrary terms shall in no circumstance prevail.

3.2 A reference in these Terms to a provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

4. Confirmation of Orders

4.1 No Order placed by the Purchaser shall be binding on xchange air unless and until xchange air accepts the Order. Acceptance of any Order may be made by xchange air taking any steps to satisfy the Order. Any Order which has been accepted by xchange air may not be cancelled by the Purchaser except with the agreement of xchange air and, in such circumstances, only on the basis that the Purchaser shall indemnify xchange air in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by xchange air as a result of such cancellation.

5. Price

5.1 All Orders will be invoiced at the quoted prices in effect at the time of delivery of the Goods.

5.2 GST inclusive amounts.  For the purposes of these Terms and Conditions where the expression ‘GST inclusive’ is used in relation to a price, an amount payable or other consideration to be provided for a supply under these Terms and Conditions, the amount or consideration will not be increased on account of any GST payable on that supply.

5.3 Consideration is GST exclusive. Any consideration to be paid or provided to xchange air for a supply made by xchange air under or in connection with these Terms and Conditions unless specifically described in these Terms and Conditions as ‘GST Inclusive’, does not include an amount on account of GST.

5.4 Gross up of consideration.  Despite any other provision in these Terms and Conditions, if xchange air makes a supply under or in connection with these Terms and Conditions on which GST is imposed (not being a supply the consideration for which is specifically described in these Terms and Conditions as ‘GST inclusive’):

1. a) the consideration payable or to be provided for that supply under these Terms and Conditions but for the application of this clause (‘GST’ exclusive consideration’) is increased by, and the Purchaser must also pay to xchange air an amount equal to the GST payable by xchange air on that supply; and
2. b) the amount by which the GST exclusive consideration is increased must be paid to xchange air by the Purchaser without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.

5.5 Reimbursements (net down).  If a payment to a party under these Terms and Conditions is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense.

5.6 Purchaser Warranty and Indemnity.  The Purchaser warrants that where GST is imposed on a supply made by xchange air under or in connection with these Terms and Conditions and the consideration for that supply was not increased under this clause 5 as the parties mistakenly regarded the supply as GST-free, the Purchaser will indemnify xchange air for and in respect of the GST (including any interest or penalty) imposed on or in respect of that supply.

6. Payment and Default

6.1 Unless otherwise expressly agreed in writing, or specified in a separate dealership or agency agreement, the full purchase price shall be paid to xchange air upon installation of the Goods.

7. Delivery and Risk

7.1 In circumstances where the product is being shipped to a region where the purchaser is arranging installation and unless expressly agreed otherwise by xchange air in writing, or specified in a separate dealership or agency agreement, all Goods sold to Purchaser are delivered on an Ex-Works basis meaning the Purchaser is responsible for arranging freight and insurance of the Goods from xchange air’s premises to the Purchaser. Should the Purchaser request xchange air to arrange freight on behalf of the Purchaser;

1. a) xchange air shall advise the Purchaser of the estimated cost of freight and insurance prior to despatch of the Goods.
2. b) xchange air shall include the cost of freight on the overall invoice for the Goods which is payable in full prior to despatch of the Goods.
3. c) Freight terms remain Ex-Works.
4. Title to Goods

8.1 Irrespective of the time when risk in the Goods shall pass, passing of property in these Goods shall be determined as follows:

1. a) Property in the Goods shall remain with xchange air until the Purchaser has made payment in full to xchange air of the purchase price and any other indebtedness of the Purchaser to xchange air.

9. Purchaser’s Representations and Acknowledgments

9.1 In circumstances where the product is being shipped to a region where the purchaser is arranging installation The Purchaser acknowledges that it is responsible for informing xchange air of all requirements the Purchaser has relating to the use of the Goods in the country or state of intended use, including, but not limited to, all statutory or other like requirements relating to marking, labelling and/or packaging.

9.2 In circumstances where the product is being shipped to a region where the purchaser is arranging installation the Purchaser shall not be entitled to refuse to accept the Goods or pay the purchase price, nor shall xchange air be liable in any way whatsoever if the Goods fail to comply with any local requirements not disclosed by the Purchaser in writing to, and accepted by, xchange air prior to the formation of the Contract. The Purchaser indemnifies xchange air in full against any loss or damage suffered by xchange air howsoever arising out of any failure to comply with any requirements not disclosed by the Purchaser in writing to, or not accepted by, xchange air prior to the formation of the Contract.

9.3 The Purchaser acknowledges that:

1. a) It has selected the Goods from a range of products offered by xchange air and the Purchaser has satisfied itself that the Goods meet the Purchaser’s requirements;
2. b) no oral or written information, representation or advice given by or on behalf of xchange air, other than as contained in the Terms and Conditions, creates a warranty or in any way increases the scope of the Terms and Conditions, and;
3. c) unless expressly agreed otherwise in writing, the Purchaser has not relied on any information, representation or advice given by or on behalf of xchange air in selecting the Goods; and xchange air makes no representation that its Goods conform to country, state or local laws, ordinances, regulations, codes or standards (except as may otherwise be agreed to in writing by xchange air) and the all local laws relating to the use of the goods at its own cost and expense.
4. Use of Goods

10.1 Where the Purchaser is an end-user of the Goods, it warrants that it will use the Goods in conformity with:

1. a) Practices that are consistent with industry practice;
2. b) All applicable laws and regulations, guidelines and decisions of judicial or regulatory bodies;
3. c) Any patent or other proprietary rights of third parties; and
4. d) Xchange air’s instructions, including only in conjunction with accessories and consumables recommended by xchange air.
5. Product Warranty

11.1 Xchange air warrants that, subject to clause 11.3, Goods manufactured and sold by xchange air will be free from defects caused by manufacture for a period of 24 months from the date an invoice is issued by xchange air. Should any fault occur within that period as the result of such defect, xchange air will make all necessary repairs, or at xchange air’s sole discretion, replace the Goods at no charge to the Purchaser except for delivery.

11.2 The warranty contained in clause 11 shall not apply in the following circumstances:

1. a) in respect of loss or damage caused by the installation, configuration, commission or use of the Goods other than strictly in accordance with the terms of use of the Goods, including without limitation loss or damage caused as a result of a failure to service, maintain or use the Goods in accordance with xchange air’s instructions, or caused by rough or negligent handling of the Goods;
2. b) In respect of loss or damage caused by an act of God or any other cause not within

xchange air’s control or otherwise not related to the Goods;

1. c) The use of accessories or consumables with the Goods which are not approved of or recommended by xchange air;
2. d) Modification of any software in the Goods without the written approval of xchange air;
3. e) The use of spare parts other than those supplied by xchange air.

11.3 Goods returned under warranty for repair or testing will incur a charge, to be fixed by xchange air, if no fault is found.

11.4 Warranty delivery, insurance and custom responsibilities are as follows:

1. a) The Purchaser shall bear the cost of delivery and insurance of any Goods returned to xchange air under warranty and any customs or import duties payable on the return of such Goods from xchange air to Purchaser after replacement or repair.

11.5 Notwithstanding the provisions of this clause 11 nothing contained in any written warranty or in these Terms and Conditions shall have the effect of restricting or excluding the liability of xchange air in respect of death or personal injury resulting from the proven negligence of xchange air or under the applicable Consumer Protection Act. In addition, nothing in these Terms and Conditions affects the liability of either party for fraudulent misrepresentation.

12. Claims

12.1 No claims will be recognised in respect of any mistake or shortage or over supply of Goods after seven (7) days from the delivery date.

12.2 Unless otherwise expressly agreed in writing, xchange air shall not accept any conditions providing for the payment by xchange air of liquidated damages or other penalties for delayed delivery of Goods or provision of information or for any other reason whatsoever.

13. 13. Intellectual Property Rights

13.1 The Purchaser acknowledges xchange air’s licence to use or ownership of the patents, trademarks, designs and any other intellectual property rights contained within the Goods manufactured or supplied by xchange air and in particular agrees that neither the Purchaser, nor its servants or agents, will attempt to do anything with any of xchange air’s intellectual property rights which will render the Purchaser liable to xchange air for violation or infringement of its intellectual property rights.

14. Indemnity

14.1 The Purchaser indemnifies and holds xchange air harmless from and against any and all losses, costs and expenses of xchange air, including legal fees and expenses, in any way relating to:

1. a) Any use of Goods not in compliance with these Terms and Conditions;
2. b) Any violation or infringement of any patent or other proprietary rights of third parties by the Purchaser in the handling or use of the Goods; or
3. c) Any other use or misuse of the Goods by the Purchaser.
4. Modifications to Goods

15.1 Where the Purchaser provides information and / or instructions in writing to xchange air and where xchange air makes any modifications, alterations or adjustments to any Goods as a result of or in reliance upon the information or instructions provided by the Purchaser, the Purchaser indemnifies xchange air in full against any loss or damage suffered by xchange air howsoever arising out of any reliance by Ventis on the information or instructions provided by the Purchaser.

16. Data Protection

By completing this Contract and submitting personal information (‘Information’) to xchange air, the Purchaser consents to its Information being processed by xchange air as follows:

1. a) xchange air will use the Information to supply Goods requested by the Purchaser and to supply marketing, administration and related services, including such transfer of Information to employees, agents and third parties as required for these purposes;

(i) xchange air may maintain a database or similar record of Information for marketing purposes and to enable xchange air to send the Purchaser relevant Information from time to time. Xchange air may transfer its business assets (which include Information) on re-organisation, sale or merger of the whole or any part of its business;

(ii) xchange air reserves the right to transfer such Information as required to obtain legal advice, comply with legal requirements, enforce or apply this Contract and other agreements, or protect the rights, property or safety of xchange air, its clients, customers and others;

1. b) If xchange air intends to transfer Information other than as set out above, the Purchaser will receive notice and be given the opportunity to decline the transfer.
2. General

17.1 No Waiver. Failure by xchange air to insist upon strict performance of any term, warranty or condition of this Contract shall not be deemed a waiver of any term, warranty or condition, or of any rights.

18. Governing Law

18.1 A Contract between the Purchaser and xchange air is subject to the laws of New South Wales and the Commonwealth of Australia and the Client submits to the jurisdiction of the Courts of New South Wales and the Commonwealth of Australia