BUSINESS TERMS
1 OVERVIEW
These are the standard terms and conditions (“Agreement”) that apply when you (“Client”) contract with Chill Merchants Pty Ltd (ABN 20 630 918 160) (“Chill Merchants”) to provide products (“Products”) and services (“Services”) to you (“Client”).
(a) Chill Merchants agrees to provide the Products and Services to Client in accordance with this Agreement.
(b) This Agreement includes these standard terms and the details set out the Engagement Proposal that references these standard terms.
(c) To be valid, an Engagement Proposal must be agreed and signed by Client.
(d) In the event of any express inconsistency, the provisions of the Engagement Proposal will prevail over these standard terms.
(e) Unless otherwise stated by Chill Merchants in writing, an Engagement Proposal is valid for acceptance for 60 days only.
2 TERM
(a) Where appropriate, the Term of an Engagement Proposal is set out in the Engagement Proposal.
3 PRODUCTS AND SERVICES
3.1 The Products(a)
The Products to be provided by Chill Merchants to Client are specified in the Engagement Proposal.
(b) Unless otherwise stated in the Engagement Proposal, the Products will be new.
(c) Descriptions of Products in the Engagement Proposal are general only and are subject to changes made by the manufacturer.
(d) Chill Merchants does not provide an independent warranty for the Products but will use best endeavours to pass on the benefit of the manufacturer’s warranty to Client.
(e) Risk of loss and damage to the Products pass toClient when the Products are installed at Client’s premises, except that if the Products are delivered and stored at Client’s premises prior to installation, risk of loss and damage to the Products shall pass to Client during such period of storage.
(f) Title to the Products, including full legal and beneficial ownership, does not pass to Client until Chill Merchants
has received cleared payment in full for such Products and related Services in accordance with this Agreement.
(g) Chill Merchants will deliver Products to the address stated in the Engagement Proposal. Delivery may be in stages.
3.2 The Services
(a) The Services are specified in the Engagement Proposal.
(b) Chill Merchants will provide the Services with in a professional manner in accordance with good industry practice and to meet the specifications set out in the Engagement Proposal.
(c) Chill Merchants will perform the Services in an efficient and expeditious manner and will ensure that all persons performing any Services are properly trained, qualified and experienced to perform the Services.
(d) In providing the Services, Chill Merchants will:
(i) comply with all Laws; and
(ii) comply with all reasonable direction of Client in connection with the provision of the Services.
(e) Chill Merchants provide a 12 month warranty on workmanship.
(f) The Fees do not include any variations.
(g) Additional services and variations may be provided under this Agreement where the parties agree to and sign a written addendum or additional Engagement Proposal that specifies the additional services or variations and states that those additional services are being provided pursuant to this Agreement.
(h) Chill Merchants’ normal working hours are 6am to 4.30pm Monday to Friday, not including public holidays. Additional charges may apply for work required to be done outside of these hours.
3.4 Cooperation
(a) Chill Merchants will act in a professional and cooperative manner when dealing with Client.
(b) The parties will always act reasonably and in good faith when dealing with each other.
(c) If Chill Merchants is required by Client to work with other suppliers or contractors of Client, Chill Merchants will act cooperatively and in a friendly manner when doing so.
(d) When Chill Merchants attends Client’s premises, Chill Merchants will comply with Client’s relevant policies and directions known or made known to Chill Merchants including health and safety policies.
(e) Client will cooperate with Chill Merchants in supplying the Services.
(f) Client will comply with all reasonable requests or directions of Chill Merchants for the purpose of facilitating the supply of the Products and Services.
(g) Client agrees to prepare for and attend scheduled or agreed meetings, and actively participate in such meetings as required.
(h) Client’s Personnel who attend such meetings must be knowledgeable about the issues relevant to Client that are agenda items for such meetings.
(i) Where Client is required to review or approve a document, Product or other item, Client must do so promptly and if required must provide detailed and considered feedback to Chill Merchants.
(j) If the relevant requirements, project plans, schedule, specifications, scope, design, software, hardware, or system environment or architecture are changed by Client or any other person, Chill Merchants is not responsible for the change unless Client and Chill Merchants specifically consent to the change, scheduling and additional charges, if any, in writing.
(k) Where required by Chill Merchants, Client will promptly provide Chill Merchants will all required keys and access devices to enable Chill Merchants to perform the Services. Client will make available Personnel possessing sufficient authority on standby, and if required by Chill Merchants will provide a site manager who can approve any minor changes if necessary.
3.4 Timeframes(a)
(a) Chill Merchants will supply the Services to meet any timeframes set out in the Proposal. Unless otherwise stated, delivery dates and installation dates are approximate.
(b) If Chill Merchants believes that Chill Merchants will be late or is late in meeting the timeframes in the Proposal, Chill Merchants will notify Client as soon as reasonably practical.
(c) If Chill Merchants requires Client to provide anything to Chill Merchants or to do anything so that Chill Merchants can provide the Services, and Client fails to do so, then Chill Merchants is excused from providing the Services until Client provides or does what is needed.
(d) Client cannot make any claim against Chill Merchants, including for failure to meet any timeframes, if Client does not fulfil Client’s obligations or fails to provide any necessary materials, access or information, including as required by the Proposal.
4 INTELLECTUAL PROPERTY
(a) No Intellectual Property Rights are transferred from one party to the other party by this Agreement or due to the provision of the Products or Services.
(b) Chill Merchants will not infringe any Intellectual Property Rights when performing the Services.
5 FEES, PAYMENT AND GST
(a) No Intellectual Property Rights are transferred from one party to the other party by this Agreement or due to the provision of the Products or Services.(b) Chill Merchants will not infringe any Intellectual Property Rights when performing the Services.
5.1 Fees and Payment
(a) Client must pay the Fees set out in each invoice within 14 days of receipt, in accordance with this clause 5, unless other payment terms have been agreed by Chill Merchants.
(b) Chill Merchants may only issue invoices to Client in accordance with the terms of this Agreement and in accordance with any timeframes for invoicing or payment set out in the Proposal.
(c) Chill Merchant’s invoices will set out acceptable payment methods such as direct debit. A payment surcharge may apply, depending on the payment method selected. Unless otherwise agreed, Client must pay in accordance with one of the accepted payment methods.
(d) If Client cancels or postpones an appointment for the performance of all or part of the Services less than 48 hours in advance, or the performance of the Services is not possible due to Client’s failure to comply with clause 3.3 above, then Chill Merchants will be entitled to invoice Client for lost time or waiting time being a minimum of 8 hours.
(e) All payments made are non-refundable.
5.2 GST
(a) If GST is payable on a supply made under or in connection with this Agreement, the party providing the consideration for that supply must pay as additional consideration an amount equal to the amount of GST payable on that supply.
(b) Unless otherwise stated, all amounts referred to in this Agreement, including the Fees, are stated on a GST exclusive basis.
(c) If an adjustment event occurs in relation to a supply made under or in connection with this Agreement, the GST payable on that supply will be recalculated to reflect that adjustment and an appropriate payment will be made between the parties.
(d) In providing an invoice, a party shall provide proper tax invoices if GST is applicable to the Fees.
(e) Terms which have a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) shall have that meaning in this Agreement.
6 CONFIDENTIALITY
(a) Each party agrees to keep strictly confidential, and not to disclose, the Confidential Information of the other party.
(b) Each party agrees to use the Confidential Information of the other party solely to carry out Chill Merchant’s obligations under or receive the benefit of this Agreement.(c) Not withstanding the foregoing, a party may disclose Confidential Information of the other party:
(i) to its legal advisors, accountants, auditors on a confidential need-to-know basis;
(ii) to its Personnel on a confidential need-to-know basis;
(iii) in enforcing this Agreement or in a proceeding arising out of or in connection with this Agreement; or
(iv) to the extent required by Law or pursuant to a binding order of a government agency or court.
(d) Client acknowledges that Client may obtain access to Chill Merchants Confidential Information.
7 FORCE MAJEURE
8 TERMINATION
(a) Each party warrants that it:
(i) has the authority to enter into and perform its obligations under this Agreement and that this Agreement has been duly executed and is a legal, valid and binding Agreement;
(ii) will comply at all times with applicable Laws; and
(iii) will not do anything or make any statement that could be reasonably expected to harm the reputation of the other party.
9 GENERAL MUTUAL WARRANTIES
(a) Each party warrants that it:
(i) has the authority to enter into and perform its obligations under this Agreement and that this Agreement has been duly executed and is a legal, valid and binding Agreement;
(ii) will comply at all times with applicable Laws; and
(iii) will not do anything or make any statement that could be reasonably expected to harm the reputation of the other party.
10 SPECIFIC WARRANTIES
(a) Chill Merchants warrants that:
(i) Chill Merchants has all applicable licenses, permits and government authorisations required to be held by Chill Merchants to operate its business; and
(ii) Chill Merchants will perform the Services in a professional manner conforming to generally accepted industry standards.
(b) Client warrants that:
(i) Client has all applicable licenses, permits and government authorisations required to allow and enable Chill Merchants to perform it obligations in accordance with this Agreement; and
(ii) the Client premises are safe.
(c) Client must report any deficiencies in the Products or Services to Chill Merchants in writing within 15 days of installation or delivery of the Products or performance of the Services, unless another timeframe is set out in the Engagement Proposal.
(d) Chill Merchants is not responsible for any of the following (or Loss resulting from any of the following, including the voiding of manufacturer’s warranty):(i) maintenance performed by any person not appointed or authorised by Chill Merchant;
(ii) installation of the Products not carried out by Chill Merchants or one of its contractors;
(iii) damage caused by theft or vandalism or any other third-party act;
(iv) misuse or use of any kind of the Products by the Client or any person for whom the Client is responsible (including employees and visitors) that is not in accordance with any user guide, or any other oral or written instructions issued by Chill Merchants regarding the storage, installation, commissioning, use or maintenance of the Products;
(v) unauthorised opening of the Products;
(vi) natural disasters: earthquakes, lightning, wind or water damage, and problems caused by fire or similar events;
(vii) unsuitable storage conditions;
(viii) modifications, additions or any other interference with the Products, or the electric infrastructure connected to the Products, without the prior written consent from Chill Merchant; and
(ix) normal ageing and wear-and-tear of the Products (i.e.: discoloration, normal corrosion).
11 DISCLAIMERS AND LIMITATIONS ON LIABILITY
(a) EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, OR TO THE EXTENT EXPRESSLY SET OUTIN THIS AGREEMENT, CHILL MERCHANTS (A)MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED,STATUTORY OR OTHERWISE REGARDING THE PRODUCTS OR SERVICES, AND (B) DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR QUIET ENJOYMENT, OR(II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
(b) Except to the extent prohibited by Law, Chill Merchants limits its liability (at Chill Merchants’ option) in respect of any statutory warranties or implied terms that cannot be excluded to:
(i) replacement of the Products or the supply of equivalent products;
(ii) repair of the Products;
(iii) payment of the cost of replacing the Products or of acquiring equivalent products;
(iv) payment of the cost of having the Products repaired;
(v) supplying of the Services again; or
(vi) payment of the cost of having the Services supplied again.
(c) Except to the extent prohibited by Law, neither party will be liable to the other party for any Consequential Loss suffered or incurred by the other party whether in contract, tort (including negligence) or otherwise in connection with the Agreement, even if a party has been advised of or is aware of the possibility of such damage.
(d) Subject to clause 11(e), except to the extent prohibited by Law, the maximum liability of either party, whether in contract, tort (including negligence) or otherwise in connection with the Agreement (including under an indemnity), is limited to the amount specified in the Proposal, and if no amount is specified, then is limited to the value of the contract or $50,000, whichever is less.
(e) The limitation of liability in clause 12(d) does not apply to liability in relation to:
(i) personal injury, including sickness and death;
(ii) an infringement of Intellectual Property Rights;
(iii) any fraudulent act or omission;
(iv) any obligation to pay Fees or GST to Chill Merchants.
(f) The parties agree that the waivers and limitations specified in this clause 11 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even ifany limited remedy specified in this Agreement is found to have failed of its essential purpose.
(g) A party who suffers loss or damage must use reasonable steps to mitigate their loss.The other party will not be responsible for any loss, damage or expenses to the extent that the injured party could have avoided or reduced the amount of the loss, damage or expense, by taking reasonable steps to mitigate their loss.
(h) Chill Merchants’ liability under this Agreement will be reduced proportionally to the extent to which any Loss was caused or contributed to by any negligence or wilful misconduct of Client or Client’s Personnel.
(i) On request by Client, Chill Merchants may provide Client with contact details of or refer Client to third party specialists. Client may refuse any referred third-party service or referral. Chill Merchants makes no representation or warranty about any third-party advice or provision of services by such a referred third-party. Chill Merchants accepts no responsibility or liability for any Loss that Client or any person may suffer or incur due to any third-party advice, product or provision of services, or the third-party’s failure to advise or provide services.
(j) Chill Merchants may:
(i) Provide commissions or benefits to referral partners in exchange for them referring potential clients to Chill Merchants; and
(ii) Receive commissions or benefits for the referral of potential clients to referral partners.
12 ASSIGNMENT
(a) A party must not assign or novate, directly or indirectly, any of its rights or obligations under this Agreement without the prior written consent of the other party which must not be unreasonably withheld or delayed.
(b) However, Chill Merchants may assign this Agreement in connection with the sale or reorganisation of all or part of Chill Merchants’ business.
13 SUBCONTACTING
(a) Without limiting any other provision of this agreement, clauses 4, 6 and 11, and anyother clauses which should by their nature survive termination of this Agreement, survive termination or expiry of this Agreement for any reason.
14 SURVIVAL
(a) Without limiting any other provision of this agreement, clauses 4, 6 and 11, and anyother clauses which should by their nature survive termination of this Agreement, survive termination or expiry of this Agreement for any reason.
15 NOTICES
(a) Any notice, demand, consent or other communication (a Notice) given or made under this Agreement:
(i) must be in writing and signed by the sender or a person duly authorised by the sender;
(ii) must be addressed and delivered to the intended recipient by prepaid post or by hand or email to the address or email address of the representative of the party as specified in the Proposal, or as last notified by the intended recipient to the sender; and
(iii) will be conclusively taken to be duly given or made when delivered, received or left at the above email address, or address. If delivery or receipt occurs on a day that is not a business day in the place to which the Notice is sent or is later than 4pm (local time) at that place, it will be conclusively taken to have been duly given or made at the commencement of business on the next business day in that place.
16 DISPUTE RESOLUTION
17 INSURANCE
(a) Chill Merchants will maintain sufficient insurance coverage relevant to the Services.
18 GENERAL
(a) These terms and conditions and the Engagement Proposal contain the entire agreement between the parties with respect to the subject matter.
(b) These terms and conditions and the Engagement Proposal may only be amended only by written agreement executed by both parties.
(c) Chill Merchants is a contractor of Client. Chill Merchants is not an agent or employee of Client. Nothing in this Agreement will be construed to create a partnership, joint venture, or agency relationship between the parties.
(d) During the period commencing on the Commencement Date and ending one year following the end of the Term, neither party must not, without the other party’s prior written consent, directly or indirectly:
(i) or encourage any person to leave the employment or other service of the other party; or
(ii) hire any person who has left the employment within the one year period following the termination of that person’s employment with the other party.
(e) No failure to exercise or delay in exercising any right, power or remedy under this Agreement operates as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
(f) Client authorises Chill Merchants to make appropriate filings on the PPSR as Chill Merchants considers necessary.
(g) The rights, powers and remedies provided to a party in this Agreement are in addition to, and do not exclude or limit, any right, power or remedy provided by law or equity or any agreement.
(h) Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.
(i) Each party must bear its own costs arising out of the negotiation, preparation and execution of this Agreement.
(j) This Agreement and, to the extent permitted by law, all related matters including non-contractual matters, is governed by the laws of Queensland. In relation to such matters each party irrevocably accepts the non-exclusive jurisdiction of courts with jurisdiction in Queensland and waives any right to object to the venue on any ground.
19 DEFINITIONS AND INTERPRETATION
19.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
Consequential Loss means any indirect or consequential Loss, including any loss of profits, loss of revenue, loss of or damage to data, loss of contract value, loss of anticipated savings, loss of opportunity, and loss of reputation or goodwill.
Confidential Information means all non-public business or technical information, in any form whether tangible or not, disclosed or communicated by a party to the other, or learnt or accessed by, or to which the other party is exposed as a result of entering into this Agreement. Confidential Information does not include information which party can demonstrate by written records was:
(a) already known to that party;
(b) received by that party from a third party not under a duty of confidence; or
(c) independently developed by that party by people who did not have access to the ConfidentialInformation of the other party.
Engagement Proposal means the document produced by Chill Merchants titled “Engagement Proposal” that refers to these Terms and Conditions and that to be binding is signed byClient.Fees means the fees and expenses set out in the EngagementProposal.
Force Majeure Event affecting a party means a circumstance beyond the reasonable control of that party causing that party to be unable too observe or perform on time an obligation under this Agreement, including acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster, pandemics, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, revolution and acts of war and war, general strikes (other than of its own staff), embargo, or power, water and other utility shortage.An InsolvencyEvent occurs in respect of a person where:
(a) a party ceases, suspends or threatens to cease or suspend the conduct of all or a substantial part of its business or disposes of or threatens to dispose of a substantial part of its assets;
(b) a party becomes unable to pay its debts when they fall due, or stops or suspends o rthreatens to stop or suspend payment of all or a class of its debts;
(c) a partybecomes or is (including under legislation) deemed or presumed to be insolvent;
(d) a party has a receiver, manager, administrator, administrative receiver or similarofficer appointed in respect of it or the whole or any part of its assets or business;(e) any composition or arrangement is made with any one or more classes of itscreditors;
(f) except for the purpose of solvent amalgamation or reconstruction, an order, application or resolution is made, proposed or passed for its winding up ,dissolution, administration or liquidation;
(g) a party enters into liquidation whether compulsorily or voluntarily; or
(h) any analogous or comparable event takes place in any jurisdiction.
Intellectual Property Rights means all industrial and intellectual property rights of any kind including but not limited to copyrights (including rights in computer software), trade marks, service marks, designs, patents, trade secrets, semi-conductor or circuit layout rights, trade, business, domain or company names, rights in Confidential Information, know how and other proprietary rights (whether or not any of these are registered and including any application, or right to apply, for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these, which may subsist anywhere in the world, but excludes moral rights, and similar personal rights, which by law are non-assignable.
Law means all applicable laws including rules of common law, principles ofequity, statutes, regulations, proclamations, ordinances, by laws, rules, regulatory principles, requirements and determinations, mandatory codes of conduct and standards, writs, orders, injunctions and judgments.
Loss means any claim, loss, damage, liability, cost, charge or expense (including legal expenses on a full indemnity basis), however arising, and whether present or future, fixed or unascertained, actual or contingent.
Personnel means, in respect of a person, any officer, employee, contractor, servant, agent, committee member or other person under the person's direct or indirect control and includes any subcontractors.
Products is defined in the Engagement Proposal.
Related Body Corporate has the meaning given to that term in section 9 of the Corporations Act.
Services is defined in the Engagement Proposal.
Term means the period from theCommencement Date for the period of time set out in the Engagement Proposal,and if no period of time is set out, then until the Services are completed.
19.2 INTERPRETATION
Headings are for convenience only and do not affect interpretation. The following rules apply unless the context requires otherwise.
(a) the singular includes the plural and conversely;
(b) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(c) a reference to a person includes any body corporate, unincorporated body or other entity and conversely;
(d) a reference to any party to this Agreement or any other agreement or document includes the party’s successors and permitted assigns;
(e) a reference to any agreement or document(including a reference to this Agreement)is to that agreement or document as amended, notated, supplemented, varied or replaced from time to time, where applicable, in accordance with this Agreement or that other agreement or document;
(f) a reference to any legislation or to any provision of any legislation includes any modification or re-enactment of it, any legislative provision substituted for it and all regulations and statutory instruments issued under it;
(g) a reference to conduct includes any omissions, statement or undertaking, whether or not in writing;
(h) a reference to includes, means includes without limitation; and
(i) all eferences to $ are to Australian dollars, unless otherwise specified.
CHILL MERCHANTS PTY LTD
4/58 Wecker Road, Mansfield, QLD 4122
ACN: 630 918 160
ABN: 20 630 918 160
Last Revised: 1 January 2024