EFFECTIVE DATE: 1/3/2021
Provider means Jag Services Australia Pty Ltd ACN 629 270 346 trading as Hello Breeze (Hello Breeze) of Factory 2/56-60 Garden Dr, Tullamarine VIC 3043, its successors and assigns or any person acting on behalf of and with the authority of Hello Breeze.
Customer means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one customer is a reference to each Customer jointly and severally.
Goods means all Goods or Services supplied by the Provider to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
GST means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
Price means the Price payable (plus any GST where applicable) for the Goods as agreed between the Provider and the Customer in accordance with clause 4 below.
Services means services supplied by Hello Breeze to the Customer at the Customer’s request from time to time.
2. Acceptance
2.1. The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2. These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or contract between the Customer and the Provider.
2.3. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with the Electronic Transactions Act (Victoria) or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Price and Payment
3.1. The Price shall be the Provider’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
3.2. The Provider reserves the right to change the Price if a variation to the Provider’s quotation is requested Any variation from the plan of scheduled Services or specifications (including, but not limited to, any variation as a result of additional Services required due to unforeseen circumstances such as poor weather conditions, limitations to accessing the site, availability of machinery, safety considerations, design change, prerequisite work by any third party not being completed or as a result of any increase to the Provider in the cost of materials (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) and labour) will be charged for on the basis of the Provider’s quotation and will be shown as variations on the invoice.
3.3. The Customer shall be required to respond to any variation submitted by the Provider within ten (10) working days. Failure to do so will entitle the Provider 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.
3.4. At the Provider’s sole discretion, a non-refundable deposit may be required.
3.5. Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by the Provider, which may be:
3.6. Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Customer and the Provider.
3.7. The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Provider nor to withhold payment of any invoice because part of that invoice is in dispute.
3.8. Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to the Provider an amount equal to any GST the Provider must pay for any supply by the Provider under this or any other contract for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer 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.
4. Delivery of Goods
4.1. Delivery (Delivery) of the Goods is taken to occur at the time that:
4.2. At the Provider’s sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.
4.3. Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this contract.
4.4. Any time specified by the Provider for delivery of the Goods is an estimate only. The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. The Provider will not be liable for any loss or damage incurred by the customer as a result of delivery being late. In the event that the customer is unable to take delivery of the Goods as arranged then the provider shall be entitled to charge a reasonable fee for re-delivery and/or storage.
4.5. The Provider 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.
5. Risk
5.1. Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before delivery.
5.2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Provider is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Provider is sufficient evidence of the Provider’s rights to receive the insurance proceeds without the need for any person dealing with the Provider to make further enquiries.
5.3. If the Customer requests the Provider to leave Goods outside the Provider’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Customer’s sole risk.
5.4. The Provider shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, the Provider accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
5.5. The Customer acknowledges that Goods supplied may (particularly where the Goods are located outside):
5.6. Whilst the final location of the condensing unit is at the discretion of the Customer, a charge will apply as a variation as per clause 4.2, if the Customer requests the unit to not be located adjacent to the external wall, due to the underground piping required.
5.7. The final location of the wall, window or floor unit must be determined on site by the Customer.
5.8. The Provider shall upon installation ensure that all installed Goods meet current industry standards applicable to noise levels, however the Provider 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.
5.9. In the event that any of the equipment needs to be relocated due to complaints from neighbours or local authorities, then the Customer shall be responsible for any and all costs involved.
5.10. The Customer acknowledges and agrees that it is their responsibility to insure any equipment partly or completely installed on site, against theft or damage.
5.11. In the event that the electrical wiring is required to be re-positioned at the request of any third party contracted by the Customer then the Customer agrees to notify the Provider immediately upon any proposed changes. The Customer agrees to indemnify the Provider against any additional costs incurred with such a relocation of electrical wiring. All such variances shall be invoiced in accordance with clause 4.2.
5.12. Where the Customer has supplied goods for the Seller to complete the Services, the Customer acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the goods. The Provider shall not be responsible for any defects in the goods, any loss or damage to the Goods (or any part thereof), howsoever arising from the use of goods supplied by the Customer.
5.13. The Customer 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 the Provider, or employees of the Provider, reasonably form the opinion that the Customer’s premises is not safe for the installation of Goods to proceed then the Provider shall be entitled to delay installation of the Goods until the Provider is satisfied that it is safe for the installation to proceed.
5.14. The Customer acknowledges that the Provider is only responsible for parts that are replaced by the Provider and that in the event that other parts/Goods, subsequently fail, the Customer agrees to indemnify the Provider against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising (including, but not limited to, loss of perishables, flooding and/or damage to clothing).
6. Specifications
6.1. The Customer acknowledges that:
7. Access
7.1. The Customer shall ensure that the Provider has clear and free access to the work site, access points and egress as required at all times to enable them to undertake the Services. The Provider 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 the Provider.
7.2. Where applicable, it is the responsibility of the Customer to ensure that access is suitable to accept the weight of laden trucks, lifting or other equipment as may be deemed necessary by the Provider.
8. Underground Locations
8.1. Prior to the Provider commencing any work the Customer must advise the Provider of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Customer must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
8.2. Whilst the Provider will take all care to avoid damage to any underground services the Customer agrees to indemnify the Provider 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 9.1.
9. Compliance with Laws
9.1. The Customer and the Provider 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.
9.2. The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Services.
9.3. The Customer agrees that the site will comply with any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.
9.4. 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 2002, applicable Act, and/or Codes of Practice. All of the cabling work will comply with the Australian and New Zealand Wiring standards.
9.5. If during the course of installation when the Services are being conducted within and around switchboards that if the same is found defective or deemed to be unsafe by the Provider, then the Provider shall notify the Customer immediately. The power if isolated will not be re-energised until such time as the existing condition has been rectified and made safe in accordance to the Electrical Safety Regulations. The Customer accepts and agrees that any costs associated with the rectification Services including any Goods and labour shall be to the Customer’s account.
9.6. Any live Services or Services undertaken near live conductors where it is safe to do so shall be dealt with in accordance with Australian and New Zealand Wiring standards being “Safe working on Low Voltage Electrical Installations, relevant Commonwealth and Statutory Acts and Work Place Regulations”. The Provider’s live Services procedures are designed to eliminate risk of injury to the Provider’s employees, damage to the Customer’s installations and unexpected power disconnections. It may in some cases require disconnection and isolation of the installation to undertake such Services for which additional charges may be applicable. This shall be invoiced in accordance with clause 4.2.
10. Title
10.1. The Provider and the Customer agree that ownership of the Goods shall not pass until:
However, the Customer shall be responsible for the materials once they are delivered to the worksite. The Provider will take all care to ensure that the materials are safe at the worksite but accepts no liability with respect to this.
10.2. Receipt by the Provider 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.
10.3. It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 11.1:
11. Personal Property Securities Act 2009 (PPSA)
11.1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
11.2. Upon assenting to these terms and conditions in writing the Customer 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 Customer to the Provider for Services – that have previously been supplied and that will be supplied in the future by the Provider to the Customer.
11.3. The Customer undertakes to:
11.4. The Provider and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
11.5. The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
11.6. The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
11.7. Unless otherwise agreed to in writing by the Provider, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
11.8. The Customer must unconditionally ratify any actions taken by the provider under clauses 12.3 to 12.5.
11.9. Subject to any express provisions to the contrary (including those contained in this clause 12), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
12. Security and Charge
12.1. In consideration of the Provider agreeing to supply the Goods, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
12.2. The Customer indemnifies the Provider from and against all the Provider’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Provider’s rights under this clause.
12.3. The Customer irrevocably appoints the Provider and each director of the Provider as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Customer’s behalf.
13. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
13.1. The Customer must inspect the Goods on delivery and must within fourteen (14) days of delivery notify the Provider in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow the Provider to inspect the Goods.
13.2. 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 (Non-Excluded Guarantees).
13.3. The Provider acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
13.4. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Provider makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. The Provider’s liability in respect of these warranties is limited to the fullest extent permitted by law.
13.5. If the Customer is a consumer within the meaning of the CCA, the Provider’s liability is limited to the extent permitted by section 64A of Schedule 2.
13.6. If the Provider is required to replace the Goods under this clause or the CCA, but is unable to do so, the Provider may refund any money the Customer has paid for the Goods.
13.7. If the Customer is not a consumer within the meaning of the CCA, the Provider’s liability for any defect or damage in the Goods is:
13.8. Subject to this clause 14, returns will only be accepted provided that:
13.9. Notwithstanding clauses 14.1 to 14.8 but subject to the CCA, the Provider shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
13.10. In the case of second hand Goods, unless the Customer is a consumer under the CCA, the Customer acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by the Provider as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Customer acknowledges and agrees that the Provider has agreed to provide the Customer with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 14.10.
13.11. Notwithstanding anything contained in this clause if the Provider is required by a law to accept a return then the Provider will only accept a return on the conditions imposed by that law.
14. Intellectual Property
14.1. Where the Provider has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of the Provider. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Provider.
14.2. The Customer warrants that all designs, specifications or instructions given to the Provider will not cause the Provider to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Provider against any action taken by a third party against the Provider in respect of any such infringement.
14.3. The Customer agrees that the Provider may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Provider has created for the Customer.
15. Default and Consequences of Default
15.1. 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 the Provider’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
15.2. If the Customer owes the Provider any money the Customer shall indemnify the Provider from and against all costs and disbursements incurred by the Provider in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Provider’s contract default fee, and bank dishonour fees).
15.3. Further to any other rights or remedies the Provider may have under this contract, if a Customer has made payment to the Provider, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Provider under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this contract.
15.4. Without prejudice to the Provider’s other remedies at law the Provider shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Provider shall, whether or not due for payment, become immediately payable if:
16. Cancellation
16.1. Without prejudice to any other remedies the Provider may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Provider may suspend or terminate the supply of Goods to the Customer. The Provider will not be liable to the Customer for any loss or damage the Customer suffers because the Provider has exercised its rights under this clause.
16.2. The Provider 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 Customer. On giving such notice the Provider shall repay to the Customer any money paid by the Customer for the Goods. The Provider shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.3. In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Provider as a direct result of the cancellation (including, but not limited to, any loss of profits).
16.4. Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
17. Privacy Act 1988
17.1. The Customer agrees for the Provider to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by the Provider.
17.2. The Customer agrees that the Provider may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
17.3. The Customer consents to the Provider being given a consumer credit report to collect overdue payment on commercial credit.
17.4. The Customer agrees that personal credit information provided may be used and retained by the Provider for the following purposes (and for other agreed purposes or required by):
17.5. The Provider may give information about the Customer to a CRB for the following purposes:
17.6. The information given to the CRB may include:
17.7. The Customer shall have the right to request (by e-mail) from the Provider:
17.8. The Provider will destroy personal information upon the Customer’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.
17.9. The Customer can make a privacy complaint by contacting the Provider via e-mail. The Provider 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 Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
18. Dispute Resolution
18.1. If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
19. Building and Construction Industry Payments Act
19.1. At the Provider’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 Payments Act may apply.
19.2. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Payments Act of Victoria, except to the extent permitted by the Act where applicable.
20. Service and Notices
20.1. Any written notice given under this contract shall be deemed to have been given and received:
20.2. 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.
21. General
21.1. 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.
21.2. These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria in which the Provider has its principal place of business, and are subject to the jurisdiction of the courts in Victoria.
21.3. Subject to clause 14, the Provider shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Provider of these terms and conditions (alternatively the Provider’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
21.4. Neither party to this contract may assign this contract, any payment or any other right, benefit or interest under this contract without the written consent of the other party (which shall not be unreasonably withheld). The Provider 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 Customer agrees and understands that they have no authority to give any instruction to any of the Provider’s sub-contractors without the authority of the Provider.
21.5. The Customer agrees that the Provider may amend these terms and conditions by notifying the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for the Provider to provide Goods to the Customer.
21.6. 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.
21.7. 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.