1 Definitions and interpretation
In these Conditions:
“ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010;
“Charges” means the charges specified in the Statement of Work and payable by you to Heataire Services under the Contract;
“Conditions” means these General Terms and Conditions (Heataire Services);
“Consumer” means a Consumer as defined in the ACL and in determining if you are a Consumer, the determination is made if you are a Consumer under the Contract;
“Contract” means a contract between Heataire Services and you for the completion of Work incorporating these Conditions and a Statement of Work, and any amendments to such a contract from time to time.
“Customer” means the Consumer to whom the Statement of Work is addressed to, accepted by (and is to be paid by) and the Contract has been formed with;
“Equipment” means the equipment used by Heataire Services in the course of providing the Services;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, severe adverse weather conditions, riots, terrorist attacks and wars);
“Hazardous Material” means any item or agent (biological, chemical, radiological, and/or physical), which has the potential to cause harm to humans, animals, or the environment, either by itself or through interaction with other factors.
“Heataire Services” is Heataire Services ABN 27 620 558 787 of Unit 10, 21 Howleys Road Notting Hill Vic 3168. Unless inconsistent with the context, the singular shall include the plural and vice versa. “Heataire Services” is to be read as including reference to Heataire Services and its successors in law or legal assigns as the case may be.
“Materials" means the materials (if any) supplied or to be supplied to you by Heataire Services under the Statement of Work;
“Premises” means your premises, as specified in the Statement of Work, where the Materials will be delivered and the Services will be provided by Heataire Services;
“Services” means the services provided or to be provided to you by Heataire Services under the Statement of Work and shall include, where specified, the installation of any or all of the Materials
“Statement of Work” means the statement of work document (Quotation, Preventative Maintenance Agreement or relevant email) issued to you by Heataire Services detailing the Charges, scope and other relevant matters, terms and conditions specific to the Work as requested/proposed within.
“Work” means the supply of the Materials and the provision of the Services, details of which are set out in the Statement of Work (or, to the extent that no such details are set out in the Statement of Work, details of which will be agreed between the parties acting reasonably from time to time);
“You, your” means you, the Customer for Work under the Statement of Work.
By approving / requesting Heataire Services to undertake the Work as defined within the Statement of Work (irrespective as to whether the Statement of Work is written or verbal in nature) you are aware and accepting of the fact that you are entering into a Contract with Heataire Services as per the Conditions set here within and any specific conditions set within the Statement of Work itself.
3.1 Heataire Services agrees to complete the Work as defined within the Statement of Work in accordance with the Conditions detailed here within and any additional terms and conditions set within the Statement of Work itself.
3.2 Heataire Services agrees to complete all Work authorised hereunder in a good and workmanlike manner as soon as is reasonably practicable and whether or not a definite date for completion has been detailed within the Statement of Work or quoted via another means shall not be responsible for any delay in completion occasioned by shortages of materials or difficulty of securing labour or any other cause beyond the reasonable and practicable control of Heataire Services.
3.3 All Work undertaken shall comply with the relevant Australian Standard.
3.4 Unless specifically detailed within, the Statement of Work does not allow for;
(a) The installation, repair or maintenance of any systems, appliances or controls, other than those specified.
(b) Any Work to be performed outside of normal working hours, namely 8:00am to 4:30pm Monday to Friday.
(c) Any activity required to clear the site to enable Work to commence
(d) Any painting, patching or other associated make good activity
(e) Any electrical work, e.g. installation, modification or upgrade required to meet current Australian and Industry Standards
(f) Any activity required to address/mitigate any identified Hazardous Material
3.5 The Customer will be responsible for any additional cost occasioned by overtime or shiftwork to meet the Customer’s needs.
3.6 All extra alterations not included in this Statement of Work shall be requested in writing and the cost of alteration must be in writing or shall be of no effect
4 Estimates, Charges and Payment
4.1 You will pay the Charges specified in the Statement of Work and all other charges due under the Contract to Heataire Services in accordance with the provisions of this Clause 3.
4.2 Before the commencement of the Work, Heataire Services may provide to you a written estimate of Charges. You acknowledge that such an estimate may not reflect the actual Charges due upon the completion of Work under the Contract.
4.3 The amounts of all Charges specified in the Statement of Work or elsewhere in relation to the Work are inclusive of GST (unless specifically called out as exclusive of GST).
4.4 Charges must be paid in cash or by debit or credit card, bank transfer or by cheque (using such payment details as are notified by Heataire Services to you from time to time).
4.5 If you do not pay any amount properly due to Heataire Services, Heataire Services may charge you interest on the overdue amount at the rate prevailing pursuant to the Penalty Interest Rates Act 1983 for the period from the due date until the date of payment in full.
4.6 The Customer charges have been calculated on the basis of the wages payable by Heataire Services and on the hours of labour ruling at the date of the Statement of Work creation and on the cost of materials actually allowed by Heataire Services in its books in assessing the price or failing evidence of such allowance, then on the cost of materials ruling at the date of this Statement of Work. If by reason of any award, determination, industry agreement or judgement of any relevant duly constituted industrial tribunal or statutory authority, there shall be any variation in the rates of wages payable to or the hours of labour to be worked by persons employed by Heataire Services at the site where the work is to be performed and/or if there shall be any variation in the cost to Heataire Services of materials included in this Statement of Work then and in any of those events the price quoted shall be varied in the same manner and to the same extent as the costs to Heataire Services of executing the work has been actually varied by reason of any such variation.
4.7 Payment of the Customer Charges is due as per the terms detailed within the Statement of Work or its resulting invoice, which by default is set as immediate payment upon Work completion.
4.8 Should the Customer fail to make any payment due under the Contract on the due date Heataire Services shall be entitled to suspend the works until payment is made. If default continues for a period of seven days thereafter Heataire Services shall be entitled to terminate the Contract and sue for work and labour done and materials supplied to the date of the suspension. If the Customer shall refuse or neglect to pay any amount so due Heataire Services shall be entitled to interest on such amount at the rate of 10 per centum per annum from the due date until the date of payment.
4.9 If through the presence of any Hazardous Material being detected Work is required to be paused, if Work has not recommenced within 90 days (or an alternative period agreed between all parties), then Heataire Services shall be entitled to terminate the Contract and request payment in full for all Charges detailed within the Statement of Work irrespective of their completion status.
5 Equipment, fixtures, fittings or materials
5.1 If any equipment, fixtures, fittings, or materials are supplied by the Customer all reasonable care will be taken but fixtures, fittings and materials so supplied will be sorted, handled and installed only at the risk of the Customer.
5.2 During the course of the Work, Heataire Services may with your Contract (which shall not be unreasonably withheld) store Equipment at the Premises.
5.3 You must not use, move or otherwise interfere with Equipment stored at the Premises, save in accordance with the express instructions of Heataire Services.
6.1 You will:
(a) provide to Heataire Services prompt access to the Premises as required for carrying out the Work, and ensure that Heataire Services will be able to access all areas at the Premises reasonably necessary for carrying out the Work;
(b) ensure that no other tradesmen will be working at the Premises while the Work is being carried out, except with Heataire Services's written consent;
(c) ensure that prior to the commencement of the Work the areas of the Premises where the Work will be carried out are suitably cleared of all furnishings, appliances, equipment, items, debris and Hazardous Material that:
(i) prevent or inhibit or may prevent or inhibit Heataire Services from carrying out the Work; or
(ii) may be damaged during the course of the Work (whether as a result of dust, fumes or otherwise).
(d) maintain the Premises in good order for the supply of the Services, and in accordance with all applicable laws;
(e) ensure that for the duration of the Work, you or another to act on your behalf (which cannot be a representative of Heataire Services) will always be present within the Premises.
(f) where you are a Business and not a Consumer:
(i) be responsible for ensuring the health and safety of Heataire Services's personnel, agents and subcontractors whilst they are at the Premises; and
(ii) inform Heataire Services of all health and safety rules and regulations and any reasonable security requirements that apply at the Premises; and
(iii) maintain reasonable insurance cover for Heataire Services's personnel, agents and subcontractors whilst they are working at the Premises (including public liability insurance).
6.2 When carrying out the Work at the Premises, Heataire Services shall comply with all reasonable health, safety and security policies and regulations advised to Heataire Services by you.
6.3 Heataire Services will use reasonable measures to secure any keys (or other access mechanisms) provided by you to Heataire Services for the purpose of enabling Heataire Services's personnel to enter the Premises.
6.4 Should Heataire Services in the course of any Work authorised discover any defect in any part of the Premises or the existing installation or connection which makes it impracticable or inexpedient for it to continue its work under the Contract without repairing or replacing any part of the said premises or installation or connection (and Heataire Services shall be the sole judge thereof) Heataire Services shall be entitled to suspend work on the job and shall immediately notify the Customer thereof and submit the price of such additional work and if the Customer shall fail to sign an authority for Heataire Services to carry out same the Contract shall be deemed at an end and Heataire Services shall be entitled to payment for all work done and materials supplied to date of suspension of the work anything to the contrary herein before contained notwithstanding.
6.5 Should Heataire Services in the course of any Work authorised discover any Hazardous Material in any part of the Premises which makes it impracticable or inexpedient for it to continue its work under the Contract (and Heataire Services shall be the sole judge thereof) Heataire Services shall be entitled to suspend work on the job and shall immediately notify the Customer thereof. Work will only recommence when Heataire Services solely determines that the issue/s and/or risk/s raised have been satisfactorily treated to their level of acceptance, with the setting, undertaking, completion and all resulting expenses incurred to address said issue/s and/or risk/s (in whatever form of action it may manifest itself as) being wholly the responsibility of the Customer.
7.1 Legal and equitable title to the Materials will pass from Heataire Services to you upon the later of:
(a) installation of the Materials; and
(b) receipt by Heataire Services of payment of all Charges due under the Contract.
7.2 While Heataire Services retains title to the Materials, you will hold the Materials as bailee of Heataire Services and you will:
(a) not remove the Materials from the Premises;
(b) not deface, destroy, alter or obscure any identifying mark on the Materials;
(c) ensure that no charge, lien or other encumbrance is created over the Materials; and
(d) deliver up the Materials to Heataire Services upon demand.
7.3 If you fail to pay by the due date any Charges due under the Contract:
(a) Heataire Services shall be entitled without further notice to inspect or recover possession of any Materials to which it retains title; and
(b) you grant to Heataire Services and its employees and agents an irrevocable licence to enter at any time the Premises or any premises where the Materials are or may be situated without liability for trespass or any resulting damage for the purpose of inspecting or removing any Materials the title in which remains with Heataire Services.
7.4 Any materials removed from the Customer’s premises in connection with the work being the subject of the Contract and not reused on the job shall be the property of Heataire Services.
8 Customer obligations
8.1 You must provide to Heataire Services access to toilets, a water supply, a mains electricity, water and gas supply and a waste water facility at the Premises.
8.2 You will provide to, or procure for, Heataire Services any:
(a) support and advice;
(b) information and documentation; and
(c) third party co-operation
reasonably necessary to enable Heataire Services to discharge its obligations under the Contract.
8.3 Unless agreed otherwise in writing you shall be responsible for giving any and all prior notifications, and obtaining any and all legal and governmental consents and permits, required by law in relation to the Services.
8.4 You will indemnify Heataire Services and will keep Heataire Services indemnified against any and all losses, costs, expenses, damages and liabilities (including legal expenses and amounts paid in settlement of legal claims or proceedings) arising directly or indirectly out of any breach by you of this Contract.
8.5 It is a condition of this Contract that where appropriate the Customer shall keep Heataire Services duly informed of job progress and of any changes in original plans or of work programming which affects the execution of Heataire Services Work.
9.1 You warrant and represent to Heataire Services that you have the legal right and authority to enter into and perform your obligations required by the Contract.
9.2 Heataire Services warrants to you that:
(a) it has the legal right and authority to enter into and perform its obligations required by the Contract;
(b) the Work will be carried with reasonable care and skill;
(c) subject to your compliance with this Contract, the Work will be carried out in accordance with all applicable laws and regulations in force at the date of the supply of the relevant Services, and Heataire Services and Heataire Services's personnel hold all necessary certifications and accreditations to enable them legally to carry out the Work.
9.3 Heataire Services warrants that:
(a) it has (or will have at the relevant time) the right to sell the Materials to you;
(b) subject to the provisions of Clause 4, the Materials will be sold free from any charge or encumbrance;
(c) you shall enjoy quiet possession of the Materials, subject to Heataire Services’s rights under Clause 6;
(d) the Materials will:
(i) be of satisfactory quality;
(ii) be fit for the purpose of replacing any materials that they are used to replace;
(iii) comply with all laws, rules and regulations applicable to the Materials in the State of Victoria; and
(iv) bear all mandatory marks and signs associated with the laws, rules and regulations referred to in Clause 8.3(d)(iii).
9.4 If the Works are works to be carried out under a Domestic Building Contract within the meaning of the Domestic Building Contracts Act 1995 (Vic), Heataire Services warrants to you that:
(a) the Work will be carried out in a proper and workmanlike manner and in accordance with the Statement of Work;
(b) all materials to be supplied by Heataire Services for use in the Work will be good and suitable for the purpose for which they are used and that, unless otherwise stated in the Statement of Work, those materials will be new;
(c) that the Work will be carried out in accordance with, and will comply with, all laws and legal requirements including, without limiting the generality of this warranty, the Building Act 1993 (Vic) and the regulations made under that Act ;
(d) that the Work will be carried out with reasonable care and skill and will be completed by the date (or within the period) specified under this Contract;
(e) that if the Work consists of the erection or construction of a home, or is work intended to renovate, alter, extend, improve or repair a home to a stage suitable for occupation, the home will be suitable for occupation at the time the Work is completed;
(f) if the Contract states the particular purpose for which the work is required, or the result which you wish the work to achieve, so as to show that you rely on the Heataire Services’s skill and judgement, Heataire Services warrants that the Work and any material used in carrying out the Work will be reasonably fit for that purpose or will be of such a nature and quality that they might reasonably be expected to achieve that result.
9.5 All of the parties' warranties and representations in respect of the subject matter of the Contract are expressly set out in these Conditions and in the Statement of Work. To the maximum extent permitted by applicable law and subject to Clause 9.1, no other warranties or representations concerning the subject matter of the Contract will be implied into the Contract or any other contract.
10 Limitations and exclusions of liability
10.1 Heataire Services liability for failure to comply with a guarantee implied by operation of the ACL (other than a guarantee under section 51, 52 or 53 of the ACL) is limited to:
(a) in the case of the supply by Heataire Services of goods other than goods of a kind ordinarily acquired for personal, domestic or household use or consumption, one or more of the following:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods;
(iv) the payment of the cost of having the goods repaired; and
(b) in the case of the supply by Heataire Services of services other than services of a kind ordinarily acquired for personal, domestic or household use or consumption one or more of the following:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
10.2 Nothing in the Contract will:
(a) limit or exclude the liability of a party for death or personal injury resulting from negligence;
(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
(c) limit any liability of a party in any way that is not permitted under applicable law; or
(d) exclude any liability of a party that may not be excluded under applicable law,
and any statutory rights that you have where you are a Consumer and not a Business, that cannot be limited or excluded, will not be limited or excluded by the Contract.
10.3 The limitations and exclusions of liability set out in this Clause 9 and elsewhere in the Contract:
(a) are subject to Clause 9.1 and 9.2; and
(b) govern all liabilities arising under the Contract or in relation to the subject matter of the Contract, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty.
10.4 Heataire Services will not be liable to you in respect of any special, indirect or consequential loss or damage including, where you are a Business, loss of or damage to profits, income, revenue, use, production, anticipated savings, business, contracts, commercial opportunities or goodwill.
10.5 Heataire Services's aggregate liability to you will not exceed the greater of:
(a) the total amount paid and payable by you to Heataire Services under the Contract; or
(b) where you are a Business, the Compensation (if any).
10.6 Save to the extent that Heataire Services's negligence has resulted in the loss or damage, Heataire Services will not be liable to you in respect of any loss or damage arising out of pre-existing faults in your electrical systems, notwithstanding that such pre-existing faults may only become manifest during or following the completion of the Work.
10.7 Other than as expressly provided under the Contract any material presented to you by Heataire Services via its website or otherwise including estimates of costs, savings or returns is provided as illustration only and is not intended to constitute a definitive statement nor specific advice. You agree that you place no reliance on such material and that you exercised your own judgement before deciding whether or not to enter into the Contract with Heataire Services.
10.8 Any express or implied condition, statement or warranty (statutory or otherwise) in respect of components, control equipment, fans, motors, accessories and other goods supplied is hereby expressly negatived, save only insofar and to the extent that any condition or warranty is by any statute or regulation expressly made applicable to this transaction and is by statute or regulation rendered incapable of exclusion in the course of the transaction. Save as aforesaid no guarantee or warranty whatsoever is attaches to any goods supplied in the course of the execution of the Contract, provided that Heataire Services will, to the extent that it is reasonably able to do so, transfer and assign to the Customer upon request the benefit of any guarantee and warranty which may have been given by the manufacturer of such goods.
11 Force Majeure Event
Where a Force Majeure Event gives rise to a failure or delay in Heataire Services performing its obligations required by the Contract, those obligations will be suspended for the duration of the Force Majeure Event.
12 Contract Termination
This Contract will terminate when all associated Work completion and Charges payment conditions have been met or as a result of any termination events/clauses as set out here within or within the Statement of Work itself.
13 Proper Law
This Contract is governed by and shall be construed in accordance with the laws of the State of Victoria and each of the parties irrevocably submits to the jurisdiction of the Courts of that State.