“Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
“Chillmaster Air” means Chillmaster Airconditioning & Mechanical Services Pty Ltd ATF Rodgers Family Trust T/A Chillmaster Airconditioning & Mechanical Services Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Chillmaster Air.
“Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting Chillmaster Air to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
if there is more than one Client, is a reference to each Client jointly and severally; and
if the Client is a partnership, it shall bind each partner jointly and severally; and
if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
includes the Client’s executors, administrators, successors and permitted assigns.
“Goods” means all Goods (including, but not limited to, any parts, materials or consumables etc.) or Services (including consultation and/or installation services) supplied by Chillmaster Air to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
“Intended Use” means a product and the use thereof, for which the product is intended to be, or is reasonably likely to be, associated with a building.
“Non-Conforming Product” means products that are regarded as Non-Conforming for an Intended Use if, when associated with a building:
the product is not, or will not be, safe; or
does not, or will not, comply with the relevant regulatory provisions; or
the product does not perform, or is not capable of performing, for the use to the standard it is represented to conform by or for a person in the chain of responsibility for the product.
"Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
“Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using Chillmaster Air’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
“Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between Chillmaster Air and the Client in accordance with clause 5 below.
“GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts Delivery of the Goods.
In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
The Client acknowledges that the supply of Goods on credit shall not take effect until the Client has completed a credit application with Chillmaster Air and it has been approved with a credit limit established for the account.
In the event that the supply of Goods request exceeds the Client’s credit limit and/or the account exceeds the payment terms, Chillmaster Air reserves the right to refuse delivery.
Where Chillmaster Air gives any advice, recommendation, information, assistance or service provided by Chillmaster Air in relation to Services supplied is given in good faith to the Client or the Client’s agent and is based on Chillmaster Air’s own knowledge and experience and shall be accepted without liability on the part of Chillmaster Air. Where such advice or recommendations is not acted upon then Chillmaster Air shall require the Client or their agent to authorise commencement of the Services in writing. Chillmaster Air shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.
In the event that Chillmaster Air is required to provide the Services urgently, that may require Chillmaster Air’s staff to work outside normal business hours (including but not limited to working through lunch breaks, weekends and/or Public Holidays) then Chillmaster Air reserves the right to charge the Client additional labour costs (penalty rates will apply), unless otherwise agreed between Chillmaster Air and the Client.
Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
Errors and Omissions
The Client acknowledges and accepts that Chillmaster Air shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
resulting from an inadvertent mistake made by Chillmaster Air in the formation and/or administration of this Contract; and/or
contained in/omitted from any literature (hard copy and/or electronic) supplied by Chillmaster Air in respect of the Services.
In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of Chillmaster Air; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
Change in Control
The Client shall give Chillmaster Air not less than fourteen (14) days 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 or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by Chillmaster Air as a result of the Client’s failure to comply with this clause.
Price and Payment
At Chillmaster Air’s sole discretion, the Price shall be either:
as indicated on any invoice provided by Chillmaster Air to the Client; or
the Price as at the date of delivery of the Goods according to Chillmaster Air’s current price list; or
Chillmaster Air’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
Chillmaster Air reserves the right to change the Price:
if a variation to the Goods which are to be supplied is requested; or
if a variation to the Services originally scheduled (including any applicable plans, specifications or maintenance) is requested; or
where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, availability of Goods, limitations to accessing the site and/or crawl spaces, safety considerations, discovery of asbestos, prerequisite work by any third party not being completed, discovery of additional faults on inspection, obscured building defects, the Client’s supply of product/s that are deemed to be Non-Conforming Product/s, hidden pipes and wiring in walls etc.) which are only discovered on commencement of the Services; or
in the event of increases to Chillmaster Air in the cost of labour or Goods which are beyond Chillmaster Air’s control.
Variations will be charged for on the basis of Chillmaster Air’s quotation, and will be detailed in writing, and shown as variations on Chillmaster Air’s invoice. The Client shall be required to respond to any variation submitted by Chillmaster Air within ten (10) working days. Failure to do so will entitle Chillmaster Air to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
At Chillmaster Air’s sole discretion, a non-refundable deposit may be required.
Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by Chillmaster Air, which may be:
on or before delivery of the Goods;
on completion of the Services;
by way of instalments/progress payments in accordance with Chillmaster Air’s payment schedule;
thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
the date specified on any invoice or other form as being the date for payment; or
failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Chillmaster Air.
Payment may be made by cash, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and Chillmaster Air.
Chillmaster Air may in its discretion allocate any payment received from the Client towards any invoice that Chillmaster Air determines and may do so at the time of receipt or at any time afterwards. On any default by the Client Chillmaster Air may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Chillmaster Air, payment will be deemed to be allocated in such manner as preserves the maximum value of Chillmaster Air’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
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 Chillmaster Air nor to withhold payment of any invoice because part of that invoice is in dispute.
Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to Chillmaster Air an amount equal to any GST Chillmaster Air must pay for any supply by Chillmaster Air under this or any other agreement for the sale of the Goods. 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.
Delivery of Services
Subject to clause 6.2 it is Chillmaster Air’s responsibility to ensure that the Services start as soon as it is reasonably possible.
The Services commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Chillmaster Air claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Chillmaster Air’s control, including but not limited to any failure by the Client to:
make a selection; or
have the site ready for the Services; or
notify Chillmaster Air that the site is ready.
Delivery (“Delivery”) of the Goods is taken to occur at the time that:
the Client or the Client’s nominated carrier takes possession of the Goods at Chillmaster Air’s address; or
Chillmaster Air (or Chillmaster Air’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
At Chillmaster Air’s sole discretion, the cost of Delivery is in addition to the Price.
Chillmaster Air may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
Any time specified by Chillmaster Air for Delivery of the Goods is an estimate only. The Client must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery. Chillmaster Air will not be liable for any loss or damage incurred by the Client as a result of Delivery being late. In the event that the Client is unable to take Delivery of the Goods as arranged then Chillmaster Air shall be entitled to charge a reasonable fee for redelivery and/or storage.
Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, Chillmaster Air is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Chillmaster Air is sufficient evidence of Chillmaster Air’s rights to receive the insurance proceeds without the need for any person dealing with Chillmaster Air to make further enquiries.
If the Client requests Chillmaster Air to leave Goods outside Chillmaster Air’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.
The Client warrants that any existing plumbing, gas fitting and/or associated services in or upon the site that is subject to the Goods and/or Services is in compliance with regulations. Chillmaster Air reserves the right to halt all Services (in accordance with the provisions of clause 6.2 above) if in their opinion the site is unsafe and/or the current positioning of the unit is illegal due to not meeting the required clearances then the Client will be informed of this and will be given a revised quotation or estimate to install the new equipment in a safe and legal position. Should the Client not wish to proceed Chillmaster Air will charge a standard fee for the time spent on the site based on Chillmaster Air’s quotation.
All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Regulations. All of the cabling work will comply with the Australian and New Zealand Wiring standards.
The Client acknowledges that Chillmaster Air is only responsible for parts that are replaced by Chillmaster Air, and in the event that other Goods, subsequently fail, the Client agrees to indemnify Chillmaster Air against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising.
Where the Client is to supply Chillmaster Air with any design specifications (including, but not limited to CAD drawings) the Client shall be responsible for providing accurate data. Chillmaster Air shall not be liable whatsoever for any errors in the Goods that are caused by incorrect or inaccurate data being supplied by the Client.
The Client warrants that any structures to which the Goods are to be affixed are able to withstand the installation of the Goods and that any electrical connections (including, but not limited to, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Goods once installed. If for any reason (including the discovery of asbestos, defective or unsafe wiring or dangerous access to roofing) that Chillmaster Air, its employees or Company’s reasonably form the opinion that the Client’s premises is not safe for the installation of Goods to proceed then Chillmaster Air shall be entitled to delay installation of the Goods (in accordance with the provisions of clause 6.2 above) until Chillmaster Air is satisfied that it is safe for the installation to proceed. Chillmaster Air may at its sole discretion agree to bring the premises up to a standard suitable for installation to proceed but all such works undertaken and any additional Goods supplied shall be treated as a variation and be charged for in addition to the Price.
Whilst the final location of the condensing unit is at the discretion of the Client, a charge will apply as a variation as per clause 5.2, if the Client requests the unit to not be located adjacent to the external wall, due to the underground piping required.
The final location of the wall, window or floor unit must be determined on site by the Client.
Chillmaster Air shall upon installation ensure that all installed Goods meet current industry standards applicable to noise levels, however Chillmaster Air cannot guarantee that noise levels will remain constant post installation as the Goods may be impacted by many factors such as the weather, lack of maintenance, tampering etc.
In the event that any of the equipment needs to be relocated due to complaints from neighbours or local authorities, then the Client shall be responsible for any and all costs involved.
The Client acknowledges and agrees that it is their responsibility to insure any equipment partly or completely installed on site, against theft or damage.
In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Client then the Client agrees to notify Chillmaster Air immediately upon any proposed changes. The Client agrees to indemnify Chillmaster Air against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 5.2.
The Client shall ensure that Chillmaster Air has clear and free access to the site at all times to enable them to undertake the Services. Chillmaster Air shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Chillmaster Air.
Prior to Chillmaster Air commencing any work the Client must advise Chillmaster Air of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, telephone cables, fibre optic cables, and any other services that may be on site.
Whilst Chillmaster Air will take all care to avoid damage to any underground services the Client agrees to indemnify Chillmaster Air in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 10.1.
Compliance with Laws
The Client and Chillmaster Air shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services including any occupational health and safety (OHS) laws relating to sites and any other relevant safety standards or legislation.
The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
Where the Client has supplied products for Chillmaster Air to complete the Services, the Client acknowledges that it accepts responsibility for the suitability of purpose, quality and any faults inherent in those products. However, if in Chillmaster Air’s opinion, it is believed that the products supplied will not conform to the state regulations, then Chillmaster Air shall be entitled, without prejudice, to halt the Services until the appropriate conforming products are sourced and all costs associated with such a change to the plans and design will be invoiced in accordance with clause 5.2.
The Client shall be responsible for obtaining and paying for any necessary consent, approvals or certificates required for the Services, including those required subsequent to commencement of the Services.
Chillmaster Air shall comply with the terms and conditions of all such consents and approvals in so far as such consents and approvals relate to the carrying out of the Services.
The Client shall be responsible for applying for and obtaining the Code Compliance Certificate(s) for the Services.
Chillmaster Air shall provide the Client with all necessary information relating to the Services so that the Client may apply for a Code Compliance Certificate.
Chillmaster Air and the Client agree that ownership of the Goods shall not pass until:
the Client has paid Chillmaster Air all amounts owing to Chillmaster Air; and
the Client has met all of its other obligations to Chillmaster Air.
Receipt by Chillmaster Air 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.
It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 12.1:
the Client is only a bailee of the Goods and must return the Goods to Chillmaster Air on request;
the Client holds the benefit of the Client’s insurance of the Goods on trust for Chillmaster Air and must pay to Chillmaster Air the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
the Client must not sell, dispose, 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 Chillmaster Air and must pay or deliver the proceeds to Chillmaster Air on demand;
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 Chillmaster Air and must sell, dispose of or return the resulting product to Chillmaster Air as it so directs;
the Client irrevocably authorises Chillmaster Air to enter any premises where Chillmaster Air believes the Goods are kept and recover possession of the Goods;
Chillmaster Air may recover possession of any Goods in transit whether or not Delivery has occurred;
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 Chillmaster Air;
Chillmaster Air may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
Personal Property Securities Act 2009 (“PPSA”)
In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
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 Chillmaster Air for Services – that have previously been supplied and that will be supplied in the future by Chillmaster Air to the Client.
The Client 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 Chillmaster Air may reasonably require to;
register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
register any other document required to be registered by the PPSA; or
correct a defect in a statement referred to in clause 13.3(a)(i) or 13.3(a)(ii);
indemnify, and upon demand reimburse, Chillmaster Air 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;
not register a financing change statement in respect of a security interest without the prior written consent of Chillmaster Air;
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 Chillmaster Air;
immediately advise Chillmaster Air 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.
Chillmaster Air 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.
The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
Unless otherwise agreed to in writing by Chillmaster Air, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
The Client must unconditionally ratify any actions taken by Chillmaster Air under clauses 13.3 to 13.5.
Subject to any express provisions to the contrary (including those contained in this clause 13), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
Security and Charge
In consideration of Chillmaster Air agreeing to supply the Goods, 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).
The Client indemnifies Chillmaster Air from and against all Chillmaster Air’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Chillmaster Air’s rights under this clause.
The Client irrevocably appoints Chillmaster Air and each director of Chillmaster Air as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Client’s behalf.
Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
The Client must inspect the Goods on delivery and must within three (3) days of delivery notify Chillmaster Air in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Chillmaster Air to inspect the Goods.
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).
Chillmaster Air acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Chillmaster Air makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Chillmaster Air’s liability in respect of these warranties is limited to the fullest extent permitted by law.
If the Client is a consumer within the meaning of the CCA, Chillmaster Air’s liability is limited to the extent permitted by section 64A of Schedule 2.
If Chillmaster Air is required to replace the Goods under this clause or the CCA, but is unable to do so, Chillmaster Air may refund any money the Client has paid for the Goods.
If the Client is not a consumer within the meaning of the CCA, Chillmaster Air’s liability for any defect or damage in the Goods is:
limited to the value of any express warranty or warranty card provided to the Client by Chillmaster Air at Chillmaster Air’s sole discretion;
limited to any warranty to which Chillmaster Air is entitled, if Chillmaster Air did not manufacture the Goods;
otherwise negated absolutely.
Subject to this clause 15, returns will only be accepted provided that:
the Client has complied with the provisions of clause 15.1; and
Chillmaster Air has agreed that the Goods are defective; and
the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
the Goods are returned in as close a condition to that in which they were delivered as is possible.
Notwithstanding clauses 15.1 to 15.8 but subject to the CCA, Chillmaster Air shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
the Client failing to properly maintain or store any Goods;
the Client using the Goods for any purpose other than that for which they were designed;
the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
the Client failing to follow any instructions or guidelines provided by Chillmaster Air;
fair wear and tear, any accident, or act of God.
Chillmaster Air may in its absolute discretion accept non-defective Goods for return in which case Chillmaster Air may require the Client to pay handling fees of up to thirty-five percent (35%) of the value of the returned Goods plus any freight costs.
Notwithstanding anything contained in this clause if Chillmaster Air is required by a law to accept a return then Chillmaster Air will only accept a return on the conditions imposed by that law.
Subject to clause 15.1, customised, or non-stocklist items or Goods made or ordered to the Client’s specifications are not acceptable for credit or return.
Where Chillmaster Air has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Chillmaster Air. Under no circumstances may such designs, drawings and documents be used without the express written approval of Chillmaster Air.
The Client warrants that all designs, specifications or instructions given to Chillmaster Air will not cause Chillmaster Air to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Chillmaster Air against any action taken by a third party against Chillmaster Air in respect of any such infringement.
The Client agrees that Chillmaster Air may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Chillmaster Air has created for the Client.
Default and Consequences of Default
Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Chillmaster Air’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Client owes Chillmaster Air any money the Client shall indemnify Chillmaster Air from and against all costs and disbursements incurred by Chillmaster Air in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Chillmaster Air’s contract default fee, and bank dishonour fees).
Further to any other rights or remedies Chillmaster Air may have under this Contract, if a Client has made payment to Chillmaster Air, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Chillmaster Air under this clause 17 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
Without prejudice to Chillmaster Air’s other remedies at law Chillmaster Air shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Chillmaster Air shall, whether or not due for payment, become immediately payable if:
any money payable to Chillmaster Air becomes overdue, or in Chillmaster Air’s opinion the Client will be unable to make a payment when it falls due;
the Client has exceeded any applicable credit limit provided by Chillmaster Air;
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
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
If any dispute, disagreement or difference arises between the Client and Chillmaster Air at any time relating to this Contract then subject to the rights of either party (or their successors) they will take the following steps before resorting to the procedures set in Part 3A (Conciliation of Disputes) and Part 4 (Inspectors) of the Act:
If the Client or Chillmaster Air considers that a dispute has arisen about any matter covered by this Contract, that part must promptly give the other notice of the dispute. The notice should identify both the matter and the claim being made. Matters can be those that arose during the progress of the Services, arose after completion of Services or arose after the Contract was terminated;
Chillmaster Air and the Client will then arrange a meeting and will negotiate in an honest and genuine attempt to resolve the dispute. Chillmaster Air’s representative or the Client’s representative can represent their principal for that purpose only if they have been authorised in writing.
If the disputes is not resolved within 10 business Days, the parties may lodge an application for review with the Domestic Building Dispute Resolution Victoria (DBDRV), all disputed matters must be referred to this Victorian Government Agency, (it’s free and is an independent service) before asking for an inspector to be appointed under the Act or referring the matter to Victorian Civil & Administrative Tribunal (VCAT).
Where a dispute exists, each of the parties must continue to perform its obligations under this Contract unless the other party evinces an intention not to comply with this clause.
Without prejudice to any other remedies Chillmaster Air may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Chillmaster Air may suspend or terminate the supply of Goods to the Client. Chillmaster Air will not be liable to the Client for any loss or damage the Client suffers because Chillmaster Air has exercised its rights under this clause.
Chillmaster Air may cancel any contract to which these terms and conditions apply or cancel Delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Chillmaster Air shall repay to the Client any money paid by the Client for the Goods. Chillmaster Air shall not be liable for any loss or damage whatsoever arising from such cancellation.
In the event that the Client cancels Delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by Chillmaster Air as a direct result of the cancellation (including, but not limited to, any loss of profits).
Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
All emails, documents, images or other recorded information held or used by Chillmaster Air is Personal Information, as defined and referred to in clause 20.3, and therefore considered Confidential Information. Chillmaster Air acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). Chillmaster Air acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by Chillmaster Air that may result in serious harm to the Client, Chillmaster Air will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
Notwithstanding clause 20.1, privacy limitations will extend to Chillmaster Air in respect of Cookies where the Client utilises Chillmaster Air’s website to make enquiries. Chillmaster Air agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
IP address, browser, email client type and other similar details;
tracking website usage and traffic; and
reports are available to Chillmaster Air when Chillmaster Air sends an email to the Client, so Chillmaster Air may collect and review that information (“collectively Personal Information”)
The Client agrees that Chillmaster Air may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
to assess an application by the Client; and/or
to notify other credit providers of a default by the Client; and/or
to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
The Client consents to Chillmaster Air being given a consumer credit report to collect overdue payment on commercial credit.
The Client agrees that personal credit information provided may be used and retained by Chillmaster Air for the following purposes (and for other agreed purposes or required by):
the provision of Goods; and/or
analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
enabling the collection of amounts outstanding in relation to the Goods.
Chillmaster Air may give information about the Client to a CRB for the following purposes:
to obtain a consumer credit report;
allow the CRB to create or maintain a credit information file about the Client including credit history.
The information given to the CRB may include:
Personal Information as outlined in 20.3 above;
name of the credit provider and that Chillmaster Air is a current credit provider to the Client;
whether the credit provider is a licensee;
type of consumer credit;
details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and Chillmaster Air has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
information that, in the opinion of Chillmaster Air, the Client has committed a serious credit infringement;
advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
The Client shall have the right to request (by e-mail) from Chillmaster Air:
a copy of the Personal Information about the Client retained by Chillmaster Air and the right to request that Chillmaster Air correct any incorrect Personal Information; and
that Chillmaster Air does not disclose any Personal Information about the Client for the purpose of direct marketing.
Chillmaster Air will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
The Client can make a privacy complaint by contacting Chillmaster Air via e-mail. Chillmaster Air will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
Service of Notices
Any written notice given under this Contract shall be deemed to have been given and received:
by handing the notice to the other party, in person;
by leaving it at the address of the other party as stated in this Contract;
by sending it by registered post to the address of the other party as stated in this Contract;
if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
if sent by email to the other party’s last known email address.
Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Chillmaster Air may have notice of the Trust, the Client covenants with Chillmaster Air as follows:
the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
the Client will not without consent in writing of Chillmaster Air (Chillmaster Air will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
the removal, replacement or retirement of the Client as trustee of the Trust;
any alteration to or variation of the terms of the Trust;
any advancement or distribution of capital of the Trust; or
any resettlement of the trust property.
Building and Construction Industry Security of Payment Act 2002
At Chillmaster Air’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payment Act 2002 may apply.
Nothing in this Contract is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 of Victoria, except to the extent permitted by the Act where applicable.
The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria,the state in which Chillmaster Air has its principal place of business, and are subject to the jurisdiction of the courts in Melbourne, Victoria.
Subject to clause 15, Chillmaster Air shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Chillmaster Air of these terms and conditions (alternatively Chillmaster Air’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
Chillmaster Air may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
The Client cannot licence or assign without the written approval of Chillmaster Air.
Chillmaster Air may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of Chillmaster Air’s sub-contractors without the authority of Chillmaster Air.
The Client agrees that Chillmaster Air may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for Chillmaster Air to provide Goods to the Client.
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.
Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
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