AirTouch Terms & Conditions

1.     Definitions

1.1.    “AirTouch” means the AirTouch product purchased by the Buyer from the Seller and may be referred to as the Goods.

1.2.    “User” means the user of the AirTouch product from the moment of first installation and the party that has current use of the product.

1.3.    “Buyer” means the party that purchased the AirTouch product for its first ever installation and commissioning and where applicable can also mean the User

1.4.    “Seller” means Polyaire Pty Ltd (ABN 82 007 673 690)

2.     Disclaimers

The Buyer acknowledges and agrees that in buying and using an AirTouch the following Conditions will apply.

The User acknowledges and agrees that in using an AirTouch the following Conditions will apply.

3.     No Warranty as to Performance, Compatibility and Availability

3.1.    All specifications and procedures advertised for the AirTouch are correct at the time of publication but are subject to change without notice.

3.2.    While third party applications may be used on AirTouch, the Seller does not warrant or guarantee that these third party applications will be compatible or supported by the AirTouch at the time of purchase or in the future, or that they will perform as required when used on the AirTouch.

3.3.    Third party applications must be compatible and work with Android 6.0 to work on the AirTouch.

3.4.    The Seller and the AirTouch are not associated or affiliated with the providers of third party applications, and the Seller does not guarantee the performance of these third party applications.

3.5.    The Seller is not liable for any fees that are payable for the use of a third party application, or for any liability that may result from the Buyer’s and User’s use of a third party application even if the use of the third party application was through the AirTouch.

3.6.    The Seller is in no way liable for any defects, failure or liabilities in third party applications used on the AirTouch by the Buyer or User.

3.7.    The Seller does not guarantee that use of third party applications will not harm or otherwise damage the AirTouch.

3.8.    Whilst integrations may be offered with third party products and applications at the time of purchase of the AirTouch, the Seller does not warrant or guarantee that such integrations will be available at all times. This may be dependent on the Seller holding a licence with the third party to integrate their product or application with the AirTouch and this may change or be terminated at any time without notice.

3.9.    The Seller is not responsible if the Buyer’s or User’s use of the AirTouch is limited due to the number of applications being used at one time.

3.10. The AirTouch may not automatically update when there is new software available. It is the sole responsibility of the Buyer to ensure that updates are available or installed.

4.     Remote Access and Installation of AirTouch System

4.1.    The AirTouch will require access to a wireless internet connection in order for it to be used for its full intended purpose. Without a wireless internet connection the AirTouch cannot be used for its full intended purpose.

4.2.    The AirTouch may still be used without wireless internet connection with limited functionality. This includes:

a)         operation via AirTouch Console

b)         operation via AirTouch app on smart devices only via local wi-fi network if available and setup correctly.

4.3.    The AirTouch has the ability to allow remote sign-in access. In setting up remote sign-in access, the Buyer and User authorises the remote sign-in access to the AirTouch through the wireless internet connection.

4.4.    The AirTouch system may require the Buyer and User to provide log-in details and passwords for the wireless internet connection and third party applications. The Seller will keep these log-in details and passwords secure but will not indemnify the Buyer and User from any and all loss or damage that may be suffered as a result of such information being accessed by cyber hacking or through any other unauthorised access not provided by the Seller.

4.5.    In order to use the AirTouch, the Buyer and User will be required to have installed all the necessary components required by the AirTouch system, by a qualified installer. A qualified installer is someone who has been trained by the Seller on how to install, configure and operate the AirTouch system. The Seller does not accept any responsibility for any loss or damage that may be incurred by the Buyer or User as a result of the Buyer or User downloading or installing the control system or zone system incorrectly or as a result of the Buyer’s or User’s continued use of the control system or zone system.

4.6.    The collection of any data by the Buyer’s use of the AirTouch will be subject to the Privacy Policy available on the Seller’s website.

5.     Accounts Created for the AirTouch Product

5.1.    Any account established for the use of the AirTouch must be registered by the Buyer or User directly with the Seller and the Buyer or User must provide to the Seller all details requested to establish an account.

5.2.    The Buyer or User is responsible for ensuring that the account that they create is secure and that they keep the details of this account confidential to ensure that they are not accessed by third parties who do not have the authority to do so.

5.3.    It is up to the Buyer or User to authorise who they permit to use their account.

6.     Returns and Defects

6.1.    The Buyer must inspect all Goods provided on delivery to the Buyer, as well as any Services when completed, and within seven (7) Business Days of delivery of the Goods or completion of the Services notify the Seller in writing of any evident defect/damage, shortage in quantity or failure to comply with the description or Quotation.  The Buyer must provide the Seller with a reasonable opportunity to modify and/or repair any defect or damage to the Goods and/or Services.  Failure to notify the Seller within this timeframe will deem the Goods and/or Services to be defect free and accepted by the Customer.

6.2.    The Seller is not under any duty to accept Goods returned by the Buyer and will do so only on terms to be agreed in writing in each individual case.

6.3.    Nothing in clause 6.2 affects the Buyer’s rights under the Australian Consumer Law or in respect of any breach of Implied Terms.

6.4.    Goods made to special order for the Buyer or non-catalogue items are not eligible to be returned.

7.     Australian Consumer Law

7.1.    Notwithstanding anything in these Conditions to the contrary, where the Buyer purchases Goods as a Consumer:

a)         the Goods are supplied subject to the Consumer Guarantees;

b)         if the Goods fail to meet any Consumer Guarantee, the Buyer will be entitled to such rights and remedies as are permitted or provided in the Australian Consumer Law for such failure, to the extent that such rights and remedies cannot be lawfully excluded;

c)         the Buyer may only exercise any right or remedy for breach of a Consumer Guarantee strictly in accordance with the rights and responsibilities of the Buyer under the Australian Consumer Law;

d)         where Goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption then, unless the Seller is a manufacturer of the Goods under the Australian Consumer Law, the Seller’s liability for breach of a Consumer Guarantee subject to the Australian Consumer Law is limited at the Seller’s option to repairing or replacing the Goods, supplying equivalent goods or paying the costs of the repair or replacement of the Goods or of acquiring equivalent goods.

8.     Warranties

8.1.    Nothing in this clause affects the Buyer’s rights under the Australian Consumer Law. The benefits to the Buyer under the Warranties are in addition to the rights and remedies of the Buyer under any Consumer Guarantee.

8.2.    The Warranties only apply for Goods that are manufactured by the Seller and do not apply to Goods that are manufactured by a third party.

8.3.    Subject to clauses 8.1 and 8.2, the Seller warrants that the Goods will be free of manufacturing defects.

8.4.    The benefit of the Warranties extend only to the original and first owner of the property in which the Goods are installed (Owner) for the duration of the Warranty Period.

8.5.    The Warranty Period is as follows:

a)         Residential/Domestic use: 5 years

b)         Commercial/Industrial/Rental/High usage use: 1 year

8.6.    The Warranties commence on the date of purchase of the Goods and apply for the Warranty Period.

8.7.    If, within the Warranty Period, a manufacturing defect is discovered in the Goods or the Goods fail to perform to the Seller’s specifications as a result of some defect in material or workmanship in the Goods (Defect) then the Seller will, at its election, either repair or replace the Goods at the cost of the Seller (excluding costs of de-installation, re-installation and testing including but not limited to labour and travel costs) or refund part of the price paid by the Buyer (which will be pro-rated by the Buyer taking into consideration the number of years since the Buyer originally purchased the Goods). Goods repaired or replaced under the Warranties will be warranted for the remainder of the Warranty Period.

8.8.    The Warranties will not apply to Goods:

a)         installed, repaired or maintained by any person other than a qualified tradesperson; or

b)         subjected to misuse, neglect, negligence, accidental damage or act of God (including but not limited damage caused by fire, flood, infestation by insects, vermin or rodents); or

c)         operated in any way contrary to any operating or maintenance instructions, quote or order form; or

d)         improperly handled, installed or maintained; or

e)         altered or modified prior to or after installation;  or

f)          used after any Defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or

g)         exposed to any operating circumstances that could cause damage (including but not limited damage caused to external surfaces and refrigeration coils in a corrosive environment); or

h)         removed and reinstalled at another site; or

i)          fitted with any non-genuine spare part; or

j)          hired to any person; or

k)         installed in a mobile application (including but not limited to a caravan or boat); or

l)          damaged as a result of faulty or incorrect wiring, incorrect power supply, voltage fluctuations, over voltage transients, electromagnetic interference, or replaced fuses, improper storage; or

m)       in respect of which any serial number is altered or removed.

8.9.    The Warranties do not apply to:

a)         faulty or defective design of Goods unless the Seller has designed the Goods and the Seller expressly accepts responsibility for such design in writing; or

b)         fair wear and tear of Goods (including but not limited to fair wear and tear of consumables such as batteries, filters, and air purifiers); or

c)         discolouration of any plastic components.

8.10. In order to make a claim under the Warranties, the Buyer must return the Goods to one of the Seller’s stores together with proof of purchase, or on such other terms as may be agreed in writing by the Seller.

8.11. The Seller will examine any returned Goods and if the Seller determines that there is an apparent defect through no fault of the Buyer and the Goods are otherwise undamaged, the Seller will:

a)         record the Buyer’s contact details (including postal address, email address and telephone number);

b)         record details of the apparent defect;

c)         take possession of the returned Goods and determine within a reasonable time of return whether the returned Goods are defective;

d)         notify the Buyer within a reasonable time of return whether it accepts or rejects the return of the Goods; and

e)         if the Seller accepts the return of the Goods, repair or replace the Goods or refund the all or part of the purchase price (in accordance with clause 8.7) in accordance with the Warranties.

8.12. The Seller reserves the right to not accept any Goods which have not been returned in accordance with the Warranties.

8.13. The Buyer will be responsible for all costs of returning Goods to the Seller and for collection or re-delivery of the Goods (whether original or repaired and/or replacement Goods) once they are repaired or replaced and any other expenses of the Owner in claiming under the Warranties.

8.14. The Seller will not be responsible for:

a)         any loss or damage to the Goods occurring while the Goods are in transit (either on return to the Seller or upon redelivery to the Buyer of the original, repaired or replacement Goods); or

b)         any loss or damage caused by any delay assessing the Buyer’s claim; or

c)         any loss or damage caused by any delay repairing or replacing any Goods.

9.     Access to Property

9.1.    The Buyer must grant the Seller access to enter and remain at any property where there are Goods installed for the following purposes:

a)         to inspect the Goods in respect of any claim made by the Buyer; or

b)         to repossess any Goods where payment has not been received in full and title has not passed to the Buyer.

9.2.    Where Goods are to be installed on a property not owned by the Buyer, the Buyer must use its best efforts to procure the property owner to grant access to the Seller to the location where the Goods are installed for the purposes of clause 9.1, 

9.3.    The Seller will endeavour to provide the property owner at least 48 hours’ notice prior to its access to the property for the purpose of clause 9.1.

9.4.    The Buyer must ensure that agents and representatives of the Seller have convenient, unobstructed and safe access to all parts of the property necessary to conduct anything required by clause 9.1.

10.   General Limitation on Liability

10.1. This clause 10 does not limit the liability of the Seller under the Australian Consumer Law.

10.2. The Seller shall not be liable for any guarantee, warranty or representation as to the quality, performance, and fitness for purpose or otherwise of any Goods unless expressed in writing and any such warranty or representation is limited to its express terms.

10.3. None of the Implied Terms apply to any Contract except to the extent that they cannot be lawfully excluded.

10.4. The Seller’s liability for breach of any provision of any such Contract or for breach of any Implied Terms which by force of law cannot be excluded from applying to any Contract is limited at the option of the Seller to repairing or replacing Goods which have been found defective, or paying the cost of repairing or replacing Goods which have been found defective.

10.5. The Seller is not liable in tort for any loss or damage suffered by the Buyer or User or by any third party.

10.6. In no circumstance whatsoever shall the Seller be liable to the Buyer or User or to any third party for any Consequential Loss arising out of the late delivery of Goods or any failure to perform or observe the Seller’s obligations under these Conditions or any Contract or Implied Terms and the Buyer or User will keep the Seller fully indemnified against any claim made against the Seller by a third party for any Consequential Loss.

10.7. In no circumstance is the Seller liable to the Buyer or User or to any third party for any costs incurred in providing safe access to the Goods.

11.   Intellectual Property

11.1. Where the Seller has designed or drawn Goods for the Buyer, then the copyright in those designs and drawings shall remain vested in the Seller, and shall only be used by the Buyer at the Seller’s discretion.

12.   Dispute Resolution

12.1. Any dispute between the parties arising from the performance of the provisions of these Conditions or a Contract and any invoices for payment issued by the Seller to the Buyer or User must be attempted to be settled between the parties by an authorised representative with authority from each party meeting within thirty (30) days of notification of a dispute in writing from one party to the other party.  Such meeting is to take place within the state of South Australia at a place nominated by the Seller.

12.2. If the meeting referred to in clause 12.1 does not result in the settlement of the dispute between the Seller and the Buyer or User, the dispute may then be referred to mediation, if agreed by both parties.  The mediator is to be appointed by agreement between the parties and in the event that the parties agree to mediate but within seven (7) days of agreeing to such mediation cannot agree to the mediator to be appointed then the mediator is to be appointed by the then current President of the Law Society of South Australia.  The costs of any mediation are to be borne equally between the parties.

12.3. If the dispute cannot be settled through mediation or the parties do not both consent to a mediation, then either party is at liberty to commence legal proceedings.

12.4. During the period in which the dispute is being resolved, the parties must continue to perform all of the provisions of a Contract not under dispute.

13.   General

13.1. If any term of these Conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

13.2. All Goods supplied by the Seller are subject to the laws of South Australia and the Seller takes no responsibility for changes in the law which affect the Goods supplied.

13.3. This Contract is made in the State of South Australia and the Buyer or User and the Seller agree that, unless otherwise stipulated by the Seller, all disputes arising between them shall be submitted to the court of the State of South Australia and any court competent to hear appeals from those courts of first instance.

13.4. In the event of any breach of these Conditions or a Contract by the Seller the remedies of the Buyer or User shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.

13.5. The Seller may license or sub-contract all or any part of its rights and obligations of a Contract without the Buyer’s or User’s consent however if the Buyer wishes to do the same it must first obtain the written consent of the Seller.

13.6. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.