Fresh Duct INSULATION: TERMS AND CONDITIONS

1. General
   1. These Terms and Conditions constitute an entire agreement (Agreement) between Fresh Duct Insulation (Fresh Duct Insulation) and you, the customer (Customer).
   2. The Customer is taken to have accepted and to be immediately bound by this Agreement once the Customer accepts Fresh Duct Insulation’s Quotation for the supply of Goods and/or Services.
   3. This Agreement is governed by the laws of the State of Victoria and the parties submit to the jurisdiction of the Victorian Courts.
   4. If any provision of this Agreement is found to be unlawful, invalid or otherwise unenforceable, pursuant to any statute or rule of law, then the remaining provisions of this Agreement shall continue in full force and effect notwithstanding.
   5. These Terms and Conditions do not create a relationship of agency, partnership, joint venture or employment between the Customer and Fresh Duct Insulation. Neither party has any authority to act for or incur any liability or obligation on behalf of the other party in any manner.
2. Definitions
   1. ACL means the Australian Consumer Law as contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth) applying as a law in Victoria pursuant to s 8 of the Australian Consumer Law and Fair Trading Act 2012 (Vic).
   2. Customer means the person, persons or entity who orders the Goods or Services from Fresh Duct Insulation, and includes that person’s or entity’s subsidiaries, affiliates, associated companies, successors or assignees.
   3. Due Date has the meaning given to that term in clause 3.8.
   4. Goods includes insulation pads, air sealing products, fiberglass, cellulose, building and other materials supplied or sold by Fresh Duct Insulation to the Customer. 
   5. GST has the same meaning as in the A New Tax System (Goods & Services Tax) Act 1999 (Cth), as amended from time to time.
   6. Order means the acceptance by the Customer of Fresh Duct Insulation’s Quotation for the supply of Goods and/or Services.
   7. Quotation includes the price, GST and the scope of works.
   8. Services means all services provided by Fresh Duct Insulation to the Customer, including insulation removal, insulation installation, air sealing and attic storage conversion.
   9. Works means the scope of works as contained in the Quotation, which may be amended in writing, and includes Goods and/or Services.
3. Quotations and Payment
   1. 3.1.Quotations that are provided by Fresh Duct Insulation to the Customer will be valid for 30 days from the Quotation date after which, they may be subject to change without notice.
   2. 3.2.The price and scope of works in the Quotation will be binding on Fresh Duct Insulation and the Customer, unless modified in writing.
   3. 3.3.Fresh Duct Insulation reserves the right to amend any Quotation provided to the Customer where a site inspection has not been undertaken by Fresh Duct Insulation.
   4. 3.4.Prices quoted for Goods and/or Services do not include GST, credit card surcharges, duties, levies or other government fees and charges, shipping and delivery costs, which are separate and additional costs and charges.
   5. 3.5.Upon acceptance of Fresh Duct Insulation’s Quotation, a payment of 50 per cent deposit ( or other as % as stated on the quote itself )  is required before Fresh Duct Insulation will proceed with the Works. 
   6. 3.6.Prior to the completion of the Works, a tax invoice for the remaining balance of 50 per cent ( or as stated in the quote )  will be issued to the Customer. The  tax invoice must be paid in full (by cash or card) on conclusion of the Works (Due Date).
   7. 3.7.Payments made to Fresh Duct Insulation by credit card will incur an additional surcharge as agreed upon. 
   8. 3.8.If payment of the remaining balance of 50 per cent ( or any outstanding amount ) is not received by Fresh Duct Insulation, Fresh Duct Insulation is entitled to charge interest on default of payment at a rate equivalent to 1.5 per cent above the annual rate of interest for the time being fixed under Section 2 of the Penalty Interest Rates Act 1983. Interest will continue to accrue until Fresh Duct Insulation receives payment in full.
   9. 3.9.Any forbearance or delay by Fresh Duct Insulation in interest on default of payment does not constitute a waiver of its right to do so in the future.
   10. 3.10.The Customer is liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs (on a full indemnity basis) incurred by Fresh Duct Insulation for enforcement of obligations and recovery of monies due from the Customer to Fresh Duct Insulation.
   11. 3.11.Any payments received from the Customer on overdue accounts will be applied firstly to satisfy interest which may have accrued, to reasonable expenses and legal costs referred to in Clause 3.12, then to the principal sum.
4. Delivery and Supply
   1. Fresh Duct Insulation reserves the right to cease supply of Goods and/or Services at any time if the Customer fails to provide Fresh Duct Insulation with access to the roof or premises, to facilitate Fresh Duct Insulation’s performance of the Works, or to comply with Fresh Duct Insulation’s reasonable requests in relation to health and safety. 
   2. If the Customer does not, or indicates to Fresh Duct Insulation that it will not take or accept delivery of the Goods or Services, then the Goods or Services will be deemed to have been delivered to the Customer. The Customer will be liable for any costs, charges and expense howsoever incurred by Fresh Duct Insulation. 
   3. No Order may be cancelled, modified or deferred by the Customer without the prior written consent of Fresh Duct Insulation, which is at Fresh Duct Insulation’s sole discretion. If such consent is given at Fresh Duct Insulation’s election, it is given subject to Fresh Duct Insulation being reimbursed all losses, including loss of profits, and paid a reasonable cancellation fee, being not less than 20 per cent of the invoice price of the Goods or Services.
5. Property, Risk and Title
   1. Until full payment has been made for all Goods and Services, or any other sums in any way outstanding from the Customer to Fresh Duct Insulation:

1. All sums outstanding become immediately due and payable by the Customer to Fresh Duct Insulation if the Customer makes default in paying any other sums due to Fresh Duct Insulation, becomes bankrupt, or commits any act of bankruptcy, compounds with its creditors, has judgment entered against it in any court or, being a company, has a provisional liquidator, liquidator, receiver, receiver manager or administrator appointed, notwithstanding the provisions of any other clause in this Agreement;
2. All rights, title and interest in the Goods will not pass to the Customer and the Customer will hold the Goods and as bailee for Fresh Duct Insulation returning the same to Fresh Duct Insulation on request. The Goods shall nevertheless be at the risk of the Customer from the time of delivery or supply;
3. The Customer is only authorised to sell the Goods (or any portion of them) to third parties as the fiduciary agent of Fresh Duct Insulation, provided that there shall be no right to bind Fresh Duct Insulation to any liability to such third party by contract or otherwise. All payments (direct or indirect) received from such third parties by Fresh Duct Insulation for the Goods (or any portion of them) shall be held on trust for Fresh Duct Insulation pursuant to the fiduciary relationship;
4. In the event that the Customer incorporates or transforms the Goods (or any portion of them) into any other goods or products produced by the Customer (or third party) then the Customer must hold a portion of any payment (Relevant Proportion) received by the Customer for such goods or products on trust for Fresh Duct Insulation. The Customer expressly acknowledges that the Relevant Proportion shall be equal to the dollar value of the Goods incorporated or transformed, and the Customer further acknowledges that any part payment (not exceeding the Relevant Proportion) received by the Customer for such goods or products is received as payment first for the Relevant Proportion; and
5. Fresh Duct Insulation is irrevocably authorised to enter any premises where the Goods are kept, and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the Goods without liability for trespass or any resulting damage. 

1. 2. In addition to any lien to which Fresh Duct Insulation may, by statute or otherwise, be entitled, Fresh Duct Insulation shall in the event of the Customer’s Insolvency, bankruptcy or winding up, be entitled to a general lien over all property or goods belonging to the Customer for the unpaid price of any Goods sold or delivered to the Customer.
   3. In the event of the Customer’s Insolvency, bankruptcy or winding up, the Customer consents to Fresh Duct Insulation or its representatives to enter the Customer’s premises, without a requirement to give any notice, and without committing a trespass, to search for and remove any Goods, without in any way being liable to the Customer. Fresh Duct Insulation may dispose of, or retain such Goods as Fresh Duct Insulation deems fit, without being required to give notice or account to the Customer. If the Goods, or any of them, are wholly or partially attached to or incorporated in any other item, the Company may disconnect them in any way necessary to remove any of the Goods. 
   4. The Customer indemnifies Fresh Duct Insulation from and against all loss suffered or incurred by Fresh Duct Insulation as a result of it exercising its rights under this Agreement. 
   5. The Goods are entirely at the risk of the Customer from the moment of delivery to the Customer’s point of delivery or upon collection, even though the title to the Goods may not have passed to the Customer. 
   6. The Customer must, at its own expense, maintain the Goods and insure them for the benefit of Fresh Duct Insulation against theft, breakdown, fire, water and other risks as from the moment of delivery to the Customer and until title to the Goods has passed to the Customer.
2. Defects, Warranties and Returns
   
   2. Where the Customer is a consumer within the meaning of the ACL, the consumer guarantees will apply to this Agreement. Fresh Duct Insulation makes no other warranties or representations in relation to the Goods and/or Services.
   3. Upon completion of the Works, the Customer must inspect the Works and notify Fresh Duct Insulation within three (3) days of any defect, claim (including missing quantum) that the Goods or Services are not in accordance with the Quotation or Order. If the Customer fails to give such notice within the stipulated time, then the Works will be deemed to be in all respects in accordance with the Quotation or Order and the Customer will be deemed to have accepted the Works.
   4. Unless clause 6.1 applies, the Customer must not return any Goods to Fresh Duct Insulation without obtaining prior written authorisation from Fresh Duct Insulation and, unless a cancellation charge has been paid which, as determined by Fresh Duct Insulation, will indemnify Fresh Duct Insulation against all loss, without limitation. 
   5. If written authorisation has been provided by Fresh Duct Insulation, the Goods must be returned at the Customer’s expense. The Customer will be responsible for all damage incurred during storage, transport and handling, howsoever incurred.
   6. The Customer and Fresh Duct Insulation expressly agree that the Goods Act 1958 (Vic) is excluded from this Agreement.
   7. Fresh Duct Insulation will not be liable for any defect or damage which may be caused or partly caused by, or arise, as a result of:

1. the Customer failing to properly maintain or store Goods;
2. the Customer using the Works for any purpose other than that for which they were designed;
3. the Customer continuing the use of the Works after any defect becomes apparent, or should have become apparent, to a reasonably prudent operator or user;
4. the Customer failing to follow instructions or guidelines as provided by Fresh Duct Insulation; or
5. fair wear and tear, any accident, or act of God.

7. Force Majeure
   1. Fresh Duct Insulation will be released from its obligations under this Agreement in the event of a national emergency, war, prohibitive governmental regulations, or if any other cause beyond the control of Fresh Duct Insulation renders provision of the Goods or Services impossible. 
   2. Any money due to Fresh Duct Insulation for the supply of Goods or performance of Services shall be paid immediately and, unless prohibited by law, Fresh Duct Insulation may elect to terminate the Agreement.
8. Failure to Act
   1. Fresh Duct Insulation’s failure to enforce or insist upon the timely performance of any term, condition, covenant or provision of this Agreement, or Fresh Duct Insurance’s failure to exercise any right or remedy available under this Agreement or at law, or Fresh Duct Insurance’s failure to insist upon timely payment of monies when due, or to demand payment of any charges or fees which accrue under this Agreement shall not constitute a waiver of any subsequent default or a waiver of Fresh Duct Insurance’s right to demand timely payment of future obligations or strict compliance with this Agreement.
9. Limitation of Liability
   1. Fresh Duct Insulation is not subject to, and the Customer releases Fresh Duct Insurance from, all liability, including but not limited to incidental, indirect, general or consequential loss or damage, as a result of any delay in delivery or fault or defect in the Goods or Services.
10. Indemnities
    1. 10.1.If the Customer provides Fresh Duct Insulation with instructions in respect of the manufacture, packaging, sale or supply of Goods or Services, the Customer warrants to Fresh Duct Insulation that adherence by Fresh Duct Insulation to those instructions will not infringe the copyright, trademark, patent or other intellectual property right of any third party.
    2. 10.2.The Customer releases and indemnifies Fresh Duct Insulation and its officers, employees, consultants and agents from and against all actions, claims, proceedings and demands, which may be brought against them or Fresh Duct Insulation, whether on their own or jointly with those indemnified, and whether at common law, in equity or pursuant to statute or otherwise, in respect of any loss, death, injury, illness or damage (whether personal or property, and whether direct or consequential, including consequential financial loss) arising out of a breach of Fresh Duct Insulation’s warranties or obligations contained in this Agreement, including those brought by third parties.